Hercules, Inc.

HERCULES, INC. 241 Hercules, Inc. and International Union, United Auto- mobile, Aerospace and Agricultural Implement Workers of America, UAW, Petitioner. Case 21- RC-14146 June 28, 1976 SUPPLEMENTAL DECISION AND CERTIFICATION OF REPRESENTATIVE BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO Pursuant to authority granted it by the National Labor Relations Board under Section 3(b) of the Na- tional Labor Relations Act, as amended, a three- member panel has considered the determinative chal- lenges to ballots cast in an election held on June 11, 1975,i and the Hearing Officer's report 2 recom- mending disposition of same. The Board has re- viewed the record in light of the Employer's excep- tions and brief, and hereby adopts the Hearing Officer's findings ' and recommendations with the following modification. The Hearing Officer found that the challenge to the ballot of Margaret S. McDaniel should be over- ruled, relying solely on the fact that the Employer failed to clearly communicate to her its intent to ter- minate the employment relationship. We disagree. McDaniel began work for the Employer on Octo- ber 3, 1974, as an inspector-packer. She worked spo- radically, due to illness and family problems, as well as lack of work. On December 4, 1974, she became ill at work. The next day she asked for a leave of ab- sence, informing Plant Superintendent Duncan Pat- terson that she would be out indefinitely. Patterson granted her the leave but told her that she would lose her seniority. He also told her to call when she was able to return to work and that he would call her when there was an opening . McDaniel questioned why she would lose her seniority but said that she accepted the decision . On December 20, 1974, the Employer sent its corporate headquarters in Dela- ware a notice of McDaniel 's termination. McDaniel received a medical release to return to work on January 2, 1975. However, she did not noti- fy the Employer that she was able to return to work until the first of March , at which time she spoke to the company receptionist . She was told by the recep- tionist that she would be called. One week later, Mc- Daniel again spoke to the receptionist who told her she would be contacted when there was an opening. McDaniel did not seek to speak to anyone in author- ity, and she had no subsequent formal communica- tion with the Employer . When she attempted to vote in the representation election on June 11, she was told that she was not on the eligibility list, allegedly learning for the first time that her employment with the Employer was considered terminated. The Employer's personnel manual provides: ARTICLE V-Seniority Section 1 . Seniority Rules * (b) An employee shall not attain seniority until he has completed a probationary period of forty (40) days worked in the employ of the Employ- er, after which time his seniority shall date from his date of hire 4 Section 2. Loss of Seniority Continuous service shall be broken and recall right forfeited by * * i The election was conducted pursuant to a Stipulation for Certification Upon Consent Election approved by the Regional Director for Region 21 of the National Labor Relations Board on May 19, 1975 The tally was 23 for, and 22 against, the Petitioner , there were 4 challenged ballots On Novem- ber 4, 1975, after consideration of the exceptions (the Heanng Officer incor- rectly states there were no exceptions filed), the National Labor Relations Board adopted the Acting Regional Director's report recommending that the Employer's objections to conduct affecting the election be overruled and that one of the challenges be sustained and directed a hearing on the issues raised by the remaining challenged ballots (The Board's original Decision and Order remanding this proceeding to the Regional Director is not report- ed in Board volumes ) 2 Relevant portions of the Hearing Officer's report are attached hereto as an appendix. 3 The Employer has excepted to certain credibility resolutions of the Heanng Officer It is the established policy of the Board not to overrule a Heanng Officer's credibility resolutions unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect The Coca-Cola Bottling Company of Memphis, 132 NLRB 481, 483 (1961), Stretch - Tex Co, 118 NLRB 1359 , 1361 (1957) We find no sufficient basis for disturbing the credibility resolutions in this case * D (b) Absence from work for a period equal to an employee's length of continuous service with the Employer up to a maximum of twelve (12) con- secutive months. The Heanng Officer, in finding McDaniel eligible because of the Employer's failure to notify her of her termination, applied the rule applicable to those cases in which an employee is granted sick leave on an indefinite basis and has every reason to expect that he or she will be returned to work upon recovery with full employment rights. We disagree. Rather we find that McDaniel had no such expectations. When she was granted the leave of absence, she was ex- Under this formula, McDaniel had not completed the probationary pe- riod 225 NLRB No. 31 242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pressly told that she would not be returned immedi- ately but that she would have to await an opening and that when she did return she would have no more rights in terms of seniority than a new hire. Thus, McDaniel was not granted a leave of absence in the ordinary sense of the word which implies a continuing employer-employee relationship.' Other facts here also demonstrate that McDaniel's employment was in fact terminated in December 1974. Under the Employer's personnel rule calling for termination when an employee is absent for a period equal to the length of continuous service with the Employer, McDaniel forfeited her employee sta- tus since her absence far exceeded in length her peri- od of service. Further, the Employer itself treated her leaving as a termination when, in December 1974, it notified its headquarters that she had been terminat- ed. In these circumstances, we find that the failure to formally notify McDaniel of her termination, while perhaps some evidence that she may not have been separated then, is on balance insufficient to,establish continued employee status .6 Since we find that McDaniel was terminated in December 1974, we shall sustain the challenge to her ballot. Since we are sustaining the challenges to all of the ballots which remain in controversy and since Petitioner has received a majority of the votes cast, we shall certify Petitioner as the collective-bargaining representative of the employees in the appropriate unit. CERTIFICATION OF REPRESENTATIVE It is hereby certified that a majority of the valid ballots have been cast for International Union, Unit- ed Automobile, Aerospace and Agricultural Imple- ment Workers of America, UAW, and that, pursuant to Section 9(a) of the National Labor Relations Act, as amended, the said labor organization is the exclu- sive representative of all the employees in the follow- ing appropriate unit for the purpose of collective bar- gaining in respect to rates of pay, wages, hours of employment, or other conditions of employment: All production employees employed at the Employer's premises at 6881 Eighth Street, Bue- na Park, California; excluding all plant and of- fice clerical employees, maintenance employees, professional employees, guards, and supervisors as defined in the Act. 5 Sullivan Surplus Sales Inc, 152 NLRB 132, 156-157 (1965), Arrow Spe- cialties, Inc, 177 NLRB 306, 317 (1969) 6 American Motors Corporation, Parts Division, 206 NLRB 287, 291 (1973). APPENDIX Findings of Fact and Conclusions Robert H. Arnold: Robert Arnold began work for Haskon, Inc., a sub- sidiary of Hercules, Inc., in 1971, as a truckdriver. On November 24, 1972, Arnold obtained a PUC license and started a trucking company called A-Line. On November 30, 1972, Arnold'sjob classification at Has- kon was changed from truckdriver to warehouseman. Arnold also received a reduction in pay from $5 an hour to $3.43 an hour. On January 2, 1973, Arnold leased two tractors and six trailers from Haskon to operate his trucking business. This lease arrangement contin- ued until November 1973, when Hercules took direct control of Haskon and continued operating as Hercu- les. At this time, Arnold purchased his own equipment, consisting of two tractors and four trailers, and contin- ued his trucking operation. During the same period of time and continuing to date, Hercules has employed Arnold as a warehouse- man. However, contrary to other employees, Arnold does not punch a timeclock and does not ever see his timecard, though a timecard is maintained for him by Mr. Kelly, plant manager of Hercules, or his secretary. Under a gentlemen's agreement between Arnold and Kelly, Arnold promised to give Kelly 8 hours' work for 8 hours' pay. No other employee has entered into such a verbal arrangement with the Employer. Also, all other employees are required to punch a timeclock. Arnold schedules his own work hours, which he determines according to the needs of the Company. Thus, if a truck must be loaded either before or after the normal day shift, Arnold will schedule his time to come in either early or late, to ensure that the truck is loaded on time. If Arnold should happen to work more than 8 hours in I day, he makes it up by working a lesser number of hours the next day. Arnold does not report his hours worked to anyone, but just puts in approximately 40 hours a week as he promised he would. Furthermore, Arnold does not report to Plant Superintendent Aus- mus but reports directly to Kelly, if anyone. Hercules' equipment is seldom used to make deliveries. Rather, Hercules contracts with A-Line for all its local deliver- ies. Though A-Line has an office in Long Beach, orders from Hercules to A-Line are transmitted directly by Kelly to Arnold at the Hercules premises. The trucks of both Hercules and A-Line are parked in an empty lot next door to the Hercules plant. The Petitioner has presented witnesses who testi- fied that, until the time of the election, they never saw Arnold working as a warehouseman, and that, if Arnold was seen in the plant, it was just walking around, drinking coffee, or working on a truck. Em- ployee Luccynski testified that Arnold told her he HERCULES, INC. could do what he pleased because he owned his own business . While suggestive, such testimony is insuffi- cient to wholly refute the testimony of Arnold or Ausmus, both of whom testified that 90 percent of Arnold's time was spent in performing warehouse duties. Both men testified that Arnold worked vari- ous shifts as needed and the Petitioner's witnesses admitted that they were not in a position to observe the warehouse area during working time. Thus, the Petitioner has not presented sufficient evidence to disprove the testimony of Ausmus and Arnold that Arnold spends 90 percent of his time at the plant performing warehouse functions similar to those per- formed by other warehousemen and that he receives the same benefits enjoyed by other employees. Nevertheless, the question remains whether Ar- nold shares the same community of interest with other employees. Arnold is the sole owner of A-Line. Hercules uses A-Line exclusively for local deliveries. Arnold schedules his time at Hercules so that the trucks can be loaded expeditiously. However, the trucks he loads are his own trucks. Thus, Arnold's interest in performing his work is more than that of a conscientious employee. Arnold has a proprietary in- terest in seeing that his trucks are loaded and dis- patched as promptly as possible. Therefore, based upon the record as a whole, including Arnold's spe- cial relationship with Hercules and his obvious pro- prietary interest in advancing his own business, I find that Arnold does not share a community of interest with other employees 2 and I recommend that the challenge to his ballot be sustained. Jeffrey C. Meyer: Jeffrey Meyer began work at Hercules on Septem- ber 19, 1973. He terminated his employment on April 8, 1974. On June 13, 1974, Meyer was rehired as a machine operator. Meyer continued his employment until March 7, 1975, when he informed Mr. Kelly that he was quitting.' Meyer returned to work at Her- cules on May 1, 1975. When he attempted to vote in the NLRB election held on June 11, 1975, Meyer was challenged by the Board Agent on the ground that his name was not on the voting eligibility list. In or- der to be eligible to vote in an election, the voter in 2 Smith Alarm Systems & Central Station Alarm Co, 209 NLRB 835 (1974), enfd 524 F 2d 983 (C A 5, 1975) J Based upon my observations of Meyer , his demeanor, and his consistent testimony under strong cross-examination by all parties, I conclude that Meyer was truthful in his testimony I, therefore , credit his testimony that he told Mr Kelly that he had quit The record as a whole further supports this conclusion For instance , Plant Superintendent Ausmus, who, at the time, was employed by Hercules as a maintenance mechanic , testified that he asked Meyer why he had left and Meyer replied he was dissatisfied with the way Scotty [Patterson ] was treating him Furthermore , Kelly's version of the conversation is that Meyer approached him and told him that he had gotten work . Kelly testifies he said "Good luck Jeff, give it a try " Kelly says he told Meyer, "If it doesn't work out, you may come back to your present Job" Kelly admits he did not fix any time limit The Employer contends that by this and similar statements made earlier to Meyer, Kelly granted 243 question must have been an employee during the es- tablished eligibility date and on the date of the elec- tion itself.4 Based upon the record as a whole and my observations of the witnesses and their demeanor, I conclude that Meyer had not requested nor had he been granted a specific leave of absence. Rather, I find that Meyer quit his employment on March 7, 1975, and, therefore, was not an employee as of the established eligibility date. I, therefore, recommend that the challenge to his ballot be sustained. Margaret McDaniel: McDaniel began work for Hercules on October 3, 1974, as an inspector-packer. She was employed on the third shift. On the morning of December 4, 1974, during the course of her shift, McDaniel became ill. That afternoon, after her work shift, McDaniel vis- ited a physician for treatment. Subsequently, Mc- Daniel appeared at the plant and spoke to Plant Su- perintendent Patterson. She asked for a leave of absence, and it was granted. Patterson confirms that McDaniel had departed on a leave of absence.' Kent Dickson, McDaniel's leadman, was informed by Car- ol LeBlanc that McDaniel was under a doctor's care. McDaniel continued to visit her physician for treatment and, in March 1975, telephoned the Com- pany and left word that she was physically able to return to work. She then waited at home for recall. When McDaniel appeared at the plant on June 11, 1975, to vote in the NLRB election, she was in- formed for the first time that she had been terminat- ed.' Inasmuch as the "customary procedure and poli- cy of the Board on issues of eligibility is that in order to terminate an employment relationship there must be a manifestation of the intent to terminate which is clearly communicated to the other party,"' I find that McDaniel was an eligible voter as of the estab- lished eligibility date and on the day of the election. I therefore recommend that the challenge to her bal- lot be overruled. Meyer a leave of absence status However, I find that Meyer had not re- quested a leave of absence Moreover, I find the mere statement that an employee can return at any time, so vague and indefinite in nature as to not constitute a leave of absence See Channel Master Corporation, 114 NLRB 1486, 1489 (1955) Greenspan Engraving Corp, 137 NLRB 1308, 1309 (1962), Gulf States Asphalt Company, 106 NLRB 1212, 1214 (1953), Reade Manufacturing Com- pa, 100 NLRB 87, 89 (1952), Bill Heath, Inc, 89 NLRB 1555 (1950) Patterson contends that McDaniel had asked for a leave of absence for personal reasons rather than for medical reasons In my observations of both witnesses and their demeanor, I noted that, while McDaniel appeared to be an honest, truthful, and forthright witness, Patterson was more vague and hesitant in his responses Therefore, in resolving any conflicts between the two witnesses, I credit McDaniel's version over Patterson's version wherever they are in conflict 6 The Employer contends that McDaniel was automatically terminated on December 20, 1974, under established company rules However, this decision was never communicated to McDaniel , and I so find. 7 N L R B v Staiman Brothers, 466 F 2d 564 (C A 3, 1972); N LR B v Pacific Gamble Robinson Co, 438 F 2d 112 (C A 9, 1971), Westchester Plas- tics of Ohio, Inc v N L R B, 401 F 2d 903, 908 (C A 6, 1968), WCAR, Inc, 203 NLRB 1235 (1973), Miami Rivet Co, 147 NLRB 470, 483-484 (1964), Otarion Listener Corp, 124 NLRB 880 (1959)