W. R. Grace & Co.

W. R. GRACE & CO. W. R. Grace & Co., Construction Products Division and General Truck Drivers, Chauffeurs, Ware- housemen and Helpers, Local No. 270, a/w International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, Ind. Cases 15-CA-6108 and 15-RC-5858 June 30, 1977 DECISION, ORDER, AND CERTIFICATION OF REPRESENTATIVE BY MEMBERS JENKINS, MURPHY, AND WALTHER On February 4, 1977, Administrative Law Judge Benjamin K. Blackburn issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief; the Charging Party filed exceptions; Respondent filed a request for oral argument,' a motion to strike the General Counsel's exceptions and brief, and a brief in support of its motion to strike;2 and the General Counsel filed an opposition thereto. Pursuant to the provisions of the Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings, 3 and conclusions of the Administrative Law Judge and to adopt his recommended Order only to the extent consistent herewith. Pursuant to the Acting Regional Director's Deci- sion and Direction of Election issued on March 12, 1976, a Board-conducted election was held on April 8, 1976, in a unit of Respondent's production and maintenance employees. The election resulted in five votes for, and four against, the Union, General Truck Drivers, Chauffeurs, Warehousemen and Helpers, Local No. 270, affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind. There were no void or challenged ballots. Thereafter, Respondent filed timely objections to the conduct of the election alleging that the Board agent improperly denied Sanders Green, a maintenance employee, the right to vote. On May 24, 1976, the Union filed an unfair labor practice charge against Respondent, alleging, inter alia, that following the election Respondent I Respondent's request for oral argument is hereby denied as the record, the exceptions, and the briefs adequately present the issues and the positions of the parties. We find no merit to Respondent's contention that the General Counsel's filing of exceptions in the unfair labor practice proceeding subverts the Regional Office's role in the representation matter. 2 Respondent's motion to stnke the General Counsel's exceptions and brief is hereby denied as lacking in merit. 230 NLRB No. 76 instituted certain unilateral changes in its operation without prior notice to or consultation with the Union. On June 3, the Regional Director filed a Supple- mental Decision and Certification of Representative in which he overruled Respondent's objections in their entirety and certified the Union. Respondent subsequently filed with the Board a timely request for review of the Regional Director's Supplemental Decision and Certification of Representative. On July 30, the Regional Director issued a complaint on the basis of the unfair labor practice charges filed by the Union. On August 20, the Board granted Respondent's request for review, remanded Respon- dent's objections to the Regional Director for the purpose of conducting a hearing thereon, and stayed the certification. Thereafter, the Regional Director issued an order consolidating the representation and unfair labor practice cases for hearing. The consoli- dated cases were heard before Administrative Law Judge Benjamin K. Blackburn on September 14 and 16, 1976. The Administrative Law Judge found, inter alia, that, at the time of the election, Green was a temporary supervisor whose community of interest lay more with his fellow employees than with management, and that he was therefore eligible to vote in the election. In addition, the Administrative Law Judge found that, although no one was to blame for Green's failure to vote, Green nevertheless was denied the right to cast a potentially decisive vote in the election. He recommended, therefore, that the objections to the conduct of the election be sustained and the election be set aside. As a corollary to this finding, he concluded that Respondent was under no duty to bargain with the Union after the election and during the pendency of the objections. Accordingly, the complaint herein, which alleged that during the postelection period Respondent unilaterally discon- tinued its Monokote production process, laid off employees, and changed work schedules in violation of Section 8(a)(5) and (1), was dismissed in its entirety. Contrary to the Administrative Law Judge, we find, for the reasons set forth below, that Respondent's objections to the conduct of the election are without merit, that the results of the election are valid, and that Respondent has violated Section 8(a)(5) and (1) of the Act. With respect to the objections, the relevant facts are as follows: On March 15, 1976, Sanders Green, a 3 The General Counsel has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products. Inc.. 91 NLRB 544 01950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 617 DECISIONS OF NATIONAL LABOR RELATIONS BOARD maintenance employee, agreed to assume the duties of shift leader on one of the three shifts following Respondent's suspension of shift leader Allen. On March 17, Respondent's general plant manager for the southern region, Timmons, offered Green the shift leader position on a permanent basis, but Green declined to accept. Green did agree, however, to continue acting as shift leader until a replacement for Allen could be trained, a period which Timmons estimated would be 30 to 60 days. Sometime after March 15, Plant Manager McGee prepared an Excelsior eligibility list4 for use in the election which was scheduled for April 8. Green's name did not appear on the list. McGee testified that he omitted Green's name from the list because he assumed, based on the Acting Regional Director's Decision and Direction of Election, that all shift leaders, including Green, were supervisors and were therefore excluded from the unit. McGee also testified, however, that on April 7, the day before the election, in response to Green's inquiry as to whether or not he should vote, McGee informed him that according to the posted notice of election, "[P]roduction and maintenance personnel are sup- posed to vote." Thereafter, according to Green's credited testimo- ny, when he came to the polling area to vote on the day of the election and the Board agent asked for his name, the following ensued: GREEN: And I said Sanders Green and I don't think he fully understood what I said so I spelled it for him. S-a-n-d-e-r-s, Sanders Green and then he looked and said my name was not on the list and he said what makes you think you are eligible to vote? And I said because everybody else voting and I thought I was eligible to vote too so he had more questions to ask me but I didn't give him no time because I hunkered my shoulders and walked out. JUDGE BLACKBURN: What makes you think he had more questions to ask? GREEN: Because he seemed to want to say something. JUDGE BLACKBURN: He started to open his mouth or something like that? GREEN: And I was walking out at the time because I say I was in the voting area and at least maybe a minute. As is evident from the above-quoted testimony, Green himself admitted that, after the Board agent asked his name and told him that his name was not i Excelsior Underwear Inc., 156 NLRB 1236 (1966). 1 International Telephone and Telegraph Corporation. Industrial Products Division, 129 NLRB 221 (1960). on the Excelsior list, he hurriedly left the polling area and, despite his awareness that the Board agent wished to pursue the matter, he gave the Board agent no time in which to complete his questions or to extend to him an opportunity to vote a challenged ballot. In view of this testimony, we cannot find that the Board agent engaged in any improper conduct and that Green was denied the right to cast a ballot. Rather, we find that Green voluntarily and knowing- ly left the voting area and thus voluntarily and knowingly failed to exercise his legal right to cast a ballot.5 Accordingly, we hereby overrule Respon- dent's objections. 6 Inasmuch as the results of the election show that a majority of valid votes were cast in favor of representation, we shall certify the Union. With respect to the alleged unfair labor practices, the parties stipulated that on May 20, 1976, during the pendency of the objections, Respondent, through Timmons, notified its production and maintenance employees that it was discontinuing its Monokote operation for economic reasons and that effective immediately employees Solomon James, John Cun- ningham, James Fox, and Louis Morgan were permanently laid off. In addition, the parties stipulat- ed that effective the following day, May 21, Respon- dent eliminated its third shift, and that, on or about the week ending June 10, and periodically thereafter, Respondent made additional changes in production shifts. The parties stipulated that Respondent unilat- erally effectuated all of the above-mentioned changes without giving notice to and/or consulting with the Union. It is well established that an employer violates Section 8(a)(5) and (1) when, without first consulting with the union, it makes changes in terms and conditions of employment during the pendency of objections to an election which eventually results in the certification of the union. Mike O'Connor Chevrolet-Buick-GMC Co., Inc., 209 NLRB 701 (1974). In the instant case, however, the Regional Director, by dismissing the 8(a)(3) portion of the unfair labor practice charge, determined that the discontinuance of the Monokote operation was motivated by legitimate business reasons. According- ly, in his brief to the Board, counsel for the General Counsel expressly states that he "does not and has not contested Respondent's right unilaterally to cease manufacturing Monokote in New Orleans" or its consequent layoff of four employees, and that he specifically does not seek the reestablishment of that operation or the reinstatement of the laid-off employ- ees. In these particular circumstances, we find that Respondent did not violate Section 8(a)(5) by failing 6 In view of the result we have reached herein, we find it unnecessary to determine whether or not Green was, in fact, eligible to vote in the election. 618 W. R. GRACE & CO. to notify and consult with the Union over its decision to close the Monokote operation, to lay off employ- ees, or to change its work schedules. We do find, however, that Respondent was under an obligation to bargain with the Union over the effects of its decision to discontinue its Monokote operation, to lay off employees as well as to change its work schedules, and that its failure to do so violated Section 8(a)(5) and (1) of the Act.7 THE REMEDY Having found that Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, we shall order that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. We shall order Respondent to bargain, upon request, with the Union as the exclusive bargaining representative of the employees in the appropriate unit, with respect to rates of pay, wages, hours, and other terms and conditions of employment, including the effects of the discontinuation of its Monokote operation, the layoff of unit employees, and the changing of its work schedules on the unit employ- ees. It is clear, however, that a bargaining order alone cannot fully remedy the unfair labor practices committed by Respondent since, as a result of its failure to bargain with the Union about the effects of discontinuing the Monokote operation, the laying off of employees, and the changing of work schedules, Respondent's employees were denied an opportunity to bargain through their exclusive representative at a time when such bargaining would have been mean- ingful in easing the hardship on employees whose jobs were being terminated. Under the circumstances of this case, in order to assure meaningful bargaining and to effectuate the purposes of the Act, we shall accompany our order to bargain with a requirement that Respondent provide backpay to employees Solomon James, John Cunningham, James Fox, and Louis Morgan in a manner similar to that required in Transmarine Navigation Corporation, 170 NLRB 389 (1968). In addition, we shall require that the backpay for the above-named employees be not less than the amounts they would have earned during a 2-week period of employment. 8 This qualified backpay remedy will place the Union in an effective bargain- ing position, while recognizing the economic necessi- ty which apparently compelled the discontinuation of Respondent's Monokote operation and the layoff of its employees.9 Cf. Stagg Zipper Corp., 222 NLRB 1249 (1976): Van's Packing Plant, 211 NLRB 692 (1974); Summit Tooling Company, 195 NLRB 479 (1972). R See also Rapid Air Expediting, Inc., 220 NLRB 931 (1975): Van's Packing Plant, supra; Automation Institute of Los Angeles. db/'a West Coast Schools, 208 NLRB 725 (1974). Accordingly, we shall order Respondent to bargain with the Union, upon request, about the effects of its discontinuation of the Monokote operation and layoff of employees, and over its changing of work schedules, and to pay employees Solomon James, John Cunningham, James Fox, and Louis Morgan amounts at the rate of their normal wages when last in Respondent's employ from 5 days after the date of this Decision until the occurrence of the earliest of the following conditions: (I) the date Respondent bargains to agreement with the Union on those subjects pertaining to the effects of discontinuation of the Monokote operation and layoff of employees and over its changing of work schedules; (2) a bona fide impasse in bargaining; (3) the failure of the Union to request bargaining within 5 days of this Decision or to commence negotiations within 5 days of Respondent's notice of its desire to bargain with the Union; or (4) the subsequent failure of the Union to bargain in good faith, but in no event shall the sum paid to any of these employees exceed the amount each would have earned as wages from the time Respondent terminated its Monokote operation to the time each secured equivalent employment elsewhere, or the date on which Respondent shall have offered to bargain, whichever occurs first; provided, however, in no event shall this sum be less than such employees would have earned for a 20- week period at the rate of their normal wages when last in Respondent's employ. Effectuation of the policies of the Act requires, in addition, that Respondent be required, in consulta- tion with the Union, to establish a preferential hiring list, following a nondiscriminatory system such as seniority, which includes the names of Solomon James, John Cunningham, James Fox, and Louis Morgan, and, if Monokote operations are ever resumed in the Jefferson Parish, Louisiana, area, where Respondent is located, offer reinstatement to these employees and bargain with the Union upon request. In the event Respondent in 'the future decides to resume its Monokote operation at 4729 River Road, Jefferson Parish, Louisiana, it shall offer James, Cunningham, Fox, and Morgan reinstate- ment to their former positions or, if such positions no longer exist, to substantially equivalent positions there. Finally, we shall require Respondent to post copies of the attached notice at its place of business and, in addition, to mail copies of such notice to Solomon James, John Cunningham, James Fox, and Louis Morgan. 9 Although Member Walther concurs in applying the Transmarine formula for computing backpay with respect to the laid-off employees, he would make such an award subject to subsequent bargaining between the Union and Respondent, consistent with his position in Atlas Tack Corporation. 226 NLRB 222 (1977). 619 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. Respondent W. R. Grace & Co., Construction Products Division, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. General Truck Drivers, Chauffeurs, Ware- housemen and Helpers, Local No. 270, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind., is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees employed at Respondent's 4729 River Road, Jeffer- son Parish, Louisiana, facility; excluding all truckdri- vers, confidential employees, guards and supervisors as defined in the Act, constitute an appropriate unit for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 4. The Union is the exclusive representative of the employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By failing and refusing, after the election held herein and during the pendency of objections to the election, to bargain with the Union concerning the effects on employees in the bargaining unit of Respondent's discontinuation of its Monokote oper- ation and layoff of employees and over its changing of work schedules, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, W. R. Grace & Co., Construction Products Division, Jefferson Parish, Louisiana, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Failing and refusing to bargain collectively concerning the effects of the discontinuation of its Monokote operation and layoff of employees and over its changing of work schedules with General Truck Drivers, Chauffeurs, Warehousemen and Helpers, Local No. 270, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, Ind., as the exclusive 'o In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a representative of all employees in the following appropriate unit: All production and maintenance employees em- ployed at Respondent's 4729 River Road, Jeffer- son Parish, Louisiana, facility; excluding all truckdrivers, confidential employees, guards and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Upon request, bargain collectively with the Union as the exclusive representative of the employ- ees in the above-described appropriate bargaining unit, with respect to rates of pay, wages, hours, and other terms and conditions of employment, including the effects of the discontinuation of its Monokote operation and layoff of unit employees and over its changing of work schedules. (b) Provide backpay to Solomon James, John Cunningham, James Fox, and Louis Morgan in the manner set forth in the section of this Decision entitled "The Remedy." (c) Establish in consultation with the Union a preferential hiring list, following a nondiscriminatory system, such as seniority, which includes the names of Solomon James, John Cunningham, James Fox, and Louis Morgan, and if Monokote operations are ever resumed anywhere in the Jefferson Parish, Louisiana, area, offer reinstatement to these employ- ees. In the event Respondent in the future decides to resume its Monokote operation at its 4729 River Road, Jefferson Parish, Louisiana, facility, it shall offer them reinstatement to their former positions or, if such positions no longer exist, to substantially equivalent employment. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (e) Post at its Jefferson Parish, Louisiana, facility copies of the attached notice marked "Appendix" 10 and mail copies of said notice to Solomon James, John Cunningham, James Fox, and Louis Morgan. Copies of said notice, on forms provided by the Regional Director for Region 15, after being duly signed by Respondent's representatives, shall be posted by it immediately upon receipt thereof, and Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 620 W. R. GRACE & CO. be maintained by it for 60 consecutive days thereaf- ter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 15, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply here- with. CERTIFICATION OF REPRESENTATIVE It is hereby certified that a majority of the valid ballots have been cast for General Truck Drivers, Chauffeurs, Warehousemen and Helpers, Local No. 270, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind., and that, pursuant to Section 9(a) of the National Labor Relations Act, as amended, said labor organization is the exclusive representative of all the employees in the unit found appropriate herein for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and terms and conditions of employment. The appropriate unit is: All production and maintenance employees em- ployed at Respondent's 4729 River Road, Jeffer- son Parish, Louisiana, facility; excluding all truckdrivers, confidential employees, guards and supervisors as defined in the Act. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse, upon request, to bargain collectively, concerning rates of pay, wages, hours, and other terms and conditions of employ- ment, including the effects of our discontinuation of the Monokote production process and layoff of employees as well as over our changing of work schedules, with General Truckdrivers, Chauff- eurs, Warehousemen and Helpers, Local No. 270, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Hel- pers of America, Ind., as the exclusive bargaining representative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights under Section 7 of the Act. WE WILL, upon request, bargain with the above-named Union, as the exclusive bargaining representative of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and conditions of employment, including the effects of discontinua- tion of our Monokote production process and layoff of employees Solomon James, John Cun- ningham, James Fox, and Louis Morgan, as well as over our changing of work schedules. The bargaining unit is: All production and maintenance employees employed at Respondent's 4729 River Road, Jefferson Parish, Louisiana, facility; exclud- ing all truckdrivers, confidential employees, guards and supervisors as defined in the Act. WE WILL pay Solomon James, John Cunning- ham, James Fox, and Louis Morgan their normal wages for a period required by the Decision, Order, and Certification of Representative of the National Labor Relations Board. WE WILL in consultation with the Union establish a preferential hiring list, following a nondiscriminatory system, such as seniority, which includes the names of Solomon James, John Cunningham, James Fox, and Louis Mor- gan. If Monokote operations are ever resumed anywhere in the Jefferson Parish, Louisiana, area, we will offer reinstatement to these employees. If we decide to resume the Monokote operation at our 4729 River Road, Jefferson Parish, Louisiana, facility, we will offer them reinstatement to their former positions or, if such positions no longer exist, to substantially equivalent positions. W. R. GRACE & Co., CONSTRUCTION PRODUCTS DIVISION DECISION STATEMENT OF THE CASE BENJAMIN K. BLACKBURN, Administrative Law Judge: The petition in Case 15-RC-5858 was filed on February 3, 1976.1 The hearing was held on February 25. The Acting Regional Director's Decision and Direction of Election was issued on March 12. The election was held on April 8. It resulted in five votes for the Union and four against. There were no void or challenged ballots. Respondent filed timely objections. The charge in Case 15-CA-6108 was I Dates are 1976 unless otherwise indicated. 621 DECISIONS OF NATIONAL LABOR RELATIONS BOARD filed on May 24. The Regional Director's Supplemental Decision and Certification of Representative in Case 15- RC-5858 was issued on June 3. Respondent filed a timely request for review by the Board. The complaint in Case 15- CA-6108 was issued on July 30. The Board stayed the certification and remanded Case 15-RC-5858 to the Regional Director for hearing on August 20. An order consolidating the two cases for hearing was issued on August 24. The hearing was held in New Orleans, Louisiana, on September 16 following a formal pretrial conference on September 15. The complaint alleges Respondent violated Section 8(a)(5) and (1) of the National Labor Relations Act, as amended, by unilaterally changing work schedules, discon- tinuing a part of its production process, and laying off employees on or about May 20. That Respondent discon- tinued its Monokote operation on that date for economic reasons, thereby terminating the employment of four employees, and thereafter changed its shift times without notifying or bargaining with the Union is undisputed. Respondent's duty to bargain is predicated on its certifica- tion in Case 15-RC-5858. The issue presented in that case is whether Sanders Green, a temporary shift leader at the time of the election, was improperly denied an opportunity to vote. For the reasons set forth below, I find that he was an eligible voter, that the circumstances under which he failed to cast a ballot invalidates the election held on April 8 and the certification growing out of it, and that, therefore, Respondent did not refuse to bargain with the Union when it acted unilaterally on May 20 and thereafter. Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of excellent briefs, I make the following: FINDINGS OF FACT I. JURISDICTION Respondent, a Connecticut corporation, is engaged in Jefferson Parish, Louisiana, in the business of processing construction materials. It annually receives goods and materials valued at more than $50,000 which are shipped directly to it from suppliers located outside the State of Louisiana. II. THE OBJECTIONS TO THE ELECTION A. Facts This case turns, initially, on precisely what happened when Sanders Green, a maintenance man/temporary shift leader, sought to vote in the election held in Case 15-RC- 5858 on April 8. Arnold Taylor, the Union's observer; Betty Arnone, Respondent's observer; and Green, himself, all testified about the incident. There is no real conflict among their versions although they differ slightly as to the details. The most vivid account, by far, is Green's. Paraphrasing it would only dilute its clarity. I find, therefore, that this is what occurred when Green went to the poll on April 8: Q. Do you recall going into the voting area? A. Yes. Q. Can you tell us what happened? A. Well, when I came in to go into vote I went into to vote and I asked I inquired is this the place to vote and they said yes. JUDGE BLACKBURN: Who said yes? THE WITNESS: Arnold said yes, this is the place to vote. JUDGE BLACKBURN: I didn't understand you. THE wHNEss: Arnold, Arnold Taylor. JUDGE BLACKBURN: Mr. Taylor said that, yes. Okay. THE wrwNEss: So they looked at the list. JUDGE BLACKBURN: Who is they? THE WITNESS: Well, Betty looked at the list and then the agent [Daniel O'Callaghan] looked at the list and he looked at it and said what is your name. He asked me my name. JUDGE BLACKBURN: This is the board agent? THE WITNESS: Right. And I said Sanders Green and I don't think he fully understand what I said so I spelled it for him. S-a-n-d-e-r-s, Sanders Green and then he looked and said my name was not on the list and he said what makes you think you are eligible to vote? And I said because everybody else voting and I thought I was eligible to vote too so he had more questions to ask me but I didn't give him no time because I hunkered my shoulders and walked out. JUDGE BLACKBURN: What makes you think he had more questions to ask? THE WITNESS: Because he seemed to want to say something. JUDGE BLACKBURN: He started to open his mouth or something like that? THE wrrNEss: And I was walking out at the time because I say I was in the voting area and at least maybe a minute. The problem which was created when Green walked out of the polling area as the Board agent opened his mouth to speak further arose in this manner: The Regional Director found appropriate a unit of all production and maintenance employees, excluding truck- drivers, confidential employees, guards, and supervisors. He also found shift leaders to be supervisors within the meaning of the Act. Spencer Allen, one of Respondent's three shift leaders at the time, failed to show up for work on Friday, March 12. When he came to the plant drunk later that night, Jerry McGee, Respondent's plant manager, suspended him. When Green reported to work on Monday morning, March 15, McGee asked him to help out by taking over as leader on Allen's shift. Green said he would be glad to. On Wednesday, March 17, Joe Timmons, Respondent's General plant manager for the southern region, came to the plant. He and McGee decided to discharge Allen. On Thursday, Timmons offered the shift leader's job to Green on a permanent basis. Green, whose hourly rate of $4.96 as maintenance man was 35 cents higher than that of a shift leader, declined. Timmons asked Green to continue acting as shift leader until a replacement for Allen could be trained. Green agreed. Timmons said Ivy Nunnery, a rank- and-file employee, would begin training immediately. Green said Nunnery was a good choice. Timmons said the 622 W. R. GRACE & CO. training would probably take 30 to 60 days. Nunnery began training that day. However, he never became a shift leader. The change in operations which occurred on May 20 eliminated one shift. McGee prepared the Excelsior list for use in the April 8 election sometime after March 15. Because Green was working as a shift leader and shift leaders had been held ineligible to vote as supervisors, McGee did not place his name on the list. While Green was working as a shift leader, he was vested with all the authority and responsibility of one who holds that job on a permanent basis. He continued to do the work and receive the pay of a maintenance man. While fixing a machine in the latter capacity, Green injured his hand on Friday, March 26. He worked on Saturday but went on sick leave on Monday, March 29. Green visited the plant on April 7. He asked McGee about the election scheduled for the next day. McGee showed him the posted Board notice, pointing out that "maintenance employees" were explicitly included in the unit. Consequently, Green returned to the plant the next day and attempted to vote with the result detailed above. Green's doctor released him for return to work in a "supervisory capacity only" on Monday, April 12. He returned to work as temporary shift leader on that day. He last worked in that capacity on Saturday, April 17. On Monday, April 19, he reverted to the status of maintenance man. B. Analysis and Conclusions Whether Sanders Green was eligible to vote on April 8 turns on whether his status, as of that day, as temporary shift leader prevented him from having a community of interest with employees in the unit. The answer lies, I think, in comparing his situation with that of one Reed, found by the Board to be ineligible in somewhat similar circumstanc- es in GAF Corporation, 214 NLRB 409 (1974). Reed acted as machinist foreman from July 16 until September 21, 1973. The petition in that case was filed on August 3, 1973, and the election was held on September 14, 1973. The Board said (410-411): While the Board has often held [citing United States Steel Corporation, Central Furnace, 188 NLRB 309 (1971), and Adelphi University, 195 NLRB 639 (1972)] . . .that employees serving in a temporary supervisory position are not ineligible to vote in an election solely because they have served briefly in a supervisory capacity, the record here shows that Reed's status was something more than that of a temporary supervisor. Moreover, this case is distinguishable since Reed was supervising employees in his own unit, thus raising the specter of possible conflict of interest with respect to the unit employees. *t *s Here as in [E. 1. Du Pont de Nemours & Co., Inc., 210 NLRB 395 (1974)] . .. Reed, unlike employees found to be temporary supervisors in other cases, supervised employees in his own unit before the petition was filed on August 3, 1973, and until more than a week after the election. While the employees in E. I. DuPont were specifically told that their tenure as relief foremen would be limited in time and that they would return to unit jobs, Reed's supervisory status is more permanent here, since there is no evidence that he would be supervisor for a limited time nor was there any notice given, at any time, that he would return to the unit. * * * [I]t is clear that Reed, having served in a supervisory capacity with this Employer, as well as with a prior employer, was, and is, at the very least, a prime candidate for any other supervisory positions which become available with this Employer. Thus, the record shows that Reed does not have a sufficient community of interest with the employees in the unit, and there arises the possibility of a serious conflict of interest, a concern which the Board expressed as being present in these circumstances in its E. I. DuPont decision supra. [Emphasis supplied.] If the fact that Reed was supervising employees in his own unit is the point on which the Board's decision in GAF turns, then Green here, under Board law, is ineligible. In reversing the Board in GAF, the United States Court of Appeals for the Fifth Circuit had this to say on the point in GAF Corporation v. N.LR.B., 524 F.2d 492, 496 (1975): Taken together, the NLRB's own cases indicate that an employee may be disqualified pursuant to section 2(11) only if his temporary service as a supervisor is a regular and substantial part of his job which cannot be "sharply demarcated" from his rank-and-file duties. Given these established guidelines, the Board's disqual- ification of Reed because he was acting as a machinist foreman during Brewer's absence can only be explained as an implicit adoption of a new policy toward temporary supervisors. We find no merit, however, in the NLRB's efforts to justify the approach taken in this case. * * S We find, moreover, no reasonable basis under section 2(11) for the NLRB's conclusion that Reed's ballot should not be counted because he had been supervising members of his own bargaining unit at the time of the election. As our review of the Board's decisions has indicated, an employee's supervision of his own unit has disqualified him only from participat- ing in ongoing union activities during his temporary service as a foreman. The NLRB's traditional concern in this situation has been with the obvious impropriety of permitting a temporary foreman to participate in unit meetings and other activities while he is also serving as a supervisor.... The fact that Reed supervised members of his own unit has no bearing on the question of whether he is sufficiently concerned with the terms and conditions of employment in that unit to warrant his participation in the certification election. 623 DECISIONS OF NATIONAL LABOR RELATIONS BOARD * * * Even if Reed had been a favorite of management, and was, therefore, being considered for a permanent post as machinists foreman, the Board has itself held that the prospect of promotion does not preclude an employee from participating in a bargaining unit ... We find no reasonable basis in either wording of the Act or its legislative history for the notion that an employee can be denied the protections of the labor laws because he is being considered for promotion. [Footnote and citations omitted.] That the specter referred to by the Board in GAF is not the point on which its decision with respect to Reed turns is clear from its own rationale in E. I. Du Pont, supra, when it first found temporary foremen ineligible because they supervised employees in their own unit. In Du Pont the Board said (396): It is true, as a general proposition, that individuals holding "temporary" supervisory positions are normal- ly found eligible to vote in Board elections [citing, as an example, Stewart & Stevenson Services, Inc., 164 NLRB 741 (1967)]. This is so because, in most situations, temporary supervisory assignments may properly be viewed as relatively insignificant interludes in regular employee assignments. That does not appear to us to be the case here ... We note, moreover, that the individuals in question, unlike those involved in other cases, supervised the very employees in the unit, for the entire period of the organizational campaign up to and including the election. To grant the relief foremen unit and voting eligibility for this election would, it seems to us, present serious conflict of interest problems. Should we find the relief foremen to be employees, and eligible to vote, because of their allegedly overriding interest in the outcome of the election, presumably they should be entitled to ask their fellow employees how they would vote, and convey to them their own thoughts about organization including, perhaps, what the Employer would do in the event of unionization. They would, in order to cast an informed vote, be entitled to attend union meetings, inquire as to who is supporting the union, and engage in the many other activities to which "employees" are entitled under Section 7. Presumably the relief foremen could legitimately run for union office, and be privy to intimate union organizational plans. On the other hand, since these foremen, though deemed "relief," constituted the major part of the Employer's supervisory cadre throughout this period, the Employer would have been entitled to insist that they campaign on its behalf against the Union and perhaps consult with it about the progress of the campaign. We believe that unit employees have the right to engage in union activities and in the choice of a collective-bargaining representative free from the par- ticipation of individuals who have been their chief, and perhaps only, supervisors for indefinite periods of time; who at the time of the election appeared to have prospects of continuing in a supervisory role for further periods; and, perhaps most importantly, whose loyalty the employer could and undoubtedly would, demand during the preelection period. [Footnotes omitted.] Green did not constitute the major part of Respondent's supervisory cadre in the period between the filing of the petition and the holding of the election in Case 15-RC- 5858. In fact, he was actually in the plant as a temporary shift leader for only a small part of that period. In numbers, he was only one of four supervisors. Thus the reason for having a temporary supervisor's identification with management outweigh his community of interest with the employees beside whom he usually works because he supervised them for a short period of time does not apply here. In the course of describing his familiarity with Board election procedures, Green described himself as a supervi- sor when he cast a challenged ballot in a 1966 Board election at a potato chip factory where he formerly worked. Assuming that he was correct in this legal conclusion, it does not follow that he was like Reed in being a prime candidate for any other supervisory positions which become available with Respondent. The only supervisor in this plant above the level of shift leader is the plant manager. Green testified he gave up being a shift leader at his previous place of employment because he did not like supervision. There is no way the uneducated Sanders Green who testified before me can ever be promoted by Respondent to plant manager. Rather, he has more in common with the employees whose community of interest with other unit employees was not tarnished by a brief stint as a temporary supervisor in those cases which the Board distinguished in GAF and DuPont than he does with Reed of GAF or the relief foremen of DuPont. I find, therefore, that Green was an eligible voter when he went to the poll on April 8. The omission of Green's name from the eligibility list that day was not his fault. Neither was it the fault of the Board agent conducting the election. Under the customary procedure at Board elections, the omission would merely have resulted in Green's ballot being in a challenge envelope, I would have recommended that it be opened and the ballot counted, and the outcome of both the representation and the unfair labor practice cases before me would have turned on whether Green had voted yea or nay. The fact that Green went away without voting cannot be blamed on anyone. Green left so quickly that the Board agent did not have a chance to put the challenged ballot procedure into effect. The question of whether the Union has won the right to represent Respondent's production and maintenance employees does not turn on a question of fault, in any event. By failing to invoke the challenged ballot procedure when Green came to the poll, the Board agent denied an eligible voter a chance to cast a ballot which, as the April 8 count turned out, could have been decisive. The purpose of the representation sections of the Act is to give every eligible employee an opportunity to participate in the selection of his bargaining representative. When an eligible employee who presents himself at the poll is denied that opportunity, the democratic process has failed. When that failure occurs under circumstances which 624 W. R. GRACE & CO. demonstrably could have affected the outcome of the election, the result cannot be permitted to stand. I recommend, therefore, that the election held in Case 15- RC-5858 on April 8, 1976, be set aside and a second election be conducted. III. THE UNFAIR LABOR PRACTICES Because the election of April 8 was invalid, Respondent was under no duty to bargain with the Union when it discontinued its Monokote operation on May 20, 1976. 1 find, therefore, that it did not violate Section 8(aX5) and (1) of the Act by reaching that decision unilaterally, thus, unilaterally, laying off some employees and rearranging the work schedules of others. Upon the foregoing findings of fact, and upon the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW 1. W. R. Grace & Co., Construction Products Division, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. General Truck Drivers, Chauffeurs, Warehousemen and Helpers, Local No. 270, a/w International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Inc., is a labor organization within the meaning of Section 2(5) of the Act. 3. The allegations of the complaint that Respondent violated Section 8(aX5) and (1) of the Act have not been sustained. 4. All production and maintenance employees em- ployed at Respondent's 4729 River Road, Jefferson Parish, Louisiana, facility, excluding all truckdrivers, confidential employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. [Recommended Order for dismissal omitted from publi- cation.] 625