Dreamland Bedding & Upholstery Co.

In the Matter of DREAMLAND BEDDING & UPHOLSTERY CO., JOHN )HEY COMPANY, PACIFIC FELT COMPANY, ROME Co., INC., RuTHERFORD & HOOD, SAN FRANCISCO BEDDING COMPANY, SUNSET FEATHER COMPANY, WILSON & JANSEN and UNITED FURNITURE WORKERS OF AMERICA, CIO, #262, FURNITURE WORKERS UNION #1541, A. F. of L. Cases Nos. RE-7 to RE-13, inclusive SUPPLEMENTAL DECISION AND SUPPLEMENTAL DIRECTION June 3,1940 On April 19, 1940, the National Labor Relations Board, herein called the Board, issued a Decision and Direction of Elections in the above-entitled cases? The Direction of Elections directed that sepa- rate elections by secret ballot be held among certain employees of seven employers therein named, including an election among all employees of Pacific Felt Company, San Francisco, California, a cor- poration, herein called the Company, engaged in the fabricating, re- pairing, renovating, assembling, or handling of furniture and bedding or parts thereof, including foremen engaged generally as working fore- men, helpers, apprentices, maintenance men, and all other workers, but excluding executives, salesman, truck drivers, general office employees, shipping clerks, non-working foremen engaged generally in super- visory non-working duties, and foremen who take no part in the fabri- cating, repairing, renovating, assembling, or handling of furniture, bedding, or parts thereof, who were employed by the Company dur- ing the pay-roll period last preceding the date of the hearing, includ- ing employees who did not work during such pay-roll period because they were ill or on vacation, or who were then or have since been tem- porarily laid off, but excluding persons who have since quit or have been discharged for cause, to determine whether such employees de- sired to be represented by United Furniture Workers of America, Local #262, C. I. 0., herein called the United, or by Furniture 1 22 N. L. R. B. 1120; 23 N. L. R. B. 948. 24 N. L. R. B., No. 21. 306 DREAMLAND BEDDING.& UPHOLSTERY CO. 307 Workers Union, Local #1541, United Brotherhood of Carpenters and Joiners of America, A. F. of L., herein called the Furniture Workers, for the purposes of collective bargaining, or by neither. Pursuant to the Direction of Elections, an election by secret ballot was conducted among the aforesaid employees 'of the Company on April 26, 1940, under the direction and supervision of the Regional Director for the Twentieth Region (San Francisco, California). On May 3, 1940, the Regional Director, acting pursuant to Article III, Section.9, of National Labor Relations Board Rules and Regulations- Series 2, as amended, issued and duly served upon the parties an Elec- tion Report upon the secret ballot. As to the ballot and its results, the Regional Director reported as follows: Total number eligible to vote------------------------------- 19 Number of votes for Furniture Workers Union, Local 1541, A. F. L---------------------------------------------------- 8 Number of votes for United Furniture Workers of America, Local 262, C. I. 0---------------------------------------- 9 Number of votes for neither--------------------------------- 0 Total number of votes counted------------------------------ 17 Number of blank ballots------------------------------------ 0 Number of void ballots------------------------------------- 0 Number of challenged ballots-------------------------------- 1 The Regional Director further reported that the United challenged the ballot of Harold Ocken on the ground that Ocken was not an employee, within the meaning of the Direction of Elections. Ocken was listed on the eligibility list submitted by the Company but was employed by another employer on the date of the election. The Furniture Workers opposed a sustention by the Board of the chal- lenge on the ground that Ocken was an employee within the meaning of said Direction. The Regional Director in her Election Report ruled that Ocken was an employee and recommended that his vote be counted. Thereafter, on May 6, 1940, the United duly filed objections to the Election Report, alleging that "the contemplated counting of the challenged ballot ... is without support, and is contrary to the evi- dence ... and if counted would be the equivalent to the vote of a non- employee of the Company," and requesting "that an investigation be conducted, and that a hearing be held in respect to the objections and that the vote of Ocken be not counted ..." On May 10, 1940, the Regional Director issued a Report on Objec- tions, copies of which were duly served on the parties, in which she reported "that the objections were limited solely to the question 308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD presented in the challenge of 0cken's ballot"; that an investigation for the purpose of ruling on this challenge had been conducted and the results thereof had been embodied in the Election Report; and that the Objections "do not raise substantial and material issues with ,re- spect to the conduct of the ballot." The results of the investigation as embodied in the Election Report show that Ocken was second on a list of eight :persons regularly called upon when the Company needed additional help; that he had been irregularly employed by the Company as a common laborer since May 30, 1939; that his work is considered satisfactory by the Company and it plans to continue calling him when he is needed; that Ocken's last employment with the Company ceased on March 29, 1940, and on April 9, 1940, Ocken commenced work for another company and was so employed on the date of the election; that this other employment will be of short duration and Ocken still considers himself an employee of the Company. We do not interpret the Objections filed by the United as challenging these facts, but as tendering the issue whether under these circumstances Ocken was entitled to participate in the election. In analogous cases the Board has held that laid-off employees who pending their recall to work have found employment elsewhere, re- tain their status as laid-off employees and may be eligible to vote, despite the intervening period of work with another employer.2 The Direction of Elections provides that employees "who ,were .employed by the Company during the pay-roll period last preceding the date of the hearing, including employees ... who were ,then or have since been temporarily laid 'off" are eligible to vote. We are of the opinion, and find, that Harold Ocken was :a "laid off" employee at the time of the election, within the meaning •of the Direction, and therefore was eligible to vote. Accordingly, we hereby sustain the rulings, findings, and recommendations of the Regional Director in her Election Report and in her Report on Objections and deny the request of the United for a further 'hearing. We shall direct that the challenged ballot be counted. DIRECTION By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) .of the National Labor Relations Act, 49 Stat. 449, and pursuant to Article III, Sections 8 and.9,of Na- 2 In the Matter of Paragon Rubber Co.-American Character Doll Company and Toy Novelty Workers Organizing Committee of the •C. I. 0., 6 N. L. R. B. 23. DREAMLAND BEDDING & UPHOLSTERY CO. 309 tional Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that, as part of the investigation directed by the Board to ascertain representatives for the purposes of collective bargaining with Pacific. Felt Company, San Francisco, California, the Regional Director for the Twentieth Region (San Francisco, California) shall, pursuant to the Rules and Regulations of the Board set forth above and subject to Article III, Section 9, of said Rules, within ten (10) days from the date of this Direction open and count the ballot of Harold Ocken, and shall thereafter prepare and cause to be served upon the parties in this case, her Supplemental Election Report em- bodying her findings thereon and her recommendations as to the results of the secret ballot. 28:o35--42-vol. 24 -- 21