A. O. Smith Corp. of Texas

National Labor Relations Board - Board Decisions

Jan 4, 1956

115 N.L.R.B. 5 (N.L.R.B. 1956)

A. 0. SMITH CORPORATION OF TEXAS 5
Smelter Workers for a unit of production employees, which the Board,
in these circumstances, finds to be appropriate for purposes of collec-
tive bargaining. On the other hand, if a majority in the maintenance
voting group do not select the IAM, the ballots of the employees in the
maintenance group will be pooled with those of the employees in the
production group.' If Mine, Mill & Smelter Workers achieves a
majority of the votes in the pooled group,' the Regional Director is
instructed to issue a certification of representatives to that labor
organization for a unit of production and maintenance employees,
which the Board, in such circumstances, finds, to be an appropriate
unit for the purposes of collective bargaining.
[Text of Direction of Elections omitted from publication.]
8 If the ballots are pooled , they are to be tallied in the following manner: Votes for
the IAM shall be counted as valid votes , but neither for nor against Mine, Mill & Smelter
Workers ; all other votes are to be accorded their face value, whether for Mine, Mill &
Smelter Workers or for no union.
Y At the hearing Mine, Mill & Smelter Workers requested that its name not appear on
the ballot of any election directed in a unit sought by the IAM. In view of the Board's
decision to pool the ballots under the circumstances described above, we shall accord
Mine, Mill & Smelter Workers ' a place on the ballot in the election directed in the main-
tenance voting group.
A. O. Smith Corporation of Texas and District 37, International
Association of Machinists, AFL-CIO, Petitioner and United
Steelworkers of America , AFL-CIO. Case. No. 39-RC-894.
January 4,1956
SUPPLEMENTAL DECISION AND CERTIFICATION
OF RESULTS OF ELECTION
Pursuant to the Board's Decision and Direction of Election dated
September 12, 1955,1 an election was conducted herein on October 11,
1955, under the direction and supervision of the Regional Director
for the Sixteenth Region. The election was conducted by secret ballot
among a voting group of machine shop employees. Upon the con-
clusion of the balloting, a tally of ballots was issued and served upon
the parties in accordance with the Board's Rules and Regulations.
The tally of ballots shows that there were approximately 14 eligible
voters in the voting group; 7 ballots were cast for the Petitioner; 7
ballots were cast for the Intervenor; and the ballots of 9 persons were
challenged.
Thereafter the Regional Director investigated the issues raised by
the challenged ballots, and duly issued a report on challenged ballots.
In his report the Regional Director found that the Board agent had
1114 NLRB 56.
115 NLRB No. 3.
Fj DECISIONS OF NATIONAL LABOR RELATIONS BOARD
challenged the nine ballots, recommended that the challenges to all
nine ballots be sustained, and further recommended that the board
certify the results of the election as shown by the above-described
tally of ballots. The Petitioner has excepted to so much of the
Regional Director's report as recommends that the challenges to the
ballots of two persons, Lester Miller and Jack Cannon, be sustained.
With respect to Miller, the Regional Director's report sets forth
the following facts : In September 1952 Miller received a gunshot
wound which injured his spine. Ten months later, Miller returned
to work and was assigned to the cutter-grinder, which he could operate
while sitting. He was also given special rest periods. On February
24, 1955, Miller left the Respondent's employ for further treatment.
On August 1, 1955, when he applied for work the company doctor
examined Miller and concluded that Miller was not reemployable
for physical reasons. The Respondent now has no work which Miller
can perform while seated, and he is unable to stand for any length
of time.
On the basis of such facts the Regional Director concluded that
Miller was not an employee of the Company and recommended that
the challenge to his ballot be sustained. In its exceptions, the Peti-
tioner states that "no proof has been shown that the Company accepted
the doctor's conclusion and that Miller had been discharged."
We find the Petitioner's argument with respect to Miller lacks merit.
In view of the length of Miller's absence from employment prior to
August 1, 1955; the reason for such absence; the conclusion of the
company doctor on August 1, 1955, that Miller was not "reemploy-
able"; and the finding implicit in the .Regional Director's report, as
well as in the Petitioner's exceptions, that Miller was not employed
after August 1, 1955, we find that Miller's failure to work during the
eligibility period was not caused by "illness" within the meaning of
that term as used in the Board's Direction of Election. Accordingly,
we conclude that the failure of the Regional Director to find that
Miller was discharged is of no consequence, and we hereby sustain the-
challenge to Miller's ballot.
With respect to Cannon, the Regional Director's report sets forth
the following : Cannon, a welder, was assigned to the machine shop
during an expansion program that began in 1954 and ended in April
1955. He was supervised by the machine shop foreman until July
1955. Since July he has been supervised by the mechanical main-'
tenance foreman who supervises all welders. On October 3, 1955, he
was transferred to the second shift, and was advised by his foreman
that henceforth he would be assigned work on the same basis as other
welders and would no longer work exclusively on jobs for the machine
shop. There are now 2 welders on each of the 3 shifts. The Company
MARSHALL CAR WHEEL AND FOUNDRY CO. 7
asserts that the position of machine shop welder has been abolished
and it does not plan to revive the job in the foreseeable future.
On the basis of such facts, the Regional Director found that the
job of machine shop welder had been abolished, and recommended
that the challenge to Cannon's ballot be sustained. In its exceptions,
the Petitioner in effect asserts that Cannon was an eligible voter be-
cause he was within the voting group during the crucial payroll period
established in the Direction of Election herein. We find, however,
that even though Cannon may have been within the voting group dur-
ing the eligibility period, his subsequent transfer before the election
to a job outside the voting group terminated his eligibility to vote.'
We shall therefore sustain the challenge to his ballot.
As the Petitioner failed to receive a majority of the votes cast in
the election, we shall only certify the election 's results.
[The Board certified that a majority of the valid ballots was not cast
for District 37, International Association of Machinists, AFL-CIO,
and that the said Union is not the exclusive representative of the em-
ployees at the Employer's Houston, Texas, plant in the voting group
designated in paragraph numbered 4 of the Decision and Direction
of Election herein.]
2 See National Container Corporation of Wisconsin, 99 NLRB 1492 , 1495-1490 Man-
ganese Ore Company, 54 NLRB 11132 , 1213-14.
Marshall Car Wheel and Foundry Co. of Marshall , Texas, Inc.
and United Steelworkers of America, AFL-CIO. Case No.
16-CA-443. January 5,1956
SUPPLEMENTAL DECISION, DETERMINATION,
AND ORDER
On January 7, 1955, the United States Court of Appeals for the
Fifth Circuit denied enforcement to an order issued herein by the
Board on May 28, 1953,1 based on findings that the Respondent had
discriminatorily discharged certain of its striking employees and de-
nied others full reinstatement privileges because of their prior con-
certed activity.
Holding that the Board erred in finding that the Respondent con-
doned an illegal strike which was timed without prior warning and
might have resulted in substantial physical damage to the plant and
pecuniary loss to the employer, the court concluded that the' Board had
no authority to compel the Respondent to reinstate employees who
1105 NLRB 57; 107 NLRB 314 (Supplemental Decision and Order).
115 NLRB No. 4.