Baird-Ward Printing Co., Inc.

National Labor Relations Board - Board Decisions

May 7, 1954

108 N.L.R.B. 815 (N.L.R.B. 1954)

BAIRD- WARD PRINTING CO., INC. 815
On June 12 the Petitioner filed timely objections to conduct
allegedly affecting the results of the election. On July 27 after
investigation of the objections and the challenges made at the
election, the Regional Director issued his report and recom-
mendations on objections and challenges. In this report, to
which no exceptions have been filed, the Regional Director
referred to this Board for ruling the objections based on
conduct which was alleged as unfair labor practices in the
complaint pending against the Employer, and recommended that
the other objections be overruled and that 10 of the challenges
be sustained. As the remaining challenges were not sufficient
to affect the results of the election, the Regional Director made
no recommendations concerning them.
On this day, the Board has issued its Decision and Order in
the complaint case, Barby's Frosted Foods, Inc., 108 NLRB
797, in which the Employer was found to have committed
certain 8 (a) (1) and (3) violations based, in part, on conduct
which was also the subject matter of the objections referred
to the Board. However, as more than a year will have elapsed
from the time of the election to the end of the period required
for posting of the notices by the Employer respecting the unfair
labor practices found,' we find that in the circumstances of
this case, no useful purpose will be served in making findings
with respect to the Petitioner's objections. Accordingly, we
shall dismiss the petition without prejudice to the timely
filing of a new petition.
ORDER
IT IS HEREBY ORDERED that the petition herein be, and
it hereby is, dismissed without prejudice.
Member Rodgers took no part in the consideration of the
above Supplemental Decision and Order.
2Cf. Mike Persia Chevrolet Co., Inc., 107 NLRB 377.
BAIRD-WARD PRINTING CO., INC. and NASHVILLE PRINT-
ING PRESSMEN AND ASSISTANTS' UNION #37, Petitioner.
Case No. 10-RC-2233. May 7, 1954
DECISION AND CERTIFICATION OF RESULTS OF
ELECTION
On March 10, 1953, pursuant to a stipulation for certification
upon consent election, an election by secret ballot was held
under the direction and supervision of the Regional Director
for the Tenth Region among employees in the stipulated unit.
Following the election, a tally of ballots was furnished the
108 NLRB No. 114.
816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
parites. The tally shows that of approximately 76 eligible voters,
75 cast ballots, of which 37 were for the Petitioner, 37 were
against the Petitioner, and 1 was challenged. On March 16, 1953,
the Petitioner filed timely objections to conduct affecting the
results of the election.
Thereafter, the Regional Director investigated the issues
raised by the challenged ballot and objections, and on March
27, 1953, and April 29, 1953, respectively, issued and duly
served upon the parties his report on the challenged ballot
and report on objections. In these reports, the Regional
Director recommended that the challenge to the ballot be over-
ruled, and further that, unless as a result of counting such
ballot it became unnecessary, the Board set the election aside
and direct a new election. The Employer filed timely exceptions
to the Regional Director's reports.
On May 20, 1953, the Board ordered that a hearing be held
on the issues raised by the Employer's exceptions and that the
hearing officer prepare and cause to be served upon the parties
a report containing resolutions of credibility of witnesses,
findings of fact, and recommendations as to the disposition
of said issues.
On June 15 and 16, pursuant to notice to the parties, a hear-
ing was held before Benjamin E. Cook, hearing officer, who
on September 21, 1953, issued his report, recommending that
the challenged ballot be opened and counted and that, if neces-
sary, the election be set aside and a new one directed because
of the Employer's interferexce. The Employer filed timelyex-
ceptions to the hearing officer's report and a supporting brief.
The Petitioner also filed a brief.
The Board has reviewed the rulings of the hearing officer and
finds that no prejudicial error was committed. The rulings
are hereby affirmed. The Board, having considered the hearing
officer's report, the exceptions and briefs, and the entire
record in this case, makes the following findings:
Challenged ballot
The record shows, and the hearing officer found, that
shortly before the Employer and the Petitioner agreed to a
consent election among the pressroom employees, Goosetree
was transferred from the shipping department to the press-
room, and his classification was changed from that of a
"permanent" to an "extra" or "temporary" employee. i
At the preelection conference, the parties agreed that only
"permanent" employees should be eligible to vote, and, ac-
cordingly, the names of six employees classified by the
Employer as "temporary" or "extras" were struck from the
eligibility list. The parties further agreed that the resulting
iThe record indicates that the parties used the terms "temporary" and "extra" inter-
changeably in contradistinction to permanent employees.
BAIRD-WARD PRINTING CO., INC. 817
eligibility list was to be considered tentative and therefore
subject to correction up to a half-hour before the opening of
the polls . Following the preelection conference, the Employer
rechecked the eligibility list with the pressroom foreman, and,
having discovered that Goosetree was classified as a "tem-
porary " employee , sought, shortly before the election , to have
Goosetree ' s name struck from the eligibility list . The election
officer refused to permit this ; and Goosetree voted subject to
the Employer ' s challenge.
The hearing officer recommended that the challenge to
Goosetree ' s ballot be overruled on the ground that, regardless
of his temporary classification under the Employer ' s system,
Goosetree had, under applicable Board standards , a sufficient
interest in the outcome of the election to be entitled to vote.
Thus, the hearing officer would have us substitute the Board's
definition of "temporary " employee for that of the Employer,
even though the parties had agreed to adopt the latter definition.
That the parties agreed to exclude temporary employees as
defined or classified by the Employer is reasonably clear
from the record . There is no doubt that at the preelection con-
ference the parties agreed that all employees included within the
classification of "extra" or " temporary " should not be eligible
to vote . It is also undisputed that the Employer had a specific
and distinct category of employees designated as "extra" or
"temporary ." The record shows that employees were hired
by the Employer either on a temporary or a permanent basis.
A temporary employee acquired permanent status only in the
event of a permanent opening and after a fixed personnel
procedure . Also, under the Employer's system, when an em-
ployee transferred from one department to another , the em-
ployee was first "terminated " and then "rehired" in the new
department . This procedure was followed both as to temporary
employees and permanent employees , and explains why Goose-
tree , after being transferred to the pressroom was reclassified
from "permanent" to "extra" status . It is further evident that
in setting up the eligibility list the parties adhered to the
Employer ' s classification of "permanent " and "temporary"
employees . At the preelection conference , the Employer in
response to the request of the Board ' s representative furnished
a payroll list of pressroom employees to be used as an eligi-
bility list . The "temporary " employees were grouped sepa-
rately on the list, and after each name was inserted the word
"extra." The other employees , including Goosetree, were
grouped on the list according to the department in which they
worked. Being based upon the Employer's records , it is to be
presumed , in the absence of any evidence to the contrary,
that the employees were listed under the Employer ' s system
of classification. As previously noted , the parties struck from
the list all six employees marked " extra," and agreed, sub-
ject to later correction , that the other employees were ap-
parently eligible to vote. So far as the record discloses, the
339676 0 - 55 - 53
818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
parties did so without any reference to or discussion of
whether the employees, included or excluded from the list,
were eligible to vote under the Board's standards. Rather
the record plainly indicates that the parties' discussion of
eligibility was within the framework of the Employer's system
of classification . In this connection , it is significant to note that
the Petitioner does not contend that anything but the Employer's
classifications were used.
In view of the foregoing, we believe, contrary to our dissenting
colleague , 2 that the parties intended to and did use the
Employer's system of classification in determining eligibility.
We also believe that the agreement of the parties making tem-
porary employees ineligible to vote should be honored in toto.
It would be manifestly unfair to the parties and to the employees
themselves to permit Goosetree to vote because he might have
been eligible under the Board's standards , after six employees
who might likewise have been eligible under those standards
were struck from the eligibility list. Therefore, we find, in
accord with the parties' agreement, that Goosetree was a
temporary employee, ineligible to vote in the election. Ac-
cordingly, the callenge to his ballot is sustained.
Objections
The hearing officer found that the Employer interfered
with the election conducted on March 10, 1953, by granting
a retroactive wage increase on February 27, 1953, and addi-
tional vacation benefits on March 6, 1953. The record shows
that for over 10 years ithas been the Employer's practice to ad-
just wages for all of its employees during January and July of
each year. On January 23, 1953, the Employer in a letter to
all employees announced that (1) its customary January wage
adjustment could not be made that year until February or
later (i. e., until after the new prevailing rates in the area
2 Unlike our dissenting colleague, we attach no significance to the listing of Goosetree's
name on the payroll list free of special designation, or his uninterrupted employment of
7 months before the election, or the Employer's failure to come forth at the preelection con-
ference with any assertion that Goosetree should be ineligible. The record shows that the
Employer has approximately 300 employees of whom 80 work in the pressroom, that the
Employer's representative at the preelection conference admittedly did not know the employ-
ment status of all the pressroom employees and that because of the likelihood of error, the
eligibility list was to be considered tentativeandthe parties were given the right to revise the
list up to a half-hour before the election. Thus, there is an adequate explanation for the
Employer's failure to designate Goosetree on the payroll list as an "extra" or to challenge
his eligibility at the preelection conference. As preciously noted, the Employer challenged
Goosetree's eligibility at the first opportunity thereafter. Moreover, the record indicates
that under the Employer's system of classification length of service did not determine an
employee's status. A temporary employee could acquire permanent status only in the event
of a permanent opening in the department for which he was hired or, as in Goosetree's case,
to which he transferred. In this connection, it is to be noted that 3 of the "extra" employees
struck from the payroll list as ineligible were employed in the pressroom before Goosetree
transferred there in January 1953.
BAIRD-WARD PRINTING CO., INC. 819
became known ), at which time such wage adjustment would
be made retroactive from January 22, 1953; and (2) vacations
would be increased from 1 to 2 weeks, in line with the recently
ascertained pattern in the area, as soon as the WSB approved
the Employer's pending application. Subsequently, on February
11, following the Petitioner's claim for recognition of the
pressroom employees, the Employer entered into a stipulation
for certification upon consent election for such employees.
In the meantime, the Employer, having determined the prevail-
ing wage pattern and having received WSB approval of its
vacation plan, commenced the administrative work necessary
to effectuate the previously announced wage and vacation
adjustments. Thereafter, pursuant to its earlier announcement
to all employees, the Employer, on February 27, put into effect
the retroactive wage increase and on March 6 announced the
liberalized vacation plan, effective March 1. These benefits
were granted to all 300 employees including the approximately
80 pressroom employees.
Under all the circumstances, and particularly in view of the
past practice of the Employer and the fact that the benefits
were granted to all the employees andwere not limited to those
employees in the unit, we find, contrary to the hearing officer,
that the granting on February 27 and March 6, 1953, of the
previously announced benefits, did not constitute interference
with the election. Accordingly, the Petitioner's objections are
overruled.'
As the Petitioner has failed to receive a majority of the valid
ballots cast, we shall certify the results of the election.
[The Board certified that a majority of the valid ballots
was not cast for the Petitioner, Nashville Printing Pressmen
and Assistants Union #37, and that the Petitioner is not the
exclusive representative of the employees at the Employer's
Nashville, Tennessee, plant, in the unit set forth]
Chairman Farmer, dissenting:
I disagree with the majority conclusion that the Employer's
challenge to the ballot of Goosetree, whose vote may determine
the outcome of the election, should be sustained. Instead, as
the hearing officer recommended, I would open and count
Goosetree's ballot, and defer consiceration of the Petitioner's
objections to the election pending a revised tally of ballots.
The facts upon which Goosetree's eligibility turn are as
follows: On February 11, 1953, the parties executed the usual
stipulation for certification upon consent election, a formal
document which defined the unit and set out the Board's usual
eligibility formula. This agreement did not define, and, indeed,
did not even mention, temporary employees. At the same
3 As the Petitioner failed to file exceptions to the Regional Director's recommendations
overuling its other objections, we have adopted them.
8 ZO DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time, the. Employer furnished a payroll list which set out
76 names, including that of Goosetree, under 4 separate de-
partments , and, in separate arrangement , also listed the
names of 6 other persons marked "extra ." Intending to use
this list, albeit tentatively, as the eventual eligibility list, the
parties agreed to and did strike the names of the 6 employees
marked "extra." Goosetree's name was left on the list of
eligible voters. Shortly before the election the Employer asked
that Goosetree also be struck from this list on the ground that
he was a temporary employee, and therefore ineligible to vote.
The election officer refused to permit this, but did permit
the Employer to challenge Goosetree's ballot.
The majority opinion does not take issue with the hearing
officer's finding that, under established Board policy, Goose-
tree had a sufficient interest in the outcome of the election to
be entitled to vote. That is to say, whatever may have been the
Employer's concept of eligibility, Goosetree's employment sta-
tus was such as to clearly qualify him as a voter in the election4
unless it cound be shown that the parties had agreed that he
should be ineligible.
The Employer contests Goosetree's righttovote onthe ground
that the Petitioner had agreed, as part of the stipulation for
a consent election , that Goosetree should be ineligible . This is
on the hypothesis that the parties orally agreed to exclude
temporary employees as defined by the Employer, and that
Goosetree was a temporary employee at the time of the election.
This contention, it is to be noted necessarily rests on the
assumption that the parties agreed not only to exclude tem-
porary employees, but also that the parties agreed to adopt the
Employer's own peculiar definition of "temporary," even
though it is in conflict with the definition normally followed
by this Board. I see no basis in the record for such a finding.
There is no doubt that the question of eligibility was dis-
cussed at the February 11 conference and that it was agreed
that some ill-defined group of employees in the general
category of extra or temporary should not be eligible to vote. To
find that the agreement extended to Goosetree, however, re-
quires an unwarranted straining of the record. Thus Baird,
the only witness who made any reference to the alleged agree-
ment, did so only indirectly while explaining the deletion of the
6 names from the eligibility list offered by the Company. At
1 point he said that the 6 names were struck "because they
were known extras, or temporary employees . . . " and, "it
4Goosetree's employment record shows:
August 15, 1952: Hired as a temporary employee in the maintenance department.
September 2, 1952: "Terminated" in the maintenance department and "rehired" as a
temporary employee in the the pressroom.
November 26, 1952: "Terminated" in the pressroom and "rehired" as a permanent em-
ployee in the shipping department.
January 26, 1953: "Terminated" in the shipping department and "rehired" as a temporary
employee in the pressroom.
REYNOLDS METALS COMPANY 821
had previously been agreed that no temporary employees
could vote . . . ." Later he phrased it as , " it was agreed that
none other than permanent people would be eligible." More
significant , and strongly indicative of an intent at that time to
include Goosetree , is the fact that , on the eligibility list,
received in evidence , a date was set opposite the name of each
of the 6 struck " extra" employees . This data showed that 1
had been employed only 6 days earlier, and that none of the
others had been employed longer than 23 days. Add to these
facts the listing of Goosetree ' s name on that same list free
of special designation , his uninterrupted employment of 7
months before February, the Employer's failure to come forth
at that conference with any assertion that Goosetree should
be ineligible , and' the fact that , under Board precedent, the
Petitioner had every right to believe that Goosetree would be
eligible , and it is difficult to perceive how this record could
support a finding that the parties had agreed that he was not
eligible to vote.
I would normally respect and follow a 'stipulation of the
parties adopting the Employer ' s definition of "temporary"
employees and exclude them from voting on that basis, if it
were established that such were their intentions . In this case,
however , as I read the record , the most that was stipulated was
that temporary employees as a class should be ineligible. There
is absolutely no showing that the parties agreed to accept the
Employer's somewhat unique definition of "temporary " or even
that the Union was aware of this definition . Under these cir-
cumstances , I think it more reasonable to assume that the
parties intended to adopt the Board ' s established definition
of the term "temporary ." This definition , everyone must agree,
makes Goosetree eligible to vote.
Member Beeson took no part in the consideration of the
above Decision and Certification of Results of Election.
REYNOLDS METALS COMPANY and I NTERNATIONAL
BROTHERHOOD OF ELECTRICAL WORKERS, AFL, Peti-
tioner
REYNOLDS METALS COMPANY and UNITED STEEL-
WORKERS OF AMERICA, CIO, Petitioner Cases Nos . 32-RC-
712 and 32-RC-714. May 10, 1954
DECISION, ORDER, AND DIRECTION OF ELECTION
Upon separate petitions filed under Section 9 ( c) of the
National Labor Relations Act, a consolidated hearing was held
in the above - entitled cases before Joseph W. Bailey , hearing
officer . The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
108 NLRB No. 120.