Ballas Egg Products, Inc.

National Labor Relations Board - Board Decisions

Jul 23, 1958

121 N.L.R.B. 107 (N.L.R.B. 1958)

BALLAS EGG PRODUCTS, -INC. 107
the Company might, despite its' execution of the affidavit of agree-
ment, refuse to follow the agreed-upon methods of settlement," alter
the situation. We have held in view of the terms of Section 10 (k)
that neither the announcement in advance of a party to an agreed-
upon method for settlement that it does not intend to comply with
-the-determination resulting therefrom,13 nor its subsequent failure to
abide by the determination 14 gives the Board power to determine
the dispute.
In view of the foregoing circumstances we conclude and find that
the parties had agreed upon a method for the voluntary settlement
of the dispute in question. The, binding effect of this agreement is
not, affected by the certification -of Riggers Local,5' 5 as the bargain-
ing representative of the Association's employees including em-
ployees of the Company or by,the existing contract between the
Association and Riggers Local 575, since inter alia, the certification
expressly excluded-millwrights from the bargaining unit, and the
contract was impliedly made subject to the provisions of the statute
relating to agreed-upon methods for the voluntary settlement of
disptites.15 Accordingly, we find that the Board is without authority
to determine the dispute, and shall quash the notice of hearing.16
[The Board quashed the notice of hearing.]
v The Company filed the charge herein , prior to its execution of the affidavit of agree-
ment. It has in fact complied with terms of the Dunlop agreement with respect to the
Utica Bend project, by its assignment of some of the work it performed thereon to mem-
hers of Millwrights Local 1102.
Meyer Furnace Company, 114 NLRB 924, 930.
24 A. W. Lee; Inc., supra; William F. Traylor , supra.
is Acoustical Contractors Association of New "York, Inc., 120 NLRB 837.
ie In accordance with the Board's Rules and Regulations , the charge herein will not be
dismissed, but will remain on file in the Regional office.
Ballas Egg Products , Inc. and Amalgamated Meat Cutters and
Butcher Workmen of North America , Local No. 346, AFL-CIO,
Petitioner. Case No. 8-RC-3009. July 23, 1958
SUPPLEMENTAL DECISION, DIRECTION, AND ORDER
Pursuant to a'Decision and Direction of Election issued on July 29,
1957,1 an election by secret ballot was conducted on August 16, 1957,
- under the direction- and supervision of the Regional Director for the
Eighth Region, among the production - and maintenance employees
at the Employer's Muskingum County, Ohio, plant. Following the
election a tally of ballots was furnished the parties which showed
that of, 168 ballots cast, 16 were for, and 65 against, the Petitioner,
and 87 ballots were challenged.
3 Unpublished,
121 NLRB No. 2T.
108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As the challenges were sufficient in number to affect the results of
the election, the Regional Director conducted an investigation of the
challenged ballots and on May 15, 1958, issued his report on challenged
ballots in which he recommended that 6 challenges be sustained and
31 overruled, and in the event the results of the election were still
inconclusive after counting the overruled challenges, that a formal
hearing be held to resolve the eligibility to vote of the remaining
50 voters. On May 26, 1958, the Petitioner filed a motion to stay
issuance of the report on challenged ballots and a motion to remand
for further investigation. It urged that in view of new evidence
which it had received concerning the challenges to the 50 ballots, the
Board should stay the Regional Director's report on challenged ballots
and remand the matter to him for further investigation. For the
reasons indicated herein, the motion is denied. On May 27, 1958, the
Regional Director issued a supplemental report on challenged ballots
in which he declined to withdraw his report and adhered to his origi-
nal recommendations. The Petitioner timely filed exceptions to the
Regional Director's report.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Leedom and Members
Rodgers and Jenkins].
In his report, the Regional Director found that Mabel Lee, Magda
Olah, Rachel Young, and Belvva Morgan were not supervisors 'within
the meaning, of the Act and recommended that the Petitioner's chal-
lenges to their ballots be overruled. The Regional Director found
that the primary function of these four employees is to instruct other
employees in the proper methods of work and to keep them working.
When not so engaged they perform the same work as rank and file
employees. The Petitioner excepts to this finding. As to Lee, it
contends that the Regional Director's statements in his report that
Lee is "in charge of the candling room" and a number of employees
work "under her supervision" are inconsistent with his finding. As to
Olah it contends, in effect, that the Regional Director's finding errone-
ously relied on the failure of the Board's General Counsel to except
to the Trial Examiner's finding in a prior complaint proceeding
(Case No. 8-CA-1348), involving the instant parties, that Olah is
not a supervisor. It alleges that Lee, Olah, Young, and Morgan are
supervisors and that the challenges to their ballots should be sus-
tained. In our opinion, the exceptions raise no material issue of fact
but in effect go to the reasonableness of the inferences drawn by the
Regional Director from the evidence. It is noted that the Petitioner
herein also failed to except to the Trial Examiner's finding in Case
No. 8-CA-1348 that Lee was not a supervisor. As we agree with the
Regional Director's findings that these four employees are not super-
visors within the meaning of the Act, we overrule the challenges to
their ballots.
BALLAS EGG PRODUCTS, INC. 109
The Regional Director also recommended to sustain the challenges
to the ballots of employees Georgianna Brown, Mary McNeil, and
Olive Munyan who worked on the night shift until it was discontinued
on June 18, 1957. Their names did not appear on the eligibility list.
The Petitioner excepts to this recommendation. It contends that the
Employer's failure to challenge the ballot of another laid-off night
shift employee (Eleanor Bates) who was reemployed during the course
of the strike,' is an admission that all night shift employees in a layoff
status at the commencement of the strike had a reasonable expectancy
of reemployment. We do not agree. The Employer indicated that
these employees would be recalled only if and when the night shift is
reinstituted, and that such a possibility was unlikely in the near future.
It appears that employee Bates was hired as a strike replacement.
Under such circumstances we shall adopt the Regional Director's
recommendation and sustain the challenges to the ballots of Brown,
McNeil, and Munyan.
No exceptions were taken to the Regional Director's recommenda-
tions that the challenges to the ballots of Cora Emory, Edgar Norris,
and Wenda Bailey be sustained, and that the challenges to 27 other
ballots, included in the attached Appendix A, be overruled. Accord-
ingly, we shall adopt these recommendations.
The Regional Director recommended further that those ballots to
which the challenges were overruled, be opened and counted and, in
the event there is no finality in the election results, that a formal hear-
ing be held to resolve the voting eligibility of the remaining 50 chal-
lenged voters. The Petitioner excepts to this recommendation and
urges the Board to overrule these challenges and count the ballots.
It contends that these employees had a reasonable expectancy of recall
as the Employer's plant is operating on an overtime basis, it recently
hired two new inexperienced employees, and some of its production
work has been diverted to plants it acquired after the election. We
agree with the Regional Director that the question of whether any or
all of these employees had a reasonable expectancy of recall raises
substantial and material issues of fact which can best be resolved by a
hearing. However, as there is a possibility that the ballots to which
challenges have been overruled may be determinative of the election,
we shall adopt the Regional Director's recommendation as to them and
direct that they be opened and counted. In the event that they are
determinative of the election we shall direct the Regional Director to
issue a certification of results of election. On the other hand, if they
are not determinative of the election, we shall order a hearing on the
remaining 50 challenged ballots.
[The Board directed that the Regional Director for the Eighth
Region shall, within ten (10) days from the date of this decision,
2 A strike at the Employer's plant was in effect from July 2 to July 19, 1957.
110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
open and count the ballots of the employees listed in Appendix A, the
challenges to which have been overruled herein, and serve upon the
parties a revised tally of ballots. If the tally discloses that a ma-
jority of the votes have been cast against the Petitioner, and it appears
that the remaining unresolved challenges will not affect the results of
the election, the Regional Director shall issue a certification of results
of election. If, however, it appears that the remaining unresolved
challenges can affect the results of the election, the Regional Director
is directed to proceed to hearing in accordance with the following
order.]
[The Board ordered that in the event the revised tally of ballots
indicates that the results of the election are not determinative, the
instant case is referred to the Regional Director for the Eighth
Region for the purpose of arranging a hearing, before a hearing
officer to resolve the issues raised by the challenges to the ballots of
the 50 employees listed in Appendix B, attached hereto.]
[The Board further ordered that the hearing officer serve upon the
parties a report containing resolutions of the credibility of witnesses,
findings of fact, and recommendations to the Board as to the disposi-
tion of the challenged ballots. Within ten (10) days from the date
of the issuance of such report, any party may file with the Board in
Washington, D. C., an original and six copies of exceptions. Imme-
diately upon the filing of such exceptions, the party filing the same
shall serve a copy thereof upon each of the other parties, and shall
file a copy with the Regional Director. If no exceptions are filed,
the Board will,adopt the hearing officer's recommendations.]
APPENDIX A
1. George Adams
2. Sarah Colborn
3. Bessie Croston
4. Della Churchill
5. Edna Derwacter
6. Grace Hardin
7. Peter Harris
8. Janice Towning Hartman
9. Thelma Hartman
10. Patricia Heller
11. Helen Howard
12. Betty Johnson
13. Mabel Lee
14. Delcie Lewis
15. Hazel Masters
16. Nellie Mayle
17. Cleo McConnell
18. Mae McHenry
19. Joyce McLean
20. -Belva Morgan
21. Jink Nelson
22. Dorothy Newman
23. Magda Olah
24. Ruth Penrod
25. Hazel Ramey
26. Ada Robinett
27. Evelyn Smith
28. Anna M. Stewart
29. Mildred Stiers
30. Grace Walker
31. Rachel Young
INDIANA BROADCASTING CORPORATION 111
APPENDIX B
1. Sylvia Allbright
2. Glenola Barnett
3. Leona Bishop
4. Laurel Bleakney
5. -Mildred Burchett
6. Leona Caliman
7. Audrey Chandler
8. Volorus Chandler
9. Yvonne Chandler
10. Mary Conley
11. Gladys Cullison
12. Georgia Curtis
13. Mert Dalton
14. Nellie belong
15. Margaret Dovenbarger
16. Mary Edwards
17. Letha Farus
18. Christine Gibson
19. Naomi Goodin
20. Connie Green
21. Esther Green
22. Lucy Harris
23. Delma Hill
24. Emily Jenkins
25. Helen Kerlin
26. Alyce Kirby
27. James Landerman
28. Gladys Lynum
29. Marie Mayle
30. Gertrude Mitchell
31. Janice Mock
32. Lulu Mock
33. Elsie Morgan
34. Eva Morgan
35. Vivian Newton
36. Berneda Norris
37. Kathryn Ross
38. Betty Rutter -
39. Katherine Sieliet
40. Leola Singer
41. Verna Stemm
42. Glenna Tate
43. Joyce Thomas
44. Beatrice VanDyne
45. Caroline Viney
46. Betty Wallace
47. Irene Ward
48. Iris Wheeler
49. Maggie Young
50. Peggy Young
Indiana Broadcasting Corporation , WANE-TV Division I and
Radio and Television Broadcast Technicians , Local Union No.
1225, International Brotherhood of Electrical Workers, AFL-
CIO,' and International Alliance of Theatrical Stage Em-
ployees and Moving Picture Machine Operators of the United
States and Canada, AFL-CIO,' Petitioners . Cases Nos. 13-PC-
5972 and 13-RC-5976. July 23, 1958
DECISION AND DIRECTION OF ELECTION
Upon separate petitions duly filed under Section 9 ( c) of the
National Labor Relations Act, a consolidated hearing was held before
i In the petitions , the Employer's name appears as Corinthian Broadcasting Co.,
WANE-TV, and as Indiana Broadcasting Corp. Although no motion to amend was made,
it appears from the record and from Employer's brief that the above name is correct.
On its own motion , the Board corrects the Employer 's name accordingly.
The name of this Petitioner, hereafter called IBEW, appears as amended at the
hearing.
8 Hei eafter called IATSE.
121 NLRB No. 32.