Channel Master Corp.

National Labor Relations Board - Board Decisions

Dec 23, 1955

114 N.L.R.B. 1486 (N.L.R.B. 1955)

1486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Although the unfair labor practices found are based upon acts directed against a
single employee, nevertheless, the conduct is of such a character that it affects funda-
mental rights and privileges guaranteed to all employees of the Company and where,,
as here, the natural and expected consequence of such acts is to delay, impede,-and
obstruct the orderly administration of the Act, it is necessary that a cease and desist
order be entered so as to prevent any repetition of the specific misconduct found
herein and any like or related acts. However, the Trial Examiner believes that the
facts herein do not compel the issuance of a broad cease and desist order and that
the policies of the Act will be effectuated by prohibiting the Company from inter-
fering with the rights of its employees in any like or related manner. It is so
recommended.
It is further recommended that the complaint be dismissed, except as to the unfair
labor practices found herein.
Upon the foregoing findings of fact, and upon the entire record in the case, the
Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. The operations of the Respondent at its Paris, Texas, plant occur in commerce
within the meaning of Section 2 (6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2 (5) of
the Act.
3. By interfering with, restraining, and coercing its employees in the exercise of
the rights guaranteed- in Section 7 of the Act, the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of
the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
5. The Respondent has not engaged in unfair labor practices other than those
specifically found herein.
[Recommendations omitted from publication.]
Channel Master Corporation and Amalgamated Workers Union,
Local 439, International Union of Doll and Toy Workers of U. S.
and Canada, AFL-CIO, ' Petitioner. Case X-6.' 2-RC-72'i .
December 23,1955
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Benjamin B. Naumoff, hear-
ing officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Upon the entire'record in this case, the Board finds:
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The _labor organizations 2 involved claim to represent certain em-
ployees of the Employer.
'The AFL and CIO having merged we are amending the identification of the Union's
affiliation.
2 The United Steelworkers of America, CIO, and the International Union of Electrical,
Radio and Machine Workers of America (IUE-CYO) were permitted to intervene. The
motion of the TUE+-CIO of October 24, 1955, to withdraw its intervention is hereby granted.
114 NLRB No. 233.
CHANNEL MASTER CORPORATION 1487
3. A question affecting commerce exists' concerning the represen-
tation of employees of the Employer within the meaning of Section 9
.(c) (1) and Section 2 (6) and (7) of the Act .4
4. The appropriate unit :
The parties agreed in general that the appropriate unit should con-
sist-of all production and maintenance employees, shipping employees,
plant cl`e'r'ica;ls, `and section leaders, excluding office clericals, profes-
sional employees, technical employees, cost analysts, guards, and all
supervisors.
The parties disagreed as to the inclusion of some 9 truckdrivers and
4 cafeteria workers.
Titer truckdrivers : The Employer and the Steelworkers would ex-
-elude the truckdrivers, while the Petitioner would include them in the
unit. The truckdrivers do long-distance, over-the-road driving of
tractor trailers and large trucks, picking up and delivering the Em-
ployer's goods and merchandise. The ,small pickup trucks used in
and about the plants are handled by drivers in the production and
maintenance unit. The truckdrivers are paid a salary and certain
bonuses based on each trip made and they receive 2 weeks' vacation
instead of the 1 week granted to the production employees. All other
fringe benefits are the same as for the production workers. No other
labor organization seeks to represent these truckdrivers in a separate
unit. In view of the disagreement of the parties as to the unit place-
ment of the truckdrivers and the fact that no labor organization is
seeking to represent them in a separate unit, we find that the over-the-
road truckdrivers are sufficiently related in interest to the other drivers
and to the production and maintenance employees to warrant includ-
ing them in the unit.'
8 The Employer 's motion to dismiss for failure of Petitioner to state in its petition that
the Employer had declined recognition is hereby denied . Advance Pattern Company,
80 NLRB 29. Furthermore , the Employer stipulated that it had received a telegram from
the secretary-treasurer of the Petitioner requesting recognition and that no reply was
made to that telegram.
• The Employer moved to dismiss the petition on the ground that : ( a) The proof of
interest was fraudulent ; ( b) the field examiner had accepted authorization cards from
Petitioner submitted after the filing of the petition but prior to the opening of the hear-
ing; and ( c) the number of authorization cards was inadequate in terms of the total
number of employees in the unit We find no merit in these contentions . The fact that
2 authorization cards out of a showing of 284 in a unit of appioximately 800 might have
been irregular " does not create a reasonable cause for believing that the Petitioner ' s show-
ing efinfezest may have been tainted by fraud . We are administratively satisfied without
further investigation that the instant Petitioner had made an adequate showing of interest.
In these circumstances , the Employer 's motion to the Board to reinvestigate the Peti-
tioner 's showing of interest and to dismiss the petition is hereby denied. " General Shoe
Corporation, 114 NLRB 381 As to the contention that some authorization cards were
not submitted in time, the Boai d has held that nothing in the Act or in the Board 's Rules
and Regulations requires that the investigation of the showing of interest must be com-
pleted prior to the issuance of the notice of healing . The Sheffield Corporation, 108
NLRB 349 The Board has stated that a Petitioner 's showing of interest presented at
the hearing may satisfy the requirements of the Board . Fish Industry Committee, 98
NLRB 096 , footnote 3.
5 Thomas Electronics , Inc., 107 NLRB 614 ; Sidney Blumenthal & Co , Inc , 113 NLRB
791; Sunnyland Packing Company , 113 NLRB 162.
1488 DECISIONS OF NATIONAL LABOR-RELATIONS BOARD
The cafeteria workers: The Petitioner would-exclude and the'Em-
ployer and the Steelworkers include some four cafeteria employees.
These employees work in the cafeteria situated in a corner of the pro-
duction area. They serve prepared soup and coffee to employees dur-
ing rest periods. - They are hourly paid and enjoy the same fringe
benefits as the production employees, and they are considered part of
the production department. Under these circumstances, we find that
the cafeteria workers have interests in common with the production
employees and we shall include them in the unit 6 -
5. The determination of representatives :
The Employer contends that the employees on layoff and leave-of-
absence lists are entitled to vote in the election. The Petitioner,, would
have these employees present themselves at the polls on the election
day and vote subject to challenge. The Steelworkers Union contends
that under the facts of this record, employees on these lists who have
not returned to work are not eligible to vote in the election.
The Employer's plants, situated in a rural community, began oper-
ations some 8 years ago with less than a dozen employees and now
have almost 800 workers. During this period, the Employer states
that it has continuously changed its products and expanded its facili-
ties requiring different skills and greatly increased personnel. When
employees were laid off, their names were placed on a special layoff list,
which was reviewed once a year. For example, employees laid off
October 1 were carried on the layoff list to November 30 of the fol-
lowing year, at which time post cards were sent to each employee re-
questing a response as to whether he was interested in returning to
work. During this period no effort was made to contact these em-
ployees as new jobs arose, but it was the practice of the Employer
to advertise for help in all classifications in the newspapers and over
the radio. There was no practice to keep the list current or to in-
dicate whether employees had found employment elsewhere; nor were
their names removed from the list if no reply was received to the in-
quiry. The current layoff list contains 146 names. The evidence is
undisputed that of these, cards were sent to 103 employees and that
of these only 3 employees were rehired. It is also undisputed that the
Employer did not communicate with such employees until after Labor
Day, 1955, that is, until after the filing of the petition and before'the
commencement of the hearing. -
The leave-of-absence list: This list consists of three classes of leave,
military, medical, and miscellaneous. No issue arose with respect to
military leave. As to other classes of leave, the testimony indicates
that this leave is granted practically automatically on request. With
few exceptions, medical leave records fail to indicate the nature of
6 Nebel Knitting Company, 106 NLRB 114, 118
CHANNEL MASTER CORPORATION- ., - . 1489
the illness or the expiration date. Several employees on medical leave
have: been - absent from 5 to 18 months. Records do not indicate
whether the employees are still on medical leave or have obtained em-
ployment elsewhere.
Miscellaneous leave -also, appears to be granted automatically on
request, usually for the purpose of obtaining jobs at the summer re-
sorts or at neighboring farms. The procedure in reviewing this list
is the same as the layoff list discussed above. The list is reviewed
once a year,. usually in November. - However, the testimony indicates
that no effort was made to contact or communicate with the employees
on leave-of-absence list in November 1954, but notations were made
on the records that contact was to be made in November 1955.
The Employer urges that all employees whose names are included in
the above-described lists have a reasonable opportunity to return to
work and are therefore entitled to vote in the election. Although
Board policy is generally to permit voting by employees, who are ill
or have been temporarily laid off, the evidence here is not persuasive
that the employees on these lists have a reasonable expectancy of re-
turning to work. The fact that these lists are maintained by the Em-
ployer for purpose of participation in the profit-sharing plan, which
requires at least 3 months of employment during a given year to war-
rant participation therein, does not mean that such employees on
this record have a reasonable expectancy of being rehired. The evi-
dence is undisputed that these employees are not called upon to re-
turn to work when jobs arise, and it is conceded that the Employer
advertises widely for help before any contact is made with the ab-
sent employees.
On the basis of the present record, we do not believe that the em-
ployees on the above-mentioned lists are necessarily entitled to vote
merely by reason of the fact that their names are included in such
lists kept by the Employer. Although employees on sick leave or
otherwise absent. on leave for specific periods of time with the con-
sent of the employer, may well have sufficient expectation of reem-
ployment to entitle them to vote,' we are of the opinion that such ex-
pectancy cannot be extended automatically to employees who have
been laid off indefinitely or who have been given leave of absence for
indefinite periods of time in order that they may work elsewhere.
However, since it appears to be the Employer's custom to make a
yearly check of these absent employees to ascertain their desires as
to future employment, such check will identify those employees still
interested in working for the Employer. We find, therefore, that in
the election herein directed those employees on the layoff and leave-of-
7 George Sexton, d/b/a Sexton Welding Company, 96 NLRB 454, 455; Tube D,strsbutors
Co., Inc., 112 NLRB 296
6
1490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
absence lists are entitled to vote who have indicated prior to issuance
.of this decision that they are interested in returning to work in re-
sponse to the Employer's current yearly inquiry as to their in-
tentions.8
We find that the following employees constitute a unit appropriate
for the purposes of collective bargaining within the meaning of-Sec-
tion 9 (b) of the Act :
All production and maintenance employees at the Employer's Ellen-
ville and Pine Bush, New York, plants including shipping employees,
plant clerical employees, section leaders, truckdrivers, and cafeteria
employees, but excluding office clerical employees, professional em-
ployees, technical employees, cost analysts, guards, subforemen, and
all supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
8 The foregoing finding of eligibility is, however, subject to the individual employee's
appearance and voting in the manual election directed herein . See Red Owl Stores, Inc.,
114 NLRB 176; Ilagcn Manufacturing Company, Inc, 100 NLRB 1321, 1322
Otis Elevator Company and International Union , United Auto-
mobile, Aircraft , Agricultural Implement Workers of America,
UAW-CIO & Its Affiliated Local 770, Petitioner . Case No.
2-RC-7536. December °23,1955
DECISION AND CERTIFICATION OF REPRESENTATIVES
On June 29, 1955, pursuant to a stipulation for certification upon
consent election, an election by secret ballot was conducted under the
direction and supervision of the Regional Director for the Second
Region among the employees in the agreed appropriate unit. Follow-
ing the election, the Regional Director served on the parties a tally
of ballots which showed that of approximately 260 eligible voters, 235
cast valid ballots, of which 126 were cast for the Petitioner and 109
were cast against the Petitioner. Six ballots were challenged and
one was void. The challenged ballots were not sufficient in number
to affect the results of the election.
On July 7, 1955, the Employer timely filed objections to conduct
affecting the results of the election alleging, in substance, that the
Petitioner interfered with the free choice of a bargaining representa-
tive (1) by distributing circulars among the employees containing mis-
representations and (2) by intimidating and threatening employees.
In accordance with the Rules and Regulations of the Board, the Re-
gional Director conducted an investigation, and on August 30, 1955,
114 NLRB No. 234.