E. B. & A. C. Whiting Co.

National Labor Relations Board - Board Decisions

Nov 29, 1944

59 N.L.R.B. 666 (N.L.R.B. 1944)

In the Matter of E . B. & A. C. WHITING COMPANY and AMALGAMATED
CLOTHING WORKERS OF AMERICA, C. I. O.
Case No 1-R-1881
SUPPLEMENTAL DECISION
AND
DIRECTION
November 29, 1944
Pursuant to the Decision and Direction of Election issued by the
National Labor Relations Board on July 14, 1944,1 an election by
secret ballot was conducted on August 1, 1944, under the direction
and supervision of the Regional Director of the First Region (Boston,
Massachussetts). Upon the conclusion of the election, a Tally of
Ballots was furnished the' parties in accordance With the Rules and
Regulations of the Board.
The Tally shows that of the approximately 330 eligible voters 3
cast void ballots and 272 cast valid votes, of which 129 were for the
Amalgamated Clothing Workers of America, C. I. 0., herein called
the Union, 116 were against the participating union, and 27 were
challenged ballots.
In view of the fact that the challenged ballots were sufficient in
number to affect the results of the election, the Regional Director
investigated their validity and incorporated his findings and recom-
mendations with respect to said ballots in his Consolidated Report on
Challenges and Objections? The Regional Director's report-stated.
that the Union had challenged the ballots of 7 employees on the
grounds that they were supervisory employees, and that the remaining
20 challenges by the Union were based on the fact that the employees
whose ballots were thus challenged, including 1 alleged supervisor,
are employed at the plant of the Tulatex Corporation. The Regional
1 57 N. L. R. B. 339.
2 On August 4, 1944 , the Union filed Objections to the election , alleging, inter alia,
that the Company , on the day before the election , had announced to its employees the ap-
proval by the National War Labor Board of a wage increase In Matter of Shreve and
Company, 57 N. L. R B 1483 , the Board held that a similar occurrence constituted
interference by that Company in an election . However, we shall not at this time pass
upon this objection , or any others , until the results of the election have been ascertained,
inasmuch as the objections may become moot after the challenged ballots herein ruled
valid have been counted.
59 N. L. R. B., No. 133.
666
E. B. & A. C. WHITING COMPANY 667
Director recommended that 8 of the challenges be sustained but that
the remaining 19 be overruled.
On October 4, 1944, the Board ordered that an appropriate hearing
be held to receive evidence relating to the issues raised by the chal-
lenges. Said hearing was held at Burlington, Vermont, on November
3, 1944. The Company and the Union appeared and participated.
All parties were afforded full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence bearing on the
issues. The Trial Examiner's rulings made at the hearing are free
from prejudicial error and are hereby affirmed. All parties were
afforded an opportunity to file briefs with the Board.
Upon the entire record in the case the Board makes the following
supplementary findings of fact :
I. SUPERVISORY EMPLOYEES
The Union challenged the ballots cast by eight of the Company's
employees on the basis of their alleged supervisory status.3 The Com-
pany contends that these employees possess no supervisory authority
and that, therefore, their ballots are valid. The employees are listed
on the Company's pay roll as "assistant foremen," a classification which
was excluded from the list of eligible voters furnished the Board by
the Company and Textile Workers Union of America, C. I. 0., in
connection with an earlier election .4 Each of the employees testified
that he possessed no authority to hire, promote, discharge, discipline,
or otherwise effect changes in the status of employees, or to effectively
recommend such action. However, each admitted that to some extent
he directs the work of employees in his department; that he substitutes
for the foreman for about 3 weeks during each year when the latter is
ill or on vacation ; that on occasions employees will advise him of their
intent to leave their work and the reason therefor; and that he is
commonly known as an "assistant foreman." The record shows that
several of these individuals also take charge of their departments each
afternoon after the foreman leaves the plant. Further, Octave La
Pointe admitted that on one occasion, during the absence of his foreman
and while he was in charge of the department, he had advised the
superintendent of a violation of the company rules on the part of one
of the employees and had told the superintendent that the latter would
"have trouble" with that employee; that the superintendent had there-
upon instructed La Pointe to give said employee his pay at the end of
the day, thus effecting the latter's discharge. Similarly, Armand
Moisan admitted that, in at least one instance, he had recommended to
'These men were identified as Octave La Pointe , Armand Moisan , William' H . Durant,
Leon Girard , Peter Terry, Edward Medlar, Wilfred Ross, and Leo Halo.
4 Matter of B. B & A. C. Whtiting Company, 54 N. L. R. B. 335.
668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the personnel office that it employ an applicant for a job who had first
applied to him ; and that on another occasion the foreman had requested
him to advise an employee that she had been discharged. In view of
the foregoing, we are of the opinion that the ordinary employees are
bound to infer, reasonably, that the individuals in question are repre-
sentatives of management. Accordingly, we find that the said em-
ployees are supervisory employees, who as such are excluded from the
appropriate bargaining unit, and that their votes cast in the election
herein are invalid.
II. EMPLOYEES AT THE TULATEX CORPORATION PLANT
The remaining 19 of the 27 challenged ballots were cast by employees
of the Company who work in a building owned by the Tulatex Corpora-
tion, which apparently is a subsidiary or affiliate of the Company,
because the Company does not have sufficient space in its own plant
buildings to horse the operation performed by these employees. At
the hearing on November 3, 1944, the Union in effect withdrew its chal-
lenges with respect to these 19 ballots: Accordingly, we find that these
challenged ballots are valid, and shall direct that they be opened and
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,
and pursuant to Article III, Sections 9 and 10, of National Labor Rela-
tions Board Rules and Regulations-Series 3, as amended, it is hereby
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for the purposes of -collective bargaining
with E. B. & A. C. Whiting Company, Burlington, Vermont, the Re-
gional Director for the First Region shall, pursuant to Article III,
Section 10, of said Rules and Regulations, within ten (10) days from
the date of this Direction, open and count the challenged ballots of
Henry J. Allard, Frances Benway, Clara E. Bessette, Joseph Bessette,
Elodie Brissette, Barbara Bleau, Gordon Russell, Edith Champney,'
Eliza Contois, Loretta B. Creller, Camille Dubois, George Tuxbury,
Esther Gauthier, Lucien Gentes, Margaret Godbout, Joyce Lavallette,
Theresa Manseau, Augustine R. Meunier, and Florence_Rainville, and
shall thereafter prepare and cause to be served upon the parties a
Supplemental Election Report embodying his findings therein and his
recommendations as to the results of the secret ballot.