ESB, Inc.

National Labor Relations Board - Board Decisions

Oct 20, 1972

199 N.L.R.B. 898 (N.L.R.B. 1972)

898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Exide Alkaline Battery Division of ESB, Inc. and In-
ternational Union of Electrical, Radio and Machine
Workers, AFL-CIO, Petitioner. Case 11-RC-2707
October 20, 1972
DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
KENNEDY
Pursuant to a Stipulation for Certification Upon
Consent Election approved by the Regional Director
for Region 11 of the National Labor Relations Board,
a second election by secret ballot was conducted on
August 19, 1970, under the direction and supervision
of the Regional Director, among the employees in the
stipulated appropriate unit. Upon the conclusion of
the second election, a tally of ballots was furnished
the parties in accordance with the National Labor
Relations Board Rules and Regulations, Series 8, as
amended.
The tally of ballots showed that of approximately
312 eligible voters, 125 cast ballots for, and 141 cast
ballots against, the Petitioner. Forty-six ballots were
challenged.
Inasmuch as the challenged ballots were suffi-
cient in number to affect the results of the election, the
Regional Director conducted an investigation of the
challenges and, thereafter, on December 1, 1970, is-
sued and served on the parties his Report on Chal-
lenged Ballots. In his report the Regional Director
concluded that the 38 voters challenged by the Em-
ployer for the reason that they had been permanently
laid off prior to the election had been laid off lawfully
and not in violation of the Act, and accordingly rec-
ommended that the challenges to their ballots be sus-
tained. He further concluded that the remaining eight
challenges were not determinative and made no rec-
ommendation with respect to them.
On December 14, 1970, the Petitioner filed timely
exceptions to the Regional Director's report with re-
spect to the challenged ballots. The Petitioner argued
that the Regional Director gave no consideration to
its contention that the layoffs were temporary, and
requested a hearing to allow it to show that the layoffs
were not permanent and the challenged employees
were eligible to vote.
On April 13, 1971, the Board issued and served
on the parties an Order Directing Hearing to resolve
the issues raised with respect to the challenged ballots
and remanded the matter to the Regional Director for
the purpose of conducting a hearing.
On May 25 and 26, 1971, a hearing was held
before Hearing Officer Stephen D. Hise in which all
parties were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to intro-
duce evidence pertinent to the issues. On June 24,
1971, the Hearing Officer issued his Report and Rec-
ommendations on Challenged Ballots, in which he
ruled that the employees were permanently laid off
and had no expectancy of recall during the foreseea-
ble future. Thereafter, the Petitioner filed timely ex-
ceptions to the Hearing Officer's report, a brief, and
a Motion To Reopen the Record and Hold a Further
Hearing for the Purpose of Receiving Newly Discov-
ered Evidence and Evidence Improperly Excluded.
In its brief and motion, the Petitioner contends
that the Employer unlawfully laid off the challenged
employees on the basis of race. The Petitioner submits
that the employees' layoffs violated the Civil Rights
Act of 1866 1 and that a Federal court suit has been
filed so alleging and requesting that the court order
the Employer to reinstate the laid-off employees with
backpay. The Petitioner also states that eight of the
employees were laid off on the basis of race in viola-
tion of Title VII of the Civil Rights Act of 1964,2 and
have filed charges with the Equal Employment Op-
portunity Commission so alleging. In addition, the
Petitioner filed a charge in Case 11-CA-4678 alleging
that the racial discrimination practiced by the Em-
ployer in the layoffs constitutes an unfair labor prac-
tice under United Packinghouse, Food and Allied
Workers International Union, AFL-CIO [Farmers Co-
operative Compress] v. N.L.R.B.3 The Petitioner re-
quests that the Board hold the instant case in
abeyance until the legality of the layoffs is "finally
adjudicated" in one of the foregoing proceedings. It
is the Petitioner's contention that if the layoffs are
finally adjudicated to be illegal, either under the Civil
Rights Act of 1866, or under the Civil Rights Act of
1964, or under the National Labor Relations Act, as
amended, the ballots of the employees should be
counted and the challenges thereto overruled.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has reviewed the rulings of the Hear-
ing Officer made at the hearing and finds that no
prejudicial error was committed. The rulings are here-
by affirmed .4
i 42 U.S C sec 1981
2 42 U S C sec 2000e.
3 416 F.2d 1126, 1134-38 (CAD C ), cert denied 396 U.S. 903 (1969)
° We find no error in the Hearing Officer's ruling which excluded the
Petitioner's proffered evidence tending to prove the existence of unfair labor
practices, because this evidence is irrelevant to the present proceeding. We
note that the instant hearing is not concerned with any allegation of unfair
labor practices See Texas Meat Packers, Inc, 130 NLRB 279 Accordingly,
199 NLRB No. 134
EXIDE ALKALINE BATTERY DIV. OF ESB
Upon the entire record in this case, the Board
finds that:
1. The Employer is engaged in commerce within
the meaning of the Act, and it will effectuate the
policies of the Act to assert jurisdiction herein.
2. The Petitioner is a labor organization claiming
to represent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of employees of the Employer
within the meaning of Section 9(c)(1) and Section 2(6)
and (7) of the Act.
4. The parties stipulated, and we find, that the
following employees constitute a unit appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All production and maintenance employees at
the Employer's Sumter, South Carolina, plant,
excluding all office clerical employees, guards,
supervisors and others who may be excluded by
the Act.
5. The Board has considered the Hearing
Officer's report, the exceptions, and the brief, and, on
the basis of the record as it now exists, we deny the
Petitioner's request that we hold the instant case in
abeyance.5 However, we shall entertain a motion for
reconsideration of this Decision upon a showing by
the Petitioner that one of its proceedings has been
finally adjudicated in its favor.6 In addition, we direct
we deny the Petitioner 's motion insofar as it requests a further hearing to
adduce the proffered evidence
5 We deny the Petitioner 's motion insofar as it requests the Board to reopen
the record for the purpose of receiving newly discovered evidence , since it
involves alleged unlawful racial discrimination
899
the Regional Director for Region 11 to hold the chal-
lenged ballots in his possession until such time. Ac-
cordingly, we hereby adopt the Hearing Officer's
findings and recommendations and sustain the chal-
lenges to the ballots of M. Willis, C. Reid, D. Lucas,
S. T. Nelson, H. P. Martin, C. H. Williams, D. H.
Andrews, S. C. Johnson, A. Crosby, C. R. Reidel, M.
Conyers, M. C. Blanding, C. R. Gibson, E. L. Holmes,
L. H. Johnson, N. McFadden, J. H. Montgomery, J.
J. Kinard, H. L. Wilson, R. Sinkler, D. C. Richardson,
M. Cook, R. Charles, P. Montgomery, C. Swent, A. B.
Thomas, E. Washington, J. Mashore, R. E. Peterson,
C. Hood, M. E. Roy, M. A. Sinkler, D. J. Nelson, E.
Alston, L. E. Walter, P. Cooper, P. C. Haley, and R.
Solomon. Since the eight remaining challenged ballots
are no longer sufficient in number to affect the results
of the election, we find it unnecessary to make any
disposition of them.
As the Petitioner has failed to receive a majority
of the valid ballots cast, we shall certify the results of
the election.
CERTIFICATION OF RESULTS OF ELECTION
It is hereby certified that a majority of the valid
votes has not been cast for International Union of
Electrical, Radio and Machine Workers, AFL-CIO,
and that said Union is not the exclusive representative
of the employees in the unit found appropriate within
the meaning of Section 9(a) of the National Labor
Relations Act, as amended.
6 With respect to the charge filed by Petitioner in Case 11-CA-4678, on
May 30, 1972, the General Counsel , on appeal , sustained the Regional
Director 's dismissal of that charge