F. C. Mason Co.

National Labor Relations Board - Board Decisions

Sep 21, 1949

86 N.L.R.B. 71 (N.L.R.B. 1949)

Iii the Matter of F. C. MASON COMPANY, EMPLOYER and INT'L UNION,
UNITED AUTOMOBILE , AIRCRAFT, AND AGRICULTURAL IMPLEMENT
WORKERS or AM ERICA, UAW-CIO , PETITIONER
Case No. 7-RC-488.-Decided September 01,19/x,9
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before Francis E.
Burger, hearing officer. The hearing officer's rulings made at the
hearing are free from prejudicial error and are hereby affirmed.
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 [Members Houston, Reynolds, and
Murdock].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
National Labor Relations Act.
2. The labor organization involved claims to represent employees
of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act.
4. All employees of the Employer, excluding office and clerical
employees, salesmen, guards,' executives, and all other supervisors as
defined in the Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of the Act.
5. On March 1, 1949, after the filing of the petition herein, but
before the hearing, the Employer laid off 13 employees. The Peti-
tioner contends that these employees were only temporarily laid off,
i The Employer employs a watchman who makes rounds and guards the plant at night.
He also cleans the furnaces , brings in coke for the next day's supply , and lights the fires
before he goes off duty . The Petitioner seeks to include this watchman in the unit, while
the Employer would exclude him. The record indicates that this employee works 63 hours
per week , of which approximately 20 hours per week is spent tending to furnaces. As the
majority of his time is devoted to watching duties , we find that he is a "guard " within the
meaning of the Act. Consequently , we shall exclude the watchman from the unit. Com-
pare Matter of Radio Corporation , of America (R. C. A. Victor Division ), 76 N. L, R. B. 826.
86 N. L. R. B., No. 16.
71
72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and should be entitled to vote in the election? This contention is
resisted by the Employer.
In the fall of 1948, the Employer's business commenced to decline,
and cancellations of orders started coming in. The situation was
complicated by the scarcity of steel. According to the testimony of
C. M. Valentine's the lay-off of March 1 was necessitated by the falling
off of business .4 Each laid-off employee was given a slip which
stated :
It is with much regret that on account of the present economic
conditions and the cancellation of many orders, it necessitates
that you be laid off indefinitely.
This action is further brought about by the smallness of the
quantity of items on our dealer orders, as well as those of our
Jobber and Manufacturer requirements.
Two or three weeks before the hearing, the Employer's plant went
on a 3-day week. It does not appear that the Employer has hired any
new employees since the lay-off, nor have any of the laid-off employees
been given definite assurance that they would be rehired in the near
future.
None of the cancelled orders has been renewed. There is little like-
lihood of an early improvement in the Employer's economic position,
and the laid-off employees were informed that the Employer's officials
did not know when its business was going to recover, and that it
looked like a very long time. Moreover, Valentine testified that, if
and when operations expanded, the Employer does not intend to recall
the laid-off employees, but if they apply for work, they will then be
treated as new employees.-' In view of these facts, we conclude that
the employees in question have been permanently laid off, and that
there is no reasonable expectancy of their reemployment. Accord-
ingly, we find them ineligible to participate in the election herein-
after directed,6 except as provided below..
R One of the laid-off employees has died since the lay-off , and another is physically unable
to return to work because of illness.
3 Apparently Valentine Is the Employer 's vice president and general manager.
4 The steel shortage had commenced to ease at that time , and was no longer a problem at
the date of the hearing.
6 One of the Petitioner 's witnesses testified that Valentine stated that it might be possible
to call the laid -off employees back if work picked up . Another witness quoted Valentine
as saying that be would hire every man back as soon as there was work for them to
do ; that if the time came when they were needed, he would be glad to hire them. We are
of the opinion that such indefinite commitments are insufficient to assure the employees a
reasonable likelihood of reemployment.
0 Matter of Martin J. Barry Inc ., 83 N. L . R. B. 1146.
F. C. MASON COMPANY 73
We note that a charge has been filed 7 alleging that the Employer
discriminatorily discharged five of the employees mentioned above.8
In accordance with our usual practice while such charges are pending,
we shall direct the Regional Director to challenge and segregate the
ballot of each of these five individuals. Their ballots will not be
counted unless determinative of the results of the election. In the
latter event, the final disposition of this case will await the outcome
of the unfair labor practice proceedings, which are still under consid-
eration by the Regional Director.° By allowing these persons to vote
under challenge, we are not to be taken as having passed in any way
upon the legality or illegality of their discharges.
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the pur-
poses of collective bargaining with the Employer, an election by secret
,ballot shall be conducted as early as possible, but not later than 30
days from the date of this Direction, under the direction and super-
vision of the Regional Director for the Region in which this case was
heard, and subject to Sections 203.61 and 203.62 of National Labor
Relations Board Rules and Regulations, among the employees in the
unit found appropriate in paragraph numbered 4, above, who were
employed during the pay-roll period immediately preceding the date
of this Direction of Election, including employees who did not work
during said pay-roll period because they were ill or on vacation or
temporarily laid off, but excluding those employees who have since
quit or been discharged for cause and have not been rehired or rein-
stated prior to the date of the election, and also excluding employees
on strike who are not entitled to reinstatement, to determine whether
or not they desire to be represented, for purposes of collective bargain-
ing, by Int'l Union, United Automobile, Aircraft, and Agricultural
Implement Workers of America, UAW-CIO.
' Matter of F. C. Mason Company, Case No. 7-CA-232, filed March 9, 1949 . The Peti-
tioner has filed the usual waiver , stating that it would not base objections to the conduct
of the election on any activities of the Employer alleged-in the.charges,as violations of
the Act.
° Walter R . Markham, Robert L. Smith , Ralph F . Thomas, Paul Barnes, and Cleveland
Decker.
° Matter of David Katz and Fannie Katz, d/b/a Katz Food Products . Company, 76
N. L. it. B . 312; Matter of The Nashville Corporation , 77 N. L. it. B. 145 ; and Matter
of Stokely Foods, Inc., 78 N. L. it. B. 842.