General American Transportation Corp.

National Labor Relations Board - Board Decisions

Dec 9, 1970

187 N.L.R.B. 120 (N.L.R.B. 1970)

120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General American Transportation Corp . and Oil,
Chemical and Atomic Workers International Un-
ion, AFL-CIO , Petitioner. Case 22-RC-4607
December 9, 1970
DECISION AND CERTIFICATION OF
RESULTS
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
Pursuant to a Stipulation for Certification Upon
Consent Election executed on March 20, 1970, an
election by secret ballot was conducted on April 30,
1970, under the direction and supervision of the
Regional Director for Region 22, among the employ-
ees in a certain voting group. At the conclusion of the
election , the parties were furnished with a tally of
ballots, which showed that of approximately 35
eligible voters, 35 cast ballots, of which 17 were for,
and 17 against, the Petitioner, and 1, cast by Mullan,
was challenged. The challenged ballot is sufficient in
number to affect the results of the election.
In accordance with the National Labor Relations
Board Rules and Regulations and Statements of
Procedure , Series 8 , as amended, the Regional
Director conducted an investigation and, on June 5,
1970, issued and duly served upon the parties his
Report on Challenged Ballot and Notice of Hearing
to resolve the issues with respect to the challenged
ballot.
Pursuant to notice, a hearing was held on June 24,
1970, at which all parties were represented by counsel
and were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to intro-
duce evidence bearing on the issues.
On August 6, 1970, the Hearing Officer issued his
Report on Challenged Ballot , in which he recom-
mended that the Board overrule the challenge, that
the challenged ballot be opened and counted, and that
a Revised Tally of Ballots be issued. Thereafter, the
parties filed timely exceptions to the Hearing Officer's
Report.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
Upon the entire record in this case, the Board finds:
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.
i The Petitioner's exceptions are in large measure directed to the
Heanng Officer 's credibility findings . As the clear preponderance of the
relevant evidence does not persuade us that the Hearing Officer's
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. Based on the parties' stipulation, we find that
the following employees constitute a group appropri-
ate for inclusion in the existing production and
maintenance unit for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act:
All office and plant clerical employees including
dispatchers employed by the Employer at its
Carteret, New Jersey location, excluding confiden-
tial secretaries, professional employees, plant and
project engineers, guards and supervisors as
defined in the Act.
5. The Board has reviewed the rulings made by the
Hearing Officer at the hearing and finds that no
prejudical error has been committed. The rulings are
hereby affirmed. The Board has considered the
Hearing Officer's Report, the exceptions thereto,' and
the entire record in this case, and hereby adopts the
Hearing Officer's findings and recommendations with
regard to the challenged ballot, as modified herein.
Mullan began working for the Employer in June
1963 on a permanent, full-time basis. In September
1963 he began attending Newark State College,
Newark, New Jersey, to obtain a teaching degree in
education. In December 1969 he asked the Employer
for a leave of absence from February 2, 1970, to about
March 26, 1970, in connection with his teaching
program. The Employer granted Mullan's request on
the mutually agreed condition that he return as a
temporary employee. Mullan accordingly left work
about February 2, returned about April 1, and a few
days later informed the Employer that he would
terminate his employment on August 15 as he planned
to start teaching school full time in September.
We find, in substantial agreement with the Hearing
Officer's finding, that Mullan's leave of absence
changed his status to that of a temporary employee;
and that he informed the Employer, before the
election, that he would pursue a full-time job as a
school teacher a few months after the election, and
would no longer work for the Employer. We disagree
with the Hearing Officer's finding that Mullan is, in
these circumstances, nevertheless eligible to vote.
We note that Mullan was not working during the
agreed eligibility period ending March 15, 1970, and
was then no longer a permanent employee. Rather, he
had agreed to return to work after March 15 only as a
resolution of credibility issues was incorrect , we find insufficent basis for
disturbing his credibility findings . Standard Dry Wall Products, Inc., 91
NLRB 544, enfd 188 F.2d 362 (C A 3)
187 NLRB No. 21
GENERAL AMERICAN TRANSPORTATION CORP. 121
temporary employee and for a limited period of about
3-1/2 months, because of the new teaching career on
which he was about to embark. We further note that
there is no evidence in the record that Mullan had any
reasonable expectancy of future employment in the
present voting group. Accordingly, we find that
Mullan did not have a sufficient community of
interest with the employees in this voting group, and
we sustain the challenge to Mullan's ballot and 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 representation by Oil,
Chemical and Atomic Workers International Union,
AFL-CIO, and that said labor organization is not the
exclusive representative of the employees within said
voting group , within the meaning of Section 9(a) of
the National Labor Relations Act, as amended.