Gerber Plastic Co.

National Labor Relations Board - Board Decisions

Oct 6, 1954

110 N.L.R.B. 269 (N.L.R.B. 1954)

GERBER PLASTIC COMPANY 269
superintendent has only these 17 employees under his supervision.
'The Employer offered evidence to show that there have been many
transfers from the garage attendant classification to other classifica-
tions represented by the Electricians and the IAM. Job openings in
classifications under the Electricians are posted in the Market Street
garage. The wage scale of the garage attendants here in issue and of
those under the Electricians is the same. Garage attendants are un-
skilled employees, washing, lubricating, and greasing the Employer's
automobiles.
In view of all the facts in this case, the Board finds that the
Employer's Portland, Oregon, garage attendants may appropriately
be a part of the unit represented by the Electricians,' or may consti-
tute a separate unit represented by the Teamsters.
However, we shall make no final unit determination at this time,
but shall first ascertain the desires of the garage attendants as ex-
pressed in the election hereinafter directed. If a majority of the
employees concerned herein vote for the Electricians, they will be
taken to have indicated their desire to become a part of the larger
unit now represented by the Electricians, and the Regional Director
is instructed to issue a certification of results of election to that effect.
On the other hand, if a majority of the employees vote for the Team-
sters, they will be taken to have indicated their desire to constitute
a separate appropriate unit and the Regional Director is instructed to
issue a certification of representatives to the Teamsters for a unit of
garage attendants at the Employer's Portland, Oregon, garage which
the Board under such circumstances finds to be appropriate for the
purpose of collective bargaining.
[Text of Direction of Election omitted from publication.]
MEMBER MuRDocK took no part in the consideration of the above
Decision and Direction of Election.
'If the Electricians does not desire to appear on the ballot for the election directed
herein , it may, upon its prompt request to and approval thereof by the Regional Director,
have its name removed from the ballot.
GERBER PLASTIC COMPANY and UNITED GAS, COKE & CHEMICAL
WORKERS OF AMERICA, CIO, PETITIONER. Case No. 14-RC-2487.
October 6, 1954
Supplemental Decision and Certification of Results of Election
•
Pursuant to a Decision and Direction of Election issued by the
Board on April 22, 1954,' an election by secret ballot was conducted
on May 7, 1954, under the supervision of the Regional Director for
i Gerber Plastic Company , 108 NLRB 403.
110 NLRB No. 32.
70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Fourteenth Region, among the employees in the unit found
appropriate by the Board. Following the election a tally of ballots
was furnished the parties. The tally shows that, of approximately
150 eligible voters, 131 cast ballots, of which 60 were for the Peti-
tioner, 60 were against the Petitioner, 9 were challenged, and 2 were
declared void.
On May 13, 1954, the Employer filed an "Objection of Tally of
Ballots," contending that one of the ballots declared void should have
been counted as a valid ballot. • As the challenged ballots were suf-
ficient in number to affect the results of the election, the Acting
Regional Director investigated the issues raised by the objection and
challenges . On, June 16, 1954, he issued and duly served upon the
parties his report on objection and challenged ballots, in which he
recommended that (1) the Employer's objection to the tally of ballots
should be found to be without merit and overruled, (2) the challenges
to the ballots cast by seven employees should be sustained, and (3) the
challenges to the ballots cast by Marie Benard and Anna Jo Richards
should be overruled and their ballots should be opened and counted.
The Employer filed timely exceptions to the Acting Regional
Director's report.
1. The void ballot: The Acting Regional Director found that the
markings on the ballot, which the Employer contends should have
been counted as a valid ballot, do not clearly show the intent of the
voter 2 He therefore concluded that the voiding of the ballot was
proper, and recommended that the Employer's objection be overruled.
The Employer excepts to the Acting Regional Director's conclusion
and recommendation, asserting that the ballot clearly establishes the
intent of the voter to vote against the Petitioner. We have examined
this ballot, and agree with the Acting Regional Director that it does
not clearly show the intent of the voter and that the voiding of the,
ballot was proper. We therefore find the Employer's exceptions to
be without merit and overrule this objection.
2. The challenged ballots: The Board agent challenged the ballots
of nine voters because their names did not appear on the eligibility
list. The Acting Regional Director's investigation revealed that on
April 9, 1954, the Employer laid off 77 employees working in its
sponge department located in its Eighth Street and Spruce Street
plants.' On the same day the Employer posted a notice to all
employees in the sponge department in these two plants which stated
that the layoff was due to a reduction in business, and that "There
•
The disputed ballot is marked with a short diagonal line in the square under the word
"Yes," and a heavily marked X with a wavy line through the X in the square under the
Void"\o"
4 The Employer' s factories and warehouse facilities are located in three buildings, re-
ferred to in the Board 's Decision and Direction of Election as the Spruce Street plant, the
Eighth Street plant , and the Pine Street plant.
GERBER PLASTIC COMPANY 271
is no foreseeable prospect of re-employment." All of the nine em-
ployees whose ballots were challenged were laid off in the April 9
reduction in force.
The Acting Regional Director recommended that the challenges
to the ballots of seven of these employees be sustained on the basis
that these employees had been permanently laid off and have no
reasonable expectancy of reemployment in the near future a As no
exceptions have been filed to this recommendation, it is hereby
adopted.
The other two employees whose ballots were challenged, Anna Jo
Richards and Marie Benard, were rehired by the Employer after the
eligibility date, April 16, 1954, but prior to the election on May 7,1954.
Richards returned to work as an injection molding machine operator
at a higher rate of pay than she had received before the layoff. The
work that she has been doing since she was rehired is substantially
different from that which she was doing before her layoff on April 9.
Berard returned to work at the Pine Street plant, and is also doing
a different type of work from that which she was doing before her
layoff. She, however, receives substantially the same rate of pay as
she did on her former job. The Acting Regional Director concluded
that, as these employees were rehired before the date of the election,
they were temporarily. laid-off employees and eligible to vote. He
therefore recommended that the challenges to their ballots be over-
ruled, and that they be opened and counted.
The Employer's exceptions do not take issue with the Acting
Regional Director's factual findings, but are directed to his conclusions
and recommendations. The Employer contends that Richards and
Benard were permanently laid off at the time of the eligibility date,
and therefore not eligible to vote in the election. In its exceptions,
the Employer states that it rehired them as new employees to fill 2
vacancies which resulted from the unexpected resignations of 2 other
employees, after the eligibility date established by the Board. The
Employer asserts that, as neither the vacancies nor the reemployment
of Richards and Benard was contemplated or foreseen by the
Employer on the eligibility date, they should be considered as having
been permanently laid-off employees on the eligibility date, and the
challenges to their ballots should therefore be sustained.
Richards and Benard were permanently laid-off on April 9, 1954,
as were the seven other employees, the challenges to whose ballots we
have sustained. We see no reason to make any distinction in deter-
mining the disposition of the challenges to the ballots of Richards
and Benard. As these employees had been permanently laid off on
the eligibility date, it is immaterial that they were rehired on different
4These ballots were cast by the following employees Ethel Autry, Annabelle Lewis,
Ersie Johnson, Freda Deaton, Leonard Snow, Gladys Brooks, and Edith Gilles
272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
jobs, to fill two unexpected vacancies, after the eligibility date but
before the election. We shall, therefore, sustain the challenges to
their ballots.5 As the Petitioner did not receive a majority of the valid
ballots cast in the election, we shall certify the results of the election.
[The Board certified that a majority of the valid ballots was not
cast for United Gas, Coke & Chemical Workers of America, CIO, and
that such union is not the exclusive representative of the employees
of Gerber Plastic Company in the unit heretofore found appropriate.]
5Insofar as Sylvania Electric Products, Inc., 91 NLRB 296, and the cases upon which it
relies, are inconsistent with this decision, they are hereby overruled.
BOSTON MUTUAL LIFE INSURANCE COMPANY, PETITIONER and INSUR-
ANCE AGENTS INTERNATIONAL UNION, AFL, AND ITS LOCAL 243 and
LOCAL 1776, INSURANCE WORKERS OF AMERICA, CIO. Case No.
1-RM-179. October 7,1954
Decision and Order
Pursuant to a stipulation for certification upon consent election, an
election by secret ballot was conducted on April 1, 1954, in the above-
entitled proceeding under the direction and supervision of the Regional
Director for the First Region. Thereafter a tally of ballots was fur-
nished the parties which showed 185 votes cast for Insurance Agents
International Union, AFL, and its Local 243, hereinafter called
IAIU-Local 243, 185 votes cast for Local 1776, Insurance Workers of
America, CIO, hereinafter called IWA-Local 1776, 1 vote cast against
the participating labor organizations, and 1 vote challenged. As the
results of the election were inconclusive and no objections thereto were
filed, the Regional Director conducted a runoff election on April 15,
1954. The tally of ballots furnished the parties showed that in the
runoff election 180 votes were cast for IAIU-Local 243, 188 votes were
cast for IWA-Local 1776, and 1 vote was challenged.
On April 22, 1954, IAIU-Local 243 filed timely objections to the
runoff election. After investigation of these objections, the Regional
Director issued his report on objections on May 25, 1954. In his
report the Regional Director found that certain conduct of the
Employer interfered with the employees' free choice in the election
and recommended that the election be set aside. The Employer filed
timely exceptions to the report. The Board, having carefully con-
sidered the stipulation of the parties, the objections to the election, the
report on objections, the exceptions thereto, and the entire record in
the case, makes the following findings :
410 NLRB No. 36.