Gulf States Asphalt Co.

National Labor Relations Board - Board Decisions

Sep 29, 1953

106 N.L.R.B. 1212 (N.L.R.B. 1953)

1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The IUE - CIO's final objection was that the Employer through
its supervisors gave improper aid and support to the IAM over
the IUE - CIO. The Regional Director found that the IUE-CIO's
protests present matters occurring prior to the date of the
issuance of the notice of hearing and cannot be regarded as
conduct having a bearing on the results of the election. The
IUE-CIO in its memorandum in support of its exceptions to the
Regional Director ' s report describes an incident which it
alleges occurred after the notice of hearing , in which a super-
visor told an employee who was applying for a promotion: "I
understand that you have changed your mind about the company
and that you are now in favor of the IUE - CIO." This incident
occurred almost 4 months before the election . Without deciding
whether this statement was coercive , we do not regard such an
isolated statement , made at a time so remote from the election,
sufficient to warrant setting aside the election.4
Accordingly , we shall adopt the recommendations of the
Regional Director and overrule the objection to the election by
the IUE - CIO. As a majority of the employees have selected the
IAM as their bargaining representative , we shall certify it in
accordance with the tally of ballots.
[The Board certified International Association of Machinists,
AFL, as the designated collective -bargaining representative
of the employees of Sylvania Electric Products , Inc., Williams-
port , Pennslyvania, in the appropriate unit , as described in the
Decision and Direction of Election,]
4Calvine Cotton Mills , Inc , 98 NLRB 843; S & S Corrugated Paper Machinery Co , Inc., 89
NLRB 1363.
GULF STATES ASPHALT COMPANY and GENERAL DRIVERS
WAREHOUSEMEN AND HELPERS , LOCAL 968 , Petitioner.
Case No. 39-RC-627. September 29, 1953
SUPPLEMENTAL DECISION AND CERTIFICATION OF
REPRESENTATIVES
On July 30 and 31, 1953 , pursuant to a Decision and Direction
of Election ' issued by the Board on July 16, 1953 , an election
by secret ballot was conducted under the direction and super-
vision of the Regional Director for the Sixteenth Region, among
the employees of the Employer in the unit found appropriate in
the Decision . Upon completion of the election , atally of ballots
was issued and duly served by the Regional Director upon the
parties concerned . The tally reveals that there were approxi-
mately 45 eligible voters and that 44 ballots were cast, of which
'Not reported in printed volumes of Board decisions
106 NLRB No. 195.
GULF STATES ASPHALT COMPANY 1213
21 were for the Petitioner, 20 against the participating labor
organization, and 3 ballots were challenged.
Because the challenged ballots were sufficient in number to
affect the results of the election, the Regional Director, in
accordance with the Board's Rules and Regulations, conducted
an investigation, and thereafter on August 13, 1953, issued and
served upon the parties his report on challenged ballots in
which he recommended that the challenges to all three ballots--
those of Ellington Elliott, James Bonin, and D. F. Tadlock--be
sustained . On August 24, 1953, the Employer filed exceptions to
the Regional Director's report.
The Challenged Ballots
Ellington Elliot : Elliott's ballot was challenged because his
name did not appear on the voting list which was used during
the election . The Regional Director recommended that the
challenge be sustained . No exceptions were filed to this recom-
mendation . We shall therefore adopt the recommendation.
James Bonin: Bonin's name appeared on the list of eligible
voters and he was classified thereon as an operator. The
Regional Director found that Bonin was a supervisor and
recommended that the challenge be sustained . No exceptions
were filed to this recommendation . We shall therefore adopt
the recommendation.
D. F. Tadlock : Tadlock' s name also appeared on the list of
eligible voters which was used in conducting the election and,
like Bonin , he was classified thereon as an operator. The
record shows that the Employer and the Petitioner agreed at
the hearing that both Bonin and Tadlock were supervisors. In
fact, it was indicated by the Employer that Bonin and Tadlock
were two supervisors who did not have titles as such. More-
over , during the preelection conference , L. F. Bramble, the
owner of the Company, called attention to the fact that Tadlock's
name should be deleted from the voting list because he was a
supervisor . The Petitioner also agreed that Tadlock was a
supervisor.
The Regional Director found that Tadlock was a supervisor
at least from the eligibility date until July 26, 1953 , which was
about 4 days before the election, and that even if, by virtue of
a reassignment on or about July 26, 1953 , Tadlock was em-
ployed as a nonsupervisor in the bargaining unit on the day of
the election , he was not so employed on the eligibility date and
therefore was ineligible to vote. Accordingly, the Regional
Director recommended that the challenge to Tadlock ' s ballot
be sustained . The Employer in its exceptions contends that
Tadlock never was a supervisor , but even if he was one on the
eligibility date he was not a supervisor on the day of the elec-
tion and was entitled to vote.
The Regional Director ' s investigation discloses that prior
to April 1, 1953 , Tadlock was a still operator on the third shift
and on that date was transferred to the day shift ; that he con-
1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tinued to work on the day shift until on or about July 26, 1953,
when he was transferred back to the third shift as a still oper-
ator; and that therefore on June 9, 1953, the date of the hearing
in this proceeding, Tadlock was employed on the day shift, but
on July 30, the day of the election, he was employed as a still
operator.
With respect to the duration of time Tadlockwas to be on the
day shift and his duties, the Regional Director's investigation
reveals that according to Plant Superintendent Ford and Tad-
lock, when Tadlock was assigned to the day shift there was no
understanding or agreement reached between them as to how
long he would remain on that shift or as to whether the assign-
ment was of a temporary or permanent nature; that according
to Ford, (a) during the time Tadlock was on the day shift he
shared Bonin's job as labor foreman to a considerable extent,
(b) Tadlock was more of a shipping clerk and would tell the
men working for him what "stuff" to load and how to load it,
and (c) Tadlock would usually have 10 or 12 men working with
him and would place men in different jobs and tell them what
to do; that according to Tadlock, (a) when Bonin was outside in
the plant and not operating the joint machine, Tadlock saw that
the bags got poured, the trucks got loaded, and that whatever
else had to be done was done, (b) that at these times he would
have as many as 3 to 30 or more men working with him, and
(c) that Ford would tell him what he wanted done and he would
tell the men what to do and pass along his instructions to the
men; and that according to Supervisor Bonin, Tadlock told the
men what to do, directed their work, and was in charge of
about 25 men during this time.
On the basis of the foregoing we find that Tadlock, during the
period from about April 1 to July 26, 1953, had authority in
the interest of the Employer to assign employees and to
responsibly direct them in their work and that he was, during
such period, a supervisor within the meaning of the Act.'
We turn now to the question as to whether Tadlock was
entitled to vote in the election if, as it appears, he was reas-
signed on about July 26, 1953, as a still operator and thus
employed in the bargaining unit on the day of the election,
despite the fact that he was not so employed on July 9, 1953,
which was the eligibility date. As the Board has frequently
said, the essential element in determining an employee's
eligibility to vote is his status on the eligibility payroll date
and on the date of the election.' Here, Tadlock was not working
for the Employer as an employee within the meaning of Section
2 (3) of the Act on one of these critical dates, namely, the
eligibility payroll date. 4 We find therefore that he was ineligible
to vote and, in accordance with the recommendation of the
Regional Director, we hereby sustain the challenge to Tadlock's
2See The Connecticut Electrical Manufacturing Co., 94 NLRB 1449.
3Reade Manufacturing Company, Inc., 100 NLRB 87
4Red Wing Potteries, Inc., 88 NLRB 1235.
A. WERMAN & SONS, INC. 1215
ballot. ' Accordingly , as the Petitioner has received amajority
of the valid votes cast, we shall certify it as the bargaining
representative of the employees in the unit heretofore found
appropriate.
[The Board certified General Drivers Warehousemen and
Helpers , Local 968 , as the designated collective -bargaining
representative of the production and maintenance employees
at the Employer ' s South Houston , Texas , plant, excluding
salesmen, office clerical employees , guards , professional
employees, and supervisors as defined in the Act.]
Member Rodgers took no part in the consideration of the
above Supplemental, Decision and Certification of Representa-
tive s.
5 The Employer in its exceptions requested , in the alternative , that the Board direct a
hearing on this challenged ballot. As there are no factual issues remaining that would
warrant a hearing , the Employer ' s request is denied.
A. WERMAN & SONS , INC. and UNITED SHOE WORKERS OF
AMERICA, CIO , Petitioner . Case No. 4-RC - 1972. September
29, 1953
SUPPLEMENTAL DECISION AND DIRECTION
Pursuant to a Decision and Direction of Election issued by
the Board on June 1, 1953,1 an election by secret ballot was
conducted on June 19 , 1953 , under the supervision of the
Regional Director for the Fourth Region, among the employees
at the Employer's plant in Marietta , Pennsylvania . Upon com-
pletion of the election , the parties were furnished with a tally
of ballots which showed that of approximately 112 eligible
voters, 96 cast valid ballots , of which 46 were for and 50
against the Petitioner . There were 11 challenged ballots, a
number sufficient to affect the results of the election, and no
void ballots.
On June 24 , 1953, the Petitioner filed timely objections to
conduct allegedly affecting the results of the election. In
accordance with the Board's Rules and Regulations , the Re-
gional Director conducted an investigation and, on July 31,
1953, issued and duly served upon the parties his report on
objections . In this report, the Regional Director found that
Petitioner ' s objections 1 to 5 raised substantial and material
issues and recommended that the election be set aside . In view
of this conclusion , the Regional Director found it unnecessary
to conduct an investigation concerning the challenged ballots or
to pass upon the contention that Detz , the Employer ' s observer,
'Not reported in printed volumes of Board decisions.
106 NLRB No. 198.