Halle's, Division of Halle Brothers Co.

National Labor Relations Board - Board Decisions

Jan 8, 1979

239 N.L.R.B. 1249 (N.L.R.B. 1979)

HALLE'S, DIVISION OF HALLE BROTHERS COMPANY
Halle's, Division of Halle Brothers Company, a Dela-
ware Corporation and United Brotherhood of Car-
penters and Joiners of America, Cleveland and Vi-
cinity District Council, AFL-CIO, Petitioner. Case
8-RC- 11156
January 8, 1979
DECISION ON REVIEW
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
On May 9, 1978, the Regional Director for Region
8 issued his Second Supplemental Decision and Or-
der To Open and Count Challenged Ballots, in which
he found, inter alia, that the challenges to the ballots
of 14 individuals should be sustained.' Thereafter, in
accordance with Section 102.67 of the National La-
bor Relations Board Rules and Regulations and
Statements of Procedure, Series 8, as amended, the
Petitioner filed a timely request for review of the Re-
gional Director's decision on the grounds, inter alia,
that he made erroneous findings of fact and departed
from officially reported Board precedent. By tele-
graphic order dated July 11, 1978, the request for
review was granted.
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 considered the entire record in this
case with respect to the issues under review and
makes the following findings:
The Employer operates department stores in and
around northeastern Ohio and Erie, Pennsylvania.
' The secret-ballot election in the instant case was conducted on Januar-
25. 1978. among the employees in the appropriate unit pursuant to a Deci-
sion and Direction of Election issued by the Regional Director for Region 8.
At the conclusion of the election. the parties were furnished with a tally of
ballots which showed that, of approximately 24 eligible voters. 21 cast bal-
lots, of which 3 were cast for the Petitioner. 2 were cast for the Intervenor.
and 16 ballots were challenged. The challenged ballots are sufficient in
number to affect the results of the election. In his Supplemental Decision
and Order Directing Hearing on Challenged Ballots issued on March 3.
1978, the Regional Director for Region 8 sustained the challenge to the
ballot of Thomas Barberic and ordered that a hearing be held to resolve the
remaining 15 challenges. Thereafter, a hearing was held on March 31. 1978.
and on April 19. 1978, Hearing Officer John A. Simonetti issued his report.
in which he recommended that the challenge to the ballot of Thomas Hus-
beck be overruled but that the challenges to the remaining 14 ballots be
sustained. On April 28. 1978, the Petitioner filed exceptions to the Hearing
Officer's report.
On May 9, 1978, the Regional Director issued his Second Supplemental
Decision and Order To Open and Count Challenged Ballots. He overruled
the challenge to the ballot of Thomas Husbeck. He sustained the challenges
to the 14 remaining ballots of John Braun. Edward Barberic. Anthon, Kris-
tek, Michael Braskich. William Hupscher. David Moskaluk. William Mos-
kaluk, James Kiefer. Steve Homza. Joseph Majewski. George Schmitt. Fred-
erick 1 ommer. George Nestor. and Eric Koeth.
The Petitioner seeks to represent the Employer's car-
penters, who perform maintenance and remodeling
work in the various stores. The Employer employed
approximately 23 or 24 carpenters in 1976 and 24 or
26 in 1977. During those 2 years, the Employer bud-
geted approximately $1 million and $1.1 million, re-
spectively, for remodeling work performed by the
carpenters at its various stores. In addition, Vice
President Brisk testified that the Employer has a
maintenance account that can support a maximum
of three carpenters. Six carpenters were actively em-
ployed by the Employer on the day of the election,
January 25, 1978. The active employment of the re-
maining carpenters had been ended in mid-Novem-
ber 1977.
The issue here is whether or not 14 carpenters who
cast at the January 25, 1978, election had a reason-
able expectation of employment in the near future at
the time of the election. The evidence bearing on this
issue falls into three categories: (1) the Employer's
practice of laying off carpenters during the end-of-
year holiday season; (2) what the carpenters were
told at the time of the layoff; and (3) the Employer's
budget for 1978.
As to the holiday layoff practice, the Employer's
vice president, Paul Brisk, testified that "we always
terminate construction at that time because we don't
like to have a whole lot of construction going on dur-
ing the Christmas season." In addition, numerous
carpenters testified to being laid off before and being
recalled after the holiday season in previous years.
There is uncontroverted testimony that the carpen-
ters were told in mid-November 1977 that the layoff
was temporary and that they would be recalled after
the first of the year. Most of the carpenters who testi-
fied were told this by Tom Barberic, the carpenters'
foreman, who had the responsibility for notifying the
carpenters of the layoff. Other carpenters testified
that they were given the same message by Thomas
Husbeck, who was in charge of carpenters working at
the Employer's Westgate store.
With respect to the Employer's 1978 budget, Vice
President Brisk testified that the Employer's initial
budget request, made on October 3, 1977, was ver-
bally denied and that the Employer submitted a sec-
ond request on December 8. On January 22, 1978,
the Employer received from the parent company,
Marshall Field, final approval for $160,000 to remo-
del two stores and tentative approval for $185,000 to
remodel two other stores.
The Regional Director found that the possibility of
recall was conditioned upon appropriations not firm-
ly committed and that the Employer indicated no
definite need tor additional employees even if the
additional appropriation was finally approved.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hence, he found that the carpenters had no reason-
able expectancy of recall in the foreseeable future
and sustained the challenges to their ballots. We dis-
agree.
The Employer's budget situation here is not com-
parable to the cases relied on by the Regional Direc-
tor. Thus, this is not a case where economic recession
in the nation affected businesses upon which the Em-
ployer depended for business.2 Nor is this a case
where the Employer discontinued one line of work
and was not actively seeking to acquire another line
of similar work.3 Instead, the record here shows that
approval of the Employer's remodeling budget,
which is normally approved earlier, was delayed by
circumstances affecting the board of directors of the
parent company. Nevertheless, the Employer re-
ceived shortly before the election not only final ap-
proval for $160,000 to remodel two stores but also
tentative approval for an additional $185,000 to re-
model two other stores. This amount is below the
Employer's remodeling budget for the 2 previous
years. However, Vice President Brisk acknowledged
that carpenters' work is also charged to the mainte-
nance budget and that additional carpenters would
be required at the downtown store when the tenta-
tively approved remodeling projects were finally ap-
proved. In these circumstances, we do not find that
the Employer's budget situation alone precludes a
finding that the carpenters had a reasonable expecta-
tion of recall in the near future.4 Furthermore, the
2 Cf. Pasquier Panel Products, Inc., 219 NLRB 71 (1975).
,Cf. Sierra Lingerie Company, 191 NLRB 844 (1971).
timing of the layoff fitted into the pattern of holiday
layoffs of carpenters by the Employer in previous
years, and the carpenters were told in November
1977 not only that the layoff was temporary but also
that they would be recalled after the first of the year.'
In sum, we find an adequate basis for concluding
that the carpenters had a reasonable expectancy of
reemployment in the near future at the time of the
election. Hence, we shall overrule the challenges to
their ballots and direct the Regional Director to open
and count their ballots and to issue a revised tally of
ballots.
Accordingly, the case is remanded to the Regional
Director in order that he may open and count the
ballots cast by John Braun, Edward Barberic, Antho-
ny Kristek, Michael Braskich, William Hupscher,
Eric Koeth, Steve Homza, Joseph Majewski, George
Schmitt, Frederick Tommer, David Moskaluk, Wil-
liam Moskaluk, James Kiefer, and George Nestor
and thereafter cause to be served on the parties a
revised tally of ballots. Thereafter, the Regional Di-
rector shall issue the appropriate certification in ac-
cordance with the Board's Rules and Regulations.
4 'he Regional Director relied on evidence that additional funding had
not been received at the time of the hearing. 2 months after the election, and
that no additional employees had in fact been hired. But it is well estab-
lished that the test for determining expectancy of recall is the time of the
election rather than subsequent developments. Thomas Engine Corporation
and Itphur Engine (Co. Inc., d bha Tomadur. Inc., 196 NLRB 706, 707
(1972).
In discounting the testimony of several employees that they were told by
the carpenters' foreman that the) would be recalled after the first of the
sear, the Regional Director relied on Thomas Engine Corporation, supra. We
find his reliance on that case to be unwarranted. There, unlike the instant
case. the employees were told to find other work and were given no estimate
of the duration of the layoff
1250