Hercules, Inc.

National Labor Relations Board - Board Decisions

Jun 28, 1976

225 N.L.R.B. 241 (N.L.R.B. 1976)

HERCULES, INC. 241
Hercules, Inc. and International Union , United Auto-
mobile, Aerospace and Agricultural Implement
Workers of America , UAW, Petitioner . Case 21-
RC-14146
June 28, 1976
SUPPLEMENTAL DECISION AND
CERTIFICATION OF REPRESENTATIVE
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
Pursuant to authority granted it by the National
Labor Relations Board under Section 3(b) of the Na-
tional Labor Relations Act, as amended, a three-
member panel has considered the determinative chal-
lenges to ballots cast in an election held on June 11,
1975,i and the Hearing Officer's report 2 recom-
mending disposition of same . The Board has re-
viewed the record in light of the Employer's excep-
tions and brief, and hereby adopts the Hearing
Officer's findings ' and recommendations with the
following modification.
The Hearing Officer found that the challenge to
the ballot of Margaret S. McDaniel should be over-
ruled, relying solely on the fact that the Employer
failed to clearly communicate to her its intent to ter-
minate the employment relationship. We disagree.
McDaniel began work for the Employer on Octo-
ber 3, 1974, as an inspector-packer. She worked spo-
radically, due to illness and family problems, as well
as lack of work. On December 4, 1974, she became ill
at work. The next day she asked for a leave of ab-
sence, informing Plant Superintendent Duncan Pat-
terson that she would be out indefinitely. Patterson
granted her the leave but told her that she would lose
her seniority. He also told her to call when she was
able to return to work and that he would call her
when there was an opening . McDaniel questioned
why she would lose her seniority but said that she
accepted the decision . On December 20, 1974, the
Employer sent its corporate headquarters in Dela-
ware a notice of McDaniel 's termination.
McDaniel received a medical release to return to
work on January 2, 1975. However , she did not noti-
fy the Employer that she was able to return to work
until the first of March , at which time she spoke to
the company receptionist . She was told by the recep-
tionist that she would be called. One week later, Mc-
Daniel again spoke to the receptionist who told her
she would be contacted when there was an opening.
McDaniel did not seek to speak to anyone in author-
ity, and she had no subsequent formal communica-
tion with the Employer . When she attempted to vote
in the representation election on June 11, she was
told that she was not on the eligibility list, allegedly
learning for the first time that her employment with
the Employer was considered terminated.
The Employer 's personnel manual provides:
ARTICLE V-Seniority
Section 1 . Seniority Rules
*
(b) An employee shall not attain seniority until
he has completed a probationary period of forty
(40) days worked in the employ of the Employ-
er, after which time his seniority shall date from
his date of hire 4
Section 2 . Loss of Seniority
Continuous service shall be broken and recall
right forfeited by
* *
i The election was conducted pursuant to a Stipulation for Certification
Upon Consent Election approved by the Regional Director for Region 21 of
the National Labor Relations Board on May 19, 1975 The tally was 23 for,
and 22 against , the Petitioner , there were 4 challenged ballots On Novem-
ber 4 , 1975, after consideration of the exceptions ( the Heanng Officer incor-
rectly states there were no exceptions filed), the National Labor Relations
Board adopted the Acting Regional Director's report recommending that
the Employer 's objections to conduct affecting the election be overruled and
that one of the challenges be sustained and directed a hearing on the issues
raised by the remaining challenged ballots (The Board 's original Decision
and Order remanding this proceeding to the Regional Director is not report-
ed in Board volumes )
2 Relevant portions of the Hearing Officer's report are attached hereto as
an appendix.
3 The Employer has excepted to certain credibility resolutions of the
Heanng Officer It is the established policy of the Board not to overrule a
Heanng Officer's credibility resolutions unless the clear preponderance of
all of the relevant evidence convinces us that the resolutions are incorrect
The Coca-Cola Bottling Company of Memphis, 132 NLRB 481, 483 (1961),
Stretch - Tex Co, 118 NLRB 1359 , 1361 (1957 ) We find no sufficient basis
for disturbing the credibility resolutions in this case
*
D
(b) Absence from work for a period equal to an
employee's length of continuous service with the
Employer up to a maximum of twelve (12) con-
secutive months.
The Heanng Officer, in finding McDaniel eligible
because of the Employer's failure to notify her of her
termination, applied the rule applicable to those
cases in which an employee is granted sick leave on
an indefinite basis and has every reason to expect
that he or she will be returned to work upon recovery
with full employment rights. We disagree. Rather we
find that McDaniel had no such expectations. When
she was granted the leave of absence, she was ex-
Under this formula, McDaniel had not completed the probationary pe-
riod
225 NLRB No. 31
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pressly told that she would not be returned immedi-
ately but that she would have to await an opening
and that when she did return she would have no
more rights in terms of seniority than a new hire.
Thus, McDaniel was not granted a leave of absence
in the ordinary sense of the word which implies a
continuing employer-employee relationship.'
Other facts here also demonstrate that McDaniel's
employment was in fact terminated in December
1974. Under the Employer's personnel rule calling
for termination when an employee is absent for a
period equal to the length of continuous service with
the Employer, McDaniel forfeited her employee sta-
tus since her absence far exceeded in length her peri-
od of service. Further, the Employer itself treated her
leaving as a termination when, in December 1974, it
notified its headquarters that she had been terminat-
ed. In these circumstances, we find that the failure to
formally notify McDaniel of her termination, while
perhaps some evidence that she may not have been
separated then, is on balance insufficient to,establish
continued employee status .6
Since we find that McDaniel was terminated in
December 1974, we shall sustain the challenge to her
ballot. Since we are sustaining the challenges to all of
the ballots which remain in controversy and since
Petitioner has received a majority of the votes cast,
we shall certify Petitioner as the collective-bargaining
representative of the employees in the appropriate
unit.
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots have been cast for International Union, Unit-
ed Automobile, Aerospace and Agricultural Imple-
ment Workers of America, UAW, and that, pursuant
to Section 9(a) of the National Labor Relations Act,
as amended, the said labor organization is the exclu-
sive representative of all the employees in the follow-
ing appropriate unit for the purpose of collective bar-
gaining in respect to rates of pay, wages, hours of
employment, or other conditions of employment:
All production employees employed at the
Employer's premises at 6881 Eighth Street, Bue-
na Park, California; excluding all plant and of-
fice clerical employees, maintenance employees,
professional employees, guards, and supervisors
as defined in the Act.
5 Sullivan Surplus Sales Inc, 152 NLRB 132, 156-157 (1965), Arrow Spe-
cialties, Inc, 177 NLRB 306, 317 (1969)
6 American Motors Corporation, Parts Division, 206 NLRB 287, 291 (1973).
APPENDIX
Findings of Fact and Conclusions
Robert H. Arnold:
Robert Arnold began work for Haskon, Inc., a sub-
sidiary of Hercules, Inc., in 1971, as a truckdriver. On
November 24, 1972, Arnold obtained a PUC license
and started a trucking company called A-Line. On
November 30, 1972, Arnold'sjob classification at Has-
kon was changed from truckdriver to warehouseman.
Arnold also received a reduction in pay from $5 an hour
to $3.43 an hour. On January 2, 1973, Arnold leased
two tractors and six trailers from Haskon to operate
his trucking business. This lease arrangement contin-
ued until November 1973, when Hercules took direct
control of Haskon and continued operating as Hercu-
les. At this time, Arnold purchased his own equipment,
consisting of two tractors and four trailers, and contin-
ued his trucking operation.
During the same period of time and continuing to
date, Hercules has employed Arnold as a warehouse-
man. However, contrary to other employees, Arnold
does not punch a timeclock and does not ever see his
timecard, though a timecard is maintained for him by
Mr. Kelly, plant manager of Hercules, or his secretary.
Under a gentlemen's agreement between Arnold and
Kelly, Arnold promised to give Kelly 8 hours' work for
8 hours' pay. No other employee has entered into such
a verbal arrangement with the Employer. Also, all other
employees are required to punch a timeclock. Arnold
schedules his own work hours, which he determines
according to the needs of the Company. Thus, if a truck
must be loaded either before or after the normal day
shift, Arnold will schedule his time to come in either
early or late, to ensure that the truck is loaded on time.
If Arnold should happen to work more than 8 hours
in I day, he makes it up by working a lesser number
of hours the next day. Arnold does not report his hours
worked to anyone, but just puts in approximately 40
hours a week as he promised he would. Furthermore,
Arnold does not report to Plant Superintendent Aus-
mus but reports directly to Kelly, if anyone. Hercules'
equipment is seldom used to make deliveries. Rather,
Hercules contracts with A-Line for all its local deliver-
ies. Though A-Line has an office in Long Beach, orders
from Hercules to A-Line are transmitted directly by
Kelly to Arnold at the Hercules premises. The trucks
of both Hercules and A-Line are parked in an empty
lot next door to the Hercules plant.
The Petitioner has presented witnesses who testi-
fied that, until the time of the election, they never
saw Arnold working as a warehouseman, and that, if
Arnold was seen in the plant, it was just walking
around, drinking coffee, or working on a truck. Em-
ployee Luccynski testified that Arnold told her he
HERCULES, INC.
could do what he pleased because he owned his own
business . While suggestive, such testimony is insuffi-
cient to wholly refute the testimony of Arnold or
Ausmus, both of whom testified that 90 percent of
Arnold's time was spent in performing warehouse
duties. Both men testified that Arnold worked vari-
ous shifts as needed and the Petitioner' s witnesses
admitted that they were not in a position to observe
the warehouse area during working time. Thus, the
Petitioner has not presented sufficient evidence to
disprove the testimony of Ausmus and Arnold that
Arnold spends 90 percent of his time at the plant
performing warehouse functions similar to those per-
formed by other warehousemen and that he receives
the same benefits enjoyed by other employees.
Nevertheless, the question remains whether Ar-
nold shares the same community of interest with
other employees. Arnold is the sole owner of A-Line.
Hercules uses A-Line exclusively for local deliveries.
Arnold schedules his time at Hercules so that the
trucks can be loaded expeditiously. However, the
trucks he loads are his own trucks. Thus, Arnold's
interest in performing his work is more than that of a
conscientious employee. Arnold has a proprietary in-
terest in seeing that his trucks are loaded and dis-
patched as promptly as possible. Therefore, based
upon the record as a whole, including Arnold's spe-
cial relationship with Hercules and his obvious pro-
prietary interest in advancing his own business, I find
that Arnold does not share a community of interest
with other employees 2 and I recommend that the
challenge to his ballot be sustained.
Jeffrey C. Meyer:
Jeffrey Meyer began work at Hercules on Septem-
ber 19, 1973. He terminated his employment on April
8, 1974. On June 13, 1974, Meyer was rehired as a
machine operator. Meyer continued his employment
until March 7, 1975, when he informed Mr. Kelly
that he was quitting.' Meyer returned to work at Her-
cules on May 1, 1975. When he attempted to vote in
the NLRB election held on June 11, 1975, Meyer was
challenged by the Board Agent on the ground that
his name was not on the voting eligibility list. In or-
der to be eligible to vote in an election, the voter in
2 Smith Alarm Systems & Central Station Alarm Co, 209 NLRB 835
(1974), enfd 524 F 2d 983 (C A 5, 1975)
J Based upon my observations of Meyer , his demeanor , and his consistent
testimony under strong cross-examination by all parties, I conclude that
Meyer was truthful in his testimony I, therefore , credit his testimony that he
told Mr Kelly that he had quit The record as a whole further supports this
conclusion For instance , Plant Superintendent Ausmus, who, at the time,
was employed by Hercules as a maintenance mechanic , testified that he
asked Meyer why he had left and Meyer replied he was dissatisfied with the
way Scotty [ Patterson ] was treating him Furthermore , Kelly's version of the
conversation is that Meyer approached him and told him that he had gotten
work . Kelly testifies he said "Good luck Jeff, give it a try " Kelly says he
told Meyer, "If it doesn't work out, you may come back to your present
Job" Kelly admits he did not fix any time limit The Employer contends
that by this and similar statements made earlier to Meyer, Kelly granted
243
question must have been an employee during the es-
tablished eligibility date and on the date of the elec-
tion itself.4 Based upon the record as a whole and my
observations of the witnesses and their demeanor, I
conclude that Meyer had not requested nor had he
been granted a specific leave of absence. Rather, I
find that Meyer quit his employment on March 7,
1975, and, therefore, was not an employee as of the
established eligibility date. I, therefore, recommend
that the challenge to his ballot be sustained.
Margaret McDaniel:
McDaniel began work for Hercules on October 3,
1974, as an inspector-packer. She was employed on
the third shift. On the morning of December 4, 1974,
during the course of her shift, McDaniel became ill.
That afternoon, after her work shift, McDaniel vis-
ited a physician for treatment. Subsequently, Mc-
Daniel appeared at the plant and spoke to Plant Su-
perintendent Patterson. She asked for a leave of
absence, and it was granted. Patterson confirms that
McDaniel had departed on a leave of absence.' Kent
Dickson, McDaniel's leadman, was informed by Car-
ol LeBlanc that McDaniel was under a doctor's care.
McDaniel continued to visit her physician for
treatment and, in March 1975, telephoned the Com-
pany and left word that she was physically able to
return to work. She then waited at home for recall.
When McDaniel appeared at the plant on June 11,
1975, to vote in the NLRB election, she was in-
formed for the first time that she had been terminat-
ed.' Inasmuch as the "customary procedure and poli-
cy of the Board on issues of eligibility is that in order
to terminate an employment relationship there must
be a manifestation of the intent to terminate which is
clearly communicated to the other party,"' I find
that McDaniel was an eligible voter as of the estab-
lished eligibility date and on the day of the election.
I therefore recommend that the challenge to her bal-
lot be overruled.
Meyer a leave of absence status However, I find that Meyer had not re-
quested a leave of absence Moreover, I find the mere statement that an
employee can return at any time, so vague and indefinite in nature as to not
constitute a leave of absence See Channel Master Corporation, 114 NLRB
1486, 1489 (1955)
Greenspan Engraving Corp, 137 NLRB 1308, 1309 (1962), Gulf States
Asphalt Company, 106 NLRB 1212, 1214 (1953 ), Reade Manufacturing Com-
pa, 100 NLRB 87, 89 (1952), Bill Heath, Inc, 89 NLRB 1555 (1950)
Patterson contends that McDaniel had asked for a leave of absence for
personal reasons rather than for medical reasons In my observations of
both witnesses and their demeanor, I noted that, while McDaniel appeared
to be an honest, truthful, and forthright witness, Patterson was more vague
and hesitant in his responses Therefore, in resolving any conflicts between
the two witnesses , I credit McDaniel's version over Patterson 's version
wherever they are in conflict
6 The Employer contends that McDaniel was automatically terminated
on December 20, 1974, under established company rules However, this
decision was never communicated to McDaniel , and I so find.
7 N L R B v Staiman Brothers , 466 F 2d 564 (C A 3, 1972); N LR B v
Pacific Gamble Robinson Co, 438 F 2d 112 (C A 9, 1971), Westchester Plas-
tics of Ohio, Inc v N L R B, 401 F 2d 903, 908 (C A 6, 1968), WCAR, Inc,
203 NLRB 1235 (1973 ), Miami Rivet Co, 147 NLRB 470, 483-484 (1964),
Otarion Listener Corp, 124 NLRB 880 (1959)