Koehring Co.

National Labor Relations Board - Board Decisions

Oct 4, 1971

193 N.L.R.B. 513 (N.L.R.B. 1971)

CHAMPION FARM DIV. OF KOEHRING CO. 513
Champion Farm Division of Koehring Company,
Employer-Petitioner and International Union,
United Automobile , Aerospace and Agricultural
Implement Workers of America (UAW). Case
16-RM-419
October 4, 1971
DECISION AND DIRECTION
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
Pursuant to a Stipulation for Certification Upon
Consent Election executed by the parties and ap-
proved by the Regional Director for Region 16 on
May 27, 1970, an election by secret ballot was
conducted in the above case on June 9, 1970. Upon
the conclusion of the election a tally of ballots was
furnished the parties in accordance with the National
Labor Relations Board Rules and Regulations, Series
8, as amended. The tally of ballots shows that 27
ballots were cast, of which 1 1 were against, and 9 were
for, the Union, and 7 were challenged. The challenged
ballots were sufficient in number to affect the
outcome of the election. Thereafter, the Union filed
timely objections to conduct affecting the results of
the election.
In accordance with the Board's Rules and Regula-
tions, the Acting Regional Director conducted an
investigation and thereafter, on November 4, 1970,
issued his Report on Challenged Ballots and Objec-
tions to Election in which he recommended that the
objections be overruled and that challenges to the
ballots of Letizie, Sharpnack, and Flynn be sustained
and that the challenges of Anderson, Collier, Nelson,
and Durkee be overruled. Thereafter, the Union filed
timely exceptions to the Acting Regional Director's
report and a supporting brief Subsequently, the
Board, on January 25, 1971, issued an unpublished
Order directing Hearing on the Union's Objection 1
and the issues pertaining to the seven challenged
ballots.
Following such hearing before Hearing Officer
Thomas P. Sheridan, the Hearing Officer issued his
Report on Objections and Challenges on May 18,
1971, in which he approved the parties' stipulation
agreeing to the withdrawal of the Union's objection
and its challenge to Collier, as well as the parties'
agreement that Anderson was ineligible and that the
challenge to his ballot should be sustained. The
Hearing Officer further recommended that the
challenge to the ballot of Letizie be sustained and that
the challenges to the ballots of Durkee, Flynn,
Nelson , and Sharpnack be overruled . The Employer
thereafter filed exceptions , limited to the eligibility of
Flynn and Sharpnack , predicated on the list of 1971.
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.
The Board has reviewed the rulings of the Hearing
Officer made at the hearing and finds that no
prejudicial error was committed . The rulings are
hereby affirmed . On the entire record in this case, the
Board finds:
1. The Employer- Petitioner is engaged in com-
merce within the meaning of the Act and it will
effectuate the purposes of the Act to assert jurisdic-
tion herein.
2. The Union is a labor organization claiming to
represent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of the employees of the
Employer within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
4. In accordance with the stipulation of the
parties. we find that the following employees consti-
tute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act:
All production and maintenance employees of the
Employer's Koehring Farm Division, Champion
Operations plant , Sand Springs, Oklahoma, ex-
cluding office clerical employees , guards, watch-
men and supervisors , as defined in the Act.
The Board has considered the Hearing Officer's
report, the Employer 's exceptions, and the entire
record in this case and hereby adopts the findings,
conclusions, and recommendations of the Hearing
Officer.' Contrary to our dissenting colleague and in
agreement with the hearing officer, we find that
employees Flynn and Sharpnack had a reasonable
expectancy of future employment on the date of the
election , June 9, 1970. These employees were alleged-
ly discharged by the Employer in violation of Section
8(a)(3). Pursuant to an informal settlement agreement
of May 27, 1970, Flynn was placed 10th and
Sharpnack 14th on a preferential hiring list. The
Employer's next busy season was between January
and April 1971 . We believe Flynn and Sharpnack
could reasonably have expected to be recalled during
this period . While the fact of Flynn's actual recall in
February is not probative of his chances in May,
given his legal right to preferential treatment, normal
I We accept the parties' stipulation that Union's Objection I be Hearing Officer's findings that Floyd Durkee and Terry Nelson are
withdrawn and that Gary Collier is eligible, and John Anderson ineligible, eligible, and Carmine Letizie ineligible, to vote
to vote We also adopt pro forma, in the absence of exceptions thereto, the
193 NLRB No. 83
514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
turnover, and production needs, no great skill in
prophecy is required to fairly predict this result.
Accordingly, we shall direct that the Regional
Director for Region 16 open and count the ballots of
Collier, Durkee, Nelson, Flynn, and Sharpnack.
DIRECTION
It is hereby directed that the Regional Director for
Region 16 shall, pursuant to the Rules and Regula-
tions of the Board, within 10 days from the date of this
Direction, open and count the ballots of Collier,
Durkee, Nelson, Flynn, and Sharpnack.
CHAIRMAN MILLER, dissenting in part:
I dissent from my colleagues' findings that employ-
ees Flynn and Sharpnack were eligible voters. The
Acting Regional Director properly found, in his
original decision, that they had no reasonable
expectancy of recall in the near future as of the
election date since they were number 10 and 14,
respectively, on the welders' seniority recall list, and
the Company's business situation at that time indicat-
ed no probability of a need for more than two welders.
The hearing (which, in my view, was improvidently
directed herein) has adduced no facts requiring a
different decision. The fact that one of the two
employees was recalled 8 months after the election
when six employees with more seniority refused recall
is clearly a fortuitous circumstance which could not
reasonably have been foreseen at the relevant time for
a determination herein. If we are to review eligibility
determinations on the basis of this kind of wisdom
inspired by hindsight, we will need to have Regional
Directors and Board Members with far greater
prophetic talents than I, at least, possess. We are also,
in my view, thus inviting protracted postelection
procedures in all of these proceedings, so that a party
challenging the "reasonable expectancy" ruling of a
Regional Director may have the opportunity to see
whether subsequent unforeseeable events may prove
his determination, however reasonable at the time, to
have inaccurately read the future.