N. Sumergrade and Sons

National Labor Relations Board - Board Decisions

Feb 25, 1959

122 N.L.R.B. 1597 (N.L.R.B. 1959)

N. SUMERGRADE AND SONS 1597
Bernard , Saul and Harry Sumergrade d/b/a N. Sumergrade
and Sons and Greater New York Joint Board , Textile Workers
Union of America , AFL-CIO and Conception Rivera, Peti-
tioners and United Textile Workers of America, Local 229,
AFL-CIO. Cases Nos. 2-RC-9241 and 2-RD-385. February 25,
1959
SECOND SUPPLEMENTAL DECISION AND DIRECTION
Pursuant to a Supplemental Decision, Order, and Direction of
Election issued by the Board on August 27, 1958,1 an election by secret
ballot was conducted on September 26, 1958, under the direction and
supervision of the Regional Director for the Second Region, among
the production and maintenance employees of the Employer's New
York and Jersey City, New Jersey, plants. Following the election
the Regional Director served on the parties a "tally of ballots" which
showed that of 372 ballots cast, 118 were for the Petitioner, Textile
Workers Union of America, AFL-CIO, 78 for the Intervenor, 11
against participating labor organizations, and 165 ballots were
challenged.
As the challenges were sufficient in number to affect the results
of the election, the Regional Director conducted an investigation of
the challenged ballots and on December 15, 1958, issued his report on
challenges in which he recommended that the challenges to 7 ballots
be sustained and 158 ballots be overruled. Thereafter the Employer
filed timely exceptions to the Regional Director's report.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Leedom and Members
Rodgers and Jenkins].
The Board has considered the Regional Director's report and the
Petitioner's exceptions thereto, and upon the entire record in the
case finds :
Group I: Eleven ballots were challenged by the Board agents
because their names were not on the list of eligible voters. The Re-
gional Director's investigation disclosed that Petra Equilan, Felicia
Bonano, Lucy Simonette, Pauline Tores and Theresa Martinez were
hired after the eligibility week ending August 23, 1958, and that
Thomas Weaver and Mary Ramos were supervisors and he recom-
mended that the challenges to their votes be sustained. Clarence
'4flhite, Jose Felipe Aponte, Edith Corbett, and Eva E ason were
found to be regular employees who were out ill or on leave when
the list was prepared. Accordingly, the Regional Director recom-
1121 NLRB 667.
122 NLRB No. 187.
505395-59-vol. 122-102
1598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mended that the challenges to their votes be overruled. As no specific
exceptions were taken to the Regional Director's recommendations
as to the challenges to the ballots in this group, we adopt them.
Group II: The Employer challenged the ballots of 80 employees 2
who were working at its Jersey City plant on a Government sleeping
bag contract on the grounds that they are temporary workers who
will be laid off as soon as the order is filled. The Employer is nor-
mally engaged in the manufacture of cushions, pillows, and bed-
spreads. The work is performed at both the Jersey City and New
York plants and the skills required and working conditions at both
plants are similar. From time to time the Employer has received
Government contracts and additional workers such as the employees
in question at Jersey City, are added to its regular force to complete
such jobs. The record shows that since 1945 the Employer has had
only approximately three other Government contracts. Work on the
present contract began in April and was to be completed by the end
of 1958. No new Government contract is on hand or in prospect.
We disagree with the Regional Director's recommendation that the
challenges to the ballots of the above so-called temporary employees
be overruled, as it appears that as of the date of the election the
employees in question had no reasonable expectation of continued
employment with the Employer after December 31, 1958, or of re-
employment in the immediate future. Under the circumstances in
accordance with established Board policy, we find that they were
temporary employees and exclude them from the unit.' We shall
therefore sustain the Employer's challenges.
Group III: The Employer also challenged the ballots of 74 em-
ployees 4 on the ground that they are seasonal employees who work
from around July to Novelliber each year during the peak production
for the fall and winter trade. These employees are recruited from
local employment agencies and by direct application at the Jersey
City plant. The work performed by the seasonal workers is related
to that performed by the "year round" workers both as to nature of
jobs and products produced. Although the seasonal workers acquire
no seniority, applicants with previous experience are given prefer-
ence. In 1958, for example, at least 15 percent of the seasonal
workers had previously worked for the Employer. Turnover during
the season among these workers is low. On the basis of the uncon-
traverted facts disclosed by the investigation, we are satisfied that
3 See Appendix A (Temporary or Contract workers) attached to the regional Director's
report on challenges which we herein incorporate and make part of this Decision and
Direction.
S See, e.g. , Lloyd it. Fry Roofing Company, 121 NLRB 1433 ; Anderson's Super Service,
Inc., 120 NLRB .583; Personal Products Corporation, 116 NLRB 393, 395; Precision
Sheet Metal, Inc., 115 NLRB 947, 948-949.
6 See Appendix B (Seasonal workers) attached to the Regional Director's report on
challenges which we herein incorporate and make part of this Decision and Direction.
'MATTISON MACHINE WORKS 1599
there is sufficient community of interest between seasonal and non-
seasonal employees as to terms and conditions of employment to
warrant the inclusion of the former group in the unit. Therefore,
in accord with the Regional Director's recommendation we overrule
the challenges to their ballots e
[The Board directed that the Regional Director for the Second
Region shall, within 10 days from the date of this Direction, open
and count the ballots of Clarence White, Jose Felipe Aponte, Edith
Corbett, and Eva Eason and the ballots of those employees listed
in Appendix B (seasonal workers) attached to the Regional Di-
rector's report on challenges and prepare and serve upon the parties
a supplemental tally of ballots.]
6 See, e.g., J. G. Boswell Company, 107 NLRB. 360, 361-362; Utah Canning Company,
100 NLRB 606, 607; Libby, McNeill & Libby, 90 NLRB 279, 280.
Mattison Machine Works and United Automobile , Aircraft &
Agricultural Implement. Workers of America, UAW,-AFL-CYO.
Case No. 13-CA-2784. February26,1959-
DECISION AND ORDER
On August 18, 1958, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceeding , finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending„ that it cease and desist therefrom
and, take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter,' 'the Respondent
filed'exceptions to the Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three
member panel [Chairman Leedom and Members Bean and Jenkins]'.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and: finds that no prejudicial error was committed.'
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions and brief, and the entire record
in the case, and hereby adopts the findings, conclusions , and recom-
mendations of the-Trial Examiner.
l In its answer , the Respondent alleged certain matters to the effect that the Union was
not properly certified by the Board . At the hearing, the General Counsel moved to strike
these allegations and the Charging Party joined in such motion . The Trial Examiner
referred the motion to the ' Board . As the Board has already determined in the earlier
representation proceeding that these allegations did not raise substantial and material
issues, we hereby grant the motion to strike.
122 NLRB No. 189.