Noesting Pin Ticket Co., Inc.

National Labor Relations Board - Board Decisions

Nov 15, 1974

214 N.L.R.B. 987 (N.L.R.B. 1974)

NOESTING PIN TICKET CO., INC.
Noesting Pin Ticket Co., Inc. and Local 810, Steel,
Metals, Alloys and Hardware Fabricators and
Warehousemen, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America. Cases 2-CA-13142,
2-RC-16228, and 2-RC-16364
November 15, 1974
DECISION, ORDER, AND DIRECTION
BY MEMBERS JENKINS, KENNEDY, AND PENELLO
On June 28, 1974, Administrative Law Judge Ben-
jamin B. Lipton issued the attached Decision in this
proceeding. Thereafter, the Employer filed excep-
tions and a supporting brief.
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 record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge with
the following modifications.
The Administrative Law Judge recommended dis-
missal of the complaint in the unfair labor practice
case and of the objections to the election in the repre-
sentation cases.' There were six challenged ballots
which are determinative of the election. He recom-
mended that three of the challenges be sustained and
that two of the challenged employees, Ruth Spacone
and James Broome, be found eligible to vote.' The
challenge to the remaining ballot (Emma Gorman)
was withdrawn at the hearing. The Employer except-
ed to the finding that the challenges to the ballots of
Kreisher and Cummings be sustained and to the fail-
ure to direct the opening and counting of their bal-
lots as well as that of Emma Gorman.
The Administrative Law Judge found that chal-
lenges to the ballots of two employees, namely, Jose-
phine Kreisher and Margaret Cummings, should be
sustained on the ground that they were social securi-
ty annuitants earning no more than the maximum
permitted in conjunction with receiving their social
security benefits and therefore not properly in the
unit. The Employer correctly contends that this find-
ing is contrary to Board precedent.' The Employer
' In the absence of exceptions we, pro forma, adopt the overruling of the
objections.
In the absence of exceptions thereto, we, pro forma, adopt the Adminis-
trative Law Judge's recommendations that we overrule the challenges to the
ballots of Spacone and Broome and sustain the challenge to the ballot of
Mguel Ramos.
The Administrative Law Judge cites The Kostel Corporation, d/b/a Big
987
further contended that Kreisher and Cummings are
regular part-time employees and should be included
in the unit. The facts are not in dispute. Kreisher
worked 3 days a week for 5 hours each day. Cum-
mings worked I or 2 days a week for 5 hours. She
worked most weeks but sometimes was required to
be absent to care for an elderly member of her fam-
ily. On these facts, we find that Kreisher and Cum-
mings were properly within the unit as they were reg-
ular part-time employees, and that the challenges to
their ballots should be overruled.'
The Employer correctly points out that the Ad-
ministrative Law Judge failed in his Decision to note
that the challenge to the ballot of Emma Gorman
had been withdrawn at the hearing. We, therefore,
find that Gorman is eligible to vote, and shall direct
that her ballot be opened and counted by the Re-
gional Director.
ORDER
It is hereby ordered that Cases 2-RC-16228 and
2-RC-16364 be , and they hereby are, severed from
Case 2-CA-13142.
IT IS HEREBY FURTHER ORDERED that the complaint
in Case 2-CA-13142 be, and it hereby is, dismissed
in its entirety.
DIRECTION
It is hereby directed that, as part of the investiga-
tion to ascertain a representative for the purposes of
collective bargaining with the Employer, the Region-
al Director for Region 2 shall, pursuant to the
Board's Rules and Regulations, within 10 days from
the date of this direction, open and count the ballots
of Emma Gorman, Ruth Spacone, James Broome,
Josephine Kreisher, and Margaret Cummings and,
thereafter, prepare and cause to be served on the par-
ties a revised tally of ballots, including therein the
count of said ballots. If the revised tally discloses
Ben Shoe Store , 172 NLRB 1523 (1968 ), and Marlene Industries Corporation,
171 NLRB 848 (1968), which held that employees who limit their hours in
order to receive their full social security benefits should be excluded from
the unit . However, in Holiday Inns of America, Inc., d/b/a Holiday Inn of
Oak Ridge, Tennessee, 176 NLRB 939 at 941 (1969), the Board held that
employees who are otherwise within the appropriate unit should not hence-
forth be excluded and found ineligible to participate in a Board-conducted
election solely for the reason that they limit their working time and earnings
so as not to decrease their social security annuity, and specifically overruled
all earlier cases to the contrary.
Member Jenkins did not participate in Holiday Inns of America, Inc.,
supra, and he does not subscribe to the principle enunciated therein with
respect to the voting eligibility of social security annuitants who purposely
limit their working time and earnings . See Marie Phillips, Inc., 178 NLRB
340. 342, fn. 8 (1969). Accordingly, Member Jenkins would sustain the chal-
lenges to the ballots of the two social security annuitants , Kreisher and
Cummings, and direct that their ballots not be counted.
°Grimaldi Buick -Opel, Inc., 202 NLRB 436 (1973); Columbia Music &
Electronics, Inc., 196 NLRB 388, 389 (1972).
214 NLRB No. 153
988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that a majority of the votes have been cast for, or
against, the Petitioner, the Regional Director shall
issue the appropriate certification in accordance with
the Board's Rules and Regulations.
DECISION
STATEMENT OF THE CASE
BENJAMIN B. LIPTON, Administrative Law Judge: Case 2-
CA-13142 involves a charge filed by the Union on October
30, 1973, and a complaint thereon issued by the General
Counsel on January 30, 1974,1 alleging that Respondent
terminated William LoRusso in violation of Section 8(a)(1)
and (3) of the Act. Respondent generally denies the alleged
violation.
In Case 2-RC-16228, the Union filed a certification pe-
tition on July 27 for a production and maintenance unit
confined to the Employer's plant in the Bronx, New York.
A hearing on this petition was closed on August 20. In
Case 2-RC-16364 (as renumbered), the Union filed a peti-
tion on September 7 for a production and maintenance
unit at the Employer's plant in Beacon, New York. On
November 2, by order of the Regional Director, the two
petitions were consolidated and the record of the prior
hearing reopened; on November 21, a consolidated hear-
ing was held in these cases. On January 4, the Regional
Director issued a Decision and Direction of Election, inter
alia, finding as appropriate a single unit of the Bronx and
Beacon plants.' At the election, held on January 31, the
results show 46 votes for the Union, 46 votes against the
Union, with 6 challenged ballots. Timely objections, alleg-
ing eight separate grounds, were filed by the Union. On
February 19, the Regional Director issued a Supplemental
Decision and Notice of Hearing, in which he overruled
Objection 6,3 noted the withdrawal of Objection 7, and
found that the remaining objections and the six challenges
raised substantial issues of fact which could best be re-
solved by record testimony. In addition, the Regional Di-
rector consolidated Case 2-CA-13142, which is coexten-
sive with Objection 3, and ordered a hearing on the com-
plaint and representation issues.
On March 5 and 6, a hearing was held before me in New
York, New York, in which all parties participated and were
afforded full opportunity to present relevant evidence. At
the close, the General Counsel argued briefly on the re-
cord. Posthearing briefs were filed by the Union and the
Respondent, and have been duly considered.
Upon the entire record in the cases, and from my obser-
vation of the demeanor of the witnesses , I make the follow-
ing:
1 All dates are sequentially in 1973 and 1974, unless otherwise specified
2 Consisting of all production and maintenance employees, plant clericals,
printing employees, drivers, shipping and receiving employees, and working
foremen, excluding office clerical employees, guards, and supervisors.
3 Upon a request for review, the Board on March 5 remanded this objec-
tion to the Regional Director to be included within the sccpe of the hearing
ordered
4 Presumably President George F Griffiths, Jr
FINDINGS OF FACT
1. JURISDICTION AND LABOR ORGANIZATION
Respondent is engaged in the manufacture, sale, and dis-
tribution of paper clips, fasteners, needles, and other relat-
ed metallic office products. It maintains its principal office
and plant in the Bronx, New York, operates a plant in
Beacon, New York, and has other places of business in
Illinois. The Bronx and Beacon plants are the sole facilities
involved herein. During the year preceding issuance of the
complaint, Respondent had a direct outflow in interstate
commerce of products from its New York plants valued in
excess of $50,000. Jurisdiction has already been asserted in
the representation cases. As admitted, I find that Respon-
dent is an employer engaged in commerce, and that the
Union is a labor organization, within the meaning of the
Act.
I1. THE ALLEGED UNFAIR LABOR PRACTICES
Alleged Termination of LoRusso
The General Counsel's complaint asserts that Respon-
dent "laid off" LoRusso, on October 19, because he joined
and assisted the Union and engaged in other concerted
activity, thereby violating Section 8(a)(1) and (3).
In the morning, on October 17, LoRusso was inter-
viewed for employment by Leon Zanko, plant superinten-
dent at the Bronx facility. LoRusso testified that his moth-
er, an employee of Respondent, had advised him that she
had spoken with the "boss," Mr. Griffiths,4 to arrange the
interview. Zanko ascertained that LoRusso was 17 years
old and would attend school 2 days a week. Since LoRusso
was underage for work in the factory, Zanko consulted
with Griffiths, and they decided that LoRusso would be
hired as a shipping clerk. He worked in such capacity for
the remainder of the day on October 17, and from 8:25
a.m. until 12:37 p.m. on October 18, when he was permit-
ted to leave to take a school examination. LoRusso pur-
portedly was unaware of the starting time at 7:30 a.m. As
testified by LoRusso, on October 18, Zanko told him "to
be here the next time on time otherwise don't bother com-
ing in ." The foregoing is set forth principally as informa-
tive background. As raised by the parties, the immediate
issues do not concern LoRusso's lateness in reporting to
work. The critical events took place following the Union's
commencement of a strike at Respondent's Bronx plant in
the early morning on Friday, October 19.
LoRusso gave the testimony in substance: He arrived
early on Friday, about 7:10 a.m., and stood around talking
to union representatives. He agreed to sign a union card
and "turned his back" to obscure this activity. Thereafter,
he entered the plant and punched his timecard-about
7 35 a.m. (The card itself shows 7 47 a.m.) In the plant,
there were no lights, and he saw no people working. He
stood there for a "couple of minutes" in the shipping de-
partment, when Zanko approached him, and inquired,
"what are you doing here?" He responded that he came "to
NOESTING PIN TICKET CO., INC.
report for work at 7:30 like you said," and then asked,
"why is there nobody inside?" While denying that he knew
"what's going on outside," he told Zanko he had heard
rumors of "a strike or something" the day before but "did
not take that into consideration." Then Zanko told him,
, .. don't you know they are holding a strike outside.5
And I said no. I said I don't know what is going on. So
he told me, he said, `aren't you going to go out there
and join them?' And I said, `No, I came to report to
work.' He said, `Go outside and see what the union is
going to do for you, too.' And I walked out the door.
LoRusso then proceeded across the street and spoke with
union representatives. One of them asked him why he was
"out of work so soon" and he related "what had hap-
pened." 6 On October 30, the Union filed a charge alleging
that LoRusso was discharged for signing a membership ap-
plication. The complaint issued on January 30, 1 day be-
fore the election.
Respondent's position is that Zanko had no conversa-
tion at all with LoRusso on October 19, as described be-
low. Other related factors are as follows: The strike is still
in progress. Respondent has continuously carried LoRusso
on its payroll as an employee. During the weeks preceding
the election LoRusso received "a lot" of campaign letters
from Respondent urging his vote against the Union. He
voted in the election on January 31 without challenge.
Zanko testified: At 6:30 a.m. on October 19, he received
a phone call at home from the relief watchman, Walter
Wrublewski, indicating there was strike activity in front of
the plant. He was therefore "somewhat in a hurry to get to
work." Upon his arrival, which he estimated at 7:15 a.m.,
he encountered a large congregation at the plant entrance.
An exchange took place with union representatives. Lovell
suggested to him that he make no attempt to coax any
employees-"that those who want to come in would come
in and those who don't want to come in won't." Following
a remark by Zanko that the front stairway should not be
blocked, another union agent embarked upon a long and
heated argument. Upon entering the plant, about 7:30
a.m., he proceeded to the elevator and Wrublewski took
him down to the basement. His purpose was to provide
heat for the plant. Because the pump was out of service, he
had to start up the boiler manually-all of which con-
sumed 35-40 minutes. Thomas Edwards, the maintenance
foreman, operated the elevator to bring him to the first
floor, about 8:05 or 8:10 a.m. He (Zanko) then looked out
the window near the front door, and returned to the time-
clock to examine all the timecards. Edwards told him that
LoRusso had punched his card but did not work. Later
that morning he checked through the plant and found
there were employees working in each of the departments,
except shipping. He did not see LoRusso that morning un-
5 In LoRusso's later testimony, Zanko also said, "These idiots are outside
pulling a strike "
6 Testimony was not taken as to the details of LoRusso's ostensible con-
versation with Zanko as reported to the Union Union Agent Joseph Lovell
testified that, "after 8.00 o-clock," on October 19, LoRusso came out and
told him what had occurred inside the plant between himself and Zanko
989
til about 10 a.m., when he observed him among the em-
ployees outside.
Wrublewski testified that on October 19 he first saw
Zanko in the lobby on the first floor, and that prior thereto
he had taken employees in the elevator to their place of
work "upstairs"; e.g., the second and third floors. He could
not recall the precise time he took Zanko to the basement;
he did not bring Zanko back up before he checked out at
7:45 a.m.
Foreman Edwards testified that on October 19 he
punched in about 7:20 a.m. From 7:25 to shortly after 8
a.m., he remained in the lobby near the street door-look-
ing out the window and at times conversing through the
open door with the union people outside. About 7:45 a.m.,
LoRusso entered the plant; they said good morning to
each other; LoRusso went to the timeclock and punched
in; about 5 minutes later, he came out and asked "where is
everybody?" Edwards replied that he did not know wheth-
er it was a strike or walkout, and that "all those f- fools
are out there." LoRusso then went out the door. Edwards
first saw Zanko a little after 8 a.m. Zanko asked him if
anyone showed up. He replied that one came in, LoRusso,
who "punched in and walked away again." They went to
the timeclock and looked at LoRusso's card.
In his pretrial affidavit dated November 27, Zanko stat-
ed, inter aha: (a) About 8 a.m. on October 19, he reviewed
all the timecards to see which employees were present. (b)
About 8:15 a.m. that day, he observed LoRusso outside at
the picket line. (c) He had hired LoRusso the day before
the strike, and never spoke to him after the date of his hire.
(d) At no time did he reprimand LoRusso for coming in
late or tell him to leave the plant to get out on the strike
line. (e) LoRusso is still carried on the company rolls as an
employee and has not been notified of any termination.7
Conclusions Regarding LoRusso
The issue must turn on the credibility of the directly
conflicting versions between LoRusso and Zanko, and the
circumstantial testimony of Edwards. There are serious
questions of plausibility on both sides. As plant superinten-
dent, having encountered a strike on the morning of Octo-
ber 19, Zanko deemed it a matter of first importance in
devoting his time to start up the boiler and obscure himself
for 35 to 40 minutes in the basement. Still, this was ajudg-
ment factor. And some corroboration is provided by Ed-
wards, who did not see Zanko on the main floor from 7:25
until about 8:05 a.m. I am more concerned with LoRusso,
judging him as a witness . His testimony of his conversation
with Zanko appears to me highly improbable and con-
trived. It was obvious that a strike was in progress, as was
certainly known by LoRusso. Yet, in his account, he per-
sisted in denying to Zanko that he knew what was going on
outside. And he said he came "to report to work at 7:30
like you said," although he had clocked in at 7:47 and 5 or
Zanko testified that , shortly after his affidavit was taken by an agent of
General Counsel, he notified this agent of an error, e g, in failing to account
for one of the days, October 18 , the agent subsequently indicated it was not
important I do not consider that the inconsistencies between Zanko's testi-
mony and his affidavit are of sufficient substance to warrant his impeach-
ment as a witness , as General Counsel contends
990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
10 minutes more must have elapsed . Further, it seems un-
likely, in the face of the strike and Respondent's need of
manpower, that Zanko would accost LoRusso with the
question-"what are you doing here? " LoRusso made no
mention of Edwards; and no rebuttal of Edwards was at-
tempted.8 It does not logically reconcile with LoRusso's
version that, when departing the plant after being sent out
by Zanko, he would ask Edwards-"where is everybody? "
The reasons and motivations involved can only be specu-
lated. That very morning LoRusso had signed a union card
and, it may be assumed, was in sympathy with the strike.
Nevertheless, he entered the plant, punched a card, and
apparently intended to work. I would not rule out an hy-
pothesis that, finding no one at work, he left the plant and
decided to stay with the strikers .9 The theory upon which
the complaint appears to be predicated is that Respondent
must have been made aware of LoRusso's signing a union
card and conversing with union representatives during the
period before he entered the plant. I cannot reasonably
draw this inference. Contrary to the allegations of General
Counsel and the Union, it is clear, even from the testimony
of LoRusso, that he was not discharged or laid off.10 In-
deed, he was continuously carried as an employee, and
received campaign communications from Respondent, im-
plying that he was considered a current employee eligible
to vote. In all these circumstances, it is difficult to conceive
why LoRusso, a part-time employee of 2 days, would be
singled out for reprisal as a union activist."
On the total record, I am constrained to credit Zanko.
Therefore, I conclude that General Counsel has not sus-
tained the burden of the complaint.
III. REPRESENTATION QUESTIONS
A. The Objections
Objections I and 2 are admittedly redundant. In the first,
it is alleged that the Excelsior12 eligibility list submitted by
the Employer was incomplete in that about 19 employees,
or about 20 percent of the eligible complement, were omit-
ted from the list. In the second, the Employer is alleged to
have unilaterally determined the composition of the bar-
gaining unit. At the hearing, the Union sharply reduced the
number of alleged omissions to Ramos, Broome, and Mon-
tanez. The latter was shown to have been discharged be-
fore the election, and no issue has been raised concerning
this discharge. Ramos and Broome are the subject of dis-
puted challenges herein. In the Union's brief, the conten-
8 I am not disposed to discredit Edwards' testimony on the ground that he
was biased, as urged by General Counsel For that matter, other witnesses,
including LoRusso , were biased as well
9 The record does not reflect whether LoRusso appeared on the picket
line after October 19 And , while not directly material , it does not show the
kind of job LoRusso's mother held as an employee, or whether she was
involved in the strike
10 Even if LoRusso were credited, the basis for violation would be, at best,
that Respondent sent him out to join the strikers, against his will, and thus
interfered with his right to refrain from engaging in concerted activity
it On General Counsel's evidence, a valid ground for discharge was ap-
parently available to Respondent in view of LoRusso's repeated lateness on
October 19 after having been warned the previous day
12 Excelsior Underwear, Inc, 156 NLRB 1236 (1966)
tion is added13 that the Employer incorrectly included on
the list the names of Spacone, Kreisher, and Cummings,
who were challenged by the Union at the election (and are
considered with the other challenges, infra ). I find that the
Employer has not been grossly negligent or acted in bad
faith in supplying names and addresses of the great bulk of
the eligible employees, and that it has adequately complied
with the Excelsior rule.14 Accordingly, these objections are
overruled.
Objection 3 involves the alleged discrimination against
LoRusso and is overruled in conformance with the find-
ings, supra.
Objection 4
It is alleged that the Employer made a speech to assem-
bled employees at the Bronx and Beacon plants, that it
mailed a copy to each employee, and that the speech con-
tained false and misleading statements as to which the
Union was not afforded adequate time to reply. Specifical-
ly, it is asserted that false or misleading aspects of the
speech are implied in the following: that the union dues are
$11.50 per month; that a "Union shop" requires an em-
ployee to pay dues; that the Employer will not grant the
employees greater benefits than those they presently enjoy;
and that a strike would ensue if the Union does not like the
Employer's answers to its proposals.
Only the allegation of inadequate time to reply was at-
tempted to be litigated at the hearing, and is argued in the
Union's brief. In the Hollywood Ceramics case,) the Board
restated the rule, viz:
We believe that an election should be set aside only
where there has been a misrepresentation or other sim-
ilar campaign trickery, which involves a substantial
departure from the truth, at a time which prevents the
other party or parties from making an effective reply,
so that the misrepresentation, whether deliberate or
not, may reasonably be expected to have a significant
impact on the election.
The speech was read to the employees by President Grif-
fiths at the Bronx plant on January 28, and at the Beacon
plant on January 29. Copies of the speech were mailed to
all employees about 5 p.m., January 28, at a post office in
the Bronx. As scheduled, the election took place on Janu-
ary 31, at 9:30 a.m. in the Beacon plant, and at 1 p.m. in
the Bronx plant. Thus, the speeches were in compliance
with the 24-hour election rule of Peerless Plywood 16 The
specific contention is that the employees did not receive
the mailed copies of the speech in sufficient time before the
13 While Montanez is no longer mentioned
14 E g, General Time Corporation, Westclox Division , 195 NLRB 343
(1972)
i5 Hollywood Ceramics Company, Inc, 140 NLRB 221, 224 (1962)
6 Peerless Plywood Company, 107 NLRB 427 (1953) The rule prohibits
employers and union from making election speeches on company time to
assembled employees within 24 hours before the scheduled time for con-
ducting an election It does not preclude an employer from making , without
granting the union an opportunity to reply, campaign speeches on company
time prior to the 24-hour period, provided of course that such speeches are
not otherwise violative of Sec 8(a)(I)
NOESTING PIN TICKET CO., INC.
election as to afford the Union adequate opportunity to
make an effective response. The essential test involves the
speech itself not the mailed copies, although the existence
of the strike should be taken into account. Nevertheless,
with the speeches delivered at the two plants respectively
on January 28 and 29, it is realistically probable that the
Union became aware of them shortly after they were made.
In any case, it is reasonable to infer that copies were re-
ceived by employees, including strikers, in the normal
course of the mail on January 29,17 thus allowing sufficient
time for the Union to reply if it so desired. This finding
alone should dispose of the objection based on Hollywood
Ceramics, supra.
In his speech, Griffiths stated that "some union mem-
bers in New York City pay $11.50 a month," and "if the
union wins , I really don't think that your union dues will
stay at $8.00 for long." I do not perceive the alleged impli-
cation that the union dues for these employees are $11.50
per month. And there is no evidence to show that the
Employer's statement is false or misleading.
Griffiths stated, "If the Union wins it will probably try
to put a union shop clause into any contract. In a union
shop, even those of you who don't want the union will have
to join it after 30 days and pay union dues." Apart from
technical legal distinctions,18 this statement is not mislead-
ing beyond the ordinary comprehension of employees re-
garding common practices in collective-bargaining negoti-
ations and contracts.
The speech also stated:
Bargaining is a two-way street. Nothing goes in a con-
tract unless both parties agree. . . If the Teamsters
win the election here, NOESTING will of course bar-
gain in good faith with them. But nothing in the world
requires us to grant benefits over and above those you
presently have. . . . Now, if the Teamsters do not like
our answers to their proposals, they might strike again.
The Union's brief does not discuss these elements of its
objection and cites no cases. In the general context, I find
no misrepresentation or substantial departure from truth.
It was not said that, while bargaining in good faith, the
Employer will not agree to improve upon existing benefits.
Nor is it asserted or implied that a strike would inevitably
result.
As a particular factor, I conclude that the speech was not
made in an atmosphere of coercion. For all the foregoing
reasons, this objection is overruled.
17 Elsewhere in the record it is noted that another mailing from the Bronx
plant, to James Broome , was received in I day Griffiths testified that, when
he gave the speech at Beacon on January 29, some employees told him they
had already received mailed copies . It is unexplained how they knew of their
mail after reporting to work in the early morning This hearsay by Griffiths
does not establish the fact of such receipt and no reliance is placed thereon
18 Under a lawful union-shop contract, it is sufficient that an employee
tenders an amount equal to union dues , without having to obtain full union
membership as a condition of employment E g, Hershey Foods Corporation,
207 NLRB 897 (1973), Union Starch & Refining Co, 87 NLRB 779 (1949),
enfd 186 F 2d 1008 (C A 7, 1951), cert denied 342 U S 815 (1951),
N L R B v General Motors Corp, 373 U.S 734, 742 (1963) ("' Membership'
as a condition of employment is whittled down to its financial core " )
991
Objection 5
It is alleged that the Employer granted wage increases to
the nonstriking employees shortly before the scheduled elec-
tion . Testimony, adduced solely by the Employer's witness-
es, indicates that general wage increases were given to the
nonstrikers and strikers alike in November 1973. It was
also testified that the "same format" was used in granting
annual across-the-board raises in November 1971 and No-
vember 1972. In 1972, the raises were 10 cents an hour to
the general employees and 15 cents an hour to department
heads or foremen;19 and in 1973, they were increased by 5
cents in each category. The difference was predicated upon
the cost-of-living factor. There were relatively few excep-
tions in each year, e.g., based upon merit in special cases
"to a very small degree," and the existence of a "schedule"
or program involving certain new employees who are given
periodic increases. On this record, I find that the indicated
exceptions, in the discretion of the Employer, to the grant-
ing of fixed amounts of raises do not significantly affect
the essential pattern of across-the-board increases occur-
ring about the same time each year. Since the November
1973 increases were implemented after the petitions were
filed,20 the burden was on the Employer to establish that it
acted for economic reasons wholly unrelated to the pend-
ing election proceeding.21 Here, the Employer has satisfied
such burden by showing that the increases in question con-
formed with its preexisting policy. In view of all the cir-
cumstances present, I conclude that these increases were
not intended, and could not be reasonably construed, to
influence the employees' free choice in the election.22
Therefore, this objection is overruled.
Objection 6
It is alleged that the Regional Director erroneously de-
nied the Union's request that, in view of the strike, the
elections not be conducted at the Bronx and Beacon
plants, where they actually took place. In the investigation
of this objection the Union contended before the Regional
Director that the polling arrangements at the Employer's
premises required striking employees to wait outside the
plants in cold weather, and improperly required them to
cross the picket line in order to vote. In his Supplemental
Decision, the Regional Director overruled the objection,
upon finding no evidence that the Union was prejudiced or
that the election was impaired, citing Korber Hats, Inc., 122
NLRB 1000 (1959), and Coffey's Transfer Company, 115
NLRB 888, 889 (1956)?3 The Union filed with the Board a
request for review, in which it stated among other things,
19 Included in the unit
20 it is noted that , in this case , substantial time lags existed from the dates
of the petitions (July 27 and September 7) to the Regional Director's deci-
sion ordering the election (January 4), and to the holding of the election
(January 31)
21 Marshall Durbin and Company of Jasper, Inc, 179 NLRB 1027 (1969)
22 E g, Uarco Incorporated, 169 NLRB 1153 (1968)
23 The Korber case held that the mere location of a polling place behind a
picket line is not of itself prejudicial to the holding of a fair election, and
that the setting of the place of election is within the Regional Director's
discretion . No cases have been cited in which the Board has subsequently
departed from the holdings in Korber, and I have found none
992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that "substantial numbers failed to vote," and it had reason
to believe that some eligible voters "left the line and failed
to vote." Thereafter, the Board concluded that the issues
raised "can best be resolved on the basis of record testimo-
ny," and remanded this objection to be included within the
scope of the instant hearing. At the hearing, the Union
presented no evidence to show that any employees did not
vote because of the polling locations; and its witness,
Union Agent Lovell, testified he knew of no such individu-
al who failed to vote. The record is not clear as to the
precise eligibility complement, although the parties stipu-
lated to an estimate of 100 such employees in the unit 24
The record discloses only one eligible employee, Wrublew-
ski, the relief watchman, who did not vote-without exp-
loring the reason. Particularly considering the currency of
the strike, it is hardly conceivable in an election of this size
that, under any other circumstances, a greater number of
voters would turn out at the polls. Clearly, it has not been
shown, because of the polling locations, that the election
was impaired, or that the Union was prejudiced, or that the
Regional Director abused his discretion. It is not necessary
further to discuss the particular reasons (which I have con-
sidered) in support of the respective positions regarding the
places of voting, as argued on both sides at the preelection
conference and in the briefs relating to the Union's objec-
tion. Accordingly, Objection 6 is overruled.
Objection 8
It is asserted that the notice of election failed to include
the striker eligibility language as "required" in Section
11314 of the Board's Field Manual.25 The Regional
Director's Decision and Direction of Election, on January
4, contains the appropriate language indicating eligibility
of the strikers.26 There is no showing that this inadvertent
omission in the election notice was called to the attention
of the Regional agents or was objected to before or during
the election. It is not contended, or evidenced, that any
eligible striker was deterred from voting by reason of such
omission.21 As I find this procedural oversight had no ef-
fect upon the election or caused any prejudice to the
Union, the instant objection is overruled.
B. The Challenges
Ruth Spacone was challenged by the Union on the
ground that she is an office clerical employee excluded
24 As earlier described, the tally of ballots shows 92 employees voted with-
out challenge, and 6 voted under challenge One such challenge, that of
Emma Gorman, was withdrawn by the Union at the hearing
25 Sec 11314 of the Field Manual, describing internal procedures for
Board personnel in representation cases, provides "In cases where strikes
are in progress at the time of the election , the Region shall insert an instruc-
tion on striker eligibility in the notice of election "
26 "Also eligible are employees engaged in an economic strike which com-
menced less than 12 months before the election date and retained their
status as such during the eligibility period
27 As already described, the voter turnout at the election was virtually
complete-with the exception of Wrublewski, a witness of the Employer
The Union does not allege that Wrublewski was a striker or that his failure
to vote is attributable in any way to the absence of striker eligibility lan-
guage in the election notice
from the unit. As appears, her duties embrace a variety of
clerical and other functions at the smaller Beacon plant. In
the Decision and Direction of Election, supra, the multi-
plant unit held appropriate includes plant clericals and
drivers, as sought by the Union, and the finding from the
hearing record is specifically made (in fn. 4) that "the driv-
er and the plant clerical are located at the Beacon plant."
No appeal was taken by the Union from such finding, and
the election was conducted on this basis. Only Spacone can
fill the description of a single plant clerical at Beacon.
Therefore, as I hold, the Union is precluded at this point
from contesting the inclusion of Spacone in the unit. More-
over, the record here confirms that Spacone's functions are
more closely related to those customarily considered in de-
cisions as plant clerical. Employees at company headquar-
ters in the Bronx perform virtually all the office clerical
operations for both plants 28 Spacone commenced work 4
years ago at the Beacon plant as a packer in the factory.
After 1 month, she began doing production reports for a
small part of the day. This type of work expanded, and at
a later time she occupied a desk in an enclosed room with
the plant manager, William A. Griffiths. She is not his sec-
retary and does no correspondence or general bookkeep-
ing. However, she opens and sorts the mail, makes up the
timecards, and answers the phone, which is a single line for
the entire plant. The Beacon plant consists of some 20 fac-
tory employees, plus the machine shop, Griffiths, and Spa-
cone. A substantial portion of her time, several times a day,
is spent on the factory floor gathering production and
stock data. The extent of her typing, within the enclosed
office, essentially pertains to the maintenance of such re-
cords. Among other miscellaneous duties, she checks truck
deliveries outside the plant, and operates a wire testing in-
strument concerning which she keeps records. On rare oc-
casions, for part of the day, she fills in for an absent facto-
ry worker. Her working conditions and benefits, as well as
her rate of pay, are substantially similar to those of the
production employees. Although her timecard (not in evi-
dence) indicates a classification of "Office," this cannot be
determinative of the issue at hand. I conclude on this re-
cord that Spacone should be treated as a plant clerical and,
accordingly, overrule the Union's challenge.
Josephine Kreisher and Margaret Cummings were former
full-time employees of the Employer, and for a year prior
to the election were social security annuitants working on a
part-time basis. Kreisher works 3 days a week for 5 hours
each day. Cummings works 1 or 2 days a week for 5 hours
a day; many weeks she is out all week; and she calls the
Employer when she wants to work. Since Kreisher and
Cummings are working on the basis of earning no more
than the maximum permitted in conjunction with their so-
cial security benefits, they are considered as excluded from
the unit.29 Accordingly, their challenges are sustained.
Miguel Ramos was a striker involved in an altercation on
the picket line. He was discharged allegedly for attacking
another employee, and a letter dated October 30 was
mailed by the Employer to the address appearing in Ra-
28 In the Decision and Direction of Election, it is stated that "all clerical
duties are performed for both plants by the clerical staff at the Bronx
29 E g, The Kostel Corporation, d/b/a Big Ben Shoe Store, 172 NLRB 1523
(1968), Marlene Industries Corp, 171 NLRB 848, 854 (1968)
NOESTING PIN TICKET CO., INC. 993
mos' personnel file. Plant Manager Zanko testified he gave
a copy of this letter to Ramos while Ramos was in the
plant on January 3. Ramos denies receipt of the letter by
mail or a copy on January 3. The Union' s contention, in
substance , is that Ramos was not notified of his discharge
and was therefore still an eligible employee at the time of
the election. The true test is not the notice but the validity
of the discharge , which is not raised in issue .30 In any
event, I find that Ramos did receive the notice on January
3. His challenge is sustained.
James Broome was a full-time employee of the Employer
for about 4 years. Broome had told President Griffiths
that, when the strike commenced on October 19, he went
to the "Welfare Department" to seek financial aid, and
thereafter became involved in a special program called
"WREP." 31 It appears that Broome worked on the job for
a major portion of the time from November 25 through
December 15. About December 20, he had a conversation
in the plant with Griffiths. He said he was going to give up
the "WREP" program and was "coming back to work" as
a "steady worker" after Christmas. However, as he testi-
fied, Broome decided instead to join the strikers. In "the
latter part of December after the 28th" and during the en-
tire month of January, he was at or near the ticket line
every day after 1 p.m., except on the weekend. 2 Griffiths
testified that on December 27, not hearing from Broome,
he sent Maintenance Foreman Edwards to Broome's home
to request that Broome contact the Employer by phone or
in person. Broome was not there, but he heard of this visit
from his wife. He testified, without contradiction, that he
spoke with Edwards several times during the course of his
activities in the vicinity of the picket line in January. Dated
January 9, a registered letter was mailed to Broome from
Griffiths, stating in part as follows:
On December 20 you will probably recollect you came
to see the writer and spoke to me at my desk in the
main office.
You indicated you were disillusioned with the `WREP'
program which you had started through the Welfare
Department and that you would come back to work
after Christmas, working full time again, which is what
Noesting wanted and we understood you wanted.
We have not heard from you since-you have not
shown up for work once-you have not contacted
your foreman-and not hearing from you, on Decem-
ber 27 we sent our Tommy Edwards to visit your
home. He spoke to your wife who advised she did not
know where you were and she said she would advise
you to contact Noesting either by phone or in person.
30 There is no indication that an unfair labor practice charge was filed
3i The nature of this program is not fully clarified
32 He did not carry a picket sign , there were not enough signs for all the
participants He spent much of the time in a nearby restaurant , where strik-
ers congregated , and some of the time outside with the picketers
Not having heard from you since, we presume you are
no longer interested in working for Noesting and we
are removing your name from our records , which we
regret having to do.
Broome testified , without indicating dates, he received sev-
eral letters from the Employer but "didn't take the time to
read them because it was about the union ." At the election
on January 31, Broome's ballot was challenged by the
Board agent as his name did not appear on the eligibility
list submitted by the Employer. I find that Broome was a
striker, having appeared with other strikers in front of the
plant continuously from latter December until the election.
As a striker, he was entitled to the Act's protection even if
he did not himself carry a picket sign. Through Foreman
Edwards, at least, the Employer was aware of Broome's
striker activities in January. It may be assumed that
Broome literally received Griffiths' January 9 letter, al-
though this fact is of little consequence . The issue does not
turn on whether Broome received such notice. He was not
committed to cross the picket line to come to work, despite
his earlier statement to Griffiths, and was not bound to
respond to Edwards' purported message left with Broome's
wife, nor to the letter of January 9. The letter, supra, merely
states that the Employer presumes Broome was no longer
interested in working and that it is therefore removing his
name from the records. The ostensible presumption was
unwarranted. Broome was not discharged; certainly no
valid cause is shown from the essential facts, which are
evident. Even if the letter indicated in haec verba that
Broome was discharged, the effect would be the same.33 As
I find that Broome had the protected status of a striker at
the time of the election, he was eligible to vote under the
terms of the Act and the election procedures. The chal-
lenge is accordingly overruled.
Upon the foregoing findings of fact, and upon the entire
record in the cases, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The allegations of the complaint that Respondent laid
off William LoRusso in violation of Section 8(a)(1) and (3)
of the Act are not sustained.
4 All the Union's objections to the election conducted
on January 31, 1974, are overruled.
5. The challenges to the ballot cast in the election by
Spacone and Broome are overruled, and those cast by Kre-
isher, Cummings, and Ramos are sustained.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
33 Such evidence would provide a colorable basis for an unfair labor prac-
tice charge before or after the election
994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER 34
The complaint is dismissed in its entirety.
Further, it is ordered that Cases 2-RC-16228 and 2-
RC-16364 be severed from this consolidated proceeding
and remanded to the Regional Director for appropriate
disposition in opening and counting the challenged ballots
of Ruth Spacone and James Broome.
34 In the event no exceptions are filed as provided by Sec . 102 46 of the 102 48 of the Rules and Regulations , be adopted by the Board and become
Rules and Regulations of the National Labor Relations Board, the findings, its findings , conclusions , and Order , and all objections thereto shall be
conclusions , and recommended Order herein shall, as provided in Sec deemed waived for all purposes