Nordam, Inc.Download PDFNational Labor Relations Board - Board DecisionsDec 5, 1968173 N.L.R.B. 1153 (N.L.R.B. 1968) Copy Citation NORDAM, INC. Nordam, Inc. and International Union, United Auto- mobile, Aerospace and Agricultural Implement Workers (UAW), Petitioner. Case 16-RC-4721. December 5, 1968 SUPPLEMENTAL DECISION AND CERTIFICATION OF REPRESENTATIVE By MEMBERS FANNING, JENKINS, AND ZAGORIA Pursuant to a Stipulation for Certification upon Consent Election, approved by the Regional Director for Region 16, an election by secret ballot was conducted on September 28, 1967, under his direc- tion and supervision in the unit found appropriate. At the conclusion of the election, the parties were furnished a tally of ballots which showed that of approximately 34 eligible voters, 25 cast ballots, of which 13 were for, and 9 against the Petitioner, and 3 were challenged. The challenged ballots were insuffi- cient in number to affect the results of the election. Thereafter, the Employer filed timely objections to conduct affecting the results of the election. In accordance with the Rules and Regulations of the National Labor Relations Board, the Regional Director conducted an investigation of the objections and, on December 7, 1967, issued and duly served on the parties his Report on Objections in which he recommended that the election held in the above- entitled proceeding be set aside and a new election directed. The Petitioner filed timely exceptions to the report and a brief, and the Employer filed an answering brief to the Petitioner's exceptions and brief On April 19, 1968, the National Labor Rela- tions Board adopted the Regional Director's Report with respect to Objections 4, 5, 6, 7, and 8. With respect to the other objections, the Regional Director found, in substance, that a possibility existed that certain employees who cast ballots without challenge as to their eligibility may have been permanently laid off before the election and that a second election should therefore be conducted. In so recommending, he took note of the fact that the Employer's objections were in the nature of postelec- tion challenges, but cited certain special circum- stances as grounds for not applying the Board's rule against consideration of such challenges in the guise of objections. On April 19, 1968, the Board issued a Decision and Order Directing Hearing in order to determine if there is a possibility that ineligible persons may have voted, thus affecting the outcome of the election, and 1 In so doing the Hearing Officer relied on the Board 's rule that it does not entertain postelection challenges as a requirement to further the purposes of the Act even though the Board under the unique circumstances of this case found such argument unpersuasive . We do not adopt his findings and rulings on that issue, and confine our decision to 1153 directed the Regional Director for Region 16 to designate a Hearing Officer, for the purpose of permitting the Employer to identify those voters whose eligibility to vote it has challenged, and for the further purpose of receiving evidence on the issued raised respecting the employment status of the identified challenged voters as of the date of the election. Pursuant to the Board's Direction, a hearing was held on May 16, 1968, before Hearing Officer Billy M. Gibson, concerning the above issues, and there- after, on June 7, 1968, the Hearing Officer issued and served on the parties his Report on Objections. In his report, the Hearing Officer found that those voters who had been laid off, but voted without challenge, were identified. These voters were Gary Retherford, G. J. Severs, Joe Brinell, Jerry Enright, Jerry McDaniel, and David Martin. The Hearing Officer further found that the laid-off employees at the time of the layoff had no expectation of employment in the foreseeable future and were ineligible to vote. However, despite his finding that these employees were ineligible to vote in the election, he found that the election was valid and recommends that a Certification of Representative be issued.' Thereafter, the Employer filed timely exceptions to the Hearing Officer's Report on Objections and the Petitioner filed an answering brief to Employer's exceptions to the Hearing Officer's Report and the Employer filed a reply to the Petitioner's brief. 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 Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. The Board has considered the Hearing Officer's Report on Objections, the Employer's exceptions, the Petitioner's answering brief, and the Employer's reply thereto, and the entire record in this case, and hereby adopts the Hearing Officer's findings, as modified herein. The issue in this case is whether certain employees whose names were on the eligibility list submitted by the Employer in accordance with standard Board election procedures, but who were laid off prior to the election, had, at the time of the election, a "present interest in the terms and conditions of employment"2 so as to entitle them to vote in the election. a consideration of his findings and recommendations on the issue of the eligibility of the laid-off employees to vote and the exceptions and briefs relating thereto. 2 John Kinkle & Son, 157 NLRB 744 at 760. 173 NLRB No. 175 1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As found by the Hearing Officer, on September 20, 1967, the Employer received advance notice of a contract cancellation.' On September 22, it laid off approximately 24 employees, 6 of whom later voted without challenge in the election. Executive Vice President Young made the decision to effect an immediate reduction of the working force as a result of receiving the advance notice of the contract cancellation. He instructed manufacturing Superin- tendent Griffin to reduce the working force in accordance with seniority. Griffin instructed his supervisors to notify the employees who were to be laid off and they did so on September 23. Uncontra- dicted employee testimony discloses that in all instances the laid-off employees were told by their supervisors that the layoff was due to a contract cancellation, that the layoff was temporary, and that they would be recalled in 2 or 3 weeks.' Griffin informed the Employer's election observer that the employees were eligible to vote in the election. Four of the laid-off employees, including two of the six who voted, were recalled after the election to replace employees whose employment terminated after the layoff. Also as found by the Hearing Officer, the Em- ployer is planning to expand its manufacturing operations and it had publicly announced plans for a four-fold expansion of its operations at the nearby Tulsa airport within the next year. The Employer is actively soliciting new contracts similar to the can- celed contract and, under normal circumstances, the lead time for translating such contracts into pro- duction was 6 months or more. Machinery idled as a result of the contract cancellation has been retained for future use. The Employer follows the policy of recalling laid-off employees when jobs become available. The foregoing evidence permits no other conclu- sion than that the September 22 layoff was intended to be a temporary layoff, and that, as of the time of the election, the laid-off employees had a reasonable expectancy of employment in the near future. Indeed the only evidence weighing towards a contrary con- 3 Formal notice of the contract cancellation was received October 2 4 The record also discloses that two of these employees were told by Griffin as well as their immediate supervisors that the layoff would only be for several weeks 5 In giving controlling weight to Young's testimony , the Hearing Officer relied on Shaw-Randall Corporation , 116 NLRB 444. We regard that case as distinguishable on its facts . To the extent that the clusion is testimony of Young that he intended to effect a permanent termination of the laid-off em- ployees' employment. However, that intention was clearly not disclosed to the employees or even to Griffin who was charged with selecting employees for the layoff. Such intention was clearly at odds with the Employer's conceded policy of recalling laid off employees before engaging new hires when new jobs became available, and does not square with the fact that four of the laid-off employees, including two who voted in the election, were subsequently recalled. In view of the Employer's expansion plans, there is no rational basis presented in the record for a departure from such established policy. Accordingly, we can give little or no weight to Young's testimony in this regard.' We, therefore, find that at the time of the election the laid-off employees had a reasonable expectancy of reemployment in the near future, and that their participation in the election without chal- lenge by the Board agent did not unfairly affect the election or the manner in which it was conducted. Accordingly, we find the Employer's objections to the conduct of the election to be without merit, and they are hereby overruled. Accordingly, as the tally shows that the Petiioner has obtained a majority of the valid ballots cast, we shall certify it as the exclusive bargaining representa- tive of employees in the appropriate unit. CERTIFICATION OF REPRESENTATIVE It is hereby certified that International Union, United Automobile, Aerospace and Agricultural Im- plement Workers, (UAW), has been designated and selected by a majority of the employees in the unit found appropriate by the Board as their representa- tive for the purposes of collective bargaining, and that, pursuant to Section 9(a) of the Act, the said labor organization is the exclusive representative of all such employees for purposes of collective bargaining with respect to rates of pay , wages , hours of employment, and other terms and conditions of employment. Hearing Officer apparently believed that events subsequent to the election justify a conclusion that the employees in this case were permanently laid off, we can not agree . Apart from the fact that we must look to events at the time of the election , we note that the Employer's expansion plans and its continuing search for new business make it likely that the employees may be called back to work within a reasonably close time to the election Copy with citationCopy as parenthetical citation