Nordam, Inc.

National Labor Relations Board - Board Decisions

Dec 5, 1968

173 N.L.R.B. 1153 (N.L.R.B. 1968)

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