Ovalwood Dish Corp.

National Labor Relations Board - Board Decisions

Aug 5, 1957

118 N.L.R.B. 947 (N.L.R.B. 1957)

OVALWOOD DISH CORPORATION 947
powder receiving clerk, assistant molding' foremen, head of fiberglass
department, and professional employees, guards, and supervisors as
defined in the Act.
5. The Regional Director found that Juris Jankievics was hired in
March 1957 as a temporary substitute for a regular janitor absent on
sick leave; that leave for the regular janitor had been extended beyond
the period originally anticipated, and therefore Jankievics was still
working at the time of the election; that by express agreement of the
parties, the name of the janitor on sick leave was retained on the list
of eligibles, and he appeared at the polls to cast his ballot without
challenge; and that the Employer does not anticipate that Jankievics
can be employed in any other work when the regular janitor returns.
On these facts, we find that Jankievics,. during the determinative
eligibility period and at the time of the election, did not have uncertain
tenure, and was a temporary substitute for a sick employee with no
reasonable expectation of permanent employment, and therefore was
not an eligible voter in the election?
The Petitioner alleges that the regular janitor suffered a relapse
of his ailment after the election, and that his return to 'work is now
indefinite. However, this post-election occurrence is immaterial with
regard to Jankievics' eligibility in the election.3 The Petitioner also
alleges that during a discussion held by the parties immediately
following the election relative to the challenged ballots, the Employer's
personnel manager stated that after the regular janitor returned to
work the Employer would keep Jankievics on if they could find a place
for him. In view of the conditional nature of this statement, and
the absence of evidence that such a statement was ever made to
Jankievics himself,' this statement will . not support a finding that
Jenkievics had a reasonable expectation of permanent employment.
Accordingly, we sustain the challenge to the ballot of Juris Jankievics.
[The Board ordered that the ballot cast by Virginia Larson be
opened and counted, and a revised tally of ballots be served on the
parties.]
9 See Farmers Rendering Company, 115 NLRB 1014.
2 See Farmers Rendering Company, supra.
4 See Fanners Rendering Company, supra.
Ovalwood Dish Corporation and United Brotherhood of Carpen-
ters & Joiners of America , AFL-CIO, Petitioner. Case No. 3-
RC-1836. August 5,1957
DECISION AND ORDER
The Petitioner filed the instant petition on April 1, 1957, requesting
an election in a unit of production and maintenance employees at the
118 NLRB No. 117.
948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employer's two wood products plants located at Tupper Lake and
Potsdam, New York. Thereafter, a hearing was held in Utica, New
York, on May 7, 1957, before Edward H. Noonan, Jr., hearing officer.
The Petitioner was represented by A. H. Saul, its international repre-
sentative; the Employer, by Jesse Climenko of Gallop Climenko &
Gould of New York City. At the hearing, the Employer contended
that the unit petitioned for was inappropriate, but Climenko refused
to present any evidence in support of the Employer's position on this
issue on the ground that, because of Saul's misconduct at the hearing,
there was insufficient judicial atmosphere to permit a fair development
of issues. Thereafter, on May 31, 1957, the Employer filed a motion
to dismiss the proceeding and the Petitioner filed a statement in op-
position thereto.
The official transcript of this proceeding reveals that the hearing
opened and proceeded initially in the usual manner. Shortly there-
after, Climenko commented that the commerce data submitted by the
Employer would become the subject of exploitation and propaganda
on the part of Saul, which Saul denied. Climenko then stated that
the Employer had written a letter in answer to the Petitioner's demand
for recognition. Saul denied having received it, accused Climenko of
trying to stall the proceedings until after he carried out a plan to lay
off 50 employees as he had laid off 75 employees before a prior Board
election.' Climenko denied this accusation and charged that Saul was
uttering "falsities." Saul expressed his resentment, and repeated the
accusation. Thereafter, Climenko put a witness on the stand to testify
to the inappropriateness of the unit. However, before eliciting any
testimony Climenko announced his intention of submitting for the
record a copy of the letter referred to above. Saul had no objection
but said the letter was immaterial. Climenko replied, "Well, Mr.
Saul, what is material to me is that you said that you sent ."
Saul then said,
Be very careful. If you call me a liar again, -I will take you out-
side and knock your teeth down your throat.
Climenko said that Saul would be called a liar whenever warranted.
Saul then uttered a stream of vulgar and offensive invectives, all of
which are recorded in the transcript. The parties disagree, however,
as to whether, at this point, Saul attempted to strike Climenko. In
any event, the hearing officer recessed the hearing for a brief period,
and thereafter expressed the opinion that the atmosphere had cleared
sufficiently to permit the taking of evidence necessary to complete the
record, and requested the parties to proceed. The Employer refused on
1 On October 19, 1955, in Case No. 3-RC-1567 (not reported in printed volumes of Board
Decisions and Orders ) the Board conducted an election among the employees in the same unit
petitioned for herein, which the Petitioner lost. No objections to that election, and no
unfair labor practice charges, were filed.
OVALWOOD DISH CORPORATION 949
the grounds set forth above, and requested an opportunity, under
proper circumstances, to present evidence on the issues in the case.
Because a full record has not been made, we shall reopen the record
and remand this proceeding to the Regional Director for further
hearing?
On the basis of the official transcript, we find that, during the course
of a statutory hearing conducted by the Board, A. H. Saul, representa-
tive of a party to the proceeding, threatened the representative of the
other party to the proceeding with physical violence in the course of
the latter's presentation of his case. Saul's conduct, in general, and
his threatening statement, in particular, was undignified and indeco-
rous; it interfered with, and was disruptive of, the proceeding. As
such, it was contemptuous of the Board and its processes. We recog-
nize, that Saul's conduct was not entirely unprovoked, but the fact that
there was some provocation does not justify contemptuous conduct.'
We therefore find, under all the circumstances, that Saul's actions
constituted misconduct within the meaning of Section 102.58 (d) (1)
of the Board's Rules and Regulations,4 warranting a reprimand and
exclusion from further participation in this proceeding.
Although we have found that Saul's conduct was not entirely un-
provoked, we do not believe that Climenko's remarks, which were
neither threatening nor vulgar, were sufficient to constitute misconduct
within the meaning of the Board's Rules and Regulations. We
conclude, accordingly, that action against Climenko is not warranted.5
After careful consideration of all mitigating circumstances, par-
ticularly the provocation and the hearing officer's expressed opinion
that the atmosphere of the hearing returned to normal after a brief
recess, we have determined not to initiate proceedings under Section
102.58 (d) (2) of the Rules and Regulations to suspend or disbar Mr.
Saul from further practice before the Board.' Mr. Saul is hereby
warned, however, that a repetition of such contemptuous conduct will
result in the initiation of disbarment proceedings.7
a Dismissal of a petition on grounds of ,misconduct at the hearing is not provided for in
the Rules and Regulations , nor would it effectuate the policies of the Act . The Employer's
motion to dismiss is therefore denied.
8 Cf. Robert S. Cahoon, 106 NLRB 831 ; John L. Camp, 96 NLRB 51.
* Sec. 102 . 58 (d) of the Board's Rules and Regulations provides as follows : " Sec. 102.58
(d) (1) Misconduct at any hearing before a hearing officer or before the Board shall be
ground for summary exclusion from the hearing . ( 2) Such misconduct of an aggravated
character , when engaged in by an attorney or other representative of a party , shall be
ground for suspension or disbarment by the Board from further practice before it after due
notice and hearing."
5 Member Murdock would find that Climenko 's remarks and conduct constituted miscon-
duct within the meaning of the Board 's Rules and Regulations . Accordingly , he would
also exclude Climenko from further participation in this proceeding.
' we make no finding as to whether , as the Employer asserts, Saul made a physical attack
on Climenko , but base our findings herein solely on Saul 's conduct as revealed in the
official transcript of the hearing.
7 7 Member Jenkins would likewise find Climenko 's conduct such as to warrant exclusion
from participation in the resumed hearing . However, he would also institute proceedings
to suspend or disbar Saul from further practice before the Board under the provisions of
Section 102.58 ( d) (2).
950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
In order to preserve and protect the orderly administration of the
Act and effectuate its policies :
IT IS HEREBY ORDERED that the record in the above-entitled proceeding
be reopened and that a further hearing be held for the purpose of
receiving evidence on all issues relevant and material to this
proceeding; and
IT IS FURTHER ORDERED that A. H. Saul be, and he hereby is, excluded
from further participating, directly or indirectly, in the above-entitled
proceeding;
IT IS FURTHER ORDERED that this proceeding be, and it hereby is, re-
manded to the Regional Director for the Third Region for the purpose
of conducting the further hearing as ordered herein, and that the said
Regional Director be, and he hereby is, authorized to issue notice
thereof.
Kieckhefer Container Company and Local No. 14, Office Em-
ployees International Union , AFL-CIO , Petitioner. Cases Nos.
4-RC-3302 and 4-RC-3316. August 5, 1957
DECISION AND DIRECTION OF ELECTIONS
Upon petitions duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Morris Mogerman, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
these cases to a three-member panel [Chairman Leedom and Members
Murdock and Jenkins].
Upon the entire record in these cases, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.'
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the represen-
tation of employees of the Employer within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The Petitioner originally requested separate units of office and
plant clerical employees at each of the Employer's Merchantville and
Delair locations, but at the hearing the parties agreed that four sepa-
1 The Employer has 19 plants throughout the country. The only operations of the
Employer involved herein are the general office and carton plant at Merchantville, New
Jersey; and the container plant at Delair, New Jersey.
118 NLRB No. 119.