Personal Products Corp.

National Labor Relations Board - Board Decisions

Jul 31, 1956

116 N.L.R.B. 393 (N.L.R.B. 1956)

PERSONAL PRODUCTS CORPORATION 393
in the Stark Industrial Area in Charleston County, both in South
Carolina.
[Text of Direction of Elections omitted from publication.]
CHAIRMAN LEEDOM and MEMBER MURDOCK took no part in the
consideration of the above Decision and Direction of Elections.
Personal Products Corporation and Textile Workers Union of
America, AFL-CIO, Petitioner. Case No. 13-RC-3761. July 31,
1956
SECOND SUPPLEMENTAL DECISION AND
CERTIFICATION OF REPRESENTATIVES
On May 27,1954, the Board issued a Decision and Direction of Elec-
tion, to be held at a time to be determined by the Regional Director.
Thereafter, on August 9,1954, the Board amended the Direction to pro-
vide that the election be held on or after August 25. The election,
which was held on August 25,1954, showed that out of 112 valid votes,
58 were cast for Petitioner (Textile Workers Union of America, CIO),
53 for Intervenor (United Textile Workers of America, AFL), 1 for
no union, and 17 were challenged, 8 by the Petitioner and 9 by the
Board. As the challenges were sufficient in number to affect the results
of the election, the Regional Director made an investigation and filed
his report on objections and challenges on July 6, 1955. As to the 8
challenges by Petitioner, he recommended that all 8 be overruled. As
to the remaining 9, the report divided these into 2 groups, the first deal-
ing with a group of 3 mechanics,' the second with a group of 6
alleged layoffs.2 As to the first group, he recommended that the chal-
lenge to 2 of the mechanics should be sustained and that the challenge
to the remaining 1 be unresolved until the disposition of the then pend-
ing unfair labor practice case. As to the six layoffs, he recommended
that the challenges be overruled. The Employer excepted to these
recommendations.
In its Supplemental Decision,' the Board adopted the recommenda-
tion overruling the challenges made by Petitioner to eight ballots and
directed that these be opened and counted. As to the group of nine, the
Board postponed consideration of these ballots pending investigation
of. the complaint case.
' Whiteside , Schlentz , and Hensley.
2 Slepicki , Santarelli , gasper, gringas, Lewandowski , and Fryer.
8114 NLRB 959.
116 NLRB No. 47.
394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
. Under the revised tally, following the openilig of the eight ballots,
the results of the election were as follows :
Eligible voters--------------------------------------------- 123
Votes for Petitioner----------------------------------------- 58
Votes for Intervenor---------------------------------------- 61
Votes against any union------------------------------------- 1
Valid votes counted----------------------------------------- 120
Unopened ballots------------------------------------------- 9
As the challenges are still sufficient to affect the results of the elec•
tion, it becomes necessary for the Board to pass upon the recommenda-
tion of the Regional Director as to the nine unopened ballots.
The Group of Three Mechanics
As indicated in the Regional Director's report, the Petitioner had
taken the position that of this group only one was eligible to vote, on
the ground that the Employer had discriminatorily failed to rehire him
after the strike. The Regional Director therefore recommended that
the challenges to two of this group should be sustained and that the
challenge to the third should await the disposition of the unfair
labor practice case. No exceptions were taken by the Petitioner to
this recommendation. As the charges have subsequently been dis-
missed 4 and as there appears to be no basis for a finding that the third
member of this group was otherwise eligible, it seems clear that all
three challenges should now be sustained.
The Group of Six Layoffs
These employees had worked for the Employer and had participated
in the strike which terminated in November 1953, but were not recalled
at the end of the strike. The investigation revealed that in February
1954 they were hired as temporary employees 5 for a specific project
and that they worked from 3 to 5 weeks; 6 that after the termination
of their temporary employment various foremen made certain state-
ments to them indicating that they would be recalled to work if the
Company obtained another order; 7 that none had received a dis-
charge notice; that the personnel director contacted a number of them
and asked them to come to work but that this recall was canceled;
that 1 was told she would be put on a list of people to be called when
4 Dismissed by the Regional Director on April 24, 1956.
5 The hiring slip of each employee stated it was clearly understood that "I am being
hired as a temporary employee. . . .
9 Slepicki and Santarelli worked from February 8 to March 13 and 15, respectively ;
Kasper and Kringas from February 9 to March 15; Lewandowski and Fryer from February
22 to March 15. All of them worked again for 2 days on March 22 or 23.
7 The following statements were allegedly made by foremen * that Slepicki would be re-
called if the Company got another order ; that the next time Kringas would be called, it
would be permanent , that Kasper would be called back as soon as there was an opening ;
and that Fryer and Santarelli would be called again when they needed more girls.
PERSONAL PRODUCTS CORPORATION 395
there was an opening and that she received her claim for hospitaliza-
tion subsequent to her termination; and that the personnel director
spoke to 5 out of the 6 employees informing them of the coming elec-
tion in August 1944 and told a number of them that they were eligi-
ble to vote 8 and that letters were sent to these employees explaining
the election.
On these facts, the Regional Director found that the employees had
reasonable expectancy of further employment and that the challenges
to their ballots should be overruled.
The Employer excepted to the Regional Director's recommendation
on the ground that, as conceded in the report, these employees were
hired on a purely temporary basis for 3 weeks; that none worked for
more than 5 weeks; and that their only expectancy for future em-
ployment, based on statements as detailed in the report, was that if
and when additional orders came in, they might be recalled.
We find merit in the Employer's exceptions. Although the Re-
gional Director is correct in his finding that the Board considers the
factor of reasonable expectancy of reemployment in determining
eligibility,' such test is not applied to employees temporarily hired
for a special project with no evidence that they would be recalled as
permanent workers.1° That these employees were hired as purely
temporary workers seems clear. While it is true that a number of
them worked for 2 weeks beyond the stated period on their hiring
slips, this did not, in our opinion, convert their temporary employ-
ment into a more permanent status. Nor do we find that the state-
ments allegedly made by foremen concerning their possible recall
can be interpreted as meaning anything more than that they might
be rehired at some indefinite and unpredictable time. We find, on the
basis of the foregoing, particularly the fact that these employees were
hired as temporary workers for only a few weeks, that on the eligi-
bility date they had no reasonable expectancy of future employment
such as would have entitled them to vote under established Board prin-
ciples. We shall therefore sustain the challenges to the ballots of these
six employees."
As it appears that the Intervenor has won the election and that the
Petitioner has lost, we shall now consider the Petitioner's objections
to the election.
s These statements were as follows : three of the girls were told they were eligible to
vote ; a fourth was told she might be eligible ; the fifth was told to come to the election
and vote. The sixth was visited by the personnel director at home but was not in.
0 See Whiting Corporation, 99 NLRB 117, 123.
10 United States Rubber Company, 86 NLRB 338, 340.
11 Following the dismissal of the unfair labor practice cases by the Regional Director,
Petitioner filed a motion with the Board for leave to present additional evidence concern-
ing the six laidoff employees . The Employer and the Intervenor opposed. We find that,
as the motion appears on its face to make an offer of proof concerning facts subsequent to
the eligibility date, the motion is untimely , and it is therefore denied . N. L. R. B. v.
Tower Company, 329 U. S. 324 ; Shoreline Enterprises of America , et at., 114 NLRB 716.
396 DECISIONS OF NATIONAL,LABOR RELATIONS BOARD
The Objections
Following a strike which terminated in November 1953, the Peti-
tioner filed the instant petition for representation on January 21, 1954.
The next day, January 22, the notice of hearing was issued. On the
same day the Employer recognized the Intervenor, and on January
29, 1954, the Employer and Intervenor executed a contract containing
a union-shop provision. The Board's Direction of Election issued
May 27,1954. On July 28,1954, the Petitioner filed 8 (a) (1) and (3)
charges against the Employer 12 and 8 (b) (1) (A) and (2) against
the Intervenor." On August 9, 1954, the Board issued its Amended
Direction of Election, setting the election for August 25. On August
23, the Petitioner signed a waiver of the charges in the above com-
plaint cases as a basis for objecting to the election. The election was
held on August 25, with inconclusive results. Thereafter ' the Peti-
tioner filed amended charges in the above complaint cases.14 On July
5, 1955, the Regional Director issued his report on challenges and ob-
jections to the election held August 25, 1954. On November 10, 1955,
the Board issued its Supplemental Order and Direction. On April 13,
1956, the Petitioner filed new charges against the Employer 15 and on
April 19 against the Intervenor.16 On April 24, 1956, the Regional
Director dismissed all charges in all the foregoing complaint cases.
The Petitioner cites 18 objections to the conduct of the election.
These are summarized by the Regional Director as follows : execution
and enforcement of the contract of January 29, 1954; illegal assist-
ance to the Intervenor from January 29 to the date of the election;
discriminatory treatment of members of Petitioner; electioneering at
entrance to plant in voting area before polls opened; the Employer's
refusal to meet with Petitioner; statements by agents of Employer
that the plant would be moved if the Petitioner won the election; fail-
ure to include names of employees on the eligibility list after they at-
tended a meeting of Petitioner ; and announcement of a wage increase
by Intervenor restoring certain rights to recalled strikers.
In his report, the Regional Director considered only those acts not
waived occurring between August 9, 1954, the date of the Board's
amended Order of Election, and the date of election, August 25, in
accordance with Board policy not to consider objections based on
acts which occurred prior to the Direction of Election.17
12 Case No . 13-CA-1789 ( not reported in printed volumes of Board Decisions and
Orders).
is Case No . 13-CB-341 ( not reported in printed volumes of Board Decisions and Orders).
14 Amended charges were filed September 24, 1954, November 12, 1954, and May 16, 1955.
16 Case No. 13-CA-2216, charging violations of 8 (a) (1), (2), (3), and ( 5) (not re-
ported in printed volumes of Board Decisions and Orders).
1e Case No 13-CB-445, charging violations of 8 (b ) (1) (A), and (2) (not reported in
printed volumes of Board Decisions and Orders).
17 See F. W. Woolworth Co., 109 NLRB 1446.
PERSONAL PRODUCTS CORPORATION 397
Petitioner urges in its exceptions that it specifically waived only
those acts alleged as unfair labor practices in the complaint cases
which occurred prior to the issuance of the notice of hearing, January
22, 1951, and did not waive any acts occurring after that date, and that
therefore the Regional Director committed error in considering
August 9 as the cutoff date. We find no merit in this contention. The
Board's policy of considering the date of the Direction of Election,
or in this case the date of the Amended Order of Election, as the cutoff
date was clearly enunciated in the Woolworth case, supra, and there-
fore governs the facts herein, the specific waiver of Petitioner not-
withstanding. Furthermore, the waiver signed August 23, 1954, spe-
cifically states that :
.. , the undersigned hereby requests the Regional Director to pro-
ceed with the above-captioned representation case, notwithstand-
ing the amended charges of unfair labor practices filed in Case
No. 13-CA-1789.
It is therefore clear that the Petitioner must be deemed to have waived
all charges filed prior to the election. Moreover, as stated above, all
charges covering such conduct have been dismissed by the Regional
Director.
Petitioner further contends that even if August 9 rather than Jan-
uary 22, 1954, was the cutoff date, the illegal contract of January 29,
1954, was being enforced during that period and thus constituted a
continuing violation of the Act. As the Petitioner, when it signed
the waiver on August 23, was fully aware of the enforcement of the
illegal contract, and that such enforcement was the subject of the un-
fair labor practice charges which it had waived in proceeding with the
election, we find no merit in this contention. Moreover, assuming that
the enforcement of the illegal contract was a continuing violation,"
inasmuch as the Regional Director has dismissed the charges relating
to this conduct, the Board will not normally make a finding in a repre-
sentation case which would be inconsistent with the dismissal of the
unfair labor practice charges.19
In view of the foregoing, the Regional Director properly limited
himself to the consideration of acts allegedly occurring during August
9 to 25. In so doing, the Regional Director made findings on the fol-
lowing objections, to which the Petitioner filed exceptions.
1. Electioneering by Intervenor's representatives at the entrance
to the plant and in the voting area on the morning of the election:
18 See Bowen Products Corporation, 113 NLRB 731.
19 Times Square Stores Corporation, 79 NLRB 361, 365; see also The Deeming Company,
107 NLRB 1100. 1101; Shipowners' Association of the Pacific Coast, 107 NLRB 1508,
1509.
398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The objection,,alleged that 'representatives of Intervenor electioneered
at the entrance of the plant on the morning of the election and that
they were present in the voting area before the polls opened. As no
evidence was submitted in support of the contention that there was
electioneering outside the plant, and as the Board has held that even
if there was, such electioneering before the polls opened, this would
not 'constitute interference absent coercion, we adopt the Regional
Director's recommendation that this objection be overruled 20
2. Betting on the election results by supervisors: The investiga-
tion disclosed that one supervisor bet sums of money with various
employees, wagering that Intervenor would win the election; that
this supervisor has been known to bet with employees on other events;
and that in this instance an employee made the offer to bet on the
election and repeated, the offer, which the supervisor accepted. The
news of the betting, was circulated among various employees that
foremen were taking 'bets on the election and several of them also
asked such foremen to bet. There is no evidence that foremen solicited
any bets. The Regional Director found that as the betting originated
with the employees, and in view of the absence of other acts of in-'
terference during this 'period and the Board's policy in wagering
cases,2' this objection should be overruled.
The exceptions urge that, as other acts of interference took place
during this period, particularly the enforcement of the illegal con-
tract of January 29, 1954, the betting incidents should not have been
rejected as grounds for'setting the election aside. We find no merit
in this exception, as we find that other acts of alleged interference
and coercion, such as the alleged illegal contract, either had been
waived by the Petitioner as grounds for setting the election aside or
were the subject of unfair labor practice charges dismissed by the
Regional Director. As the betting incidents under the facts found by
the Regional Director do not by themselves warrant setting the elec-
tion aside, we shall adopt the Regional Director's recommendation.
Accordingly, as we have sustained the challenges to the nine unopened
ballots and the Petitioner's objections to the election, and as the United
Textile Workers of America, AFL-CIO, has secured a majority of
the valid votes cast, we shall certify it as the bargaining representa-
tive of the employees in the appropriate unit.
[The Board certified United Textile Workers of America, AFL-
CIO, as the designated collective-bargaining representative of all
production and maintenance employees employed by the Employer
20 Emerson Electric Company, 109 NLRB 149, 153
21 See Calvine Cotton Mills , Inc., 98 NLRB 843, 846
INTERNATIONAL BROTHERHOOD OF TEAMSTERS , ETC. 399
at its Chicago, Illinois, plant, excluding office clerical employees, pro-
fessional employees, guards, laboratory inspectors and technicians,
cafeteria employees, and supervisors as defined in the Act.]
CHAIRMAN LEEDOM and MEMBER MURDOCK took no part in the con-
sideration of the above Second Supplemental Decision and Certifi-
cation of Representatives.
International Brotherhood of Teamsters , Chauffeurs, Warehouse-
men & Helpers of America, Local 249, AFL-CIO (Lancaster
Transportation Company ) and Elmer Charles Howard. Case
No. 6-CB-306. August 2,1956
DECISION AND ORDER
On April 19, 1956, Trial Examiner Max M. Goldman issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices within the meaning of Section 8 (b) (2) and 8 (b) (1)
(A) of the Act 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 brief.
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 Interme-
diate Report, the exceptions and brief, and the entire record in this
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner only insofar as they are consistent with
this decision.
1. We agree with the Trial Examiner, based on the facts as found
by him, and supported by the record, that the Respondent violated
Section 8 (b) (2) and 8 (b) (1) (A) by causing the Employer to dis-
charge Elmer Charles Howard because of his dual unionism, in viola-
ation of Section 8 (a) (3).
2. We also find, in agreement with the Trial Examiner, that the
Respondent independently violated Section 8 (b) (1) (A) when Stew-
ard Broskey told Howard in the presence of other employees that
Howard could not work for the Employer without the approval of
Business Agent Schuler because Howard belonged to two unions.
The Remedy
The Trial Examiner recommended, in accordance with the principle
set forth in the Pen and Pencil 1 case, that the Respondent deduct from
' Pen and Pencil Workers Union, Local 19593, AFL, 91 NLRB 883.
116 NLRB No. 51.