Pyramid Electric Co.

National Labor Relations Board - Board Decisions

May 20, 1958

120 N.L.R.B. 1051 (N.L.R.B. 1958)

PYRAMID ELECTRIC COMPANY 1051
secretary to department head, labor distribution clerk, the employee who handles the
plant salary ledger, and the other departmental clerks), but excluding plant manager
or superintendent, confidential secretary to the plant manager, auditor-office manager,
confidential clerk or secretary to the auditor-office manager, assistant office manager,
chief clerk, plant sales head, city sales head, assistant sales heads in the sales
departments, all salesmen, department heads in the beef, lamb, veal, provision,
table-ready meats, byproducts, advertising, credit, purchasing, transportation, indus-
trial relations, and departmental departments, section heads in the veal, lamb, primal
cut, boneless beef cutting, fresh and frozen pork and variety meats, smoked meats
and sliced bacon, sweet pickle, and dry salt and lard sections, head cashier, invoice
discrepancy investigator, beef, lamb, veal, and the smoked meat promotion men, all
buyers, graders, and nurses, plant superintendent and assistant plant superintendent,
confidential clerk and confidential secretary to the plant superintendent, chairman of
the suggestion committee, safety director, plant protection and cafeteria supervisor,
division superintendents, employment manager-head timekeeper, head and assistant
head of the standards department, head of the statistical control and analysis depart-
ment, head of the training department, pickle making foreman, all technical em-
ployees not specifically mentioned herein, production and maintenance employees,
guards, foremen and assistant foremen, all other supervisors as defined in the Act,
confidential secretary to the plant sales head, confidential secretary to the city sales
head, head of the special cutting room, head of the dairy and poultry department,
assistant head of the purchasing department, head of the voucher department, head
of the cost figuring for cattle, calves, and lamb department, head of the cost figuring
for hogs department, assistant head of the credit department, assistant head of the
transportation department, chauffeur, pickle maker, Charles Jones, credit union
employees, time-study engineers , draftsman-estimator, and statistical quality control
inspectors, constitute and at all times material herein, constituted an appropriate unit
for the purposes of collective bargaining within the meaning of Section 9 (b) of
the Act.
3. The above-named labor organization was on March 6, 1957, and at all times
thereafter has been, the exclusive representative of all the employees in the unit above
described for the purposes of collective bargaining within the meaning of Section
9 (a) of the Act.
4. By refusing on April 5, 1957, to bargain collectively with the above-named labor
organization, as the exclusive representative of all the employees in the unit above
described, the Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (5) of the Act.
5. By discriminating with regard to the hire and tenure of employment of Thomas
E. Powers, thereby discouraging membership in the above-named labor organization,
the Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (3) of the Act.
6. By (a) threatening an employee that union activities would be harmful; (b)
advising an employee that he was passed over for other employment because of his
union activities; (c) threatening an employee that he would not get a recommendation
if he talked about the Union; (d) interrogating an employee as to her union activities;
(e) engaging in discrimination; and (f) refusing to bargain, the Respondent has
engaged in and is engaging in unfair labor practices within the meaning of Section
8 (a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
Pyramid Electric Company and International Union of Electri-
cal, Radio & Machine Workers, AFL-CIO, Petitioner. Case
No. 22-RC-5. May 20,1958
SUPPLEMENTAL DECISION, DIRECTION, AND ORDER
Pursuant to a Decision and Direction of Election of the Board
dated June 24, 1957,1 an election was held in the above-named case on
1 Not published.
120 NLRB No. 142.
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
July 12, 16, and 23, 1957, under the direction and supervision of the
Regional Director for the Second Region. Thereafter, a tally of bal-
lots was furnished the parties which showed that of approximately
611 eligible voters, 158 cast ballots for the Petitioner, `195 cast ballots
against the Petitioner, and 48 ballots were challenged. The chal-
lenged ballots were sufficient to affect the results of the election.
On July 24, 1957, the Petitioner filed timely objections to conduct
affecting the results of the election. In accordance with the Rules and
Regulations of the Board the Regional Director conducted an inves-
tigation of the objections and challenges and on January 21, 1958,
issued and served on the parties his report on objections and chal-
lenges in which he found that the Petitioner's objections did not raise
any substantial or material issues with respect to the election and
recommended that the objections be overruled. He also recommended
that 2 challenges be sustained and the remaining 46 challenges should
be overruled and the ballots counted' Both the Employer and the
Petitioner timely filed exceptions to the Regional Director's report.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman Leedom and Members Rodgers and
Jenkins].
Upon the entire record in this case, the Board finds :
The Objections
1. In its first objection the Petitioner alleged that the Employer
manipulated the eligibility list of employees thereby preventing a
substantial number of eligible employees from voting in the election.
Prior to the hearing herein, the Employer furloughed approximately
293 employees. At the hearing the Employer and Petitioner stipu-
lated that these employees should be included in the unit and eligible
to vote 3 Thereafter, on May 16, 1957, the Employer notified 259 of
the furloughed employees that they were permanently discharged and
notified the Board of this alleged change in their status. On June 24,
1957, the Board's Decision and Direction of Election issued finding
that those of the laid-off employees with reasonable expectation of
employment in the near future were eligible to vote and those having
no such expectation were not eligible to vote, without identifying the
employees in the two groups. At the preelection conference between
the Employer and Petitioner, the Employer submitted a list of 235
2 A typographical error in this portion of the Regional Director 's report was corrected
by the Regional Director 's amendment to report on objections and challenges issued
January 23, 1958.
8 The Employer also took the position that the furloughed employees would be called
back in the main within 6 weeks after the date of the hearing , April 22, 1957 , and that
no election should be held until the call back was completed.
PYRAMID' ELECTRIC COMPANY 1053
permanently laid-off employees? and a list'of 10 -employees labeled as
the only possible recalls in the near future. The latter 10 employees
as well as the others had received permanent layoff letters, but the
10, unlike the others, were contacted by the Employer's personnel
manager before election and told of their eligibility to vote and of the
election arrangements. Of the laid-off employees not so notified,
approximately 40, appeared at the election held during July and voted
subject to challenge.
After the election the Employer continued to recall employees and
by October 16, 1957, all but 76 of the laid-off employees had been
offered reemployment.
In its first objection the Petitioner contended that the election
should be set aside because (a) the employees were furloughed because
they engaged in concerted activities on behalf of the Petitioner; (b)
the permanent termination notices were sent only to those employees
who favored the Petitioner; (c) during May, June, and July the
Employer held back on production for which it had outstanding
orders to discourage union membership and to disenfranchise fur-
loughed employees from voting; (d) the Employer called to vote only
those furloughed employees who opposed the Petitioner; and (e) the
Employer coerced employees to refrain from voting by its May 16
letter.
The Regional Director found that (a), (b), and (e) occurred prior
to the Board's Decision and Direction of Election on July 24, 1957,
and therefore could not be considered as a basis for setting aside the
election under the Board's -Woolworth doctrine.' As for (c) the
Regional Director found no evidence to support the Petitioner's
allegations, and as for (d), he found that while the Employer called
only 10 laid-off employees to come and vote, there was no evidence to
show that these calls were related to union sympathies. Accordingly,
he recommended that the objection be overruled.
In its exceptions, the Petitioner contends that the Woolworth rule
should not apply in this case because the Petitioner did not know of
the Employer's May 16 letter until after the date of issuance of the
Decision and Direction of Election and the full import of the Em-
ployer's conduct was not revealed until after the date of the election
when the Employer began to recall furloughed employees.
While the Petitioner may not have had knowledge of the letter
prior to the date of the Direction, it had such knowledge prior to the
holding of the election itself. Yet the Petitioner permitted the elec-
tion to be held, without in any way suggesting to Board representa-
tives that it felt the letter precluded the, holding of a fair election.
4 Between the time the permanent layoff letter was sent and the date of the election,
some employees to whom the letter was sent were recalled. Those who accepted reem-
ployment were listed as eligible voters.
5 F. W. Woolworth Co , 109 NLRB 1446
1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Moreover, the Petitioner raised this predirection conduct in its orig-
inal objections, filed before the commencement of the postelection
recalls, which the Petitioner now claims revealed the full import of
the Employer's conduct. In these circumstances we are satisfied that
the Regional Director properly applied the Woolworth rule in this
case.
In addition, we note that a representative complement of employees,
including approximately 40 furloughed employees, voted in the elec-
tion. While a number of furloughed employees did not vote, this case
4s not essentially different from any case in which there is a dispute
between the parties as to the identity of eligible employees. Accord-
ingly, in the absence of any evidence in support of the Petitioner's
contentions (c) and (d), we shall overrule the first objection.
2. In its second objection, the Petitioner contended that an agent
of the Employer offered a bribe to an employee to urge employees to
vote against the Petitioner. The Regional Director found a single
witness in support of this objection who testified to two instances on
which he was allegedly offered bribes. The first occurred approxi-
mately 2 months before the Board's Decision and Direction of Elec-
tion and accordingly cannot be considered as a basis for setting aside
the election. As for the second, the witness' statements failed to sup-
port the allegations of the objection and the alleged briber denied
offering a bribe or attempting to dissuade the witness *from supporting
the Petitioner. The Regional Director accordingly found no merit
in this objection. In its exceptions, the Petitioner alleges no further
evidence but contends that an objection of such gravity warrants a
hearing. In the absence of any issue of fact, we do not agree, and we
overrule' the second objection.
3. In its objections numbers 6, 7, and 8, the Petitioner alleged that
the Employer made speeches on company time and property which
contained threats of reprisal in the event the employees supported
the Petitioner and also violated the Board's Peerless Plywood rule.'
The Regional Director found that the speeches, delivered on July 11,
15, and 22, were made more than 24 hours before the polls opened on
July 12,16, and 23, and therefore did not violate the Peerless Plywood
rule, which proscribes speeches on company time and property within
24 hours of an election. He also found the content of the speeches
noncoercive and recommended that these objections be overruled. In
its exceptions, the Petitioner contends that the'election period extended
from July 12 through July 23 so that the speeches on July 15 and 22
fell within the election period and were therefore proscribed. We
find no merit in this construction of the Peerless Plywood rule.
Where,- as here, because of unusual conditions, an election is scheduled
0 Peerless Plywood Company , 107 NLRB 427.
PYRAMID ELECTRIC COMPANY 1055
to be held on several isolated days, the Peerless Plywood rule re-
quires only that no speeches be given on company time or property
within the 24-hour periods preceding each of the polling dates. Con-
trary to the Petitioner, nothing in the reasons leading to the adoption
,of the Peerless Plywood rule warrants the interpretation it would
place on this rule. Likewise the fact that employees were eligible to
vote on any one of the three dates does not alter this result, nor does
the fact that the Employer may have had a no-solicitation rule in
effect.' Accordingly, we find no merit in these objections.
4. The Regional Director found no merit to the Petitioner's other
objections. As no exceptions were filed to these findings, the remain-
ing objections are overruled.
The Challenges
Forty-eight ballots were challenged at the election, of which 40
were challenged by the Employer because the employees who cast them
were allegedly permanently laid off, 5 were challenged by the Peti-
tioner because the employees who cast them were allegedly super-
visors, and 3 were challenged by the Board agent because the names
of the employees who cast them were not on the eligibility list. The
Regional Director found that the 40 had reasonable expectancy of
recall, that the 5 were not supervisors, and that 1 of the 3, Dorothy
Miller, had reasonable expectancy of recall but the other 2, Peter
Palmiere and Jean Jaroszewski, had either quit or refused reinstate-
ment. He found all but the last two employees eligible to vote. The
Petitioner excepts to the rcommendation that the ballots of the five
alleged supervisors be counted, contending that the evidence it sub-
mitted to the Regional Director supports a finding that these em-
ployees are supervisors. The Petitioner requested a hearing. How-
ever, in the absence of any specific allegations of fact contrary to
the Regional Director's findings, we find the exceptions without merit
and will overrule the Petitioner's challenges. The Employer excepts
to the Regional Director's finding, that the 40 employees challenged
by the Employer and Dorothy Miller were temporarily laid off and
had reasonable expectancy of recall. The Employer does not allege
any facts contrary to those on which the Regional Director based these
findings. We find in agreement with the Regional Director that on
the facts before him these employees were eligible to vote. Accord-
ingly, we shall direct that the ballots of the 40 employees challenged
by the Employer, the 5 challenged by the Petitioner, and Dorothy
Miller be overruled 'and that these ballots be counted. As no excep-
tions were filed to the Regional Director's recommendations that the
7 Goldblatt Bros., Inc., 119 NLRB 1711.
1056 DECISIONS OF NATIONAL LABOR .RELATIONS BOARD
challenges to the ballots of Peter Palmieri and Jean Jaroszewski, be
sustained, we shall adopt these recommendations.
[The Board directed that the Regional Director" for the Twenty-
second Region shall with ten (10) days from the date of the Direction;
open and count the ballots of the employees whose names appear on
Appendix A attached hereto, and serve upon the parties a revised tally
of ballots. If the Petitioner'receives a majority of the valid votes the
Regional Director shall issue a certification of representatives; if the
Union does not receive a majority of the valid votes, the Regional
Director shall issue a certification of results of election.]
[The Board ordered the above-entitled matter referred to the
Regional Director for the Twenty-second Region for disposition.]
APPENDIX A
C. Amato E. Hackel I. Prisco
Y. Angotti M. Harris L. Rosso
A. Asconi E. Hundley E. Sigro
D. Battaglino N. Iosca C. Ulrich
P. Bizelewicz T. Kennedy D. Corey
A. Buja E. Knecht V. Battaglino
L. DeAngelo E. Stecz M. Lusky
C. Danza D. Villagomez A. Magee
T. Darragh M.. LaPorte M. Tosoloski
B. Doornbus E. Tercheck M. Van Blarcom
S. Skiados A. Laviola H. Wynne
L. Rivera G. Lucci D. Miller
E. Teitsma A. Lusky M. Gleason
P. Esposito J. Mascarin A. Merola
A. Fondacaro M. Misciagna J. Zeshonski
L. Greco
Alexander Manufacturing Company and Employees Committee of
Alexander Manufacturing Company, Petitioner. Case No.
15-RD-84. May 21, 1958 '
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before John H. Immel, Jr.,
hearing officer.' At the hearing, the Union moved to dismiss the
petition.on seve'ral grounds. For reasons stated infra, the motions-
are hereby denied. The hearing officer's rulings made at the hearing
are free from prejudicial error and are hereby affirmed.
120 NLRB No. 114.