Reidbord Bros. Co.

National Labor Relations Board - Board Decisions

May 14, 1952

99 N.L.R.B. 127 (N.L.R.B. 1952)

REIDBORD BROS. CO. 127
REIDBORD BROS . Co. and PITTSBURGH DISTRICT JOINT BOARD, AMAL-
GAMATED CLOTHING WORKERS OF AMERICA , CIO, PETITIONER. Case
No. 6-RC-798. May 14,1952
Second Supplemental Decision and Direction
On July 30, 1951, pursuant to the Board's Decision and Direction
of Election herein, dated June 25, 1951,1 an election by secret ballot
was conducted under the direction and supervision of the Regional
Director for the Sixth Region, among the employees in the appropriate
unit at the Employer's Blairton, Pennsylvania, plant. Upon com-
pletion of the election, a tally of ballots was duly furnished the par-
ties. The tally showed that, of 62 votes cast, 26 were for, and 29
against, the Petitioner, and 7 were challenged.
On August 6, 1951, the Employer filed objections to conduct affect-
ing the results of the election. In accordance with the Rules and Reg-
ulations of the Board, the Regional Director conducted an investiga-
tion of the objections and of the challenges, which were sufficient in
number to affect the results of the election. On October 11, 1951, the
Regional Director issued and served upon the parties his report on
objections and challenged ballots, in which he found that the ob-
jections raised no substantial and material issues with respect to the
election and recommended that they be overruled. He further found
that the seven challenged voters were eligible to vote and recom-
mended that the challenges to their ballots be overruled. The Em-
ployer timely filed exceptions to the Regional Director's determina-
tions with respect to the objections and to' two of the challenged bal-
lots, namely those of Dorothy Wagner and Jennie Trisoline.
On November 29, 1951, the Board issued a Supplemental Decision
and Direction,2 in which it (1) overruled the Employer's objections
to the election, and (2), in accord with the recommendation of the
Regional Director, to which no exception was taken, overruled the
challenges to five challenged ballots and directed that they be opened
and counted. It made no disposition of the challenges to the ballots
of Wagner and Trisoline, but directed that if, after the other five
challenged ballots were opened and counted, it should appear that the
ballots of Wagner and Trisoline could affect the results of the elec-
tion, a hearing should be held to determine whether or not they were
eligible to vote.
Upon the opening and counting of the five ballots, it appeared that
the ballots of Wagner and Trisoline might affect the results of the
1 Not reported in printed volumes of Board decisions.
97 NLRB No. 36.
99 NLRB No. 23.
128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
election.3 Accordingly, on December 13,1951, pursuant to the Board's
previous Direction, a hearing was held before Ralph E. Kennedy,
hearing officer, to determine the issues as to Wagner and Trisoline.
The Employer and the Petitioner appeared and participated.
On February 25, 1952, the hearing officer issued his report on chal-
lenged ballots, in which he recommended that the challenge to Wag-
ner's ballot be overruled, and her ballot opened and counted, and
that the challenge to Trisoline's ballot be sustained. The Employer
filed timely exceptions, with a supporting brief, to the hearing of-
ficer's report and recommendations relating to the challenged ballot
of Wagner. It also requested a ruling on an objection, made at the
hearing, that the Petitioner interferred with the election by transport-
ing Trisoline to the polls while the election was in progress. The
Petitioner filed a memorandum in opposition to the Employer's ex-
ceptions.
The Board has reviewed the rulings of the hearing officer made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the hearing
officer's report, the Employer's exceptions and brief, the Petitioner's
memorandum, and the entire record in the case, and hereby adopts
the findings and recommendations of the hearing officer for the fol-
lowing reasons :
No exceptions were filed to the hearing officer's recommendation
that the challenge to Trisoline's ballot be sustained. We therefore
adopt that recommendation.
As to the challenged ballot of Wagner, the hearing officer found
substantially as follows :
Wagner started to work for the Employer in January 1951 and was
laid off in May 1951. Soon after she went to work for the Employer,
she applied for employment at Sears, Roebuck & Company, and
when she was laid off by the Employer went to work for Sears.' The
Petitioner filed unfair labor practice charges against the Employer
after the May 1951 layoff. On or about July 18, 1951, a settlement
agreement was executed in which the Employer agreed to offer rein-
statement, with back pay, to about 20 employees, including Wagner.
On July 18, 1951,5 the Employer sent Wagner a letter advising her
to report to work on Thursday, July 26, 1951.
On July 24,1951, Murray Reidbord, the Employer's plant manager,
visited Wagner at the Sears store and asked her whether she intended
to return to work for the Employer. His, credited testimony is,that
' The revised tally of ballots, issued December 4. 1951, showed that, of 62 votes cast,
30 were for , and 30 were against, the Petitioner , and 2 remained challenged, 1. e., thdse
of Wagner and Trisoline
4 Wagner testified that the Sears ' job offered steadier employment and higher -wages.
c The hearing officer erroneously referred to this date in his report as July 19, 1951.
REIDBORD BROS. CO. 129
she replied that she would not return to work for the Employer.6
However, Wagner reported to the Employer on July 26, worked all
that day, and was paid by the Employer. On the 27th and 28th, she
worked at Sears." On the following Monday, July 30, the day of the
election , she again returned to the Employer, worked the entire day,
for which she was paid, and cast a challenged ballot in the election.
On Tuesday, July 31, she returned to her job at Sears and did not
work for the Employer thereafter. Wagner sent the Employer a
registered letter, dated July 31, 1951, advising it that: "Due to the
nervous strain and the condition at the Blairton plant, I am inform-
ing you that I have quit my job on Tuesday, July 31, 1951."
The hearing officer concluded that, as Wagner's name was on the
eligibility list, and as she had the status of an employee on the day
of the election, she was entitled to vote. Accordingly, he recommended
that the challenge to Wagner's ballot be overruled, and that it be
opened and counted."
The Employer does not seriously deny that Wagner' s name was
properly contained on the list of employees as of June 22, 1951, the
payroll eligibility date. However, it argues that Wagner was not
entitled to vote in the election conducted on July 30, principally on
the grounds that she quit on July 24, thereby waiving her right to
return ; that she was permitted to return only because the Employer
understood that the settlement agreement so required; and that she
was not a bona fide employee, having returned solely for the purpose
of voting. On this record, we find these contentions to be without
merit.
As the Board has frequently said, the essential element in deter-
mining an employee's eligibility to vote is his status on the eligibility
payroll date and on the date of the election. It is without controlling
significance that an individual employed on those dates may have
intended to quit,' or actually did quit,10 shortly after the election.
Here , Wagner, who had begun work for the Employer in January
1951, was properly included on the eligibility list and was admittedly
working for the Employer on the date of the election. We find, there-
6 Wagner testified that she told Reidbord she would be back to work. The hearing o&rcer
credited the testimony of Reldbord, rather than Wagner, on this conversation.
' Wagner did not notify the Employer that she would not be in to work on Friday, the
24th. The 28th was a Saturday, on which day the Employer's plant was closed.
8 In rejecting certain contentions of the Employer, the hearing officer stated that,
because Wagner was permitted to work on July 26 and 30, the Employer is "estopped"
to urge her ineligibility to vote While we adopt the hearing officer's findings and ulti-
mate conclusions, we do not adopt his reasoning that the Employer was so "estopped "
The Employer was not precluded from raising the issue of Wagner's eligibility to vote by
challenge, as it did in this case See Tyre Brothers Glass & Paint Company, 88 NLRB 65.
9 Bill Heath, Ino., 89 NLRB 1555.
10 Jabez Burns & Bona, Ino., 72 NLRB 18.
130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fore, that she was entitled to vote in the election ,11 and shall adopt the
hearing officer's recommendations that the challenge to Wagner's
ballot be overruled and her ballot opened and counted.
As previously noted, the Employer, in its exceptions, also requested
a ruling on an objection, raised for the first time at the hearing, that
the Petitioner interfered with the election by transporting Trisoline
to the plant on election day for the purpose of voting. This objection
is untimely 12 Moreover, the conduct in question did not constitute
interference with the election.13 Accordingly, the objection is over-
ruled.
Direction
As part of the investigation to ascertain representatives for the pur-
poses of collective bargaining with Reidbord Bros. Co., Blairton,
Pennsylvania, it is hereby directed that the Regional Director for
the Sixth Region shall, pursuant to the Rules and Regulations of the
Board, within ten (10) days from the date of this Direction, open and
count the challenged ballot of Dorothy Wagner, and shall thereafter
prepare and cause to be served upon the parties a second supplemental
tally of ballots, including therein the count of this challenged ballot.
MEMBER MURnocK took no part in the consideration of the above
Second Supplemental Decision and Direction.
"Contrary to the implication of the Employer, the record, in our opinion, fails to
establish that Wagner perpetrated any "fraud" on the Board's processes.
12 Consolidated Vultee Aircraft Corporation, 72 NLRB 407; cf. J. I. Case Company,
85 NLRB 576.
13 Hoague-Sprague Corporation, 80 NLRB 1699 ; Harry Manaster & Bro., 61 NLRB 1378.
INTERNATIONAL BROADCASTING CORPORATION (KWKH) and INTERNA-
TIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL. Case No.
15-CA-312. May 16, 1952
Decision and Order
On August 15, 1951, Trial Examiner Alba B. Martin issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief, and
requested oral argument.
All parties participated in oral argument before the Board on April
8, 1952.
The Board has reviewed the rulings of the Trial Examiner and finds
99 NLRB No. 25.