Rex Mobile Homes

National Labor Relations Board - Board Decisions

Oct 23, 1957

119 N.L.R.B. 91 (N.L.R.B. 1957)

REX MOBILE HOMES 91
contrary to congressional intent, simply by having its affiliate, inter-
national or local as the case may be, come forward as the nominal
bargaining claimant.
As recently as October 4, 1957, in Mine and Mill Supply Company,
118 NLRB 1536, the doctrine of the Darling and Loewenstein cases
was- again expressly reaffirmed in a majority decision by Chairman
Leedom and myself, with Member Rodgers dissenting on the same
fundamental basis which he asserted in his Darling dissent. And any
doubt about the legal purport of the Darling case should immediately
be removed in light of the Board's express reliance therein upon cases,
with circumstances identical to those here, which dismissed the em-
ployer petition on the basis of the Loewenstein policy. Thus, in
Staten Island Cleaners," and in Telegraph Publishing Company,'A
the representation claim was made by the International, and the Local
was not in compliance.15 In the latter case, after issuing a show-cause
order, the Board revoked the certification of the International in
view of the Local's noncompliance, citing Lane-Wells Company,
79 NLRB 252. This is the effective procedure, I submit, to accomplish
the purposes of the Act. I would, accordingly, issue a notice to show
cause why the certification of the International herein should not be
rescinded because of Local 1193's noncompliance.
33 93 NLRB 396.
24102 NLRB 1173.
25 Also cited were Law Tanning Company, 109 NLRB 268, where the international of-the
local claimant was out of compliance ; and The Federal Refractories Corporation, 100
NLRB 257, where both the claiming unions, not affiliated with each other, were non-
complying. These cases similarly show that the technical basis for the noncompliance
was deemed entirely immaterial-whether because of the noncompliance of the local, or
the international, or both.
Mid-States Corporation d/b/a Rex Mobile Homes and Local 544,
Sheet Metal Workers International Association , AFL-CIO,
Petitioner. Case No. 36-RC1f91. October 23,1957
SUPPLEMENTAL DECISION AND ORDER
Pursuant to a Decision and Direction of Election herein issued
on August 6, 1957,1 an election by secret ballot was conducted on
August 20, 1957, under the direction and supervision of the Regional
Director for the Nineteenth Region, among the employees in the unit
found appropriate by the Board. After the election the Regional
Director served upon the parties a tally of ballots which showed
that there were approximately 88 to 90 eligible voters and that 92
valid ballots were cast, of which 36 were cast for the Petitioner, 37
1 Not reported in the printed volumes of Board Decisions and Orders.
119 NLRB No.14. -
92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the Intervenor,' 8 against any participating labor organizations,
and 11 were challenged. No objections to the conduct-of the.election
were filed.
As the challenged ballots were sufficient to affect the results of the
election, the Regional Director, in accordance with the Rules and
Regulations of the Board, conducted an investigation of the issues
raised by the challenged ballots, and on September 6, 1957, issued
his report on challenged ballots. In his report the Regional Director
recommended that the challenges to the ballots of A. A. Van Dyke,
Robert Schneidewind, J. R. Wood, George Boersma, Herbert Matti-
son, and Ralph Ingram be overruled and the challenges to the ballots
of W. M. Mathews, A. L. Confer, Laurel Williams, and C. R. Church
be sustained. No recommendation was made as to the challenged
ballot of Richard Mackprang because he is the subject of an unfair
labor practice charge now under investigation. The Petitioner and
Intervenor filed exceptions to the Regional Director's report.
We have considered the Regional Director's report and the Peti-
tioner's and the Intervenor's exceptions. On the basis of the record
it appears that Van Dyke, Schneidewind, Boersma, Mattison, and
Ingram act as leadmen over certain groups of employees. However,
in the performance of their duties, they do not exercise the authority
of a supervisor as defined in the Act. Under such circumstances we
find that they are not supervisors and are eligible voters. On the
other hand, Mathews, Confer, Williams, and Church, who are like-
wise leadmen, in the performance of their duties exercise independent
judgment and responsibly direct the employees under them. We
find that they are supervisors within the meaning of the Act and are
therefore ineligible to vote.
As to J. R. Wood, the Regional Director's report indicates he is the
leadman in the stockroom, which includes shipping and receiving,
and is responsible for the work performance of his crew. It appears
he exercises the authority of a supervisor as the record discloses that
on at least one occasion he reported and discussed with his foreman
the case of an unsatisfactory employee which resulted in the transfer
of the employee. Under such circumstances, we find, contrary to the
Regional Director, that Wood is a supervisor within the meaning of
the Act and is therefore ineligible to vote.
No exceptions were filed with respect to the report on the challenged
ballot of Richard Mackprang. We shall therefore adopt the Regional
Director's recommendation and make no ruling on this ballot.
Inasmuch as the challenged ballots of the employees found eligible
to vote, as indicated above, are insufficient in number to affect the
results of the election in. that none of the ballot choices could receive
2 International Union, United Automobile. Aircraft & Agricultural Implement Workers of
America, AFL-CIO, herein called the Intervenor.
PREFABRICATORS, INC. 93
a majority of the valid votes cast, we find, in agreement with the
Regional Director, that no useful purpose would be served in opening
and counting the challenged ballots. Accordingly we shall not direct
that any of the challenged ballots be opened and counted. However,
as the results of the election are inconclusive, we shall order a runoff
election.
[The Board ordered that a runoff election be held under the direc-
tion and supervision of the Regional Director for the Region in which
this case was heard among the employees in the unit found appro-
priate in the Board's original Decision.']
MEMBERS MuRvocK and RODGERS took no part in the consideration
of the above Supplemental Decision and Order.
3 The eligibility date to be used in the runoff election shall be the same as that used in
the original election in accordance with Section 102.62 ( b) of the Board's Rules and
Regulations . See Fraser and Johnston Manufacturing Company, 106 NLRB 900. The
Petitioner's motion to change the eligibility date is therefore denied.
Prefabricators, Inc., a Division of Lumber Dealers, Inc. and
Donald W. Upchurch , Elbert B. Clift , John V. Richardone.
Cases Nos. 30-CA-458, 30-CA-465, and 30-CA-466. October 04,
1957
DECISION AND ORDER
On October 1, 1956, Trial Examiner Wallace E. Royster 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.'
The Board has reviewed the Trial Examiner's rulings made at the
hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions, the brief, and the entire.record in
this case, and hereby adopts the findings of the Trial Examiner only
insofar as consistent with this Decision and Order.2
The Trial Examiner found that the Charging Parties were unlaw-
fully discharged on October 13, 1955, for engaging in a concerted
'The Respondent also requested oral argument . The request is hereby denied as the
record , including the exceptions and brief, adequately presents the issues and the positions
of the parties.
2 In setting forth the business of the Respondent , the Trial Examiner inadvertently
stated that the Respondent and its parent corporation shipped goods to destinations located
outside the State of California rather than Colorado , as indicated in the record. We
correct that finding accordingly.
119 NLRB No. 7.