Rheem Manufacturing Co.

National Labor Relations Board - Board Decisions

Oct 13, 1955

114 N.L.R.B. 404 (N.L.R.B. 1955)

404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT perform, enforce, or give effect to our contract entered into in
July 1954'with Independent Machine Workers Union of Lancaster, Ohio, or to
any modification, extension, supplement, or renewal thereof unless and until
said organization shall have been certified by the National Labor Relations
Board. `
WE WILL NOT encourage membership in said Union , or any other labor
organization, by- -discriminating against employees in regard to, hire, tenure
of employment, or terms and conditions of employment.
All our employees are free to become, remain , or refrain from becoming members
of any labor organization , except to the extent that this right may be affected by
agreements in conformity with Section 8 (a) (3) of the National Labor Relations
Act, as amended.
ASSOCIATED MACHINES, INC.,
Employer.
Dated---------------- By----------------------------------------------
- (Representative ) (Title)
This notice must remain posted for 60 days from the date hereof, and must not he
altered , defaced , or covered by any other material.
.Rheem Manufacturing Company and United Steelworkers of
America, CIO, Petitioner. Case No. 4-RC-2614. ' October. 13,
1955
SUPPLEMENTAL DECISION AND CERTIFICATION OF
REPRESENTATIVES
- On June 1, 1955, pursuant to a Decision and Direction of Election
of the National Labor Relations Board,' an election by secret ballot
was conducted under the direction and supervision of the Regional
Director for the Fourth Region among the employees of the Employer
in the unit found appropriate by the Board. Upon the conclusion of
the Election, the parties were furnished a tally of ballots. The tally
showed that there were, 187 votes cast, of which 134 were for the
Petitioner, 51 were for the Intervenor, and 2 ballots were challenged.
Thereafter the Intervenor filed timely objections to the election. After
an investigation, the Regional Director, on June 7, 1955, issued and
duly=served upon the parties his report on objections, which is at-
tached hereto. In his report the Regional Director made various
factual findings, and concluded that the Intervenor's objections lacked
merit, and recommended that they be dismissed and that an appropriate
certification be issued by the Board. The Intervenor filed timely ex-
ceptions to the Regional Director's report on objections.
The Board has considered the Intervenor's objections, the Regional
Director's report on objections, and the Intervenor's exceptions thereto.
For reasons hereinafter stated we find the Intervenor's objections and
exceptions to be without merit. We therefore deny the Intervenor's
request that a hearing be held on its exceptions to the Regional Di-
rector's report.
1 Not reported in printed volumes of Board Decisions and Orders.
114 NLRB No. 74.
RHEEM MANUFACTURING COMPANY 405-
Thef • Objections
'The Regional Director recommended that objections numbered 6,
and 8 be overruled. As there were no exceptions filed to these recom
mendations they are hereby adopted. , . I . . I
The Intervenor's objections numbered 1, 2, 3, 4, 5, and 7, which the
Regional Director recommended be overruled, and to which recom-
mendations the Intervenor filed exceptions, are discussed below.
Objection No. 1: The Intervenor contends that prior to the election
the Employer expressed favoritism for the Petitioner, thereby thwart-
ing the employees' free choice' in the 'election. The Intervenor asserts
that on or about May 14, 1955, the Employer's production manager,;
Thomas O'Hagan, while conducting a safety meeting remarked to.
the employees present that,they should vote for the union that prom-
ised job security and not for the union that offered to obtain pay.
increases; and that such remarks were made in the context of the fact
that the Intervenor's campaign was based upon.securing wage, in-
creases. The Intervenor does not contend that O'Hagan promised
benefits, threatened, or in any other way coerced the employees in con-
nection with his remarks. In such circumstances, we find, in agree-
ment with the Regional Director, that O'Hagan's statements, even.
if made,2 were at the most privileged expressions of preference for one
union over the other, and do not warrant setting aside the election.3
Objection No. 2: The Intervenor contends that certain of the Em-,
ployer's leadmen campaigned on behalf of the Petitioner, thereby pre-
venting the employees from expressing their free choice in the. elec-
tion. Prior to the Board's Decision and Direction of Election herein,
the leadmen in question had been represented by the Intervenor as rank-
and-file employees and members of the bargaining unit. It appears that
at all times material to the discussion herein the' leadmen were mem-
bers of the Intervenor. The Board's Decision and Direction of Elec-
tion, which issued May 12, 1955, found the leadmen to possess super-
visory authority and excluded them from the unit. The Intervenor
does not contend that any of the leadmen, with the single exception
of James Burnett, campaigned after the Direction of Election issued.
Such campaigning then did not occur during the "critical period from
the issuance of the Direction of Election to the date of the election,"
and, whatever its nature, was too remote in point of time to warrant
setting aside the election.4
Burnett denied that he campaigned for the Petitioner after the Di--
rection of Election. Moreover, the Intervenor does not contend that.
Burnett, or for that matter any of the leadmen, promised benefits,
threatened, or in any other manner coerced the employees in order to'
2 O'Hagan denies making the statements.
See Westinghouse Electrsc Corporation , 110 NLRB 332, p. 333
See Lincoln Plastics Corporation, 112.NLRB 291.
406 DECISIONS OF NATIONAL LABOR RELATIONS- BOARD
obtain support for the Petitioner. In these circumstances, even as-
suming that Burnett and other leadmen continued to campaign after
the Direction of Election, we find in agreement with the Regional Di-
rector, in the -light of their membership in the Intervenor Union, tl*,jy-
prior inclusion in the unit, and the noncoercive nature of their con-
duct, that the impact upon the employees' free choice of the leadmen's
efforts on behalf of the Petitioner herein was not such as to cause us
to overturn the election.
With respect to the remaining incidents cited by the Intervenor in
support of this objection, we find that neither the fact that Leadman
Armstrong briefly wore a badge indicating support for the Petitioner
on a day prior to the election, nor the fact that most of the leadmen
appeared at the polls on the day of the election to vote, which vote
was denied without incident pursuant to the terms^of the Decision and
Direction of Election herein, are sufficient reason to require the election
to be set aside.
Objection No. 3: During the period immediately preceding the
election, the employees were covered by an agreement extending a
bargaining contract between the Employer and the Intervenor, which
had expired on April 30, 1955. Neither the extension agreement nor
the original contract mentioned retroactive pay. Prior to the elec-
tion the Intervenor distributed a leaflet which indicated that the em-
ployees might lose retroactive pay if they did not support the Inter-
venor at the election. The Intervenor asserts that a sworn statement
submitted by employee Jackson establishes that one Serlenga, a rank-
and-file employee and adherent of the Petitioner, told some employees
prior to the election that the Employer's personnel director, Jerry
Russ, had stated that any increases subsequently negotiated would not
be made retroactive to the period during which the extension agree-
ment was in effect. The Regional Director found no credible evidence
to support a finding that Russ made the statement attributed to him.
However, such a statement, even if made, is nondiscriminatory in
nature, in that it does not indicate that the retroactive pay issue hinged
upon the victory of either union in the election, and clearly does not
constitute a ground for setting aside the election.
Objection No. 4: The Intervenor also contends that the election
should be set aside because prior to the election some unknown person
placed an X in the USA-CIO (Petitioner's) square of the sample bal-
lot portion of several posted notices of election, which notices, so
marked, remained posted throughout the day of the election. The Em-
ployer denies knowledge of the defacement of the sample ballot until
after the election. We find that this defacement of the notices of elec-
tion, even if known by the Employer before the_ election- to have
existed, is not cause to set aside the election.,
5 See Lloyd A. Fry Roofing Co., 108 NLRB 1297, p. 1299.
RHEEM MANUFACTURING COMPANY 407
Objection No. 5: In this objection the Intervenor contends that
while the Employer permitted adherents of the Petitioner to campaign
freely about the plant, it did not permit the Intervenor's supporters
the same opportunity. The Regional Director in his report states that
although there is some evidence indicating that certain employees
campaigned for the Petitioner "there is no credible evidence that this
activity was encouraged, condoned, or even witnessed by the Employ-
er's foremen or other supervisory personnel." The report makes no
mention of the existence of any evidence tending to show that the In-
tervenor's supporters were discriminatorily restricted by the Employ-
er in their efforts to conduct a campaign on behalf of the Intervenor.
In its exceptions, the Intervenor asserts that the portion of the
Regional Director's report which states that there is no credible evi-
dence showing that the Employer's supervisors participated in the
campaign in support of the Petitioner, is contrary to evidence con-
tained in sworn statements of various employees which was presented
to the Regional Director during his investigation. The Intervenor,
however, does not specify in what details the Regional Director's state-
ment is inconsistent with the alleged sworn -statements, or to what ex-
tent the supervisors participated in the campaign.
Moreover, in neither its objections nor its exceptions does the Inter-
venor contend that the campaign as conducted was, absent a showing
that the Intervenor's supporters were discriminatorily denied the op-
portunity to campaign, coercive in nature. In this latter respect, the
Intervenor in its exceptions does not appear to deny that it failed to
submit to the Regional Director, along with its objections, evidence
which would tend to support its allegation that the Intervenor's sup-
porters were discriminatorily restricted by the Employer from cam-
paigning for the Intervenor. Instead, the Intervenor now contends
that oral examinations of the employees who submitted the sworn
statements; serve to supplement the facts contained-in the sworn state-
ments with facts pertaining to the restrictions placed on the Inter-
venor's followers. The Intervenor does not specify who conducted the
oral examinations to which it refers, or what facts the oral examina-
tions revealed. Moreover, the Intervenor makes no attempt to explain
why the supplementary facts were not included in the sworn state-
ments. In such circumstances, we agree with the Regional Director,
that`the Intervenor has not presented sufficient evidence to support the
allegations contained in its objection numbered 5.
Objection No. i : The Intervenor contends that the election should
be invalidated because a large number of the Employer's laid-off em-
ployees were improperly denied an opportunity to vote by a preelec-
tion ruling of the Regional Director. The Intervenor asserts that the
ruling of the Regional Director was contrary to the terms of the exist-
408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing contract between the Intervenor and the Employer and-also con-
trary to "the. Employer's policy of rehiring former employees."
The Regional Director found in his report that approximately 18
months ago the Employer laid off approximately 800 employees as a
result of a slump in its defense production; that the contract referred
to by the Intervenor provided that employees who were absent from
their employment for more than 6 months, for any reason, lost their
seniority rights; 6 and, accordingly, that the Employer was under no
contractual obligation to rehire the laid-off employees. The Regional
Director further found that even should the Employer successfully
complete its current negotiations for new defense business, it would
need to rehire only some 70 to 80 of its 800 laid-off employees, and that
the Employer did not know which of the laid-off employees it would
rehire: In its exceptions, the Intervenor does not challenge the Re-
gional Director's findings, nor does the Intervenor show why the laid-
off employees have a reasonable expectancy of reemployment under
the Employer's "policy." Accordingly, we agree with the Regional
Director that none of the laid-off employees has a reasonable, expect-
ancy of reemployment within the foreseeable future. •
In view of the foregoing, we find that the Intervenor's objections
and exceptions do not raise substantial and material issues with respect
to the conduct of the election, and they are hereby overruled. As the
tally shows that a majority of the valid votes have been cast for the
Petitioner, we shall certify the Petitioner as the collective-bargaining
representative of the employees in the appropriate unit.'
[The Board certified United Steelworkers of America, CIO, as the
designated collective-bargaining representative of the employees in
the unit found appropriate.] ,
p The Employer took the position that all the employees who had been laid off more
than 6 months were permanently terminated and properly declared ineligible to vote
v The challenged ballots do not affect the results of the election
Sefton Fibre Can Company and International Chemical ' Workers
Union, A. F. L., Petitioner
Sefton Fibre Can Company and Lodge 681, District Lodge 27,
International Association of Machinists , A. F. L., Petitioner.
Cases Nos. 9-RC-P24.95 and 9-RC-2506. October 13, 1955
DECISION AND DIRECTION OF ELECTION
Upon petitions duly filed under Section 9 (c) of the National Labor
Relations Act, and thereafter consolidated, a hearing was held before
114 NLRB No. 75. ,