Romac Containers, Inc.

National Labor Relations Board - Board Decisions

May 3, 1971

190 N.L.R.B. 238 (N.L.R.B. 1971)

238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Romac Containers, Inc. and Renee Zubik, Petitioner
and Textile Workers Union of America , AFL-CIO
and its Local Union No. 1806.Case 8-UD-41
May 3, 1971
DECISION ON REVIEW AND ORDER
DIRECTING REGIONAL DIRECTOR TO OPEN
AND COUNT CHALLENGED BALLOTS
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND JENKINS
Pursuant to a letter directing an election issued by
the Acting Regional Director for Region 8 of the Na-
tional Labor Relations Board on August 14, 1970, an
election by secret ballot was conducted in the above-
entitled proceeding on August 28, 1970, under the di-
rection and supervision of the Regional Director. Upon
the conclusion of the election, a tally of ballots was
furnished the parties in accordance with the Board's
Rules and Regulations.
The tally of ballots showed that there were approxi-
mately 95 eligible voters and 71 cast ballots, of which
30 were cast in favor of withdrawing the authority of
the Union to require, under its agreement with the
Employer, that membership in the Union be a condi-
tion of employment. Twenty-five were cast against the
proposition and 16 ballots were challenged.
The Employer, Union, and Petitioner each filed
timely objections to the conduct of the election. The
Employer's and Petitioner's objections related in part
to the number of eligible voters which, if changed sub-
stantially from the number on the tally, would make
the challenged ballots sufficient to affect the results of
the election.
On November 4, 1970, the Regional Director issued
and served on the parties his Decision, Order, and
Certification of Results of Election, in which he over-
ruled all objections except those by the Employer and
Petitioner relating to the number of eligible voters.
With respect to the 16 challenged ballots, he found that
14 voters were ineligible as temporary summer students
and therefore should be excluded from the number of
eligible voters, and that the remaining 2 voters were
eligible but their ballots could not affect the results of
the election.
On the basis of his rulings, the Regional Director
found that there were 65 eligible voters and that 57 of
them cast ballots, of which 30 were cast in favor of the
proposition on the ballot and 25 were cast against. The
two challenged ballots cast by eligible voters were not
opened.
Because the majority of those eligible to vote did not
cast their ballots in favor of the proposition on the
ballot, the Regional Director in effect certified that the
Union's authority to make a union-security agreement
190 NLRB No. 47
had not been rescinded.' Thereafter, the Employer filed
a timely Request for Review, with supporting brief, of
the Regional Director's conclusion that the 14 summer
students were ineligible voters.
On February 10, 1971, the Board issued a telegraphic
Order granting the Employer's Request for Review. By
letter the Employer waived its right to file a further
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its powers
in connection with this case to a three-member panel.
The Board has considered the entire record in the
case with respect to the issues on review and makes the
following findings:
The Employer contends in its brief that the summer
students whom the Regional Director ruled ineligible
to vote were required to join the Union under the un-
ion-security provisions of the current collective-bar-
gaining agreement and were therefore within the bar-
gaining unit and eligible to vote.
The instant deauthorization election was conducted
in a unit of all employees at the Employer's Cleveland,
Ohio, plant, excluding office clerical employees, profes-
sional employees, guards and supervisors. This is the
same unit for which the Union was certified as the
collective-bargaining representative on November 23,
1969, and for which the parties shortly thereafter en-
tered into a 3-year collective-bargaining agreement.
This agreement contained a union-security clause that
required all employees hired by the Employer after 30
days of employment to become and remain members of
the Union, together with a provision for employer
checkoff of union membership dues (including initia-
tion fees) on written authorization of the employee.
About June 29, 1970, the Union and Employer
agreed that the union-security provisions of the collec-
tive-bargaining agreement should become applicable to
students working during the summer. Accordingly, the
Union, with the approval of the Employer, posted the
following notice on the plant bulletin board signed by
union and employer representatives;
June 29, 1970
FOR THE BENEFIT OF THE COLLEGE
STUDENTS:
There has been some discussion as to whether or
not you the college students that are working only
during the summer months will have to join the
union, the answer is yes. We have a Contract to
abide by and that contract states we are a union
shop and after 30 days you are required to be a
' The proviso to Section 8(a)(3) of the Act requires the vote of a majority
of the employees eligible to vote in a bargaining unit covered by a union-
security agreement in order to rescind the authority of the collective-bar-
gaining representative to make such an agreement.
ROMAC CONTAINERS 239
member in order to remain an employee . Even tho
you will pay an initiation fee this year, you will not
be required to pay again next summer , unless, you
fail to take a withdrawal card from the union.
Mr. Ridgeway has given me permission to quote
him in saying , That should the Company need
help again next summer and if there are jobs avail-
able in the plant that you qualify for, you can be
assured your jobs will have first priority for the
following summer work . All he asks , that you give
them some consideration and write to him or Mr.
James Schunck a few weeks before school lets out
in order to confirm your job and as to whether
these jobs will be available again for the summer
of 1971.
Upon leaving your employment to return to
school , you may obtain withdrawal cards from the
steward on your prospective shifts:
Should you be one of the less fortunate ones that
will not be able to resume work here at the Romac
Containers , Inc. because of no openings for the
summer , your withdrawal cards will help you if
you seek and obtain work with another firm that
has the Textile Workers Union of America in the
Cleveland area . Your withdrawal card will assure
you of being a member and another initiation fee
will not be required in order to work in their shop.
Most student employees joined . As of August 31, 1970,
only two , hired before the end of July 1970 , had not.
The challenged employees are full -time employees
working during their summer recesses from college or
nurses' training . Two had been employed during the
summer of 1969. None have worked during the year for
the Employer . All received holiday pay and the same
wage scale as permanent employees . All had left their
jobs with the Employer by September 25.
The Regional Director found that while most of the
student employees joined the Union , there was no evi-
dence that the Union compelled them to, the union-
security clause was , "at best , only loosely enforced
against students " and that , like other student summer
employees whom the Board finds ineligible to vote in
representation matters , the challenged students were
ineligible in this election.
We agree with the Regional Director that the Board
generally excludes summer students from the appropri-
ate unit because their work is temporary and that they
are therefore ineligible to vote in the usual case when
the parties contest their status . However , such generali-
zation is not applicable here . It is well settled that the
unit for a deauthorization election must be coextensive
with the contractural unit .' While the unit as defined in
the instant contract does not specifically exclude or
include summer students , it is clear that on or about
June 29 , 1970, they were in fact merged into the con-
tractual unit . Thus , as noted above , the parties bar-
gained and agreed that the union-security provisions of
the contract would be applicable to summer students,
the latter were advised that they were required to join
the Union ,' and all but two joined.
Accordingly ; we find, contrary to the Regional Di-
rector, that the 14 summer students involved were eligi-
ble to vote in the deauthorization election and we shall
order the Regional Director to open and count their
ballots as well as the challenged ballots of Wanda Raff-
erty and Linda Young , whom the Regional Director
found were eligible to vote . We further find that there
were 79 employees eligible to vote in the election.
ORDER
It is hereby ordered that , as part of his investigation
to ascertain whether the employees wish to withdraw
the authority of their bargaining representative to re-
quire , under its agreement with the Employer, that
membership in the Union be a condition of employ-
ment , the Regional Director for Region 8 shall , pursu-
ant to the Board 's Rules and Regulations, within 10
days from the date of this Order, open and count the
16 challenged ballots and thereafter prepare and cause
to be served upon the parties a revised tally of ballots,
including therein the count of such ballots , and to pro-
ceed further in accordance with the Board's Rules and
Regulations.
' Hall-Scott, Inc., 120 NLRB 1364; Publicker Chemical Corporation,
117 NLRB 257.
' There is no statutory or public policy which prohibits parties from
agreeing to include summer students in bargaining units . See B. J. Carney
Company, 157 NLRB 1285, 1287.