S. S. Pierce Co.

National Labor Relations Board - Board Decisions

Apr 16, 1959

123 N.L.R.B. 804 (N.L.R.B. 1959)

804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
S. S. Pierce Co. and Local 829, International Brotherhood
of Teamsters , Chauffeurs, Warehousemen and Helpers of
America, Petitioner . Case No. 1-RC-5467. April 16, 1959
DECISION AND DIRECTION
Pursuant to a stipulation for certification upon consent election,
an election by secret ballot was conducted by the Regional Director
on January 27, 1959, among the employees in the unit described
below. After the election, the parties were furnished with a tally of
ballots which showed that, of approximately 340 eligible voters, 338
cast valid ballots, of which 167 were for and 165 against the Peti-
tioner. Six ballots were challenged.
After an investigation, the Regional Director on February 24,
1959, issued his report on challenged ballots, in which he recom-
mended that the challenges to the ballots of John J. Ward, Teddy L.
Todd, Donald H. Todd, and Joseph D. Jones be sustained, and that
the challenges to the ballots of John M. Finneran and Archie Thomas
be overruled. Thereafter, the Employer filed timely exceptions to
the Regional Director's findings and recommendations as to the
ballot of Jones alone. The Petitioner filed no exceptions.
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 [Members Rodgers, Bean, and Fanning].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The petitioner is a labor organization claiming to represent cer-
tain employees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Sections
9(c) (1) and 2(6) and (7) of the Act.
4. The parties stipulated and we find that all employees at the
Employer's warehouses located at 133 Brookline Avenue, Boston,
Massachusetts, and 287 Newtonville Avenue, Newton, Massachusetts,
including drivers, bakery employees, cafeteria employees, employees
in the operating order control department, and regular part-time and
reduced schedule employees, but excluding office clerical employees,
wholesale salesmen, retail sales employees, professional employees,
guards, and supervisors as defined in the Act, constitute a unit ap-
propriate for the purposes of collective bargaining within the mean-
ing of Section 9(b) of the Act.
5. The Regional Director's investigation shows that Jones, who
was employed as a garage man, was "terminated" in a reduction in
123 NLRB No. 98.
S. S. PIERCE CO. 805
force in June 1958.1 Prior to his termination, Jones requested con-
sideration for future garage vacancies. In August Jones was re-
hired as a temporary employee, first as a stockman and later as a
packer. Shortly after such rehire, the Employer promised him
permanent employment as a garageman to fill an anticipated vacancy.
Although the vacancy occurred in September, Jones did not secure
it. However, it does not appear that it was filled. Prior to the
termination of his temporary employment on December 23, and
before the eligibility date of the election, Jones renewed his request
and was told that he would be placed as soon as certain matters re-
sulting from the death of the garage manager were straightened out.
Jones was rehired as a garageman on January 16, 1959, after the
eligibility date of the election. The Regional Director concluded
that Jones was ineligible to vote as he was terminated from a
temporary job in December 1958, and on the eligibility date had no
more than a promise of a job at some future date. The Employer
,contends that Jones never lost his status as a laid-off garage em-
ployee, and that as of the eligibility date he had a reasonable assur-
ance of reemployment in the near future.
Unlike the Regional Director, we are unable to conclude that Jones'
:separation from the payroll in June 1958 was intended to, or did in
fact, terminate his status as an employee. He was not discharged for
cause, but was laid off in an economic reduction of force. At that
time the Employer was aware of his desire for future permanent em-
ployment and shortly thereafter gave him assurance of such employ-
ment, which in fact did materialize the day before the instant elec-
tion. The fact that during the interim the Employer gave him
temporary stopgap employment, pending the opportunity for perma-
nent employment, did not, in our opinion, impair his original status
as a laid-off employee. We find, therefore, that Jones continued in a
laid-off status throughout 1958 and on the eligibility date had a rea-
sonable expectancy for permanent employment in the near future.
Accordingly, he was eligible to vote .2 Under the circumstances we
direct that Jones' ballot together with those of Finneran and Thomas
be opened and counted.
[The Board directed that the Regional Director for the First
Region shall, within 10 days from the date of this Direction, open
and count the ballots of John M. Finneran, Archie Thomas, and
Joseph D. Jones and serve upon the parties a supplemental tally of
ballots, including the count of the ballots described above.]
1In absence of any exceptions to the Regional Director's findings as to the other five
challenged ballots listed above, we adopt his recommendations pro forma.
2 Barr Rubber Products Company, 118 NLRB 1428, 1430; Norris-Thermador Corporation,
118 NLRB 1341, 1343.