Sierra Lingerie Co.

National Labor Relations Board - Board Decisions

Jun 30, 1971

191 N.L.R.B. 844 (N.L.R.B. 1971)

844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sierra Lingerie Company and International Brother-
hood of Teamsters , Chauffeurs, Warehousemen and
Helpers of America, Local 976 . Case 27-RC-3924
June 30, 1971
DECISION AND DIRECTION
BY MEMBERS FANNING, BROWN, AND KENNEDY
Pursuant to a Stipulation for Certification Upon
Consent Election, an election by secret ballot was con-
ducted on October 22, 1970, under the direction and
supervision of the Regional Director for Region 27,
among the employees in the unit agreed upon by the
parties. At the conclusion of the election the parties
were furnished with a tally of ballots which showed
that of the approximately 190 eligible voters, 91 cast
ballots for, and 92 cast ballots against, the Petitioner.
There were 5 challenged ballots which are sufficient in
number to affect the outcome of the election. On Octo-
ber 29, 1970, the Petitioner filed timely objections to
conduct affecting the results of the election, which were
investigated by the Regional Director, who on January
8, 1971, issued his report on challenged ballots and
objections with recommendations to the Board. In his
report, the Regional Director recommended that the
challenge to the ballot cast by Gary Pilkington be over-
ruled, Petitioner's Objections 2 through 16 be over-
ruled, and that a hearing be held to resolve the eligibil-
ity status of employees Shirley Hennessy, Rona Roth,
Sandra Tomney, and Marie Gardner, and the issue as
to employees in so-called "temporary layoff" status
raised in Objection 1.' On February 2, 1971, the Board
issued an order directing such a hearing before a Hear-
ing Officer. Pursuant to the Board's order, a hearing
was conducted on March 11, 1971, before Hearing
Officer Allison E. Nutt. On April 2, 1971, the Hearing
Officer issued his Report on Objections in which he
recommended that Petitioner's request to withdraw
Objection 1 be approved; that the challenges to ballots
cast by Roth, Hennessy, and Tomney be overruled; and
that the challenge to the ballot cast by Gardner be
sustained. Thereafter, the Employer filed exceptions to
the Hearing Officer's recommendations as to disposi-
tion of the Hennessy and Tomney ballots, and Peti-
tioner filed exceptions to the Hearing Officer's disposi-
tion of the Gardner ballot.
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.
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the
meaning of the Act and it will effectuate the purposes
of the Act to assert jurisdiction herein.
2. The Petitioner is a labor organization claiming to
represent certain employees of the` Employer.
3. A question affecting commerce exists concerning
the representation of certain employees of the Em-
ployer within the meaning of Section 9(c)(1) and Sec-
tion 2(6) and (7) of the Act.
4. The parties have agreed, and we find, the following
employees constitute a unit appropriate for collective
bargaining within the meaning of the Act.
All production, maintenance, shipping and receiv-
ing employees employed by the Employer at its
operation at 300 West 12th Street, Ogden, Utah,
excluding all office clerical employees, guards,
salesmen, professional employees and supervisors
as defined in the Act.
5. The Board has considered the Hearing Officer's
report and recommendations, and the parties excep-
tions thereto. While we adopt his findings and recom-
mendations that the challenge to the ballot of Tourney
be overruled and that the challenge of Gardner's ballot
be sustained, we find merit in the Employer's exception
to the Hearing Officer's recommendation that the chal-
lenged ballot cast by Hennessy be opened and counted.'
The facts show that during early 1970,' Shirley Hen-
nessy was one of the 100 employees working in the
section of the Employer's plant called the Guild line.
In April, the Employer was informed that its arrange-
ment with Guild Lingerie Company, the company for
which Guild line items were produced and which also
owned the Guild line machinery, would be terminated.
The Employer informed the Guild line employees of
the fact that their line of work would be phased out but
that the Company would attempt to absorb those em-
ployees on the Sierra line. About 80 percent of Guild
employees were so transferred by June 18.
On June 18, Hennessy and some other Guild em-
ployees were informed by floorlady Donna Woods that
there was no more work on the Guild line. She further
told them that the Company would try to obtain more
Guild work and that if it were successful, they would
be recalled and that the Company would also try to
absorb employees on the Sierra line when there were
openings. She did not indicate when the employees
might be called back and the termination slips given the
employees indicated the reason for their unemploy-
ment was "temporary layoff." Hennessy, however, has
not been recalled. Sometime in October she was in-
' As no exceptions have been taken to the Hearing Officer 's recommen-
dations regarding Objection 1 and the challenged ballot cast by Roth, these
recommendations are adopted pro forma.
' No exceptions were taken to these findings and recommendations. Dates are 1970 unless stated differently
191 NLRB No. 148
SIERRA LINGERIE COMPANY 845
formed by the Company that her group insurance
would be canceled.
The Hearing Officer concluded that between the eli-
gibility date of August 29 and October 22, the election
date , Hennessy 's status was that of an employee on
temporary layoff with a reasonable expectancy of re-
call. Accordingly , he found she was eligible to vote in
the election and recommended that her challenged bal-
lot be opened and counted . In arriving at this conclu-
sion, the Hearing Officer relied on the fact that Hennes-
sy's termination notice stated the layoff was temporary
and that Hennessy considered herself subject to recall.
The test however is whether on the basis of the objec-
tive evidence there existed a reasonable expectancy of
employment in the near future.'
There is no objective evidence in the record to indi-
cate the Company has taken concrete steps toward
acquiring another line of work similar to that done on
the Guild line . The record reveals that transfer from
the Guild line to the Sierra line in most instances re-
quired additional training and that such a transfer de-
pended upon the availability of a job and the ability of
the employee to do Sierra work . Since June 18, the
Employer has hired outsiders with specific experience
to fill Sierra vacancies , to avoid retraining . At the time
she was laid off, Hennessy was not offered , nor did she
seek, an opportunity to transfer to the Sierra line. She
was not considered for any vacancy occurring subse-
quent to June 18. The Employer contended, and Hen-
nessy admitted , she did not possess the qualifications to
work on the Sierra line.
Although the termination slips given Hennessy and
the other employees stated the reason for their separa-
tion was "temporary layoff" the Employer contends it
has always used the term without regard to the perma-
nency or temporary nature of a layoff. The record es-
tablishes that this practice was so understood by other
employees . Against this background , we view the Com-
pany's notice to Hennessy that her group insurance was
being canceled as being more consistent with a perma-
nent than a temporary layoff. On the basis of the
foregoing , we find Hennessy did not have a reasonable
expectancy of returning to work . Accordingly , we sus-
tain the challenge to her ballot.
As we have overruled the challenges to two ballots
and these may be determinative of the results of the
election , we shall direct that the Regional Director
open and count the ballots of Rona Roth , Sandra Tom-
ney, and Gary Pilkington and cause to be served on the
parties a revised tally of ballots.
DIRECTION
It is hereby directed that , as part of his investigation
to ascertain the representative for the purposes of col-
lective bargaining with the Employer, the Regional Di-
rector for Region 27 shall, pursuant to the Board's
Rules and Regulations, within 10 days from the date of
this direction , open and count the ballots cast by Rona
Roth, Sandra Tomney , and Gary Pilkington and there-
after cause to be served on the parties a revised tally of
ballots , including therein the count of the above-men-
tioned ballots . Thereafter the Regional Director shall
issue the appropriate certification in accordance with
the Board's Rules and Regulations.
° See, e.g, Higgins. Inc., 111 NLRB 797, 799.