Slumber Products Corp. & Sealy Southeast

National Labor Relations Board - Board Decisions

Aug 26, 1969

178 N.L.R.B. 224 (N.L.R.B. 1969)

224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Slumber Products Corp. & Sealy Southeast and
Local 282, United Furniture Workers of America,
AFL-CIO, Petitioner . Case 26-RC-3393
August 26, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
JENKINS AND ZAGORIA
Pursuant to a stipulation for certification upon
consent election approved on February 26, 1969, an
election by secret ballot was conducted on March
26, 1969, under the direction and supervision of the
Regional Director for Region 26, among the
employees in the stipulated unit described below. At
the conclusion of the election, the Regional Director
served upon the parties a tally of ballots which
showed that, of approximately 222 eligible voters,
223 ballots had been cast, of which 104 were for,
and 101 against the Petitioner. Seventeen ballots
were challenged, and 1 ballot was found to be void.
The challenged ballots are sufficient in number to
affect the results of the election. Thereafter, the
Employer and Petitioner filed timely objections.
In accordance with National Labor Relations
Board Rules and Regulations , Series 8, as amended,
the Regional Director conducted an investigation of
the challenged ballots and the objections and, on
May 9, 1969, issued and duly served upon the
parties his Report on Challenges and Objections, in
which he recommended that the Employer's
objections be overruled in their entirety, that certain
of the Petitioner's objections be overruled, and that
the remaining objections raised issues which would
best be resolved on the basis of record testimony,
and further recommended that if the revised tally of
ballots reveals that a majority of the valid votes has
not been cast for the Union, the case be
consolidated with Case 26-CA-3332. Thereafter, the
Employer filed timely exceptions to the Regional
Director's report. Subsequently, the Employer and
the Petitioner entered into a stipulation, approved
by the Regional Director for Region 26 on June 10,
1969, whereby the parties agreed that in the event a
revised tally of ballots should reveal that the
Petitioner did not receive a majority of valid votes
cast, the election held on March 26, 1969, be set
aside and a new election be directed by the Board.
The parties further stipulated and agreed that in the
event a revised tally showed that the Petitioner did
receive a majority of valid votes cast in the election,
the Petitioner be certified as the exclusive
representative of the Employer's employees for the
purposes of collective bargaining.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National 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 employees of the
Employer within the meaning of Sections 9(c)(1)
and 2(6) and (7) of the Act.
4. In accordance with the stipulation of the
parties, we find, that the following employees of the
Employer constitute a unit appropriate for the
purposes of collective bargaining within the meaning
of Section 9(b) of the Act:
Included: All production and maintenance
employees and truckdrivers employed at the
Employer's plant in Memphis, Tennessee.
Excluded: All office clerical employees,
watchmen, guards and supervisors as defined in
the Act.
5. The Board has considered the Regional
Director's Report and the Employer's exceptions,
and finds merit in the Employer's exceptions to the
Regional Director's recommendation that the
challenges to the ballots of William Garvins,
Lawson W. Danielson, and Malvin Massey be
sustained.'
The Regional Director recommended that the
challenge to the ballot of employee William Garvins
be sustained on the ground that Garvins, although
working within the unit as a regular production
employee, was hired for a limited time to liquidate a
social security overpayment, and was therefore a
pensioner under the Social Security Act who intends
to work just long enough in 1969 to qualify for
maximum social security benefits. In Holiday Inns
of America, Inc., 176 NLRB No. 124, the Board
reconsidered and revised its policy concerning the
voting eligibility of social security annuitants. As
Garvins was employed as a regular production
employee at times material herein, we shall, in
accordance with our decision in the cited case, direct
that Garvins' ballot be opened and counted by the
Regional Director.'
'In the absence of exceptions, we adopt pro forma the Regional
Director's recommendations that the challenges to the ballots of Ray
Beale , Alvin Blade , Curlee Lee Smith , Sally Ann Mitchell, James
Holloway , and Rosevelt Bowers be sustained , and that the challenges to
the ballots of Gladys Klaus , Evelyn Hillman , John Humphrey, Sammie
Shaffer, Roosevelt Owens, and Gladys Graves be overruled , and that the
Employer' s objections , as well as Petitioner' s objections 1(b), (e), (f), and
(g) be overruled. We further find that the Employer ' s exceptions to the
Regional Director's recommendation that the challenges to the ballots of
Melvin Edwards and Walter Hamer be sustained raise no material or
substantial issues of fact or law which would warrant reversal of the
Regional Director's findings and recommendations.
'Member Jenkins agrees that Garvins ' ballot should be opened and
counted , not for the reasons given in Holiday Inns. but because Garvins'
intention to retire at a future date does not, under settled principles of law,
render him ineligible to vote in the present election.
178 NLRB No. 39
SLUMBER PRODUCTS CORP. & SEALY SOUTHEAST 225
The Regional Director sustained the challenges to
the ballots of Lawson W. Danielson and Malvin
Massey on the grounds that they are accorded extra
benefits and consequently lack a community of
interest with, and enjoy a "special status" which
warrants their exclusion from the unit. Both
Danielson, a maintenance electrician, and Massey, a
sewing machine mechanic, participate in a more
liberal hospitalization and life insurance program
that is normally reserved for supervisors, are
permitted to eat in the "executive cafeteria", and
park their cars in the area normally reserved for
supervisory and management personnel. However,
as found by the Regional Director, there is no
evidence that Danielson or Massey possess any
indicia of supervisory authority, and they therefore
cannot be considered supervisors. Moreover, both
are on the production payroll, share common
supervision with unit employees with whom they are
in constant contact, work the same hours, are paid
by the same method, and receive the same vacation,
holiday, and profit sharing benefits. We find
Danielson and Massey are eligible to vote in the
election as employees in the agreed appropriate unit.
Accordingly, as we have overruled the challenged
ballots of employees William Garvins, Lawson W.
Danielson, Malvin Massey, Gladys Klaus, Evelyn
Hillman, John Humphrey, Sammie Shaffer,
Roosevelt Owens, and Gladys Graves, we shall
direct that the Regional Director open and count
these ballots, issue a revised tally of ballots, and
proceed in accordance with the June 10, 1969,
stipulation.
ORDER
It is hereby ordered that the challenges to the
ballots of William Garvins, Lawson W. Danielson,
Malvin Massey, Gladys Klaus, Evelyn Hillman,
John Humphrey, Sammie Shaffer, Roosevelt
Owens, and Gladys Graves be, and they hereby are,
overruled.
It is directed that as part of the investigation to
ascertain representatives for the purposes of
collective bargaining among the employees of
Slumber Products Corp. & Sealy Southeast, at its
Memphis, Tennessee, plant in an appropriate and
stipulated unit, the Regional Director for Region 26
shall, pursuant to National Labor Relations Board
Rules and Regulations, Series 8, as amended, within
10 days from the date of this Decision open and
count the ballots designated in the first paragraph of
this Order and, thereafter, prepare and cause to be
served upon the parties a revised tally of ballots,
including therein the count of said challenged
ballots.
It is further directed that in the event the revised
tally of ballots shows the Petitioner received a
majority of the valid votes cast, the Regional
Director shall issue a Certification of Representative
to the Petitioner.
It is further directed that should the revised tally
of ballots show that the Petitioner has not received a
majority of the valid ballots cast, the election
conducted on March 26, 1969, shall be set aside, in
accordance with the stipulation of the parties, and a
second election by secret ballot shall be conducted
among the employees in the appropriate unit. The
Regional Director for Region 26 shall direct and
supervise the election, subject to National Labor
Relations Board Rules and Regulations. Eligible to
vote are those in the unit who were employed during
the payroll period immediately preceding the date of
the issuance of the Notice of Second Election,
including employees who did not work during that
period because they were ill, on vacation, or
temporarily laid off. Also eligible are employees
engaged in an economic strike which commenced
less than 12 months before the election date and
who retained their status as such during the
eligibility period and their replacements. Those in
the military service of the United States may vote if
they appear in person at the polls. Ineligible to vote
are employees who have quit or been discharged for
cause since the designated payroll period and
employees engaged in a strike who have been
discharged for cause since the commencement
thereof, and who have not been rehired or reinstated
before the election date, and employees engaged in
an economic strike which commenced more than 12
months before the election date and who have been
permanently replaced.' Those eligible shall vote
whether or not they desire to be represented for
collective-bargaining purposes by Local 282, United
Furniture Workers of America, AFL-CIO.
'In order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their
addresses which may be used to communicate with them. Excelsior
Underwear Inc, 156 NLRB 1236; N.L.R.B v. Wyman-Gordon Company,
394 U.S. 759 Accordingly , it is hereby directed that an election eligibility
list, containing the names and addresses of all the eligible voters, must be
filed by the Employer with the Regional Director for Region 26 within 7
days after the date of issuance of the Notice of Second Election by the
Regional Director . The Regional Director shall make the list available to
all parties to the election . No extension of time to file this list shall be
granted by the Regional Director except in extraordinary circumstances.
Failure to comply with this requirement shall be grounds for setting aside
the election whenever proper objections are filed.