Stretch-Tex Co.

National Labor Relations Board - Board Decisions

Sep 13, 1957

118 N.L.R.B. 1359 (N.L.R.B. 1957)

STRETCH-TEX CO. 1359
or abandon their employment status. It was stipulated at the , hearing that Gibbens
had, the status of a laid-off employee and that she was entitled to the next opening in
her classification . However, when she refused to cross the picket line Stearns told
her, as, he testified, that the obligation no longer existed . This was tantamount to
discharging Gibbens from her status as a laid -off employee with preferential employ-
ment rights because of her identification with the strikers and is the same action
which the other strikers who testified attributed to Stearns in connection with them.
When Stearns arrived at the plant it was obvious that a strike was in progress. The
employees, or at least a number of them , instead of proceeding into the plant and
to their work stations , were gathered about the entrance . When they failed to
respond to his invitation to go in to work he distributed the paychecks. Having
found that Stearns was not impelled by his interpretation of California law in thus
advancing the payday, I am convinced that he did so to emphasize to the strikers
present that their refusal to work signalled their separation from the Respondent's
payroll . I consider the payment later that morning to Perkins to have the same
intended significance and the payments to those individual employees whom he sought
out at their homes to constitute a further implementation of this purpose . The evi-
dence persuades me that Stearns did tell the strikers assembled before the plant gate
on the morning of August 6, and later that day Perkins and White , that because they
would not go to work their employment was terminated . I have no doubt but that
he later learned that he . should not have spoken in that fashion and has perhaps
persuaded himself that he did not do so.
I find that by telling the striking employees on August 6, 1956 , that because of
their engagement in a lawful strike they had forfeited their employment with the
Respondent , the Respondent interfered with , restrained , and coerced them in the
exercise of rights guaranteed in Section 7 of the Act , and that the Respondent has
thereby violated Section 8 (a) (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth above, occurring in connection with
its operations described in section I above, have a close, intimate , and substantial
relation to trade, traffic, and commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, it will
be recommended that it cease and desist therefrom , and take certain affirmative action
designed to effectuate the policies of the Act. Reinstatement is not sought and
therefore is not recommended.
Upon the basis of the foregoing findings of fact, and the entire record in the case,
I make the following:
CONCLUSIONS OF LAW
1. Amalgamated Local No. 990, International Union, Allied Industrial Workers
of America, AFL-CIO, is a labor organization within the meaning of Section 2 (5)
of the Act.
2. By interfering with, restraining, and coercing employees in the exercise of
rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
3. The aforesaid labor practices are unfair labor practices affecting commerce,
within the meaning of Section 2 (6) and (1) of the Act.
[Recommendations omitted from publication.]
Stretch-Tex Co . and United Textile Workers of America, AFL-
CIO, Petitioner . Case No. 10-RC-3526. September 13,195 7
SUPPLEMENTAL DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
Pursuant to a Decision and Direction of Election issued on
September 4, 1956, an election by secret ballot was conducted on
118 NLRB No. 183.
1360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
September 13, 1956, under the direction and supervision of the Re-
gional Director for the Tenth Region, among the employees in the
unit found appropriate by the Board. Following the election, the
parties were furnished a tally of ballots. The tally shows that of
approximately 90 eligible voters, 89 valid ballots were cast, of which
40 were cast for, and 43 against, the Petitioner, and 6 were challenged.
Thus, the challenged ballots were sufficient to affect the results of the
election. On September 17, 1956, the Petitioner filed objections to
conduct affecting the results of the election.
In accordance with the rules and Regulations of the Board, the
Regional Director conducted an investigation of the issues raised by
the challenged ballots and the Petitioner's objections, and on Decem-
ber 13, 1956, issued his report on election, challenged ballots, objec-
tions to the election and recommendations to the Board. In his report,
the Regional Director recommended that the challenges to the ballots
cast by Kathleen Sumner and Claudia Nelle Hobbs be overruled and
that the challenges to the ballots of Claudine Blankenship, Juanita
Beverly, and Doris Mellon be sustained. In these circumstances, he
found it necessary to decide whether the sixth challenged ballot,
which contained a partial erasure, was a valid one. The Regional
Director also recommended that the Board order a formal hearing
with respect to issues raised by the Petitioner's objections. To this
report, the Petitioner and Employer filed exceptions. On February 28,
1957, the Board, having duly considered the matter, ordered that a
hearing be held on issues raised by the challenges to the ballots of
Blankenship, Beverly, and Mellon 1 and to the one containing an
erasure, as well as by Petitioner's objections to the election. The
Board further ordered that a Trial Examiner be designated for the
purpose of conducting the hearing and that such Trial Examiner
prepare and cause to be served upon the parties a report containing
resolutions of the credibility of witnesses, findings of fact, and recom-
mendations to the Board as to the disposition of said challenges and
objections.
On April 4 and 5, 1957, the hearing ordered by the Board was held
before C. W. Whittemore, Trial Examiner. Both parties were repre-
sented and participated in the hearing. On May 14, 1957, the Trial
Examiner issued and served upon the parties his report containing
findings of fact and recommendations to the Board, a copy of which
is attached hereto. The Employer thereafter filed exceptions to the
Trial Examiner's report, together with a supporting brief.
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 Jenkins].
1 No exceptions were filed to the Regional Director 's recommendation that the challenges
to the ballots of Sumner and Hobbs be overruled and that recommendation is hereby
adopted.
STRETCH-TEX CO. 1361
The Board has reviewed the rulings made by the Trial Examiner
at' the hearing and finds that no prejudicial error was committed.
These rulings are hereby affirmed. The Board has considered the
Trial Examiner's report and the Employer's exceptions thereto and
supporting brief. Upon the entire record in this case the Board finds :
1. The Employer has excepted to the credibility findings of the
Trial Examiner. However, the Board will reverse a Trial Examiner's
credibility findings in proceedings of this type only when the clear
preponderance of all the relevant evidence convinces us that the Trial
Examiner's resolution is incorrect? We are not persuaded that the
Trial Examiner's credibility findings in this case are incorrect.
2. The Trial Examiner found that Blankenship, Beverly, and
Mellon were on temporary layoff status on election day and eligible
to vote in the election, and he recommended that the challenges to
their ballots be overruled. We agree with the conclusions and recom-
mendation of the Trial Examiner.
As more fully detailed in the Trial Examiner's report, the Em-
ployer had a layoff policy in effect during the critical period herein
which permitted senior employees who had unemployment compensa-
tion rights to volunteer for layoffs to be made by the Employer, thus
obviating the necessity of the Employer's laying off employees with
less seniority who had not yet earned compensation rights. Under
this so-called voluntary layoff policy, the more senior employees who
accepted the layoff could draw the unemployment compensation bene-
fits they were entitled to and return to work without any loss in their
seniority standing. Employees have been away from work on such
voluntary layoff status for periods of at least 3 months' duration.
Each of the three employees under discussion accepted a voluntary
layoff before the election, Beverly on July 13, 1956, Blankenship on
July 20, and Mellon on August 17.3 It is clear from the nature of the
voluntary layoff policy that these layoffs, at the time they were made,
were temporary ones and not permanent terminations. On the elec-
tion date, therefore, these employees were eligible to vote unless there
was some intervening change in their status which disqualified them
from voting. The Employer contends that there was such a change.
It asserts that it considered each of the three employees terminated
before. election time, and therefore no longer an employee-Blanken-
ship on August.16, when the Employer states it learned that she had a
full-time job with another employer in violation of a condition of the
voluntary layoff policy; Beverly on August 16, when she allegedly
2 Standard-Toth Chemicals, Inc., 104 NLRB 1120.
8 while Blankenship was reluctant to take the layoff on July 20 that she had previously
indicated would be acceptable to her, the Employer's own testimony shows that it con-
sidered her layoff to be of the voluntary type, like Beverly 's and Mellon's.
450553-58-vol. 118-8T
1362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
refused to comply with a request to return to work, also in violation of a
condition of the voluntary layoff policy; and Mellon on September 12
or 13, before the polls opened, when she allegedly told the Employer
she intended to look for another job. However, none of these em-
ployees was notified of her alleged termination before election day and,
in fact, no affirmative action of any description was taken by the
Employer prior to the election to change the temporary layoff status
.of the employees.' Moreover, when Blankenship called the Employer
sometime after August 16, subsequent to her alleged termination, but
before the election, to ask to return to work, she was turned down
on the ground that work was not then available. And when Beverly
and Mellon called the Employer in November to ask whether it was
true, as they had apparently been informed by fellow employees, that
they had lost their seniority, they were told that that was so for
the reason that the ownership of the plant had changed hands and
the new president wanted only the employees on the payroll at the time
of the changeover .5 It is thus plain that not only did the Employer
fail to communicate to the employees on these occasions, at which
times it would have been appropriate to do so, that they had theretofore
ceased to be employees of the Employer, but its explanation to Beverly
and Mellon that their status was affected by the change in ownership
is difficult to reconcile with its present position that their connection
with the Company was terminated before the election. Under all the
circumstances, we are not satisfied that Blankenship, Beverly, and Mel-
lon lost their employee status before the election, as the Employer
contends. Nor does the record warrant a finding that the status which
attached to each of the employees on the occasion of her layoff was
otherwise altered before election time. We therefore conclude that
Blankenship, Beverly, and Mellon were employees temporarily laid
off within the Board's meaning of the term on election day and hence
eligible to vote in the election. The challenges to their ballots are
accordingly overruled.
3. It appears that the Trial Examiner has upheld the ruling of the
Board agent conducting the election that the challenged ballot contain-
ing the partial erasure should be counted as a "Yes" ballot without
himself passing upon the validity of the ballot on the ground that the
Employer has in effect withdrawn its challenge to that ballot. While
4In this connection the Employer relies on the fact that when Mellon , on September 12
or 13, and Beverly , on September 13, called to ask whether they could vote, they were
told that they were not eligible to do so. However , the Employer explained to Mellon at
that time that her ballot would be challenged because of its lawyer 's advice "to only let
those vote that were on the payroll at the time of the election ." And, as pointed out in
the Trial Examiner 's report, it was the Employer 's practice to remove from the payroll
the names of those on temporary layoff status as well as those permanently laid off. We
are therefore unable to attach any significance to these incidents.
5 It is not contended , nor does it appear, that the plant changed hands before the
election.
STRETCH-TEX CO. 1363
the Employer's position with respect to the ballot is not altogether
clear, it would seem that it is still contesting the validity of the ballot
because of an erasure thereon but that it is also contending that the
ballot should not have been received in evidence, as was directed in the
Board's Order Directing Hearing, because, as was explained by its
counsel at the hearing, "according to my recollection [ it does not]
represent the ballot in the form in which it existed at the time it was
initially counted at the election." In the latter connection, the ballot
was produced by the General Counsel at the. hearing in a sealed enve-
lope containing two signatures written across the sealed part of the
envelope, which is the method customarily employed by the Board to
safeguard disputed ballots. The objection to its receipt was based
simply on a "recollection" of the ballot as cast and even this "recollec-
tion" was voiced only in argument against the admissibility of the bal-
lot into evidence and was without corroboration from sworn testimony.
Also, the objection to the ballot did not specify wherein it had been
altered. In these circumstances, we find that the ballot was properly
admitted into evidence pursuant to the Order Directing Hearing.
As for the ballot itself, it contains a clearly penciled "X" under
the word "Yes" and a diagonal line, which had been erased but still re-
mained faintly visible, under the word "No." We believe that the
intention of the voter who cast this ballot to vote "Yes" is abundantly
clear. We therefore find that the ballot is a valid one 6 and that it
should be counted with the other valid "Yes" ballots as a vote for the
Petitioner.'
4. Like the Trial Examiner, and on the basis of the testimony
credited by him, we find that the Employer's general manager, at meet-
ings with individual groups of employees held on about September 11,
threatened to close the plant if the Petitioner won the election and
thereby interfered with the freedom of choice of its employees in the
selection of a bargaining representative.8
On the basis of all the foregoing, we shall direct that the ballots of
Sumner, Hobbs, Blankenship, Beverly, and Mellon be opened and
counted and that the Petitioner be certified if, despite the Employer's
unlawful interference with the election, the aforementioned ballots
give the Petitioner a majority of the valid votes cast in the election.
However, if, upon the counting of such ballots, the Petitioner does not
receive such a majority, we shall, because of the Employer's interfer-
ON. L. R. B. v. Whitinsville Spinning Ring Company, 199 F. 2d 585 (C. A. 1) ; Belmont
Smelting & Refining Works, Inc., 115 NLRB 1481 ; General Motors Corporation, 107
NLRB 1096; Denver and Ephrata Telephone and Telegraph Company, 106 NLRB 1134.
7 Consequently, the election results now stand at 41 votes for, and 43 against, the
Petitioner, with 5 challenged ballots to be opened and counted.
s The Trial Examiner 's finding that the Employer did not also threaten the employees
with a wage cut if the Petitioner was the election victor is not excepted to and is hereby-
adopted.
1364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ence with the election, order the election set aside and a new one
conducted.
[The Board directed that the Regional Director for the Tenth Re-
gion shall, within ten (10) days from the date of this Order, open and
count the ballots of Kathleen Sumner, Claudia Nelle Hobbs, Claudine
Blankenship, Juanita Beverly, and Doris Mellon, and serve upon the
parties a revised tally of ballots.]
[The Board further directed that the Regional Director issue a
certification of representatives to the Petitioner if it receives a ma-
jority of the votes cast.]
[The Board ordered that, in the event the ballots of Sumner, Hobbs,
Blankenship, Beverly, and Mellon do not give the Petitioner a ma-
jority of the valid votes cast, the election of September 13, 1956, be
set aside and a new election be conducted.]
[Text of Direction of Second Election omitted from publication.]
Copeland Refrigeration Corporation and International Union of
Electrical , Radio and Machine Workers, AFL-CIO, Petitioner.
Case No. 8-RC-2979. September 13, 1957
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Carroll L. Martin,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
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 Jenkins].
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 labor organization involved claims to represent certain
employees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act.
4. The Petitioner, the certified bargaining representative of the
production and maintenance employees, exclusive of clerical and
technical employees, at the Employer's several compressor and con-
denser manufacturing plants at Sidney, Ohio, currently seeks a sep-
arate unit of all clerical employees at these plants. The Employer
contends that a unit of the office clerical employees is alone appropri-
118 NLRB No. 180.