Tampa Sand & Material Co.

National Labor Relations Board - Board Decisions

Jan 12, 1961

129 N.L.R.B. 1273 (N.L.R.B. 1961)

TAMPA SAND & MATERIAL COMPANY 1273
1960, the date of Farraye's rejection of an offer of reemployment. I shall not
recommend an order of reinstatement in view of the fact that the uncontroverted
testimony of both Farraye and Kelly establishes that Farraye has indicated that he
does not desire reinstatement.
The interrogation of employees respecting union activities and the particular
instance of a -threat of reprisal for union activities herein warrant a remedial order
in view of the fact that they occurred in the setting of a discharge which I have
found to be discriminatory. In this setting I shall recommend that the Respondent
be ordered to cease and desist from such acts of interference, restraint, and coercion.
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAw
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. By discharging Joseph Farraye on February 9, 1960, thus discriminating in
regard to his hire and tenure of employment because he engaged in -activities for the
purpose of collective bargaining or other mutual aid or protection, and by failing
to make him whole for earnings lost thereby, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1)
of the Act.
4. By interrogating employees with respect to union activities and threatening
employee Farraye with reprisal for engaging in union activities, Respondent has
committed unfair labor practices within the meaning of Section 8(a) (1) of the Act.
5, The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
Tampa Sand & Material Company and Teamsters, Chauffeurs
& Helpers, Local Union #79, International Brotherhood of
Teamsters , Chauffeurs , Warehousemen & Helpers of America,
Petitioner. Case No. 12-RC-869. January 12, 1961
SUPPLEMENTAL DECISION AND ORDER
Pursuant to a Decision and Direction of Election issued by the
Board herein on May 24, 1960,1 an election by secret ballot was con-
ducted on June 7, 1960, under the direction and supervision of the
Regional Director for the Twelfth Region among the employees in the
appropriate unit. Following the election, the Regional Director
served upon the parties a tally of ballots which showed that of 189
ballots cast, 19 were for and 54 against the Petitioner, and 116 were
challenged. The challenged ballots were sufficient in number to affect
the results of the election. Thereafter, the Petitioner filed timely
objections to conduct affecting the results of the election.
The Regional Director thereafter investigated the challenges and
objections and, on August 12, 1960, issued and duly served upon the
parties his report on challenged ballots and objections to election, in
which he recommended that the objections be overruled in their en-
tirety and that the challenges to 70 ballots be sustained and 46 be
Not -published in NLRB volumes.
129 NLRB No. 156.
1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
overruled. Thereafter the Employer and the Petitioner timely filed
exceptions to the Regional Director's recommendations concerning
most of the challenged ballots. No exceptions were filed to the recom-
mendation to overrule the objections.2
The Board has considered the challenges 3 and objections, the Re-
gional Director's report, the exceptions filed thereto, and the entire
record in this case, and hereby adopts the findings and recommenda-
tions of the Regional Director, with the following additions and
modifications:
We agree with the Regional Director that the 34 strikers 4 listed in
Appendix B attached to his report, are eligible voters.5 The chal-
lenges to their ballots are therefore overruled.
With respect to the 66 employees listed in Appendix A of the
Regional Director's report, which includes both replacements for
strikers as well as additional new employees, the Regional Director
held that both groups were ineligible to vote as admittedly they were
first employed after the direction of election and the established eli-
gibility cutoff date. The Regional Director properly ruled with re-
spect to the new employees who were not hired as replacements for
the strikers. However, the established general eligibility period was
not necessarily controlling as to the replacements, for the Board's
direction specifically provided without qualification that strikers and
their replacements could vote under challenge. This was done to
enable the Board to consider on an ad hoc basis specific and unfore-
seeable issues involving the eligibility of both classes of employees.
In the instant case, we are presented with the unusual situation of a
strike arising after issuance of the direction of election , and as a result
the replacements for the strikers, although hired before the election,
were not employed during the established eligibility period. To dis-
enfranchise these replacements under our general eligibility rule
would, in our opinion, not comport with the policy of the Act, as
recently amended. Prior thereto, replaced economic strikers were not
2 As no exceptions were filed to the Regional Director 's recommendations to overrule
the objections to the election , we shall adopt his recommendations pro forma.
3 No exceptions were filed to the Regional Director ' s recommendations to sustain the
challenges to the ballots of Willie C. Lane and Harold Wellington , and to overrule the
challenges to the ballots of James R. Key , Ernest Roberts , and Harold Byrd Accord-
ingly, we shall adopt , pro forma, the Regional Director ' s recommendations as to these
challenged ballots.
4 Although the Employer would sustain the challenge to the ballot of Charles F. Pitts,
listed in Appendix B, for the further reason that he had been convicted of assault with
intent to kill in connection with his picket line activities , no evidence was submitted to
refute the Regional Director 's report of the Employer 's admission that this incident
occurred after the election . Therefore , as Pitts' status as an employee had not been
altered or challenged as of the election date , we find he is an eligible voter . See Union
Manufacturing Company , 101 NLRB 1028 , at 1031.
5 We find no merit in the Employer ' s legal contention that the Act prohibits the Board
from following the policy adopted in W. Wilton Wood, Inc., 127 NLRB 1675, of deciding
the "voting eligibility of economic strikers by the adjudicative process " rather - than by
the formulation of general rules and regulations.
PEYTON PACKING COMPANY, INC. 1275
eligible to vote, as a matter of law; while their permanent replace-
ments were permitted to vote. To eliminate such voting imbalance
between these two groups of employees, who would vie after the strike
for the same jobs, Section 9(c) was specifically amended so as to per-
mit replaced economic strikers to vote. We are satisfied that this
statutory scheme contemplated a corresponding right of replacements
to vote without regard to the eligibility period established for other
employees. Indeed, the facts in this case reveal that any other view
would sanction, in reverse, the kind of imbalance which the amend-
ment sought to eliminate. Accordingly, we hold that permanent re-
placements for strikers, who in no event may exceed the number of
strikers, are eligible to vote if employed on the date of the election.
In view of the basis for the Regional Director's finding that all
employees on Appendix A were ineligible to vote, he found it un-
necessary to determine whether such employees were replacements for
strikers or were hired as "additional" employees. However, in view of
our holding above, we find that such a determination is necessary.'
Accordingly, we shall remand this proceeding to the Regional Director
for further investigation to determine which of the challenged voters
were hired as permanent replacements for the strikers.
[The Board remanded the proceeding to the Regional Director for
the Twelfth Region for further investigation and a supplemental
report showing which of the employees listed in Appendix A, attached
to the Regional Director's report, were permanent replacements of
strikers.]
MEMBER JENKINS took no part in the consideration of the above
Supplemental Decision and Order.
O Although we have overruled the challenges to some of the ballots , we shall withhold
directing that they be opened and withhold resolving the challenges to the remaining
10 ballots as they are not determinative of the election at this time.
Peyton Packing Company, Inc. and Amalgamated Meat Cutters
and Butcher Workmen of North America, AFL-CIO. Case
No. 33-CA-512. January 13, 1961
DECISION AND ORDER
On September 16,1959, Trial Examiner Martin S. Bennett issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Interme-
diate Report attached hereto. The Trial Examiner further found
129 NLRB No. 163.