Tampa Sand & Material Co.

National Labor Relations Board - Board Decisions

Jul 20, 1962

137 N.L.R.B. 1549 (N.L.R.B. 1962)

TAMPA SAND & MATERIAL COMPANY 1549
Tampa Sand & Material Company and Teamsters , Chauffeurs
& Helpers, Local Union No. 79 , International Brotherhood of
Teamsters , Chauffeurs , Warehousemen & Helpers of America,
Petitioner . Case No. 12-RC-862. July 20, 1962
SECOND SUPPLEMENTAL DECISION, DIRECTION,
AND ORDER
Pursuant to a Supplemental Decision and Order' issued by the
Board in the above-entitled proceeding on January 12, 1961, the
Regional Director conducted a further investigation to determine
the eligibility of certain challenged voters and on June 2, 1961, issued
and served upon the parties his second supplemental report on chal-
lenged ballots. He recommended, inter alia, that in the event the
Board determined, in a companion unfair labor practice case, that the
strike which was in progress at the time of the election was an unfair
labor practice strike, the challenges to the ballots of all the employees
(listed in Appendix A of his report be sustained. The Employer filed
timely exceptions to the Regional Director's second supplemental
report.
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 [Chairman McCulloch and Members Rodgers and Fanning].
The Board has considered the Regional Director's second sup-
plemental report and the exceptions thereto, and upon the entire
record in this case, hereby adopts the Regional Director's findings
and recommendations except as modified below.
After the Regional Director issued his second supplemental report,
the Board issued its decision in Cone Brothers Contracting Company,
135 NLRB 108, finding that the strike at Tampa, which began on
May 27, 1960, was in protest against the unlawful discharge of three
employees and was therefore an unfair labor practice strike. There-
fore, consistent with settled Board policy, we find that all the em-
ployees listed in Appendix A of the Regional Director's second sup-
plemental report, with the exception of Charles Baggett, discussed
hereinafter, who are either new employees hired after the eligibility
date or replacements for unfair labor practice strikers, are ineligible
to vote. Accordingly, we sustain the challenges to their ballots.2
1 Tampa Sand & Material Company, 129 NLRB 1273 . The tally of ballots showed that
there were 19 votes for , and 54 votes against , the Petitioner and 116 ballots were chal-
lenged. Although the Board overruled the challenges to 37 ballots in that case , it with-
held directing that they be opened pending further investigation of the remaining chal-
lenges by the Regional Director.
2 Lock Joint Tube Company , 127 NLRB 1146, 1153; The Rivoli Mills, Inc., 104 NLRB
169, 172, footnote 9; Bear Brand Hosiery Co., 40 NLRB 807, 808.
137 NLRB No. 170.
1550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board, in its first supplemental decision, held in abeyance 11
other challenged ballots, which the Regional Director had discussed
in his report, as they were not determinative at that time. We now
rule on these remaining challenged ballots.
Walter B. Watson did not work after May 13, 1960, and was chal-
lenged because his name was not on the eligibility list. The Regional
Director recommended that in the event a charge alleging that Watson
had been discriminatorily discharged was dismissed or withdrawn,
the challenge to his ballot be sustained. As no exception was taken
to this recommendation, and as that charge has since been dismissed,
we adopt the Regional Director's recommendation pro forma.
Otho Mathis, Woodrow Wilson, and Wyman Davis were found to
have been unlawfully discharged in the aforementioned unfair labor
practice case and entitled to reinstatement. Accordingly, we find
that these employees were eligible to vote in the election and we shall
overrule the callenges to their ballots.
Robert Beck was on temporary layoff when the strike began at
Tampa. He received a letter from the Employer inviting him to re-
turn to work and replied stating that he could not work because he
was under a doctor's care. The Employer then notified Beck that the
job had been filled. Despite Beck's letter stating that he was sick,
the Regional Director found that his "predominant reason" for not
returning to work was the strike, and that he thus became a striker
and was eligible to vote. We do not agree. The record does not con-
tain any evidence that Beck joined the strike, other than his affidavit
given at the time of the investigation. We are inclined to give
greater credence to the reason Beck gave the Employer, just prior to
the election, for not returning to work. In the absence of any other
evidence, we are unable to conclude that Beck became a striker. Ac-
cordingly, as the Employer replaced Beck upon being notified that
Beck was sick and unable to return to work, we find that Beck was laid
off at the time of the election, and as there is no showing that he had
any further reasonable expectancy of recall after being replaced, we
find that he was ineligible to vote and shall sustain the challenge to
his ballot.
Archie Holley had been temporarily laid off and, like Beck, received
a letter from the Employer inviting him to return to work. Holley,
however, never answered the Employer's letter. The Regional
Director found that Holley did not reply to the Employer's letter and
did not return to work because he did not want to cross the picket line.
The Employer contends that by remaining silent and accepting alleg-
edly permanent employment elsewhere Holley abandoned his job.
We find, in agreement with the Regional Director, that the matters
relied upon by the Employer in its exceptions are insufficient to prove
that Holley did not join the strike or that he abandoned his employ-
TAMPA SAND & MATERIAL COMPANY 1551
ment with Tampa.' Accordingly, we overrule the challenge to his
ballot.
Lester Cumbest and David L. Green were temporarily laid off in
April 1960, were recalled and resumed work on May 26, 1960, and
joined the strike on May 27, 1960. The Employer contends that these
employees had accepted permanent employment elsewhere and had
abandoned their employment with the Employer herein. However,
we find, in agreement with the Regional Director, that the fact that
these employees returned to their jobs with Tampa prior to the strike
shows that they did not intend to abandon their employment with this
Employer. Accordingly, we overrule the challenges to their ballots.
James R. English refused to continue working when a picket line
against Cone Brothers was established at the jobsite where he was
working on May 24, 1960. English failed to report for work the fol-
lowing day, and on May 26, 1960, the day before the strike at Tampa
began, the Employer replaced him. The Regional Director found that
English was a striker "even though he [was] replaced prior to the
strike," and therefore eligible to vote. While we agree with the result
reached by the Regional Director, we do so for the following reason.
As English left his job at Tampa before the strike against Tampa
began, because of a labor dispute which another union, Operating
Engineers, was having with Cone Brothers,' we find that, unlike the
other employees at Tampa, English was making common cause, not
with the employees of Tampa, but with Cone's employees. Accord-
ingly, as the Board found the strike against Cone was an economic
strike, and as the Board found that Cone and Tampa constituted a
single employer,' we find that English was an economic striker and
we overrule the challenge to his ballot. Moreover, consistent with our
previous decision in this case,' we find that Charles Baggett, who was
hired as a permanent replacement for English, was eligible to vote and
we overrule the challenge to his ballot.
The exceptions with respect to the Regional Director's recommenda-
tions as to Harold Wallington and Frank Howard raise material and
substantial issues which can best be resolved by a hearing in the event
their votes become determinative of the election results.
Accordingly, we have overruled the challenges to 45 ballots, as iden-
tified below, we shall direct the Regional Director to open and count
these ballots and to prepare a revised tally of ballots. In the event
that the two remaining unresolved challenged ballots are sufficient in
number to affect the results as shown by the revised tally, the Regional
Director shall order a hearing on the remaining challenged ballots.
'Pacific Tale and Porcelain Company, 137 NLRB 1358
' Cone Brothers Contracting Company, supra.
6Ibid. In view of the fact that Cone and Tampa have been found to be a single em-
ployer, we need not, in this case , decide the question of what English ' s status would have
been had Cone and Tampa not been so related
6 Tampa Sand & Material Company, supra
1552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
[The Board directed that the Regional Director for the Twelfth
Region shall, within 10 days from the date of this Decision, open and
count the ballots of all the voters listed in Appendix B of the Regional
Director's second supplemental report on challenged ballots and James
R. Key, Ernest Roberts, Harold Byrd, Otho Mathis, Woodrow Wilson,
Wyman Davis, Lester Cumbest, David L. Green, Archie Holley, James
English, and Charles Baggett, the challenges to which have been over-
ruled herein, and serve upon the parties a revised tally of ballots, and
issue certification.
[The Board ordered that, if the revised tally of ballots indicates that
the two remaining unresolved challenges are sufficient in number to
affect the results of the election, the Regional Director shall schedule
a hearing before a hearing officer to resolve the issues raised by the
challenges to the ballots of Harold Wallington and Frank Howard.
[The Board further ordered that the hearing officer designated for
the purpose of conducting such hearing, serve upon the parties a re-
port containing resolutions of the credibility of witnesses, findings of
fact, and recommendations to the Board as to the disposition of the
challenged ballots. Within 10 days from the date of the issuance of
such report, any party may file with the Board in Washington, D.C.,
an original and six copies of exceptions thereto. Immediately upon
the filing of such exceptions, the party filing the same shall serve a
copy upon the other party, and shall file a copy with the Regional Di-
rector. If no exceptions are filed, the Board will adopt the recom-
mendations of the hearing officer.
[The Board further directed that the above-entitled matter be re-
ferred to the Regional Director for the Twelfth Region for further
proceedings consistent with this Decision and Direction.]
J. R. Simplot Company Food Processing Division and Teamsters
Food Processing Employees Union , Local 897. Case No. 19-CA-
2326. July 23, 1962
DECISION AND ORDER
On April 5, 1962, Trial Examiner Phil Saunders issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in certain unfair labor practices and
recommending that the complaint herein be dismissed, as set forth
in the attached Intermediate Report. Thereafter, the General
Counsel filed exceptions to the Intermediate Report and a brief in
support thereof and the Respondent filed a reply brief in support of
the Intermediate Report.
137 NLRB No. 177.