Tomadur, Inc.Download PDFNational Labor Relations Board - Board DecisionsApr 27, 1972196 N.L.R.B. 706 (N.L.R.B. 1972) Copy Citation 706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thomas Engine Corporation and Upshur Engine Co., Inc ., d/b/a Tomadur, Inc. and International Union, United Automobile, Aerospace and Agri- cultural Implement Workers of America (UAW) Thomas Engine Corporation and International Un- ion, United Automobile , Aerospace and Agri- cultural Implement Workers of America, UAW, Petitioner. Cases 21-CA-7950, 21-CA-8013, 21- CA-8025, and 21-RC-10771 April 27, 1972 SUPPLEMENTAL DECISION AND CERTIFICATION OF RESULTS OF ELECTION BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On March 30, 1972, the United States Court of Appeals for the District of Columbia 1 directed that the "case be remanded to the [United States Dis- trict Court for the District of Columbia] for further remand within seven (7) days to the ... Board for it to resolve the challenged ballots and certify the result of the representation election within thirty (30) days from the date of issuance of the order of the District Court." On April 3, 1972, the District Court entered such a remand order.2 Pursuant to a Stipulation for Certification Upon Consent Election, an election by secret ballot was conducted on March 29, 1968, under the direction and supervision of the Regional Director for Re- gion 21, among the employees in the unit agreed on by the parties. Upon the conclusion of the election, the parties were furnished with a tally of ballots which showed that there were about 167 eligible voters and that 158 ballots were cast, of which 74 were for the Petitioner, 76 were against the Petitioner, 7 were callenged, and 1 was void. Thereafter, the Board directed that the challenges be determined in the instant consolidated proceeding by the Trial Exam- iner who recommended that four challenges be sus- tained and that three challenges be opened in order to ascertain the outcome of the election? 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 au- thority in this proceeding to a three-member panel. Upon the entire record in this proceeding, the Board finds: U.A. W. v. N L R B., 462 F .2d 298 (C.A.D.C.). 2 United States District Court for the District Court of Columbia, Civil Action No. 1179-70. 3 179 NLRB 1029. 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 concern- ing the representation of certain employees of the Employer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. 4. The parties agreed, and we find, that the fol- lowing employees constitute a unit appropriate for collective bargaining within the meaning of the Act: All production and maintenance employees, including truckdrivers, shipping and receiving employees, and warehouse employees, exclud- ing all office clerical employees, order clerks, dispatchers, professional employees, guards, watchmen, and supervisors as defined in the Act. 5. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to make the following findings with respect to the challenged ballots: We agree with the Trial Examiner's resolution of six of the challenges: As Richard C. Dickey and James R. Wilkins were discriminatorily discharged, they were still employees at the time of the election and were therefore eligible to vote. Lester Byers and Philip J. Stegmair were not eligible to vote because they were supervisors within the meaning of the Act. Adam C. Bratton and Donald Coleman, who were laid off on January 25, 1968, were not eligible to vote because they did not as of the date of the election have a reasonable expectancy of recall. However, for reasons given below, we disagree with the Trial Examiner's finding that Albert J. Whitlock had a reasonable expectancy of recall as of the time of the election. Whitlock, who was credited by the Trial Examin- er, testified as follows on direct examination: On February 16, 1968, Whitlock's supervisor, Bob Tre- vathon, told Whitlock that Thomas Engine Corpo- ration was getting slow and he had to let Whitlock and five other employees go. Foreman Robert Hol- lenbeck gave Whitlock the addresses of some places he thought were hiring. Whitlock asked Trevathon "if there was any chance of [Whitlock's] coming back," and Trevathon replied that he "could not see any reason why not." When Whitlock questioned Plant Superintendent Walker "if there was any pos- sibility of coming back," the latter stated that it was mostly up to Trevathon and Hollenbeck because they worked most closely with Whitlock. Walker 196 NLRB NO. 128 TOMADUR, INC. also told Whitlock that he "didn't see any reason" why Whitlock would not come back. In addition, the following exchange between Respondent's counsel and Whitlock took place on cross-examination with respect to the layoff: Q. On February 16, 1968 Mr. Trevathon told you that you would have to be discharged or laid off? What exactly did he say to you? A. He said he was getting pretty slow. There was a reduction in force and he would have to lay me off. Q. Did he tell you to find other work? A. He said he didn't know how long it was going to be. He said to try to look for a job. Q. Did he give any time estimate at all? A. No, he didn't. In holding that Whitlock had a reasonable ex- pectancy of recall as of the time of the election, the Trial Examiner failed to give proper weight to Whitlock's significant testimony that Trevathon not only told Whitlock to find other work but also gave no estimate as to the duration of the layoff or any specific indication as to when, if at all, Whit- lock would be recalled.4 In the absence of such evidence, the vague statements of Trevathon and Walker as to the "chance" or "possibility" of Whitlock's coming back to work do not provide an 4 Similarly , employee Bratton , who, as noted above , was correctly found by the Trial Examiner to have no reasonable expectancy of recall , was told by his supervisor that the latter had no way of knowing how long the layoff would be and that Bratton should not sit at home waiting to be recalled. 707 adequate basis for concluding that Whitlock had a reasonable expectancy of reemployment. Alth- rough Whitlock was recalled on August 16, 1968, the test for determining expectancy of recall is the situation as it existed at the time of the election rather than subsequent developments.' In view of the foregoing, we find, contrary to the Trial Examiner, that Whitlock had no reasonable expectancy of reemployment as of the date of the election and was ineligible to vote. Accordingly, we conclude that only the ballots of Dickey and Wil- kins were those of employees who were eligible to vote. As their ballots were insufficient in number to affect the results of the election, it is unnecessary to have said ballots opened and counted. We shall therefore certify the results of the election because the Petitioner has failed to receive a majority of the valid votes case. CERTIFICATION OF RESULTS OF ELECTION It is hereby certified that a majority of the valid ballots have not been cast for International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, and that said labor organization is not the exclusive repre- sentative of all the employees, in the unit herein involved, within the meaning of Section 9(a) of the National Labor Relations Act, as amended. 5 See Zatko Metal Products Co., 173 NLRB 27, 33. Copy with citationCopy as parenthetical citation