Triangle Publication, Inc.

National Labor Relations Board - Board Decisions

Nov 24, 1948

80 N.L.R.B. 835 (N.L.R.B. 1948)

In the Matter of TRIANGLE PUBLICATION, INC., STATION WFIL-TV,
EMPLOYER and INTERNATIONAL ALLIANCE OF THEATRICAL STAGE
EMPLOYEES AND MOVING PICTURE MACHINE OPERATORS OF THE
UNITED STATES AND CANADA, PETITIONER
Case No. 4-RC-156.-Decided November 24, 1948
DECISION
AND
DIRECTION
On June 22, 1948, pursuant to a "Stipulation for Certification upon
Consent Election," an election by secret ballot was conducted under
the direction and supervision of the Regional Director for the Fourth
Region. Upon the conclusion of the election, a Tally of Ballots was
furnished the parties in accordance with the Rules and Regulations of
the Board.
The Tally shows that 42 ballots were cast, of which 7 were for,
and none against the Petitioner, with 35 challenged ballots.
Because the challenged ballots were sufficient in number to affect the
results of the election, the Regional Director conducted an investiga-
tion and, thereafter, on July 13, 1948, issued and served upon the
parties a Report on Challenges in which he made the following
recommendations: (1) that the challenges to 16 ballots,' which were
challenged by the Board agent, be sustained for the reason that the
voters are not, nor were they ever, employees in the unit agreed upon
in the "Stipulation for Certification upon Consent Election"; (2) that
the challenge to 1 ballot,2 which was also challenged by the Board
agent, be sustained because the voter was employed after the eligi-
bility date of May 28, 1948; (3) that challenges to 4 ballots,3 which
were challenged by the Board agent because the voters' names did not
appear on the eligibility list, be overruled for the reason that their
'The ballots of Richard P. O. Delp, Samuel Caplan , Fred Brost , Edgar Darlington, Irvin
Mitchell , Chas. Wrigley, Patrick Lynch, Frederick Chassey, Sam Proud, Benj . Sidman, Frank
Unterberger , Walter Burger , Alan Seager, George L. Schisselbauer , John S. Schantz, and
Frank J. Kern.
2 Ballot of Manuel Krangel.
S The ballots of E. S. Granger , Milt Most, John Hirst, and J . Bishop.
80 N. L R. B., No 132.
835
817219-49-vol. 80-54
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
names were erroneously omitted therefrom; and (4) that the issues
raised by challenges to 14 ballots, of which 4 were cast by strikers,4 and
10 by replacements, 5 be remanded to the Regional Director for the
purpose of conducting a hearing to determine the status of the 4
strikers and 10 replacements. Both the Employer and the Petitioner
contended, in exceptions filed, that there are sufficient facts available
to warrant a finding that the challenges to the 4 strikers' ballots be
sustained and that the challenges to the 10 replacements' ballots be
overruled, without further hearing.
On August 9, 1948, the Board, having duly considered the Regional
Director's Report and the exceptions of the parties thereto, adopted
the above-mentioned recommendations of the Regional Director, and
in accordance therewith, remanded the case for a hearing with respect
to the status of the 4 strikers and 10 replacements.
On September 14, 1948, a hearing was held at Philadelphia, Penn-
sylvania, before a hearing officer of the Boards All parties appeared
and participated. The hearing officer's rulings made at the hearing
are free from prejudicial error and are hereby affirmed.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. The Employer is engaged in commerce within the meaning of the
National Labor Relations Act.
2. In accordance with the agreement of the parties, we find that
all employees of the Employer's television station WFIL-TV, in Phil-
adelphia, Pennsylvania, excluding clerical employees, guards, profes-
sional employees and all supervisors as defined by the Act, constitute
a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act.
3. American Communications Association, CIO, a union that has
not complied with Section 9 (f), (g), and (h) of the Act, hereinafter
referred to as ACA, previously was collective bargaining representa-
tive for technical employees of the Employer at WFIL-TV and also
for the technical employees of the Employer at radio station WFIL.
ACA's contract expired April 15, 1948. On April 30, 1948, during
negotiations between the Employer and ACA for renewal of the ex-
pired contract, the Employer notified ACA that it was no longer rec-
4 Wm. F. Morris , John Irvine , Frank Uphoff and Charles Shellenberger.
Edward Block , Edward W. Sattler , Edward 1. Stern, Lawrence W. Kepner, Lamarr Cox,
William C. Clair , Irwin L Ross , H. Karl Godshall, Jr., Chas. J. Gavin, and John R . Shearer.
These names appear as " rrected at the hearing.
6 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-man panel consisting of the undersigned
Board Members [Chairman Herzog and Members Houston and Reynolds].
TRIANGLE PUBLICATION, INC. 837
ognized as the bargaining representative for its television employees
at WFIL-TV because a claim to represent a majority thereof had
theretofore been made by the Petitioner, whereupon negotiations were
terminated. On May 1, 1948, the ACA called a strike of the tech-
nicians of Station WFIL-TV, at which time all 23 technicians walked
out. No unfair labor practice case being before us, we may assume
that this was an economic strike.7 By letter dated May 4, 1948, the
Employer urged each of the 23 strikers to apply for reemployment.
Five of the 23 strikers applied for reemployment and are presently
employed by the Employer. These 5 voted unchallenged ballots.
There is no evidence that the remaining 18 ever made a request for
reemployment at any time. However, 4 of the strikers with whom
we are presently concerned were present at the polls and voted chal-
lenged ballots. The petition herein was filed on May 8, 1948. On
May 20, 1948, the Employer and Petitioner, with the approval of the
Regional Director, entered into a "Stipulation for Certification upon
Consent Election," fixing the date of election June 22, 1948, and estab-
lishing the pay-roll period of May 28, 1948, as fixing eligibility to
vote. The ACA was not permitted to intervene because of its non-
compliance with Section 9 (f), (g), and (h) of the Act.
The ballots of the replacement workers
Most of the 10 replacements who voted challenged ballots are grad-
uates in television from Temple Technical Institute, Philadelphia,
Pennsylvania. Although certain of these replacements who were en-
gaged immediately following the strike were initially hired for the
duration of the strike, they were later put on a permanent basis, about
May 15, 1948, after a majority of the strikers had failed to make
application for reemployment. The remaining replacements hired
after May 19, 1948, and during the pendency of the strike were, at
the outset, employed as permanent employees. All 10 replacements
were employed at the date of the election and are still in the employ
of the Employer on the staff of Station WFIL-TV. Because the
record indicates that the 10 replacements were employed as permanent
employees at the time of the election, in June, we find that they were
eligible to vote in such election. Accordingly, we shall overrule the
challenges to the ballots of the 10 replacements.8
'Matter of Times Square Stores Corporation , 79 N. L R B. 361.
8 N. L R. B. v. Mackay Radio d Telegraph Co , 304 U. S. 333 ; Matter of The Pipe
Machinery Co., 79 N L R. B . 1322. and Matter of Solar Electric Corp., 80 N. L . R. B. 43.
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The ballots of the strikers
In respect to the four strikers who voted challenged ballots, the
record shows that they have at no time made application for rein-
statement to the positions which they vacated. As the record dis-
closes that the Employer attained a full technical staff sometime dur-
ing the pay-roll week ending June 12, 1948, it is apparent that no,
jobs were available to the four strikers on June 22, 1948, the date
on which the election was conducted. The record shows, and we
find, that the four strikers in question were permanently replaced be-
fore the election; therefore, under well-established principles, they
had no right to reinstatement.0 Accordingly, we find that they were
not eligible voters, and we shall sustain the challenges to their ballots.
As there are no exceptions to the Regional Director's recommenda-
tions that the challenges to the ballots of 17 voters whose ballots are
not in issue and whose names appear in footnotes 1 and 2 supra be sus-
tained, we hereby adopt the said recommendations. Similarly, the
recommendation of the Regional Director that the challenges to the
ballots of 4 voters whose names appear in footnote 3, supra, be over-
ruled, is hereby adopted. As we have found that the 10 replacements
are eligible to vote, we shall direct that their ballots be opened and
counted.
DIRECTION
It is hereby directed, that the Regional Director for the Fourth
Region shall, within ten (10) days from the date of this Direction,
open and count the ballots cast by E. S. Granger, Milt Most, John
Hirst, J. Bishop, Edward Block, Edward W. Sattler, Edward I.
Stern, Lawrence W. Kepner, Lamarr Cox, William C. Clair, Irwin
L. Ross, H. Karl Godshall, Jr., Chas. J. Gavin, and John R. Shearer,
and thereafter prepare and serve upon the parties to this proceeding
a Supplemental Tally of Ballots, including therein the count of said
challenged ballots.
9 See cases cited in footnote 8, supra.