102 N.L.R.B. 1626 (N.L.R.B. 1953)

Union Manufacturing Co.

National Labor Relations Board - Board DecisionsFeb 24, 1953

102 N.L.R.B. 1626 (N.L.R.B. 1953)

1626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD learned his duties and techniques while on the job, does not need col- lege training, is supervised by the plant manager, and receives about the same salary as a foreman. He prepares records of the tests he has conducted for the Baltimore City Health Department and for the State. We shall include the laboratory man in the unit. Retail store salesman: The retail store salesman sells dairy products to customers who come to the store, takes telephone orders, and occa- sionally provides merchandise to drivers for resale. He receives the same vacation period as the foremen and other plant employees, and deals with others in the plant only when he orders merchandise to stock his store. On his days off he is replaced by a man in the plant who handles the "check in" of all the drivers. He is responsible to the sales manager and utilizes the same washroom and lunchroom facilities as the others in the plant. Because the similarity of his work to that of other salesmen in the unit, we find that his interests are more closely related to the interests of the other employees in the unit than to those of the office clerical workers and we shall include him in the unit. The following employees of the Employer constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act: All the production and maintenance employees of the Employer at its Baltimore and Westminster plants, including the retail distribu- tors, outside salesmen, field men, laboratory man, retail store salesman, foremen, and supervisors,9 but excluding executives, guards, watch- men, office clerical workers, professional employees, and the field supervisor, and other supervisors as defined in the Act. [Text of Direction of Election omitted from publication in this volume.] 9 See footnote 8, supra. UNION MANUFACTURING COMPANY and AMERICAN FEDERATION OF HOSIERY WORKERS, AFL, PETITIONER . Case No. 5-RC-1103. Feb- ruary 24, 1953 Second Supplemental Decision and Direction On December 12, 1952, the Board issued a Supplemental Decision and Order in the above-entitled proceeding," directing that testimony be excluded at any hearing on challenged ballots in this proceeding as to alleged "debarment" activity on the part of strikers not dis- 1 101 NLRB No. 181. 102 NLRB No. 176. UNION MANUFACTURING COMPANY 1627 charged or denied reinstatement prior to the date of the election conducted herein. The Board further directed that the proceeding be remanded to the Regional Director for the Fifth Region for the preparation of a supplemental report on challenges in accord with this ruling.2 On January 9, 1953, the Regional Director issued such supple- mental report finding that none of the strikers whose eligibility is challenged herein were permanently replaced, discharged, or denied reinstatement by the Employer prior to the date of the election. Con- sistent with the Board's Supplemental Decision and Order, the Re- gional Director therefore recommended that the challenges to 59 ballots contested by the Employer solely upon the grounds of "debar- ment activity" be overruled and the ballots be opened and counted. Twenty-three additional ballots were challenged by the Employer on the ground that the individuals concerned had secured permanent employment elsewhere, as well as engaged in "debarment" activity. The Regional Director found, on investigation, that 15 of these indi- viduals had not obtained regular and substantially equivalent em- ployment elsewhere at the time of the election, and recommended that the challenges to these 15 voters be overruled and that their ballots be opened and counted. He found that 2 individuals challenged by the Employer had obtained permanent employment away from the Employer's plant at the time of the election and recommended that the challenges to their ballots be sustained. The Regional Director also found that there was insufficient evidence or issues of fact or credibility as to the eligibility status of 6 other voters challenged by the Employer as having obtained permanent employment elsewhere, and recommended that a hearing be held as to the eligibility of these individuals. With respect to other challenges, the Regional Director recom- mended that a hearing be held as to 2 employees who, the Employer contends, are watchmen and excluded from the unit; that a hearing be held as to the status of 2 individuals challenged by the Petitioner as having secured permanent employment away from the plant at the time of the election; and that the ballot of 1 individual chal- lenged by both the Employer and the Petitioner on the ground of permanent employment elsewhere be sustained. On January 19, both the Employer and the Petitioner filed timely exceptions to the Regional Director's supplemental report. The Peti- tioner excepts to the Regional Director's finding and recommendation 2 On December 18, 1952, counsel for the Employer filed "Exceptions to Supplemental Decision and Order ," and requested that it be vacated . The Board considered these excep- tions in the nature of a motion for reconsideration and, on December 30, 1952, denied the motion. 1628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that Ruth V. Grumbine was ineligible at the time of the election because she had secured permanent employment elsewhere. The Regional Director found that Grumbine had been employed since on or about May 30, 1952, a date preceding the date of election herein, as a sales clerk at $30-$32 per 48-hour week and had informed her new employer when hired that she was a striker who would "probably not go back." The Petitioner contends that a hearing should be directed as to the eligibility status of Grumbine. We do not agree and, on the contrary, adopt the finding and recommendation of the Regional Director. The Petitioner also excepts to the Regional Director's recommendation that a hearing be held as to the eligibility status of Clifford A. Stitley, Charlotte A. Stull, Mildred L. Blank (Gray), and Helen B. Wisner. In the case of each of these individuals there is conflicting evidence as to whether or not they have obtained permanent employment elsewhere or had done so at the time of the election. Accordingly, we adopt the recommendation of the Regional Director. The Employer excepts to the entire supplemental report on chal- lenges insofar as it is adverse in findings and recommendations on the challenges urged by the Employer. More specifically, the Employer reiterates its previous contention that Section 9 (c) (3) in providing that "employees on strike who are not entitled to reinstatement shall not be eligible to vote" voids the ballots of those individuals herein challenged on "debarment" activity. As we have previously con- sidered and overruled this contention for reasons set forth at length in the Supplemental Decision and Order, we find no merit in the Em- ployer's exceptions on that ground.3 The Employer also excepts to that portion of the Regional Director's supplemental report insofar as it recommends overruling the challenges to the ballots of those employees who, the Employer contends, had obtained permanent em- ployment elsewhere at the time of the election. The Regional Direc- tor's report notes that the Employer was requested by him to present all evidence upon which it relied to support the allegation as to these individuals and failed to do so. No such evidence is presented in the exceptions. Accordingly, as we find that the disposition by the Re- gional Director of the challenges to these ballots is supported by the facts disclosed by his investigation we adopt the findings and recommendations thereon contained in the suplemental report on challenges. & The Supplemental Decision and Order at two points refers to the "eligibility date of the election" rather than the date of the election itself. For purposes of clarity, that Decision is herewith amended to read, in the text following footnote 7, "Where no such discharge or denial of reinstatement takes place , however, or where it occurs after the date of the election has passed the individual , as an employee whose status has not been altered or challenged as of the election date, is clearly entitled to vote. Absent discharge or re- fusal of reinstatement prior to the election date, testimony as to activities which might have provided a basis for such action on the part of the Employer is clearly irrelevant and immaterial in a hearing on challenged ballots." UNION MANUFACTURING COMPANY 1629 In view of the foregoing, the Board finds that the exceptions of the Employer and the Petitioner to the supplemental report on chal- lenges do not raise substantial or material issues of fact as to the Regional Director's findings and recommendations. The Regional Director recommended that a hearing be held, if necessary, to resolve the questions of fact and credibility in the case of 10 voters whose ballots were challenged. However, we find it unnecessary to order such a hearing at this time as a conclusive election may result from the opening and counting of the 95 ballots found valid herein and in the original report on challenges.4 We shall therefore direct that those ballots, challenges to which have been overruled, be opened and counted. Direction IT IS HEREBY DIRECTED that, as part of the investigation to ascertain representatives for the purposes of collective bargaining with Union Manufacturing Company, Frederick, Maryland, the Regional Director for the Fifth Region shall, pursuant to National Labor Relations Board Rules and Regulations, within ten (10) days from the date of this Direction, open and count the ballots of Anna May Cline Ella Toms Kenneth Blake Leslie S. Holt, Jr. Ollie C. Bridges Mary Ellen Summers Raetta M. Belcher Elsie M. Cover William E. King Charles E. Michael Grayson L. Young Helen Abrecht Ruth Powell Maud Aylor Ira N. Ramsburg Leona J. Cline Margaret D. Miller Miriam P. Flair Robert E. Bell Floyd W. Haines Alva O. Michael Kohlman F. Miller Anna Adams Grace Angleberger Bruce Aumen Louis W. Aylor, Jr. Robert A. Babington Elizabeth Best Doris Boone Joseph A. Bowers, Jr. Helen Burdette Catherine Carlisle Lillie Jane Cline Mildred Corum Howard R. Damuth Agnes De Grange Eva Fagan Frances E. Fox Nelson L. Grey Dorothy Harris Loretta Himes Adeline P. Jones William H. Koontz Jack Lydard Mildred Myers Dorothy W. Orndorff 4 The Board on October 2, 1952, in the absence of exceptions by either party, adopted the recommendation of the original report on challenges that the challenges to 21 ballots be overruled . One hundred and fifty-seven ballots were cast in the election. 1630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Elizabeth Powell Carl Ridgley Hilda Shank Blanche Tracey Jacob D. Weatherholt Jean M. Yeager Estelle M. Baker Mary K. Burrier George Franklin Freed Charles H. Hahn George W. Harris Barbara S. Koontz Mehrl L. Murphy Martin L. Wachter, Jr. Emma Aumen Vernon Baer Robert T. Baumgardner Chester Blank Mehrl Bopst Betty Brunner Betty Butler Lee Cline Pauline Cole Ruth Boone Morris Damuth Charlotte Droneburg Austin G. Fisher Gertrude Glass Barbara Hane Paul Hildebrand Melton Holt Edward B. Jones, Jr. William J. Koontz James E. May Martha O'Brien Dorothy Owens Melvin Riddle Joyce Rippeon Ruth Stupp Thomas B. Wainwright Carrie White Irene Zimmerman Frances C. Blinkenstaff Ellen E. Freed Edward L. Gray Frances C. Hardman Oscar P. Johnson Pauline F. Kreh Mary A. Staley and thereafter prepare and cause to be served upon the parties a sup- plemental tally of ballots, lenged ballots. including therein the count of the chal- MEMBER HOUSTON took no part in the consideration of the above Second Supplemental Decision and Direction. STINEWAY DRUG Co., INC., ET AL.,1 PETITIONER and DRUG STORE, SODA FOUNTAIN AND LUNCHEONETTE EMPLOYEES UNION, LOCAL 658, HOTEL AND RESTAURANT EMPLOYEES AND BARTENDERS INTERNA- TIONAL UNION, AFL. Case No. 13-RM-146. February 24, 1953 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 Herman J. DeKoven, ' The following companies and individuals are also named as petitioners : Frieden Drug Co.; A. Z . Drug Co.; Grand Drug Co.; Thaddeus Skarr; Congress -Michigan Pharmacy; Bernard G . Goldsmith ; Cyrus M. Spannuth ; David Brody ; Martin H. Barnes Pharmacy, Inc. ; Dubow Drug Co.; David L. Posner & Stewart Mesirow ; Sol Mansky ; Harold D. Erickson ; Day Drug Co .; and Robert E. Martin Drug Co. 102 NLRB No. 169.