Vent Control, Inc. of Ohio

National Labor Relations Board - Board Decisions

Mar 15, 1960

126 N.L.R.B. 1134 (N.L.R.B. 1960)

1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respect for the oath which impelled me to decide the issue of discrimination in
Adkins' favor.
It long has been established that the Act is to be administered in the public
interest, not to redress private wrongs. It is in the public interest to insist, insofar
as practicable, that witnesses in Board proceedings tell the truth. Awards of
reinstatement and backpay to witnesses such as Adkins would not discourage false
testimony and might encourage it. Therefore, I hold that it would be contrary to,
the public interest and that it would not effectuate the policies of the Act to make
such awards to Adkins. Cf. T. A. O'Donnell d/b/a O'Donnell's Sea Grill, 55
NLRB 828.
I emphasize that my unwillingness to recommend reinstatement and backpay to
Adkins is based upon his lack of veracity and not upon instances in which he may
have given erroneous testimony in good faith. The General Counsel, in oral argu-
ment, defended Adkins' veracity. According to the General Counsel, Adkins is
"largely uneducated," is not greatly "endowed with mental capabilities," was dis-
traught by unemployment since his discharge and, having been "anxious and
overwrought" during the hearing, "stumbled into clumsy errors" in testimony at
the hands of a "clever" cross-examiner. It is correct that Adkins has only a grammar
school education and little intellect. I would add that I incline to the view that
Adkins is the sort of person who, as he mentally reviews events, reshapes the details
according to his wishes and emotional needs and that he comes to believe that the
reshaped version of an event is accurate. Therefore, in some instances of erroneous
testimony by Adkins, I would say that he was not consciously falsifying. But,
whatever may be said in his behalf, the fact remains that sometimes he was not merely
a mistaken witness. Sometimes, instead, he willingly falsified and, with respect to
his job preference application, he concealed his refreshed recollection until all
possibility of gain from his erroneous testimony had vanished. Such conduct cannot
be condoned.
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 Union and The Employee Council are labor organizations within the
meaning of Section 2(5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Carl
Adkins, thereby discouraging membership in a labor organization, the Respondent
has engaged in and is engaging in unfair labor practices within the meaning of
Section 8(a) (3) of the Act.
3. By dominating and interfering with the formation and administration of The
Employee Council, and contributing support thereto, the Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8(a)(2)
of the Act.
4. By interfering with, restraining, and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
5. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Vent Control , Inc. of Ohio, Subsidiary of Air Control Products,
Inc. and United Glass and Ceramic Workers of North America,
AFL-CIO, CLC,i Petitioner. Case No. 9-RC-3911. March 15,
1960
DECISION AND DIRECTION OF ELECTION
Upon an amended petition duly filed under Section 9(c) of the
National Labor Relations Act, a hearing was held before Theodore
'The name of the Petitioner appears as amended at the hearing
126 NLRB No. 137.
VENT CONTROL, INC. OF OHIO, ETC. 1135
K. High, hearing officer. The hearing officer's rulings made at the
hearing are free from prejudicial error and are hereby affirmed.
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 Leedom and Members Bean and Fanning].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. At the hearing the Employer offered in evidence a petition,
signed by persons alleged to be employees of the Employer, and pur-
porting to revoke the Petitioner's authority to represent them. The
hearing officer properly refused to admit this petition in evidence.
The sufficiency of a petitioner's showing of interest is an administra-
tive matter for the Board and not subject to collateral attack.2 The
Board is satisfied that the Petitioner has an adequate showing of
interest in the unit hereinafter found appropriate. Whether a
majority of the employees in the unit desire to be represented by the
Petitioner can best be ascertained by a secret ballot election.
We find that a question affecting commerce exists concerning the
representation of employees of the Employer within the meaning of
Section 9(c) (1) and Section 2(6) and (7) of the Act.
4. There is no dispute as to the appropriateness of a plantwide
unit requested by the Petitioner, except as indicated below.
The Employer uses a working foreman, Samuel Dillon, who directs
the fabrication, shipping, and receiving work of its approximately
eight employees at its Columbus plant. Fifty percent of the fore-
man's time is spent in assigning work and directing employees on
their jobs; 25 percent of his time is spent on manual labor; and the
remaining time is devoted to processing shipping papers and dispatch-
ing truck deliveries. The foreman effectively recommends that appli-
cants be hired and employees discharged and the award of pay in-
creases. He assigns employees from job to job and directs them in a
nonroutine manner in carrying out their work. Accordingly, we find
that the working foreman is a supervisor as defined by the Act. Con-
sequently, although the parties stipulated that this foreman shall be
included in the unit, we shall exclude him.'
In accordance with a stipulation of the parties, we find that the
following employees of the Employer constitute a unit appropriate
for the purposes of collective bargaining within the meaning of Sec-
tion 9(b) of the Act:
3 Plains Cooperattive Oil Mill, 123 NLRB 1709; Chemical Empress, 117 NLRB 29,
footnote 1.
3 Central Cigar & Tobacco Co , 112 NLRB 1094, 1096.
11336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All employees 4 of the Employer at its Columbus plant, excluding
salesmen, bookkeepers, office clerical, technical, and professional em-
ployees, guards, and supervisors as defined in the Act.
5. The Petitioner contends that three employees, not currently
working, should be allowed to vote; the Employer contends that they
should not be allowed to vote. The Employer's branch manager testi-
fied without contradiction that one of these employees, Donald Miller,
was discharged for cause and would not be rehired. The other two
employees, Francis K. Spires and Ernest Osbourne, were laid off be-
cause of lack of work. The branch manager credibly testified that
these layoffs were seasonal and that the two employees would be re-
hired when business picked up.in the spring. There have been similar
layoffs and recalls during the past 3 years at this plant. As Donald
Miller was discharged for cause he is not eligible to vote' The re-
maining two employees, although not presently on the payroll, have
reasonable expectation of reemployment in the foreseeable future;
accordingly, they are eligible to vote as temporarily laid-off
employees."
[Text of Direction of Election omitted from publication.]
* The parties stipulated that the following employees be Included in the unit : Dewey
C. Dillon, serviceman ; Leonard B. Cline, serviceman ; Samuel Morrison, glazier ; Ira D.
Purget, truckdriver; Thomas W. Mason , truckdriver ; and Berlin Coletilow, glazier and
storm panel fabricator, Accordingly, they are included in the unit . It was also stipu-
lated .by the parties that the following persons be excluded from the unit : P . D. Walker,
branch manager ; Mrs. Margaret L. Spears , bookkeeper ; Vernon Alyea , salesman ; Thomas
R. Knowles , salesman ; and Bernard Noland , salesman . Accordingly, we shall exclude
them from the unit.
5 Continental Baking Company , 122 NLRB 1074.
• Musgrave Manufacturing Company and Mast-Foos Manufacturing Company, Ino.,
124 NLRB '25$.
Manger-Savannah Corporation , Inc.' and Hotel & Restaurant
Employees and Bartenders International Union , AFL-CIO,
Petitioner s Case 'No. 10-RC-4512. March 15, 1960
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 O. Frank Woolf, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial; error and are hereby affirmed.
Pursuant to the provisions of SectiQ 3 (b) of the Act, the Board
has.:4elegiI#gd. its powers in connection with this case to a three-
member panel [Members Rodgers , Bean, and Fanning].
.'The -.o-kf the..Employer appears as corrected at the hearing.
126 NLRB No. 135.