Vogue Art Ware & China Co.

National Labor Relations Board - Board Decisions

Jan 11, 1961

129 N.L.R.B. 1253 (N.L.R.B. 1961)

VOGUE ART WARE & CHINA COMPANY 1253
required by the Act, Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a)(5) of the Act.
7. By its interference with the formation and administration of C.I.M. and its
contribution of support to said C.I.M., and by its failure to bargain with the Union
.in good faith , thereby 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.
8. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce , within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
Vogue Art Ware & China Company and United Brick & Clay
Workers of America , AFL-CIO, Petitioner. Case No. 8-RC-
3963. January 11, 1961
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 Harold A. Ross, 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 Fanning and
Kimball].
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 employees
of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9(c)(1) and Section 2 (6) and (7) of the Act.
4. The following employees of the Employer constitute a unit ap-
propriate for the purposes of collective bargaining within the mean-
ing of Section 9 (b) of the Act.'
All production and maintenance employees 2 at the Employer's
Dennison, Ohio, plant, including the truckdriver-maintenance man
and the plant janitor-maintenance man, but excluding office clerical
employees, professional employees, guards, and supervisors as defined
in the Act.
5. The parties disagree as to whether certain strikers and laid-off
employees should be eligible to vote. Petitioner contends that they
should, and the Employer that they should not, be permitted to vote.
The unit finding conforms with an agreement of the parties.
2 The parties stipulated that janitress Mabel Weaver , who works an hour or two every
other day in the evening, should not be included in the unit.
129 NLRB No. 148.
1254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Employer is engaged in the manufacture of artware pottery.
Its operations are seasonal with production and sales running at a
high level in the second and third quarters of the year and lower dur-
ing the other quarters . Employees laid off during the slack periods
are usually recalled when business improves.
In May 1960, the Employer laid off about 25 of its 35 employees
because of poor business conditions . However, by August 6, 1960, the
day of the commencement of the strike , business had improved suffi-
ciently so that most of the laid-off employees had been recalled to
work. The strike was still in progress at the time of the hearing.
Apparently no replacements had been hired for the strikers.
According to the Employer, the strike has caused production to
cease and orders to be canceled , and has made his financial position
precarious. The Employer testified that because of the cancellation
of orders , he expects the plant to operate at only 40 percent of capacity
during the coming year . As a result of this expected low volume
operation and certain planned improvements in efficiency , the Em-
ployer stated that he will recall only half the strikers , and he contends
that strikers who will not be recalled should be ineligible to vote.
However , prospects for the Employer's business during the coming
year are necessarily speculative . Before the strike, business had ne-
cessitated the recall of almost all the laid off employees . It is a sea-
sonal business in which the slow period has already commenced, but
there is no evidence , apart from the Employer 's opinion , to indicate
that the volume of business will not return in the coining year to that
approaching the prestrike level. The business has a history of layoffs
in the slow season with subsequent recalls in the busy period. Inas-
much as the Employer stated that he intends to offer employment to
20 workers at the outset of its 6-month slack season, we are confident
that those employees not taken back at the termination of the strike
have a reasonable expectancy of reemployment when the busy season
arrives. Therefore , subject to the determinations made in the para-
graphs which follow, we find that those individuals employed on the
day of the strike who are not scheduled to return to work immediately
on the termination of the strike are eligible to vote.
Mabel Brennan , Lois Cox, Mary Cummings, Florence Gleason, and
Thelma Weaver were all laid off on May 4, and had not been recalled
prior to the strike. The Employer does not intend to rehire these
employees in the future because of their incompetency or lack of ver-
satility. We find that these employees were permanently terminated
and are not eligible to vote in the election.'
Ray Watson and James Fowler were probationary employees at the
time of the strike. Probationary employees receive and hold their
employment with a contemplation of permanent tenure , subject only
a international Aluminum Corporation, 117 NLRB 1221.
VOGUE ART WARE & CHINA COMPANY 12555"
to the satisfactory completion of an initial trial period. They are in
the same position as the other strikers whom the Employer has indi-
cated it will be unable to rehire because of the decreased volume of
business. However, as indicated above, these strikers have a reason-
able expectancy of reemployment when the busy season arrives, and
the probationary employees have a similar expectancy. They are•
therefore eligible to vote.'
The Employer planned to convert its operations from a large to a
small kiln during the winter months, its normally slack period. The
Employer contends that for this reason two kiln loaders will no longer
be needed when production resumes. However, there is no evidence
to indicate that the Employer will not revert to the use of the large
kiln when operations return to their normal pattern. We find that,
like the other employees whose services the Employer would require
when production picks up, the two loaders have a reasonable expect-
ancy of reemployment. They are therefore eligible to vote in the
election.
The Employer has eliminated the waxing operation which caused
some spoilage. We find that the employee formerly doing this work
will not be recalled and is ineligible to vote.
The Employer contends that closer supervision will bring the same
productivity in the finishing room with three fewer employees. He
bases this on the results obtained during his personal observation of
the operation for one 3-hour period. The evidence does not indicate
either what the normal supervisory methods were or what they will be•
in the future. For this reason, the expected results are presently specu-
lative. We shall permit all finishing room employees to vote.
Viola Armstrong was recalled on August 5. The Employer says
that he will not recall her after the strike because she is receiving social
security benefits and cannot work full-time. The choice of working
full-time or not lies with the employee, and inasmuch as she may
choose to forgo her social security benefits, we shall allow her to vote
in the election, subject to challenge.
Burt Mahaffey is a part-time employee who gave notice that he was
quitting on September 15, 1960, to enter college. Since his employ-
ment has already terminated, we find that he is not eligible to vote.
Ella Mae Heavilin was recalled from layoff status on August 6,1960,
but did not return to work because of the picket line. The Employer
now states that she will not be recalled again because she lacks versa-
tility. However, her recall on August 6 indicates that she was a desir-
able employee. We find that she is eligible to vote.
John McMann was discharged on August 5 for bad work. Since no
unfair labor practice charge has been filed on his behalf and the Em-
* David S. Pearl, et. at., d/b/a National Torch Tip Company, 107 NLRB 1271.
1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployer does not intend to rehire him, we find that he was permanently
discharged and is ineligible to vote in the election.
Mrs. Frank Septer and Mrs. Mildred Terakedis left their employ-
ment with the Employer on August 5, 1960, and filed an unfair labor
practice charge alleging that they had been discriminatorily dis-
charged. The Regional Director has dismissed the charge. We find
that since these two individuals terminated their employment with
the Employer and were not discriminatorily discharged, they are not
eligible to vote.'
[Text of Direction of Election omitted from publication.]
6 Colonial Provision Company, Inc., 112 NLRB 1056.
Vulcanized Rubber and Plastics Company, Inc.' and United
Rubber, Cork , Linoleum and Plastic Workers of America,
AFL-CIO, Petitioner . Case No. 4-RC-4172. January 11, 1961
DECISION AND DIRECTION OF ELECTIONS
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Morris Mogerman, 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 Rodgers and
Jenkins] .
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. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
`9(c) (1) and Section 2(6) and (7) of the Act.
4. The Petitioner seeks to represent in a single unit all office cleri-
Ical, plant clerical and laboratory employees, excluding all other em-
ployees, confidential secretaries, time-study engineers, salesmen, in-
spectors, professional employees, foremen, guards, and supervisors as
defined in the Act. Alternatively, the Petitioner is willing to repre-
sent the employees involved herein in three separate units of (a) office
clerical employees, (b) plant clerical employees, and (a) technical
1 The name of the Employer appears as amended at the hearing.
129 NLRB No. 151.