W. R. Grace & Co.

National Labor Relations Board - Board Decisions

Jun 30, 1977

230 N.L.R.B. 617 (N.L.R.B. 1977)

W. R. GRACE & CO.
W. R. Grace & Co., Construction Products Division
and General Truck Drivers, Chauffeurs, Ware-
housemen and Helpers, Local No. 270, a/w
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, Ind.
Cases 15-CA-6108 and 15-RC-5858
June 30, 1977
DECISION, ORDER, AND
CERTIFICATION OF REPRESENTATIVE
BY MEMBERS JENKINS, MURPHY, AND
WALTHER
On February 4, 1977, Administrative Law Judge
Benjamin K. Blackburn issued the attached Decision
in this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief; the Charging
Party filed exceptions; Respondent filed a request for
oral argument,' a motion to strike the General
Counsel's exceptions and brief, and a brief in support
of its motion to strike;2 and the General Counsel
filed an opposition thereto.
Pursuant to the provisions of the Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, 3 and conclusions of the Administrative Law
Judge and to adopt his recommended Order only to
the extent consistent herewith.
Pursuant to the Acting Regional Director's Deci-
sion and Direction of Election issued on March 12,
1976, a Board-conducted election was held on April
8, 1976, in a unit of Respondent's production and
maintenance employees. The election resulted in five
votes for, and four against, the Union, General Truck
Drivers, Chauffeurs, Warehousemen and Helpers,
Local No. 270, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Ind. There were no void or
challenged ballots. Thereafter, Respondent filed
timely objections to the conduct of the election
alleging that the Board agent improperly denied
Sanders Green, a maintenance employee, the right to
vote. On May 24, 1976, the Union filed an unfair
labor practice charge against Respondent, alleging,
inter alia, that following the election Respondent
I Respondent's request for oral argument is hereby denied as the record,
the exceptions, and the briefs adequately present the issues and the positions
of the parties. We find no merit to Respondent's contention that the General
Counsel's filing of exceptions in the unfair labor practice proceeding
subverts the Regional Office's role in the representation matter.
2 Respondent's motion to stnke the General Counsel's exceptions and
brief is hereby denied as lacking in merit.
230 NLRB No. 76
instituted certain unilateral changes in its operation
without prior notice to or consultation with the
Union.
On June 3, the Regional Director filed a Supple-
mental Decision and Certification of Representative
in which he overruled Respondent's objections in
their entirety and certified the Union. Respondent
subsequently filed with the Board a timely request
for review of the Regional Director's Supplemental
Decision and Certification of Representative. On
July 30, the Regional Director issued a complaint on
the basis of the unfair labor practice charges filed by
the Union. On August 20, the Board granted
Respondent's request for review, remanded Respon-
dent's objections to the Regional Director for the
purpose of conducting a hearing thereon, and stayed
the certification. Thereafter, the Regional Director
issued an order consolidating the representation and
unfair labor practice cases for hearing. The consoli-
dated cases were heard before Administrative Law
Judge Benjamin K. Blackburn on September 14 and
16, 1976.
The Administrative Law Judge found, inter alia,
that, at the time of the election, Green was a
temporary supervisor whose community of interest
lay more with his fellow employees than with
management, and that he was therefore eligible to
vote in the election. In addition, the Administrative
Law Judge found that, although no one was to blame
for Green's failure to vote, Green nevertheless was
denied the right to cast a potentially decisive vote in
the election. He recommended, therefore, that the
objections to the conduct of the election be sustained
and the election be set aside. As a corollary to this
finding, he concluded that Respondent was under no
duty to bargain with the Union after the election and
during the pendency of the objections. Accordingly,
the complaint herein, which alleged that during the
postelection period Respondent unilaterally discon-
tinued its Monokote production process, laid off
employees, and changed work schedules in violation
of Section 8(a)(5) and (1), was dismissed in its
entirety. Contrary to the Administrative Law Judge,
we find, for the reasons set forth below, that
Respondent's objections to the conduct of the
election are without merit, that the results of the
election are valid, and that Respondent has violated
Section 8(a)(5) and (1) of the Act.
With respect to the objections, the relevant facts
are as follows: On March 15, 1976, Sanders Green, a
3 The General Counsel has excepted to certain credibility findings made
by the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc.. 91 NLRB 544 01950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
617
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
maintenance employee, agreed to assume the duties
of shift leader on one of the three shifts following
Respondent's suspension of shift leader Allen. On
March 17, Respondent's general plant manager for
the southern region, Timmons, offered Green the
shift leader position on a permanent basis, but Green
declined to accept. Green did agree, however, to
continue acting as shift leader until a replacement for
Allen could be trained, a period which Timmons
estimated would be 30 to 60 days.
Sometime after March 15, Plant Manager McGee
prepared an Excelsior eligibility list4 for use in the
election which was scheduled for April 8. Green's
name did not appear on the list. McGee testified that
he omitted Green's name from the list because he
assumed, based on the Acting Regional Director's
Decision and Direction of Election, that all shift
leaders, including Green, were supervisors and were
therefore excluded from the unit. McGee also
testified, however, that on April 7, the day before the
election, in response to Green's inquiry as to whether
or not he should vote, McGee informed him that
according to the posted notice of election,
"[P]roduction and maintenance personnel are sup-
posed to vote."
Thereafter, according to Green's credited testimo-
ny, when he came to the polling area to vote on the
day of the election and the Board agent asked for his
name, the following ensued:
GREEN: And I said Sanders Green and I don't
think he fully understood what I said so I spelled
it for him. S-a-n-d-e-r-s, Sanders Green and then
he looked and said my name was not on the list
and he said what makes you think you are eligible
to vote? And I said because everybody else voting
and I thought I was eligible to vote too so he had
more questions to ask me but I didn't give him no
time because I hunkered my shoulders and
walked out.
JUDGE BLACKBURN: What makes you think he
had more questions to ask?
GREEN: Because he seemed to want to say
something.
JUDGE BLACKBURN: He started to open his
mouth or something like that?
GREEN: And I was walking out at the time
because I say I was in the voting area and at least
maybe a minute.
As is evident from the above-quoted testimony,
Green himself admitted that, after the Board agent
asked his name and told him that his name was not
i Excelsior Underwear Inc., 156 NLRB 1236 (1966).
1 International Telephone and Telegraph Corporation. Industrial Products
Division, 129 NLRB 221 (1960).
on the Excelsior list, he hurriedly left the polling area
and, despite his awareness that the Board agent
wished to pursue the matter, he gave the Board agent
no time in which to complete his questions or to
extend to him an opportunity to vote a challenged
ballot. In view of this testimony, we cannot find that
the Board agent engaged in any improper conduct
and that Green was denied the right to cast a ballot.
Rather, we find that Green voluntarily and knowing-
ly left the voting area and thus voluntarily and
knowingly failed to exercise his legal right to cast a
ballot.5 Accordingly, we hereby overrule Respon-
dent's objections. 6 Inasmuch as the results of the
election show that a majority of valid votes were cast
in favor of representation, we shall certify the Union.
With respect to the alleged unfair labor practices,
the parties stipulated that on May 20, 1976, during
the pendency of the objections, Respondent, through
Timmons, notified its production and maintenance
employees that it was discontinuing its Monokote
operation for economic reasons and that effective
immediately employees Solomon James, John Cun-
ningham, James Fox, and Louis Morgan were
permanently laid off. In addition, the parties stipulat-
ed that effective the following day, May 21, Respon-
dent eliminated its third shift, and that, on or about
the week ending June 10, and periodically thereafter,
Respondent made additional changes in production
shifts. The parties stipulated that Respondent unilat-
erally effectuated all of the above-mentioned changes
without giving notice to and/or consulting with the
Union.
It is well established that an employer violates
Section 8(a)(5) and (1) when, without first consulting
with the union, it makes changes in terms and
conditions of employment during the pendency of
objections to an election which eventually results in
the certification of the union. Mike O'Connor
Chevrolet-Buick-GMC Co., Inc., 209 NLRB 701
(1974). In the instant case, however, the Regional
Director, by dismissing the 8(a)(3) portion of the
unfair labor practice charge, determined that the
discontinuance of the Monokote operation was
motivated by legitimate business reasons. According-
ly, in his brief to the Board, counsel for the General
Counsel expressly states that he "does not and has
not contested Respondent's right unilaterally to
cease manufacturing Monokote in New Orleans" or
its consequent layoff of four employees, and that he
specifically does not seek the reestablishment of that
operation or the reinstatement of the laid-off employ-
ees. In these particular circumstances, we find that
Respondent did not violate Section 8(a)(5) by failing
6 In view of the result we have reached herein, we find it unnecessary to
determine whether or not Green was, in fact, eligible to vote in the election.
618
W. R. GRACE & CO.
to notify and consult with the Union over its decision
to close the Monokote operation, to lay off employ-
ees, or to change its work schedules. We do find,
however, that Respondent was under an obligation
to bargain with the Union over the effects of its
decision to discontinue its Monokote operation, to
lay off employees as well as to change its work
schedules, and that its failure to do so violated
Section 8(a)(5) and (1) of the Act.7
THE REMEDY
Having found that Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act, we shall order that it cease
and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
We shall order Respondent to bargain, upon
request, with the Union as the exclusive bargaining
representative of the employees in the appropriate
unit, with respect to rates of pay, wages, hours, and
other terms and conditions of employment, including
the effects of the discontinuation of its Monokote
operation, the layoff of unit employees, and the
changing of its work schedules on the unit employ-
ees. It is clear, however, that a bargaining order alone
cannot fully remedy the unfair labor practices
committed by Respondent since, as a result of its
failure to bargain with the Union about the effects of
discontinuing the Monokote operation, the laying off
of employees, and the changing of work schedules,
Respondent's employees were denied an opportunity
to bargain through their exclusive representative at a
time when such bargaining would have been mean-
ingful in easing the hardship on employees whose
jobs were being terminated. Under the circumstances
of this case, in order to assure meaningful bargaining
and to effectuate the purposes of the Act, we shall
accompany our order to bargain with a requirement
that Respondent provide backpay to employees
Solomon James, John Cunningham, James Fox, and
Louis Morgan in a manner similar to that required in
Transmarine Navigation Corporation, 170 NLRB 389
(1968). In addition, we shall require that the backpay
for the above-named employees be not less than the
amounts they would have earned during a 2-week
period of employment. 8 This qualified backpay
remedy will place the Union in an effective bargain-
ing position, while recognizing the economic necessi-
ty which apparently compelled the discontinuation
of Respondent's Monokote operation and the layoff
of its employees.9
Cf. Stagg Zipper Corp., 222 NLRB 1249 (1976): Van's Packing Plant,
211 NLRB 692 (1974); Summit Tooling Company, 195 NLRB 479 (1972).
R See also Rapid Air Expediting, Inc., 220 NLRB 931 (1975): Van's
Packing Plant, supra; Automation Institute of Los Angeles. db/'a West Coast
Schools, 208 NLRB 725 (1974).
Accordingly, we shall order Respondent to bargain
with the Union, upon request, about the effects of its
discontinuation of the Monokote operation and
layoff of employees, and over its changing of work
schedules, and to pay employees Solomon James,
John Cunningham, James Fox, and Louis Morgan
amounts at the rate of their normal wages when last
in Respondent's employ from 5 days after the date of
this Decision until the occurrence of the earliest of
the following conditions: (I) the date Respondent
bargains to agreement with the Union on those
subjects pertaining to the effects of discontinuation
of the Monokote operation and layoff of employees
and over its changing of work schedules; (2) a bona
fide impasse in bargaining; (3) the failure of the
Union to request bargaining within 5 days of this
Decision or to commence negotiations within 5 days
of Respondent's notice of its desire to bargain with
the Union; or (4) the subsequent failure of the Union
to bargain in good faith, but in no event shall the
sum paid to any of these employees exceed the
amount each would have earned as wages from the
time Respondent terminated its Monokote operation
to the time each secured equivalent employment
elsewhere, or the date on which Respondent shall
have offered to bargain, whichever occurs first;
provided, however, in no event shall this sum be less
than such employees would have earned for a 20-
week period at the rate of their normal wages when
last in Respondent's employ.
Effectuation of the policies of the Act requires, in
addition, that Respondent be required, in consulta-
tion with the Union, to establish a preferential hiring
list, following a nondiscriminatory system such as
seniority, which includes the names of Solomon
James, John Cunningham, James Fox, and Louis
Morgan, and, if Monokote operations are ever
resumed in the Jefferson Parish, Louisiana, area,
where Respondent is located, offer reinstatement to
these employees and bargain with the Union upon
request. In the event Respondent in 'the future
decides to resume its Monokote operation at 4729
River Road, Jefferson Parish, Louisiana, it shall offer
James, Cunningham, Fox, and Morgan reinstate-
ment to their former positions or, if such positions no
longer exist, to substantially equivalent positions
there. Finally, we shall require Respondent to post
copies of the attached notice at its place of business
and, in addition, to mail copies of such notice to
Solomon James, John Cunningham, James Fox, and
Louis Morgan.
9 Although Member Walther concurs in applying the Transmarine
formula for computing backpay with respect to the laid-off employees, he
would make such an award subject to subsequent bargaining between the
Union and Respondent, consistent with his position in Atlas Tack
Corporation. 226 NLRB 222 (1977).
619
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Respondent W. R. Grace & Co., Construction
Products Division, is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. General Truck Drivers, Chauffeurs, Ware-
housemen and Helpers, Local No. 270, affiliated with
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Ind., is a
labor organization within the meaning of Section 2(5)
of the Act.
3. All production and maintenance employees
employed at Respondent's 4729 River Road, Jeffer-
son Parish, Louisiana, facility; excluding all truckdri-
vers, confidential employees, guards and supervisors
as defined in the Act, constitute an appropriate unit
for the purpose of collective bargaining within the
meaning of Section 9(b) of the Act.
4. The Union is the exclusive representative of
the employees in the aforesaid appropriate unit for
the purposes of collective bargaining within the
meaning of Section 9(a) of the Act.
5. By failing and refusing, after the election held
herein and during the pendency of objections to the
election, to bargain with the Union concerning the
effects on employees in the bargaining unit of
Respondent's discontinuation of its Monokote oper-
ation and layoff of employees and over its changing
of work schedules, Respondent has engaged in and is
engaging in unfair labor practices within the meaning
of Section 8(a)(5) and (1) of the Act.
6. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and (7)
of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
W. R. Grace & Co., Construction Products Division,
Jefferson Parish, Louisiana, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Failing and refusing to bargain collectively
concerning the effects of the discontinuation of its
Monokote operation and layoff of employees and
over its changing of work schedules with General
Truck Drivers, Chauffeurs, Warehousemen and
Helpers, Local No. 270, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, Ind., as the exclusive
'o In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
representative of all employees in the following
appropriate unit:
All production and maintenance employees em-
ployed at Respondent's 4729 River Road, Jeffer-
son Parish, Louisiana, facility; excluding all
truckdrivers, confidential employees, guards and
supervisors as defined in the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which
will effectuate the policies of the Act:
(a) Upon request, bargain collectively with the
Union as the exclusive representative of the employ-
ees in the above-described appropriate bargaining
unit, with respect to rates of pay, wages, hours, and
other terms and conditions of employment, including
the effects of the discontinuation of its Monokote
operation and layoff of unit employees and over its
changing of work schedules.
(b) Provide backpay to Solomon James, John
Cunningham, James Fox, and Louis Morgan in the
manner set forth in the section of this Decision
entitled "The Remedy."
(c) Establish in consultation with the Union a
preferential hiring list, following a nondiscriminatory
system, such as seniority, which includes the names
of Solomon James, John Cunningham, James Fox,
and Louis Morgan, and if Monokote operations are
ever resumed anywhere in the Jefferson Parish,
Louisiana, area, offer reinstatement to these employ-
ees. In the event Respondent in the future decides to
resume its Monokote operation at its 4729 River
Road, Jefferson Parish, Louisiana, facility, it shall
offer them reinstatement to their former positions or,
if such positions no longer exist, to substantially
equivalent employment.
(d) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(e) Post at its Jefferson Parish, Louisiana, facility
copies of the attached notice marked "Appendix" 10
and mail copies of said notice to Solomon James,
John Cunningham, James Fox, and Louis Morgan.
Copies of said notice, on forms provided by the
Regional Director for Region 15, after being duly
signed by Respondent's representatives, shall be
posted by it immediately upon receipt thereof, and
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
620
W. R. GRACE & CO.
be maintained by it for 60 consecutive days thereaf-
ter, in conspicuous places, including all places where
notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered
by any other material.
(f) Notify the Regional Director for Region 15, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots have been cast for General Truck Drivers,
Chauffeurs, Warehousemen and Helpers, Local No.
270, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, Ind., and that, pursuant to Section 9(a)
of the National Labor Relations Act, as amended,
said labor organization is the exclusive representative
of all the employees in the unit found appropriate
herein for the purposes of collective bargaining with
respect to rates of pay, wages, hours of employment,
and terms and conditions of employment. The
appropriate unit is:
All production and maintenance employees em-
ployed at Respondent's 4729 River Road, Jeffer-
son Parish, Louisiana, facility; excluding all
truckdrivers, confidential employees, guards and
supervisors as defined in the Act.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse, upon request, to bargain
collectively, concerning rates of pay, wages,
hours, and other terms and conditions of employ-
ment, including the effects of our discontinuation
of the Monokote production process and layoff of
employees as well as over our changing of work
schedules, with General Truckdrivers, Chauff-
eurs, Warehousemen and Helpers, Local No. 270,
affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Hel-
pers of America, Ind., as the exclusive bargaining
representative of the employees in the bargaining
unit described below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of their rights under Section 7 of the Act.
WE WILL, upon request, bargain with the
above-named Union, as the exclusive bargaining
representative of all employees in the bargaining
unit described below, with respect to rates of pay,
wages, hours, and other terms and conditions of
employment, including the effects of discontinua-
tion of our Monokote production process and
layoff of employees Solomon James, John Cun-
ningham, James Fox, and Louis Morgan, as well
as over our changing of work schedules. The
bargaining unit is:
All production and maintenance employees
employed at Respondent's 4729 River Road,
Jefferson Parish, Louisiana, facility; exclud-
ing all truckdrivers, confidential employees,
guards and supervisors as defined in the Act.
WE WILL pay Solomon James, John Cunning-
ham, James Fox, and Louis Morgan their normal
wages for a period required by the Decision,
Order, and Certification of Representative of the
National Labor Relations Board.
WE WILL in consultation with the Union
establish a preferential hiring list, following a
nondiscriminatory system, such as seniority,
which includes the names of Solomon James,
John Cunningham, James Fox, and Louis Mor-
gan. If Monokote operations are ever resumed
anywhere in the Jefferson Parish, Louisiana, area,
we will offer reinstatement to these employees. If
we decide to resume the Monokote operation at
our 4729 River Road, Jefferson Parish, Louisiana,
facility, we will offer them reinstatement to their
former positions or, if such positions no longer
exist, to substantially equivalent positions.
W. R. GRACE & Co.,
CONSTRUCTION
PRODUCTS DIVISION
DECISION
STATEMENT OF THE CASE
BENJAMIN K. BLACKBURN, Administrative Law Judge:
The petition in Case 15-RC-5858 was filed on February 3,
1976.1 The hearing was held on February 25. The Acting
Regional Director's Decision and Direction of Election
was issued on March 12. The election was held on April 8.
It resulted in five votes for the Union and four against.
There were no void or challenged ballots. Respondent filed
timely objections. The charge in Case 15-CA-6108 was
I Dates are 1976 unless otherwise indicated.
621
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
filed on May 24. The Regional Director's Supplemental
Decision and Certification of Representative in Case 15-
RC-5858 was issued on June 3. Respondent filed a timely
request for review by the Board. The complaint in Case 15-
CA-6108 was issued on July 30. The Board stayed the
certification and remanded Case 15-RC-5858 to the
Regional Director for hearing on August 20. An order
consolidating the two cases for hearing was issued on
August 24. The hearing was held in New Orleans,
Louisiana, on September 16 following a formal pretrial
conference on September 15.
The complaint alleges Respondent violated Section
8(a)(5) and (1) of the National Labor Relations Act, as
amended, by unilaterally changing work schedules, discon-
tinuing a part of its production process, and laying off
employees on or about May 20. That Respondent discon-
tinued its Monokote operation on that date for economic
reasons, thereby terminating the employment of four
employees, and thereafter changed its shift times without
notifying or bargaining with the Union is undisputed.
Respondent's duty to bargain is predicated on its certifica-
tion in Case 15-RC-5858. The issue presented in that case
is whether Sanders Green, a temporary shift leader at the
time of the election, was improperly denied an opportunity
to vote. For the reasons set forth below, I find that he was
an eligible voter, that the circumstances under which he
failed to cast a ballot invalidates the election held on April
8 and the certification growing out of it, and that,
therefore, Respondent did not refuse to bargain with the
Union when it acted unilaterally on May 20 and thereafter.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
excellent briefs, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent, a Connecticut corporation, is engaged in
Jefferson Parish, Louisiana, in the business of processing
construction materials. It annually receives goods and
materials valued at more than $50,000 which are shipped
directly to it from suppliers located outside the State of
Louisiana.
II. THE OBJECTIONS TO THE ELECTION
A. Facts
This case turns, initially, on precisely what happened
when Sanders Green, a maintenance man/temporary shift
leader, sought to vote in the election held in Case 15-RC-
5858 on April 8. Arnold Taylor, the Union's observer;
Betty Arnone, Respondent's observer; and Green, himself,
all testified about the incident. There is no real conflict
among their versions although they differ slightly as to the
details. The most vivid account, by far, is Green's.
Paraphrasing it would only dilute its clarity. I find,
therefore, that this is what occurred when Green went to
the poll on April 8:
Q. Do you recall going into the voting area?
A. Yes.
Q. Can you tell us what happened?
A. Well, when I came in to go into vote I went into
to vote and I asked I inquired is this the place to vote
and they said yes.
JUDGE BLACKBURN: Who said yes?
THE WITNESS: Arnold said yes, this is the place to
vote.
JUDGE BLACKBURN: I didn't understand you.
THE wHNEss: Arnold, Arnold Taylor.
JUDGE BLACKBURN: Mr. Taylor said that, yes. Okay.
THE wrwNEss: So they looked at the list.
JUDGE BLACKBURN: Who is they?
THE WITNESS: Well, Betty looked at the list and then
the agent [Daniel O'Callaghan] looked at the list and he
looked at it and said what is your name. He asked me
my name.
JUDGE BLACKBURN: This is the board agent?
THE WITNESS: Right. And I said Sanders Green and I
don't think he fully understand what I said so I spelled
it for him. S-a-n-d-e-r-s, Sanders Green and then he
looked and said my name was not on the list and he
said what makes you think you are eligible to vote?
And I said because everybody else voting and I thought
I was eligible to vote too so he had more questions to
ask me but I didn't give him no time because I
hunkered my shoulders and walked out.
JUDGE BLACKBURN: What makes you think he had
more questions to ask?
THE WITNESS: Because he seemed to want to say
something.
JUDGE BLACKBURN: He started to open his mouth or
something like that?
THE wrrNEss: And I was walking out at the time
because I say I was in the voting area and at least
maybe a minute.
The problem which was created when Green walked out
of the polling area as the Board agent opened his mouth to
speak further arose in this manner:
The Regional Director found appropriate a unit of all
production and maintenance employees, excluding truck-
drivers, confidential employees, guards, and supervisors.
He also found shift leaders to be supervisors within the
meaning of the Act.
Spencer Allen, one of Respondent's three shift leaders at
the time, failed to show up for work on Friday, March 12.
When he came to the plant drunk later that night, Jerry
McGee, Respondent's plant manager, suspended him.
When Green reported to work on Monday morning,
March 15, McGee asked him to help out by taking over as
leader on Allen's shift. Green said he would be glad to. On
Wednesday, March 17, Joe Timmons, Respondent's
General plant manager for the southern region, came to the
plant. He and McGee decided to discharge Allen. On
Thursday, Timmons offered the shift leader's job to Green
on a permanent basis. Green, whose hourly rate of $4.96 as
maintenance man was 35 cents higher than that of a shift
leader, declined. Timmons asked Green to continue acting
as shift leader until a replacement for Allen could be
trained. Green agreed. Timmons said Ivy Nunnery, a rank-
and-file employee, would begin training immediately.
Green said Nunnery was a good choice. Timmons said the
622
W. R. GRACE & CO.
training would probably take 30 to 60 days. Nunnery
began training that day. However, he never became a shift
leader. The change in operations which occurred on May
20 eliminated one shift.
McGee prepared the Excelsior list for use in the April 8
election sometime after March 15. Because Green was
working as a shift leader and shift leaders had been held
ineligible to vote as supervisors, McGee did not place his
name on the list.
While Green was working as a shift leader, he was vested
with all the authority and responsibility of one who holds
that job on a permanent basis. He continued to do the
work and receive the pay of a maintenance man. While
fixing a machine in the latter capacity, Green injured his
hand on Friday, March 26. He worked on Saturday but
went on sick leave on Monday, March 29.
Green visited the plant on April 7. He asked McGee
about the election scheduled for the next day. McGee
showed him the posted Board notice, pointing out that
"maintenance employees" were explicitly included in the
unit. Consequently, Green returned to the plant the next
day and attempted to vote with the result detailed above.
Green's doctor released him for return to work in a
"supervisory capacity only" on Monday, April 12. He
returned to work as temporary shift leader on that day. He
last worked in that capacity on Saturday, April 17. On
Monday, April 19, he reverted to the status of maintenance
man.
B. Analysis and Conclusions
Whether Sanders Green was eligible to vote on April 8
turns on whether his status, as of that day, as temporary
shift leader prevented him from having a community of
interest with employees in the unit. The answer lies, I think,
in comparing his situation with that of one Reed, found by
the Board to be ineligible in somewhat similar circumstanc-
es in GAF Corporation, 214 NLRB 409 (1974). Reed acted
as machinist foreman from July 16 until September 21,
1973. The petition in that case was filed on August 3, 1973,
and the election was held on September 14, 1973. The
Board said (410-411):
While the Board has often held [citing United States
Steel Corporation, Central Furnace, 188 NLRB 309
(1971), and Adelphi University, 195 NLRB 639 (1972)]
. . .that employees serving in a temporary supervisory
position are not ineligible to vote in an election solely
because they have served briefly in a supervisory
capacity, the record here shows that Reed's status was
something more than that of a temporary supervisor.
Moreover, this case is distinguishable since Reed was
supervising employees in his own unit, thus raising the
specter of possible conflict of interest with respect to
the unit employees.
*t *s
Here as in [E. 1. Du Pont de Nemours & Co., Inc., 210
NLRB 395 (1974)] . .. Reed, unlike employees found
to be temporary supervisors in other cases, supervised
employees in his own unit before the petition was filed
on August 3, 1973, and until more than a week after the
election. While the employees in E. I. DuPont were
specifically told that their tenure as relief foremen
would be limited in time and that they would return to
unit jobs, Reed's supervisory status is more permanent
here, since there is no evidence that he would be
supervisor for a limited time nor was there any notice
given, at any time, that he would return to the unit.
* * *
[I]t is clear that Reed, having served in a supervisory
capacity with this Employer, as well as with a prior
employer, was, and is, at the very least, a prime
candidate for any other supervisory positions which
become available with this Employer. Thus, the record
shows that Reed does not have a sufficient community
of interest with the employees in the unit, and there
arises the possibility of a serious conflict of interest, a
concern which the Board expressed as being present in
these circumstances in its E. I. DuPont decision supra.
[Emphasis supplied.]
If the fact that Reed was supervising employees in his
own unit is the point on which the Board's decision in GAF
turns, then Green here, under Board law, is ineligible. In
reversing the Board in GAF, the United States Court of
Appeals for the Fifth Circuit had this to say on the point in
GAF Corporation v. N.LR.B., 524 F.2d 492, 496 (1975):
Taken together, the NLRB's own cases indicate that
an employee may be disqualified pursuant to section
2(11) only if his temporary service as a supervisor is a
regular and substantial part of his job which cannot be
"sharply demarcated" from his rank-and-file duties.
Given these established guidelines, the Board's disqual-
ification of Reed because he was acting as a machinist
foreman during Brewer's absence can only be explained
as an implicit adoption of a new policy toward
temporary supervisors. We find no merit, however, in
the NLRB's efforts to justify the approach taken in this
case.
* * S
We find, moreover, no reasonable basis under
section 2(11) for the NLRB's conclusion that Reed's
ballot should not be counted because he had been
supervising members of his own bargaining unit at the
time of the election. As our review of the Board's
decisions has indicated, an employee's supervision of
his own unit has disqualified him only from participat-
ing in ongoing union activities during his temporary
service as a foreman. The NLRB's traditional concern
in this situation has been with the obvious impropriety
of permitting a temporary foreman to participate in
unit meetings and other activities while he is also
serving as a supervisor.... The fact that Reed
supervised members of his own unit has no bearing on
the question of whether he is sufficiently concerned
with the terms and conditions of employment in that
unit to warrant his participation in the certification
election.
623
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
* * *
Even if Reed had been a favorite of management, and
was, therefore, being considered for a permanent post
as machinists foreman, the Board has itself held that
the prospect of promotion does not preclude an
employee from participating in a bargaining unit ...
We find no reasonable basis in either wording of the
Act or its legislative history for the notion that an
employee can be denied the protections of the labor
laws because he is being considered for promotion.
[Footnote and citations omitted.]
That the specter referred to by the Board in GAF is not
the point on which its decision with respect to Reed turns is
clear from its own rationale in E. I. Du Pont, supra, when it
first found temporary foremen ineligible because they
supervised employees in their own unit. In Du Pont the
Board said (396):
It is true, as a general proposition, that individuals
holding "temporary" supervisory positions are normal-
ly found eligible to vote in Board elections [citing, as an
example, Stewart & Stevenson Services, Inc., 164 NLRB
741 (1967)]. This is so because, in most situations,
temporary supervisory assignments may properly be
viewed as relatively insignificant interludes in regular
employee assignments. That does not appear to us to be
the case here ...
We note, moreover, that the individuals in question,
unlike those involved in other cases, supervised the very
employees in the unit, for the entire period of the
organizational campaign up to and including the
election. To grant the relief foremen unit and voting
eligibility for this election would, it seems to us, present
serious conflict of interest problems. Should we find the
relief foremen to be employees, and eligible to vote,
because of their allegedly overriding interest in the
outcome of the election, presumably they should be
entitled to ask their fellow employees how they would
vote, and convey to them their own thoughts about
organization including, perhaps, what the Employer
would do in the event of unionization. They would, in
order to cast an informed vote, be entitled to attend
union meetings, inquire as to who is supporting the
union, and engage in the many other activities to which
"employees" are entitled under Section 7. Presumably
the relief foremen could legitimately run for union
office, and be privy to intimate union organizational
plans. On the other hand, since these foremen, though
deemed "relief," constituted the major part of the
Employer's supervisory cadre throughout this period,
the Employer would have been entitled to insist that
they campaign on its behalf against the Union and
perhaps consult with it about the progress of the
campaign.
We believe that unit employees have the right to
engage in union activities and in the choice of a
collective-bargaining representative free from the par-
ticipation of individuals who have been their chief, and
perhaps only, supervisors for indefinite periods of time;
who at the time of the election appeared to have
prospects of continuing in a supervisory role for further
periods; and, perhaps most importantly, whose loyalty
the employer could and undoubtedly would, demand
during the preelection period. [Footnotes omitted.]
Green did not constitute the major part of Respondent's
supervisory cadre in the period between the filing of the
petition and the holding of the election in Case 15-RC-
5858. In fact, he was actually in the plant as a temporary
shift leader for only a small part of that period. In
numbers, he was only one of four supervisors. Thus the
reason for having a temporary supervisor's identification
with management outweigh his community of interest with
the employees beside whom he usually works because he
supervised them for a short period of time does not apply
here.
In the course of describing his familiarity with Board
election procedures, Green described himself as a supervi-
sor when he cast a challenged ballot in a 1966 Board
election at a potato chip factory where he formerly worked.
Assuming that he was correct in this legal conclusion, it
does not follow that he was like Reed in being a prime
candidate for any other supervisory positions which
become available with Respondent. The only supervisor in
this plant above the level of shift leader is the plant
manager. Green testified he gave up being a shift leader at
his previous place of employment because he did not like
supervision. There is no way the uneducated Sanders
Green who testified before me can ever be promoted by
Respondent to plant manager. Rather, he has more in
common with the employees whose community of interest
with other unit employees was not tarnished by a brief stint
as a temporary supervisor in those cases which the Board
distinguished in GAF and DuPont than he does with Reed
of GAF or the relief foremen of DuPont. I find, therefore,
that Green was an eligible voter when he went to the poll
on April 8.
The omission of Green's name from the eligibility list
that day was not his fault. Neither was it the fault of the
Board agent conducting the election. Under the customary
procedure at Board elections, the omission would merely
have resulted in Green's ballot being in a challenge
envelope, I would have recommended that it be opened
and the ballot counted, and the outcome of both the
representation and the unfair labor practice cases before
me would have turned on whether Green had voted yea or
nay. The fact that Green went away without voting cannot
be blamed on anyone. Green left so quickly that the Board
agent did not have a chance to put the challenged ballot
procedure into effect. The question of whether the Union
has won the right to represent Respondent's production
and maintenance employees does not turn on a question of
fault, in any event. By failing to invoke the challenged
ballot procedure when Green came to the poll, the Board
agent denied an eligible voter a chance to cast a ballot
which, as the April 8 count turned out, could have been
decisive. The purpose of the representation sections of the
Act is to give every eligible employee an opportunity to
participate in the selection of his bargaining representative.
When an eligible employee who presents himself at the poll
is denied that opportunity, the democratic process has
failed. When that failure occurs under circumstances which
624
W. R. GRACE & CO.
demonstrably could have affected the outcome of the
election, the result cannot be permitted to stand. I
recommend, therefore, that the election held in Case 15-
RC-5858 on April 8, 1976, be set aside and a second
election be conducted.
III. THE UNFAIR LABOR PRACTICES
Because the election of April 8 was invalid, Respondent
was under no duty to bargain with the Union when it
discontinued its Monokote operation on May 20, 1976. 1
find, therefore, that it did not violate Section 8(aX5) and (1)
of the Act by reaching that decision unilaterally, thus,
unilaterally, laying off some employees and rearranging the
work schedules of others.
Upon the foregoing findings of fact, and upon the entire
record in this proceeding, I make the following:
CONCLUSIONS OF LAW
1. W. R. Grace & Co., Construction Products Division,
is an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. General Truck Drivers, Chauffeurs, Warehousemen
and Helpers, Local No. 270, a/w International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Inc., is a labor organization within the
meaning of Section 2(5) of the Act.
3. The allegations of the complaint that Respondent
violated Section 8(aX5) and (1) of the Act have not been
sustained.
4. All production and maintenance employees em-
ployed at Respondent's 4729 River Road, Jefferson Parish,
Louisiana, facility, excluding all truckdrivers, confidential
employees, guards, and supervisors as defined in the Act,
constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
[Recommended Order for dismissal omitted from publi-
cation.]
625