Yawman & Erbe of California

National Labor Relations Board - Board Decisions

Sep 30, 1977

232 N.L.R.B. 935 (N.L.R.B. 1977)

YAWMAN & ERBE OF CALIFORNIA
Yawman & Erbe of California Corp. and District 65,
Distributive Workers of America (Independent),
Petitioner. Case 21-RC-14426
September 30, 1977
DECISION AND DIRECTION
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
Pursuant to a Decision and Direction of Election
issued on January 9, 1976, by the Regional Director
for Region 21 of the National Labor Relations
Board, an election by secret ballot was directed in a
unit found appropriate.' Thereafter, the Employer
filed a timely request for review of the Regional
Director's decision, contending, inter alia, that three
"swing persons," Murfett, Haight, and Lindburg,
should be included in the unit. The Board, in denying
the request for review, permitted the swing persons to
vote under challenge. Upon the conclusion of the
first election, the tally of ballots showed that there
were 24 votes for, and 35 against, the Petitioner.
There were three challenges. The Petitioner filed
objections based on the Employer's alleged threats of
plant closure. on March 18, 1976, the Regional
Director issued a Supplemental Decision and Order
Directing Hearing pursuant to which a hearing was
held for the purpose of adducing evidence as to the
Petitioner's objections.
On July 14, 1976, the Regional Director issued his
Second Supplemental Decision, Order and Direction
of Second Election, in which he sustained portions of
the Petitioner's objections, set aside the election, and
directed a second election. The Employer timely
requested review, which request was denied by the
Board on August 16, 1976.
The tally of ballots served on the parties at the
conclusion of the second election showed that there
were 34 votes for and 34 votes against Petitioner,
with 8 challenged ballots and 2 ballots declared void.
Both the Petitioner and the Employer filed objec-
tions.
On December 13, 1976, the Regional Director
issued his Third Supplemental Decision, Order and
Direction of Third Election, in which he sustained
five challenges and overruled three; sustained Peti-
tioner's Objections 4 and 9;2 sustained Employer's
Objection 7; 3 and overruled all other objections.
Thereafter, the Employer and the Petitioner, in
accordance with Section 102.67 of the National
I The unit is: All employees of the Employer at its facility located at 201
South Santa Fe Avenue, Los Angeles, California: excluding all office
clerical employees, estimator and requisition employees, sales employees.
guards. watchmen, and supervisors as defined in the Act.
2 Petitioner's Objection 4 was based on the Employer's prepared speech
to 10 employees, individuall?. in the office of the Employer's president and
232 NLRB No. 143
Labor Relations Board Rules and Regulations, Series
8, as amended, filed timely requests for review of the
Regional Director's decision.
On May 10, 1977, by telegraphic order, the
Employer's request for review was granted as to the
Regional Director's decision to sustain the challenges
to the ballots of Murfett, Haight, and Lindburg and
to sustain Petitioner's Objection 4. The Petitioner's
request for review was granted as to the Regional
Director's decision to overrule the challenge to
Elizabeth Rupracht's ballot and the Employer's
Objection 7. In all other respects, the requests for
review were denied as raising no substantial issues
warranting review.
Pursuant to the provisions of 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 reviewed the entire record in this
case with respect to the issues under review and
makes the following findings:
Challenged Ballots
The Petitioner challenged the ballot of Elizabeth
Rupracht because she was not employed by the
Employer on the date of the second election. The
Petitioner claimed that she had gained permanent
employment elsewhere, whereas the Employer con-
tended that she was on an authorized leave of
absence with a reasonable expectation of future
employment, and therefore was eligible to vote. The
Regional Director overruled the challenge to her
ballot and found her eligible. Rupracht was hired by
the Employer in June 1975. Personnel forms indicate
that on two occasions she was granted a leave of
absence of 120 days, in August 1975 and again in
February 1976. The Employer's treasurer stated that
he extended Rupracht's leave indefinitely a few
weeks before the second election. In view of the
foregoing, we find that Rupracht did not have a
reasonable expectation of future employment on the
date of the second election and was therefore
ineligible to vote. We therefore reverse the Regional
Director's ruling and sustain the challenge to
Rupracht's ballot.
The Petitioner challenged the ballots of Edward
Murfett, LaVerne Haight, and Bill Lindburg, con-
tending that they were supervisors and therefore
ineligible to vote. The Employer contends that they
were production employees and should therefore be
the statement therein. "I hope you are here a long time." Petitioner's
Objection 9 was based on the Employer's massed assembly speech to
employees the day before the election.
3 This objection was based on Petitioner's showing of the film "Salt of
the Earth" to a gathenng of employees.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
included in the voting unit. The Regional Director
found Murfett, Haight, and Lindburg to be supervi-
sors in his Decision and Direction of Election, dated
January 9, 1976, and sustained the challenges to their
ballots after concluding that the Employer offered no
new evidence to the contrary. The record reveals that
the three swing persons, Murfett, Haight, and
Lindburg, distribute work orders and are responsible
for getting jobs done in their respective departments.
They interview job applicants and make recommen-
dations to the Employer as to whether to hire the
applicant. New employees report to the swing person
for directions and job assignments. The Employer's
factory manager, Bill Francis, testified that he hires
applicants that Haight recommends.
The swing persons are consulted prior to the
granting of a wage increase to an employee. Francis
testified that if a swing person's report is not good
the wage increase is not granted until the employee's
job performance improves. Francis testified further
that he sought and subsequently followed Haight's
recommendations as to which employees to lay off.
The swing persons have the authority to correct
employees' work. They can grant an employee
permission to be absent or to leave work early. We
find that there is ample basis in the record to support
the Regional Director's finding that Murfett, Lind-
burg, and Haight are supervisors, and we therefore
sustain the challenges to their ballots.
Objections
Employer's Objection 7 alleges that the Petitioner
appealed to the racial prejudice of the Employer's
minority employees by showing them a film entitled
"Salt of the Earth."4 The Petitioner's western region
director, Robert H. Burke, stated that the film was
shown to emphasize the benefits of union solidarity.
The Regional Director concluded that, in view of the
unemployment problems of members of ethnic
minority groups in the Los Angeles area and the fact
that the Employer's work force is largely "Chicano"
while management is "Anglo," the film contained
sufficient racially inflammatory material to have
affected the free uncoerced atmosphere required for
a Board election. He therefore sustained this objec-
tion.
The film is set in New Mexico in the early 1950's. It
depicts a confrontation between unionized Mexican-
American miners and their "Anglo" employer over
4 The film was made in 1953 and directed by Michael Wilson.
Sec Heckethorn Manu/facuring Co., 208 NLRB 302 (1974), in which we
said that the exhibition of the film "And Women Must Weep" by the
employer was not a sufficient basis for setting aside the election.
safety standards and other working conditions. The
miners walked off the job following an accident
which resulted in injury to a miner. The strike
continued for a period of several months during
which time the employer refused to negotiate and
used pressure tactics to force the men back to work.
The miners picketed the mine and prevented the
employer from resuming operations. As the strike
continued, the miners' wives demanded equality with
the men and a role in making the decisions that were
vital to the whole community. After the employer
obtained an injunction against picketing by the
striking miners, their wives maintained the picket line
and continued to prevent the employer from operat-
ing. Some of the women were arrested and jailed
along with their children. In the end, the employer
apparently negotiated a settlement.
We have viewed the film "Salt of the Earth" and
are of the opinion that it does not contain racially
inflammatory material, such as would inhibit a free
uncoerced preelection atmosphere.5 We therefore
reverse the Regional Director's ruling and dismiss
the Employer's Objection 7.6
Upon the basis of the foregoing, we hereby remand
this proceeding to the Regional Director for Region
21 to take the action set forth below.
DIRECTION
It is hereby directed that, as part of the investiga-
tion to ascertain a representative for the purposes of
collective bargaining among certain employees of
Yawman & Erbe of California Corp., in the unit
found appropriate, the Regional Director for Region
21 shall, pursuant to the Board's Rules and Regula-
tions, within 10 days from the date of this Decision
and Direction, open and count the ballots of Maria
Soto and Margarita Jimenez, and, thereafter, prepare
and cause to be served on the parties a revised tally
of ballots, including therein the count of said ballots.
In the event that the revised tally of ballots shows
that a majority of the valid votes have been cast for
the Petitioner, the Regional Director shall issue a
Certification of Representative. In the event that said
tally shows that a majority of the valid votes have not
been cast for the Petitioner, the Regional Director
shall set aside the election and conduct a new
election, at such time as the Regional Director deems
appropriate.
6 In view of our disposition of the case, we find it unnecessary to rule on
the Petitioner's Objection 4. All other issues have been resolved in our
telegraphic order of May 10, 1977.
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