Zimmer Industries, Inc.

National Labor Relations Board - Board Decisions

Apr 3, 1958

120 N.L.R.B. 317 (N.L.R.B. 1958)

ZIMMER INDUSTRIES, INC. 317
intimate, and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, it
will be recommended that it cease and desist therefrom and that it take certain
affirmative action designed to effectuate the policies of the Act.
It having been found that the Respondent discriminated in regard to the hire and
tenure of employment of Vincent Buchberger by discharging him on January 4, 1956,
the Trial Examiner will recommend that the Respondent offer to him immediate
and full reinstatement to his former, or substantially equivalent position, without
prejudice to his seniority or other rights and privileges, and make him whole for
any loss of pay he may have suffered by reason of said discrimination by payment
to him of a sum of money equal to that which he would have earned as wages from
the date of the discrimination against him to the date of the offer of reinstatement
less his net earnings during such period, in accordance with the formula set forth
in F. W. Woolworth Company, 90 NLRB 289.
In the opinion of the Trial Examiner, the unfair labor practices committed by
the Respondent in the instant case are such as to indicate an attitude of opposition
to the purposes of the Act generally. In order, therefore, to make effective the
interdependent guarantees of Section 7 of the Act, thereby minimizing industrial
strife which burdens and obstructs commerce, and thus effectuate the policies of the
Act, it will be recommended that the Respondent cease and desist from infringing
in any manner upon the rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record, the
Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Associated Unions of America , Independent , is a labor organization within
the meaning of Section 2 (5) of the Act.
2. By discharging Vincent Buchberger on January 4, 1956 , thereby discriminating
in regard to his hire and tenure of employment and thus discouraging membership
in Associated Unions of America , Independent , the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (a) (3) and (1)
of the Act.
3. By interfering with , restraining , and coercing its employees in the exercise of
the rights guaranteed to them 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.
4. 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.]
Zimmer Industries, Inc. and United Automobile, Aircraft and
Agricultural Implement Workers of America (UAW), AFL-
CIO, Petitioner. Case No. 35-RC-1196. April 3, 1958
DECISION, ORDER, AND DIRECTION OF SECOND
ELECTION
On October 18,1957, pursuant to a stipulation for certification upon
consent election, an election was conducted under the direction and
supervision of the Regional Director for the Ninth Region among the
employees in the stipulated unit. Upon conclusion of the election, a
tally of ballots was furnished the parties in accordance with the Rules
and Regulations of the Board. The tally showed 95 valid ballots were
cast, of which 41 were for, and 54 were against, the Petitioner.
120 NLRB No. 50.
318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On October 25, 1957, the Petitioner filed objections to conduct
affecting the results of the election. The Regional Director investi-
gated the objections and, on February 17, 1958, issued his report, in
which he recommended that 2 of the Petitioner's 3 objections be found
without merit,l but that the third objection concerning the Employ-
er's distribution of an altered reproduction of the Board's official
secret ballot be sustained and that the election be set aside on this
ground. Thereafter, the Employer filed timely exceptions to the
Regional Director's report.
The Board,' having considered the Petitioner's objections, the
Regional Director's report, the Employer's exceptions, and the entire
record in the case, finds as follows :
1. The Employer is engaged in commerce within the meaning of
the National Labor Relations Act.
2. The labor organization involved claims to represent certain
employees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of certain 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
appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act :
All production and maintenance employees at the Employer's
Elwood, Indiana, trailer manufacturing plant, including truckdrivers,
working group leaders, and janitors, but excluding all office and plant
clerical employees, professional employees, guards, and supervisors as
defined in the Act.
5. The Petitioner's objection which is before us alleges as follows:
That between the hours of 7: 00 AM and 8: 00 AM on October
18, 1957, the Company, by its officers and agents, did distribute a
reproduction of the Board's Sample Ballot with an "X" in the
"no" box.
The Regional Director found that the Employer distributed, on the
morning of the election, a reproduction of the Board's official secret
ballot, altered by being marked "sample" across its face, by an "X"
inserted in the "No" square, and by omission of the statement, "If you
spoil this ballot return it to the Board agent for a new one." The
Regional Director accordingly recommended that the election be set
aside on the basis of the Board's decision in the Allied Electric Prod-
ucts case ,' where the Board announced its policy that the reproduction
1 As there is no exception to this recommendation , it will be adopted
2 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three -member panel
[Chairman Leedom and Members Bean and Fanning].
3 Allied Electric Products, Inc, 109 NLRB 1270.
ZIMMER INDUSTRIES, INC. 319
of a purported official ballot which has been altered in a partisan man-
ner would not be permitted, and that, upon valid objection, any elec-
tion in which this rule had been violated would be set aside.
The Employer excepts to the Regional Director's recommendation
on the grounds, among others, that (1) the Petitioner's objections
were not timely filed; (2) there is no rule in the Board's Rules and
Regulations pertaining to the reproduction of Board ballots;
(3) there is no showing that any employee was misled by the sample
ballot; and (4) the Petitioner failed to object to the use of the ballot
prior to the election. The Employer requested that a hearing be
directed on the issues raised by its exceptions.
(1) As the Regional Director found, the Petitioner's objections,
contained in a letter dated October 24, 1957, were sent to the
Employer by certified mail, and were delivered, on October 25, 1957.
Section 102.83 of the Board's Rules and Regulations, Series 6, as
amended, provides, with regard to the time for filing objections, that
the 5-day period shall not include the day of the election, any inter-
vening Saturday on which the Board office is closed, Sunday, or holi-
day. As the election was held on Friday, October 18, we find, in
accord with the Regional Director, that the Petitioner's objections
were timely filed 5 days after the election.
(2) The Board announced its policy as to the reproduction of
Board ballots clearly and unequivocally in Allied Electric Products,
supra, issued in September 1954, and has consistently followed this
policy since then' Such policy, founded upon the Board's inherent
powers under the statute and its "wide degree of discretion in estab-
lishing the procedure and safeguards necessary to insure the fair and
free choice of bargaining representatives by employees," 5 is applicable
to any party subject to the Act, and does not depend, for its effective-
ness, upon inclusion in the Rules and Regulations.'
(3) There is no merit in this contention as the Board will not
attempt to assess the effect of improper election conduct upon the
voters' choice 7
(4) We likewise find no merit in the contention that the Petitioner
should have objected to the use of the ballot prior to the election as
the distribution of the altered ballot was made from 7 to 8 on the
morning of the election, which was conducted from 9 to 11 a. m.' It
is sufficient, in our opinion, that the objections were, as found above,
timely filed.
4 See, for example, Hughes Tool Company, 119 NLRB 739; Superior Knitting Corpora-
tion ,, 112 NLRB 984; Scharco Manu facturing Corp., 110 NLRB 2112.
Foreman & Clark , Inc. v. N L. R. B., 215 F. 2d 396 (C. A. 9)
Southern Bleachery and Print Works , Inc., 115 NLRB 1526 , 1528; 3 Beall Brothers 3,
et al , 110 NLRB 685, 686
7 Hughes Tool Company, supra; Bachmann Uxbridge Worsted Corporation, 110 NLRB
1195, 1197
8 See Hughes Tool Company, supra.
320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Under all the circumstances, the request for a hearing in this case
is hereby denied. We shall accept the Regional Director's recom-
mendation that the election herein be set aside, and shall direct a
new election.
[The Board set aside the election.]
[Text of Direction of Second Election omitted from publication.]
Maclobe Lumber Company of Glen Cove , et al., Petitioner and
Local 1205 , International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen & Helpers of America. Cases Nos.
2-RM-883 and 2-RM-885. April 7, 1958
DECISION AND ORDER
Upon separate petitions duly filed under Section 9 (c) of the
National Labor Relations Act, a consolidated hearing was held before
L. I. Broadwin, 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 National Labor
Relations 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 these cases, the Board finds :
1'. Maclobe Lumber Company of Glen Cove, New York, and Mac-
lobe Lumber Co., Inc., and Maclobe Millwork Corporation, both of
Valley Stream, New York, contend that they constitute a single
Employer within the meaning of the Act. The Union contends that
the Employer is not engaged in commerce within the meaning of
the Act.
Maclobe Lumber Company of Glen Cove is a partnership con-
sisting of two brothers, Harry and Jack Deutsch, and is engaged in
the wholesale lumber business. Maclobe Lumber Co., Inc., and
Maclobe Millwork Corporation are corporations located in the same
building in Valley Stream, New York; the former is engaged in the
wholesale lumber business and the latter is engaged in wholesale mill-
work. Each of the 2 brothers owns a half interest in the partner-
ship and each also owns 50 percent of the stock of the 2 corporations,
1 The hearing officer refused to permit the Union to introduce certain evidence and re-
jected the Union's offer of proof therein . The offer related to contracts with other labor
organizations , one of which was currently in effect and one of which recently expired,
the former affecting yardmen at one of the companies and the latter affecting drivers.
We find that the hearing officer erred and should have permitted the Union to introduce
this evidence . However, in the view that we take of this case , we find that this error
was not prejudicial.
120 NLRB No. 52.