Atlas Imperial Diesel Engine Co.

National Labor Relations Board - Board Decisions

Feb 14, 1951

93 N.L.R.B. 268 (N.L.R.B. 1951)

268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ATLAS IMPERIAL DIESEL ENGINE CO. AND HUNT FOODS, INC. and IN-
TERNATIONAL ASSOCIATION OF MACHINISTS DISTRICT LODGE No. 115,
PETITIONER. Case No. 20-RC-708. February 14, 1951
Second Supplemental Decision and Direction
On September 29, 1950, pursuant to a Supplemental Decision,
Order, and Second Direction of Election issued by the Board,' ai
election by secret ballot was conducted under the direction and super-
vision of the Regional Director for the Twentieth Region. There--
after, a tally of ballots was furnished the parties in accordance with-
the Rules and Regulations of the Board. The tally shows that of
approximately 360 eligible voters, 239 cast ballots, of which 80 were
for the Petitioner, 6 were for the United Steel Workers of America,,
CIO, and 60 were for the Cannery Warehousemen, Food Processors,
Drivers and Helpers Union No. 768, affiliated with the International
Brotherhood of Teamsters and Chauffeurs, AFL, and California State-
Council of Cannery Unions, herein called the Cannery Union. There
were 4 void ballots, and 89 ballots were challenged. ,
On October 23, 1950, the Employer and the Cannery Union filed
timely objections to the election. As the number of challenged bal-
lots was sufficient to affect the results of the election, and the Employer
and the Cannery Union filed objections to the election, the Regional
Director, in accordance with the Board's Rules and Regulations, con-
ducted an investigation, and thereafter issued and duly served upon
the parties his report on objections and challenged ballots. The Re-
gional Director found that the objections of the Employer and the
Cannery Union did not raise substantial issues with respect to the-
election, and recommended that the Board overrule the objections.
With respect to the 89 challenged ballots, the Regional Director recom-
mended that the Board sustain certain of the challenges and overrule
other challenges. Thereafter, the Employer, the Petitioner, and the
Cannery Union filed timely exceptions to the Regional Director's
report.
Upon the basis of the Employer's and the Cannery Union's ob-
jections to the Regional Director's report on objections and challenged
ballots, the exceptions of the Employer, the Petitioner and the Cannery
Union, and the entire record in this case, the Board finds : 2
The Objections to the Election
The first two objections of the Employer and the Cannery Union
raise the following major contentions: (1) The second election should
191 NLRB 530
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 Herzog and Members Houston and Styles]
93 NLRB No. 38.
ATLAS IMPERIAL DIESEL ENGINE' CO. 269
not have been held in 1950 as it was not conducted at or near the peak
.of employment; and (2) the Board attempted and failed to re-create
the situation that existed at the time of the first election on August 18,
1950. The Cannery Union, in addition, contends that it did not re-
,ceive adequate notice of the second election, and the Employer again
urges that the unit found appropriate by the Board in its Decision
and Direction of Election issued April 12, 1950,3 is in fact inappro
priate.
In its Supplemental Decision, Order, and Second Direction of
Election the Board ordered that an election be held among the em-
ployees in the unit found appropriate who were employed during the
payroll period immediately preceding the date of the Second Di-
rection of Election.' On September 27, 1950, the Employer and the
Cannery Union requested postponement of the second election, on the
ground that the peak of employment had passed, and thus no repre-
sentative vote could be obtained before the 1951 season. On Septem-
ber 28, 1950, the Board issued an Order directing that the Regional
Director conduct the election as scheduled, also permitting employees
who were eligible at the time of the first election, and who were not
presently employed by the Employer, to cast ballots by mail.
The Regional Director's investigation disclosed that the eligibility
list used in the second election contained the names of 360 employees.
Of this number, 222 were employed in the can manufacturing plant
during the eligibility period ending September 24, 1950, and the
remainder were employed during the first eligibility period .5 In his
report, the Regional Director concluded that in view of the fact that
approximately 360 employees, who had worked at some period at or
near the peak of employment during the 1950 season, were given an
opportunity to exercise their right of franchise in the second election,
and as 239 did avail themselves of the opportunity to vote, a repre
sentative group of employees participated in the second election.
We agree with the Regional Director's finding that a representative
group of employees participated in the second election. In its excep-
tions, the Cannery Union alleges that the balloting by mail failed to
afford all of the persons on the payroll of August 24, 1950, an oppor-
tunity to vote. We find no merit in this contention. The use of mail
ballots in the conduct of an election is a customary and usual pro-
cedure. The mere fact that all former employees did not take advan-
tage of their franchise does not mean that they were foreclosed from
voting. There is no showing that any employees were prevented from
voting because of the procedures used in this election, or that any of
the parties was prejudiced thereby.
s 89 NLRB 372
* In its original Decision , the Board directed that the election be conducted at or near
the peak of employment on a date to he determined by the Regional Director
5 The eligibility list for the first election covered 298 employees.
270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD,
The Board previously considered and rejected the contention of
the Employer and the Cannery Union that the second election be
postponed to the 1951 season. We have carefully reviewed the argu-
ments presented by the Employer and the Cannery Union, but can
perceive no reason for reaching a different conclusion at this time.
Accordingly, the objections in this regard are hereby overruled.
With respect to the Employer's third objection, the Board in its
original Decision and Direction of Election considered the Employer's
contentions regarding the appropriate unit, and found them to be
without merit. No new matter in support of the Employer's conten-
tion is now alleged. This objection is therefore overruled.6
With respect to the Cannery Union's third objection, the Regional
Director's investigation revealed that essentially the same procedure
was followed in notifying the parties of the second election as had
been used in connection with the first election. On September 25,
1950, a field examiner telephoned the Employer and each of the labor
organizations and informed them that the first election had been
set aside by the Board, and a second election had been directed.? The
parties were told at that time that the second election would be held
on September 29, 1950. On the same day notices of election were
mailed to all parties to the addresses previously furnished the Re-
gional Office, and to which the notices for the first election had been
mailed .8 On September 26, the Cannery Union telephoned the
Regional Office and stated that it had not received its notice of elec-
tion. A check was made with the post office at Hayward, California,
and it was ascertained that it usually takes longer for mail to reach
Hayward from San Francisco than it does for mail to reach Oakland.
The Cannery Union was given this information, and an offer was
made by the field examiner to have the notice of election delivered to
it by messenger. The Cannery Union refused this offer. Its copies of
the notice of election were received by mail the following day.
The Board agrees with the Regional Director's finding that these
facts do not support the Cannery Union's contention that it did not
receive adequate notice of the election. Moreover, in view of the fact
that the Cannery Union refused an offer to have the notice delivered
by messenger, and it did not submit any evidence to prove that its
rights or those of the voters were prejudiced in any way by the time or
method of its receiving the notice of election, we find this contention
to be without merit. Accordingly, this objection is overruled.
Like the Regional Director, the Board finds that the objections
of the Employer and the Cannery Union do not raise substantial or
6 Tennessee Copper Company, 90 NLRB No 238
7 Such information had been received by the Regional Director by teletype from Wash-
ington, D C , that day, and the parties were so informed
8 The Cannery Union's office is in Hayward , California, and the Petitioner's office is
located in Oakland, California.
ATLAS IMPERIAL DIESEL ENGINE CO. 271
material issues with respect to 'the election. As all objections to the
election have been overruled, no reason exists for setting aside the
results of the election and ordering a new election herein.
The Challenged Ballots
Thirty-five challenged ballots were cast at the polls and 54 mail
ballots 9 were challenged by the Petitioner at the time of the count-
ing and tabulation of ballots. All but 11 of the challenged ballots,1o
fall into the following 2 categories : A group of 28 cast by employees
listed in Appendix A, who either were hired or transferred to the
can manufacturing plant from the cannery between the eligibility
dates of the first and second elections; and the remaining 50 cast by
employees listed in Appendix B, who were eligible in the first elec-
tion but whose employment in the can manufacturing plant termi-
nated before the second eligibility period.
The Regional Director, assuming that it is desirable, where neces-
^'ary, to conduct a repeat election in a seasonal industry before the
peak of the following season, was of the opinion that many factors
make it impossible to be sure that a second eligibility period based
upon a date just prior to the issuance of a Second Direction of Elec-
tion would cover a representative number of employees.11 He con-
cluded that the same eligibility list should be used for both elections,32
and therefore recommended that the Board sustain the challenges to
the ballots of the 28 employees who were hired after the first election,
and overrule the challenges to the ballots of the 50 employees who
were eligible at the time of the first election.13
The Petitioner takes exception to the Regional Director's resolu-
tion of the challenged ballots. It urges that the challenges to the
ballots of the employees hired after the first election should be over-
ruled and that the challenges to the ballots of the employees who were
eligible at the time of the first election should be sustained. It argues,
in effect, that the new employees became successors in interest to the
° There were 132 ballots sent out by mail, of which 59 were returned by the voters.
Only 2 of the 132 were returned to the post office as undelivered
10 with respect to these 11 , the Regional Director recommended that the challenges
to the ballots of Julio Alegria , Harry L . Craig , Robert M. Gale, Frances C. Navarro, and
Arthur N Prince , be sustained , and that the challenges to the ballots of Thelma Curry,
Marie Freitas , Melva Hall , Delbert Harmon , Jeanette Peterson , and Louise Santos be
overruled , and that their ballots be opened and counted. As no exceptions to these recom-
mendations have been filed by any of the parties , we hereby adopt the Regional Director's
findings and recommendations concerning these ballots.
31 The Regional Director was of the opinion that the fact that a representative number
of persons were employed at the time of the second election was coincidental , rather than
normally to be anticipated in light of the Board ' s general experience in dealing with
seasonal industries as a whole
11 There were 164 employees on the second eligibility list who were also eligible to vote
in the first election , and of this number 146 cast ballots at the second election
19 Contrary to the Regional Director , we believe that it was clear from the Board's Order
that both groups of employees were eligible to vote.
272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees who left the Employer's plant after the first election. The
Cannery Union, on the other hand, argues that if the results of the
second election are to be considered, the recommendation of the Re-
gional Director on challenged ballots should be sustained. It is the
Cannery Union's position that the situation of the first election is
more clearly re-created by counting the mail ballots of employees
employed during the first eligibility period and not counting the
ballots of employees hired after the first eligibility period.
We do not agree with either the Petitioner or the Cannery Union.
Contrary to the recommendations of the Regional Director, we find no
persuasive reason for now deviating from eligibility periods set forth
in our Second Direction of Election, as amended by the subsequent
Order, by sustaining the challenges to the ballots of the employees
hired after the first election.14
We believe that under the circumstances present in this case, in-
cluding the seasonal nature of the operation, employees who were
eligible to vote in the first election, but who were no longer employed
at the time of the second election because of a decline in business,
may reasonably be viewed as occupying a status similar to temporarily
laid-off employees whom we ordinarily permit to vote. In order to
provide for extending the franchise to the largest number of employees
whose interests could be affected by the selection of a bargaining
representative, the Board in its Second Direction of Election and sub-
sequent Order provided that both groups of employees should be
eligible to vote. None of the parties have brought forth any argu-
ments which impel the Board to a different conclusion. The Re-
gional Director's recommendation that the challenges to the ballots
of the 28 employees who were hired after the first election be sustained,
is therefore overruled. Their ballots shall be counted along with
those of the employees who were eligible at the time of the first election.
Direction
It is hereby directed that the Regional Director for the Twentieth
Region, within ten (10) days from the date of this Direction, open
and count the ballots cast by Thelma Curry, Marie Freitas, Melva
Hall, Delbert Harmon, Jeanette Peterson, Louise Santos, and the
employees listed on Appendices A and B, attached hereto, and there-
after shall prepare and serve upon the parties to this proceeding a
supplemental tally of ballots, including therein the count of the said
challenged ballots.
14 In directing a new election after setting aside the results of a previous election, it is
the Board's practice to specify it current payroll rather than the payroll used in the
-first election, to determ-lne eligibility to vote in the new election. Because of the seasonal
nature of the Employer 's industry, however , the Board , after reconsideration , determined
that both groups of employees should be eligible to vote.
ATLAS IMPERIAL DIESEL ENGINE CO. 273
Grace Armstrong
Sue Barnes
Margaret Barrow
Angelina Botelho
Hilda Cain
Connie Contreras
Josie Contreras
Barbara Dennis
Marie Felicetti
Eunice Hatton
Erma 1=Iollls
Ruby Leeper
Shirley Pratt
Agnes Texeira
Eugene W. Andersen
Albert Avolicino
George R. Baldwin
Gilbert G. Barbee
Henry E. Boyd
Donald L. Broshious
Jimmy E. Brown
Clement M. Brum
Robert Carruth, Jr.
Loren F. Castro
Denzil L. Compton
Gary Cooper
Davis W. Digby
Samuel C. Dominey
Leon C. Duran
Julio C. Estrada
Joseph Figueira
Edward Gilbert
Alexander T. Gorgoletis
Kenneth V. Greene
Robert L. Harrison
Francisco Hernandez
Carleton D. Horton, Jr.
Raymond R. Jones
Orby Kelly
943732-51-19
Appendix A
Annie Vigil
Danny Cresser
David Engols
Jimmy Hicks
Rufers Jones
Julius Michaelis
Clifford Moyer
J. Al. Rackley
Richard Rodriguez
John J. Santos
George Souza
Salvador Torres
Darrel Wilson
Edward Long
Appendix B
Erick A. Malespin
Peter A. Meredith
Fred M. Monsen, Jr.
Harry Motos
Long Oemir
John B. Ogden
Clyde G. Paul
Ricardo Paz
Ruben M. Rosales
James Sait
Clifford R. Saunders
Robert L. Schuckert
David W. Sharp
Samuel Smith
Hymen Steinberg
Gerald L. Vercelli
Charles Wallace
Ernest Wheelock
Galen R. White
James L. Willows, Jr.
Ivy Mercer
Elsie Orth
Inez Rankin
Dorothy A. Runkle
Helen Wenzel