F. B. Rogers Silver Co.

National Labor Relations Board - Board Decisions

Aug 28, 1951

95 N.L.R.B. 1430 (N.L.R.B. 1951)

1430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
basis which will necessitate basic changes in job classifications and
manufacturing methods.
Under these circumstances, we find that the present complement
of 40 percent of the production and maintenance employees of the
}Iypospray Division is a substantial and representative segment of
employees to be employed in the foreseeable future.7 As the expec-
tations of employment beyond that date appear to be uncertain,
speculative, and contingent upon unpredictable factors in the future,
we see no reason for departing from our usual policy of directing an
immediate election. Accordingly, we shall deny the motion to post-
pone the election.
[Text of Direction of Election omitted from publication in this
volume.]
CHAIRMAN HERZOG and MEMBER STYLES took no part in the con-
sideration of the above Decision and Direction of Election.
7 Cadillac Motor Car Division. 94 NLRB 217. Cf. Tucker Corporation, 79 NLRB
1262. In that case the number of employees at the time of the hearing was about 9
percent of the ultimate number contemplated by the Employer and there was insufficient
evidence for a finding that even that number would remain stable in the immediate future.
In the present case, the evidence showed that the present number constituted 40 percent
of the force to be employed within the next 12 months' period. Cf. also Coast Pacific
Lumber Company, 78 NLRB 1245, and Westinghouse lllectiic Corporation, 85 NLRB 1519.
F. B. ROGERS SILVER COMPANY and PLAYTHINGS, JEWELRY AND NOV-
ELTY WORKERS INTERNATIONAL UNION, CIO, PETITIONER . Case No.
1-RC-1445. August 28, 1951
Second Supplemental Decision and Direction
On May 18, 1951, pursuant to a Supplemental Decision, Order, and
Second Direction of Election issued by the Board on May 2, 1951,1
an election by secret ballot was conducted under the direction and
supervision of the Regional Director for the First Region, among the
employees of the Employer in the unit found appropriate in the
original Decision 2 in this case. The tally of ballots furnished to the
parties after the election showed that 113 voters cast ballots, of which
52 were for the Petitioner, 44 were against the Petitioner, 16 were
challenged, and 1 was void.
As the challenged ballots were sufficient in number to affect the re-
sults of the election, the Regional Director conducted an investigation
194 NLRB 205.
2 May 2, 1950 , not reported in printed volumes of Board decisions.
95 NLRB No. 191.
F. B.,ROGERS SILVER COMPANY 1431
of the challenges . . On June 25 , 1951 , he filed his report on challenges
in which he recommended that-: ( 1) The challenges by the Petitioner
to the ballots, of Charles L. Bryant, Louis Gracia, Ernest Mador, Louis
Costa; Oscar Marcotte , and Edmund Gurdak be -overruled , al d (2)-
the challenges by the Board agent to the ballots of Dorothy Rountree,
Joseph Rodrigues , Joseph R . Silva, Jr., James Cotter , George Medei-
ros, Ronald Brown , Howard Hudson , Stanley Szteliga , Mary Perry,
and Mary Benevides be sustained . The Regional Director further
recommended that, as the six overruled challenges would. not affect
the results of the election , the Petitioner be certified as the exclusive
representative of the employees in the appropriate unit.
On July 5 , 195X, the Employer filed tiniely exceptions to the Regional
Director 's report, limited to the sustaining of the challenges to the
ballots of Perry and Benevides . The Petitioner did not file any excep-
tions to the Regional Director 's report.
Thereafter , on July 17, 1951 , the Regional Director filed a supple-
mental report on challenged ballots . in which he reversed his recom-
mendation as to the ballots of Silva, Cotter , Medeiros , Brown , Hudson,
Szteliga, Perry, and Benevides , and recommended that the challenges'
to these eight ballots be overruled . The Employer duly filed excep-
tidhs to this supplemental report , contending that only the challenges
to the ballots of Perry and Benevides should be overruled . The Peti-
tioner also filed exceptions to the supplemental report , in which it
maintained that the group of eight challenges dealt with in the sup-
plemental report should all be treated alike-either all sustained or all
overruled.
1. As no exceptions have been filed to the Regional Director 's recom-
mendation that the challenges to the ballots of Bryant , Gracia , Mador,
Costa, Marcotte , and Gurdak be overruled , we 3 adopt this recom-
mendation and hereby overrule these six challenges.
2. As no exceptions have been filed to the Regional Director 's recom-
mendation that the challenges to the ballots of Rountree and Rod-
rigues be sustained , we adopt this recommendation and hereby sustain
these two challenges.
3. With respect to the remaining eight challenges to the ballots
of Silva, Cotter, Medeiros , Brown, Hudson , Szteliga , Perry, and Bene-
vides, the record before us discloses the following :
These eight employees were all laid off between April 28 and May 5,
1951. Perry and Benevides had been employed in the sterling silver
department , and the other - employees had worked in the copper depart-
ment. Governmental restriction on the use of copper, resulting from
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 Reynolds and Murdock].
1432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the war situation, was the direct cause of the layoffs in 'the copper
department ; slack business caused the layoffs in the sterling silver
department . At the time of the election , the Employer had no way
of knowing when, if ever, the copper restriction would be eased.
As a matter of fact, although the copper situation has now ameliorated
somewhat , it has not improved enough to warrant the ' recall of the
laid-off employees but only enough to avoid the necessity of further
layoffs in the copper department. Perry and Benevides were ' re
called to work on June 4, 1951 , as sterling silver sales picked up and
inventories declined.
The eligibility of laid-off employees to vote in Board elections must
be determined as of the date of the election, and the fundamental ques-
tion to be decided is whether such employees have a reasonable ex-
pectancy of employment in the near future 4 It is clear in this case
that the status of Perry and Benevides at the time of the election was
entirely different from that of the other six employees .' Layoffs for
business reasons are a normal thing in the business world, and, at the
time of the election, Perry and Benevides had a reasonable expectancy
of being called back to work in the foreseeable future . In fact, they
were back on the job within a few weeks . On the other hand, the
six employees laid off in the copper department had no such reasonable
expectancy of reemployment. The turn of international affairs could
not be foreseen , and the layoffs in the copper department must be
deemed to have been permanent.
It follows from what we have said above that the challenges to the
ballots of Silva , Cotter, Medeiros , Brown, Hudson, and Szteliga must
be, and they are hereby , sustained , and that the challenges to the
ballots of Perry and Benevides must be, and they are hereby, over-
ruled.
As the ballots of Bryant , Gracia , Mador , Costa, Marcotte, Gurdak,
Ferry, and Benevides , the challenges to which have been overruled,
can affect the results of the election , we shall direct that these ballots
be opened and counted.
Direction
As part of the investigation to ascertain representatives for the pur-
poses of collective bargaining with the Employer, the Regional Direc-
tor for the First Region shall, pursuant to the Rules and Regulations
of the National Labor Relations Board, within ten (10) days from the
date of this Direction, open and count the challenged ballots of Charles
L. Bryant, Louis Gracia, Ernest Mador, Louis Costa, Oscar Marcotte,
Edmund Gurdak, Mary Perry, and Mary Benevides, and shall, there-
4 General Motors Corporation, 92 NLRB 1752 , and cases cited therein.
WESTERN COTTONOIL COMPANY 1433
after, prepare and cause to be served upon the parties a supplemental
tally 'of the ballots.
WESTERN COTTONOIL COMPANY and EL PASO CONSOLIDATED INDUSTRIAL
UNIONS -LOCAL 896 OF INTERNATIONAL UNION OF MINE , MILL &
SMELTER WORKERS . Cases Nos. 33-CA-113 and 33-RC-212. Au-
gust 09, 1951
Decision and Order
On April 16,1951, Trial Examiner Howard Myers issued his Inter-
mediate Report in the. above-entitled proceeding, finding that the
'Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it be ordered to cease and desist
therefrom and take certain affirmative action, as set forth in the copy
of the Intermediate Report attached hereto. The Trial Examiner
further recommended that the Board sustain the objections to the
election which was held on November 17,1949, in Case No. 33-RC-212,
and, set aside that election. Thereafter, the Respondent filed excep-
tions.to the Intermediate Report and a supporting brief. .
The Board 1 has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board. has considered the Inter-
mediate Report, the Respondent's exceptions and brief, and the entire
record in the case, and hereby adopts the,findings, conclusions, and
recommendations of the Trial Examiner, with the following additions
and modifications.
1. We find, as did the. Trial Examiner, that the Respondent inter-
fered with, restrained, and coerced its employees in the exercise of
the rights guaranteed in Section 7, thereby violating Section 8 (a) (1)
of the Act. However, in making this finding, we rely solely on the
following. conduct, more. fully described in the Intermediate Report :
a. The speeches made by'Vesey, the Respondent's district superin-
tendent, insofar as those speeches 2 (1) contained promises that if the
Union lost the election the employees would be given new recreation
facilities, medical aid for their families, and an immediate wage in-
crease, and (2) contained threats that if the Union was successful the
Respondent would discontinue its policy of loaning money to its em-
I 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 [Members Houston, Reynolds,
and Styles].
9 The statements by supervisory officials of the Respondent which we here find violative
of the Act contain in themselves threats of reprisals or promises of benefit . As such
it is unnecessary to, and we do not, adopt the Trial Examiner 's rationale as to the result
that would be reached if it were to be found that the statements in question did not
contain in their context any threats or promises of benefit.
95 NLRB No. 195. .