Liberty Cork Co., Inc.

National Labor Relations Board - Board Decisions

Sep 24, 1951

96 N.L.R.B. 372 (N.L.R.B. 1951)

372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that the following employees of the Employer constitute
a unit appropriate for the purposes of collective bargaining : All truck
drivers, helpers, warehousemen, and general plant employees at the
Employer's Cozad, Nebraska, plant, excluding all cuttermen and load-
ermen, office and clerical employees, professional employees, guards,
and supervisors as defined in the Act.
5. Cuttermen are employed approximately 6 months of a year in
harvesting alfalfa, as described above. Generally, they are assigned
to work in the Employer's plant during those months in which no
harvesting can be done. The record does not disclose the exact divi-
sion of their time between agricultural and nonagricultural work.
On the other hand, loadermen are engaged on a year-round basis in
loading operations and they are assigned to work in the Employer's
plant on an intermittent basis, depending upon the state of the weather.
Thus, because loadermen spend less than 50 percent of their time in
nonagricultural work, it is clear that they are not eligible to vote in
the election. However, it appears that some cuttermen may have such
a substantial interest in the election as to be the basis for permitting
them to vote therein. In accordance with usual Board policy, only
those cuttermen who were assigned to work in the Employer's plant
during at, least half of the number of weeks in which they worked in
1950 shall be eligible to vote.8
[Text of Direction of Election omitted from publication in this
volume.]
s WCAU, Inc., 93 NLRB 1003; Libby McNeill & Libby, 90 NLRB 279; Delaware Broad-
caeting Company, 82 NLRB 727.
LIBERTY CoRK Co., INC.' and UNITED RUBBER, CORK, LINOLEUM &
PLASTIC WORKERS OF AMERICA, CIO, PETITIONER. Case No. 4-RC-
1159. September 4 1951
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National-Labor
Relations Act, a hearing was held before Harold X. Summers, 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 Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Chairman Herzog and Members Reynolds and Murdock].
Upon the entire record in this case, the Board finds :
1 The petition and other formal papers were amended at the hearing to show the correct
name of the Employer.
96 NLRB No. 53.
LIBERTY CORK CO., INC.
1. The Employer is engaged in commerce within the meaning of the
Act.
2. The labor organization involved claims to represent certain
employees of the Employer.2
3. A question affecting commerce exists concerning the representa-
tion of 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 the Act : All production and maintenance employees at
the Employer's Butler, New Jersey, plant, excluding office and clerical
employees, guards,' and supervisors, as defined in the Act.
5. The Employer contends that certain employees quit their jobs
on April 9, 1951, and, accordingly, that they are not eligible to vote
in the election directed herein. The Petitioner contends that such
employees are on strike. The record reveals that on the morning of
April 9, 1951, a majority of the Employer's employees stopped work-
ing and demanded an increase in pay. The employees repeated this
demand to the Employer's general manager, who was immediately
summoned to the plant. In the alternative, the employees proposed
that they be given a new supervisor. No agreement having been
reached after several hours of discussion, a majority of the Employer's
employees walked out of the plant and returned to their homes. At
8 on the morning of April 11, 1951, a picket line was set up outside
the plant, and at 11 on the same morning the Employer received the
Petitioner's demand for recognition. The Employer presented wit-
nesses who testified that some of the employees said that they were'
quitting at the time they walked out of the plant and that they re-
quested certificates of unemployment from the Employer for the pur-
2 At the hearing, the Employer sought to attack the Petitioner 's showing of interest,
contending that the employees upon whose designations the Petitioner relies had quit and
were no longer its employees . The Board has frequently held that, the adequacy of a
petitioner 's showing of interest is a matter for administrative determination and does not
constitute a litigable issue. J P. Stevens & Co, Inc, 93 NLRB 1513; 0. D. Jennings &
Company, 68 NLRB 516 . For the reasons stated in paragraph numbered 5 , below, we
find that the employees referred to by the Employer did not quit their jobs . Moreover,
we have administratively determined that the Petitioner has made an adequate showing
of interest
8 The parties disagree as to the status of Charles Remboy, who the Petitioner contends
should be excluded from the unit upon the ground that he is a guard within the meaning
of the Act. This employee normally works an 8-hour. shift as a production employee. He
has been furnished with a room at the plant in exchange for watching the plant during
his off hours Although the Employer contends , and we agree , that the time spent in going
out for his meals and in sleeping should not be counted in determining the amount of time
spent on guard duties ( cf. Rokey v Day & Zimmerman , 157 F 2d 734 (C A 8, 1946)),
the record does not disclose how much of the balance of his time is spent in guarding the
plant. Accordingly , we shall make no final determination as to his unit placement If
he spends more than 50 percent of his working time in guarding the plant, he will be
excluded from the unit as a guard . Wiley btfg, Inc, 92 NLRB 40, Lake Superior District
Power Company, 87 NLRB 8, footnote 19.
. 974176-52-vol 96-25 ' 6
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pose of receiving unemployment compensation. However, the Em-
ployer refused -to give the employees the requested notices of termi-
nation of employment. Furthermore, the Employer admitted that it
did not consider those employees who returned to the plant soon after
walking out as having quit. We believe that the evidence that the
employees quit is outweighed by the evidence indicating that the walk-
out was a concerted effort of the employees to obtain higher wages or
changed working conditions by a withdrawal of their services. Ac-
cordingly, we find that such employees did not quit on April 9, 1951,
but went on strike.4
The Employer further contends that no election should be directed
because the action of certain employees in going on strike without
giving prior notice was illegal and unauthorized. In support of its
contentions, the Employer also offered to prove that picketing of the
plant resulted in coercion of employees in the exercise of privileges,
granted under Section 7 of the Act. With regard to the first ground
advanced by the Employer in support of its contention, we note that
a strike is not illegal or of a "wildcat" nature merely because it was
called without prior notice to the Employer.5 No other basis for
concluding that the strike action was illegal has been advanced by the
Employer. To the extent that picketing activities may have resulted
in coercion of employees, as the Employer offered to prove, we find
that evidence with regard thereto is inadmissible under our well-estab-
lished practice of excluding evidence of unfair labor practices in repre-
sentation proceedings.6 We also note that no unfair labor practice
charges have been filed against the Petitioner. The Board has fre-
quently declined to withhold an election solely because of the existence
of a current economic strike.7 Accordingly, we reject the Employer's
contention that no election should be directed at this times
We shall direct the holding of an election, permitting all, employees
to participate who were employed during the payroll period immedi-
ately preceding-the date of this direction. All persons hired since
April 9, 1951, the date of the strike, and all strikers shall be presump-
tively eligible to vote, subject to challenge .9 The challenged ballots
shall not be counted unless they affect the results of the election, in
4 Andrews Company, 87 NLRB 379, 393-395; Pacific Powder Company, 84 NLRB 280,
283; Electric Auto-Lite Company, 80 NLRB 1601, 1605-1607
° J. A Bentley Lumber Company, 83 NLRB 803, 811, footnote 13.
° Parts-Belk Company of Elizabethton, 77 NLRB 429.
T Western Auto Supply Company, 91 NLRB No 24; Coco line Products, Inc, 79 NLRB"
1426, 1429; The Pipe Machinery Company, 76 NLRB 247, 249-250
° Roberts Fag Company, 88 NLRB 1150, footnote 1.
° Nothing in the direction herein issued should be construed as indicating that the
Board has prejudged in any respect any of the questions which may be drawn into issue
by a challenge to the eligibility of certain voters, including such questions as whether (1)
a new employee is a permanent replacement, (2) a striking employee has been validly
replaced, or (3) any employee's position no longer exists by reason of its permanent
discontinuance or economic reasons. -
EMHART MANUFACTURING COMPANY 375,
which case the question as to which of these ballots shall be opened
and counted will await further investigation concerning the employ-
ment status of the .affected individuals.
[Text of Direction of Election omitted from publication in this
volume.]
EMHART MANUFACTURING COMPANY and DISTRICT 104, INTERNATIONAL
AssocIATION OF MACHINISTS, AFL, PETITIONER. Case No. 1-BC--
2229. September 25,1951
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before George A. Sweeney, 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 Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Houston, Murdock, and Styles].
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.,
3. The question concerning representation :
During July 1950, th a Employer and the Intervenor executed a
collective bargaining agreement, effective from July 31, 1950, to July
31, 1953, covering all pi oduction and maintenance employees in the
E nployer's SStonington, Connecticut, plant. The Intervenor and the-
E nployer contend that his agreement is a bar to this proceeding.
The Stonington plant was formerly owned and operated by the
Universal Winding Company as a foundry and machine shop. The.
Employer purchased the plant in July 1950, removed all equipment.
except the foundry, and altered the plant to permit plastic molding
operations in addition to the foundry operations. Plastic operations,,
however, did not commence until early in 1951. At the time the agree-
ment was executed, there were approximately 70 foundry and 8 maiin_-
tenance employees in the plant. Since then, the number of employees
has been increased to approximately 90 employees in the foundry and.
1 Local 163 , International Molders and Foundry Workers Union of North America, AFL,,
herein called the Intervenor , was permitted to intervene at the hearing on. the hasia>or
an existing contract with the Employer.
96 NLRB No. 48.