National Torch Tip Co.

National Labor Relations Board - Board Decisions

Feb 24, 1954

107 N.L.R.B. 1271 (N.L.R.B. 1954)

NATIONAL TORCH TIP COMPANY 127 1
learning of the first speech, wired the Employer requesting an
opportunity to reply to this speech under the same conditions,
and to any further speeches made by the Employer before
the election. In the meantime the Employer delivered the 2
other speeches, the final one 21 hours before the election
scheduled at plant No. 3. The telegram sent by the Peti-
tioner was received by the Employer on June 2 at 3 p. m.,
and at 11 p. m., the Employer responded by night letter telegram,
stating that it will allow the employees "time off to attend
any meeting you arrange, providing it does not interfere with
any scheduled election." Whether the Petitioner received the
Employer' s response on June 3 at 9 a. m., which the Em-
ployer, in its exceptions asserts is documented by the record
of the telegraph office, or at 10:30 a. m., as contended by the
Petitioner- -there remained, in my opinion, sufficient time--
several hours--for the Petitioner to have appeared and
delivered its reply speeches on company time. The election
was not scheduled until 2:30 p. m. at one plant, 3 p. m. at
a second, and 5:15 p. m. at a third. But the Petitioner, after
receiving the Employer's acquiescence in its request, took no
further action in this regard. The election was held on June 4,
as scheduled; the Petitioner lost and filed objections. Clearly,
as I appraise the facts, the Employer here fairly fulfilled its
obligations under the law then in existence, and did not deny
the employees the right they had under Bonwit-Teller "to
hear both sides of the story under circumstances which
reasonably approximate equality." T Therefore, I would find that
the Employer's speeches were privileged, and sustain the
result of the election.
7See F. W. Woolworth, 105 NLRB 214. Cf. Crown Cork & Seal Co., 105 NLRB 819, relied
upon by the Regional Director , which I would find inapposite , because in that case , unlike here,
there was no request by the union for an opportunity to reply to the employer 's speech and no
timely response by the employer granting the request.
DAVID S. PEARL AND EPHRAIM WERNER d/b/a NATIONAL
TORCH TIP COMPANY and AMERICAN FEDERATION OF
LABOR, Petitioner. Case No. 6-RC-1359. February 24, 1954
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 Sidney Lawrence,
hearing officer. The hearing officer's rulings made at the
hearing are free from prejudicial error and are hereby af-
firmed.
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the meaning
of the Act.
107 NLRB No. 269.
1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The labor organization involved claims to represent
certain employees of the Employer.
3. A question affecting commerce exists concerning the
representation of employees of the Employer within the
meaning of Section 9 (c) (1) and Section 2 (6) and ( 7) of the
Act.
4. The parties stipulated generally that the appropriate
unit should consist of all of the Employer's production and
maintenance employees . However, there was disagreement as
to the unit placement of certain individuals whose supervisory
status is in question.
Cumminski and Hogan spend 90 to 95 percent of their time
in straight production work, and normally undertake no
training of employees . Kemp and Cubbage , who likewise do
production work, may occasionally train new employees.
However, the record is clear that all four of these individuals
have no authority over, and make no recommendations af-
fecting any of the employees. We find that they are not
supervisors and shall therefore include them in the unit.
Rice spends only 50 percent of his time in production
work , and the remainder in training and directing employees.
The parties agree to exclude Maiden and Riska . Maiden has
effectively recommended the discharge of employees . Riska and
Rice both have made effective recommendations of wage
increases for employees under their direction and have
granted employees time off from work. We therefore find
these three individuals are supervisors and shall exclude them
from the bargaining unit.
Accordingly , we find that all production and maintenance
employees of the Employer at its Pittsburgh , Pennsylvania,
plant , excluding office clerical employees , watchmen , guards,
professional employees , and supervisors ' as defined in the
Act, constitute a unit appropriate for purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
5. The Employer contends that its probationary employees
are ineligible to vote. The Petitioner would permit them
to vote. At the time of the hearing, there were employed a
total of 35 individuals, including supervisors, of whom 13
were probationary employees . Of the new employees hired
by the Employer, 90 to 95 percent are trainees who are
placed on probation for a period of 90 days; the remainder
are initially hired as skilled hands and not placed on probation.
The testimony shows that the turnover of probationary em-
ployees approximates 80 percent , or that about 20 percent
of the probationers ultimately become permanent. The pro-
bationers do the same work as the regular employees,
and are accorded the same general working conditions, in-
cluding hospitalization , holiday pay, and bonuses ( after 30
days ). In a previous case involving the Employer ,' these
'National Torch Tip Company, Case No. 6-RC -696 (not reported in printed volumes of
Board Decisions and Orders).
ALLIANCE SAND COMPANY 1273
probationary employees were found eligible to vote by the
Board . We reaffirm this finding.
Probationary employees , such as those involved here
receive and hold their employment with a contemplation of
permanent tenure, subject only to the satisfactory completion
of an initial trial period. Their general conditions of work
in other respects , and their employment interests , are like
those of regular employees . We do not believe , as a matter
of policy , that the eligibility of probationary employees should
turn on the proportion of such employees who, willingly or
not, fail to continue in the employ of the employer throughout
the trial period . Nor does there otherwise appear any valid
reason, in our opinion , for withholding from probationary
employees the right to vote on the question of collective-
bargaining representation . Consequently , we adopt the rule
for application here and in future cases that probationary
employees are entitled to vote in Board elections.'
[Text of Direction of Election omitted from publication.]
2 To the extent that they are inconsistent herewith , we hereby overrule, e.g., Shelbourne
Shirt Co., 86 NLRB 1308; National Warehouse Corp., 80 NLRB 368; Crossley Corp., 56
NLRB 1722.
ALLIANCE SAND COMPANY and UNITED CEMENT, LIME
AND GYPSUM WORKERS INTERNATIONAL UNION, AFL,
Petitioner . Case No. 4-RC-2150. February 24, 1954
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 Julius Topol,
hearing officer . The hearing officer's rulings made at the hear-
ing are free from prejudicial error and are hereby affirmed.
We deny the Employer' s request for oral argument as the
record and brief fully present the positions of the parties
on the issues involved herein.
Upon the entire record in this case , the Board finds:
1. The Employer is a Pennsylvania corporation engaged
in the operation of a sand quarry at Palmerton, Pennsylvania,
and a retail outlet for sand and building materials at
Northampton , Pennsylvania . During the year 1952 , its total
sales from both operations amounted to $ 536,065.71 , of which
$106,398.54 represents the retail sales made to customers
within the State and not engaged in interstate commerce.
Of the $429 , 667.17 representing sales from the quarry
operation , $45,641 . 76 represents sales to 9 cement companies,
Bethelem Steel Corporation , and New Jersey Zinc Co., all
located within the State but all making annual sales in excess
of $25,000 to customers outside the State of Pennsylvania.
107 NLRB No. 268.