Tomadur, Inc.

National Labor Relations Board - Board Decisions

Apr 27, 1972

196 N.L.R.B. 706 (N.L.R.B. 1972)

706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thomas Engine Corporation and Upshur Engine
Co., Inc ., d/b/a Tomadur, Inc. and International
Union, United Automobile, Aerospace and Agri-
cultural Implement Workers of America (UAW)
Thomas Engine Corporation and International Un-
ion, United Automobile , Aerospace and Agri-
cultural Implement Workers of America, UAW,
Petitioner. Cases 21-CA-7950, 21-CA-8013, 21-
CA-8025, and 21-RC-10771
April 27, 1972
SUPPLEMENTAL DECISION AND
CERTIFICATION OF RESULTS OF
ELECTION
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND JENKINS
On March 30, 1972, the United States Court of
Appeals for the District of Columbia 1 directed that
the "case be remanded to the [United States Dis-
trict Court for the District of Columbia] for further
remand within seven (7) days to the ... Board for
it to resolve the challenged ballots and certify the
result of the representation election within thirty
(30) days from the date of issuance of the order of
the District Court." On April 3, 1972, the District
Court entered such a remand order.2
Pursuant to a Stipulation for Certification Upon
Consent Election, an election by secret ballot was
conducted on March 29, 1968, under the direction
and supervision of the Regional Director for Re-
gion 21, among the employees in the unit agreed on
by the parties.
Upon the conclusion of the election, the parties
were furnished with a tally of ballots which showed
that there were about 167 eligible voters and that
158 ballots were cast, of which 74 were for the
Petitioner, 76 were against the Petitioner, 7 were
callenged, and 1 was void. Thereafter, the Board
directed that the challenges be determined in the
instant consolidated proceeding by the Trial Exam-
iner who recommended that four challenges be sus-
tained and that three challenges be opened in order
to ascertain the outcome of the election?
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board finds:
U.A. W. v. N L R B., 462 F .2d 298 (C.A.D.C.).
2 United States District Court for the District Court of Columbia, Civil
Action No. 1179-70.
3 179 NLRB 1029.
1. The Employer is engaged in commerce within
the meaning of the Act and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The Petitioner is a labor organization claiming
to represent certain employees of the Employer..
3. A question affecting commerce exists concern-
ing the representation of certain employees of the
Employer within the meaning of Sections 9(c)(1)
and 2(6) and (7) of the Act.
4. The parties agreed, and we find, that the fol-
lowing employees constitute a unit appropriate for
collective bargaining within the meaning of the
Act:
All production and maintenance employees,
including truckdrivers, shipping and receiving
employees, and warehouse employees, exclud-
ing all office clerical employees, order clerks,
dispatchers, professional employees, guards,
watchmen, and supervisors as defined in the
Act.
5. The Board has considered the record and the
Trial Examiner's Decision in light of the exceptions
and briefs and has decided to make the following
findings with respect to the challenged ballots:
We agree with the Trial Examiner's resolution of
six of the challenges:
As Richard C. Dickey and James R. Wilkins
were discriminatorily discharged, they were still
employees at the time of the election and were
therefore eligible to vote. Lester Byers and Philip J.
Stegmair were not eligible to vote because they
were supervisors within the meaning of the Act.
Adam C. Bratton and Donald Coleman, who were
laid off on January 25, 1968, were not eligible to
vote because they did not as of the date of the
election have a reasonable expectancy of recall.
However, for reasons given below, we disagree
with the Trial Examiner's finding that Albert J.
Whitlock had a reasonable expectancy of recall as
of the time of the election.
Whitlock, who was credited by the Trial Examin-
er, testified as follows on direct examination: On
February 16, 1968, Whitlock's supervisor, Bob Tre-
vathon, told Whitlock that Thomas Engine Corpo-
ration was getting slow and he had to let Whitlock
and five other employees go. Foreman Robert Hol-
lenbeck gave Whitlock the addresses of some places
he thought were hiring. Whitlock asked Trevathon
"if there was any chance of [Whitlock's] coming
back," and Trevathon replied that he "could not see
any reason why not." When Whitlock questioned
Plant Superintendent Walker "if there was any pos-
sibility of coming back," the latter stated that it was
mostly up to Trevathon and Hollenbeck because
they worked most closely with Whitlock. Walker
196 NLRB NO. 128
TOMADUR, INC.
also told Whitlock that he "didn't see any reason"
why Whitlock would not come back.
In addition, the following exchange between
Respondent's counsel and Whitlock took place on
cross-examination with respect to the layoff:
Q. On February 16, 1968 Mr. Trevathon told
you that you would have to be discharged or
laid off? What exactly did he say to you?
A. He said he was getting pretty slow. There
was a reduction in force and he would have to
lay me off.
Q. Did he tell you to find other work?
A. He said he didn't know how long it was
going to be. He said to try to look for a job.
Q. Did he give any time estimate at all?
A. No, he didn't.
In holding that Whitlock had a reasonable ex-
pectancy of recall as of the time of the election, the
Trial Examiner failed to give proper weight to
Whitlock's significant testimony that Trevathon
not only told Whitlock to find other work but also
gave no estimate as to the duration of the layoff or
any specific indication as to when, if at all, Whit-
lock would be recalled.4 In the absence of such
evidence, the vague statements of Trevathon and
Walker as to the "chance" or "possibility" of
Whitlock's coming back to work do not provide an
4 Similarly , employee Bratton , who, as noted above , was correctly found
by the Trial Examiner to have no reasonable expectancy of recall , was told
by his supervisor that the latter had no way of knowing how long the layoff
would be and that Bratton should not sit at home waiting to be recalled.
707
adequate basis for concluding that Whitlock had a
reasonable expectancy of reemployment. Alth-
rough Whitlock was recalled on August 16, 1968,
the test for determining expectancy of recall is the
situation as it existed at the time of the election
rather than subsequent developments.'
In view of the foregoing, we find, contrary to the
Trial Examiner, that Whitlock had no reasonable
expectancy of reemployment as of the date of the
election and was ineligible to vote. Accordingly, we
conclude that only the ballots of Dickey and Wil-
kins were those of employees who were eligible to
vote. As their ballots were insufficient in number to
affect the results of the election, it is unnecessary to
have said ballots opened and counted. We shall
therefore certify the results of the election because
the Petitioner has failed to receive a majority of the
valid votes case.
CERTIFICATION OF RESULTS OF
ELECTION
It is hereby certified that a majority of the valid
ballots have not been cast for International Union,
United Automobile, Aerospace and Agricultural
Implement Workers of America, UAW, and that
said labor organization is not the exclusive repre-
sentative of all the employees, in the unit herein
involved, within the meaning of Section 9(a) of the
National Labor Relations Act, as amended.
5 See Zatko Metal Products Co., 173 NLRB 27, 33.