Vulcan Tin Can Co.

National Labor Relations Board - Board Decisions

Nov 29, 1951

97 N.L.R.B. 180 (N.L.R.B. 1951)

180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be recommended that the Respondent cease and desist from the commission of
any other unfair labor practices. Nevertheless, in order to effectuate the policies
of the Act, the undersigned will recommend that the Respondent cease and de-
sist from the unfair labor practices found and from in any manner interfering
with the efforts of the Union to bargain collectively with it.
Upon the basis of the above findings of fact and upon the entire record in the
case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. Amalgamated Local No. 405, International Union, United Automobile, Air-
craft & Agricultural Implement Workers of America, C. I. 0., is a labor organi-
zation within the meaning of Section 2 (5) of the Act.
2. All full-time, hourly rated production and maintenance employees at the
Respondent's West Hartford Plant, including timekeepers and clerks on factory
department payrolls, exclusive of time-study employees, apprentices, employees
in production control departments, technical and engineering employees, clerical
employees on office department payrolls, medical department employees, pro-
fessional employees, guards, executives, foremen, assistant foremen, supervisors,
work leaders, and all other supervisory employees as defined in the Act, con-
stitute a unit appropriate for the purposes of collective bargaining, within the
meaning of Section 9 (b) of the Act.
3. The Union was on December 2, 1948, and at all times thereafter has been,
the exclusive representative of all of the employees in the aforesaid unit for
the purposes of collective bargaining within the meaning of Section 9 (a) of
the Act.
4. By failing and refusing at all times since December 21, 1950, to bargain
with the Union with respect to its Christmas bonus and by unilaterally acting
on the Christmas bonus the Respondent has failed and refused to bargain col-
lectively with the Union as the exclusive representative of the employees in the
appropriate unit and has thereby engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (5) of the Act.
5. By said acts the Respondent has interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Section 7 of the Act
and has engaged in and is engaging in unfair labor practices within the meaning
of Section 8 (a) (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
VULCAN TIN CAN COMPANY AND VULCAN STAMPING AND MANUFAC-
TURING CO., INC. and UNITED ELECTRICAL, RADIO AND MACHINE
WORKERS OF AMERICA, UE, PETITIONER . Case No. 13-RC-1749.
November 29, 1951
Supplemental Decision and Order
Pursuant to a Decision and Direction of Election dated April 24,
1951,1 an election by secret ballot was held on May 27, 1951, under the
i Vulcan Tin Can Company, 94 NLRB 10.
97 NLRB No. 32.
VULCAN TIN CAN COMPANY 181
direction and supervision of the Regional Director for the Thirteenth
Region, among the employees of the Employer in the unit found ap-
propriate. At the close of the election the parties were furnished a
tally of ballots which showed that of the 167 ballots cast, 55 were for
and 68 against the Petitioner, 41 were challenged, and 3 were void.
Thereafter, the Petitioner and the Employer filed timely objec-
tions to conduct affecting the results of the election. Thereupon, in
accordance with the Board's Rules and Regulations, the Regional Di-
rector conducted an investigation: On September 25, 1951, he issued
and duly served upon the parties his report on challenges and ob-
jections, in which he recommended that 33 of the challenges be sus-
tained, and that all the objections be overruled. He made no recom-
mendation respecting the remaining challenges. Thereafter, the
Petitioner filed timely exceptions to the Regional Director's report;
no exceptions were received from the Employer.
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 Houston and Murdock].
The Challenges
The largest group of challenged ballots was cast by 33 employees
who were laid off a few weeks before the election. The Employer,
which challenged them, asserts that they were permanently dis-
charged, while the Petitioner contends that they were only temporarily
laid off.
The Regional Director's investigation shows that in 1950, due to a
shortage of steel plate, the Employer embarked upon a tin plate pail
production program, producing a substitute for its regular steel prod-
uct. In this substitute program it employed a peak force of 103 em-
ployees from October 1950 to April 1951. In March 1951 the
Employer was given sheet steel quotas, which were subsequently ex-
tended through September 1951. This restoration of its regular
raw material enabled it to abandon the substitute program; for this
reason the tin plate pail department of the substitute program was
closed on May 11, 1951. The Employer has produced no tin plate
pails since that day, when it notified 33 of the persons then in the
department that their employment was terminated.2 These 33 per-
sons, all of whom were hired expressly for this substitute program,
were challenged at the balloting. It appears that in a number of
instances, the foreman, while notifying them of their termination,
indicated that the layoffs were temporary, and that they would be
recalled if business conditions warranted.
2 When the department was discontinued the Employer had 17,000 tin pails in storage and
unsold
986209-52-vol 97-13
182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We do not think that the Petitioner's exceptions to the voting
eligibility of the 33 laid-off employees raise a substantial issue of fact.
There is no dispute that the Employer curtailed its operations and
terminated its tin plate pail production. The discharge of these em-
ployees is consistent with their original hiring into a substitute, and
therefore temporary, program. In view of-these facts, the affidavits
of certain laid-off employees that they were told by their foreman
that the layoffs were temporary, or that they would be rehired if
conditions justified rehiring, do not persuade us that the discharges
were temporary rather than permanent. An indication to the 33
that they would have preference in rehiring does not affect the char-
acter of the determination. The question is whether these employees,
at the time of the election, had any reasonable expectancy of further
employment with the Employer in the near future. We agree with
the Regional Director that they did not .3 We find, therefore; that
at the time of the election the already laid-off employees had no
reasonable expectancy of reemployment. Accordingly, we sustain the
challenges to these ballots 4
As we have found the 33 discharged persons ineligible to vote,
the remaining challenges are insufficient to affect the result of the
election. We shall therefore not pass upon the remaining challenges.
The Objections
The Petitioner's objections contain substantially the following
allegations of improper conduct by' the Employer : (1) Improper
challenges of certain ballots; (2) refusal to furnish the Board's agent
with a list of all eligible voters; (3) transportation of an employee
to the polls for the purpose of registering a ballot against the Peti-
tioner; (4) layoff of certain employees in order to influence the results
of the election; (5) a "course" of illegal conduct for the purpose of
influencing the results of the election.
Upon the basis of his investigation, the Regional Director reported
that none of these objections raised substantial issues and he recom-
mended that each objection be overruled. The Petitioner filed all-
inclusive exceptions to the report, merely asserting generally that it
is "contrary to the facts and law in the situation." It also charges
now that the Employer committed certain unfair labor practices after
the election, as part of a continuing pattern of improper conduct.
Objection 1. This objection is based upon the Employer's chal-
lenge of the 33 laid-off employees, discussed above, and certain other
8 The Petitioner alleged in its exceptions that some new employees , hifed after the
election , are doing work formerly done by some of the 33. So far as this claim relates to
Petitioner ' s challenges , it merely strengthens the Regional Director 's finding that the 33
received permanent discharges, and that the Employer did not intend to rehire them
4 United States Rubber Company ( Milan Plant, Footwear Division ), 86 NLRB 338
VULCAN TIN CAN COMPANY 183
employees who were on sick leave on the day of the election but whose
challenged ballots need not be considered. The Regional Director
reported that there was no evidence that the Employer's use of chal-
lenges interfered with the free choice of the voters in any way. As the
Board's established procedures permit the raising of eligibility ques-
tions by challenges at the polls, we hereby overrule this objection:'
Objection 2. The Petitioner asserts that the Employer failed to
provide a list of all eligible voters, and that therefore not all eligible
voters had an opportunity to cast ballots. The Employer furnished
a list of employees whom it deemed eligible to vote but refused to
supply a list of the employees terminated on May 11, 1951. The Peti-
tioner supplied 40 names of employees terminated at that time, and
all received mail ballots. The Regional Director's investigation re-
vealed no evidence that any eligible voters were denied voting rights
as a result of the Employer's refusal to supply the names of any laid-
off workers, nor does the Petitioner in its exceptions assert that any
employees have been so prejudiced. While we do not condone the
Employer's refusal to cooperate with the Board's field agent, we agree
with the Regional Director's conclusion that the refusal in this instance
did not affect the result of the election. Accordingly, we hereby
overrule this objection.
Objection 3. The Petitioner claims that the Employer transported
an employee to the polls in order to secure his vote against the Union.
The Regional Director found no evidence of any sort to support this
allegation, and the Petitioner neither reasserted the allegation in its
exceptions, nor specifically took issue with the Regional Director's
report on the facts. Accordingly, we hereby overrule this objection.
Objection 4. The Petitioner asserts that the layoffs in the tin plate
pail department were made for the purpose of weakening the voting
strength of the Petitioner, which was particularly strong in this de-
partment. However, as stated above, there is no dispute regarding
the termination of the Employer's substitute tin pail production.
There is no evidence to support the Petitioner's claim that the reduc-
tion in question was made otherwise than in the normal course of busi-
ness. Merely because some employees were told that they might later
be recalled, we will not infer, as the Petitioner apparently urges, that
the layoff had a discriminatory motive. As there is no substantial
affirmative evidence supporting this objection, it is hereby overruled.
Objection 5. The Petitioner charged generally that the Employer
improperly influenced the result of the election by a continuing "course
of conduct" which began before the election. Under this objection,
the Regional Director's investigation revealed only that on a single
occasion, 3 months before the election, a foreman asked a steward
5 Section 102.61, National Labor Relations Board Rules and Regulations.
184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Petitioner whether he had seen any persons distributing union
leaflets in the plant. The Regional Director recommended that this
general objection be overruled, on the ground that the sole instance of
improper conduct was too remote in time to have had any appreciable
effect on the result of the election.
In its exceptions under this objection, the Petitioner repeats its
charge that the May 11 layoffs were illegal, and also apparently claims
that the hiring of new employees after the election was part of a pat-
tern of illegal conduct. We have already decided that there is no evi-
dence indicating illegality in the May 11 layoffs. To the extent that
this exception now charges illegal conduct after the election, we reject
it because later conduct could not have affected the election. We also
note that, although the Petitioner filed five charges against the Em-
ployer after the election, nowhere did it charge that the May 11 layoffs,
or the later hirings, were illegal.' -
The sole incident shown under this objection, therefore, is the
improper interrogation of an employee by a supervisor long before
the election. We agree with the Regional Director's recommendation
that this single incident does not raise a substantial issue respecting
the results of the election. Accordingly, we hereby overrule the final
objection.
As we have overruled the Petitioner's objections, and as the tally
of ballots shows that no collective bargaining representative has been
chosen, we shall dismiss the petition.
As set forth above, the Regional Director recommended that the
Employer's objections also be overruled. Dismissal of the petition
because of the Petitioner's failure to win a majority renders the
Employer's objections moot; we shall therefore not pass upon them.
Order
IT IS HEREBY ORDERED that the petition herein be, and it hereby is,
dismissed.
O Case No. 13-CA-857, charges filed June 25, June 29 , August 23 , September 17, and
September 26, 1951.
WEST TEXAS UTILITIES COMPANY ' and INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS, LOCAL UNIONS Nos. 898, 920, AND 1044,
AFL, PETITIONER . Case No. 16-RC-81?. November 29, 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 Willis C. Darby, Jr., hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
' The name of the Employer appears as amended at the hearing.
97 NLRB No. 28.