Akron Engraving Co., Inc.,

National Labor Relations Board - Board Decisions

Mar 11, 1968

170 N.L.R.B. 232 (N.L.R.B. 1968)

232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Akron Engraving Company , Inc., Employer-Peti-
tioner and Cleveland Local No. 24 -P, Lithog-
raphers and Photoengravers International Union,
AFL-CIO. Case 8-RM-470
March 11, 1968
DECISION AND DIRECTION OF ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND ZAGORIA
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held before Hearing Officer Joseph A.
Szabo of the National Labor Relations Board.
Thereafter, the Employer and Union filed briefs in
support of their positions.
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
powers in connection with this case to a three-
member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error.' They are hereby af-
firmed.
Upon the entire record in this case, including the
briefs, the Board finds:
1. The Employer is engaged, primarily, in the
manufacture of letterpress printing plates at its
Akron, Ohio, plant. During the fiscal year February
1, 1966, to January 31, 1967, its gross income was
about $250,000, which amount included sales to
Standard Oil Company of Ohio in the amount of al-
most $30,000 and sales to the Goodyear Tire and
Rubber Company in the amount of about $12,000.
During the same period, the Employer shipped
across State lines materials valued at about
$45,000. We are satisfied that the Employer is en-
gaged in commerce within the meaning of the Act
and that it will effectuate the purposes of the Act to
assert jurisdiction herein.'
2. The labor organization involved claims to
represent certain employees of the Employer.
3. A question affecting commerce exists con-
cerning the representation of employees within the
meaning of Sections 9(c)(1) and 2(6) and (7) of
the Act.
4. As agreed to by the Employer and Union, the
following employees constitute an appropriate unit
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act: All production
employees, excluding all office clerical employees
and professional employees, guards and supervisors
as defined in the Act.
5. An economic strike was instituted at the Em-
ployer's Akron, Ohio, plant on November 11,
1965,3 and was still in existence at the time of the
hearing, which was held on various dates between
May and September 1967. The Employer has con-
tinued to operate during the strike with replace-
ments, but has instituted certain changes in its
operations. Thus, prior to the strike, the Employer
employed 10 employees :n the bargaining unit,
each assigned to one of the Employer's seven de-
partments. There were three employees in stripping
and plating, two in camera, and one each in zinc
etching, copper etching, routing-blocking, finishing,
and proofing.Following the strike, the method of
departmentalization was abolished, and the seven
replacements hired by the Employer were assigned,
generally, to "production" duties, working on what-
ever jobs were to be done in the plant, each em-
ployee being capable of performing several jobs.
The Employer states that its volume of photoen-
graving work has been permanently reduced follow-
ing the strike, citing the fact that during the fiscal
year prior to the strike, namely, from February 1,
1965, to January 31, 1966, gross sales of photoen-
graving plates amounted to about $192,000, while
in the first fiscal year following the strike, namely,
from February 1, 1966, to January 31, 1967, sales
of photoengraving plates amounted to about
$142,000. Under these circumstances, the Em-
ployer alleges, generally, that there is no reasonable
likelihood of its business returning to the prestrike
level when and if the strike is ended. The Union
claims , however, that the Employer has subcon-
tracted much of its work, that such subcontracting
is a temporary measure, and that such work has not
been permanently lost to the bargaining unit. The
Union also points to new work allegedly gained
through the Employer's acquisition of McNitt En-
graving Co. in 1965 or 1966. This issue is
discussed, infra.
We turn, first, to a consideration of the eligibility
of the 7 replacements and the 10 economic strikers
to vote in the election hereinafter directed.
' We need not now determine the validity of the Hearing Officer's rulings
on numerous motions and petitions to revoke subpoenas duces tecum, since,
as hereinafter appears, we find it unnecessary, at this time, to resolve the
issue of whether the Employer has suffered a permanent loss of work by
reason of the strike.
z We note, moreover, that the Board has previously exercised jurisdic-
tion over the Employer. See Cleveland Local No. 24-P, Lithographers and
Photoengravers International Union, AFL-CIO ( Akron Engraving Com-
pany, Inc.), 160 NLRB 949
Since the strike commenced on November 11, 1965, and the petition
was not filed until November 28, 1966 , it is clear that the election
hereinafter directed will not occur within 1 year from the inception of the
strike
AKRON ENGRAVING COMPANY, INC. 233
Voter Eligibility-Replacements
The Employer contends , inter alia , that the seven
replacements are permanent replacements and
therefore eligible to vote in the election. On the
other hand, the Union claims that the Employer's
method of operation adopted subsequent to the
strike is temporary, and that all newly hired em-
ployees are merely fill-in, or temporary, replace-
ments for the strikers.
James Gill, Joseph Jones, David Holtzapple,
Burker Johnson, and Paul Keener: These employees
were hired by the Employer subsequent to the
strike, and the uncontroverted record testimony
establishes that- each of these individuals, when
hired, was told by the Employer that his job was
permanent. Under these circumstance and in view
of the Union's failure to rebut the presumption of
permanence,' we find that these replacements are
permanent employees and are eligible to vote in the
election.'
Robert Shriver: Prior to the strike, Shriver was
employed by the Employer in a nonbargaining unit
position; namely, as a salesman . Soon after the in-
ception of the strike, his prime account, the
Goodyear Tire and Rubber Company, to which he
devoted approximately 75 percent of his time,
shifted its work to firms utilizing the offset printing
process. In January 1966, Shriver was told by the
Employer that he was being assigned to production
duties, and he was subsequently assured by the Em-
ployer that his job would not be affected by the end
of the strike. In this connection, the record reflects
that the Employer has continued to retain, in a
sales capacity, the three other salesmen in its em-
ploy. Under the circumstances, we find that Shriver
is a permanent replacement, and is, accordingly,
eligible to vote in the election.
David Ellis: Ellis, a brother-in-law of Eugene
Rohrich, president of the Employer, was employed
as a plant superintendent prior to the strike. Shortly
after the strike began, he started performing
production duties, " since there was nobody else
there to do it." Ellis testified that, in early 1966, he
was told by the Employer that due to the strike, the
Employer needed- production -employees and did
not need a superintendent any more because at that
time there were very few employees to do produc-
tion work. He also testified he was told that, thence-
forth, he would be permanently in production.
Nonetheless, at a hearing before the Summit Coun-
ty Common Pleas Court on March 9, 1966, Ellis
testified his position at that time was "plant su-
perintendent." His testimony at the instant hearing
likewise causes us to believe that, while Ellis is un-
doubtedly performing production tasks, he still pos-
sesses much of the authority he held prior to the
strike.' Ellis does not punch a timeclock. He has
continued to be a salaried employee and in fact has
received a raise in pay. Under these circumstances,
we find that Ellis is still a supervisor. Moreover, in
our view, the above facts show that, by virtue of his
family relationship with the president of the Com-
pany, Ellis enjoys a special status which allies his in-
terests more closely with those of - management.'
Accordingly, we find that Ellis is not eligible to vote
in the election. Ellis testified in effect that, what-
ever his authority, he has been performing produc-
tion work for over a year and a half, and that while
he "assumed" that he was a replacement for a
striker, it was difficult to say because the Employer
now operates differently. The Union contends the
alleged changes in the Employer's operations are
merely temporary. We shall not at this time pass on
the question of whether Ellis is a permanent
replacement, but shall do so, as indicated below,
only if that issue should become determinative of
the election.
Voter Eligibility-Strikers
The Employer contends that the 10 strikers have
been permanently replaced, or, alternatively, that
they abandoned the strike by accepting permanent,
and more remunerative, employment elsewhere. In
any event, the Employer contends, since there has
been a permanent reduction of unit work since the
strike, no striker has any reasonable expectation of
further employment. On the other hand, the Union,
as indicated heretofore , claims that there has been
no elimination of unit work for economic reasons,
that the replacements are temporary, and that all
the strikers are eligible to vote since it has not been
affirmatively shown that they have abandoned their
interest in the struck work.
Jerome Clifford, Ted Varga, Tod Kittinger , William
Sdgedy, Gus Schott, John Tobias, Edward Bancroft,
and Victor Emerson: The record evidence
establishes that each of these strikers has obtained
employment elsewhere in the industry, receiving
'Pacific Tile and Porcelain Company, 137 NLRB 1358.
s The record shows that in the early days of the strike , Paul Keener, while
still an employee of Akron Litho Plate Company , a related corporation, did
some camera work for the Employer herein . Contrary to the Union's con-
tention, we do not believe that the fact that Keener performed some unit
work prior to his employment with the Employer detracts from his status as
a replacement.
6 Ellis testified : "... that isn't the reason I am superintendent . I am the su-
perintendent because I know how to do the work , not a superintendent but
I am the production man because I know how to do the work."
7 Taunton Supply Corp., 137 NLRB 221,222.
234 DECISIONS OF NATIONAL
from $12.50 to $30 more weekly, and is receiving
fringe benefits not heretofore available at the Em-
ployer's plant. Each striker, however, testified to
his intent to return to work for the Employer, if the
Employer were to have a union contract. Em-
ployees Clifford, Varga, Sagedy, Schott, Bancroft,
and Emerson are presently employed in Cleveland,
but continue to maintain their homes in the Greater.
Akron area, or in Canton, Kittinger works in Wads-
worth, Ohio, about 12 miles from Akron, while
Tobias works in Akron. We do not believe that the
employees can be held to have abandoned interest
in their jobs with the Employer merely because
they qualified their intent to return with the provi-
sion that the Employer have a union contract; that
is a condition that formerly existed at the Em-
ployer's plant, and whether or not it returns may
well depend on the outcome of the election here
directed. Moreover, the Board has held that the
mere acceptance of a job with better benefits does
not establish that a striker has forfeited his eligibili-
ty.' Upon the foregoing facts, we conclude that the
presumption of continued eligibility has not been
rebutted and that all eight of these strikers, not-
withstanding their employment with other em-
ployers, have not abandoned their struck jobs and
are, subject to conditions outlined below, eligible to
vote in the election hereinafter directed.
Norman Perkins and Vincent McGuire: The
record shows that these individuals have obtained
better jobs in Cleveland, Ohio, working a lesser
number of hours, with increased fringe benefits.
While Perkins and McGuire have testified to their
intent to return to work at the Employer's plant
once the strike is over, the record discloses,
nevertheless, that Perkins has sold his home in
Akron and is living in the Cleveland area, and that
McGuire is in the process of selling his home in
Akron and is living in the Cleveland area. Under
the circumstances , we conclude that Perkins and
McGuire have abandoned their prestrike jobs and,
'Pacific Tile and Porcelain Co , supra 1362-63
9 Section 9(c)(3) of the Act indicates that, once 12 months from the com-
mencement of an economic strike has passed, only those strikers who have
not been permanently replaced are eligible to vote
10 An election eligibility list, containing the names and addresses of all the
eligible voters , must be filed by the Employer with the Regional Director
for Region 8 within 7 days after the date of this Decision and Direction of
LABOR RELATIONS BOARD
accordingly, are ineligible to vote in the election.
In this connection, we note that there were 10
jobs in the bargaining unit at the time of the strike
and that the Employer is presently operating with at
least 6 replacements. We have held, supra, that
these six replacements are eligible to vote in the
election, and that they are to be considered as per-
manent replacements for the striking employees.
The Union does not contend, nor would the record
support, a finding that more than a total of 10
strikers should be deemed eligible.' Accordingly, it
appears that, of the eight economic strikers who are
deemed not to have abandoned their jobs with the
Employer, a minimum of zero and a maximum of
four are eligible to vote, depending on a determina-
tion as to whether, and to what extent, the Em-
ployer's workload and work force have been per-
manently reduced, and as to whether Ellis' per-
formance of unit work is permanent and constitutes
him a permanent replacement. We shall make no
present determination as to these questions. Rather,
we shall permit each of the eight economic strikers
to vote subject to challenge. The Regional Director
is instructed that in the event the vote of four
economic strikers, the most that will be permitted
to vote in any event, is determinative of the elec-
tion results, he shall return the case to the Board
for disposition of the issues as to whether there has
been a permanent reduction in the Employer's work
load for economic reasons, as to whether Ellis,
though ineligible to vote, is a permanent replace-
ment for a striking employee, and for the further
determination as to which, if any, of the economic
strikers were eligible to cast a valid ballot in the
election. In the event the vote of four economic
strikers is not determinative of the election results,
the Regional Director is instructed to issue the ap-
propriate certification.
[Direction of Election10 Omitted from Publica-
tion. ]
Election The Regional Director shall make the list available to all parties
to the election No extension of time to file this list shall be granted by the
Regional Director except in extraordinary circumstances Failure to
comply with this requirement shall be grounds for setting aside the election
whenever proper objections are filed . Excelsior Underwear Inc , 156 NLRB
1236