Cherry River Co.

National Labor Relations Board - Board Decisions

Jul 14, 1943

51 N.L.R.B. 315 (N.L.R.B. 1943)

In the Matter Of CHERRY RIVET COMPANY and INTERNATIONAL UNION7
UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORK-
ERs OF AMERICA (UAW-CIO) LOCAL 509
Case No. R-5009
SUPPLEMENTAL DECISION
AND
DIRECTION
STATEMENT OF THE CASE
July 14, 1943
On March 27, 1943, the National Labor Relations Board issued a
Decision and Direction of Election in this proceeding." Pursuant to
the Direction of Election an election by secret ballot was conducted
on April 13 , 1943, under the direction and supervision of the Regional
Director for the Twenty-first Region (Los Angeles , California). On
April 27, 1943, the Regional Director , acting pursuant to Article III,
Section 10 , of National Labor Relations Board Rules and Regula-
tions-Series 2, as amended, issued an Election Report, copies of
which were duly served upon the parties . As to the balloting and its
results, the Regional Director reported as follows :
Approximate number of eligible ` oters---------------------- 129
Total ballots cast ------------------------------------------- 99
Total ballots challenged------------------------------------- 5
Total void ballots------------------------------------------- 2
Total valid votes counted------------------------------------ 92
Votes cast for International Union, United Automobile, Aircraft
and Agricultural Implement Workers of America (UAW-CIO)
Local 509------------------------------------------------- 46
Votes cast against International Union, United Automobile Air-
craft and Agricultural Implement Workers of America (UAW-
CIO) Local 509------------------------------------------- 46
In view of the fact that the counting of the challenged ballots is
essential to determine the results of the election , the Regional Director
investigated the validity of the five challenged ballots and reported
his findings and recommendations with respect to each of them. Since
148 N. L. R. B. 680.
51 N. L. R. R, No. 65..
315
316 DECISIONS OF NATIONAL LABOR RELA!FIONS BOARD
the evidence with respect to the challenged ballots was in conflict, the
Regional Director recommended that the Board direct a hearing on
said challenges.
On May 13, 1943, Cherry Rivet Company, herein called the Com-
pany, filed Objections to the-Election Report. These relate solely to
the Regional Director's recommendations with respect to the chal-
lenged ballots and not to the conduct of the election. On May 13, 1943,
International Union, United Automobile, Aircraft and Agricultural
Implement Workers of America (UAW-CIO) Local 509, herein called
the Union, filed a reply to the Objections to the Election Report made
by the Company.
Pursuant to an Order of the Board, and pursuant to notice, a hearing
was held on May 31, June 1, 2, and 4, 1943, at Los Angeles, California,
before Daniel J. Harrington, Trial Examiner. The Company and the
Union appeared and participated. All parties were afforded an
opportunity to be heard, to examine and cross-examine witnesses, to
introduce evidence bearing on the issues, and to file briefs with the
Board.
Upon the record so made, the Election Report, the Objections of
the Company, and the record previously made, the Board makes the
following :
FINDINGS OF FACT
11
In its Decision and Direction of Election the Board found appro-
priate, in accordance with the stipulation of the parties, a unit which
excluded among others, supervisory employees with the right to hire
and discharge. It directed that an election be held among the em-
ployees in the appropriate unit who were employed during the
pay-roll period immediately preceding the date of the Direction,
including those temporarily laid off, but excluding those who had
since quit or been discharged for cause.
At the election, the ballot of Franklin O'Brien was challenged by
'the Board's agent, and the ballots of Edward du Domaine, James
Fielder and Roy Cope were challenged by the Union on the ground
that they were supervisory employees and outside the appropriate unit.
The ballot of Robert Ashman was challenged by the Company on the
ground that he was not an employee of the Company at the time the
election was held. ,
Franklin O'Brien-has been a leadman in the gun assembly depart-
ment since January 1943 and is immediately under the jurisdiction of
the shop superintendent. There are about eight employees in the de-
partment, O'Brien being the most experienced. He works the same
hours as the other employees, spending 7 out of the 8 daily working
hours doing the same work as the other employees and the other hour
CHERRY RIVET COMPANY 317
in checking their work. Like the other employees, he is hourly paid
but receives about 10 cents per hour more than they do. - He has no
authority to hire and discharge, or to recommend such action. He
makes no regular reports on the work of the employees under his
supervision, but if asked by his superiors about the work of such
employees he would orally comment on their work, which comment
might or might not have influence. Although the occasion has never
arisen , O'Brien would report insubordination of employees under him
to the shop superintendent or to the assistant plant manager. O'Brien
has nothing to do with the formation or effectuation of Company
policy. He has signed termination and transfer slips and pay raise
forms of employees. This, however, appears to be a formality, its only
purpose being to inform the leadmen of such happenings, and such
slips and forms are previously signed by higher supervisory officials
of the Company. O'Brien is never consulted about transfer, of em-
ployees to his department. We find that O'Brien comes within the
appropriate unit and he is therefore entitled to vote. We shall order
his ballot counted.
James Fielder--has been employed by the Company since January
1941 and has been machine shop leadman since about April 1, 1942.
With four other employees he is engaged in maintenance work on
operating machines in the plant. Fielder's immediate superior, shop
superintendent Tammi, outlines the work to be done and Fielder then
assigns it to the other employees. At the time of his appointment as
leadman; Tammi told Fielder "to look after things" and Fielder took
the lead in his department because he was the oldest and most expe-
rienced employee. He works the same hours as the other employees,
spending 7 of the 8 daily working hours doing the same work as they
do. He is hourly paid and does not receive more than 10 cents per hour
in excess of the other men. He has no authority to hire and discharge
or to recommend such action. Fielder makes no formal reports or
recommendations to any supervisor with respect to the four employees
under him.. As in the case of O'Brien, Fielder's oral comments on
the work of the employees under him might or might not influence his
superiors. He testified that he has never signed termination or trans-
fer slips. He has nothing to do with the formation or effectuation of
company policy. We find that Fielder is within the unit found to be
appropriate and shall order that his ballot be opened and counted.
Roy Cope-is a leadman in the gun inspection department of the
Company. Employees in his department inspect parts purchased by
the Company for use in its manufacturing operation. Cope performs
this type of work and in addition checks the reports of the three or
four other employees in the department. He too is paid on an hourly
basis and does not earn more than 10 cents per hour in excess of the
318 DECISIONS OF NATIONAL- LABOR RELATIONIS BOARD
highest paid employee under him. He has no authority to hire or
discharge or to recommend such action. If any of Cope's superiors
should ask him about the employees under him, it would be his duty
to give an accurate appraisal. He has nothing to do with company
policy. As in the case of other leadmen, he has signed slips and forms
merely as a formality. We find that Cope is within the unit found
appropriate and thus entitled to vote. We shall therefore order that
his ballot be opened and counted.
Edward du Domain-was senior leadman in the rivet inspection
department of the Company until May 7, 1943, when he left to enter
the armed forces. Employees in this department, numbering about
six, check rivets and make out reports which du Domaine checked.
He had no authority to hire or discharge or to recommend such action.
Like the other employees in his department, du Domaine was hourly
paid at a rate which did not exceed 10 cents more thanthe next highest
paid employee. He had nothing to do with company policy and signed
slips and forms as a formality. We find that du Domaine was within
the appropriate unit on the date of the election and therefore shall
,order that his ballot be opened and counted.
Robert Ashman-Ashman was employed by the Company in the
gun inspection department. The testimony as to the facts surrounding
his severance is in conflict. According to Ashman, he was laid off on
March 15, 1943, because of a shortage of materials, but with the
assurance of the assistant plant manager that he would be recalled
when there was work available for him. On the date of his severance,
Ashman requested a certificate of availability with which he secured a.,
job with another firm which he held as of the date of the hearing.
About a week after March 15, he called'the Company to inquire about
returning to work. He spoke to the assistant personnel director and
to his former leadmen who told him there was no work available. The
following week he repeated the call with the same results.
The Company's version of the severance is that Ashman was per-
manently discharged. On March 15, according to the Company, he
was told by the assistant plant' manager that he would have to be
laid off because of a shortage of material, and simultaneously there-
with, was offered a transfer to either the gun assembly or to the rivet
department, in both of which he had previously worked. When Ash-
man refused to accept any transfer, the assistant plant manager felt
that he was not being cooperative with the Company or appreciative
of past favors shown him, and thereupon discharged him, telling him
that he was through with the Company.
We find it unnecessary to resolve the conflict as to what was said to
Ashman at the time of his severance. Ashman's termination slip 2
2 The termination slip is a Company record . There is no evidence to show that it was
ever exhibited to Ashman.
CHERRY RIVET COMPANY 319
states that he was laid off due to a shortage of material but that he was
ineligible for rehire. It is apparent that the termination slip was
made up on March 15, almost a month before the election, and that as
of that day the Company considered Ashman's employment as having
been permanently terminated and did not intend to reemploy him.
Consequently, we find that Ashman was discharged prior to the date
of eligibility and was ineligible to vote in the election. Accordingly,
we shall sustain the challenge to his ballot.
CONCLUSION
For the reasons indicated above we conclude and find that Franklin
O'Brien, James Fielder, Roy Cope, and Edward du Domaine were
eligible to vote in the election and their ballots are hereby declared
valid. We further find that Robert Ashman was ineligible to yote in
the election and hereby declare his ballot invalid. Since the results
of the election may depend upon the counting of the four challenged
ballots declared valid, we shall direct that they be opened and counted.
DIRECTION
By virtue of and pursuant to the power vested in the National Labor
Relations Board by Section 9 (c) of the National Labor Relations
Act, and pursuant to Article III, Section 10, of National Labor Rela-
tions Board Rules and Regulations-Series 2, as amended, if is hereby
DIIEEc TED, that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Cherry Rivet
Company, Los Angeles, California, the Regional Director for the
Twenty-first Region shall, pursuant to the Rules and Regulations of
the Board, set forth above, and subject to Article III, Section 10, of
said Rules and Regulations, within ten (10) days from the date of this
Direction, open and count the ballots of Franklin O'Brien, James
Fielder, Roy Cope, and Edward du Domaine, and shall thereafter
prepare and cause to be served upon the parties in this proceeding
a Supplemental Election Report, embodying therein his findings and
his recommendations as to the results of the balloting.
MR. GERARD D. REILLY took no part in the consideration of the above
Supplemental Decision and Direction.