L. D. McFarland Co.

National Labor Relations Board - Board Decisions

Aug 15, 1958

121 N.L.R.B. 577 (N.L.R.B. 1958)

L D MCFARLAND COMPANY 577 ;
CoNCLUSLQNs of LAW
I Operating Engineers Local Union No 3 of International Union of Operating
Engineers, AFL-CIO, is a labor organization within the meaning of Section 2 (5)
of the Act
2 All Respondents' parts and service department employees, excluding Clyde
Hensley's sons, office and clerical employees, salesmen, guards, and supervisors as
defined by the Act, constitute, and during all times material herein constituted, a
unit appropriate for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act
3 Operating Engineers Local Union No 3 of International Union of Operating
Engineers, AFL-CIO, was on October 11, 1956, and at all times thereafter has
been, and now is, the exclusive representative of all the employees in the above-
described appropriate unit for the purposes of collective bargaining within the
meaning of Section 9 (a) of the Act
4 By failing and refusing to sign the collective-bargaining agreement, the terms
of which having been agreed upon on October 12, 1956, Respondents have engaged
in and are engaging in unfair labor practices within the meaning of Section 8 (a)
(5) of the Act
5 By discriminatorily laying off Arthur Atkinson, Kenneth Owens, and Thurman
Fortner on October 15, 1956, and thereafter refusing to reinstate them, Respondents
have engaged in and are engaging in unfair labor practices within the meaning of
Section 8 (a) (3) of the Act
6 By changing the employees' working conditions without prior consultation,
negotiation, or discussion with the Union, the duly designated collective-bargaining
representative of the employees here involved, by interrogating their employees and
applicants for employment regarding their union affiliations and sympathies, by
threatening their employees with reprisals because of their union adherence, by
threatening the employees with discharge if they refused to cross the picket line
established by the Union at Respondents' plant, thereby interfering with, restrain-
ing, and coercing their employees in the exercise of the rights guaranteed in Section
7 of the Act, Respondents have engaged in and are engaging in unfair labor practices
within the meaning of Section 8 (a) (1) of the Act
7 The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 8 (a) (1) of the Act
[Recommendations omitted from publication ]
L. D McFarland Company and Local Union 5-246, International
Woodworkers of America , AFL-CIO, Petitioner. Case No 36-
RC-1315. August 15,1958
SUPPLEMENTAL DECISION AND DIRECTION
Pursuant to the Board's Decision and Direction of Election'
dated April 10, 1958, an election was conducted herein on June 11,
1958, under the direction and supervision of the Regional Director
for the Nineteenth Region The election was conducted by secret
ballot among the production and maintenance employees Upon the
conclusion of the balloting, a tally of ballots was issued and served
upon the parties in accordance with the Board's Rules and Regula-
tions The tally shows that of the approximately 9 eligible voters,
i Not pubs sbed
121 NLRB No 68
487926-59-voi 121-38
578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5 voted for the Petitioner, 4 voted against the Petitioner, and 1 ballot
was challenged by the Board agent.
On June 19, 1958, following an investigation, the Regional Di-
rector issued and duly served upon the parties his report on challenged
ballot in which he recommended the challenge to the ballot of Larry
Howlan be sustained. Thereafter, the Employer filed its objections
to recommendation and report on challenged ballot.
The Regional Director's investigation disclosed that Larry Howlan
sustained an industrial injury in May 1956; that he returned to work
for a short period of time in 1957 but was unable to perform the type
of work available for him, and has not since worked for the Em-
ployer. The Regional Director found that Howlan's reemployment
depends not only upon his future recovery but upon the Employer's
need for his service. This conclusion appears to be based on testi-
mony at the hearing relative to the Employer's policy of recalling
laid-off or terminated employees; that an increase in work force was
dependent upon business conditions and weather.
The exceptions filed by the Employer assert that the Regional
Director's recommendation is based on an erroneous conclusion that
Larry Howlan is a laid-off employee. The Employer contends that
Howlan was employed by the Company as a permanent employee
on February 28, 1955, and worked continuously until May 16, 1956,
the day he was injured while working for the Company. On May
6, 1957, he was released for employment, and worked from May 6,
1957, to May 9, 1957, for the Employer, but at that time his former
injury was aggravated and he returned to "industrial injury status,"
a status which continues as of today. The Employer states in its
brief that the Company has work for this man and it is his injury
which prevents him from working.
Both the Employer and the Union appear to regard Howlan as
an employee. As the record contains no evidence that Howlan has
quit or has been discharged, we find that he is an employee on sick
leave, and in accordance with established Board policy, he may vote
in the election 2 In view of our finding, we overrule the challenge to
Howlan's ballot.
[The Board directed that the Regional Director for the Nineteenth
Region shall, within ten (10) days from the date of this Direction,
open and count the ballot of Larry Howlan, and serve upon the parties
a supplemental tally of ballots.]
MEMBER JENKINS took no part in the consideration of the above
Supplemental Decision and Direction.
s Sylvania Electric Products, Inc, 119 NLRB 824.