M & S Morenci Corp.

National Labor Relations Board - Board Decisions

Sep 10, 1952

100 N.L.R.B. 1114 (N.L.R.B. 1952)

1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
M & S MORENCI CORPORATION and MECHANICS EDUCATIONAL SOCIETY
OF AMERICA, PETITIONER. Case No. 7-RC-1560. September 10,
1952
Supplemental Decision and Direction
Pursuant to a,Decision and Direction of Election' issued herein on
January 17, 1952, an election by secret ballot was conducted on Febru-
ary 12, 1952, under the direction and supervision of the Regional Di-
rector for the Seventh Region, among the employees in the unit
heretofore found appropriate. At the conclusion of the election, the
parties were furnished with a tally of ballots, which shows that of
approximately 21 eligible voters, 20 cast ballots, of which 3 were for
and 4 against the Petitioner, and 13 ballots were challenged. It ap-
pearing that the challenged ballots, if valid, might affect the results
of the election, an investigation was conducted by the Regional Di-
rector to determine the eligibility of the employees whose ballots
were challenged.
The Employer in a letter to the Regional Director dated February 5,
1952, requested that the election scheduled for February 12, 1952, be
postponed indefinitely on the grounds that (1) due to a change in cir-
cumstances since the representation hearing, such election should
await the resumption of normal production at a time when a repre-
sentative group of employees would be employed and further that it
was unable to predict when normal operations would be resumed; and
(2) that no election should be held because of the pendency of an
unfair labor practice proceeding in Case No. 7-CA-702. After the
election, on February 20, 1952, the Employer filed a statement with
the Regional Director in which it stated that it had not waived its
objections of February 5, 1952, and the Regional Director, on March
28, 1952, following an investigation issued and duly served on the
parties his report on challenges and objections to the election, in which
he recommended that, even assuming that the February 5, 1952, letter
could serve as objections to the election, they should not be considered
inasmuch as no copy was served on the Petitioner, and that a hearing
be ordered on the challenged ballots. No exceptions having been filed
by either of the parties within the time provided therefor, the Board
decided to adopt the recommendations of the Regional Director and
ordered that a hearing be held for the purpose of receiving evidence
for the appropriate disposition of the challenges.
Pursuant to said Order of the Board, a hearing was held on May 20,
and 27, 1952, before Emil C. Farkas, duly designated as hearing
officer by the Regional Director for the Seventh Region. The Em-
ployer and the Petitioner appeared and participated in the hearing.
1 Not published in printed volumes of Board decisions
100 NLRB No. 159.
M Ss S MORENCI CORPORATION 1115
At the hearing, the Employer renewed its objections to the election
as stated in its February 5, 1952, letter to the Regional Director re-
ferred to above, although such objections had already been disposed
of by the Board in its Order adopting the Regional Director's report
to which no party filed exceptions. The Board will not consider
objections to an election which raise questions not involving the con-
duct of the election but tantamount to a motion for reconsideration
of the Board's Decision and Direction of Election? In any event, the
objections raised have no merit. There were, in fact, a sufficiently
representative number of employees eligible to vote and the unfair
labor practice charges filed by the Petitioner against the Employer
had been waived before the election by the Petitioner as a basis for
objecting to the conduct of the election.
The Challenged Ballots
The Employer challenged the ballots of 13 employees who appeared
at the polls to vote on the ground that they were not on the Employer's
payroll for the period ending January 11, 1952, designated by the
Board in its Decision and Direction of Election.
With respect to these employees the Board in its Decision and
Direction of Election found as follows :
Within the month preceding the hearing, the Employer, due
to a lack of orders, laid off a substantial number of employees in
the unit sought by the Petitioner. The Employer states that it
considers these employees as temporarily laid off and expects to
recall them as soon as it receives new orders for which it is in
the process of bidding. Accordingly, we find that these em-
ployees, unless they have obtained permanent employment else-
where, or have failed to respond to an offer of reemployment by
the Employer, are entitled to participate in the selection of a
bargaining representative.
The Employer again at the hearing and in its brief contends that it
challenged only those employees who did not appear on the payroll in
accordance with the Board's "Notice of Election," which designated
only the unit and the payroll period to be used. We find no merit to
this contention as the Decision and Direction of Election clearly sets
forth that employees temporarily laid off were also eligible to vote.
During the course of the Regional Director's investigation and at
the hearing, the Employer contended that 12 of the employees were
challenged because : (1) At the time of the election, due to a change
in circumstances occurring subsequent to the representation hearing,
it had become apparent that those employees who were challenged
2 See Willaam R. Whittaker Co. Ltd., 94 NLRB 1151.
1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would not be recalled in the foreseeable future; (2) the challenged
employees at the time of the election had obtained permanent employ-
ment elsewhere ; and (3) the thirteenth employee challenged, Otto
Harbaugll, was the subject of an unfair labor practice proceeding
against the Employer.
As to the Employer's first contention, the record shows that begin-
ning in October 1951, the Employer, due to automotive cutbacks and
production ahead of schedule, decided to operate its plant on a 3-day
week for a short while in an effort to keep most of its employees work-
ing, but that during the latter part of November 1951, it decided to
lay off temporarily 24 of approximately 30 employees in the unit until
defense orders for which it was then in the process of bidding could
be secured. The Employer at the hearing on the challenges alleges
that shortly after the representation hearing and before the election
was held it had become clear to the Employer that those employees
whom it has challenged would not be recalled due to the fact that the
Employer decided to operate in the future with its then present work-
ing force. The Employer alleges that it reached this decision at the
time it received the profit and loss figures for the month of December
1951 which indicated to it, if the cost of the Christmas bonuses were
disregarded, a small monthly profit for the first time in 6 months of
operation .3
However, the record does not show that any of the challenged em-
ployees were informed of the Employer's alleged decision or that any
of them were informed prior to the election that they would not be
recalled. To the contrary, although it is contended that it became
clear to the Employer around the middle of December that these em-
ployees would not be recalled, the record shows that at Christmas-
time, the Employer's foreman on delivering Christmas bonuses and
turkeys to various employees in question told at least one of them that
things were picking up and that he thought that they might be back
at work shortly after the first of the year. Moreover, the Employer's
present contention that its January 11, 1952, payroll was and has been
since that date the representative unit of the plant is directly con-
trary to its statement in its February 5, 1952, letter to the Regional
Director just before the election in which it requested that the election
be postponed until normal production was resumed and a representa-
tive group of employees should be recalled'
Upon the entire record, we find that the status of the challenged
employees did not change substantially between the date of the rep-
a The Employer Introduced balance sheets indicating monthly losses from June to
December . However, if the cost of the Christmas bonuses Is not considered , a profit of
about $265 would appear for the month of December.
* The record further shows that some of the employees listed on the Employer 's January
11, 1952, payroll , although not employed at the time of the election , were allowed to vote
without challenge.
M & S MORENCI CORPORATION 1117
resentation hearing and the date of the election. The mere fact that
employees now may have little expectation of reemployment does not
determine the disposition of the challenged ballots, as the voting
eligibility of laid-off employees depends on their expectancy of em-
ployment as of the date of the election.5 Therefore, in accordance
with our original Decision and Direction of Election, we find that
the employees in question were temporarily laid off as of the date of
the election.
With respect to the Employer's second contention that the chal-
lenged employees, excepting Otto Harbaugh, had accepted permanent
employment elsewhere at the date of the election, the record shows
that Ernestine Little, Howard Little, Clark Jones, and Carl Tittle
were unemployed at the time of the election.6 The remaining em-
ployees' were working elsewhere at the time of the election. How-
ever, with the exception of Robert Day, as there is nothing in the
record to show that such employees, upon accepting employment
elsewhere, indicated that they regarded such employment as perma-
nent, and as the record indicates that it was the desire of these em-
ployees, both at the time of the election and at the hearing on
challenges, to return to work for the Employer, the Employer's
challenges with respect to these employees are without merit. With
respect to Robert Day, it appears that he had, in fact, accepted
permanent employment elsewhere at the date of the election.
Concerning the Employer's contention with respect to Otto Har-
baugh, in accordance with Board practice, Harbaugh's ballot will
not be considered unless it becomes determinative of the election. In
the latter event, the final disposition of this case will await the out-
come of the unfair labor practice proceeding in Case No. 7-CA-702.8
Accordingly, we shall overrule the challenges to the ballots of 11
employees and sustain the challenge to the ballot of Robert Day.
As the ballots, the challenges to which have been overruled, can
affect the results of the election, we shall direct that these ballots be
opened and counted.
Direction
IT IS HEREBY DIRECTED that the Regional Director for the Seventh
Region shall, pursuant to the Rules and Regulations of the Board,
within ten (10) days from the date of this Direction, open and count
the ballots of Theodore Sheldon, Glen Stout, Carl Tittle, Clark Jones,
° Clippard Instrument Laboratory , Inc, 86 NLRB 424; Glenn L . Martin Co ., 76 NLRB
755
However at the time of the election Carl Tittle occasionally aided his wife in the
operation of her nursery practice.
4 Theodore Sheldon, Glen Stout, Jack Sproul] , Roy Taubltz , Hollis Cowgill, Marie
Zimmerman , Forest Houck, and Robert Day.
6 R h R News Co, 92 NLRB 1134.
1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Forest Houck, Ernestine Little, Howard Little, Marie Zimmerman,
Jack Sproull, Roy Taubitz, and Hollis Cowgill, and shall thereafter
prepare and cause to be served upon the parties a supplemental tally
of ballots.
MEMBERS HOUSTON and PETERSON took no part in the consideration
of the above Supplemental Decision and Direction.
ELWOOD C. MARTIN , FRED A. NEMEC, AND ROBERT W. NEMEC, A
CO-PARTNERSHIP D/B/A NEMEC COMBUSTION ENGINEERS and INTER-
NATIONAL UNION, UNITED AUTOMOBILE WORKERS OF AMERICA, AFL.
Case No. 21-CA-10f. September 11, 1959
Decision and Order
On February 12, 1952, Trial Examiner Wallace E. Royster issued
his Intermediate Report in the above-entitled proceeding, finding
that the Respondents had engaged in and were engaging in certain
unfair labor practices in violation of Section 8 (a) (1) and 8 (a) (3)
of the National Labor Relations Act, and recommending that the
Respondents cease and desist therefrom and take certain affirmative
action, as set forth in the copy of the Intermediate Report attached
hereto. The Trial Examiner also found that the Respondents had
not engaged in an independent violation of Section 8 (a) (1) of the
Act and consequently dismissed that portion of the complaint.'
Thereafter, both the Respondents and the General Counsel filed ex-
ceptions to the Intermediate Report and supporting briefs.
The Board 2 has reviewed the rulings of the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions, the briefs, and the entire record in
this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the following modifications :
1. We agree with the Trial Examiner that the Respondents dis-
criminated against Clarence Leeper by discharging him for engaging
in concerted activities protected by Section 7 of the Act. Such a
discharge independently violated Section 8 (a) (1) as well as Section
8 (a) (3) of the Act.' Whether the discharge be regarded as a viola-
No exception was taken to the dismissal of the independent 8 (a) (1) charge.
= Pursuant to the provisions of Section 8 (b). of the Act , the Board has delegated its
powers In connection with this case to a three-member panel [ Chairman Herzog and
Members Styles and Peterson].
See Smith Victory Corporation, 90 NLRB 2089 , enforced 190 F. 2d 56 (C. A. 2).
100 NLRB No. 162.