Barry Controls, Inc.

National Labor Relations Board - Board Decisions

Jul 6, 1955

113 N.L.R.B. 26 (N.L.R.B. 1955)

26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labor practices affecting commerce within the meaning of Section 2 (6) and (7) of
the Act.
5. The Respondent has not discriminated against James Adcock , William E.
Helms, Bobby Joe Klingel, and Katie Mills.
Upon the basis of the above findings of fact, and conclusions of law, and upon
the entire record in the case, I make the following:
RECOMMENDATIONS
As has been found above , the Respondent interfered with, restrained , and coerced
its employees by various type of conduct . In addition , it discouraged membership
in the Union by discriminatorily discharging or refusing to reinstate 10 employees.
Because of the underlying purpose and tendency of this unlawful conduct, I conclude
that there exists danger that the Respondent will in the future commit other unfair
labor practices . Accordingly, it will be recommended that the Respondent cease
and desist from the unfair labor practices found and also from in any other manner
infringing upon the rights guaranteed in Section 7 of the Act.
Affirmatively, it will be recommended that the Respondent offer to the employees
found to have been discriminatorily discharged or denied reinstatement immediate
reinstatement to their former or substantially equivalent positions , without prejudice
to their seniority and other rights and privileges . If there are not sufficient positions
available5in appropriate job classifications , the Respondent shall make room for the
employees ordered reinstated by dismissing to the extent necessary employees oc-
cupying such classifications who were hired after noon , October 1, 1953.49 If after
such dismissals there are still not sufficient positions available, all existing positions in
the appropriate job classifications shall be distributed among the employees ordered
reinstated and other employees who were hired before noon , October 1 , 1953, without
discrimination against any of them because of his or her union affiliation or strike
or concerted activities , following such system of seniority or other nondiscriminatory
practices as would normally have been applied by the Respondent to determine job
retention rights upon a reduction in force. All employees remaining after such dis-
tribution , including those ordered reinstated , for whom no employment is immediately
available, shall be placed upon a preferential list and offered reemployment as work
becomes available in a suitable classification , and before other persons are hired for
such work, in the order required by the Respondent 's normal seniority system or other
nondiscriminatory practices . It will also be recommended that the Respondent make
whole the employees found to have been discriminatorily discharged or denied rein-
statement for any loss of earnings they may have suffered because of the discrimina-
tion against them , by paying to each of them a sum of money equal to the amount
he or she normally would have earned from the date of the discrimination against him
or her 50 to the date of the offer of reinstatement, less his or her net earnings during
the said period. The back pay provided for herein shall be computed on a quarterly
basis in the manner established by the Board; earnings in one particular quarter shall
have no effect on the back-pay liability for any other period.
[Recommended Order omitted from publication.]
49 In the case of Uthoff, after September 4, 1953.
eo Uthoff was discriminatorily discharged at the close of work on September 4, 1953.
Causey, Nelson, and Pope were discriminatorily discharged before 1 p. M. on October 1.
Ivadell Adcock, Kelley, Lilly, Livingston , Loveless , and Montgomery were discriminatorily
denied reinstatement on October 2, before the start of the workday.
Barry Controls, Incorporated and United Steel Workers of
America, CIO, Petitioner. Case No. 1-RC-3970. July 6, 1955
DECISION AND DIRECTION
On April 25, 1955, pursuant to a stipulation for certification upon
consent election, an election by secret ballot was conducted under the
direction and supervision of the Regional Director for the First
Region among employees of the Employer in the stipulated unit.
113 NLRB No. 5.
BARRY CONTROLS, INCORPORATED 27
Upon the completion of the election, the parties were furnished a
tally of ballots. The tally showed that of approximately 141 eligible
voters, 119 cast ballots, of which 54 were for and 47 were against the
Petitioner, and 18 voted challenged ballots. The challenged ballots
were sufficient in number to affect the results of the election.
In accordance with the Board's Rules and Regulations, the Re-
gional Director investigated the challenges and, on May 10, 1955,
issued and duly served upon the parties a report on challenged ballots.
Thereafter, on May 20, 1955, the Employer filed timely exceptions to
the Regional Director's report. The Petitioner filed no exceptions.
Upon the basis of the entire record in this case, the Board makes
the following findings :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act.
4. The following employees of the Employer constitute a unit ap-
propriate for purposes of collective bargaining within the meaning of
Section 9 (b) of the Act :
All production and maintenance employees at the Employer's Water-
town, Massachusetts, plant, including truckdrivers, shipping, receiv-
ing, and stockroom employees, and plant clerical employees, but ex-
cluding office clerical employees, guards, watchmen, laboratory tech-
nicians, professional employees, and supervisors as defined in the Act.
5. In his report on challenged ballots, the Regional Director recom-
mended that the challenges to 17 ballots be overruled and that the
challenge to the ballot of Lillian Wilson be sustained. The Employer
contends in its only exception that the Regional Director erred in
recommending that the challenge to Lillian Wilson's ballot be sus-
tained.
The Regional Director found that Wilson was ineligibile to vote
because she did not commence work at the Employer's plant until after
March 20, 1955, the established eligibility payroll date. The Em-
ployer argues that, because it hired Wilson before that date, she was
an employee eligible to vote.
The Board's Rules require that, in order to vote, an individual must
be employed and working on the established eligibility date, unless
that individual was absent for one of the reasons set out in the Direc-
tion of Election or election agreement.' As Wilson had not begun
1 The Goldenberg Company, 77 NLRB 335, 337; J. Halpern Company, 108 NLRB 1142,
1143.
28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
-work on the eligibility payroll date, we find, in accord with the Re-
gional Director, that she was ineligible to vote. Accordingly, the
challenge to her ballot was properly sustained.
As no exception was taken to the remaining findings and recom-
mendations of the Regional Director affecting 17 ballots, we shall
direct that those ballots be opened and counted. _
[The Board directed that the Regional Director for the First Re-
gion shall, within ten (10) days from the date of this direction, open
and count the ballots of Edward Arnold, Janet Baldasaro, George
Bennett, John Boyle, Paul Clifford, Douglas Collins, Cecil Crowther,
Thomas Gannon, George Kenney, Michael Margareci, Alton Moore,
Robert Morrison, Robert Ranney, George Luscombe, George Connolly,
Jerry Greenblatt, and the ballot identified as number (18), and shall
thereafter serve upon the parties a supplemental tally of ballots.]
Harold Hibbard and Ben R . Stein, Individually and as a Part-
nership , d/b/a Hibbard Dowel Co. and Local 18-B, Furniture
and Bedding Workers Union , United Furniture Workers of
America, C.I.O.
Local 189, Building Service Employees Union , A.F.L. and Local
18-B, Furniture and Bedding Workers Union , United Furni-
ture Workers of America, C.I.O. Cases Nos. 1,3-CI-1703 and
13-CB-308. July 7,1955
DECISION AND ORDER
On February 28, 1955, Trial Examiner Lloyd Buchanan issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the copy of
the Intermediate Report attached hereto. Thereafter, the Respond-
ent Union and the General Counsel filed exceptions to the Interme-
diate Report and supporting briefs.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed with the exception noted in the
margin.' The Board has considered the Intermediate Report, the
1 The Trial Examiner excluded a certain contract between the Respondents, which the
General Counsel offered in evidence , because the parties conceded its execution . However,
as this document is involved in the issues here presented , we find that the Trial Examiner
erred in his ruling. Accordingly, we hereby reverse the Trial Examiner 's ruling and receive
this document in evidence as General Counsel's Exhibit No. 15.
113 NLRB No. 4.