Belcher Towing Co.

National Labor Relations Board - Board Decisions

Jan 19, 1959

122 N.L.R.B. 1019 (N.L.R.B. 1959)

BELCIIER TOWING COMPANY 1019
5. Respondents Locals 1947, 3206, and 1766 have not engaged in any unfair
labor practices ; Respondent Local 1394 and its agent , Respondent Council, have
not engaged in unfair labor practices as a result of the picketing of certain con-
struction projects.
[Recommendations omitted from publication.]
Belcher Towing Company and Seafarers' International Union
of North America, Atlantic & Gulf District, Harbor & Inland
Waterways Division , AFL-CIO, Petitioner. Case No. 12-RC-
304. January 19, 1959
SUPPLEMENTAL DECISION AND CERTIFICATION
OF REPRESENTATIVES
Pursuant to a Decision and Direction of Election' issued in the
above case on August 20, 1958, an election by secret ballot was con-
ducted on September 10 and 12, 1958, under the direction and su-
pervision of the Regional Director for the Twelfth Region, among
the employees in the appropriate unit. At the conclusion of the
election, the parties were furnished a tally of ballots which showed
that, 18 ballots were cast, of which 8 were for, and 6 were against,
the Petitioner, and 4 were challenged. The number of challenges
was sufficient to affect the results of the election.
On October 24, 1958, following an investigation, the Regional
Director issued and duly served upon the parties his report on chal-
lenged ballots, in which he recommended that all four challenges be
sustained. The Employer timely filed exceptions to the Regional
Director's recommendations.
The Board has considered the Regional Director's report, the ex-
ceptions, and the entire record in the case, and finds as follows :
1. Seifert and Lawson: The Regional Directors found that these
voters were college students, that during the summers of 1956, 1957,
and 1958, Seifert had been employed as a replacement for regular
deckhands on vacation, that Lawson was so employed during the
summer of 1958,' and that the Employer has promised to employ
both in the summer of 1959. Relying on Brown-Forman Distillers
Corporation, 118 NLRB 454,2 the Regional Director found them in-
eligible to vote in the election. In its exceptions the Employer states
that Lawson and Seifert have signed affidavits indicating their in-
tention to accept future employment with the Employer and, in the
case of Seifert, that he will probably continue to work for the Em-
ployer after graduation if. there is opportunity for advancement.
However, even accepting these affidavits as true statements of the.
' Unpublished.
2 There, on facts strikingly similar to those in the instant case , the Board found in-
eligible two teachers and a student.
122 NLRB No. 121.
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
present intentions of the affiants, we find, in agreement with the
Regional Director, that they are ineligible under the rule of the
Brown-Forman case, and we sustain the challenges to their ballots.
2. Sharpe : The Regional Director found that Sharpe had been
hired as a mate and deckhand in August 1957 and worked 43 days
until the end of 1957, that between January 1 and August 20, 1958,
Sharpe worked only 24 days, consisting of 8 days in each of the
months of May, July, and August, and that on August 29, 1958,
Sharpe became a regular full-time employee. It thus appears that
Sharpe was a regular full-time employee at the time of the election
herein, but not during the eligibility period. The Regional Direc-
tor found that Sharpe's status during the eligibility period was
controlling, that he was an occasional or casual employee at that
time, and was therefore not eligible.
The Employer contends in its exceptions that Sharpe was not,
during the eligibility period, a casual employee but was rather a
regular part-time employee, such as the Board deems eligible.
We find, in agreement with the Regional Director, that Sharpe's
status during the eligibility period is controlling here 4 and that the
sporadic and irregular pattern of his employment prior to that time
precludes a finding that he was a regular part-time employee on the
eligibility date.5 Accordingly, we find that Sharpe was ineligible
and sustain the challenge to his ballot.'
As we have sustained three of the four challenges and as the
remaining ballot (MacNeal's) cannot affect the result of the election,
we need not, and do not, rule on the challenge to that ballot.
As the Petitioner has received a majority of the valid votes cast,
we shall certify it as the bargaining representative of the employees
in the appropriate unit.
[The Board certified Seafarers' International Union of North
America, Atlantic & Gulf District, Harbor & Inland Waterways
Division, AFL-CIO, as the designated collective-bargaining repre-
sentative of the employees of the Employer in the appropriate unit.]
MEMBER JENKINS took no part in the consideration of the above
Supplemental Decision and Certification of Representatives.
S To the extent that The Atlantic Refining Company, 106 NLRB 1268, and other cases
cited by the Employer are inconsistent with Brown-Forman, supra, we deem them to be
overruled by that case.
"H. C. Schumacher, d/b/a Post Falls Lumber Company, 122 NLRB 157.
G See Decatur Transfer & Storage, Inc., 105 NLRB 633, 637; Connecticut Packing Co.,
Inc., 120 NLRB 150.
6 Member Bean, although otherwise in agreement with the decision herein, would find
.that Sharpe was a regular part-time employee during the 3-month period preceding the
election. He therefore would hold that Sharpe was eligible during the payroll eligibility
period and on the date of the election, at which time he had become a regular full time
employee, and would overrule the challenge to his ballot. Sears Roebuck & Company,
112 NLRB 559, 569; Greenberg Mercantile Corp., 112 NLRB, 710, 711; and Gulf States
Asphalt Company, 106 NLRB 1212. Accordingly, he would determine the eligibility of
MacNeal whose ballot his colleagues say cannot affect the result of -the' election.