Continental Tire and Rubber Co., Inc.

National Labor Relations Board - Board Decisions

Nov 14, 1955

114 N.L.R.B. 982 (N.L.R.B. 1955)

982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Continental - Tire and Rubber Company, Inc. and United Rubber
Cork , Linoleum & Plastic Workers of America , CIO, Petitioner.
Case No. 10-RC-2913. November 14,1955
SECOND SUPPLEMENTAL DECISION AND ORDER
On December 22, 1954, the Board issued its Decision and Direction
of Election 1 pursuant to which an election was held on January 14,
1955, among the employees in the unit found appropriate. The tally
of ballots cast at this election showed that 6 ballots were cast for, and
2 against, the Petitioner. As 13 ballots were challenged, a number
sufficient to affect the results of the election, the Regional Director in-
vestigated the issues raised by the challenges and on February 15, 1955,
issued his report recommending that challenges to 9 of the ballots be
sustained and that the challenges to the remaining 4 be overruled and
these ballots be opened and counted. To this report the Petitioner
filed timely exceptions. Upon consideration of the report and the
exceptions, the Board adopted the Regional Director's recommenda-
tions, and on April 29, 1955, issued its Supplemental Decision and Di-
rection,2 ordering the opening and counting of the four challenged
ballots. The Regional Director accordingly caused these ballots to
be opened and counted, and on May 5, 1955, issued a revised tally of
ballots showing that of the 12 valid ballots 6 had been cast for, and 6
against, the Petitioner. Thereafter, on May 11, 1955, the Regional
Director issued a certification of results, based upon the revised tally,
showing that the Petitioner had failed to receive a majority of the
valid votes cast in the election.
On August 8, 1955, the Petitioner filed a "Request for Allowance
of Filing of Exceptions to Regional Director's Report on Challenged
Ballots" and, in support thereof, a copy of a printed pamphlet pur-
porting to be a prospectus for the sale of stock issued by the Employer,
which the Petitioner avers calve into its hands subsequent to the is-
suance of the revised tally of ballots in this proceeding. This pam-
phlet lists the names of individuals said to be directors of the Em-
ployer corporation, including therein the names of Ray Pressley and
Milton D. Roth, whose challenged ballots were among those opened
and counted as reported in the revised tally. It further denominates
Pressley as superintendent. The Petitioner requests that on the basis
of this evidence the Board should now find that, as of the time of
the election, these two individuals were representatives of manage-
ment, and should declare their ballots to have been null and void.
The Board has considered the Petitioner's motion, the additional
evidence it seeks to adduce in this proceeding, and the entire record in
1 Not reported in printed volumes of Board Decisions and Orders.
a 112 NLRB 557.
114 NLRB No. 96.
CONTINENTAL TIRE AND RUBBER COMPANY, INC. 983,
the case. Upon consideration, the motion is hereby denied. The
record discloses that at the original hearing,in this case,' the Petition-,
er's representative raised a question concerning the supervisory status
and unit inclusion of several individuals, including Pressley and Roth
whose ballots the Petitioner now seeks again to place in question, and
pursued this issue by cross-examination of the management representa-
tive called as a witness by the Board. Following this evidence, and
further testimony developed by the Employer's representative at the
hearing,4 the Petitioners representative indicated his desire not to
pursue the matter further, and stated his agreement with the Em-
ployer's request that the individuals be included in the unit, in the
following terms :
I don't want to delay the matter to the point of us getting into a
controversy over the unit. I realize that these stockholders are not
apt to vote for our union, but if the company insists that these
three people be allowed to vote, all of them being stockholders,
I'll go along with that understanding, that I have three votes
against me, in order to expedite this matter and get the order of
an election that much quicker.
Again, upon completion of the testimony relating to the composition
of the unit, the Petitioner's representative specifically indicated his
agreement to inclusion of Pressley and Roth in the unit.
However, despite its explicit agreement to the inclusion of these
employees, the Petitioner, as above set forth, challenged their ballots
at the election. As the result of his investigation of these challenges,
the Regional Director reported that the Petitioner had then submitted
some evidence at variance with that adduced at the hearing upon which
the Board had based its decision. He recommended, however, that in
the light of the Petitioner's specific agreement, above described, and
its election to withhold available evidence until after the election, the
Board should, in the interest of an orderly disposition of the issues,
adhere to its decision upon the record of the hearing. Thereafter,.
upon consideration of the entire record, including the Petitioner's
agreement at the hearing and the additional evidence disclosed by the
Regional Director's investigation, the Board concluded that there was
insufficient reason to void its original finding, and affirmed the Re-
gional Director's report.
It is apparent that, as the Petitioner has already once filed timely
exceptions to the Regional Director's report on challenged ballots, its
3Held on November 15 following the filing of the petition on October 15, 1954.
4 Upon the basis of this testimony , and further testimony subsequently elicited by the
hearing officer , the Board found that Pressley, Roth, and one other employee, who together*
owned 18 percent of the Employer' s stock , were not in fact supervisors within the meaning
of the Act Accordingly, as the mere ownership of a minor amount of stock was not in
itself sufficient to require their exclusion , the Board included them in the unit and per-,
witted them to vote in the election.
984 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
present request' is in substance a motion that the Board reconsider its
decision on the challenges as to these two individuals. As more fully
set forth above, the Board, in the course of its regular procedure, has
twice considered and determined the issue as to the status of these
individuals-once upon the record of the original hearing, and again
upon challenges to their ballots.5 Under all the circumstances, we are
not persuaded that the Petitioner's motion presents sufficient reason
for us now to reopen and relitigate these issues.6
[The Board denied the motion.]
MEMBER MUItDOCK, dissenting :
I disagree with my colleagues' conclusion that Petitioner's motion
does not present sufficient reason for the Board to reconsider its earlier
adoption of the Regional Director's report on challenged ballots which
overruled challenges to the ballots of Pressley and Roth and sustained
their right to vote in the election which the Petitioner lost. It seems
clear to me that in the light of the newly discovered evidence presented
in Petitioner's motion the only course open to us is to direct a full hear-
ing on the supervisory status of these individuals. To deny the motion
and do nothing in the face of these new facts is to leave unremedied
what would now appear to be a successful fraud under which the,
rights of the majority of the rank-and-file employees of this Employer
to have a collective-bargaining representative have been thwarted be-
cause of the decisive votes of two directors of the corporation who were
falsely represented to be ordinary employees and thus permitted to
vote.
The supervisory status of Pressley and Roth was not fully litigated
at the original hearing in this case. , Instead, upon the insistence of
the Employer that they were eligible to vote, on the evidence of its
witnesses, the Petitioner agreed to their inclusion in the unit in
order to expedite the proceeding. On the basis of this agreement,
and'the limited evidence at the hearing, the Board included them in,
the unit. Although noting that they were stockholders, the Board's
decision then stated, "As the record shows that they have no effective
5 We have considered the Worth Food Markets and New York Shipping Association
eases cited by our dissenting colleague , but do not regard the principle of those decisions
as requiring a reopening here In neither of those cases was it sought to have the Board
reopen and reconsider the issue of challenged ballots by request filed after the Board
had made its determination of such challenges and a certification of the results of the
election had been issued. The latter is the posture of the case before us here.
6 We note, inter alla, that the "Offering Circular " for the sale of stock upon which the'
Petitioner 's motion is solely based , is dated as of May IT, 1955, some 4 months after the
election in this case. Although Ray Pressley is therein described as plant superintendent,
the record was undisputed as of the time of the hearing that not Ray Pressley but his
brother William Pressley occupied this position The Petitioner has offered no evidence
to show that the circular , assuming that it may correctly describe the status of the
questioned individuals as of the date of its issue , is also necessarily indicative of their
status as of the earlier date of the election.
CONTINENTAL TIRE AND RUBBER COMPANY, INC._ 985
voice in determining corporate policy, we shall include them and per-,
mit them to vote in the election." On the subsequent investigation of
the challenges to their ballots- the Regional Director's report stated,
that, evidence had been submitted by the Petitioner in conflict with the
Employer's testimony at the hearing that- Roth had no authority
except to carry out in a routine fashion President William Pressley's
orders when the latter was absent_ from the ,plant, and_ in conflict with
the testimony, that Ray Pressley was only a diemaker_ and mechanic.
The Regional Director did not undertake to resolve credibility on
conflicting evidence as to the supervisory authority ' of Roth, and
Pressley, but pointed out that Petitioner's evidence presented to him
was not newly discovered, that it had agreed at the hearing to their
inclusion in the unit, and that under the circumstances the -Petitioner
should be bound by the record made at the hearing and the challenges
to their ballots should be overruled. The Board adopted the Regional
Director's report. Now, however, the -Petitioler has submitted newly
discovered evidence in the form of a prospectus for the sale of $200,000
of stock, issued by the Employer itself,? which prospectus lists Pressley
as both a director of the Employer and plant superintendent, and lists
Roth as both a director and inventory control manager. Such evi-
dence, which was not disclosed either at the hearing or by the 'Regional
Director's investigation of the challenges, appears to be prima facie
evidence that Pressley and Roth were supervisors as defined in the
Act .8 At the very least, as directors of the corporation they would
have an "effective voice in determining corporate policy," the absence
of such a voice on the evidence in the original record being one of the
reasons they were permitted to vote in the direction of election.9
Despite an original stipulation of the parties to include certain
individuals in the unit, the Board has held that it is necessary to
reopen a record in a case for further evidence even after a hearing
and an election, where newly discovered evidence indicates that such
individuals are supervisors within the meaning of the, Act, because
the Board is precluded under the Act from finding that such indi-
viduals are employees eligible to vote in an election.10 Moreover,
7 The prospectus is dated May 17, 1955, a date subsequent to all prior proceedings
herein ; and thus there can be no question that it is newly discovered evidence.
8I note too, as the majority does, that the prospectus is dated some 4 months after the
election in this case , and is therefore not necessarily indicative of the status of Pressley
and Roth at the time of the election. However, it seems very unlikely that rank-and-file
employees become director-plant superintendent and director -inventory control manager,
respectively, of the Employer in the short space of only 4 months. In any event, I believe
that the prospectus listings of Pressley and, Roth are sufficiently close in time to the
election to constitute prima facie evidence that their status was the same at the time
of the election , and therefore that for the reasons set forth below the record should be
reopened for a determination of this issue.
9It may be noted that the prospectus further shows that Pressley owns more stock
than his brother, William Pressley , who is president.
10 Worth Food Market Stores, Inc., d/b/a Worth Food Markets, 103 NLRB 259.
986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Board has held that where under similar circumstances there is
prima facie evidence of supervisory authority, the Board has no
alternative but to direct a hearing to resolve this issue, despite a spe-
cific agreement to include such persons in the unit, because supervisors
are expressly excluded from the coverage of the Act, and therefore a
serious issue is raised which the Board cannot obviate because of
technical, procedural, or other considerations.ll It is clear, therefore,
under this Board precedent, that despite the original agreement of
the Petitioner to include Pressley and Roth in the unit, and despite any
other technical or procedural considerations,12 the newly discovered
prima facie evidence submitted by the Petitioner requires the Board
to reopen the record for further evidence on the supervisory status
of Pressley and Roth, and if such evidence reveals that they were in
fact supervisors or directors of the corporation prior to the election
to sustain the challenges to their ballots. Accordingly, I would grant
the petitioner's motion to reopen the record for this purpose.
"New York Shipping Association , 109 NLRB 791.
32 Such as the fact , which is relied on by the majority, that the Board in the course of
its regular procedure has already twice considered and determined the status of Pressley
and Roth on limited and different evidence ; or the fact , also relied on by the majority,
that the Board has made its determination of the challenges and a certification of the
results of the election has been issued on the basis of such limited and different evidence.
Although the new evidence was earlier discovered and presented in the two cited cases,
as noted by the majority , the principle laid down in them is none the less apposite here.
Wildwood Lumber Company and International Woodworkers of
America, CIO, Petitioner . Case No. 20-RC-2818., November 14,
1955
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Robert J. Scolnik,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.'
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.
1 As set forth in the Decision , the Employer operates an integrated enterprise. For
the first 6 months of 1955 the Employer made shipments directly out-of-State from its
Red Bluff operations of products amounting in value to approximately $50,000. Project-
ing this amount for the entire year, it is clear that the direct outflow requirement estab-
lished in the case of Jonesboro Grain Drying Cooperative , 110 NLRB 481, is met
114 NLRB No. 159.