Elvin Salow Co.

National Labor Relations Board - Board Decisions

Mar 22, 1974

209 N.L.R.B. 833 (N.L.R.B. 1974)

ELVIN SALOW COMPANY
Elvin Salow Company and Local 229, International
Ladies' Garment Workers' Union, AFL-CiO,
Petitioner. Case 1-RC-12604
March 22, 1974
SUPPLEMENTAL DECISION AND
DIRECTION
By CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
Pursuant to a Stipulation for Certification Upon
Consent Election, a secret ballot election was
conducted on April 4, 1973, among the employees in
the stipulated unit. The tally of ballots furnished the
parties showed that of approximately 28 eligible
voters, 12 cast ballots for, and 9 against, the
Petitioner. There were also five challenged ballots,
which were sufficient in number to affect the result
of the election. Thereafter, the Employer and
Petitioner filed timely objections to conduct affecting
the results of the election, both of which were
subsequently withdrawn.
After conducting an investigation, the Acting
Regional Director, on May 25, 1973, issued and
served on the parties his Report on Challenged
Ballots recommending that: (1) the challenges to the
ballots cast by Kenneth Mays, Cecil Caldwell, John
Kelly, and Julia McDonough be sustained; (2) the
challenge to the ballot cast by Barney Rosenberg
remain undetermined; (3) that a revised tally of
ballots be issued; and (4) that Petitioner be certified
as the exclusive collective-bargaining representative
of Employer in the stipulated unit. Thereafter, the
Employer filed timely exceptions to the Acting
Regional Director's report and a supporting brief
contending that the challenges to the ballots cast by
Cecil Caldwell, John Kelly, Julia McDonough, and
Barney Rosenberg should be overruled or, alterna-
tively, that substantial and material issues of fact had
been raised regarding those challenged ballots which
warranted the holding of a hearing.
On July 3, 1973, the Board, after consideration of
the Acting Regional Director's Report on Challenged
Ballots and the Employer's exceptions thereto and
brief, issued a Decision and Order Directing Hearing
on the challenged ballots of Caldwell, Kelly, McDo-
nough, and Rosenberg.'
Pursuant thereto a hearing was held before
Hearing Officer Robert C. Rosemere. On November
19, 1973, he issued his Report and Recommendation
on the challenged ballots in which he recommended
that the challenges to the ballots of Caldwell,
McDonough, and Rosenberg be overruled and that
i In the absence o: exceptions thereto, the Board adopted, pro forma, the
Acting Regional Director 's recommendation that the challenge to the ballot
833
the challenge to the ballot of Kelly be sustained. He
further recommended that the Board direct the
Regional Director to open and count the ballots of
Caldwell, McDonough, and Rosenberg and to issue a
revised tally of ballots and an appropriate certifica-
tion. Thereafter, the Employer and the Petitioner
filed timely exceptions to the Hearing Officer's
report and recommendation.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
We agree with and adopt the Hearing Officer's
findings and recommendation with respect to Cald-
well and Rosenberg, and find no merit in Petitioner's
contention that the former was a casual or temporary
employee, and the latter a supervisor within the
meaning of the Act. Accordingly, we find that both
these individuals were eligible to vote, and overrule
the challenges to their ballots.
We find merit in Petitioner's contention that Julia
McDonough is an office clerical employee and as
such excluded from the production and maintenance
unit. The Hearing Officer found her to be a dual
function employee who performed a substantial
amount of plant clerical work in addition to her
office duties in view of her daily involvement typing
bills of lading and shipping labels, and stamping and
sorting production labels for the Employer's pet
mattresses. The record shows that McDonough has
one desk in the office where Myer Salow, Simmon
Salow, and Richard Salow manage various aspects of
the Employer's business. At this office desk, she
stamps or adds sizes to some 4,000 labels per day.
The labels, themselves, are kept in McDonough's
second desk in the plant's production area, from
which she obtains the labels to fill written orders she
has received from Cy Salow at her office desk.
McDonough also types at her office desk shipping
labels, bills of lading, pay envelopes for the coming
week, and labels to ship out sales catalogues. She also
types an average of one business letter per day and
answers the telephone along with other office
personnel. McDonough testified that she spends
about 80 percent of her time at her office desk, and
about 18 percent of her time at her factory desk
where she obtains the requisite labels or sorts them
according to size for Leadman Rosenberg, who in
turn refers them to stitchers to fasten to the pet
mattresses. McDonough also types timecards and
does some invoicing at her office desk. Unlike
production employees, McDonough is salaried and
receives Blue Cross/Blue Shield insurance. Her hours
of work and lunch hour also differ from those of
cast by Kenneth Mays be sustained.
209 NLRB No. 129
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
production employees. On the basis of the foregoing,
we find that Julia McDonough's duties are principal-
ly those of an office clerical employee, and that her
production duties are not sufficiently extensive to
qualify her as a dual function employee performing a
substantial amount of plant clerical work. Accord-
ingly, we find McDonough to be an office clerical
employee, and as such excluded from the production
and maintenance unit. We therefore sustain the
challenge to her ballot.
Petitioner challenged John Kelly's ballot on the
ground that he was a temporary employee. The
Hearing Officer recommended sustaining the chal-
lenge on a somewhat different ground: that he had
abandoned his employment with the Employer prior
to the election. The Employer has excepted to this
recommendation. We find merit in the exception.
The Hearing Officer found that Kelly was hired on
March 5, 1973, during the strike. as a "permanent
full-time" employee. He worked during the morning
of March 5, but did not return after the lunch period
because he was chased and threatened by strikers.
He telephoned the plant to explain his failure to
return and indicated that he would come back when
the situation settled down. Richard Salow, who took
the call, said he would keep Kelly "abreast."
Accordingly, on March 14, the Employer wrote Kelly
that the strike had ended and invited him back.
Within a day or two, Kelly telephoned the plant in
response to the notification and asked whether there
would be any problems if he returned. Salow said
there would be. It was agreed that "as soon as the
situation stabilized" Kelly would come back. On
March 28, the Employer again wrote Kelly inviting
his return. Kelly telephoned the following week and
said he had attempted to enter the plant but
"overheard some men talking," and as he was
pointed out as "the one who crossed the picket line,"
he walked past the entrance. Kelly did return to work
on April 9 (the election was held on April 4) and
worked thereafter on April 11, 12, 13, 14, 16, 17, 30,
31 (sic), May 3, 4, 7, 10, and 11.
The Hearing Officer stated that, if Kelly had
returned to work within a reasonable period of time
after receiving the Employer's first note apprising
him of the strike termination , or even after the
second note, he would have considered him on leave
because of the strike, as he had indicated his
intention to return. But in view of the long delay in
returning, he concluded that Kelly had abandoned
his employment before the election on April 4. We
do not agree with this abandonment theory. The
uncontradicted evidence is that Kelly was hired as a
permanent employee, and that he remained away
from work because of fear of retaliatory action by
strikers. The conduct of both Kelly and the Employ-
er during the strike interval and its aftermath
indicates that they expected Kelly to return to work
after things quieted down. Although Kelly delayed
his return after the termination of the strike, there is
no evidence to indicate that this was the result of an
intent to abandon his employment with the Employ-
er. The very fact that he did return to work on April
9 and continued working for the Employer for a
month thereafter negatives any abandonment intent.
Accordingly, we find, as in the case of Caldwell, that
Kelly was eligible to vote and we overrule the
challenge to his ballot.
DIRECTION
It is hereby directed that the Regional Director for
Region 1 shall, pursuant to the National Labor
Relations Board Rules and Regulations , Series 8, as
amended, within 10 days of the date of this
Direction, open and count the ballots of Cecil
Caldwell, John Kelly, and Barney Rosenberg, and
thereafter prepare and cause to be served on the
parties a revised tally of ballots, including therein the
count of said ballots. Thereupon, the Regional
Director is directed to issue the appropriate certifica-
tion.