English Lumber Co.

National Labor Relations Board - Board Decisions

Sep 25, 1953

106 N.L.R.B. 1152 (N.L.R.B. 1953)

1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ENGLISH LUMBER COMPANY and UPHOLSTERERS 'INTER-
NATIONAL UNION OF NORTH AMERICA, AFL , Petitioner.
Case No . 11-RC-381 ( Formerly Case No. 34 - RC-381).
September 25, 1953
DECISION AND DIRECTION
Pursuant to a stipulation for certification upon consent
election executed March 14, 1952 , an election was conducted
on March 21, 1952, under the direction and supervision of
the Regional Director for the Fifth Region , among certain em-
ployees of the Employer . At the close of the election , a tally of
ballots was furnished each of the parties in accordance with
the Board ' s Rules and Regulations . The tally shows that 42
valid ballots were cast for the Petitioner , 41 valid ballots were
cast against the Petitioner , 2 ballots were challenged, and no
ballots were void . No objections to the election were filed within
the time provided therefor.
As the challenged ballots were sufficient in number to affect
the results of the election, the Regional Director , acting pur-
suant to the Board ' s Rules and Regulations , investigated the
issues raised by the challenges , and on June 20, 1952 , issued
his report on challenges , recommending that the challenge to
1 ballot be sustained , and that a hearing be held to resolve
the issues raised by the other challenge . Thereafter , the Em-
ployer filed exceptions to part of the Regional Director's
report . On July 31, 1952, the Board issued an order sustaining
the challenge to the ballot of Marion Wilson , and directing that
a hearing be held on the supervisory status of G. W . Cliatt,
as recommended by the Regional Director ; the Board further
directed that the hearing officer designated to conduct the
hearing prepare and cause to be served upon the parties a re-
port containing resolutions of credibility of witnesses , findings
of fact, and recommendations to the Board as to the disposition
of said challenged ballot.
Pursuant to the order of the Board , a hearing was held on
September 12, 13, and 15 , 1952, before David C. Sachs, hearing
officer . The Board has reviewed the rulings made by the hear-
ing officer , and finds that no prejudicial error was committed.
The rulings are hereby affirmed.
On July 8, 1953 , the hearing officer issued his report , finding
that Cliatt was not a supervisor as defined in the Act , and re-
commending that the challenge to Cliatt ' s ballot be overruled
and that the ballot be opened and counted . Thereafter, the
Petitioner filed exceptions to the hearing officer's report and
a supporting brief.
The Board has considered the hearing officer ' s report, the
exceptions and brief , and the entire record in the case, and
hereby adopts the findings , conclusions , and recommendations
of the hearing officer , with the following additions.
1. The Employer is engaged in commerce within the mean-
ing of Section 2 ( 6) of the Act.
106 NLRB No. 192.
ENGLISH LUMBER COMPANY 1153
2. A question affecting commerce exists concerning the re-
presentation of certain employees of the Employer, within the
meaning of Section 9 (c) (1) and Section 2 (6) and ( 7) of the Act.
3. The following employees of the Employer consititute a
unit appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act : All production and
maintenance employees at the Employer ' s Asheville, North
Carolina , plant , excluding all salesmen , executives, office and
clerical employees , guards, watchmen , and supervisors as
defined in the Act.
4. The hearing officer found, and we agree , that Cliatt was
not a supervisor at the time of the election conducted herein,
on the following facts : ( 1) He was paid an hourly wage, rather
than a weekly salary like all the Employer ' s undisputed
supervisors ; ( 2) 14 other nonsupervisory employees earned
as much or more that he did, including one who worked in the
shipping department , where Cliatt worked, on a regular part-
time basis ; ( 3) Cliatt voted without challenge in 2 previous
elections conducted among the employees in the same unit on
petition of the Petitioner herein ; ( 4) there was only one other
regular full -time employee , and 2 regular part-time employees
in the shipping department , whom Cliatt could supervise; (5)
Cliatt neither had nor exercised any authority to hire , discharge,
or disci line other employees , or effectively to recommend such
action ; (6) Cliatt's "tally" work involved responsibility as far
as the Employer was concerned , butdidnot involve the exercise
of any supervisory authority over other employees ; and (7)
the instructions or directions given by Cliatt to employees
temporarily assigned to the shipping department were of a
routine nature , or constituted the transmittal of instructions
previously given to Cliatt by his supervisor , or were instruc-
tions given by an experienced employee to an inexperienced
employee assisting the experienced employee ; and such in-
structions or directions therefore did not constitute responsible
direction requiring the use of independent judgment.
Cliatt did, as pointed out by the Petitioner , sometimes request
employees to work overtime in the shipping department. Over-
time work was on a voluntary basis, however , and these em-
ployees could refuse to honor such a request . Moreover, there
is no evidence that Cliatt did this on his own responsibility
rather that on instructions from his supervisor , Goodson. There
is no evidence to support the Petitioner ' s contentionthat Cliatt
approved the overtime slips of Lunsford , the other regular
full -time employee in the shipping department . There is only
evidence that Cliatt transmitted Lunsford's overtime slips to
Superintendent Gatling . Lunsford did submit requests for time
off to Cliatt, but Cliatt granted such requests only after obtain-
ing approval from Superintendent Goodson . Lunsford also asked
Cliatt " about" a raise in pay once , but•Cliatt told Lunsford that
he would have to refer the request to Goodson , and Lunsford
received the raise only after he himself requested it from
Goodson. There was some testimony that Cliatt was regarded
1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the employees as shipping-department boss, but there was
testimony to the contrary as well. Lunsford, upon the death
of Cliatt, was promoted to Cliatt's position, with a wage in-
crease from 90 cents to $ 1 per hour. Lunsford testified, how-
ever, that his duties remained the same, except that he now
does more "tallying" which, as we have found above, does not
involve the exercise of any supervisory authority over other
employees. Lunsford testified further that he was never told
by anyone that he is now a supervisor or foreman, and that he
does not regard himself as such. In view of the foregoing, we
find no basis for departing from our conclusion above that Cliatt
was not a supervisor at the time of the election.
The Petitioner also contends that the challenge to Cliatt's
ballot should be sustained because Cliatt died shortly after the
election, and the ballot of a deceased employee should not now
be permitted to affect the results of the election. We have fre-
quently held that the essential element in determining an
employee's eligibility to vote is his status on the eligibility
payroll date and on the date of the election; and, accordingly,
that it is without controlling significance that an individual
employed on those dates may have intended to quit, or actually
did quit, shortly after the election. 1 We perceive of no distinc-
tion, for eligibility purposes, between an employee who quits
shortly after an election and one who dies shortly after an
election. Accordingly, we find that Cliatt's previously estab-
lished eligibility to vote was not affected by his death shortly
after the election.
As we have found that Cliatt was not a supervisor as defined
in the Act, and was otherwise eligible to vote in the election,
we overrule the challenge to Cliatt's ballot, and we shall
direct that his ballot be opened and counted.
[The Board directed that the Regional Director for the
Fifth 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 ballot and serve upon the parties a sup-
plemental tally of ballots.]
Member Murdock took no part in the consideration of the
above Decision and Direction.
1See Reidbord Bros. Co., 99 NLRB 127, and cases cited therein.