Kerns Brothers

National Labor Relations Board - Board DecisionsApr 16, 1953

104 N.L.R.B. 161 (N.L.R.B. 1953)

KERNS BROTHERS 161 KERNS BROTHERS and GENERAL DRIVERS, WAREHOUSE- MEN AND HELPERS UNION LOCAL NO. 509, INTERNA- TIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL, Petitioner. Case No. 10-RC-2065. April 16, 1953 SUPPLEMENTAL DECISION AND DIRECTION Pursuant to an unpublished Decision and Direction of Elec- tion issued by the Board on December 17, 1952, an election by secret ballot was conducted, under the supervision and direction of the Regional Director for the Tenth Region, on January 12, 1953, among certai.i employees of the Employer. The tally of ballots discloses that, of approximately 16 eligible voters, 6â€¢ ballots were cast for the Petitioner, 1 against the Petitioner, and 9 were challenged. Because the challenged ballots were sufficient in number to affect the results of the election, the Regional Director caused an investigation to be made, and, on February 20, 19153, issued his report on election, challenged ballots, and recom- mendations to the Board . The Regional Director found that mechanic John Lindsay and mechanic's helpers William Mitchem and Guy Butler did not come within the unit as found appropriate, were not eligible voters, and hence, recommended that the challenges to their ballots be sustained. The Regional Director further found that the 6 challenged night drivers were eligible voters, but recommended that the election be set aside without opening their ballots and that a new election be directed because the night drivers had only 2 days advance notice of their right to participate in the election.' On Feb- ruary 25, 1953, the Petitioner filed exceptions to the Regional Director's report, requesting that the 6 night drivers' ballots be opened and counted and that no new election be directed. On March 9, 1953, the Employer filed a reply to the Petitioner's exceptions, urging the Board to follow the recommendations of the Regional Director. No exceptions to the recommendations of the Regional Direc - tor regarding the sustained challenges of Lindsay, Mitchem, and Butler having been filed by either party to this proceeding, we hereby adopt the Regional Director's findings and recommen- dations concerning these ballots. As there were no exceptions to the Regional Director's finding that the night drivers were eligible voters, we shall also adopt it. However, as all the night drivers were given an opportunity to vote, and did in fact cast ballots, we are unable to agree with the Regional Director that the 2-day notice of eligibility denied these employees ample opportunity to acquaint them- selves with the election issues. Accordingly, we sustain the exceptions of the Petitioner and direct that the valid ballots of the 6 night drivers be opened and counted. I The original Decision and Direction of Election ruled night drivers ineligible as temporary employees . However , on January 9, 1953 , 3 days prior to the election, the Board , in denying the Employer's motion to reopen the hearing as to the voting eligibility of these employees , allowed them to vote subject to challenge. 104 NLRB No. 19. 162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DIRECTION IT IS HEREBY DIRECTED that, as part of the investigation to ascertain representatives for the purposes of collective bargaining with the Employer, the Regional Director for the Tenth Region shall, pursuant to National Labor Relations Board Rules and Regulations, within ten (10) days from the date of this Direction, open and count the ballots of Grady Burris, Farmer Combs, John Guest, William Manning, Hiawatha Parker, and James Solomon; and thereafter prepare and cause to be served upon the parties a supplemental tally of ballots, including therein the count of the challenged ballots described above. [Members Houston and Styles took no part in the consider- ation of the above Supplemental Decision and Direction,] WESTERN TEXTILE PRODUCTS COMPANY OF TENNES- SEE and UNITED TEXTILE WORKERS OF AMERICA, AFL. Case No. 32-CA-252. April 17, 1953 DECISION AND ORDER On January 13, 1953, Trial Examiner Bertram G. Eadie is sued his Intermediate Report in the above -entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Res- pondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended dismissal of those allegations . Thereafter, the Respondent and the Union filed exceptions to the Intermediate Report and supporting briefs. The Board' has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions , and recommendations of the Trial Examiner, with the following exceptions, additions, and modi- fications. 1. We agree with the Trial Examiner that the record does not establish by a preponderance of the evidence that the Respondent discriminatorily discharged Kaiser for engaging in union activity rather than for talking to other employees away from his machine after having been previously warned against such conduct. 1 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman Herzog and Members Murdock and Peterson]. 104 NLRB No. 23.