Malone & Hyde, Inc.

National Labor Relations Board - Board Decisions

Feb 17, 1956

115 N.L.R.B. 498 (N.L.R.B. 1956)

498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
maintenance man to replace striker Schwenzer who had tendered a
written resignation. There was no other maintenance man on the pre-
strike payroll and none of the I8 strikers had the qualifications to fill
this specialized job. In September and October, the Employer ad-
vertised for experienced men in crucible melting operations with the
view of setting up a second shift to handle certain potential business.
These advertisements were not for additional help on the day shift
where the Employer was currently working to capacity with a full
complement of employees. While 5 strikers applied for reinstatement
thereafter, they had theretofore been replaced with specific replace-
ments and the record does not establish that these 5 strikers had the
specialized skills to meet the Employer's requirements.
Under the circumstances, we find that the 18 strikers in question
have been permanently replaced.4 Economic strikers lose their right
to reinstatement upon being permanently replaced in a specific job .'>
As these 18 economic strikers are not entitled to reinstatement, they
are ineligible to vote .6
[Text of Direction of Election' omitted from publication.]
4 We find no merit in the UAW's contention that the "termination" of 1 of the
18 strikers, Thomas Liccardi , was illegal under the law of the State of New York because
he was on workmen's compensation leave at the time. The alleged State law is irrelevant
to the present inquiry.
5N. L. if. B. v. Mackay Radio cf Telegraph Co., 304 U. S. 333.
e See, e. g., John W. Thomas Co,, 111 NLRB 226.
+ UAW contends in effect that Kramer should not be placed on the ballot because he is
fronting for a labor organization which has not complied with Section 9 (f), (g), and (h)
of the Act or because he intends to establish such an organization in the future. Kramer
testified in substance that if he is certified as bargaining representative, he will bargain
with the Employer with the aid of a committee of employees and, if necessary to defray
expenses , assess willing employees. Although Kramer intends to consult such employees
with respect to bargaining matters, Kramer will reserve full rights as a certified repre-
sentative . We find no merit in the UAW's contention . The showing of interest, as re
-flected bythe employees ' petition of June 23 , 1955, runs to Kramer and not to any labor
organization or any other person. There is no such supposed organization presently in
existence . Kramer 's plans for establishment of an advisory organization to implement
any certification he may receive do not preclude him from acting as a certified
representative.
Malone & Hyde , Inc. and General Drivers, Salesmen & Ware-
housemen's Local 984, International Brotherhood of Teamsters,.
Chauffeurs, Warehousemen & Helpers of America , AFL-CIO,'-
Petitioner . Case No. 32-RC-861. February 17,1956
DECISION AND CERTIFICATION OF RESULTS
OF ELECTION
Pursuant to a stipulation for certification upon consent election
executed July 29, 1955, between the parties and the Regional Director
1 We take official notice of the merger of the AFL and CIO and amend the identification%
of the Petitioner 's affiliation.
115 NLRB No. 79.
MALONE & HYDE, INC. 499
for the Fifteenth Region, an election by secret ballot was conducted
on August 4, 1955, under the supervision of the Regional Director,
among, employees of the Employer in the unit herein found appro-
priate. At the conclusion of the election, the parties were furnished
with a tally of ballots. The tally shows that of approximately 140
eligible voters, 131 cast valid ballots; of these 60 were for the Peti-
tioner, 69 were against the Petitioner, and 2 ballots were challenged.
The challenged ballots are therefore insufficient in number to affect
the results of the election.
On August 9, 1955, the Petitioner filed timely objections to conduct
affecting the results of the election, a copy of which was served on
the Employer. In accordance with the Rules and Regulations of the
Board, the Regional Director conducted an investigation of the ob-
jections in which he found that the objections did not raise substan-
tial or material issues affecting the results of the election, and in which
he recommended that the objections be overruled. On November 15,
1955, the Petitioner filed exceptions to the Regional Director's report
requesting that the election be set aside and a new election directed.
Upon the basis of the entire record in this case, the Board finds the
following :
1. The Employer is engaged in commerce within the meaning of the
Act.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The following employees of the Employer constitute a unit'
appropriate for purposes of collective bargaining within the meaning
of Section 9 (b) of the Act :
All country and' city truckdrivers, mechanics, mechanic helpers,
washers, greasers, tirechangers, and warehouse employees at the Em-
ployer's Memphis, Tennessee, operations, excluding all office clerical
employees, professional and technical employees, watchmen-guards,
cash and carry salesmen, and all supervisors as defined in the Act.
5. In its objections the Petitioner asserted that the warehouse fore-
man and other supervisors talked to employees between June 30 and
August 4, 1955, and promised benefits to the employees if the Union
lost the election; and that the Employer and its agents and supervisors
engaged in other acts and conduct which interfered with the results
of the election through promise of ,benefits and threats of reprisals
and force. In support of these objections the Petitioner submitted a
statement signed by certain employees of the Employer to the effect
2 The unit is in accord with the agreement of the parties.
500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the weekly payday was changed in order to gain votes against
the Union. The Petitioner also alleged that "a meeting was held
within twenty-four hours (24) of the election on the Company dock." 3
As to the change in paydays, the Regional Director's investigation
disclosed that about March 18, 1955, the Employer changed its pay-
day to Monday. On August 18, 1955, subsequent to the election
herein, the Employer circulated a bulletin to employees to ascertain
their preference for paydays, and on September 2, the payday was
changed to Friday. The Regional Director found that although there
appeared to be rumors before the election that the payday would be
changed to Friday if the Union lost the election, no evidence was ad-
duced to indicate that the Employer had inspired such rumors. He
found further that before the election the Employer' s personnel man-
ager had, when approached, refused to discuss the question of a change
in payday with two employee spokesmen because of the pendency-of
the election; and he concluded that there was no evidence to support
the Petitioner's allegation with respect to the changed payday. The
Petitioner, in its exceptions, urges that the Employer was under "a
duty to speak out and inform his employees that the payroll change
was not dependent upon the results of the election." Under all the
circumstances we find this contention to be without merit.'
As to the Petitioner's allegation that a meeting was held within 24
hours of the election, the Regional Director's investigation failed to
disclose any evidence of such a meeting. The investigation disclosed
that for several days before the election, the warehouse superintend-
ent and the personnel director, on encountering individuals and small
groups of employees during their trips through the plant, took the
occasion to urge the employees to vote. The so-called "meeting," here
in question, involved the warehouse superintendent's conversation with
a group of 6 or 7 employees-on the Employer's dock. These latter em-
ployees stated that the superintendent had merely urged them to vote;
and in fact none of the employees involved in any of the discussions
recalled that the superintendent had done more. The Regional Direc=
for concluded that no circumstances had been shown constituting a vio-
lation of the Board's 24-hour rule, or any interference with the elec-
tion . In its exceptions, the Petitioner contends that a meeting where
employees are urged to vote constitutes a violation of the Peerless Ply-
wood 5 rule, because urging employees to vote is an "election speech"
per se. We reject this contention.'
3 This allegation was submitted on September 13, 1955 It is not clear from the Re-
gional Director's report whether this allegation was made in support of the Petitioner's
previously made objections , or whether it constituted a new and different objection and
was accordingly untimely. In these circumstances, and as the Regional Director appar-
ently placed the allegation in the former category, we consider it on the merits.
4 See E. H Blum, 111 NLRB 110, 112
Peery less Plywood Company, 107 NLRB 427.
s John W. Thomas Co., 111 NLRB 226.
WEAL DIVISION-THE HEARST CORPORATION 501
The Petitioner also excepts to the manner in which the Regional
Director conducted his investigation . It contends that "the interview
of employees on company premises could not result in a complete and
adequate investigation." We do not agree . The interviewing of em-
ployees on the Employer 's premises does not create such a coercive at-
mosphere as to render the investigation unreliable when there is no
showing that a representative of the Employer was present during the
interviews.7
In view of the foregoing, we overrule the Petitioner 's objections.'
As the Petitioner failed to receive a majority of the valid ballots cast,
we shall certify the results of the election.
[The Board certified that a majority of the valid ballots was not
cast for General Drivers , Salesmen & Warehousemen 's Local 984, In-
ternational Brotherhood of Teamsters , Chauffeurs , Warehousemen &
Helpers of America , AFL-CIO, and that this Union is not the exclu-
sive representative of the employees at the Memphis, Tennessee, plant
of Malone & Hyde, Inc., in this unit.]
7 National Petro-Chemicals Corporation, 107 NLRB 1610, 1611.
8 Other conduct objected to by the Petitioner concerned the holding of two picnics,
although no picnics for employees had been held in the past . The Regional Director's
investigation disclosed that the Employer 's decision to hold the picnics was made, the
employees were aware of the decision , the dates were set, and a bulletin concerning one
of the picnics was distributed prior to the filing of the petition and execution of the con-
sent election agreement herein . Nor was there disclosed any unusual circumstances in
the conduct of the picnics or any evidence of objectionable conduct on the part of the
Employer at the picnics . Accordingly , the Regional Director , relying on F. W. Woolworth
Co , 109 NLRB 1446, found that the circumstances were not of such nature as to inter-
fere with the employees ' freedom of choice. The Petitioner filed no exception to this
finding.
WBAL Division-The Hearst Corporation and International Alli-
ance of Theatrical Stage Employes and Moving Picture Machine
Operators of the United States and Canada, AFL-CIO, and
Brotherhood of Painters , Decorators & Paperhangers of Amer-
ica, AFL-CIO, Petitioners . Cases Nos. 5-RC-1806 and 5-RC-
1878. February 20,1956
SUPPLEMENTAL DECISION AND ORDER
Pursuant to a petition in Case No. 5-RC-1806, filed by International
Alliance of Theatrical Stage Employes and Moving Picture Machine
Operators of the United States and Canada, AFL-CIO, herein called
IATSE, the Board on November 30,1955, issued a Decision and Direc-
tion of Election (not reported in printed volumes of Board Decisions
and Orders) wherein it found appropriate a unit of floor directors and
artists in the program department at the Employer's television station,
WBAL-TV. On December 27, 1955, the Brotherhood of Painters,
115 NLRB No. 83.