Norris Homes, Inc.

National Labor Relations Board - Board DecisionsJan 25, 1974

208 N.L.R.B. 706 (N.L.R.B. 1974)

706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Norris Homes, Inc. and United Steelworkers of America, AFL-CIO, Petitioner. Case I0-RC-9646 January 25, 1974 DECISION AND DIRECTION BY MEMBERS FANNING, KENNEDY, AND PENELLO Pursuant to a Stipulation for Certification Upon Consent Election, an election was conducted on July 27, 1973, under the direction and supervision of the Regional Director for Region 10 among the employ- ees in the stipulated unit. At the conclusion of the election, the parties were furnished a tally of ballots which showed that, of approximately 475 eligible voters, 163 cast ballots for, and 159 cast ballots against, the Petitioner. Forty-five cast challenged ballots, sufficient in number to affect the results of the election. Thereafter, the Regional Director ordered a hearing to resolve the challenges. On October 19, 1973, Hearing Officer Paul K. Tamaroff issued his Report and Recommendation on Challenged Ballots after a hearing in which all parties were given full opportunity to present evidence on their behalf. Thereafter, Employer filed limited exceptions and a brief in support thereof.' 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. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act, and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The Petitioner is a labor organization claiming to represent certain employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of certain employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. The parties agreed, and we find, that the following employees constitute a unit appropriate for collective bargaining within the meaning of the Act: All production and maintenance employees in- cluding the warehouse employees, group leaders, line inspectors, plant clericals, and prototype assemblers of the Employer's New Tazewell plant, but excluding all supervisory employees, 1 We adopt pro./orrw the Hearing Officer's recommendation to overrule challenges to the ballots of alleged supervisors , McNew, Beason, Cupp, Buler. Snodgrass. and Cole, and to sustain that of former employee Epperson As to these, no exceptions were filed 2 As outlined in Employer's brief and substantiated in the record, the names of these 100 employees were subsequently earmarked on the Excelsior list which was given to the Employer 's observers for use at the technical employees, office clericals, and guards as defined in the Act. 5. The Board has reviewed the entire record in this case, Including the Hearing Officer's report, the Employer's exceptions and brief, and hereby adopts the Hearing Officer's recommendations to the extent consistent herewith. The only issue before us concerns the Employer's challenges to the ballots of 38 laid-off employees, which the Hearing Officer would overrule and count. The petition was filed on June 1, 1973. On June 29, Employer laid off 147 production and maintenance employees in a reduction in force for lack of work. Shortly thereafter, on July 13, 1973, Employer determined that the 100 most junior laid-off employ- ees by production lines,2 which in this instance meant employees with seniority of 5 months or less, had no expectation of recall in the foreseeable future. This business judgment was dictated by adverse business conditions-one unique to Employer at the New Tazewell plant, the other industrywide in scope: (1) the introduction of a new manufacturing proce- dure which unexpectedly resulted in decreased production and necessitated hiring unprecedented numbers to assist in production and maintenance,3 and (2) an industrywide recession caused principally by high interest rates and gasoline shortages which drastically reduced demand for Employer's product. Consequently, Employer's work force dropped from a peak of 570 in April 1973 (with a backlog of 1,961 orders) to approximately 200 in September (and a backlog of 41-lowest in the Company's history). Though it is uncontested that Employer's work is highly seasonal in nature (peaking in late spring and dropping sharply in July and August), the reduced number of employees is far lower than numbers employed at corresponding times in previous years, and generally reflects the industry downtrend. Despite the evidence presented documenting these business conditions, the Hearing Officer determined that the expectation of recall was not so remote as to justify the Employer's conclusions that the layoff made the challenged employees ineligible to vote. His conclusion was based partly upon some opti- mism expressed by the Employer concerning long- range prospects of both the Company and the industry, and partly upon his inference of "an abnormally high turnover" of employees .4 In our view, however, his conclusions fail to give adequate election . Only 38 of the employees on this list appeared at the polls, all being challenged. ' The backlog of orders in February 1973 was 1,143 and 1 ,770 in March After April, it steadily declined. '' He noted that the employees received a standard state layoff form with "lack of work" checked as the reason , and that no reason was given verbally because employees normally expect to he recalled in October. 208 NLRB No. 95 NORRIS HOMES, INC. weight to the testimony as a whole and the documentary evidence. Record testimony on normal employee turnover is lacking here. At the time of hearing, there were 200 employed and more than 300 in layoff status. The latter number included the 147 laid off on June 29, plus an additioâ€¢ial layoff of 171 after the July 27 election. The Employer testified that it could not foresee employing more than 350 employees in the future; also, that there was no possibility of recall in the foreseeable future for any of the 100 most junior in layoff status, in which the 38 challenges fall.5 It is a fair inference from the record that the employees laid off post election had greater seniority than the challengees, few of whom had worked as long as 5 months and none of whom had previously been laid off and rehired. In the circumstances, including the problems faced by the recreational vehicle industry as the time of the election, we conclude that the 38 challenged voters had no reasonable possibility of Under date of December 14, 1973. Employer motioned the Board to reopen the record for the limited purpose of receiving additional evidence indicating further depressed economic and employment conditions both at 707 recall in the foreseeable future. We distinguish American Printers & Lithographers, Inc.,6 relied upon by the Hearing Officer, where the single laid-off employee was told that his layoff was occasioned by the loss of two accounts and was assured that he would be reemployed when business picked up. DIRECTION It is hereby directed that the Regional Director for Region 10 shall, pursuant to the Rules and Regula- tions of the Board, within 10 days from the date of this Direction, count the six ballots as to which challenges are overruled and cause to be served on the parties a revised tally of ballots. If the revised tally discloses that a majority of the votes have been cast for or against the Petitioner, the Regional Director shall issue the appropriate certification in accordance with the Board's Rules and Regulations. the plant and in the industry as a whole In view of our decision in this case, we find it unnecessary to reopen the record b 174NLRB 1179. 1186