Oscar H. Kjorlie Co.

National Labor Relations Board - Board Decisions

Jul 8, 1944

57 N.L.R.B. 144 (N.L.R.B. 1944)

I
In the Matter of OSCAR H. KaoRLIE Co. and GENERAL DRIVERS, HELPERS
- AND INSIDE WORKERS UNION5 LOCAL 116, A. F. L.
Case No. 18-R-953
SUPPLEMENTAL DECISION
AND
DIRECTION
July 8, 1944
On April 24, 1944, pursuant to' a Decision and Direction of Election
issued by the Board herein on April -12, 1944,1 an election by secret
ballot was conducted under the direction and supervision* of the
.Regional Director for the Eighteenth Region (Minneapolis, Min-
nesota). On April 24, 1944, the Regional Director issued and -duly
served upon the parties a Tally of Ballots. As to the balloting and
its results, the Regional Director reported as follows :
Approximate number of eligible voters______________________ 6
Valid votes-counted-----------------------------------= --- 6
Votes cast for General Drivers, Helpers, and Inside Workers
Union, Local 116, A. F. L________________________________ 3
Votes cast against aforementioned Union____________________ 3
Challenged ballots ------------------- ----------------------- 3
Void ballots ----------------------------------------------- 0
On May 4, 1944,`the Regional Director issued a Report on Chal-
lenges, recommending that the challenges to the three challenged bal-
lots be overruled and that they be opened and counted. On May 9,
'944, the Company filed exceptions to the Report on Challenges.
On May 19, 1944, the Board, having duly considered the matter,
determined that the challenges raised substantial material issues with
respect to the election, and issued an order directing a hearing thereon
and referring the case to the Regional Director for the purpose of
conducting' the hearing. Said hearing was held, at Fargo, North
Dakota, on June 9, 1944, before Clarence A. Meter, Trial Examiner.
The Company and the Union appeared, participated, and were af-
forded full opportunity to be heard, to examine and cross-examine
witnesses,, and to introduce evidence bearing on the issues. The-Trial
255 N. L. It. B. 1220.
57 N. L. It. B., No. 27.
,144
I
OSCAR H. KJORLIE CO. 145
Examiner's rulings made at'the hearing are free from prejudicial
error and are hereby affirmed. All parties were afforded opportunity
to file briefs with the Board.
Upon the entire record in the case, the Board makes the following :
SUPPLEMENTAL FINDINGS OF FACT
At the commencement of the hearing the Union withdrew its 'chal-
lenge to, the ballot of Floyd Nelson. Accordingly, we shall direct
that his ballot be counted. In our Direction of Election we found
that all nonsiipervisory employees of the Company who were employed
during the, pay-roll period immediately preceding the date of the
Direction were eligible to vote, including employees who did not ' work
during that pay-roll period because they were ill or on vacation or tem-
porarily laid off, but excluding any employees who had quit or been
discharged for cause after that date. At-the election the Company
challenged the ballots of Jess Merrick and Olaf Knutson on the ground
that their employment had ceased with the Company before the date
of the election. The Union, contends that said employees are eligible
to vote because they were merely temporarily laid off.
The Company's business is seasonal in nature, and there is an annual
seasonal lay-off from about April to September of each year. Merrick
was first employed'by the Company in the fall of 1941 and worked until
April 1942. He was recalled in the fall of 1942 and worked until the
spring of 1943.' He likewise was reemployed in the fall of 1943 and
worked, until April 7, 1944. Knutson commenced his employment
with the Company in the fall of 1942 and after working for 2 months
became a member of the armed forces of the United States. There-
after, the president of the Company wrote to the United States Army
requesting Knutson's release and stated therein that he would employ
Knutson if he were released. On August 6, 1943, Krjutson was re-
leased from the Army and 2 weeks thereafter resumed his employment
with the Company. He was thereafter employed until April 6, 1944.
The Company contends that Knutson and Merrick were unsatisfactory
employees from the fall of 1943 until the spring of 1944, and that,
when they ceased their employment in April 1944, it was the Com-
pany's intention not to reemploy them upon the resumption of normal
operations in the fal_1 of 1944. The Company stated in support of its
contention that both employees in question had been drinking through-
out the entire season and that they had not produced a sufficient quan-
tity of work. It is clear from the record, however, that neither of
them had ever been warned by- the Company with respect to their
alleged inefficiency, nor does it appear that there was any diminution
601248-45-vol. 57-11
146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of production by either one, nor is there any evidence of their alleged
drinking during working hours. We are therefore of the opinion
that Knutson and Merrick are regular seasonal employees of the Coin-
pany who fall within the scope of the eligibility 'definition in our
Direction of Election. The challenges to their, ballots are therefore-
overruled. We shall direct that their ballots be counted.
DIRECTION '
By virtue of and pursuant to the power vested in the National Labor
Relations Board by Section 9 (c) of the National Labor Relations Act,
and pursuant to Article III, Sections 9 and 10, of National Labor
Relations Board Rules and Regulations-Series 3, it is hereby
DIRECTED that, as part of the investigation ordered by the Board
to ascertain representatives for the purposes of collective bargaining
with'Oscar H. Kjorlie Co., Fargo, North Dakota, the Regional Director
for the Eighteenth Region shall, pursuant to said Rules and Regula
tions, and subject to Article III, Section 10, thereof, within ten (10)
days from the date of this Direction, open and count the challenged
ballots of Olaf Knutson, Jess Merrick, and Floyd Nelson, herein
declared valid, and shall thereafter prepare and cause to be served
upon the parties to this proceeding a Supplemental Election Report
embodying his findings therein and his recommendations as to the,
result of the balloting. -
MR. GERARD D. REILLY took no part in'the consideration of the above '
Supplemental Decision and Direction.,
t