Wapo Broadcasting, Inc.

National Labor Relations Board - Board Decisions

Aug 24, 1953

106 N.L.R.B. 857 (N.L.R.B. 1953)

WAPO BROADCASTING, INCORPORATED 857
Member Peterson, concurring:
I concur -in the dismissal of the petition herein, not because
of any possible agreement with my colleagues' application of
the basic steel doctrines' to the lumber industry, but for the
reasons fully set forth in my dissenting opinion in the Hamilton'
case. As the evidence shows there has been a substantial
bargaining history on a plantwide basis and in the absence of
other factors warranting severance from the established unit,
I agree that the powerhouse employees are not entitled to
separate representation.
2 See National Tube Company, 76 NLRB 1199.
3W. C. Hamilton and Sons , 104 NLRB 627.
WAPO BROADCASTING, INCORPORATED and LOCAL UNION
NO. 662, INTERNATIONAL BROTHERHOOD OF ELECTRI-
CAL WORKERS, AFL, Petitioner. Case No. 10-RC-2249.
August 24, 1953
SUPPLEMENTAL DECISION AND DIRECTION
Pursuant to the Decision and Direction of Election issued
herein on June 5, 1953,1 an election was conducted on July 2,
1953, under the direction and supervision of the Regional
Director for the Tenth Region, among the employees in the
unit heretofore found appropriate. 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 4
valid ballots were cast for the Petitioner, 2 valid ballots were
cast against the Petitioner , 3 ballots were challenged, and 1
ballot was 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 pursu-
ant to the Board's Rules and Regulations, investigated the issues
raised by the challenges, and on July 10, 1953, issued his report
on election, challenged ballots, and recommendations to the
Board, recommending that the challenge to 1 ballot be sustained,
and that the challenges to 2 ballots be overruled and the ballots
opened and counted. On July 23, 1953, the Employer filed ex-
ceptions to part of the Regional Director's report.
The Ballot of Thomas A. Brown
On or about March 1, 1953, Brown was discharged by the
Employer because he was involved in a salary garnishment pro-
ceeding. The Petitioner, however, secured Brown's reinstate-
ment by threat of a strike. On or ,about March 15, 1953, Brown
'Not reported in printed volumes of Board Decisions.
106 NLRB No. 137.
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was discharged again for similar reasons , and again the
Petitioner intervened, and by threat of strike secured from the
Employer an agreement that Brown be reinstated and that the
issues with respect to his discharge would be discussed later
by the Employer and the Petitioner. Since that time, Brown has
continued with his regular duties, receiving the same salary,
insurance benefits, etc., as the other regular employees, and
was so employed during the payroll period governing eligibility
and on the date of the election.
The Employer contends that, because of the agreement with
respect to Brown ' s status, Brown is only a temporary employee,
working on a day-to-day basis, and is therefore not an eligible
voter.
The Board finds, however, as the Regional Director did in
his report, that, in view of the fact that approximately 3i months
have elapsed since Brown was reinstated to his job, and in view
of the further fact that there is no evidence that the parties have
subsequently discussed , or even arranged to discuss , Brown's
status, the presumption is that Brown's employment will con-
tinue indefinitely. Accordingly, the Board finds, as the Regional
Director did, that Brown's tenure of employment is such as to
render him an eligible voter,' and adopts the Regional Direc-
tor's recommendation that the challenge to Brown's ballot be
overruled and that the ballot be opened and counted.
The Employer's contentions that Brown was legally and
rightfully discharged, and that the Employer has been forced to
continue Brown's employment because of the Petitioner's
coercion , threats, and intimidation , are not material , particu-
larly in the absence of any evidence that the Petitioner's con-
duct was illegal . The sole issue here is whether Brown's
employment status is such as to render him an eligible voter.
The Ballot of Henry Elliott Nelson
The Regional Director found that Nelson was an eligible
voter, and therefore recommended that the challenge to Nelson's
ballot be overruled and that the ballot be opened and counted. In
the absence of any exception filed thereto, we adopt this finding
and recommendation.
The Ballot of William F. Hubbard
The Regional Director found that Hubbard was not an eli-
gible voter , and therefore recommended that the Board sustain
the challenge to Hubbard's ballot and direct that the ballot not
be opened or counted. Hubbard's ballot, however, may not be
sufficient to affect the results of the election after the opening
and counting of the ballots of Brown and Nelson, as directed
herein. Accordingly, we find it unnecessaryto,anddo not, pass
upon the Regional Director's finding and recommendation with
2 See General Refractories Company, 76 NLRB 835.
WEST TEXAS UTILITIES COMPANY 859
respect to Hubbard at this time. In the event that Hubbard's
ballot is sufficient to affect the results of the election after the
opening and counting of the ballots of Brown and Nelson, we
shall then pass upon the challenge to Hubbard ' s ballot.
[The Board directed that the Regional Director for the
Tenth Region shall, pursuant to the Rules and Regulations of
the Board, within ten (10) days from the date of this Direction,
open and count these ballots and serve upon the parties to this
proceeding a supplemental tally of ballots.]
Chairman Farmer and Member Peterson took no part in the
consideration of the above Supplemental Decision and Direction.
WEST TEXAS UTILITIES COMPANY and INTERNATIONAL
BROTHERHOOD OF ELECTRICAL WORKERS, LOCALS
NOS. 898, 920, and 1044, AFL. Case No. 16-CA-584.
August 2.5, 1953
DECISION AND ORDER
On June 2, 1953 , Trial Examiner Eugene F. Frey issued
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. Thereafter , the Respondent filed exceptions
to the Intermediate Report and a supporting brief.
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 Respondent's
exceptions and brief , and the entire record in the case,' and
hereby adopts the findings , conclusions , and recommendations
of the Trial Examiner , with the following additions and
modifications:
'Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers
in connection with this case to a three-member panel L Members Houston, Styles, and Peter-
son].
2 The Respondent excepts to the Trial Examiner's denial of its motion at the outset of the
hearing seeking a continuance because of the temporary unavailability of certain witnesses.
The Respondent does not assert that it was prejudiced by denial of this motion. Upon the
entire record, we find no abuse of discretion by the Trial Examiner in denying this motion,
and his ruling is hereby affirmed,
3At the instant hearing the record of the prior representation proceeding, which is dis-
cussed in the text, below, was received in evidence, including the Respondent's objections
to the conduct of the election, the Regional Director's report and recommendations on the
objections, the Respondent's exceptions to said report, together with all supporting state-
ments and affidavits, the Board's Third Supplemental Decision and Certification of Repre-
sentatives, the Respondent's motion for reconsideration of that Decision, and the Board's
Order denying said motion.
106 NLRB No. 140.