Guyan Machinery Co., 591 (1965)

DECISION AND ORDER

On July 19, 1965, Trial Examiner Eugene F. Frey issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint in Case No. 9-CA-3291 and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. In Case No. 9-RC-6022,1 the Trial Examiner recommended that the challenges to 80 ballots be overruled and that the challenges to 17 ballots be sustained. Thereafter, the Charging Party filed exceptions to the Trial Examiner's Decision and a brief in support thereof, and the Respondent filed a brief in support of the Trial Examiner's Decision.

Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with these cases to a three-member panel [Chairman McCulloch and Members Jenkins and Zagoria].

1 Pursuant to Section 102.33 of the Board 's Rules and Regulations, Series 8, as amended, revised January 1, 1965, the Regional Director consolidated this case with Case No.

9-CA-3291.

155 NLRB No. 47.

The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in these cases, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following modifications.

Case No. 9-CA-3291

1. In finding, as did the Trial Examiner, that in the circumstances of this case the Respondent did not violate Section 8(a) (3) and (1) by discharging the employees named in the complaint, we rely, in addition to the matters set forth in the Trial Examiner's Decision, on uncontroverted documents introduced as exhibits in the hearing which show that long before the Union commenced organization of the Respondent's employees, the Respondent had planned to discharge 10 to 12 employees and to give a wage increase after the move of its plant was completed. Further, since the reasons given for the selection of employees discharged were not unreasonable under all the circumstances, we, like the Trial Examiner, find that the General Counsel failed to prove by a preponderance of the evidence that the employees were discharged for their union activities.

2. In sustaining the Trial Examiner's ultimate findings, however, we disavow the following statements of the Trial Examiner and any implications that could be drawn therefrom in that they are unnecessary for the disposition of this case:

(a) In section III, B, of the Trial Examiner's Decision where, in discrediting employee Rice's testimony, he implies that Rice deliberately lied on the witness stand.

(b) In section III, B, of the Trial Examiner's Decision where he discussed the circumstances under which an employer's knowledge of union activity may be inferred from the small size of an employer's plant.

(c) In section III, C, of the Trial Examiner's Decision where he states that if the Respondent had discussed the reinstatement of the discharged employees with the Union, 'it might have exposed itself to charges from antiunion employees of recognizing or assisting the Union in violation of the law....' Case No. 9-RC-6022

1. The Trial Examiner found that employee Freddie E. Maynard was not an employee on the eligibility date and that, therefore, his vote in the representation election should not be counted. We disagree.

The record reveals that Maynard was hired as a temporary employee on July 8, 1964, to assist in the move of the plant. When the strike began at noon on August 12, he did not return to work. The Respondent marked him on its records as terminated on that day because the move was completed, but there is no evidence that Maynard was advised that he was terminated. On August 14, Maynard telephoned the Respondent and stated that he would work if the Respondent would bring him through the picket line, which Respondent did. Respondent tried to use Maynard as a welder and for work on the bay but decided that he could do neither. The Respondent then tried him on the open hearth and decided he 'might be able to do that.' 2 Maynard did not come back the next day but joined the picket line.

Thus, although Maynard was a temporary employee on August 12, he was not terminated by the Respondent until he failed to return to work because of the strike called by the Union. Since the Employer retained other temporary employees who were willing to work after the strike and since it was willing to bring Maynard through the picket line on August 14 for work despite the fact that its records stated he was terminated on August 12, we conclude that the Respondent would have continued to employ Maynard, like the other temporary employees, had he not joined in the strike .3 Also, contrary to the finding of the Trial Examiner, the record does not reveal that Maynard quit on August 14; rather it shows that he joined the picket line the following morning as an economic striker. Therefore, we conclude that the challenge to his ballot should be overruled and that his vote should be counted.

The Trial Examiner found also that the vote of Raymond Roberts should not be counted since he signed a statement that 'my employment has been terminated at my own request.' We disagree. Roberts came into the plant on September 16, 1964, to get his final pay at which time he signed a document which stated : 'I hereby request my full and final pay, my employment has been terminated at my own request.' Roberts testified without contradiction that he was told he 'would have to sign this slip so that the company didn't owe me any more money before I could get the check.' 4 The Respondent testified that the purpose of the form was 'to find out who was going to look for work or to leave the Guyan Machinery Company permanently.' The record does 2 The Trial Examiner found that Maynard could not handle any of the jobs the Respondent tried him out on that day. The record, however, reveals that the Respondent thought he might be able to do the open hearth work.

3 See W. Wilton Wood, Inc., 127 NLRB 1675, 1678.

4 We accept the Trial Examiner's credibility finding in which he discredits Roberts testimony that the slip he signed did not contain the words 'my employment has been terminated at my own request.' not reveal, however, that any other employees were requested to sign such a form. As Roberts was required to sign this form before the Respondent would give him his final pay, we find that the Respondent has not affirmatively shown by objective evidence that Roberts abandoned his interest in his struck job and that the presumption that an economic striker remains in such status has not been rebutted .r> Therefore the challenge to his ballot is overruled and his vote should be counted.

2. The Respondent would include in the unit and count the votes of nine employees in its resale department located in a separate building at Stollings, West Virginia, about 12 miles from Phico. In the Regional Director's Decision and Direction of Election in this case, he found that the appropriate unit consisted of 'all production and maintenance employees of the Employer at its Phico, West Virginia, plant ....' At the hearing on the representation petition, the Respondent agreed to the appropriateness of such a unit by stating that although it felt that the description of the unit was 'extremely vague,' if the Union desires to have a unit of that type the Employer is agreeable to it.' 6 The Union never picketed the Stollings plant and claims that the votes of the Stollings employees should not be counted.

In the decision on the challenged ballots, the Regional Director found that there was no evidence in the representation record 'relating in any way to the Employer's Stollings operation' and that 'the eligibility to vote of the employees working at Stollings can best be resolved on the basis of record testimony taken at a hearing.' The Trial Examiner found that the question of whether the Stollings employees should be included in the unit was still open in spite of the 'Respondent's failure to take a positive position' on the extent of the unit at the representation hearing, and its failure to appeal the Regional Director's determination to the Board before the election.

He further found that the only appropriate unit included employees in both plants although there were factors which tended to support the appropriateness of the requested unit. We disagree on both counts.

Since the parties agreed on a unit limited to the employees at the Respondent's Phico plant and the Regional Director found such a unit to be appropriate, we hold that the Regional Director should have sustained the Union's challenges to the votes of the Stollings employees and should not have referred the question to the Trial Examiner for hearing. Moreover, although a unit including the employees at both 6 Pacific Tile and Porcelain Company, 137 NLRB 1358. The Respondent did not present any evidence indicating that Roberts had accepted permanent employment elsewhere or that he had abandoned the strike.

Although the resale department was mentioned at the representation hearing, the Respondent never contended , nor did the Petitioner (Union) request, that the Stollings employees should be included in the unit.

plants might be deemed appropriate, we hold that a unit limited to Phico plant employees is also appropriate under all the circumstances of this case. Our reasons for so holding include the geographic separation of the plants, the minimal interchange of employees between the plants, the separate supervision, the fact that no union requests a more inclusive unit, and the absence of any bargaining history on a broader basis.z Therefore, the challenges to the ballots of the...