Matlock Truck Body & Trailer Corp. v. NLRB
| Decision Date | 26 April 1974 |
| Docket Number | No. 73-1599.,73-1599. |
| Citation | 495 F.2d 671 |
| Parties | MATLOCK TRUCK BODY AND TRAILER CORP., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Thomas Nelms, III, Nashville, Tenn., for petitioner; John T. Conners, Jr., Boult, Cummings, Conners & Berry, Nashville, Tenn., on brief.
Charles I. Cohen, N. L. R. B., for respondent; Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, John D. Burgoyne, Attys., N. L. R. B., Washington, D. C., on brief.
Before CELEBREZZE and MILLER, Circuit Judges, and McALLISTER, Senior Circuit Judge.
In this petition for review of the Board's decision in a case involving the National Labor Relations Act, the petitioner, Matlock Truck Body and Trailer Corporation, contends that the Board illegally sustained the Union's challenges to the ballots of several workmen taking part in the election.
Among the ballots so challenged were those of Bobby Lamb and Sandra Lamb, husband and wife, who did janitorial work on a contract basis. They worked fifty per cent of their time in the plant and the remainder in the office. Their normal work hours were from 6:00 p. m. to 9:30 p. m., Monday through Friday. Occasionally, they worked weekends, but made adjustment therefor by taking time off during the week — arriving early or late. They do not punch a clock as do all production and maintenance employees. No deductions for federal income tax or social security are withheld or paid by the company. They did not fill out application blanks, and do not receive any of the company's benefits.
Based on these facts, the Board considered that the Lambs did not enjoy a community of interest with unit employees and, therefore, challenged their votes. We agree with the holding of the Board.
The ballot of Bennie Wilson was challenged by the Board. In order to be eligible to vote, he would have to have been employed in the voting unit on both the payroll eligiblity date — June 10, 1972, and the election date — July 13, 1973. "The test for determining eligibility is the individual's actual status on the eligibility date and election date." Westchester Plastics of Ohio, Inc. v. N. L. R. B., 401 F.2d 903, 907 (C.A. 6).
Wilson had been employed in the Manufacturing Department until he quit his job on March 20, 1972. On May 2, he was reemployed in the Service Department — a department not included in the voting unit. Approximately on May 31, 1972, he requested a transfer back to the Manufacturing Department. A payroll change notice shows that he was transferred to Manufacturing with no change in pay, and was not assigned a new dock number until the end of July. The Company explained that although the transfer of Wilson was effective June 6, it was decided that he would not be "physically moved" to Manufacturing until he completed the work he was then performing in the Service Department on a special order job. Copies of Wilson's time-cards indicated that he used the separate Service Department clock and cards through Monday, June 12, when he was told he should report to Manufacturing. Following instructions, on Tuesday, June 13, he began using the Manufacturing time clock. Manufacturing employees use one time-card per week, clocking in and out one time each day. On the other hand, service personnel use a new time-card each day, checking in and out on each job performed and writing each job number on the time-card.
The Board found that the transfer of Wilson was not effective until June 13, a date subsequent to the payroll eligibility date. As stated by Respondent:
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