Bonanno Family Foods, Inc.

National Labor Relations Board - Board Decisions

Jun 28, 1977

230 N.L.R.B. 555 (N.L.R.B. 1977)

BONANNO FAMILY FOODS, INC.
Bonanno Family Foods, Inc. and Amalgamated Meat
Cutters & Butcher Workmen of North America,
District Union Local 1, AFL-CIO, Petitioner.
Case 3-RC-6577
June 28, 1977
DECISION AND DIRECTION
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
Pursuant to a Stipulation for Certification Upon
Consent Election, an election by secret ballot was
conducted on May 20, 1976, under the direction and
supervision of the Regional Director for Region 3,
within an appropriate unit of the Employer's employ-
ees as agreed to by the parties. Upon conclusion of
the balloting, the parties were furnished a tally of
ballots which showed that, of the six eligible voters,
two ballots were cast for, and two against, the
Petitioner. There were two challenged ballots, a
number sufficient to affect the election's results. No
objections were filed by either party.
In accordance with the National Labor Relations
Board Rules and Regulations, Series 8, as amended,
the Regional Director investigated the challenges
and, on June 23, 1976, issued his report on challenges
and order directing hearing. The Regional Director
found that the challenge to the ballot of Barbara
Simonelli, whose discharge prior to the election was
the subject of an unfair labor practice charge in Case
3-CA-6578, could best be resolved by a formal
hearing. Accordingly, he recommended that a hear-
ing be held before a duly designated hearing officer.
He further recommended that the hearing officer
designated to conduct such hearing prepare and
serve on the parties a report containing credibility
resolutions, findings of fact, and recommendations to
the Board as to the disposition of the challenge to the
ballot of Barbara Simonelli.
As to the other challenged ballot, the Regional
Director found that Susan Benson is a regular part-
time employee of the meat department and recom-
mended that the challenge to her ballot be overruled.
He also recommended, however, that her ballot not
be opened and counted until the challenge to the
ballot of Simonelli was resolved.
Thereafter, the Petitioner filed exceptions to the
Regional Director's report and a brief in support
thereof, and the Employer filed an answering brief in
opposition to the exceptions.
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.
230 NLRB No. 74
The Board has considered the Regional Director's
report in light of the exceptions and briefs and has
decided to affirm his findings, conclusions, and
recommendations only to the extent consistent
herewith.
1. Susan Benson
The Regional Director found that Benson is a
regular part-time employee in the meat department
whose duties and working conditions are similar to
those of other meat department employees. We
disagree. For the reasons set forth below, we find
that Benson is a dual-function employee who does
not work a sufficient number of hours in the meat
department to warrant her inclusion in that unit. The
facts uncovered by the Regional Director's investiga-
tion of Benson's challenge are not materially in
dispute and were described by him as follows:
Benson was hired to work part time in the
Employer's delicatessen department approximately I
year prior to the election herein. In January 1976, she
began working in the meat department as a meat-
wrapper on a regular schedule. Benson is scheduled
to work in the meat department from 8 a.m. to 11:30
a.m. each Sunday. She also fills in at other times as
needed. Because the meat manager does not work
Sundays, the two meatcutters work alternate Sun-
days and Benson receives her work directions from
them. In addition to wrapping meat, Benson cleans
the meat case each Sunday, which takes about I to 1-
1/2 hours.
During the last quarter prior to the eligibility cutoff
date, Benson averaged just under 3-1/2 hours per
week in the meat department. During the same
period of time, she averaged approximately 22 hours
per week in the produce and "deli" departments
where she is also scheduled to work.
Benson's rate of pay is the same regardless of the
department in which she is working. As a part-time
employee, she also receives the same benefits that
other part-time employees receive. Benson's hourly
wage rate is approximately 75 percent of that paid to
the other part-time meatwrapper, who works approx-
imately 25 hours per week, and about 60 percent of
the rate paid to the full-time meatwrapper. Both of
these wrappers, however, have at least I year more
experience in the meat department than does
Benson.
It is clear from the foregoing that Benson is a
regular part-time employee of the Employer who
works a total of about 25 hours per week, of which
more than 80 percent is spent in the produce and
"deli" departments and less than 20 percent in the
meat department. Since Benson is thus a dual-
555
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
function employee, we must determine, under the
principles of Berea 1 and Ocala,2 whether she works a
sufficient number of hours in the appropriate unit-
i.e., the meat department-to share a genuine
community of interest with the employees in that
unit. The Regional Director found that, during the
calendar quarter just prior to the eligibility cutoff
date, Benson averaged just under 3-1/2 hours per
week in the meat department. In our judgment
Benson works an insufficient number of hours in the
meat department to demonstrate that she shares a
substantial interest in the wages, hours, and working
conditions of employees in that unit. Accordingly, we
shall exclude Benson from the unit and sustain the
challenge to her ballot.
2. Barbara Simonelli
As stated, the Regional Director found that the
challenge to the ballot of Simonelli, whose discharge
before the election was charged to be an unfair labor
practice in Case 3-CA-6578, raised substantial issues
of fact which could best be resolved by a hearing. He
therefore recommended that the issue of Simonelli's
eligibility be resolved by a formal hearing. No
exceptions were filed to this recommendation.
We take official notice of the following events
involving the charge in Case 3-CA-6578 which
transpired after the Regional Director's report on
challenges issued:
On July 7, 1976, the Regional Director issued a
complaint and notice of hearing in Case 3-CA-6578
alleging that the discharge of Simonelli violated
Section 8(a)(3) and (1) of the Act. On the same date,
the Regional Director also issued an order consoli-
dating cases in which he ordered that the unfair labor
practice case be consolidated with Case 3-RC-6577
"for the purpose of hearing, ruling, and decision by
an Administrative Law Judge on the status of
Barbara Simonelli, and that thereafter Case No. 3-
RC-6577 be transferred to and continued before the
Board in Washington, D.C...." Thereafter, a
hearing was held before Administrative Law Judge
Elbert D. Gadsden on September 7, 1976.
On January 28, 1977, the Administrative Law
Judge issued his Decision in the consolidated
proceeding, finding that Respondent, Bonanno
Family Foods, Inc., had violated Section 8(a)(3) and
(1) of the Act by discharging Simonelli, and
recommending that usual remedial order, including
reinstatement with backpay. In an erratum, dated
February 22, 1977, the Administrative Law Judge
further recommended, inter alia, that the challenge to
IBerea Publishing Company, 140 NLRB 516, 519 (1963).
2 The Ocala Star Banner, 97 NLRB 384(1951).
3 No objections were filed by either party to the conduct of the election
or to conduct affecting the results of the election.
Simonelli's ballot be overruled and that Case 3-RC-
6577 be remanded to the Regional Director for the
purpose of opening and counting her ballot. The
Administrative Law Judge additionally recommend-
ed that, if the revised tally of ballots shows that the
Petitioner received a majority of the votes cast, the
Petitioner be certified as the bargaining representa-
tive of the employees in the appropriate unit.
However, if the revised tally shows that the Petitioner
did not receive a majority of the votes cast, he
recommended that the election be set aside and that
a second election be directed.3
No exceptions were filed to the Administrative
Law Judge's Decision and the Board, on June 20,
1977, issued an Order adopting pro forma his
findings, conclusions, and recommendations with
respect to Case 3-CA-6578. 4 However, notwith-
standing the absence of exceptions thereto, the Board
did not adopt that portion of the Administrative Law
Judge's recommendations with respect to the disposi-
tion of the representation proceeding on the grounds
that such recommendations were contrary to, and in
excess of, the authority granted him in the order
consolidating cases.
The Board having adopted the Administrative Law
Judge's finding that Simonelli was unlawfully dis-
charged prior to the election in violation of Section
8(a)(3) and (1) of the Act, we find that she was
eligible to vote in the election herein. Accordingly,
we overrule the challenge to her ballot.
As we have sustained the challenge to the ballot of
Susan Benson and overruled the challenge to the
ballot of Barbara Simonelli, we shall remand this
proceeding to the Regional Director for the purpose
of opening and counting the ballot of Simonelli,
preparing and serving on the parties a revised tally of
ballots, and, thereafter, issuing the appropriate
certification.
DIRECTION
It is hereby directed that the Regional Director for
Region 3 shall, pursuant to the Board's Rules and
Regulations, Series 8, as amended, within 10 days
from the date of this Decision and Direction, open
and count the ballot of Barbara Simonelli and,
thereafter, prepare and cause to be served on the
parties a revised tally of ballots.
IT IS HEREBY FURTHER DIRECTED that the Regional
Director shall, thereafter, issue and cause to be
served on the parties the appropriate certification.
IT IS HEREBY FURTHER DIRECTED that the instant
proceeding be, and it hereby is, remanded to the
4 The Board's Order does not appear in the published volumes of the
Board's decisions.
556
BONANNO FAMILY FOODS, INC. 557
Regional Director for Region 3 for the purpose of
taking the actions set forth above.