Esten Dyeing & Finishing Co., Inc.

National Labor Relations Board - Board Decisions

Jul 18, 1975

219 N.L.R.B. 286 (N.L.R.B. 1975)

286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Esten Dyeing & Finishing Co., Inc. and Textile Work-
ers Union of America , AFL-CIO, CLC, Petitioner.
Case 1-RC-13289
July 18, 1975
DECISION AND DIRECTION
BY MEMBERS FANNING, JENKINS , AND KENNEDY
Pursuant to a Stipulation for Certification Upon
Consent Election approved on May 29, 1974, an elec-
tion by secret ballot was conducted on June 20, 1974,
under the direction and supervision of the Acting
Regional Director for Region 1 among the employ-
ees in the stipulated unit. At the conclusion of the
election the parties were furnished a tally of ballots
which showed that of approximately 43 eligible vot-
ers 45 cast ballots, of which 22 were for and 21
against the Petitioner. There were two challenged
ballots. The challenged ballots are sufficient to affect
the results of the election.
Pursuant to Section 102.69(c) of the Board's Rules
and Regulations, Series 8 , as amended, the Acting
Regional Director conducted an investigation and on
August 23, 1974, issued his report on challenged bal-
lots in which he recommended that the challenges to
the ballots of Josephine DiCaprio and Elvira Coia be
sustained and that the Union be certified. Thereafter,
the Employer filed timely exceptions to the Acting
Regional Director's report.
On November 20, 1974, the Board issued a Deci-
sion and Order Directing Hearing, in which the Re-
gional Director for Region 1 was directed to cause a
hearing to be conducted with respect to the issues
raised by the above challenges. Pursuant to the
Board's Order, a hearing was held in Providence,
Rhode Island, on December 4, 1974. On January 9,
1975, a Hearing Officer's report on challenged bal-
lots issued, in which it was recommended that the
challenges to the ballots of Josephine DiCaprio and
Elvira Coia be sustained and certification of repre-
sentative be issued. The Employer thereafter filed
timely exceptions to the Hearing Officer's report.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Upon the entire record in the case, the Board
makes the following findings of fact:
1. The Employer is engaged in commerce within
the meaning of the Act.
2. The labor organization involved claims to rep-
resent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of employees of the Employer
within the meaning of Sections 9(c)(1) and 2(6) and
(7) of the Act.
4. The parties stipulated and we find that the fol-
lowing employees constitute a unit appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
All production and maintenance employees em-
ployed at the Employer's Esten Avenue, Paw-
tucket, Rhode Island, plant, but excluding all
other employees, all office and plant clerical em-
ployees, administrative and executive and pro-
fessional employees, and supervisors as defined
in the Act.
5. The Board has considered the Hearing Officer's
report on challenged ballots, the Employer's excep-
tions and brief, the Petitioner's answering brief, and
the entire record in this case, and hereby adopts the
Hearing Officer's findings, conclusions, and recom-
mendations only to the extent consistent herewith.
The Employer contends that the evidence is insuf-
ficient to find that DiCaprio is a supervisor, or that
Coia is a plant clerical. The Employer also contends
that, regardless of what the evidence shows, the par-
ties agreed to include both individuals in the unit
before signing the stipulation in order to expedite the
holding of the election, and that the Board should
find that such an agreement is binding, in accor-
dance with the holding in Banner Bedding, Inc.'
We find the Employer's argument unpersuasive in
the circumstances of this case. In Banner, even
though an oral prestipulation agreement was found
to be binding on the parties with respect to a specific
individual's exclusion from the unit, the language of
the decision carefully limits those situations wherein
the Board will honor an exception to the established
rule requiring a written agreement.' The conditions
under which such agreements will be honored by the
Board require complete accord by the parties as to
the existence of the agreement, as well as its terms,
and an understanding that the prestipulation agree-
ment forecloses postelection litigation of issues which
could have been presented prior to the election but
which the parties chose to forego in order to obtain
the early scheduling of an election. Specifically left
out of the holding in Banner was the question of the
validity of oral agreements with respect to statutory
exclusions.'
214 NLRB No 139 (1974).
2 Norris-Thermador Corporation, 119 NLRB 1301 (1958).
7
For the reason stated in his dissent in Banner Bedding, Member Kenne-
dy would not consider any oral preelection agreement with respect to issues
of eligibility as a definitive resolution of such issues He would honor as
final and binding only a written agreement signed by the parties which
resolves issues of eligibility Norris-Thermador Corporation, supra Accord-
219 NLRB No. 58
ESTEN DYEING AND FINISHING CO., INC.
We find that the Employer's exceptions to the
Hearing Officer's report recommending sustaining
the Petitioner's challenge to the ballot of DiCaprio to
be without merit. The Petitioner's challenge raised a
statutory issue , i.e., DiCaprio's supervisory status un-
der Section 2(11) of the Act. Our decision in Banner
is not to be read as precluding a challenge based on a
statutory exclusion. Nor do we find merit in the
Employer's exceptions to the Hearing Officer's ruling
with respect to Coia's ballot. Unlike the DiCaprio
challenge, the challenge to Coia's ballot does not
raise a statutory issue , but we note that the Employer
did not raise the Banner contention before the Re-
gional Director during the postelection investigation
of the challenge to her ballot. We further note that -at
no time until after the Hearing Officer's report issued
did the Employer raise the Banner issue. We are
therefore persuaded that there was, in fact, no firm
and binding agreement between the parties as con-
templated in our decision in Banner. Having con-
cluded that the challenges to the ballots of DiCaprio
and Coia are properly before us for resolution, we
shall resolve these challenged ballots in accordance
with established Board policy.
The record shows that DiCaprio does not have au-
thority to hire or fire, is hourly paid, punches a time-
clock and, according to her own testimony, spends
most of her time doing production work in the same
manner as the other approximately 6 to 10 employees
in the winding department. As part of her duties she
brings new work from another department, and re-
cords and distributes it. All of these duties take up
less than 1 hour of her 8-hour day. Although Di-
Caprio's supervisor asked her to tell the other em-
ployees in the department to get back to work if they
were not keeping busy, she does not have the author-
ity to impose any disciplinary measures on other em-
ingly, he finds it unnecessary to reach the issues as to whether there was an
oral agreement between the parties with respect to the eligibility of Di-
Caprio and Coia.
287
ployees, nor has she ever recommended such action
be taken. Finally, the fact that her wages are 10 per-
cent higher than the other employees in the depart-
ment is readily explainable in tems of her greater ten-
ure and experience.
Accordingly, we find that Josephine DiCaprio is
not a supervisor within the meaning of Section 2(11)
of the Act and shall direct the Regional Director to
open and count her ballot.
With respect to Elvira Coia's alleged status as a
plant clerical, the record shows, and the Hearing Of-
ficer found, that her duties consist essentially of the
following: receiving materials; moving webs to their
proper location; keeping inventories; dispensing the
webs to the dyehouse after picking up the written
orders from the office; cutting sample swatches;
measuring the rolls; and following up the work in the
dyehouse. Furthermore, the record shows that em-
ployee Tony Melo, who works with Coia, does most
of the physical work involved with her duties, leaving
her essentially only the stock control function as her
primary duty.
We find, therefore, in accordance with the Hearing
Officer, that Elvira Coia is a plant clerical and is not
within the appropriate unit, and sustain Petitioner's
challenge to her ballot.
DIRECTION
It is hereby directed that as part of the investiga-
tion to ascertain representatives for the purpose of
collective bargaining with the Employer, the Region-
al Director for Region 1 shall, pursuant to the
Board's Rules and Regulations, within 10 days from
the date of this Decision and Direction open and
count the ballot of Josephine DiCaprio, the challenge
to which has been overruled herein, and thereafter
prepare and cause to be served on the parties a re-
vised tally of ballots, including therein the count of
said challenged ballot on the basis of which he shall
issue the appropriate certification.