F. H. Vahlsing, Inc.

National Labor Relations Board - Board Decisions

Feb 19, 1957

117 N.L.R.B. 402 (N.L.R.B. 1957)

402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
& Co.) at Milwaukee, Wisconsin, in unit b, and that this labor organ-
ization is not the exclusive representative of the employees in this unit.]
[The Board directed that the Regional Director for the Thirteenth
Region shall within ten (10) days from the date of this Direction,
open and count the ballots of the persons whose names appear on the
Appendix, and serve upon the parties a revised tally of ballots.]
MEMBER MURDOCK took no part in the consideration of the above
Supplemental Decision, Certification of Results of Election, and
Direction.
APPENDIX
(Office clerical employees-Unit a)
Dorothy Tank
Wilma McHugh
Joyce Michalek
Mary Haro
Joseph Farago
Anna Strunk
Gerald Helwig
Lorene Keenan
Delores Eichman
Joan Busby
Pearl Krantz
Tom Powers
William Wustrack
Ruth Hankin
Margaret Albert
F. H. Vahlsing , Inc. and Local 424, Packing of Grain, Fertilizers
and Processors of Allied Food Industries, International Broth-
erhood of Teamsters , Chauffeurs , Warehousemen and Helpers
of America, AFL-CIO, Petitioner . Case No. 2-RC-7294. Feb-
ruary 19, 1957
THIRD SUPPLEMENTAL DECISION, DIRECTION,
AND ORDER
On September 12, 1956, pursuant to a Second Supplemental De-
cision, Order, and Direction of Third Election issued by the Board
on June 8, 1956,1 an election by secret ballot was conducted in the
above-entitled proceeding under the direction and supervision of the
Regional Director for the Second Region in a unit described as "all
employees of the Employer at its Bridgehampton operations in Long
Island, New York, excluding clerical employees, guards, and super-
visors as defined in the Act." 2 At the conclusion of the election, the
parties were furnished a tally of ballots which showed that of ap-
proximately 30 eligible employees, 27 cast ballots, and that -all 2'(-,
Not reported in printed volumes of Board Decisions and Orders.
2 Although at the time of the original hearing in this case , the Employer's Bridgehampton
operations covered 3 separate locations in the State of New York-Bridgehampton , Matti-
tuck, and Orient Point-it appears that at the time of the third election , operations were
confined to the first two locations only.
117 NLRB No. 57.
F. II. VAHLSING, INC. 403
were challenged. No objections to conduct affecting the results' of
the election were filed by any of the parties within the time prescribed.
As the challenged ballots were sufficient'in number to affect the results
of the election, the Regional Director, pursuant to Section 102.61 of
the Board's Rules and Regulations, caused an investigation of the
challenges to be made, and on December 5, 1956, issued and duly served
upon the parties his "Report on Challenged Ballots." The Employer
thereafter filed timely "Exceptions to Report on Challenged Ballots,"
in which it contends in effect that there were no employees in the unit
at the time of the election and urges that all challenges be sustained.
The Regional Director's report discloses that of the 27 employees
who voted at the election, 14 were employed at Bridgehampton and the
remaining 13 at Mattituck, New York. Separate lists of employees
in each group appear respectively under schedules A and B, at-
tached to the Regional Director's report. As reported by the Regional
Director, the undisputed facts establish that the 14 employees listed
under schedule A, mentioned above, are members of a migrant crew
which works as a unit on a contract basis for various employers along
the eastern part of the United States during the harvest seasons, and
that they are recruited,,supervised, and paid by one Clifford and one
Mattie Grice, who the Regional Director found were independent
contractors. On the basis of this finding, the Regional Director rec-
ommended that the employees listed under schedule A be regarded
as the employees of Clifford and Mattie Grice rather than of the
instant Employer, and that in each case the challenges to their ballots
be sustained. The Employer has ,not excepted to the above findings
and recommendations of the Regional Director, and they are hereby
adopted. Accordingly, we hereby sustain the challenges to the ballots
of the following employees whose names appear on schedule A, at-
tached to th6 Regional Director's report: Yaricy Barrington, Grady
Bennett, Benny Brooks, Charles Davis, Albert Fogle, Clifford Grice,
Mattie Grice, Curtils Hills, Archie James, Otto Perl Mackey, Walter
Lee Mackey, Edward Perry, James Roberts, and Charley May Wright.
With respect to the 13 employees listed under schedule B, the
Employer contends that they are the employees of one Noah Seymour
who it asserts is also an independent contractor. At the time of the
formal hearing in this proceeding, the Employer contended that aside
from its shed foreman, there were 4 or 5 regular employees on its
permanent payroll and that these included Noah Seymour. The Em=-
ployer now takes the position that,Seymour is- an independent con-
tractor who acquired that` status in July 1955, when he was designated
as a crew leader by the Employer,' that he is paid by the hundred-
8 The change in Seymour 's status occurred some 2 months after issuance of the hoard's
original Decision and Direction of Election on May 16, 1955, and about a month before
the election itself
404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
weight of potatoes graded and packed at the Employer's sheds and
that he is solely responsible for the recruitment, assignment, and pay-
ment of employees working under his direction 4 The Regional Di-
rector reports that "Seymour has been with Vahising for about
fifteen years on a year-round basis. He permanently resides in the
vicinity of the Vahising sheds. He has always had the duty of recruit-
ing, assigning and, supervising local residents who were employed, at
the Vahising sheds. He owns no trucks, buses or other equipment.
Seymour describes his present duties as being similar to those per-
formed prior to July 1955, except that at present he -gets a lump sum
check in payment for the work per formed by his' crew and, divides it
among the crew members, while previously he and the crew members
were paid on an hourly basis by Vahlsing." During the investigation,
neither Seymour nor his wife was able to produce any payroll records,
and both were equally vague as to the method of payment of Seymour's
crew members. Seymour and the Employer's manager both denied
that the former keeps any payroll records or that he makes the various
deductions or payments on account of State and Federal taxes required
of employers in general. The Regional Director further reported
that some employees in Seymour's crew asserted that they are paid by
the Employer's manager and that the latter maintains their payroll
records. The Employer's manager denies making or being in any way
responsible for such payments.
In view of the contradictions in the testimony regarding the exact
nature of the relationship existing between the Employer and Sey-
mour, the Regional Director recommended that a hearing be held to
consider additional evidence on the issue thus raised and to resolve
the question as to the real identity of the employees' employer. In
these circumstances, we adopt the Regional Director's recommenda-
tion that a hearing be held, but do so with the following modifications :
The question of whether the employees involved are on, the present
Employer's or on Seymour's payroll will appear to have. become' aca-
demic if, upon opening and counting the challenged 'ballots of these
employees, it is found that the Petitioner has lost the election. There-
fore, in the interest of avoiding unnecessary delay, we shall overrule
the challenges to the ballots of the 13 employees listed under schedule
B, direct that they be opened and counted and that the Regional Di-
rector thereafter issue a revised tally of ballots, and certify the results
of the election if the Petitioner has failed to receive a majority of the
votes cast. We shall further direct that if, on the other hand, it ap-
pears that the Petitioner has received a majority of the votes cast,
a hearing be held in accordance with the Regional Director's recom-
4 A substantially similar contention was made by'the Employer and rejected by,the Re-
gional Director following the fist' election The Board, in 114 NLRB 1451, declined to
pass upon this contention and set that election aside on independent grounds
INTERNATIONAL WOODWORKERS OF AMERICA 405
mendations, and that certification be withheld until such time as the
Board has passed upon the findings and conclusions of the hearing
officer designated for the purpose of conducting the hearing. We
shall further direct that in conjunction with such a hearing, the Re-
gional Director serve notice thereof upon Seymour, as a possible em-
ployer of the employees involved, as well as upon the parties to this
proceeding, thereby making it possible for the Petitioner, if victorious
at the election, thereafter to be certified as the bargaining representa-
tive of the employees sought, whether they ultimately be found to be
in the employ of the instant Employer or of Noah Seymour, as the case
may be.
[The Board directed that the Regional Director for the Second Re-
gion shall, within ten (10) days from the date of this Direction, open
and count the ballots of Walter Dozier, William Gaylord, George
Gholson, Thomas Jackson, Lilly Jefferson, Sylvester Jefferson, Rosa
Lamb, William Mullen, David Reed, Cora Seymour, Roosevelt Ward,
Oneil Wright and Jasper Etheridge, and serve upon the parties a re-
vised tally of ballots, and issue a certification of results.]
[The Board ordered that if the Petitioner has received a majority
of the votes cast, a hearing be held to determine the issues raised.]
[The Board further ordered that if a hearing is held, the hearing
officer shall serve upon the parties (including Noah Seymour) a report
containing resolutions of the credibility of witnesses, findings of fact,
and recommendations to the Board as to the disposition of the issues
raised at the hearing. Within ten (10) days of receipt of such report,
any party may file with the Board in Washington, D. C., an original
and six copies of exceptions, serve a copy upon each of the other
parties, and file a copy with the Regional Director. If no exceptions
are filed, the Board will adopt the hearing officer's recommendations.]
[The Board further ordered the above-entitled matter referred to
the Regional Director for the Second Region for disposition.]
MEMBER MIIRDOCK took no part in the consideration of the above
Third Supplemental Decision, Direction, and-Order.
International Woodworkers of America , AFL-CIO, Local Union
13-433 (Ralph L . Smith Lumber Company ) and Charles R.
Hatfield . Case No. 20-CB-408. February 00, 1957
DECISION AND ORDER
On January 30, 1956 , the Board issued an order in this case adopt-
ing the findings , conclusions , and recommendations of the Intermediate
Report of Trial Examiner Howard Myers , no statement of exceptions
117 NLRB No. 53.