Farmers Rendering Co.

National Labor Relations Board - Board Decisions

Apr 9, 1956

115 N.L.R.B. 1014 (N.L.R.B. 1956)

1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representation of employees of the Employer within the meaning of
Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. There is no dispute, and we find, that the following groups of
employees constitute units appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act:
(a) Case No. 14-RC-2919
All production and maintenance employees at the Employer's
Barnhart, Missouri, plant, excluding office clerical employees, guards,
professional employees, and supervisors as defined in the Act.
(b) Case No. 14-RC-0922
All production and maintenance employees at the Employer's St.
Louis, Missouri, plant, excluding office clerical employees, professional
employees, and supervisors as defined in the Act.
[Text of Direction of Elections omitted from publication.]
Farmers Rendering Company and International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers , of Amer-
ica, General Drivers, Warehousemen and Helpers, Local No.
21, AFL-CIO,' Petitioner. Case No. 17-1C-92027. April 9, 1956
DECISION AND CERTIFICATION OF REPRESENTATIVES
Pursuant to a stipulation for certification upon consent election, an
election by secret ballot was conducted on June 23, 1955, under the
supervision of the Regional Director for the Seventeenth Region of
the National Labor Relations Board among the employees in the
unit herein found appropriate. Following the election, the parties
were furnished a tally of ballots. The tally shows that, of the ap-
proximately 16 eligible voters, 16 cast ballots, of which 7 were for the
Petitioner, 5 were cast against the Petitioner, and 4 ballots were chal-
lenged.
As the challenged ballots were sufficient in number to affect the re-
salts of the election, the Regional Director, pursuant to the Board's
Rules and Regulations , conducted an investigation and, on February
21, 1956, issued and served upon the parties a report on challenged
ballots. On March 1, 1956, the Employer filed exceptions to the Re-
gional Director's report. Upon the basis of the entire record in this
case, the Board makes the following:
3 The AFL and CIO having merged , we are amending the identification of the Union's
affiliation.
115 NLRB No. 158.
FARMERS RENDERING COMPANY 1015
FINDINGS OF FACT
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act.
4. In accord with the agreement of the parties, the following em-
ployees of the Employer constitute a unit appropriate for purposes
of collective bargaining within the meaning of Section 9 (b) of the
Act : All truckdrivers and plant men at the Employer's plant in
Macon, Missouri, excluding all office clerical employees, professional
employees, guards, and supervisors as defined in the Act.
In his report, the Regional Director recommended that the chal-
lenges to the ballots of Burl Miller and Richard Dawson be sustained.
As no exceptions to the Regional Director's report have been filed with
respect to the foregoing challenged ballots, we hereby adopt the Re-
gional Director's recommendation.
The Regional Director found that Nova Briggs, whose ballot was
challenged, started to work for the Employer on or about May 23,1955.
Sometime earlier, Bill Briggs, working for the Employer as a dead
stock truckdriver, learned that he would have to undergo medical
treatment. He discussed the impending medical treatment with Sloan,
an official of the Employer, and requested permission to let Nova
Briggs handle his work while he was undergoing such medical treat-
ment. Sloan states that he agreecl'to this and, in substance, added that
if Nova Briggs turned out to be "a good man" there were other terri-
tories 'in which Nova Briggs could be used, and that the Employer
would be glad to consider Nova Briggs for such employment after
Bill Briggs recovered. Concerning this matter, Bill Briggs quotes
Sloan as saying, "I want a good man and if you don't happen to
come back, he gets your job, and if you do come back, the first opening
on the trucks, Nova gets it." On the other hand, Nova Briggs, him-
self, states that Bill Briggs advised him that the work would be tem-
porary, and he quotes the plant manager as telling him that the job
"will just be temporary while Bill is off." The plant manager confirms
this. In addition, on June 15, 1955, the Employer advised the Re-
gional Office that Nova Briggs was "a temporary truckdriver, while
Billy Briggs is in the hospital. It is our understanding that Billy
Briggs will not be back for 3 weeks."
Bill Briggs voted in the election without challenge, and sometime
later, on or about July 15, he returned to active employment with the
1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employer, but did not resume work on his former route. Nova
Briggs has continued to perform the duties of Bill Briggs on the route
handled by the latter before his medical treatments.- -The Regional
Director concluded, from the foregoing, that Nova Briggs was a tem-
porary substitute for a sick employee with no reasonable expectation
of permanent employment and that therefore he was not an eligible
voter in the election. Accordingly, he recommended that the challenge
to his ballot be sustained.
The Employer takes exception to this finding of the Regional Di-
rector, contending that Nova Briggs had a reasonable expectation of
permanent employment, and his ballot should therefore be opened and
counted. To support its contention, the Employer states that Nova
Briggs was seeking permanent employment before May 23, 1955,
having filed an application for employment in a "steady job" on April,
20, 1955; that Sloan had in mind, when arrangements were made for
the employment of Nova Briggs and when he promised Bill Briggs that
Nova would get the first truckdriver's job that was open, the fact that
during the past 2 years there have been several openings among its
truck routes ; 'and finally, that Nova Briggs' continued employment
subsequent to the election is probative evidence "of the substance and
reality of the expectations expressed, understood, and implied" at the
time of the above hiring arrangement.
The Board has frequently held that the eligibility of voters in Board
elections is to be determined on the basis of employment status of
each voter during the'eligibility period and at the time of the election.'
Accordingly, any change in employment status subsequent to the elec-
tion is immaterial with regard to eligibility in an election. In the
instant case, there is no evidence showing that Nova Briggs' employ-
ment status changed in any way between May 23, 1955, the day he first
performed the job duties of Bill Briggs, and June 23, 1955, the date of
the election, and therefore we agree with the Regional Director that
his status remained the same on the date of the election as it was when
he first started to work.
An examination of the facts herein convinces us, as it did the Re-
gional Director, that Nova Briggs upon going to work for the Em-
ployer on May 23, 1955, acquired the status of a temporary substitute
for a sick employee who was expected to return to work shortly. .In
this regard we note that, although Sloan may have told employee
Bill Briggs that Nova Briggs would be considered for or given other
employment after the former returned to work, it does not appear that
Sloan 'ever told this to Nova Briggs himself. In fact, Bill Briggs
9 Gulf States Asphalt Company, 106 NLRB 1212 ; Luckenbach Steamship Company, Inc.,
100 NLRB 1301 ; Reidbord Bros. Co., 99 NLRB 127; Grede Foundrses, Inc., 76 NLRB 1246.
See also Barry Controls , Incorporated, 113 NLRB 26.
FARMERS RENDERING COMPANY 1017
advised Nova Briggs only that the work would be temporary. Fur-
ther, the plant manager admitted that he, too, advised Nova Briggs
that the job "will just be temporary while Bill is off." In addition,
prior to the election, the Employer wrote the Board's office that Nova
Briggs was a temporary truckdriver while Bill Briggs was in the
hospital for 3 weeks. Finally, we also note that the Employer, as
^i ell as the Board agent, challenged the ballot of Nova Briggs and the
Employer did not withdraw its challenge to this ballot until the day
after the election results were determined.3
In view of the foregoing, we cannot find, as the Employer would
have us find, that Nova Briggs was a, temporary employee whose tenure
of employment was uncertain and therefore was eligible to vote under
the-rule set' forth iri Personal Products Corporation, 114 NLRB 959.
Indeed, the Employer notified the Board office shortly before the elec-
tion that Bill Briggs would be absent for only 3 weeks. Therefore
Nova Briggs' tenure was not uncertain. Nor are we able to find that,
at the date of the election, he had a reasonable expectation of per-
manent employment. Instead, we find, on the basis of the entire
record, that Nova Briggs, during the eligibility period and at the time
of the election, was a temporary substitute for a sick employee with
no reasonable expectation of permanent employment and was not an
eligible voter in the election.' Accordingly, we shall sustain the
challenge to his ballot.
In view of his findings on 3 of the 4 challenged ballots, the Regional
Director found it unnecessary to resolve the supervisory issue raised
by the remaining challenged ballot. As we have adopted the Re-
gional,Director's recommendations sustaining the challenges to three
ballots, we agree that the remaining challenged ballot cannot affect
the results of the election.
As the tally of ballots shows that a majority of the ballots were
cast for the Petitioner, we shall, as recommended by the Regional Di-
rector, certify that labor organization as the collective-bargaining
representative of the employees in the unit hereinabove found to be
appropriate.
[The Board certified International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, General Drivers,
Warehousemen and Helpers, Local No. 21, AFL-CIO, as the desig-
nated collective-bargaining representative of the employees of the
Employer in the appropriate unit described in paragraph 4, above.]
a The tally of ballots was served on the parties the day of the election.
a Fall River Gas Works Company, 82 NLRB 962; Rounds and Kilpatrick Lumber Com-
pany, 89 NLRB 1643; Hou8ton and North Texas Motor Freight Lines , Inc., 88 NLRB 1462,
enfd . as modified , 193 F . 2d 394 ( C. A. 5), cert. denied 343 U. S 934.