FasChek #6

National Labor Relations Board - Board Decisions

Aug 22, 1969

178 N.L.R.B. 206 (N.L.R.B. 1969)

206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Supermarket of Dunbar , Inc., d/b/a FasChek #6 and
Food Store Employees Union , Local No. 347,
Amalgamated Meat Cutters and Butcher
Workmen of North America , AFL-CIO. Case
9-RC-7808
August 22, 1969
DECISION AND DIRECTION
BY MEMBERS FANNING, BROWN, AND ZAGORIA
Pursuant to a stipulation for certification upon
consent election, an election by secret ballot was
conducted on July 29, 1968, under the direction and
supervision of the Regional Director for Region 9,
among the employees in the unit described below.
At the conclusion of the election, the parties were
furnished with a tally of ballots which showed that
of the approximately 22 eligible voters, 21 cast
ballots, of which 9 were for the Petitioner, 2 against
the Petitioner, and 10 were challenged. The
challenged ballots are sufficient in number to affect
the results of the election. No objections to conduct
affecting the results of the election were filed by
either party.
In accordance with the National Labor Relations
Board Rules and Regulations, the Regional Director
conducted an investigation and, on December 23,
1968, issued and duly served upon the parties his
report on election, challenged ballots, order
transferring case to the Board, order directing
hearing and notice of hearing. In his report, the
Regional Director stated that, in view of the
conflicting evidence and positions of the parties, he
was of the opinion that substantial and material
issues of fact had been raised concerning the
employment status of James Beheler, June
Claymore, Frances Coffman, Scott Johnson,
Kenneth Martin, James Ratcliff, Janice L. Booth,
Betty L. Janney, Curtis Duff, and Frank Pruden
which could best be resolved by the conduct of a
hearing.
Pursuant to notice, a hearing was held on
February 27 and 28, March 11, 12, 13, 18, 19, 20,
21, and 24, 1969, before Hearing Officer Eugene M.
Rothchild. The Hearing Officer's rulings made at
the hearing are free from prejudicial error and are
hereby affirmed.' In his report the Hearing Officer
recommended that the challenges to the ballots of
James Beheler, Janice L. Booth, June Claymore,
Frances Coffman, Curtis Duff, Betty L. Janney,
Scott Johnson, Kenneth Martin, James Ratcliff, and
Frank Pruden be overruled, and that the Board
direct that such ballots be opened and counted and a
revised tally of ballots be issued by the Regional
Director. Thereafter, the Petitioner filed timely
exceptions to the Hearing Officer's Report and a
supporting brief, and the Employer filed an
answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
Upon the entire record in this case, the Board
finds:
1. The Employer is engaged in commerce within
the meaning of the Act, and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The Union is a labor organization claiming to
represent certain employees of the Employer.
3. A question affecting commerce exists
concerning the representation of the employees of
the Employer within the meaning of Section 9(c)(1)
and Section 2(6) and (7) of the Act.
4. The parties stipulated, and we find, that the
following employees constitute a unit appropriate
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All employees of the Employer's retail outlet
located at 1326 Ohio Avenue, Dunbar, West
Virginia, excluding supervisors, guards, clerical
and professional employees as defined in the Act.
5. The Board has considered the Hearing Officer's
report, the Petitioner's exceptions and brief, the
Employer's brief, and the entire record in this case,
and makes the following findings.
In its central exception the Petitioner contends
that 8 of the 10 challengees2 were hired for the sole
purpose of voting in the election and therefore
should be excluded from the unit as temporary
employees. Although it is true that the Employer's
admitted anti-union animus, its employment of
friends and relatives, taken together with the fact
that five' of the aforesaid eight employees quit their
jobs shortly after the election, raise perhaps a
suspicion that the Employer was deliberately
attempting to pad the unit with antiunion votes, it is
also true that the Employer introduced credible
evidence indicating legitimate business reasons for
the hiring of the additional unit employees. The
Employer had only taken over the business the
month before the election, and almost immediately
had increased the number of hours which the store
was open each day and each week, which
'Petitioner' s Request for Special Permission to Appeal to the Board filed
pursuant to 102 20 of the Board's Rules and Regulations regarding the
Hearing Officer's revocation of certain subpoenas duces tecum requesting
the production of voluminous records of various corporations , only one of
which was directly involved in this case, is hereby denied as being without
merit We note that subsequent to the time that Petitioner filed its special
request the Hearing Officer did order the production of certain relevant
items previously sought by Petitioner and that the Employer also
voluntarily produced other relevant material previously requested We
believe that the remainder of the records sought by Petitioner are not
relevant or material to the issues in this case and that the Hearing Officer
correctly revoked or partially revoked the subpoenas in question.
'James Beheler, June Claymore , Frances Coffman, Curtis Duff , Betty L
Janney, Scott Johnson, Kenneth Martin, and James Ratcliff
'June Claymore, Frances Coffman, Curtis Duff, Kenneth Martin, and
James Ratcliff
178 NLRB No. 34
SUPERMARKET OF DUNBAR, INC.
necessitated the hiring of an additional number of
part-time employees. Moreover, each of the five
employees who quit shortly after the election
testified to a reasonable and legitimate demand
upon their time which foreclosed the continuation of
their part-time work for the Employer. In these
circumstances, we find that the sudden increase of
the number of employees in the voting unit was
necessitated by legitimate business demands.
Accordingly, we find that this exception of the
Petitioner is without merit.
The Hearing Officer finds that 8 of the 10 ballots
involved, namely those of James Beheler, June
Claymore, Frances Coffman, Curtis Duff, Betty L.
Janney, Scott Johnson, Kenneth Martin, and James
Ratcliff, were challenged on the ground that these
employees were not employed at the time of the
eligibility date, July 27, 1969. The Petitioner's
witnesses supporting this contention each testified
that he did not personally see one or more of these
challenged part-time employees in the store until a
given date subsequent to the eligibility date. In each
instance, however, the witness had periods of
scheduled working hours which were not
co-extensive with the full hours of operation of the
store, and in each instance the witness had l or 2
days off a week during the period of time in
question. In any event, such testimony conflicts
directly with the credited testimony of each of the
challengees and with the business records of the
Employer, including timecards, payroll ledger
sheets, and cancelled checks for the employees in
issue, all of which indicated that the eight above
mentioned challengees were employed prior to the
eligibility date of July 27. Accordingly, we agree
with the Hearing Officer's findings that the
challenges based on the ground that the eight
employees were not employed at the time of the
eligibility date be overruled.
Of the above 8 challenged ballots those of Frances
Coffman, Curtis Duff, and Betty L. Janney were
also challenged on other grounds. The Petitioner
contended that Coffman, the sister of the
Employer's president and majority stockholder,
should be excluded from the unit on the ground of
this close relationship. Duff was alleged to be a
supervisor, and Janney was alleged to be an
excluded clerical employee. In addition to these
three specific challenges , Petitioner also contended
that Janice L. Booth, daughter of the Employer's
manager , should be excluded from the unit based on
this close family relationship, and, finally, that
Frank Pruden should be excluded on the ground
that he was a supervisor.
We agree with the Hearing Officer that neither
Booth nor Coffman should be excluded from the
unit based on their family relationship.' Neither
received special privileges or benefits by virtue of
such relationship. Moreover, Booth was the
daughter of the Company' s manager rather than of
an officer or shareholder of the corporation, and
207
Coffman was a sister and not the spouse or child of
the president and majority stockholder of the
Employer. Accordingly, and in concurrence with the
recommendation of the Hearing Officer, we overrule
the challenges to the ballots of Booth and Coffman.'
We also agree with the Hearing Officer that
although Janney did engage in clerical work, she
was transferred into the unit as a cashier prior to
the voting eligibility date. We find no reason to
exclude her from the voting unit and, therefore,
overrule the challenge to her ballot.
Finally, although we agree with the Hearing
Officer's finding that Curtis Duff had none of the
statutory indicia of supervisory authority and was
not a supervisor within the meaning of Section 2(11)
of the Act and, accordingly, overrule Petitioner's
challenge in this regard, we cannot agree with the
Hearing Officer's finding that Frank Pruden was not
a supervisor within the meaning of the Act. Pruden
was salaried and did not punch a time clock as did
the other grocery employees who were paid by the
hour. During the period of July and August 1968,
Pruden was in full charge of the store during the
store manager's absence. He regularly prepared
work schedules, and at all times responsibly directed
10 or 12 employees in the grocery department.
Moreover, and according to the testimony of the
Employer's president, Tate, Pruden made effective
recommendations as to discipline or discharge, and
he exercised his own independent judgment in
carrying out his duties. Based upon the foregoing we
sustain the challenge to the ballot of Frank Pruden
and exclude him from the unit.
In view of the above, we find that on the
eligibility date and the date of the election James
Beheler, Janice L. Booth, June Claymore, Frances
Coffman, Curtis Duff, Betty L. Janney, Scott
Johnson, Kenneth Martin, and James Ratcliff were
employed within the appropriate unit and were
eligible to vote in the election, and we shall direct
that the Regional Director open and count their
challenged ballots and prepare and cause to be
served upon the parties a revised tally of ballots.
DIRECTION
It is hereby directed that the Regional Director
for Region 9 shall, pursuant to the Rules and
Regulations of the Board, within 10 days from the
date of this Decision, open and count the ballots of
James Beheler, Janice L. Booth, June Claymore,
Frances Coffman, Curtis Duff, Betty L. Janney,
Scott Johnson, Kenneth Martin, and James Ratcliff,
and prepare and cause to be served upon the parties
a revised tally of ballots, including therein the count
of the above-mentioned ballots, and issue the
appropriate certification.
'Foam Rubber City 2 of Florida, Inc.. 167 NLRB No. 81.
'Member Brown would exclude Coffman and Booth from the unit
because of their family relationships with Company officials. Browne and
Ruford, Engineers and Surveyors , 145 NLRB 765.