Fast Food Merchandisers, Inc.

National Labor Relations Board - Board Decisions

May 4, 1979

242 N.L.R.B. 8 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fast Food Merchandisers, Inc. and Margaret Battle,
Petitioner and Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-CIO,
Local P-706. Case Il-RD-284
May 4, 1979
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
Pursuant to a Stipulation for Certification Upon
Consent Election approved by the Regional Director
for Region 11 of the National Labor Relations Board
on December 22, 1978, an election by secret ballot
was conducted in the above-entitled proceeding on
January 11, 1979, under the direction and supervision
of said Regional Director. Upon the conclusion of the
election, a tally of ballots was furnished the parties in
accordance with the Board's Rules and Regulations,
Series 8, as amended.
The tally of ballots shows that there were approxi-
mately 176 eligible voters and that 169 ballots were
cast, of which 80 votes were cast for, and 78 against,
the Union; 11 ballots were challenged. The chal-
lenged ballots are sufficient in number to affect the
results of the election.
On January 18, 1979, the Employer filed timely ob-
jections to conduct affecting the results of the elec-
tion. Pursuant to Section 102.69 of the Board's Rules
and Regulations, an investigation of the objections
and challenges was conducted under the direction
and supervision of the Regional Director and, on
March 2, 1979, he issued and duly served on the par-
ties his Report on Objections and Challenges. The
Regional Director recommended that the objections
be overruled in their entirety and that a hearing be
held for the purpose of resolving issues raised by the
11 challenged ballots. Thereafter, both the Employer
and the Union filed timely exceptions to the Regional
Director's report. The Employer excepts to the Re-
gional Director's recommendation that Objections 1
and 3 be overruled. The Union excepts to the recom-
mendation that a hearing be held on the 11 chal-
lenged ballots and contends that the challenges
should be sustained on the basis of the administrative
record.
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.
The Board has considered the Regional Director's
Report on Objections and Challenges, the exceptions
and briefs, and the entire record in this proceeding,
and has decided to adopt the Regional Director's rec-
ommendations only to the extent consistent here-
with.'
The Union challenged the ballots of 11 warehouse-
men, claiming that they were not members of the
unit. The Union contends that warehousemen have
been specifically excluded from the bargaining unit
by agreement of the parties since 1976. On the other
hand, both the Petitioner and the Employer contend
that the warehousemen's ballots should be opened
and counted because warehousemen enjoy a substan-
tial community of interest with the members of the
bargaining unit. The Employer further contends that
in the election agreement which was approved on De-
cember 22, 1978, the parties stipulated to a unit of all
production and maintenance employees, and that
warehousemen are encompassed by the phrase "pro-
duction and maintenance employees." Finally, the
Employer contends that the warehousemen whom the
Employer has agreed to exclude from the bargaining
unit since 1976 are warehousemen who work in a fa-
cility at the Employer's Rocky Mount, North Caro-
lina, complex which is separate and organizationally
unrelated to the facility where the I I warehousemen
in question work. The Regional Director recommend-
ed a hearing because, in his view, the "evidence pre-
sented by the parties is in conflict."
Contrary to the Regional Director, we find that the
challenges raise no issue requiring a hearing. In this
connection we note that it is established Board policy
that the unit appropriate in a decertification election
must be coextensive with either the certified or recog-
nized bargaining unit; hence, community-of-interest
factors which would be considered in making an ini-
tial appropriate unit determination are not relevant
herein. In the instant case, it is clear that warehouse-
men have been specifically excluded from the recog-
nized bargaining unit. Thus, the record includes a
February 1, 1976, agreement whereby the parties
agreed to exclude warehousemen and truckdrivers
form the bargaining unit and, consistent with this un-
derstanding, warehousemen were specifically ex-
cluded under the recognition clause of the most re-
cent collective-bargaining agreement.2
Finally, we note that, even if the unit stipulated
here of all "production and maintenance employees"
was construed, arguendo, as an agreement by the par-
ties to include warehousemen for purposes of the elec-
tion, we would not give effect to such an agreement.
i In the absence of exceptions thereto, we adopt, pro forma, the Regional
Director's recommendation that the issues raised by the Employer's Objec-
tion 2, and by the Employer's Objection "Other Acts and Conduct" be over-
ruled. We additionally adopt the Regional Director's recommendation that
Objections I and 3 be overruled.
2 In the face of this evidence, the Employer's assertion that the I ware-
housemen involved here are not the warehousemen it intended to exclude by
its agreement with the Union raises no issues warranting hearing.
242 NLRB No. 6
8
FAST FOOD MERCHANDISERS, INC.
As we have pointed out elsewhere, "whatever effect
given by the Board to stipulated units in representa-
tion elections, it would obviously frustrate the Board
policy of directing decertification elections in the ex-
isting bargaining unit to permit the parties to vary
that unit and participate in an election in a different
unit of their own choosing."3
Accordingly, as we have adopted the Regional Di-
rector's recommendation to overrule the Employer's
objections in their entirety and have decided to sus-
tain the challenges to the ballots of the 11 warehouse-
men based on the administrative record, and as the
tally of ballots shows that the Union has received a
majority of the valid votes cast, we shall certify the
Union as the exclusive bargaining representative of
the employees in the appropriate unit.
Brom Machine and Foundry Co., 227 NLRB 690 (1977).
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots have been cast for Amalgamated Meat Cut-
ters and Butcher Workmen of North America, AFL-
CIO, Local P-706, and that, pursuant to Section 9(a)
of the National Labor Relations Act, as amended, the
said labor organization is the exclusive representative
of all the employees in the following appropriate unit
for the purposes of collective bargaining in respect to
rates of pay, wages, hours of employment, or other
conditions of employment:
All production and maintenance employees at
the Employer's manufacturing facilities located
at 1233 N. Church Street, Rocky Mount, North
Carolina, but excluding all truckdrivers, office
clerical employees, salesmen, buyers, guards,
and/or watchmen, and foremen and supervisors
as defined in the Act.