J. B. Specialty Sales, Inc.

National Labor Relations Board - Board Decisions

Jun 9, 1971

191 N.L.R.B. 2 (N.L.R.B. 1971)

2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
J. B. Specialty Sales, Inc. and Chauffeurs, Teamsters
and Helpers Local 150 , International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America , Petitioner . Case 20-RC-9243
June 9, 1971
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND KENNEDY
Pursuant to a Stipulation for Certification Upon
Consent Election executed by the parties, and approved
by the Regional Director for Region 20 of the National
Labor Relations Board on March 20, 1970, an election
by secret ballot was conducted in the above-entitled
proceeding on March 30, 1970, under the direction and
supervision of the said Regional Director. Upon the
conclusion of the election, a tally of ballots was fur-
nished the parties in accordance with the Board's Rules
and Regulations, Series 8, as amended. No objections
to the election were filed. The tally of ballots shows that
there were approximately 9 eligible voters and that 9
cast ballots, of which 4 were for the Petitioner, 2 were
against the Petitioner, and 3 were challenged.
Inasmuch as the challenged ballots were sufficient in
number to affect the results of the election, the Re-
gional Director caused an investigation of the chal-
lenges to be made and, thereafter, on June 24, 1970,
issued and served on the parties his Report on Chal-
lenged Ballots. In' his report, the Regional Director
concluded that Lyle Kerr and Alvaro Licciani should
be included in the unit and, therefore, recommended
that the challenges to their ballots be overruled and
their ballots be opened and counted. He further recom-
mended that the challenge to the ballot of Gerald Bush
be sustained.
On July 6, 1970, the Petitioner filed timely excep-
tions to the Regional Director's Report with respect to
the challenges to the ballots of Lyle Kerr and Alvaro
Licciani. The Petitioner urged the Board to direct the
Regional Director to conduct a hearing on the excep-
tions.
Having considered the matter, the Board on August
7, 1970, issued an Order directing hearing in the above-
entitled matter to resolve the issues raised by the chal-
lenges to the ballots of Lyle Kerr and Alvaro Licciani,
and in the absence of exceptions to the ballot of Bush
adopted pro forma the Regional Director's recommen-
dation. Pursuant thereto, a hearing was held on Sep-
tember 1, 1970, and, thereafter, on October 27, 1970,
the Hearing Officer issued and duly served upon the
parties his report on challenged ballots with findings
and recommendations. The Petitioner filed exceptions
191 NLRB No. 4
thereto and a brief in support thereof and Employer
filed an answering brief to Petitioner's exceptions.
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 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 Petitioner 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 fol-
lowing employees constitute a unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act:
All drivers and warehousemen employed by the
Employer at its Sacramento, location; excluding
office clerical employees, rack salesmen, guards
and supervisors as defined in the Act.
5. The Board has considered the Hearing Officer's
Report, the Petitioner's exceptions and brief, the Em-
ployer's answering brief, and the entire record in this
case, and makes the following findings:
The Petitioner excepts to the Hearing Officer's con-
clusion that Lyle Kerr and Alvaro Licciani have a
sufficient community of interest with the drivers and
warehousemen to warrant their inclusion in the stipu-
lated unit. Specifically, the Petitioner alleges that Lyle
Kerr and Alvaro Licciani are essentially rack salesmen
with interests different from those of drivers and work-
ers in the warehouse and therefore are to be excluded
from the unit. We find merit in Petitioner's exceptions.
Contrary to the Hearing Officer, we sustain the chal-
lenges to the ballots of Kerr and Licciani. Our reason
for so doing is predicated on the fact that the parties
stipulated that the appropriate unit consists of "All
drivers and warehousemen employed by the Employer
at its Sacramento, location; excluding office clerical
employees, rack salesmen, guards and supervisors as
defined in the Act." (Emphasis supplied.) In these cir-
cumstances, it is the Board's function initially to ascer-
tain the parties' intention with regard to Kerr and Lic-
ciani and then to determine whether such intent is
inconsistent with any statutory provision or established
Board policy.
Applying the two-fold test to the instant case, we
must conclude, in the absence of any evidence to the
contrary, that the parties intended to exclude Kerr and
Licciani if they are rack salesmen. The hearing dis-
closed that they are without doubt the only employees
whose work can be characterized as the work of rack
J.B. SPECIALTY SALES, INC. 3
salesmen.' Thus, it appears that Kerr and Licciani be-
gin their daily work by driving directly to the Em-
ployer's customers' stores where they stock merchan-
dise previously sold and delivered by the Employer. If
the store's level of merchandise falls below a predeter-
mined level, they will write orders to replenish the
stock. None of the warehouse employees, with one ex-
ception, employee Ed Clayes, perform such duties.
Clayes assists in stocking shelves only on occasions
when a store of a new customer is stocked for the first
time. But Clayes' work in that regard is sporadic and
infrequent and we regard him as essentially a ware-
house employee.
It is clear that the parties intended to exclude em-
ployees who stock merchandise as rack salesmen from
the unit of warehousemen and drivers, and in our view
only Kerr and Licciani fit that description. We find
such exclusion does not violate any statutory provision
or settled Board policy.' We conclude therefore that
Kerr and Licciani were ineligible to vote in the election
and that the challenges to their ballots must be and they
hereby are sustained.
See Benson Wholesale Company, Inc, 164 NLRB 536, 545.
z Benson Wholesale Company, Ina, supra, 550.
Accordingly, as we have sustained the challenges to
the ballots of Kerr and Licciani; and as the tally of
ballots shows that the Petitioner has received a
majority of the valid ballots cast, we shall certify it as
the exclusive bargaining representative in the appropri-
ate unit.'
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that Chauffeurs, Teamsters and
Helpers Local 150, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, has been designated and selected by a
majority of the employees in the unit found appropriate
above as their representative for the purposes of collec-
tive bargaining, and that pursuant to Section 9(a) of the
National Labor Relations Act, as amended, the said
labor organization is the exclusive representative for all
employees in such unit for purposes of collective bar-
gaining with respect to rates of pay, wages, hours of
employment, and other terms and conditions of em-
ployment.
' The parties , by their stipulation, agreed to exclude rack salesmen. Kerr
and Licciani are, as the Hearing Officer determined, rack salesmen As their
exclusion violates no Board policy or statutory command, Member Fanning,
like his colleagues, will exclude them.