J. Weingarten, Inc.

National Labor Relations Board - Board Decisions

Sep 11, 1968

172 N.L.R.B. 2020 (N.L.R.B. 1968)

2020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
J. Weingarten , Inc. and American Bakery and Con-
fectionery Workers International Union, Local
163, AFL-CIO, Petitioner . Case 23-RC-31 10
September 11, 1968
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
Pursuant to a Stipulation for Certification Upon
Consent Election, an election by secret ballot was
conducted on June 13, 1968, under the direction
and supervision of the Regional Director for Region
23, among the employees in the stipulated unit
described below. At the conclusion of the election,
the parties were furnished a tally of ballots which
showed that of approximately 18 eligible voters, 14
cast ballots, of which 7 were for the Petitioner,
1 was for the Intervenor,' 5 were against the par-
ticipating labor organizations, and 1 was chal-
lenged. The challenged ballot was sufficient in
number to affect the results of the election.
Pursuant to the National Labor Relations Board
Rules and Regulations and Statements of
Procedure, Series 8, as amended, the Regional
Director conducted an investigation and, on July 18,
1968, issued and duly served upon the parties his
report and recommendation on challenged ballot in
which he recommended that the challenge be
sustained, and that the Petitioner be certified as
bargaining representative of the employees in-
volved. On July 30, 1968, the Employer filed timely
exceptions to the Regional Director's report.
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 Boards
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 and the Intervenor are labor
organizations which claims to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists con-
cerning the representation of certain employees of
the Employer within the meaning of Sections
9(c)( 1) and 2(6) and (7) of the Act.
' Retail Clerks Union No 455, Retail Clerks International Association,
AFL-CIO
2 Neither the Employer nor the Intervenor furnished evidence to the con-
4. The parties stipulated, and we find, that the
following employees of the Employer constitute a
unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the
Act.
All in-store bakery employees located at Stores
Nos. 17, 46, and 70 in Houston, Texas; exclud-
ing all other employees including guards,
watchmen, and supervisors as defined in the
Act.
5. The Board has considered the Regional
Director's report, and the Employer's exceptions
thereto, and hereby adopts the Regional Director's
findings, conclusions, and recommendations for the
following reasons.
The Intervenor challenged the ballot of L. B. Du-
rand on the ground that he was a supervisor. The
Regional Director, pursuant to Section 102.69(c)
of the Board's Rules and Regulations, commenced
his investigation by asking the parties for state-
ments of position relative to Durand's status. The
Petitioner's position, which was supported by infor-
mation, was that Durand was a supervisor within
the meaning of Section 2(11 ) of the Act; the Em-
ployer's position, which was unsupported, was that
Durand was a rank-and-file employee. Before the
Regional Director could complete his investigation,
but after he had reason to believe that Durand was
a supervisor, the Intervenor requested that the chal-
lenge be withdrawn. The Regional Director denied
the request, completed the investigation, found Du-
rand to be a supervisor,' sustained the challenge,
and recommended that the Petitioner be certified.
The Board holds, contrary to the Employer's
contention, that the Regional Director acted within
the scope of his authority in denying the Inter-
venor's request to withdraw the challenge. Where,
as here, the challenged ballot is still uncounted and
not commingled with the other ballots, and the Re-
gional Director's incomplete investigation has
revealed that, in all likelihood, the challenged voter
is ineligible to vote because he is a supervisor, we
hold that it is incumbent upon the Regional
Director to complete his investigation and to
resolve the issue as to the voter's status, not-
withstanding a request to withdraw the challenge.
Accordingly, as we have sustained the challenge
to the ballot, 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 bar-
gaining representative of the employees in the ap-
propriate unit.
trary Accordingly the Employer's exceptions do not raise any substantial
or material issue of fact as to the Regional Director's finding that Durand is
a supervisor
172 NLRB No. 228
J. WEINGARTEN, INC. 2021
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that American Bakery and
Confectionery Workers International Union, Local
163, AFL-CIO, has been designated and selected
by a majority of the employees in the unit found ap-
propriate above as their representative for the pur-
poses of collective bargaining, and that pursuant to
Section 8(a) of the National Labor Relations Act,
as amended, the said labor organization is the ex-
clusive representative for all employees in such unit
for purposes of collective bargaining with respect to
rates of pay, wages, hours of employment, and
other terms and conditions of employment.