McFarling Foods, Inc.

National Labor Relations Board - Board Decisions

Dec 5, 2001

336 N.L.R.B. 1140 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1140
McFarling Foods, Inc. and Chauffeurs, Teamsters,
Warehousemen and Helpers Local Union No.
135. Case 25–RC–10035
December 5, 2001
DECISION AND DIRECTION
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN
AND WALSH
The National Labor Relations Board has considered
determinative challenges in an election held on June 20,
2001, and the hearing officer’s report recommending
disposition of them. The election was conducted pursu-
ant to a Stipulated Election Agreement. The tally of bal-
lots shows 29 for and 28 against the Petitioner, with 7
challenged ballots, a sufficient number to affect the elec-
tion results.
The Board has reviewed the record in light of the ex-
ceptions and brief and has adopted the hearing officer’s
findings and recommendations,1 only to the extent con-
sistent with this Decision.
The parties in this case stipulated to a unit description
including, “all full-time and regular part-time production,
maintenance and warehouse employees” at the Em-
ployer’s Indianapolis, Indiana facility, excluding “driver
employees, all office clerical employees, all professional
employees, and all guards and supervisors as defined in
the Act.” The Petitioner challenged ballots cast by Cal-
vin “Jack” Finney and Charles Stokes, both of whom
work as regular part-time employees in the Employer’s
warehouse. Finney’s ballot was challenged on the basis
that he is a retiree working part-time performing office
clerical duties. The hearing officer found that Finney
regularly performs plant clerical duties integral to the
warehouse process. Stokes’ ballot was challenged on the
basis that he is a statutory supervisor. The hearing offi-
cer found no evidence to establish that Stokes possesses
or exercises Section 2(11) supervisory authority. We
agree.
Notwithstanding these findings, the hearing officer
recommended sustaining these challenges based on find-
ings that neither employee shared a community of inter-
est with bargaining unit employees. In exceptions, the
Employer contends, inter alia, that the hearing officer
erred by using a community-of-interest analysis rather
than giving effect to the clear intent of the parties’ unit
stipulation. We find merit to this exception.

1 In the absence of exceptions, we adopt, pro forma, the hearing offi-
cer’s recommendations to sustain the challenge to the ballot of Craig
Hammer, and to overrule the challenges to the ballots of Dwayne
Hicks, Jonathan Wilson, and James Rider.
“It is well-established that in stipulated unit cases such
as the one before us, the Board’s function is first to
ascertain the parties’ expressed intent with regard to the
disputed employees and then to determine whether this
intent is contrary to any statutory provision or established
Board policy.” Hotel Inter-Continental Maui, 237
NLRB 906, 907 (1978). A determination of voter eligi-
bility based on community-of-interest principles is ap-
propriate only if the parties’ intent is unclear and the
stipulated unit is ambiguous. E.g., Space Mark, 325
NLRB 1140, 1140 fn. 1 (1998).
Here, however, we have no difficulty in determining
the parties’ intent. As stated, the stipulated unit included
all regular part-time warehouse employees, with the ex-
ception only of individuals in specifically excluded job
classifications (drivers, office clericals, professionals,
guards, and supervisors). The stipulation makes no fur-
ther distinction based on the kind of work performed by
an employee in the Employer’s warehouse. It is there-
fore irrelevant that no other warehouse employee seems
to perform the same tasks as Finney and Stokes. Both of
them work as regular part-time employees in the ware-
house, and there is no showing that their jobs fall within
any of the classifications specifically excluded from the
unit by the stipulation agreement. We therefore find that
the parties intended to include Finney and Stokes in the
stipulated unit.
Furthermore, the record fails to show that either Fin-
ney or Stokes enjoyed any special status with the Em-
ployer that would, as a matter of statutory policy, require
their exclusion from the unit in spite of the parties’ stipu-
lation. As the stipulation agreement does not contravene
any statutory provision or Board policy, we find, con-
trary to the hearing officer, that the challenges to the bal-
lots cast by Finney and Stokes should be overruled. We
shall include their ballots among those remanded to the
Regional Director with directions to open and count the
additional ballots and to issue a revised tally of ballots,
with the appropriate certification.
DIRECTION
It is directed that the Regional Director for Region 25
shall, within 14 days from the date of this Decision and
Direction, open and count the ballots of Calvin “Jack”
Finney, Dwayne Hicks, James Rider, Charles Stokes, and
Jonathan Wilson. The Regional Director shall then serve
on the parties a revised tally of ballots and issue the ap-
propriate certification.
336 NLRB No. 122