Murphy Bonded Warehouse, Inc.

National Labor Relations Board - Board Decisions

Dec 16, 1969

180 N.L.R.B. 463 (N.L.R.B. 1969)

MURPHY BONDED WAREHOUSE, INC. 463
Murphy Bonded Warehouse , Inc. and Truck Drivers
& Helpers Local Union 568, affiliated with
International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America,
Independent, Petitioner . Case 15-RC-4151
December 16, 1969
DECISION AND DIRECTION OF
ELECTION
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held before Lawrence Gentile, III,"
Hearing Officer. The Hearing Officer's rulings made
at the hearing are free from prejudicial error and
are hereby affirmed. The Employer has filed a brief.
Upon the entire record in this case, the National
Labor Relations 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 labor organization involved claims to
represent certain employees of the Employer.
3. A question affecting commerce exists
concerning the representation of certain employees
of the Employer within the meaning of Sections
9(c)(l) and 2(6) and (7) of the Act.
4. The parties are in general accord that the
requested unit of warehouse employees and
truckdrivers is appropriate for purposes of collective
bargaining. The parties disagree as to whether the
assistant warehouse foreman is a supervisor or an
employee within the meaning of the Act, the
Employer contending that he is an employee. The
record shows that the assistant warehouse foreman
works under the supervision of the warehouse
foreman. The warehouse foreman hires and fires and
assigns warehouse employees and has general
responsibility for overseeing their work. The
assistant warehouse foreman performs some of these
duties, but only when the foreman is not present,
which amounts to less than 10 percent of his
working time. The assistant foreman is normally
assigned work in an area known as "the pool
trailers." He takes a crew of employees into the
pool trailer area where they unload the trailers and
divide the cargo into orders. He works with the crew
giving instructions to them of a routine nature. In
the performance of these duties he is not vested with
authority encompassed by Section 2(11) of the Act
but rather acts as a leadman. Accordingly, we find
that the assistant warehouse foreman is an employee
within the meaning of the Act and shall therefore
include him in the unit. We further find that the two
students, one of whom was working at the time of
the hearing and another to be hired after the
hearing, are not eligible voters. The record shows
that these individuals will return to school in the
fall, do not receive the regular fringe benefits of
other employees, and are working with an
understanding that their jobs will cease when their
school term commences.
Accordingly, we find that the following employees
constitute a unit appropriate for
collective-bargaining purposes within the meaning of
Section 9(b) of the Act:
All warehouse employees and truckdrivers of
the Employer at Shreveport, Louisiana, excluding
all office clerical employees, guards, watchmen
and all supervisors as defined in the Act.
5. The Employer contends that it should not be
required to furnish the Regional Director with a list
of the names and addresses of unit employees. To
support this contention the Employer sought to
establish that such Excelsior' list is not needed in
this case because the Petitioner is in possession of
the information that would be supplied by the list.
The Employer contends that it has the right under
the Supreme Court's decision in Wvman-Gordon2 to
litigate this matter of need, and that the Hearing
Officer improperly refused to permit inquiry
concerning the necessity of requiring submission of
the list.
While the Hearing Officer ruled that the question
of need for the list was not litigable at the hearing,
he did permit the Employer to submit an offer of
proof in question and answer form. For the purpose
of decision here we assume the truth of the matter
contained in the offer of proof, although for reasons
later noted we find the Hearing Officer's ruling was
not prejudical error.
After extensive evaluation of its experience in
administering Section 9 of the Act with particular
reference to effectiveness of the Act's election
procedures, the Board held in Excelsior that the
policies stated by Congress would be effectively
promoted by requiring the employer to file with the
Regional Director in advance of the election an
election eligibility list containing the names and
addresses of all the eligible voters. One of the
purposes of such a list is to insure all parties an
opportunity to communicate with all employees
prior to the election , whether or not other avenues
of approach may be available. Another purpose is to
facilitate the early resolution of disputes over voting
eligibility through prompt disclosure of employee
names and addresses to the Regional Director, and
through him to the parties to the election. In
Wvman-Gordon, the Supreme Court emphatically
sustained the substantive validity of the Excelsior
requirement.
The only question raised by the Employer here is
directed to the Petitioner 's need for the list.
However, the Employer' s position in this respect
finds no support in his offer of proof, inasmuch as
' Excelsior Underwear Inc , 156 NLRB 1236.
'394 U.S. 759
180 NLRB No. 29
464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the offer shows that the Petitioner does not have the
names and addresses of all eligible employees.
Reaffirming the views we expressed in our Excelsior
decision, we therefore find that the evidence offered
by the Employer does not justify withholding of the
Excelsior list in this case, and shall direct that such
list be filed as set forth below.
While the question raised by the Employer can be
disposed of on the foregoing basis alone, there are
further grounds for directing the submission of the
Excelsior list in this case . Even if the Employer had
elicited testimony purporting to demonstrate that
the Petitioner had the names and addresses of all
eligible voters, exhausting such a line of inquiry
could very well result in impermissible examination
into the number or identity of employees who have
signed authorization cards, a subject intimately
related to the Petitioner's showing of interest, which
is an administrative matter not subject to litigation.
O.D. Jennings and Company, 68 NLRB 516. The
Employer's own list would still be required to insure
the accuracy and currency of the names and
addresses as it is the most reliable source of such
information. In this connection, we note that eligible
voters include those on vacation, layoff status, sick
leave, leave of absence, military leave, and, in
appropriate circumstances, economic strikers and
their replacements. Moreover, the testimony could
have reflected the situation only on the day of the
hearing, and, since the Excelsior list is required to
be produced only after an election has been directed,
it would have left unresolved the question of
Petitioner's need for a more current list at that later
date. The hearing in this case, for example, was held
on May 27, 1969, and testimony at that time would
have had no probative value in determining the
situation when the Excelsior list herein must be
produced - i.e., within 7 days of the date of this
direction of election. Keeping in mind the
Congressional intent that the public interest requires
the speedy resolution of questions of representation,
it would also be impracticable to attempt to
determine the question of need once the direction
has issued and before the election is conducted. As
noted above, one purpose of the list is to facilitate
early resolution of disputes over voting eligibility.
That purpose is best served by one official list on
which the attention of all parties and the Regional
Director can be focused in advance of the election.
It is not satisfied by a showing that Petitioner
purportedly had all names and addresses available
to it from other sources. Indeed, assuming that to
be true, we think it highly beneficial to the election
process that the Employer as the most dependable
source for an accurate list, furnish a complete,
current list of information for corroborative
purposes.
For all these reasons and for those stated in our
Excelsior decision, we are of the opinion that there
is a need in this case for an election eligibility list
containing the names and addresses of all the
eligible voters, to be provided by the Employer in
accordance with the conditions set out below.
[Direction of Election3 omitted from publication.]
'In order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their
addresses which may be used to communicate with them . Excelsior
Underwear Inc. 156 NLRB 1236, N L R.B v. Wyman-Gordon Company.
394 U S 759 Accordingly, it is hereby directed that an election eligibility
list, containing the names and addresses of all the eligible voters, must be
filed by the Employer with the Regional Director for Region 15 within 7
days of the date of this Decision and Direction of Election . The Regional
Director shall make the list available to all parties to the election No
extension of time to file this list shall be granted by the Regional Director
except in extraordinary circumstances Failure to comply with this
requirement shall be grounds for setting aside the election whenever proper
objections are filed.