Reinhard Brothers Co.

National Labor Relations Board - Board Decisions

May 16, 1957

117 N.L.R.B. 1630 (N.L.R.B. 1957)

1630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the multiemployer contract with the Intervenor as covering these
categories. From this it is evident that the omission of the powerhouse
and maintenance employees from article 10 was not inadvertent, as
contended. For the foregoing reasons, in addition to the fact that the
evidence adduced at the hearing to negate these conclusions was in-
sufficient, in our opinion, to overcome the clear implications of the con-
tract itself and the documentary evidence, we find that the powerhouse
and maintenance employees are not covered by the bargaining agree-
ment asserted as a bar. Accordingly, we find the contract no bar
to a current determination of representatives.
4. The Petitioner seeks to represent a unit of powerhouse and main-
tenance employees. The Intervenor contends that the unit sought
is inappropriate. As we have concluded, for the reasons already
stated, that these employees are not covered by the contract, we find
that they constitute a unit of maintenance employees such as the Board
considers appropriate for bargaining purposes. Moreover, under the
circumstances of this case, these employees as the only unrepresented
employees constitute in any event an appropriate residual unit. Ac-
cordingly, we shall direct an election among the following employees :
All powerhouse and maintenance employees at the Employer's
Youngstown, Ohio, dairy, excluding all other employees, office clerical
employees, guards, and supervisors as defined in the Act.
If a majority of the employees in the voting group vote for the
Petitioner, they will have indicated their desire to constitute a separate
appropriate unit, and the Regional Director is instructed to issue a
certification of representatives to the Petitioner for such unit, which
the Board under the circumstances finds appropriate for the purposes
of collective bargaining. If a majority of the employees in the voting
group vote for the Intervenor they will be taken to have expressed
their desire to become part of the Intervenor's present unit, and the
Intervenor may bargain for them as part of such unit. If a majority
of the employees in the group vote for neither, they will be deemed
to have expressed their desire to remain unrepresented.
[Text of Direction of Election ' omitted from publication.]
Reinhard Brothers Company and Office Employees International
Union, Local No. 12, AFL-CIO, Petitioner. Case No. 18-RC-
3093. May 16, 1957
DECISION, DIRECTION, AND ORDER
On February 5, 1957, pursuant to a stipulation for certification upon
consent election, an election by secret ballot was held under the direc-
tion and supervision of the Regional Director for the Eighteenth
117 NLRB No. 208.
REINHARD BROTHERS COMPANY 1631
Region among employees in the stipulated unit. Following the elec-
tion, a tally of ballots was furnished the parties. The tally shows
that of approximately 103 eligible voters, 104 ballots were cast, of
which 44 were for the Petitioner, 43 against the Petitioner, and 17
were challenged.
As the challenges were sufficient in number to affect the results of
the election, the Regional Director investigated the challenges and,
on March 8, 1957, issued and duly served on the parties a report and
recommendation on challenged ballots in which he made certain rec-
ommendations. The Employer filed exceptions to the Regional
Director's report.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Murdock, Rodgers, and
Bean].
The Board has considered the stipulation, the report and recom-
mendation of the Regional Director, the Employer's exceptions, and
the entire record in this case, and hereby makes the following
findings :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent certain
employees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of certain employees of the Employer within the meaning of
Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The following employees of the Employer, as stipulated, consti-
tute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act:
All office clerical employees and inside sales department employees
employed at the Employer's wholesale establishment located at 4301
Highway 7, Minneapolis, Minnesota, excluding professional employ-
ees, guards, and supervisors as defined in the Act.
5. The ballots of Carroll Jackley, Leslie Peterson, Kerry Willette,
Frank Vaughn, John Scherf, John Carlson, F. J. Hillstrom, Ervin
Johnson, Wallace Langley, Pearley Kane, Elizabeth Carlson, William
Bowton, Charles Foxx, and Clarysse Ness were challenged by the
Petitioner on the ground that they are supervisors and the ballot of
Esther Wyman on the ground that she is a confidential employee.
The Employer challenged the ballots of Jim Stocke and Dick Betzold
on the ground that they were not on the eligibility list nor in the
agreed unit.
The Regional Director found that Carroll Jackley, Leslie Peterson,
Kerry Willette, Frank Vaughn, John Scherf, John Carlson, F. J.
1632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hillstrom , Ervin Johnson , and Wallace Langley are supervisors and
recommended that these challenges be sustained . Both the Peti-
tioner and the Employer agree that these individuals are supervisors.
The Regional Director recommended that the challenges be sustained
as to the ballots of Jim Stocke, Dick Betzold, and Pearley Kane,
finding that these employees are in a bargaining unit now under
contract between the Employer and another Union. No exception was
taken to the Regional Director's recommendation as to the challenges
with respect to these 12 employees, and the Board adopts his recom-
mendation and sustains the challenges to their ballots.
The Regional Director recommended that the challenges to the
ballots of Elizabeth Carlson, William Bowton, Ch rysse Ness. and
Esther Wyman be overruled. No exception was taken to this recom-
mendation. However, the Employer does not concur in all the find-
ings of fact upon which the Regional Director relied. In view of the
fact that no exception is made to the Regional Director 's recommen-
dation, we accept the recommendation without passing on the duties
of these particular employees . Suffice to say that were all the facts
conceded that the Employer urges, these employees would be included
in the unit as found by the Regional Director. The challenges to
their ballots are overruled.
The Regional Director recommended that the challenge to the
ballot of Charles Foxx be sustained on the ground that he possessed
supervisory authority. To this finding, recommendation, and con-
elusion, the Employer excepts. The facts concerning Foxx's status
as represented by the Employer are contradictory to the facts
reported by the Regional Director. In view of this conflict and the
fact that the counting of the ballots, the challenges to which are over-
ruled may determine the results of the election , we shall not pass on
the status of Charles Foxx at this time.
We shall direct the opening and counting of those ballots as to
which we have herein overruled challenges ; and we shall further
direct that the Regional Director shall thereafter issue a revised tally
of ballots . In the event it then appears that Foxx's ballot cannot
affect the election 's results, and if it also appears that the Petitioner
has received a majority of the valid votes cast in the election, the
Regional Director is instructed to issue a certification of representa-
tives to the Petitioner for the unit heretofore found appropriate. If,
on the other hand, the revised tally shows that the Petitioner has not
received a majority of the valid votes cast, and if it also appears that
Foxx's ballot cannot affect the election's results, the Regional Director
is instructed to issue a certification of results of election. If the
revised tally indicates that Foxx's ballot may be determinative of
the results of the election, the Board will, upon being so advised by
CABOT CARBON COMPANY 1633
the Regional Director, give further consideration to the disposition
of the challenge to Foxx's ballot.
[The Board directed that, the Regional Director for the Eighteenth
Region shall, within ten (10) days from the date of this decision, open
and count the ballots of employees Elizabeth Carlson, William
Bowton, Clarysse Ness, and Esther Wyman, and serve upon the par-
ties a revised tally of ballots. If the ballot of Charles Foxx does not
affect the results of the election, the Regional Director shall issue a
certification of representatives if the Petitioner has received a majority
of the valid votes cast, or shall issue a certification of results of election
if the Petitioner has not received a majority of votes cast. If Foxx's
ballot does affect the results of the election, the regional Director is
directed to advise the Board so that appropriate action may be
taken.]
[The Board ordered the above-entitled matter referred to the
Regional Director for the Eighteenth Region for disposition.]
Cabot Carbon Company and Cabot Shops , Inc. and Interested
Parties : Central Committee , Southwestern Division, Employee
Committee, Canal Plant, Employee Committee , Dixon Plant,
Employee Committee, Kermit Plant , Employee Committee,
Pampa Plant, Employee Committee , Schafer A Plant, Em-
ployee Committee , Schafer B Plant, Employee Committee, Ville
Platte Plant , Employee Committee , Nlills R & D Plant, Em-
ployee Committee , Cabot Shops, Employee Committee, Ord-
nance Plant , Employee Committee , Estes Plant , Employee
Committee , Keystone Plant, Employee Committee, Pampa
Office, Employee Committee , Schafer Laboratory , Employee
Committee , Pampa Warehouse , Employee Committee , Walton
Plant and International Chemical Workers Union , AFL-CIO.
Case No. 15-CA-777. May 17,1957
DECISION AND ORDER
On December 4, 1956, Trial Examiner Lee J. Best, issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices, and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the copy of
the Intermediate Report attached hereto. Thereafter, the Respond-
ents filed exceptions to the Intermediate Report and a supporting
brief, and the General Counsel filed a brief.
117 NLRB No. 211.
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