W. W. Grainger, Inc.

National Labor Relations Board - Board Decisions

Dec 17, 1973

207 N.L.R.B. 966 (N.L.R.B. 1973)

966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
W. W. Grainger, Inc. and Chicago Truck Drivers,
Helpers and Warehouse Workers Union (Inde-
pendent), Petitioner. Case 13-RC-12898
December 17, 1973
DECISION AND DIRECTION
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS.
Pursuant to a petition and Stipulation for Certifica-
tion Upon Consent Election, an election by secret
ballot was conducted on January 16, 1973, under the
direction and supervision of the Regional Director
for Region 13, among the employees in the unit
agreed upon by the parties. At the conclusion of the
election, the parties were furnished with a tally of
ballots which showed that of approximately 114
eligible voters, 56 cast ballots for, and 42 cast ballots
against, Petitioner, and 15 cast ballots which were
challenged by Petitioner. The challenged ballots were
sufficient in number to affect the results of the
election. Thereafter on January 22 and 23, 1973, the
Employer and the Petitioner, respectively, filed
objections to conduct affecting the results of the
election. By letter to the Regional Director dated
March 5, 1973, the Petitioner requested permission to
withdraw its objections.
Pursuant to the provisions of the National Labor
Relations Board Rules and Regulations, Series 8, as
amended, after reasonable notice to the parties and
opportunity to present relevant evidence, the Region-
al Director conducted an investigation of the issues
raised by the objections and challenges and on April
16, 1973, issued and served on the parties his Report
on Objections and Challenged Ballots. In his report,
the Regional Director recommended that the Peti-
tioner's request to withdraw its objections be granted
and that the Employer's objections be overruled in
their entirety. Regarding the challenged ballots, he
recommended that the challenges to ballots cast by
George Woodson, Steve Pacewicz, Donald Owen,
and Herman Daum be sustained. In view of his
recommendations regarding the above 4 named
individuals, the Regional Director found it unneces-
sary to consider the status of the remaining 11
challenged voters or to make recommendations with
respect to the Petitioner's January 26, 1973, request
that 10 of the 11 challenges be withdrawn. Accord-
1 We find no merit, however , to the Employer' s excepting to the
Regional Director's considering any of the 15 challenges on the ground,
inter aha, that the challenged individuals held job classifications that were
stipulated in the inclusions in the unit description, and that, therefore, the
parties intended that the disputed employees be included and that their
inclusion in the unit is not inconsistent with any statutory provision or
established Board policy. The Employer also takes issue with the Regional
Director's finding that Petitioner had orally reserved the right to selectively
challenge employees on classifications in the agreed -upon unit Without
207 NLRB No. 136
ingly, he recommended that the Petitioner be
certified. Thereafter, the Employer filed exceptions
to the Regional Director's report.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding 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 concern-
ing 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 agreed, and we find, the following
employees constitute a unit appropriate for the
purpose of collective bargaining within the meaning
of the Act:
All full time warehouse employees at the
Employer's warehouse now located at (1) 5959
Howard Street, Niles, Illinois; (2) 1175 Wheeling
Road, Wheeling, Illinois and (3) 7760 Merrimac,
Niles, Illinois, including the following job classifi-
cations: department head, assistant department
head, equipment maintenance, general utility,
housekeeper, order checker, order packer, order
picker, receiving checker, stock controller, stock-
man, straddle truck operator, towveyr tender,
trailer jammer, trailer unloader and warehouse
clerk, but excluding all office clerical employees,
janitors (other than warehouse), maintenance
employees (building), temporary employees, pro-
fessional employees, guards and supervisors as
defined in the Act.
The Board has considered the Regional Director's
report and recommendations, the Employer's excep-
tions, and the entire record in this case. While we
adopt his findings and recommendations regarding
the objections, we find merit in the Employer's
exceptions to the Regional Director's recommended
disposition of the issues raised by the challenged
ballots.'
In his report, the Regional Director found that four
reaching the question whether the Petitioner had so reserved such a right to
challenge employees , we do not view this case as presenting the question of
whether the parties had stipulated to the eligibility of individual employees,
such as in Norris-Thermidor Corporation, 119 NLRB 1301, and Laymon
Candy Company, 199 NLRB 547. Instead, we find it poses the simple issue of
whether any of the challenged voters are supervisors within the meaning of
the Act. Notwithstanding the fact that those challenged heldjob titles that
are included in the stipulated unit description , we shall, as always in such
situations, permit challenges on the basis of a person 's alleged supervisory
W. W. GRAINGER, INC. 967
individuals, George Woodson, Steve Pacewicz, Don-
ald Owen, and Herman Daum, possessed supervisory
status and sustained the challenges to ballots cast by
them.
In its brief, the Employer contends, inter alia, that
the named individuals perform the same labor as the
other men in their departments, and have no
authority to hire, fire, and discipline other employ-
ees. It further contends that the occasions on which
they have written memos making recommendations
have been rare. In his report, the Regional Director
has set forth certain factors which in some instances
point toward supervisory status and which in some
instances appear to warrant finding nonsupervisory
status. Many of these factors conflict with the
Employer's contentions. In concluding that the four
individuals possess supervisory indicia, the Regional
Director does not particularize which of the many
factors stated in his report he relies on in recom-
mending that the challenges be sustained. In this set
of circumstances we are of the view that the issues
raised by these conflicts can best be resolved on the
basis of record testimony.
Because of his recommendation regarding the
challenged ballots cast by Woodson, Pacewicz,
Owen, and Daum, the Regional Director found it
unnecessary to consider the remaining challenges
and recommended that no action be taken regarding
the Petitioner's request to withdraw the challenges to
ballots cast by 10 of these individuals. The Employer
has excepted to this recommendation and, as we read
the Employer's brief, it agrees with the Petitioner's
withdrawal request, which we hereby grant. The
election may be finally determined by the votes of
the individuals in this group. In such event the
ballots cast by Woodson, Pacewicz, Owen, and
Daum would no longer affect the outcome of the
election and a hearing on the challenges to these
ballots would no longer be necessary. We shall
therefore direct that the Regional Director open and
count the ballots of Joseph Kuhlmann, Charles
Kacalo, Erling Anderson, Henry Buzek, Clarence
Harrison, Dennis Myszka, John Rupslauk, Walter
Schaller, Norbert Sadowski, and Clarence McGee
and furnish the parties with a revised tally of ballots
and issue a certification of representative if the
Petitioner has received a majority of the ballots cast.
In the event the Petitioner has not received a
majority of the' ballots cast, we shall direct the
Regional Director to conduct a hearing on the
challenges to the ballots of Woodson, Pacewicz,
Owen,-Daum, and Larry Croak.2
DIRECTION
It is hereby ordered that, as part of his investiga-
tion to ascertain the representative for the purposes
of collective bargaining with the Employer, the
Regional Director for Region 13 shall pursuant to
the Board' s Rules and Regulations, within 10 days
from the date of this Decision, open and count the
ballots of Joseph Kuhlmann, Charles Kacalo, Erling
Anderson, Henry Buzek, Clarence Harrison, Dennis
Myszka, John Rupslauk, Walter Schaller, Norbert
Sadowski, and Clarence McGee, and issue a revised
tally of ballots including the count of said ballots. If
the revised tally shows that the Petitioner has
received a majority of the ballots cast, the Regional
Director is hereby ordered to issue the appropriate
certification of representative.
IT IS FURTHER DIRECTED that in the event the
revised tally of ballots shows that the Petitioner has
not received a majority of the ballots cast, a hearing
be held before a Hearing Officer, to be designated by
the Regional Director for the purposes of taking
evidence with respect to the issues raised by the
challenges to the ballots of Woodson, Pacewicz,
Owen, Daum, and Croak.
IT IS FURTHER DIRECTED that the Hearing Officer
designated for the purposes of conducting such a
hearing shall prepare and cause to be served on the
parties a report containing resolutions of credibility
of witnesses, finding of facts, and recommendations
to the Board as to the disposition of said issues.
Within 10 days from the date of issuance of such
report either party may file with the Board in
Washington, D.C., an original and seven copies of
exceptions thereto. Immediately upon the filing of
such exceptions the parties filing the same shall serve
a copy on the' other party and file a copy with the
Regional Director. If no exceptions are filed thereto,
the Board will adopt the recommendations of the
Hearing Officer.
IT IS FURTHER DIRECTED that the above-entitled
matter be, and it hereby is, referred to the 'said
Regional Director for the aforementioned purposes,
including the purpose of conducting a hearing, and
that the Regional Director be, and hereby is,
authorized to issue notice thereof.
duties since to do otherwise would violate express statutory provisions and
established Board policy. Cf. The Tribune Company, 190 NLRB 398, which
dealt with the question of whether the parties' intent was to included an
employee in the stipulated unit.
2 Croak was among the 15 challenges but not listed in Petitioner's
withdrawal request.