Aiello Dairy Farms Co.

National Labor Relations Board - Board Decisions

Nov 18, 1955

114 N.L.R.B. 1185 (N.L.R.B. 1955)

AIELLO DAIRY FARMS CO. 1185
within the Act _ constitute as unit appropriate -, for the , purposes of
collective bargaining within the meaning of Section 9 (b) of the Act,
[Text of Direction of Election omitted from publication.]
. -1 4 iBn t MuRDocK took no part in the consideration of the above
Decision and Direction of Election.
Aiello Dairy Farms Co., Petitioner and Retail Food Clerks Union,
Local 1500, AFL. Case No. 2 RM--691. November 18, 1955
SUPPLEMENTAL. DECISION AND DIRECTION
On October 7, 1955, pursuant to a Decision and Direction of
Election,' an election by secret ballot was conducted under the direction
and supervision of the Regional Director for the Second Region among
the employees in the unit found appropriate. Upon completion of the
election, the parties were furnished a tally of ballots which showed that
of the 7 ballots cast, 6 were challenged.
In accordance with the Board's Rules and Regulations, the Regional
Director investigated the challenges and on October 20, 1955, issued
and duly served upon the parties a report on challenges. Thereafter,
on October 31, 1955, the Union filed timely exceptions to the Regional
Director's report.
Upon the basis of the entire record in this case, the Board makes
the following :
Findings -
The Employer challenged employees De Ninno, Guistiniana, and
Del Prete; the Union challenged employees Beltrone, Benemerito, and
Caiola. The Regional Director's investigation revealed that the 3
dormer employees went on strike before the Decision and Direction
of Election was issued in this proceeding and that the Employer
permanently replaced them with the latter 3 employees, challenged
by the Union.
The Union contends, principally, that the strikers were unfair
labor practice strikers because they walked out to protest the Em-
ployer's unlawful refusal to bargain with the Union. Therefore,
the Union claims, they may not be lawfully replaced and they, but not
their replacements, were eligible to vote. The Union made the dis-
charge of the strikers the subject of an unfair labor practice charge
(2-CA-4566). After investigation the Regional Director dismissed
this charge. In his report on challenges, therefore, he concluded that
a Not reported in printed volumes of Board Decisions and Orders.
114 NLRB No. 177.
1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the strikers were'engaged in an economic strike and were therefore
subject to replacement. Accordingly, he recommended that the
Union's challenges be overruled and that the Employer's challenges be
sustained. On November 4, 1955, after the issuance of the report
on challenges, the General Counsel affirmed the Regional Director's
dismissal of the unfair labor practice charge.
The dismissal of the unfair labor practice charge by the General
Counsel establishes conclusively, for the purpose of ruling on these
challenges, that the unfair labor practices charged by the Union are
without foundation 2 Accordingly, we adopt the Regional Director's
finding that the strikers were economic strikers.
In its exceptions the Union also contends that the employment of the
strikers has not, in fact, been terminated by the Employer and that no
determination has been made that their replacements have been em-
ployed permanently. The Union asks that a hearing be directed to de-
termine the status of the challenged voters at the time of the election.
The Regional Director found that the Employer hired employees
challenged by the Union "as permanent replacements for the striking
employees." As the Union has submitted no evidence in support of
these contentions, we find they raise no material issues as to the
factual findings contained in the report on objections.'
For the above reasons, we shall adopt the Regional Director's recom-
mendation. The challenges to the ballots of employees Beltrone,
Benemerito, and Caiola are overruled; the challenges to the ballots of
employees Guistiniana, De Ninno, and Del Prete are sustained.
[The Board directed that the Regional Director for the Second
Region shall, within 10 days from the date of this Direction, open} and
count the ballots of Peter Beltrone, Antoinette Benemerito, and Joseph
Caiola and serve upon the parties a supplemental tally of ballots.]
MEMBER MuRDooK took no part in the consideration of the above
Supplemental Decision and Direction.
2 Colonial Provision Company, Inc., 112 NLRB 1056
3 C. C. Anderson Stores Company, 104 NLRB 218.
Poultry Producers Association and Teamsters and Butchers
Joint Organizing Committee , AFL, Petitioner. Case No. 8-RC-
2530. November 01, 1955
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before John Vincek, hearing officer.
114 NLRB No. 178.