L. A. Benson Co., Inc.

National Labor Relations Board - Board Decisions

Sep 20, 1965

154 N.L.R.B. 1371 (N.L.R.B. 1965)

L. A. BENSON CO., INC. 1371
L. A. Benson Co., Inc. and Warehouse Employees Union Local
570, affiliated with International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America , Petitioner.
Case No. 5-RC-5166. September X0,1965
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 a hearing Oflicer
of the National Labor Relations Board. The Hearing Officer's rulings
made at the hearing are free from prejudicial error and are hereby
affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and -Members Brown and Jenkins].
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 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 Sec-
tion 9(c) (1) and Section 2(6) and (7) of the Act.'
4. The following employees of the Employer constitute a unit ap-
propriate 2 for the purposes of collective bargaining within the mean-
ing of Section 9(b) of the Act:
All warehousemen, including receiving clerks, checkers, zonemen,
shipping clerks, packers, countermen, and truckdrivers employed by
1 Robert Senseney, an individual hired by the Employer just 8 months before the filing
of the instant petition, participated in obtaining all authorization cards presented in
support of Petitioner's showing of interest. The Employer contends that, as Senseney
is a supervisor, the showing of interest is tainted, and therefore the petition should be
dismissed. Allegations of supervisory participation in, or influence upon, acquisition of
a showing of interest normally will not be entertained in a representation proceeding, but
like other attacks upon the showing's validity will be determined administratively by
the Board. Georgia Kraft Company, 120 NLRB 806. However, since this matter was
referred to the Board by the Regional Director in this case, we shall make the determina-
tion herein. The instant record shows that Senseney did not, at any time prior to the
submission of the showing, possess authority to hire or fire, to make other recommenda-
tions affecting terms and conditions of employment of other employees, or effectively to
recommend such action, to exercise independent judgment in the assignment of work, or
to direct responsibly the work of others. Accordingly, as Senseney did not possess
supervisory authority during the period in which the authorization cards were solicited,
and there is no evidence that he was acting for or on behalf of the Employer, we find
that his participation did not taint or otherwise cast a doubt upon the uncoerced nature
of the showing, and we are administratively satisfied that Petitioner's showing of interest
submitted in support of the petition herein is valid and sufficient
2 The parties stipulated as to the appropriateness of the unit.
154 NLRB No. 108.
1372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Employer at its Baltimore, Maryland, location, excluding all office
clerical employees, engineers, salesmen, janitors, professional employ-
ees, guards, and supervisors 3 as defined in the Act.
[Text of Direction of Election omitted from publication.]
3 The Employer , relying upon its contention that Senseney is a supervisor , seeks his
exclusion from the unit . Although we have found that Senseney did not possess super-
visory authority during the period in which the showing of interest was obtained, we are
unable to determine from the record whether he presently possesses supervisory authority.
For this reason , we shall not make a final determination of his eligibility status, but
instead will permit him to vote subject to challenge.
Zayre Corporation and Local 1459, Retail Clerks International
Association , AFL-CIO. Case No. 1-CA-4809. September W.
1965
DECISION AND ORDER
On July 9, 1965, Trial Examiner David S. Davidson issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor practices within
the meaning of the National Labor Relations Act, as amended, and rec-
ommending that it cease and desist therefrom and take certain affirma-
tive action, as set forth in the attached Trial Examiner's Decision. The
Trial Examiner also found that the Respondent had not engaged in
certain other unfair labor practices alleged in the complaint. There-
after, the Respondent filed exceptions to the Trial Examiner's Decision
and a supporting brief, and the General Counsel refiled his brief to the
Trial Examiner.
Pursuant to the provisions of Section 3(b) of the Act, the National
Labor Relations Board has delegated its powers in connection with this
case to a three-member panel [Chairman McCulloch and Members
Brown and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the Respondent's exceptions and brief, and the
entire record in the case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner)-
' The Respondent , which presented no witnesses , contends that the Trial Examiner
improperly credited the testimony of all the witnesses who testified for the General Coun-
sel in support of the complaint , and discredited the Respondent 's general manager who
was called as an adverse witness by the General Counsel . It is the Board 's established
policy not to overrule a Trial Examiner 's resolutions as to credibility unless the clear
preponderance of all the relevant evidence convinces us that they are incorrect. Such a
conclusion is not warranted here. Standard Dry Wall Products, Inc., 91 NLRB 544,
enfd. 188 F . 2d 362 (C.A. 3).
154 NLRB No. 114.