National Dairy Products Corp.

National Labor Relations Board - Board Decisions

Jan 8, 1959

122 N.L.R.B. 880 (N.L.R.B. 1959)

880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her infrequent absences. None of the six hires or discharges em-
ployees or effectively recommends changes in employee status. Their
higher pay reflects longer job tenure. All have long been incluuded
in the Union's contract unit. The "working foremen" have served
on union negotiating committees, and at least one of them has served
for several years as shop steward for the Union. Under these cir-
cumstances, and on the entire record, we find that Garone, Sepul-
veda, Crespo, Weinstein, Pade, and Taylor are merely more experi-
enced employees who act as conduits between the supervisors and
the employees, routinely directing employees, and that they are not
supervisors as defined in the Act. United States Gypsum Company,
119 NLRB 1415 (machine operators) ; New Pacific Lumber Co., 119
NLRB 1307. Accordingly, we include them in the unit.
The record is inadequate to determine whether Frymer and Payes,
classified as executive employees, have been excluded from the recog-
nized unit. As established Board precedent requires that the unit
for decertification be coextensive in scope with the existing unit, and
as their status as managerial or confidential employees is conjectural,
we shall permit them to vote subject to challenge by the Board agent.
Seaporcel Metals, Inc., 115 NLRB 960.
Accordingly, we find that all office, production, and maintenance
employees at the Employer's New York City, New York, pharma-
ceutical products manufacturing plant, including the bookkeeper,
clerk-typists, the switchboard operator, stenographers, machine op-
erators, pricing clerks, payroll clerks, packing employees, porters,
shipping and trucking employees, maintenance employees, the raw
materials clerk, and employees in the tablets and capsules, labeling
and filling, and liquid and ointments departments, but excluding
salesmen, confidential employees, and supervisors as defined in the
Act, constitute a unit appropriate for purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act.
[Text of Direction of Election omitted from publication.]
National Dairy Products Corporation , Sealtest Southern Dairies
Division and General Truck Drivers , Chauffeurs, Warehouse-
men & Helpers , Local 270 (Ind .), Petitioner. Case No. 15-RC-
1611. January 8, 1959
SUPPLEMENTAL DECISION AND DIRECTION
Pursuant to a Decision and Direction of Election issued November
25, 1.957,1 an election by secret ballot was conducted on December 13,
Unpublished.
122 NLRB No. 109.
NATIONAL DAIRY PRODUCTS CORPORATION 881
1957, under the direction and supervision of the Regional Director
for the Fifteenth Region, among the employees in the unit found
appropriate by the Board. Following the election, a tally of ballots
,was furnished the parties which showed that of approximately 11
eligible voters, 11 ballots were challenged. On December 19, 1957,
the Employer timely filed objections to the election. As the chal-
lenged ballots were sufficient in number to affect the results of the
election, the Regional Director investigated them, as well as the
'Employer's objections and on October 21, 1958, issued and duly
served upon the parties a report on challenged ballots and objections
to Election.
Regarding the challenges, the Regional Director found that the
ballots of two individuals should not be counted as their names were
not found on the eligibility list and therefore they were not entitled
to vote.2 As to the nine remaining challenges, he found that the
employees involved had ceased to be employees prior to the election,
and that therefore the challenges should be sustained. The Peti-
tioner timely filed exceptions to this finding of the Regional Director.
With respect to the objections, the Regional Director found in his
report that they did not raise substantial or material issues affecting
the conduct of the election and accordingly, recommended that the
objections be overruled. As no exceptions were filed to this finding,
we adopt the Regional Director's recommendation.
The Decision and Direction of Election found that the helpers of
the wholesale milk route driver-salesmen were employees of the
Employer, and ordered an election among such helpers. The Re-
gional Director found that on the eligibility date there were nine
such helpers; that on December 2, 1957, the Employer notified the
driver-salesmen of the helpers that effective that date, the Employer
would discontinue handling any payroll deductions for the helpers,
that the driver-salesmen might continue to hire helpers if they so
chose, but that they would be required to make direct payments to
the helpers from their own earnings; and that, according to the
Employer, this step was necessary to economize on operations. On
election day, December 13, 1957, the Employer furnished a list of
helpers whose names appeared on the payroll on the eligibility date,
"but of whom there is no present record." The helpers appeared
and voted, and their ballots were challenged by the Employer.
The investigation showed that after December 2, 1957, the Em-
ployer ceased to maintain records of any kind as to the helpers, but
that prior to that date, the Employer had records of these helpers,
some of whom had worked for as long as 48 weeks. After Decein-
a Petitioner took no exception to this finding.
505395-59-vol. 122-57
882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her 2, the same helpers continued to perform their tasks as previ-
ously, but were paid directly by the drivers.
The Decision read as follows :
We find upon the record as a whole that the helpers are em-
ployees of the Employer. Drivers sometimes hire helpers who are
paid directly by the drivers and of whom the Employer has no
knowledge. As to such helpers concerning whom the Employer
has no record, we find they are not employees of the Employer.
The Employer's motion to dismiss is denied. See Wells Dairies
Cooperative, 109 NLRB 1450.
The Regional Director found on the basis of the Decision, that as
the Employer had ceased to maintain records as to the helpers, the
latter had ceased to be employees ; that they were therefore not
eligible to vote; and that the challenges to their ballots should be
sustained, and the election set aside.
We do not agree. The Regional Director apparently has misin-
terpreted the Board's Decision. On the eligibility date, the Em-
ployer had knowledge of the nine helpers employed, how long they
had been in its employ and the duties they performed. The Em-
ployer also kept a record with respect to, and paid, them. The
mere fact that thereafter the Employer declined to maintain such
a record or to pay these helpers directly did not materially affect,
much less destroy, the established employment relationship. Cer-
tainly, the Employer's action did not reduce the status of these
regular employees to that of the casual employees referred to in
our decision who were sometimes hired by the drivers and of whom
the Employer had no knowledge at all. We think that where the
Regional Director erred was in equating the keeping of records
with our finding that the helpers involved herein had employee
status. Accordingly, the challenges to the nine ballots of helpers
whose names appeared on the eligibility list are overruled, and we
shall direct the Regional Director to open and count their ballots.
[The Board directed that the Regional Director for the Fifteenth
Region shall, within ten (10) days from the date of this Direction,
open and count the ballots of helpers L. Bailey, Al. Bolden, O.
Bolden, C. Broussard, L. Lagohn, C. Moss, L. Tofia, C. Wall, and
A. Williams, whose names appeared on the. eligibility date, and
serve upon the parties a supplemental tally of ballots.]
Members Rodgers and Fanning took no part in the consideration
of the above Supplemental Decision and Direction.