Sherman White & Co.

National Labor Relations Board - Board Decisions

Apr 17, 1958

120 N.L.R.B. 499 (N.L.R.B. 1958)

SHERMAN WHITE & COMPANY 499
Fair's employment office. The record discloses that Credit Union is
established under the provisions of the Federal Credit Union Act? Its
stock is owned by its members, and it is managed by directors elected
by such members, and by officers appointed by the directors. Under
the statute, only the officers and directors of Credit Union have author-
ity to hire, discharge, and direct the activities of its employees .8 Ac-
cordingly, we find that Credit Union is a separate employer for
jurisdictional and unit purposes and that the two employees involved
herein are employees of Credit Union alone.9 As no warrant appears
for including these employees in the same unit with the employees of
the instant Employer, we shall exclude them.
We find that the following employees constitute a unit appropriate
for the purposes of collective bargaining within the meaning of Sec-
tion 9 (b) of the Act:
All office clerical employees of Food Fair Stores, Inc., at its South-
ern Division office, 7000 N. W. 32d Avenue, Miami, Florida, and at
its warehouse building office, maintenance shop building office, and em-
ployment office at 531 W. Flagler Street, Miami, including office
clerical employees of Lady Fair Bakery Company, Inc., Simon Candy
and Tobacco Company, and Merchant Green Trading Stamp Company
of Florida, Inc., all of Miami, Florida, but excluding office clerical
employees of Food Fair Stores, Inc., Federal Credit Union, confiden-
tial employees,10 all other employees, and supervisors as defined in
the Act.
[Text of Direction of Election omitted from publication.]
711 USC 1751, et seq.
8 The record shows, moreover , that Credit Union does in fact supervise its office em-
ployees, and , although there was uncontroverted testimony that they were "hired" by
Food Fair for assignment to Credit Union, such hiring would-be legally ineffective until
approved by Credit Union. While Food Fair pays part of the salary of Credit Union's
office employees , such payments are admittedly voluntary and do not, under the circum-
stances here existing, suffice to render the recipients employees of Food Fair.
9 see Namm's, Inc., 81 NLRB 1019.
101n accord with the stipulation of the parties , secretaries to Food Fair's comptroller
and its public and Industrial officer are excluded from the unit as confidential employees.
Sherman White & Company and Local 543, International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, Petitioner. Case No. 13-RC-5480. April 17,1958
DECISION AND CLARIFICATION OF UNIT
Pursuant to a stipulation for certification upon consent election
executed by the parties on April 25, 1957, an election by secret ballot
was conducted on May 3, 1957, under the direction and supervision of
the Regional Director for the Thirteenth Region, among certain
120 NLRB No. 71.
500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees at the Employer's Goodland, Indiana, plant. At the con-
clusion of the election, the parties were furnished a tally of ballots
which showed that approximately 24 eligible voters cast ballots, of
which 17 were for the Petitioner, 6 were against the Petitioner, and
I ballot was challenged. No objections were filed to the tally of bal-
lots or to the conduct of the election. Accordingly, on May 13, 1957,
the Regional Director certified the Petitioner as the bargaining repre-
sentative of the employees in the unit herein involved.
Thereafter, by letter of October 28, 1957, the Petitioner filed a
motion to clarify the employee status of Ray Souligne. The Board on
December 13, 1957, issued a notice to show cause why Ray Souligne
should not be included in the unit and on January 17, 1958, remanded
the proceeding to the Regional Director for the Thirteenth Region for
the purpose of receiving evidence as to whether Ray Souligne should
or should not be included in the unit. On February 4,1958, a hearing
in this matter was held before Virginia M. McElroy, hearing officer.
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 National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Leedom and Members
Bean and Fanning].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
Act.
2. The Petitioner is a labor organization claiming to represent
certain employees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of 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 constitute a unit ap-
propriate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act:
All production and maintenance employees at the Employer's milk
distribution and poultry and dairy products processing plant in Good-
land, Indiana, including truckdrivers, but excluding office and plant
clerical employees, guards, professional employees, and supervisors
as defined in the Act.
5. The Employer contends that Ray Souligne should be excluded
from the unit as a supervisor. The Petitioner would include him as
a maintenance employee. Souligne is employed as a garage mechanic
and maintenance man: He does the repair work on the Employer's
14 or 15 trucks, maintains plant equipment, and keeps the plant in
repair. He is the only employee regularly employed on this work
except for two boilerroom employees who, when they have free time
MOUNT EMILY LUMBER COMPANY 501
in the boilerroom and are not needed elsewhere in the plant, assist him
in the garage for several hours a day. At that time and because of
his greater skill and experience,' he tells these employees what work
to perform in the garage. However, he does not assign these
employees to the garage or to work elsewhere in the plant. Souligne
is paid on a weekly basis 2 but is not the highest-paid employee in the
unit and like other employees in the unit, he receives overtime pay,
on a sliding-scale basis, for all hours worked in excess of 40. Souligne
testified that 2 or 3 weeks before the election herein, the plant manager
advised him that he was a foreman and gave him a pay increase, but
despite that fact he has continued to perform the same duties. Souligne
spends all his time on manual work, does not attend supervisory meet-
ings, has never granted overtime or a raise, has never discharged
an employee or recommended a layoff, and the record does not show
that he otherwise has or exercises the authority of a supervisor as
defined in Section 2 (11) of the Act. Under such circumstances we
find that Souligne is not a supervisor and shall include him in the unit.
Accordingly, the bargaining unit herein found appropriate, and for
which the Petitioner was duly certified as the statutory representative,
is hereby clarified so as to include Ray Souligne therein.
1 Souliene has heen employed by the Employer for approximately 29 years
2 We find without controlling effect the fact that Souligne had been paid while absent
because of illness in accord with an alleged policy of the Employer to pay supervisors
when off duty because of sickness. The record shows that it is customary for the
Employer to pay all regular help on the weekly payroll during such periods, and it
appears that this payroll is not confined solely to supervisors.
Mount Emily Lumber Company , a Division of Valsetz Lumber
Company and Lumber and Sawmill Workers, Local Union
2851, AFL-CIO, Petitioner. Case No. 36-RC-1300. April 18,1958
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Robert J. Wiener, hearing
officer. 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-mem-
ber panel [Members Rodgers, Jenkins, and Fanning].
1 The hearing officer referred to the Board ruling on Petitioner's offer in evidence of
an unpublished decision of the Board in a representation proceeding As Petitioner offers
the decision for the purpose of urging the principles of appropriate unit embodied therein,
and as the Board takes judicial notice of its own decisions without requiring that they
be intioduced into evidence and formally proven, we shall not admit the decision offered
by Petilloner into evidence but shall consider it a part of Petitioner's brief and arguments
to the Board.
120 NLRB No. 69.