Gerber Products Co.

National Labor Relations Board - Board Decisions

Aug 23, 1951

95 N.L.R.B. 1300 (N.L.R.B. 1951)

1300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
foreman at the Aurora shop, ticket agents, and baggage porters, but
excluding watchmen , all employees in the auditing department, the
superintendents of transportation and maintenance , the foremen of
the Jacksonville , New Bern, and Beaufort shops, dispatchers , and all
other supervisors as defined in the Act, constitute a unit appropriate
for collective bargaining within the meaning of Section 9 ( b) of the
Act.
[Text of Direction of Election omitted from publication in this
volume.]
MEMBER HOUSTON, dissenting in part :
I believe these dispatchers are nonsupervisory employees and would
include them in the unit. What recommendations they do make are
subject to an independent investigation and cannot, on this record, be
characterized as having the necessary effectiveness to justify a finding
that the dispatchers are anything more than minor functionaries per-
forming routine administrative duties.
GERBER PRODUCTS COMPANY and UNITED PACKINGHOUSE WORKERS OF
AMERICA, CIO, PETITIONER. Case No. 3-RC-606. August 23,1951
Supplemental Decision and Certification of Representatives
On June 15, 1951, pursuant to a Decision and Direction of Election
issued by the Board herein, an election by secret ballot was conducted
under the direction and supervision of the Regional Director for the
Third Region, among the employees in the unit found appropriate.
Upon completion of the election, a tally of ballots was furnished the
parties. The tally shows that, of the 112 valid votes counted, 23 were
for the Petitioner, 87 for the Intervenor (Federal Labor Union No.
23933, AFL), and 2 against the participating labor organizations. In
addition, there were 23 challenged, and 3 void, ballots.
On June 19, 19517 the Petitioner filed objections to conduct affecting
the election. In accordance with the rules and regulations of the
Board, the Regional Director conducted an investigation, and, on
July 12, 1951, issued and served upon the parties his report on ob-
jections to the election. In his report, the Regional Director found
that the Petitioner's objections raised no substantial or material is-
sues with respect to conduct affecting the results of the election, and
recommended that the objections be overruled and that the Intervenor
be certified as the exclusive bargaining representative of the employees
193 NLRB 1668.
95 NLRB No. 172.
GERBER PRODUCTS COMPANY 1301
in the appropriate unit. The Petitioner timely filed exceptions to the
Regional Director's report.
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 [Members Houston, Murdock, and
Styles].
The Petitioner objected to the election in substance, on the follow-
ing grounds : (1) It had not been afforded an opportunity, before
the election, to check the eligibility list; and (2) the eligibility list
used at the election was an incorrect list of the employees entitled to
vote.
As to the first objection, the Regional Director found that, at the
preelection conference attended by representatives of all the parties
on May 21, 1951, it was agreed that the Employer would prepare
the list of eligible voters, and that this list would, be available for
inspection by representatives of both unions at the office of the Em-
ployer's attorney, during about 1 week before the election. He further
found that the Intervenor utilized this opportunity to check the list,
while the Petitioner failed to do so. He concluded that, as the Peti-
tioner was given ample opportunity to check the eligibility list before
the election, the objection should be overruled. The Petitioner ex-
cepts to those findings and conclusions, alleging that no agreement was
reached at the preelection conference relating to the Employer's pre-
paring an eligibility list, and that the Petitioner was never informed
that such a list was available.
. Even assuming, as asserted by the Petitioner, that no agreement
was reached at the May 21 conference concerning the preparation and
availability of the eligibility list, we find this. objection to be without
merit. The Board's previous decision in this case directed that the
employees eligible to vote should be those employed during the pay-
roll period immediately preceding the date of the issuance' of a notice
of election by the Regional Director. The notice was issued on about
June 7, 1951, and the eligibility payroll date designated in the- notice
was June 2, 1951. The Petitioner does not appear to have requested
an opportunity to check the June 2 list on any occasion following the
issuance of the notice of election, nor was such an opportunity at any
time denied to it .2 Moreover, the Petitioner's observers appeared at
the election, exercised their right to challenge, and certified to the
proper conduct of the election. And there is no evidence that any
ineligible employee was included on the eligibility list or voted.
Under these circumstances, we are of the opinion that the Petitioner's
' while the Petitioner asserts that it requested a list of employees in the possession
of. the Board agent at the May 21 conference , this list, which the Board agent allegedly
refused to'release , was clearly not the voting eligibility list.
1302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
objection relating to its alleged lack of an opportunity to check the
eligibility list should be overruled.3
With respect to the Petitioner's second objection, namely that the
eligibility list used at the election was incorrect, this objection, as
indicated by the Regional Director in his report, is in the nature of a
post-election challenge, which presents no basis for setting aside the
election." Accordingly, we find this objection to be without merit.
As we have overruled the Petitioner's objections and as the Inter-
venor has secured a majority of the valid votes cast in the election, we
shall certify the Intervenor as the representative of the employees in
.,the unit found appropriate in the Board's Decision.
Certification of Representatives
IT IS HEREBY CERTIFIED that Federal Labor Union No. 23933, AFL,
has been designated and selected by a majority of the employees of
the Employer in the unit heretofore found by the Board to be appro-
priate, as their representative for the purposes of collective bargain-
ing and that, pursuant to Section 9 (a) 'of the Act, the said organiza-
tion is the exclusive representative of all the employees in such unit
for the purposes of collective bargaining with respect to rates of pay,
wages, hours of employment, and other conditions of employment.
8 Cf. The Electric Controller & Manufacturing Company, 71 NLRB 410.-
4N. L. R. B. v. A. J. Tower Company, 329 U. S. 324. See also Westinghouse Electric
Corporation, 91 NLRB 955; The Ann Arbor'Press, 88 NLRB 391.
RITE RATE CAB COMPANY, INC. and TEAMSTERS , CHAUFFEURS AND
HELPERS LOCAL # 79, INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, A. F..oF L.,
- PETITIONER
YELLOW CAB COMPANY OF ST. PETERSBURG, INC. and TEAMSTERS,
CHAUFFEURS AND HELPERS LOCAL #79, INTERNATIONAL BROTHER-
HOOD of TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF
AMERICA, A. F. OF L., PETITIONER . Cases Nos. 10-RC-1255 and
lO-RC-1256. August 03, 1951 -
Decision and Direction of Election
Upon separate petitions duly filed," a consolidated. hearing was held
before John S. Patton, hearing officer. The hearing officer's rulings
made at the hearing are free from prejudicial error and are hereby
affirmed.
'These cases were consolidated by order of the Regional Director for the Tenth Region
on April 6, 1951.
95 NLRB No. 175.