Stokely Foods, Inc.

National Labor Relations Board - Board Decisions

Jul 30, 1948

78 N.L.R.B. 842 (N.L.R.B. 1948)

In the Matter of STOKELY FOODS, INC., EMPLOYER and AMALGAMATED
MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA, AFL,
PETITIONER
In the Matter of STOKELY FOODS, INC., EMPLOYER and INTERNATIONAL
BROTHERHOOD OF TEAMSTERS , CHAUFFEURS , WAREHOUSEMEN AND
HELPERS OF AMERICA, LOCAL UNION No. 621, AFL, PETITIONER
Cases No. 10-RC-148 and 10-RC-153, respectively. Decided July 30,
1948
DECISION
AND
DIRECTION OF ELECTIONS
Upon separate petitions duly filed , a hearing in the above con-
solidated cases was held at Newport , Tennessee , on April 14, 1948,
before Lamar E. Kemp, hearing officer.' T. Lowry Whittaker ap-
peared as counsel to the Board .2 The hearing officer 's rulings made
1 The Employer contends in its brief that it was denied a fair and impartial hearing on
the ground that the hearing officer was biased and prejudiced against it because he was
engaged in an investigation of unfair labor practice charges against the Employer at the
time of the hearing. We find no merit in this contention . Representation proceedings
are investigatory in character rather than adversary and no final order issues . The hear-
ing officer ' s statement in representation cases makes clear his neutral functions and
responsibilities . Since the Board makes its own determination upon the facts adduced,
the only material questions are (1 ) whether through rulings and general conduct of the
hearing, all parties had ample opportunity to present in an orderly and suitable manner
matters pertinent to the issues ; and (2 ) whether the entire record fully discloses the evi-
dence required for a proper disposition of the issues . The duty of the hearing officer in
representation cases is thus to present a complete record , upon which the Board , and not
the hearing officer, may in the first instance determine the facts and predicate thereon
pertinent conclusions . Matter o f The Pure Oil Company ( Heath Refinery ), 74 N L R. B.
1382; Matter of Standard Oil Company of California , 63 N L R B . 471, N. L. R. B. v.
Botany Worsted Mills, 133 F . ( 2d) 876 (C C. A. 3) The instant record does not disclose
that any party was denied an opportunity to introduce evidence pertinent to the issues
or was otherwise prejudiced by the hearing officer 's conduct.
' On a motion by the Employer , the Regional Director disqualified Whittaker from
serving as hearing officer in this proceeding . At the hearing the Employer made a motion
to disqualify him from appearing as counsel to the Board because of bias, prejudice, and
prejudgment of issues . The hearing officer reserved to the Board the ruling on this motion.
It appears from the order of the Regional Director that Whittaker 's disqualification was
merely pro forma and without prejudice to his acting in 'another capacity ; that there were
no substantial reasons advanced by the Employer for such disqualification , and that there
was no finding of fact that he was prejudiced and incapable of acting as hearing officer.
As counsel to the Board, it was his duty to assist the hearing officer in obtaining the facts
necessary for the determination of the issues by the Board . The Employer 's contention is
not that he failed to perform this function or that it was not afforded an opportunity to
introduce pertinent evidence , but that having been removed as hearing officer, he should
have been barred from appearing in another capacity . We find this contention without
merit. Accordingly , the motion is hereby denied, _
78 N. L . R. B., No. 108. _
842
STOKELY FOODS, INC. 843
at the hearing are free from prejudicial error and are hereby affirmed.
The Employer's request for oral argument is hereby denied, as the rec-
ord and brief, in our opinion, adequately present the issues and the
positions of the parties. The Employer's motions to dismiss the
petitions are denied for the reasons hereinafter stated.
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-man panel consisting of the undersigned Board
Members.*
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
National Labor Relations Act.
2. The labor organizations named below claim to represent em-
ployees of the Employer.
3. The questions concerning representation :
At the hearing, and also in its brief, the Employer moved to
dismiss the petitions upon the ground that no questions concerning
representation exist. The hearing officer referred this motion to
the Board. The Employer contends that, under Section 9 (c) (1) of
the amended Act, the Board has the power to direct an election only
if it finds upon the record that a question concerning representation
exists and that, in order to make such a finding, the record must con-
tain evidence showing that the Petitioners have been designated by
a substantial number of employees. It further contends that it is
entitled to require the production and receipt in evidence of the au- .
thorization cards by which the Petitioners purported to show their
representative interests We find no merit in these contentions. The
Board's authority to conduct an investigation under Section 9 (c) (1)
of the amended Act is in no manner dependent upon the showing
by the Petitioners of a prima facie representative interest .4 We have
repeatedly held, both before and after the enactment of the Labor
Management Relations Act of 1947, that a substantial showing of
interest is solely a matter of administrative procedure to be deter-
mined by the Board itself and is not subject to direct or collateral
attack .5 When we are satisfied that a prima facie showing has been
made, as we are here, we shall proceed to determine the questions con-
Chairman Herzog and Members Houston and Reynolds.
s The Employer attempted to introduce into evidence by use of subpoenas duces tecum
the authorization cards of the Petitioners . The hearing officer properly revoked a subpoena
and refused to admit in evidence authorization cards obtained through another subpoena
as being irrelevant and immaterial to any matter before the Board in the proceeding.
Matter of 0. D . Jennings & Company, 68 N. L. R. B. 516; Matter of Lion Oil Company,
76 N. L. R. B. 565; Matter of Minnesota Mining and Manufacturing Co., 76 N. L. R. B. 568.
c At the hearing, the Employer 's manager of Industrial Relations and its personnel super-
visor were permitted to testify concerning a conversation with the representative of the
Meat Cutters, which conversation purported to show that the authorization cards sub-
mitted to the Board by the Meatcutters at the time its petition was-filed were old desig-
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cerning representation, which, in the present case, can best be re-
solved by a secret ballot election e
We find that questions affecting commerce exist concerning the
representation of employees of the Employer, within the meaning of
Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The appropriate units :
Case No. 10-RC-148: We find, in accord with the agreement of
the parties, that all production and maintenance employees at the
Newport, Tennessee, plant of the Employer, including all truck drivers
other than over-the-road truck drivers, but excluding laboratory em-
ployees, office and clerical employees, over-the-road truck drivers, farm
laborers, seasonal workers, guards, professional employees, subfore-
men and supervisors, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9 (b) of
the Act.7
Case No. 10-RC-153: We find, in accord with the agreement of
the parties, that all over-the-road truck drivers at the Newport,
Tennessee, plant of the Employer, excluding truck drivers other than
over-the-road truck drivers, all production and maintenance employ-
ees, laboratory employees, office and clerical employees, farm laborers,
seasonal workers, guards, professional employees, subforemen and
supervisors, constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9 (b) of the Act.
5. The determination of representatives :
We shall direct that the questions concerning representation which
have arisen be resolved by elections by secret ballot, subject to the
limitations and additions set forth in the Direction.
The Employer urged, in a motion made at the hearing and in its
brief, that the petitions be dismissed because charges of unfair labor
practices under Section 8 (a) (1) and 8 (a) (3) of the Act have been
filed against the Employer. The hearing officer reserved to the Board
the ruling on this motion. The charges were filed by three individuals
and not by the Meat Cutters or the Teamsters, the Petitioners herein.
At the hearing, the Petitioners disclaimed any interest in the charges.
There is nothing in the record to indicate that the three individuals
concerned would be included in any unit involved in this proceeding.
Moreover, we believe that it would be inequitable to permit the Em-
ployer to make its own alleged misconduct the basis for dismissing
nations. This testimony should have been excluded as irrelevant . However, the Meat-
cutters has not been prejudiced , because we are administratively satisfied that it has made
an adequate showing of representation . Matter of Texas d Pacific Motor Transport Com-
pany, 77 N. L. R. B. 87; Matter of Noblitt Sparks Industries , Inc., 76 N . L. R. B. 1230;
Matter of Dickson-Jenkins Manufacturing Company, 76 N. L. R. B. 449.
e Matter of Fort Howard Paper Company, 77 N. L. R. B 46; Matter of Walt Disney
Productions , 76 N. L . R. B. 121 ; Matter of Davis Lumber Company, Inc., 75 N. L.-R. B. 851.
7 This is the unit requested in the petition as amended at the hearing on oral motion by
the Petitioner.
STOKELY FOODS, INC. 845
the proceeding. Accordingly, we shall deny the motion of the Em-
ployer to dismiss the petitions and shall not withhold directing elec-
tions because of the pending charges." We shall not, however, permit
the subject matter of the pending unfair labor practice charges to con-
stitute a valid basis for setting aside the elections if that result should
ever be sought.
We shall allow the three individuals, allegedly discriminatorily
refused employment, to participate in the elections, by casting separate
sealed ballots to be opened and counted by the Regional Director only
if determinative of the election results. In the event that the ballots
would be determinative, we shall then decide whether these individuals
were properly eligible to vote in the elections. By allowing them to
vote we are in no way passing upon the validity or invalidity of the
charges which they have filed.9
DIRECTION OF ELECTIONS
As part of the investigation to ascertain representatives for the pur-
poses of collective bargaining with Stokely Foods, Inc., Newport,
Tennessee, elections by secret ballot shall be conducted as early as
possible, but not later than thirty (30) days from the date of this
Direction, under the direction and supervision of the Regional Di-
rector for the Tenth Region, and subject to Sections 203.61 and 203.62
of National Labor Relations Board Rules and Regulations-Series 5,
among the employees in the units found appropriate in Section 4,
above, who were employed during the pay-roll period immediately
preceding the date of this Direction, including employees who did not
work during said pay-roll period because they were ill or on vacation
or temporarily laid off, but excluding those employees who have since
quit or been discharged for cause and have not been rehired or rein-
stated prior to the date of the elections, and also excluding employees
on strike who are not entitled to reinstatement, to determine whether
or not the employees in the unit found appropriate in Case No. 10-RC-
148 desire to be represented by Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL, for the purpose of bollec-
tive bargaining; and to determine whether or not the employees in the
unit found appropriate in Case No. 10-RC-153 desire to be repre-
sented by International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, Local Union No. 621, AFL, for the
purposes of collective bargaining.
See Matter of Austin-Western Machine Corporation, 67 N. L. R. B. 692 ; see also Matter
of Parkchester Machine Corporation, 72 N. L. R. B. 1410; Matter of Robbins Tire & Rubber
Co., Inc., 72 N L. R. B. 157.
See Matter of David Katz and Fannie Katz, d/b/a Katz Food Products Company, 76
N. L. R. B . 312; Matter of Pohs -Ring-Green, Inc., 68 N. L. R. B. 37; Matter of Longhorn
Roofing Products, Inc., 67 N. L. R. B. 84.