Meyer Manufacturing Corp.

National Labor Relations Board - Board Decisions

Mar 19, 1968

170 N.L.R.B. 509 (N.L.R.B. 1968)

MEYER MANUFACTURING CORPORATION
Meyer Manufacturing Corporation and Uphol-
sterers ' International Union of North America,
AFL-CIO , Petitioner . Case 25-RC-3566
March 19, 1968
DECISION AND DIRECTION
By MEMBERS BROWN, JENKINS , AND ZAGORIA
On September 7, 1967, pursuant to a stipulation
for certification upon consent election approved by
the Regional Director for Region 25, an election by
secret ballot was conducted in the above-entitled
proceeding, under the direction and supervision of
the Regional Director. Upon the conclusion of the
election, a tally of ballots was furnished the parties
in accordance with the National Labor Relations
Board Rules and Regulations. There were no objec-
tions to the election.
The tally of ballots shows that there were approx-
imately 77 eligible voters and that 73 valid ballots
were cast of which 34 were for the Petitioner, 32
were against the Petitioner, and 7 were challenged.
Inasmuch as the challenged ballots were suffi-
cient in number to affect the results of the election,
the Regional Director caused an investigation to be
made of the challenges and, on October 27, 1967,
issued his report., in which he issued an order
directing a hearing to resolve the issues pertaining
to the challenges. Pursuant to notice, a hearing was
held in Winchester, Indiana, on November 17,
1967, before Hearing Officer Janet Morris. All
parties appeared at the hearing and were afforded
full opportunity to be heard , to examine and cross-
examine witnesses, and to adduce evidence bearing
on the issues. On December 4, 1967, the Hearing
Officer issued her report on challenged ballots.
Thereafter, both the Petitioner and Employer filed
timely exceptions to the recommendations of the
Hearing Officer and supporting briefs.' The Em-
ployer subsequently filed an answering brief to the
Petitioner's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
' Petitioner filed a motion to dismiss and strike from the record Em-
ployer's exceptions , and brief in support thereof This motion was denied
by telegraphic order on December 27, 1967
2 As no exceptions were filed thereto, the Board adopts, pro forma, the
ballots of Tom Bolton and Stanley Nunley, and overruling the challenges to
the ballots of Bruce Ward, Charles Davis , and Larry Gardner
Petitioner excepted to the Hearing Officer 's finding that Robert Day is
509
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 Petitioner is a labor organization claiming
to represent certain employees of the ]Employer.
3. A question affecting commerce exists con-
cerning the representation of the employees of the
Employer within the meaning of Sections 9(c)(1)
and 2(6) and (7) of the Act.
4. The following employees, as stipulated by the
parties, constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of
Section 9(b) of the Act: All production and main-
tenance employees of the Employer at its Lynn, In-
diana, plant, including all regular part-time em-
ployees, the janitor, stockroom attendant, the in-
spector and the group leaders; but excluding all
summer casual employees, guards, foremen, and su-
pervisors as defined in the Act.
5. The Board has considered the Hearing Of-
ficer's report on challenged ballots and the entire
record in the case, including the exceptions and
briefs, and hereby adopts the findings and recom-
mendations of the Hearing Officer, as modified
below.' The rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
The Hearing Officer recommended that the chal-
lenge to the ballot of Eugene Miller be sustained on
the basis that Miller is a guard within the meaning
of the Act. We disagree. Miller was employed as a
janitor and, when hired, was told that his duties
were to clean up. He was further instructed that if
trouble ever occurred, he should stay out of it.
Other than his janitorial duties, Miller took care of
the Employer's watchdog. He brought the dog in
the plant after the employees left, fed and watered
the dog, cleaned up after it, and then took the dog
out again in the morning before the employees ar-
rived. Although Miller has keys to the plant and
does not admit employees without authorization
from the plant manager, he testified that he is not
required to keep people out of the plant.' He does
not make special rounds, nor does he have watch
stations. It further appears that, from 11 or 12 p,m.
until 5 a.m., the Employer 's premises are unat-
not a supervisor There is nothing in the record to indicate that Day pos-
sesses any of the indicia of supervisory authority within the meaning of Sec-
tion 2(1 1) of the Act Therefore, accepting the Hearing Officer's recom-
mendations, we hereby overrule the challenge to Day's ballot
' There is no evidence in the record to support the Hearing Officer's
finding that Miller was given affirmative " instructions not to admit any
unauthorized person to the plant after working hours "
170 NLRB No. 57
510 DECISIONS OF 'NATIONAL LABOR RELATIONS BOARD
tended except for the dog. There is no record
evidence to show that Miller has authority to en-
force rules. to protect property or persons on the
Employer's premises. On this record, we find that
Eugene Miller performs the work of a janitor and is
not employed as a guard within the meaning of the
Act; we shall overrule, the challenge to his ballot,
and include him in the unit.
Accordingly, we will remand this proceeding to
the Regional Director for Region 25, for- the pur-
poses of counting the ballots to which the chal-
lenges have been overruled,' preparing_ a revised
tally of ballots, and taking such other action as may
be appropriate.
DIRECTION
It is hereby ordered that this proceeding, be, and
it hereby is, remanded to the Regional Director for
Region 25 who shall, pursuant to National Labor
Relations Board Rules and Regulations, within 10
days from the date of this Order, open and count
the ballots of Bruce Ward, Charles Davis, Larry
Gardner, Robert Day, and Eugene Miller, and
thereafter prepare and cause to be served upon
the parties a revised tally of ballots, including the
count of said ballots, and proceed further in ac-
cordance with National Labor Relations Board
Rules and Regulations.
"the challenges overruled are the ballots of Bruce Ward, Charles Davis,
Larry Gardner , Robert Day , and Eugene Miller