Stokely Foods, Inc.

National Labor Relations Board - Board Decisions

Jun 6, 1947

73 N.L.R.B. 1503 (N.L.R.B. 1947)

In the Matter of STOKELY FOODS, INC., EMPLOYER and AMALGAMATED
MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA, AFL,
PETITIONER
Case No. 10-R-2473.-Decided June 6, 1947
Barnes , Hickana , Pantzer cC Boyd , by Messrs . Frederic D. Anderson
and Robert S. Ashby, of Indianapolis , Ind., and Mr. C. L. Eldrige,
of Indianapolis , Ind., for the Employer.
Mr. A. C. Allen , of Madison , Tenn., for the Petitioner.
Mr. Paul Christopher , of Knoxville , Tenn., and Mr . John J. Brown-
lee, of Atlanta , Ga., for the Intervenor.
Mr. R. W. Hall, of Knoxville, Tenn ., for the Teamsters.
Mr. Robert J. Freehling, of counsel to the Board.
DECISION
AND
DIRECTION
Upon a petition duly filed, the National Labor Relations Board,
on February 20, 1947, conducted a prehearing election among the em-
ployees of the Employer in the alleged appropriate unit, to determine
whether they desired to be represented by the Petitioner or by Food,
Tobacco, Agricultural and Allied Workers, Union of America, CIO,
herein called the Intervenor, for the purposes of collective bargain-
ing, or by neither.
At the close of the election, a Tally of Ballots was furnished the
parties. The Tally shows that, of the approximately 172 eligible
voters, 45 cast votes for the Petitioner, 44 for the Intervenor, and 71
for neither, and that 16 ballots were challenged and-2 ballots were de-
clared void; 1 however, there are actually 17 ballots considered as
challenged, the additional ballot being that of Leona Douglas, men-
tioned hereinafter.
i The hearing officer admitted into evidence over the Employer's objections, a Tally of
Ballots which had been altered in certain respects subsequent to the time of the election
and of the parties' signatures The record indicates that the changes made on the Tally
did not relate to the count of the ballots, but merely to the Bo,ud agent' s conclusions
drawn therefrom We are of the opinion, therefore, that the rights of the parties were
not impaired by the alterations in question, and that the hearing officer s ruling in this
connection was proper
73 N L. R B, No 254.
1503
1504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Subsequently, hearing in this case was held at Newport, Tennessee,
on March 18, 1947, before William M. Pate, hearing officer. At the
hearing and in its brief, the Employer moved to dismiss the petition
filed herein, on the ground that the results of the election indicated con-
clusively that neither the Petitioner nor the Intervenor represents
a majority of the employees in the alleged appropriate unit. Ruling
on this motion was reserved for the Board. For the reasons stated
in Section V, infra, the Employer's motion is hereby denied. The
hearing officer's rulings made at the hearing, which are pertinent to
the Decision, are free from prejudicial error and are hereby affirmed.2
Upon the entire record in the case, the National Labor Relations
Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF TILE EMPLOYER
Stokely Foods, Inc., a Delaware corporation with its principal
office in Indianapolis, Indiana, is engaged in canning and food proc-
essing at its Newport, Tennessee, plant. During the 12-month period
ending March 15, 1947, the Employer used at this plant raw materials
valued in excess of $50,000, of which approximately 70 percent repre-
sented shipments from sources outside the State of Tennessee. Dur-
ing the same period, the Employer distributed from this plant finished
products valued in excess of $100,000, of which approximately 50 per-
cent represented shipments to customers outside the State.
The Employer admits and we find that it is engaged in commerce
within the meaning of the National Labor Relations Act.
TI. THE .ORGANIZATIONS INVOLVED
The Petitioner is a labor organization affiliated with the American
Federation of Labor, claiming to represent employees of the Employer.
The Intervenor is a labor organization affiliated with the Congress
of Industrial Organizations, claiming to represent employees of the
Employer.
2 At the hearing, the Employer asserted its "surprise" that evidence iwas to be adduced
with respect to the ballot of Leona Douglas and moved for a continuance principally on
that ground It appears, in this connection, that the ballot of Leona Douglas was first
challenged, and later declared "void," by the Boaid agent, on the ground of the alleged
ineligibility of this individual to participate in the election. The motion was denied by
the hearing officer The Eniplo3er, in its biief, contends that the hearing officer's action
deprived it of an "appropiiate hearing" under the Act and, in addition, constituted a denial
of "due process " In view of our decision in Section V, infra, with respect to the ballot
in question, we find it unnecessary at this time to pass upon the propriety of this ruling
made by the hearing officer.
'International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America AFL, herein called the 'teamsters, appeared at the hearing for the limited purposes
disinssed in fn 6, infia
STOKELY FOODS, INC.
III. THE QUESTION CONCERNING REPRESENTATION
1505
The Employer refuses to recognize the Petitioner as the exclusive
bargaining representative of employees of the Employer until the
Petitioner has been certified by the Board in an appropriate unit.
We find that a question affecting commerce has arisen concerning
the representation of employees of the Employer, within the mean-
ing of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The Petitioner seeks a unit comprising, in effect, all production and
maintenance employees at the Employer's Newport, Tennessee, plant,
including subforemen, but excluding the laboratory worker, watch-
men, truck drivers, office and clerical employees, farm laborers, sea-
sonal workers, managerial employees, and supervisors. While
agreeing generally with the unit requested by the Petitioner, both
the Employer and the Intervenor would include the watchmen, and
the Intervenor, in addition, would include the laboratory worker and
truck drivers, in the unit.4
The disagreement of the parties as to the composition of the unit is
reflected in the Board agent's challenges to the ballots of 16 em-
ployees, detailed below, who are classified as watchmen or truck
drivers; the laboratory worker did not seek to participate in the
election.
Watc/imen,: The ballots of the following employees in this classi-
fication were challenged by the Board agent: Richard Reed, Howard
Barnett, Lowrey Suggs, David Freshnour, and George W. Williams.
One of the above watchmen, who is assigned to the day shift,
works at the gate to the Employer's plant, where he directs traffic
and observes visitors and workers entering and leaving the plant
grounds. The remaining watchmen serve on the night shift, per-
forming gate duties, patrolling the Employer's property, and tending
the plant boilers. The record indicates that, although they are
armed and deputized, these employees are not militarized, and that
their duties with respect to infractions of the Employer's rules are
restricted to preventing drunkenness and thefts. Under the circum-
stances, we are of the opinion that the watchmen perform functions
essentially custodial in nature and we shall, in accordance with our
usual policy, include them in the unit.`
'The Emploier also requested that all salaried workers be specifically excluded from
the unit , however , we find it unneeessarv to consider this contention, inasmuch as it
appears that such employees are embraced in the classifications of office and clerical em-
ployees, managerial employees and supervisors , concerning whose exclusion the pasties
are in agreement
'Cf Matter of The Parlay 4svoeiatmon of Chicago, 73 N L It It 627 i(atter of
Northwest Pngmnrer,ng Connpanq , 72 N L R B 40 , and Matter of ]Tans Rees' Sons, 61
N L R B 541 There is clearly no basis for holding , as the Petitioner, in effect , contends,
that the watchmen are confidential employees within the Board ' s definition of that term.
739926-47-v of 78 97
1506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
0
Truck drivers: The Board agent challenged the ballots of the fol-
lowing truck drivers of the Employer : Frank Pahka, Cecil Ballard,
Floyd White, Briscoe Cole, Harding Odell, Jeter Shelton, Guy Smith,
Drew Owens, Jay D. Helton, Walter Reed, and Glenn Ledferd.
These employees are engaged principally in hauling supplies to and
around the plant and in delivering finished products to the Em-
ployer's customers. They also appear to devote a "negligible" portion
of their time to aiding in plant operations during rush seasons.
Pursuant to our customary practice of not including such employees
in production and maintenance units in the event of disagreement
between the parties, we shall exclude the truck drivers from the iniit.6
Laboratory worker: This employee assists the Employer's graduate
chemist, a clearly supervisory employee, in conducting quality control
tests and research, and, in addition, performs related clerical tasks in
the laboratory. Although he is hourly paid, similarly to the produc-
tion and maintenance employees, it appears that the laboratory worker
is required to possess at least a high-school education; that he must also
receive from 3 to 6 months' training under the immediate direction of
the chemist; and that his work is confined to the laboratory, which is
located apart from the remainder of the Employer's plant operations.
In view of the foregoing, and on the entire record in the case, we are
of the opinion that the laboratory worker has interests different from
those of the production and maintenance employees and, accordingly,
we shall exclude him from the unit.8
We find that all production and maintenance employees at the
Employer's Newport, Tennessee, plant, including watchmen and sub-
foremen,° but excluding the laboratory worker, truck drivers, office and
clerical employees, farm laborers, seasonal workers, managerial em-
ployees, supervisors, and all other supervisory employees with author-
ity to hire, promote, discharge, discipline, or otherwise effect changes
in the status of employees, or effectively recommend such action, con-
stitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
Matter of Deeco Company, 71 N L R B 112, and dotter of Bipon J((,Eson Companti
66 N I. R B 1312 At the hearing, the Teamsters requested, in effect, that the Board
establish a separate unit of the Employers truck dnvers Hovtever inasmuch as we are
administratively advised that the Teamsters failed to submit any showing of interest
among these employees. its request is heicby denied
7 There appears to have been no past history of collective bargaining at the plant involved
herein However, at other plants of the Employee where collective bargaining agreements
have been executed covering units of employees comparable to that sought in the instant
case, laboratory workers, performing duties similar to those described above, have been
uniformly excluded from such contracts
b Cf Matter of United States Gypsum Company, 72 N L It B 863, and Matter of Armour
Fertilizer Works, Division of Armour and Company, 66 N L R B 36[5
°The record indicates that these employees fail to exercise supervisory authority within
the Boaul's customary definition of that term
STOKELY FOODS, INC.
V. THE DETERMINATION OF REPRESENTATIVES
1507
As appears from the Tally of Ballots herein, the results of the elec-
tion indicate that, regardless of the disposition of the challenged bal-
lots, no choice on the ballot received a majority of the valid votes cast.
Under these circumstances, the Board's Rules and Regulations pre-
scribe that a run-off election may be conducted, if duly requested by a
representative entitled to appear on the run-off ballot, and that, in
general, the run-off ballot shall provide for a selection between the two
choices that receive the largest and second largest number of valid votes
cast in the election.10 However, the Employer argues that the conduct
of such run-off elections is beyond the scope of the Board's "statutory
authority," and that, therefore, the results of the election herein are
conclusive in showing that neither the Petitioner nor the Intervenor
represents a majority of the employees in the appropriate unit. We
find no merit in this contention. As we have previously held, the
Board's authority to conduct run-off elections where, as in the instant
case, a majority of the employees in an appropriate unit have mani-
fested a desire for representation, is derived from Section 9 (c) of the
Act 11
In conformance with our conclusions in Section IV, supra, we hereby
sustain the challenges to the ballots of Frank Pahka, Cecil Ballard,
Floyd White, Briscoe Cole, Harding Odell, Jeter Shelton, Guy Smith,
Drew Owens, Jay D. Helton, Walter Reed, and Glenn Leclfercl, and
overrule the challenges to the ballots of Richard Reed, Howard Bur-
nett, Lowrey Suggs, David Freshnour, and George W. Williams. In-
asmuch as the counting of the ballots declared valid may be determina-
tive with respect to the choices to be provided on the run-off ballot,
we shall direct that the ballots of Richard Reed, Howard Burnett,
Lowrey Suggs, David Freshnour and George W. Williams be opened
and counted.
We shall make no determination at the present time as to the remain-
ing ballot in issue herein, namely that of Leona Douglas, which was
treated by the hearing officer as among those challenged. Our decision
thereon will await the outcome of the opening and counting of the
five ballots discussed above and the service upon the parties of a Sup-
plemental Tally of Ballots, incorporating in such Tally the count of
those ballots. If, at that time, it appears that the ballot of Leona
Douglas is controlling, we shall consider the issues raised with re-
spect thereto.
in Section 203 56 of National Labor Relations Board Rules and Regulations-Series 4
"Matter of Scripto Manufacturing Company , 67 N L R B 1078 Cf. Matter of Donnell
& Mudge, Inc , 65 N L R B 567
1508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DIRECTION
As part of the investigation to ascertain representatives for the pur-
poses of collective bargaining with Stokely Foods, Inc., Newport, Ten-
nessee, the Regional Director for the Tenth Region shall, pursuant
to Section 203.55 of National Labor Relations Board Rules and Regu-
lations-Series 4, within ten (10) days from the date of this Direc-
tion, open and count the ballots of Richard Reed, Howard Burnett,
Lowrey Suggs, David Freshnour, and George W. Williams, and there-
after prepare and cause to be served upon the parties a Supplemental
Tally of Ballots, including therein the count of said challenged ballots.
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Direction.