Ellis-Klatscher & Co.

In the Matter of ELLIS-KLATSCIIER & Co., EMPLOYER and ABRAHAM BLOOM , PETITIONER and INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREIIOUSEMEN AND HELPERS OF.AMERICA, A. F. L., LOCAL 598, UN lON Case No. 21-RD-9.-Decided August 27, 1948 DECISION' AND DIRECTION OF ELECTION Upon a petition for decertification duly filed, a hearing was held before a hearing officer of the National Labor Relations Board. At the hearing, the Employer offered testimony tending to' prove that the unit previously certified by the Board was not appropriate in the instant proceeding because it included six persons who were super- visors within the meaning of the Act. The hearing officer rejeeted'this offer of proof on the ground that the Board could only decertify in the same unit that was previously certified. This ruling was er- roneous, and, for reasons set forth in paragraph 4, infra, is reversed. The other rulings 1 made by the hearing officer 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 panel consisting of three Board Members.* 2 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 Petitioner, an employee of the Employer, asserts that the Union is no longer the representative of the Employer's employees as defined in Section 9 (a) of the Act. The Union, a labor organization affiliated with the American Fed- eration of Labor, was previously certified by the Board as the bargain- ing representative of employees of the Employer. Houston, Reynolds , and Gray. 1 The hearing officer properly excluded proferred evidence of unfair labor practices. Mat- ter of H. 0 Canfield Company, 76'N L R B. 606. ] James J. Reynolds , Jr., member of the panel , is,not participating. 79 N. L R B., No. 22 183 184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. The question concerning representation : On December 12, 1940,3 the Union was certified as the bargaining representative of a unit of the Employer's warehouse employees. Again on April 30,1942,¢ the Board issued a bargaining order against the Company, upon finding, among other things, that the Union was the exclusive bargaining representative. This order was enforced by the United States Circuit Court of Appeals for the Ninth Circuit 5 by a decree entered April 25, 1944. The record shows that at no time since the date of the circuit court of appeals' decree did the Employer and the Union execute a collective bargaining agreement. We have ,held that where more than a year has elapsed since the entry by the court of a decree directing an employer to bargain with a union, and no contract has resulted, the court order will not act as a bar to a current determination of representatives.' In the instant case, more than 4 years have elapsed since the entry of the court decree.' We have also held that the same rules of decision are appli- cable to decertification cases as to certification cases .8 Under these circumstances, we find that the court's decree does not constitute a bar to the instant decertification proceeding.9 Accordingly, we find that a question affecting commerce has arisen concerning the representation of employees of the Employer, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. 4. The appropriate unit; the determination of representatives : The Petitioner and the Union contend that the appropriate unit is a unit of all employees employed in the company warehouse, including department heads but excluding clerical employees and supervisors. This is the same unit previously certified by the Board.10 The Em- ployer contends that the department heads, head receiving clerks, and head shipping clerks, six in number, are supervisors, and should not, therefore, be included in the bargaining unit. ' Unit agreed upon in a formal cross-check agreement. Unit found appropriate in Matter of Ellis-Klatscher & Co., Case No. C-2008, 40 N L R. B 1037. 5 N. L. R. B. v. Ellis-Klatscher & Co., 142 F. ( 2d) 356 (C C A. 9). ° See Matter of Mascot Stove Company, 75 N. L. R. B. 427. Unfair labor practice charges alleging , inter alia, refusal to bargain were filed by the Union on December 29, 1947, and dismissed on February 17, 1948, by action of the"Regional Director in refusing to issue a complaint. 3 Matter of Snow it Neally Company, 76 N. L. R. B. 390. e The Union also charged at the hearing that the Petitioner was instigated in the filing of the instant petition by a non-complying union which , it contends, is the real party in interest in this proceeding We find no merit in this contention. The desires of the em- ployees can be best ascertained by the election hereinafter directed Matter of Whitin Machine Works, 76 N. L. R B. 998. 10 Matter of Ellis-Klatscher it Co., supra. ELLIS-KLATSCHER & CO. 185 At the hearing, the Employer offered to prove that the afore-men- tioned six individuals are supervisors within the meaning of the Act. The hearing officer refused to accept such testimony on the ground that these individuals were included in the certified bargaining unit and that the Board could only decertify in the same unit as was previ- ously certified. Section 9 (c) of the amended Act, under which decertification peti- tions are filed, provides that elections be held to determine the bar- gaining representatives as defined in Section 9 (a) of the amended Act. The bargaining representative defined in Section 9 (a) is one selected by a majority of the employees in a unit appropriate for such purposes. Section 9 (b) vests in the Board the discretion to determine the appro- priate bargaining unit. However, any person deemed a "supervisor" within the definition in Section 2 (11) is not an "employee" within the meaning of the amended Act and must, therefore, be excluded from the unit. We have held that in determining the propriety of a proposed unit in a decertification case we shall apply the same prin- ciples applicable to a certification case 11 In applying these principles, we believe that the appropriate unit in the instant decertification pro- ceeding must necessarily differ from the unit previously certified if that unit included supervisors within the meaning of the amended Act. Under these circumstances, the proffered testimony concerning the supervisory status of the department heads, head receiving clerks, and head shipping clerks, was material to the determination of an appro- priate unit and should have been received. On the basis of the entire record in this case, we find that all em- ployees employed in the Company's warehouse, excluding clerical em- ployees and supervisors, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. We are making no present determination with respect to the unit placement of the afore-mentioned six individuals, in view of the absence of testimony concerning their alleged supervisory status. We shall, however, direct an immediate election, permitting all employees to participate therein who were employed during the pay-roll period immediately preceding the date of this Direction, including the af- fected individuals who may cast ballots under challenge with the pro- viso that their ballots shall not be counted unless the results of the election makes it necessary to do so12 See Matter of Illinois Bell Telephone Company, 77 N L. R. B. 1073. ix In the event that the counting of the challenged ballots would affect the results of the election, the question as to which of these ballots shall be opened and counted must await further investigation concerning the supervisory status of the persons affected. See Matter of The Pipe Machinery Company, 76 N. L. R. B. 247 ; Matter of Allied Mills, Inv, 76 N. L. R. B. 973. 186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DIRECTION OF ELECTION As part of the investigation to ascertain representatives for the pur- poses of collective bargaining with the Employer , an election by secret ballot shall be conducted as early as possible, but not later than 30 days from the date of this Direction, under the direction and supervision of the Regional Director for the Region in which this case was heard, and subject to Sections 203.61 and 203.62 of National Labor Relations Board Rules and Regulations-Series 5, among the employees in the unit found appropriate in paragraph numbered 4, above, who were em- ployed during the pay-roll period immediately preceding the date of this Direction of Election , including employees who did not work dur- ing said pay-roll period because they were ill or on vacation or tem- porarily laid off, but excluding those employees who have since quit or been discharged for cause and have not been rehired or reinstated prior to the date of the election, and also excluding employees on strike who are not entitled to reinstatement, to determine whether or not they desire to be represented , for purposes of collective bargaining, by In- ternational Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of America, A. F. L., Local 598.