Phoenix Pie Co.

In the Matter Of PHOENIX PIE COMPANY, EMPLOYER arid DAIRY, BAK- ERY AND FOOD WORKERS LOCAL 379, AFFILIATED WITH THE RETAIL,. WHOLESALE AND DEPARTMENT STORE UNION, C. I. O., PETITIONER Case No. 9-RC-105.-Decided September 16,1948 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, a hearing was held before a hearing officer, of the National'Labor Relations Board. The hearing officer's rulings. made 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 powei s 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 During the past year. the Employer, a pie baker, purchased materials valued in excess of $100,000, of which approximately 20-percent was received from outside the State of Ohio. During the same period, it sold products valued at more than $150,000, of which approximately 60 percent was sold and shipped outside the State. The Employer operates its own trucks in Ohio, West Virginia, and Kentucky. 2. The labor organization named below claims to represent em- ployees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer, within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 1 At the hearing, the Employer moved to dismiss the petition because the Petitioner did not prove that it represented a substantial number of employees in the unit We have held on previous occasions that the showing, of interest is an administrative matter not open to collateral attack. The motion is denied Matter of 0 D Jennings & Co , 6& N L R B 516 *Chairman Herzog and Members Murdock and Gray 2 Cf Matter of Ste-Kleen Bakery, Inc, 78 N. L R. B 798. 79 N. L. R. B., No. 103. 754 PHOENIX PIE COMPANY 755, 4. The following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act: All employees of the Employer at its Portsmouth, Ohio, plant, including the driver foreman 3 and the night watchman,' but exclud- ing office and clerical employees, confidential and professional em- ployees,the machine-section foreman,' guards, and other supervisors as defined in the Act. DIRECTION OF ELECTION 6 As part of the investigation to ascertain representatives for the purposes 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 Ninth 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 unit found appropriate in paragraph numbered 4, above, who were employed during the pay-roll period immediately preceding the date of this Direction of Election, 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 re- instated 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 the purposes of collective bargaining, by Dairy, Bakery and Food Workers Local 379, affili- ated With the Retail, Wholesale and Department Store Union, C. I. O. 3 We find the driver foreman is not a supervisor within the meaning of the Act 4 As the night watchman spends most of his time as an ordinary checker , we shall include him in the unit. 5 The machine -section foreman may effectively recommend the discharge or disciplining of employees We have thus excluded him fiom the unit as a supervisor The Employer installed mechanical ovens during February and Maich 1948, which resulted in the lay-off of 16 employees The Petitioner contends that 8 of these employees are eligible to vote because their lay -offs were temporary The record indicates , however, that with the exception of Charles Eggers, the lay-offs, while at fist temporary, later became permanent with the successful operation of the mechanical ovens which eliminated certain jobs Accordingly , the 8 employees , with the exception of Eggers , are ineligible to vote in the election . Matte), of Watciman Steamship Corp , 78 N L R B 20