Stokely Foods, Inc.

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 Nos. 10-RC-148 and 10-RC-153, respectively SUPPLEMENTAL DECISION ORDER AND CERTIFICATION OF REPRESENTATIVES January 31, 1949 Pursuant to a Decision and Direction of Elections 1 in the above- entitled proceeding, separate elections by secret ballot were conducted by the Regional Director for the Tenth Region in units therein described.2 Thereafter, Tallies of Ballots were furnished to the parties. The Tally in Case No. 10-RC-148 shows that of 137 eligible voters, 132 persons cast ballots of which 41 were for the Petitioner in that case, 87 were against, and 4 were challenged. No objections to the con- duct of the election have been filed by any of the parties within the time provided therefor. As it appears from the Tally that no collective bargaining representative has been selected, we shall dismiss the peti- tion. The Tally in Case No. 10-RC-153 shows that of 7 eligible voters, 6 persons cast ballots of which 4 were for the Petitioner in that case and 2 against. On September 2, 1948, the Employer filed timely objec- tions to the conduct of the election and to conduct affecting the results 1 78 N L R. B 842. 2 In Case No . 10-RC-148, the appropriate unit was found to be: 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 employees, office and clerical employees , over-the-road truck drivers, farm laborers , seasonal workers, guards, professional employees , subforemen and supervisors. In Case No . 10-RC-153, the appropriate unit was found to be : 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 employees , laboratory employees , office and clerical employees , farm laborers , seasonal workers, guards , profes- sional employees , subforemen and supervisors. 81 N. L. R. B., No. 79. 449 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the election. The Regional Director issued and duly served upon the parties on November 16, 1948, his Report on Objections, recom- mending that the objections of the Employer be overruled. On No- vember 27, 1948, the Employer filed exceptions to the Report on Objections. The objections of the Employer allege as bases for setting aside the election : (1) that five straight truck drivers, who were in fact over-the- road truck drivers and therefore within the appropriate unit and eligi- ble to participate in the election, presented themselves at the polling place, demanded ballots so that they might vote, but were not permit- ted by the Board's agents to cast ballots; (2) that one Frank S. Parks, known by the Board's agents conducting the election to be an active member of the petitioning union, but not so known to the Employer's representatives, was permitted to act as an observer in the election and his presence and actions interfered with, restrained, and coerced the employees in their free participation in the election; (3) that an observer at the election selected by the Employer was refused the right to challenge the ballot of Frank S. Parks for good cause; and (4) that the Field Examiner conducting the election presented to the observers for their signatures a form entitled "Certification on Conduct of Elec- tion" approximately 15 minutes before the time that the polls were to be officially closed and that when the observers selected by the Em- ployer objected to signing, the Field Examiner threatened and intimi- dated them. As regards the first objection, it appears from the investigation of the Regional Director that before the elections, a representative of the Employer prepared lists of eligible voters in accordance with the Board's Decision; that, also before the elections, representatives of the Employer and the Petitioners met in joint conference and checked and approved the eligibility lists as prepared by the Employer; that the names of the five straight truck drivers whose exclusion from the over-the-road voting unit in Case No. 10-RC-153 is now questioned ap- peared on the list furnished by the Employer as plant drivers eligible to vote in the election in Case No. 10-RC-148; that these five persons presented themselves at the polling place, were advised that their names appeared on the eligibility list for the election in Case No. 10- RC-148 and voted in that election without challenge by the Employer; and that these five individuals are customarily employed to drive small trucks in and around the Employer's plant and deliver loads for com- paratively short distances. The Employer now contends that the Regional Director's finding, with respect to the particular duties of the employees in question, is essentially contrary to fact. However, as the Employer prepared the eligibility lists for the elections, checked and approved them and STOKELY FOODS, INC. 451 did not challenge the right of these straight truck drivers to vote in the election in Case No. 10-RC-148, we are impelled to agree with the Regional Director that they voted properly in that election. More- over, an examination of the record in this case discloses that the Em- ployer at the hearing took the position that the distinction between over-the-road truck drivers and plant truck drivers should be deter- mined by the fact that the former drive semi-trailers, whereas the latter drive straight trucks. Although the Board's customary definition of over-the-road truck drivers is not based primarily upon the type of truck driven,3 the evidence as to the duties of the drivers in the case indicates that the semi-trailer drivers carry canned goods to customers whose warehouses are in a six- or seven-State area, while the straight truck operators are generally limited to local deliveries in and about the plant or from the farm to the plant. It is apparent, therefore, that the Employer's semi-trailer truck drivers are in fact its over- the-road drivers, and its straight truck drivers are in fact its plant truck drivers. Accordingly, we find that the straight truck drivers herein concerned were properly included within the group of em- ployees eligible to vote in Case No. 10-RC-148 and were thus ineligible to vote at the election held in Case No. 10-RC-153. The second and third objections of the Employer alleged as grounds for setting aside the election are: (1) that the presence and conduct of Frank S. Parks, an active union member, as an observer had a coer- cive effect upon the employees who were voting; and (2) that the fact that he was an observer constituted good cause for challenging his eligibility to vote. However, we do not agree with the Employer's contention that the mere presence of a fellow employee as an observer prevented a free choice in the selection of a collective bargaining rep- resentative 4 Furthermore, the Regional Director's finding is that Parks' conduct was exemplary in the present instance. Under the cir- cumstances, we see no impropriety in the fact that Parks, an eligible voter, acted as observer for the Petitioner and voted.5 Although the observer selected by the Employer was improperly denied the right to challenge Parks' ballot by the Field Examiner, no prejudice re- sulted therefrom in the present instance, as we would have overruled the challenge to the ballot of the employee concerned. Accordingly, we find that the second and third objections of the Employer are without merit. With respect to the fourth objection, the Regional Director found that the Field Examiner did in fact distribute, 15 minutes before the ' See Matter of Omaha Cold Storage Company, 73 N. L R. B. 406 and cases cited therein. 4 See Matter of United States Gypsum Company, 80 N. L. R. B . 1205, wherein we found that the mere presence of a union official , who was also an employee , as an observer did not interfere with the voters' freedom of choice. ' Matter of Kroder-Reubel Company, Inc., 72 N. L. R. B 240. 829595-50-vol. S1-30 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD time for closing the polls, copies of the "Certification On Conduct of Election" to all observers to be read and signed, but that they were not told, as contended by the Employer, that they were required by law to sign them. At most, the distribution by the Field Examiner of the copies of the "Certification" can be considered a premature closing of the polls. However, as six of the seven eligible voters had already cast ballots and it was known to the persons participating in the elec- tion that the seventh eligible voter was out of the city and would not return before the closing of the polls, we do not believe the Field Ex- aminer's action in this respect was improper 6 There is no evidence that the non-voter did not vote for any reason connected with the premature closing of the polls, or that he appeared at the polling place after the official closing and attempted to vote. Accordingly, we find no merit to this objection 7 Under all the circumstances, we find that the objections of the Em- ployer do not raise substantial or material issues with respect to the conduct of the election and conduct affecting the results of the election. The objections and exceptions of the Employer are accordingly overruled. As the Tally in Case No. 10-RC-153 shows that a majority of all ballots cast were for the Petitioner, we shall certify it as the collective bargaining representative of employees in the appropriate unit. ORDER IT IS HEREBY ORDERED that the petition for investigation and certi- fication of representatives filed in Case No. 10-RC-118 be, and it hereby is, dismissed. CERTIFICATION OF REPRESENTATIVES IT IS HEREBY CERTIFIED that International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 621, AFL, has been designated and selected by a majority of the employees of Stokely Foods, Inc., Newport, Tennessee, in the unit heretofore found by the Board to be appropriate in Case No. 10-RC- 153, as their representative for the purposes of collective bargaining, and that, pursuant to Section 9 (a) of the Act, the said organization is the exclusive representative of all the employees in such unit for the purposes of collective bargaining, with respect to rates of pay, wages, hours of employment and other conditions of employment. MEMBERS MURDOCK and GRAY took no part in the consideration of the above Supplemental Decision, Order, and Certification of Repre- sentatives. e See Matter of National Kaolin Products Company, 73 N. L R. B. 1161. ' See Matter of Morris Harris and Anna Harris, d/b/a Union Manufacturing Company, 72 N. L. R. B. 494.