State Chemical Co.

268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the undersigned will recommend that the Respondent , upon request, bargain collectively with the Union as such representative , and if any understanding is reached, embody such understanding in a signed agreement. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following: CONCLtTsIONs OF LAW 'a 1. District Lodge #1, International Association of Machinists is a labor organ- ization within the meaning of Section 2 (5) of the Act. 2. All production, maintenance, and shipping employees of the Respondent employed at its Philadelphia , Pennsylvania, plant, exclusiN a of all office clerical employees, technical and engineering employees, guards, watchmen, professional employees, and all supervisors as defined in Section 2 (11) of the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3. On May 25, 1949, District Lodge # 1, International Association of Machinists was, at all times since has been, and now is, the representative of a majority of the Respondent's employees in the appropriate unit described above for purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 4. By refusing since about January 9 , 1950, and thereafter, to bargain collec- tively with District Lodge #1, International Association of Machinists as the exclusive representative of all its employees in the appropriate unit, the Re- spondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) and (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommended Order omitted from publication in this volume.] 18 The Respondent submitted separately numbered proposed findings of fact and conclu- sions of law. The undersigned accepts the proposed findings of fact numbered 1, 3, 6, 7, 13, 18, 31, 36, and 45. The undersigned rejects the proposed findings of fact numbered 5, 8, 12, 14, 19, 23, 24, 26, 27, 28, 30, 37, 38, 39, 40, 42, 43, 44, and 46 The undersigned also rejects the proposed findings of fact numbered 2, 4, 9, 10, 11, 15, 16, 17, 20, 21, 22, 25, 29, 32, 33, 34, 35, and 41, because, as worded, he cannot accept them entirely. The ,proposed conclusions of law numbered 1, 2, 3, and 4, are rejected. .STATE CHEMICAL COMPANY and INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL, LOCAL 577, PETITIONER. Case No. 16-RC-640. July 18, 1951 Supplemental Decision and Direction Pursuant to a Decision and Direction of Election, issued in the above proceeding on February 8, 1951,1 an election by secret ballot was held on March 3, 1951, under the direction and supervision of the Regional 1 Not reported in printed volumes of Board Decisions. 95 NLRB No. 37. STATE CHEMICAL COMPANY 269 Director for the Sixteenth Region, among employees of the Employer 'in the unit heretofore found appropriate. At the close of the election, a tally of ballots was served on the ,parties. The tally showed that of approximately 14 eligible voters, 8 cast °valid ballots, of which 5 were for the Petitioner and 3 were tagainst the Petitioner, and that 4 votes were challenged. Thereafter, the Petitioner filed timely objections to conduct affecting the results of the election. On March 14, 1951, the Regional Director issued and served upon the parties his report on objections and challenges, in which he found no merit in the objections and recommended that the objections be overruled. He further found that S. Wilson and Allen L. Britton, challenged by the Petitioner and the Employer, respectively, were eligible voters and recommended. that the challenges to their votes be overruled. He further found that W. G. Spoonts and Leo Lovato, challenged by the Petitioner, were not eligible voters and recommended that the challenges to their ballots be sustained. On March 23, 1951, the Employer filed exceptions to the findings and recommendations of the Regional Director as to the eligibility ,of Spoonts and Lovato. The Petitioner filed no exceptions to the Regional Director's report. On April 16, 1951, the Board issued an order directing that the hearing in this proceeding be reopened to take testimony as to the eligibility 'of Spoonts and Lovato. (On May 15, 1951, further hearing was held before Ralph E. Ken- nedy, hearing officer. The hearing officer's rulings iiiade at the re- opened hearing are free from prejudicial error and are hereby affirmed. In its decision, the Board found, in accordance with the agreement ,of the parties, that all drivers, warehousemen, helpers, and shipping .and receiving clerks at the Employer's Amarillo, Texas, store, exclud- ing office and clerical employees, watchmen, guards and supervisors, constitute a unit appropriate for the purposes of collective bargaining. At the original hearing, the Employer submitted a list of proposed 'eligible employees on which Spoonts and Lovato were classified as receiving clerks. There were no other employees listed as receiving clerks. No issue was raised at the hearing with respect to the eligi- bility of Spoonts and Lovato.2 Spoonts and Lovato receive all merchandise delivered to the Em- ployer's warehouses, check bills of lading, and make out receiving We do not agree with the Employer's contention that the Petitioner is estopped to ,raise an issue with respect to the eligibility of Spoonts and Lovato because it did not challenge their classifications on this list. The facts respecting their work were not 'fully disclosed at the original hearing. Tyre Brothers Class & Paint Company, B8 NLRB 65, and cases cited therein. 270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD slips on each delivery. They spend a majority of their time perform- ing these receiving duties. When they are not needed for this work, they fill in their time in the Employer's front office, doing whatever . other jobs they may be directed to do by the Employer's president. Some of the work directly relates to their duties in the warehouse with respect to the receipt of goods, other office work is unrelated to receiving work. In the performance of this unrelated work , they may use the usual office machines, such- as typewriters and adding machines. Lovato, in the absence of the regular bookkeeper, occasionally does .mechanical posting . Both Spoonts and Lovato report to work with other warehouse employees. Office employees report to work one- •halffhour later. On the basis of these facts, and the entire record in the case, includ- ing the record made at the reopened hearing, we conclude , contrary to the Regional Director, that Spoonts and Lovato are receiving clerks and as such, included in the unit found appropriate . As such, they are eligible voters in the election. We therefore reject the Regional Director's recommendation that the challenges to their ballots be sus- tained, and overrule the challenges. As noted above, Regional Director found that S. Wilson and Allen L. Britton were eligible voters and recommended that their ballots .be opened and counted. No exceptions were filed to these findings and recommendations. The Petitioner likewise filed no exceptions to the Regional Director's finding that its objections were without, merit and his recommendation that they be overruled. We adopt. the Regional Director 's findings and recommendations with respect, to the eligibility of Wilson and Britton , and his recommendation that the objections be overruled. In accordance with the above findings, we shall direct that the Regional Director open and count the ballots of Wilson, Britton, Spoonts, and Lovato and prepare a supplementary tally of ballots, in- cluding the count of these four ballots. Direction. As part of the investigation to ascertain representatives for the purpose of collective bargaining with the Employer, the Regional Director for the Sixteenth Region shall, pursuant to National Labor. Relations Board Rules and Regulations, within 10 days from the date of this Direction, open and count the ballots of S. Wilson, Allen L. Britton, W. S..Spoonts, and Leo Lovato, and thereafter prepare and cause to be served upon the parties a supplemental tally of ballots, including therein the count of these four ballots; and take such further steps as may thereafter be appropriate.