Tube Distributors Co., Inc.

296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The labor organization named below claims to represent certain employees of the Employer.2 3. A question affecting commerce exists concerning the representa- tion of certain employees of the Employer, within the meaning of Sec- tion 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The following employees of the Employer constitute a unit ap- propriate for the purposes of collective bargaining within the mean- ing of Section 9 (b) of the Act: All employees of the Roswell, New Mexico, operation of F. M. Reeves and Sons, Inc., excluding supervisors, salesmen, watchmen, carpenters, plant clerical and office clerical employees as defined in the Act. [Text of Direction of Election omitted from publication.] tions thus substantially affect the national defense (Maytag Aircraft Corp., 110 NLRB 594), and the Board's dismissal of the petition in the recent previous proceeding involving the Employer was obviously due to an incomplete record, we shall at this time assert juris- diction over the Employer's Roswell operation. Cf. Bob Morgan Motor Company, Inc., 106 NLRB 334. The Employer objects to the use of a calender year in determining the dollar volume of its operations because in the prior proceeding the Board 's frame of reference in determin- ing business volume was a fiscal year . As the Board merely uses a yearly period proxi- mate to the filing of a representation petition as a yardstick for determining the impact of an employer's operations upon commerce and, absent special circumstances not present here, is not concerned with the characteristics of the annual period selected , we find no merit in the Employer's objection. 2 The Employer asserts the petition should be dismissed because the Petitioner's current representation interest in the employees is insufficient, noting that about 2 months elapsed between the filing of the petition and the hearing . It is well established that the suffi- ciency of a petitioner's representation interest is a matter for administrative determination, and the Board is administratively satisfied that the Petitioner's showing of interest here warrants an election to determine the employees ' desires. Tube Distributors Co., Inc. and Local 810, Steel, Metals, Alloys & Hardware, Fabricators & Warehousemen, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, Petitioner. Case No. 2-RC-6152. April 00, 1955 SUPPLEMENTAL DECISION AND DIRECTION Pursuant to a Decision and Direction of Election dated December 18, 1953,1 amended on January 12, 1954, and further amended on No- vember 1, 1954,2 an election was conducted on November 30, 1954, under the direction and supervision of the Regional Director for the Second Region. At the conclusion of the election, the parties were furnished with a tally of ballots which shows that, of approximately i Tube Distributors Co., Inc, 2-RC-6152, December 18, 1953, not reported in printed volumes of Board Decisions and Orders. 2 The election was postponed because of pending unfair labor practice charges. 112 NLRB No 47. TUBE DISTRIBUTORS CO., INC. 297 39 eligible voters, 37 cast ballots, of which 16 were for the Petitioner, 12 were cast for Amalgamated Union, Local 649, UAW-AFL, Inter- venor herein, and 9 were challenged. As the challenged ballots were sufficient in number to affect the results of the election, the Regional Director, pursuant to the Board's Rules and Regulations, conducted an investigation and, on December 28, 1954, issued and served upon the parties his report on objections and challenges. On January 5, 1955, the Petitioner filed exceptions to the Regional Director's report. Upon the basis of the entire record in this case, the Board makes the following : FINDINGS OF FACT In his report, the Regional Director recommended that the chal- lenge to the ballot of Edward Trotz be sustained. As no exceptions to the Regional Director's report have been filed with respect to the fore- going challenged ballot, we hereby adopt the Regional Director's recommendation. Wasyl Ratuszny, Frank Coyne, and Otto Schapa were challenged by Petitioner on the ground that they were permanently laid off 8 months prior to the election. The Regional Director's investigation discloses that these 3 employees and 10 other employees were laid off in May and September 1954, respectively, because of lack of work. The Em- ployer considers that all of these employees were temporarily laid off and intends to recall them shortly as soon as work is available. Indeed, two of this number have already been recalled to work. The Regional Director further reports that the 10 employees who were laid off in September 1954 were permitted to vote without challenge. On these facts, we adopt the Regional Director's recommendations, and shall overrule the challenges to the ballots of Wasyl Ratuszny, Frank Coyne, and Otto Schapa, and direct that their ballots be opened and counted. Sylvester Lefkowitz was challenged by the Petitioner on the ground that he was laid off well over a year before the election and was no & longer an employee at the time of the election. The Regional Di- rector's investigation discloses that Lefkowitz worked for the Em- ployer for about 2 years. Near the latter part of 1953 he had a heart attack and was unable to keep working. It appears that the Em- ployer considers him on sick leave, and has been informed by Lef- kowitz that he has recovered from his illness and expects to return to work. In view of the foregoing, we adopt the Regional Director's recommendation, and shall overrule the challenge to Lefkowitz's ballot, and direct that his ballot be opened and counted. William Yarrow was challenged by the Petitioner on the ground that he is fundamentally and primarily a gardener and not a main- 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tenance employee. The Regional Director's investigation discloses that Yarrow takes care of the Employer's lawn and shrubbery. How- ever, when he is not working on the lawn and shrubbery, he is ex- pected to help out in the maintenance department. Moreover, dur- ing the past winter he, along with two other maintenance employees, spent most of his time on inside plant maintenance work. His rate of pay is similar to that of one of the other maintenance employees. In view of the foregoing, and as it appears that Yarrow spends a substantial portion of his time performing regular maintenance work, and as it appears that his interests lie with those maintenance em- ployees in the unit, we shall direct that the challenge to Yarrow's bal- lot be overruled and that his ballot be opened and counted. Anthony Piagentini was challenged by the Petitioner as a super- visor. The Regional Director's investigation discloses that Piag- entini, along with employee Gardner and Yarrow, discussed above, performs maintenance work at the Employer's plant. He is guaran- teed a minimum wage, and receives overtime for working extra hours. As the most experienced employee in the maintenance depart- ment, he is consulted on material required for maintenance, and he relays orders from management to the other two maintenance em- ployees. It also appears that he possesses a key to the plant and often is the first to arrive and open the plant. However, others also have such keys and they may also open the plant. The Regional Director also found that Piagentini does not have authority to issue orders of his own to other maintenance employees, nor does lie have the au- thority to hire or discharge or to effectively recommend such action. In view of the foregoing, we find that Piagentini is not a supervisor within the meaning of the Act. Accordingly, we shall overrule the challenge to his ballot. Mitchell Pietruszkiewicz was challenged by the Petitioner as a supervisor. The Regional Director's investigation discloses that Pietruszkiewicz is an hourly rated employee who has the responsibility for seeing that the Employer's orders are handled on the night shift. There appears to be no person with admitted supervisory authority in the plant after about 5 : 30 p. in. Although he tells the other ware- housemen on the night shift the jobs to be performed, if any unusual problems arise which are not covered by his instructions, lie has to call the superintendent or the vice president in charge of production. Moreover, he has no authority over the men on the shift, and the men on this shift contact the superintendent directly on personal problems between 3 p. in., the starting time for the night shift, and 5: 30 p. m. In view of the foregoing, we find that Pietruszkiewicz is not a super- visor within the meaning of the Act. Accordingly, we shall overrule the challenge to his ballot. FANNY FARMER CANDY SHOPS, INC. 299 Chester Kulisz was challenged by the Intervenor on the ground that he had been discharged before the date of the election. The Regional Director found that Kulisz was employed as a warehouseman until September 1954, when he was discharged. It appears that unfair labor practice charges were later filed alleging that Kulisz was discharged in violation of Section 8 (a) (1) and (3). In his report, the Regional Director states he found no merit to the charge, but was -unable to dis- miss the charge because of lack of authority, the office of General Counsel then being vacant. He therefore recommended that the Board sustain the challenge to Kulisz' ballot. However, as the 8 (a) (3) charges filed with respect to Kulisz' discharge are still pending, we shall not now resolve the challenge to Kalisz' ballot. Inasmuch as the counting of the seven ballots, the challenges to which are hereby overruled, may determine the results of the election, we shall direct that they be opened and counted. In the event that a sufficient number of ballots were cast for the Petitioner to give it a majority of all the votes cast in the election, the Regional Director is instructed to issue a certification of representatives to the Petitioner. If a majority of all votes cast is for Amalgamated Union, Local 649, UAW-AFL, then the Regional Director is instructed to issue a certi- fication of representatives to that effect. In the event, however, that the above seven ballots when opened and counted, do not determine the results of the election, we shall, at that time, resolve the challenge to Chester Kulisz' ballot. [The Board directed that the Reg, ional Director for the Second Re- gion shall , within ten (10) days from the date of this Direction, open and count the ballots of Wasyl Ratiiszny, Frank Coyne, Otto Schapa, Sylvester Lefkowitz, William Yarrow, Anthony Piagentin], and Mitchell Pietruszkiewicz, and serve upon the parties a revised tally of ballots, and issue certification.] MEMBER LEEDOM took no part in the consideration of the above Supplemental Decision and Direction. Fanny Farmer Candy Shops, Inc. and Bakery and Confectionery Workers' International Union of America , Local 12, AFL, Pe- titioner. Case No. 6-RC-1501. April 20, 1955 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Harvard G. Borchardt, hear- ing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 112 NLRB No 48