Borden's Capital Dairy

114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DETERMINATION OF DISPUTE Upon the basis of the foregoing findings of fact, and upon the entire record in this case, the Board makes the following determination of dispute, pursuant to Section 10 (k) of the Act: 1. Local 16, International Longshoremen's and Warehousemen's Union and its agents are not and have not been entitled, by means proscribed by Section 8 (b) (4) (D) of the Act, to force or require Denali-McCray Construction Company to assign the work of unload- iing barges at the sites on the Gastineau Channel to its members rather than to Denali-McCray's own employees who are members of the Building Trades Unions. 2. Within ten (10) days from the date of this Decision and Deter- mination of Dispute, Local 116, International Longshoremen's and Warehousemen's Union and its agents shall notify the Regional Di- rector for the Nineteenth Region in writing whether or not they will refrain from forcing or requiring Denali-McCray Construction Com- pany, by means proscribed by Section 8 (b) (4) (D) of the Act, to assign the work in dispute to members of Local 16, International Longshoremen's and Warehousemen's Union rather than to employees .of the Denali-McCray Construction Company. Borden's Dairy Delivery Company, a Division of The Borden Company, d/b/a Borden's -Capital Dairy; Carnation Company; Challenge Cream & Butter Association, a co-operative ; Frank Inderkum, d/b/a Inderkum 's Dairy ; Warren A. and Fred A. Taylor, d/b/a Taylor's Dairy ; Crystal.Cream & Butter Com- pany and Office Employees International Union, Local 29, AFL- CIO, Petitioner Carnation Company and Office Employees International Union, Local 29, AFL-CIO, Petitioner Challenge Cream & Butter Association, a co-operative and Office Employees International Union, Local 29, AFL-CIO, Petitioner Borden's Dairy Delivery Company, a Division of The Borden Company, d/b/a Borden 's Capital Dairy and Office Employees International Union, Local 29, AFL-CIO, Petitioner. Cases Nos. d0-RC-3237, 20-RC--3J38, fO-RC 3Y 39, and 3O-RC-3340. J'uae 7, 1967 DECISION, ORDER, AND DIRECTION OF ELECTIONS. Upon petitions duly filed under Section 9 (c) of the National Labor Relations Act,- a hearing' was held before Robert J. Scolnik, hearing 118 NLRB No. 10. BORDEN'S CAPITAL DAIRY 115 officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board finds : 1. The Employers in Cases Nos. 20-RC-3238, 3239, and 3240 are engaged in commerce within the meaning of the Act. In view of the unit finding below, we do not pass upon whether the other Employers are engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to represent certain em- ployees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of the employees of the Employers in Cases Nos. 20-RC-3238, 3239, and 3240 within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act, but not in Case No. 20-RC-3237. 4. In a companion case ' the Petitioner here sought a multiemployer unit of office clerical employees of eight employers. However, such petition for a multiemployer unit in that proceeding was dismissed,. and the Board instead directed elections in single-employer units of two of the employers there involved as petitioned for by another labor organization. In this event, the Petitioner seeks in this proceeding a multiemployer unit of office clerical employees of the 6 remaining employers, or if that petition is denied it seeks single-employer units of 3 of the 6 remaining employers. For the reasons stated in the Arden Farms case, which are equally applicable here, we find similarly that the single-employer units sought alternatively are appropriate. We shall, therefore, direct elections in these single-employer units, and dismiss the petition in Case No. 20-RC-3237 for a multiemployer unit. There remains for consideration only the question of whether the following employees of Borden's Capital Dairy should be included in the unit of that Employer's employees or excluded therefrom? Lillian Aicher, who the parties stipulated has been replaced by another employee who performs the same duties, regularly performed nonconfidential secretarial work. The record also shows that she substituted for Davina Harper in the latter's absence on vacation or otherwise, and the parties stipulated and the record shows that Harper is a confidential employee as defined by the Board. However, in the absence of any evidence that such substitution occurred with any frequency or regularity, we find that Aicher was not a confidential 1 Arden Farms, et al., 118 NLRB 117. z The parties stipulated that the evidence and the positions of the parties in the Arden Farms case with respect to these employees be incorporated by reference in the instant proceeding. 116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employee.' Accordingly, we shall include Aicher's replacement in the unit. Dorothy Kruinmes is a secretary to the sales manager. Her main function is to receive and transmit the telephone calls which come into the sales office for the sales manager and sales personnel. She also receives customer complaint calls, which she normally just refers to the appropriate department head, but which on occasion in the absence of a department head she will handle herself. An example of this latter authority which was given was that Krummes would receive a complaint from a customer that an order was not delivered, and Krummes would arrange for the order to be delivered. We do not consider such authority exercised by Krummes as sufficient to confer on her a managerial status as that term has been defined by the Board, viz, an executive who formulates and effectuates management policies by expressing and making operative the decisions of his employer.4 Accordingly, we reject the Employer's contention that Krummes is a managerial employee, and we shall include her in the unit. We find that the following employees of the Employers in Cases Nos. 20-RC-3238, 3239, and 3240 constitute units appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act : 1. All office clerical employees of Carnation Company in Sacra- mento, California, excluding confidential employees, managerial em- ployees, and guards and supervisors as defined in the Act. 2. All office clerical employees of Challenge Cream & Butter Associa- tion, a Co-operative, in Sacramento, California, excluding confidential employees, managerial employees, and guards and supervisors as defined in the Act. 3. All office clerical employees of Borden's Dairy Delivery Company, a Division of The Borden Company, d/b/a Borden's Capital Dairy, in Sacramento, California, excluding confidential employees, managerial employees, and guards and supervisors as defined in the Act.` [The Board dismissed the petition in Case No. 20-RC-3237.] [Text of Direction of Elections omitted from publication.] See Barrett Division, Allied Chemical & Dye Corporation , 116 NLRB 1649, 1651. See Palace Laundry Dry Cleaning Corporation, 75 NLRB 320, 323. In accordance with the stipulation of the parties, and upon the record, we exclude Secretary Davina Harper as a confidential employee, the credit ,manager as a managerial employee, and the office manager , the supervisor of the retail bookkeeping department, the assistant office manager , and the senior accountant as supervisors . As found above, how- ever, we include Aicher's replacement and Krummes in the unit.