Apex Linen Service

500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Apex Linen Service and Truck Drivers & Helpers Local Union 728, AFL-CIO, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, AFL-CIO, Petitioner. Case No. 10-RC-3930. November 15,1957 DECISION AND CERTIFICATION OF REPRESENTATIVES Pursuant to a stipulation for certification upon consent election, an election by secret ballot was conducted on August 7, 1957, under the direction and supervision of the Regional Director for the Tenth Region among the employees in the appropriate unit. Upon comple- tion of the election, a tally of ballots was issued. The tally shows that 6 votes were cast for, and 5 against, the Petitioner, and that 1 ballot was challenged. The challenge was sufficient to affect the results of the election. Pursuant to Section 102.61 of the Board's Rules and Regulations, the Regional Director investigated the issue raised by the challenged ballot, and on September 25, 1957, issued his report recommending that the challenge be sustained and that the Petitioner be certified as the representative of the employees. The Employer filed timely ex- ceptions to the report. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman Leedom and Members Murdock and Rodgers]. Upon the entire record in this case, the Board finds : 1. The Employer is 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 employees of the Employer within the meaning of Section 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 purpose of collective bargaining within the mean- ing of Section 9 (b) of the Act : All driver-salesmen, excluding all other employees, professional em- ployees, guards, and supervisors as defined in the Act. 5. The Board agent challenged the ballot of Wells because his name did not appear on the eligibility list. The Regional Director found as follows with respect to Wells' eligibility : On the day before the election, when the Petitioner questioned the omission of Wells' name from the eligibility list furnished by the 119 NLRB No. 63. APEX LINEN SERVICE. 501 Employer, the Board agent made inquiry of the plant manager. He stated that Wells had been a route salesman but, since receiving an injury about a year before, had not been active as a route salesman but had been used as a "leadout man," and it was not expected that he would ever .again be a route salesman. The next day, when Wells appeared to vote, he stated that he was then working in "the linen room" but that he belonged in the driver-salesmen unit. Thereafter the Employer advised the Regional Director that, as a result of an injury, Wells had been transferred from his job as "a regular full-time route man" and was during the eligibility period and on the date of election "employed in the service Department and acted is substitute Route Man." 1 The Regional Director concluded from the foregoing that it had not been established that Wells was eligible to vote, and recommended that the challenge to his ballot be sustained. In its exceptions, the Employer asserts that Wells "is now acting as route salesman on it part-time or substitute basis . . . and is a route salesman for a por- tion of his work week as the demand arises." The Employer, how- ever, does not appear to take any affirmative position as to Wells' unit placement, but requests a ruling thereon by the Board. Where, as is here alleged, an employee works part of his time as a driver, and part as a nondriver, the Board will normally not include him in a unit of drivers unless he spends the major portion of his time in driving and incidental work.2 As the Employer does not allege that driving constitutes a major part of Wells' work, and the state- ments of Wells, himself, and the plant manager indicate the contrary, we find that Wells was not in the unit during the eligibility period and on the date of the election, and was therefore not eligible to vote. Accordingly, we shall, as recommended by the Regional Director, sus- tain the challenge to Wells' ballot. As the Petitioner has received a majority of the votes cast, we shall certify it as the representative of the employees in the appropriate unit. [The Board certified Truck Drivers & Helpers Local Union 728, AFL-CIO, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, AFL-CIO, as the designated collective-bargaining representative of the Employer's driver-salesmen.] ' This statement was reiterated in the Employer 's response to an "Order to Show Cause" served upon the parties by the Regional Director , seeking to elicit further information as to Wells' status . This order was issued after efforts to obtain more specific information from the Petitioner , Wells, and the Employer proved unsuccessful . Wells and the Peti- tioner filed no response. 2 Painesville Works, General Chemical Division, Allied Chemical and Dye Corporation, 11G NLRB 1784; cf. G. F. Lasater, 117 NLRB 348.