Grand Forks Grocery Co.

98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions that the election be set aside on these bases. Accordingly, we shall set aside the election in this case and order that a new election be held. [The Board set aside the election held on August 7, 1957.1 [Text of Direction of Second Election omitted from publication.] MEMBER BEAN took no part in the consideration of the above De- cision, Order, and Direction of Second Election. Grand Forks Grocery Company and General Drivers & Ware- house Employees, Local 581, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Petitioner. Case No. 18-RC-3384. March 17, 1958 SUPPLEMENTAL DECISION, DIRECTION, AND ORDER Pursuant to a Decision and Direction of Election in the above- entitled proceeding,' an election by secret ballot was conducted on November 19, 1957, under the direction and supervision of the Regional Director for the Eighteenth Region, among the employees in the unit found appropriate by the Board. At the conclusion of the election the parties were furnished with a tally of ballots which showed that there were 12 eligible voters and that 11 cast ballots, of which 5 were cast for, and 3 against, the Petitioner. There were three ballots challenged by the Petitioner, a number sufficient to affect the results of the election. Thereafter, the Petitioner filed timely objec- tions to conduct affecting the results of the election. After investigation, the Regional Director, on December 27, 1957, issued his report and recommendations on objections and challenges, in which he found the objections to be without merit and recommended that they be overruled. The Regional Director also recommended that the challenges to all three ballots in question be sustained and, further, that the Petitioner be certified as the bargaining agent of the employees in the unit found appropriate. The Employer has filed timely exceptions to the Regional Director's report. The Objections No exceptions were filed to the Regional Director's recommendation that the Petitioner's objections be overruled. In view thereof, this recommendation is hereby adopted. i Not published. 120 NLRB No. 20. GRAND FORKS GROCERY COMPANY 99 The Challenges ' The ballot of James Johnson was challenged on the ground that he was a salesman2 The Regional Director found that Johnson is a law student who, since 1953, has worked for the Employer on practically a full-time basis during vacation periods, and on a part-time basis, averaging about 5 hours a week, during the school term. He found further that Johnson, while working for the Employer during the summer vacation period, spends about 50 percent of his time in outside sales work while the remainder of his time is spent working on the city desk. During the school term, a majority of Johnson's time is spent on the city desk and in filling orders in the warehouse. On these facts, the Regional Director concluded that the challenge of Johnson's ballot should be sustained, relying on the time spent by Johnson in outside sales work and on the fact that Johnson is a law student, which indicated to the Regional Director that he was without any reason- able expectation of eventual permanent employment. In its exceptions, the Employer asserts, contrary to the Regional Director's findings, that Johnson works for it about 30 hours a week during the 9 months' school term and that he does not spend half his time in outside sales work during the summer months. We find it unnecessary to hold a hearing to resolve the factual issues raised by the Employer's exceptions. For even the facts recited in the Regional Director's report show that Johnson has worked regularly for the Employer on a part-time basis since 1953, spending a substan- tial amount of time performing the same duties as,full-time employees included in the unit. In these circumstances, we find that Johnson is a regular part-time employee of the Employer and that, as such, he was eligible to vote in the election. The possibility of a change in Johnson's employment relationship with the Employer at some unpre- dictable time in the future is too conjectural a factor to require a dif- ferent result. Contrary to the Regional Director's recommendation, therefore, we overrule the challenge to Johnson's ballot and shall direct that the ballot be opened and counted.' The ballot of Donald J. Rupp was challenged on the ground that he was a managerial employee; Oscar Austreng's ballot was challenged on the ground that hewas a supervisor. The Regional Director found that Rupp "on occasion" performed the duties of employees in the ' The appropriate unit herein consists of warehousemen and drivers, including city desk employees, but excluding office clerical employees, salesmen, guards, and supervisors as defined in the Act 3 See C & H Foods, Inc, 100 NLRB 1483, 1485; The Eavey Company, 115 NLRB 1779, 17W1781; Krambo Food Stores, Inc., 119 NLRB 369. Member Jenkins concurs in the finding that Johnson is eligible to vote only because he deems himself bound by the majority decision in Marsh Foodliners, Inc., 35-RC-1504- 1509 (not published ) in which he expressed his disagreement with Board policy holding regular part-time student employees eligible to vote. He would require evidence of a reasonable expectancy of permanent employment. 100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unit but that he also performed other duties, certain of which establish him as a managerial employee. As for Austreng, the Regional Director found that he assigned work to, and reprimanded, employees, granted time off, selected employees for overtime work, and hired employees; and therefore, the Regional Director concluded that Austreng was a supervisor. As already indicated, the Regional Di-' rector recommended that the challenges to the ballots of both Rupp and Austreng be sustained. In its exceptions, the Employer denies that Rupp performs tho duties of employees in the unit on a more limited. scale than the other employees, and it contends that Rupp's other duties are only of a routine and nondiscretionary character. In Austreng's case, the Employer specifically disputes certain factual findings made by the Regional Director, asserting that Austreng cannot assign work, grant time off, or hire employees. Upon consideration of the Regional Director's report in the instant connection and the Employer's exceptions thereto, the Board finds that substantial and material issues of fact exist with respect to the voting eligibility of Rupp and Austreng, which may best be resolved by a hearing. However, we shall order that such a hearing be held only if it should develop, after the opening and counting of Johnson's ballot as hereinafter directed, that the two challenged ballots in question may be determinative of the results of the election. [The Board directed that the Regional Director for the Eighteenth Region shall, within ten (10) days from the date of this Direction, open and count the ballot of James Johnson, and serve upon the parties a supplemental tally of ballots.] [The Board ordered that the challenged ballots of Donald,J. Rupp and Oscar Austreng affect the results of the election, the Regional Director shall hold a hearing to determine the eligibility of these employees.] [The Board further ordered that the hearing officer prepare and serve upon the parties a report containing resolutions of credibility of witnesses, findings of fact, ' and recommendations to the Board as to the disposition of the challenges. Within ten (10) days from the date of the issuance of such report, any party may file with the Board in Washington, D. C., an original and six copies of exceptions, serve a copy thereof upon each of the other parties, and file a copy with the Regional Director. If no exceptions are filed, the Board will adopt the hearing officer's recommendations.] MEMBERS BEAN and FANNING took no part in the consideration of the above Supplemental Decision, Direction, and Order.