Louisiana Creamery, Inc.

170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Louisiana Creamery, Inc. and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, Local No. 5,1 Petitioner. Case No. 15-RC-1691. March, 20, 1958 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 John H. Immel, Jr., 'hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed 2 The Employer contends that the Petitioner's showing of interest, secured before the Petitioner and its parent International organiza- tion were expelled from the AFL-CIO, is no longer valid. It there- fore requests that the Board direct the Petitioner to submit a new showing of interest, and, moves to dismiss the petition unless such new showing of interest is made. We find this contention to be without merit. The instant situation is to be distinguished from that which prevailed in the Mohawk Business Machines Corp. case, 118 NLRB 168, on which the Employer relies. That case involved a schism and disaffiliation from an international organization and a consequent confusion as to the identity of the labor organization which had been designated to represent the employees. In the instant case, we find that the circumstance of the expulsion of the Petitioner and its parent International from the AFL-CIO did not create any confusion as to the identity of the organization designated by the employees to represent them. The Board's practice of removing the designation AFL-CIO after the Petitioner's name is sufficient to cor- rect any ambiguity created by the expulsion. The Employer's motion is therefore denied. The Employer also challenged at the hearing the sufficiency of the Petitioner's showing of interest on grounds of misrepresentation and fraud. The Employer being advised by the hearing officer. of Board 1 The Board having been notified by the AFL-CIO that it deemed the Teamsters' cer- tificate of affiliation revoked by convention action, the identification of the Petitioner is hereby amended 2 The Employer objected to the receipt in evidence of the Board's copy of the petition herein on the ground that it did not conform to the copies served on the parties, thereby impliedly contending that the hearing should be continued until fully conformed copies were served on the parties. The copies failed to list the following categories for exclusion : office clerical employees, professional employees, watchmen, guards, and supervisors as defined in the Act We find the Employer's objection to be without merit whether or not a. petition sets forth such categories for exclusion, the Board customarily excludes them from production and maintenance units In the absence of a showing of prejudice, we sustain the hearing officer's ruling 120 NLRB No. 26. LOUISIANA CREAMERY, INC. 171 policy not to litigate a petitioner's showing of interest at a representa- tion hearing, thereafter, in accordance with the established practice, requested the Regional Director to redetermine the Petitioner's show- ing of interest. The Employer alleged that such interest was secured on the basis of fraud and misrepresentation. In support of its request, it submitted to the Regional Director written, statements from nine employees. Some alleged that they had signed authorization cards because a representative of the Petitioner had told them, or that they believed, that a majority of the employees had already signed such authorization cards. Others alleged that the Petitioner had promised to obtain increased commissions for them; while still others alleged simply that they had not understood what they were signing. We are administratively advised that the Regional Director considered the Employer's request and informed the Employer that a further investi- gation of the Petitioner's showing of interest was not warranted and that the Petitioner's showing of interest had been found to be adequate. The Employer now apparently asks the Board to redetermine the Petitioner's showing of interest on the same grounds alleged before the Regional Director. We find the Employer's motion for a rein- vestigation to be without merit for the reasons given by the Regional Director.' The Employer's motion is therefore denied.' Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Bean and Jenkins]. 3 The Babcock & Wilcox Company, 116 NLRB 1542 4 In addition to the foregoing motions , the Employer moved to dismiss the petition on the following grounds • ( a) the Board is without jurisdiction because the Employer is not engaged in commerce, or in activities affecting commerce, within the meaning of the Act ; qb) the Petitioner has forfeited its status as a labor organization because of certain alleged acts of culpability , and, moreover, is not in compliance with the filing require- ments of the Act; and (c) that the unit sought is improperly described and appears to include supervisors As to (a) the Employer's motion is hereinafter discussed. As to (b) the Employer does not present any adequate evidence establishing that the Petitioner has forfeited its status as a labor organization . As for the question of the Petitioner 's compliance status, such question is a matter for administrative determination and may not be litigated in the present proceedings . Desaulniers and Company, 115 NLRB 1025 ; Standard Cigar Company, 117 NLRB 852. Furthermore, the Employer's allegation that it lacks access to evidence it believes bears on the Petitioner 's noncompliance status is insufficient ground for instituting collateral proceedings to redetermine the Petitioner's compliance More- over, we are administratively satisfied that the Petitioner is in compliance with the filing requirements of the Act. We therefore deny this motion As to (c) it is clear that in describing the unit sought by setting forth certain occupational titles, the Petitioner was simply attempting to identify the nature of the work being performed by the em- ployees it is seeking to represent . As stated by the Petitioner at the hearing , it is seeking, in fact, to represent all of the production and maintenance employees with certain speci- fied exclusions. We find, therefore, that the Employer's objection to the description of the unit is without substance and we therefore deny its motion to dismiss the petition on that ground 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record in this case, the Board finds : 1. The Employer denies that it is engaged in interstate commerce or activities affecting interstate commerce and, therefore, moves to dismiss the petition on this ground. The Employer is engaged at Baton Rouge, Louisiana, in the production of butter, cheese, ice cream and other dairy products, and in the retail and wholesale distribution of such products as well as milk, orange juice, and eggs. Its annual purchases of raw milk, eggs, and other products amount to $2,500,000, of which products valued at approximately $800,000 are purchased by the Employer from outside the State of Louisiana. In addition, the Employer purchases glass bottles, paper containers, machinery, and maintenance supplies in amounts not specified, of which, apparently, a substantial portion is purchased outside the State of Louisiana. Its annual sales total $4,500,000. Sixty to sixty-five percent of its sales are made at retail and the remaining portion thereof at wholesale. All of the Employer's sales are made within the State of Louisiana. In dealing with combination retail and nonretail enterprises, such as the Employer's, the Board applies its nonretail standard and will assert jurisdiction over such enterprises where the total direct inflow is $500,000 or more. In the circumstances, we find that the Employer is engaged in commerce within the meaning of the Act. We also find that as its direct inflow is in excess of $500,000 annually, it will effectuate the policies of the Act to assert jurisdiction herein.' Ac- cordingly, we deny the Employer's motion to dismiss the petition herein. 2. The labor organization involved claims to represent certain employees 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) andSection 2 (6) and (7) of the Act. 4. There is no dispute between the parties as to the appropriateness of a unit of all production and maintenance employees, excluding office clerical employees, professional employees, watchmen, guards, and supervisors as defined in the Act. They agree furthermore that the 2 plant superintendents, 2 shop foremen, 4 foremen responsible for the operation of some 16 retail routes each, and 2 foremen responsible for the operation of some 10 wholesale routes each, are supervisors within the meaning of the Act. The parties differ, however, on the supervisory status of a number of employees, each responsible for 5 The T H Rogers Lumber Company, 117 NLRB 1732; McAllister Dairy Farms, Me, 118 NLRB 1117. LOUISIANA CREAMERY, INC. 173 the operation of some four of the retail or wholesale routes which are part of the larger groups. The Employer contends that the latter employees are supervisors. The Petitioner takes a contrary position and seeks their inclusion in the unit. The principal function of these latter employees is to substitute for each of four regular route delivery men on his day off. The employees with the four routes perform the same duties performed by the regular delivery men. However, they also have the responsibility of checking to see if the routes are properly operated and to report to their own foremen any unsatisfactory work including claims by customers that bills outstanding against them have in fact been paid to the regular route delivery man. At other times, they will help train new route delivery men, but their responsi- bility in this regard is not exclusive. Unlike the foremen, who are salaried employees, the employees responsible for the four routes receive an average of the salary and commissions earned by the regular delivery men, for whom they substitute, plus an additional stipulated sum each week. They have no authority to hire, discharge, discipline, or otherwise affect the employment status of other employees, nor does it appear that they have any authority to make effective recommendations in that regard. Although these employees are required to report an alleged delin- quency, and sit in on management conferences with the accused em- ployee for the purpose of confronting the accused employee, it is not established that they possess any authority to make effective recom- mendation for any discharge. In these circumstances, we find that the employees responsible for the operation of four routes are not supervisors within the meaning of the Act, and we, therefore, include them in the unit hereinafter found appropriate.6 We find that the following employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Sec- tion 9 (b) of the Act: All production and maintenance employees at the Employer's Baton Rouge, Louisiana, plant, including employees who are responsible for the operation of some four retail or wholesale routes, but excluding office clerical employees, professional employees, watchmen, guards, and supervisors 7 as defined in the Act. [Text of Direction of Election omitted from publication.] 6 Cf. Greenbrier Daisy Products Company, 100 NLRB 432. 7 The parties agree that with respect to other employees alleged to be supervisors, but whose status was not litigated at the hearing, such employees are to be excluded as super- visors if they exercise any of the authority specified in Section 2 (11) of the Act.