C. F. Baker & Co., Inc.

316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that certain Respondents violated Section 8(b) (1) (A) and (2) in connection with the requirement that Legg seek referral through Local 2232, any back pay for Legg would amount at most to remuneration for 1 day's work. Under the cir- cumstances set forth wherein Legg refrained from requesting a referral slip of Rushing, although Legg would have received it, I believe that an award of back pay to Legg would not effectuate the policies of the Act. During the hearing the General Counsel offered evidence respecting the hiring practices of certain employers who are not named in the complaint and with whom Local 2232 has contractual relations. After appropriate objections, the evidence was excluded upon the ground that the General Counsel had not shown that those employers were engaged in commerce. The General Counsel thereupon made several offers of proof. Subsequently I reversed my ruling to the extent that I would receive evidence concerning the hiring practices of employers who are rep- resented in collective bargaining by the management-signatories to the contract described in section III, A, above, but the evidence was not offered again. In any event, my recommendations below would not be broadened if the record estab- lished that the hiring practices herein described are followed by other employers, the Council, and Local 2232 in the area in which Local 2232 functions. Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The operations of the Company constitute trade, traffic, and commerce among the several States within the meaning of Section 2(6) and (7) of the Act. 2. The Respondents are labor organizations within the meaning of Section 2(5) of the Act. 3. By causing and attempting to cause the Company to discriminate against employees in violation of Section 8(a)(3) of the Act, Local 2232 and the Council have engaged in unfair labor practices within the meaning of Section 8(b)(2) thereof. 4. By restraining and coercing employees in the exercise of the rights guaran- teed in Section 7 of the Act, Local 2232 and the Council have engaged in unfair labor practices within the meaning of Section 8(b) (1) (A) thereof. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 6. The International has not engaged in unfair labor practices as alleged in the complaint. 7. Except by their requirement affecting the conduct of millwright foremen employed by the Company, Local 2232 and the Council have not engaged in unfair labor practices as alleged in the complaint. [Recommendations omitted from publication.] C. F. Baker & Co., Inc. and International Union, United Auto- mobile, Aircraft & Agricultural Implement Workers of America (UAW), AFL-CIO, Petitioner. Case No. 1-RC-5316. December 4, 1958 DECISION AND DIRECTION Pursuant to a stipulation for certification upon consent election, an election by secret ballot was conducted under the direction and super- vision of the Regional. Director for the First Region, on August 29, 1958, among certain employees of the Employer. At the conclusion of the election, a tally of ballots was furnished the parties. The tally shows that, of the approximately 41 voters, 40 cast ballots, of which 18 were for the Petitioner, 17 were against the Petitioner, and 5 were challenged. 122 NLRB No. 47. C. F. BAKER & CO., INC. 317 As the challenged ballots were sufficient in number to affect the results of the election, the Regional Director investigated the chal- lenges, and thereafter, on October 8, 1958,, issued and duly served on the parties a report on challenged ballots in which he found that the challenges were without merit and recommended the opening and counting of the ballots of Catherine Carboneau, Florence Ablondi, Clyde E. Smith, Jr., Ralph Piccirillo, and Edwin Rose and the issuing of a revised tally of ballots to the parties. The Petitioner filed timely exceptions to the Regional Director's 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 Bean and Fanning]. The Board has considered the Regional Director's report and the Petitioner's exceptions thereto, and upon the entire record in this case finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The Petitioner is a labor organization within the meaning of the Act, claiming to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the represen- tation of employees of the Employer within the meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act. 4. The parties stipulated and we find that all production and main- tenance employees of the Employer at its Fralningham, Massachusetts, plant, excluding executives, office clerical employees, professional employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 5. In the absence of any exception 1 thereto, we adopt the Re- gional Director's recommendation .that the Employer's challenges, to the ballots of Ralph Piccirillo and Edwin Rose be overruled and that their ballots be opened and counted. The Petitioner excepts to the Regional Director's recommendation that the challenges to the ballots of Catherine Carboneau, Clyde E. Smith, Jr., and Florence Ablondi be overruled, but does not raise any substantial or material issues with respect to his factual findings. The Petitioner challenged these ballots on the grounds that these three employees were supervisors within the meaning of the Act. Carboneau and Ablondi are classified as forelady and assistant forelady respectively in the packaging department, consisting of seven employees. Commensurate with their years of service, they 3 Although the Petitioner excepts to one of the Regional Director's factual findings with respect to Edwin Rose, it does not except to the recommendation that his ballot should be counted . Moreover, the facts not excepted to fully support the Regional Director's finding that Rose is eligible to vote. 318 DECISIONS OF NATIONAL LABOR- RELATIONS BOARD receive a higher rate of pay than the other female employees in the department, but less than the male employees therein. Neither has the power to hire or fire, or to make effective recommendations as to personnel action. Both work along with the other employees in the department. Their direction of these employees does not (require the use of independent judgment but involves merely the routine trans- mission of orders from higher supervision and the making of routine assignments. As Carboneau and Ablondi do not possess any of the statutory indicia of supervisory, authority, we hereby adopt the Re- gional Director's finding that they are not supervisors and his recom- mendation that the challenges to their ballots be overruled. Smith is classified by the Employer as foreman of the roller room. Smith works with the five other employees in this department and also spends about half his time driving a truck. Smith receives a higher hourly rate than other employees but is second in seniority. Instructions from the superintendent are relayed by Smith to the other employees. Smith exercises no independent judgment and does not have the power to hire or fire or to make effective recommenda- tions as to personnel action. Under the circumstances, we adopt the Regional Director's finding that Smith is not a supervisor and his recommendation that the challenge to Smith's ballot be overruled. [The Board directed that the Regional Director for -the First Re- gion shall, within ten (10) days from the date of this Direction, open and count the ballots of Catherine Carboneau, Florence Ablondi, Clyde E. Smith, Jr., Ralph Piccirillo, and Edwin Rose, and cause to be served upon the parties a supplemental tally of ballots, including the count of the ballots described above.] Ready Mixed Concrete & Materials, Inc.' and Local #669, Con- crete Products and Material Yard Employees, Petitioner. Case No. 11-RC-1169. December 4, 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 Jerry B. Stone, hear= ing 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 Employer is a South Carolina corporation which was charted and commenced business operations on November 1, 1957. 'f The Employer's name appears as corrected at the hearing. 122 NLRB No. 43.