National Dairy Products Corp.

880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD her infrequent absences. None of the six hires or discharges em- ployees or effectively recommends changes in employee status. Their higher pay reflects longer job tenure. All have long been incluuded in the Union's contract unit. The "working foremen" have served on union negotiating committees, and at least one of them has served for several years as shop steward for the Union. Under these cir- cumstances, and on the entire record, we find that Garone, Sepul- veda, Crespo, Weinstein, Pade, and Taylor are merely more experi- enced employees who act as conduits between the supervisors and the employees, routinely directing employees, and that they are not supervisors as defined in the Act. United States Gypsum Company, 119 NLRB 1415 (machine operators) ; New Pacific Lumber Co., 119 NLRB 1307. Accordingly, we include them in the unit. The record is inadequate to determine whether Frymer and Payes, classified as executive employees, have been excluded from the recog- nized unit. As established Board precedent requires that the unit for decertification be coextensive in scope with the existing unit, and as their status as managerial or confidential employees is conjectural, we shall permit them to vote subject to challenge by the Board agent. Seaporcel Metals, Inc., 115 NLRB 960. Accordingly, we find that all office, production, and maintenance employees at the Employer's New York City, New York, pharma- ceutical products manufacturing plant, including the bookkeeper, clerk-typists, the switchboard operator, stenographers, machine op- erators, pricing clerks, payroll clerks, packing employees, porters, shipping and trucking employees, maintenance employees, the raw materials clerk, and employees in the tablets and capsules, labeling and filling, and liquid and ointments departments, but excluding salesmen, confidential employees, and supervisors as defined in the Act, constitute a unit appropriate for purposes of collective bargain- ing within the meaning of Section 9(b) of the Act. [Text of Direction of Election omitted from publication.] National Dairy Products Corporation , Sealtest Southern Dairies Division and General Truck Drivers, Chauffeurs, Warehouse- men & Helpers, Local 270 (Ind.), Petitioner. Case No. 15-RC- 1611. January 8, 1959 SUPPLEMENTAL DECISION AND DIRECTION Pursuant to a Decision and Direction of Election issued November 25, 1.957,1 an election by secret ballot was conducted on December 13, Unpublished. 122 NLRB No. 109. NATIONAL DAIRY PRODUCTS CORPORATION 881 1957, under the direction and supervision of the Regional Director for the Fifteenth Region, among the employees in the unit found appropriate by the Board. Following the election, a tally of ballots ,was furnished the parties which showed that of approximately 11 eligible voters, 11 ballots were challenged. On December 19, 1957, the Employer timely filed objections to the election. As the chal- lenged ballots were sufficient in number to affect the results of the election, the Regional Director investigated them, as well as the 'Employer's objections and on October 21, 1958, issued and duly served upon the parties a report on challenged ballots and objections to Election. Regarding the challenges, the Regional Director found that the ballots of two individuals should not be counted as their names were not found on the eligibility list and therefore they were not entitled to vote.2 As to the nine remaining challenges, he found that the employees involved had ceased to be employees prior to the election, and that therefore the challenges should be sustained. The Peti- tioner timely filed exceptions to this finding of the Regional Director. With respect to the objections, the Regional Director found in his report that they did not raise substantial or material issues affecting the conduct of the election and accordingly, recommended that the objections be overruled. As no exceptions were filed to this finding, we adopt the Regional Director's recommendation. The Decision and Direction of Election found that the helpers of the wholesale milk route driver-salesmen were employees of the Employer, and ordered an election among such helpers. The Re- gional Director found that on the eligibility date there were nine such helpers; that on December 2, 1957, the Employer notified the driver-salesmen of the helpers that effective that date, the Employer would discontinue handling any payroll deductions for the helpers, that the driver-salesmen might continue to hire helpers if they so chose, but that they would be required to make direct payments to the helpers from their own earnings; and that, according to the Employer, this step was necessary to economize on operations. On election day, December 13, 1957, the Employer furnished a list of helpers whose names appeared on the payroll on the eligibility date, "but of whom there is no present record." The helpers appeared and voted, and their ballots were challenged by the Employer. The investigation showed that after December 2, 1957, the Em- ployer ceased to maintain records of any kind as to the helpers, but that prior to that date, the Employer had records of these helpers, some of whom had worked for as long as 48 weeks. After Decein- a Petitioner took no exception to this finding. 505395-59-vol. 122-57 882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD her 2, the same helpers continued to perform their tasks as previ- ously, but were paid directly by the drivers. The Decision read as follows : We find upon the record as a whole that the helpers are em- ployees of the Employer. Drivers sometimes hire helpers who are paid directly by the drivers and of whom the Employer has no knowledge. As to such helpers concerning whom the Employer has no record, we find they are not employees of the Employer. The Employer's motion to dismiss is denied. See Wells Dairies Cooperative, 109 NLRB 1450. The Regional Director found on the basis of the Decision, that as the Employer had ceased to maintain records as to the helpers, the latter had ceased to be employees ; that they were therefore not eligible to vote; and that the challenges to their ballots should be sustained, and the election set aside. We do not agree. The Regional Director apparently has misin- terpreted the Board's Decision. On the eligibility date, the Em- ployer had knowledge of the nine helpers employed, how long they had been in its employ and the duties they performed. The Em- ployer also kept a record with respect to, and paid, them. The mere fact that thereafter the Employer declined to maintain such a record or to pay these helpers directly did not materially affect, much less destroy, the established employment relationship. Cer- tainly, the Employer's action did not reduce the status of these regular employees to that of the casual employees referred to in our decision who were sometimes hired by the drivers and of whom the Employer had no knowledge at all. We think that where the Regional Director erred was in equating the keeping of records with our finding that the helpers involved herein had employee status. Accordingly, the challenges to the nine ballots of helpers whose names appeared on the eligibility list are overruled, and we shall direct the Regional Director to open and count their ballots. [The Board directed that the Regional Director for the Fifteenth Region shall, within ten (10) days from the date of this Direction, open and count the ballots of helpers L. Bailey, Al. Bolden, O. Bolden, C. Broussard, L. Lagohn, C. Moss, L. Tofia, C. Wall, and A. Williams, whose names appeared on the. eligibility date, and serve upon the parties a supplemental tally of ballots.] Members Rodgers and Fanning took no part in the consideration of the above Supplemental Decision and Direction.