Hunt Foods & Industries, Inc.

HUNT FOODS AND UNITED CAN & GLASS DIVISION, ETC. 893 APPENDIX A EXCLUDED CLASSIFICATIONS The following classifications in the property and consolidated supply department were excluded as office clericals by agreement of the parties : 1. The clerk B who works with the department chief. 2. Clerk typist B in surplus property section. 3. Clerks B and clerk steno B in property accounting section. 4. Clerk typist A in property management section. 5. Clerks A and B, and clerk typist B in stores section. 6. Clerk typists A and B in receiving and shipping section. Hunt Foods and United Can & Glass Division of Hunt Foods & Industries, Inc. and Cannery Warehousemen, Food Proc- essors, Drivers & Helpers, Local 768, Clerical Division, I.B.T.C.W.H.A., Petitioner and Office Employees' International Union, Local 29, AFL-CIO. Case No. 20-RC-3730. April 27, 1959 DECISION AND ORDER Pursuant to a stipulation for certification upon consent election, an election by secret ballot was conducted by the Regional Director on January 21, 1959, among the employees in the unit described below. After the election, the parties were furnished with a tally of ballots which showed that, of approximately 69 eligible voters, 30 cast bal- lots for the Petitioner, 2 for the Intervenor, and 29 against the participating labor organizations. Eight ballots were challenged. After an investigation, the Regional Director on March 2, 1959, is- sued his report on challenged ballots, in which he recommended that the challenges to the ballots of Mabel Brown, Kathryn Dorst, An- thony Froncek, Gunther Kriwinski, Beatrice Ewing, and Ardis Walker be sustained, and that the challenges to the ballots of Frank Castro and Paul Brenner be overruled and opened and counted. The Employer filed timely exceptions to the Regional Director's findings and recommendations as to the ballot of Castro alone. The Petitioner and Intervenor filed no exceptions. 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 [Members Rodgers, Bean, and Fanning]. Upon the entire record in this case, the Board funds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent certain employees of the Employer. 123 NLIIB No. 115. 894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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, as stipulated by the parties, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All office clerical and plant clerical employees, including clerical employees in the engineering department, employed by the Employer at Hayward, California; excluding engineering department em- ployees other than clerical, technical employees, professional em- ployees, guards, and supervisors as defined in the Act. 5. In its exceptions, the Employer contends that the Regional Di- rector's report raises substantial and material factual issues regarding the status of Castro and requests that a hearing be directed thereon. The Regional Director concluded that Castro was neither a super- visor nor a technical employee. However, in setting forth his find- ings as to Castro's duties and responsibilities, the Regional Director stated that (1) "though Castro is not required to accept or retain an assistant whom he does not want, the warehouse superintendent keeps himself sufficiently acquainted with the work performed by the assist- ant to make his own judgment on the assistant's work," and (2) "the normal practice is for both the warehouse superintendent and Castro to interview prospective assistants before they are hired." Although it appears that Castro makes no recommendations as to his assistant's wages and was not consulted when his present assistant was hired, the Regional Director's findings, as set forth above, convince us that Castro has authority effectively to recommend the hire, discharge, or transfer of his assistant. We find, therefore, that Castro is a super- visor as defined in the Act and that he was ineligible to vote. Ac- cordingly, the challenge to his ballot is hereby sustained. As to the remaining challenged ballots, in the absence of exceptions filed thereto, the Regional Director's recommendations are hereby adopted.' In the circumstances, as none of the three choices could receive a majority of the ballots cast, even if the challenged ballot of Brenner were included, we shall provide for the conduct of a runoff election in order to resolve the question concerning representation, and we shall remand this case to the Regional Director for such pur- pose. The ballot in the runoff election shall provide for a selection between the Petitioner and no union, the two choices with the largest . and next largest number of votes in the election conducted January 21, 1959. [The Board'remanded the case to the Regional Director.] 3 However, as it will not affect the determination hereinafter made, we shall not direct that the ballot of Brenner be opened and counted.