FasChek #6

206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Supermarket of Dunbar, Inc., d/b/a FasChek #6 and Food Store Employees Union, Local No. 347, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO. Case 9-RC-7808 August 22, 1969 DECISION AND DIRECTION BY MEMBERS FANNING, BROWN, AND ZAGORIA Pursuant to a stipulation for certification upon consent election, an election by secret ballot was conducted on July 29, 1968, under the direction and supervision of the Regional Director for Region 9, among the employees in the unit described below. At the conclusion of the election, the parties were furnished with a tally of ballots which showed that of the approximately 22 eligible voters, 21 cast ballots, of which 9 were for the Petitioner, 2 against the Petitioner, and 10 were challenged. The challenged ballots are sufficient in number to affect the results of the election. No objections to conduct affecting the results of the election were filed by either party. In accordance with the National Labor Relations Board Rules and Regulations, the Regional Director conducted an investigation and, on December 23, 1968, issued and duly served upon the parties his report on election, challenged ballots, order transferring case to the Board, order directing hearing and notice of hearing. In his report, the Regional Director stated that, in view of the conflicting evidence and positions of the parties, he was of the opinion that substantial and material issues of fact had been raised concerning the employment status of James Beheler, June Claymore, Frances Coffman, Scott Johnson, Kenneth Martin, James Ratcliff, Janice L. Booth, Betty L. Janney, Curtis Duff, and Frank Pruden which could best be resolved by the conduct of a hearing. Pursuant to notice, a hearing was held on February 27 and 28, March 11, 12, 13, 18, 19, 20, 21, and 24, 1969, before Hearing Officer Eugene M. Rothchild. The Hearing Officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.' In his report the Hearing Officer recommended that the challenges to the ballots of James Beheler, Janice L. Booth, June Claymore, Frances Coffman, Curtis Duff, Betty L. Janney, Scott Johnson, Kenneth Martin, James Ratcliff, and Frank Pruden be overruled, and that the Board direct that such ballots be opened and counted and a revised tally of ballots be issued by the Regional Director. Thereafter, the Petitioner filed timely exceptions to the Hearing Officer's Report and a supporting brief, and the Employer filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act, and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The Union is a labor organization claiming to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representation of the 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 the following employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All employees of the Employer's retail outlet located at 1326 Ohio Avenue, Dunbar, West Virginia, excluding supervisors, guards, clerical and professional employees as defined in the Act. 5. The Board has considered the Hearing Officer's report, the Petitioner's exceptions and brief, the Employer's brief, and the entire record in this case, and makes the following findings. In its central exception the Petitioner contends that 8 of the 10 challengees2 were hired for the sole purpose of voting in the election and therefore should be excluded from the unit as temporary employees. Although it is true that the Employer's admitted anti-union animus, its employment of friends and relatives, taken together with the fact that five' of the aforesaid eight employees quit their jobs shortly after the election, raise perhaps a suspicion that the Employer was deliberately attempting to pad the unit with antiunion votes, it is also true that the Employer introduced credible evidence indicating legitimate business reasons for the hiring of the additional unit employees. The Employer had only taken over the business the month before the election, and almost immediately had increased the number of hours which the store was open each day and each week, which 'Petitioner' s Request for Special Permission to Appeal to the Board filed pursuant to 102 20 of the Board's Rules and Regulations regarding the Hearing Officer's revocation of certain subpoenas duces tecum requesting the production of voluminous records of various corporations , only one of which was directly involved in this case, is hereby denied as being without merit We note that subsequent to the time that Petitioner filed its special request the Hearing Officer did order the production of certain relevant items previously sought by Petitioner and that the Employer also voluntarily produced other relevant material previously requested We believe that the remainder of the records sought by Petitioner are not relevant or material to the issues in this case and that the Hearing Officer correctly revoked or partially revoked the subpoenas in question. 'James Beheler, June Claymore, Frances Coffman, Curtis Duff, Betty L Janney, Scott Johnson, Kenneth Martin, and James Ratcliff 'June Claymore, Frances Coffman, Curtis Duff, Kenneth Martin, and James Ratcliff 178 NLRB No. 34 SUPERMARKET OF DUNBAR, INC. necessitated the hiring of an additional number of part-time employees. Moreover, each of the five employees who quit shortly after the election testified to a reasonable and legitimate demand upon their time which foreclosed the continuation of their part-time work for the Employer. In these circumstances, we find that the sudden increase of the number of employees in the voting unit was necessitated by legitimate business demands. Accordingly, we find that this exception of the Petitioner is without merit. The Hearing Officer finds that 8 of the 10 ballots involved, namely those of James Beheler, June Claymore, Frances Coffman, Curtis Duff, Betty L. Janney, Scott Johnson, Kenneth Martin, and James Ratcliff, were challenged on the ground that these employees were not employed at the time of the eligibility date, July 27, 1969. The Petitioner's witnesses supporting this contention each testified that he did not personally see one or more of these challenged part-time employees in the store until a given date subsequent to the eligibility date. In each instance, however, the witness had periods of scheduled working hours which were not co-extensive with the full hours of operation of the store, and in each instance the witness had l or 2 days off a week during the period of time in question. In any event, such testimony conflicts directly with the credited testimony of each of the challengees and with the business records of the Employer, including timecards, payroll ledger sheets, and cancelled checks for the employees in issue, all of which indicated that the eight above mentioned challengees were employed prior to the eligibility date of July 27. Accordingly, we agree with the Hearing Officer's findings that the challenges based on the ground that the eight employees were not employed at the time of the eligibility date be overruled. Of the above 8 challenged ballots those of Frances Coffman, Curtis Duff, and Betty L. Janney were also challenged on other grounds. The Petitioner contended that Coffman, the sister of the Employer's president and majority stockholder, should be excluded from the unit on the ground of this close relationship. Duff was alleged to be a supervisor, and Janney was alleged to be an excluded clerical employee. In addition to these three specific challenges, Petitioner also contended that Janice L. Booth, daughter of the Employer's manager, should be excluded from the unit based on this close family relationship, and, finally, that Frank Pruden should be excluded on the ground that he was a supervisor. We agree with the Hearing Officer that neither Booth nor Coffman should be excluded from the unit based on their family relationship.' Neither received special privileges or benefits by virtue of such relationship. Moreover, Booth was the daughter of the Company' s manager rather than of an officer or shareholder of the corporation, and 207 Coffman was a sister and not the spouse or child of the president and majority stockholder of the Employer. Accordingly, and in concurrence with the recommendation of the Hearing Officer, we overrule the challenges to the ballots of Booth and Coffman.' We also agree with the Hearing Officer that although Janney did engage in clerical work, she was transferred into the unit as a cashier prior to the voting eligibility date. We find no reason to exclude her from the voting unit and, therefore, overrule the challenge to her ballot. Finally, although we agree with the Hearing Officer's finding that Curtis Duff had none of the statutory indicia of supervisory authority and was not a supervisor within the meaning of Section 2(11) of the Act and, accordingly, overrule Petitioner's challenge in this regard, we cannot agree with the Hearing Officer's finding that Frank Pruden was not a supervisor within the meaning of the Act. Pruden was salaried and did not punch a time clock as did the other grocery employees who were paid by the hour. During the period of July and August 1968, Pruden was in full charge of the store during the store manager's absence. He regularly prepared work schedules, and at all times responsibly directed 10 or 12 employees in the grocery department. Moreover, and according to the testimony of the Employer's president, Tate, Pruden made effective recommendations as to discipline or discharge, and he exercised his own independent judgment in carrying out his duties. Based upon the foregoing we sustain the challenge to the ballot of Frank Pruden and exclude him from the unit. In view of the above, we find that on the eligibility date and the date of the election James Beheler, Janice L. Booth, June Claymore, Frances Coffman, Curtis Duff, Betty L. Janney, Scott Johnson, Kenneth Martin, and James Ratcliff were employed within the appropriate unit and were eligible to vote in the election, and we shall direct that the Regional Director open and count their challenged ballots and prepare and cause to be served upon the parties a revised tally of ballots. DIRECTION It is hereby directed that the Regional Director for Region 9 shall, pursuant to the Rules and Regulations of the Board, within 10 days from the date of this Decision, open and count the ballots of James Beheler, Janice L. Booth, June Claymore, Frances Coffman, Curtis Duff, Betty L. Janney, Scott Johnson, Kenneth Martin, and James Ratcliff, and prepare and cause to be served upon the parties a revised tally of ballots, including therein the count of the above-mentioned ballots, and issue the appropriate certification. 'Foam Rubber City 2 of Florida, Inc.. 167 NLRB No. 81. 'Member Brown would exclude Coffman and Booth from the unit because of their family relationships with Company officials. Browne and Ruford, Engineers and Surveyors, 145 NLRB 765.