Esten Dyeing & Finishing Co., Inc.

286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Esten Dyeing & Finishing Co., Inc. and Textile Work- ers Union of America, AFL-CIO, CLC, Petitioner. Case 1-RC-13289 July 18, 1975 DECISION AND DIRECTION BY MEMBERS FANNING, JENKINS, AND KENNEDY Pursuant to a Stipulation for Certification Upon Consent Election approved on May 29, 1974, an elec- tion by secret ballot was conducted on June 20, 1974, under the direction and supervision of the Acting Regional Director for Region 1 among the employ- ees in the stipulated unit. At the conclusion of the election the parties were furnished a tally of ballots which showed that of approximately 43 eligible vot- ers 45 cast ballots, of which 22 were for and 21 against the Petitioner. There were two challenged ballots. The challenged ballots are sufficient to affect the results of the election. Pursuant to Section 102.69(c) of the Board's Rules and Regulations, Series 8, as amended, the Acting Regional Director conducted an investigation and on August 23, 1974, issued his report on challenged bal- lots in which he recommended that the challenges to the ballots of Josephine DiCaprio and Elvira Coia be sustained and that the Union be certified. Thereafter, the Employer filed timely exceptions to the Acting Regional Director's report. On November 20, 1974, the Board issued a Deci- sion and Order Directing Hearing, in which the Re- gional Director for Region 1 was directed to cause a hearing to be conducted with respect to the issues raised by the above challenges. Pursuant to the Board's Order, a hearing was held in Providence, Rhode Island, on December 4, 1974. On January 9, 1975, a Hearing Officer's report on challenged bal- lots issued, in which it was recommended that the challenges to the ballots of Josephine DiCaprio and Elvira Coia be sustained and certification of repre- sentative be issued. The Employer thereafter filed timely exceptions to the Hearing Officer's report. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. Upon the entire record in the case, the Board makes the following findings of fact: 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to rep- resent certain employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of employees of the Employer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. 4. The parties stipulated and we find that the fol- lowing employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. All production and maintenance employees em- ployed at the Employer's Esten Avenue, Paw- tucket, Rhode Island, plant, but excluding all other employees, all office and plant clerical em- ployees, administrative and executive and pro- fessional employees, and supervisors as defined in the Act. 5. The Board has considered the Hearing Officer's report on challenged ballots, the Employer's excep- tions and brief, the Petitioner's answering brief, and the entire record in this case, and hereby adopts the Hearing Officer's findings, conclusions, and recom- mendations only to the extent consistent herewith. The Employer contends that the evidence is insuf- ficient to find that DiCaprio is a supervisor, or that Coia is a plant clerical. The Employer also contends that, regardless of what the evidence shows, the par- ties agreed to include both individuals in the unit before signing the stipulation in order to expedite the holding of the election, and that the Board should find that such an agreement is binding, in accor- dance with the holding in Banner Bedding, Inc.' We find the Employer's argument unpersuasive in the circumstances of this case. In Banner, even though an oral prestipulation agreement was found to be binding on the parties with respect to a specific individual's exclusion from the unit, the language of the decision carefully limits those situations wherein the Board will honor an exception to the established rule requiring a written agreement.' The conditions under which such agreements will be honored by the Board require complete accord by the parties as to the existence of the agreement, as well as its terms, and an understanding that the prestipulation agree- ment forecloses postelection litigation of issues which could have been presented prior to the election but which the parties chose to forego in order to obtain the early scheduling of an election. Specifically left out of the holding in Banner was the question of the validity of oral agreements with respect to statutory exclusions.' 214 NLRB No 139 (1974). 2 Norris-Thermador Corporation, 119 NLRB 1301 (1958). 7 For the reason stated in his dissent in Banner Bedding, Member Kenne- dy would not consider any oral preelection agreement with respect to issues of eligibility as a definitive resolution of such issues He would honor as final and binding only a written agreement signed by the parties which resolves issues of eligibility Norris-Thermador Corporation, supra Accord- 219 NLRB No. 58 ESTEN DYEING AND FINISHING CO., INC. We find that the Employer's exceptions to the Hearing Officer's report recommending sustaining the Petitioner's challenge to the ballot of DiCaprio to be without merit. The Petitioner's challenge raised a statutory issue, i.e., DiCaprio's supervisory status un- der Section 2(11) of the Act. Our decision in Banner is not to be read as precluding a challenge based on a statutory exclusion. Nor do we find merit in the Employer's exceptions to the Hearing Officer's ruling with respect to Coia's ballot. Unlike the DiCaprio challenge, the challenge to Coia's ballot does not raise a statutory issue, but we note that the Employer did not raise the Banner contention before the Re- gional Director during the postelection investigation of the challenge to her ballot. We further note that -at no time until after the Hearing Officer's report issued did the Employer raise the Banner issue. We are therefore persuaded that there was, in fact, no firm and binding agreement between the parties as con- templated in our decision in Banner. Having con- cluded that the challenges to the ballots of DiCaprio and Coia are properly before us for resolution, we shall resolve these challenged ballots in accordance with established Board policy. The record shows that DiCaprio does not have au- thority to hire or fire, is hourly paid, punches a time- clock and, according to her own testimony, spends most of her time doing production work in the same manner as the other approximately 6 to 10 employees in the winding department. As part of her duties she brings new work from another department, and re- cords and distributes it. All of these duties take up less than 1 hour of her 8-hour day. Although Di- Caprio's supervisor asked her to tell the other em- ployees in the department to get back to work if they were not keeping busy, she does not have the author- ity to impose any disciplinary measures on other em- ingly, he finds it unnecessary to reach the issues as to whether there was an oral agreement between the parties with respect to the eligibility of Di- Caprio and Coia. 287 ployees, nor has she ever recommended such action be taken. Finally, the fact that her wages are 10 per- cent higher than the other employees in the depart- ment is readily explainable in tems of her greater ten- ure and experience. Accordingly, we find that Josephine DiCaprio is not a supervisor within the meaning of Section 2(11) of the Act and shall direct the Regional Director to open and count her ballot. With respect to Elvira Coia's alleged status as a plant clerical, the record shows, and the Hearing Of- ficer found, that her duties consist essentially of the following: receiving materials; moving webs to their proper location; keeping inventories; dispensing the webs to the dyehouse after picking up the written orders from the office; cutting sample swatches; measuring the rolls; and following up the work in the dyehouse. Furthermore, the record shows that em- ployee Tony Melo, who works with Coia, does most of the physical work involved with her duties, leaving her essentially only the stock control function as her primary duty. We find, therefore, in accordance with the Hearing Officer, that Elvira Coia is a plant clerical and is not within the appropriate unit, and sustain Petitioner's challenge to her ballot. DIRECTION It is hereby directed that as part of the investiga- tion to ascertain representatives for the purpose of collective bargaining with the Employer, the Region- al Director for Region 1 shall, pursuant to the Board's Rules and Regulations, within 10 days from the date of this Decision and Direction open and count the ballot of Josephine DiCaprio, the challenge to which has been overruled herein, and thereafter prepare and cause to be served on the parties a re- vised tally of ballots, including therein the count of said challenged ballot on the basis of which he shall issue the appropriate certification.