Stockham Valve & Fittings, Inc.

STOCKHAM VALVE & FITTINGS 217 Stockham Valve & Fittings, Inc. and Local 710, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Petitioner. Case 13-RC-13676 January 14, 1976 DECISION AND DIRECTION BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS Pursuant to a petition duly filed by Petitioner on April 7, 1975, and a Stipulation for Certification Upon Consent Election- executed by the parties and approved by the Regional Director for Region 13 of the National Labor Relations Board on May 5, 1975, an election by secret ballot was conducted on May 22, 1975, among the employees in the unit described below for the purposes of collective bargaining. At the conclusion of the election, the parties were fur- nished a tally of ballots which- showed that, of ap- proximately 8 eligible voters, 8 cast ballots, of which 4 were for and I was against the Union. There were three challenged ballots. The challenged ballots are sufficient to affect the results of the election. Pursuant to Section 102.69 of the Board's Rules and Regulations, Series 8, as amended, the Regional Director investigated the challenges. On July 8, 1975, the Regional Director issued his Report on Chal- lenged Ballots in which he recommended that the challenge to the ballots of Charles Kirk and Ells- worth Crowe be sustained; he made no recommen- dation as to the ballot of Anthony Kirk since the challenge to his ballot is not determinative of the out- come of the election; and he recommended that Cer- tification of Respresentative issue. Thereafter, on July 19, 1975, the Employer filed Exceptions to Re- port on Challenged Ballots, and a brief in support of the exceptions.' On July 28, 1975, the Petitioner filed an answering brief to Employer's exceptions to re- port on 'challenged ballots and a statement in opposi- tion to Employer's -motion for a consolidation of cases. 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- 1 The Employer also filed a motion to consolidate Cases 13-RC-13676 and 13-CB-6133. Case 13-CB-6133 is a charge which allegedly involves acts and conduct on the part of the union representatives-employees which may have been the basis of meritorious objections to the election in Case 13-RC-13676 had they been known to Employer within the time for filing objections to the election, but which acts and conduct were not made known by the employee-victims within that time for fear of further violence and reprisals. The Petitioner opposes the motion for a consolidation of cases. We deny the motion as lacking in ment. thority in this proceeding 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 pur- poses 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 concern- ing the representation of certain 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 full-time and regular part-time warehouse employees employed at the Employer's facility now located at 4106 Kildare Avenue: excluding salesmen, casual and/or temporary employees, computer operator, switchboard operator, office clerical employees, professional employees, managerial employees, guards and supervisors as defined in the Act. 5. The Board has considered the Regional Director's report and recommendations, the Employer's exceptions and brief, and the Petitioner's answering brief. The Employer's exceptions to the Regional Director's report raise substantial issues of fact which, in our opinion, warrant reversal of the Regional Director's conclusions and recommenda- tions regarding the ballots of Charles Kirk and Ells- worth Crowe. We agree with the Regional Director's finding that Anthony Kirk was a regular part-time employee who shared a community of interest with the regular warehousemen. He was employed in the unit on the eligibility date and on the date of the election. The Regional Director made no recommendation as to Anthony Kirk's ballot inasmuch as it would not be sufficient to affect the outcome of the electron. How- ever, the Regional Director found that Charles Kirk and Ellsworth Crowe worked on too casual and spo- radic a basis to have a sufficient community of inter- est with the regular warehousemen to be included in the unit with them. We disagree with these findings. The Employer operates a Service Center in Chica- go, Illinois, where it is engaged in the warehousing and sale of industrial valves and fittings. Its main office is located in' Birmingham, Alabama. The Chi- cago Service Center is managed by Elliot Crawford, the district manager, and Charles DeArman, service center supervisor. DeArman reports to Ron Davis, manager of service center operations in Birmingham. 222 NLRB No. 19 218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The service center warehouse is normally staffed by six-full time warehouse employees, all of whom per- form general warehouse labor such as shipping, re- ceiving, and storing of merchandise. In addition they are responsible for keeping the warehouse clean and do other jobs such as painting inside and outside of the warehouse and cutting the grass. The hiring of all service center employees must be approved by the Birmingham office. DeArman requested approval from Ron Davis to hire two or three part-time warehousemen on a per- manent basis to work from 30 to 40 man hours per week. On or about March 31, 1975, Davis instructed DeArman to proceed with the hiring of two or three part-time employees, as he had requested. On April 24, 1975, Anthony Kirk, Charles Kirk, and Ellsworth - Crowe reported to the Company, where they were hired after filling out the standard employment application forms which all employees must fill=out. The personnel report, which was filled out on the same date and sent to the Birmingham office, shows that they were hired as part-time ware- housemen for the Chicago service center and that they were to work between 10 and 20 hours per week at a salary of $4.86 per hour, which is the starting rate for the Employer's midwestern district. They were scheduled to work from 5:15 p.m. to around 9:15 p.m. on Tuesday and Thursday, and from 8 a.m. to 1 p.m. on Saturday. Anthony and Charles Kirk began work on Saturday, April 26, 1975, and Crowe began on Tuesday, April 29, 1975. The regular ware- housemen work from 8 a.m. to 4:30 p.m. Monday through Friday. As noted, Anthony Kirk began work on April 26, 1975, and worked regularly from 10 to 20 hours a week up to and including the day of the election, May 22, 1975. He performed basically the same warehouse functions as did the regular warehouse- men, his benefits were similar, except that he did not receive holiday or vacation pay, and his working conditions were the same. However, because of his hours, he worked under a minimum of supervision. He put away merchandise which had been left from the day shift, cleaned the warehouse, and performed other jobs, such as painting and cutting grass. These jobs are ordinarily performed by the regular ware- housemen. As he performed duties similar to those of the regular warehousemen, the fact that his reporting time was after the regular warehousemen had gone off duty is unimportant. We agree with the Regional Director that Anthony Kirk was a regular part-time employee who shared a community of interest with the regular warehousemen. He was employed in the unit on the eligibility date and on the date of the election. Therefore, we find that he is properly in the unit. Accordingly, we overrule the challenge to his ballot. Charles Kirk reported for work on April 26, 1975, and Crowe reported on April 29, 1975. Each worked a total of 5 days, up to and including the day of the election. The - evidence shows that, -like Anthony Kirk, they also performed basic warehouse functions and enjoyed the same benefits as did the regular warehousemen, except they received no holiday or vacation pay. For the first week their attendance was good. During the second week, DeArman was,in- formed by Anthony Kirk that Charles had broken his glasses and that he would not be able to return to work until he had them repaired, as he was virtually blind without them. Charles did not work between May 1 and,19 but returned to work on May 20. After the first 2 weeks, Crowe began to miss work and De- Arman was informed, that he was having personal problems and that his child was ill. Crowe did not work between May -9 and 21 but reported to work on election day, May 22. DeArman considered these as legitimate excuses for their` absences. The Regional Director found that Charles Kirk and Ellsworth Crowe worked on too casual and spo- radic a basis to have a sufficient community of inter- est with the regular warehousemen to be included in the unit with them, and recommended that the chal- lenge to their ballots be sustained. We disagree with his finding and recommendations. We find no basis for treating Charles Kirk and Ellsworth Crowe any differently from Anthony Kirk, who the Regional Director determined "was a regu- lar part-time employee who shared a community of interest with the regular warehousemen." All three employees were hired at the same time and under the same terms and conditions, to fill a legitimate need of the Employer for additional manpower. All three employees were assigned to work the same schedule, on a permanent basis. We cannot question the legiti- macy of the personal problems Charles Kirk and Ellsworth Crowe had which caused some absences. It appears those reasons were temporary in nature and were accepted as legitimate by the employees' super- visor. In the 5 weeks immediately preceding the election, in spite of their personal difficulties, Charles Kirk worked 20 hours, for an average of 4 hours per week, and Ellsworth Crowe worked 21 hours and 10 min- utes, for an average of slightly in excess of 4 hours per week. Upon the foregoing -facts we find , that Charles Kirk and Ellsworth Crowe are regular part- STOCKHAM VALVE & FITTINGS 219 time employees and should properly be included in the-unit.2 Therefore, we overrule the challenges to their ballots. - Accordingly, we shall direct the Regional Director to open and count the ballots of Anthony Kirk, Charles Kirk, and Ellsworth Crowe and to issue -a 2 It is well settled that an employee is eligible to vote in a Board election if he was employed during the eligibility payroll period and-on the date of the election Choc-Ola Bottlers, Inc, 192 NLRB 1247 (1971 ), and cases cited in In I of that decision revised tally of ballots and an appropriate certifica- tion. DIRECTION The Regional Director is hereby directed to open and count the ballots cast by Anthony Kirk, Charles Kirk, and Ellsworth Crowe and to issue a revised tally of ballots, including therein the count of said ballots, upon the basis of which he shall issue the appropriate certification.