Redi-Serve Foods, Inc.

636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Redi-Serve Foods, Inc. and Amalgamated Meat Cut- ters and Butcher Workmen of North America, AFL-CIO, Petitioner. Case 30-RC-2769 October 29, 1976 DECISION AND CERTIFICATION OF REPRESENTATIVE BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND WALTHER Pursuant to a Stipulation for Certification Upon Consent Election, executed on March 7 and 8, 1976, and approved by the Regional Director on March 10, 1976, an election by secret ballot was conducted on April 1, 1976, under the direction and supervision of the Regional Director for Region 30, among the em- ployees in the stipulated unit. At the conclusion of the election, the parties were furnished with a tally of ballots which showed that, of approximately 120 eli- gible voters, 108 votes were cast, of which 53 votes were cast for the Petitioner, 43 were against the Peti- tioner, and 15 ballots were challenged. The chal- lenged ballots were sufficient in number to affect the result of the election. Following an investigation of the challenges, con- ducted pursuant to Section 102.69 of the Board's Rules and Regulations, Series 8, as amended, the Re- gional Director issued a notice of hearing on April 15, 1976. Pursuant to the notice of hearing, duly served on the parties, a hearing was conducted by Hearing Officer Barnett L. Horowitz on May 12, 13, and 14, 1976, at Fort Atkinson, Wisconsin. Full op- portunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was given to all parties. Briefs were filed by both parties and were considered by the Hearing Of- ficer. Thereafter, the Hearing Officer recommended that the challenges to the ballots cast by Olin Bien- fang, David Wegner, Patti Wendt, Elsie Wegner, and Rick Jelinek be sustained. He further recommended that the challenges to the ballots cast by Kim Millis, Robert Wicklund, Lillian Bellcour, James Kibbe, Michael Northey, Sharon Nicholas, Ralph Welter, Pat Prisk, Betty Vaughn, and William Jackl be over- ruled and that all 10 ballots be opened and counted. Thereafter, Petitioner filed timely exceptions to the Hearing Officer's findings with respect to the chal- lenges to the ballots cast by Kim Millis, Robert Wicklund, Lillian Bellcour, James Kibbe, Michael Northey, Sharon Nicholas, Pat Prisk, and William ' In the absence of exceptions thereto, the Board adopts, pro forma, the Jackl.' The Employer filed a brief in support of the Hearing Officer's findings. 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. The Board had reviewed the Hearing Officer's rul- ings made-at the hearing and finds that they are free from prejudicial error. The rulings are hereby af- firmed. 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 Petitioner is a labor organization within the meaning of Section 2(6) and (7) of the Act. 3. A question affecting commerce exists concern- ing the representation of certain employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. The parties agree, and we find, that the follow- ing employees constitute a unit appropriate for col- lective bargaining within the meaning of the Act: All production and maintenance employees at the company's plants in Fort Atkinson, Wiscon- sin including regular part-time employees, load- ers and unloaders (truck drivers), sanitation employees, but excluding quality control employees, technical employees, office clerical employees, professional employees, and guards and supervisors as defined in the Act. The Board has considered the Hearing Officer's report and recommendations, the Petitioner's excep- tions and brief, the Employer's brief in support of the Hearing Officer's recommendations, and the entire record in this proceeding and hereby adopts the find- ings, conclusions, and recommendations of the Hear- ing Officer only to the extent consistent herewith. Petitioner has excepted, inter alia, to the Hearing Officer's recommendations regarding Subforemen Lillian Bellcour, James Kibbe, Michael Northey, and Sharon Nicholas. The Hearing Officer concluded that the four were not supervisors under the Act and accordingly recommended overruling the challenges to their ballots. We disagree as we find the four indi- viduals to be supervisors and, accordingly, shall sus- tain the challenges to their ballots. The Employer admits that, as of April 1, 1976, the date of the election, there existed a "Working Agree- Hearing Officer's recommendation that the challenges to the ballots cast by Olin Bienfang, David Wegner, Patti Wendt, Elsie Wegner, and Rick Jelinek be sustained, and that the challenges to the ballots cast by Ralph Welter and Betty Vaughn be overruled. 226 NLRB No. 105 REDI-SERVE FOODS, INC. ment," which described in detail the duties and au- thority of its subforemen, including the four above- named individuals. We note that at paragraph 3, sec- tion 505, of that agreement, the duties of the subfore- men were denoted to include the following authority: Sub-Foremen are empowered to assign employ- ees to specific work assignments and to adjust grievances with employees under their immedi- ate supervision, if the grievance is of a relatively minor nature and can be resolved orally be- tween the Sub-Foremen and an employee. Sub- Foremen shall not have the power to promote, reward, or discharge employees under their su- pervision. Sub-Foreman may recommend disci- plinary action for employees under their super- vision. Under no circumstances does [sic] the Sub-Foreman have the power to discharge an employee. In addition, section 601 of the working agreement provided that the initial step in the Employer's griev- ance procedure was to be conducted by a subfore- man. And, at article V, section 503, of the working agreement, it is indicated that: Employees are subject to' immediate discharge [for the] following reasons: 1. Willful insubordi- nation or refusal to obey a foreman or sub- foreman's direct order: The Employer admitted that copies of this working agreement were given to employees after they had been employed.for 30 days. From the above, it is clear that, under the terms of the working agreement, subforemen were empow- ered, at the least, to assign employees various work responsibilities; to attempt initially to adjust employ- ee grievances; and to recommend disciplinary action against employees. Further, failure to obey a subforeman's orders could result in discharge for an offending employee. While the record may not detail the exercise of various of these responsibilities of the subforemen, we reiterate that the Employer has ad- mitted that the working agreement was in existence at all relevant times and we find that the agreement 637 clearly sets forth various indicia of the subforeman's supervisory authority. As we have often noted, the existence of supervisory authority, and not necessari- ly the exercise thereof, is sufficient to support a find- ing that an individual is a supervisor within the meaning of the Act.' Accordingly,. we find that the subforemen are supervisors within the meaning of the Act and were therefore ineligible to vote in the April 1 election. Consequently, we hereby sustain the challenges to the ballots of Subforemen Northey, Bellcour, Kibbe, and Nicholas.' As a result of our decision to sustain the challenges to the ballots of these four subforemen, the remain- ing challenges_ are rendered mdeterminative of the election's results and we, therefore need not pass on them. Accordingly, as the Petitioner has received a ma- jority of the valid ballots cast, we shall certify it as the exclusive bargaining representative of the em- ployees in the unit found appropriate. CERTIFICATION OF REPRESENTATIVE It is hereby certified that a majority of the valid ballots have been cast for Amalgamated Meat Cut- ters and Butcher Workmen of North America, AFL- CIO, and that, pursuant to Section 9(a) of the Na- tional Labor Relations Act, as amended, the fore- going labor organization is the exclusive representa- tive of all the ' employees in the ' unit found appropriate herein for the purposes of collective bar- gaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of em- ployment. 2 Mississippi Valley Barge Line Co, 151 NLRB 676 (1965); Columbia Ty- pographical Union Number 101, International Typographical Union of North America, AFL-CIO (The Evening Star Newspaper Co),, 193 NLRB 1089 (1971). Also see Ohio Power Company v N L.R.B, 176 F.2d 385 (1946) 3 As Sec 2(11) of the Act is interpreted in the disjunctive, we need only find that an individual possess one of the enumerated supervisory indicia in order to conclude that the individual is a supervisor. Consequently,. the subforemen's lack of authority, under the working agreement, to hire, dis- charge, or promote an employee is not fatal to our conclusion that subfore- men are, in fact, supervisors within the meaning of the Act