Bonanno Family Foods, Inc.

BONANNO FAMILY FOODS, INC. Bonanno Family Foods, Inc. and Amalgamated Meat Cutters & Butcher Workmen of North America, District Union Local 1, AFL-CIO, Petitioner. Case 3-RC-6577 June 28, 1977 DECISION AND DIRECTION BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY Pursuant to a Stipulation for Certification Upon Consent Election, an election by secret ballot was conducted on May 20, 1976, under the direction and supervision of the Regional Director for Region 3, within an appropriate unit of the Employer's employ- ees as agreed to by the parties. Upon conclusion of the balloting, the parties were furnished a tally of ballots which showed that, of the six eligible voters, two ballots were cast for, and two against, the Petitioner. There were two challenged ballots, a number sufficient to affect the election's results. No objections were filed by either party. In accordance with the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Regional Director investigated the challenges and, on June 23, 1976, issued his report on challenges and order directing hearing. The Regional Director found that the challenge to the ballot of Barbara Simonelli, whose discharge prior to the election was the subject of an unfair labor practice charge in Case 3-CA-6578, could best be resolved by a formal hearing. Accordingly, he recommended that a hear- ing be held before a duly designated hearing officer. He further recommended that the hearing officer designated to conduct such hearing prepare and serve on the parties a report containing credibility resolutions, findings of fact, and recommendations to the Board as to the disposition of the challenge to the ballot of Barbara Simonelli. As to the other challenged ballot, the Regional Director found that Susan Benson is a regular part- time employee of the meat department and recom- mended that the challenge to her ballot be overruled. He also recommended, however, that her ballot not be opened and counted until the challenge to the ballot of Simonelli was resolved. Thereafter, the Petitioner filed exceptions to the Regional Director's report and a brief in support thereof, and the Employer filed an answering brief in opposition to the exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. 230 NLRB No. 74 The Board has considered the Regional Director's report in light of the exceptions and briefs and has decided to affirm his findings, conclusions, and recommendations only to the extent consistent herewith. 1. Susan Benson The Regional Director found that Benson is a regular part-time employee in the meat department whose duties and working conditions are similar to those of other meat department employees. We disagree. For the reasons set forth below, we find that Benson is a dual-function employee who does not work a sufficient number of hours in the meat department to warrant her inclusion in that unit. The facts uncovered by the Regional Director's investiga- tion of Benson's challenge are not materially in dispute and were described by him as follows: Benson was hired to work part time in the Employer's delicatessen department approximately I year prior to the election herein. In January 1976, she began working in the meat department as a meat- wrapper on a regular schedule. Benson is scheduled to work in the meat department from 8 a.m. to 11:30 a.m. each Sunday. She also fills in at other times as needed. Because the meat manager does not work Sundays, the two meatcutters work alternate Sun- days and Benson receives her work directions from them. In addition to wrapping meat, Benson cleans the meat case each Sunday, which takes about I to 1- 1/2 hours. During the last quarter prior to the eligibility cutoff date, Benson averaged just under 3-1/2 hours per week in the meat department. During the same period of time, she averaged approximately 22 hours per week in the produce and "deli" departments where she is also scheduled to work. Benson's rate of pay is the same regardless of the department in which she is working. As a part-time employee, she also receives the same benefits that other part-time employees receive. Benson's hourly wage rate is approximately 75 percent of that paid to the other part-time meatwrapper, who works approx- imately 25 hours per week, and about 60 percent of the rate paid to the full-time meatwrapper. Both of these wrappers, however, have at least I year more experience in the meat department than does Benson. It is clear from the foregoing that Benson is a regular part-time employee of the Employer who works a total of about 25 hours per week, of which more than 80 percent is spent in the produce and "deli" departments and less than 20 percent in the meat department. Since Benson is thus a dual- 555 DECISIONS OF NATIONAL LABOR RELATIONS BOARD function employee, we must determine, under the principles of Berea 1 and Ocala,2 whether she works a sufficient number of hours in the appropriate unit- i.e., the meat department-to share a genuine community of interest with the employees in that unit. The Regional Director found that, during the calendar quarter just prior to the eligibility cutoff date, Benson averaged just under 3-1/2 hours per week in the meat department. In our judgment Benson works an insufficient number of hours in the meat department to demonstrate that she shares a substantial interest in the wages, hours, and working conditions of employees in that unit. Accordingly, we shall exclude Benson from the unit and sustain the challenge to her ballot. 2. Barbara Simonelli As stated, the Regional Director found that the challenge to the ballot of Simonelli, whose discharge before the election was charged to be an unfair labor practice in Case 3-CA-6578, raised substantial issues of fact which could best be resolved by a hearing. He therefore recommended that the issue of Simonelli's eligibility be resolved by a formal hearing. No exceptions were filed to this recommendation. We take official notice of the following events involving the charge in Case 3-CA-6578 which transpired after the Regional Director's report on challenges issued: On July 7, 1976, the Regional Director issued a complaint and notice of hearing in Case 3-CA-6578 alleging that the discharge of Simonelli violated Section 8(a)(3) and (1) of the Act. On the same date, the Regional Director also issued an order consoli- dating cases in which he ordered that the unfair labor practice case be consolidated with Case 3-RC-6577 "for the purpose of hearing, ruling, and decision by an Administrative Law Judge on the status of Barbara Simonelli, and that thereafter Case No. 3- RC-6577 be transferred to and continued before the Board in Washington, D.C...." Thereafter, a hearing was held before Administrative Law Judge Elbert D. Gadsden on September 7, 1976. On January 28, 1977, the Administrative Law Judge issued his Decision in the consolidated proceeding, finding that Respondent, Bonanno Family Foods, Inc., had violated Section 8(a)(3) and (1) of the Act by discharging Simonelli, and recommending that usual remedial order, including reinstatement with backpay. In an erratum, dated February 22, 1977, the Administrative Law Judge further recommended, inter alia, that the challenge to IBerea Publishing Company, 140 NLRB 516, 519 (1963). 2 The Ocala Star Banner, 97 NLRB 384(1951). 3 No objections were filed by either party to the conduct of the election or to conduct affecting the results of the election. Simonelli's ballot be overruled and that Case 3-RC- 6577 be remanded to the Regional Director for the purpose of opening and counting her ballot. The Administrative Law Judge additionally recommend- ed that, if the revised tally of ballots shows that the Petitioner received a majority of the votes cast, the Petitioner be certified as the bargaining representa- tive of the employees in the appropriate unit. However, if the revised tally shows that the Petitioner did not receive a majority of the votes cast, he recommended that the election be set aside and that a second election be directed.3 No exceptions were filed to the Administrative Law Judge's Decision and the Board, on June 20, 1977, issued an Order adopting pro forma his findings, conclusions, and recommendations with respect to Case 3-CA-6578. 4 However, notwith- standing the absence of exceptions thereto, the Board did not adopt that portion of the Administrative Law Judge's recommendations with respect to the disposi- tion of the representation proceeding on the grounds that such recommendations were contrary to, and in excess of, the authority granted him in the order consolidating cases. The Board having adopted the Administrative Law Judge's finding that Simonelli was unlawfully dis- charged prior to the election in violation of Section 8(a)(3) and (1) of the Act, we find that she was eligible to vote in the election herein. Accordingly, we overrule the challenge to her ballot. As we have sustained the challenge to the ballot of Susan Benson and overruled the challenge to the ballot of Barbara Simonelli, we shall remand this proceeding to the Regional Director for the purpose of opening and counting the ballot of Simonelli, preparing and serving on the parties a revised tally of ballots, and, thereafter, issuing the appropriate certification. DIRECTION It is hereby directed that the Regional Director for Region 3 shall, pursuant to the Board's Rules and Regulations, Series 8, as amended, within 10 days from the date of this Decision and Direction, open and count the ballot of Barbara Simonelli and, thereafter, prepare and cause to be served on the parties a revised tally of ballots. IT IS HEREBY FURTHER DIRECTED that the Regional Director shall, thereafter, issue and cause to be served on the parties the appropriate certification. IT IS HEREBY FURTHER DIRECTED that the instant proceeding be, and it hereby is, remanded to the 4 The Board's Order does not appear in the published volumes of the Board's decisions. 556 BONANNO FAMILY FOODS, INC. 557 Regional Director for Region 3 for the purpose of taking the actions set forth above.