Fast Food Merchandisers, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Fast Food Merchandisers, Inc. and Margaret Battle, Petitioner and Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, Local P-706. Case Il-RD-284 May 4, 1979 DECISION AND CERTIFICATION OF REPRESENTATIVE BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO Pursuant to a Stipulation for Certification Upon Consent Election approved by the Regional Director for Region 11 of the National Labor Relations Board on December 22, 1978, an election by secret ballot was conducted in the above-entitled proceeding on January 11, 1979, under the direction and supervision of said Regional Director. Upon the conclusion of the election, a tally of ballots was furnished the parties in accordance with the Board's Rules and Regulations, Series 8, as amended. The tally of ballots shows that there were approxi- mately 176 eligible voters and that 169 ballots were cast, of which 80 votes were cast for, and 78 against, the Union; 11 ballots were challenged. The chal- lenged ballots are sufficient in number to affect the results of the election. On January 18, 1979, the Employer filed timely ob- jections to conduct affecting the results of the elec- tion. Pursuant to Section 102.69 of the Board's Rules and Regulations, an investigation of the objections and challenges was conducted under the direction and supervision of the Regional Director and, on March 2, 1979, he issued and duly served on the par- ties his Report on Objections and Challenges. The Regional Director recommended that the objections be overruled in their entirety and that a hearing be held for the purpose of resolving issues raised by the 11 challenged ballots. Thereafter, both the Employer and the Union filed timely exceptions to the Regional Director's report. The Employer excepts to the Re- gional Director's recommendation that Objections 1 and 3 be overruled. The Union excepts to the recom- mendation that a hearing be held on the 11 chal- lenged ballots and contends that the challenges should be sustained on the basis of the administrative record. 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 has considered the Regional Director's Report on Objections and Challenges, the exceptions and briefs, and the entire record in this proceeding, and has decided to adopt the Regional Director's rec- ommendations only to the extent consistent here- with.' The Union challenged the ballots of 11 warehouse- men, claiming that they were not members of the unit. The Union contends that warehousemen have been specifically excluded from the bargaining unit by agreement of the parties since 1976. On the other hand, both the Petitioner and the Employer contend that the warehousemen's ballots should be opened and counted because warehousemen enjoy a substan- tial community of interest with the members of the bargaining unit. The Employer further contends that in the election agreement which was approved on De- cember 22, 1978, the parties stipulated to a unit of all production and maintenance employees, and that warehousemen are encompassed by the phrase "pro- duction and maintenance employees." Finally, the Employer contends that the warehousemen whom the Employer has agreed to exclude from the bargaining unit since 1976 are warehousemen who work in a fa- cility at the Employer's Rocky Mount, North Caro- lina, complex which is separate and organizationally unrelated to the facility where the I I warehousemen in question work. The Regional Director recommend- ed a hearing because, in his view, the "evidence pre- sented by the parties is in conflict." Contrary to the Regional Director, we find that the challenges raise no issue requiring a hearing. In this connection we note that it is established Board policy that the unit appropriate in a decertification election must be coextensive with either the certified or recog- nized bargaining unit; hence, community-of-interest factors which would be considered in making an ini- tial appropriate unit determination are not relevant herein. In the instant case, it is clear that warehouse- men have been specifically excluded from the recog- nized bargaining unit. Thus, the record includes a February 1, 1976, agreement whereby the parties agreed to exclude warehousemen and truckdrivers form the bargaining unit and, consistent with this un- derstanding, warehousemen were specifically ex- cluded under the recognition clause of the most re- cent collective-bargaining agreement.2 Finally, we note that, even if the unit stipulated here of all "production and maintenance employees" was construed, arguendo, as an agreement by the par- ties to include warehousemen for purposes of the elec- tion, we would not give effect to such an agreement. i In the absence of exceptions thereto, we adopt, pro forma, the Regional Director's recommendation that the issues raised by the Employer's Objec- tion 2, and by the Employer's Objection "Other Acts and Conduct" be over- ruled. We additionally adopt the Regional Director's recommendation that Objections I and 3 be overruled. 2 In the face of this evidence, the Employer's assertion that the I ware- housemen involved here are not the warehousemen it intended to exclude by its agreement with the Union raises no issues warranting hearing. 242 NLRB No. 6 8 FAST FOOD MERCHANDISERS, INC. As we have pointed out elsewhere, "whatever effect given by the Board to stipulated units in representa- tion elections, it would obviously frustrate the Board policy of directing decertification elections in the ex- isting bargaining unit to permit the parties to vary that unit and participate in an election in a different unit of their own choosing."3 Accordingly, as we have adopted the Regional Di- rector's recommendation to overrule the Employer's objections in their entirety and have decided to sus- tain the challenges to the ballots of the 11 warehouse- men based on the administrative record, and as the tally of ballots shows that the Union has received a majority of the valid votes cast, we shall certify the Union as the exclusive bargaining representative of the employees in the appropriate unit. Brom Machine and Foundry Co., 227 NLRB 690 (1977). 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, Local P-706, and that, pursuant to Section 9(a) of the National Labor Relations Act, as amended, the said labor organization is the exclusive representative of all the employees in the following appropriate unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment: All production and maintenance employees at the Employer's manufacturing facilities located at 1233 N. Church Street, Rocky Mount, North Carolina, but excluding all truckdrivers, office clerical employees, salesmen, buyers, guards, and/or watchmen, and foremen and supervisors as defined in the Act.