American Radiator & Standard Sanitary Corp.

National Labor Relations Board - Board Decisions

Feb 26, 1958

119 N.L.R.B. 1715 (N.L.R.B. 1958)

AMERICAN RADIATOR & STANDARD- SANITARY CORPORATION 171 r5
[The Board certified that a majority of the valid ballots was not
cast for Retail Clerks Union Local 1460, Retail. Clerks International
Union, AFL-CIO, and that said organization is not the exclusive
representative of the Employer's employees in the unit found appro-
priate.]
MEMBERS JENKINS and FANNING took no part in the consideration
of the above Supplemental Decision and Certification of Results of
Election.
American Radiator & Standard Sanitary Corporation,' Pacific
Order Handling Division and Office Employees International
Union, AFL-CIO, Petitioner
American - Radiator & Standard Sanitary Corporation, Rich-
mond Works and Office Employees International Union, AFL-
CIO, Petitioner. Cases Nos. 00-RC-3361 and 90-RC-3391. Feb-
ruary 06, 1958
DECISION AND DIRECTION OF ELECTIONS
Upon separate petitions duly filed under Section 9 (c) of the
National Labor Relations Act, a consolidated hearing was held before
M. C. Dempster, hearing officer. The hearing officer's rulings made
at the hearing are free from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman Leedom and Members Bean and Jenkins].
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent certain
employees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9 (c) (1) andSection 2 (6) and (7) of the Act.
4. In Case No. 20-RC-3361, the Petitioner seeks to represent all
office clerical employees at the Employer's Pacific Order Handling
Unit, Richmond, California, excluding confidential employees, man-
agerial employees, professional employees, guards, and all super-
visors as defined in the Act. In Case No 20-RC-3391, the Petitioner
seeks to represent all office clerical employees, including personnel
clerks and timekeepers employed by the Employer at its Richmond,
California, manufacturing plant, but excluding production and main-
tenance employees, the plant nurse, the laboratory technician, man-
1 The name of the Employer herein appears as amended at the hearing.
119 NLRB No 213
1716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agerial employees, professional employees, guards, and all supervisors
as defined in the Act.
The Employer does not stipulate to the appropriateness of either
of the units but agrees that office employees at the order handling
unit should not be grouped with the office employees at the manufactur-
ing plant located in adjacent buildings, because the two groups of
office employees are under different administrative branches of the
Employer and the scope of jurisdiction of their work differs.
The Pacific Order Handling 'Unit, organizationally under the vice
president in charge of the Employer's sales department, and directly
under the manager of the order handling unit located at Pittsburg,
Ohio, processes plumbing orders received from customers and sales
offices in the western half of the United States. It places these orders
with the Employer's plants, generally those located in the.. West,. by
allocating according to their capacities, facilities, and volume of
work on hand. The Richmond manufacturing plant is organiza-
tionally under the manufacturing department of the Employer and
a vice president of manufacturing located at the principal office in
New York. Under these circumstances we find, in agreement with
the parties, that the two groups of office employees may appropriately
be placed in separate bargaining units.
Case No. 20-RC-3361
The Pacific Order Handling Unit office is in the charge of a super-
visor who has as his assistant a chief clerk, and the parties stipulate
that, these two individuals are supervisors within the meaning of the
Act. The office is divided into seven operations, namely : billing,
order editing, service, scheduling, order control, correspondent, and
stenographic pool. There are approximately 28 employees all located
in 1- large office except for billing which, because of a lack of space, is
in an adjoining room. The Employer urges that 5 individuals
responsible for each of the first 5 named operations should be
e±clttded from any appropriate unit as 'supervisory and managerial,
and that the secretary to the supervisor should be excluded as confi-
dential The Petitioner opposes these exclusions.
"A chief billing clerk is responsible for billing. activities performed
with six other employees. The special order editor is responsible for
editing orders received from customers to conform with the company-
established identification symbols and nomenclature and works with
six employees in "this activity. A senior record clerk "A" is responsi-
ble for service activities carried on by himself and six other employees,
primarily involving the making of any changes in or. additions to
orders in: process. A senior schedule clerk and an-assistant " schedule
shipment of carload and truckload lots _from plants in the area.serv-
iced. And an order editor, in order control, with paxt-time :assistance
'A'MERICAN RADIATOR & STANDARD SANITARY CORPORATION 1717
from one employee , ordinarily assigned to service , handles less-than-
carload-lot shipment scheduling.
The Employer maintains that they are managerial because in certain
phases of their work they may determine whether a customer may be
ordering beyond its credit allowance, commit the Employer for freight
charges and choose the carrier, obligate the Employer to manufacture
and deliver merchandise, and determine which plant of the Employer
shall perform the work on each order. However, the record indicates
that all such determinations are made within the limitations of policy;
established at higher levels of management. The exercise of judgment
within the limitations of established policy does not confer managerial,
status absent authority to influence the establishment of such policy.?
In these circumstances we conclude that the duties of the chief billing
clerk, the special order editor, the senior record clerk "A," the senior,
schedule clerk, and the order editor perform work primarily of a cleri-
cal nature 3 and that none of the five are managerial employees.
There remains for consideration the question of whether these five
individuals are supervisors within the meaning of the Act. Each works
the full 8 hours at his particular phase of work, and none has authority
to hire, fire, or affect the wages of employees assigned to work in his
respective area of activity. However, whether they responsibly direct
those employees or have authority to make effective recommendations
concerning hire, tenure, or reprimand is disputed between the parties.,
The Employer contends that these five individuals tell employees as-
signed to the respective areas of activity "what to do, and how and when
to do it," whereas the Petitioner contends that as the more experienced
or capable employee each acts in the capacity of group leader similar
to that of a craftsman.
The record indicates that the supervisor of the unit, within the limi-
tations of authority permitted him by policy established by higher
management, plots methods and procedures for the handling of prob-
lems within the operation involved herein and spends the remaining
portion of his time in handling special or exceptionally difficult prob-
lems which may arise and in direct supervision of the unit. The chief
clerk spends substantially all of his time supervising the entire opera-
tion. It is usually the chief clerk who distributes the work initially.
Thereafter the work may be routed from one activity to another as the
situation requires. The procedures and established policy are learned
by each employee as his job function is affected thereby. The five in-
dividuals in dispute are the more experienced or have a greater com-
prehension than other employees within their respective fields of
2 See Eastern Corporation, 116 NLRB 329 , 332; also see Puget Sound Power d Light
Company, 117 NLRB 1825, 1827; Franklin's Stores Corporation of Daly City , 117 NLRB
793, 795 ; White Provision Company, 116 NLRB 1552 , 1555; Peninsular Metal Products
Corporation , 116 NLRB 452, 454.
S See Beckett Engineering Co., Division of Harsco Corporation, 117 NLRB 1395, 1398.
1718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
activity with respect to the methods, procedures, and policy of the
Employer. If problems arise which do not readily fit into the estab-
=lished procedures, or the individual is not sure which procedure is ap-
-plicable within the broader concept of policy, the problem may be
taken by the employee either directly to the supervisor or the chief
clerk, or, as is more commonly the case, to the 1 of the 5 individuals
in whose area it falls. He, in turn, may find it necessary to present
the issue to the supervisor for solution. Any of the five may make
suggestions for changes in method or procedure derived from their
experience, as may other employees, but have no authority to put such
changes into effect. Leave records are kept by the supervisor's secre-
tary and absence for medical purposes is automatically granted as
a matter of policy. Therefore, employees may report to the individual
responsible for the area of work to which they are assigned the necessity
of a few hours' leave to keep a doctor or dental appointment, but any
request for a more extensive period or for reasons other than medical
are taken to the supervisor. The five individuals in question have no
official knowledge of the rates of pay of employees assigned to their
group and are not advised of any pay raises granted an individual
employee. The only evidence indicative of any supervisory authority
occurred 1 week before the hearing herein. One of these individuals
was requested for the first time to interview an applicant for a prospec-
tive vacancy in his group after the applicant had been interviewed by
the supervisor. He was advised that he would be expected to confer
with the supervisor concerning the applicant. However, there was no
indication that a recommendation was expected, or that if one were
made it would be given weight. This incident alone cannot be re-
garded as establishing authority effectively to recommend.
The question of whether particular individuals in a given case are
supervisors within the meaning of Section 2 (11) of the Act must be
resolved upon examination of all the evidence in the case. Conclu-
sionary statements such as the assertion that these five individuals
tell employees in their field of activity "what to do, and when and how
to do it" do not, without supporting evidence, establish supervisory
authority.' We note too that a finding that the 5 individuals in dis-
pute were supervisors would result in a ratio of 1 supervisor for each
3 employees, in a small office where the work is highly routinized and
is under the constant supervision of 2 admitted supervisors. A con-
trary holding-would result in a ratio of 1 supervisor for 14 employees.5
In view of the above, and in the absence of evidence that any of these
five individuals possess authority to direct other. than. routine work
or have power to make recommendations which would be followed, we
' See United States Gypsum Company, 118 NLRB 20.
5 See United States Gypsum Company, supra; also see Toledo Board of Trade, 117
NLRB 1504. Cf. Brunswick Quick Freezer, Inc., 117 NLRB 662, 664.
AMERICAN RADIATOR & 'STANDARD SANITARY CORPORATION 1719
find that the chief billing clerk, the special order editor, the senior
record clerk "A,",the senior schedule clerk, and the order editor are
not supervisors within the meaning of the Act, and shall include them
in the units
There remains for consideration the issue of whether the secretary
to the supervisor is a confidential employee of the type excluded by
the Board from bargaining units. The Employer takes the position
that she should be excluded because she will be the one to handle any
communications concerning labor relations negotiations which the
supervisor may be required to make with other officials of the
Employer if the Petitioner is certified. The Petitioner argues that
she is not presently performing any duties which would cause her to
be excluded as confidential, and that if and when such circumstances
arise the parties may reconsider her status, with respect to the
bargaining unit.
It is clear that the secretary to the supervisor does not now perform
any duties which would cause her to be classified as confidential.
Moreover, there is no evidence that the supervisor will necessarily be
designated by the Employer as a negotiator in the event the Peti-
tioner is chosen as the bargaining representative. The Employer's
table of organization includes a vice president in charge of employee
relations, and other officials of the Employer located in adjacent build-
ings are presently charged with the duty of negotiating for the
Employer with six other unions representing other units of employees.
In these circumstances, and in view of the fact that the secretary's
duties as presently constituted do not now warrant her exclusion as a
confidential employee, we find that she is appropriately a part of
the unit.''
Accordingly, we find that the following employees constitute a unit
appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act :
All office clerical employees at the Employer's Pacific Order Han-
dling Unit, Richmond, California, excluding confidential employees,
managerial employees, professional. employees, guards, and all
supervisors as defined in the Act.
Case No. 20-RC-3391
The Richmond, California, manufacturing plant is under the super-
vision of the plant manager. Various departments under the man-
ager, namely, accounting, purchasing, inventory control, and personnel
administration are composed of office employees whom the Petitioner
6 See Heckett Engineering Co., footnote 3, supra; Montgomery Ward d Co., Incorporated,
117 NLRB 1481 ; Haleyville Textile Mills, Inc., 117 NLRB 973, 975.
s See Arden Farms, et at ., 117 NLRB 318, 320 ; cf. Heckett Engineering Co., footnote 3,
supra, at 1396.
1720 • DECISIONS OF NATIONAL LABOR RELATIONS BOARD
seeks to represent. The parties stipulated that the manager and the
department heads including the plant comptroller, the buyer, the
inventory control supervisor, and the personnel administrator are
supervisors and should be excluded from any unit found appropriate.
They further stipulated to exclude as confidential employees the
executive secretary, the plant comptroller's secretary, and the inven-
tory control supervisor's secretary, and as managerial the project
auditor.
The Employer would also exclude, contrary to the contentions of
the Petitioner, the following individuals for the reasons indicated :
Personnel and welfare clerk, as confidential; personnel clerk, as guard,
confidential, and supervisor; cashier-head timekeeper, as supervisor
and managerial; three timekeeper clerks, as plant clericals; section
heads in the accounting department-tabulating, operating, and sys-
tems supervisor, cost accounting supervisor, property accounting
supervisor, and stores and receiving supervisor, all as supervisors and
as managerial; and section heads of the inventory control depart-
ment-production scheduling supervisor and brass inventory control
supervisor, both as supervisors and as managerial.
At the outset, it is noted that the ratio of admitted supervisors to
employees in the unit is 1 to every 6, whereas the ratio of alleged
supervisors to employees would be 1 for every 12/3 employees, a highly
improbable situation.8
The personnel and welfare clerk, alleged to be confidential, handles
insurance and other welfare programs of the Employer, processing
claims and informing employees of benefits available. He also pre-
pares personnel statistical reports for the Employers' home office and
for various governmental agencies, and age and cost data, number of
employees, rates and classifications, and other statistical information
for use by the Employer during negotiations. On occasion, he has
been called upon by the personnel administrator, who is one of the
Employer's negotiators, to type reports of negotiations and on one
occasion to type the formal contract after agreement had been
reached.
It is the Board's customary practice to exclude from bargaining
units employees who act in a confidential capacity to officials who
formulate or effectuate general labor relations policies, or who, in the
course of their duties, regularly have access to information concerning
anticipated changes which may result from collective-bargaining
negotiations.' However, the Board's classification of confidential does
.not apply to individuals having access to personnel or statistical in-
formation upon which such policy is based,10 or to employees who may
8 See footnote 5, supra.
9 See, Heckett Engineering Company, footnote 3, supra, at p. 1396 ; Potomac Electric
Power Company, 111 NLRB 553, 562.
10 See Arden Farms, et at ., footnote 7, supra.
AMERICAN RADIATOR & STANDARD SANITARY CORPORATION 1721
type documents relating to negotiations or grievances after the in-
formation contained therein is known by the union or the employee-
involved." The personnel and welfare clerk has no way of determin-
ing from the statistical data prepared by him what labor policy
proposals may result and the reports concerning negotiations and the
contract were all typed after the information contained therein was
an accomplished fact. In all the circumstances we find that he is not
a confidential employee and shall include him in the unit.
The three timekeepers work in separate departments of the plant
sharing offices with the foreman of the department to which they are
assigned. Their function is two-fold : that of timekeeping, and keep-
ing account of production in accordance with a production schedule
issued to the foreman of the department to which they are assigned.
As they are located in the plant where they keep plant records and
are in constant and direct contact with production and maintenance
workers, we find that the timekeepers are plant clericals whom, because
of the Employer's objections to their inclusion, we shall, in accord-
ance with Board policy, exclude from the office clerical unit.12
The personnel clerk, alleged to be confidential, a guard, and a super-
visor, is located in a small office at the Employer's main plant en-
trance. His duties include that of receptionist for persons other than
employees. He also handles a number of personnel matters for em-
ployees such as accepting changes in withholding tax designations,
name, telephone, and address changes, locates employees for the
personnel administrator, and performs other routine personnel func-
tions for employees as they arrive or leave the plant so that they will
not have to go to the personnel. office. In addition, he signs the
guards' timeslips, checks the watchmen's dials, advises the mainte-
nance department of repairs requested by the guards, and, when a
guard fails to report for duty, lie will. call for a replacement if it
does not involve overtime. Otherwise he is required to turn the matter
over to the personnel administrator. He maintains the guards' vaca-
tion schedule but the schedule itself is worked out by the guards on
the basis of seniority and agreement. The personnel clerk was ex-
cluded from the guard unit by agreement of the parties because of
the clerical nature of his duties.
We find that the personnel clerk is neither confidential 13 nor a
guard 14 as alleged by the Employer. Nor do we regard the recording
duties relating to operations of the guards anything more than routine
clerical functions performed for the personnel administrator. Ac-
:11 Potomac Electric Power Company, footnote 9. supra, at 563.
'a See Fairbanks, Morse f Company, 117 NLRB 1449, 1450.
11 See cases cited in footnotes 9, 10, and 11, supra.
14 See Livonia Plant of Automatic Transmission Division, Ford Motor Company, 116
NLRB 1995.
1722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cordingly, we find that the personnel clerk is not a supervisor within
the meaning of the Act.
The cashier-head timekeeper job, formerly two positions, is tempo-
rarily combined while the former head timekeeper is detailed to a
short-term managerial function. As cashier, he prepares checks for
payment of all bills certified by the appropriate departments in
accordance with company regulations. Such checks must be cosigned
by the comptroller and by the supervisor of cost accounting. He is
under the direct supervision of the comptroller. For approximately
a year there has been no one assisting him in his function as cashier.
Testimony that he was able in the past to make a recommendation if
the work of one assistant was unsatisfactory, without any evidence
concerning the effectiveness of any recommendation or any indication
when he may again have an assistant, is insufficient to find that he is
a supervisor.
With respect to the head timekeeper aspect of his duties, the allega-
tion is that he supervises the three timekeepers. However, when and
how this supervision takes place is not presented. On the other hand,
the record indicates that when a timekeeper needs instructions with
respect to the function of his job he is supervised directly by the
comptroller and the day-to-day function of his work is performed for
the foreman of the department to which he is assigned. Such evidence
is insufficient upon which to base a finding that the cashier supervises
timekeepers. 15 Nor do we find that the work performed by the cashier
is managerial in nature but is rather a clerical function.16
The following section heads are grouped together for consideration
as the testimony bearing upon their alleged supervisory authority is
substantially identical. The tabulating, operating, and systems
supervisor, the cost accounting supervisor, the property accounting
supervisor, and the stores and receiving supervisor are section heads
in the accounting department under the supervision of the plant
comptroller. The production scheduling supervisor and the brass
inventory control supervisor are heads of two sections of the inventory
control department under the supervision of the inventory control
supervisor.'
The tabulating, operating, and systems section handles the IBM
operation which includes computations and records of payrolls, inven-
tory, and labor distribution. There are five employees in this section
in addition to the section head. The cost accounting section figures
manufacturing costs and profits. There are three employees besides
'a See footnote 4, supra.
ie See footnotes 2 and 3 , supra.
zv Two other sections of this department , namely, warehouse and shipping , and raw
material unloading do not have office employees , and are represented in a separate ware-
house unit.
AMERICAN RADIATOR & STANDARD SANITARY CORPORATION 1723
the section head. The property accounting section is made up of one
individual, the cost accountant, otherwise referred to as the section
head. His duty is to keep a record of the assets such as property,
,machinery, and buildings. The stores and receiving section keeps
records of materials for the maintenance and production operations
and disburses such material pursuant to requisition. The section is
composed of two employees, the section head and an assistant. The
production scheduling section in the inventory control department
consists of one man, the section head, who makes up production
schedules for the various production departments and shipping in
accord with a schedule received by the inventory control department
from the inventory planning department located in New York. In
addition to preparing production schedules, this section head also
certifies freight bills, determines the type of traffic movement by
poundage as less-than-carload or carload, and the particular route by
which finished material is to be shipped. Occasionally someone is
assigned to perform clerical or typing work for him in preparing and
distributing the schedules but this is generally done by the secretary
to the inventory control supervisor or by an order handling clerk-
typist." The brass inventory control section is composed of the
section head and two bookkeepers-clerk typists. The work consists of
keeping records of brass by transcribing from a recapitulation of daily
business onto a Kardex, and using such records to make up monthly
reports of brass inventory.la
The heads of each of these sections are responsible for the perform-
ance of the work of their respective sections. The plant comptroller,
who is the supervisor of the accounting department, indicated that
any recommendation concerning promotion or discharge of employees
in the four sections made by their section heads would be given
"weight," and that the section head of the IBM operation may request
additional help. The inventory control department supervisor indi-.
cated that the 2 section heads under consideration in his department
could make recommendations to him regarding the discharge, pro-
motion, or wages of employees-in production scheduling concerning
the 2 shipping clerks and in brass inventory control concerning the 2
bookkeepers-and that he would give "weight" to such recommenda-
tions. However, he admitted that he could make no determinations on
such recommendations but could only in turn make his recommenda-
's The inventory control department supervisor testified that the work of a shipping
clerk and an assistant shipping clerk is determined by the contents of schedule prepared
by the production scheduling section head who thereby directs the work of the shipping
clerks and shares their supervision with the department supervisor.
18 The department supervisor indicated that six employees in shipping, marking, stencil-
ing, and parcel post activities in the warehouse are under the brass inventory section
supervisor but did not indicate in what manner or to what degree any supervision takes
place, or bow their work relates , if at all, to the work of the brass inventory control
section.
1724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions to higher management. Further, the section heads have not
been told that recommendations are expected, nor did the department
supervisor know of any regulation vesting such authority in the
section heads. There is no evidence that any recommendations have
been made, nor is there any indication that the degree of "weight"
which would be given any such recommendation would be sufficient
to qualify as effective. The one instance of a merit raise presented in
testimony became effective before the section head had any knowledge
of the action taken. The matter was discussed with the section head
by the department supervisor in advance but the section head was
not asked fora recommendation.
Any matter arising, other than routine, is brought to the department
supervisors for instruction or handling. Any request for additional
help is directed to the department heads who in turn investigate the
current utilization of present employees and then determine whether
to make a request to higher management for additional employees.
Grievances are taken to the department supervisors who, if they
cannot settle the problem, refer the matter to the personnel depart-
ment. Section heads have no authority to settle grievances. At least
one section has no employees other than the section head and there is
no indication whether or when this situation may be changed.
Under all the circumstances, including the supervisor to employee
ratio in the unit requested; we find that the section heads neither
responsibly direct employees in their respective sections,. i.. e., in mat-
ters other than routine, nor do they have authority effectively to
recommend changes in employee status. Accordingly, we find that
section heads in the accounting and inventory control departments
here in dispute are not supervisors within the meaning of the Act .20
Nor do we find anything in the duties of the section heads to warrant
a finding that they are managerial employees, as their work is of a
clerical nature rather than one of policymaking,2i and does not require
the exercise of more than routine discretion and judgment.
We find that the following employees constitute a unit appropriate
for purposes of collective bargaining within the meaning of Section
9 (b) of the Act:
All office clerical employees, including personnel clerks, employed
by the Employer at its Richmond, California, manufacturing plant,
but excluding production and maintenance employees, the plant nurse,
the laboratory technician, timekeepers, managerial employees, pro-
fessional employees, guards, and all supervisors as defined in the Act.
[Text of Direction of Elections omitted from publication.]
20 See cases cited in footnotes 4, 5, and 6, supra.
21 See cases cited-in footnotes 2 and 3, supra. .