284 N.L.R.B. 621 (N.L.R.B. 1987)

Anamag

National Labor Relations Board - Board DecisionsJun 30, 1987

284 N.L.R.B. 621 (N.L.R.B. 1987)

ANAMAG 621 Anamag and International Union of Electrical, Tech- nical, Salaried & Machine Workers, AFL-CIO, Petitioner. Case 9-RC-14756 30 June 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN, BABSON, STEPHENS, AND CRACRAFT On 16 June 1986 the Regional Director for Region 9 issued the attached Decision and Direc- tion of Election in the above-entitled proceeding in which he found, inter alia, that the Employer's team leaders are not supervisors within the mean- ing of Section 2(11) of the Act. Thereafter, in accordance with Section 102.67 of the National Labor Relations Board Rules and Regulations, the Employer filed with the Board a timely request for review of the Regional Direc- tor's decision and a motion that the scheduled elec- tion be stayed. By unpublished Order dated 11 July 1986, a panel of the Board 1 denied the Employer's motion for Stay; accordingly, the election was con- ducted as scheduled on 14 July 1986 and the bal- lots were impounded pending a ruling on the Em- ployer's request for review. By unpublished Order dated 22 July 1986, the panel granted the Employ- er's request for review solely with respect to the supervisory status of the Employer's team leaders. Pursuant to the Board's procedures, the ballots re- mained impounded pending the Board's Decision on Review. The Board has considered the entire record in this case, including the parties' briefs on review, and has decided to affirm the Regional Director's decision. We conclude, in agreement with the Regional Director and essentially for the reasons articulated by him in the attached decision, that the Employ- er's team leaders are not supervisors as defined in Section 2(11) of the Act and, therefore, should be included in the unit found appropriate. In so con- cluding, we note the novel and rather complex conceptual framework within which team leaders perform their functions, a framework which surely was not contemplated by the drafters of the Act over 50 years ago. Nevertheless, the guidelines that Congress has set out in Section 2(11) sufficiently enable us to analyze and conclude that the degree of a.uthority possessed by the team leaders fails to establish that they are supervisors. We recognize also that, given the novelty of the team-leader con- cept and its potential for widely variant utilization Chairman Dotson and Members Johansen and Babson in the workplace, it would be unrealistic to assume that the case before us is necessarily in any way representative. Consistent with Board practice in interpreting the 2(11) exclusion, we shall continue to evaluate the particular circumstances of each case, applying each of the statutory indicia, to de- termine whether a designated "team leader" pos- sesses or exercises supervisory authority. In operating its facility, the Employer utilizes a Japanese managerial philosophy commonly re- ferred to as the "team concept," which encourages the participation of employees along with manage- ment in making decisions that affect the operations of an employer's business. 2 As stated by the Re- gional Director, "[t]his philosophy. . . is designed to promote employee participation in decision making and to foster open communication between management and employees." Through application of the team concept, the Employer has organized its production employees into six "teams." Employ- ees are referred to as "team members." Each team is led by a "team leader." Team leaders are rank- and-file employees who have been elected by ma- jority vote of the members of the particular team to serve for an indefinite period of time. The Em- ployer has placed no eligibility requirements or other limitations on whom the team members may choose as their team leader, the frequency with which the team members may replace their team leader, or the number of times an employee may serve as a team leader. Hence, each team leader serves solely at the will of the members of his or her team; the Employer has never interfered with a team's selection of its team leader. The teams as a whole routinely participate in decisionmaking re- garding such personnel functions as discipline, job and overtime assignments, and performance effi- ciency appraisals. The Regional Director found that the Employ- er's team leaders "do not . . . possess or exercise supervisory authority on an independent basis in furtherance of management's interest," but rather "function primarily as spokespersons on behalf of their respective teams." He further found that "[a]ny nominal authority which [the team leaders] may possess by virtue of their' elected positions is derived from the team's tacit support, which can be withdrawn at any time." The Regional Director emphasized that team leaders serve solely at the 2 The team concept is one of several labor-management cooperation plans recently implemented in this country to foster increased efficiency and to improve the competitive posture of Amencan business See, gener- ally, Bureau of Labor-Management Relations and Cooperative Programs, U.S. Dept of Labor, BLMR 113, U.S. Labor Law and the Future of Labor-Management Cooperation (1987), Schlossberg and Fetter, U.S. Labor Law and the Future of Labor-Management Cooperation, 37 Lab. L.J. 595 (1986), Japan, U.S.A., Business Week, July 14, 1986 at 45. 284 NLRB No. 72 622 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD teams' discretion and can be removed at any time; act primarily as employee spokespersons regarding the teams' decisions concerning personnel matters such as discipline, performance appraisals, job as- signments, and overtime; and serve as a conduit be- tween members of their teams and management. The record supports the Regional Director's findings. The existence of team leaders' authority sufficient to warrant a finding of supervisory status is largely preempted by the decision-making power of the team members and/or the presence of guide- lines issued by the Employer with respect to sever- al personnel functions. For example, any decisions pertaining to discipline of an employee for other than attendance-related reasons almost always are made by consensus of the entire team. Typically, team leaders merely memorialize the team's deci- sion, even in instances when the team leader him- self disagrees with the team's decision, such as writing the warning notices that the team has de- termined to be the appropriate discipline. Although team leaders may initiate the process of issuing dis- ciplinary warnings, so too may team members. Thus, in one instance a team member "wrote up" a verbal warning to a fellow team member and asked other team members and the team leader to sign it. The record further indicates that in those instances in which a team leader issued a warning without a team meeting being held, the team members had expressed their dissatisfaction to the team leader and/or the team leader had spoken with his or her team advisor, a stipulated supervisor, about the particular employee prior to the issuance of the warning. Finally, although there is testimony that team leaders have recommended that particular employees be terminated or transferred to different teams, and that some of these recommendations were followed, the record does not establish that the disciplinary action taken by management was the direct result of the team leaders' recommenda- tions, or that those recommendations were accept- ed without independent investigation by manage- ment. With regard to attendance-related discipline, the Employer's attendance system limits the team lead- ers' role to counseling employees (i.e., advising them to "straighten up"), and then only if the team leader is made aware of the pendency of an attend- ance warning. 3 Under this system, warnings are automatically administered when a production em- ployee accumulates a set number of points or "oc- 3 In conjunction with this point, we note that the team leaders' duty in specifying the reasons for tardiness or absence on employee timesheets is largely ministerial due to the exacting specifications of the system. There is a code for each type of excuse, and the team leader merely records the proper code for the excuse offered by the team member. currences." These warnings, which consist of standardized forms completed by the plant manag- er's secretary, are given to the appropriate team leader for delivery to the employee involved. Team leaders thus have little or no discretion with regard to attendance-related discipline, though on occasion, based on complaints from team members, they have spoken with individual team members about their absences or tardiness. The foregoing evidence makes clear that team leaders do not exercise independent judgment as a part of the disciplinary process. The participation of the teams with respect to nonattendance-related discipline, and the guidelines established by the Employer with respect to attendance-related disci- pline, virtually foreclose the exercise of discretion in these matters by the team leaders. Team leaders' responsibility for assignment and direction of work is, as stated by the Regional Di- rector, "generally routine and based to a large extent on the team's production requirements." Team members' work assignments generally are de- termined by the team as a group. Team leaders convey to their team members instructions from the team advisor or production control advisors concerning incoming orders or rush jobs. Although a team leader may on occasion request that an em- ployee work at a different machine, team leaders cannot require them to move from their preas- signed job; when a team member refuses such re- quests, the team leader must seek assistance from a stipulated supervisor. Similarly, although team leaders may instruct that a particular machine be started or stopped, such instructions are based on production requirements established by manage- ment. The evidence does not establish that the team leaders' duties in this area require independent judgment. To the contrary, the team leaders' duties are routine, for the most part requiring only that the team leader function as "a conduit for manage- ment instructions," and are not indicative of super- visory_statlis. See Feralloy West Co., 277 NLRB 1083, 1085 (1985). Team members also participate in the decision- making process regarding overtime assignments. With respect to weekend overtime, management generally informs team leaders in advance exactly which machines will need to be operated on what days. Typically, the team as a group determines the method by which such weekend overtime will be distributed among team members. Less clear, how- ever, is the testimony regarding how "daily over- time," that is, overtime occurring during the regu- lar workweek, is distributed. Although there is some indication that at least a few team leaders may have exercised some authority in this area and ANAMAG 623 may have selected the employees they would ask first to work overtime, 4 we conclude that this factor is insufficient to warrant a finding that the team leaders are supervisors. In addition to the generally vague testimony concerning assignment of overtime, we note that such authority as may be exercised by the team leaders in this area is further restricted by the fact that each team leader is bound by the wishes of his team and that the Em- ployer has advised team leaders that overtime should be distributed in an equitable fashion. The effectiveness of these constraints as a check on the team leaders' authority is illustrated by the fact that in one instance, team members felt that their team leader was giving himself an excessive amount of overtime and therefore removed him from the team leader position. In the same vein, the Employer's performance appraisal system provides additional evidence of the participation of the entire team, as opposed to supervision solely by the team leader. The record shows that all production employees perform at one of seven skill levels, each of which is assigned a specific wage rate. If a team member desires to Move up a level, a team meeting is held and the team votes on the increase. If the team votes against granting the requested increase, the team member's skill level remains unchanged. If the team approves the request, the appraisal committee (consisting of four management representatives, three team members, and the team leader of the employee seeking the increase) considers the re- quest. A request is granted if five of the eight com- mittee members vote to approve the increase. The team leaders' role in handling "grievances" appears to be minimal at best. Record testimony in- dicates that at the first step of the grievance proce- dure the employee may take his complaint to his team leader. If the team leader cannot resolve it, the employee then takes the complaint to increas- ingly higher levels of management. However, the record suggests that the term "grievance" applies to a rather limited set of circumstances. Examples of such "grievances" appearing in the record in- clude situations where a team member needed a box of rags, problems with machines, and schedul- ing problems, and these "grievances" are often re- solved by a team member, a team advisor, and/or the maintenance department. Thus, the foregoing fails to demonstrate that the team leaders are re- 4 One former team leader testified that he had called in people without management's approval when overtime was needed. However, as the tes- timony in this area is vague, and as this team leader's experience appears to be atypical of that of the overwhelming majority of team leaders, we find that this testimony is not indicative of any supervisory authority of the team leaders generally. Cf. Yanport Sand & Gravel, 267 NLRB 150, 151 (1983). quired to exercise any significant degree of inde- pendent judgment. Hiring, in contrast to the other matters discussed, is an area in which the team members do not have direct involvement. Although team leaders are in- volved in the hiring process, they do not have the authority to hire. Once the Employer has decided that additional employees are needed, four manage- ment officials separately conduct 15-minute inter- views with each candidate. Any one management official may reject a candidate for hire. If the can- didate completes this process successfully and is ac- ceptable to management, the team leaders as a group conduct a 15-minute interview with each po- tential employee. The team leaders then vote on each individual and rank them in order of their de- sirability as employees. Team leaders also interview and rank laid-off employees for recal1. 5 This evi- dence does not establish the team leaders' supervi- sory status. In the first instance, as noted above, candidates must be accepted by a unanimous vote of management before they can even be considered by the team leaders. Second, the team leaders' par- ticipation in the interviewing process appears to be directed primarily toward ensuring that successful candidates are compatible with existing team mem- bers, as well as the team concept generally. See U.S. Pollution Control, 278 NLRB 274 (1986); Keno- sha News Publishing Corp., 264 NLRB 270, 271 (1982); Willis Shaw Frozen Food Express, 173 NLRB 487, 488 (1968). Lastly, the Employer fur- nishes team leaders involved in the interviewing process lists of permissible and impermissible ques- tions, and sometimes management representatives have been present during the team leaders' inter- views of applicants. Finally, such factors as supervisor-to-employee ratio and the occasional substitution of team leaders for team advisors do not warrant a finding of su- pervisory status here. That the ratio of employees to supervisors on the two later shifts will, if the team leaders are found not to be supervisors, be rather high is not determinative. The record testi- mony suggests that the work performed by the 5 The Employer contends that employees have been recalled as a result of the team leaders' decision that they needed additional employ- ees The record does not support this assertion Rather, the record shows that at least two team leaders "hollered" for 2 to 4 months before the Employer agreed, m May 1985, to recall additional workers, and does not show that the Employer's agreement to recall employees was a result of the team leaders' 'decision" The Employer also argues that a prospective employee will not be hired if any single team leader rejects the prospective employee. Howev- er, the undisputed testimony of several witnesses was that team leaders determined which employees to hire by majority vote That one of those witnesses also testified that he could not recall any Instance in which an applicant was hired who received less than unanimous approval does not necessarily establish that a unanimous vote was reqiured. 624 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD production employees is fairly routine and repeti- tive, and thus requires minimal supervision. In ad- dition, as noted by the Regional Director, there is a team advisor on each shift who patrols the entire facility and who is readily available if needed. With respect to the Employer's past practice of allowing team leaders to substitute for absent team advisors, that practice was stopped in the year preceding the hearing and, therefore, team leaders no longer have occasion to serve as team advisors. Moreover, when team leaders did substitute, it was on an in- frequent and sporadic basis, and we can not deter- mine from the record whether, even on such occa- sions, they possessed all of the authority of the team advisors. In sum, for the reasons stated above and in the pertinent parts of the attached Decision and Direc- tion of Election, we agree with the Regional Di- rector that the evidence does not warrant a finding that the Employer's team leaders are supervisors within the meaning of Section 2(11) of the Act. The election was held 14 July 1986 and the bal- lots were impounded. Having affirmed the Region- al Director's findings, we shall direct the Regional Director to open and count the ballots and to issue the appropriate certification. ORDER The case is remanded to the Regional Director for Region 9 with instructions to open and count the ballots cast in the 14 July 1986 election and, thereafter, to issue the appropriate certification. DECISION AND DIRECTION OF ELECTION 4. A question affecting commerce exists concerning 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.2 5. The following employees of the Employer consti- tute a unit appropriate for the purpose of collective bar- gaining within the meaning of Section 9(b) of the Act:3 2 At the commencement of the hearing held in this matter, the Em- ployer moved to dismiss the petition on the ground that the underlying showing of Interest was tainted However, the Employer has not request- ed an Investigation of the showing of interest at any time dunng the pendency of this proceeding. In any event, I am administratively satisfied that the Employer's contention Is without merit, particularly in view of my findmg concerning the supervisory status of the team leaders Ac- cordingly, the motion to dismiss is hereby denied 3 The Employer, a linuted partnership, is engaged m the manufacture, nonretail sale and distribution of magnet wire at four plants located m the States of Kentucky and Indiana. The Carrollton, Kentucky facility, which is the only location involved in this proceeding, employs approxi- mately 71 employees in the unit found appropriate. There is no history of collective bargaining affecting any of these employees. The Petitioner seeks to represent a unit composed of all full-time and regular part-time production and maintenance employees including team leaders, maintenance technicians, quality assurance technicians and the die technician, but excluding all office clerical employees, salesmen, pro- fessional employees, guards and supervisors as defined in the Act The Employer, contrary to the Petitioner, would exclude the six teams leaders The Carrollton, Kentucky facility occupies a building approximately 400 yards in length and operates on three 8-hour work shifts, 5 days a week, with occasional week- end overtime. Approximately 58 production employees are employed in four distinct work areas: drawing, flat- mill, vitrotex and shipping. Plant Manager Mueller has overall administrative responsibility for daily operations. Reporting directly to Mueller are two production con- trol advisors, the quality assurance manager, the plant engineering manager, and the office manager, all of whom work the first shift. In addition, there are three team advisors, one for each shift, who the parties agree are statutory supervisors. The record discloses that the maintenance technicians work closely with other unit employees. Team members frequently assist technicians engaged in repairing a mal- functioning machine and the members, some of whom have welding skills, often volunteer for weekend mainte- nance work under the direction of the technicians. All four maintenance technicians were formerly employed as team members. Although the technicians have attended courses on hydraulics and training sessions conducted by manufacturers of the machinery in use at the facility, there are no educational prerequisites for the position. The present technicians all hold a high school degree or its equivalent. The Employer has classified maintenance technicians as salaried personnel and hence some of the fringe bene- fits provided differ slightly from those accorded to pro- duction employees. In contrast to team members, mainte- nance technicians are not subject to the Employer's at- tendance control policy and do not receive a shift differ- ential. The technicians are appraised annually and award- ed merit increases, based on the type of evaluation re- ceived, rather than given across the board wage in- creases. Finally, like other salaried employees, the tech- nicians receive an Employer-paid pension contribution of 3 percent, as opposed to 2 percent for production em- ployees, life and accident insurance equivalent to their full salary with the option to purchase additional cover- age, and paid sick leave with a long term disability option. Production employees are provided with a $15,000 life insurance policy and limited sick leave. The technicians do, however, receive overtime pay for hours worked in excess of 40 per week. The basic salary range of a maintenance technician is equivalent to that of a team leader. Maintenance technicians are hired by the plant engineering manager subject to final approval by the plant manager. The quality assurance technicians are responsible for inspecting incoming raw materials, preparing production manufacturing information sheets used by machine oper- from the unit as statutory supervisors. It also contends that the four main- tenance technicians and three quality assurance technicians, respectively, lack any community of interest with production employees so as to war- rant their inclusion in an overall unit and should constitute separate main- tenance and quality assurance units. The Employer also urges the exclu- sion of the die technician from the unit on the ground that he is, alterna- tively, a supervisory, managerial or technical employee. Finally, the par- ties disagree as to the eligibility of approximately eight laid off employees whom the Petitioner contends, contrary to the Employer, have a reasona- ble expectancy of recall. ANAMAG 625 ators as guides in filling customer orders, and auditing the quality level of production by periodically testing randomly selected samples. The quality assurance techni- cians also monitor the lubricating solution used in the fiatmill and drawing machines. They occasionally substi- tute for team advisors on weekends and participate on employee appraisal committees. The record discloses, however, that the quality assurance manager independ- ently investigates any adverse recommendation made by a quality assurance technician concerning an employee's proficiency or skill level. Although the quality assurance technicians have primary responsibility for quality con- trol, team members, as well, are expected to perform rountine quality checks during the manufacturing proc- ess. Machine operators inspect and tag defective reels of wire for scrap whereas the quality assurance technicians issue "stop" orders if a machine is consistently manufac- turing a substandard product. All full-time and regular part-time production and maintenance employees including team leaders, quality assurance technicians, maintenance techni- cians and the die technician, but excluding all office clerical employees, accounting employees, salesmen, professional employees, guards and supervisors as defined in the Act.