Bennett Industries

National Labor Relations Board - Board Decisions

Jun 3, 1994

313 N.L.R.B. 1363 (N.L.R.B. 1994)

1363
313 NLRB No. 254
BENNETT INDUSTRIES
1 Member Cohen confines his decision to the facts of this case. In
this regard, he notes that the case involves the issue of supervisory
status. The burden of proving such status rests on the party asserting
same. Accordingly, a party’s unwillingness to assume that burden
means that the presumption of employee status is unrebutted.
Bennett Industries, Inc. and General Drivers, Ware-
housemen and Helpers Local Union No. 142,
a/w International Brotherhood of Teamsters,
AFL–CIO, Petitioner. Case 25–RC–9356
June 3, 1994
ORDER DENYING REVIEW
BY CHAIRMAN GOULD AND MEMBERS STEPHENS,
DEVANEY, BROWNING, AND COHEN
The National Labor Relations Board has considered
the Employer’s request for review of the Regional Di-
rector’s Decision and Direction of Election (pertinent
portions of which are attached). The request for review
is denied as it raises no substantial issues warranting
review.
For the reasons stated by the Regional Director, we
agree with her determination that the hearing officer
properly refused to allow the Employer to introduce
evidence regarding the supervisory status of
leadpersons and quality control inspectors because the
Employer refused to take position on their status and
their inclusion or exclusion from the unit. The Board’s
duty to ensure due process for the parties in the con-
duct of the Board proceedings requires that the Board
provide parties with the opportunity to present evi-
dence and advance arguments concerning relevant
issues. However, the Board also has an affirmative
duty to protect the integrity of the Board’s processes
against unwarranted burdening of the record and un-
necessary delay. Thus, while the hearing is to ensure
that the record contains as full a statement of the perti-
nent facts as may be necessary for determination of the
case (NLRB Statement of Procedure Sec. 101.20(c)),
hearings are intended to afford parties ‘‘full oppor-
tunity to present their respective positions and to
produce the significant facts in support of their conten-
tions’’ (emphasis added). A party’s refusal to take a
position at a hearing while attempting to introduce evi-
dence may in some circumstances signify a lack of
good faith. Therefore, the Board finds that, in order to
effectuate the purposes of the Act through expedi-
tiously providing for a representation election, the
Board should seek to narrow the issues and limit its
investigation to areas in dispute.1
Here, the Employer refused to take a position on the
supervisory issue both at the hearing and in its
posthearing brief, while the Petitioner took the position
that the leadpersons and inspectors are not supervisors.
Thus not only was there no dispute regarding these
employees’ supervisory status, there was also no con-
tention by any party that these employees were in fact
supervisors. Since, as stated by the Regional Director,
the burden of proving that an individual is a statutory
supervisor rests on the party alleging that the super-
visory status exists, and here no party alleges super-
visory status, there is no basis for making a determina-
tion that the individuals in question are supervisors and
no need to obtain record evidence on this issue. We
note, too, that the Employer on review still does not
take a position on the merits, even though, having cre-
ated the leadperson and inspector classifications, the
Employer obviously knows the duties and authority of
individuals in these classifications, and whether it
views these positions as supervisory.
Finally, in denying review, we do not agree with the
Regional Director’s statement that if the Employer de-
cides prior to the election to take the position that
these employees are statutory supervisors, its ob-
server(s) could challenge their ballots during the elec-
tion. As correctly stated by the Regional Director, a
party seeking to exclude an individual from a proposed
bargaining unit on the basis that the individual is a
statutory supervisor has the burden of proving that su-
pervisory status. See, e.g., Quadrex Environmental Co.,
308 NLRB 101, 102 (1992). In the instant case, the
petitioned-for unit specifically included leadpersons
and quality control employees. The Employer refused
to take a position as to these individuals’ supervisory
status when the issue was raised, and, in the absence
of any disagreement as to their status, the Regional Di-
rector included them in the unit—and thus necessarily
found that they are employees as defined in Section
2(3) of the Act. In its request for review, the Employer
does not take a position on the merits of whether the
disputed individuals were properly found to be em-
ployees, and thus the Regional Director’s findings as
to this issue stand unrebutted and uncontested. Accord-
ingly, absent changed circumstances, no party may re-
litigate this issue through the challenge procedure.
Compare Inland Steel Co., 308 NLRB 868 fn. 2
(1992). The proper place for this issue to be litigated
is at the hearing; to permit a party to take no position
at the hearing when the subject is raised, leading to an
uncontested nonsupervisory finding by the Regional
Director, and then to permit the same party to liti-
gate—or, in effect, relitigate—the same question in a
challenged ballot proceeding would be an unwise ad-
ministrative practice because it would amount to
condoning duplicative procedures, unjustified delays,
and unnecessary expenses for all parties, including the
Board.
APPENDIX
Inspectors and Leadpersons
The Petitioner seeks a production and maintenance unit in-
cluding shipping and receiving employees, inspection and
1364 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Should the Employer decide prior to the election to take the posi-
tion that these employees are statutory supervisors, of course, it may
instruct its observer(s) to challenge their ballots during the election.
If so challenged, their ballots will be treated in accordance with the
Agency’s standard challenged ballot procedures.
quality control employees, and leadpersons. The Employer
raised issues regarding the potential supervisory status of its
12 leadpersons and its 12 quality control inspectors, and
whether its quality control employees shared a community of
interest with employees undisputedly included in the peti-
tioned-for unit. Although the Employer refused to take posi-
tions on these issues, it sought to introduce evidence regard-
ing them.
The community of interest issue was introduced and the
parties provided their evidence regarding it. Although it is
not clear that the Employer was including the 12 leadpersons
with the 12 inspectors in its reference to quality control em-
ployees, the record indicates that the leadpersons do have
quality control duties.
The record shows that the inspectors construct boxes;
make up pallets; and label pallets and boxes and place them
on the production line for other employees to load with the
product. In addition, inspectors advise employees of under-
filled boxes and parts which have grease on them. This infor-
mation is also passed on to the leadpersons who initiate a
process to take action to correct the problems. Inspectors’
other duties include substituting for production employees
who are away from their machines due to break, illness, or
vacations. Further, inspectors spend between 40 and 50 per-
cent of their time on the production line and report to the
same crew supervisors as the production employees.
The 12 leadpersons, working at the various processes
along the production line, also perform a quality control
function. They periodically remove parts from the line and,
unlike the inspectors who are limited to visual inspection, the
leadpersons take specific measurements of the product. The
amount of the leadpersons’ time devoted to this quality con-
trol function, as distinguished from other production tasks, is
not set forth in the record.
Thus, in performing their quality control duties, the in-
spectors and leadpersons perform a function which is an ex-
tension of and integrated with the manufacturing process and
work in close proximity to undisputed unit employees. Fur-
ther, the inspectors and leadpersons share common super-
vision and benefits with the employees undisputedly included
in the unit. It is therefore concluded that they share a com-
munity of interest with the unit employees. See Bechtel, Inc.,
225 NLRB 197 (1976).
In representational proceedings, the burden of proving that
an individual is a statutory supervisor rests on the party al-
leging that the supervisory status exists. Ohio Masonic
Home, 295 NLRB 390, 393 (1989); Tucson Gas & Electric
Co., 241 NLRB 181 (1979). The Petitioner maintains that the
inspectors and leadpersons are not statutory supervisors and
should be included in the production and maintenance unit
it seeks to represent. At the hearing and in its brief, the Em-
ployer has declined to take a position regarding the super-
visory status of the inspectors and leadpersons, but insisted
on presenting evidence regarding the issue and objected to
the hearing officer’s exclusion of that evidence. Further, the
Employer maintains that, aside from the question of these
employees’ voting eligibility, the Agency is obligated
through this proceeding to rule on their supervisory status
because ‘‘the Company is entitled to know if the persons can
bind the Company and the restrictions, if any, as to its deal-
ings with those individuals during the organizing campaign.’’
Contrary to the Employer’s contention, it is not a purpose of
this proceeding to litigate issues not directly pertinent to the
appropriateness of conducting an election, the scope of the
unit, and the voting eligibility of voters regarding which the
parties take opposing positions. The Employer is in posses-
sion of the evidence it wishes to present into evidence and,
thus, is not hampered in its ability to take a position by the
exclusion of this evidence from the record. Accordingly, in
view of my finding that the inspectors and leadpersons share
a community of interest with the employees undisputedly in-
cluded in the unit, and inasmuch as neither party takes the
position that they are ineligible to vote based on the conten-
tion that they are statutory supervisors, I shall include them
in the unit.2