Broyhill & Associates, Inc.

National Labor Relations Board - Board Decisions

May 31, 1990

298 N.L.R.B. 707 (N.L.R.B. 1990)

BROYHILL & ASSOCIATES
Broyhill & Associates , Inc. and United Steelworkers
of America , AFL-CIO-CLC. Cases 4-CA-
18021 and 4-RC-16989
May 31, 1990
DECISION AND ORDER REMANDING
BY MEMBERS CRACRAFT, DEVANEY, AND
OvIATT
On January 17, 1990, Administrative Law Judge
Benjamin Schlesinger issued the attached decision.
The Charging Party filed exceptions and a support-
ing brief,' and the Respondent filed an answering
brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,2 and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Broyhill &
Associates, Inc., Annville, Pennsylvania, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the Order.
IT IS FURTHER ORDERED that Case 4-RC-16989
is severed from Case 4-CA--18021 and is remanded
to the Regional Director for Region 4, who is di-
rected, within 10 clays of this decision, to open and
count the ballots of Meg 'Weaver, Tina Kimmel,
Joelene Bomberger, David Hepp, Lewis Landis,
and John Martin, and thereafter prepare and cause
to be served on the parties a revised tally of bal-
lots, on which basis he shall issue the appropriate
certification.
i On April 6, 1990, the Charging Party filed an unopposed motion to
sever Case 4-RC-16989 from Case 4-CA-18021 The Charging Party's
motion is granted
2 The Charging Party has excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect. Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir
1951). We have carefully examined the record and find no basis for re-
versing the findings
In the absence of exceptions we adopt pro forma the judge's findings
regarding the challenged ballots
Dennis P. Walsh, Esq., for the General Counsel.
Stephan J. Boardman, Esq. (Arent, Fox, Kintner, Plotkin,
& Kahn), of Washington, D.C., for Respondent Em-
ployer.
Debbie Rodman Sandler, Esq. (Galfand, Berger, Lurie &
March), of Philadelphia, Pennsylvania, for the Charg-
ing Party Petitioner.
298 NLRB No. 96
DECISION
707
FINDINGS OF FACT AND CONCLUSIONS OF LAW
BENJAMIN SCHLESINGER, Administrative Law Judge.
This consolidated unfair labor practice and representa-
tion proceeding involves one discharge allegedly in vio-
lation of Section 8(a)(3) and (1) of the National Labor
Relations Act, and the counting of his challenged ballot
in the Board-conducted representation election, as well
as a ruling on seven challenged ballots. The United
Steelworkers of America, AFL-CIO-CLC (Union) filed
its unfair labor practice charge against Respondent Broy-
hill & Associates, Inc. on April 17, 1989,1 and the com-
plaint issued on May 30. On August 18, the Regional Di-
rector for Region 4 issued a supplemental decision on
challenged ballots and ordered that the representation
proceeding be consolidated with the unfair labor practice
proceeding on August 28. The hearing was held in Har-
risburg, Pennsylvania, on September 27 and 28.
Jurisdiction is conceded. Respondent admits, and I
find, that it is a Delaware corporation engaged in the op-
eration of a quarry at its Annville, Pennsylvania facility,
known as the Millard Lime & Stone Company or Millard
Quarry, which it purchased from Bethlehem Steel Cor-
poration on February 1, 1988. During 1988 Respondent
received gross revenues in excess of $500,000 and pur-
chased and received materials valued in excess of $50,000
directly from points outside the Commonwealth of Penn-
sylvania. I conclude that Respondent is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act. I also conclude that the Union is
a labor organization within the meaning of Section 2(5)
of the Act. The Board has previously asserted jurisdic-
tion over Respondent in 296 NLRB 904 (1989) (Broyhill
1).
The Unfair Labor Practice Proceeding
Arthur Bixler began working for Respondent as a
welder/millwright when Respondent started operating
the quarry. For the next year he received nothing but
praise from his supervisors for the quality of his welding
work, and none of Respondent's witnesses questioned his
work performance. He was never disciplined; he was
never warned. Nor was there any question raised about
his attendance, his timely appearance at work, or his
willingness to work overtime. He consistently worked
his shifts through 1988 and into early' 1989, including an
average of about 10 hours of overtime each week. In a
facility that operated 24 hours a day, 7 days a week,
where employees had to work on one of three shifts
(6:30 a.m.-2:30; 2:30 p.m.-10:30 p.m.; 10:30 p.m.-6:30
a.m.), and changed shifts weekly, Bixler seemed to be a
completely cooperative employee, who was also able and
qualified.
However, he was also not a total team player. When
Respondent bought the plant from Bethlehem, the facili-
ty changed from one which had a contract with the
Union to one that was nonunion. This was not the fault
of Respondent, which entered into negotiations with the
i All dates refer to 1989, unless otherwise stated
708 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Union before the sale to see whether an agreement could
be reached to continue the Union's representation of the
employees. Actually, those negotiations were successful.
A tentative agreement was reached, but the Union's
membership turned it down and Respondent, instead of
taking over all of Bethlehem's employees, solicited em-
ployment applications and hired a new complement of
employees, some of whom were previously employed,
but many of whom were not. Shortly after opening, in
about March 1988, Robert Furlong, Respondent's execu-
tive vice president, spoke to about 50-60 employees at a
meeting and asked for a year's grace period before get-
ting a union and he would "make things right."
Bixler apparently did not believe that Furlong would.
In the spring of 1988 some employees began to talk
about a union; and Bixler, who signed a union authoriza-
tion card, began to solicit cards in June or July. The fol-
lowing February Furlong attempted to "make things
right" by granting a 4-percent raise, a new pension fund,
and a revised attendance bonus based on the employees'
attendance the previous month, rather than the previous
quarter. At a meeting of employees held about 2 weeks
later, at the end of February, during which Furlong was
explaining the raise and the changes of benefits, Bixler
criticized the new raise and benefits. He complained that
every employee was worth at least $3 more per hour,
that the pension benefit was too low, and that the shift
differential should be 10 or 15 percent, rather than 25
cents per hour. He said that the employees would not
get anything from Respondent without a union. Furlong
asked whether he really believed that, and Bixler said
that he did. Furlong said that if Bixler did not like the
way Respondent was doing things, "you can always
quit."
The complaint alleges that this statement, directed at
Bixler, who was then expressing his sentiments in favor
of a union, constitutes an unfair labor practice. I agree.
The Board stated in L. A. Baker Electric, 265 NLRB
1579, 1580 (1983):
It is well settled that an invitation to quit such as
this is coercive and threatening because it conveys
to employees the clear message that support for the
union and continued employment are not compati-
ble. Rolligon Corp., 254 NLRB 22 (1981): Interth-
erm, Inc., 235 NLRB 693 (1978), enfd. in relevant
part 596 F.2d 267 (8th Cir. 1979); San Souci Restau-
rant, 235 NLRB 604 (1978); Padre Dodge, 205
NLRB 252 (1973).
Respondent's failure to treat this allegation in its brief is
a tacit recognition that there is a clear violation of Sec-
tion 8(a)(1) of the Act under these facts, which Respond-
ent did not dispute.
The Union filed its petition for a Board-conducted rep-
resentation election on March 6. Later that month, on
March 24, Furlong called a meeting of the millwrights,
machinists, and carpenters to explain their new schedule,
which he said was intended to ensure that there would
be sufficient staffing on all 21 shifts during the week.
Furlong noted that the schedule remedied several com-
plaints that had been made by the employees-the em-
ployees were required to work weekends at straight
time, the employees had insufficient notice of when they
had to work, and some employees had no weekends off
each month. However, in order to resolve these com-
plaints and satisfy management's need for employees on
all shifts, the employees would have to work 12 straight
days on each shift. Previously, the employees never were
assigned to work more than 5 days in a row on a shift,
after which they would have their days off; and then
they would be assigned to a new shift.
Bixler's recollections were not this precise and com-
plete, nor did he have much recollection of what oc-
curred during the rest of the meeting . He did recall that
he complained about working 12 nights in a row and
Furlong acknowledged that he knew that Bixler did not
like to work the night shift. Bixler agreed, asking wheth-
er there was any possibility of getting out of the rotation.
Furlong replied that he could not get out of his rotation.
Bixler said: "you can get sick and only work a four day
week." Asked whether Furlong had a response to that,
Bixler said : "It is vague in my mind what he said. I don't
believe he really said too much about that." Furlong
asked Bixler to remain after the meeting and immediately
fired him. Bixler said that he `just stood there. I was
dumbfounded to believe he would fire me for something
like that ...." When asked whether Furlong ever told
him why he was fired, Bixler stated that "he never really
said," that Bixler tried to find out without success by
calling Furlong several times, and that he found out only
when he applied for unemployment compensation. Then
Respondent's position was that it terminated Bixler be-
cause he refused to work the new schedule.
Quite different were the recollections of Respondent's
witnesses , not only Furlong but also two other manage-
ment personnel, both of whom (as well as others) wrote
detailed notes shortly after the meeting ended of what
had transpired. Their recollections were much more de-
tailed and, equally important, more extended. While the
General Counsel and the Union contend that Bixler's
comments represented only an argument against chang-
ing the schedule, not even a mild threat that he might
not work his assigned schedule, Respondent's witnesses
painted a graphic picture of a disgruntled employee who
had no intention of working 12 night shifts in a row and
who would not.
John McCandless, Respondent' s engineering and main-
tenance manager, recalled that Bixler said more than
once that he had a problem working on the midnight
shift. To counter such an assignment , he would get sick a
lot: "I'll just call in sick, fuck it." He told Furlong not to
expect him to work more than 4 days a week when he
was on night shift. When Furlong warned that Bixler
was jeopardizing his job, Bixler replied: "It's only a job."
Robert Carthew, Respondent's plant manager, testified
that Bixler expressed his strong concern about working
12 days in a row, especially 12 night shifts. There was
just no way, he said, that he could work that kind of
schedule Be would get sick. "I get sick a lot," he said.
He would not ask for time off; he would just take time
off. There was no way that he would work more than 4
days in a row. When Furlong ended the meeting by tell-
BROYHILL & ASSOCIATES
ing the employees that they could look at the proposed
schedule in the front of the room, all the employees
came forward, except Bixler. (Bixler said that he "really
didn't get to see this new schedule" and "I am not sure
how they had this new schedule organized.")
Furlong, who fired Bixler, testified essentially to the
same sequence of events. He recalled that Bixler said that
he could not and would not work 12 nights and that the
best that he could do was to work 4 days out of 5. He
would just take time off. Furlong suggested that Bixler
could talk to his foreman to ask for time off. Bixler said
that he did not have to ask for the permission of his fore-
man. He would get sick and would take care of it him-
self. He got sick a lot. Furlong testified that, when he
discharged Bixler at the end of the meeting, he told
Bixler that he could not tolerate his attitude and insubor-
dination.
In determining whom to believe, I note that Bixler's
testimony was unsupported by any employee who at-
tended that meeting. Another employee, Douglas Stro-
phauer, testified about the statement of Furlong that, if
Bixler did not like the conditions at Respondent, he
could quit.2 That employee was not asked if he attended
the other meeting, and it would have been helpful to
know whether he attended and did not hear what little
Bixler recalled. More important is that Bixler was re-
called to testify in rebuttal. He was asked solely about
his attendance record and not about whether the testimo-
ny of Respondent's managers and principal officer re-
freshed his earlier , rather hazy recollections of what
transpired at the meeting.
I find that Bixler had no quarrel with Respondent's
testimony and, therefore, that Bixler expressed quite
clearly over and over again, before many of his fellow
employees, that he was not going to work the night
schedule. He had said that he was going to take his work
schedule into his own hands. If Respondent placed him
on night shift, he would not work it but would work his
own schedule. Bixler 's threat was contrary to his em-
ployer's right to set the terms and conditions of his em-
ployment. Bixler had no such right. Respondent was not
obliged to wait for Bixler to carry out his threat. Bixler's
threat' to work only when he wanted could well have
justified disciplinary action.
The question, then, is what motivated Furlong. He
knew that Bixler favored the Union. Even if there was
no direct proof that Bixler had been seen distributing
cards by supervisors-he said that he tried to solicit
cards from two employees who served from time to time
as temporary foremen-he certainly proclaimed his sym-
pathieg when he announced in late February that the em-
ployees needed a union . Furlong fought the Union, he
propagandized against it continuously after the Union
filed its petition for an election, and he violated the Act
by inviting Bixler to quit. Perhaps more important, the
Board has already found Respondent had animus toward
the Union in Broyhill I. I conclude that there is evidence
of animus.
2 Even in so testifying, Strophauer's recollections were different from
Butler's Furlong did not dispute Bixler's narration, so I believe Bixler,
whom I found even more credible than Strophauer
709
However, the General Counsel's argument that Fur-
long's reasons for discharging Bixler were pretextual, be-
cause when Furlong fired Bixler, he gave no reason and
only later gave a reason which was different from the
reasons that Furlong testified that he stated to Bixler, to
wit, it was because of his attitude and insubordination.
First, I do not credit Bixler's testimony that Furlong said
nothing to him when he was fired. Bixler had an under-
standing of what it was that Furlong was discharging
him for. Although he denied it, saying that he was
dumbfounded, he made an inadvertent slip of the tongue,
stating: "I was dumbfounded to believe he would fire me
for something lake that ...." (Emphasis added.) That in-
dicates that he knew what it was that he had done. I
credit Furlong's testimony that he gave his reasons to
Bixler. Second, "attitude" and "insubordination" are per-
haps not the best of words, but they are certainly not in-
appropriate descriptions for an employee who refuses, in
front of many employees, to work a schedule dictated by
his employer. Bixler's use of an expletive to show his
contempt for that order must have been an attitude of-
fensive to Furlong. Merely because it might have been
better for Furlong to have specified that it was Bixler's
refusal to work the new schedule rather than using the
all-encompassing "insubordination" does not support a
finding that his reason was a pretext. In fact, Bixler pro-
tested too much. He said, in front of Respondent's em-
ployees, that no matter what Furlong wanted, he would
beat the system. He would not work the new schedule.
That is insubordination, which is not a pretextual excuse.
I also do not agree with the General Counsel's and the
Union's contentions that Respondent was motivated by
Bixler's union activities and that Respondent seized on
Bixler's "argument" to discharge him, rather than using
its policy of progressive discipline which provides,
except for certain specified violations," for a series of
verbal and written warnings prior to layoff, suspension,
and discharge. Furlong testified that the progression was
followed "80 percent of the time, maybe even higher," a
low representation since he testified in Broyhill I that the
policy guidelines were not followed only 5 or 10 percent
of the time. Furlong expected that the guidelines would
be followed and that any digressions from the guidelines
would be reviewed. Respondent's personnel files show
that employees were disciplined pursuant to the guide-
Imes when they failed to report to work or actually
walked off the job. For example, see Broyhill I, supra.
What distinguishes Bixler's discharge is that no em-
ployee ever threatened ahead of time not to show up at
his job. All the instances cited by the General Counsel
and the Union involve employees who gave no notice
that they intended to absent themselves, or, alternatively,
appeared at the job and then walked off without permis-
sion . Thus, I find no disparity here. Nor do I find that
Respondent was forbidden by its rules of progressive dis-
cipline from discharging Bixler. It discharged other em-
ployees whose offenses did not fit within the literal terms
s Those violations are: possessing firearms or explosives, theft, consum-
ing alcoholic beverages or use of illegal drugs, falsifying company
records, and failure to report an on-the-job accident before the end of a
shift.
710 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of the rules.4 Their offenses were no more serious than
Bixler's refusal to work the days which Respondent
scheduled.
Nor is an illegal motivation supported by the conten-
tion that Bixler had an almost impeccable attendance
record, 5 that he worked when he was told to, including
100 hours of overtime in 1989 alone, and several times 7
days in a row, including the night shift, when he did not
miss any days. Whatever his prior record may have
been, here he threatened that he would not be bound by
the new schedule but would set his own terms. Furlong
credibly testified that he could not live with that. Equal-
ly important is Furlong's denial that he knew Bixler's
record, although he was aware that there was no criti-
cism of him. I credit that denial , which appears probable
because Respondent had 200 employees and it would be
unusual for Furlong to be aware of the attendance of
each employee.
Whether Furlong knew or not, he was entitled to be-
lieve Bixler's threats; and, once having permissibly dis-
charged Bixler, Furlong was not obliged to reconsider
his decision and rescind his prior punishment, as the
General Counsel contends. Moreover, there is no evi-
dence in this record of an illegal motivation in Furlong's
failure to reconsider. All that is present is a hint of un-
fairness, a suggestion that Bixler should have been per-
mitted to say that he had made a mistake by his prema-
ture and repeated rejections of Furlong's schedule and to
say that he was now willing to work that schedule. That,
however, does not amount to a violation of the Act,
without some direct evidence (a statement by Furlong,
for example) that Bixler's union activity caused Furlong
to refuse to reconsider. Furthermore, that is not what the
complaint alleges is illegal.
The General Counsel next contends that Respondent
treated Bixler's discharge differently by meticulously
documenting the meeting at which Bixler made known
his views about not working the schedule that Furlong
had devised. However, McCandless and Carthew testi-
fied that it was their normal procedure to document dis-
ciplinary actions in this thorough way, and there is no
document introduced that demonstrates that their testi-
mony was false. More importantly, what they recorded
was true. Finally, at the time of the meeting, the Union
had filed its representation petition; and Respondent had
shortly before litigated the discharge in Broyhill I (in
which it was unsuccessful) and presumably had learned,
like most wise clients, to document any case where there
might be a prospect of future litigation. I refuse to criti-
cize Respondent for being prudent, particularly when I
have credited the documentation.
There is insufficient credible evidence to find that Re-
spondent discharged Bixler because of his union or pro-
4 For example, Furlong was not always one to wait for repeated of-
fenses. He discharged an employee who showed up at a company picnic
with an obscenity written on his shirt and another employee for fighting
with his supervisor Another was terminated for walking off the job
without an excuse Bixler walked off the job by saying that he was not
going to show up for the job
5 Bixier was sick for 3 days and late on 1 day in 1988 He had no sick
days in 1989, missed work only when he was on vacation for 2 weeks,
and worked so much overtime that he worked all but 5 days since Janu-
ary 14
tected activities. Despite Respondent's animus and prior
unfair labor practices, I find that Furlong was motivated
solely by Bixler's stubborn, unwise refusal to work the
schedule that Furlong was going to put into effect. Even
if there had been a believable illegal motive, Wright Line,
251 NLRB 1093 (1980), enfd. as modified 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982); ap-
proved in NLRB v. Transportation Management Corp.,
462 U.S. 393 (1983), provides that Respondent may
prove by a preponderance of the evidence that it would
have taken the same action against Bixler as it took, re-
gardless of whether it was also illegally motivated by the
employee's union or otherwise protected activities.
I find that Respondent would have discharged Bixler
in any event. It was clear that Furlong wanted to ensure
that employees showed up for the shifts where there had
been bad attendance. Respondent gave generous bonuses,
even under the revised benefit schedule, to those whose
attendance was nearly perfect. s Furlong worked for a
day to prepare a schedule which would correct the em-
ployees' complaints and would ensure that Respondent
would have the necessary manpower on all its shifts.
Bixler said that he would not show up for his shift if he
were required to work any more than 4 nights in a row.
He said to his employer that he would set his own work
schedule, no matter what Furlong said. Bixler's words
were supported by his actions. When Furlong, offered to
show the schedule to the employees, all, the employees
came to the front of the room, except Bixler. He was not
interested in the schedule, because he was not going to
obey it. That is insubordination, and there is no Board
law which required Respondent to wait and see whether
Bixler would carry out his threat. Accordingly, I con-
clude that Respondent's termination of Bixler did not
violate the Act and will recommend that this portion of
the unfair labor practice complaint be dismissed.
The Representation Proceeding
As stated above, the sole issues in the representation
proceeding involve challenges to the ballots of 7 persons,
whose votes might determine the results of the election
which was conducted on May 11 and resulted, after cer-
tain challenged ballots were counted and other chal-
lenges were sustained by stipulation of the parties, in 87
votes being cast for the Union and 90 against it. The
Board's Order in Broyhill I, if upheld on appeal, means
that employee Robert Paine's ballot will be counted.
Three more may affect the result of the election.
William Fritz was in charge of groundskeeping and
wore a white hat, which ordinarily designated that the
person was in charge of an area or some work.? The
other personnel wore brown hats. In April 1988 he hired
employee Lester 'Whitman and, throughout Whitman's
employment (up to December 1988), Fritz gave instruc-
tions to the other groundskeepers, signed their timecards,
6 The new bonus was calculated on 50 cents for every regular hour
worked and 75 cents for every hour of overtime
7 The only persons who wore white hats and did not have , responsibil-
ity for some area of the plant were the clerks who worked in the ware-
house Working foremen, whose status I have not determined , also wore
white hats
BROYHILL & ASSOCIATES 711
gave permission for them to take time off, and directed
the other groundskeepers in their day-to-day work. He
was responsible for buying seeds, flowers, and gasoline in
Respondent's name. He was paid a salary of $20,000 per
year. Like supervisors, he would lose no pay for illness.
The other groundskeepers, who were also paid on an
hourly rate, would have been expected to be paid yearly
from $16,000 to $18,000.8 Unlike Fritz, if they missed
work, they would not be paid. Furlong testified that Re-
spondent's supervisors started at $30,000; and that, as of
autumn 1988, Fritz no longer had the right to hire any
employee. Fritz, who did not testify, was paid as much
as 25 percent more than other groundskeepers, and per-
haps more. Furthermore, notwithstanding Furlong's testi-
mony, I am convinced that the reason that Fritz did not
testify is that he was never told that his power to hire
employees had been taken away. Similarly, although
Furlong testified that Fritz had no power to fire employ-
ees, he conceded on cross-examination that employee
Anthony Plasterer had been terminated on April 18,
1988, for fighting with his supervisor. That supervisor
Furlong identified as Fritz. Fritz attended periodic meet-
ings of the foremen. Carthew also testified that Fritz was
the supervisor of the ground crew. Furthermore, super-
visors generally were required to sign pledges of confi-
dentiality. Fritz signed such a pledge, a strange require-
ment if he were merely a gardener. I find that he was
treated by Respondent as a supervisor and had sufficient
right to control those employees in the groundskeepmg
department to constitute him as a supervisor . I sustain
the challenge to his ballot.
Meg Weaver, Tina Kimmel, and Joelene Bomberger
(who, in this discussion, are referred to as the "three
clericals" to differentiate them from the other clericals)
are clerical employees, but the Union claims that they
are office clericals and are excluded from the appropriate
unit, which was agreed on by the Union and Respondent
to be:
All full-time and regular part-time production and
maintenance, quarry, plant and shop employees and
truck drivers employed at the Employer's Annville,
Pennsylvania facility, excluding office clerical em-
ployees, store room employees, professional em-
ployees, guards and supervisors as defined in the
Act and all other employees.
Respondent claims that they are plant clericals who
should be included in the unit.
Respondent's facility consists of numerous buildings
and areas where the stone is crushed, stockpiled, and
processed. Typically, employees report to the welfare
building where they park their cars, clock in, and are
transported to their areas of work in Respondent's vans,
busses, and other equipment. Most of the production and
maintenance workers head west; but the clericals who
work in the corporate office travel away from the main
8 This comes from Furlong's testimony, which I have credited solely
because there was no documentary evidence introduced to prove that
this was incorrect However, Whitman testified that he was paid an
hourly rate of $6 50, which on a yearly basis, adding to it the 4-percent
increase of February 1989, amounts to $14,165
quarry, heading east by northeast, and those who work
in the plant office travel almost east from the welfare
building, away from the production facility. The loca-
tions where the three clericals work are not these two
offices.
All three are scheduled to work from 7 a.m. to 3:30
p.m., unlike the other clericals, whose hours are from 8
a.m. to 5 p.m,, and unlike the production and mainte-
nance employees, whose hours are set forth above and
who keep shifting from one of the three shifts to another.
The jobs of all clericals appear to be entry-level jobs,
paying the same hourly rate. All the clericals type
(typing is required for the corporate and plant office
clericals), file, and answer the phones. All their benefits
are the same, as they are (with few exceptions) for all
employees, including supervisors and managers. While
the clericals in the corporate and plant offices work in a
normal office setting and typically wear dresses, the
three clericals typically wear slacks or jeans , but some-
times skirts or dresses, because they work in the produc-
tion area where there is much dust and dirt. None of the
clericals wear safety shoes and hard hats at their jobs be-
cause they work inside. But, when the three clericals
travel outside of their work stations, they most often
wear hard hats. When they take their breaks, with few
exceptions, they stay at their work stations or in the
breakrooms used by the other production and mainte-
nance employees. They have contact with those produc-
tion and maintenance employees who bring reports to
them for filing or come to see their supervisors. Finally,
unlike the production and maintenance employees, the
three clericals do not travel from the welfare building to
their places of work in Respondent's bus or van. They
travel with their supervisor or someone else brings them
to work.
Weaver is the secretary of Fred Best, Respondent's
general manager, whose office is in the maintenance
building. Her workplace is outside of Best's office. She
receives reports from the individual truckdrivers and
prepares daily summaries of the hours that the equipment
was operated on all shifts, the daily fuel consumption,
and the production of limestone.9 In addition, Weaver
has distributed paychecks. Bomberger is the secretary of
Tom Mcllwain, the manager of the lime plant, and she
works with him in a trailer located at that plant.' She
compiles reports of the lime plant's daily activities, and
these documents are sent to the plant office, where
Weaver supplements Bomberger's figures and sends all
the reports to the corporate headquarters. Bomberger
also records into a computer maintenance data which has
been given to her by the mechanics. t ° Kimmel works in
the repair shop of the ' maintenance building for Jerry
Fisher, the maintenance supervisor. She was first hired
to train part time in ' the scale room, but the only testimo-
9 Furlong testified that Weaver helped with scheduling, but he never
expanded on that comment I do not know what scheduling is involved,
if any, or whether Weaver merely typed some schedules
1° Furlong also testified that Bomberger prepared schedules, but he did
not explain, nor was he asked, whether she merely typed the schedules
which had been prepared for her or whether she did something more
substantial
712 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ny about what she actually does concerned her functions
as a clerical employee. She receives forms turned in to
her by the maintenance employees and records them, by
piece of equipment, for the automotive, electrical, and
general maintenance departments. (In making this find-
ing, I note that the only witness to the functions of all
the employees was Furlong, who seemed to be particu-
larly uninformed about the work performed by Kimmel.
However, there was no other testimony on which I can
rely.) The Union contends that, after the election, Re-
spondent agreed that the scale room employees were to
be excluded from the unit," but the one employee in the
scale room agreed by the parties to be excluded was a
guard. There is no proof that Kimmel was a guard, and
there is nothing in the record which establishes that she
performed any functions in the scale room, although I
find that she was hired as a part-time scale employee.
In addition to the job duties set forth above, the cleri-
cals in the plant office receive orders from customers, ar-
range shipment schedules with Respondent's truckers,
process accounts payable and receivable, and handle
health insurance claims. Those in the corporate office
also talk to customers and expedite.' 2 The three clericals
have little contact with the other clericals, except that
they talk with one another by telephone to ask and
answer questions.
The Board does not ordinarily include office clerical
workers in a unit containing manual workers because of
their different interests, a policy which has been applied
most frequently where the office clerical workers differ
from production workers and plant clericals by working
in separate offices on administrative matters not directly
related to production. See, e.g., Beech Aircraft Corp., 170
NLRB 1595 (1968); Carling Brewing Co., 126 NLRB 347
(1960). How to differentiate between office and plant
clericals is not easy. Said one court: "The line between
plant and office clericals is faint; sometimes it disap-
pears." Pacific Southwest Airlines v. NLRB, 587 F.2d
1032, 1041 (9th Cir. 1978). Even the Board has candidly
admitted: "We recognize that the distinction drawn be-
tween office clericals and plant clericals is not always
clear." Hamilton Halter Co., 270 NLRB 331 (1984).
The only clarity that appears from an analysis of
Board decisions is that if there is an office separated
from the production area and in which there are clericals
working, those are invariably office clericals. Cf. John N.
Hansen Co., 293 NLRB 63 (1989). On the other hand,
plant clericals spend all or most of their time in produc-
tion areas, but not all clerical employees who work in
production areas are plant clericals. The fact that a cleri-
cal utilizes a computer, typewriter, and other traditional
office equipment does not preclude a finding that the em-
ployee is a plant clerical. S & S Parts Distributors Ware-
house, 277 NLRB 1293 (1985); Avon Products, 250 NLRB
1479, 1486 (1980). Nor is the fact that they are classified
as secretaries an impediment to a finding that they are
" The scale room employees were covered by the Union's collective-
bargaining agreement with Bethlehem
12 Although I make this finding about expediting, I am unclear what
this entails because Furlong never explained it nor was he asked
plant clericals. Swift & Co., 119 NLRB 1556, 1567 (1958);
Weyerhaeuser Co., 173 NLRB 1170, 1171 fn. 8 (1968).
Perhaps, but not definitively, a plant clerical must be
involved in the production process, and the Board has
found that an employee who performs duties integral to
the functioning of the production operation is a plant
clerical. John N. Hansen Co., supra. Clearly, when an
employee performs the actual work of the production
and maintenance unit, the employee is held to be a plant
clerical. Lear Siegler, Inc., 295 NLRB 857 (1989). There,
however, the Board also found that writing out sales and
bills of lading were among the duties that the Board
typically associates with plant clericals. at 860 Hamilton
Halter Co., supra. Here, the stipulated office clericals in
the plant office perform the same function and other
functions which might typify the work of plant clericals,
yet they were excluded by agreement of the parties.
Nonetheless, I conclude that the three clericals are
plant clericals. They work in the production area of Re-
spondent's facility, far away from the office clericals, and
are, I infer, supervised by those for whom they are 'sec-
retaries, all supervisors in production and maintenance.
Their labors are principally devoted to preparing forms
relating to the production of Respondent's product and
the maintenance of the equipment utilized in that produc-
tion. T.L.C. Lines, Inc., 265 NLRB 1200 (1982), enfd. 717
F.2d 461 (8th Cir. 1983). Although their jobs are entry
level jobs, as are those in the plant and corporate offices,
so are the jobs of laborers, clearly part of the production
and maintenance unit. The hours of work of the three
are not the same as the production and maintenance em-
ployees; but their hours are closer to the day shift of the
production and maintenance employees than they are to
the hours of the office clericals. Their contact with the
undisputed office clericals is minimal , whereas they have
daily contact with many of the production and mainte-
nance workers, with whom they share their break areas.
On the basis of this record, they should not be excluded
from the unit, and they are entitled to have their ballots
counted. Texprint, Inc., 253 NLRB 1101, 1103 (1981).
The remaining three employees, David Hepp, Lewis
Landis, and John Martin, were all employed in Respond-
ent's laboratory, which was located due east, of the wel-
fare building. Respondent contends that it and the Union
stipulated to the exclusion of all laboratory employees.
When the Union petitioned for an election, the unit peti-
tioned for specifically included laboratory employees, as
follows:
All full-time and regular part-time production and
maintenance, quarry, plant and shop employees in-
cluding laboratory employees and truck drivers em-
ployed at the Employers Annville, Pennsylvania fa-
cility, excluding all other employees, Guards and
Supervisors as defined in the Act.
Following Respondent's objection, the phrase "includ-
ing laboratory employees" was deleted from what
became the stipulated unit in the parties' stipulated elec-
tion agreement. However, Sandra Pelkey, a staff repre-
sentative of the Union, testified that the status of the lab-,
oratory employees was subject to further negotiation.
BROYHILL & ASSOCIATES
After the election the parties agreed that the votes of 10
employees, particularly sample preparers and LOI ("loss
of ignition") testers, who worked in the laboratory
would be counted. Respondent did not deny this, and
that puts to rest its argument that the parties intended to
exclude all employees in the laboratory. Clearly its will-
ingness to accept 10 of 13 laboratory employees demon-
strates that the parties never agreed to exclude the classi-
fication of laboratory employees from the unit.
It also partially answers Respondent's new conten-
tion 13 that the laboratory employees do not share a com-
munity of interest with the rest of the production and
maintenance employees. As noted above, the terms and
conditions of all employees, even supervisors and manag-
ers, are the same. The laboratory employees attended the
meetings in February 1989 where the wage increases and
new and revised benefits were announced. The three lab-
oratory employees had to wear the same safety shoes
and hard hats as all the other employees. All were as-
signed lockers and punched the timeclocks in the welfare
building, just as all other production and maintenance
employees did, and all were transferred to and from the
welfare building in one of Respondent's vehicles. Noth-
ing was shown to indicate that their working conditions
vis-a-vis the other laboratory employees were any differ-
ent. In fact, each of them had contact with the laborato-
ry's sample preparers who brought samples to them; and
Hepp, particularly, and to a lesser extent Martin, often
went out to the quarry to get samples. Based on this
record and the stipulation that permitted the 10 other
laboratory employees to have their ballots counted, there
is no rational basis to exclude these three employees on
the basis of a lack of community of interest. Even if they
may lack a thorough community of interest with the
other production and maintenance employees outside of
the laboratory building, they certainly have a community
of interest with the other 10 laboratory employees who
Respondent has stipulated belong in this unit. Respond-
ent's position, if adopted, would remove these three from
their community of laboratory employees.
Respondent contends in its brief, somewhat as an after-
thought, and partially consistent with its position it took
during the investigation of the challenges, that only
Martin is a technical employee who should be excluded
from the appropriate unit. Normally, I would not even
deal with the two other employees; but, with Respond-
ent's present change of position, this contention may
arise again before the Board. In brief, therefore, I con-
clude that they are not technical employees for several
reasons. Technical employees are those who perform
work of a technical nature, requiring specialized training,
to be acquired in colleges or technical schools or
through special courses, and involving the use of inde-
pendent judgment. Litton Industries of Maryland, 125
NLRB 722, 725 (1959).
13 The Regional Director's supplemental decision on challenged ballots
states Respondent's sole opposition to the inclusion of the three laborato-
ry employees, as follows
[E]ach of these employees is a technical employee whose job classifi-
cation is not within the stipulated unit Hepp is a chemist/-
spectograph operator, Landis is a spectograph operator and Martin is
a chemist
713
Two of the three, Hepp and Landis, had no more than
high school educations. They learned all they had to
know from on-the-job training. Martin had 3 years of
college, including some chemistry. However, he went to
college from 1965 to 1968 and started with Bethlehem in
1974 as a laborer. He then worked as a car loader helper,
a car loader, a utility truckdriver, and a car loader opera-
tor, until he took a temporary position as a sample pre-
parer in the laboratory in 1979, a position for which he
bid under the then union contract. He learned his job
from Landis and ultimately became a sample preparer
full time from 1981 to 1987, when he became a produc-
tion truckdriver because it paid more money. He re-
turned to the laboratory as a chemist when Respondent
took over the facility from Bethlehem; and he learned
how to do wet chemical analysis from Landis and the
laboratory's supervisor, Tony Mantione. He has engaged
in the same duties, running the same routine tests as
before, which are always run in the same way. He has
designed a testing procedure on his own, but in consulta-
tion with his supervisor and never "from scratch." How-
ever, on a few occasions, when certain testing instruc-
tions were vague, he used trial and error to reach a
result. Those appear to be the only limited areas where
he used any independent judgment, and using trial and
error is more a mechanical method of proceeding than
the use of independent judgment in devising new tests.
Operation of the tests on the spectograph, an X-ray
machine principally operated by Hepp and Landis but
also familiar to Martin, does not appear to be overly
complex. Each sample test has to be performed the same
way. Charts showed how to set up the spectograph. The
employees never decided how to perform a test nor did
they design tests or procedures. Each test had certain
specifications which were listed on a chart on the wall,
The sample was to be within the parameters of those
specifications; and, if it was not, the employee was to
conduct the test on a new sample or advise his supervi-
sor. The reports that all three employees prepare require
only the insertion of numbers representing the results of
the tests in spaces provided on the forms. Neither Hepp
nor Landis used any independent judgment in their jobs.
By consequence, I conclude that these three laborato-
ry employees are not technical employees within the
meaning of Board,law. Accordingly, I sustain the chal-
lenges to the ballot of William, Fritz. I overrule the chal-
lenges to the ballots of Meg Weaver, Tina Kimmel, Joe-
lene Bomberger, David Hepp, Lewis Landis, and John
Martin.
The unfair labor practices found, occurring in connec-
tion with Respondent's business, have a close, intimate,
and substantial relationship to trade, traffic, and com-
merce among the several States and tend to lead to labor
disputes burdening and obstructing commerce within the
meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease
and desist and take certain affirmative action designed to
effectuate the policies of the Act.
714 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed14
ORDER
The Respondent , Broyhill & Associates , Inc., Amville,
Pennsylvania , its officers , agents, successors , and assigns,
shall
1. Cease and desist from
(a) Threatening its employees with discharge or other
unspecified reprisals because of their support for the
Union.
(b) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its place of business in Annville , Pennsylva-
nia, copies of the attached notice marked "Appendix." 1 s
Copies of the notice , on forms provided by the Regional
Director for Region 4, after being signed by Respond-
ent's representative , shall be posted by Respondent im-
mediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to ensure that
the notices are not altered, defaced , or covered by any
other material.
(b) Notify the Regional Director in writing within 20
days from the date of this order what steps Respondent
has taken to comply.
IT IS FURTHER ORDERED that the complaint is dis-
missed insofar as it alleges violations of the Act not spe-
cifically found.
IT IS FURTHER ORDERED that Case 4-RC-16989 be re-
manded to the Regional Director for Region 4 with a di-
rection to overrule the challenges to the ballots of Meg
Weaver, Tina Kimmel, Joelene Bomberger , David Hepp,
Lewis Landis, and John Martin and to open and count
their ballots and to prepare and cause to be served on
the parties a revised tally of ballots and the appropriate
certification.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT threaten our employees with discharge
or other unspecified reprisals because of their support for
the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
BROYHILL & ASSOCIATES, INC.
14 If no exceptions are filed as provided by Sec 102 .46 of the Board's
Rules and Regulations, the findings , conclusions, and recommended
Order shall , as provided in Sec 102 48 of the Rules , be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
is If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "