Cook Composites & Polymers Co.

National Labor Relations Board - Board Decisions

Apr 20, 1994

313 N.L.R.B. 1105 (N.L.R.B. 1994)

1105
313 NLRB No. 189
COOK COMPOSITES & POLYMERS CO.
1 The only issue raised by the request for review was whether the
Regional Director erred in finding that the data entry operators were
not plant clericals, and thus need not be included in the petitioned-
for production and maintenance unit.
Cook Composites and Polymers Co. and Inter-
national Union, United Automobile, Aerospace
and Agricultural Implement Workers of Amer-
ica, UAW, Petitioner. Case 8–RC–15001
April 20, 1994
ORDER DENYING REVIEW
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND COHEN
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel, which has considered the Employer’s request for
review of the Regional Director’s Decision and Direc-
tion of Election (pertinent portions are attached). The
request for review is denied as it raises no substantial
issues warranting review.1 The Employer’s request to
stay the election is also denied.
APPENDIX
5. The Employer is engaged in the manufacture of gel
coat, a laminating composite used to coat such items as
boats, bathtubs, and automobile parts, at its Sandusky, Ohio
facility, the only facility involved here. There are approxi-
mately 34 employees in the unit found appropriate.
The parties disagree with respect to the voting eligibility
of seven individuals. The Employer would include the two
production foremen, the quality assurance foreman, the
shipping/receiving foreman, and the safety maintenance man-
ager. The Petitioner maintains that these individuals are su-
pervisors within the meaning of Section 2(11) of the Act
who should therefore be excluded from the unit. In addition,
the Employer takes the position that the two data entry oper-
ators are plant clericals who should be included in the unit.
The Petitioner, however, asserts that these individuals are of-
fice clericals who do not share a community of interest with
the other employees in the proposed unit.
The Employer operates a customer service center in Kan-
sas City, its only other facility. It purchased its Sandusky
manufacturing facility in January 1993 from a predecessor
known as American Colors. There are two primary buildings
located at the Sandusky facility. Building 1, as the Employer
refers to it, is divided into three subsections known as 1A,
1B, and 1C. Building 1A houses the mechanical room, a
storage area, the lunchroom, the shipping and warehouse
area, and the quality assurance lab. The production floor is
housed in building 1B. Bulk storage for resins and solvents
is found in building 1C. Building 2 houses the office, the
employee locker rooms, and the maintenance shop. The two
buildings are separated by a driveway which measures 14
feet across.
Evidence demonstrates that the Employer’s operation is di-
vided into five distinct functions: production, quality assur-
ance, shipping/receiving, manufacturing data entry, and main-
tenance. Production is performed on a first- and third-shift
schedule with nine production laborers employed on each
shift. A production foreman is assigned to each shift and the
operation is managed by a production manager who reports
to the plant manager and the assistant plant manager. Quality
assurance is performed by three color matchers and four
quality assurance lab technicians. There is a lab foreman who
reports to the quality assurance manager. Shipping/receiving
is done by a shipping/receiving foreman and two laborers,
one of whom is involved in this function on a half-time
basis. There are two manufacturing data operators and they
are located in the office area of building 2. Maintenance in-
volves the services of the safety maintenance manager and
the maintenance laborer. The production manager is respon-
sible for the shipping/receiving and maintenance functions
while the office manager oversees the data entry operators.
The Production Foremen
Each of the Employer’s two production shifts includes
nine laborers and a production foreman. Joe Hughes is the
day-shift foreman and Robin Smith is the foreman at night.
The Employer does not presently operate a second shift.
Hughes and Smith report to the production manager, John
Legaj. Evidence demonstrates that the production foremen
work alongside the laborers and spend anywhere from 90–
95 percent of their worktime engaged in the same production
work. They are trained to perform any of the tasks involved
in production and are used utility men whose efforts are di-
rected at clearing up bottlenecks in the process. When they
are not engaged in production, the foremen are asked to ver-
ify the ingredients put into the products, complete paper-
work, and answer questions regarding the batch tickets which
govern the manufacturing process.
The record indicates that each shift begins with a short
meeting wherein the production foreman distributes the batch
tickets to employees. This assignment of work, according to
George Kunkle, the Employer’s vice president for manufac-
turing, is routine. Each employee merely receives those batch
tickets for the area in which he or she normally works.
Kunkle added that the foreman generally works in the area
where the most effort will be required. Randy Minor, a la-
borer on the day shift, testified that he works as a rover and
is assigned his daily tasks by Foreman Hughes. Minor, how-
ever, did not indicate that Hughes does anything more than
instruct him to assist in the area where an extra hand is need-
ed. Kunkle noted that a foreman can direct an employee to
another area when extra help is needed there. Minor, the
rover, acknowledged that most of his day involves doing
what is requird by the batch tickets and that he needs very
little direction.
Evidence indicates that both Joe Hughes and Robin Smith
were production laborers before they became foremen. Fore-
men are required to serve a 30- to 90-day probationary pe-
riod. Thereafter, they receive an additional 50 cents per hour.
Kunkle testified, without contradiction, that the production
foremen receive an hourly wage that is within the same
range as that paid to laborers. The foremen and laborers both
punch a timeclock, wear the same uniforms, use the same
lunchroom, and receive identical benefits.
The record demonstrates that production foremen do not
have the authority to hire or fire employees. These tasks are
performed by John Legaj, the production manager, in coordi-
nation with the plant manager, Scott Bechtel. The foremen
1106 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Greg Gosser, a production laborer, testified that when he was a
foreman at the time that American Colors operated the facility, he
made certain recommendations regarding discipline. He added that
his recommendations were followed only part of the time. The
record does not establish that the Employer has continued the same
policies or organizational structure as its predecessor. Therefore,
Gosser’s testimony with respect to the predecessor’s practices is not
material to this proceeding and I shall not give it any weight.
report to Legaj or Bechtel with respect to job performance
problems experienced by any of the laborers. There is no
evidence, however, that the foremen make recommendations
regarding possible discipline.2 Rather, testimony establishes
that the foremen merely serve a reportorial function in the
disciplinary process. Decisions on disciplinary action, accord-
ing to the record evidence, are made by Legaj and Bechtel.
While production foremen attend daily staff meetings
which also include members of higher management, the evi-
dence fails to establish that they engage in any process of
setting employer policy. Indeed, the record does not indicate
the nature of the business conducted at these meetings. Pro-
duction foremen also participate in the meetings associated
with the employee evaluation process. The record dem-
onstrates that they merely act as silent witnesses at these ses-
sions. Each foreman prepares an evaluation report for the
employees on his shift, but there is no evidence that any sort
of recommendation is made with regard to wages, pro-
motions, or other personnel actions.
According to laborer Randy Minor, employees who cannot
report for a scheduled shift are required to report off by
phone to their foreman. Minor added, however, that approval
for the absence must be granted by Scott Bechtel. As an ex-
ample, he noted that Bechtel refused to allow him to take a
day missed as a snow day but rather required Minor to
charge it as a vacation day or a floating holiday. All vacation
or leave requests made in advance, according to Minor, are
given to the foreman but acted on by Bechtel. The record
further indicates that approval to leave work early on the day
shift must be given by the production or plant manager.
However, since they are not present on the night shift, Robin
Smith is authorized to allow an employee to go home if that
person is ill.
Kunkle testified that training is not necessarily the prov-
ince of the foremen alone. Generally, the more experienced
employees train new hires in the operation of the machinery.
If a problem arises with a paycheck or timecard, foremen in-
struct employees to take up the matter with Legaj. With re-
spect to overtime, evidence demonstrates that foremen are di-
rected by the production manager to seek out volunteers. If
none come forward, Legaj alone assigns mandatory overtime.
The Petitioner maintains that the foregoing evidence sup-
ports a finding that the production foremen are supervisors
within the meaning of the Act and should be excluded from
the unit. As the party alleging supervisory status, moreover,
the burden falls on the Petitioner to prove that these individ-
uals are supervisors. Northcrest Nursing Home, 313 NLRB
491, 496 at fn. 26 (1993); Tucson Gas & Electric Co., 241
NLRB 181 (1979). On full consideration of the record evi-
dence, I have concluded, contrary to the Petitioner’s asser-
tion, that the production foremen, Hughes and Smith, do not
exercise any of the unequivocal indicia of supervisory status
defined in Section 2(11) of the Act.
In its brief, the Petitioner cites a number of factors which
it claims establish the supervisory status of the production
foremen. It notes that they attend daily staff meetings in
which laborers do not participate and that the foremen each
have their own desk. The record, however, does not contain
evidence that the foremen have made recommendations at
the staff meetings that resulted in policies or procedures im-
plemented by the Employer affecting employees’ terms or
conditions of employment. Attendance at such meetings, in
the absence of the exercise of any of the statutory indicia of
supervisory authority will not operate to render the partici-
pants as supervisors. Clark Machine Corp., 308 NLRB 555,
556 (1992). The record also failed to establish any purpose
or significance to the desks assigned to each supervisor and
I therefore cannot ascribe supervisory status on the basis of
this fact.
Petitioner asserts that foremen participate in the discipli-
nary process and engage in employee evaluations. The evi-
dence shows nothing more than that the foremen serve a rep-
ortorial function. They report incidents to their superiors and
act as witnesses at disciplinary and evaluation meetings. The
Petitioner, moreover, has failed to demonstrate that the fore-
men effectively recommend that disciplinary actions be taken
or that the Employer order particular rewards or punishments
related to performance evaluations. On the contrary, the
record establishes that this authority rests with the production
manager or the plant manager. The Board has found that fac-
tual assessments or opinions expressed concerning the job
performance of other employees, with nothing more, do not
establish supervisory status. The Door, 297 NLRB 601
(1990); Willis Shaw Frozen Food Express, 173 NLRB 487
(1968).
According to the Petitioner, its witness, Randy Minor, tes-
tified that the production foremen assign work based on their
independent judgment. Minor, however, also acknowledged
that his work is primarily directed by the content of the batch
tickets. The record, furthermore, establishes that the assign-
ment of work by the foremen is repetitive and routine.
Kunkle testified, without contradiction, that the foremen
merely give the batch tickets to the employees who normally
perform the same functions. The laborers’ work is thereafter
dictated by the instructions on the batch tickets. The evi-
dence demonstrates, moreover, that the laborers are generally
self-directed in the additional tasks of performing cleanup or
scraping drums. If they are slack in getting to these chores,
the foremen merely directs that the work must be done. The
record indicates that the foremen are also required to engage
in cleanup and scraping drums. Where routine work of a re-
petitive nature is assigned, the Board has held that this is not
indicative of supervisory status. Highland Telephone Cooper-
ative, 192 NLRB 1057 (1971); Commercial Fleet Wash, 190
NLRB 326 (1971).
In summation, the Petitioner has not carried its burden of
demonstrating that the production foremen are statutory su-
pervisors. The record rather establishes that these individuals
have the same supervision, benefits, and other terms and con-
ditions of employment as the production laborers. While they
have some additional duties, the evidence reflects that they
do not exercise independent judgment but merely execute
and oversee tasks of a routine and repetitive nature. Further-
more, the fact that they are engaged in the same production
work as the laborers for at least 90 percent of their workday
1107COOK COMPOSITES & POLYMERS CO.
is a strong indicator that the production foremen are merely
leadpersons. Risdon Mfg. Co., 195 NLRB 579, 581 (1972).
Based on the foregoing and the record as a whole, I con-
clude that Production Foremen Joe Hughes and Robin Smith
are not supervisors within the meaning of Section 2(11) of
the Act and they are therefore eligible to vote in the election
directed here.
The Quality Assurance Foreman, Shipping/Receiving
Foreman, and Safety Maintenance Manager
The Petitioner maintains that the quality assurance fore-
man, shipping/receiving foreman, and the safety maintenance
manager are supervisors and should be excluded from the
bargaining unit. The record evidence with respect to these in-
dividuals, however, demonstrates that their status is nearly
identical to that of the production foremen. Based on the
matters set forth below, I have therefore concluded that these
foremen are nonsupervisory leadpersons and should be in-
cluded in the unit.
The quality assurance foreman is Mark Van Cauwenbergh.
He works alongside two other quality assurance employees
on the day shift and 90–95 percent of his time is devoted
to the same tasks that they perform. There is a single quality
assurance employee who works on the third shift without su-
pervision. George Kunkle testified, without contradiction,
that the batch testing and batch card filing done by the qual-
ity assurance employees is routine and repetitive work. They
run the same tests on the retain of every batch that is brought
to them. Moreover, there is no need to assign employees to
test a particular batch since the retains are dealt with in the
order in which they come to the lab.
With respect to employee discipline, vacation requests,
evaluations, assignment of overtime, calling off procedures,
and attendance at staff meetings, the facts concerning Van
Cauwenbergh are identical to those regarding the production
foremen. The record demonstrates that supervisory authority
on these matters is exercised by Van Cauwenbergh’s supe-
rior, Bill Bannow, the quality assurance manager. I further
note that like the production foremen, the quality assurance
foreman punches a timeclock, wears the same uniform as the
other employees, and eats in the same lunchroom. Van
Cauwenbergh was hired from the outside at an hourly rate
10–15 percent above entry level pay. However, according to
Kunkle, his wage rate is not higher than some of the employ-
ees who have been employed longer because the Employer
bases its pay on longevity rather than on an established wage
scale.
The Petitioner does not directly address the issue of Van
Cauwenbergh in its brief and the evidence it has offered fails
to meet its burden of establishing that he is a statutory super-
visor. I find, based on the record evidence, that the quality
assurance foreman does not exercise any of the indicia of su-
pervisory status but rather spends the bulk of his time per-
forming the same work as other employees and otherwise
executes the duties of a leadperson. I shall therefore include
him in the unit.
Jeff Lewis is the foreman in the shipping/receiving depart-
ment and he is directed by the production manager, John
Legaj. Evidence indicates that Lewis works alongside one
other shipping/receiving employee, Tony Rodisel, and per-
forms the same tasks except that he is responsible for com-
pleting certain paperwork. There is one other employee who
also performs shipping/receiving work on a half-time basis.
The employees in this department are responsible for retriev-
ing items from the production area for shipping, consolidat-
ing shipments in the warehouse area, generating and com-
pleting pick tickets, and entering data in the computer which
is used to generate packing slips and bills of lading.
The Petitioner, in arguing that Lewis is a supervisor, relies
on the same factors it cited with respect to the production
foremen. However, the record demonstrates that Lewis has
no more authority than Hughes, Smith, or even Van
Cauwenbergh. On the issues of employee discipline, assign-
ment of work, vacation or leave requests, attendance at staff
meetings, calling off work and assignment of overtime, the
evidence shows that supervisory authority in these matters
rests with Legaj and Bechtel. Lewis neither hires nor fires,
recommends discipline, nor uses independent judgment in as-
signing work or overtime. Furthermore, it is unreasonable to
conclude that a supervisor is required to oversee the job per-
formance of 1-1/2 other employees.
Evidence rather demonstrates that Lewis punches a time-
clock and wears a uniform like other employees. He also
uses the same lunchroom. Most significantly, nearly all of
his working time is spent performing the same tasks as the
other shipping/receiving employees. Accordingly, I conclude
that the Petitioner has not met its burden of proving that
Lewis is a supervisor and I find that he is a leadperson eligi-
ble to vote in the election directed here.
The safety maintenance manager is Richard Carbary and
there is only one other employee in the maintenance depart-
ment. The latter, David Keaton, testified that Carbary spends
about 5 hours of each workday performing maintenance
tasks. This assessment is not substantially different from that
of George Kunkle who estimated that Carbary spends about
70–75 percent of his time in hands-on maintenance work.
The remainder of Carbary’s time, however, is also mainte-
nance related. He talks to employees in other departments
about their maintenance needs, orders replacement parts,
works with outside contractors on large maintenance assign-
ments, and consults with the plant manager regarding mainte-
nance problems.
According to Keaton, the work assignments of the mainte-
nance department are drawn up by the plant manager or the
assistant plant manager. Keaton noted that the breakdown of
who performs the work is decided by the relative job skills
of Carbary and himself. Carbary takes the tasks that Keaton
does not have the skills to perform. If the task is particularly
difficult, Keaton and Carbary work on it together. Jobs that
are too forbidding for either of them are submitted for con-
tract by outside maintenance firms. Keaton also noted that
Carbary and he are often working in different areas of the
plant. He routinely only sees Carbary once a day at about 10
a.m. at which time they review and divide the work list
given Carbary by the plant manager.
With respect to such issues as discipline, assignment of
work, leave, staff meetings, evaluations, and calling off, the
record evidence regarding Carbary is not different than that
cited above with reference to the other foremen. Keaton
noted that he has been disciplined twice and that both times
it was by order of the plant manager, Bechtel. He acknowl-
edged that work assignments come from a list prepared by
Bechtel and that he performs the less skilled, more janitorial
functions. Keaton testified that leave requests are decided on
1108 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Carbary does not use the employee lunchroom and likewise is
not required to punch the timeclock, but evidence establishes that
this is because his job tasks take him to various locales on and off
the site. There is no dispute that he is an hourly employee who must
submit a record of his hours worked to the Employer.
by Bechtel and that Carbary does not have the authority to
assign mandatory overtime. While Keaton stated that Carbary
actively participated in his employee evaluation, he offered
no evidence that Carbary made any effective recommenda-
tions in this regard. Rather, Keaton admitted that the signifi-
cant aspects of the evaluation were handled by Bechtel.
Again, the Petitioner has not met its burden of demonstrat-
ing that Carbary is a supervisor within the meaning of the
Act. Rather the evidence reveals that Carbary spends nearly
all his time performing maintenance tasks and interacts with
Keaton, the only other maintenance worker, as a leadperson.3
I therefore conclude that Richard Carbary is not a supervisor
within the meaning of Section 2(11) of the Act and is eligi-
ble to vote in the election.
The Manufacturing Data Entry Operators
The Employer would include the manufacturing data entry
operators (the operators), maintaining that they are plant cler-
ical employees who share a community of interest with the
other unit employees. For its part, the Petitioner asserts that
the operators are office clericals of the type generally ex-
cluded from a production and maintenance unit by the Board.
Based on the facts set forth below, I conclude that the opera-
tors are indeed clerical employees who do not share a com-
munity of interests with other unit employees.
As indicated above, the data entry operators are located in
the office area of building 2. Thus, they are physically re-
moved from the production process which is conducted in
another building. The record also establishes that the opera-
tors both work days and are directly supervised by Pat
Comley, the Employer’s office manager. The Employer
makes no assertion that Comley is engaged in the production
process.
The essential job duty of the operators is to enter data,
mostly from the batch tickets, into the computer system.
George Kunkle testified that this task takes up approximately
90 percent of their time. The remaining 10 percent, according
to Kunkle, involves traditional secretarial duties such as typ-
ing, filing, and answering the telephone.
The Employer claims that the data entry operation is inte-
gral to the production process because the batch tickets can-
not be closed out and the product shipped until the operators
perform their duties. Thus, for example, the operators would
be responsible for clearing up any discrepancies that exist be-
tween the data on the batch tickets and the plant inventory.
The record also indicates that the operators are responsible
for generating address labels for shipping, assigning freight
carriers, and filing pick tickets, packing slips, and bills of
lading. Additionally, testimony establishes that the operators
record and transmit the production hours worked by other
employees to the corporate office, answer questions regard-
ing insurance benefits, and deal with mistakes on paychecks
or pay stubs.
Evidence demonstrates that the operators have some mini-
mal contact with other unit employees. This involves going
to the lab area to pick up batch tickets several times a day.
They also walk over to the shipping area to deliver address
labels and retrieve packing slips, pick tickets, and bills of
lading for filing. The record implies that this is not a fre-
quent daily activity. Randy Minor testified that he does not
see the operators in the production area and George Kunkle
acknowledged that he has not observed them there either.
According to David Keaton, the operators may pass through
the maintenance area on their way to another part of the
plant, but he has no contact with them unless there is a prob-
lem with his pay stub. Kunkle also noted that if the operators
detect a discrepancy on a batch ticket, they take the problem
to Inventory Manager John Dewalt rather than going directly
to the production department.
The record further indicates that there are other factors
which distinguish the operators. They do not wear the uni-
forms provided by the Employer to other employees. The op-
erators do not frequent the lunchroom although it is appar-
ently available to them. Also, while most employees park
their cars in the Employer’s back lot, the operators use the
front lot. The Employer explains that the front lot has better
lighting and therefore is safer for the operators both of whom
are women. Finally, the operators are required to leave the
site during the day since one of them makes a daily run to
the local post office. Having the operators run such errands
is the reason given by the Employer as to why the operators
do not punch the timeclock.
The Employer notes that there is some common ground
between the conditions of employment of the operators and
the other employees. Thus, the operators get the same start-
ing pay as other employees and receive the identical benefits
package. They are required to take the same safety training.
The Employer also notes that aside from the operators, other
employees in the lab and in shipping enter data in the com-
puter system. On this latter point, the record shows, however,
that the data entered by other employees is minimal, at best.
The Board has long held that the distinction between of-
fice and plant clericals is rooted in community-of-interest
concepts. Minneapolis-Moline Co., 85 NLRB 597, 598
(1949). Clericals whose principal functions and duties relate
to the general office operations and are performed within the
general office itself, are office clericals who do not have a
close community of interest with a production unit. This is
true even if those clericals spend as much as 25 percent of
their time in the production area and have daily contact with
production personnel. Container Research Corp., 188 NLRB
586, 587 (1971).
In arguing that the operators are plant clericals, the Em-
ployer relies, in large part, on the Board’s decision in Hamil-
ton Halter Co., 270 NLRB 331 (1984). The Board there rec-
ognized that, ‘‘the distinction drawn between office clericals
and plant clericals is not always clear.’’ It went on to hold
that the clericals at issue were plant clericals whose function
was closely associated with production. The Board reached
this conclusion even though these clericals worked between
70–95 percent of their time in the office and were physically
separated from the production area.
Nevertheless, the factual setting in Hamilton Halter Co.,
supra, is clearly distinguishable from that here. The clericals
there performed a significant degree of production work. The
Board noted that they filled sample orders for customers, as-
sisted in loading and unloading trucks, stamped sizes on tags,
and occasionally contributed to the design and development
1109COOK COMPOSITES & POLYMERS CO.
of new products. Furthermore, because of their overlapping
duties, these clericals were supervised at least part of the
time by the shop supervisor. Even their office duties were
different in that they processed the customer orders used in
the production process.
The data entry operators at issue here are physically sepa-
rated from the other unit employees. They do not even mini-
mally engage in assisting the unit employees or working
alongside them. More significantly, they spend all their time
supervised by the office manager with no oversight at all by
other supervisors. Additionally, they do not punch the time-
clock, refrain from using the lunchroom, and run errands out-
side the facility. Thus, the contacts and interaction between
the operators and other unit employees in their work and
nonworking settings is negligible. The minor contact high-
lighted by the Employer does not, by itsef, make employees
plant clericals. Container Research, supra. As for their role
in the production process, it is perhaps very telling that the
Employer does not employ an operator at night when it is
running a full production shift.
Based on the foregoing considerations and the record as a
whole, I conclude that the manufacturing data entry operators
are office clericals and do not share a community of interests
with the employees included in the unit. See Avecor, Inc.,
296 NLRB 727, 746 (1989). I therefore find that they are in-
eligible to vote in the election directed here.
Based on the foregoing and the record as a whole, I fur-
ther find that the following unit is appropriate for the pur-
poses of collective bargaining within the meaning of Section
9(b) of the Act:
All full-time and regular part-time production, mainte-
nance, quality assurance and shipping/receiving employ-
ees including color matchers, production foremen, qual-
ity assurance foremen, shipping/receiving foremen and
the maintenance safety manager at the Employer’s San-
dusky, Ohio facility but excluding all office clerical
employees, professional employees, guards and super-
visors as defined in the Act.