Elastic Poly Horizons Corp.

National Labor Relations Board - Board Decisions

Mar 17, 1977

228 N.L.R.B. 870 (N.L.R.B. 1977)

870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Elastic Poly Horizons Corporation and Amalgamated
Clothing and Textile Union, AFL-CIO, Petitioner.
Case 11-RC-4158
March 17, 1977
DECISION AND DIRECTION
BY MEMBERS JENKINS, PENELLO, AND
WALTHER
Pursuant to a Stipulation for Certification Upon
Consent Election approved by the Regional Director
for Region 11 on April 7, 1976,1 a secret ballot
election was held under the supervision of the
aforementioned Regional Director on April 29. Upon
conclusion of the election, a tally of ballots was
furnished the parties showing that of the approxi-
mately 38 eligible voters 18 cast valid votes for the
Petitioner, 14 cast valid votes against the Petitioner,
and 6 ballots were challenged. The challenged ballots
were sufficient in number to affect the results of the
election.
On June 28, the Regional Director issued a Report
on Challenges in which he concluded that the
challenges to the ballots of Marilyn Marsh and Kerris
Avant were without merit and recommended that
they be opened and counted. As the counting of these
two ballots would not be decisive, the Regional
Director further recommended that they not be
opened and counted until a determination was made
with respect to the four remaining challenged ballots.
The Regional Director concluded that the issues
relating to the challenges to the ballots of Katie
Avant, Lonnie Cribb, Larry Joe Haselden, and
Barbara Cox could best be resolved by record
testimony at a hearing before a duly designated
Hearing Officer.
No exceptions to the Regional Director's report
having been filed by either party, on July 27, the
Board adopted the Regional Director's recommenda-
tions as contained in his report.
On August 9, the Regional Director issued a notice
of hearing which directed the Hearing Officer to take
testimony for the purpose of resolving the issues
raised by the challenges to the ballots of Katie Avant,
Lonnie Cribb, Larry Joe Haselden, and Barbara Cox.
The Regional Director's notice of hearing further
directed the Hearing Officer to prepare and cause to
be served on the parties a report containing resolu-
tions of the credibility of witnesses, findings of fact,
and recommendations to the Board as to the disposi-
tion of said issues.
Pursuant to the Board's order directing a hearing,
and the Regional Director's notice of hearing, a
hearing was held before Hearing Officer Ronald L.
Yost on August 25,'26, and 27, at Florence, South
Carolina. The Petitioner and Employer were repre-
sented by counsel, both of whom participated in the
hearing. Both parties were afforded an opportunity to
be fully heard, to examine and cross-examine wit-
nesses, and to introduce evidence bearing on the
issues . Thereafter, on November 26, 1976, the Hear-
ing Officer issued and served on the parties his
Report and Recommendations on Challenges where-
in he recommended that the challenges to the ballots
cast by Cribb, Haselden, and Cox be overruled and
that the said ballots be opened and counted, but that
the challenge to the ballot cast by Avant be sustained.
Thereafter, the Employer filed exceptions to the
Hearing Officer's recommendation regarding the
Avant ballot.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has reviewed the rulings of the Hearing
Officer made at the hearing and finds that they are
free from prejudicial error. The rulings are hereby
affirmed.
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce and it
will effectuate the purposes of the Act to assert
jurisdiction in this proceeding.
2. The labor organization claims to represent
certain employees of the Employer.
3. A question affecting commerce exists concern-
ing 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.
4. The parties stipulated and we find that the
following employees constitute an appropriate unit
for the purpose of collective bargaining within the
meaning of Section 9 (b) of the Act:
All production and maintenance employees em-
ployed at the Employer's Hemingway, South
Carolina, plant but excluding office clerical em-
ployees, professional employees, guards and su-
pervisors as defined in the Act.
5. The Board has considered the Hearing Officer's
report, the exceptions and brief, and the entire record
in this case and hereby adopts the Hearing Officer's
findings, conclusions, and recommendations only to
the extent consistent herewith.
We do not agree with the Hearing Officer's finding
that Katie Avant is a supervisor within the meaning
of the Act. The record shows that Avant does not
I All dates herein , unless otherwise stated , occur in 1976.
228 NLRB No. 92
ELASTIC POLY HORIZONS CORP.
have the authority to hire, lay off, transfer, promote,
reward, or discharge employees. Avant works in the
put-up and inspection department. Like other em-
ployees, she is paid on an hourly basis and earns only
10 cents more an hour than the next highest paid
employee in the department. Her benefits are the
same as those of the other employees, and she takes
her breaks in the lunchroom with them.
Each day Avant picks up the production slips from
the machines and takes them to the front office where
she obtains the work assignments in the form of
shipping orders. From these orders and her inventory
she knows what is in stock and what has to be put up
and finished and sees that the required styles are
brought from the stockroom. When this task is
completed, she goes into the plant and works wherev-
er she is needed, performing the same tasks as other
employees.
In the afternoon she is responsible for getting the
shipments out. Thus, when she receives the shipping
orders from the front office, she sorts out the boxes of
finished goods , gets the boxes to the ramp , and leaves
them there for the truckdrivers to pick them up. She
has been granted permission by management to work
overtime, if needed , to get the shipments out.
In his report, the Hearing Officer states that the
above-mentioned duties appear to require the exer-
cise of independent judgment . We do not agree. In
this connection, we note that the written work
assignments which are given to her each day from the
front office include a "prioritizing" of the days'
shipments. The decision to fill an order from stock or
to have it manufactured can be determined from a
review of stock records. Her decision to work
overtime is dictated by the need to get shipments out.
Accordingly, we do not find that performance of the
above-mentioned duties are indicative of supervisory
status.
The Hearing Officer also found that Avant has
asked employees to work overtime, granted time off,
and initialed employee timecards. With regard to
overtime , the evidence establishes that there are times
when the need arises to have employees work
overtime . When this occurs, Plant Manager Foshee
makes the decision and on occasion has had Avant
ask other employees to work late. While it is true, as
the Hearing Officer found, that Avant asks employ-
ees to work overtime , in these circumstances she is
871
merely a conduit for relaying Foshee 's wishes.
Accordingly, this factor does not indicate supervisory
authority in Avant.
The Hearing Officer credited the testimony of
employees McCowan and Parrott that Avant is the
one to whom they go to get time off or to verify their
timecards if they have not been punched or are
otherwise incorrect . Avant's testimony , however, is
that in the case of McCowan seeing her about time
off she would merely relay his message to Foshee who
makes the decision . Parrott's testimony was that,
while she would speak to Avant if she wanted to take
a few hours off, if she wanted more than a day off
Avant did not give her an answer immediately. She
did not know whether or not Avant had to go to
Foshee for the authority to let her off in such case. In
these circumstances , we do not believe that Avant's
minor role with these two employees in their getting
time off and in verifying their timecards should be
given more than little weight as indicia of supervisory
authority. Thus, in view of the fact that the evidence
fails to show that she was given any authority by
management, the fact that her interests appear similar
to those of the other employees, and the fact that she
lacked the other customary indicia of supervisory
authority to a substantial degree, we find Avant is an
employee within the meaning of the Act . According-
ly, we shall overrule the challenge to the ballot cast by
her in the election.
DIRECTION
It is hereby directed that, as part of the investiga-
tion to ascertain representation for the purpose of
collective bargaining among the employees of the
Elastic Poly Horizons Corporation , Hemingway,
South Carolina, in the stipulated unit, the Regional
Director for Region 11 shall , pursuant to the National
Labor Relations Board Rules and Regulations, Series
8, amended, within 10 days from the date of this
Decision and Direction open and count the ballots of
Katie Avant, Lonnie Cribb, Larry Joe Haselden,
Barbara Cox, Marilyn Marsh, and Kerris Avant and
cause to be served on the parties a revised tally of
ballots including therein the count of sod challenged
ballots, upon the basis of which he shall issue the
appropriate certification.