Formco Inc.

National Labor Relations Board - Board Decisions

Feb 14, 1966

156 N.L.R.B. 1471 (N.L.R.B. 1966)

FORMCO INCORPORATED 1471
switchboard for all incoming telephone calls, make reservations, meet,
and register guests, and operate a teletype machine and an NCR post-
ing machine. In addition to these functions, the night auditor also
brings all accounts or room charges up to date each night and posts
this on the bills prepared for the guests. The disputed employees are
under the direct supervision of either the general manager or assistant
manager. While receiving the same benefits as other employees, they
are salaried rather than hourly paid employees. The. desk clerks have
no supervisory authority nor is there any interchange between them
and other employees at the Inn.
The Board has held that front-office or lobby employees are operat-
ing personnel whose work brings them in frequent contact with other
employees in the unit and with the hotel guests. Despite the dif-
ferences in duties, training, and manner of dress from those of other
hotel employees, we find that the front desk clerks, including the
night auditor-desk clerk, are not office clerical or managerial employees
and should properly be included in a unit of operating and main-
tenance hotel employees.12
The record reveals that the assistant manager, the housekeeper, the
head hostess, and the head cook have the right to hire and fire
employees in their departments and can exercise independent judg-
ment in that regard. We therefore find that they are supervisors
within the meaning of the Act and will be excluded from the unit.
Accordingly, we find that the following employees constitute an
appropriate unit for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act :
All hotel maids, hostesses, waitresses, waiters, cooks, dishwashers,
busboys, bartenders, front desk clerks, and the night auditor employed
by Padre Trail Inn, San Diego, California, but excluding all office
clerical employees, guards, watchmen, and supervisors as defined in
the Act.
[Text of Direction of Election omitted from publication.]
22 Southwest Hotels, Inc., 126 NLRB 1151 , 1155-1156.
Formco Incorporated and Carpenters Local Union No. 415 (Mill-
men), United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, Petitioner. Case No. 9-RC-6P34. Febru-
ary 14, 1966
DECISION AND DIRECTION
Pursuant to a stipulation for certification upon consent election,
an election by secret ballot was conducted on March 5, 1965, under the
156 NLRB No. 129.
1472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
direction and supervision of the Regional Director for Region 9. At
the conclusion of the balloting, the parties were furnished with a tally
of ballots which showed that of approximately 84 eligible voters, 80
cast ballots, of which 40 were for the Petitioner, 30 were against the
Petitioner, and 10 were challenged. Nine ballots (including one cast
by one Carroll Dick) were challenged by the Petitioner, and one by
the National Labor Relations Board's agent conducting the election.
The 10 challenges were sufficient in number to affect the results of the
election . No objections were filed to conduct affecting the election or
to the conduct of the election. Thereafter, the Regional Director
investigated the challenges and, on May 3, 1965, issued his report,
recommending that a hearing be held for the purpose of resolving the
issues raised by the challenged ballots. No exceptions were filed to
this report.
On May 19, 1965, the Board directed that the recommended hearing
be held to resolve such issues. The hearing was conducted on June 22,
and July 13 and 14, 1965, before Hearing Officer Edward C. Verst.
All parties participated in the hearing and were given full oppor-
tunity to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues. The Hearing Officer's rulings made
at the hearing are free from prejudicial error and are hereby affirmed.
On August 6, 1965, the Hearing Officer issued and served on the
parties his report and recommendations, finding Carroll Dick to be a
supervisor , as defined in the National Labor Relations Act, as amended,
and recommending that the challenge to his ballot be sustained. He
further recommended that the nine remaining challenges be overruled,
noting, however, that no ruling would be necessary with respect to
such challenges if the Board adopted his recommendation concerning
the disposition of Dick's ballot. The Employer filed timely excep-
tions to the report, with a memorandum in support thereof, limited
to the Hearing Officer's finding that Dick was a supervisor and there-
fore ineligible to vote in the election.'
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the Board has delegated its powers in
connection with this case to a three-member panel [Chairman
McCulloch and Members Fanning and Jenkins].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
I On October 12, 1965, the Board, in the absence of exceptions , issued an order which
adopted pro forma the Hearing Officer's recommendation that the nine challenges to the
ballots of employees other than Dick be overruled . The Board directed that those ballots
be opened and counted , and that a revised tally of ballots be served upon the parties.
The Board reserved its ruling on the. challenge to Dick's ballot pending the outeam¢ Of
the election as shown by the revised tally. That tally showed that of the 80 ballots cast,
40 were for and,39 against the Petitioner , and that the challenge to Dick's ballot remained
determinative and unresolved.
FORMCO INCORPORATED 1473
2. The labor organization involved claims to represent certain
employees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of certain employees of the Employer within the meaning of
Sections 9 (c) (1) and 2(6) and (7) of the Act.
4. We find, in accord with the stipulation of the parties, that the
following employees constitute a unit appropriate for the purposes
of collective bargaining: all production and maintenance employees
of the Employer at 7745 School Road, Cincinnati, Ohio, excluding all
salesmen , office clerical employees, professional employees, guards,
and supervisors as defined in the Act.
5. The Hearing Officer recommended that the challenge to Dick's
ballot be sustained on the ground that, on the election and eligibility
dates, he was a supervisor within the meaning of Section 2(11) of
the Act. He found that Dick possessed authority responsibly to direct
night-shift employees of the Employer's form (formica top) depart-
ment, even though he lacked most of the other statutory criteria of a
supervisor . The Employer, in its exceptions, contends that Dick is
at most one of several senior employees on the night shift who function
as leadmen providing instruction and guidance to new or less experi-
enced employees about production operations, and that he is not a
supervisor.
The evidence shows that, since January 1965, the Employer has
employed 14 or 15 employees on the night shift of the form depart-
ment at a new (School Road) plant location-the only department
there operating on that shift (from 3: 30 p.m. to midnight) .2 Three
or four of the employees on this shift, including Dick, have 2 to 5
years' experience in the Employer's various operations, while the
remainder have only limited service and a minimum amount of experi-
ence. The operations conducted in the form department are core
assembly (preparation of the material to which the formica top is
attached), pressing (fastening formica to the core), routing (making
necessary cutouts for fixtures), mitering and capping (finishing opera-
tions), and packing and shipping. Detailed invoices travel through
these production operations with the tops being manufactured. They
show the dimensions of the tops ordered by the customers, the quality
and the pattern of formica to be used, the fixtures required, and
necessary shipping, instructions. Employees utilize these invoices at
every stage of the operations and initial them as each -operations. is
completed. - On most evenings Assistant Plant Superintendent Bohrer
2 The Employer operates three principal departments , a vanitory (cabinet) department,
where sink and vanity cabinets are made ; a-self edge department where odd shaped formica
tops are made ; and the form top department where standard shaped. formica tops are
produced. At a prior (Highland Avenue) location, all three departments operated on
the night shift as well as the day shift. Everett Foley was the foreman in charge of
production in all three departments on the night shift at this prior" location.
1474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is present on the night shift until 9_or'10,.p.m. Before leaving he,
informs all employees what work is to be accomplished, and what
duties they should perform on other night-shift operations in the,
event-they complete their own. Plant Superintendent Ott performs
identical duties on the night shift one or two evenings a week, usually
on those occasions when Bohrer is absent. Also present on the night,
shift until a few days before the election was Foley, formerly night
foreman of three of the Employer's production departments at a
prior location, whose testimony that he functioned in the same capac-
ity supervising the form department's night shift at the present plant
until about March 1, 1965, is uncontradicted. At the time that, Foley
left the night shift, Ott and Bohrer did not replace him, but decided'
that they.alone could supervise the night shift thereafter, and that in
their absence three senior employees were present to act as leadmem
and assure the orderly continuance of production. At the same time.
they assigned to :the night shift still another senior employee, Bill'
Reynolds. Reynolds was given a key and charged with the responsibil-
ity of closing the new plant each evening.
On the basis of the above evidence, the number of employees on the
night shift, and what he conceived to be Dick's responsibilities and
"apparent authority," the Hearing Officer found that Dick responsibly
directed the work of employees and thus was a supervisor as defined
in Section 2(11) of the Act. He relied principally on the testimony
of Carl Ferrell, an employee in the form department's packing and
shipping operations, to support his finding that Dick responsibly,
directed employees, and was for that reason a supervisor. Ferrell
testified that Dick told him what to do and how to do it, transferred
him from one "department" to another, reprimanded him for excessive
absenteeism to the restroom, and in one instance recommended him
for a raise which he received. However, the record shows that the
transfers were not to another department but were merely from one
form department operation to another, and occurred, at the request
of Dick or the other senior employees in that department, after Ferrell
had completed his own packing duties. While these senior leadmen
requested Ferrell to thus move from one operation to another on occa-
sion, it is evident from the testimony that, this was done because Bohrer
had notified the leadmen on the night shift that 'Ferrell was to keep,
busy; and because all senior employees on the shift were expected by
Ott to assure the continuity of production operations, at night.
Ferrell's own testimony shows that he normally sought guidance and
assistance from any or several senior employees on the night shift.
Thus, when asked from whom he would seek instructions in Bohrer's
absence, Ferrell frankly admitted, "Well, Carrol Dick is one, and
several in my department would tell me." Also, when questioned
about a' shipping problem Ferrell testified, "Well, ... if Mr. Foley
1 ORMCO INCORPORATED 1475,
wasn't there, and I didn't know how to load, I would go to the next,
instructor and ask him." Foley's testimony that he had previously
supervised the night shift of the form department during the period
February 8 to March 1, 1965, is, as heretofore noted, not only uncon-
tradicted, but confirmed by Ferrell's admission that he would. consult
Night Foreman Foley first, and only in Foley's absence would he con.
sult a senior employee about problems arising on the night shift.
Neither does the evidence demonstrate that Dick effectively recom-
mended Ferrell for a raise. Ferrell received a raise shortly after
Dick was expressly requested by Ferrell to tell Bohrer that Ferrell
was performing his duties well. The isolated instance cited fails to,
establish that Dick possessed any general authority to effectively
recommend promotions, especially in view of Ott's testimony that only
Bohrer had the authority to effectively recommend -promotions for
both day- and night-shift employees in the form department, and
that even Bohrer's recommendations were independently investigated
by Ott before they were acted on.
Finally, there is no probative evidence that Dick disciplined Ferrell
for absenteeism to the restroom. Ferrell himself admitted that this
and similar remarks were usually made in a jocular manner and that
he did not know whether Dick was serious about them or not. Such
testimony does not prove that Ferrell was in any manner disciplined
by Dick.
The Hearing Officer's inference that Dick is a supervisor, because.
otherwise Bohrer must be considered to be supervising a dispropor-
tionately large number of night-shift employees, is also misplaced..
In this regard, the evidence shows that all such employees work
directly from and rely almost entirely on detailed and precise invoices.
which provide completely the information necessary to enable them
not only to manufacture and assemble but also to pack and ship finished
formica products. Thus, little detailed supervision of their work is
required. When some guidance or assistance is needed, three senior
employees are present to provide it. In such circumstances, a ratio of
1 supervisor to 12 or 15 production employees does not seem dispro-
portionate or unreasonable.
In our opinion, therefore, it has been established that Dick, an
admittedly experienced employee, possessed or exercised any of the-
indicia of a supervisor at the time of the present election. In sum,,
the most that the evidence shows is that Dick was one of three or four
senior employees on the night shift who served as leadmen instructing
new employees, and familiarizing them with their duties in order to.
assure continuous production of formica products meeting, the Employ-
er's established standards. The entire record fails to establish that
Dick possessed any of the statutory criteria necesary to qualify him as.
217-919-66-vol . 156-94
1476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a supervisor under Section 2(11) of the Act.' Accordingly, we find
that Dick was an employee entitled to vote at the time of the present
election, and hereby overrule the challenge to his ballot. We shall,
therefore, direct that his ballot be opened and counted and a revised
tally of ballots served on the parties, and that the Regional Director
be directed to issue an appropriate certification based on the result
of the election.
[The Board directed that the Regional Director for Region 9 shall,
within 10 days of the date of this Direction, open and count the
ballot of Carroll Dick and serve upon the parties a revised tally of
ballots, and issue appropriate certification.]
a Greenfield Components Corporation, 146 NLRB 757, 759; United States Gypsum Com-
pany, 148 NLRB 1640, 1641-1644.
Formed Tubes Southern , Inc. and Clemon Lauderdale, and Ben-
ford Holdbrooks , and Marvin Shook , and Ronald Glenn. Cases
Nos. 10-CA-6053-3, 10-CA-6053-4, 10-CA-6053-5, and 10-CA-
6053-6. February 15, 1966
DECISION AND ORDER
On November 9, 1965, Trial Examiner Rosanna A. Blake issued her
Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter , Respondent filed exceptions to the Trial Examiner's
Decision and a supporting brief.
. Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with these cases to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudical error was committed. The
rulings are hereby affirmed. The Board has considered the. Trial
Examiner 's Decision and.the entire record in these cases, including the
exceptions and brief, and hereby adopts the findings, conclusions,'
and recommendations of the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order.]
'In the last paragraph of section C, 1, of her Decision , the Trial Examiner speculates
whether sharing something more than a pint of Wild Cat homebrew was sufficient to in-
toxicate Lauderdale . We disavow this unnecessary speculation.
We also disavow the unnecessary speculations of the Trial Examiner in footnotes 6,
15, and 41 of her Decision.
156 NLRB No. 131.