Hexacomb Corp.

National Labor Relations Board - Board Decisions

Feb 28, 1994

313 N.L.R.B. 983 (N.L.R.B. 1994)

983
313 NLRB No. 148
HEXACOMB CORP.
1 At the hearing, the Petitioner declined to accept a motion by
Hexacomb to modify the instant petition to state that the Petitioner
wished to represent only ‘‘plant production and maintenance em-
ployees.’’ However, it is clear from the record that office clericals
and all other office employees were intended to be excluded from
the petitioned-for unit.
2 No party asserts that these employees are solely employed by
Hexacomb.
3 Member Truesdale joins his colleagues in applying the
Greenhoot doctrine here. However, he agrees with the Chairman’s
observation in Brookdale Hospital Medical Center, 313 NLRB 63 74
fn. 4 (1993), that in view of the recent trend toward increased reli-
ance on contract labor, ‘‘it may be appropriate for the Board at some
future point to reexamine the continued validity of Greenhoot.’’
Hexacomb Corporation and Western Temporary
Services, Inc., Joint Employers and United Pa-
perworkers International Union, AFL–CIO,
CLC, Petitioner. Case 7–RC–20044
March 3, 1994
DECISION AND ORDER REMANDING
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND TRUESDALE
Upon a petition for election filed under Section 9(c)
of the National Labor Relations Act, a hearing was
held on May 19 and 20, 1993, before a duly des-
ignated hearing officer of the National Labor Relations
Board. On July 22, 1993, pursuant to Section
102.67(h) of the Board’s Rules and Regulations, the
case was transferred to the Board for decision.
Having carefully reviewed the entire record in this
proceeding, including the posthearing briefs filed by
the parties, the Board makes the following findings:
1. The hearing officer’s rulings made at the hearing
are free from prejudicial error and are affirmed.
2. The Employers are engaged in commerce within
the meaning of the Act, and it will effectuate the pur-
poses of the Act to assert jurisdiction.
3. The labor organization involved claims to rep-
resent certain employees of the Employers.
4. A question affecting commerce exists concerning
the representation of certain employees of the Employ-
ers within the meaning of Section 9(c)(1) and Section
2(6) and (7) of the Act.
Hexacomb Corporation (Hexacomb) is a corporation
with a manufacturing facility located in Kalamazoo,
Michigan, and is engaged in the manufacture and non-
retail sale of paper packaging material. Western Tem-
porary Services, Inc. (Western) is a California corpora-
tion with an office located in Kalamazoo where it is
engaged in the operation of a contract temporary em-
ployment agency. At the time of the hearing,
Hexacomb employed 98 employees, excluding super-
visors and including approximately 23 employees sup-
plied by Western. The Petitioner seeks to represent all
full-time and regular part-time production and mainte-
nance employees employed at Hexacomb’s Kalamazoo,
Michigan facility, including those employees supplied
by Western, and excluding office clerical employees,
guards, professional employees, and supervisors as de-
fined by the Act.1
This case presents two issues: (1) Whether a com-
bined unit of employees employed solely by
Hexacomb and employees supplied by Western to
Hexacomb is an appropriate unit for bargaining under
the Act and (2) whether three EDF foremen/assistant
supervisors and one foreman, Gerardo L. (Mick) Gon-
zalez, are statutory supervisors.
1. The Petitioner contends that a combined unit of
Hexacomb employees and employees supplied by
Western is appropriate based on its assertion that
Hexacomb and Western are joint employers.
Hexacomb argues that the unit is inappropriate because
the 2 employers are not joint employers, and that the
23 employees supplied by Western are solely em-
ployed by Western.2 Moreover, it asserts that the two
groups of employees do not share a sufficient commu-
nity of interest to be included in one unit.
It is well established that the Board does not include
employees of joint employers in a unit with employees
of a single employer, absent employer consent. Lee
Hospital, 300 NLRB 947 (1990); and Greenhoot, Inc.,
205 NLRB 250 (1973). It is clear from the record that
neither Hexacomb nor Western has expressed its con-
sent to multiemployer bargaining in the unit sought.
Thus, even if, as contended by the Petitioner,
Hexacomb and Western are found to be joint employ-
ers, the Board would not find appropriate the peti-
tioned-for combined unit. Accordingly, we find it un-
necessary to resolve the issue of whether Hexacomb
and Western are joint employers because, even if such
a relationship were found, we would not find the peti-
tioned-for unit appropriate. See also Hughes Aircraft
Co., 308 NLRB 82 (1992); and International Transfer
of Florida, 305 NLRB 150 (1991).3
2. The Petitioner also contends that Hexacomb’s
EDF foremen/assistant supervisors and foreman Gon-
zalez are statutory supervisors. Hexacomb takes no po-
sition on the issue of these employees’ supervisory sta-
tus.
There are three EDF foremen/assistant supervisors,
all of whom the Petitioner contends are statutory su-
pervisors. Each of these individuals is the foreman
over an EDF panel line. They are experienced EDF
operators whose primary responsibilities include mon-
itoring production and training employees regarding
the use of work procedures. They do not work the line
as a rule unless there is a problem. EDF
foremen/assistant supervisors are supervised by con-
ceded supervisors. As part of their duties, the EDF
foremen/assistant supervisors substitute for their re-
spective supervisors when the supervisors are sick, or
984 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
on vacation or other leave. This situation occurs ap-
proximately 8–10 percent of the time.
Each of the three EDF foremen/assistant supervisors
has approximately 12 employees under him. The three
individuals have no hire, fire, recall, or promotion au-
thority. They can recommend overtime and sign time-
cards verifying time worked for employees to receive
overtime pay. These individuals have the authority to
shift employees around within their respective lines to
get projects done. They also have the authority to call
breaks and shut down machinery in their respective
areas. The EDF foremen/assistant supervisors are hour-
ly paid and basically have the same wages and fringe
benefits as conceded nonsupervisory employees. These
individuals punch in and out like the conceded non-
supervisory employees but, unlike them, do not do so
on breaks. EDF foremen/assistant supervisors do not
independently evaluate employees but rather provide
information to conceded supervisors for their use in
employee evaluations. They have access to keys and
codes, including access to supply cabinets, but do not
have access to the employees’ personnel files.
The record reflects that some EDF foremen/assistant
supervisors have signed reprimand forms constituting
disciplinary action against employees, including em-
ployee suspensions, and that these forms were placed
in the affected employees’ personnel files. However, of
the six forms submitted into evidence, one was issued
by an EDF foreman over the plant manager’s signa-
ture. As to the remaining forms, all but one were
issued at times when the EDF foremen involved were
substituting for their conceded supervisors. The excep-
tion is a reprimand issued in August 1992 by EDF
foreman Gerard Collins.
An individual is a supervisor under Section 2(11) of
the Act if that person exercises any of the supervisory
authority set forth therein with independent judgment.
The Petitioner contends that the EDF foremen/assistant
supervisors are supervisors under the Act because they
exercise independent judgment in assigning and direct-
ing employees in the performance of their work, inves-
tigating situations that result in disciplinary actions
against employees, and reporting employee misconduct
or violations of company rules, including issuing dis-
ciplinary reprimands. After a careful examination of
the facts, we find that the evidence fails to show that
the EDF foremen/assistant supervisors possess any of
the indicia of supervisory authority set forth in Section
2(11) of the Act.
Contrary to the Petitioner’s assertions, there is no
record evidence establishing that these individuals as-
sign work or direct employees with the requisite dis-
cretion or independent judgment. Instead, the evidence
indicates that the EDF foremen/assistant supervisors’
role in assigning and directing employees’ work is lim-
ited primarily to monitoring production and training
line employees. Such duties are more consistent with
their greater experience as EDF operators than evi-
dence of supervisory authority. Nor is there any evi-
dence in the record demonstrating that the EDF
foremen/assistant supervisors exercise independent
judgment when they shift employees around within
their respective lines to get projects accomplished.
Regarding the Petitioner’s contention that the EDF
foremen/assistant supervisors exercise responsibility in
disciplining employees, the reprimand form issued by
an EDF foreman over a conceded manager’s signature
provides no support for the Petitioner’s assertion that
the EDF foreman issued the disciplinary action inde-
pendently. With respect to the remaining forms which
were issued by EDF foremen independently when they
were acting for their conceded supervisors, these do in-
dicate the exercise of supervisory authority under the
Act. However, it is clearly established that an em-
ployee who substitutes for a supervisor may be
deemed a supervisor only if that individual’s exercise
of supervisory authority is both regular and substantial.
Gaines Electric Co., 309 NLRB 1077, 1078 (1992),
and Canonie Transportation, 289 NLRB 299, 300
(1988), citing Aladdin Hotel, 270 NLRB 838 (1984).
As stated above, the record is clear that the EDF
foremen/assistant supervisors substitute for their undis-
puted supervisors only when the supervisors are sick or
on leave, which Hexacomb’s acting plant manager at
the hearing estimated occurred approximately 8–10
percent of the time. Therefore, even if all the EDF
foremen/assistant supervisors exercise statutory super-
visory authority when substituting, their assumption of
supervisory duties is irregular and sporadic, e.g., dur-
ing vacation periods or on other unscheduled occa-
sions, and therefore is insufficient to establish super-
visory authority. Latas De Aluminio Reynolds, 276
NLRB 1313 (1985); and Canonsburg General Hospital
Assn., 244 NLRB 899 (1979).
Finally, there is the one reprimand signed by EDF
foreman Collins which issued in August 1992 at a time
when there is no evidence Collins was substituting for
his supervisor. As this single unexplained reprimand is
an isolated occurrence, we find it insufficient to estab-
lish that EDF foremen/assistant supervisors exercise
supervisory authority.
985HEXACOMB CORP.
Foreman Gonzalez, whom the Petitioner also claims
is a supervisor, is one of Hexacomb’s three foremen
who work on the line. In support of its claim, the Peti-
tioner raises the same arguments as set forth above re-
garding the EDF foremen/assistant supervisors. The
record, however, contains conflicting evidence with re-
spect to Gonzalez’ supervisory authority, i.e., although
Gonzalez apparently issued five reprimands independ-
ently, including three for suspension, the acting plant
manager testified that Gonzalez had no authority to
issue reprimands. This conflict is best resolved after a
full hearing with credibility resolutions. Thus, as to
that individual, we will allow him to vote subject to
challenge in the event an election is ultimately held in
an appropriate unit.
3. As stated above, we find the petitioned-for unit
inappropriate for bargaining. The record indicates that
the Petitioner’s counsel was uncertain when asked at
the end of the hearing whether the Petitioner wished
to proceed in any unit found appropriate other than
that petitioned for. Accordingly, we remand this case
to the Regional Director for further appropriate action
consistent with this decision.
ORDER
It is ordered that this case be remanded to the Re-
gional Director for further appropriate action.