Hollywood Plastics, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1969

177 N.L.R.B. 678 (N.L.R.B. 1969)

678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hollywood Plastics, Inc. and International Union,
United Automobile, Aerospace & Agricultural
Implement Workers of America, and Its UAW
Local 509, Petitioner . Case 21-RC-1 1135
June 30, 1969
DECISION AND DIRECTION
By MEMBERS FANNING, BROWN, AND ZAGORIA
Pursuant to a Stipulation for Certification upon
Consent Election, executed February 17, 1969, an
election was conducted on March 7, 1969, under the
direction of the Regional Director for Region 21
among the employees in an agreed unit . Upon the
conclusion of the balloting, the parties were
furnished with a tally of ballots which showed that,
of approximately 99 eligible voters, 45 cast ballots
for, and 45 against, the participating labor
organization , and 5 ballots were challenged. The
challenged ballots are sufficient in number to affect
the results of the election.
After an investigation, the Regional Director on
March 28, 1969, issued his Report on Challenged
Ballots and Objections, a copy of which is attached
hereto, in which he recommended that the
challenges to the ballots of Rodriguez, Hamai,
Torres, and Manthey should be sustained and the
challenge to the ballot of DeLaunay should be
overruled.' He further recommended that the
Petitioner's objections be overruled in their entirety.
Concerning the challenge to the ballot of Erich
Manthey the Regional Director found that Manthey
is a supervisor within the meaning of the Act and
recommended that the challenge to his ballot be
sustained . Concerning the challenge to the ballot of
Edward DeLaunay the Regional Director found that
DeLaunay is not a supervisor within the meaning of
the Act and recommended that the challenged ballot
be overruled. Having found that the above-sustained
ballot is sufficient in number to affect the results of
the election, the Regional Director recommended
that it be opened and counted, and a revised tally of
ballots be issued in accordance with the results
shown. Thereafter, the Petitioner filed timely
exceptions to the Regional Director's Report and
Recommendation on Objection 3 and the Employer
filed timely exceptions to the Regional Director's
Report and Recommendation on the challenged
ballot of Erich Manthey.
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 this case to a
three-member panel.
Upon the entire record in this case, the Board
finds:
1. The Employer is engaged in commerce within
the meaning of the Act and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The Petitioner is a labor organization claiming
to represent certain employees of the Employer.
3. A question affecting commerce exists
concerning the representation of the employees of
the Employer within the meaning of Sections 9(c)(1)
and 2(6) and (7) of the Act.
4. The parties stipulated, and we find, that the
following employees constitute a unit appropriate
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
All production and maintenance employees
employed at the Employer's facilities located at
4560 Worth Street, Los Angeles, California, but
excluding all office clerical employees,
professional employees, plant guards and
supervisors, as defined in the Act.
5. The Board has considered the Regional
Director's Report and the exceptions and hereby
adopts the Regional Director's findings and
recommendations.2
As we have overruled the challenge to the ballot
of Edward DeLaunay and as such ballot is sufficient
to affect the results of the election, we shall direct
the Regional Director to open and count such ballot
and prepare a revised tally.
'The exceptions raise no material or substantial issues of fact or law
which would warrant reversal of the Regional Director ' s findings and
recommendations
DIRECTION
It is hereby directed that the Regional Director
for Region 21 shall, within 10 days from the date of
this Direction, open and count the ballot of Edward
DeLaunay and thereafter prepare and cause to be
served upon the parties a revised tally of ballots. If
the revised tally discloses that a majority of the
valid votes has been cast for the Petitioner, the
Regional Director shall issue a certification of
representative in accordance with the Board's Rules
and Regulations. If the revised tally of ballots shows
that the Petitioner has not received a majority of the
valid votes cast, the Regional Director shall issue a
certification of results of election in accordance with
the Board's Rules and Regulations.
MEMBER ZAGORIA, dissenting:
For the reasons I expressed in Buzza-Cardozo, A
Division of Gibson Greeting Cards, Inc., 177 NLRB
No. 38, I would find the Employer's conduct of a
raffle objectionable, and would set aside the
election.
'Rodriguez , Hamai, Torres, and Manthey were challenged by the Board
agent on the ground that their names were not on the eligibility list and
DeLaunay's ballot was challenged by the Petitioner on the grounds of
being a supervisor . With respect to Rodriguez, Hamai, and Torres, who
are employed as foremen , the parties signed a stipulation as to their
supervisory status.
REPORT ON CHALLENGED BALLOTS AND
OBJECTIONS
Pursuant to a stipulation for certification upon consent
election executed by the parties on February 17, 1969, an
177 NLRB No. 40
HOLLYWOOD PLASTICS, INC. 679
election by secret ballot was conducted on March 7, 1969,
under the direction and supervision of the Regional
Director, of Region 21, among the employees of the
Employer, in the unit agreed appropriate for the purposes
of collective bargaining .' The tally of ballots which was
served upon the parties immediately following the election
showed the following results:
Approximate number of eligible voters . . 99
Void ballots . . 0
Votes cast for Petitioner . . 45
Votes cast against participating labor organization . . 45
Valid votes counted . . 90
Challenged ballots . . 5
Valid votes counted plus challenged ballots . . 95
The challenged ballots are sufficient in number to affect
the results of the election. On March Il, 1969, the
Petitioner filed timely objections to the election, a copy of
which was timely served upon the Employer. Pursuant to
Section 102.69 of the Board's Rules and Regulations,
Series 8, as amended, the undersigned, after reasonable
notice to the parties to present relevant evidence, has
completed an investigation of the objections and the
challenged ballots, and hereby issues his report thereon.
The Challenged Ballots
The challenged ballots were cast by Henry Rodriguez,
Hiro Hamai , Crecencio Torres, Erich Manthey, and
Edward DeLaunay. Rodriguez , Hamai , Torres, and
Manthey were challenged by the Board Agent inasmuch
as their names did not appear on the list of eligibles
submitted by the Employer. DeLaunay's ballot was
challenged by the Petitioner on the grounds of being a
supervisor.
With respect to Rodriguez, Hamai, and Torres, who
are employed as foremen, the parties have signed a
stipulation reflecting their agreement as to their
supervisory status, and that the challenges to their ballots
be sustained. A copy of the stipulation is attached to this
report as Attachment 1. In accordance with the
investigation and the stipulation, it is recommended that
the challenges to the ballots cast by Rodriguez, Hamai,
and Torres be sustained.
Erich Manthey: In addition to the above three foremen,
the Employer has one other foreman, Erich Manthey.
Manthey is the foreman of the tooling and maintenance
department. The Employer contends that Manthey's status
is different from the status of the other three foremen. It
points out that, while the other foremen have between 12
to 16 men and 1 or 2 leadmen under them, the tooling
and maintenance department consists of only Manthey
and two other men.
The investigation shows that Manthey is the highest
paid of the four foremen, receiving a monthly salary of
$1,005 a month, whereas the other foremen receive about
$850. The tooling and maintenance department is located
in a separate area of the plant . Its function is the making
of tools and the repairing of tools and the plant
machinery. The other two men in the department, Thomas
Hotchkis and Arshog Sarkisan, have worked about 8
'Included . All production and maintenance employees, including shipping
and receiving employees
years in the department, and it appears both are
experienced and skilled employees requiring a minimum of
supervision. Manthey estimates that approximately 90
percent of his time is spent physically working on the
machines and tools, and the "remaining 10% of his time is
divided among other duties. Those duties are ordering new
parts, and tools, and supervision of the other men."'
The evidence shows that, once a week on Monday,
Manthey attends a management meeting which includes
the Employer's president, the production manager, etc. At
this meeting , the repairing and tooling work, other than
emergency work, is reviewed and discussed, and the work
to be undertaken is decided upon. It appears that
Manthey makes recommendations, depending upon the
type of job involved as to whom it should be assigned,
including handling it himself, but his recommendations are
not always followed. On the basis of the assignments
decided upon, an assignment list is made up, which is
posted at Manthey's work bench. On emergency work
that arises during the week, Manthey would be notified by
the foreman of the department involved. Manthey would
then check the machine to see what is required or needed,
and then discuss the matter with the production manager
including what he and the other two men were presently
working on, and who could best handle the emergency
work. Manthey states that, while he may be asked as to
who he thinks should do it, the production manager
makes the assignment.
Every Tuesday, the Employer has a meeting of its
foremen, designated as "Supervisors Training." The three
other foremen regularly attend the meetings. Manthey
attends on an irregular basis. As stated by Assistant
Operations Manager Dominguez: "He is expected to come
if he is not doing something important." It also appears
that Manthey attends other miscellaneous management
meetings . Thus, Manthey states:
Sometime within the last month a meeting was held to
discuss the possible moving around of some of the
departments in the plant. At this meeting there was
Skip Takeuchi [production manager], Dominguez, Tom
Wills, Industrial Engineer, and all the foremen in the
plant . I also attended. This meeting lasted about 1 1/2
hours.
Manthey's affidavit shows that, while, normally, he
obtains prior higher approval before authorizing overtime,
on occasions he has authorized overtime without obtaining
such clearance. The evidence also shows that on occasions
Manthey has corrected the time cards of Hotchkis and
Sarkisan, where they have made a mistake such as they
forgot to clock in or clock out. While there is no evidence
that Manthey has made any recommendation with respect
to hiring and firing, it would appear that, in view of the
small and stable work force, there has been little occasion
or necessity to do so. Prior to his promotion to foreman,
approximately 3 years ago, Manthey worked in the
department as a leadman. On his promotion to foreman,
he was given a wage increase . It appears that there was no
mention made of whether increased authority
accompanied his reclassification. On the other hand, there
is no evidence that at any time the Employer has ever
announced that the authority vested in Manthey is any
different from that given to its other foremen. Under the
circumstances shown, including his participation in
meetings of top management, his salary compared with
other foremen's, etc., the Regional Director concludes that
Excluded: All office clerical employees , professional employees, guards 'Manthey 's affidavit shows that the reference to the "ordering" of parts
and supervisors as defined in the Act, as amended and tools refers to requisitioning , and he does not do any purchasing
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Manthey has the ostensible authority of the other
foremen , and recommends that the challenge to his ballot
be sustained.
Edward DeLaunay: DeLaunay is an hourly rated
employee with the classification of leadman. He is
employed in the warehouse department which is engaged
in the receiving and storage of supplies and material, and
the filling of requisitions for such supplies . There are four
employees in the warehouse department including
DeLaunay . Identified as in charge of warehousing
operation and the supervisor of these four employees is
Hal Blair, who is in charge of procurement . The other
employees in the department besides DeLaunay consist of
a clerk and two employees who drive forklift trucks and
work on the storage and handling of the supplies. The
clerk , Lillian Cook, shares an office with DeLaunay,
which is located adjacent to the warehouse and also used
as a supply room for small hardware . Cook devotes her
full time to the clerical work in the department and
primarily on the records kept in connection with inventory
control . The evidence indicates that, if she has a problem
with her job, she takes the matter up directly with Blair,
rather than through DeLaunay . The two forklift drivers
work almost exclusively on the storage and filling of
requisitions from the production departments for the
plastic compounds used in the Employer ' s operations. The
requisitions are received by DeLaunay and then
distributed to the men apparently on the basis of their
availability . While it appears to be DeLaunay's
responsibility to see that the requisitions are properly
filled , this appears to be a routine and repetitive operation
that requires a minimum of direction or exercise of
judgment . DeLaunay himself handles the filling of
requisitions for small hardware or office supplies. It
appears that a substantial amount of DeLaunay's time is
spent in doing the physical checking and taking inventory
of incoming supplies . He also performs miscellaneous
paper work which apparently is coordinated with the
clerical work performed by Cook.
The Employer and DeLaunay deny that he has any
authority to hire , fire, discipline , etc., or effectively to
recommend such action. DeLaunay has occupied the
position he holds since about 6 weeks prior to the election.
During this period , one of the forklift drivers was hired.
The evidence indicates that DeLaunay did not play any
role in his hiring . It further appears that employees who
have a complaint have been directed to take the matter up
directly with either Blair or the assistant operations
manager . The evidence shows that all decisions with
respect to overtime are made by Blair. DeLaunay states
that he has been specifically instructed by Blair that he
has no authority to check or correct employees ' timecards
and this was to be done only by Blair.
I conclude that the evidence does not support a finding
that DeLaunay has supervisory authority as defined in
Section 2(11) of the Act , and it is recommended that the
challenge to his ballot be overruled.
The Objections
A copy of the Petitioner' s objections, as filed, is
attached to this report as Attachment 2. In substance, the
objections are based upon the following grounds:
( 1) Election notices were not posted.
(2) The announcement that the polls were opened, made
over the Employer's loud speaker , was not heard by
employees in the Company's back building, and as a
consequence many of these employees did not vote.
(3) A raffle conducted by the Employer concurrently
with the election.
Objections ( 1) and (2) are clearly lacking in merit. The
investigation shows five notices of election were posted
around the plant , including the plant bulletin boards on
March 3 , 1969, and remained posted through the election.
Even prior to the posting of the notices of election, an
announcement had also been made by the Petitioner in its
campaign literature on February 19, 1969 , as to the date,
time , and place of the election . The investigation shows
that any announcement made over the Employer's loud
speaker system can be heard by employees in the back
building . Further , there is no evidence that any employee
failed to vote by reason of failure to hear the
announcement . In fact, the investigation shows that only
four eligible employees failed to vote in the election. All
four of them were absent from work on the day of the
election . It is recommended that Objections ( 1) and (2) be
overruled.
Objection (3)
The investigation shows that, on the evening of the day
prior to the election , March 6 , 1969, the Employer
brought into the plant several cartons of groceries, which
were stacked along a wall in the main plant and displayed.
Above the ' cartons , there were posted on the wall, in
Spanish ••and English , the notices that are attached to this
report as Attachments 3, 4, and 5.
The polling of the employees was conducted in two
voting sessions . The first voting session was from midnight
to 12:30 a .m., and the second session , the following
morning, from 9 a . m. to 10 a . m. No announcement other
than that contained in the posted notices was made by the
Employer with respect to the raffle prior to the voting of
the night session . However , after the close of this voting
session , the production manager gave one of the
employees on duty , Angelo Marciento, raffle tickets with
instructions to distribute a ticket to each of the employees
who had voted. Marciento was also furnished a sealed box
for the employees to deposit their raffle tickets . The raffle
ticket consisted of two halves, with duplicating numbers,
with one half being retained by the employee for the
drawing , and the other deposited in the box . Marciento
made the requested distribution . None of the supervisors
accompanied Marciento while he was making the
distribution.
The following morning, and about 10 minutes before
the second voting session was scheduled to open, the
Employer had its telephone operator read the following
announcement over the loud speaker system in English
and Spanish:
In order to encourage everyone to vote, the
Company is holding a raffle. Everyone who votes is
eligible to win bags of groceries . All you have to do is
vote.
Either before you vote or after you vote, pick up
your stubs from Tom Hotchkis at the display and
assembly area.
The drawing will be held today at 12 noon.
Thomas Hotchkis , referred to above, and previously
mentioned in connection with the challenged ballot of
Erich Manthey, had served as the Company' s observer in
the evening session . Hotchkis distributed the raffle tickets
at a table that was set up by the groceries . There is no
evidence that he engaged in any electioneering activity
while passing out the raffle tickets but he merely handed a
HOLLYWOOD PLASTICS, INC. 681
raffle ticket to anyone that presented himself at the table.
He' states that he had been instructed by the Employer's
attorney not to speak to anyone. No check list was
maintained of employees receiving raffle tickets . During
the distribution, the notices (Attachments 3, 4, and 5)
remained posted above the groceries. Hotchkis states that
he passed out the raffle tickets from 9 a.m. until 9:45
a.m., at which time he "went around the shop and made
sure that everyone had a ticket. They all did, so I
surmised that everyone had voted, so I left."
The area in which the groceries were stacked and raffle
tickets distributed during the second voting session is
known as the display and assembly area . It is located near
the front end of the shop of the main plant . The polling
place in which the election was conducted was in another
building in the rear of the main plant. The two buildings
are separated by a yard. Thus, the display area in which
the distribution was carried on would not be in the line of
march of employees going directly to the polling area
from their work stations, or visible from the polling area,
and was separated by a distance of approximately 300
feet. The value of the groceries on which the raffle was
conducted was in the approximate amount of $82.
It is concluded from the evidence and circumstances
shown that the raffle was conducted for the purpose of
electioneering propaganda , and any inducement of
employees to exercise their statutory right to vote in the
election was purely incidental to that purpose.' However,
it is believed that the use of a raffle as a propaganda
gimmick is not a per se basis for setting aside the election,
but would rather depend upon the circumstances involved.
Thus, the employment of propaganda to demonstrate the
amount of dues does not necessarily constitute interference
with the exercise, of a free choice.' Note is made of tthe
fact that obtaining a raffle ticket or the prize was not
contingent upon how the employee voted in the election or
the results.' While the distribution of raffle tickets during
the second voting session is viewed as electioneering while
the polling of the employees is being conducted , it is noted
that such activity was not carried on in the vicinity of the
polling area." Consideration must, however, be given as to
whether a valuation would be placed upon the gift of the
raffle ticket by the employees that would reasonably tend
to have the effect that they would feel an obligation to
vote against the union, or otherwise impair their exercise
of a free choice. The undersigned doubts that a
1-out-of-95-chance to win an $80 prize would tend to have
this effect.'
On consideration of all the facts and circumstances
surrounding . the raffle, it is recommended that the
objection be overruled.
Conclusion
It is recommended that the Petitioner ' s objections be
overruled . It is recommended that the challenges to the
ballots cast by Henry Rodriguez , Hiro Hamai, Crecencio
Torres, and Erich Manthey be sustained , and the
challenge, to the ballot cast by Edward DeLaunay be
overruled . Inasmuch as DeLaunay ' s ballot is sufficient in
number to affect ,the results of the election , it is further
recommended that it be opened and counted, and a
revised tally of ballots be issued in accordance with the
results shown.
As provided in Section 102.69 of the Board ' s Rules and
Regulations, Series 8 , as amended , any party desiring to
take exception to this -report and the recommendations
herein may, within 10 days from the date of issuance of
this report, file with the Board in Washington, D. C.
20570, eight copies of such exceptions . The party filing the
same shall serve a copy thereof upon the other party and
shall file a copy with the Regional Director of Region 21,
National Labor Relations Board , 849 South Broadway,
Los Angeles, California 90014.
'Cf Elgin Butler Brick Company, 147 NLRB 1624, 1627; Austin
Concrete Works, Inc.. 132 NLRB 184, 185.
'Mosier Safe Company, 129 NLRB 747
'See Bordo Products . 119 NLRB 79, 84.
'Harold W Moore & Sons. 173 NLRB No 191; Burson Plant of
Kendall Company, 115 NLRB 1401, 1402
'See Jai Transportation Corp., 131 NLRB 122, 123-124; cf. Teletype
Corporation, 122 NLRB 1594; General Cable Corporation, 170 NLRB
No. 172.