J.C. Brock Corp.

National Labor Relations Board - Board Decisions

Jun 27, 1994

314 N.L.R.B. 157 (N.L.R.B. 1994)

157
314 NLRB No. 34
J. C. BROCK CORP.
1 In the absence of exceptions, we adopt pro forma the hearing of-
ficer’s recommendation to approve the withdrawals of the challenges
to the ballots of Ross McMillan and Michael Taseuski, and to over-
rule the challenges to the ballots of Albert Richardson and Stanley
Ziafert.
2 These temporary employees, who were supplied by various tem-
porary agencies, were not employees of the Employer and were not
eligible to vote in the election.
3 Although the hearing officer found that Sahm was assigned to the
greens line on the second shift, there is no support in the record for
this; rather, it appears that Sahm was assigned to both the pack and
prep lines on the second shift. The greens line was operated only
occasionally on the second shift; it is possible that Sahm also served
as the line coordinator trainee on the greens line on such occasions.
4 The hearing officer also noted that the line coordinators have
many similarities with the unit employees, such as being paid hour-
ly, being generally in the same wage range, receiving many of the
same fringe benefits, using the same timeclocks, working the same
hours, and receiving the same evaluations and employee handbook.
J. C. Brock Corporation and District Union Local
One, United Food and Commercial Workers
International, AFL–CIO–CLC, Petitioner. Case
3–RC–9916
June 27, 1994
DECISION, DIRECTION, AND ORDER
BY MEMBERS STEPHENS, DEVANEY, AND COHEN
The National Labor Relations Board has considered
determinative challenges in an election held October
29, 1992, and the hearing officer’s report recom-
mending disposition of them. The election was con-
ducted pursuant to a Stipulated Election Agreement.
The tally of ballots shows 55 for and 52 against the
Petitioner, with 7 challenged ballots, a number suffi-
cient to affect the results.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has reviewed the record in light of the
exceptions and briefs and adopts the hearing officer’s
findings and recommendations1 only to the extent con-
sistent with this decision. Contrary to the hearing offi-
cer, we find, for the reasons set forth below, that line
coordinators Beverly Burse, Stanley Fulgham, and
Diane Sahm are not supervisors within the meaning of
Section 2(11) of the Act, and thus that the challenges
to their ballots should be overruled.
The Employer operates a fresh precut vegetable
processing plant. Employees process a variety of raw
vegetables through several different processing lines.
The production process starts at the ‘‘prep’’ lines,
where the produce is washed and cut or hand trimmed,
and the produce is then sent to the ‘‘pack’’ lines,
where it is weighed and packaged. There is also a sep-
arate ‘‘greens’’ production line, at which employees
wash, grade, and package spinach, kale, and beet
greens.
Lead Line Coordinator Diane Burse was one of two
line coordinators assigned to the day-shift pack lines,
which have approximately 40 employees, including ap-
proximately 10 temporary employees.2 Production Su-
pervisor Donna Kubiak had overall responsibility for
the operation of both the prep and the pack lines on
the day shift.
Line coordinator Stanley Fulgham was assigned to
the day-shift ‘‘greens’’ production line, which had ap-
proximately 30 employees, including approximately 4
or 5 temporary employees. Production Supervisor
David White had overall responsibility for the oper-
ation of this line on the day shift.
Line coordinator Trainee Diane Sahm was assigned
to the pack and prep lines on the second shift,3 which
had approximately 25 employees, including approxi-
mately 10 temporary employees. Production Supervisor
Bill Keller had overall responsibility for the operation
of all production lines on the second shift.
The hearing officer found that Burse, Fulgham, and
Sahm were not directly involved in the hiring, firing,
layoff, recall, promotion, or disciplining of employees.
He also found that they did not assign overtime or
schedule time off, and that they were not involved in
the call-in procedure regarding absences.4
The hearing officer concluded that Burse, Fulgham,
and Sahm were statutory supervisors based on his find-
ing that they were sufficiently responsible for the work
of the employees. The hearing officer noted that even
if an individual directs work, that individual will not
be found to be a supervisor if the work is of a routine
and repetitive nature. He found that here, however, the
production operation was not a classic industrial fac-
tory situation with rigid work schedules and long rou-
tine production runs, but rather was a fast-moving,
flexible operation that processed various types of
produce for many different customers. The hearing of-
ficer noted that while the actual production work itself
was simple and unskilled in nature, the production
process was dynamic rather than static, and required
hands-on supervision. He noted that product changes
were frequent, new orders were received throughout
the shifts, and the work was not finished until the or-
ders for a particular shift were filled. He also observed
that Burse, Fulgham, and Sahm worked closely with
the production supervisors to ensure that the work got
done, and that they were responsible for keeping the
production lines moving. He found that they independ-
ently transferred employees for both production and
personnel-related reasons, and that employees were re-
quired to obey them upon pain of discipline. He fur-
ther noted that employees went to either these line co-
ordinators or to the production supervisors, depending
on who was available, with work-related questions.
It is well established that the possession of any one
of the indicia specified in Section 2(11) of the Act is
158 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Bowne of Houston, 280 NLRB 1222, 1223 (1986).
6 Ibid.
7 Although the hearing officer stated that employees were required
to obey the line coordinators on pain of discipline, we note that the
discipline emanates from the production supervisors, not from the
line coordinators. As noted above, the hearing officer found that the
line coordinators did not have authority to discipline employees.
8 Clark Machine Corp., 308 NLRB 555, 555–556 (1992).
9 Esco Corp., 298 NLRB 837, 839 (1990).
sufficient to confer supervisory status on an employee,
provided that authority is exercised with independent
judgment on behalf of management and not in a rou-
tine manner.5 Thus, the exercise of some otherwise su-
pervisory authority in a merely routine, clerical, per-
functory, or sporadic manner does not confer super-
visory status on an employee.6
Contrary to the hearing officer, we find that the
record indicates that the Employer’s production proc-
ess is routine, and that the level of authority exercised
by Burse, Fulgham, and Sahm does not involve the use
of independent judgment necessary for a finding of
statutory supervisory status.
Regarding Burse, she testified that her primary job
was to help keep the production lines moving in order
to maintain production. At the beginning of the day,
she and several production employees help prepare the
pack lines for the day’s production. Once production
starts, she watches the lines to make sure that the right
product is being processed for the right customer; she
does this by checking product labels and tags and com-
paring them to production order sheets. She also fills
out ‘‘time study records,’’ which state what product is
running, how many cases are being produced, and how
many people are working on that product; it takes her
several minutes to fill out this form, and she repeats
this process every 15 minutes. She also helps Produc-
tion Supervisor Kubiak prepare the cut list of produc-
tion orders, or does this herself when Kubiak is other-
wise busy. She is also responsible for relieving produc-
tion line employees for bathroom or other short breaks,
by either performing the relieved employee’s job her-
self or finding another employee to do it. Burse nor-
mally does not have authority to send employees home
early without first checking with Kubiak, although she
has done so in emergency situations such as employee
illness. She also has the authority to move employees
to different places on the lines without first checking
with Kubiak, for both production reasons, such as
when there is a need for a larger quantity than usual
of a certain vegetable, and personnel reasons, such as
when two employees are not getting along. If an em-
ployee refuses to go to where Burse wants to send him
or her, Burse then calls Kubiak.7
In finding that the Employer’s production process is
routine and that Burse’s authority does not involve the
exercise of independent judgment, we note the fol-
lowing. Although Burse testified that if an employee
does not know where to go in the morning she will di-
rect him or her based on where there is an empty spot
on the line, she also stated that most of the employees
know by experience where on the lines they are sup-
posed to work. Regarding the product changeovers
cited by the hearing officer as evidence of the Employ-
er’s dynamic production process, where different prod-
ucts are produced on the same line, Burse testified that
‘‘it’s an automatic system, usually . . . everybody
knows the system. We go from carrots to carrot sticks,
then you go to carrot chips, then you go to
veg[etables]. . . . It’s just a routine thing every day.’’
She also testified that a majority of employees stay on
the same line all day, but that some employees, par-
ticularly those on the broccoli and celery lines, do
change lines during a product changeover; and that
those employees generally know automatically when to
switch to another line once they are finished with a
particular vegetable, without her direction. As Burse
testified,
they [the employees] know when we finish the
order. See, we have two different lines. And one
line we usually just run celery on it because we
can only cut celery on this line. And all it is, is
when we finish doing celery, all they do is turn
around to another line, which we run broccoli and
cauli on. . . . They automatically switch over
when the order is finished.
Thus, it appears that these changes were largely rou-
tine and involved nothing more than stepping from one
line to another, and thus required little actual direction.
Although Burse stated that most employees knew
where to go during these changeovers, when asked at
the hearing what happened if someone did not know
where to go, Burse replied, ‘‘Well, I usually tell them
or somebody on the line, you know, says okay, we’re
doing broccoli now, or cauli now.’’
We find that Burse’s testimony indicates that the
Employer’s production process is routine and that the
employees generally need little direction in performing
their duties. We also find, based on the above testi-
mony, that Burse’s authority regarding moving em-
ployees to different positions or telling them where to
go is a function of routine work judgment and not a
function of authority to use the type of independent
judgment required of a statutory supervisor.8 Her au-
thority is based on the need to get work done, and
does not usually involve a judgment of employees’
skill levels.9 We also note that it is undisputed that the
production supervisors spend a majority of their work-
day on or near the production area and can be easily
paged, if needed.
Regarding Fulgham, the hearing officer found that
Fulgham’s testimony closely paralleled that of Burse
concerning his duties and responsibilities. Specifically,
159J. C. BROCK CORP.
10 Keller stated that although he thought it was a line coordinator’s
responsibility to move people from one line to another, Sahm was
not yet at the point of doing that.
11 In this regard, the hearing officer stated Production Supervisor
Kubiak would directly supervise approximately 70 employees, Pro-
duction Supervisor White would directly supervise approximately 30
employees, and Production Supervisor Keller would directly super-
vise approximately 25 employees.
12 Although Fulgham did not attend any management meetings, the
hearing officer noted that Fulgham was absent from work during
much of the time period that these meetings took place.
13 St. Alphonsus Hospital, 261 NLRB 620, 626 (1982).
the hearing officer noted that Fulgham has the author-
ity to move employees to where he determines they are
needed in order to facilitate production; he has occa-
sionally separated employees who were having prob-
lems working together; and he works closely with Pro-
duction Supervisor White to ensure that the production
line keeps moving while maintaining acceptable prod-
uct quality. Further, the hearing officer noted that al-
though the greens line does not have the product
changeovers that the pack and prep lines have, bag la-
bels on the greens line are frequently changed because
of the Employer’s various customers. Fulgham testified
that employees working on the greens line know where
they are supposed to go on the line and go there auto-
matically, although occasionally Fulgham or White
would assign a temporary employee who did not know
where to go to a position based on where the line was
short. If an employee refuses his directives, Fulgham
will report the problem to White. Fulgham also stated
that on all occasions where employees request to go
home early, he first tells White, who then makes the
decision.
Thus, given that Fulgham’s responsibilities are simi-
lar to those of Burse, we find, for the reasons cited
above in our discussion of Burse, that Fulgham’s au-
thority over employees is routine and does not involve
the use of independent judgment which is necessary
for a finding of supervisory status. In fact, the greens
line appears to involve an even more routine produc-
tion process than the pack and prep lines, as there are
no product changeovers and Fulgham testified that
when the bag labels are changed, no employees move
at that time.
Sahm was promoted to her current position as a line
coordinator trainee on the second shift on June 15,
1992. Sahm was told by her production supervisor,
Keller, that she would be a trainee for about a year be-
fore becoming a regular line coordinator. The hearing
officer found that Sahm’s testimony regarding her du-
ties and responsibilities closely paralleled that of Burse
and Fulgham, noting that she transferred production
employees for work-related reasons after first checking
with Keller most of the time, that she corrected em-
ployees concerning work problems, and that she gen-
erally had the responsibility, along with Keller, to keep
production moving. If an employee wished to leave
work early for any reason, Sahm would tell the em-
ployee to ask Keller.
The record indicates that Sahm has the least amount
of authority of the three line coordinators at issue here.
Although the hearing officer stated that Sahm trans-
ferred employees after checking with Keller ‘‘most’’ of
the time, Sahm testified that Keller would make the
decision about whether to move employees and which
employees to move, and she simply followed his in-
structions; she stated that she never moved employees
without receiving Keller’s permission first. Keller es-
sentially corroborated this testimony, stating that he
would tell her to move people, and if she thought there
had to be a move, she would tell him first and if he
agreed, then she would move them.10 Thus, unlike
Burse and Fulgham, Sahm does not even have the au-
thority to move employees on the production lines
without checking with her production supervisor first,
and thus she clearly does not possess any of the indicia
necessary for a finding of statutory supervisory status.
Moreover, even assuming arguendo that she could
move employees on the production lines like Burse
and Fulgham, we find, for the reasons stated above,
that such authority would be routine and would not in-
volve the use of independent judgment which is nec-
essary for a finding of supervisory status.
The hearing officer, while noting that the Board
does not rely on secondary indicia of supervisory sta-
tus alone to determine such status, found that an anal-
ysis of the secondary indicia here supported a finding
that Burse, Fulgham, and Sahm are statutory super-
visors. In this regard, the hearing officer relied upon
the following: that Burse, Fulgham, and Sahm have
routinely made changes on employees’ timecards when
they corrected various errors made by employees in
punching on or off duty; that the supervisor/ nonsuper-
visor ratio would be highly unrealistic given the Em-
ployer’s production process if the line coordinators
were not found to be supervisors;11 that Burse and
Sahm have attended supervisor and/or management
meetings;12 that under some circumstances these line
coordinators have authority to permit employees to
leave work early; and that these line coordinators have
the authority to resolve employees’ squabbles.
As noted by the hearing officer, when there is no
evidence that an individual possesses any one of the
several primary indicia for statutory supervisory status
enumerated in Section 2(11) of the Act, the secondary
indicia are insufficient by themselves to establish statu-
tory supervisory status.13 Thus, because we find, con-
trary to the hearing officer, that the line coordinators
did not possess any of the primary indicia of super-
visory status, we find it unnecessary to consider the
secondary indicia relied on by the hearing officer.
Moreover, even if we were to consider these second-
ary indicia, we would not find them to be indicative
160 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 Clark Machine, supra, 308 NLRB at 556.
15 Hydro Conduit Corp., 254 NLRB 433, 441 (1981); Sears, Roe-
buck & Co., 292 NLRB 753, 756 (1989).
16 McCollough Environmental Services, 306 NLRB 565, 566 fn. 5
(1992); Hydro Conduit, supra at 439.
of supervisory status under the facts of this case. For
example, regarding the authority to make changes to
employees’ timecards, we find that the record indicates
that the line coordinators would mark the cards only
to correct mistakes made by the employees, such as
when an employee would forget to punch in or out for
lunch or would double punch his card. Thus, no inde-
pendent judgment was exercised by the line coordina-
tors in correcting such mistakes.14 Regarding Burse’s
and Sahm’s attendance at supervisory and/or manage-
ment meetings, the record indicates that the supervisors
have production meetings every day which Burse and
Sahm do not attend. Burse and Sahm have attended
only a few meetings during the busy holiday season
which all the supervisors, line coordinators, schedulers,
and the produce buyer have also attended in order to
ensure that sufficient product was available. Such in-
frequent attendance at meetings for which it has not
been shown that personnel or work policies were dis-
cussed does not indicate supervisory status. Regarding
the ratio of supervisors to nonsupervisors if the line
coordinators are not found to be supervisors, we note
that such ratios are not determinative of supervisory
status, particularly when the work to be supervised is
routine.15 Finally, regarding the authority to permit
employees to leave work early, it appears that only
Burse has exercised this authority without first receiv-
ing approval from her production supervisor, and then
only in cases of an emergency, such as an employee
being sick. Such authority to permit an employee to
leave work early in the case of an emergency is not
determinative of supervisory status.16
Thus, we conclude that the Petitioner has not met its
burden of establishing that Burse, Fulgham, and Sahm
were supervisors within the meaning of Section 2(11)
of the Act. Rather, we find that the evidence shows
that the Employer’s production process was routine,
and that the authority possessed by Burse, Fulgham,
and Sahm was exercised in a routine manner, and thus
was insufficient to establish supervisory status under
the Act. We, therefore, find that Burse, Fulgham, and
Sahm are not statutory supervisors and conclude that
the challenges to their ballots should be overruled.
DIRECTION
IT IS DIRECTED that the Regional Director for Re-
gion 3 shall, within 14 days from the date of this Deci-
sion, Direction, and Order, open and count the ballots
of Beverly Burse, Stanley Fulgham, Diane Sahm, Al-
bert Richardson, Stanley Ziafert, Ross McMillan, and
Michael Taseuski, and thereafter prepare and cause to
be served on the parties a revised tally of ballots, on
the basis of which he shall issue an appropriate certifi-
cation.
ORDER
It is ordered that this proceeding is remanded to the
Regional Director for Region 3 for further processing
consistent with this decision.