Judd Valve Co., Inc.

National Labor Relations Board - Board Decisions

Mar 4, 1980

248 N.L.R.B. 112 (N.L.R.B. 1980)

112 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Judd Valve Co., Inc. and International Association
of Machinists and Aerospace Workers, AFL-
CIO, Petitioner. Case 17-RC-8784
March 4, 1980
DECISION AND DIRECTION
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUSEDALE
Pursuant to authority granted it by the National
Labor Relations Board under Section 3(b) of the
National Labor Relations Act, as amended, a three-
member panel has considered the determinative
challenged ballot in an election held July 18, 1979,1
and the Regional Director's report and recommen-
dations disposing of same, relevant portions of
which are attached. The Board has reviewed the
record in light of the exceptions 2 and brief and
hereby adopts the Regional Director's recommen-
dations. 3
DIRECTION
It is hereby directed that the Regional Direction
for Region 17 shall, within 10 days from the date
of this Decision, open and count the challenged
ballot of Ed Houser and thereafter prepare and
cause to be served on the parties a revised tally of
ballots, upon which basis he shall issue the appro-
priate certification.
MEMBER JENKINS, concurring:
I agree with my colleagues that Ed Houser is an
eligible voter, but I rely on the fact that his name
was included on a Norris Thermador4 list agreed to
by the parties. The parties entered into a factual
The election was conducted pursuant to a Stipulation for Certifica-
tion Upon Consent Election. The tally was 8 votes for, and 7 against, the
Petitioner; there was I challenged ballot, a sufficient number to affect the
results.
2 The Petitioner states in its exceptions, inter alia, that the Regional
Director failed to contact an employee who was willing to give a sworn
affidavit. The Petitioner has therefore attached to its exceptions a signed
statement prepared by the employee for Board consideration. The Na-
tional Labor Relations Board Rules and Regulations, sec. 102.69(g), states
in pertinent part that:
. . a party filing exceptions to a regional director's report on objec-
tions or challenges, a request for review of a regional director's deci-
sion on objections or challenges, or any opposition thereto, may
append to its submission to the Board copies of documents it has
timely submitted to the regional director and which were not includ-
ed in the report or decision.
In the instant case the Petitioner has failed to state when the employ-
ee's name was given to the Regional Director and why the signed state-
ment was not submitted to the Regional Director. In light of these cir-
cumstances, we will not now consider the contents of the submitted state-
ment.
3 In adopting the Regional Director's finding that the parties' stipula-
tion was not dispositive of Houser's eligibility, Chairman Fanning notes
that he does not regard the Board as bound by parties' stipulations on
issues of supervisory status. See Laymon Candy Company, 199 NLRB
547, fn. 2 (1972), and Chairman Fanning's dissenting opinion in Cruis
Along Boars, Inc., 128 NLRB 1019 (1960).
4 Norris Thermador Corporation, 119 NLRB 1301 (1958).
248 NLRB No. 18
stipulation as to the duties and authority of Houser
and other individuals, and the instant case is readily
distinguishable from Laymon Candy Company, 199
NLRB 547 (1972), where the stipulation or agree-
ment was only as to the ultimate legal question of
eligibility to vote. Therefore, I see no reason to
depart from our general policy that preelection
agreements be accorded finality.
APPENDIX
Background
The Employer is engaged in the manufacture of check
valves at its facility located in Caney, Kansas. It main-
tains a two shift operation employing a total of approxi-
mately 17 employees. Of that number, approximately 11
work the day or first shift under the supervision of
Frank Wise, General Foreman, who in turn is under the
direction of Al Nitz, Vice President and General Man-
ager. Approximately 6 employees work on the second
shift including Ed Houser, leadman, whose ballot was
challenged by the Union with the contention that Houser
possesses certain supervisory responsibilities.
The investigation discloses that the election agreement
in this matter was obtained at the pre-hearing conference
on June 23. The Petitioner was represented by Harold
Lorenz, Grand Lodge Representative of Bridgeton, Mis-
souri. He was accompained by Larry Downing, a Cof-
feyville, Kansas, representative of the Union, and 3 em-
ployees of the Employer. The principal representative
and spokesman for the Employer was Carl D. Hall, Jr.,
Attorney. At this conference the parties reached an
agreement on a Stipulation For Certification Upon Con-
sent Election. The agreement included the signing of a
Norris Thermador list of the names of eligible voters,
purportedly resolving all issues of eligibility. The name
of Ed Houser was included on that list.
The investigation further reveals that the issue of
Houser's eligibility was the principal topic of discussion
between the parties prior to their reaching agreement.
Carl Hall, in a position letter dated July 25, states that
Lorenz and his party caucused for approximately 15 or
20 minutes after receiving a list of employees that the
Employer considered eligible. Upon returning to the
meeting room, Lorenz raised the question about Houser's
status. Thereafter, upon assurances by Hall that Houser
was a leadman and did not possess supervisory authority,
Lorenz signed the election agreement. He also approved
the Norris Thermador list with Houser's name on it and
agreed that the employees named
not have the authority to hire, or fire or to effec-
tively recommend such action; that they do not re-
sponsibly direct or assign work to employees, such
assignment being of a responsible nature, nor do
they otherwise meet any of the criteria which
would make them supervisors as such term is de-
fined in Section 2(11) of the Act.
Consequently, the Employer argues that the Petitioner
was presented ample opportunity to investigate the em-
3 119 NLRB 1301.
JUDD VALVE CO., INC. 113
ployment status of Houser and, after having done so, en-
tered into an agreement that should be regarded as final
and binding. The Petitioner relies upon Cruis Along
Boats, Inc., 128 NLRB 1019 (1960), and argues that the
holdings therein which admittedly refer specifically to
stipulations entered into between the parties at formal
hearings should also apply to stipulations where, as here,
the matter at issue was discussed by the parties prior to
the reaching of agreement.
With respect to the Employer's position, the Petitioner
argues (1) that Houser's responsibilities were expanded
between the date of signing of the agreement and the
date of the election, and (2) the Petitioner discovered
evidence of Houser's supervisory status in the post agree-
ment period prior to the election. Curiously, Petitioner's
principal witnesses to support its present position were
the potential employee witnesses for Petitioner at the
pre-hearing conference. The Employer maintains that no
changes in Houser's status occured during the interim
period, that Petitioner was made fully aware of the facts
of his status, and that he voluntarily entered into the
agreement.
Under all the circumstances of this matter the Employ-
er's position contains considerable appeal. 4 Nevertheless,
recent Board findings relating to challenges of voters as
supervisors despite a Norris-Thermador agreement hold
that the final issue of eligibility is to be decided upon the
facts surrounding that voter's status thther than upon the
finality of the agreement between the parties. See Pilgrim
Foods, Inc., 234 NLRB 136 (1977), wherein the Board
stated in footnote 5:
Since the question of Basha's eligibility based on
whether he was a regular or casual part-time em-
ployee does not involve a statutory exclusion, but
rather a determination of his community of interests
with other employees in the unit, no circumstances
are presented warranting depature from the Board's
practice of honoring the Norris Thermador list. Prior
Aviation Service, Inc., 220 NLRB 460, 461 (1975).
The Investigation
Because of the position it has taken with regard to the
validity of the Norris Thernador List, the Employer has
declined to submit any specific evidence relating to
Houser's status. The Petitioner has provided several wit-
nesses in support of its position, including the testimony
of its potential witnesses.
Initially Houser indicated a willingness to provide
sworn evidence relating to his employment duties and
status, but subsequently declined to do so. Nevertheless,
Houser has informally stated that:
4 In this regard see the dissenting opinions of Board Members Kenne-
dy and Penello in Laymon Candy Company, 199 NLRB 547:
We see no reason for the Board's past practice of honoring agree-
ments concerning eligibility reached at a hearing but failing to
accord finality to similar agreements in a consent election situation.
The considerations set forth in Cruis Along Boats are equally, if not
more, applicable to the consent election in order to encourage expe-
ditious resolution of questions concerning representation To pre-
clude [a stipulated agreement] disposing of unit placement or eligibil-
ity issues ignores the realities inherent in the informal resolution of
such questions and strikes at the very heart of the consent election
system.
(1) He is hourly paid and punches a time card.
(2) He receives his work assignments from job
cards filled out daily by Frank Wise, as do all the
other 2nd shift employees.
(3) He has never been given authority to hire,
fire, discipline or reward other employees and has
not recommended such action. The only time he
has been asked for a recommendation by the com-
pany on a prospective employee was when he was
specifically named as a reference by the employee.
(4) When he was named second shift leadman, he
was assigned to train new employees and assist
them based upon his experience, but he spends
almost all of his time in his own work which is no
different from that of the other employees.
(5) He works the same hours and enjoys the same
benefits as other employees.
(6) If problems arise on the second shift, the stan-
dard procedure is to contact Al Nitz or Frank
Wise.
Testimony obtained from a second shift employee cor-
roborates the fact that Houser, like other second shift
employees, punches a time card. Houser does not have a
desk or office, and works off a job card like other em-
ployees. Frank Wise assigns work to second shift em-
ployees and he is generally present for the first 30 to 45
minutes of the second shift. When problems arise on the
second shift, Houser contacts either Al Nitz or Frank
Wise. Disciplinary matters are handled by Al Nitz. Per-
mission for timeoff is obtained from Nitz or Wise.
Another second shift employee corroborates the duties
of Houser described above. He confirms that Frank Wise
has counseled another second shift employee concering
work related problems. He estimates that Houser spends
about 75% of his time in production.
The bulk of Petitioner's evidence is from three first
shift employees and Larry Downing, the Petitioner's
local Coffeyville, Kansas, representative. Downing re-
lates a casual conversation he had with Houser at the lat-
ter's home on July 13. Houser remarked that he had a
fine group of employees working under him. Houser, in
speaking of one former employee, stated that he and Al
Nitz had discussed the situation and they didn't have any
choice but to fire him because of his attitude, his failure
to work Saturday and his failure to perform sufficient
work.
With regard to the evidence supplied by first shift em-
ployees, it is summarized as follows:
(a) Houser reports about 45 minutes early each
day to talk to Wiser or Nitz.
(b) When Wise is absent, Houser arrives early
and replaces him. (A month and a half ago both
Wise and Nitz left the premises. Houser came in
around 2:00 p.m. and sat in the office where Wise
usually sits. He did not run any machine. Houser
also came early on July 27 when Frank Wise was
not present and stayed in Al Nitz's office until 3:30
p.m. (quitting time for the first shift).)
(c) First shift employees state that Houser leaves
notes for Wise in Wise's office. One recent note
stated that Don Mann had gone home early, around
JUDD VALVE CO. INC.
114 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8:00 a.m. Others relate to production and the ma-
chines.
(d) About two months ago Houser told one
second shift employee to take another employee to
the hospital. (The investigation reveals that the hos-
pital bound employee had severed two fingers while
working and that Houser had called an ambulance,
but it was late in coming and the other employee
volunteered his car. Al Nitz met the employees at
the hospital.)
(e) Houser hands out the weekly paychecks to
second shift employees.
(f) Houser has been heard by first shift employees
at shift change to ask if second shift employees
were having any problems.
(g) Houser's initials have been noticed on the
time card of a second shift employee who hadn't
timed in properly on a job.
(h) Wise opens the plant each morning and
Houser locks it each night at midnight.
(i) Houser keeps a list of employees' tool needs
on the second shift and notifies Wise.
It is noteworthy that the Petitioner's witnesses are in
general first shift employees who do not closely observe
Houser while he is performing his duties. The fact that
Houser reports early each day for work simply supports
to the contention that he is closely supervised by Al Nitz
and Frank Wise. The sporadic exercise of supervisory
authority as described herein and attributed to Houser
when Wise is absent, is not sufficient in itself to establish
Houser as a supervisor. Willis Shaw Frozen Food Express,
Inc., 173 NLRB 487 (1968), and Scott Paper Company,
171 NLRB 821 (1968).
At best the evidence establishes that Houser acts as a
conduit to management for the second shift. Job assign-
ments for Houser and other second shift employees are
actually made by Wise. Houser notifies either Wise or Al
Nitz when anything unusual occurs. He is hourly paid
and receives the same benefits as other employees. The
principal distinctions between Houser and other employ-
ees on the second shift are that he comes in early each
day to discuss the plant procedure with management,
and, that by virtue of his expertise, he is relied on by
management to lend technical assistance to his fellow
employees. Under these circumstances, I conclude that
Ed Houser is an eligible voter and therefore recommend
that the challenge to his ballot be overruled; that his
ballot be opened and counted at a time and place desig-
nated by me; that a revised tally of ballots be served
upon the parties; and that thereafter an appropriate certi-
fication be issued.