Keeler Brass Co.

National Labor Relations Board - Board Decisions

Feb 19, 1991

301 N.L.R.B. 769 (N.L.R.B. 1991)

769
301 NLRB No. 114
KEELER BRASS CO.
1 In a letter dated December 19, 1990, the Union requested leave to with-
draw the election petition in Case 7–RC–18961. On January 22, 1991, the Re-
spondent-Employer filed an opposition to the Union’s request to withdraw the
election petition. On February 1, 1991, the Union filed a reply to the Respond-
ent-Employer’s opposition.
As it has been more than 1 year since the June 29, 1989 election, and there
is no showing of an attempt to circumvent the intent of Sec. 9(c)(3) of the
Act, the Union’s request is granted. Accordingly, we will sever Case 7–RC–
18961 and remand it to the Regional Director of Region 7 for further appro-
priate action.
1 All dates are in 1989 unless otherwise noted.
2 A complaint also issued in Case 7–CA–28793; however, the matters raised
by that case were settled during this trial and will not be discussed. This settle-
ment also disposed of all but allegation 8(f) of the complaint in Case 7–CA-
29260.
3 The Respondent has filed a motion to correct transcript dated December
6, 1989, which is incorporated herein by reference and granted.
Keeler Brass Automotive Group, a Division of
Keeler Brass Company and K B Lighting, a
Joint Venture of Keeler Brass Company and
Robert Puckett and International Union,
United Automobile, Aerospace and Agricul-
tural Implement Workers of America (UAW),
AFL–CIO. Cases 7–CA–28793, 7–CA–29260, 7–
CA–29364, and 7–RC–18961
February 19, 1991
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On April 10, 1990, Administrative Law Judge Wal-
lace H. Nations issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order.1
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Keeler Brass Automotive
Group, a Division of Keeler Brass Company and K B
Lighting, a Joint Venture of Keeler Brass Company,
Grand Rapids, Michigan, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order.
IT IS FURTHER ORDERED that Case 7–RC–18961 is
severed from Cases 7–CA–28793, 7–CA–29260, and
7–CA–29364, and is remanded to the Regional Direc-
tor for further appropriate action.
Richard F. Czubaj, Esq., for the General Counsel.
David E. Khorey, Esq. and Gary P. Skinner, Esq., of Grand
Rapids, Michigan, for the Respondent.
Michael L. Fayette, Esq., of Grand Rapids, Michigan, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
WALLACE H. NATIONS, Administrative Law Judge. Inter-
national Union, United Automobile, Aerospace and Agricul-
tural Implement Workers of America (UAW), AFL–CIO
(Union or UAW) filed charges against Keeler Brass Auto-
motive Group, a Division of Keeler Brass Company and
K B Lighting, a joint venture of Keeler Brass Company (Re-
spondent, Employer, or Keeler Brass) on May 10 and June
13, 1989.1 Based on these charges and objections to an elec-
tion, and certain challenged ballots, the Regional Director for
Region 7 issued a complaint in Cases 7–CA–29364 and 7–
CA–29260 as well as his report on objections and determina-
tive challenged ballots and his order consolidating these mat-
ters.2 The complaints allege that Respondent violated Section
8(a)(1) of the National Labor Relations Act (Act) by the ac-
tions of its employees Lori Lotterman and Bruce Houseman.
These alleged unfair labor practices are also the subject of
objections to an election held June 29, and there are several
other objections as well as challenged ballots presented for
determination.
Hearing was held in these matters on August 21–23 and
September 18–22 in Grand Rapids, Michigan. Briefs were re-
ceived from all parties on or about December 7.3 A joint
stipulation of the Employer and Union regarding several ma-
terial factual matters was received on or about March 14,
1990. Based on the entire record, including my observation
of the demeanor of the witnesses, and after consideration of
the briefs, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a Michigan corporation, with an office and
place of business, inter alia, in Kentwood (Grand Rapids),
Michigan, engages in the manufacture and sale of parts and
other goods primarily for the automotive industry. Respond-
ent’s answer admits the jurisdictional allegations of the com-
plaints and I find that Respondent is now and has at all times
material to this proceeding been, an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is now and has been at all times material to
this decision, a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES,
OBJECTIONS TO ELECTION, AND CHALLENGED BALLOTS
A. Background
Respondent is engaged in the production and manufacture
of automotive parts in two facilities located in Grand Rapids,
770 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Schedule C to the Regional Director’s report on objections lists the names
of persons whose ballots were challenged because their names did not appear
on the election eligibility list. At the hearing, the parties stipulated that the
ballots of the following named persons who are included in schedule C should
be counted: John Mason, Bruce Van Wyk, Barbara Koning, Gilbet Lopez, An-
nette McFall, Henry Teunison, Robert Aspinall, Duane Hoffman, Doug Marsh,
Ken Scholten, Ron Balhoski, Ron Collins, Renee DeGroot, Anna Marie
Dukes, April Fee, Denise Gray, and Richard Thomas.
The parties further stipulated that the ballots of the following named persons
on schedule C should not be counted: Randy Unger and Roger Petrolje.
Schedule A to the Regional Director’s report on objections lists voters
whose ballots were challenged by the Union. The parties stipulated at the hear-
ing that the ballots of the following named persons on schedule A should be
counted: Joan Miller, George Pott, Ray Hall, Roger Van Wyk, and Jack
Whinery Jr.
The parties further stipulated that the ballots of the following named persons
on schedule A should not be counted: Jim Rykse, Ray Schall, Howard Kamps,
Jeff Chandler, Richard Claypool, and Ed Zemaitis.
Michigan. The two facilities are known as the Kentwood
plant and the Stevens Street plant. There are approximately
850 people employed at the Kentwood plant and approxi-
mately 230 people employed at the Stevens Street plant. To-
gether, the employees at the two plants comprise the relevant
bargaining unit in this case.
Specifically, this case involves two unfair labor practice
charges, which are also objections to the election, 4 other
election objections and 27 challenged ballots arising from a
representation election held on June 29. The charges and ob-
jections were filed by the Charging Party/Petitioner Union
after the election, which other than the challenged ballots
ended with a 7 vote margin in favor of Respondent. As to
the challenged ballots at issue, the Respondent challenged
one voter and the NLRB automatically challenged several
voters because their names were not included on the voting
list.4 The Union contends in part that timekeepers and certain
hourly production employees that the Respondent designated
as temporary supervisors were ineligible to vote.
The alleged unfair labor practices/objections, the remaining
objections and the challenged ballots will be addressed in
separate sections of this decision.
B. The Alleged Unfair Labor Practices engaged in by
Respondent’s Employees, Lotterman and Houseman
1. Lotterman’s removal of union literature
The complaint alleges that Respondent’s clerk-typist em-
ployee Lori Lotterman on or about June 7, 12, and 14, inter-
fered with the Union and the protected concerted activities
of Respondent’s employees by removing and retaining union
campaign literature from employee breaktables. Respondent’s
employee David Benn testified that Lotterman rode through
his department in Respondent’s Kentwood plant on a bicycle
on June 7 picking up all union literature that had been left
on employee breaktables. She replaced this literature with a
company letter concerning the Union. He testified that he
had not seen Lotterman take literature from the tables prior
to this occasion.
Employee Shelly Jo VanDyke testified that on June 14,
she observed Lotterman picking up union papers from the
employee breaktables in her department. Lotterman placed
the papers in the basket of the bicycle she was riding and
left. She also testified that she had never before seen
Lotterman picking up anything from these tables or cleaning
them.
Employee Diana Brown testified that on June 7, she saw
Lotterman remove union literature from employee
breaktables in her department and replace it with company
literature. She testified that Lotterman took the union lit-
erature with her although there were trash barrels nearby.
Brown had not seen Lotterman picking up items from the
breaktables before the incident she described.
Employee Dale Moelker testified that on June 12, while
working in the plant paint room, he observed Lotterman pick
up and carry away with her union literature from breaktables
in that department.
Employee Julia DeYoung observed Lotterman on June 14
ride up to the breaktables in her department and begin re-
moving union literature. DeYoung approached Lotterman and
asked her what she was doing with the union papers. She
testified that Lotterman replied that she had been instructed
to pick up the papers and get rid of them. DeYoung told
Lotterman she could not do that and attempted to get the pa-
pers back. However, Lotterman would not give them up and
left the area with the papers. Shortly after this incident,
DeYoung asked her supervisor, Al Lynch, whether
Lotterman had the authority to remove the union literature
and he said she did. About an hour later, Lynch approached
DeYoung and said he had checked into the matter and that
Lotterman had the right to take the union literature just as
DeYoung had the right to take company literature and dis-
pose of it after she was finished with it. He also said the
Company did not consider the breaktables involved a des-
ignated break area and that if employees wanted to keep ma-
terial, they should keep it in their lockers and not leave it
on the tables. Prior to this incident, DeYoung had not seen
Lotterman remove anything from the breaktables. The work-
ers in DeYoung’s department are responsible for cleaning the
breaktables in that department.
Lotterman testified that she had been employed as a clerk-
typist in Respondent’s human resources department since
November 1988. Part of her regularly assigned duties require
her to bike around the plant and post memos given to her
by her supervisor on company bulletin boards. She had no
assigned cleanup duties. She testified that she is a ‘‘neat
freak’’ and is offended by trash and took it on herself to
clean up break areas that she passed in the rounds of her
posting. She testified that she made no distinction between
types of materials left on breaktables, she cleaned them off
regardless of what was left there. She would either place the
removed material in a waste barrel at the site or take it back
to her department to throw away.
She acknowledged that she was approached by DeYoung
while picking up papers from the breaktable in DeYoung’s
department. She testified that DeYoung was angry about the
removal of the union literature and she told DeYoung that
she had been instructed to remove the papers. However, she
denied in her testimony that she had been so instructed, stat-
ing that she made the statement to DeYoung because she was
mad and wanted to get away.
On cross-examination, Lotterman admitted that she was in-
structed by her supervisor, Sherry Kaufman, to place com-
pany literature on the breaktables during the campaign pre-
ceding the election. At the time she placed the company lit-
erature, she removed union literature that was on the tables
as a matter of routine. Lotterman was aware that the Com-
pany’s ‘‘no solicitation—no distribution’’ rule allows the dis-
771KEELER BRASS CO.
tribution of articles such as union literature in nonwork areas
during nonwork time. Lotterman’s affidavit given to the
Board during the investigation of this case states, ‘‘Cleaned
off tables as a matter of enforcing the Company’s ‘no solici-
tation rules.’ Dick Rumsfeld (then head of the Company’s
human resources department) used to instruct me to remove
solicitous items, such as Avon, et cetera, and Company
memos.’’
She denied in her testimony that Rumsfeld had instructed
her to remove items from tables, explaining that Rumsfeld
had told her to dispose of an Avon catalogue that she had
received in the mail. She also testified that her supervisors
were unaware of her picking up activity.
I find that Lotterman, when confronted by employee Julia
DeYoung while confiscating union literature, said that she
had orders to pick up the union literature and get rid of it.
Afterwards, DeYoung confronted her supervisor, who stated
after conferring with higher authority, that Lotterman had the
right to confiscate and destroy the union’s literature. Because
of Lotterman’s conflicting testimony, I credit DeYoung’s
version of the conversation between them and find that
Lotterman was picking up union literature under instructions
from management. DeYoung’s supervisor, Al Lynch, did not
testify and thus I fully credit her testimony that higher man-
agement had condoned Lotterman’s activity after being in-
formed of it. I agree with General Counsel that Respondent
adopted and condoned Lotterman’s actions and, as a result,
became responsible for them.
For an employer to be liable for the conduct of non-
supervisory personnel which interferes with the rights of em-
ployees under the Act, there need not be express authoriza-
tion for the acts committed. ‘‘The existence of that inter-
ference must be determined by careful scrutiny of all the fac-
tors, often subtle, which restrain the employees’ choice and
for which the employer may fairly be said to be respon-
sible.’’ Machinists Lodge 35 (Serrick Corp.) v. NLRB, 311
U.S. 72, 80 (1940). In making that determination, ‘‘the cru-
cial question is whether, under all the circumstances, the em-
ployees could reasonably believe that the [nonsupervisor]
was reflecting company policy, and speaking and acting for
management.’’ Aircraft Plating Co., 213 NLRB 664 (1974).
I find that Lotterman’s condoned destruction of union lit-
erature taken from employee breaktables while replacing
such literature with company campaign literature is violative
of Section 8(a)(1) of the Act. I find from the evidence that
Lotterman did not routinely pick up material left on
breaktables and that her June activities complained of were
specifically aimed at reducing the availability of union lit-
erature and not merely to clean up trash. To the extent that
Lotterman’s testimony conflicts on this point with the testi-
mony of General Counsel’s witnesses, I credit the testimony
of those witnesses.
On the other hand, I do not find that Lotterman’s activity
sufficiently interfered with the conduct of the election to jus-
tify overturning the election. The literature in question had
already been placed into employee’s hands and had been left
on the tables. The Union continued to successfully place its
literature in the plant and by this and other means effectively
communicated its message to employees. I will recommend
that the objection to the election based on Lotterman’s ac-
tions be dismissed.
2. Houseman’s poll of employees’ union sympathies
The complaint in Case 7–CA–29260 alleges that on or
about May 9, Respondent, through its agent, Bruce House-
man, at its Kentwood plant, coercively interrogated employ-
ees regarding their sympathies toward the Union. Employee
Jerry Poling testified that he worked in Respondent’s Honda
department with about 37 or 38 other employees, and Bruce
Houseman was his temporary or acting supervisor. House-
man reported to Ray Smith, one of Respondent’s super-
intendents, who is in charge of 3 departments, with about 70
employees under his supervision. Each of these three depart-
ments has a foreman or acting foreman like Houseman. Pol-
ing testified that Houseman gives everyone in his department
their daily job assignments and decides who will do each
particular job on each day. Houseman also has the authority
to release an employee early and approve taking a day off.
On occasions when work was slow in Poling’s department,
Houseman has directed him to work in another department
without checking with higher supervisors. When Houseman
is not present, Poling checks with the ‘‘set up’’ man, who
does the things Houseman does in his absence. Poling has
never seen Houseman discipline another employee. However,
Houseman’s predecessor had disciplined employees, giving
3-day suspensions without pay.
On either May 8 or 9, Poling was told by a fellow em-
ployee that Houseman was asking other employees how they
were going to vote in the upcoming election and writing
down their responses. At this point, Poling began observing
Houseman and saw him question some other employees with
a clipboard or notebook in his hand. One of these employees
confirmed that he had been questioned about how he was
going to vote. Poling then went to fellow employee Lynn
Wells and informed him of Houseman’s activities. At the
same time, the first employee to note Houseman’s ques-
tioning approached Poling and Wells and the three employ-
ees went to talk to Superintendent Smith.
After they complained to Smith about Houseman’s polling,
Smith said it would be legal as Houseman was just an hourly
employee and he was not doing it for him. Wells countered
that as acting foreman, Houseman was an agent of Respond-
ent and as such, not allowed to ask questions about employ-
ees’ union sympathies. Smith then said that there were going
to be some company attorneys at the plant later that day and
he would check into the matter with them. Shortly after this
conversation, Houseman approached Poling and asked if he
were offended by his asking questions about how employees
were going to vote. Poling said he was offended. Houseman
said that he had just come from the human resources depart-
ment and had been told to anticipate this response from the
union organizers. At about this time, Smith approached and
told Houseman to get away from Poling and do not talk to
anyone.
Later that day, Poling saw Houseman together with Wells
and observed Houseman tearing up some sheets of paper.
Wells later told him that Houseman had apologized for ask-
ing employees about their voting preferences and said he
would not do it again.
Employee Verlene Campbell testified that in early May,
Houseman had approached her saying that Keeler’s attorneys
had authorized him to take a prevote survey on who was
going to vote for the Union. This required him to write the
employees’ names and how they intended to vote. She told
772 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
him it was none of his business and he went to another em-
ployee and made the same request. At the time Houseman
approached the witness, she was wearing four buttons indi-
cating her support for the Union. With regard to Houseman’s
supervisory status, Campbell testified that she had requested
a day off from Houseman and he approved her request. He
checked his vacation book to see who was going to be on
vacation that day as only three employees in the department
can be on vacation on the same day. Superintendent Smith
had told the department employees that if they had a problem
or wanted anything fixed, they had to check with Houseman.
This witness, like the last, had on occasion, been temporarily
transferred by Houseman to work in another department. She
also confirmed that the department set up man performs
Houseman’s functions when he is not present.
Employee Lynn Wells testified with respect to his con-
versation with Superintendent Smith about Houseman that
Smith had said,’’ well, yes, he’s a supervisor, but he’s still
eligible to vote and he can do it.’’ After much conversation,
Smith said that the Company’s attorneys had said that
Houseman’s polling activities were okay. Wells testified that
later that day, Houseman approached him and said he did not
want to stir up a hornet’s nest and that he had been told it
was okay to poll the employees on how they were going to
vote. Wells told him the polling was intimidating and House-
man asked what he wanted him to do. Wells indicated he
wanted the list of responses torn up and Houseman complied.
Superintendent Smith testified on direct examination by
Respondent’s counsel that Houseman had no responsibilities
with respect to hiring employees, transferring employees or
independently assigning work, disciplining or recommending
employees be disciplined, or laying off employees. House-
man could approve vacations pursuant to guidelines set by
Smith. As will be discussed in more detail later, these same
limitations also apply to Smith. On cross-examination, Smith
testified that acting supervisors like Houseman can rec-
ommend employees for hiring or transfer, can recommend
layoffs depending on their departments’ workload and can
bring a recommendation about discipline. Houseman did not
testify. I credit the testimony given by Smith about
Houseman’s authority given on cross-examination over his
direct testimony as it appeared more truthful.
Houseman receives additional pay of $1 per hour when he
is acting as a supervisor, otherwise his pay and benefits are
those of any other hourly employee in his classification. He
is to perform his normal hourly work while acting as super-
visor. Houseman attends daily production meetings with his
superintendent and other supervisors. At the production meet-
ings the departments receive production sheets from higher
management and the supervisors and acting supervisors as-
sign work based on these production sheets. Prior to House-
man, the acting supervisor in the department was Ron Hoxie,
who had authority to discipline and did not perform hourly
work in addition to his supervisory duties. Smith believed
that Houseman had attended supervisory meetings where the
matter of dealing with employees during a union election
campaign was discussed. At one of these meetings, the mat-
ter of determining how employees felt about the Union was
discussed. With respect to Houseman’s polling activities,
Smith asked him about them after having been told of these
activities by Wells. He also advised Houseman that he could
not poll employees, which would be strange if he were not
a supervisor. He testified that he did not check with anyone
before stopping Houseman’s polling and did not mention to
anyone that he was going to talk to the Company’s attorneys
about the situation.
The conflicts in the testimony of Poling, Wells, and Smith,
which primarily exist on the matter of whether Smith did or
did not confer with company attorneys on the polling ques-
tion, are immaterial to a determination of this unfair labor
practice allegation. Insofar as it is necessary to resolve this
conflict, I find that Smith may well have mentioned checking
with the company attorneys and credit the testimony that he
did. This is a matter which could easily be forgotten.
The threshold question with respect to this alleged unfair
labor practice is whether Houseman is a statutory supervisor
or a statutory agent of Respondent. As will be discussed in
more detail in the section of this decision dealing with chal-
lenges to the temporary or acting supervisors’ ballots, the
Respondent does not have a uniform policy with respect to
acting supervisors’ authority, or when and to what degree
persons appointed to that position will serve in it. There is
evidence that a former head of Respondent’s human re-
sources department considered temporary supervisors to have
the same authority as full-time supervisors, whether they ex-
ercised such authority or not. Houseman was shown to be
one of the most active of the temporary supervisors, exer-
cising broader supervisory authority than most and serving in
the capacity of temporary supervisor more often than most.
Since his designation as temporary supervisor on March 1,
1989, he served in that capacity approximately 700 hours
through June 29, 1989. Certainly he can be found to have
served a ‘‘regular and substantial’’ portion of his time as
temporary supervisor, a significant factor in the determina-
tion of his supervisory status. Canonie Transportation Co.,
289 NLRB 299 (1988).
As can be seen from the facts set out above, Houseman
can recommend discipline, can direct the work of others with
a fair degree of independence, can recommend an employee
for hiring or transfer and the employees under his super-
vision had been told by Supervisor Smith to check with
Houseman on work related problems. He attends regular
daily production meetings with his supervisor and other su-
pervisors and attended supervisory meetings where the elec-
tion campaign was discussed, including one such meeting
where the matter of determining union sympathies was a
topic. I find that evidence of Houseman’s supervisory status
meets both the primary and secondary criteria for deter-
mining that status and find that he is a statutory supervisor
when he serves as an acting or temporary supervisor. He was
acting in this capacity on the dates he polled employees and
thus, his actions are attributable to the Respondent.
With respect to this question, it must also be noted that
Respondent’s supervisors at the level of Smith do not pos-
sess unlimited discretion in their position as supervisors;
rather, their independent authority is in many ways rather
limited. Like Houseman, Smith receives fairly detailed in-
structions on what is to be done in his departments on a
daily basis from higher authority, all discipline desired to be
administered by him must first be cleared with higher man-
agement, and most decisions such as layoff and grievances
are also a matter of joint determination with higher manage-
ment or the human resources department.
773KEELER BRASS CO.
5 Rumsfeld was evidently discharged by the Employer well before the
speeches in question were given. There was no showing made that he attended
any of the meetings at which the speeches were delivered. Therefore, his com-
ments concerning the speeches must come from unknown sources and I do
not consider this reliable evidence. I will credit Hartfield’s testimony about
this conversation only for the purpose of evaluating when the Union first
learned of the alleged objectionable statements in the speeches.
Even in the event that Houseman might ultimately be
found not to be a statutory supervisor, he clearly can be
found to be an agent of Respondent with respect to the poll-
ing. The unrebutted testimony of employee Verlene Camp-
bell that he told her that his polling activity was done on au-
thority of Respondent’s attorneys clearly places responsibility
for his actions at Respondent’s feet. Respondent put House-
man in a position in which employees could reasonably per-
ceive his actions as being on behalf of management in con-
nection with its antiunion campaign. Respondent is therefore
responsible for his actions within the area of such apparent
authority. EMR Photoelectric, 251 NLRB 1597, 1601 (1980),
citing Hanover Concrete Co., 241 NLRB 936, 939 (1979).
I believe the taking of the poll in the course of the
preelection campaign is clearly unlawful and could have
served no legitimate purpose. Struksnes Construction Co.,
165 NLRB 1062 (1967). On the other hand, I do not believe
under the circumstances it could have affected the outcome
of the election in any way whatsoever. The polling was al-
most 2 months prior to the election, was extremely limited
in scope and was stopped almost at its inception. No one was
shown to have been in any way coerced by Houseman’s ac-
tions and the polling was halted and the poll openly de-
stroyed on the matter being brought to the attention of Super-
intendent Smith by a union campaign committee member,
Lynn Wells. The evidence reflects that Houseman apologized
for his actions to at least some of the employees in his de-
partment. Therefore, though I find that Houseman’s actions
constitute a violation of Section 8(a)(1) of the Act, for the
reasons set out above, I do not find that it affected the em-
ployees’ free choice in the election and will recommend that
the coextensive objection to the election be dismissed.
C. The Objections to the Election not Alleged to be
Unfair Labor Practices
1. The speech by the Employer’s president
The Employer’s president John DeMaria testified that he
had held that position for about 6 months prior to the elec-
tion at Keeler Brass. On June 27, he gave a speech to four
different groups of employees at Keeler’s involved plants.
The objection to this speech alleges that in one or more of
his talks to employees on June 27, DeMaria promised that
he would never cut employees’ wages, asked employees to
give him a chance to keep his promise, and if in a year’s
time they were not satisfied, they could then vote the Union
in.
DeMaria testified that he read a printed speech to the em-
ployees and did not take questions. The printed speech in
pertinent part states:
I firmly do not believe that a union will be of any
help here at Keeler. In fact, as I explained to you in
my State of the Business meeting, it could hurt us with
our customers. Keeler is a company that is almost 100
years old and it has succeeded without the help or inter-
ference of the UAW. I will be the first to agree with
you that the past few managements at Keeler have not
done a very responsible job. The wage cuts are the
worst thing management ever did here. I don’t believe
in wage cuts and never even considered cutting wages
in any of the companies I have managed.
. . . But I know one thing,—I intend to fulfill my com-
mitment to you and to Keeler, and I ask you to give
me the opportunity to do that. I have only been in
charge a few months, and it takes longer than that to
turn Keeler around and make it into something we
would all be proud of. Be fair to me and give me the
opportunity to prove myself. If I let you down, under
the law, the UAW can petition for a new election in
one year, and they can campaign throughout that period
if they want to. So, you always have the opportunity to
bring the UAW in here if I let you down.
Union Representative Curtis Hartfield testified during
questioning by the Employer’s counsel that shortly after the
election, he was called by former Employer Vice President
Richard Rumsfeld. In the course of this conversation, Rums-
feld told Hartfield that DeMaria had promised employees
that he would never cut the wages of any employee. He also
said that Keeler’s attorneys were very upset when they
learned of the promise. Hartfield was not aware how Rums-
feld acquired this information.5 Hartfield then contacted
members of the union organizing committee who told him
that such a promise had been made in the speeches given on
June 27.
Employee Richard Thiebout testified that he attended a
speech given to employees by DeMaria, about 2 days prior
to the election. All employees were required to attend the
meeting at which the speech was given. Thiebout estimated
that the speech lasted about 45 minutes, and after giving the
speech, DeMaria answered a few questions from employees.
According to Thiebout, DeMaria, who had been in office for
about 6 months, said that he would run the Company better
than previous management. He also said that the past man-
agement had made a lot of mistakes, that cutting wages was
one of the biggest mistakes, and he would never even think
of cutting wages. He also said that he was new to the Com-
pany, asked that he be given the chance to make the Com-
pany run better and that if the employees did not like the
way he ran things, there could be a new election in 1 year.
According to Thiebout, the statements attributed to DeMaria
were part of his prepared speech and were not made in re-
sponse to questions.
Although Thiebout was on the union organizing com-
mittee, the things said by DeMaria did not bother him suffi-
ciently to report them to union officials until after the elec-
tion. He testified that about 2 weeks passed before he men-
tioned the speech to Union Representative Curtis Hartfield.
Thiebout confirmed that other members of the organizing
committee were present for this speech.
Employee Elwood Berman testified that he heard the
speech and it was his impression that DeMaria got away
from the written speech and appeared to be speaking more
‘‘off the cuff.’’ He remembers DeMaria saying that it was
unfair for the Company to cut wages and that was one thing
he would never do. He generally confirmed Thiebout’s de-
scription of the speech given by DeMaria. He also said that
774 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 This objection was filed several days after the period specified by Sec.
102.69(a) of the Board’s Rules and Regulations. The Board has recently held
that the 7-day time limit for filing objections set by this Rule should be strictly
enforced. Kano Trucking Service, 295 NLRB 514 (1989); Star Video Enter-
tainment L.P., 290 NLRB 1010 (1988); North Star Steel Co., 289 NLRB 1188
(1988). An exception to this rule may be made if the objection was based on
evidence ‘‘newly discovered and previously unavailable.’’ Burns Security
Services, 256 NLRB 959 (1981). Although I allowed evidence on this objec-
tion at the hearing and make findings with respect to it in this decision, I do
not believe that the Union has properly demonstrated that the evidence relating
to the speeches was ‘‘newly discovered.’’ Because the attendance at the
speeches was mandatory, most, if not all, of the organizing committee mem-
bers must have attended the involved meetings and heard the speeches. At
least some of these members, and certainly Wells, have knowledge with re-
spect to what constitutes objectionable conduct during an election campaign.
Yet not one member of the committee reported the alleged promise of benefits
until asked about it at some point after the election. I believe this silence can
only be construed two ways. One, as I find above, DeMaria did not make the
objectionable promise; or, two, the Union was negligent in its handling of the
matter and the objection should not be considered as it was untimely filed.
I have considered it only because it involves one of the most serious, if not
the most serious, allegations of Employer misconduct, and one which would
in all likelihood require overturning the election if proven.
7 I hereinafter find that the temporary employees were not eligible to vote
in the election and thus their exclusion from the Excelsior list was not im-
proper.
the speech did not bother him one way or the other. On
cross-examination the witness testified that he saw Union
Representative Hartfield after the speech and before the elec-
tion, but he did not mention what DeMaria said. On redirect
examination, he seemed to testify that he did not see
Hartfield after the speech for about 2 weeks.
Employee Jurgen Hoffman remembered DeMaria men-
tioning pay cuts, saying that was pretty drastic. He said that
was something he would never do even though the Company
was not profitable. He also remembered DeMaria saying the
other things witness Thiebout remembered. Hoffman, also a
member of the union organizing committee, did not mention
the speech to Hartfield. Hoffman testified that DeMaria read
his speech. Hoffman met with another union representative,
Bieber, on the day of the election and could not remember
if he spoke to him about the speech.
With respect to this matter, I credit DeMaria’s testimony
that he read his speech and did not vary from the text. The
matter of what Rumsfeld told Hartfield does not appear to
be really relevant as there is no showing that Rumsfeld actu-
ally heard any of the speeches in question. Although the
union campaign committee members who testified on this
question remembered after the election that DeMaria strayed
from his speech, they were not upset enough about the al-
leged deviations to report the matter to Hartfield immediately
after the speeches, even though they had been instructed to
report any possible violations of campaign rules, such as the
promise of a benefit made by management. The varying sto-
ries of how and when Hartfield learned of the alleged prom-
ise of a benefit makes me seriously question the accuracy of
the description of DeMaria’s remarks by the Union’s wit-
nesses on this point.6 I do not find the speech as written, and
read, to promise a benefit, and do not sustain this objection
to the election. Given the fact that previous management had
cut wages, and that during the campaign and before the
speeches, the Union had openly challenged the Employer to
restore the wage cuts without fear of charges being filed, I
do not believe that the Union can now properly object to the
rather mild response of DeMaria to the Union’s challenge.
The apparent lack of impression made by the speeches on the
Union’s organizing committee reinforces my view that the
speeches did not unfairly affect the employees’ free choice
in the election.
2. The question of the adequacy of the Excelsior list
One of the Union’s objections to the election alleges that
the Employer failed to prepare and/or correct a proper Excel-
sior list. Union Representative Hartfield testified that he first
received the Excelsior list for the involved election on May
22. On June 2, the Union sent a letter to the Board’s office
in Grand Rapids complaining that the Excelsior list supplied
had omissions and problems including (1) names without ad-
dresses or zip codes, (2) addresses without names, (3) names
and addresses that were not legible and (4) names and ad-
dresses that were duplicates. In total, there were 18 names
of employees involved in the Union’s complaint.
Though the letter does not mention the fact, there were 25
or 26 (about 2.5 percent of eligible voters) employees’ names
left off the list. These are employees whom the Employer ei-
ther now agrees or contends were eligible to vote in the elec-
tion. The Union was aware of at least two of the persons
whose names were not listed as they were on the organizing
committee. If the Union’s contention that temporary employ-
ees were eligible to vote were correct, the number of missing
names rises to about 50. Temporary employees were either
purposely omitted from the list by Keeler as it contends they
are not eligible voters or they were omitted as they do not
receive fringe benefits and the list was prepared from the
benefits computer program. The other omissions were inad-
vertent.7
The Employer did not have a list of hourly employees al-
ready made when it was requested to prepare the Excelsior
list. It utilized a computer listing of employees on the bene-
fits department computer system. The Employer contends,
and there is no evidence to the contrary, that the names were
omitted from the list because the benefits department was en-
gaged in special projects at the time of the list’s preparation
and was behind in paperwork. At least some of the mistakes
with respect to addresses were caused by having to redesign
the benefits department’s computer program to print the list
of names on computer paper rather than mailing labels,
which resulted in some names being printed in margins and
some on the continuous paper’s perforations.
The Board inquired about these complaints with the Em-
ployer and received a revised list, which was forwarded to
the Union on June 9. Utilizing this list, the Union mailed a
number of pieces of campaign literature to employees prior
to the election. Hartfield testified that there were about 70
Keeler employees on the organizing committee, of which he
estimated about 50 percent were active in organizing activi-
ties. He testified that prior to the Union’s petition being filed,
he was confident that both authorization cards and union lit-
erature were being distributed effectively at both involved
Keeler plants. The union held about 10 meetings with mem-
bers of the organizing committee during the campaign, which
began in November 1988.
Other than perhaps the temporary employees, there was no
showing that any eligible employee’s name was purposely
left off the Excelsior list by the Employer. Keeler itself re-
775KEELER BRASS CO.
8 It must be noted that the T-shirts in question appeared to be of unusually
high quality and bearing as they did the current national antidrug slogan, prob-
ably would appeal to both union adherents as well as company supporters.
lied upon the list it sent the Union to mail its own campaign
literature. Moreover, though the Union was in a position to
know, and did know at the time it received the list that some
eligible voters names were omitted, it did not complain about
these omissions until after the election. As noted above, the
Union also had and utilized other effective means of commu-
nication with employees other than mailings from the Excel-
sior list. I believe that under the circumstances, the inad-
vertent omission of some 2.5 percent of eligible voters from
the list supplied does not constitute insubstantial compliance
with the rules concerning preparation of the Excelsior list.
Kentfield Medical Hospital, 219 NLRB 174 (1975);
Sonfarrel, Inc., 188 NLRB 969 (1971); Texas Christian Uni-
versity, 22 NLRB 396 (1975). Accordingly, I will rec-
ommend dismissal of the objection to the election relating to
the Excelsior list.
3. The ‘‘Keeler Temps’’ objection
The Union filed an objection alleging that the Employer
told a group of 20 to 26 employees that they were ‘‘Keeler
Temps’’ and could not vote. In this regard, former employee
Darlene Escanuela testified that she began working for the
Employer in November 1988 as a mold and injection oper-
ator, before moving to the finishing room operation. She reg-
ularly worked 40 or more hours per week in her job. When
hired, she was told she was a temporary employee, a
‘‘Keeler Temp.’’ Her initial understanding of this position
was that she was temporary until she completed a ninety day
probationary period, after which she would become a perma-
nent, full-time employee, entitled to fringe benefits. She later
learned that the position was temporary and that temporary
employees did not receive these benefits, no matter how
many hours they worked. At the outset of her involved em-
ployment, she was on the payroll of an employment agency,
Osteen, but transferred to Keeler’s payroll after 8 or 9 weeks.
During her employment with Keeler, which ended in July,
she never received fringe benefits. On or about July 19, all
but one of the 20 or 25 ‘‘Keeler Temps’’ employed in the
K B Lighting area was terminated, when the need for their
services ended.
In June, Escanuela was working in the finishing depart-
ment with about three other ‘‘Keeler Temps’’ and several
regular, full-time employees under the supervision of Doug
Hicks. Escanuela desired to vote in the election and ap-
proached Hicks to ask him how she could get to vote. Hicks
told her she was a ‘‘Keeler Temp’’ and ‘‘Keeler Temps’’
could not vote in the election. Another temporary employee
was present when Hicks made this statement. Although
Escanuela was on second shift, she did not vote with this
shift as she thought she would get into trouble with her su-
pervisor. She did vote however, and her ballot was chal-
lenged as her name did not appear on the Excelsior list, tem-
porary employees’ names having been excluded therefrom by
the Employer. Temporary employees are specifically ex-
cluded from the involved unit description.
I do not find the objection relating to the ‘‘Keeler Temps’’
to have merit. These employees were temporary employees
hired for a limited duration and were told they were tem-
porary employees. The unit description specifically excludes
temporary employees from its scope and thus, Hicks properly
informed Escanuela that she was ineligible to vote. I will
recommend that this objection to the election be dismissed.
4. The ‘‘Just Say No’’ T-shirt objection
Patricia Gates testified that as of the date of hearing, she
had been employed by Keeler at its Kentwood plant for
about 9 or 10 months. Her supervisor was Brian Dahlman,
who she observed taking names for T-shirts about a week be-
fore the election. The T-shirts had on one side the message,
‘‘Just Say No,’’ and the company name on the other.8
Dahlman asked the employees in her department if they
wanted a shirt and if they did, took their size. Gates also tes-
tified that some of her fellow employees told her that they
would not wear T-shirts distributed by the Union for fear of
losing their jobs.
However, Gates wore her UAW T-shirt to work without
any adverse consequences and the credible testimony of
Keeler’s human resources representative established that
many of Keeler’s employees wore union T-shirts at work on
a daily basis both before and after the election. This rep-
resentative, Patricia Caudill, also testified that foremen were
told that the company T-shirts were available and that they
were to check with the employees to see who wanted one
and in what size. I do not believe that asking whether the
employees wanted a T-shirt and if so, in what size, con-
stituted either coercive solicitation by the employer or objec-
tionable polling. In the case cited by the Union on brief, em-
ployees were asked in a speech by the Company’s president
to wear a company tag as a symbol of where the employee
stood on the company vs. the union issue. In the instant case,
the employees were merely asked whether they wanted a
company T-shirt with no requirement that it be worn. In the
same workplace, many employees were wearing union T-
shirts with no credible evidence being offered that employees
were being harassed or discriminated against for wearing
them. I do not find that this objection has merit.
D. Conclusions with Respect to the Unfair Labor
Practice Allegations and the Objections to the Election
In conclusion with respect to the unfair labor practices and
the objections, I would again state that though I have found
two violations of Section 8(a)(1) of the Act, neither these de
minimus and isolated violations nor the Employer’s other ac-
tions complained of by the Union, even when viewed collec-
tively, justify overturning the results of the election. The
election, though close, involves a large number of voters.
Both the Union and Employer conducted an active and ex-
tensive campaign, which, based on the evidence in this
record, was remarkably free of conduct which could unlaw-
fully or unfairly influence the outcome of the election. I be-
lieve that the conditions which the Board wishes and expects
to exist in the period preceding an election, did exist in the
instant election. There is virtually no credible evidence of co-
ercion and intimidation, or any conduct which could reason-
ably be said to have interfered with the employees’ free
choice in the election.
E. Challenges
As noted on brief, there are two primary principles which
must be used to determine whether individual employees
776 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 On receiving this letter, Blackmore reported to Caudill, who told her that
she would be assigned to the guard shack as a ‘‘guard shack monitor.’’
Blackmore and all other formerly injured employees working under restrictions
are assigned to Keeler’s Department 290, which is the designation for people
on workers’ compensation. Keeler employs a professional guard company to
provide security for its facilities. This company provides uniformed guards for
this purpose. Although Caudill described Blackmore’s job as that of a guard,
the facts indicate that it is more of a make work job with no real guard duties
involved. The position has no written job description. As described by
Blackmore, she was told to sit in a chair in the guard shack when she reported
for work. She was given no specific duties or training and was not required
to be in the guard shack without a uniformed guard also being there. Other
than sitting in the guard shack, Blackmore performed no duties; she did not
watch the parking lots nor did she operate the buttons to raise and lower the
gate to the plant. Unlike the professional guards, she did not wear a uniform
or have a badge identifying her as a guard. Three other formerly injured em-
ployees were employed as guard shack monitors as of the date of the election.
Their names were placed on the Excelsior list by the Employer and voted
without challenge. Apparently, the only reason Blackmore’s name did not ap-
pear on the Excelsior list was the fact that she was not receiving fringe bene-
fits on the date the list was prepared from the computer program of Keeler’s
fringe benefits department. Keeler’s manpower status control form, prepared
for Blackmore after her termination from the fringe benefits list, under Section
1, sec. A, contains an ‘‘x’’ under the designation ‘‘removal from payroll’’ in
the box next to ‘‘termination.’’ However, under a separate section that does
not have the limitation ‘‘removal from payroll,’’ there is no indication that she
was actually terminated as no boxes under ‘‘termination: voluntary/involun-
tary’’ or ‘‘eligible for reemployment—yes/no’’ are checked.
whose ballots have been challenged were in fact eligible to
vote in the involved election. First, ‘‘[I]t has long been rec-
ognized than an employee is eligible to vote in a Board elec-
tion if he was employed during the eligibility payroll period
and on the date of the election.’’ Choc-ola Bottlers, 192
NLRB 1247 (1971). The payroll period for voting eligibility
in this case was the weekly period ending May 7, 1989.
Second, whether individual employees are included in the
bargaining unit as set forth in the election agreement depends
on whether they share a sufficient ‘‘community of interest’’
with other unit employees. In Kalamazoo Paper Box Corp.,
136 NLRB 134 (1962), the Board enumerated the factors to
be considered in determining whether individuals have a
community of interest apart from other employees such that
they would not belong in the same unit:
[A] difference in method of wages or compensation;
different hours of work; different employment benefits;
separate supervision; the degree of dissimilar qualifica-
tions, training and skills; differences in job functions
and amount of working time spent away from the em-
ployment or plant situs . . . ; the infrequency or lack
of contact with other employees; lack of integration
with the work functions of other employees or inter-
change with them; and the history of bargaining.
All of these factors will be considered with respect to the
individual challenges set out below.
1. Shirley Blackmore
Shirley Blackmore was not on the Excelsior list and thus
her ballot was challenged. The Employer contends that she
was not eligible to vote in the election because she was not
an employee on the cutoff date for eligibility and because as
of the date of the election, she was a guard and excluded
from the unit. Blackmore was a 13-year hourly production
employee of Keeler who had served on the Union’s orga-
nizing committee in a prior campaign. As of February 12,
she had been on injured leave for over a year. During the
first 12 months of her leave, the Company paid her benefits
and workmen’s compensation. Pursuant to the Company’s
rules, after 12 months of such leave, her benefits and senior-
ity terminated, though the Company continued to pay work-
men’s compensation as it is self-insured for this purpose. It
is the Company’s policy to seek work within the restrictions
imposed by such an employee’s injuries in order to get some
production from the employee for the money it is paying. If
it offers work within the restrictions and the employee re-
fuses to accept it, it can terminate its payments to the em-
ployee and permanently sever its relationship with the em-
ployee.
Employer Representative Pat Caudill testified that
Blackmore, and other persons on injured status are still em-
ployees of Keeler. She also testified that the Employer did
not terminate Blackmore in February, rather, it terminated
her benefits.9 Because of its continuing obligation to pay
workmen’s compensation benefits to a person on injured sta-
tus, the Employer obviously has an expectation and hope that
these persons will return to work at some point. Blackmore
received a letter from the Employer telling her to report to
work at the guard monitor position and threatened to termi-
nate her if she did not. I find it unusual to threaten termi-
nation to a person if one has already terminated the employ-
ment of that person.
I find that Blackmore was employed as of the cutoff date
for determination of the eligibility of employees to vote in
the election, finding as I do that her employment was never
terminated. There was an expectation both on the part of
Blackmore and Keeler that she would ultimately return to
production work at Keeler’s facility. The work she was as-
signed as part of the return to productivity was clearly make
work and not that of a guard. It is hard to square Keeler’s
position that Blackmore was a guard and thus ineligible to
vote, with the contrary position it took with three other em-
ployees in a similar employment capacity. I believe that
Keeler’s tacit admission that the three other employees were
not guards as evidenced by its lack of challenges to their
votes completely undermines its argument that Blackmore
was a guard. For all the ‘‘guarding’’ she was shown to have
done, she could have just as well spent her time sitting in
a corner of the plant during her working hours. Shattuck
School, 189 NLRB 886 (1971); Container Research Corp.,
188 NLRB 586 ( 1971). I find that Blackmore’s ballot was
improperly challenged and should be counted.
2. Tim Connor and Tom Hillbrand
The unit description contained in the election notice in-
cludes, ‘‘factory laboratory employees,’’ but excludes, ‘‘tech-
nical employees.’’ Hillbrand’s job classification is ‘‘Plating
Process Laboratory Technician’’ and Connor’s is ‘‘Photo-
metric Technician.’’ On brief, the Union now contends that
the word ‘‘laboratory’’ in Hillbrand’s description places him
in the included category while the absence of that word
places Connor in the excluded category. The Employer con-
tends that both employees were eligible to vote. Relying on
the parties’ position as stated on brief, there is no longer any
dispute as to Hillbrand’s eligibility to vote and the Union’s
challenge is deemed to have been abandoned and Hillbrand’s
ballot should be counted.
777KEELER BRASS CO.
Five other employees share almost the exact terms and
conditions of employment and supervision with Connor,
namely, the five other quality testing employees, all of whom
are supervised by Bob Kozak. All of these other five em-
ployees voted without challenge. Connor is an hourly em-
ployee who works regular first shift hours. He is paid an
hourly rate of $8.80 an hour. This is the same as the other
factory laboratory employees. It is also similar to other em-
ployees in the plant; for example, the quality auditors, who
were permitted to vote in the election. Connor receives the
same benefits as other hourly production and maintenance
employees. His terms and conditions of employment are cov-
ered by the hourly production and maintenance employee
handbook. He is evaluated on the same form as hourly pro-
duction employees.
For his job, Connor has no specialized technical knowl-
edge and his job only requires a month or two of on-the-job
training. The requirements for his job are a high school di-
ploma or the equivalent, or some actual laboratory experi-
ence. In this respect, Connor’s training and qualifications are
the same as the other end item technicians or factory labora-
tory employees. Connor, in conjunction with the other five
employees supervised by Kozak, is responsible to check end
products for defects or flaws, pursuant to specifications with-
out the use or exercise of independent judgment. His job
consists of taking head lamps and other lights from the pro-
duction line and placing them on a fixture to be tested. He
then turns the machinery apparatus on and lets it run for
some time checking the part to see if it complies with the
specifications he has been given. Connor follows specific di-
rections in testing and deciding whether the parts have
passed or failed. He does not make the fixtures utilized for
testing.
In the course of his duties, Connor has contact with other
hourly production and maintenance employees. His job re-
quires that he be in the factory itself at least 30 percent of
the time. At other times, he is in the lab area, which is lo-
cated in the factory. Connor also picks up tools and takes
scrap back to the scrap area. He takes breaks with hourly
production and maintenance employees. Connor is also inter-
changed with the other factory laboratory employees and is
cross-trained to perform their jobs, as they are trained to per-
form his. Connor desires to be in the bargaining unit and
voted in prior elections in a different employment classifica-
tion.
I believe that in all significant respects, Connor shares a
community of interest with other hourly production and
maintenance employees. There is no difference in the method
of compensation, hours of work, employment benefits, and
supervision. He is paid approximately the same hourly wage
as other unit employees. Moreover, Connor has no dissimilar
qualifications, training and skills and has frequent contact
with other employees. His work functions are integrated with
other employees and he desires to be part of the bargaining
unit. Leaving him out of the unit would result in an anoma-
lous situation in which he would be left alone for bargaining
purposes, while others who were similarly situated are in-
cluded in the unit, much as was the case with Blackmore.
Therefore, I find the challenge to Connor’s ballot to be im-
proper and his vote should be counted.
3. David Bailey
David Bailey was an hourly employee at the Stevens
Street plant. On June 26, he gave the employer 2 weeks’ no-
tice that he was going to quit. It is the employer’s contention
that it terminated him on that date and thus, he was ineligible
to vote in the June 29 election. Bailey testified that he did
not intend to quit on June 26, but requested his vacation start
that day and his resignation would be effective at the end of
his two week vacation period. He intended to use the two
weeks to look for another job. During the 2-week period, he
did not find other employment nor did he collect unemploy-
ment benefits. The Michigan Employment Security Commis-
sion issued a ruling that Bailey’s last day of employment
with Keeler was July 7.
During the 2-week period in question, Bailey attempted to
go back to work at Keeler, but was denied this opportunity.
After being challenged at the June 29 election, Bailey went
to the plant on June 30 intending to work. His time card was
in the rack when he punched in on June 30, and the card
reflected that he was on vacation. Bailey’s foreman was
standing near the time clock and did not stop Bailey from
punching in. Bailey asked the foreman if he could return to
work and was told by the foreman that he considered Bailey
to be on vacation and he should see the foreman’s super-
visor, Bob Burns. When Bailey approached Burns, Burns
told him to come to his office. Once there, Bailey was given
his termination papers, paycheck and bonus check. He did
not receive his 3 days’ additional accrued vacation at the
time he was terminated, as is company policy. Payment for
the 3 days came in his July check.
Employer Representative Deborah Orchard testified that
she terminated Bailey’s employment after receiving his no-
tice and had his paycheck delivered to him by special deliv-
ery on June 28, admittedly an unusual means of getting a
paycheck into the hands of an employee. Also unusual is the
fact that terminated employees do not normally receive bo-
nuses, and the next bonus for employees was for those em-
ployees on the payroll on June 30, the day after the election.
Bailey received the June 30 bonus by check dated June 30.
Employer Representative Orchard testified that it was the
policy of the Employer to terminate individuals who give 2
weeks’ notice at the end of the notice period. On brief, the
Employer argues that it deviated from its normal practice in
this regard because Bailey wanted to use his vacation as his
notice period, and that the purpose of notice, to have time
to find and train a replacement, was not served in his case.
No one mentioned to Bailey when he reported for work on
June 30, that a replacement had been hired or that some ex-
isting Keeler employee was being trained to take over his
job.
The Employer violated several of its policies in its claimed
termination of Bailey on the day he gave notice. Normally,
he would be terminated at the end of the 2 weeks’ notice pe-
riod. It paid him a bonus which only employees on the pay-
roll on June 30 were supposed to receive. It paid him for the
Fourth July holiday which, if he were in fact terminated, he
would not receive. It also deducted certain benefits from his
July check, another indication that he was considered an em-
ployee as of June 30. Furthermore, no one informed Bailey
that he had been terminated until his ballot was challenged
at the June 29 election. As noted above, he did not receive
his termination papers until June 30, when attempted to go
778 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 These individuals are: Tina Freyling, Carol Dohrn, Theresa Jeurink, Marie
Klutman, and Joyce Tompkins. Another timekeeper, Rita Van Houten was
challenged when she attempted to vote, but the union officials at the election
decided to withdraw the challenge after a discussion among themselves.
11 The production schedulers in question are Howard Hendricks, Dennis
Hill, Ronald Laninga, Diane Ludlow, and John Westerling.
12 The production expediters are Harold DeRidder and Tim Miller.
back to work. Also, it must be remembered that Bailey’s
timecard was in its normal slot on the June 30, and showed
him on vacation, not terminated.
The Board has held that an employee employed on the
date of the election is eligible to vote despite any intention
to quit after the election. Choc-ola Bottlers, Inc., supra, cit-
ing Personal Products Corp., 114 NLRB 959 (1955); Whit-
ing Corp., 99 NLRB 117 (1951). Because Bailey was not no-
tified in advance of the election that his employment had
been terminated and as such a termination is contrary to nor-
mal company policy, I find that he was employed on the date
of the election and his vote should be counted. In further
support of this finding is the fact that the Employer paid him
a bonus to which he would not be entitled unless he was em-
ployed on June 30, the day after the election. The Employ-
er’s reason for departing from its normal procedure of termi-
nating an employee at the end of his or her notice period ap-
pears to me to be an after-the-fact rationalization. It offered
no proof that it took immediate action after receipt of Bai-
ley’s notice to replace him, which I believe would be the
only action which would have justified the deviation from
normal procedure. If, as the Employer contends, Bailey was
terminated prior to the election, the only reason I believe ex-
ists for such termination is that the Employer did not want
Bailey’s vote to count, a clearly discriminatory reason. How-
ever, I find from the evidence that Bailey was employed on
the date of the election and his alleged termination prior to
the election was a fabrication on the part of the employer.
I recommend that Bailey’s ballot be counted.
4. Timekeepers
The ballots of five timekeepers are challenged by the
Union, which contends that they are office clericals and not
entitled to vote.10 In prior elections at the facility, the posi-
tion of timekeeper was specifically included in the bar-
gaining unit description, but in the instant one was not so
named. The Employer contends that timekeepers are factory
clericals and thus entitled to vote. During the election, the
timekeepers votes were solicited by both the Employer and
the Union.
The timekeepers are hourly employees, paid $8–$8.25 per
hour and receive the same benefits and are subject to the
same rules as hourly production employees. However, their
pay was not cut in the fall of 1988 as was the pay of most
production workers. They can exercise bumping rights in the
event of a layoff and bump into a production job in the
plants. This bumping has occurred in the past when the
Company began using computers and layed off some time-
keepers. Timekeepers can also be bumped by production em-
ployees though this has never occurred. Timekeepers are al-
lowed to wear and do wear blue jeans and shirts to work
whereas female office employees are required to wear
dresses or their equivalent. They punch a timeclock as do
production employees, enter the plants through the same en-
trance as production employees and use the same washroom
and break facilities.
Timekeepers go into the plant on a regular basis and take
roll from timecards, pick up payroll vouchers from various
stations throughout the plants and record necessary informa-
tion in the Employer’s computer system. They cannot, how-
ever, review data or pullup employee files. They are super-
vised by Jean Bird, who supervises no other employees. Cer-
tain of the Employer’s correspondence and documents refers
to the timekeepers as factory clericals. The timekeepers work
an extra 1-1/2 to 2 hours per day because of their workload.
None of the timekeepers work in the Employer’s general ad-
ministrative offices. The timekeepers at the Kentwood plant
work in an enclosed area in the factory, about a 5-minute
walk from the general office. At the Stevens Street plant,
they work in an office area, but share locker, washroom, and
break areas with the hourly production employees. They also
enter work through the plant, not the office entrance.
I believe the evidence supports a finding that the time-
keepers should be included in the unit. They are paid hourly
and receive the same benefits as compared to other hourly
employees. They are supervised by an individual who does
not supervise other clearly non unit employees. Timekeepers
do not have dissimilar qualifications, training, or skills from
other bargaining unit members. Timekeepers have frequent
and significant contact with other employees, their work
function is integrated with other employees, and bargaining
history reveals that timekeepers have traditionally been in-
cluded in the bargaining unit. I believe that they are factory
clericals and for that reason, their specific designation was
not included in the most recent agreement as to the bar-
gaining unit. They share much more in common with other
factory employees than they do with the Company’s office
clericals. I find the challenges to the ballots of the time-
keepers to be improper and direct that their votes be counted.
See J. Ray McDermott & Co, 240 NLRB 864 (1979); Cen-
tury Electric Co., 146 NLRB 232 (1964).
5. Production schedulers/expediters
Five production schedulers11 and two production expe-
diters12 attempted to vote in the election, all of whom were
initially challenged by the Board as they were not on the Ex-
celsior list. They were left off the list because they were sal-
aried rather than hourly employees. As was the case with the
timekeepers, they were specifically listed in the earlier elec-
tions’ bargaining unit descriptions, but not in the one for the
instant election.
The production schedulers are on salary, are paid biweekly
and make an average of $30,000 per year, contrasted with
the $18,000 to $20,000 made by most production employees.
Much of the difference in wages is caused by the substantial
overtime worked by the production schedulers. They are paid
time and a half for overtime work. The production schedulers
have assigned parking whereas production employees do not.
All of these schedulers are supervised by Michael Schillim,
who supervises no production employees. All of the other
people supervised by him are apparently general office per-
sonnel. Schedulers are responsible for customer orders and
getting the schedule to the expediter so he can expedite the
parts. Schedulers have occasional customer contact, though
779KEELER BRASS CO.
expediters do not. Schedulers can exercise independent judg-
ment or discretion whereas expediters must see a foreman or
scheduler when a problem arises.
Schedulers have desks with telephones and computer mon-
itors at designated points in the plants. The terms of their
employment are controlled by the production and mainte-
nance employee handbook. Each of the schedulers has a fair
amount of contact with production workers, though their pri-
mary contact is with foremen. This contact can be tense as
the schedulers are expected to be aggressive in seeing that
schedules are met. Two of the schedulers, Diane Ludlow and
John Westerling, have more customer contact than the other
three and have more responsibility.
Schedulers receive orders from customers through the Em-
ployer’s customer service department and prepare schedules
to meet the customers’ needs. These are given to the expe-
diters who fill in numbers and give them to the foremen. In
preparing the schedule, the scheduler checks stock records
and checks with the foremen. They use computers to see if
stock levels are right and if not, make physical parts inven-
tories.
Although the question is very close, I find that the produc-
tion schedulers should be excluded from the unit. They are
paid on a different basis than hourly employees and paid sig-
nificantly higher wages. They have different and significantly
better benefits and different supervision from production em-
ployees. Their contact with other employees is almost super-
visory in nature, and by its nature, almost adversarial. They
can exercise independent judgment within the scope of their
jobs and utilize the employer’s computers to a great extent.
I find that they are best termed office clericals, not factory
clericals. Consequently, I find that the challenge to their bal-
lots should be upheld. The production expediters, however,
have working conditions that more closely approximate those
of other hourly employees and should be included in the
unit.
Harold DeRidder is a production expeditor who works in
injection molding, where he has a desk. He reports to work
about an hour earlier than production employees. As noted
above, he is to expedite schedules and has regular, some-
times tense, contact with foremen. Although on salary, he is
entitled to the hourly, rather than the salary bonus program.
He receives time and a half for hours over 40 per week. The
production and maintenance handbook covers his terms and
conditions of employment. Unlike the schedulers, he does
not exercise independent judgement and was not shown to
have customer contact. His job is fairly integrated with the
production process, routinely filling in numbers and part
types on forms pursuant to instructions from schedulers. He
does not resolve scheduling problems and deal with delay,
but merely tells the foreman that the schedule is not being
met. DeRidder’s place of work is located in the injection
molding department, where he assists production workers in
getting parts to make sure they have sufficient stock.
Tim Miller is a production expeditor who works in the
screw department. While Miller had been on salary for sev-
eral months prior to the election, his duties had not changed
since he was an hourly paid screw coordinator. Miller was
placed on salary and given the title production expeditor to
keep him in the screw department because he was contem-
plating taking a salaried position elsewhere in the plant. The
salary that Miller receives is less than salaried production ex-
pediters and schedulers normally receive. Unlike other sala-
ried employees, he has not been placed in a salary grade sys-
tem. His salary is simply his hourly rate of pay prorated for
an anticipated 2080 hours worked during a calendar year.
Miller’s hourly rate would place him somewhere midway in
the range of employees in the screw department.
Miller works regular first shift hours and his employment
is controlled by the hourly production and maintenance em-
ployee handbook. He receives time and a half for overtime,
does not have an assigned parking space or telephone. He is
evaluated on an hourly, not a salaried employee evaluation
form. Miller is supervised by Marv Mastbergen, the regular
screw department supervisor. Mastbergen runs the screw de-
partment and supervises all screw department hourly produc-
tion employees. Miller spends all his time in the screw de-
partment and has no special training except on the job train-
ing. He works from a desk near his supervisor’s desk. Mil-
ler’s specific duties include taking information that his super-
visor has written down and filling in blanks to create a
schedule pursuant to this information and information re-
ceived from the sales department. Miller does not independ-
ently decide which employees will do work, or how the work
will be done. He has no customer contact. He does have reg-
ular contact with production employees in his department
and takes breaks with them and works under the same phys-
ical conditions.
I believe that the facts reflect that both DeRidder and Mil-
ler should be in the unit. Although on salary, their salary is
close to the hourly wage and appears tied to the hourly wage
scale. Their benefits are those of hourly employees and in
the case of Miller, his supervisor is a production supervisor.
They have little contact with customers, unlike the sched-
ulers, and their work appears to be more integrated with the
production workers than that of the schedulers. The expe-
diters do not have quasisupervisory status as do the sched-
ulers and do not have to solve production problems with
foremen as do the schedulers. I believe there are sufficient
differences between the schedulers and the expediters to jus-
tify excluding the schedulers as office clericals and include
the expediters as factory clericals. I find that the challenges
to the ballots of Miller and DeRidder were improper and
their votes should be counted.
6. Temporary supervisors or assistant or acting foremen
The Employer has had designated temporary supervisors
for a substantial period of time. These temporary supervisors
are referred to by employees as acting foremen, assistant
foremen, or acting supervisors. In February 1989, Keeler in-
structed its superintendents and supervisors to designate indi-
viduals in their departments who would be eligible to be des-
ignated as temporary supervisors in the event the regular su-
pervisor or superintendent was absent or additional super-
vision was needed. For the individuals designated, Keeler
issued a ‘‘manpower status control form’’ (msc form) denot-
ing the potential temporary supervisor status. When acting as
a temporary supervisor, the designated individual receives an
additional $1 per hour. When not designated to perform the
duties of a temporary supervisor, the involved individual per-
forms normal hourly production work. Appointment to a
temporary supervisor position will help determine an em-
ployee’s qualifications for a position in which management
experience is required.
780 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 The Union challenged the votes of temporary Supervisors John Wulfsen,
Don Barnes, William Barnes, Jerry Hall, Archie Rayl, Adrian Wouters, Robert
Shomler, Gerry Kaminski, Bruce Houseman, and Roland Ade. At least 21 em-
ployees, in addition to those challenged, acted as temporary supervisors prior
to the election. At least 15 of these temporary supervisors voted without union
challenge.
There is some conflict in the record over the scope of au-
thority possessed by the temporary supervisors. I believe this
conflict exists primarily because the Employer has not seen
fit to establish a formal classification for the position which
would spell out the scope of authority. As matters now stand,
each superintendent and full-time supervisor who has one or
more temporary supervisors working under him can appar-
ently establish individual limits on the authority of those
temporary supervisors. As will be seen from a discussion of
the facts surrounding the challenged individual temporary su-
pervisors, this authority ranges from the full supervisory sta-
tus of Bruce Houseman, discussed earlier, to a position more
akin to a leadman or setup person than a supervisor.
Employee Lynn Wells testified that on some unspecified
occasion, then Employer Human Resources Director Dick
Rumsfeld told him that temporary supervisors had full super-
visory authority whether exercised or not. The Employer
questions whether this conversation ever took place; how-
ever, I credit it as Wells appeared to be a credible witness
and the statement is entirely consistent with the purpose be-
hind having temporary supervisors. Pat Caudill of the human
resources department testified that the primary duty of tem-
porary supervisors is to replace the full-time supervisor when
that person is on vacation or otherwise absent from the plant.
To fill in for a full-time supervisor when he or she is absent,
the temporary supervisor would logically need to possess the
authority of the person whose position is being temporarily
filled. As most completely developed in the record in the
case of Houseman, some of the Employer’s superintendents
and/or supervisors find it necessary to have temporary super-
visors in their departments on a regular basis, without regard
to the absence or presence of the full-time supervisor. In this
circumstance, the degree to which the temporary supervisor
actually supervises is apparently at the discretion of the full-
time supervisor or his or her superintendent.
Another matter to take into consideration when assessing
the supervisory status of the challenged individuals is the
scope of the authority of the permanent supervisors. Super-
intendents and supervisors do not make employment related
decisions. Hiring and firing is done by the human resources
department. Decisions on layoffs are not made by the super-
intendents or supervisors, but are made by higher manage-
ment. Discipline decisions, except the most minor, are made
by higher management, in conjunction with the supervisors.
Much of the work at the employer’s facilities appears to be
of a routine and repetitive nature and is controlled not by the
full time supervisors, but by the production schedulers and
expediters and their supervisors. Therefore in the ordinary
course of events, even full time supervisors do not exercise
much,if any, independent judgment when assigning work.
Thus, the exercise of many of the indicia of supervision to
which the Board looks to determine supervisory status are
missing even from the admitted supervisors. This situation
makes it very difficult to 90 say that a particular person serv-
ing as a temporary supervisor is or is not a statutory super-
visor based on the sketchy evidence in this record. However,
where the record is fully developed, as with Houseman, I be-
lieve it is clear that temporary supervisors are supervisors
within the meaning of the Act when serving in the temporary
supervisor capacity.
Because of the admission of Rumsfeld that temporary su-
pervisors possess full supervisory authority whether exercised
or not, I have given substantial weight to any corroborating
evidence adduced with respect to individual temporary super-
visors whose ballots were challenged. However, I believe
that the Union had the burden of adducing some specific evi-
dence bearing on each of the challenged temporary super-
visors in light of the clear evidence that not all temporary
supervisors are allowed by their full-time supervisors or su-
perintendents to exercise full supervisory powers. The evi-
dence shows that the Union, though stating that its intention
was to challenge the votes of all temporary supervisors, actu-
ally challenged just some of them.13 This discretionary chal-
lenging process could be explained on the basis that the
Union had determined how each individual temporary super-
visor might vote, or just as likely, some individuals so des-
ignated by the Employer are considered supervisors by other
employees and other individual so designated are not. The
record also reveals that some individuals served as temporary
supervisors for substantial periods of time in the months pre-
ceding the election and others served only infrequently and
sporadically. Again, the degree of service was evidently the
choice of the permanent supervisors.
The status of supervisor under the Act is determined by
the individual’s duties, not by his or her title or job classi-
fication. Under the terms of Section 2(11), a supervisor is
any person having authority in the interest of the employer,
to hire, transfer, suspend, layoff, recall, promote, discharge,
assign, reward, or discipline other employees, or responsibly
to direct them, or to adjust their grievances, or effectively to
recommend such action, if such authority is not of a merely
routine or clerical nature, but requires the use of independent
judgment.
Thus, a person’s power to act as an agent of the employer
in relations with other employees and his or her exercise of
independent judgment of some nature establish his or her sta-
tus as a supervisor. In order to be classified as a supervisor,
a person need not meet all the criteria of Section 2(11). The
enumerated functions of a supervisor are listed disjunctively.
Nevertheless, the statute insists that a supervisor have author-
ity to use independent judgment in performing such super-
visory functions in the interest of management.
While the exercise of one or more of the statutorily de-
scribed functions is always the focal point for assessing the
supervisory status of an individual, in borderline cases, the
Board also considers so-called secondary indicia in deter-
mining whether a particular individual is or is not a super-
visor within the meaning of the Act. The secondary factors
include whether the individual is considered by his fellow
workers and by himself to be a supervisor, attends manage-
ment meetings, receives a higher wage rate than his fellow
workers, and has substantially different benefits from his fel-
low employees. The ratio of supervisors to supervised em-
ployees is another frequently considered secondary factor in
determining supervisory status.
A person with full-time supervisory authority does not lose
supervisory status because that authority is exercised only in-
frequently. However, a rank-and-file employee does not be-
781KEELER BRASS CO.
come a supervisor because of sporadic and infrequent as-
sumption of supervisory duties. In the recent case of Canonie
Transportation Co., 289 NLRB 299, supra, the Board held
that where an individual exercises supervisory authority over
fellow unit employees in the same workplace where they per-
form rank and file duties, they will be excluded from the unit
when they spend a regular and substantial portion of their
working time performing supervisory tasks, but not when
such substitution is merely sporadic and insignificant. In that
case, the Board found regular and substantial 17 weeks of
duty as a temporary supervisor in a period from April
through December. During those 17 weeks, the person in
question worked as a temporary supervisor from 8 to 40
hours per week.
The specific evidence relating to the supervisory status of
the challenged individuals will be set out below and discused
in light of the foregoing principles.
a. Roland Ade
Roland Ade is classified as a setup person and works
under the supervision of Marv Mastbergen. He has been ap-
pointed to act as temporary supervisor when necessary be-
cause of Mastbergen’s absence. He works regular shift hours
and does not attend management meetings. Mastbergen de-
scribed Ade’s temporary supervisor function as, ‘‘You’d call
it supervise my people, I guess, while I’m gone, while I’m
on vacation.’’ Mastbergen also testified that the supervisory
authority vested in Ade is what Mastbergen in his judgment
believes Ade should have authority to do. This involves pass-
ing out work assignments and solving routine problems that
might arise. Presumably, independent judgment is required in
this regard as there was not shown to be a set procedure or
manual detailing how to deal with problems in this depart-
ment. As is the case with all temporary supervisors, Ade can-
not discipline employees and can only report the need for
discipline to Mastbergen’s supervisor in Mastbergen’s ab-
sence. However, as noted in the general discussion above,
apparently even Mastbergen would be required to report the
need for discipline to his superintendent and receive his ap-
proval before administering discipline. From the evidence, it
would appear that either Ade or Mastbergen can effectively
recommend discipline. I believe that the evidence on the pri-
mary indicia of supervisory status supports a finding that
Ade is a supervisor within the meaning of the Act when
serving as a temporary supervisor.
Just prior to the election, Ade received hazardous waste
training and listed himself as of May 10 as an assistant su-
pervisor. He had previously had supervisory training and re-
ceived a certificate on July 9, 1979. Therefore, there exists
secondary indications that Ade is a supervisor. The extended
labor transaction reports, which are incomplete, show that he
worked as a supervisor between 24 and 44 hours per week
for nearly every week for 3 or 4 months prior to the election,
with the exception of 2 weeks in May when he appears to
have been on vacation. Certainly this level of service as a
temporary supervisor calls for his exclusion based on the
Board’s holding in Canonie, supra. I sustain the challenge to
Ade’s ballot in the election.
b. Donald Barnes
At the time of the election, Don Barnes was an hourly
production employee classified as a plater operator. He
worked second shift in Department 244, the plating depart-
ment. Barnes received his appointment as temporary super-
visor on February 27. He received his Foreman certificate
from the Association Management Education Institute in
1986. He had previously worked as a foreman for Keeler.
Barnes went on medical leave beginning in April and was
still in that status on the day of the election. In the 8 months
prior to the election, Barnes was paid for being a temporary
supervisor for approximately 98 hours. However, he was not
paid as such for any time after February.
The only evidence of his duties when acting as temporary
supervisor is found in a 1986 resume, where he states ‘‘For
the last six years I have been backup supervisor in the Plat-
ing Department, filling out attendance records, pushing the
hot jobs, and maintaining a good relationship with the work-
ers.’’ The stated purpose of the resume was to achieve
Barnes’ goal of becoming the supervisor of his department
when the time comes.
I do not believe that Barnes served in the temporary super-
visor capacity for a sufficient amount of time in any relevant
period prior to the election to meet the ‘‘regular and substan-
tial’’ time test. Therefore, I would overrule the challenge to
his ballot.
c. William Barnes
Employee Steven Marshall testified that William Barnes
was a temporary supervisor in his department and had signed
‘‘idle slips’’ when they were working on piece rate. Barnes
was paid as a temporary supervisor for over 200 hours in the
4 months prior to March 1989. The Employer contends that
Barnes was not a temporary supervisor after February as no
manpower status control form was ever executed for him
then, when such forms were cut for all temporary super-
visors. As Marshall did not specify a timeframe when Barnes
served as temporary supervisor, I have to assume that it was
before February. As Barnes was not designated as a super-
visor when the Employer formally issued such designations,
and in the absence of any clear proof that he acted in that
capacity after February without formal designation, I cannot
find that he was a statutory supervisor and his vote should
be counted.
d. Jerry Hall
Employee Manard Flikkema testified that when Hall
serves as temporary supervisor in his department, he spends
most of the day in the office and hands out work assign-
ments. He occupies the supervisor’s office when his super-
visor is gone. Hall takes attendance, and resolves disputes
between employees, presumably exercising independent
judgement in doing so. Although Hall had never been in-
volved in disciplining an employee in the department, neither
had the permanent supervisor. Although Hall worked only
approximately 100 hours as temporary supervisor in the 8
months prior to the election, most of this time was in the pe-
riod immediately preceding the election. As Hall was shown
to perform the same tasks as his supervisor when acting as
temporary supervisor, including resolving employee disputes,
782 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and as his status as temporary supervisor had grown to al-
most full time before the election, I find that he was a super-
visor within the meaning of the Act and the challenge to his
vote is sustained.
e. Gerry Kaminski
Kaminski was a die-cast machine operator at the Stevens
Street plant, where he was designated as temporary foreman.
He worked in the supervisory capacity for about 100 hours
in the 8 months prior to the election. A substantial portion
of this time was when he filled in for his supervisor when
the supervisor was on vacation. The rest of the time as a
temporary supervisor occurred irregularly and sporadically,
and in my opinion the level of time spent as temporary su-
pervisor does not qualify under the regular and substantial
time test. Therefore, I would overrule the challenge to his
ballot.
f. Robert Shomler
The evidence reflects that when Shomler acts as temporary
supervisor, he does the same things as the full-time super-
visor. Employee Jim Young testified that this includes sign-
ing vacation slips, assigning work and solving or attempting
to solve employee problems. There was given by Young a
specific example of Shomler’s attempt, albeit unsuccessful,
to solve an employee’s problem. I believe that the fact that
Shomler attempted to address this problem indicates that he
had the authority to handle such problems independently. His
failure to do so does not detract from his authority. Shomler
received training as a supervisor and he was paid as a tem-
porary supervisor for about 140 hours in the 5 months prior
to the election. The question in my mind is whether this con-
stitutes a ‘‘substantial’’ portion of his time. My under-
standing of the payroll records reflects that Shomler served
regularly as a temporary supervisor, but only for parts of
days. I believe that the regularity of such service is more im-
portant than the total amount of hours served and find that
Shomler was a supervisor and his vote should not be count-
ed.
g. Adrian Wouters
There is very little evidence in the record regarding what
Wouters does when he serves as temporary supervisor. He
has signed vacation slips, though at Keeler, this is a routine
function. He has received special hazardous waste training,
though this is not a significant indicia of supervisory status.
He was paid as a temporary supervisor for approximated 60–
70 hours in the month prior to the election. On the other
hand, in the 7 months preceding June, he worked only 3 days
in April, a week in May, and another 2 days at the end of
May in the temporary supervisor capacity. Though his total
hours of service in this capacity might approach that of
Shomler, the sporadic and infrequent nature of the service
does not meet the Board’s regular and substantial time test.
Additionally, in the absence of any evidence of what he does
when serving as a temporary supervisor, I cannot find that
he is a statutory supervisor. For these reason, I would over-
rule the challenge to his vote.
h. Archie Rayl
The evidence regarding Rayl is slight. Documents in the
record indicate that he received special hazardous waste
training just prior to the election and his position of the cer-
tificate issued is listed as assistant foreman. His service as
temporary supervisor prior to June was almost nonexistent,
but was substantial in that month, being 34 hours in the
week of June 5–11, and 50 hours in the week of June 17.
There is no explanation in the record for this substantial in-
crease in Rayl’s service as temporary supervisor. However,
because one of the primary reasons for having temporary su-
pervisors is to serve in the absence of the full-time super-
visor, it would be logical to assume that Rayl’s supervisor
was absent during those weeks, on vacation or some other
form of leave. I do not believe there is enough evidence in
the record to find that Rayl was a supervisor, and his service
in that capacity, though substantial for one recent 2-week pe-
riod, was very sporadic otherwise. Even if his duties would
qualify him as a supervisor when he serves as temporary su-
pervisor, I do not find that he spent a regular and substantial
portion of his time in this capacity over any meaningful pe-
riod, and thus would overrule the challenge to his ballot.
i. John Wulfsen
Wulfsen was shown to have served as temporary super-
visor only very sporadically, one-half day in March, 1 day
in April, 1 day in May, and not at all during June. I find
that he did not spend a regular and substantial portion of his
time during any relevant period acting as a supervisor and
his vote should be counted.
j. Bruce Houseman
I have heretofore found Houseman to be a supervisor with-
in the meaning of the Act, serving in that capacity for a reg-
ular and substantial portion of the time in the months pre-
ceding the election. Therefore, I would sustain the challenge
to his ballot.
CONCLUSIONS OF LAW
1. Respondent Keeler Brass Automotive Group, a Division
of Keeler Brass Company and K B Lighting, a Joint Venture
of Keeler Brass Company, is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
2. International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America (UAW), AFL–
CIO, is a labor organization within the meaning of Section
2(5) of the Act.
3. By the actions of its agent, Lori Lotterman, on or about
June 7, 12, and 14, 1989, in discriminatorily removing and
retaining Charging Party union literature from employee
breaktables, Respondent violated Section 8(a)(1) of the Act.
4. By the actions of its supervisor and agent, Bruce House-
man, on May 8 and 9, 1989, in polling employees with re-
spect to their union sympathies, Respondent violated Section
8(a)(1) of the Act.
5. The unfair labor practices found to have been com-
mitted above are unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
6. The appropriate unit is:
All full-time and regular part-time production and
maintenance employees employed by Keeler Brass
Automotive Group, a division of Keeler Brass Com-
pany, and KB Lighting, a joint venture of Keeler Brass
783KEELER BRASS CO.
14 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
15 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National Labor
Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations
Board.’’
Company, at its facilities located at 2929 32nd Street,
S.E., Kentwood, Michigan and 236 Stevens Street,
S.W., Grand Rapids, Michigan, including all
blockmakers, electricians, factory clerical employees,
factory janitors, fork lift mechanics, inspection employ-
ees, factory laboratory employees, machine repair em-
ployees, machinists, material handlers, millwrights,
pipefitters, set-up employees, sheetmetal employees,
shipping and receiving employees, tool and die employ-
ees, truckdrivers and welders; BUT EXCLUDING all
casual employees, confidential employees, draftsmen,
engineering employees, managerial employees, office
clerical employees, professional employees, technical
employees, temporary employees, sales employees,
watchmen, and all guards and supervisors as defined in
the Act.
7. All objections to the election should be dismissed.
8. The challenges to the ballots of Bruce Houseman, How-
ard Hendricks, Dennis Hill, Robert Shomler, Ronald
Laninga, Diane Ludlow, John Westerling, Roland Ade, and
Jerry Hall should be sustained and their ballots should not
be counted in determining the outcome of the election. The
challenges to the ballots of John Wulfsen, Shirley
Blackmore, Tim Connor, Tom Hillbrand, Harold DeRidder,
Tim Miller, Archie Rayl, David Bailey, Tina Freyling, Carol
Dohrn, Gerry Kaminski, Adrian Wouters, Theresa Jeurink,
Marie Klutman, Joyce Tompkins, Don Barnes, and William
Barnes are not sustained and their ballots should be counted
in determining the outcome of the the election as they are
sufficient to affect the outcome of the election.
THE REMEDY
Having found that the Respondent has committed viola-
tions of Section 8(a)(1) of the Act, it shall be ordered to
cease and desist therefrom, and post an appropriate notice.
The Election Challenges and Objections
I recommend that Case 7–RC–18961 be remanded to the
Regional Director for Region 7 with a direction to sustain the
challenges to the ballots of Bruce Houseman, Howard Hen-
dricks, Dennis Hill, Robert Shomler, Ronald Laninga, Diane
Ludlow, John Westerling, Roland Ade, and Jerry Hall, and
to overrule the challenges to the ballots of John Wulfsen,
Shirley Blackmore, Tim Connor, Tom Hillbrand, Harold
DeRidder, Tim Miller, Archie Rayl, David Bailey, Tina
Freyling, Carol Dohrn, Gerry Kaminski, Adrian Wouters,
Theresa Jeurink, Marie Klutman, Joyce Tompkins, Don
Barnes, and William Barnes, and to open and count their bal-
lots. I recommend that the Regional Director then serve on
the parties a revised tally of ballots and issue the appropriate
certification.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended14
ORDER
The Respondent Keeler Brass Automotive Group, a Divi-
sion of Keeler Brass Company and K B Lighting, a Joint
Venture of Keeler Brass Company, Grand Rapids, Michigan,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Removing from employee breaktables Charging Party
union literature.
(b) Polling its employees concerning their union sym-
pathies.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of their rights
guaranteed them under Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at its facilities in Kentwood and Grand Rapids,
Michigan, copies of the attached notice which is marked
‘‘Appendix.’’15 Copies of the notice, on forms provided by
the Regional Director for Region 7, after being signed by
Respondent’s authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all
places where notices are customarily posted. Reasonable
steps shall be taken to ensure that the notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
784 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL NOT remove union literature from employee
breaktables.
WE WILL NOT poll our employees concerning their union
sympathies.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
KEELER BRASS AUTOMOTIVE GROUP, A DIVI-
SION OF KEELER BRASS COMPANY AND K B
LIGHTING, A JOINT VENTURE OF KEELER
BRASS COMPANY