Mark Farmer Co., Inc.

National Labor Relations Board - Board Decisions

Jul 31, 1970

184 N.L.R.B. 785 (N.L.R.B. 1970)

MARK FARMER COMPANY, INC. 785
Mark Farmeâ–º Company, Inc. and Laborers' In-
ternational Union of North America , Local 324,
AGL-CIO, Petitioner . Case 20-RC-9114
July 31, 1970
DECISION AND DIRECTION OF ELECTION
By MEMBERS FANNING, MCCULLOCH, AND BROWN
Upon an amended petition duly filed under Sec-
tion 9(c) of the National Labor Relations Act, as
amended, a hearing was held before Shirley
Bingham, Hearing Officer. The Employer and Peti-
tioner have filed briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby af-
firmed.
Upon the entire record in this case, the Board
finds:
1. The Employer is engaged in the manufacture
and sale of dolls and related products at El Cerrito,
California. It annually derives revenues in excess of
$50,000 from sales to customers outside the State
of California. The Employer is engaged in com-
merce within the meaning of the Act and it will ef-
fectuate the purposes of the Act to assert jurisdic-
tion herein.
2. The Petitioner is a labor organization within
the meaning of Section 2(5) of the Act.
3. The Employer contends that the petition
should be dismissed because it was prematurely
filed. It asserts that the Employer's present unit
complement is only 4 employees, that its business is
seasonal and it will employ, a total complement of
as many as 18 to 21 at the peak of employment
during the last quarter of 1970, and that its present
work force is not a substantial and representative
segment of the work force as it will add 4 additional
permanent employees within the next 6 months.
The Employer is engaged in the manufacture of
dolls and related items. At the time of the hearing
the Employer employed a year-round complement
of eight permanent employees in the unit, as found
below. During the 4 years prior to 1969, four to six
or more temporary employees were hired from Sep-
tember to December of each year to produce for
and fill the Christmas seasonal influx of orders in
' The Baugh Chemical Company, 150 NLRB 1034, 1035
' General Cable Corp, 173 NLRB 251, The Baugh Chemical Company,
supra
those years. In each of those years a new comple-
ment of temporary employees was hired because of
the Employer's inability to obtain the same em-
ployees from year to year. Under the circum-
stances, as the Employer operates continuously on
a year-round basis with a substantial complement of
permanent employees, we find that its business is
cyclical in nature, rather than the kind of seasonal
business which requires postponement of the elec-
tion until the employee complement is at its peak.'
During 1969, the Employer suffered a decline in
business, so that with the employment of the chil-
dren of the president, it obtained sufficient produc-
tion on a year-round basis to fill all the orders
received throughout the year, including those or-
ders received for the Christmas season. As a con-
sequence, no cyclical peak in employment occurred
in 1969, as it had in the 4 prior years. It thus ap-
pears that any hiring of additional temporary em-
ployees in the fall of 1970 will depend on an im-
provement in the Employer's business. It is there-
fore speculative whether, as contended by the Em-
ployer, a substantial number of temporary em-
ployees will be hired during the period from Sep-
tember to December 1970.
The Employer presently employs eight em-
ployees, as found below, in five classifications:
-packaging and shipping, clay and glaze, sewing,
decoration, and clerical. Janitorial work is being
performed by the president and by children of the
president. The Employer desires to hire two em
ployees in decoration, including a moldmaker, one
employee in shipping, and a janitor, by August
1970, if business conditions permit. The hoped for
expansion would therefore result in four additional
employees and at most two additional job classi-
fications, moldmaker and janitor. However, it is
also problematical whether business conditions will
improve sufficiently to permit or warrant any in-
crease in the employee complement.
In the foregoing circumstances, we find, in agree-
ment with the Petitioner, that the employees per-
manently employed at the Employer's plant con-
stitute a substantial and representative segment of
the work force. Accordingly, we shall direct an im-
mediate election.2
We find that a question affecting commerce ex-
ists concerning the representation of certain em-
ployees of the Employer within the meaning of Sec-
tions 9(c)(1) and 2(6) and (7) of the Act.
4. The Petitioner seeks a unit of all production
and maintenance, warehouse, and clerical em-
ployees, excluding children of the president,
salesmen, guards, and supervisors. The Employer
and the Petitioner are in disagreement as to the unit
placement of the employees discussed below. There
is no bargaining history.
184 NLRB No. 93
786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Employer contends that Elizabeth Baughn,
Mary Chamberlain , Carmelita Domingo, and
Katherine Williams should be excluded from the
unit because of their alleged supervision of the
packaging and shipping, clay and glaze , sewing, and
decorating departments.
The undisputed supervisory complement consists
of the Employer 's president and Audrey Williams,
who was hired as plant manager some 2 months
prior to the filing of the petition herein . There are
four employees whose unit placement is not an
issue and who are included in the unit. Two of
these employees , Nelson and Stranburg , are clas-
sified as "clericals " and report directly to Plant
Manager Williams.3 The other two employees in the
unit, Carol Stevens and Teresa Baughn , are clas-
sified respectively as "sewer" and "clay and glaze."
The four alleged supervisors work full time on
production and warehouse work in the same work
area as the unit employees . They are not salaried,
as is the plant manager , and their terms and condi-
tions of employment are the same as those of other
employees , except that three of the four receive a
minor wage differential.
Before the employment of Williams as plant
manager, Elizabeth Baughn and one Mildred
Boyum were responsible for interviewing , hiring,
and discharging employees. Department supervisors
at that time also hired employees . Although Presi-
dent Farmer testified that she instructed Williams
not to interfere with the discharge of any of the unit
employees by one of the four alleged supervisors,
and to discuss any discharges in advance with the
supervisors, the record shows that Williams did not
discuss the only discharge of an employee under a
department head, Dianne Fairchild , a "sewer," with
her alleged supervisor , Domingo. Instead , Williams
discussed it with Farmer. Since Williams became
plant manager , she is the only individual who has
hired , discharged , and given time off to employees.
She has done so without consultation with any of
`In accordance with the parties ' agreement , we find that Nelson and
Stanburgh are plant clerical employees, and, as indicated, we include them
in the unit
' Ross Poria- Plant, Inc , 166 NLRB 494, 496, enfd 404 F 2d 1 180 (C A
5) See also Westinghouse Air Brade Company, 123 NLRB 859, 861
5 In order to assure that all eligible voters may have the opportunity to be
informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their ad-
dresses which may be used to communicate with them Excelsior Un-
the four alleged supervisors. She is also the only
one to whom employees report their hours of work.
Mary Chamberlain is the only employee in the
clay and glaze department and therefore has no em-
ployees under her to direct or supervise. As in-
dicated above, there is one employee, Cora
Stevens, in the sewing department in addition to
Domingo; and one, Teresa Baughn, in decorating in
addition to Katherine Williams. Only Ann Farmer,
the daughter of the president, and Elizabeth
Baughn , work in packaging and shipping . The al-
leged supervisors did not hire the employees in
their departments, and there is no evidence that
they responsibly direct them, or that they have
been delegated or exercise any other indicia of su-
pervisory authority over them.
If the four individuals discussed above were
found to be supervisors, there would be a super-
visory ratio of six supervisors, including President
Farmer and Plant Manager Williams, to four em-
ployees in the unit; or six supervisors to seven em-
ployees, counting the three children of President
Farmer who are excluded from the unit.
In all the circumstances, we find that Elizabeth
Baughn, Mary Chamberlain, Carmelita Domingo,
and Katherine Williams do not regularly possess or
exercise any indicia of supervisory authority, and
we shall, in agreement with the Petitioner, include
them in the unit'
Accordingly, we find that the following em-
ployees constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of
Section 9(b) of the Act:
All production, maintenance, and warehouse
employees of the Employer at its El Cerrito,
California, plant, including plant clerical em-
ployees, but excluding children of the presi-
dent, salesmen , guards, and supervisors as
defined in the Act.
[Direction of Elections omitted from publica-
tion. ]
derwear Inc, 156 NLRB 1236, N L R B v Wyman -Gordon Co, 394 U S
759 Accordingly, it is hereby directed that an election eligibility list, con-
taining the names and addresses of all the eligible voters, must be filed by
the Employer with the Regional Director for Region 20 within 7 days of the
date of this Decision and Direction of Election The Regional Director shall
make the list available to all parties to the election No extension of time to
file this list shall be granted by the Regional Director except in extraordina-
ry circumstances Failure to comply with this requirement shall be grounds
for setting aside the election whenever proper objections are filed
A