McNeff Industries, Inc.

National Labor Relations Board - Board Decisions

Jun 11, 1971

191 N.L.R.B. 76 (N.L.R.B. 1971)

76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McNeff Industries, Inc. and United Furniture Work-
ers of America , AFL-CIO. Cases 16-CA-4148 and
16-RC-5508
June 11, 1971
DECISION, ORDER, AND CERTIFICATION
OF RESULTS OF ELECTION
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board hereby orders that the complaint herein be, and
it hereby is, dismissed in its entirety.
CERTIFICATION OF RESULTS OF ELECTION
BY MEMBERS FANNING, BROWN, AND KENNEDY
On March 10, 1971, Trial Examiner Benjamin K.
Blackburn issued his Decision in the above-entitled
proceeding, finding that Respondent had not engaged
in the unfair labor practices alleged in the complaint
and recommending that the complaint be dismissed in
its entirety, as set forth in the attached Trial Ex-
aminer's Decision. He also recommended that the
Union's objections to conduct affecting the results of
the election conducted in Case 16-RC-5508 be over-
ruled and that the results of the election be certified.
Thereafter, the General Counsel filed exceptions and
Respondent filed cross-exceptions to the Decision, with
supporting 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 proceeding to a three-member
panel.
The Board has reviewed the rulings of the Trial Ex-
aminer made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer's Decision,' the exceptions and briefs, and the
entire record in this proceeding, and hereby adopts the
findings,2 conclusions, and recommendations of the
Trial Examiner.' As the Union failed to receive a
majority of the valid ballots cast, we shall certify the
results of the election.
In the "Analysis and Conclusions" section of his Decision, the Trial
Examiner inadvertently referred to Garcia's testimony on redirect as being
that of Ortiz.
Respondent has excepted to certain credibility findings made by the
Trial Examiner It is the Board's established policy not to overrule a Trial
Examiner's resolutions with respect to credibility unless the clear prepon-
derance of all the relevant evidence convinces us that the resolutions were
incorrect. Standard Dry Wall Products Inc., 91 NLRB 544, enfd 188 F 2d
361 (C.A. 3) We find no such basis for disturbing the Trial Examiner's
credibility findings in this case.
Although the Trial Examiner concluded that Phipps was not a super-
visor within the meaning of the Act, and that Respondent could not there-
fore be held responsible for the 8(a)(1) violations Phipps is alleged to have
committed, the Trial Examiner nevertheless made certain findings regarding
these 8 (a)(1) allegations . In view of our adoption of the Trial Examiner's
conclusion that Phipps was not a supervisor within the meaning of Section
2(11) of the Act, we do not adopt the Trial Examiner 's discussion and
findings, conclusions, and recommendations regarding the 8(a)(1) allega-
tions. Further, we deem the Trial Examiner's discussion of the applicability
of the Montgomery Ward (115 NLRB 645) line of cases as well as his
recommendation for a modified unit excluding leadmen to be irrelevant and,
accordingly, do not pass upon such discussion and recommendation.
191 NLRB No. 19
It is hereby certified that a majority of the valid
ballots has not been cast for United Furniture Workers
of America, AFL-CIO, and that said Union is not the
exclusive representative of the employees employed by
McNeff Industries, Inc., Dallas, Texas, in the unit
herein involved, within the meaning of Section 9(a) of
the National Labor Relations Act, as amended.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
BENJAMIN K. BLACKBURN, Trial Examiner: In Case 16-
RC-5508 United Furniture Workers of America, AFL-CIO,
referred to herein as the Charging Party or the Union, filed
a petition on July 24, 1970,' for an election in a unit of
production and maintenance workers employed by McNeff
Industries, Inc., referred to herein as Respondent. The elec-
tion was held on September 16 pursuant to a Stipulation for
Certification Upon Consent Election approved by the Re-
gional Director for Region 16 (Fort Worth, Texas) on August
24. The Charging Party filed Objections to Conduct Affecting
the Results of the Election on September 22 and the charge
in Case 16-CA-4148 on October 12. It filed an amended
charge on October 23, On December 2 the Regional Director
issued his Report on Objections in Case 16-RC-5508 and, on
behalf of the General Counsel of the National Labor Rela-
tions Board, a complaint in Case 16-CA-4148. The Report
on Objections states that "the foregoing objections are also
alleged as unfair labor practices in Case No. 16-CA-4148."
The complaint alleges various violations of Section 8(a)(1) of
the Act by Respondent. The Regional Director consolidated
the two cases for hearing.
Respondent duly filed its answer admitting certain allega-
tions of the complaint and denying others, including the alle-
gation that it had committed unfair labor practices. Hearing
was held before me, pursuant to due notice, on January 12
and 13, 1971, in Dallas, Texas. All parties appeared at the
hearing and were given full opportunity to participate, to
adduce relevant evidence, to examine and cross-examine wit-
nesses, to argue orally, and to file briefs. The issues litigated
were whether A. J. Phipps, a leadman, is a supervisor within
the meaning of Section 2(11) of the Act, whether Respondent
violated Section 8(a)(1) of the Act by Phipps' conduct in
August and September, and whether the election held on
September 16 should be set aside and a new election held
because of that conduct. Upon the entire record,' including
briefs filed by the General Counsel and Respondent, and from
my observation of the demeanor of witnesses while testifying
under oath, I make the following:
Dates are 1970, unless otherwise indicated
Respondent's motion to correct the record in the following respects is
hereby granted- p. 250, 1 11, from "while" to "where"; p 268, 1. 9, from
"on" to "no".
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
McNEFF INDUSTRIES , INC. 77
Respondent, a subsidiary of the Howell Company, is a
Texas corporation. Howell Company is a division of Interlake
Incorporated . Respondent is engaged at Dallas in the manu-
facture of educational furniture, primarily for use with new
electronic teaching methods. During the year prior to issu-
ance of the complaint herein it purchased materials valued in
excess of $50,000 which were shipped directly to it in Texas
by suppliers located in other States and shipped products and
services valued in excess of $50,000 from Texas directly to
customers located in other States. On the basis of these admit-
ted facts, I find Respondent is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that
the Charging Party is a labor organization within the mean-
ing of Section 2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
A. Facts
1. Background
The agreement to hold a consent election in Case 16-RC-
5508 was worked out on the telephone. On August 13 Dur-
wood Crawford, Respondent's attorney, called the Regional
office in Fort Worth. The Board agent handling the case put
Al May, the Union's district director, on the phone. Craw-
ford and May talked. They determined that the only problem
areas concerned leadmen and the janitor. Crawford promised
to get more information and his client's position and call May
back. He did so. After further discussion they agreed that
leadmen and the janitor would be included in the unit. Dur-
ing this conversation Crawford read to May the names of all
Respondent's leadmen. The name A. J. Phipps was among
those Crawford read. As a result of the agreement reached by
Crawford and May, the Stipulation for Certification Upon
Consent Election describes the unit in which election was
held on September 16 as:
All production and maintenance employees, including
janitor, special order manufacturing assembler, lead-
men, employed at the Company's old and new plants
located at 2607 Vinson Street, Dallas, Texas, excluding
all office clerical, professional, student temporary em-
ployees, guards and supervisors as defined in the Act.
Respondent selected A. J. Phipps and another leadman,
Jerold Barger, to act as its observers at the election. At a
preelection conference on September 16 the Union objected
on the ground that they were supervisors. Respondent found
substitute observers, and the election was held as scheduled.
The Union challenged the ballots of Phipps and Barger.
Eight' other leadmen voted without being challenged.
Both the original and amended charges filed by the Union
in Case 16-CA-4148 allege violations of Section 8(a)(1) and
(3) of the Act. The discrimination charged is termination of
the employment of named employees on October 7. Of the
seven persons listed in the second charge, four testified for the
l The record is unclear whether Respondent has a total of 8 or 10 lead-
men in a total complement of 70-75 employees I find 10, relying on the
testimony of Roy Hines, production manager, that he has 4 leadmen work-
ing under him, rather than the testimony of James Wolfe, manager of opera-
tions and Hines' superior, that Hines has only'2, on the theory that Hines
should know better than Wolfe how many leadmen he has immediately
under him. The point is unimportant.
General Counsel before me. On December 17 the Regional
Director dismissed the 8(a)(3) portion of the charge, stating:
the evidence discloses that the employees named in the
charge were not discriminatorily selected for discharge,
especially since seniority was followed, nor was any evi-
dence disclosed establishing that the layoff was not for
economic reasons.
The Union did not appeal the dismissal.
All of the 8(a)(1) violations alleged by the General Counsel
in the complaint and thus, by extension, all of the events
relied on by the Union as objections to the election involve
A. J. Phipps. If Respondent is not responsible for what
Phipps did, it has not violated the Act, nor should the election
be set aside. Therefore, whether Phipps is a supervisor within
the meaning of the Act is the threshold issue to both facets
of this proceeding.
2. The career of A. J. Phipps
Respondent has five admitted supervisors. At the top of its
hierarchy is James Wolfe, whose title is manager of opera-
tions. Immediately under him are Roy Hines, whose title is
production manager, Thomason, Risi, and McElfresh. The
record does not reveal what titles, if any, the latter three have.
Hines is in charge of the general fabrication of the mill.
McElfresh is in charge of plastic manufacturing . Risi is in
charge of machining and the heavy work of the mill. All of
these operations are housed in Respondent's old building.
McElfresh is in charge of the metal shop in the old building
as well as all operations housed in Respondent's new build-
ing, a block away. Hines has four leadmen working directly
under him, including A. J. Phipps. Thomason has one; Risi,
one, and McElfresh, four. The record does not reveal how
much any of the admitted supervisors are paid.
All of Respondent's leadmen have the same authority, re-
sponsibility, and conditions of employment. All are hourly
paid. All punch the timeclock. All receive time and a half for
work in excess of 40 hours a week. Admitted supervisors are
salaried, do not punch the timeclock, and do not receive
overtime pay. Phipps' present rate of pay is $2.90 an hour.
Other leadmen are paid $2.85 and $2.75, as the case may be.
The highest paid rank-and-file employee in Phipps depart-
ments receive $2.50 and hour. Leadmen participate in Re-
spondent's incentive pay plan. Admitted supervisors do not.
Leadmen have the same health and life insurance as rank-
and-file employees. Admitted supervisors have the same
health insurance but $3,000 more life insurance. Leadmen do
not attend supervisory meetings. They did not attend super-
visory meetings held by Respondent in the summer of 1970
in preparation for the September 16 election. The record
contains no testimony about specific incidents involving any
leadman other than Phipps on which a finding could be based
that leadmen as a group possess any of the indicia of statutory
authority specified in Section 2(11) of the Act. The incidents
of this type involving Phipps are taken up in the section
entitled "Analysis and conclusions," below.
Hines became production manager in March 1969, suc-
ceeding Mobley. Prior to that time, Phipps was Mobley's
assistant and an admitted supervisor within the meaning of
the Act. His authority and responsibility extended to the
following departments : edging, drop edge, cleaning, panel
saw, and slab. He was salaried and did not punch the time-
clock. He was paid $600 a month.
When Hines became production manager he demoted
Phipps to leadman because he concluded that Phipps was
incapable of supervising other employees, especially where
discipline was concerned. Phipps ceased to be responsible for
discipline. His area of operations was limited to the edging,
drop edge, and cleaning departments. His hourly wage was
78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
set at $2.75 an hour. (Two raises brought it to $2.90 by
August 1970.) Because the change in his status put him on
incentive pay and overtime, his earnings after he was demoted
were approximately the same as before. At the time he took
over, Hines assembled the employees and announced that,
henceforth, Phipps would be leadman over edging, drop edge,
and cleaning only. He did not detail to the employees how
this change in Phipps' status would affect their prior relation-
ship with Phipps.
In August 1970 Hines had approximately 30 employees
under him, including leadmen. Approximately 15 worked in
edging, drop edge, and cleaning. Hines prepares the
production schedule for the departments under him. This
takes the form of a list of the work orders to be processed in
a given time period in the order in which they are to be
completed. The process begins in an area not under Phipps'
leadership. The product moves into his area on a hand-
operated conveyor line. The sequence in which the various
orders arrive in Phipps' area is determined by the order in
which they are placed on the line. That, in turn, is determined
by the sequence in which the orders appear on Hines'
schedule. Occasionally, for example, when a customer asks
that his order be expedited, the sequence in which work
orders are processed is altered. Phipps has no authority to
and does not make these decisions to deviate from Hines'
production schedule. Hines does. Hines has a glass-enclosed
office in the middle of the production area he supervises. He
spends approximately 10 percent of his time in his office, the
remainder in the production area.
The edging and drop edge departments perform essentially
the same function. Both place the edge on slabs of core
material covered with plastic which become the tops and
sides of the desks and tables Respondent manufactures. In
edging , plastic like that on the top and bottom of the slab is
glued to the edge. In drop edge, the stem of a T-shaped
molding is hammered into a slit in the edge of the core. The
cleaning department does what its name implies . What edg-
ing goes on each load that comes into Phipps' area depends
on the blueprint for that particular product. The blueprint
numbers appear on Hines' production schedule. Getting,the
right edging on each job requires a detailed knowledge of
Respondent's products. Phipps, having worked for Respond-
ent more than 10 years, has that knowledge.
It is Phipps' responsibility to see to it that the work re-
quired in his departments gets done. To that end he moves
the work into and out of the area by pushing it along the
conveyor line. He uses a forklift to bring materials into the
area for the employees to work with. He oversees the work
of the employees in his departments to make sure that the
proper edge gets on each product. He sometimes, although
not regularly, works with the other employees in gluing or
hammering edging into place. Some employees in Phipps'
departments work in teams. For example, in edging there are
two work stations, each manned by a team of two employees.
As already indicated, employees receive a bonus if their
production exceeds a certain figure. Bonuses are figured on
the basis of reports showing how much work they did, which
individual employees or teams of employees, as the case may
be, turn in to Hines; Phipps has no role or responsibility in
the preparation of these reports. He does, as already in-
dicated, share in the bonuses earned in his departments.
In the period just prior to the September 16 election,
Phipps was involved in two, incidents not directly related to
his work which are relevant to the question of whether he is
a supervisor within the meaning of the Act. Around the time
the Stipulation for Certification Upon Consent Election, was
approved on August 24, Respondent informed Phipps and
the other leadmen they were eligible to vote in the election.
Consequently, on August 28, Phipps and at least two other
leadmen attended a union meeting at the home of the mother
of Maria Garcia, one of the employees in the drop edge
department. Refreshments were served. Phipps got drunk.
He got into an argument with Wendell Edwards, an organizer
for the Union. Phipps irked Edwards by asking how big a
raise the Union was going to get him. Heated words were
exchanged. Finally, Edwards implied that Phipps was present
as a spy for Respondent. Phipps said that he was there for
himself and his "people," to find out what the Union could
do for them. Edwards said, "You ain't nothing, you are just
an ordinary worker like the rest of us."
Phipps said, "I can hire and I can fire."'
The second incident is more complicated. Respondent held
meetings of its employees as part of its preelection campaign.
At these Wolfe, the manager of operations, invited employees
to talk to him if they had any questions about the Union.
Lucille Braggs, the leader of the organizing campaign among
Respondent's employees,' told Phipps that she wanted to talk
to Wolfe. Later that day Wolfe came to her work station.
Mrs. Braggs asked him whether it was illegal for her to join
a union. He said that it was not. She asked him whether she
had a right to join a union. He said that she did. She asked
him if he thought a union would be good for her. He told her
he did not feel qualified to answer that question. He suggested
that she talk to a Mrs. Turner, the leader among employees
in a recent successful organizing campaign at Plasco, a sister
company of Respondent in Dallas.
Sometime in late August or early September Phipps took
Mrs. Braggs to Plasco so that she could talk to Leola Turner.'
They left the plant a few minutes before the lunchbreak began
at noon and returned a few minutes after it ended, 30 minutes
later. Before leaving, Phipps told Hines that he was going out
on a personal errand but not that he was going to Plasco. At
the Plasco plant, Mrs. Braggs introduced herself to Mrs.
Turner. Mrs. Turner said she had not been told that Mrs.
Braggs was coming to see her. Mrs. Turner took Mrs. Braggs
into the ladies' room so that they could talk confidentially.
Mrs. Turner told Mrs. Braggs frankly, as one black woman
to another, that the union which Mrs. Turner had worked so
hard to get into the Plasco plant was rigged but that the
Charging Party was a good Union and Mrs. Braggs should
do all she could to get it into Respondent's plant.
3. Analysis and conclusions
Whether Phipps is a supervisor within the meaning of the
Act must turn, in the final analysis, not on what he says he
can do but on what he has done. I have relied on the tes-
timony of Respondent's witnesses, Wolfe and Hines, for my
findings above with respect to Phipps' status and duties in the
plant and his ostensible authority and responsibility. I have
not relied on the testimony of Phipps himself because, as
already indicated, I found him incredible. His version of the
I credit Phipps' testimony that he was "loaded" at the meeting, I do not
credit his testimony that his riposte to Edwards was "I can't hire and fire,
but I've sure seen a lot of them come and go."
S She is referred to in the record as the "president." The record does not
reveal of what.
6 Because I found Phipps a generally incredible witness, I do not credit
his explanation that he learned about Mrs. Turner from his neighbor, Boll
Weevil, and that he took Mrs Braggs to Plasco in order to satisfy his own
curiosity about how unionism had worked out at Plasco. However, I do
credit Wolfe's and Hines' denials that they told him to take Mrs. Bragg' to
Plasco to talk to Mrs. Turner Therefore, I do not infer that they did so. I
do not find that Phipps was acting as Respondent's agent in this episode. I
think the truth of the matter is simply that Mrs. Braggs told Phipps what
Wolfe had said to her and Phipps thereafter took it upon himself to try to
get Mrs. Bragg' and Mrs. Turner together.
McNEFF INDUSTRIES, INC.
Plasco incident , for example, strikes me as contrived to the
point of absurdity . The findings set forth above, however, do
not dispose of the matter, for they leave untouched those
parts of the record which deal with specific episodes in which,
according to the General Counsel , Phipps actually exercised
one of the, indicia of supervisory authority spelled out in
Section 2(11) of the Act. I turn now to those parts of the
record . In making the following findings of fact, I have not
discredited any of General Counsel 's witnesses generally.
There is some conflict between the testimony of General
Counsel's witnesses and the testimony of Respondent's wit-
nesses with respect to some details about these incidents. In
the main , however , there is little real dispute among the
witnesses as to facts , as distinguished from their opinions
about the facts. What follows, then is an attempt to synthesize
what happened from the testimony of all the witnesses except
Phipps while ignoring their opinions about what happened.
Several witnesses testified that Phipps hired and/or fired
specific employees despite Wolfe's and Hines' assertion that
only they had that authority . Antonia Ortiz stated flatly that
Phipps hired her in June 1968. While Respondent does not
concede that Phipps had such authority even then , it points
out that he was an admitted supervisor within the meaning
of the Act at that time. Respondent 's point is well taken.
Mrs. Ortiz also testified that Phipps fired Lupe Rangel in
the summer of 1970 and told Mrs . Ortiz he had done so after
the event . All the witnesses agree that Mrs. Rangel was preg-
nant at the time and experiencing morning sickness . I credit
Hines' testimony that Mrs. Rangel agreed to quit because she
was too ill to continue working . While I do not doubt that
Mrs. Ortiz said to Phipps , "You didn 't let Lupe go?" and
Phipps replied , "Yes, I did," I think , once again , Phipps was
ascribing to himself a bigger role in the episode than he
actually played.
'Anita Ramos testified that Phipps both hired and, in effect,
fired her . She testified she was originially interviewed by
Wolfe, who told her that, since she could not speak English,
he could not use her . A few days later, around June 1, 1970,
a friend "came during working hours and told me to hurry
on down because A. J. Phipps would hire me." When she
went to the plant, Phipps had her fill out some papers and put
her to work . This testimony , of course , falls short of proving
that Phipps , in fact , hired Miss Ramos because it leaves unan-
swered the question of whether Phipps acted contrary to
Wolfe's decision , thus exercising his independent judgment,
or merely sent for Miss Ramos after Wolfe or Hines decided
to hire her despite the fact that she spoke little or no English,
thus acting as a mere conduit for someone else's decision. I
note from the witnesses who appeared before me that inability
to speak English is obviously no real bar to working for
Respondent . The fact that Phipps may have had Miss Ramos
fill out a W-4 form and then showed her where she was to
work and what she was to do has no significance. I credit
Hines' testimony that it was not unusual for him to hire a new
employee, then leave forms with Phipps to be filled in when
the new person first reported for work . Showing new em-
ployees what to do was a part of Phipps ' routine duties as a
leadman.
Miss Ramos worked for Respondent only 3 months.
Around the first of September she became ill. When she failed
to report for several days , apparently a not unusual occur-
rence among Respondent 's employees , Hines considered her
a quit . She came to the plant sometime shortly before the
September 16 election . The various accounts of what hap-
pened at that time can only be reconciled on the basis that a
failure to communicate took place due to the language bar-
rier. I so find . Hines understood all she wanted was a check
that was due her. He gave it to her. She said something to
79
Phipps about coming back to work . He replied "that he was
going to hire me, but it would probably be after election."
Nothing happened after the election . Once again, the record
will not sustain a finding that Phipps had a hand either in
terminating Miss Ramos' employment or in failing to rehire
her.
The General Counsel also relied on the contention that
Phipps regularly transfers employees from job to job. The
only episode in this area which was developed in detail in-
volved Vernon Abron . Abron testified that, when Hines
rehired him in May 1970, Hines told him he would be work-
ing on "odds and ends" for a few days because there was no
immediate opening in any one department but that Phipps,
on the first day, took him into one of Phipps' departments.
Unfortunately for the General Counsel's case, Efrain Gon-
zales, a rebuttal witness called by the General Counsel, tes-
tified that Abron's first day transfer was from cleaning to
edging . Therefore, I credit Hines' testimony that the "odds
and ends" comment was made to Abron at the time he was
hired , several days before he reported for work , and that he
immediately assigned Abron to Phipps ' departments on the
day Abron reported . I find that Abron was taken off cleaning
and put on edging his first day because Gonzales suggested
to Phipps edging could use another hand . Other witnesses
testified , in more general terms, that Phipps, on occasion,
transferred employees from one department to another, in-
cluding departments other than edging, drop molding, and
cleaning. I credit Hines' testimony that, in these instances,
Phipps was merely relaying his instructions.
The General Counsel contends that Phipps grants time off.
The most the record establishes in this area is that employees
sometimes call the plant early in the morning and tell Phipps
rather than Hines that they will not be in that day. Phipps
arrives an hour or more before Hines each morning since
Phipps opens up the plant. The testimony of General Coun-
sel's own witnesses makes it clear that they tell Phipps what
they are going to do and not do rather than ask his permission
to be off.
The General Counsel contends that Phipps effectively
recommends raises. Wolfe and Hines testified that only Wolfe
can approve raises and only Hines can make recommenda-
tions for raises which Wolfe acts on without : independent
investigation. I credit the witnesses who testified for the Gen-
eral Counsel that Phipps told them he was going to "put them
in" for a raise . However, of those who so testified , only one,
Mrs. Ortiz , actually received a raise. And in her case, there
is insufficient detail in the record for me to find that she got
that raise because Phipps "put her in " for it and not because
of some independent reason.
The most persuasive testimony that Phipps is, in fact, a
supervisor within the meaning of the Act was elicited by the
General Counsel in his cross-examination of Maria Garcia,
an employee called as a witness by Respondent, thus:
Q. (By Mr. Penrice) All right.
I believe let me see that I understand your testimony
that you had with Mr. Crawford. Did I understand you
to say that when Jay told you something you didn't
understand it to mean that top management was behind
him or didn 't understand him to mean that top manage-
ment was speaking. What I mean by top management,
Mr. Wolfe or Mr. Hines. Did 1 understand you to say
that? ,
A. Yes, sir.
Q. All right.
But you did understand Mr. Phipps to be your super-
visor? You understood that didn 't you? That he was over
you, did you understand that?
80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. Yes, sir.
Q. When you got ready for time off or wanted to be
away from the plant, who did you go to for this permis-
sion?
A. Jay. [Phipps]
Q. If you had to come in late, would you-would you
go to-who would you go to for that permission?
A. Jay.
Q. If you had done something wrong-if you-if you
had made-done something wrong with your work-
wrong edging or something like that and you had to do
it over, who would make you do it over?
A. Jay.
Q. While you were working in the department, did Jay
do any work himself? Did he do any of the work? What
I mean, did he work on any of the tables and so forth
when you were there?
A. No, sir.
Q. If you-what did he do?
A. Well, if we had work there, he would bring in the
work or pick it up.
Q. Did he see that other employees-the employees
did their work?
A. Yes, sir.
Q. If you had to stop from one job and go to another,
who would tell you to do this?
A. Jay.
However, Mrs. Ortiz testified, on redirect examination:
Q. When Mr . Hines-Phipps was telling you to move
from one job to another or tell you what to work on, do
you ever see him go talk with Mr. Hines about that?
A. Yes, sir.
Q. Who-have you ever heard Mr. Hines tell Mr.
Phipps to tell you people something like that?
Q. Yes sir.
Q. Can you tell from your position there who is mak-
ing these decisions that something is to be done?
A. Roy. [Hines]
Q. Then Mr . Phipps just comes and tells you these
things?
A. Yes, sir.
Therefore, the most I can find from this part of the record
is that employees could perceive no difference in Phipps'
relationship to them based on the way he did his job when he
was assistant production manager under Mobley and the way
he did his job when he was a leadman under Hines. It estab-
lishes only that some employees , at least, thought Phipps was
still their boss, not that he was, in fact , a supervisor within
the meaning of the Act. But Hines told the employees, at the
time he took over from Mobley, that Phipps was no longer
an assistant production manager but only a leadman with
jurisdiction over only part of his former domain . Even though
Phipps took it upon himself to act as if his status and impor-
tance had not changed , a fact to which I have already ad-
verted , there is no evidence from which I can find that he did
so at Respondent's direction or that Respondent ratified any-
thing he did. Therefore, this record will not sustain a finding
that Phipps was acting as Respondent 's agent, as distin-
guished from a supervisor within the meaning of the Act, on
an apparent authority theory. And however the employees
viewed Phipps' authority, they did not think of him as
management 's spokesman . Until his falling out with Ed-
wards, the organizer , at the union meeting on August 28, they
testified , they viewed him as a fellow union adherent.
For the reasons stated , I find the General Counsel has
failed to establish that Phipps has "authority , in the interest
of Respondent , to hire, transfer, suspend, lay off, recall, pro-
mote, discharge , assign, reward , or discipline other em-
ployees ... or to adjust their grievances, or effectively to
recommend such action ." That leaves only "responsibly to
direct them" as a statutory peg on which to hang a finding
that Phipps is a supervisor . This record provides no such peg.
On the record as a whole, it is clear that any authority Phipps
possesses to move employees around and oversee their work
is of purely routine nature and does not require the use of any
independent judgment . I find, therefore , that he is not a
supervisor within the meaning of Section 2(11) of the Act.
Walter J. Barnes Electrical Co., Inc., 188 NLRB No. 11;
Mid-State Fruit, Inc., 186 NLRB No. 11; Welsh Farms Ice
Cream, Inc., 161 NLRB 748.
Having found the threshold issue in this matter against the
General Counsel, I do not reach the Section 8(a)(1) issues. If
I were to find Phipps a supervisor within the meaning of the
Act I would also find that Respondent violated the Act when
Phipps:
(1) As they were returning from Plasco in late August or
early September , impliedly promised a raise to Lucille Braggs
if she would turn against the Union when he said to her, in
the course of a conversation in which he asked whether she
had found out anything good about the Union, "Well, Lu-
cille, you are nice and everybody likes your work and every-
thing, but what I could do is go and pull your file and look
at your record and see if you need a raise and we will give it
to you."
(2) Around September 4, asked Antonia Ortiz how many
employees had attended a union meeting other than the Au-
gust 28 meeting and, when Mrs . Ortiz had named those
present, said , "You know , if the union don 't go through, all
of you all are going to be fired and the first one to walk out
the door is going to be Lucille [Braggs]."
(3) On September 9, came to where Maria Villanueva and
Efrain Gonzales were working , smiled , patted Gonzales on
the back, and said , "Whoever votes for the Union is going to
be fired, so for the last time, I'm going to ask you all to change
your mind."
(4) On various dates in September before September 16,
told Maria Garcia:
(a) If the Union came in, the employees had to stay
in one department and couldn 't drink cokes.
(b) If she voted no, she would always have a job with
Respondent.
(c) If the Union came in, the employees wouldn't have
any more overtime and there would be no piece work.
I would reject Respondent 's argument that a finding that
Respondent is responsible for Phipps ' conduct in these inci-
dents is precluded by the Montgomery Ward line of cases on
the ground that this case is distinguishable . In Montgomery
Ward and the cases which follow it, all the low-level super-
visors in question cast unchallenged ballots in consent elec-
tions as a result of an agreement between the parties that they
were eligible to vote. Here, Phipps cast a challenged ballot.
Therefore, the Union did raise the issue of his supervisory
status in a timely manner, and the principle that an agree-
ment by parties to an election eligibility list is not binding as
to supervisory status in a subsequent unfair labor practice
case, relied on by the General Counsel, must prevail. Ceil-
heat, Inc., 173 NLRB No. 127, and cases cited therein.
On the other hand, I would find that Respondent did not
violate the Act when Phipps:
(1) Around August 14, told Maria Villanueva that Anita
Ramos was for the Union, a fact which Mrs. Villanueva then
confirmed.
7 Montgomery Ward Company, 115 NLRB 645
McNEFF INDUSTRIES, INC.
(2) Shortly after August 28, had a conversation with An-
tonia Ortiz about the union meeting of August 28 in the
course of which he asked her various questions about the
meeting.
(3) After August 28, told Antonia Ortiz to think about
what she was doing in favoring the Union, adding, "You
know how they are doing and I can give you a lot of reasons
why the Union is no good for you all."
(4) Just before they went to Plasco in late August or early
September, asked Lucille Braggs, "Since you are the presi-
dent and everybody likes you, if you decide not to vote for the
Union, would you tell the others to vote no?"
(5) Around September 2, told Maria Villanueva and Lu-
cille Braggs to quit talking about the Union and get back to
work, or else they would get fired.
(6) Around September 2, told Vernon Abron that he did
not think Abron would vote for the Union but he had a
feeling that Lucille Braggs and "Felix" might influence
Abron to do so; and that Abron, having been on the job for
more than 3 months, was eligible for a raise but Phipps would
have to wait until after September 16 to see if he could get
Abron one.
IV. THE OBJECTIONS TO THE ELECTION
Having found that Respondent is not responsible for what
was done by A. J. Phipps, the only person whose conduct has
been objected to by the Union, I recommend that the Union's
Objections to Conduct Affecting the Results of the Election
in Case 16-RC-5508 be overruled and that a certification of
the results of the election held on September 16 be issued. If
I were to find Phipps a supervisor within the meaning of the
Act, I would recommend that the Union's objections be sus-
tained on the ground that the conduct of Phipps which I
would find violated Section 8(a)(1) of the Act also constituted
81
incidents which illegally affected the results of the election
and that a second election be held. In that event , since there
is no dispute in this record that Phipps' authority and respon-
sibility are the same as Respondent 's other leadmen, I would
also recommend that the unit to which the parties agreed
when they entered into a Stipulation for Certification Upon
Consent Election be modified and that the second election be
held in a unit consisting of:
All production and maintenance employees , including
janitor and special order manufacturing assembler, em-
ployed at the Company's old and new plants located at
2607 Vinson Street , Dallas, Texas, excluding all officer
clerical, professional , student temporary employees,
guards, leadmen, and other supervisors as defined in the
Act.
Upon the foregoing findings of fact , and on the entire
record in this case, I make the following:
CONCLUSIONS OF LAW
1. McNeff Industries , Inc., is an employer engaged in com-
merce within the meaning of Section 2 (6) and (7) of the Act.
2. United Furniture Workers of America, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of the
Act.
3. The allegations of the complaint that Respondent vi-
olated Section 8(a)(1) of the Act by the conduct, on various
occasions , of A. J. Phipps have not been sustained.
Upon the foregoing findings of fact, conclusions of law, and
the entire record and pursuant to Section 10 (c) of the Act, I
hereby issue the following recommended:
ORDER
The complaint is dismissed in its entirety.