Mid-Continent Spring Co. Of Kentucky

National Labor Relations Board - Board Decisions

Dec 14, 1985

273 N.L.R.B. 884 (N.L.R.B. 1985)

884

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mid-Continent Spring Company of Kentucky and
James Stacy Richardson, Petitioner and Local
No. 1993, International Union, United Automo-
bile, Aerospace and , Agricultural Implement
Workers of America, UAW. Case 9-RD-1193
14 December 1985
DECISION AND DIRECTION OF
SECOND ELECTION.
BY MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
The National Labor Relations Board, by a three-
member panel, has considered objections to an
election held 10 May 1984 and the hearing officer's
report recommending disposition of them. The
election was conducted pursuant to a Stipulated
Election Agreement. The tally of ballots shows 34
for and 85 against the Union, with 16 challenged
ballots, an insufficient number to affect the results.
The Board has reviewed the record in light of
the exceptions and brief and adopts the hearing of-
ficer's findings and recommendations' only to the
extent consistent with this decision.
On. 16 May 1984 the Union filed objections to
conduct affecting the results of the election con-
tending, inter alia, that the Employer interfered
with the election by selecting Kathy Marsh, its
"personnel manager," as its observer. The Union
had protested at a preelection conference to the use
of Marsh as the Employer's observer. Notwith-
standing this protest, the Employer decided it
would use her as its observer, contending that
Marsh was merely a personnel clerk.
Based on the credited testimony, the hearing of-
ficer found that Marsh was "closely identified with
management." 2 Although acknowledging the estab-
lished Board policy that supervisors and persons
closely identified with management may not act as
observers, the hearing officer concluded that the
election should not be set aside. According to the
hearing officer, an exception to this Board policy
was warranted because the Employer, including
Marsh, did not campaign or take a position during
the election, that it was not the first election for
unit employees, and that the Union had represented
the employees for a number of years. Under these
circumstances, the hearing officer concluded that
In the absence of exceptions, we adopt, pro forma, the hearing offi-
cer's recommendation to overrule Objections 2 and 5
2 The hearing officer based his finding on the fact that Marsh is con-
sidered by the employees to be "personnel manager" and is a member of
the management negotiating team In addition, Marsh attends supervisory
meetings and represents the Employer at the first step of the grievance
procedure, advises the Union of the hiring and termination of all employ-
ees, advises the employees about personnel policy, and receives employee
complaints No exceptions were filed to the finding that Marsh was
"closely identified with management"
the employees were "less likely to be swayed by
campaign rhetoric or the desires of either the Em-
ployer or the Union in making their decisions."
The Union excepts to the hearing officer's rec-
ommendation to overrule this objection, contend-
ing that the mere presence of an observer closely
identified with management is so inherently coer-
cive that it constitutes objectionable conduct with-
out any showing of actual interference. We find
merit in the Union's exception. As the hearing offi-
cer stated, it is well established that an employer
may not select a supervisor or a person closely
identified with management to be its election ob-
server. Worth Food Market Stores, 103 NLRB 259,
260 (1953); Watkins Buick Co., 107 NLRB 500
(1953); B-P Custom Building Products, 251 NLRB
1337, 1338 (1980). Indeed, the Board has held that
the use of such observers by an employer warrants
setting aside the election since it is a fundamental
deviation from the Board's established rules for the
conduct of an election. International Stamping Co.,
97 NLRB 921, 923 (1951). This is true whether 'or
not there is a demonstration of actual interference
or, alternatively, a showing that no interference
took place. International Stamping Co., 97 NLRB
921, 923 (1951); Peabody Engineering Co., 95 NLRB
952, 954 (1951).
In recommending that the use of Marsh as an ob-
server was not objectionable, the hearing officer
enumerated factors which he believed demonstrat-
ed that such conduct did not result in any preju-
dice to the Union. As stated, the Board has held
that the fact that an observer closely identified
with management "could not have had a coercive
effect on the voters is besides the point." Peabody,
supra at 954. The use of such an observer is a fun-
damental deviation from the Board's rules which
requires the election to be set aside. Accordingly,
we find that the Employer's use of Marsh was an
objectionable deviation from the Board's rules for
the conduct of an election. Therefore, we find that
the election must be set aside and a new election
held.3
[Direction of Second Election omitted from pub-
lication.]
MEMBER HUNTER dissenting.
Unlike my colleagues, I agree with the hearing
officer that in the particular circumstances of this
case no prejudice resulted from the use of Marsh as
the Employer's election observer.' Hence, I find
3 The Union also excepted to the hearing officer's recommendation to
overrule the Union's objection concerning alleged unlawful restrictions
placed on the employees' right to solicit union support In light of our
decision, we find it unnecessary to rule on this objection
Attached is the portion of the heanng officer's report dealing with
Objection 6
273 NLRB No. 117
MID-CONTINENT SPRING CO 885
no merit in Objection 6. As there is no other objec-
tionable conduct I would issue the appropriate cer-
tification.
APPENDIX
OBJECTION NO. 6:
In this Objection, the Union asserts that the Employer
interfered with the conduct of the election by selecting
Kathy Marsh, its "personnel manager," as its observer.
In support of its position, the Union presented evidence
through witnesses Jack Crotts, an international represent-
ative for the UAW; Lewis Wiley, president of the Union;
Linda Cox, vice-president of the Union; Imogene White,
a trustee of the Union; Jane Mitchell, financial secretary
of the Union and its chief steward, and, former employ-
ees William Stanley, Brenda Birdsong, Shirley Walker,
and Roxey Hale. The Employer presented evidence
through Donald Langhi, its chief executive officer; Her-
bert Lingenfelter, its plant manager; and Kathy Marsh,
whose title according to the company is "personnel."
The undisputed and/or uncontradicted facts in this
matter are that on the date of the election May 10, 1984,
the Union at the pre-election conference objected to the
use of Ms. Marsh as the Employer's observer on the
ground that she was the Employer's personnel manager.
It appears from the record that the Board Agent con-
ducting the election advised the Employer that observers
must be nonsupervisory employees After a lengthy dis-
cussion, the employer apparently asserted that Marsh
was merely a personnel clerk and decided it would use
her as its observer, notwithstanding the Union's objec-
tion. The record fails to reveal any evidence of miscon-
duct by Ms. Marsh during the actual election. Therefore,
the only issue to be resolved is whether her mere pres-
ence as the Employer's observer is grounds for setting
aside the election
The record reveals that prior to 1980 the Employer
did not have a personnel manager. In 1980, the Employ-
er hired Ken Barten, a consultant, for the purpose of set-
ting up a personnel department Barten admittedly had
the title of personnel manager and could hire and fire
employees. When Barten's contract expired after 1 year,
he was terminated and Marsh, then known as Kathy
Houchens, took over Barten's job in the personnel office.
At the time, the authority that Barten had to hire and
fire was allegedly not granted to Marsh. Marsh, who had
previously been 'Donald Langhi's secretary, did not re-
ceive any increase in benefits when she took the person-
nel position and was paid considerably less than Barten.
The record does not reveal any evidence that the Union
or the employees were ever advised that Marsh unlike
Barten did not possess the right to hire or fire employees
or she was not the Employer's "personnel manager." On
the contrary, there is considerable evidence that the em-
ployees continued to believe Marsh was the "personnel
manager" In fact, the Employer's own attorney, Mil-
burn Keith, referred to Marsh (Houchens) as the Em-
ployer's personnel manager in a letter to Jack Crotts in
late September 1983. (Union Ex. 1) It was uncontradict-
ed that the letter was a confirmation of the composition
of the Employer's "negotiating team" for the upcoming
1983 contract negotiations In light of the fact that Keith
is also an officer of the corporation who should be well
aware of Marsh's position, and in light of the fact that
during the actual contract negotiations the Employer"
and Union tentatively agreed to make the "personnel
manager" the Employer's representative during the first
step of the grievance procedure (Union Ex. 2), I find
that the reference to Marsh as personnel manager was
not mere oversight and that she was known to employ-
ees as the "personnel manager."
Marsh testified that upon assuming her job, she was
advised by Barten that her duties would-consist of doing
the payroll, acCepting job applications, and processing in-
surance claims She denied being -given any type of su-
pervisory authority. However, she admitted attending 13
out of 19 of the 1983 contract negotiation sessions, ad-
mitted sittirig • in on a majority of 3rd step grievance
meetings and sitting in on a majority of supervisory pro-
duction meetings. However, she asserted the purpose of
her attendance was and is simply to take notes or, in the
case of grievance meetings, to answer questions asked by
management, to type answers to the grievances, or to
obtain employee files if necessary. She denied having any
input in employee evaluations and denied attending any
meetings involving strategy for negotiations or possible
changes in personnel policy. (However, with regard to
the latter, there haven't been any substantive changes
since Barten left and it is possible no such meetings have
been held.)
The record reveals that Marsh is the only person who
works in the personnel office and that employees go to
her for the purpose of getting - safety glasses, filing tax
forms, processing insurance claims, filing job applica-
tions, asking questions about the Employer's personnel
policies and, at least, in some cases, for the purpose of
making complaints." In addition, part of Marsh's duties
in the past have been to prepare seniority lists, dues
check off lists and notifications of hire or termination of
employees for the Union. Employees' vacation requests
and medical excuses are eventually given to Marsh, and
she maintains employee attendance records. With respect
to the hiring of employees, Marsh testified that she
merely takes job applications .and, that if a supervisor in
a particular department needs someone, the supervisor
reviews the applications and instructs her who to call.
She admitted that most persons hired are hired without
any pre-job interview. After calling new employees,
Marsh advises them how much they will be paid, what
benefits they will receive and tells them that they will be
on probation. She also instructs employees how to use
the time clock and introduces them to their supervisor.
Marsh denied any input in the hire of employees and as-
serted she does not screen or "weed out" any applica-
tions. With respect to her other duties, Marsh contended
she only follows guidelines set up before she took the job
Langhi and Lingenfelter were also part of the Employer's negotiat-
ing team and could have corrected any mistake concerning Marsh's title
if they had so desired
1. 1 See, for example, the discussion in Objection No 3 where employ-
ees complained to Marsh about allegedly being harassed about joining the
Union during working time '
886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and that her functions do not require the use of any inde-
pendent judgment. She asserted she takes no independent
action with respect to employees with attendance prob-
lems. 12 -
The record reveals that Marsh's benefits and wages
during the critical period" were. comparable to various
expediters and bookkeepers in the Employer's office. Her
weekly pay of $300 was less than that of the lowest paid
foreman who was paid .between $300 and $350 weekly.
Her benefits, as well as those of other office personnel,
excluding executives, appear to be about the same as for
those employees in the bargaining unit. Marsh who was
on a weekly salary during the entire period, has not
punched the time clock for approximately a year.
Rather, she keeps her own time and gives it to Herbert
Lingenfelter, the plant manager. Marsh, like other office
personnel, is eligible for a bonus based on merit and lon-
gevity. She uses the same parking lot, restroom, and
break area as other office personnel. Finally, it is undis-
puted that Marsh delivers paychecks to the foreman in
the plant in. full view of the unit ,employees.
Several union witnesses attempted to show that Marsh
took an active part in their evaluation meetings, in the
3rd step grievance meetings, and during contract negoti-
ations. However, based upon the entire record, including
the demeanor of the witnesses, I conclude that one or
more management officials attended such meetings and
that Marsh's participation was generally limited to re-
sponding to questions concerning information contained
in personal records and to obtaining files, if necessary.
Notwithstanding the above, Roxie -Hale testified with-
out contradiction that during a job evaluation, Marsh, as
well as Hale's immediate supervisor, Theron Blanken-
ship, told her that they were pleased with her work and
that Marsh told Hale she would get' her raise. Because
she appeared to be a very credible witness, I credit
Hale's testimony that such statements were made. How-
ever, I do not believe they are dispositive as to who ac-
tually made the decision to grant Hale's raise I also
credit Hale's uncontradicted testimony that Foreinan
Blankenship once told her to report an employee she had
seen urinating in the parking lot to Marsh.
William Stanley testified that in late June or early July
1984, he called Marsh to find out how the Union "meet-
ing" went. (It was apparent from , his testimony that he
was referring to the election.) During the conversation
Stanley,. who had been laid off for about 15 months,
asked Marsh if he was still required to send a monthly
letter indicating he had a continuing interest 'in employ-
ment. According to Stanley, Marsh told him "no, be-
cause after the end of the month he would be
[de]terminated." Marsh denied Making that statement and
testified she 'merely told Stanley to follow the procedures
set forth in the contract Marsh struck me as the more
•
12 I note that the union witnesses are not in a position to know what
the actual hinng practices of the Employer are or the extent of Marsh's
participation in supervisory meetings or in personal matters As a result,
the Employer's witnesses' testimony was largely uncontradicted Howev-
er, I simply cannot believe Marsh's duties are so routine or clencal If
that were the case, I do not believe the Employer would have agreed to
make her its representative in the first step of the grievance procedure
13 She received a promotion in June 1984
credible witness. However, even assuming that Marsh
made the statement attributed to her, her statement' ap-
pears to be a simple recitation of the provisions set forth
in the collective bargaining agreement concerning em-
ployees laid off for more than 15 months. It does not re-
flect any decision by Marsh.
Finally, union witnesses Crotts and Mitchell both testi-
fied that in one of the early contract negotiation sessions,
Donald Langhi told them Marsh could hire and fire.
Crotts testified that the statement was made after the
Union asserted that a Mr. Mike Stanton was hired by
mailbj/ Mr. Langhi's brother. According to Crotts,
Langhi denied the assertion, claiming that only Marsh
(Houchens at the time) did the hiring. Wiley testified
that after Crotts raised the issue of Stanton's hire, Langhi
replied he did not know anything about it and asked
Marsh if she knew anything. She stated Marsh started to
reply but was interrupted when the Employer called a
recess and went outside. When asked if ,anything was
said as to who had the right to hire during that meeting,
Wiley, like Crotts, asserted Langhi said Marsh had such
authority. Mitchell" when asked about the discussion
concerning Stanton's hire could only recall that Langhi
disagreed that his brother had hired Stanton and asserted
her belief that the Employer had argued that Clifford
(Slim) Carroll, the assistant plant manager, had hired
Stanton.
Employer witnesses Langhi, Lingenfelter, and Marsh
all exhibited poor recollections concerning the conversa-
tion about Stanton's hire. Lingenfelter and Marsh could
not recall if anything was said about Marsh having the
right to hire and fire. Langhi, however, specifically
denied saying Marsh had that right.
Of all the conflicts in the evidence, this one is the most
difficult for me to 'resolve. On the one hand, the Em-
ployer witnesses do not recall the incident well 'andonly
Langhi specifically denied the statement attributed to
him On the other hand, Mitchell's testimony concerning
the statement conflicts in part with that of Crotts and
Wiley. Moreover, it is particularly troubling that Crotts
and Wiley could so clearly recall this conversation but
no others in the negotiations in which Marsh participated
and allegedly spoke. After due consideration, I must con-
clude that the Union has failed to establish by a prepon-
derance of the evidence that Langhi stated only Marsh
could hire and fire and I credit Langhi's denial of that
statement -
It is general Board policy that in the interest of free
elections, supervisors and persons closely identified with
14 Mitchell also testified about statements Marsh allegedly made in
meetings on September 27, 1983, November 21, 1983, and November 23,
1983 However, Marsh had 3 handwritten sets of notes concerning the
September 27, 1983 meeting She could not remember which of the state-
ments was initially prepared Moreover, one of the sets of notes con-
tained changes concerning exactly what was said In addition, I am con-
vinced from the record that Marsh was not even present at the Novem-
ber 21, , 1983, meetings at which Marsh, according to Mitchell, allegedly
spoke Considering the duplicative notes, the changes therein, and Mitch-
ell's demeanor on the stand, I do not credit her testimony concerning the
alleged statements by Marsh on September 27, 1983, November 21, 1983
or November 23, 1983 Therefore, I have not set them forth herein
MID-CONTINENT SPRING CO

887
management may not act as observers." Indeed, the
Board has held that the use of such observers is such a
material and fundamental deviation from the Board's es-
tablished rules for the conduct of an election, that it will
set aside an election without any showing of actual inter-
ference in the way the employees voted in the election.
In so holding, the Board stated that "[e]lection rules
which are designated to guarantee free choice in the
election must be strictly enforced against material
breaches in every case, or they may as well be aban-
doned."16
Notwithstanding the above, limited exceptions to the
prohibition against the use of such observers have devel-
oped over` the years. Thus the Board has refused to set
aside an election contested by two unions wherein the
employer used an alleged supervisor as its observer.17
Similarly, the Board has also refused to set aside an elec-
tion contested by only one union wherein the petitioner
used a supervisor as its observer and majority of its votes
cast were for the petitioner." In both cases, the Board
noted its prohibition against the use of supervisors as ob-
servers was predicated on the likelihood that their pres-
ence at the polls might unduly influence voters to cast
"no-union" votes and that in the circumstances of those
cases the likelihood of such influence was not present. In
addition to the above, the Board has also refused to set
aside elections where the objecting party failed to object
to the use of a supervisor as an observer until after com-
pletion of the election rather than during the pre-election
conference. / 9
To resolve this issue, it is necessary first to decide
whether Marsh is a supervisor or in a position which
closely identifies her with management. Section 2(11) of
the Act states the term supervisor means:
"Any individual having authority, in the interest of
the employer, to hire, transfer, suspend, lay off,
recall, promote, discharge, assign, reward, or disci-
pline other employees, or responsibility to direct
them, or to adjust their grievances, or effectively to
recommend such action, if in connection with the
foregoing the exercise of such authority is not of a
merely routine or clerical nature, but requires the
use of independent judgment."
A review of the record and the credited evidence
therein reveals little direct evidence that Marsh has any
of the aforementioned authority. Marsh has never hired,
fired, laid off, disciplined, or transferred any 'employees
and there is no indication in the record that she has the
authority to do so. At most, the record establishes she
told Roxy Hale that Hale would get a raise and told
Stanley that he would be terminated pursuant to the con-
tract after he was laid off more than 15 months. Howev-
15 Peabody Engineering Company, 95 NLRB 952-954, International
Stamping Co, Inc , 97 NLRB 921-923, Worth Food Market Stores, Inc.
103 NLRB 259, 260, Photo-Sonics, Inc , 254 NLRB 567, 569
16 International Stamping Co, Inc. id Sound Refining, Inc , 267 NLRB
1301
17 Owens-Park Lumber Co , 107 NLRB 131, 132
18 Plant City Welding and Tank Company, 119 NLRB 131, 132 See
also Howard Cooper Corporauon, 121 NLRB 950. 951
19 Howard Cooper Corporation, id
er, those statements do not reflect who made the deci-
sion to give Hale her raise and do not establish that
Marsh terminated Stanley. Most, if not all, of Marsh's
other duties appear to be essentially routine in nature. Fi-
nally, while there is some evidence that employees have
made complaints to Marsh, there is no evidence that
Marsh has actually adjusted any grievance or has the au-
thority to do so Therefore, I cannot, on the basis of the
record before me, find her to be a supervisor within the
meaning of the Act.
Notwithstanding the above, however, I do find that
Marsh has enhanced responsibilities such that she is in a
position which closely identifies her with management
In so holding, I note that Marsh was considered by the
employees (and at least by one management official) as
the "personnel manager." Marsh attends supervisory
meetings, grievance meetings, and was part of the negoti-
ating team for the Employer She generally is the only
person an applicant sees prior to his/her being hired and
as such it is reasonable for employees to assume (even er-
roneously) that she had hired them. In addition, Marsh is
the only person in the Employer's personnel office and it
is she who advises the Union of the hire and termination
of employees—that she is not the one actually making
those decisions is of no moment considering the employ-
ees do not know that is the case. Marsh advises employ-
ees about personnel policy and receives employee com-
plaints. While the record is void of any evidence that she
can resolve grievances, it appears employees believe she
can or that she will find someone who can (otherwise
there would be no purpose in making complaints to her).
Finally, I believe the Employer by agreeing, albeit tenta-
tively, that Marsh would be its representative in the first
step of the grievance procedure, served notice that
Marsh could and did speak on behalf of the Employer.
Accordingly, I find her to be closely identified with
management.2°
Considering my findings, at first blush, it would appear
that to effectively maintain the Board's rules concerning
observers, the election should be set aside. However,
there are factors in this case which I have not seen pre-
viously addressed by the Board It is undisputed, for ex-
ample, that the Employer including Marsh did not cam-
paign or take a position during the election. Moreover,
this is not a first election for the employees of the Em-
ployer, it is the third. Because of that and because the
union has represented them for several years, I believe
the employees of this Employer are less likely to be
swayed by campaign rhetoric or the desires of either the
Employer or the Union in making their decisions as to
whether to vote for or against the Union. In my opinion,
they would tend to make their decisions based on their
perception of the effectiveness of their representation.21
Respectful as I am of the Board's necessity to maintain
its election rules, I also am of the opinion that the desires
of the employees should not be overlooked in these mat-
ters and that election results should not be set aside
easily In the particular circumstances of this case, where
20 B-P Custom Building Products, Inc, 251 NLRB 1337, 1338
21 Assuming there are no unremedied unfair labor practices The
record does not reveal any unlawful conduct by the Employer
888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Employer stayed neutral in a contest between those the Union could have resulted from the use of Ms.
employees who wanted to retain union representation Marsh as the Employer's'election observer.
and those who did not,, I do not believe any prejudice to Accordingly, I recommend that the Union's Objection
No. 6 be overruled.