Murray Equipment Co., Inc.

National Labor Relations Board - Board Decisions

Nov 22, 1976

226 N.L.R.B. 1092 (N.L.R.B. 1976)

1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Murray Equipment Company, Inc. and International
Union, United Automobile , Aerospace and Agricul-
tural Implement Workers of America , UAW, Peti-
tioner . Case 7-RC-13591
November 22, 1976
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
Pursuant to authority granted it by the National
Labor Relations Board under Section 3(b) of the Na-
tional Labor Relations Act, as amended, a three-
member panel has considered a single determinative
challenge in an election held May 18, 1976,' and the
pertinent portions of the attached Hearing Officer's
report recommending disposition of same. The
Board has reviewed the record in light of the excep-
tions and briefs and adopts the Hearing Officer's
findings only to the extent that they are consistent
with our decision herein.
The sole issue in this case is whether James H.
Presson is a supervisor. The Hearing Officer con-
cluded he was not. We disagree for the following rea-
sons.
Presson serves as assistant foreman on the day
shift.' It is Presson's responsibility as such to improve
the Employer's stock position, reduce the dead in-
ventory, and improve the production flow through
the proper ordering and handling of parts. This func-
tion requires Presson to monitor 30 different prod-
ucts, with a number of different parts, as they pro-
gress through the fabrication process. In order to
carry out this function, Presson at various times di-
rects employees as to which tasks they are to per-
form. He also shifts employees from one task to an-
other when necessary and, at times, requests
employees to redo work. While stating that these ac-
tivities are ordinarily indicative of supervisory status,
the Hearing Officer concludes that Presson's involve-
ment is not sufficiently complex to warrant such a
conclusion. In making this finding, the Hearing Offi-
cer relies on the fact that Presson is given a priority
list which also is given to all employees. However,
this list merely sets forth tasks that need to be per-
formed; it does not assign particular work to particu-
' The election was conducted pursuant to a Stipulation for Certification
Upon Consent Election The tally was nine for, and eight against , the Peti-
tioner, there was one challenged ballot
2 There was some disagreement in the record as to whether Presson actu-
ally had the title of assistant foreman However , the credited testimony
establishes that that title was used by Respondent in a notice informing
employees of Preston 's new position
lar employees. While employees frequently know
which work they are to perform next, Presson on
other occasions must assign tasks and must shift em-
ployees from one task to another in order to main-
tain an even flow of production. Since the number of
items he deals with is quite large, of necessity this
requires him to make judgments which are more than
routine in nature. Unlike the Hearing Officer, there-
fore, we conclude that Presson responsibly directs
employees in their work and that his duties in this
regard indicate supervisory status.
Further indicative of Presson's supervisory status
is the fact that Presson replaces General Foreman
Jack Denier, the only admitted supervisor on the first
shift, during Denier's absences; Presson wears a dis-
tinctive uniform identical to that worn by admitted
supervisors,' permits employees to leave work, albeit
for short periods of time, to go to a nearby store and
return,4 and initials timecards when employees work
through lunch periods. He also initials time tickets S
when employees forget to punch such tickets. Fur-
thermore, the Employer held Presson out as a super-
visor when at the time of his appointment to assistant
foreman it posted a notice to the effect that employ-
ees should accord him the same "respect" and "au-
thority" as Denier. Presson presently receives a dol-
lar more per hour than any of the employees working
under him and, unlike them, has a key to the plant.
Finally, the testimony establishes that the employees
regard him as a supervisor.
In view of the foregoing, we find that Presson re-
sponsibly directs employees in their work and pos-
sesses various other indicia normally associated with
supervisory status. We conclude, therefore, that Pres-
son is a supervisor. Accordingly, we shall sustain the
Petitioner's challenge to Presson's ballot. As the re-
vised tally shows that Petitioner has received a ma-
jority of the valid ballots cast, we shall certify it as
the exclusive bargaining representative of the em-
ployees in the stipulated appropriate unit.
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots have been cast for International Union,
United Automobile, Aerospace and Agricultural Im-
plement Workers of America, UAW, and that, pur-
suant to Section 9(a) of the National Labor Relations
Presson testified that he selected the uniform, however, it is clear from
the testimony of the Employer's president that he approved the wearing of
the uniform so that Presson would be clearly designated as a leader Thus,
Murray testified that a leader is one step above the normal work force and
should be distinguished as such
4The fact that Presson may have later told Darner that he had granted
such absences does not detract from the fact that he possessed authority to
grant leave , without prior consultation
5 These are tickets showing the start and finish of particular jobs that
employees are working on
226 NLRB No. 166
MURRAY EQUIPMENT COMPANY 1093
Act, as amended, the said labor organization is the
exclusive representative of all the employees in the
unit found appropriate herein for the purposes of
collective bargaining in respect to rates of pay, wag-
es, hours of employment, or other conditions of em-
ployment:
All full-time and regular part-time production
and maintenance employees, including shipping
and receiving employees and truck drivers, em-
ployed by the Employer at its 14011 Oakland,
Detroit, Michigan, facility, but excluding all of-
fice clerical employees, professional employees,
guards and supervisors as defined in the Act.
APPENDIX
The ballot of James R. Presson was challenged by
the Petitioner on the ground that he is a supervisor
within the meaning of Section 2(11) of the Act. The
challenged ballot, which is determinative of the ulti-
mate election results, was received and segregated in
a manner adequate to maintain its secrecy. Inasmuch
as the single challenged ballot is sufficient to affect
the results of the election, a preliminary investigation
was conducted with respect thereto under the direc-
tion and supervision of the Regional Director. On
June 2, 1976, the Regional Director, based upon his
investigation of the matter, issued a notice of hearing
on determinative challenge because it appeared that
material issues of fact, including credibility resolu-
tions, existed with respect to the eligibility of James
R. Presson.
The hearing was held before the undersigned on
June 11, 1976, and was conducted in accordance
with the provisions of Section 102.69 of the Board's
Rules and Regulations, Series 8, as amended. All
parties were represented and were afforded full op-
portunity to be heard, to examine witnesses, to intro-
duce relevant evidence and to make oral argument at
the close of the proceeding, the undersigned makes
the following findings of fact, conclusions of law,
and recommendations.
As already noted, the Petitioner challenged the
ballot of James R. Presson on the ground that he is a
supervisor. The Employer contends that James R.
Presson possesses no supervisory authority and is
employed merely as a work leader. There is no dis-
pute that Presson principally works in the fabrication
area of the Employer's facility where the production
runs require the use of a much larger number and
variety of component parts than are seen in the ma-
chining area of the plant, the other production area
of the plant. Presson testified that he spends approxi-
mately 65% of his work day in the fabrication and
machine area operating or repairing the various ma-
chines in those areas. His other duties are at the root
of the dispute between the Petitioner and the Em-
ployer. Conceding that these additional duties are
beyond those of the other production employees, the
Employer contends that Presson functions more as
an exceptionally capable plant clerical and organizer
than as a supervisor.
That Presson spends a good portion of the time
that he is not operating machines in checking and
controlling the level of the various parts needed in
the fabrication area is not disputed. Not only must
Presson observe the number of parts in the area he
must also ascertain the number and variety of parts
that are likely to be needed in the near future by the
fabrication area. Should a shortage be developing
Presson either makes the component part himself on
one of the machines or advises another employee of
the impending shortage so that the other employee
may produce the part. As the production process
wears out various parts of the machines themselves
or uses up necessary raw materials, Presson, after
being so advised by the machine operators, notifies
the Employer's purchasing department so that the
necessary acquisitions can be made.
While an involvement in the ordering and produc-
tion of parts and supplies with a view toward main-
taining an even flow of production can be an indica-
tion of supervisory status, I do not view Presson's
involvement to be sufficiently complex to warrant
such a conclusion. First of all, his primary source of
information about the needed parts and supplies
comes from personal observation of the day-to-day
changes in the levels of the various items needed in
the area. And, the estimation of the significance of
these changes against the fabrication area's future
needs is performed by merely referring to a list of all
jobs currently on order by customers. This list is dis-
tributed to all production employees so that each of
them can decide upon the order in which the various
jobs should be done. There is no evidence indicating
that the number or type of jobs listed on this infor-
mation sheet is subject to any significant variation in
quality, quantity, or complexity. Thus, Presson's re-
sponsibility for maintaining the flow of work by in-
suring an adequate level of supplies and parts does
not seem to require any special skills or under-
standing of the operation of the business, as opposed
to the operation of the plant's machines.
However, it is the Petitioner's contention that in
maintaining the flow of work, Presson has either
gone beyond, or been allowed to go beyond, merely
controlling the flow of needed parts and supplies to
such a degree that the functions or has been allowed
to function as a supervisor. Specifically, the Peti-
1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tioner offers as evidence of Presson's supervisory sta-
tus the fact that he replaces general forman Jack De-
nier during Denier's absences, that he has attended a
meeting with admitted supervisors, that he wears a
distinctive uniform identical to that worn by admit-
ted supervisors, that he directs employees to perform
various tasks, that he allows employees to leave
work, and that he initials the time cards of the em-
ployees when they work through their lunch periods.
On (sic) incident offered to show Presson's super-
visory status was testified to by employees Stanley
Boyce and Stephen Watters. They testified that in the
latter part of 1975 a notice identifying Presson as an
assistant foreman was posted near the timeclock. All
the Employer witnesses denied knowledge of any
such notice but I find that I must credit the recollec-
tions of the two employees in this matter not only
because of their determination to communicate the
fact that they distinguished the alleged notice from
another notice to the same effect but also because of
their apparent concern in this and other areas of their
testimony with giving an accurate response to the
questions put to them. Presson and Boyce both testi-
fied that at one point in 1975 a handwritten notice
identifying Presson as an assistant foreman was post-
ed in the plant but was immediately recognized as a
bogus notice because of the fact that it was neither
signed nor on official stationary. Watters and Boyce
claim that subsequent to this notice, which was ap-
parently posted as a joke, another notice, in typewrit-
ing and signed by the president of the firm, appeared.
Employee Watters recalls the second notice as ap-
pearing in August or September 1975 which was ap-
proximately the time that Presson assumed the duties
that later led the Petitioner to challenge his ballot.
Prior to August 1975 the general foreman of the
plant was a Mr. Baird. After his departure, Denier,
who had been in charge of the machine shop area of
the plant, became the general manager of the plant.
Shortly afterwards, Presson was asked to assume the
duties of a "work leader" in the fabrication area by
Denier because of Denier's evident dislike for having
to coordinate the flow of parts and supplies in that
department. Thus, there is good reason to believe
that such a notice was posted. Employer President
Murray and General Foreman Denier can only state
that they know of no such notice and believe that
their memories or records would inform them of the
existence of such a notice had one ever been posted.
However, merely finding that such a notice was
posted is insufficient for a finding of supervisory au-
thority. First of all, the title apparently ascribed to
Presson was that of assistant foreman, not foreman.
Even the title of foreman itself will not create super-
visory status without the exercise of some supervisory
authority. Meat and Provision Drivers Union Local
626, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America (Quality
Meat Packing Co.), 224 NLRB 186 (1976); Robert D.
Loggins, Ronny M Loggins and Randy Parker d/b/a
Loggins Meat Co., 199 NLRB 291, 298 (1972). Nor is
the fact that the notice apparently contained a state-
ment to the effect that Presson was entitled to the
same "respect" or "authority" as Denier dispositive
of the question of Presson's actual supervisory au-
thority. Harlem River Consumers Cooperative, Inc.,
191 NLRB 314, 321 (1971).
More important, is the absence of any evidence
that any significant change in Presson's status in re-
lation to the other employees took place at the time
of the posting of the notice. Presson did not even
receive a pay raise at that time.
Since assuming his duties in the fabrication area,
Presson has replaced Denier while Denier was on va-
cation. This period lasted for no more than three
weeks and was probably only a 2-week period in late
1975. Since then Presson replaces Denier whenever
the latter is absent due to illness or is out of the plant
temporarily. Such incidents have not been frequent
as Denier rarely leaves the plant for significant pe-
riods and is limited to 5 sick days a year, which he
apparently does not fully use. Such sporadic replac-
ing of a supervisor is clearly insufficient to require a
finding of supervisory status. Tomkins-Johnson Co.,
172 NLRB 2216 (1968).
Presson testified without contradiction that he did
not hire, fire, or effectively recommend such action,
or perform any other supervisory actions, during the
period of Denier's vacation and that prior to replac-
ing Denier he was directed by Denier to simply keep
the production process moving.
While Denier may leave the plant for short periods
during the workday and be replaced by Presson,
there is similarly no evidence of the exercise of any of
the normal prerogatives of a supervisor by Presson
during these periods. Indeed, employee Watters testi-
fied that before leaving on such occasions, Denier
will usually tell him what he should be doing until
Denier returns.
It is undisputed that on a number of occasions
Presson has allowed employees to leave the plant in
order to go to a nearby store and that employees ask
Presson for permission to make such trips when De-
nier is not in the plant or when he cannot be found.
However, the testimony is clear that these trips can-
not amount to much loss of time because the store in
question located within a quarter mile of the plant
and the employees typically travel to it in their auto-
mobiles. Furthermore, Presson testified that he must
report the absence of the employees as soon as Deni-
MURRAY EQUIPMENT COMPANY 1095
er can be located. These factors do not indicate su-
pervisory authority. Rather, they indicate an Em-
ployer policy allowing such absences as long as no-
tice of them is given. However, even the authority to
occasionally grant time off does not establish super-
visory authority because supervisory authority can-
not be predicated on sporadic exercises of limited
authority. Cosby-Hodges Milling Company, 170
NLRB 1137, 1138 (1968).
The fact that Presson wears a distinctive uniform
identical to that worn by admitted supervisors is also
not dispositive of his status. Ibid. The Employer fur-
nishes uniforms to its employees and, according to
Presson, when the selection of uniforms was made in
1975, he simply chose for himself the style of uni-
forms worn by the admitted supervisors. That the
Employer then ordered such uniforms for him and
allowed him to wear them is, of course, indicative of
supervisory status but, as noted above, the mere pos-
session of one or even several indications of supervi-
sory authority is not, in itself, sufficient to establish
supervisory authority, absent the exercise of such au-
thority. Robert D. Loggins, Ronny M. Loggins and
Randy Parker d/b/a Loggins Meat Co., 199 NLRB
291, 298 (1972); Riviera Manor Nursing Home, Inc.,
186 NLRB 806, 820 (1970).
There was no evidence adduced at the hearing that
Presson responsibly directs employees in the perfor-
mance of their work. Rather, the testimony of em-
ployee Boyce was to the effect that he receives work
to do from Presson only on those occasions when he
has completed his own work. This would be in ac-
cord with Presson's own explanation of his duties for
Presson's position in that he has no regular duties
involving the direction of employees and only asks
them to perform particular tasks as he sees that par-
ticular parts are being utilized more quickly than ex-
pected. Boyce, in fact, testified that when he has
completed his regular tasks he often initiates the pro-
cess of getting additional work by informing Presson
that he needs something to do. Routinely assigning
work to employees during their slack periods is not
evidence of supervisory authority, particularly where
the assignments involve work that may be done at
any time but which is more efficiently done during
such slack periods. Evans Orchard Supply Company,
166 NLRB 243, 248 (1967).
Employee Watters' testimony also agreed well with
Presson's. Watters spends most of his time driving a
truck for the Employer. When he needs to locate a
part in order to make a delivery he often asks Pres-
son for the location of the part. When Watters has
nothing to do he is often told to sweep the area
around various machines by Presson but generally
performs this task on his own initiative. Presson's di-
rections, thus, would seem limited to merely inform-
ing Watters of the order in which machines should be
cleaned, whenever that is an important consideration
to the shop employees.
The only testimony that indicated that Presson
changed the work assignments of employees centered
around jobs that for one reason or another the Em-
ployer was anxious to have shipped out quickly. Pres-
son testified that he could inform an employee that a
particular job was "hot" and should be started or
completed before another one should be finished.
Presson stated that he would expect the employee to
then begin the hot job and that if the employee re-
fused to do so he would inform Denier of the em-
ployee's actions. Presson learns which jobs are "hot"
in early morning discussions with Denier. Unlike the
other employees Presson does not have a regularly
assigned machine and receives his orders from Deni-
er at the beginning of each day. During these conver-
sations, according to the credited testimony of both
Presson and Denier, Presson is told which absent em-
ployee he may be replacing that day or which ma-
chine he will be running and which jobs Denier is
especially concerned about so that Presson may
make certain that their production is going smoothly.
None of this indicates anything but the normal du-
ties of a work leader or, as Employer President Mur-
ray put it, an employee who "shepherds" the parts
through the system. Not only does Presson not exer-
cise independent judgment in deciding which parts
should receive priority, there is no evidence that
when he transmits such information to the employees
involved in the production of those parts he goes be-
yond telling them that Denier had said the job was
hot. In seeing to it that sufficient materials are avail-
able for processing or that certain products are
shipped promptly, Presson must necessarily give di-
rections to some employees but to warrant a finding
of supervisory status such directions would also have
to be of a nonroutine nature or require the use of
independent judgment, neither of which appears in
the record. Aerovox Corporation of Myrtle Beach,
South Carolina, 172 NLRB 1011, 1029 (1968).
The fact that Presson is authorized to initial the
timecards of employees that have worked through
their lunch periods is the only significant indication
that Presson has authority over personnel decisions.
Presson is also authorized to initial the tickets em-
ployees keep on which they record the time they
spent on various jobs during the day whenever they
forget to punch the starting or ending time of a job
on the ticket. The ticket, however, is not used to de-
termine the employees' pay and only serves to inform
the Employer of the hours spent on each job so that
proper billing estimates can be made. The record dis-
1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
closes no evidence that Presson has any authority to
order an employee to work through his lunch hour.
Presson claims he initials the timecards only as a wit-
ness to the fact that the employee did work during
his lunch hour. His function in initialing the time
ticket would appear to be a similar one. That Pres-
son, like Denier, is authorized to make such nota-
tions is obviously significant but in the absence of
any evidence that the exercise of this authority re-
quires independent judgment it is insufficient to war-
rant a finding of supervisory status. This is all the
more so when it is remembered that Presson usually
performs these duties only when Denier is out of the
plant or is unavailable.
Presson did attend one meeting at which the other
persons in attendance were all supervisors. This
meeting took place on a weekend at the conference
room of a nearby motel. Murray, Denier, and Pres-
son all denied in their testimony that personnel mat-
ters were discussed and insisted that only such mat-
ters as job and part scheduling were discussed. An
agenda and organizational chart, both allegedly
drawn and prepared by Murray himself and used by
him at the meeting, were introduced at the hearing.
Presson' s name does not even appear on the list of
supervisory or managerial job classifications which
appears with the organizational chart or on the chart
itself . The agenda indicates that such matters as effi-
ciency in inventory control and material flow and the
proper use of forms for keeping track of job schedul-
ing were discussed. The agenda contains nothing to
indicate that any personnel matters were discussed.
Considering that Presson has only attended this one
supervisory meeting, that he did so by invitation
only, and that his presence was apparently due to the
fact that the meeting was to be concerned with a
matter that involved his daily work-the coordina-
tion of component parts production-I do not view
Presson' s attendance as an indication of supervisory
status. Muscle Shoals Rubber Company, 157 NLRB
829, 831-832 (1966).
There are other indications that Presson is not a
supervisor. First of all, the entire first shift of em-
ployees comprises only 12 employees, including Pres-
son. If Presson is found to be a supervisor there
would be two supervisors for eleven employees. Ad-
ditionally, it is clear from the record that although
Boyce and Watters have contact with Presson during
the work day, Presson's principal contacts are with
only two employees, Michael Griffin and Thomas
Webber, who work very near to him in the fabrica-
tion area of the plant. There is no evidence that these
two employees are not subject to Denier 's directions
or are sufficiently distinctive in their duties that they
would require separate supervision. Indeed. the evi-
dence is to the contrary: Griffin works as a grinder
and Webber works as a welder-classifications
which occur elsewhere in the shop. Such low ratios of
employees to supervisors in simple manufacturing fa-
cilities have regularly been found to be an indication
that the individual in question is not a supervisor.
Aerovox Corporation of Myrtle Beach, South Carolina,
172 NLRB 1011, 1029 (1968).
Unlike the admitted supervisors, Presson partici-
pates in a lottery run by the Employer for employees
with good safety and attendance records. Thus, he is
distinguished from the admitted supervisors by the
Employer and in the eyes of the employees . He is not
referred to as a supervisor by any of the employees
and there is no evidence that he refers to himself in
such a manner.
Presson is not even the highest paid employee be-
low the admitted supervisors. Although his wage lev-
el of $6.85 per hour puts him about $1.00 ahead of
the next highest paid employee on his shift, his uncle,
an employee on the second shift, makes $7.85 per
hour and is the highest paid employee other than
admitted supervisors. Presson's uncle, although high-
ly paid in relation to the other employees, does not
customarily replace the second shift supervisor in his
absences. Another employee, Leo Tomaszek, does
that and yet was allowed to vote in the election with-
out challenge from the Petitioner.
Although Presson shares with admitted supervisors
the privilege of carrying keys to the plant, he testified
that he has not had occasion to use the keys to open
the plant at all during 1976. Consequently, it cannot
be said that possession of the keys is an indication of
special responsibilities sufficient to warrant a finding
of supervisory authority.
Finally, there was no evidence presented at the
hearing to show that Presson has ever hired, fired, or
disciplined anyone, or effectively recommended such
action. Therefore, and for the reasons discussed
above, I conclude that James R. Presson is not a
supervisor within the meaning of the Act and recom-
mend that the challenge to his ballot be overruled,
that the envelope containing his ballot be opened
and the ballot counted, and that a revised tally of
ballots issue with an appropriate certification follow-
ing thereafter.