Quality Chemical, Inc.

National Labor Relations Board - Board Decisions

Sep 4, 1997

324 N.L.R.B. 328 (N.L.R.B. 1997)

328
324 NLRB No. 58
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The only issue raised in the request for review is whether the Re-
gional Director erred in finding the Employer’s foremen were not
statutory supervisors.
The Employer indicates in its request for review that the record
is incomplete inasmuch as the signature page of Exh. 9 is missing.
The indicated page is included in the record in the possession of the
Board. Thus, the Employer’s request to stay closure of the record
is also denied.
4 The parties have stipulated that the following positions: stock
clerk, material handlers, laboratory technicians, all share a commu-
nity of interest with other unit employees and should be included
within the bargaining unit. The parties also stipulated that the fol-
lowing positions should not be included in the bargaining unit: plant
manager, operations manager, production manager, developments
manager, industrial relations manager, senior accountant, mainte-
nance supervisors, shift supervisors, warehouse supervisor, account-
ing assistants, process engineers, associate engineer, chemist 1’s,
production chemist, project coordinators, environmental engineer,
safety coordinator, quality coordinator, accounting clerk, purchasing
agent, purchasing clerk, and secretaries.
5 Also involved in the production operations are laboratory techni-
cians and maintenance technicians, apparently two of each per shift.
The parties have agreed that they are to be included in the peti-
tioned-for unit.
Quality Chemical, Incorporated and United Auto-
mobile, Aerospace and Agricultural Implement
Workers of America (UAW), Petitioner. Case
6–RC–11422
September 4, 1997
ORDER DENYING REVIEW
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HIGGINS
The National Labor Relations Board has considered
the Employer’s request for review of the Regional Di-
rector’s Decision and Direction of Election (pertinent
parts are attached as an appendix). The request for re-
view is denied as it raises no substantial issues war-
ranting review.1
MEMBER HIGGINS, dissenting.
I would grant the Employer’s request for review.
APPENDIX
DECISION AND DIRECTION OF ELECTION
The Petitioner seeks to represent a unit of all full-time and
regular part-time production and maintenance employees em-
ployed by the Employer at its Tyrone, Pennsylvania location;
excluding all office clerical, professional, sales, guards, and
supervisors as defined in the Act.4
Although basically in accord as to both the scope and
composition of the petitioned-for bargaining unit, the parties
are in disagreement on two issues. First, the Employer, con-
trary to the Petitioner, contends that the foremen employed
in its production and maintenance operations are supervisors
within the meaning of Section 2(11) of the Act. The Peti-
tioner, to the contrary, contends that these employees have
no greater authority than lead men and should be included
in the unit. The Petitioner also takes the position that those
employees labeled ‘‘temporary’’ should be excluded from the
unit while the Employer maintains that, although they are la-
beled temporary, employees in this classification are actually
recently hired probationary employees who, in the normal
course of its operation, will become regular full-time em-
ployees provided that their work performance is acceptable.
There are approximately 100 employees in the unit peti-
tioned for here including approximately 20 foremen. The
number of temporary employees fluctuates. At the time of
the hearing there were 11. There is no history of collective
bargaining for any of the employees involved here.
The Employer, a Pennsylvania corporation with its prin-
cipal office located in Jackson, Mississippi, and with facili-
ties located in Dayton, Ohio, and Tyrone, Pennsylvania, en-
gaged in the production and nonretail sale of intermediate
specialty chemicals for the pharmaceutical, agricultural, dye
stuff and automotive industries. Solely involved here is the
Tyrone, Pennsylvania facility. The Tyrone facility consists of
a number of separate buildings. Production operations are
carried on in seven of these buildings and production and
maintenance employees work in all seven.
The facility is under the overall supervision of the plant
manager, Ivan Riggle. Reporting to him and directly respon-
sible for all aspects of production operations is Production
Manager Jay Kisslak. Reporting to Kisslak are four shift su-
pervisors and reporting to each of them are five foremen,
which is the category at issue here.
The production facility operates on a three-shift, round the
clock, 7 days per week basis. Production employees are di-
vided into four crews which work together on a shift and
which regularly rotate from shift to shift. The shift times are
7 a.m. to 3 p.m.; 3 to 11 p.m.; and 11 p.m. to 7 a.m. Each
crew is supervised by a shift supervisor and consists of 5
foremen and 17 or 18 production employees who are classi-
fied as operators. Each crew rotates from shift to shift as a
unit.5 Production activities are carried on, as noted, in seven
different buildings and employees are assigned to each of
these buildings.
The Employer custom manufactures chemicals according
to specifications and directions supplied by its customers for
each order. The production employees, called operators, are
responsible for running the equipment used in this manufac-
turing process. Their duties include transporting and loading
raw materials, operating the various types of processing
equipment, transferring chemicals from one area of the plant
to another as part of the process, basic maintenance tasks,
and monitoring the equipment and processes including the
taking and documenting of readings on the equipment, and
also the packaging of the finished product as required. The
operators are generally assigned to a specific work area, usu-
ally a single building or pair of buildings, and remain there
unless or until transferred. Each of these work areas is the
responsibility of one of the five production foremen who
work on each of the four shift crews and they in turn report
to the shift supervisor who is in overall charge of that crew.
Each foreman, according to his work area may have as few
as two to as many as five operators who report to him.
The foremen also work on the processing equipment and
in that capacity their duties are essentially the same as those
of the operators. In addition, foremen have responsibility for
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329QUALITY CHEMICAL, INC.
overseeing the production process in their work area, which
includes instructing operators as to the operations they are to
perform, assigning operators to particular work stations, ex-
amining equipment and taking certain readings and measure-
ments which are particularly critical to the operation. In this
regard, since it is a custom manufacturing operation, each
new batch or order to be produced may have unique aspects
which require different procedures than those which have
preceeded it. As a result, with each new order to be produced
(referred to as ‘‘campaigns’’ by the Employer), the operators
must be given new instructions as to how to proceed and the
foremen have responsibility for transmitting these directions
to them. The foremen also have responsibility for assigning
employees to particular duties and equipment as the need
arises. In addition, when a shift supervisor is absent from the
facility, either on vacation or for other reasons, a foreman
will fill in in that capacity.
As noted, foremen are expected to man equipment and
participate in the production process with the operators. They
do have the ability to choose which equipment to assign to
themselves and it appears from the record that some of the
equipment requires only periodic monitoring and leaves its
operator free to observe or oversee other aspects of the pro-
duction process in the immediate work area. By various esti-
mates appearing in the record, foremen spend from 50 to up-
wards of 75 percent of their time engaged in these direct pro-
duction activities. In addition, they have responsibility to see
that the production process in their assigned work area is
running properly. This particularly involves the taking of cer-
tain readings and samples from the equipment to ensure the
quality of the product. In addition, foremen have responsibil-
ity for seeing that all safety procedures are followed and that
all safety equipment is properly used throughout the produc-
tion process.
In overseeing the production process in their work area,
the foremen observe the operators and take critical measure-
ments and readings. If an operator has a production problem
or needs direction, the operator will consult the foremen in
the first instance. As previously noted, the foremen also have
responsibility for the observance of safety regulations within
their area. As a part of this function, when outside contrac-
tors or maintenance personnel are to perform work in their
area, the foreman is responsible for reviewing the safety as-
pects of the job and must sign off on a form indicating that
all safety requirements have been met before the work can
proceed. At the conclusion of the project, the foreman is also
responsible for checking that the area has been left in a safe
condition before the job is considered completed.
Foremen have no authority to hire or fire employees.
However, when applicants for employment are under consid-
eration, part of that process includes their being shown
around parts of the production facility and this is done by
a foreman who also interviews them during this tour. Opera-
tors also take part in this informal orientation for applicants.
At the conclusion, the foreman will complete a form evaluat-
ing the applicant while any operators involved will be asked
to state their opinions. This input then becomes a part of the
hiring process, although the final decisions on all hiring are
made by upper management.
While foremen can and do instruct operators in how to
perform their work and as to safety procedures to follow,
they do not directly administer any discipline. They do not
have authority to issue any written disciplinary actions, nor
can they independently remove employees from the job or
send them home. These and all other disciplinary actions are
the exclusive province of the shift supervisors and upper
management.
Scheduling of employees is basically done by the shift su-
pervisor as to vacations or other time off. Employees calling
off work contact the shift supervisor as do any employees re-
questing to leave work in the middle of a shift. Shift super-
visors also have final authority over the assignment of over-
time, although foremen can and do advise the shift super-
visor that overtime is needed and may suggest which em-
ployees should be offered that opportunity. These suggestions
are often but not always followed by the shift supervisors.
Foremen do prepare written performance evaluations for
both regular operators and for what are referred to as tem-
porary employees. Foremen complete an annual evaluation
form for each regular operator in their work area. The eval-
uation is then reviewed by the shift supervisor, who may
modify or add to it, and thereafter the supervisor and the
foreman meet jointly with the operator to review his per-
formance. Advancement within the production department
along the Employer’s promotional hierarchy, from operator-
trainee, to operator, to senior operator, with corresponding
pay increases, is influenced by the employee’s evaluation rat-
ings.
As to ‘‘temporary employees,’’ these are essentially newly
hired operators undergoing a probationary training and ori-
entation period. During this period, the foreman completes
assessments of their performance and progress and takes part
in a weekly meeting with the employee and shift supervisor
to discuss their progress and problems, if any, and to set
goals for the future. Eventually, usually after 90 days, if a
temporary’s work performance is satisfactory, they will be
converted into a regular full-time employee.
Foremen are hourly paid, as are all operators and also the
shift supervisors. Foremen earn approximately $1 to $1.50
more than senior operators, the next highest classification,
and approximately $2 to $2.50 less than the shift supervisors.
All hourly employees receive the same package of fringe
benefits.
As to holiday schedules, for purposes of actually receiving
the holiday off, the foreman and shift supervisor form one
group on each crew which rotates the time off opportunities
among themselves while all of the operators, a larger group,
constitutes a second category which rotates a limited number
of time off opportunities among themselves. Thus, the fore-
men have a greater opportunity for actual time off than do
rank-and-file operators.
Foremen are evaluated annually by the shift supervisor on
the same form used for the evaluation of operators. This
evaluation form includes a category for ‘‘supervisory abil-
ity.’’ However, the record indicates that foremen are only
evaluated on supervisory ability concerning their perform-
ance on the occasions when they fill in for a shift supervisor.
All production employees, from shift supervisors down to
and including temporaries, wear the same uniforms. All em-
ployees also eat in the same employee lunchroom. Employ-
ees keep their own timecards which are submitted to the shift
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330 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 There are also foremen in the maintenance department who over-
see the work of maintenance employees, who the parties agree are
to be included in the bargaining unit. The record indicates that these
maintenance foremen perform their functions in a manner similar to
the production foremen. There is no evidence in the record that they
have any significantly greater authority than that exercised by the
production foremen. Accordingly, their unit placement will be the
same.
7 Sec. 2(11) of the Act defines a supervisor as:
(11) The term ‘‘supervisor’’ means any individual having au-
thority, in the interest of the employer, to hire, transfer, suspend,
lay off, recall, promote, discharge, assign, reward or discipline
other employees, or responsibly to direct them, or to adjust their
grievances, or effectively to recommend such action, if in con-
nection with the foregoing the exercise of such authority is not
of a merely routine or clerical nature, but requires the use of
independent judgment.
supervisor; the foremen do not have any responsibility in this
area.6
As to the category of ‘‘temporary’’ employees, as already
indicated, this label is applied to all new hires in the produc-
tion area during the first 90 days of their employment. Dur-
ing this time, which is essentially a probationary period, the
temporary employees are subject to frequent evaluation and
review by the production foremen and shift supervisors and
they may be dismissed if their work performance is unac-
ceptable. However, presuming that their performance and im-
provement meet the Employer’s standards, temporary em-
ployees generally are retained and converted to regular full-
time operators. The record indicates that this conversion
takes place as openings for full-time positions become avail-
able and that if an opening is not immediately available, a
temporary employee will be retained as a temporary until
such time as an opening does become available. There is no
indication in the record that these employees are hired for
specific limited periods of time or to work only on specific
limited projects or production runs.
In determining the existence of supervisory status, it must
first be determined whether the individuals in question hold
or exercise any of the 12 enumerated indicia of supervisory
authority set forth in Section 2(11) of the Act and, if so,
whether the exercise of that authority entails ‘‘independent
judgment’’ or is merely ‘‘routine.’’
In this case, as set forth above, it is the Employer which
takes the position, contrary to the Petitioner, that the foremen
are supervisors within the meaning of the Act. It is well set-
tled that the party alleging the supervisory status of individ-
uals at issue has the burden of proving that such status ex-
ists. See Northcrest Nursing Home, 313 NLRB 491 at 496
fn. 26 (1993); Hydro-Conduit Corp., 254 NLRB 433 (1981);
Tucson Gas & Electric Co., 241 NLRB 181 (1979). For the
reasons set forth below, l find that the Employer has failed
to sustain its burden of establishing that the foremen here ex-
ercise independent judgment as to any of the indicia of su-
pervisory authority.7
It is uncontested in the record that none of the 22 foremen
at issue here (20 production foremen and 2 maintenance fore-
men) have authority to hire, fire, lay off, recall, suspend, re-
ward, or discipline other employees or to adjust grievances.
It is clear that they have exercised no disciplinary authority
at all over employees beyond reporting infractions to their
superiors and do not even make recommendations in such
circumstances. The foremen do assign employees to work
stations and duties. However, there is no evidence that they
assign work or direct employees with the requisite discretion
or independent judgment. Instead, the evidence indicates that
the foremens’ role in assigning and directing employees’
work is primarily related to monitoring production and train-
ing production employees. Such duties are more consistent
with their generally greater experience and their standing at
the top of the Employer’s promotional hierarchy than it is
evidence of supervisory authority. Further, there is no evi-
dence in the record demonstrating that the foremen exercise
independent judgment when they shift employees around
within their respective work areas to get projects accom-
plished. See, e.g., Brown & Root, Inc., 314 NLRB 19 (1994);
and Hexacomb Corp., 313 NLRB 983, 984 (1994).
Further, the foremen have no authority over employee
scheduling for vacations, time off, or any other purpose. All
of these functions are handled by the shift supervisors.
The foremen are hourly paid and basically have the same
wages and fringe benefits as do concededly nonsupervisory
employees, with the exception that their wage rate is incre-
mentally higher than that of the ‘‘senior operators’’ directly
below them in the employment hierarchy and they enjoy a
marginally more advantageous holiday leave schedule.
The record indicates that foremen have responsibility for
maintaining plant safety rules and procedures and must cer-
tify that certain in-plant work projects adhere to those regula-
tions before the work can be performed. They also are re-
sponsible for seeing that other employees adhere to these
safety standards. However, in this area as well, the foremens’
responsibility is essentially of a routine nature involving the
application of established rules and procedures and carries
with it no independent disciplinary authority in case of a
breach.
The foremen do play a role in the evaluation of employ-
ees, including applicants for employment, new, so-called
‘‘temporary’’ employees, as well as regular full-time employ-
ees. However, in order to constitute evidence of supervisory
status, such evaluations must be independently performed
and must effectively recommend personnel action. See Bayou
Manor Health Center, 311 NLRB 955 (1993), and
Northcrest Nursing Home, supra at 498. In the instant case,
such evidence is lacking.
As to the foremens’ evaluation of applicants for employ-
ment, the record indicates that only after undergoing a sub-
stantial screening and interview process are prospective em-
ployees given a tour of the plant facility by a foreman who
also interviews them and then completes a simple evaluation
form. Concededly, nonsupervisory operators also participate
in this orientation process and have oral input concerning the
applicant. Thereafter, all hiring decisions are effectively
made by higher management from the production department
and the Employer’s human resources staff.
As to new, so-called ‘‘temporary’’ employees, the foremen
are responsible for completing evaluation forms on them at
periodic intervals. However, the shift supervisors also have
full input into this evaluation and concerning any goals or
criticisms which are set forth for the new employees. The
shift supervisors also attend all meetings with these new em-
ployees. Similarly, although the foremen perform annual
evaluations of regular employees, the shift supervisors also
have full input and review in these cases. Thus, while the
foremen clearly contribute to the evaluation of new hires
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331QUALITY CHEMICAL, INC.
8 E. L. Tech Research Corp., 300 NLRB 522 (1990), cited by the
Employer in its brief is not to the contrary. In that case, the individ-
ual whose supervisory status was in dispute performed employee
evaluations completely independently and the evaluations were di-
rectly linked to pay raises. Neither of these factors applies in the in-
stant case.
when decisions on their retention are made, and to evalua-
tions of regular employees which are considered in determin-
ing when employees are promoted up the promotional hier-
archy at the Employer’s facility, the record evidence wholly
fails to establish that the evaluations are the sole or even
principal source used in making these decisions. Further, the
evaluations clearly are not the product of the foremen alone
since (as the samples of the various types of evaluations in
evidence demonstrate) each separate evaluation category is
reviewed by both the foreman and his superior, the shift su-
pervisor. Thus, I do not find that the evidence establishes a
direct causal link between the evaluations and personnel ac-
tions affecting employees such as raises or promotions, or
that the evaluations are the product of the foremen alone,
and, accordingly, I do not find that the evaluations constitute
evidence of supervisory status on the part of the foremen.
See Bayou Manor, supra; Plastic Industrial Products, 139
NLRB 1066 (1962); and United States Gypsum Co., 118
NLRB 20 29–30 (1957).8
Finally, the record indicates that the foremen substitute for
the shift supervisors, who are acknowledged to be super-
visors within the meaning of Section 2(11) of the Act. How-
ever, it is well established that an employee who substitutes
for a supervisor may be deemed a supervisor only if that in-
dividual’s exercise of supervisory authority is both regular
and substantial. See Hexacomb Corp., supra; Gaines Electric
Co., 309 NLRB 1077, 1078 (1992); and Canonie Transpor-
tation, 289 NLRB 299, 300 (1988), citing Aladdin Hotel, 270
NLRB 838 (1984). As stated above, the record here is clear
that the foremen substitute for their undisputed supervisors
only when supervisors are sick, on leave, or otherwise tem-
porarily absent from the facility. Therefore, even if all of the
foremen at issue exercise statutory supervisory authority
when they are substituting for the shift supervisors, their as-
sumption of supervisory duties is irregular and sporadic, e.g.,
during vacation period or on other unscheduled occasions,
and therefore is insufficient to establish supervisory author-
ity. See also Latas de Aluminio Reynolds, 276 NLRB 1313
(1985); and Canonsburg General Hospital Assn., 244 NLRB
899 (1979).
In sum, based on the above and the record as a whole, l
find that the Employer’s production and maintenance fore-
men are not supervisors within the meaning of the Act and
I shall include them in the unit herein found appropriate.
Turning to the issue of the ‘‘temporary employees,’’ l find
that the record clearly establishes that these individuals are
regular, albeit newly hired employees who should be in-
cluded in the unit. The record indicates that this label is as-
signed to newly hired employees during approximately the
first 90 days of their employment but that it is essentially a
misnomer. The employees are hired with the announced ex-
pectation that, provided their job performance is acceptable,
they will in due course be converted to regular full-time em-
ployees. Even in circumstances where such employees reach
the end of their probationary period and there are then no
regular full-time positions open, they are retained as ‘‘tem-
poraries’’ until such time as regular full-time positions be-
come available, at which time they are moved into these po-
sitions. Finally, the record indicates that, for the most part,
temporary employees have in fact been converted to full-time
status in due course. Accordingly, based on the above and
the record as a whole, ‘‘temporary employees’’ will be in-
cluded in the unit found appropriate here.
Accordingly, I find that the following employees of the
Employer constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of
the Act:
All full-time and regular part-time production and
maintenance employees, including foremen and ‘‘tem-
porary employees,’’ employed by the Employer at its
Tyrone, Pennsylvania, facility; excluding all office cler-
ical employees, sales employees, professional employ-
ees and guards and supervisors as defined in the Act.
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