Richardson Brothers Co.

National Labor Relations Board - Board Decisions

Feb 18, 1977

228 N.L.R.B. 314 (N.L.R.B. 1977)

314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Richardson Brothers Company and Local 800, United
Furniture Workers of America , AFL-CIO, Peti-
tioner. Case 30-RC-2698
February 18, 1977
SUPPLEMENTAL 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
National Labor Relations Act, as amended, a three-
member panel has considered objections to and
determinative challenges in an election held on
December 18, 1975,2 and the Hearing Officer's report
recommending disposition of same. The Board has
reviewed the record in light of the exceptions and
briefs, and hereby adopts the Hearing Officer's
findings and recommendations,3 except as modified
hereinafter.
The Hearing Officer found that Richard Menzer is
not a supervisor. We disagree, for the following
reasons.
Menzer is employed in the finishing department as
either a "leadman" or "assistant foreman." 4 Menzer's
basic function is to keep the production line in the
finishing department running smoothly. As part of
that function he reassigns the department's 22 em-
ployees among the various jobs to meet workflow
demands ; 5 examines the work of these employees,
pointing out mistakes; checks on errors reported to
him by the inspector; and trains new employees. He
also substitutes for Finishing Department Supervisor
Heckman during his absence.
Menzer, in carrying out his duties in connection
with monitoring and reassigning the work in a
department as large as the finishing department, must
of necessity make judgments which are more than
routine in nature. Unlike the Hearing Officer, there-
fore, we conclude that Menzer responsibly directs
employees in their work and that his duties in this
regard indicate supervisory status.
Further indicative of Menzer's supervisory status is
the fact that Heckman informed employees that they
would be taken to the personnel office if they failed to
obey Menzer's instructions . While the effect of being
taken to the personnel office is not set forth in the
record, it is clear that employees viewed this action as
at least a prelude to possible discipline. Thus,
employees in effect were told that Menzer's orders
were to be obeyed or discipline would be a likely
consequence . In these circumstances , the employees
had every reason to conclude that Menzer had the
type of authority indicative of supervisory status.
228 NLRB No. 44
We conclude, therefore, that Menzer is a supervi-
sor. Accordingly, we shall sustain the Petitioner's
challenge to Menzer's ballot.
As we have sustained the challenges to the ballots
of David Herberg, Richard Menzer, and Stella Miller,
and as the ballots of Virginia Boetcher, LeRoy
Schuricht, and Albert Wiedemann cannot affect the
outcome of the election, we do not adopt the Hearing
Officer's recommendation to open and count their
ballots.
Since the Petitioner has received a majority of the
valid votes cast, we shall issue the following:
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots have been cast for Local 800, United Furni-
ture Workers of America, AFL-CIO, and that,
pursuant to Section 9(a) of the National Labor
Relations Act, as amended, said labor organization is
the exclusive representative of all the employees in
the following appropriate unit for the purposes of
collective bargaining in respect to rates of pay, wages,
hours of employment, or other conditions of employ-
ment:
All production and maintenance employees em-
ployed by the Employer at its Sheboygan Falls,
Wisconsin, plant, excluding office clerical employ-
ees, professional employees, guards and supervi-
sors as defined in the Act.
1 The instant decision supplements the Decision and Order issued by the
Board in this proceeding on April 13, 1976 (not contained in the printed
volumes of the Board's Decisions).
2 The election was conducted pursuant to a Stipulation for Certification
Upon Consent Election . The tally was 61 for, and 57 against , the Petitioner;
there were 6 challenged ballots.
3 In the absence of exceptions thereto, we adopt pro forma the Hearing
Officer's recommendation that Petitioner 's Objections I through 4 be
overruled.
The portion of the Hearing Officer's report pertinent to the challenged
ballots is attached hereto as an appendix.
4 There is a conflict in the testimony as to his exact designation.
5 Even though the assignments are not permanent , they are indicative of
supervisory authority.
APPENDIX
THE CHALLENGES
David Herberg
The Petitioner challenged Herberg's ballot claiming
that he is a casual employee. The Employer contends
that Herberg is a regular part-time employee.
Herberg began working for the Employer in Sep-
tember 1975, at the beginning of his senior year in
high school. His job is to chip the accumulated
varnish from pallets used in production and to move
boxes. Herberg's hours are from 7 a.m. to 12 Noon on
Saturdays. It appears that the job was arranged for
RICHARDSON
him by his father, William Herberg, purchasing agent
for the Employer, as the younger Herberg recalls
being told about the job by his father; does not recall
filling out an application ; and was told his hours of
work by his father. The duration of his employment
was not discussed when he was hired.
Although Herberg stated that Kenneth Heckman,
foreman of the finishing department, supervises his
activities , Herberg does not report to him at the
beginning of his workday. Nor, apparently, is Her-
berg required to report his absences or call in when he
is unable to work. He is required to punch a
timeclock to report his hours worked.
The work done by Herberg is not normally includ-
ed in the job duties of full-time production employ-
ees. However , during the recent slack period, the
Employer has allocated this work to production
employees in order to keep them busy. During times
of full production the Employer keeps a special crew
of clean-up employees to perform this work , as well
as the cleaning of production booths, after the end of
the production shift and on Saturdays. Typically
these employees are drawn from the senior class of
the high school. One indication that they do not
continue in these jobs long after graduation is the fact
that the Employer made no attempt to recall the crew
disbanded in early 1975 when work became available
in September 1975.
At the time of the election, Herberg was the only
clean-up worker employed . He says he worked alone.
There is no evidence that he had contact with any
production employees . Herberg receives none of the
benefits enjoyed by full-time production employees.
The Employer has submitted photocopies of Her-
berg's timecards which indicate that he worked 9 of
the 14 Saturdays before the election. The Employer
presented testimony to show that his absences on
November 8, 22, and 29 were due to an injured
shoulder . No reason has been offered for his absence
on October 25; the September 27 timecard was not
submitted. Although the Petitioner attempted to
show that Herberg's absences can be primarily
attributed to conflicts between his work schedule and
that of his school athletic activities (varsity football
and basketball), with the athletic events taking
priority, the record does not support this claim.
Football and basketball games and practices were
scheduled for weekdays only. There are only two
absences for which Herberg cannot account, Septem-
ber 27 and October 25. Therefore, the bulk of the
scheduled workhours missed by him (18.2 of 28.2)
can be attributed to his shoulder injury, with which
he was not able to perform his job. Nevertheless,
Herberg worked only 41.7 of the 70 hours for which
he was scheduled during the 14 weeks before the
election. This results in an average of fewer than three
BROTHERS CO. 315
hours worked per week and about a 40 percent
absence record.
Based upon the above , I conclude that David
Herberg is a casual employee , and does not share a
community of interest with unit employees . Herberg
does not perform unit work ; he has no contact with
production employees ; he is not entitled to benefits
received by production employees . His average
number of hours worked is below that set by the
Board to distinguish casual employees in other cases.
Allied Stores of Ohio, Inc., 175 NLRB 966 . Further, in
a case involving a student who did not work in the
unit , a 40 percent absence rate for scheduled Satur-
days excluded a fording of regular part-time status for
that period . N.L.R.B. v. Sandy's Store, Inc., 398 F.2d
268 (C.A. 1, 1968), wherein a Board Order was
modified . Moreover , in cases where the majority of
student employees terminate their employment soon
after graduation (which appears to be the experience
of the Employer in the instant case ), the Board is
reluctant to include those employees in a unit,
regardless of the number of hours worked or the tasks
required . Highview, Incorporated, 223 NLRB 646;
Pawating Hospital Association , 222 NLRB 672; Auto-
mation and Measurement Division of the Bendix
Corporation, 179 NLRB 140 . Therefore, I recommend
that the challenge to the ballot of David Herberg be
sustained.
Richard Menzer
The Petitioner challenged the ballot of Richard
Menzer on the basis that he is a supervisor. The
Employer contends that Menzer is at most a lead-
man, and does not possess supervisory authority.
Menzer is employed in the finishing department,
which consists of 22 employees . Kenneth Heckman is
foreman of the department. Menzer was referred to
by Petitioner's witness, employee Carole Fenslau, as
the "assistant foreman," although the Employer's
witness, M. Glen Dulmes (vice-president-manufac-
turing), testified that Menzer's title is "leadman."
Menzer has held the position for about 2 years.
Although testimony was offered by both parties
concerning past occupants of the position now held
by Menzer, I do not consider that relevant to a
determination of the status and authority held by
Menzer at the time of the election.
Menzer's basic function appears to be to keep the
production line running smoothly. To that end, his
job consists of starting the line and various machines
before the beginning of the shift; the movement of
materials and supplies as the needs of the line
demand ; the hour-to-hour reassignment of employees
among the various jobs in the department as the
workflow demands; filling-in on jobs that are back-
logged, including inspection (Menzer knows how to
316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
perform all the operations in the department). In
addition to these duties, Menzer is required to train
new employees in the job positions to which they are
assigned by Heckman; to check on the work of
employees and point out errors; to check on errors
referred to him by the inspector (Heckman receives
about an equal number of these referrals); to substi-
tute for Heckman during the latter's absences.
Although Menzer may move employees among the
jobs they are capable of performing in order to
facilitate movement of the line , Dulmes testified that
only Heckman has the authority to assign employees
to their primary job positions or assign them to be
trained for a second operation. There is no evidence
that Menzer has ever encroached upon this authority
or has effectively recommended the assignment of
employees to certain job positions . In one situation
described by Fenslau, an employee even refused to
move to another job when correctly requested to do
so by Menzer. The problem was then resolved by
Heckman.
Heckman's responsibility also encompasses the
discipline of employees and the authorization of
vacation leave and floating holidays. He must also
complete the forms appropriate to these actions.
Dulmes testified that Menzer has never used the
forms, even in Heckman's absence. The forms are
kept locked in Heckman's desk, to which Menzer
does not have a key. If such problems arise during
Heckman's absence , they are handled by Superinten-
dent Robert Ten Pas. Further, Menzer does not take
over Heckman's responsibility to review employee
worksheets (timesheets). He does not grant time off or
settle grievances in Heckman 's absence, but refers
such problems to Ten Pas or to Personnel Director
Ted Bergstrom. Menzer is hourly paid, unlike Heck-
man, who is a salaried employee. Although Menzer's
hourly rate is 30 cents higher than the next highest
rate in the department, this has been attributed to the
fact that he is the only one in the department who is
capable of performing all of the operations. Menzer is
not entitled to the extra benefits granted foremen,
including extra life insurance and income-continua-
tion protection. Menzer does not attend supervisory
meetings, nor has he ever been invited to them.
The extensive testimony regarding the relative
amounts of authority held by Heckman and Menzer
was presented by the Employer through Duhnes.
However, the Petitioner presented no contradictory
testimony. Menzer was not presented by either party.
The record shows then that Menzer's authority over
his fellow employees is limited to his checking of their
work and his moving them among the various jobs in
the department according to production demands. As
he has no authority to discipline employees or
recommend such, his checking of their work remains
at the level of an inspector, merely pointing out errors
and requesting that they be corrected. His reassign-
ment of employees among jobs in which they have
been trained is for the purpose of maintaining a
smoothly-flowing line. His authority does not extend
to the original assignments of jobs . Employee Fenslau
testified that the department was informed by Heck-
man that Heckman would stand behind Menzer and
that if employees did not listen to Menzer, he,
Heckman, would take them to the personnel office.
Petitioner's witness employee Gloria Klumb testified
that she had been warned by Menzer himself that if
she did not move to another job as he requested, she
would be taken to the personnel office. These
statements cannot be considered grants of extensive
authority or disciplinary authority to Menzer. When
Menzer was faced with an employee's refusal to move
to another job, he referred the matter to Heckman
without taking his own action.
Based on the above, I conclude that Menzer's
authority does not rise to the level of supervisory
status. Therefore, I recommend that the challenge to
his ballot be overruled and that his ballot be opened
and counted.
Stella Miller
The Petitioner challenged the ballot of employee
Stella Miller on the basis that she does not perform
unit work. The Employer however, contends that
since Miller does maintenance work, she is to be
included in the unit.
Stella Miller works 3 days a week for a total of
about 6 hours, cleaning the Employer's main office
located in a building separate from the production
plant. This work is done after the office has closed.
Miller performs no job duties within the production
plant, and she does not appear to have any contact
with production employees. She is supervised,by the
office manager, while unit employees are not. Al-
though an unchallenged unit employee, Erwin Wag-
ner, occasionally cleans the offices, his principle
maintenance duties are performed in the production
area while the plant is in operation.
Miller does not enjoy any of the benefits received
by other employees, such as insurance, paid vacations
and holidays, or membership in the employee Benefit
Club.
Based on the above, I conclude that although Stella
Miller may perform "maintenance" work for the
Employer, she does not share a community of interest
with the unit employees. Wendling Printing Company,
177 NLRB 544. Therefore, I recommend that the
challenge to her ballot be sustained.
RICHARDSON BROTHERS CO. 317
Virginia Boetcher
The ballot of employee Virginia Boetcher was
challenged by the Petitioner on the basis that she is
an office clerical employee , with duties and working
conditions differing from those of unit employees.
The Employer maintains that she is not an office
clerical employee but is rather a plant clerical.
Boetcher classifies her job as "production clerk"
engaged in "production control ." She is the only
employee in that classification. Her duties include
monitoring and recording production ; preparing
route sheets for work to be performed, checking bills
of lading against orders ; pulling timecards ; posting
absentee records ; and several miscellaneous duties
such as delivering mail within the plant; posting
notices ; answering the telephone during certain
hours . Although these are "clerical" functions rather
than production or maintenance duties , the Board
does not decide community of interest and unit
placement merely upon the nature of the job per-
formed by the employee.
Boetcher is required by the production control
portion of her job to spend part of her working day in
the plant, monitoring production and resolving
problems with production records and plans. The
greater portion of her working day is spent in her
office , which is located within the plant, a building
separate from the main business office . Her only
contact with the main office is in her delivery there of
mail or records . Boetcher' s work is supervised by the
plant superintendent , while that of the clericals in the
business office is supervised by the office manager.
Although she does not punch a timeclock as do the
production employees , Boetcher shares their starting
time of 7 a . m., whereas the business office clericals
begin work 1 hour later.
Boetcher is entitled to the same benefits enjoyed by
the production employees , including breaks and a
pension plan . The business office clericals are not
entitled to breaks , although they do have a pension
plan. However , the business office pension plan offers
a larger amount than the plan to which the produc-
tion employees are entitled . Boetcher is listed in the
latter plan.
The record does not reveal the Employer 's back-
ground requirements for the classification of produc-
tion clerk . Nevertheless , the position appears to be a
progression from a production position rather than
from , or to, a business office position . No shorthand
or speed-typing skills are required , and Boetcher is
not expected to prepare correspondence of any
nature . Previous to this job she worked in one of the
Employer 's assembly departments.
Based on the above , I find that Virginia Boetcher
shares a stronger community of interest with the
production and maintenance employees than she
might have with the business office clericals based
upon the similar nature of their duties . Moreover, the
duties required of Boetcher have been found in other
cases to be sufficiently close to production to warrant
the status of plant clerical . U. S. Postal Service, 200
NLRB 1143. Therefore , I conclude that the challenge
to the ballot of Virginia Boetcher should be overruled
and recommend that her ballot be opened and
counted.
Le Roy Schuricht
The Petitioner challenged employee Le Roy Schur-
icht's ballot claiming that he was a supervisor at the
time of the election.
Schuricht was foreman of the Employer 's Rough
Mill until May 21, 1973, when his requested transfer
from supervisory status was granted . Since that time
he has been an inspector in the Rough Mill and has
held no supervisory authority, with a possible excep-
tion of 1-1/2 days in 1975.
Sometime in November or December 1975, the
foreman of the Rough Mill took an extended medical
leave and Aubrey Reicher , a quality-control employ-
ee, was assigned to perform the foreman 's duties until
his return. As Schuricht had previously been foreman
of the Rough Mill, he was assigned to assist Reicher's
takeover of the position . At most, Schuricht assisted
Reicher for 1-1/2 days ; most of that time apparently
being spent instructing Reicher in the preparation of
the department's paperwork. Reicher was an experi-
enced supervisor , having had 10 years ' previous
experience as a foreman in another department.
Although it is doubtful that Schuricht exercised any
supervisory authority during the absence of the
Rough Mill foreman , and in his rendering assistance
to Reicher , even had he done so , that isolated exercise
of authority in itself would not exclude him from the
unit as a supervisor. Gordon Mills, Inc., 145 NLRB
771.
Alternatively, Petitioner presented evidence indi-
cating that Schuricht is responsible for the operation
of the kiln, a duty he held while foreman of the
Rough Mill. This in itself cannot exclude Schuricht as
a supervisor . Although operation of the kiln involves
a large degree of responsibility, it requires no exercise
of authority over other employees.
Based on the above , I conclude that Le Roy
Schuncht was not a supervisor at the time of the
election and that the challenge to his ballot should be
overruled and recommend that his ballot be opened
and counted.
Albert Wiedemann
The Petitioner based its challenge to Wiedemann's
ballot on the fact that he was not working on the day
of the election . The issue to be decided , however, is
318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whether he was an employee on the date of the
election.
Wiedemann, a cabinetmaker, works 25 hours per
week repairing tables in the Employer 's table depart-
ment . Since at least 1972, Wiedemann has taken
annual leaves of absence near the close of the
calendar year in order to avoid surpassing the annual
earnings limitations imposed by his Social Security
status . It was during his 1975 leave of absence that
the election in the instant case occurred.
One's status as an employee is not extinguished
during a leave of absence taken in order to avoid
exceeding the earnings limitation . Holiday Inns of
America, Inc. d/b/a Holiday Inn of Oak Ridge,
Tennessee, 176 NLRB 939, enfd. 440 F .2d 994 (C.A. 6,
1971). It is presumed that the employee will return
when he may again earn wages without threatening
his annuity benefits. Although Wiedemann and his
foreman did not discuss a precise date for his return
to work in 1976, their brief comments indicate that
Wiedemann intended to return and there was no
evidence to suggest that Wiedemann would fail to
follow his pattern of returning to work during the first
week of the new year . The fact that other employees
may be asked to file a formal request for leave, where
Wiedemann is not required to do so, is not surprising
considering the recurrent nature of his leaves of
absence.
Based on the above, I conclude that Wiedemann
was an employee on December 18 and eligible to vote
in the election. Accordingly, I conclude that the
challenge to his ballot should be overruled and
recommend that his ballot be opened and counted.
CONCLUSIONS AND
RECOMMENDATIONS
Based upon the findings of fact made herein and
the principles of law discussed above, I recommend
that the Petitioner's Objections Nos. 1 through 4 be
overruled. I further recommend that the challenges to
the ballots of Virginia Boetcher , Richard Menzer, Le
Roy Schuricht and Albert Wiedemann be overruled
and their ballots opened and counted; that the
challenges to the ballots of Stella Miller and David
Herberg be sustained ; and that a revised tally of
ballots issue reflecting the results of the count.
Finally, I recommend that, based upon the Revised
Tally of Ballots, either a Certification of Results of
Election or a Certification of Representative issue.