Ridgely Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Aug 11, 1972

198 N.L.R.B. 860 (N.L.R.B. 1972)

860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ridgely Manufacturing Co., Inc. and Amalgamated
Clothing Workers of America, AFL-CIO, Petition-
er. Case 26-RC-3997
August 11, 1972
SUPPLEMENTAL DECISION AND
DIRECTION
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
Pursuant to a Stipulation for Certification Upon
Consent Election approved on June 28, 1971, an
election by secret ballot was conducted on August
20, 1971, under the direction and supervision of the
Regional Director for Region 26 among employees
of the Employer at its Ridgely, Tennessee, location.
At the conclusion of the election, the parties were
furnished with a tally of ballots which showed that of
approximately 233 eligible voters 212 cast ballots, of
which 78 were for, and 79 against, the Petitioner, and
55 were challenged. The challenged ballots were
sufficient in number to affect the results of the
election. Thereafter, the Petitioner filed timely
objections to conduct affecting the results of the
election.
In accordance with the National Labor Relations
Board's Rules and Regulations, Series 8, as amended,
the Regional Director conducted an investigation
and, on October 8, 1971, issued and duly served on
the parties his Report on Objections and Challenges,
in which he recommended that certain challenges be
overruled, that certain challenges be sustained, and
that a hearing be held to resolve certain other
challenges. The Regional Director further recom-
mended that should the Petitioner fail to receive a
majority of the valid votes cast, that Objections 1(a)
and 9 be sustained, and that a new election be
directed, but that should Petitioner receive a majority
of the valid votes, an appropriate certification issue.
The Employer filed timely exceptions and a brief in
support thereof to the Regional Director's report.
On November 30, 1971, the Board issued a
Decision and Order' in which it adopted the
Regional Director's recommendations regarding
Petitioner's Objection 1(a), adopted his recommen-
dations sustaining the challenges to 35 ballots and
overruling the challenges to 6 ballots, and ordered
the case remanded to him for the purpose of
i Not published in Board bound volumes
2 Chairman Miller, who had reservations concerning the validity of
Objection 1(a), would not have ruled on the objections until all challenged
ballots had been resolved
3 The Hearing Officer found the eligible voters to be Samuel Maze,
Nathan Strain, Dorothy Cantrell, Tommie Martin, Lloyd Spence, Peggy
Todd, Mary Lynn Moore , and Ann Jackson
arranging a hearing on issues raised by 14 challenged
ballots.2
Pursuant to the Board's Decision and Order, a
hearing was held before Hearing Officer Charles T.
Corn. Thereafter, on - April 7, 1972, the Hearing
Officer issued and served on the parties his Report
and Recommendations on Challenged Ballots. Upon
consideration of the evidence presented, the Hearing
Officer concluded that eight of the challenged voters
were eligible voters and recommended that the
challenges to their ballots be overruled,3 and found
that six challenged voters were ineligible and
recommended that the challenges to their ballots be
sustained.4
Thereafter, the Petitioner filed timely exceptions to
the Hearing Officer's report contending that Doris
Morgan, to whose ballot the Hearing Officer sus-
tained a challenge, had a reasonable expectancy of
recall, and that Tommie Martin, Mary Lynn Moore,
and Ann Jackson, whom the Hearing Officer found
eligible, were and are supervisors within the meaning
of the Act.
On January 31, 1972, the Petitioner filed a motion
for reconsideration with the Board requesting that
the Regional Director be directed to reconsider his
rulings on objections and challenges relating to
certain employees.5 In this regard the Petitioner,
when it had filed its objections to conduct affecting
the results of the election, alleged, inter aha, that the
named employees whose ballots were challenged by
the Employer were terminated and other persons
were hired just before the election, destroying the
laboratory condition necessary for a fair Board
election. The Regional Director recommended over-
ruling the objections and sustaining the challenges,
because no charges alleging any unfair labor prac-
tices had been filed with respect to these matters. As
no exceptions had been filed to those recommenda-
tions, the Board, on November 30, 1971, as noted
above, adopted such recommendations. While the
Regional Director's report was pending before the
Board on exceptions to other matters by the
Employer, the Petitioner filed timely unfair labor
practice charges. On January 7, 1972, the Regional
Director issued a complaint in Case 26-CA-4169
alleging that the discharge of five named employees
just prior to the election violated Section 8(a)(3) and
(1) of the Act.6 Petitioner therefore claimed that
since the Regional Director has issued a complaint,
he should also reconsider his rulings in his report as
a These voters were Doris Ann Morgan, Shirley Stewart, Caleb Clark,
Shirley Smith , Brenda Crittenden . and Charlotte Hollandsworth [ Parnell]
s The employees were Doris Cook , Betty Cook . Shawanne Cook , Joanne
Matlock. Mary Terry. Ida Williams, and "others "
6 Employees named in the complaint were Doris Cook , Betty Cook,
Shawanne Cook, Ida Williams. and Mary Terry
198 NLRB No. 114
RIDGELY MANUFACTURING CO. 861
to the alleged discriminatees and consolidate the
representation matter and the unfair practice matter.
On April 6, 1972, a panel of the Board issued a
Notice To Show Cause 7 why the Board should not
remand to the Regional Director to reconsider his
rulings and to consolidate the representation matter
regarding the five named employees with Case
26-CA-4169. The Employer filed a response to the
notice and the Petitioner filed a motion to quash the
Employer's response.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the Petitioner's excep-
tions and brief, the Hearing Officer's report, the
Petitioner's motion for reconsideration, and the
entire record in this proceeding, and hereby adopts
the Hearing Officer's findings and recommendations
to the extent consistent herewith.
(1) The Hearing Officer concluded that certain
individuals, including Tommie Martin, Ann Jackson,
and Mary Lynn Moore, were employees and eligible
to vote and not supervisors within the meaning of the
Act. Petitioner excepts to the Hearing Officer's
failure to find that Tommie Martin, Ann Jackson,
and Mary Lynn Moore are ineligible voters since
they are supervisors. We find merit in Petitioner's
exceptions in this regard.8
Martin had worked for the Employer about 4
years, and Jackson and Moore have each been
employed for about 12 years. Martin is "supervisor"
of the finishing department where he directs the work
of about 20 employees. Martin does bundling,
supplies his people with work, reports absenteeism,
initials bundle tickets, holds production for employ-
ees which affects their rate of pay, and has the
authority to move employees to different machines
within his department. When employees ask for time
off, Martin checks with either Assistant Plant
Manager Dockery or owner Roseman. Jackson is the
"floorlady" in the lining department where she
directs the work of up to 30 employees. Jackson
watches and regulates the flow of work on the floor,
trains new operators, does some bundling and
sewing, and has authority to and does shift employ-
ees within her department. Jackson has initialed
employees' timecards when they have had to leave
and has signed for employees holding their pro-
' 196 NLRB No 23 Chairman Miller dissented The Chairman would
have denied the Petitioner 's motion for reconsideration for the reasons that
Petitioner had not included in its exceptions filed to the Regional Director's
report the matters it now wanted reconsidered and because Petitioner's
motion came too late
" For the reasons stated by the Hearing Officer in his report, we find that
Doris Morgan was ineligible to vote
9 Monarch Rubber Company, Inc, 129 NLRB 482,483-485
duction. Moore is "floorlady" in the finishing
department containing up to 50 employees, where
she supervises the flow of work, trains new operators,
does bundling and sewing, initials timecards after
consulting with owner Roseman, and can move
employees to machines within her own department.
If a machine breaks down, employees report to their
supervisors or floorladies who secure mechanics to
fix them. Martin, Jackson, and Moore check on
absenteeism in their departments. The supervisors or
floorladies secure tickets for bundles, if regular
tickets are missing , and regularly collect employees'
production sheets, which are turned into the office.
Martin, Jackson, and Moore have certain privileges
not granted to employees. Thus, they park immedi-
ately in front of the building instead of in a lot, they
receive their paychecks directly from the plant
manager in sealed envelopes while the regular
employees receive their checks attached to their
timecards, and they receive about 30 cents more per
hour. On occasion, they attend supervisory meetings
and have, on occasion, reported a failure to make
production.
The above circumstances, including the abnormal-
ly high ratio of employees to supervisors that would
exist if the floorladies and supervisor were not found
to be supervisors, and the fact they receive 30 cents
per hour more than the employees they direct, lead
us to conclude that they possess supervisory authori-
ty. It is clear that they possess the authority to
responsibly direct the work of the employees under
them. Accordingly, we find, contrary to the Hearing
Officer, that they are supervisors within the meaning
of the Act. We sustain the challenges to their ballots
and shall direct that their ballots remain unopened
and uncounted.9
(2) For the reasons stated in our Notice To Show
Cause, 196 NLRB No. 23, we find that the purposes
of the Act will best be served by granting the
Petitioner's motion for reconsideration, should the
votes of the alleged discriminatees in Case
26-CA-4169 be determinative. 10 No reason has been
advanced which, to our satisfaction, relieves us of
our responsibility of insuring all eligible voters the
opportunity to vote. Accordingly, we shall direct the
Regional Director to reconsider his rulings regarding
the five employees named in the complaint in Case
'26-CA-4169, and to consolidate the representation
matter regarding the five named employees with
10 Although the Employer 's response was filed a week late, there is some
basis for the Employer's confusion , as extensions of time for filing
exceptions and briefs to the Hearing Officer's report and responses to the
Notice to Show Cause referred to the same case number , and were due
separately only I week apart Such reasons for late filings are not condoned
by the Board, but, in view of our Decision herein , we do not believe the
Petitioner will be prejudiced in any manner by our denial of its motion to
quash
862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Case 26-CA-4169 for purposes of hearing, ruling,
consideration , and decision by a Trial Examiner
should such consolidation appear necessary because
the five votes may be determinative . In this regard,
should the Regional Director find , after opening and
counting the ballots to which the challenges have
been overruled , that the votes cast for the Petitioner
tally a majority of more than five , or that the tally of
votes cast against the Petitioner lacks more than five
of being a majority , then the Regional Director
should take the appropriate action by either certify-
ing or directing a second election , respectively.
However , should the Regional Director find that the
five challenged votes are determinative , he shall
direct that the issues concerning them be consolidat-
ed with Case 26-CA-4169.
DIRECTION
It is hereby directed with regard to the election
held on August 20, 1971, in Case 26-RC-3997, that
the Regional Director for Region 26 shall, pursuant
to the Board's Rules and Regulations, within 10 days
from the date of this Direction, open and count the
ballots of Nathan Strain, Dorothy Cantrell, Peggy
Todd, Lloyd Spence, Samuel Maze, Rogenia Farrow,
Elvie Choate, Francis Rogers, Margie Farmer,
Maxine Clements, and Clyde Tipton, and thereafter
prepare and cause to be served on the parties a
revised tally of ballots, including therein the count of
the above ballots; and
IT IS HEREBY FURTHER DIRECTED that if the results
according to the revised tally indicate that the
Petitioner has received a majority of more than five
of the total votes cast, including the above-named
challenged ballots, the Regional Director shall certify
Petitioner as the exclusive representative for collec-
tive-bargaining purposes of the employees in the
appropriate unit. However, if the revised tally of
ballots indicates that the number of ballots cast
against the Petitioner exceeds those cast for it by five
or more, then it is ordered that the election held on
August 20, 1971, in Case 26-RC-3997, be set aside,
and that the Regional Director for Region 26
conduct a second election among the employees in
the unit found appropriate, at such time as the
Regional Director deems that the circumstances
permit the free choice of a bargaining representative.
However, if the revised tally of ballots shows that the
ballots of Shawanne Cook, Doris Cook, Ida Lou
Williams, Betty Cook, and Mary Terry will be
determinative of the outcome of the election, then,
IT IS ALSO FURTHER DIRECTED that the Regional
Director consolidate Case 26-CA-4169 and the
representation matter regarding those five named
employees in Case 26-RC-3997, whose challenged
ballots have not yet been ruled upon, for purposes of
hearing, ruling, consideration, and decision by a
Trial Examiner, and proceed further in accordance
with the Board 's Rules and Regulations.
CHAIRMAN MILLER , dissenting:
(1) I would not reverse the Hearing Officer's
recommendations regarding the three employees,
Martin, Jackson, and Moore, whom he found to be
employees and not supervisors. There is no showing
on this record that these employees hire , fire , assign,
discipline , or effectively recommend such action, or
even responsibly direct other employees. Indeed, the
record shows only that these employees have some
responsibility for the flow of work through their
respective departments, in that they make sure each
employee is supplied with work. It appears that the
work in each department is of like nature and
routine, and that no exercise of genuinely discretion-
ary independent judgment is necessary in assigning
employees to different machines within the same
department. The three alleged supervisors, corrobo-
rated by other employees, testified that they had to
check with the plant manager , or owner Roseman
before they could take any effective, responsible
action regarding other employees. Although the ratio
of employees to supervisors seems low, that fact,
standing alone, can create only an inference and
cannot serve as a solid evidentiary base to support a
finding that the criteria provided in Section 2(11) of
the Act have been met. The record evidence
establishes only that these individuals are more
senior employees acting in the capacity of nonsuper-
visory "leadmen." I would so find, and consequently
open and count their ballots, along with the other
ballots to which challenges have been overruled.
(2) For the reasons set forth in my dissent in the
Notice To Show Cause, 196 NLRB No. 23, I would
not grant Petitioner ' s motion to direct the Regional
Director to reconsider his rulings regarding the five
challenged voters , alleged now as discriminatees, or
to consolidate this representation case with subse-
quent unfair labor practice case.