Southland Frozen Foods, Inc.

National Labor Relations Board - Board Decisions

Jan 15, 1987

282 N.L.R.B. 769 (N.L.R.B. 1987)

SOUTHLAND FROZEN FOODS 769
Southland Frozen Foods, Inc. and Local 212, United
Food & Commercial Workers Union, AFL-
CIO. Case 3-RC-8728
15 January 1987
DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
BY MEMBERS JOHANSEN, BABSON, AND
STEPHENS
The National Labor Relations Board, by a three-
member panel, has considered the objections to an
election held on 22 August 1985 and the hearing
officer's report recommending disposition of them.
The election was conducted pursuant to a Decision
and Direction of Election. The tally of ballots
shows 75 for and 109 against the Petitioner, with
25 challenged ballots, an insufficient number to
affect the results . Thereafter, the Petitioner filed
timely objections to conduct affecting the results of
the election.
The Board has reviewed the record in light of
the exceptions and briefs, and has adopted the
hearing officer's findings' and recommendations
only to the extent consistent herewith.
At issue is whether the Employer engaged in ob-
jectionable conduct by designating employee Ro-
berta Estep as its observer for the election. In his
report, the hearing officer concluded that although
Estep was not a statutory supervisor,2 she was
closely identified with management. The hearing
officer therefore concluded that it was improper
for her to serve as the Employer's election observ-
er and recommended that the election be set aside.
The Employer excepts, contending, inter alia, that
Estep is not closely identified with management.
We find merit in the Employer's exceptions with
regard to Estep's asserted identification with man-
agement.
The Employer is engaged in the packaging and
wholesale distribution of fruits and vegetables, and
it operates production and maintenance lines on
which vegetables are processed. The production
lines are staffed by women, with as many as 60
women working on the lines during the busy
1 The Employer has excepted to certain credibility resolutions of the
hearing officer It is the established policy of the Board not to overrule a
hearing officer's credibility resolutions unless the clear preponderance of
all relevant evidence convinces us that the resolutions were incorrect
Connor Trading Co, 188 NLRB 263, 264 fn 4 (1971), Coca-Cola Bottling
Co, 132 NLRB 481, 485 (1961). We find no sufficient basis for disturbing
the credibility resolutions in this case
2 No exceptions were taken to the hearing officer's finding that Estep
was not a supervisor In this regard , we note that he found that she does
not have the authority to hire , fire, promote, reward , or discipline em-
ployees, or to adjust grievances , that she did not exercise independent
judgment in performing her assigned tasks, and that she acted merely as a
conduit in relaying instructions from management to unit employees.
season. Estep has served as the day-shift "floor
lady" for production lines since 1982, and she has
been employed by the Employer for approximately
20 years in various capacities.
Estep spends approximately 75 percent of her
workday performing production work. She
punches a timeclock, is hourly paid, and receives
time and a half for overtime. Her rate of pay is
$5.15 per hour, which is considerably more than
other female production employees earn .3 While
Estep receives benefits that the other female pro-
duction employees do not receive, such as compen-
sation for the Thanksgiving holiday and paid vaca-
tion time, she enjoys none of the other benefits
provided for the Employer's admitted supervisors.
These benefits include hospitalization, major medi-
cal, and life insurance.
Estep does not attend management meetings and
she does not authorize overtime. Although the
hearing officer found evidence that she occasional-
ly refers employee complaints to the Employer, he
determined that she has no power to adjust griev-
ances. When Estep is not performing production
work, she spends her workday completing time
and production reports, assigning work, training
employees, and generally providing routine direc-
tion for employees. The completion of time reports
includes monitoring absences and reporting any
employee who overstays her break. In this regard,
Estep has no discretionary authority concerning
the length and number of breaks taken by employ-
ees as the break schedules are determined by the
production supervisor. When an employee calls in
sick, the personnel office informs Estep. She re-
ports any absences to the production supervisor
who tells Estep which employee should be reas-
signed.4 Estep is responsible for relaying informa-
tion regarding any such reassignments to the em-
ployees. Similarly, employees inform Estep, rather
than request her permission, if they want time off.
Estep relays this information to the production su-
pervisor so that the production schedule can be ad-
justed. If an employee forgets to punch her time-
card, she reports the problem to Estep. Estep in
turn informs the secretary in the personnel office
who makes the necessary adjustments.
Every morning prior to the start of her shift,
Estep meets with a production supervisor who tells
her which lines will operate and how many em-
3 Although the record does not reveal the exact 1986 wage scale for
other female production employees, it appears that Estep earns consider-
ably more For example, Virginia Wilbur, a relatively senior production
employee, earned $3 80 per hour prior to her April 1985 termination.
4 Estep also informs the production supervisor of any absences that she
has noticed which have not been reported previously to the personnel
office.
282 NLRB No. 106
770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees will be assigned to each line. After record-
ing the assignments in a notebook,, she relays this
information to the employees. 5 _ If the production
schedule dictates that an employee should be reas-
signed during ,the course of the day, the decision is
made by the, production supervisor, and Estep
relays the information to the affected employees.
During the course of the day, she confers with the
production supervisors approximately five times.
At' the end of the day, Estep completes a report in-
dicating where each employee worked that day
and how much time was spent on, each job. These
reports are used - by the production manager to
evaluate the cost of production.
As noted, the hearing officer found that Estep is
not a statutory supervisor,- and no exceptions were
taken to that finding. Thus, the issue of whether su-
pervisory status rendered Estep an improper choice
is not before us.
As the hearing officer noted, however, the test
for determining whether, an individual properly
may serve as an observer is not limited to an in-
quiry into whether the individual is a statutory su-
pervisor, but it also includes an inquiry into wheth-
er the individual is closely identified with the em-
ployer. Peabody Engineering Co., 95 NLRB 952
(1951); Watkins Brick Co., 107 NLRB 500 (1953).
An employee, who has none of the authority
vested in supervisory personnel, may be closely
identified with management if he or she relays in-
formation to employees and has been placed by
management in a strategic position where employ-
ees could reasonably believe that the employee
speaks on its behalf. B-P Custom Building Products,
251 NLRB 1337 (1980); River Manor Health Relat-
ed Facility, '224 NLRB 227 (1976), enfd. 559 F.2d
1204 (2d Cir. 1977). We find, contrary to the hear-
ing officer, that although Estep relays information
to employees and acts as a conduit of information
between the employees and management, Estep has
not been placed in a position where employees
would reasonably believe that she is the agent of
the Employer. In this regard, in addition to the
routine nature of much of Estep's duties with re-
spect to other employees, we note particularly that
she spends approximately 75 percent of her work-
day performing the same tasks as the other produc-
tion employees, punches a timeclock, and is not in-
cluded in management meetings . Thus, the nature
of the circumscribed duties Estep performs on the
Employer's behalf are not such as to, require invali-
5 As found by the hearing officer, the record reveals that many of the
employees work in the same positions day after day. Estep only informs
employees of their assignments if a change has been made
dation of the election because of her participation
as an observer.6
B-P Custom Building Products, supra, relied on
by the hearing officer, is distinguishable. The
Board there found that the individual in question
was not a statutory supervisor, but was an agent of
the employer whom the employees would recog-
nize as part of the management team and, accord-
ingly, that it was improper for him to serve as an
election observer. Like Estep, the individual there
had no authority to hire, fire, lay off, discipline, or
transfer employees; but he could, however, author-
ize shift changes, vacations, overtime, and sick
leave without consulting anyone. Estep cannot au-
thorize overtime and is merely the person to whom
employees report requests for vacation time and
sick leave. Similarly, in B-P Custom Building Prod-
ucts, the individual attended management meetings,
and spoke at two meetings of employees, one of
which he handled without the presence of manage-
ment personnel. In contrast, there is no evidence
that Estep either attends management meetings or
speaks on behalf of management at employee meet-
ings.
Jacobo Marti & Sons, 264 NLRB 30 (1982), and
River Manor Health Facility, supra, also cited by
the hearing officer, are also distinguishable from
the present case. In Jacobo Marti one individual in
question was the highest ranking individual present
in the plant at night and was found by the Board to
be a general agent of the respondent. The other in-
dividual was found to be an agent insofar as he was
specifically authorized by the employer to engage
in the surveillance at issue. Jacobo Marti, supra, at
fn. 1. In River Manor Health Facility, where the
status of licensed practical nurses was at issue, the
Board found that by virtue of their medical respon-
sibilities, the licensed practical nurses were in a po-
sition of directing aides and orderlies, and conclud-
ed that based on this factor, coupled with certain
other duties including, inter alia, warning employ-
ees about lateness, giving reports to the director of
nurses about employee work habits, calling for re-
placements, and handing out paychecks, could rea-
sonably lead employees to believe that the licensed
practical nurses were an arm of management.
Finally, Mid-Continent Spring Co., 273 NLRB
884 (1985), also cited by the hearing officer, is dis-
6 The fact that Estep may have been listed as a first-line supervisor in
the employee handbooks given to some employees is significant but not
in itself dispositive. As stated in Columbia Engineers International, 249
NLRB 1023 fn 11 (1980), "[s]upervisory status may not be determined
on the basis of title alone, but upon application of Sec. 2(11) standards."
Similarly, while an employee's title is one of the numerous factors the
Board considers in determining whether an individual is closely identified
with management , merely referring to an employee as a supervisor does
not necessarily confer agency status.
SOUTHLAND FROZEN FOODS 771
tinguishable from the instant case. The Board in
that case adopted the hearing officer's finding that
the individual serving as the employer's observer
was closely identified with management. There,
however, the individual was considered by employ-
ees to be a "personnel manager," was a member of
the management negotiating team, attended super-
visory meetings, represented the employer at the
first-step grievance procedure, advised the union of
the hiring and termination of employees, advised
employees about personnel policy, and received
employee complaints. Moreover, no exceptions
were filed to the finding by the hearing officer that
the individual was closely associated with manage-
ment.''
1n light of the above, we conclude that Estep's
relationship with management does not warrant a
finding that she was precluded from serving as an
election observer. Accordingly, contrary to the
hearing officer, we overrule Petitioner's objection
and shall certify the results of the election.
CERTIFICATION OF RESULTS, OF
ELECTION
IT IS CERTIFIED that a majority of the valid bal-
lots have not been cast for Local 212, United Food
& Commercial Workers Union, AFL-CIO and that
it is not the exclusive representative of these bar-
gaining unit employees.
7 In Knogo Corp, 265 NLRB 935 (1982), the Board held that an em-
ployee whose duties mcluded,checking the work of other employees,
monitoring production, and reporting rule- infractions or repeated inci-
dents of poor performance, was not a supervisor. In additionally deter-
mining that other employees would not view the employee as an agent of
management, the Board considered, inter alia, that the alleged agent nei-
ther attended management meetings nor directed employee meetings on
behalf of management and that her direction of production was strictly
routine in nature.