Tri-Pak Machinery Service, Inc.

National Labor Relations Board - Board Decisions

Jun 28, 1951

94 N.L.R.B. 1715 (N.L.R.B. 1951)

TRI-PAK MACHINERY SERVICE, INC. 1715
by the Board in the respective category . There remains for consideration a
determination whether the combined percentages of the minimum amounts equal
or exceed 100 percent, which the Board has found to be sufficient for the assertion
of jurisdiction.'
During 1950 , Respondent 's out-of-State purchases totaled $3,503.56 or 0.7 per-
cent of $500 ,000. Their out-of-State sales totaled $8,891 . 12 or 35.56 percent of
$25,000. Their sales to Montgomery Ward & Co. totaled $27,379.89 or 54.76 per-
cent of $50,000. The combined total of percentages is 91.02 percent , or less than
100 percent.
Now, THEREFORE, the undersigned , being fully advised in the premises, is of
the opinion that the operations of the Respondent are essentially local in char-
acter, and although it does not appear that they are wholly unrelated to com-
merce, the assertion of jurisdiction in the instant case would not effectuate the
policies of the Act ;
Said motion urging dismissal upon jurisdictional grounds is hereby granted ;
and it is hereby
ORDERED, that said complaint be dismissed in its entirety.
Any party may obtain a review of the foregoing order, pursuant to Sectiom
102.27 of the Board's Rules and Regulations , by filing a request therefor with
the Board , stating the grounds for review, and immediately on such filing serve a.
copy thereof on the Regional Director and the other parties. Unless such request
for review is filed within 10 days from the date of the order of dismissal , the case
shall be closed.
The Rutledge Paper Products Co., 91 NLRB 625.
TRI-PAS MACHINERY SERVICE, INC. and INTERNATIONAL ASSOCIATION.
of MACHINISTS . Case No. 39-CA-149. Jume 28, 1951
Decision and Order
On March 29,.1951, Trial Examiner Arthur Leff issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in the unfair labor practices alleged in
the complaint, and recommending that the complaint be dismissed in
its entirety, as set forth in the copy of the Intermediate Report at-
tached hereto. Thereafter, the General Counsel filed exceptions to the
Intermediate Report and a supporting brief.
The Board 1 has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner. We, too, believe that Staiger was a
supervisor within the meaning of the amended Act.
1 Pursuant to the provisions of Section 3 (b) of the National Labor Relation Act, the
Board has delegated its powers in connection with this case to a three-member panel.
[ Chairman Herzog and Members Murdock and Styles].
94 NLRB No. 244.
1716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint herein be dismissed
in its entirety.
Intermediate Report
Mr. Charles Y. Latimer , for the General Counsel.
Mr. Scott Toothaker (Ewers, Cox, Port , Benson and Toothaker ), of McAllen,
Tex., for the Respondent.
Messrs. L. M. Fagin and Ralph Farmer, of Fort Worth , Tex., for . the Union.
STATEMENT OF THE CASE
Upon a charge duly filed on August 7, 1950 , by International Association of
Machinists , herein called the Union , the General Counsel of the National Labor
Relations Board , by the Regional Director for the Sixteenth Region (Fort
Worth , Texas ), issued his complaint dated January 25, 1951, against Tri-Pak
Machinery Service, Inc., herein called the Respondent , alleging that the Re-
spondent had engaged in, and is engaging in, unfair labor practices affecting
commerce within the meaning of Section 8 (a) (1) and ( 3) and Section 2 (6)
and (7 ) of the National Labor Relations Act as amended ( 61 Stat . 136), herein
called the Act.
With respect to the unfair labor practices , the complaint alleged in substance :
(1) That the Respondent , on June 5, 1950, discharged Earl H. Staiger , and there-
after refused to reinstate him because be joined and assisted the Union ; and
(2) that the Respondent at various times on and after June 5, 1950 , interrogated
its employees concerning their union affiliations and warned its employees to
refrain from joining or assisting the Union.
Copies of the complaint , accompanied by notice of hearing thereon, were duly
served upon the Respondent and the Union.
Thereafter the Respondent filed its answer to the complaint , admitting that it
was engaged in commerce within the meaning of the Act , but denying generally
the allegations of the complaint relating to the unfair labor practices.
Pursuant to notice , a hearing was held at Brownsville , Texas, on February
15 and 16, 1951 , before Arthur Leff, the undersigned Trial Examiner, duly
designated by the Chief Trial Examiner . The General Counsel and the Re-
spondent were represented at the hearing by counsel , and the Union by its
representatives . Full opportunity to be heard , to examine and cross-examine
witnesses , and to introduce evidence bearing on the issues was afforded all
parties. At the close of the hearing, the General Counsel moved to conform the
complaint to the proof as to minor matters, and this motion was granted. The
General Counsel and the Respondent argued orally, and their argument is
included in the transcript . A brief was filed by the General Counsel on March
2,1951 , and by the Respondent on March 15, 1951.
Upon the entire record in the case, and from my observation of the witnesses,
-I make the following :
FINDINGS, OF FACT
I. THE BUSINESS OF THE RESPONDENT
Tri-Pak Machinery Service, Inc., a Texas corporation , with its principal place
of business at Harlingen , Texas, is engaged in the manufacture , sale, and dis-
TRI-PAK MACHINERY SERVICE, INC. 1717
tribution of vegetable packing equipment and related products. During the
12-month period ending June 1950, the Respondent purchased raw materials in
an amount exceeding $250,000, 75 percent of which was purchased outside the
State of Texas and shipped to its Harlingen plant. During the same period,
the Respondent's sales exceeded $500,000 in value. Approximately 75 percent
of such sales was to points outside the State of Texas. The Respondent con-
cedes, and it is found, that it is engaged in commerce within the meaning of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
International Association of Machinists is a labor organization admitting to
membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Introduction
Earl A. Staiger was discharged by the Respondent on June 5, 1950. The
events leading to his discharge briefly were these : On May 30, 1950, the
Respondent notified its employees that in order to enable them to meet the
rising cost of living by receiving greater "take home" pay, without at the same
time increasing its own unit costs and competitive price position, it was adopting
a new wage policy, effective June 1, 1950. Under it the standard workweek was
to be increased to 48 hours, but hourly wage rates were to be adjusted down-
ward so that the cost to the Respondent for 40 hours work at straight time
rates and 8 hours at overtime rates would be substantially the same as if the
employees had worked all 48 hours at straight time under their old rates. In
the case of Staiger this meant a reduction in his basic hourly rate from $1.25
to $1.16, and it involved a corresponding reduction for other employees. At the
suggestion of several employees who like him were chagrined by the reduction in
their hourly rates, Staiger contacted the Union and arranged with it for the
assignment of an organizer to enlist the employees' membership. Thereafter,
a number of employees signed and left with Staiger union designation cards
which Staiger delivered to the Union's local lodge at Corpus Christi. The.
Respondent's management officials received a report from an undisclosed source
that Staiger was engaged in organizational activities on behalf of the Union.
On June 5, 1950, after confirming this report by questioning several persons
employed by it, the Respondent's management confronted Staiger with the facts
thus obtained, elicited from him an admission of their correctness, and dis-
charged him.
B. The issues
The Respondent at the hearing did not dispute-indeed it stipulated-that
Staiger was discharged because he assisted the Union in its organizational
activities. It is the Respondent's position, however, that Staiger at the time
of his discharge was a supervisor within the meaning of Section 2 (11) of
the Act and therefore not an employee entitled to the Act's protection. The Gen-
eral Counsel joins issue with the Respondent on the question of whether Staiger
was in fact a supervisor. If on this issue the Respondent is right and the
General Counsel wrong, it would follow that no unfair labor practice finding
may be predicated upon the Respondent's discharge of Staiger. For, as the
Board has ruled under analogous circumstances, the discharge of a supervisor
for organizational activities on behalf of a rank-and-file union violates neither
1718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 8 (a) (3) nor Section 8 (a) (1) of the Act' If the issue with regard
to Staiger's supervisory status is resolved in favor of the Respondent, it would
have the effect also of disposing of the allegations of the complaint relating
to independent interference, restraint, and coercion. The independent viola-
tion of Section 8 (a) (1), according to the complaint, took the form of threats
and warnings to refrain from organizational activities and the interrogation of
employees concerning such activities. The General Counsel, however, adduced
no evidence of any threat or warning to employees, other than, perhaps, such
threat as might be found implicit in Staiger's discharge, if, but only if, the
discharge itself is not immunized by Section 2 (11) from the reach of Sections
8 (a) (1) and 8 (a) (3). There is proof that the Respondent questioned
Staiger, as well as others in its employ, about Staiger's organizational activi-
ties; But, as the General Counsel concedes, the Respondent's interrogation of
Staiger may be found violative of Section 8 (a) (1) only if it is found also
that he was not a supervisor within the statutory definition. The same is true
with regard to the others questioned-M. L. Partain, Doe Stapleton, and Chico
Colunga-all of whom are claimed to have occupied supervisory positions.
Partain, the plant superintendent, is conceded by the General Counsel to have
been a supervisor. Although no like concession is made as to Stapleton and
Colunga, the General Counsel correctly agrees that if Staiger is found to be
a supervisor , so must they ; for the record adequately shows that Stapleton
and Colunga possessed at least whatever supervisor attributes Staiger may
have had.
C. Analysis and evaluation of the facts relating to Staiger 's supervisory status
Staiger was first employed by the Respondent as a tool and die maker in
1944. After working in that capacity for about a year, he voluntarily quit, but
was rehired several months later, this time as the foreman of the Respondent's
machine shop which then had a complement of some 20 employees. Staiger
held the position of machine shop foreman until December 1947, when, during
a sharp curtailment of the Respondent's operations, he was laid off along with
most of the Respondent's employees. There is no question about Staiger's
supervisory status during this period. He was known as a foreman ; devoted
his full time to supervision; was paid on a salary basis ($55 a week) ; punched
no time clock ; issued work orders ; allotted time for the various jobs ; and was
vested with the authority-which he in fact exercised on a number of occa-
sions-to hire and fire employees in his department without the necessity of
consulting higher management officials.
Several weeks after his layoff in December 1947, Staiger was recalled, but not
to his former job of machine shop foreman. Instead, he was given his original
hourly rated job of tool and die maker, a nonsupervisory position. Staiger was
apparently the only tool and die maker in the Respondent's employ at that time.
The section of the shop in which he worked was separated by a substantial. dis-
tance from the machine shop and was considered as falling outside the depart-
mental lines of that shop. However, Staiger for a time came under the imme-
' See Accurate Threaded Products Co., 90 NLRB 1364; cf . Inter-City Advertising
.Company of Greensboro, N. C., 89 NLRB 73.
According to the uncontradicted testimony of Lloyd Allen, the Respondent's vice
president , the Respondent ' s officials , in their interview with Staiger just before his
discharge, took the position , inter elia , that he was considered part of management and
as such had no right to organize on behalf of the Union. Allen further testified that
shortly after Straiger 's discharge he assembled all the "foremen " and instructed them not
to take sides for or against the Union , warning them that if they did they would "get
the same thing that Staiger got."
TRI-PAK MACHINERY SERVICE, INC . 1719
diate supervision of J. A. White, who had formerly been the plant engineer and
was not foreman of the machine shop. When White left about the middle of
1949, Staiger began to receive his work orders directly from Plant Superintendent
Partain. At about the same time, Virgil G. Nuckols who had previously been a
rank-and-file employee in the machine shop and had earlier worked under the
foremanship of Staiger, was placed in charge of the machine shop, continuing in
that capacity for approximately a year. Nuckols, as his testimony reveals, con-
sidered his position during that time to be that of a "foreman," charged with the
duty of dispatching jobs, instructing those under him, inspecting work for proper
quality, and getting out all the work he could, but without authority to hire,
discharge, or otherwise affect the status of employees under him? While in
charge of the machine shop, Nuckols remained an hourly rated employee ; devoted
but a small proportion of his time to supervising the work of others, and.spent
most of his working time performing his formal manual tasks. Nuckols was
given no immediate raise when he took charge of the machine shop, but about 6
months later his hourly rate was increased from $1.15 to $1.25.. This was the
same rate that Staiger was earning at the time.
In March 1950, the work in the tool and die shop having slacked off substan-
tially, the Respondent decided to consolidate that shop with its machine shop for
plant organizational purposes. At a meeting with Staiger and Nuckols, Plant
Superintendent Partain advised them of the consolidation plan and stated that
thenceforth he wanted Staiger to look after the machine shop in addition to per-
forming such tool and die work as remained. Partain assured Nuckols that
Staiger's substitution for him as the person in charge would not result in a pay
reduction for him, and Nuckols willingly consented to this arrangement because,
as he testified, he considered Staiger a much more highly skilled machinist.
Although not formally introduced to the employees in the machine shop as their
new "foreman," Staiger took over the extra duties to which Nuckols had pre-
viously been assigned, and these he continued to perform until his discharge in
June. Staiger received no change in pay for his added duties, and as an hourly
rated employee continued to punch a time clock. Staiger's hourly rate of $1.25,
although the same as Nuckol's, was somewhat more than the rates paid others in
the machine shop. When not engaged in overseeing the work of others, Staiger-
like Nuckols before him-performed manual work. Together with other em-
ployees in the machine shop, Staiger was required to submit daily a record of
time devoted by him to each job during the day. These records, which are in
evidence, show that during the period from April 21, 1950, when the record
system was installed, until the date of his termination, Staiger devoted about 80
percent of his time to the performance of manual work tasks, principally in the
machine shop, but also at times in the tool and die shop., The balance of Staiger's
time was accounted for by him on these his own time records as time devoted to
"supervision."
Before considering whether Staiger's "supervision" involved the exercise by
him of one or more of the specific authorities listed in Section 2 (11), something
should be said of the machine shop as related to the organizational and func-
tional structure of the plant as a whole.
Due to curtailed production, the employee composition of the Respondent's
plant was much smaller in 1950 than it had been in 1947 when Staiger was a full-
time foreman. When Staiger took over the machine shop in 1950, there were
only 6 or 7 employees in that department as contrasted to about 20 in 1947. The
size of the Respondent's other production departments had shrunk proportion-
2 Nuckols testified as a witness for the General Counsel.
1720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ately and there were now about 31 regular plant employees below the level of
plant superintendent as against about 110 in 1947. The Respondent, engaged
principally in the manufacture of special order vegetable packing equipment
involving units of large bulk, still required the same extensive space facilities
it had previously utilized. The Respondent's main building was 150 feet in
width, and in length, about 315 feet on one side and 240 feet on the other. The
machine shop was housed in one section of this building, the greater portion of
which was used for assembly operations. Housed under separate roofs were the
Respondent's foundry, its warehouse, and its woodworking departments-there
being 4 buildings in all.
Organizationally, the Respondent's structure was substantially the same as it
had been in 1947. At the top management level were J. R. Fitzgerald, the Re-
spondent's general manager, who, it seems, held the principal ownership interest
in the company, and L. E. Allen, the assistant general manager, who at this time
Was in charge of sales and concerned himself little if at all with production.
Under their general management were the various divisions of the Company-
production, engineering, sales, and office. The production division was headed
by M. L. Partain, the plant superintendent. Under Partain were the various
departments which are listed on the table below along with the total number of
employees in each, and the name of the employee who the Respondent claims
occupied in late March 1950 the status of department supervisor or foreman of
that department.
Department Number of employees Head
Warehouse--------------------------------- 2 Wetherhold.
Steel machinery (assembly) ------------------ 8 Stapleton.
Wood machinery (assembly) ----------------- 7 Colunga.
Machine Shop------------------------------ 7 Staiger.
Flexform---------------------------------- 4 Olivares.
Foundry----------------------------------- 2 Puente.
Shipping---------------------------------- 1 Treto.3
All those listed above as department heads performed manual work in addition
to their other duties-and all but Stapleton devoted the major portion of their
time to such work .4 All except Wetherhold were paid on an hourly basis and
were required to punch time clocks." Before December 1947, department heads
had not been required to engage in production work or punch time clocks. Ac-
cording to testimony adduced by the Respondent, this practice was changed
after the big layoff in December 1947 as one of the economy measures which were
instituted at that time.
The seemingly high ratio of supervisory employees to rank-and -file employees
is not unreasonably explained by the Respondent as necessary to its operation,
principally for two reasons. First, the large area of its plant facilities makes it
L The Respondent's position with reagrd to departmental supervisors, as set out above, varies somewhat
from an organizational chart, based on payroll records, which the Respondent submitted at the hearing.
While the chart lists the first five named as department heads, Puente and Treto are not included; they are
shown, rather, as rank-and-file employees responsible directly to Partain. Allen testified without contradic-
tion that prior to a Board-conducted election in August 1950-lost by the Union-the Union agreed with the
Respondent that department foremen were not to vote. Wetherhold, Stapleton, Colunga, and Olivares
were excluded from the list of eligible voters submitted by the Respondent, but Treto was included. Puente
was no longer employed at the time.
4 Stapleton alone spent most of his time on supervision. The reason for this, it was
explained, was that his department handled complicated machine assemblies that required
close supervision.
According to Partain's testimony, Wetherhold was retained on a salary basis-'because
of some arrangement with a bonding company of which he was a representative.
TRI-PAX MACHINERY SERVICE, INC.. 1721
impossible for one man efficiently to oversee the production work in all depart-
ments. Secondly, the business conducted by the Respondent fluctuates in vol-
ume partly with the seasons, requiring the Respondent to have in each depart-
ment a responsible person in charge who thoroughly understands the work of his
department and "who can take green help and train them and carry on during
the expanded seasons."
We turn, then, to the basic question in this case : Was Staiger, while in charge
of the machine shop in 1950 vested with any of the attributes of supervisory
authority that are set out in Section 2 (11) ? According to the Respondent,
Staiger, as a department head, had authority to take or effectively recommend
action with regard to the hire, discharge, and reward of employees in his de-
partment, as well as to assign and responsibly direct their work. According
to the General Counsel, Staiger possessed no authority other than the power to
assign work ; but the exercise of this power, it is claimed, involved merely
the making of routine assignments not requiring the exercise of independent
judgment. It was emphasized by the General Counsel-and on this particular
point Staiger's testimony is both corroborated and undenied-that even on such
a minor matter as allowing machine shop employees time off, the permission of
Superintendent Partain rather than that of Staiger had to be obtained.
As is not uncommon on issues of this kind, much of the conflict stems from the
fact that Staiger was never told precisely what authority, if any, he carried to
affect the status of those under him. In these circumstances, the extent of
Staiger's implied authority can only be estimated on the basis of established
plant practices. And the validity of the estimate must then be tested by de-
termining whether in conformity with such practices Staiger, or some other,
actually exercised authority when occasion for such exercise arose.
The Respondent's claim that Staiger was authorized to hire is predicated upon
a practice at times followed of referring applicants for employment to depart-
ment heads for interview, and having the department heads make recommenda-
tions with regard to the applicants' suitability. Neither Staiger during his
brief tenure as head of the machine shop, nor apparently Nuckols before him,
had participated in the hire of employees. During Staiger's tenure, only one
employee was hired in the machine shop, and he was hired directly by Superin-
tendent Partain who simply asked Staiger whether he could use another man
in his shop, but did not consult with Staiger as to the man's qualifications for the
job.
With regard to Staiger's claimed discharge authority Partain testified that as
plant superintendent, he made it a practice not to discharge any employee with-
out the concurrence of the employee's department head. And where a depart-
ment head recommended the discharge of an employee under him, Partain
would not-he testified-insist upon the employee's retention, if, after discussion
with the department head, he concluded the latter "couldn't work the man in
his department." Partain admitted, however, that any recommendation of a
department head was subject to an independent investigation of the facts by
him. While Staiger was in charge of the machine shop in 1950, only one em-
ployee in that shop was discharged. The discharge was effected after Staiger
had complained to Partain that the employee was incompetent, careless, and
had spoiled a die.° On this occasion Partain, as his testimony reveals, did not
6 There is a conflict as to whether Staiger accompanied his complaint with a positive
discharge recommendation. Staiger says he merely reported the facts ; Partain, that
Staiger also stated he "didn't want to work [the employee] In his department at all."
While I believe Staiger's testimony, I also believe that Partain could reasonably have
concluded from the substance of Staiger's complaint, that Staiger was of the opinion the
employee was unsuitable for further work in the machine shop.
1722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
make an independent investigation only because he was already personally
familiar with at least some of the facts upon which Staiger 's complaint was
based.
With regard to the alleged authority to reward, it is claimed that as a depart-
ment head, Staiger was empowered to recommend wage increases for 'those
under him. The forms used by the Respondent to process requests for wage
increases require on their face the approval of the department foreman as well.
as that of the plant superintendent. It is clear, however, that a department
head's recommendation does not itself normally carry decisive weight. Thus,
Nuckols testified without contradiction that while foreman he had on a number
of occasions requested increases for employees under him, but that nothing had
come of them. And Partain admitted that before a foreman' s recommendation
was acted upon, it was his practice to conduct an independent investigation to
determine for himself whether the raise was merited. During the period
Staiger was foreman, only one application was processed for a wage increase
involving an employee in the machine shop. Nuckols while still foreman had
recommended an increase for an employee named Brantly. By the time the
request reached the attention of Plant Manager Fitzgerald-who had final au-
thority to pass on such matters =Staiger had superseded Nuckols. In a memo-
randum to Partain, Fitzgerald noted that Nuckol's request had not been made on
the proper form, and instructed Partain to have Staiger check Nuckol's recom-
mendation. Fitzgerald added that if Staiger agreed with the recommendation,
a form should be filled out in the regular manner, and when this was received
Fitzgerald would then himself arrange to have a test made of Brantly's quali-
fications before acting on the recommendation. Thereafter, Staiger who agreed
that the raise should be given, filled out a standard form, requesting that
Brantly's hourly rate be increased from 80 to 90 cents and expressing his reasons
for regarding the suggested increase as meritorious. The form was approved by
Staiger as "foreman" and by Partain as superintendent. The record does not
show whether or not Brantly's increase was eventually granted.
Thus far, there has been considered only such alleged attributes of supervisory
authority, relied upon by the Respondent, as relate to the question of whether
Staiger had power to take or effectively recommend acting affecting the status
of employees. Were that the only question upon which decision must turn, I
would have some hesitancy in finding that Staiger exercised sufficient authority
to classify him as a "supervisor." Since Staiger (like Nuckols before him)
was never told he had authority to hire ; never in fact exercised such authority ;
and was not consulted on the one occasion when an employee was hired, I do
not think it can be found he had such authority, even though there were occa-
sions when the power to hire had been delegated to department heads of other
departments.? And I have some doubt whether Staiger's authority to recom-
mend discharges or pay increases, particularly the latter, may be cataloged as
a form of effective authority, inasmuch as his recommendations before being
acted,upon were subject to independent investigation and substantiation by those
above him.' However, for purposes of decision here, I think it unnecessary to
make specific findings in this regard.
Under the supervisory definition of the amended Act, it is not mandatory that
one possess the power to take or effectively recommend action effecting the
status of others ; it is enough that his position carries with it authority in the
7 See, Pool Dry Goods Co., 89 NLRB 1442; U. S. Gypsum Co., 90 NLRB 964; U. S.
Gypsum Company, 91 NLRB No. 33.
s See e. g ., Park Sherman Co., 89 NLRB 463; Sterling -Lindner-Davis Co., 91 NLRB No. 9.
TRI-PAK MACHINERY SERVICE, INC. 1723
interest of his employer to direct other employees in their work in a manner
requiring the exercise of independent judgment.' Application of this statutory
test to the facts of this case in my opinion clearly requires a finding that Staiger
was a supervisor within the meaning of the Act.
As Staiger's own testimony coupled with that of Nuckols makes plain, Staiger
was the only person charged with the duty of managing the day-to-day on-the-job
operations of the machine shop. It was he who was called upon to follow up
such operations to secure a proper quantity and quality of work ; to make
assignments of work when necessary ; to transfer employees from one machine
operation to another as the need arose ; to instruct employees on work with which
they were unfamiliar'; to aid employees who were having difficulty with their
work ; and the like. Although Partain, the supervisor above Staiger, came
through the machine shop perhaps two or three times a day, he never under-
took to direct the daily work operations of the men in that shop, leaving this
entirely to Staiger. Even when it was necessary for Partain to issue special
instructions for work in the machine shop, such as on rush or special jobs,
Partain's contact was always with Staiger, and Staiger was the one to decide
to whom the work was to be assigned. The record does disclose, it is true, that
the work of the machine shop was such as to require very little supervision,
since the men normally knew on what they were to work next without being
told. But while much of the work in the machine shop was more or less
routine, the work was not repetitive in the sense that assembly line operations
are. Occasions did arise when men had to be assigned to special jobs, or told
on what machine .they were next to work. On such occasions, the instructions
would be issued by Staiger without consulting Partain. And as Staiger freely
admitted, the task of making such work assignments did involve at times, albeit
infrequently, the exercise by him of independent judgment.
The suggestion of the General Counsel that Staiger's relationship to those
under him must be viewed as that of a head craftsman or group leader who
merely provides guidance to those with whom he works and makes routine as-
sigmnents only 10 in my opinion is not supported by the record in this case. It is
difficult for me to conceive that a machine shop in which 7 men are employed,
in which the operations are not of a repetitive character, and in which precision
tools are used, can properly function without immediate. responsible direction.
To say that Staiger when he was looking after the machine shop did not re-
sponsibly direct its work, is to say that the shop was then operating without
any immediate responsible direction. It is true that the entire plant had only
some 32 employees. But the ratio of supervisors to rank-and-file employees
that results from a finding that Staiger and other department heads are super-
visors cannot be said to be inordinate, particularly in view of the physical size
of the plant and the plausible explanation given by the Respondent for its super-
visory structure. Moreover, I am impressed by the fact that the Respondent's
machine shop both before and after Staiger "took over" in 1950 has always
operated under the direction of a "foreman." Thus, the testimony of Nuckols,
discloses that when he was in charge he considered himself as "foreman," and
that Bemant, the person now in charge, is likewise regarded as a "foreman,"
although Bemant-as Nuckols did when he was in charge-performs manual
work most of the time and does nothing in addition to what Staiger did. Finally,
the record reflects that the Respondent's present position does not come as an
Ohio Power Co. v. N. L. R. B., 176 F. 2d 385 (C. A. 6), cert. den. 338 U. S. 899.
10 Cf. Scott-Atwater Manufacturing Company, Inc., 90 NLRB No. '9; United States
Gypsum Co., 92 NLRB 18.
1724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
afterthought, but that the Respondent regarded Staiger as having responsibility
for the direction of the machine shop during the period under consideration 11
Upon all the evidence, I conclude and find that Staiger's authority over
employees in the machine shop was such as to meet the statutory test of a super-
visor with authority responsibly to direct production employees .2 In reaching
this conclusion, I am aware that as an hourly rated employee, with working
conditions the same as others in the machine shop, and with a rate of pay not
substantially different, Staiger may, with some reason, have looked upon himself
and have been looked upon by others in the shop as having interests more closely
allied with rank-and-file employees than with management. But this factor,
while not without significance in all cases, in my judgment is not alone sufficient
to overcome the other facts here present that combine to bring Staiger within the
category of a "supervisor" as Congress has chosen to define that term.
For reasons earlier set forth, the finding here made that Staiger was. a
supervisor within the meaning of Section 2 (11) is dispositive of all issues in
this case. Upon the record as a whole, I find that the Respondent has not
violated Section 8 (a) (1) and (3) of the Act. Accordingly, I shall recommend
that the complaint herein be dismissed in its entirety.
Upon the basis of the foregoing findings of fact and upon the entire record
in the case, I make the following :
ConcLusIons of LAW
1. International Association of Machinists is a labor organization within the
meaning of Section 2 (5) of the Act.
2. Tri-Pak Machinery Service, Inc., the Respondent herein, is engaged in com-
merce within the meaning of Section 2 (6) and (7) of the Act.
3. The Respondent has not engaged in unfair labor practices within the mean-
ing of Section 8 (a) (1) and (3) of the Act.
Recommendations
Upon the basis of the foregoing findings of fact and conclusions of law, and
upon the entire record in the case, I recommend that the complaint against
Tri-Pak Machinery Service, Inc., Harlingen, Texas, be dismissed in its entirety.
11 Thds, in support of a recommendation that Staiger's rate be increased from $1.25 to
$1.35 an hour, Partain on a "change request" dated May 18, 1951, gave this reason :
Because Earl now has the responsibility of the machine shop and all the die work
he is worth more to Tri-Pak . He is doing a good job managing and also turns out
a good quantity of work himself.
12 See Chautauqua Hardware Co., 92 NLRB 1518; Warren Co., 90 NLRB 588; Accurate
Threaded Products Company, 90 NLRB 1364 ; National Food Corp ., 88 NLRB 1500.
SPERRY GYROSCOPE COMPANY, DIVISION OF SPERRY CORPORATION and
LOCAL 450, INTERNATIONAL UNION OF ELECTRICAL, RADIO, AND
MACHINE WORKERS, CIO, PETITIONER. Case No. 2-RC-3179.
June 28, 1951
Decision and Order
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Lloyd S. Greenidge
and Lewis Moore, hearing officers. The hearing officers' rulings made
at the hearing are free from prejudicial error and are hereby affirmed.
94 NLRB No. 241. 1