Vapor Corp.

National Labor Relations Board - Board Decisions

Jun 4, 1979

242 N.L.R.B. 776 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Vapor Corporation and International Union, United Automobile, Aerospace & Agricultural Implement Workers of America (UAW). Cases 13-CA-16463 and 13-RC-14344 June 4, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On October 10, 1978, Administrative Law Judge Thomas A. Ricci issued the attached Decision in this proceeding. Thereafter, Respondent Employer and Petitioner Union each filed exceptions and a support- ing brief and a brief in response to the other's excep- tions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs, and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge, except as modified herein, and to adopt his recommended Order as modified herein. The Administrative Law Judge concluded, inter alia, that Anton Stieb is a technical employee and therefore recommended that the challenge to Stieb's ballot be sustained. The Employer, in its exceptions, contends that the Administrative Law Judge erred in this regard and that Stieb is an eligible voter. We find merit in this exception. At the time of the hearing herein, Stieb, who works in the thermostat tube assembly department,' had been employed by the Employer for approximately 22 years. He was classified as "utility operator and maintenance," and he testified that he was in labor grade five.2 Stieb's work assignments formerly in- cluded production operation, all types of machine maintenance, and cleaning work. After experiencing several heart attacks approximately 2 years prior to the hearing, his condition precluded heavy lifting or strenuous maintenance work. Thus, his job duties were modified, and at the timne of the hearing he I In producing the thermostat tubes, lengths of glass tubing are cut and gauged, a small platinum wire is placed in position. and pieces used to make the thermostat are welded together by a wire welder which seals in the wire, A bubble is then blown in the tube. the tubes are annealed. mercury is inserted under pressure, ad the glass is vacuum sealed by machine. I.eftover mercury is recovered from the machine and filtered for reuse. The Employcr's hourly rated personnel are listed according to labor grades numbered front I to 10, with the former being the highest paid. worked primarily in the cleaning room adjacent to the main tube room. In performing his work, Stieb takes mercury that has become contaminated and puts it through a cleaning process and into a still for reuse, cleans and maintains some of the machinery, and washes glassware. The lifting of heavy trays of glassware into various machines, however, is now per- formed by someone else. The cleaning room measures approximately 8 by 15 feet, with an aisle about 30 inches wide down the middle; it contains two sinks, a small oven, benches, and has two ventfans. Glassware is washed with an acid solution, rinsed with water, then rinsed with alcohol to facilitate drying. The oven is occasionally used for heat treating small metal parts, and Stieb follows specific directions from the requester as to the correct temperature and length of time involved when performing heat-treating assign- ments. In determining technical employee status, the Board has long applied the criteria that "[g]enerally, those held to be technical employees are employees who do not meet the strict requirements of the term 'professional employee' as defined in the Act but whose work is of a technical nature involving the use of independent judgment and requiring the exercise of specialized training usually acquired in colleges or technical schools or through special courses." Litton Industries of Maryland, Incorporated, 125 NLRB 722, 724-725 (1959). 3 Further, "[i]n each case where tech- nical status is an issue, we shall require that the rec- ord affirmatively support the claim for such status." Litton Industries, supra at 725. In the case at hand, Stieb has a high school educa- tion. While he took a chemistry course in high school, he testified that a knowledge of chemistry is not re- quired for his work, and the record does not contain any indication to the contrary. He has not taken any specialized courses in connection with his employ- ment. HIe learned his duties through instruction while on the job, and he testified without contradiction that he thought a good person could learn his job in I week and probably become proficient at it in 30 days. In our view, his job duties as described in the record do not require the exercise of independent judgment or require specialized training such as that usually acquired in colleges or technical schools or through special courses. The Employer requires no such spe- cial training, and Stieb's job does not require that he be certified, licensed, or registered by any school, gov- ernmental body. or private organization. On the basis of the above we conclude, contrary to the Adminis- trative Law Judge, that Anton Stieb is not a technical 3 See also Brnerr ,Memoril IHopital ('enter. 217 NI.RB 775, 777 (1975): liniv Memo,loria Hospital of ('Cduilt, ,ic, 2 19 NLR B 215 (1975. 242 NLRB No. 122 776 VAPOR CORPORATION employee.4 We shall therefore order that his ballot be opened and counted.5 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge in Case 13-CA- 16463 and hereby orders that the complaint in Case 13-CA-16463 be, and it hereby is, dismissed in its entirety. IT IS FURTHER ORDERED that Case 13-RC-14344 be, and it hereby is, severed and referred to the Re- gional Director for Region 13, and that as part of the investigation in Case 13-RC-14344 to ascertain a representative for the purpose of collective bargain- ing, the Regional Director for Region 13 shall, pursu- ant to the National Labor Relations Board Rules and Regulations, Series 8, as amended, and within 10 days from the date of this Decision, open and count the ballots of Edward Baran, Charles Malera, Ken Boehm, Jerry Chabowski. Arthur Davidson, Robert Ugolini, Chester Sample, Charles Rubach, Ray Leon- hard, Vincent Dominguez, Maria Roimicher, Charles Melendez, Chris Matuszak, William Carnes. John Jennings, George Lewandowski, Murl Turner, Stan- ley Janiszewski, James Ponder, and Anton Stieb, and thereafter issue and serve on the parties a revised tally of ballots and issue the appropriate certification. DECISION STAIEMENT OF rIlI CASE THONIAS A. Rcci. Administrative Law Judge: This Deci- sion is an integral part of the consolidated stage of two cases, one a representation proceeding and the other a com- plaint case. In Case 13-RC-14344, International Union, United Automobile, Aerospace & Agricultural Implement Workers of America (UAW). here called the Union. filed a petition for an election among the production and mainte- nance employees of Vapor Corporation. here called either the Employer or Respondent. The results of the election, held on June 3, 1977. were inconclusive because of certain challenged ballots. The Union filed timely objections. charging improper interference by the Employer such as to affect the results adversely to the Union. After various ' In iew of our determination that Stiel is an eligible voter. we find it unnecessary to rule on the Emploer's coltention that the Administrative Law Judge erred by admitting into evidence certain periodicals and relying upon them. We note also that the record, in our view, does not support the Administrative law Judge's assertion that "the Company again and again designated Stieh as a chemist when it had all these magazines sent to its library." 'Contrary to the Decision of the Administratise Law Judge, Member Jenkins would find that Murray. like Turner. whom the Administratise t.La Judge found not to he a supervisor, is also not a supervisor and would overrule the challenge to MurraN's ballot postelection steps taken by the parties and by the Regional Director and following an appeal to the Board, a hearing was ordered on the objections and on 22 of the unresolved challenges. In Case 13-CA-16463 the Union filed a charge against Respondent on May 10, 1977, and the General Counsel issued a complaint based on that charge on July 29. 1977. A consolidated hearing on all of the questions thus raised-- the substance of the objections, the validity of the chal- lenges, and the merits of the complaint-was held at Chi- cago, Illinois, on various dates starting January 23 and con- cluding February 22, 1978. At the election 194 employees cast ballots in favor of the Union and 179 against. The Union challenged 24 ballots, 2 on the ground that the employees were confidential, 2 on the ground that the employees were technical, and 20 on the ground that they were all supervisors. The two chal- lenges addressed to the alleged confidentials were resolved by the Regional Director with finality and are not at issue here. Testimony was taken at the hearing respecting the remaining 22 challenges, the Employer disputing in each instance the Union's assertion that the employees involved were ineligible to vote. Testimony was also received re- specting the Union's objections. The complaint alleges a single violation of Section 8(a)(1) of the statute, which Re- spondent denies. Briefs were filed by all parties after the close of the hearing. Upon the record in its entirety and from my observation of the witnesses, I make the following: FINDINGS 01 FACT i. IHi-. B:SINIlSS OF 111 (COMPANY Vapor Corporation is a Delaware corporation which con- ducts business in Niles. Illinois, where it is engaged in the manufacture of temperature control devices, steamheating equipment for transportation. relays, steam generators, and door operators for subway cars and buses. During the past calendar year, a representative period, in the course of its business Respondent purchased and received at its business location goods and materials valued in excess of $50,000 directly from out-of-state sources. I find that Respondent is engaged in commerce within the meaning of the Act. II. TIIL LABOR ORGANIZAION IN\'OIVED I find that International Union, United Automobile, Aerospace and Agricultural Implement Workers of Amer- ica (UAW) Region 4. herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. ii1. HE (CHIALI.EN(i.ES A. Picture (of the Case This is essentially a representation case. involving more investigation than litigation. The real purpose of the hear- ing was to make a record for the Board as to what the pertinent facts are which underlie the dispute concerning the 22 employees in question: were they "eligible," to use 777 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the standard representation case phrase. Nevertheless, as the unduly extended transcript clearly shows, the conflict- ing views between representatives of the Employer and of the Union manifested themselves as much more than objec- tive disagreement. Indeed, the extent of their quarrelling was such as to color the testimonies of' their respective wit- nesses, much of which consists of conclusionary statements and expressions of opinion. It is therefore important to set out at the start certain pervasive facts which bear a signifi- cant relationship to the supervisory issue, which alone will determine the majority of the challenges. Moreover, appreciation of the necessary production methods which are pursued daily throughout this plant will also shed meaningful light upon the single unfair labor practice issue raised by the complaint. B. Working Conditions Generallf Over 400 production employees work in a variety of sec- tions spread over the extensive area of this single building plant, all working on one floor. Pursuant to a constant flow of multitudinous and ever changing orders for complex products received from its customers, the complicated pro- duction process flows from initial to successive operations, to eventual inspection, to packaging, and to shipping. Every step must be scheduled, recorded, supplied, and timed. The products are made in a variety of mechanical and technical workings, each requiring highly skilled specialized talents. The relative competence of the employees is reflected in the pay grades into which they progress as they stay with the Company; grades are numbered from I to 10, number I being the highest paid. As the employees become more ex- perienced, they receive raises within grade or advance to higher grades. Many of the witnesses, particularly those called leadmen who were challenged at the election, have been at work at this plant for more than 30 years. Most of the production work requires a certain supply of' parts, some obtained from outside the building and some made as subassemblies in this plant. Every order received from a customer, be it for a single item or for hundreds of like items to be shipped on precisely fixed dates over peri- ods as long as 6 months, is scheduled at the start in the front office. Detailed written schedules are then prepared and given to the respective foremen in charge of the diver- sified operations. There are about 30 such foremen, con- ceded supervisors, who move constantly throughout the plant, each watching to see that the special work for which he is responsible moves effticiently. Under the foreman in each of the many work areas sometimes called depart- ments, sometimes called sections, and sometimes called simply areas there is one or more of the most experienced and skilled workers, called leadmen or group leaders. here used as interchangeable terms. The foreman gives the lead- man ltat part of the schedules relating to a particular por- tion of the work, and the leadman is then responsible to see that the rank-and-file employees receive the work in coher- ent and efficient flow. As he studies these schedules for what work must be done next, at his work desk where the unending and detailed records are made, the leadman starts by seeing what parts are necessary for the particular order or list of orders. He writes out what the witnesses called "requisitions." These listings of what has to be brought to the department are sent to proper stations elsewhere, and the parts are then brought. All this occurs while the em- ployees are still working on whatever the! had to do pursu- ant to earlier schedules. The system of which employee does what work is then logically predetermined. A man finishes one job-so man parts of this or so many parts of that and he is given another job, either more of what he has just finished or whatever else is scheduled for which he is particularly skilled and experienced. Sometimes all three or four work- men in a single area or work section have comparable skills. but often their specialized skills vars. In such cases the scheduled work awaits the availabilits of( the next man who knows how to do it. Regarding the movement of' scheduled or requisitioned parts. there are three major aisles cutting through this ex- tensive work area; they are between 7 and 10 feet wide and are separated from the operational areas either by wall par- titions or by see-through chain fences. All materials or parts. finished or unfinished, flow in constant stream up and down these aisles to keep the entire operation in continuous correlated flow. The floors of the aisles are marked with moving lifts and hand trucks bringing materials from one end of the plant to another. 'Ihis process goes on daily while production people are working. Except for the foremen supervisors and their superiors, everyone in this plant is hourly paid and all punch regular timecards on the clock; the usual straight time of' da is 7:30 a.m. to 4 p.m. The work product of most of the em- ployees is also measured by an engineering time-studs stan- dard. This applies to all actual production employees i.e.. those who work on machines. assetnbl 5 lines. inspection operations, etc.. and also to manyv so-called testers who ex- amine the products at arious stages of the total process. There are production cards, a difierent one for each process so studied and timed. T'here is a price equivalent in each case, marked on the detailed card so much mornc tfor so many pieces in such a time period. hese cards are ini- tialled when the job is given to the employee the starting time is noted, and the card is signed again to show the number of items produced at the time of' completion. The employees make their owi notations on these cards and give them to the leadman who often checks the accurac and adds his own initials. 'Ihe cards are sent to the appro- priate recording offices. If' by the end of' the \week the work product of the employee, as measured b the mnes equivalents called for 5 these cards, equalIs more than pay- ment due on the hourly rate the end object sought b the time-study method the emploee is paid the greater amount. But in no event. regardless of the picture resulting from the time-card calculation . is hc esclc paid less than what the hourlyv rate calls for. In addition to all of this recordinLg oI the flowss of' work including listing of' parts, products. aind the ime-studx pa- pers really the traditional work of a plant clerical the leadmen also do regular production \ ork. Some of' them spend as much as 75 to 80 percent of Ihicir time actualls producing assembled products or directly inspecting mlanu- faltUred articles as they flow through his area. ()thers only spend 20 or 25 percent of their timne in this manuer. depend- ing upon the quantity of' the unetidili- deta;iled records re- 778 VAPOR CORPORATION quired. Moreover, some of the so-called leadmen in dispute are not called leadmen at all, hut "set-up men." or "utility set-up men." This is because the group makes it a practice. in most cases to produce or work on the first of any series of products to be made. The purpose here is to insure that they will be made properly. and that the needed parts and equipment are adequate. The leadmen then turn the re- mainder of the scheduled job over to the regular men. C. Nes.varv (ommentL ol {hih Nlture of he TeslimotO Perhaps because of' their emotional involvement or per- haps because neither party took the trouble to place Com- pany records into evidence, there are recurring generalities. conclusionary assertions, indefinite and conflicting state- ments as to numbers, and agaries of all kinds throughout the record. Theoretically, the challenge issues the major part of' this case are not litigation but pure investigation. with the Board just needing to know the pertinent facts. There is, still theoretically. no burden of proof either way so that fhilure hb either party to shed light on an 3 aspect of the leadmen's conditions of emploi ment warrants no infer- ence that an\ unrevealed facts point one was or the other. In the end, decision must rest upon what facts do appear clearly in the record. When the testimony keeps changing. it must be evaluated in its totality as best possible. he testi- mony is too repetitive and belabored to justift summarizing it all in detail here. A number of employees called by the Ionion in support of the challenges said that the. "beliesed" the leadlmen w ho worked with them were supervisors. In the tfact of the con- tention that the employees' impression that X is a supersi- sor is an element the Board must deem relevant, counsel for the Union then had other emplosees testifl that they asked leadmen to ign union cards onls to have them the lead- men respond /cv thought the\ were supervisors. But if la rank-and-file emplo'Iee asks his leadman to join the union, it perlfrce means that the emploee thought the leadman was not supervisor. In any event. these conclusiionars opinion statements by the nion's witnesses are no more weights than the contrar's answers by a number of the lead- men to the effect that they personallx did not consider themselves bosses or supervisors. It is substance that counts and not words alone. One em- ployee after another said that his leadman "assigins" work to him. Others said the leadmlen "transfer" the emplo ees. Standing alone, s counsel for the Ilnion left them on direct examination, these words suggest all sorts of poWser and authority in the leadmen. But what the, realls mean can onl' be appreciated in light of the objecte falcts. As al- ready explained. the production work is scheduled in writ- ing, and when one man finishes a job he proceeds to an- othei. Someone must tell them what it is. and this is what the leadmen do that the witnesses called "assignment of work." It is automatic in most instances. Sometimes there will be a series of jobs scheduled to ill one particular order where the skill is highly specialized. requiring the experi- ence of one man over another. That aiting job does not gc to the man who has neer done it before een if he first becomes available. Instead the leadian gls es him some- thing that lie does kno h to do. Is this the exercise of independent judgment of which the Board cases speak when deciding is the "assignor of work" a supervisor or not? Ift' ever the word "routine." which the Board has used frequently to describe a nonsupervisory function, fits. this is the case. The witnesses talked about "hot jobs." By this they meant special rush jobs that had to be worked on out of the order of the regular schedules. Such rush orders are sent in writing down the established route from the front office to the foreman and to the leadman. Again, the lead- man requisitions and gathers the necessarN parts. and it there is no one man free among the several who work with him, he takes some man from whatever he is doing and assigns the hot job And of course. as alwass. lie tries to give it to the ilan \vho worked on that vern same product hefore or ho has the skill required to do it. This mechanicalIx' dictated selection of .ho was to do the "hot" job. or rush job. was also repeatedly referred to b5 the Inion's 'iitnesses as the "transfer" of emplo ees h\ the leadmlen. TIhe right to tra nsler emplosees ordi naril' car- ries with it an impliclation of' the power to a'tiel their earn- ings. to preomote them to better positions,. or even t edan- ger their status. No sutch inference is warrianted here t l. 'lhe u ordl trlnIlsfer here mllc;ans io nlore I han th e 11 s ord i s- sign. rotatini the work nmechallicalls as it lous into the hands of' the emplovees whol arc qualified to do hle'\Cr must be done next. Another important clarification is called for. With all of this production work time-studied and recorded oni "pro- duction tickets." suIccesspls e such tickets ;accoIIIpallIn g each job. a man's e;lrings , ill he al'ected hb his relati\e skill and speed. Indeed, the sstem. as alre all such time-stud( methods, is intended to stimulate the enploees to greaiter efflrt. and the aster man makes more mone' it' b the end of the week the nmon equi\,alent on his production ticket exceeds his holrl\ rllte. lit Lct. there are instances s, here the emplo\ee cmlpl;llils th.at tile uork-tLJu.lls-llilnc\ Ilte on his ticket 1s not Fair. either becius;l e he inds it impossible to produce s nan! 11 11the allotted time or because the pa? is noIt enough tlr the '%ork he has to do. It is not claiiled. nor is there aii exidence to indicate. that the leadilen in this plant select jobs or next assignments with an e!e\ to- wards fa's oring one emploee over another. lhere is n( re.A- son to believe that the leadman even koss s in ildt.lilce which scientiticalls rated joh will turn out to be morle desir- able than another. ".'Assignment.'' therefore. has n, mcaiii- ing in terms of tlie issue presented here. he leadmln strtns the production ticket before it is turned in to the oltice, but this too is no more th;ani keeping the records straight. i.agtial ;, purels ministerial or clerical function. A number o emplo\ees testified that hch1ti hel! are dis- gruntled over the allount of' milonel Ia articular prodluctioll ticket gixes or a certain amount otfs, ork. thlic tell thl Icail- mtiln and hle does something about It. A\gaill. the suggested imlplicaflion is that inm thllis tashion the leadman hia, an im- portant solce ill h I11 iuch the operator or inspector ' sill be paid anld therefore exercises super\isor unction. iut 'shat the record show\s clearl'. so often that there w'oul be no point in betlbo)ring thile testimoen here. is that all the leadman (loes and all he ma' do is orward the complaint to the tremllan over hii. or it the liremlltn is not available to the "raite man.'" somnetimes reterred to as the inidustrial 779 DECISIONS OF NATIONAL LABOR RELATIONS BOARD engineer. That man, and only that man, has authority to consider the complaint and to retest the operation if he cares to. The leadman, as before, is no more than a con- duit-this time from the employee up to the supervisors. He is really a conduit from the supervisors down to the produc- tion employees in handing out the successive jobs to be done. The word "problem" appears throughout the record as something the employees bring to their leadmen for resolu- tion. They answered "yes" to a number of questions asking did they bring their "problems" to the leadmen. What did the word problem mean in this shop? Some samples of the testimony will suffice. Miguel Perez, asked by union counsel what did he mean by problems and the leadman where time-study rates were concerned, answered: "He have to call a rate man to rate the job, and after the man walked away and figured out how much it is going to be, he brings that report, how many. If in case it's still a little too high to make it, he [the leadman] has to talk to the rate man again. And if it stays, it can stay, the rate, the same way or can bring it down, whatever." Chris Matuszak. a leadman: Q: Give me an example. Mr. Witness, of what a problem on the job means to you. The Witness: Somebody feels the rate is too high ... On something like that I would talk to Mr. Kleeman (the foreman) and have him talk to the industrial engi- neering department. Q: Give me another example of what you consider a problem on the job people bring to you. The Witness: Improper materials .... Wrong mate- rial called out for a print, if something won't fit .... Q: This is a problem on the job that they bring to you? The Witness: Yes. Carlos Melendez, a leadman, stated while being exam- ined by union's counsel: Q: Do you keep Mr. Kleeman informed of the problems of your employees? A: When you say problems, major problems I do. Small problems no, I don't. Like ... if you run out of parts, problems like that, I don't. I don't call Mr. Klee- man every minute you run out of parts or this or that. That is why we make a list. We know sometime there is no part. I call them problems. We run on this job, for the moment, and you run out of parts. That's what we call a problem . . . You can't expect the man to wait there until we get the parts; so, you give them another job until you get the item from the stock room or who- ever is going to go up and get the item for that particu- lar job. Q: So, some problems you solve yourself. and others you report to Mr. Kleeman; is that right? A: Yes, major problems. None of the foregoing testimony was disputed. Phrased variously by other witnesses but not with any substantive difference, it is typical of the long record. All it amounts to is a restatement, in detail, of the pervasive fact that the leadmen requisition parts and see that the employees re- ceive them timely. and that they funnel employee resent- ment over time-study requirements to higher authorities. In the end, all the foregoing facts painting an overall picture do not mean the record may not, nevertheless, show some of the disputed leadmen were, in fact, supervisors at the time of the election. Each challenge must be tested against the entire record. But there is one final part of the evidentiary picture that should be set out before each chal- lenge is considered separately. A major argument by the Union is that the numerical equation alone points to super- visory status in all the leadmen as a class. It says that if over the approximately 435 rank-and-file employees only the three general foremen and the 30 or so foremen-supervisors are held to be part of management, there were not enough supervisors, there had to be more. Actually. a fair reading of all the testimony -always bearing in mind that the com- pany payroll was not offered into evidence for precise ex- amination--shows that there were about 44 leadmen. Only 20 leadmen were challenged, and most if not all of the oth- ers cast unchallenged ballots. With the Union's position being that one must infer, even absent direct proof, that the leadmen were supervisors within the meaning of the statutory definition, the Com- pany took pains to insure that an inference adverse to its contrary position be precluded. That is, it tried to protect itself against a finding based even in part upon a void. In one way or another. but clearly enough, it therefore asked each of the challenged leadmen whether he or she had the power to "hire, transfer, suspend, layoff, recall, promote, discharge, assign, recommend. or discharge" the employees. to "adjust their grievances," or, again in painstaking detail. "effectively to recommend each and everyone of the above listed actions." The leadmen responded with unequivocal "nos." Now, if other credible evidence proves the contrary, so be it, but it there is no such opposing proof there can be no inference to that effect. numbers or no numbers. C. Indidual (Challlenges 1. Edward Baran The only evidence relating to this man, drawn from cross-examination of a general foreman. is that he is called a leadman, that he is in grade five, that under some un- named foreman he posts schedules which he receives, and that he himself "packs." I shall recommend that the chal- lenge to his ballot be overruled. 2. Charles Malera This man had been with the Company for 35 years at the time of the election and worked as a leadman, in grade one, in department I , where there was a total of 9 or 10 men doing turret lathe production work. In this same group there was included another leadman, Stanley Moulton, who had essentially the same duties, albeit on a different per- centage basis. There was also a foreman, Casey Zadel. who was responsible for the work in department I : how much time Zadel spent in this department and whether he also worked in other departments is not clear. Above Zadel. over this and other departments, there was General Fore- man Kowalczyk. 780 VAPOR CORPORATION A union witness said that Malera used to spend 4 or 5 hours per day doing direct production work. Like other leadmen, he assigned work pursuant to the schedules, even putting one especially skilled man or another on "hot" jobs when they came. He set up the jobs and made the first piece of a series before turning the order over to the workmen. He requisitioned parts and kept records of everything, includ- ing checking and signing the constant flow of piece work- time production tickets. Leadman Moulton did exactly the same kind of work, except that as the second leadman in the department Moulton did no direct production work at all; he occupied himself practically all of the time with keeping records. His vote was not challenged. I do not think that the evidence respecting Malera suf- fices to prove him to have been a supervisor. When some- one had trouble putting an assembly together correctly, he would ask the leadman for help, and Malera would "change the tool," or "make it a different way," as one of the rank-and-file employees who worked with him testified. If the leadman was unable to resolve the "problem" that way, he called the "rate man" for help. Whatever the rate- man decided to do he decided himself. Before leaving Malera, there are two other details about him, stretched entirely out of proportion by the Union, that should be explained now because they apply as well to many other challenged leadmen. There are three leave slips used throughout the plant for leaving the premises. One is for a man who wishes to leave early, one for taking away property belonging to the Company-tools or whatever for temporary personal use at home, and one for taking home anything that belongs to the employee himself. The slips must be signed by an authorized management representa- tive and are necessary for the guards at the gates to keep control of things. That it is first the responsibility of the direct and admitted supervisors-general foremen and regular foremen-to approve the slips, is the clearest thing shown on the record; indeed, the slips literally have that statement imprinted on them. But there are occasions when no foreman is available in the area. In such cases leadmen do sign them. That they may do so in an emergency situ- ation when the true supervisor is not around was conceded by the general foreman at the hearing. One or two leadmen who testified said they never did it, and this may be true in their cases because the special occasion never arose. But it is a fact that many have done so, as they admitted. A num- ber of them also added, however, and there is no reason not to believe them, that in such cases they report the occur- rence to their respective foremen so that proper records can be made as the basic rules require. It often happens that overtime work must be done in many of the production or inspection departments. Some- timeF all the people in the area-four, five, or even more- have to stay to do the required work; sometime only some have to stay. Someone has to pass this message down, both to inform the employees and to assure that they will be willing to remain. Perez, who worked with Malera, said that he had done overtime maybe 15 times, and each time had been told to do so by Malera. In his next breath Perez added that de- pending upon the nature of the overtime work to be done- as, for example, where it "required a closer tolerance"--the "more experienced" were asked to stay. Other witnesses gave the same kind of testimony, always phrasing it in terms of the leadman "selecting," "choosing," or "deciding" who would enjoy the benefits of the overtime. However, as the case went on more significant facts came to light, as distinguished from suggestive indirect phrases. First of all, the question of whether overtime is to be done is absolutely outside the discretion of the leadmen. Next, the question of which employees shall do the required extra work is predetermined by the nature of the work, exactly as is the initial assignment to the appropriately skilled man when the scheduled work is assigned in the first place. If everyone in the area is doing the work that now has to continue on overtime basis, they all stay. If it is the kind of work one or two of the group have been doing all day be- cause it falls into their special competence, they are asked to continue on as a matter of course. It will happen at times that in a group of 8 or 10, only I or 2 are needed for the overtime, but 3, 4, or more, know how to do that work. Whenever this happens, and the record does not indicate how frequently this may be, other established rules binding upon the leadmen come into play. If there has to be a selec- tion among the employees, the men who have already worked 40 hours that week are entitled to the overtime. And if it is to be a Saturday, often the case, the work must go to the men who have worked 5 days that week because Saturday work is paid time and a half regardless of how many hours were done by the men that week, and it is deemed unfair to favor the absent men. With all of these determinative factors removing any exercise of discretion from the leadmen, if there should be occasions for them to do any choosing, they must indeed be very few and far between. The evidence is conflicting on whether they ever choose independently at all. Against the conclusionary statements of employee witnesses that the leadmen "picks him." or "assigns him" to overtime, there is no less convinc- ing testimony by the leadmen, which is uncontradicted, that it is the foremen who point out which employees must be asked to stay on overtime. From the testimony of Harry Rubach, a leadman: ". .. if the job calls for overtime, and that is where the individual is working on the job, I mean, naturally, he has to be asked, actually first, you know, and then, you would get the best qualified individual.... I figure net with the experience I have with the individuals actually working under me you know, I mean, I'm the best judge of this." From Rubach's affidavit: "Overtime is done on a voluntary basis. All are asked, however, if one job requires overtime, then that worker is asked first. If I have to make a selection on who will work overtime, I consider experience, not seniority. That problem rarely occurs." Stanley Karpinski, a supervisor: "It [overtime] comes from my supervisor which gives me the approval to autho- rize whoever has to work for that evening or whenever the overtime is required.... People are selected to work over- time if it is in their certain areas.... A bench inspector can't perform the duty of the floor inspector." I find that the challenge to the ballot of Charles Malera must be overruled. 781 I)2 (CISIONS ()1 NATIONAL IABOR RELATIONS BOARD) 3. Ken Boehm Boehm worked in an area where there were five men doing assembly work. This is part of department 16, which also has about 15 other employees in another area: the en- tire department is under Foreman Sterling Estep. The testi- mony conflicts as to just when Boehm progressed from "As- sembler" classification to leadman, immediately before the election or shortly thereafter. Whenever, he was raised from grade seven to grade five. What is clear, however, is that at least 40 to 50 percent of his time is spent doing regular production work on incen- tive pay. He said he devotes as much as 90 percent of the time doing "Assembly" work and explained that this is be- cause he deems set-up work just another fborm of production work. Raul Perales, who worked with Boehm, described the leadman's activities precisely in keeping with the general picture of the case that Boehm ordered parts, distributed them to the others, gave out the work in rotation, and also worked himself. Regardless of when Boehm was designated leadman, obviously Perales did not look upon him as a supervisor. for on the date before the election he asked the leadman whether he was going to vote for the Union. I do not think Boehm was a supervisor at the time of the election, and I therefore find that the challenge to his ballot must be overruled. The following statement from his Octo- ber 1977 affidavit does not require a contrary finding. "In one situation when I was having a problem with an em- ployee, the employee and I went to talk to Estep. He lis- tened to both of our positions and decided to transfer the employee to the other section upstairs." 4. Jerry Chabowski Chabowski is the leadman in the second area of depart- ment 16, where door assemblies are made. Each of three witnesses gave different numbers as to how many employ- ees work there; between 8 and 10 is the best that can be gleaned from the total record. Foreman Estep is over that area too. The usual statements were made as to this lead- man also, again by an employee witness. Chabowski assigns work pursuant to the schedules, requisitions parts, sets up the first of every series of assemblies, shows the men how to do the work, signs the time-study production tickets, and spends part of his time at a desk keeping the records straight. Perales, who used to work in that area, said that when he was hired by Foreman Estep the foreman told him that Chabowski would be his "supervisor from now on and tell you what to do." Chabowski denied that Estep referred to him as a supervisor when introducing the newly hired employee. His description of his work is a perfect example of what leadmen do here: "On a normal day, I come in, there is a continual flow of shop orders that material has to be requisitioned and also, there is a weekly, monthly sched- ule that's Sterling Estep's that occasionally him and I go over, like I say, and also there is continual employees that are looking for a job to keep themselves busy which I, in turn, if the material is there, show them how to make the first one and then they build it." "I have a function of writ- ing up the shortages, I have a function of taking and show- ing an employee how to do-how to make the first one." One of the problems Chabowski runs into is when an employee makes mistakes. If he cannot show the man how to work correctly he brings the matter to Estep's attention. From Estep's testimony: "At times he'll l('habowski] come and say this guy is doing a rotten job, but then it's my job to find out if it is Jerry that may be misled on some idea. I have to find out and find out for sure if that person is doing something wrong, then he's reprimanded. If not, Jerry is questioned why he said such and such about something." From Chabowski's affidavit: "While I have never formally recommended that an employee receive a promotion, Estep will occasionally ask me how a particular employee is doing. If I think the employee is doing a good job and tell this to Estep, Estep will then spend specific time watching the employee work." All things considered, I find that ('habowski is not a su- pervisor and that the challenge to his ballot must be over- ruled. Department 18, called the relay department by some wit- nesses, has about 50 employees who work in several sepa- rate areas in different parts of the building. Who worked where or when, what people's titles are, and how many are found in one area or another, is greatly confused, no matter how carefully the transcript be studied. It does seem clear there is a conceded supervisor, -Chester McAdams, who spends all of his time watching over the entire department. There is also a regular foreman, C. Rusesky., who works directly with these people. Rusesky also looks after depart- ment 25. Just how big department 25 is or how much of Rusesky's time is spent there, there is no way of saing with accuracy. The number of "leadmen" or "group leaders" there is among the 50 or so who make up department 18 is also not clarified by the shifting oral testimony. In their selective briefs, both the Union and Respondent select out those statements by witnesses which serve their conflicting objec- tives. Arthur Davidson, Harry Rubach, and Chester Sam- ple are called group leaders, and they were challenged at the election. Robert Ugolini is called "set up utility opera- tor"; he too was challenged. In addition, the witnesses spoke of Cescna and Hal Williams as utilities set-up men in the same department. Neither of these two was challenged. A number of witnesses said rather clearly all six of these people do very much the same thing. All I can do is talk of the four challenged men, one at a time. 5. Arthur Davidson This man works with four others at most; one of his men said that there were only three or four including Davidson. He fits the overall picture of leadman in the plant in very minute detail. Thirty years on the job, he "knows what job to give them." transfers people "depending on the urgency of the job." and spends 60 to 65 percent of his time on direct production work. The argument that he is a supervi- sor rests largely upon a statement appearing in his prehear- ing affidavit, as follows: "When jobs come in, I assign them to the various employees. Work is assigned by me depend- ing on my evaluation of an employee's work ability." If this phrase be taken out of context it might suggest managerial prerogative, effective decision affecting substantive condi- tions of employment. But on this record other statements 782 VAPOR CORPORATION by Davidson are no less persuasive. He said that the work of his group involves fine tolerance and not so fine toler- ance, that some employees do the more difficult work while others, lesser skilled, necessarily do other work. "You can't take one man and expect him to run the job right away. You can't do it. You can't learn the job overnight. One man has been with me 7 or 8 years. so he got that job .. . a man might go working on, sa. a regulator that we need for the boiler line. All of a sudden we get a call and they tell me he might need just a spray head for shipping, and they need it right away, the customer needs it right away. I'll take the man off the regulator job and put him to get the spray head." Beyond this there is nothing of significance indicating that Davidson was or is a supervisor. I shall therefore rec- ommend that the challenge to his ballot be overruled. 6. Robert tigolini Ugolini works as a setup man in the relay section of de- partment 18; here there are 17 employees overall, according to employee witness Elaine Williams, or 12 to 13 employ- ees, according to Ugolini. Over this group there are McAd- ams, the supervisor, and Rusesky, the foreman. There are also the testimonies of two employees called by the Union who stated to the effect that Ugolini requisitions parts. does setup work, and shows others how to do the work. There is nothing otherwise to indicate that Ugolini exercises supervi- sory authority. His title is "set-up utility operator." I find that he was not a supervisor and that he was therefore eligi- ble to vote. 7. Chester Sample Sample also worked in the relay section of department 18 where there are about 10 men. Among these 10 men there is included the other group leader, Harry' Rubach. Only one witness, Ronald Corbett, was called by the Union to sup- port the challenge to Sample. Corbett mentioned the usual things about Sample assigning work, sometimes signing the leave slips, passing out overtime instructions, etc. On direct examination the witness said that he "believed" Sample was his "supervisor." Later he explained this was his belief be- cause he used to see Sample doing paperwork somewhere. although he did not know what Sample was writing. As a witness Sample told the same old story about how, as a group leader, he follows the schedules, obtains parts. sets up jobs, and does production work. This is still another case where the challenge rests primarily upon selected lan- guage appearing in the leadman's earlier affidavit. A portion of my job requires independent judgment in the assignment of jobs.... Russ [Rusesky] asked me what I thought of the guy's performance. I told him I don't think it was too good. About 2 or 3 weeks later, he was transferred. As he continued his testimony Sample told more, and fur- ther language from the affidavit was brought out. Asked what did he mean by independent judgment, he said: Well, I would think it is it is two-pole. three-pole. whatever Russ wants a rush job, I take it upon my own to give the girls a job, whoever is out looking for the next job. That's all. It is on the schedule. I give them two-pole, three-pole, one-pole, subassemblies. putting leaves on carriers.... Whichever I think goes with the job. Q: And that is your explanation of exercising in- dependent judgment'? A: Yes. sir. As to the man who was transferred to another department by the foreman. Sample's affidavit continues with: "I have never been consulted by Russ on any other matter." Sample has been with Respondent for 23 years. I find that the challenge to his ballot was not warranted and must be overruled. 8. Charles Rubach Corbett was also the sole witness who testified in support of the challenge against Rubach. Rubach is in the same group of 10 employees which includes leadman Sample. If Corbett's and Foreman Rusesky's testimonies were put to- gether, all that appears is that like other leadmen or group leaders, Rubach does bench work, finds and brings the stock. follows the schedule, etc., spending a great deal of his time doing direct production work. We come again to the usual language of the affidavit: "There is no formal written report concerning who deserves a raise. I may suggest it to the foreman, but he makes the decisions." If I have to make a selection of who will work overtime. I consider experience, not seniority." These are quotations selected by union counsel. What does "sugges- tion" of a raise mean here. or "selection" ifor overtime. or "complaints"'? From Rubach's testimony, perfectly clear and with no contradiction from anyone. Q. in your affidavit on page 5, you refer to the fact that you took care of problems. if they were minor. You give one example.... I'm asking you about other examples ... A. ... Another perfect example in that would be if an individual has a broken pencil. if he goes to the pencil sharpener. and the pencil sharpener doesn't work." Asked when had he suggested a raise, as stated in his affida- vit. the witness respondent: It was off the payroll. maybe six, seven years. I mean I don't know the exact date.... The thing has been so long ago, I don't think I could give a fair or honest answer, All I know is at the time, the employee that worked under me, he worked like a mule. He deserved that, more moneN, so I did . . . I made the suggestion that Brian was doing good work. you know. where, you know. the foreman gives him more mone or not, that is not up to me. More from the affidavit: "There is no formal grievance pro- cedure. They will come to me and I will take care of the problem. If it is minor, such as opening a window. other- wise, I merely tell them to talk to the foreman or explain the problem to the foreman." On the question of selection for overtime, again from the affidavit: "Overtime is done on a voluntary basis. All are asked. however, if one job re- 783 DECISIONS OF NATIONAL LABOR RELATIONS BOARD quires overtime, then that worker is asked first. If I have to make a selection on who will work overtime, I consider experience, not seniority. This problem rarely occurs." And finally, on the question of raises, still from the affidavit: "My authority is limited to what the foreman tells me. There is no manual outlining my duties and authority. There is no formal written report concerning who deserves a raise. I may suggest it to the foreman, but he makes the decison, most of these decisions are done by computer, based on the time tickets. I do not interview job applicants. I do not recommend who is to be hired. I do not have any effect on an employee's salary or benefits." I think that the challenge to Rubach's ballot must also be overruled. 9. Joseph Furtak As stated at the outset of this Decision, while there are general statements of fact that apply to all of the challenged employees, there is also evidence apart from the overall picture that sheds some light on some of them. Not all of the leadmen have exactly the same level of authority-how- ever routine the distribution of work may be. Furtak, lead- man in department 20, presents a very close question. There are seven persons working in his area-this includes him and an admitted supervisor, Jim Turner. Furtak is highly skilled-32 years with the Company; he assigns work as do the other leaders, he does production work, he is paid on an incentive basis, he chooses who shall be given the next scheduled work-relying upon his extensive and intimate personal knowledge of the other men's skill and experience, and he relays instructions for overtime. Furtak does all this, as far as the record shows, no differently from many of the other leadmen, including those who have already been found not to be supervisors. But there is something more in the testimony concerning this man that puts him much closer to supervisory status than many of the others. His superior, Turner, did not tes- tify. But the record otherwise shows that Turner also has charge of at least one other department. It follows that Fur- tak is often alone there. As the added testimony comes from Furtak, it must be accepted at face value. With Turner ab- sent part of the time, Furtak often tells Turner who is doing well and who is not. He sometimes suggests that employees be transferred. Q: Have you ever effectively recommended the transfer of any employee in your department? A: Yes, I did. I asked for certain people. Q: And those people were transferred in? A: One yes. Sometimes yes and sometimes no. He also recommends that warnings be issued and even that men be discharged. From his affidavit, which he testified was tue: "However, there have been times when the gen- eral foreman has fired or warned an employee after I have told Jim that something should be done about that em- ployee. This happened no more than two times a year and there have been only about four times in all since the time I became a set-up man when the General Foreman has had to fire an employee after I recommended this to Jim." This is not to be compared to what in some other in- stances might be a one-shot deal or only a rare occurrence over a period of years. If on an average of every 6 months the disputed man can institute a move that can bring about a serious warning, or a straight discharge, I think that he is too close to supervisory status to be ignored. Close as it may be, I would find this man to be a supervisor. I shall there- fore recommend that the challenge to his ballot be sus- tained. 10. Don Murray Department 21 functions in several areas of the plant. In one of them, where boilers are torn down and rebuilt, there are four or five employees, including Murray who is desig- nated group leader. These people are situated "two blocks" distant from the rest of the department. Murray is highly skilled, 30 years with the Company, and is paid grade two, the next to the highest rate in the plant. He spends much of his time at actual boiler work like the others, but he also does all the assigning according to schedules and overseeing that the rest of the employees do their work right. A distinc- tive feature of his position among all the leadmen is that the only evidence of any supervision over him is that Currer, the general foreman-of whom there are only three in the entire plant, ever visits that area at all. Currer is in charge of no less than 350 rank-and-file employees dispersed throughout 17 departments. This, of necessity, means that Murray has much greater responsibility and authority over the men who work with him there than do the leadmen generally throughout this plant. Carlos Sanchez, who works with Murray, testified that a few days after he came to the section the leadman told him "he [Murray] had been put in charge of that area." I must believe this, because it logically must be true. Murray equivocated on whether he had power to recom- mend a change of status for the employees under him: Q: Did you have authority or power to effectively recommend any of those actions? A: I don't really know if I did or not. I felt I was just another worker. If I wanted to complain, I could probably go to one of my superiors and tell them this guy isn't doing as much work as I am, maybe that would be a reprimand. I don't know, but I have never done that. Had he ever complained to anyone about Currer? No, I think I did at one time. I did mention once, yes, I did, and I went to Currer on that occasion, some- body didn't want to do the work out there that worked with me.... He called him in for a conference and told him about my complaining, and I guess he told him that he had to do the job or else. From his earlier affidavit: I will tell Currer if an employee is not working as I did about one employee, and Currer had a conference with the man. This happened about three or four months ago. Again from the transcript: Q: Have you ever had occasion to fill out evaluation reports complaining about an employee's work? 784 VAPOR CORPORATION A: That's the record that I mentioned earlier. I did fill out to tell him more verbally about an employee that was not doing his job out there with me.... it was a form that described their work habits. See, I had gone to Currer and said, "these guys aren't doing the work out there." He says, "well, what's the problem." I said, "they are just falling all over the stuff. I have to step over the pipe wrenches, the tools. I can't pick them up. I can't tell them what to do." He told me to fill out the little box where it tells housekeeping is poor, you know, we try to work in a clean place. They wouldn't do nothing. That's what it amounted to. There are just four questions on the form. Do you know if he [Currer] then called these em- ployees in? A: Yes, he did. He talked to them before I said the one, before the one particular one. Q: Did he call these two employees, Larry and Jim. in? A: Right.... Q: Did he ask you then to write this up? A: He asked me to check the boxes, what these things were. I think that it must be held in this instance that Murray exercises sufficient authority in his section and makes suffi- ciently effective recommendations and reports about the other employees' work performances to be called an effec- tive supervisor. I shall recommend that the challenge to his ballot be sustained. II. Ray Leonhard This man works in department 23, where there were 21 employees at the time of the election. It is called boiler assembly, and the work moves continuously from one area to another area of the department as one group after an- other works on the boilers. There are four group leaders here: Freund, McAdams, Reichold, and Leonhard. Only Leonhard's vote was challenged. He worked with only two other men in June 1977, and the testimonies-both his and that of Sanchez, the only other regular worker who testified, described this group leader no differently from the overall classification. He assigns work from schedules, requisitions parts, makes detailed records, and for more than half of his time works like the regular operators. Thirty-eight years on the job, he also shows the others how not to make mistakes and how to correct errors. Of course, the usual negatives were placed into the record as to him also, none of them contradicted by anyone. That he has no authority of any kind other than what Sanchez talked about is clear. I find that this man was not a supervisor and will recom- mend overruling the challenge to his ballot. 12. Vincent Dorminguez Dominguez works in department 25, where thermostat tubes are assembled. Pete Wywalowski is the foreman over the department. Dominguez is classified utility operator B, and, in grade four, is the lowest paid of all 20 of the chal- lenged leadmen. Like many others, he lines up the work pursuant to schedules. Both he and Ronald Chowojko, who works with him and testified about him, spoke of his spend- ing several hours a day doing set up. In this case it is clear that "set up" does not always mean actually producing the first of a series of products called for per schedule. Instead it means preparing the many parts needed for the order and placing all of them in sequential alignment in the depart- ment so that when an employee is finished with one job he picks up the next in line. Although hourly paid, Dominguez does none of his work on a production ticket basis, appar- ently because the requisitioning of parts, the reporting of shortages, the preparation of materials, and the extensive recordkeeping of all this time-study production work done in the department leaves him very little time for direct order production operation. This man never signs leave slips of any, kind and was not shown to have any supervisory au- thority whatever. If. as the Union argues in its brief, the fact that Dominguez keeps work moving automatically pur- suant to a written schedule is sufficient to make him a statu- tory supervisor, it follows that not only every one of the 20 challenged employees but also the 20 or so additional lead- men who were not challenged must be excluded from the bargaining unit. I think a more correct label for Dominguez is that he was a plant clerical, and that therefore he had a right to vote. D. Department 30 Maria Roimicher, Charles Melendez, and Chris Matuszak The picture of what goes on in this department is a per- fect illustration of this entire case. As in a very real sense the overall situation is almost uniform throughout the plant, it is well to recap the case in the middle, as it were, with the three challenges in this single department that are at issue now. About 38 people work here, where door pan- els, controls, brakes, and such things are put together. There is a foreman, Kleeman, who works daily in direct charge. Over him is Currer, the general foreman, who, as stated, is also in charge of over 300 people throughout the plant. The group is divided into three sections--the harness section, with 9 or 10 employees, where Maria Roimicher works; the relay panel section, with 10 employees, where Carlos Melendez works; and the door section, with 10 to 12 employees, where Chris Matuszak works. Roimicher, Me- lendez, and Matuszak are called group leaders. Everyone here is hourly paid, and all but Melendez and Matuszak also work on piecework tickets, getting more money than the guaranteed hourly rate depending upon the success of their efforts in the time-study equivalents. The record does not show how the hourly pay rate of the group leaders in this department compares with that of the other 35 employees there, but it does show that Roimicher is in grade five, Melendez is in grade three, and Matuszak is in grade four. The Union did place into the record further evidence on this point that does shed some relevant light. Twenty persons were challenged as supervisors; of this to- tal, six are not designated group leaders or leadmen. The pay grades of these 20 is as follows: Grade one, one; grade two, six: grade three, five; grade four, three; grade five. two; grade six, two; and grade seven, one. There was also placed into evidence, from the company records and as a document produced pursuant to the Union's subpena, a statement of the pay grades of 24 other employees, These 785 DECISIONS OF NATIONAL LABOR RELATIONS BOARD people were not otherwise identified, but it must be as- sumed that they are nonsupervisory rank-and-file employ- ees-certainly they were not challenged. While the Union's brief makes no comment about this information, nor does it explain why the evidence was introduced, I can only believe that the purpose was to compare the pay rate of ordinary production people to the now alleged supervisors. Of these 24, one is in grade 10; two in grade 9; three in grade 8; six in grade 7; six in grade 6; four in grade 5; one in grade 4 and one in grade 3. When this sampling is joined to the very clear evidence that the people called group leaders are al- most in every instance the oldest and most skilled and expe- rienced employees in the plant, there is little left in the relative picture of pay grades as a whole that can lend much support to any inference of a supervisory status. If to this is added the fact none of the leaders attends supervisory meet- ings, none is salaried, none has anything to do with setting wages, granting raises, hiring or firing people, the argument that as a class they could justly be challenged loses all per- suasion. Are these three leaders supervisors nonetheless, despite all the negatives? The Union's real contention is pointedly highlighted by what Roimicher, Melendez, and Matuszak do in department 30. From the office they receive written schedules listing the order of required production, itemiza- tion of needed parts, and dates for planned completion of the products and movement to the next departments indi- cated. They make lists of necessary parts, send for them (the old requisitioning business), receive and sort them when they arrive, and then prepare all the work in proper place accessible to the appropriate machines and employ- ees. The skill and training of individual employees vary, even within the separate sections of any department, and the employees know when they have finished one order which to pick up next. The leader watches to see that the "assignments" do not get mixed up-to assure the wrong employee does not get another man's work. In addition to "setting up" the work-i.e., putting things where they be- long and making records of everything-the leaders look at the finished work to see that it is correctly made, and when someone makes a mistake the leader brings it to his atten- tion. There are times when mistakes are made, and when the leader notices it he tells the employee to make that piece over again. This duty to call attention to errors, labeled independent judgment or determinative power to affect the take-home pay of the employees, is in this case said to be a mark of supervisory authority. A better word for what these leaders really do, during this very minor part of their work, is "inspection." But the Board has frequently held that merely because the work of an inspector can cost the pro- duction man money-he may not be paid for his failing effort, or he may have to do the work over again free-does not brand the inspector a supervisor. All three of these lead- ers spend a substantial part of their time doing straight production work. And here too, as is true with respect to many other chal- lenges in this long record, there are vague generalities and out of context passing phrases that really do not amount to substantive evidence of supervisory status. Roimicher con- ceded that sometimes the foreman asked her "how the em- ployees are doing," and that when he does "I tell him that they do a really good job." She denied ever complaining to the foreman that anyone was doing badly, and there is no evidence to offset the statement made by her. Asked what happens if she sees an employee doing something wrong, she answered "I work with them until the job is well done. If the job is not properly done, I work with them until it is properly done." Pressed again on cross-examination to ad- mit that she did report incompetence, she said instead: "He [Currer] can tell by the sheets and the records, the percent- age and all that on the records if they do well and if they don't do that well. That's part of his job, not mine." This is the evidence; it does not support the challenge. I find that the challenge to the ballot of Roimicher must be overruled. Melendez once told an employee that he was in danger of being laid off if his production-measured by the time- study tickets-did not improve. This must mean the man's work so measured fell short of the hourly rate he was re- ceiving as a guarantee. If this phrase is viewed in isolation, as does the Union's brief, Melendez had power to threaten discharge, a powerful authority. Actually, a closer look at what the employee-Hill-testified shows that the conver- sation was part of Hill's telling Melendez that a particular time-study ticket was not fair, a complaint that the leader passed along to the foreman, as is always the case. As the two men talked, according to Hill "He said in time I might have a chance of getting laid off or transferred if I didn't improve my rate. I at that time asked for a raise and the fact my rate being 180 percent made me unavailable for a raise. I pointed out to him that it didn't seem as though the rate was a fair rate. The merry go round went around and around." To me, this was no more than the usual talk be- tween any two men struggling to make a living. Again an out-of-context example. Melendez' affidavit contains this statement: "About two years ago in 1975, Kleeman asked me to interview three or four people for the department, and I recommended hiring of two people who were later hired." At the hearing the following came to light. There are any number of employees in this plant who speak Spanish and no English; when they apply for work someone has to talk to them and inquire as to what skills they have. Melendez testified that he was once asked to speak to several applicants because they knew no English, and that after learning about their qualifications ". .. I went back in to talk to Mr. Kleeman about the ability of these people, and then he went back and talked to these people, those three or four employees, and he did the hiring." More from Melendez' affidavit: "I have never before or since been asked to interview prospective employees." Asked did he resolve "problems" brought to his atten- tion, Melendez said "yes." Again, what was he really say- ing? Was he no more than a conduit for employer prob- lems? Does he forward them to the foreman, or resolve them himself? Melendez' answers to these questions are set out above under comments on the nature of the testimony and clearly show that the problems he solves are of the most trivial kind. I find that he was not a supervisor, and that the challenge to his ballot must be overruled. The story is the same with Matuszak. Asked by a Board investigator before the hearing was he a supervisor, he said yes. He also recalled the foreman telling his group of em- ployees one day that Matuszak was "the boss of that sec- tion and that if anybody had a problem they should come to [me] you." 786 VAPOR CORPORATION At the hearing Matuszak said that he did not know what a supervisor is when he gave the affidavit. For this he could hardly be faulted; if he read all 224 pages of briefs filed by the five lawyers who participated in this hearing, Matuszak would be even more befuddled. What was the foreman talk- ing about when he told the employees to bring their prob- lems to the group leader? From the record: Q: ... give me an example, Mr. witness, of what a problem on the job means to you? The witness: Somebody feels the rate is too high ... On something like that I would talk to Mr. Kleeman and have him talk to the industrial engineering depart- ment. Judge Ricci: Give me another example of what you consider a problem on the job people bring to you. The Witness: Improper materials . . . Wrong mate- rial called out for a print, if something won't fit. This is a field of Board law where no single prior decision can predetermine the answer in a following one, for the pertinent facts as to how one plant operates never match exactly how another functions. Leadmen, strawbosses, ex- peditors, inspection people-these are all ambiguous and confusing words. Citations without end are quoted in the briefs here, but in every case the challenged individual issue considered and decided was in one way or another signifi- cantly different from what is presented here. Unless a com- posite reading of all past decisions involving the middle range of employees means that any person whose job it is to see that the constant flow of piecework reaches the man who is qualified to do it is for that reason, and for that reason alone, a supervisor within the meaning of the Act, these three leaders-Roimicher, Melendez, and Matu- szak-had a right to vote in this election. This is the real essence of what this case is about.' I do not read Board law to say that challenges to these three ballots were good. I shall therefore recommend that the challenge as to Matu- szak also be overruled. E. Department 33 1. William Carnes, John Jennings, and George Lewandowski This is the inspection department, where the products of the plant are checked for imperfections before shipment; it operates in several areas throughout the building. As be- fore, witnesses did not know how many inspectors there were and therefore guessed, lawyers paraphrased and twisted in their briefs, but the best I can find from all the wordings is that there were about 21 employees, including inspectors. Karpinski is the foreman over the department and besides keeping records at his desk, he circulates all over daily. There are three leadmen among the inspectors- Carnes, Jennings, and Lewandowski; Carnes spends about 80 percent of his time just inspecting, Jennings spends about 60 to 75 percent, and Lewandowski about "two hours a day, three hours a day." Lewandowski is the most experi- Resolution of most of the challenges involved in the case at bar is virtu- ally dictated by the Board's very recent decision in Westlake Unired Corpora- tion. 236 NLRB 1114 (1978). enced and therefore keeps more records of the flow of work than do the other two leadmen. All three were challenged. I find that not one of these three men was a supervisor. As to Carnes there is nothing except very brief reference to his distribution of work to three other men and answering of "problems" when he could or telling the men to "call the engineer" when he could not. This is equally true as to Jennings on this total record. He too is one of four men in one area. From his affidavit "The other inspectors fill out a worksheet at the end of the day. I give them to Stanley [supervisor Karpinski]. I just give them to Stanley. I don't fill out a worksheet because I move from job to job while the other inspectors usually stays on a job all day." In his affidavit Jennings also said "I direct what line an employee will work on inspecting pieces." He once told Karpinski that a man was not working satisfactorily; the man was later "written up." Jennings then added that the foreman checked into the matter, "Took him [the employee} in to the office, and gave him a talking to," after listening to both sides. Jennings himself never signed any warnings. Lewandowski, the most experienced inspector, works in the main inspection area. McMullin, who works with him, said that when he was hired Lewandowski showed him the blueprints and the various machines used for inspection to see if he was qualified for the job, After this he returned to the personnel department and was hired. McMullin then admitted that Lewandowski had done no more than inquire into his skill with tools. McMullin also said that once-- maybe 2 years ago--he had a disagreement about the work with Lewandowski, and that the foreman then told him "anything coming from Lewandowski was as if he said it." This incident is no more than another of the instances, countless in this record, of a leadman showing the employee how to do things correctly, "teaching" him. Beyond this, there is the usual testimony respecting this man; he has power to move a man from one job he is doing to another, but all it means, and it was again clarified here, is that he picks-because he knows-the qualified man when a "hot" or special job has to be made out of turn. It is an automatic thing and falls far short of the idea that he has anything to do with labor relations or in any way effectively controls conditions of employment-as that phrase appears in the statute. I find that the challenges to the ballots of Carnes, Jen- nings. and Lewandowski must be overruled. 2. Murl Turner There is a larger section of department 21 where, as best can be found, a total of 14 or 15 employees work. Here there are two leadmen-Murl Turner and Bill Pohnan: of these two only Turner was challenged. Whether these two leadmen together assigned and checked the work of the whole group is greatly blurred. I am satisfied that the clearer picture is that Turner works with eight or nine of them, and Pohnan works somewhere else with the others. Like Murray, of the same department, the only supervisor over Turner's group is Currer, the general foreman who looks over approximately 300 workmen. Turner does the usual work as do the other leadmen-follows schedules, as- signs work to appropriately qualified people, looks for er- rors and has them corrected, and does regular work him- 787 DECISIONS OF NATIONAL LABOR RELATIONS BOARD self-90 percent of the time according to him, 60 percent of the time according to Currer-the usual exaggerations of this record. And, of course, there are the same old nega- tives. liere, there is something more. Turner admitted that the general foreman once asked him to "evaluate" a man, continuing: Q: Did you ever prepare written evaluations on em- ployees? A: I believe probably two or three. A merit rating form, very detailed, was then received into evidence; it is dated February 25, 1977, concerning an em- ployee named Celestino Gonzales and is signed by Murl Turner as the man who did the rating. From Turner's affi- davit: "Sometimes a foreman will ask me how so and so is doing, if their work is satisfactory. I will either say, yes or no,' depending upon the person's work." Foreman Currer testified that after seeing the leadman's rating of Gonzales, he himself appraised the man and de- cided to pass him over and not give him a raise then. He explained Turner's participation as a sole incident by say- ing that he, Currer, had just come on the job the prior month after a foreman named Maher had retired, and he was therefore not familiar with the man's ability. As stated above, no two cases are alike. But as I read the Board's latest holding on the subject in Westlake, supra, I must find that Turner was not a supervisor within the meaning of the statute. I therefore hold that the challenge to his ballot must be overruled. And I do not think that the evidence related to a certain incident which occurred in his area in November of 1977 requires a different finding. It involved Gonzales, who has a temper and had once before walked off the job during the workday in displeasure. On the day in question, at noon, an employee from another department-Pablo Macin-came to the department and started to eat his lunch. Turner told him this was not the place for lunch, because others were still working. In some way not clearly intelligible on this record, Gonzales, Macin, and Turner got into conversation; some voices were raised. Shortly thereafter Gonzales was laid off for 2 days for discipline. Was it Turner who ordered Gonzales out of the building, as the Union now contends, or was it General Foreman Maher, as the Company as- serts? If, in fact, Turner is authorized summarily to impose such punishment upon an ordinary employee it would in- deed be strong evidence of supervisory status. Gonzales' initial story was that when he heard Turner tell Macin not to eat there, he, Gonzales, demanded to know "why," whereupon Turner told him that it was none of his business and that he was suspended for 2 days. Gonzales continued that he then washed up, got dressed, and went to see the general manager. Turner's version is that shortly after telling Macin not to eat at that workplace, he heard loud talking, and that when he asked another man to tell him what it was all about, he learned that Gonzales was going home. With this, the leadman told Gonzales to go to see Foreman Maher. Turner denied telling the man that he was being suspended. As to the later talk in Maher's office, there is also a direct conflict in testimony. Gonzales does not speak English, so he asked Ramon, a supervisor and friend, to go to Maher's office to interpret. Maher, the gen- eral foreman, has since left the Company and therefore did not testify. As a witness Ramon quoted Maher as saying that he, Maher, had made the decision to send Gonzales home because of "the incident" with Turner. Gonzales quoted Maher differently. According to him, Maher said that he could do nothing because Turner had already im- posed the suspension for 2 days. But it was Ramon who listened and understood what Maher said, not Gonzales. If Ramon told Gonzales what Maher said, I must believe Ra- mon. Gonzales' inability to speak English created such a prob- lem as to what he may have thought he heard and what he really intended to relate as a witness, that I simply cannot believe his story over that of Turner and Ramon. And this means also discrediting the testimony of another witness named Cordova. Gonzales said that when the disagreement developed between Turner and Macin over the eating of lunch in the wrong place, he, Gonzales, asked Cordova to tell him what Turner had said. Gonzales admitted more than once that he did not understand a word Turner had said. And he also said that Macin, like himself, speaks no English. This means that neither of them knew what Turner was doing. But in that case, why should Gonzales have asked Cordova, a working man only, to start acting as inter- preter? If Turner was finding fault with Macin (also part of Gonzales' story), why would he want to inject himself at all? In his general criticism of Turner, at the hearing, Gon- zales even referred to the leadman as a "fanatic." I am unable to figure out, from all this confused and inconsistent testimony, what really happened that day. But in all hon- esty I do not think that a definitive finding can be made from this record that Turner ordered anyone home. 3. Stanley Janiszewski (Janis) In department 45 boilers are inspected, crated, and shipped out; all the work adheres strictly to detailed sched- ules, and there is much documentation of bills of lading and other related papers in connection with the shipments made. It is not clear exactly how many employees there are in this department. Hawkins, who works there, and the only witness called by the Union to suport the challenge against Stanley Janiszewski-also called Janis, said that there are five; R.M. Currer, the general foreman who checks the work of the department every day, said eight; Janis said that there are six. Whatever the number, the clear and di- rect testimony is that among them three are group lead- ers-Janis, Bill Cardin, and Roy Lambert. All three of these men do the same work, and all three cast ballots in the election, but only Janis was challenged. All the routine functions carried on by the other group leaders throughout the plant apply to Janis as well-assign- ment of the next scheduled job to be done, notification of overtime work when necessary, and signing of leave slips in the absence of the supervisors. Hawkins said that Janis spends 50 percent of his time doing exactly what Hawkins does. Janis said that he devotes 85 to 90 percent of the time to production work and explained that he included in pro- duction work the requisitioning of necessary parts, crating, and making and recording shipments of products. In its argument that Janis is nevertheless a supervisor, the Union points to Hawkins' testimony that the group leader once told him that Maher, the foreman, had decided to give him 788 VAPOR CORPORATION a raise, and that Janis then added "that he [Janis] had got it." Janis admitted that the foreman had instructed him to pass the good news to Hawkins, but he denied saying that he had been responsible for it. At the hearing Janis said that he did not "get" Hawkins the raise, and that he could not. He also testified that sometimes the foreman asks him how an employee is performing, but that then "he [Fore- man Currer] has to evaluate the men himself." Somewhat inconsistently, Janis' affidavit contains the following state- ment: "Currer will ask me how a man is performing before they are to get a raise. Most of the time what I say deter- mines whether he'll get a raise or not." Again, it is a se- lected quotation, for the affidavit also says "I don't even know when employees get a raise...." Hawkins also spoke of another conversation, in which, according to him, Janis told him that Mike Schwartz, another employee, "wasn't any good . . . that he [Janis] stopped him from getting a raise." Janis' recollection is that "there was no prevention of getting the raise. It's just that this particular person was using some material that made him an ill man, and I was scared of him. Whenever I see him in that condition, I was scared of him and I'd report it to the boss ... he must have been using dope or something. He'd come in glassy eyed and he was terrible and didn't even know what he was doing half the time. So, I reported him to the boss. I was scared of the man that he would hurt himself on the job in that condition . . . Mr. Maher talked to him and he im- proved for a little while. After a while he went back to it. Later he was terminated." On this total record I can only conclude that Janis was no more than a leadman like all the others in this plant, not a supervisor, and therefore eligible to vote. The challenge to his ballot must therefore be overruled. 4. Technical Employees Anton Stieb and James Ponder In department 25 thermostats are assembled: the major area is called the tube room, and about 20 employees do routine production work here, with the usual incentive pay production tickets. An adjacent room is called the lab; here Anton Stieb works. His work is special, different from that of all the others in the department, although he also does some production work. His vote was challenged on the ground that he is a technical employee. The Union also challenged the vote of James Ponder on the same grounds. But this man works always on straight incentive as do all the rest and only occasionally goes into the lab, most often when Stieb is absent. Stieb, who works alone in the lab, uses chemicals of many kinds-mercury, thalium, indium, and many acids; he does heat treating in a special oven. Much of his work comes from direct assignments received from engineers of other departments who give him explicit instructions as to their problems. While Stieb is only a high school graduate (where he studied chemistry), he has been with the Com- pany for 23 years and has acquired his special skill doing this distinctive work. At a union meeting he called himself a chemist. As a witness, first he denied having called himself a chemist and then when asked ". . . were you asked what your job title was?" he answered ". . . they said to me ... 'you're a chemist,' I said, 'that's what they say I am.'" Three scientific periodicals were received in evidence. One is R-D Research Development, April 1976 issue, and another is Industrial Research, March 1975 issue. The first is addressed to "Vapor Corp. Anton P. Stieb, chemist": the second is addressed to "A.P. Stieb-chem, Vapor Corpora- tion": the third publication is called Metal Finishing, De- cember 1974 issue, and is addressed to "Vapor Corporation, Anton P. Stieb chemist." At one point in its brief Respon- dent says that these exhibits should not have been received into evidence because the Union did not prove that "the Company had any knowledge of them." A few lines later the brief says that the Company "maintained these maga- zines in its library," but for use of its engineers from an- other department. Stieb says that he himself never sub- scribed to the first two, but that when the Company disbanded its library he did subscribe to, and has since been paying for, the third periodical. Obviously, this means that the Company again and again designated Stieb as a chemist when it had all these magazines sent to its library. To say now that the technical materials set out there have nothing to do with Stieb's work is a most unconvincing statement, what with the Company itself calling him the chemist. And of course, Stieb's statement at the hearing, that while he does buy the third magazine as a self-styled chemist he does not look at it at all, is meaningless verbiage. On this total record I find that Stieb is a technical em- ployee, and as such he was not eligible to vote in this elec- tion. I shall recommend that the challenge to his ballot be sustained. Ponder testified without contradiction that he only goes into the lab room to clean up after Stieb when Stieb is not there. Ponder works regularly in the tube room, as do all the rest. I find that he is not a technical employee, and that the challenge to his ballot must he overruled. IV. THE COMPLAINT CASE By this time there is no need to again describe the con- tinuous flow of parts through the aisles of this plant as an unending integral functioning of the overall production process. Motorized trucks, forklifts, push carts normally transport all the "requisitioned parts" we now know about, the urgently-called-for shortages to this assembly depart- ment or that. the products partially made here moved to the next stop of the manufacturing schedule, and the finished orders to inspection departments and to final shipping areas. The traffic is such that the aisle floors are marked with metal plates, designating about I foot on each side for "walking" and the center for "truck." Every so many feet there are openings in the fences or partitions along the en- tire length of the aisles, for access into the production areas. And of course there are times- I minute? 3 minutes? 5 minutes, maybe?-when one can look up an aisle and see it empty of any conveyance equipment. And it is in these aisles-the ones leading to the two employee exits from the plant-that the five timeclocks are affixed to the wall. For those employees who work only the regular day shift. 7:30 a.m. to 4 p.m., two buzzers ring out, one at 3:55 p.m. and the other at 4 o'clock. At 3:55 p.m. the employees must sign whatever time-study production tick- ets they may be working on, and at 4 o'clock they must clock out. The intervening 5 minutes they may use to wash 789 DECISIONS OF NATIONAL LABOR RELATIONS BOARD up and change their clothing if necessary. When lined up at the clocks they are supposed to stand in single file, but understandably they crowd up, often two or three abreast. If there are other employees doing overtime, i.e., scheduled to keep working after 4 o'clock, all this has nothing to do with them. There must be frequent overtime, judging from the repeated stress placed on the fact that leadmen so often select which employees are to enjoy it. One day, while from 100 to 150 of the day-shift people were waiting and lined up ready to clock out, 2 employees went up and down the aisles distributing to them leaflets informing them of the progress of the Union's election peti- tion and of the projected date of the Board election. They did this precisely between 3:55 p.m. and 4 p.m. There were at that time about 40 employees in various categories, maybe 10 percent of the total complement, at work, dis- persed here and there, because they were not scheduled to go home then. When management representatives saw this distribution activity in the aisles, they told the activists not to do that there because work was still going on but to step out near the exits to give out the literature. The boys did that. It is the precise contention of the General Counsel-and the only unfair labor practice alleged in this entire consoli- dated proceeding-that during those 5 minutes, and only during those 5 minutes, in those aisles near the clocks and only at those very spots, Respondent had no right to pro- hibit distribution of union literature, and that by so doing it violated Section 8(a)(1) of the National Labor Relations Act, as amended. The complaint uses the words "non-work area" and "non-work time," but at the hearing the General Counsel was careful to explain that had management done what it did at 3:54 p.m. or at 4:01 p.m. it would have been all right. Indeed, the General Counsel went even further. She asked her witnesses, the men who were distributing, did they see any forklifts or other conveyances moving things up or down the aisles during the minutes that they were handing out the leaflets? The question made sense, because there were people working and, as always, they required parts which have to come through those aisles. But if the question were pertinent-and I know the General Counsel would not place irrelevancies into the record-it means that she was also saying that if at any moment or part of a moment during those special 5 minutes any vehicle had been passing by, it would have been lawful for the foreman to tell the distributors to get the papers out of there and do the distributing somewhere else. It is a nebulous unfair la- bor practice concept; now you see it, now you do not; mis- conduct if you do not see a vehicle in the aisle, not wrong if there happens to be a forklift coming or going. With this, logically, the basic premise of the complaint-that the aisles were nonwork areas and that it was nonwork time, loses practically all persuasion. Thre is no question but that these truck moving aisles are work areas of the plant, and that those 5 minutes in question were worktime. There were 40 people working. If 10 percent of the complement is not enough to say that the plant was working, will 20 percent do, or 30 percent? And the unfair labor practice continues to evade the eye. Nor does the fact that timeclocks are in the work areas make any difference. The employees are supposed to stand single file, out of the way of passing vehicles. They crowd the aisles instead, as some of the witnesses said. But this does not mean that you liken the case to those situations-set out in the General Counsel's brief-where the timeclocks are located in the get-together lobby of the building, quite apart from where people could conceivably be at work. At the close of the hearing after all the testimony had been taken and again in her brief, the General Counsel articulated another complaint both as fact and as legal argument. She now says that even assuming there was noth- ing wrong if the events of that day be considered alone, Respondent did what it did with an illegal motive, that it really did not care if production were impeded but wanted only to hurt the union campaign. The fact is that during that very period the employees were permitted to they did distribute their literature in the washrooms, in the locker- rooms, and in the lunchroom. Quite apart from the fact that this suggestion about ulterior purpose was not charged in the complaint or litigated at the hearing, there is no proba- tive evidence to support any such claim now. I find that the evidence in its totality does not suffice to prove the complaint allegation in this instance. The case fits squarely into that Board law which holds that employees have a right to distribute literature "during their nonwork- ing time in nonworking area" (Pepsi-Cola Bottling Co. of Los Angeles, 211 NLRB 870 (1974)) but that "an employer may forbid distribution of literature in work areas at all times so that the employer can keep work areas of the plant orderly and clear of litter." The Contract Knitter, Inc., 220 NLRB 558. 560 (1975). V. IHE OBJECTIONS 1. One of the Union's objections to the election restates precisely the single unfair labor practice alleged in the com- plaint-that the Company stopped distribution of union lit- erature at a certain time and place, as reported above. There having been nothing improper in the Employer's ac- tion in that instance, it follows that there is no merit in this objection. 2. Another objection charges the Employer with having formed an employee committee to appeal to "bias on the basis of national origin" in order to defeat the Union's or- ganizational campaign. The objections must be overruled because there is not an iota of evidence to support it. 3. Another objection says that the Company's supervi- sors "unlawfully destroyed election literature." This objec- tion also is not supported by any probative evidence at all and must therefore be overruled. 4. A fourth objection says that the Company improperly interfered with the election by placing the names of supervi- sors on the Excelsior list supplied to the Union before the balloting. This matter was not mentioned at the hearing, and I take it to be a reference to those leadmen who voted under challenge, most of whom were entitled to cast ballots as it developed. It is a meaningless objection. 5. Another objection charges unlawful surveillance. There is an entrance to the building from the parking lot and two employees-Roosevelt Hawkins and Grover Brown-testified that they sometimes distributed union election literature there before work starting time. Hawkins testified that on five or six occasions when he was distribut- ing literature, he saw Pete Ramon, the supervisor, in his car 790 VAPOR CORPORATION 10 or 15 feet away from the entrance. sitting and writing and then entering the building when the bell rang. Hawkins added that before the election activities started, Ramon used to come right into the building when he arrived early. and that after the election he never sat outside waiting again. Hawkins also said that others-- both supervisors and rank-and-file employees-used to and still do sit in their cars in the parking lot while waiting for the start of working time. The witness also said, in passing, that "when we started passing them [leaflets] out . . . he [Ramon] saw us out there and start [sic] writing names." Employee Brown testified that he too saw Ramon sitting in his car for 15 or 20 minutes while leaflets were being distributed. Asked did he see Ramon "do anything else that he normally did not do," he answered "No . . . I thought he was observing." Against this Ramon testified that he almost always ar- rives at about 7:15 a.m., 15 minutes before the 7:30 a.m. starting time. He said that he makes it a practice to listen to the radio while waiting, that he still follows this practice today, that he always parks in his assigned spot, that he did see employees distribute leaflets at that time: but he also said that he did no spying, did not make notes of any kind about anything, and did not report anything he saw to any of his superiors. In light of Hawkins' statement that Ramon was writing down "names," something Hawkins could not possibly have seen, and of Brown's statement that the fore- man was doing nothing out of the ordinary, I credit Ra- mon, and I find no merit in the Union's statement of objec- tions that there was any improper surveillance in any of this foreman's activity in the parking lot. 6. The last objection speaks of illegal interrogation both inside and outside the offices. Before the election, leaflets aimed at influencing the vote were widely distributed by both the Union and management, the usual pros and cons about the benefits of unionization. And, as is also often the case, the Company's literature listed benefits currently en- joyed by the employees, including their wage rates. There was talk, of course, with supervisors discussing the matter (no doubt artfully), with employees. After all, what does the phrase "expression of opinion" mean except the attempt to persuade others to one's views? That in general talk of the relative benefits flowing from both collective bargaining and individual direct dealing with the Employer there would be questions bandied about-What do you think of this? What do you think of that?-is not only to be ex- pected but is the norm in plain conversation about the sub- ject. In the broadside picture of what went on throughout this large plant, with over 400 employees almost equally divided when it came to voting, it will not do to select one out-of-context phrase or another and call it either an unfair labor practice or reason for setting the entire election aside. The major witness for the Union on this question was. again, Roosevelt Hawkins. He started by saying that R.W. Currer, the general foreman, asked him and other employ- ees "why did we want a union anyway." You look at it, and it is interrogation pure and simple. But in context it is a different picture. Currer was showing the employees a newspaper clipping, "something about unions," according to Hawkins, and in the general talk "we got into a discus- sion. We was telling him why we thought a union would be good and we was talking on and on." We come to the idea of coercive interrogation inside the office. Hawkins continued that. unable to convince employ- ees to his views, the general foreman invited Hawkins to his office so "we could talk of this matter." Here, still from part of Hawkins' testimony. Currer found occasion to tell the employee "I think you are biting the hands that's feeding you." This does sound like a threat. But the total stor\ instead is that Hawkins started all this by asking Currer for a raise and showed the foreman a paper on which he, Haw- kins, had set out the wages and earnings of four other em- ployees to show how relatively low his own was. It was in response to this that Currer then wrote down Hawkins' pre- cise wages and handed it to him to prove that he was doing well comparatively. And finally, Hawkins even admitted that he went into Currer's office on his own accord: he was not asked to go there at all. I do not think Hawkins' testi- mony proves the merit of the Union's objection. Finally. Maria Munoz. whose English is so poor that she had to testify through an interpreter, said that Ratay. her foreman, one day showed her the Company's insurance benefits and asked her to think about them and maybe change her mind about the Union. Munoz had heard Ratay talk about the company leaflets to many employees often. She added that one da) shortly before the election in one of the talks, Ratay asked had she changed her mind. and she said no. One phrase from among the man in the tran- script of testimony as having been spoken in Spanish b) the witness-is: "1 understood him [Ratay] to say he would never forget about that." Ratay denied having said such a thing to Munoz, asking employees had they changed their minds, or interrogating them in any way. I credit him. Ratay does not speak Spanish, and Munoz really does not speak English. In fact. even her testimony on this point is at best vague and not really dependable: Q: You had told us that you told Rata, that you had not changed your mind. Did he say anything else after that? A: It's okay. I never forget that. He say it is. I un- derstood him, he said it was ot, it is all right. I under- stood when he said that. I understood that he said all right. I will never forget that." Even assuming that Ratas had in truth told this one em- ployee that he would remember her fixed determination to favor the Union, it still would not be sufficient reason to set aside the results of this election. If the Board will not bother to issue a cease-and-desist order based upon isolated unfair labor practices., more so in a plant this size, would a little incident like this fail to support the burden resting upon a union which files objections. See Southwestern Portland Ce- ment Co. v. N.L.R.B., 407 F.2d 131 (5th Cir. 1969). 2 2 One of the employee witnesses called by the Union in support of the objections told of an incident that does not seem to fit into any of the objec- tions as written and timely filed. Miguel Perez said that the day before the election he was wearing a UAW button and Benny Kowalczyk. a general foreman, told him to take it off. Perez had this button on his forehead; he was also wearing other UAW buttons on his legs and on both shoulders. Kowalczyk was with a member of the safety committee at the time. and said to him " .. will you please remove the sticker you hase in front of our head? It might slide down and coser our eyes and hit your head hen the machine is turning." Perez told the foreman "to have a nice day" and ignored him. Nothing else happened It did not enhance the Union's objec- tions in this case to have Perez tell this stors 791 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Recommendations It is hereby recommended that the challenges to the bal- lots of the following employees be overruled: Edward Baran Charles Malera Ken Boehm Jerry Chabowski Arthur Davidson Robert Ugolini Chester Sample Charles Rubach Ray Leonhard Vincent Dominguez Maria Roimicher Charles Melendez Chris Matuszak William Carnes John Jennings George Lewandowski Murl Turner Stanley Janiszewski James Ponder It is hereby recommended that the challenges to the bal- lots of the following employees be sustained: Joseph Fur- tak, Don Murray, and Anton Stieb. It is hereby recommended that the Union's objections to the election be overruled. ORDER' It is hereby recommended that the complaint be, and it hereby is, dismissed. 3 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations. be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 792