Virginia Mfg. Co.

National Labor Relations Board - Board Decisions

May 28, 1993

311 N.L.R.B. 992 (N.L.R.B. 1993)

992
311 NLRB No. 102
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are 1992 unless indicated otherwise.
2 The unit is:
All full-time and regular part-time production and maintenance
employees including leadpersons and quality control employees
employed by the Employer at its facility located at 1001 Indus-
trial Drive, Pennington Gap, Virginia; excluding all office cler-
ical employees, professionals, guards and supervisors as defined
in the Act.
3 On May 15, 1992, the Executive Secretary’s Office, in the ab-
sence of exceptions, issued an Order adopting the Regional Direc-
tor’s report in which, inter alia, the Regional Director sustained the
challenges to the ballots of David Bryson, Chris Parson, Randy Gib-
son, and Billy Hicks. The Regional Director also determined that the
resolution of the challenges to the ballots of Steve Birman, Jimmy
Crusenberry, Bob Duncan, and Randy Woodard would be held in
abeyance pending the decision of the administrative law judge in
Cases 11–CA–14621–2, 11–CA–14621–3, 11–CA–14621–4, and 11–
CA–14621–5.
4 In the absence of exceptions, we adopt pro forma the hearing of-
ficer’s recommendations to sustain the challenges to the ballots of
Timothy Parks, Harry Barney, and Greg Ewing, and to overrule the
challenges to the ballots of Ronnie Carroll, Randy Ridings, Burle
Edmonds, and Ken Pearce and to open and count their ballots and
issue a revised tally of ballots.
5 In light of our overruling the challenges to the ballots of Bernie
Noe and Mark Cawood, as described below, we shall direct that their
ballots, as well as those named in fn. 4 supra, be opened and count-
ed, and that in the event the revised tally of ballots indicates that
the challenged ballots of the four alleged discriminatees in the re-
lated unfair labor practice proceeding are still determinative, that the
appropriate certification be held in abeyance pending resolution in
that proceeding of those challenged ballots and thereafter, if re-
quired, the issuance of yet another revised tally of ballots.
6 We do not adopt the hearing officer’s designation of Ridings as
a technical employee however. The evidence is insufficient to sup-
port a finding that Ridings is a technical employee.
7 His testimony indicates that he talks to the operators to verify the
counts and jobs they have done. He also testified that an operator
usually helps him in the physical counting. He further testified that
he will go over ‘‘the paperwork’’ with the operators to make sure
that they understand it, i.e., ‘‘their standards as what they have to
build.’’ Finally, he testified that if he did not keep track of inventory
and the operators’ work, ‘‘they wouldn’t have any idea what parts
they had made, what . . . stage they [were] in. They couldn’t . . .
even make . . . schedule production reports.’’
8 The Employer produces wood and metal furniture and barracks
equipment for the Department of Defense.
9 Office clericals are excluded from the unit.
Virginia Manufacturing Co., Inc. (VAMCO) and
United Mine Workers of America, AFL–CIO,
Petitioner. Case 11–RC–5781
May 28, 1993
DECISION, DIRECTION, AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
The National Labor Relations Board, by a three-
member panel, has considered determinative challenges
in an election held February 28, 1992,1 and the hearing
officer’s report recommending disposition of them. The
election was conducted pursuant to a Stipulated Elec-
tion Agreement.2 The tally of ballots shows 49 for and
43 against the Petitioner, with 20 challenged ballots, a
number sufficient to affect the election results.3
The Board has reviewed the record in light of the
exceptions4 and briefs and has adopted the hearing of-
ficer’s findings and recommendations only to the ex-
tent consistent with this decision.5
1. We agree with the hearing officer’s recommenda-
tion that the challenge to the ballot of Charles Ridings
should be sustained. The hearing officer found that
Ridings, who has held the position of production con-
trol clerk for about 6 months and reports directly to
Daniel Hurd, the plant superintendent, is an office
clerical/technical employee without a community of in-
terest with the production employees.6 However, in af-
firming the hearing officer, we do not rely on her con-
clusion that Ridings is in possession of information
that is arguably confidential.7 Instead, we rely on the
fact that his primary job function is, on a daily basis,
to compile production information and keep track of
inventory and the raw materials used in the production
process,8 and, based on those compilations and certain
calculations he makes from them, to prepare the ‘‘hot
list’’ that is used by management to determine daily
production priorities, he also prepares inventory and
various departmental and individual employee produc-
tion reports. (Individual employee reports are not made
out for some departments.) He prepares the ‘‘hot list’’
and the various reports in an office in the building
housing the sheet metal department. He spends 60 per-
cent of his worktime in that office, which is located
in an area off a showroom. The remaining 40 percent
of his worktime is spent on the production floor ob-
taining the information for his reports through moni-
toring the production efficiencies of unit employees
and the work process through its various stages from
raw material to finished product, including verifying or
doublechecking the production counts of the operators
and keeping track of inventory and the various com-
pleted production components.9
Although his monitoring duties place him in daily
contact with unit employees, we find, as did the hear-
ing officer, that these duties are incidental to his pri-
mary function of preparing the various daily produc-
tion and inventory reports which track and guide pro-
duction, the preparation of which occupy more than
the majority of his working time. Consequently, we
likewise find that he qualifies as an officer rather than
plant clerical employee. This finding is further war-
ranted by the fact that certain of his monitoring duties
have the potential of placing him in an adversarial po-
sition to the interest of the production employees.
Thus, in monitoring the production efficiencies of the
unit employees, Ridings questions operators concerning
the reasons their production percentages are low; spe-
cifically, he testified that he asks them whether their
machine had broken down or they were working with
993VIRGINIA MFG. CO.
10 Ridings’ response in this regard was in answer to the hearing
officer’s questioning whether supervisors were disciplined for low
production in their departments. He indicated he would likely know
about any such disciplinary action because management would ask
him to doublecheck the production figures before acting. Although
he was not asked whether employees had been disciplined for low
production based on his reports, it is likely that management would
follow the same procedure as to employees that it would for the su-
pervisors.
11 This finding is not undermined by Ridings’ testimony that on
an average of 10 times a month he would help operators get caught
up in production. (Ridings initially was employed as a break press
operator in the sheetmetal department.) He testified that he aided
these operators of his own volition. Thus, these efforts were not part
of his official duties.
12 El-Tech Research Corp., 300 NLRB 522 (1990).
13 See Sun Refining Co., 301 NLRB 642 fn. 2 (1991).
14 See, e.g., Hogan Mfg., 305 NLRB 806, 807 fn. 7 (1991); Living-
ston College, 290 NLRB 304, 306 (1988).
bad material. He also testified that when a production
standard ‘‘looks off,’’ on his own initiative he would
‘‘watch [the operators] and time them and see how
long it takes them to build probably five parts and I
put that in relation to how many they could do an
hour.’’ He would then give the results of the time
study to his supervisor for possible adjustment of the
standard. Although he further testified that he knew of
no instance when any of his reports led to disciplinary
action,10 we conclude that the production employees
might well view his monitoring their work efficiency
through time studies and the like as potentially adverse
to their employment interests, thereby leading them to
consider Ridings to be more aligned with manage-
ment’s interest than with theirs. Accordingly, we shall
sustain the challenge to his ballot.11
2. We agree with the hearing officer that leadmen
Joshua Carroll and William Morrison are supervisors
within the meaning of the Act and that therefore the
challenges to their ballots should be sustained. In so
finding, we rely particularly on evidence that Carroll
and Morrison have exercised independent judgment in
evaluating the performances of employees, including
discussing the evaluations with the employees before
they were approved by higher management.12 We also
emphasize that Carroll and Morrison have exercised
independent judgment in initiating and signing discipli-
nary warnings against employees that have resulted in
disciplinary action being taken by higher management.
In many instances, Carroll’s and Morrison’s signatures
were the only signatures appearing on the forms for
management.13
3. The hearing officer sustained the challenge to
Bernie Noe’s ballot on the theory that he was a highly
skilled technical employee whose personal view of
himself as a part of management created a ‘‘disparity
of interest . . . so strong between [him] and the pro-
duction employees that his placement in the unit would
not provide for the cohesive unit necessary for collec-
tive bargaining.’’ The Employer excepts, contending
that Noe is a highly skilled employee whose work is
inextricably intertwined with the production process
and that he enjoys a substantial community of interest
with the unit employees; therefore, it contends, the
challenge to Noe’s ballot should be overruled. We find
merit to the Employer’s contentions.
As the hearing officer found, Noe is a tool-and-die
maker with 35 years’ experience. Most of his skill
came from on-the-job learning, but he has some train-
ing in blueprint reading, and he has taken some other
technical courses. As a highly skilled worker, he is
paid $11 per hour—more than twice the average unit
employee’s salary of $5 per hour. Nonetheless, he
punches the same timeclock as the other unit employ-
ees, receives overtime for work in excess of 40 hours,
and receives no benefits different from those of the
other employees.
Noe spends approximately 90 percent of his
worktime in the machine shop and the remaining 10
percent on the production floor; but the machine shop
is close to the production area, and he has contact with
other unit employees in both locations. He repairs and
builds dies that are used in the production process,
changes machine springs, and sharpens punches on the
production machinery. He interacts with the other em-
ployees both when he is doing machinery repairs or
testing dies on the production floor and when unit em-
ployees bring dies to him for repair or to report trouble
with dies. His shop also serves as an area for lunch
and coffeebreaks for unit employees.
Although we agree with the hearing officer’s finding
that Noe is a highly skilled and relatively well paid
technical employee, we do not agree that this is a suf-
ficient basis to exclude him from the unit. The Board
does not automatically exclude technical employees
from units of other employees. Rather, it determines
the unit placement of such employees based on all the
factors relevant to a community-of-interest finding.14
That test is an objective standard, based on the actual
duties and conditions of the job; skill requirements is
only one of those factors, and an employee’s purely
subjective identification with management is not a rel-
evant factor at all.
Here Noe’s regular contact with other unit employ-
ees, his receipt of identical benefits, and the degree to
which his job is functionally integrated into the basic
production processes are sufficient to establish a com-
munity of interest between him and the other unit em-
ployees. The hearing officer erred by giving insuffi-
cient weight to these facts about Noe’s actual job and
by relying on Noe’s unsupported claim to another em-
ployee that he was ‘‘in management.’’
For the foregoing reasons, we find that Noe should
be included in the production and maintenance unit,
and we direct that his ballot be opened and counted.
994 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 Contrary to the suggestion of our dissenting colleague, we do
not regard the stipulation as dispositive of the inquiry. Rather, we
regard the express inclusion of one group and the noninclusion of
the other as evidence of how the parties themselves viewed the two
groups. In our view, this mutually shared view, when coupled with
good reasons to support it, is a factor to be considered in deciding
the issue before us.
4. The hearing officer found that Mark Cawood was
an office clerical/technical employee who lacked a
community of interest with the production employees.
He therefore recommended sustaining the challenge to
Cawood’s ballot. The Employer excepts, contending
(1) that Cawood is employed in the quality control de-
partment, and ‘‘quality control employees’’ are specifi-
cally included in the stipulated bargaining unit, and (2)
that Cawood shares a significant community of interest
with the unit employees. We agree.
The hearing officer found, and the record shows,
that Cawood has been employed for 2 years in the
quality control department, where he, along with other
quality control employees, is supervised by John
Stevian. Cawood works a regular part-time schedule 3
days a week, amounting to about 24 hours a week. He
is paid $4.50 an hour, has the same breaks as the other
production employees and, like them, does not receive
any paid vacation or insurance benefits.
Although he is in the quality control department,
Cawood spends about 60 percent of his time doing
drafting work. Of the remaining 40 percent, half is
spent on quality control inspection work and half in as-
sisting Charles Ridings in the production control of-
fice. The quality control office and the production con-
trol office are located next to each other, and the
former is located about 15 feet away from the produc-
tion floor. Cawood does his drafting in the quality con-
trol office.
In 1991 Cawood completed a 2-year drafting pro-
gram at the Mountain Empire Community College, and
was enrolled in a preengineering program at the time
of the hearing. His drafting work involves making
drawings of parts on the basis of samples shown him
or information given him by the sheetmetal super-
visors. The drawings are used by production super-
visors and operators to make sure their machines are
set up correctly. Cawood discusses the drawings with
production workers who have questions about them.
Such discussions occur about 4 or 5 times a week,
with the conversations lasting about 5 minutes or less.
Cawood’s quality control duties involve testing new
materials at the beginning of the production process,
testing individual parts during the production process,
before they are put into the final product, and then
testing the final product. He checks for such character-
istics as the weight that shelves will bear (load test-
ing), the thickness of paint, and the dimensions of
products and their parts. In performing these duties,
Cawood is doing exactly the same work as that done
by employees who work full time in quality control.
He fills in for the other employees as needed. Most of
the quality control work is done on the shop floor.
Cawood’s production control work consists mainly
of assisting Charles Ridings in calculating the opera-
tors’ daily production rates on the basis of both piece-
work sheets filled out by the operators and actual
counts of pieces performed by Cawood or Ridings on
the production floor. In the course of his production
control duties, Cawood goes onto the production floor
at least once a day.
The hearing officer acknowledged that Cawood’s
fellow quality control employees are included in the
stipulated unit, but he determined that Cawood should
be excluded because for 80 percent of his time he
worked as a draftsman and production control em-
ployee and during that time his ‘‘contact with produc-
tion employees [was] only incidental to the perform-
ance of his job.’’ Because, for the reasons that follow,
we find Cawood’s nexus with other unit employees
more than incidental even in his work as a draftsman
and production control employee, we overrule the chal-
lenge to his ballot.
It is clear from the testimony of Cawood, whom the
hearing officer generally credited, that he had contact
with production employees at least once a day in con-
nection with his production control duties and more
than once a day, on average, in connection with his
drafting duties. This is in addition to the 20 percent of
his time spent in quality control work which took place
mainly on the production floor. Furthermore, both the
production control duties and the drafting duties were
integral to the production process. Employees con-
ferred with Cawood about the drawings to make cer-
tain they understood how they were to set up the ma-
chines, and his work as a production control employee
involved verifying counts of parts so as to keep the
production process on track. In all of his duties,
Cawood worked either on or near the production floor
and was subject to the overall supervision of the qual-
ity control manager, who supervised full-time quality
control employees indisputably in the unit.
Therefore, we find that Cawood should be included
in the unit, and we overrule the challenge to his ballot.
Accordingly, we direct that Cawood’s ballot be opened
and counted.
As would we, our dissenting colleague would in-
clude in the unit quality control employee Cawood.
Contrary to our finding, he would also include produc-
tion control clerk Ridings, who does times studies,
among other things. He suggests a similarity between
the two jobs. However, he overlooks the important fact
that quality control employees are expressly included
in the unit description; time study employees are not.
We are reluctant to disturb that important distinction
which the parties themselves have drawn.15
995VIRGINIA MFG. CO.
16 In this respect, Ridings’ work differs from that of the material
planners in Container Research Corp., 188 NLRB 586 (1971).
17 Our colleague’s analogy to quality control employees is not a
valid one. As he notes, quality control employees can reject faulty
parts and stop production lines. However, in the cases cited by our
colleague, they do not question employees about the low quality of
their work.
1 The characterization of Ridings as a ‘‘time study employee’’ is
somewhat misleading. His primary job function is to compile pro-
duction information and keep track of inventory and the raw mate-
rials used in the production process. It appears that only a small per-
centage of his time is spent timing the operators.
2 See, e.g., Giummarra Electric, 291 NLRB 37, 38 (1988).
3 See, e.g., Columbia Textile Services, 293 NLRB 1034, 1037–
1038 (1989); ITT Lighting Fixture, 249 NLRB 441, 441 (1980) (em-
ployee Cox).
Further, there is a good reason for this distinction.
Quality control work, like that performed by Cawood,
generally involves the inspection of products and not
a confrontation of employees. There are only random
effects on employees’ wages and terms and conditions
of employment. By contrast, time studies, like those
accomplished by Ridings, regularly involve the time-
study employee’s direct confrontation of other employ-
ees concerning the pace of their work and the quantity
of the product they are required to produce.16 Thus,
the time-study employee’s role in developing or check-
ing production standards of unit employees as a whole
has a direct effect on unit employees’ wages, hours,
and terms and conditions of employment. The time-
study employee also exercises discretion to determine
whether there is a productivity problem and, if so,
whether it is attributable to the production employee.
In performing these tasks, the time-study employee
must ascertain when a production standard ‘‘looks
off,’’ identify which individuals should be timed, and
determine whether variable factors, such as machine
breakage and materials defects, short runs, and down-
time, have affected the quantity of product expected
and to what degree.
Our dissenting colleague suggests that the ‘‘con-
versations’’ between Ridings and the production em-
ployees were not ‘‘confrontations.’’ We do not think
it useful to continue that semantic debate. Suffice it to
say that when Ridings questions an employee about
his/her low production, Ridings and the employee have
markedly different interests.17
DIRECTION
IT IS DIRECTED that the Regional Director shall,
within 10 days from the date of this Decision and Di-
rection, open and count the ballots cast by Bernie Noe,
Mark Cawood, Ronnie Carroll, Randy Ridings, Burle
Edmonds, and Ken Pearce and prepare and cause to be
served on the parties a revised tally of ballots. In the
event the Petitioner receives a majority of votes cast
and the remaining challenged ballots are not deter-
minative, a certification of representative shall issue.
IT IS FURTHER DIRECTED that should the revised
tally of ballots indicate that the remaining challenged
ballots are determinative, any certification shall be held
in abeyance pending the resolution of the challenges to
the ballots of Steven Birman, Jimmy Crusenberry, Bob
Duncan, and Randy Woodward with the final outcome
of the outstanding unfair labor practice in Case 11–
CA–14621.
ORDER
It is ordered that this matter be remanded to the Re-
gional Director for Region 11 for further processing
consistent with this decision.
CHAIRMAN STEPHENS, dissenting in part.
I would not sustain the challenge to the ballot of
Charles Ridings, the production control clerk.
First, contrary to my colleagues, I would not infer
that because the stipulation expressly included the
quality control employees and was silent regarding the
time study employees, Ridings should be excluded.1
Rather, it is well established that when a stipulation
does not specifically exclude or include an employee
classification and leaves unclear the parties’ intentions
with respect to an individual, the employee’s place-
ment is decided on the basis of community-of-interest
principles.2 Therefore, I would include Ridings in the
unit on the bais of his community of interest with the
production employees. His duties resemble those of
employees whom the Board has found properly in-
cluded in production and maintenance units as plant
clericals.
As the Employer correctly points out in its excep-
tions, in his responsibility for maintaining production
control records, Ridings resembles the materials plan-
ners in Container Research Corp., 188 NLRB 586
(1971). The Board deemed them plant clericals be-
cause of their regular contact with production employ-
ees in the production process and their receipt of bene-
fits equivalent to those of the production employees.
Ridings has similar contact with production employees.
In fact, he spends the majority of his worktime per-
forming production control activities that bring him in
constant daily contact with the production employees.
Further, Ridings is a low-level employee who is paid
only $4.50 per hour, which is comparable to the pro-
duction employees, and like the production employees,
he receives no paid vacation or insurance benefits. His
work is highly integral to the production process be-
cause, as he testified, if he were not keeping continual
track of the employees’ work, they ‘‘wouldn’t have
any idea of what parts they had made’’ or ‘‘what stage
they [were] in.’’ Functional integration with the pro-
duction process is a classic indicium of a plant clerical
who possesses a community of interest with production
and maintenance employees.3
996 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Modine Mfg., 180 NLRB 472, 473 (1969). Accord: Blue Grass
Industries, 287 NLRB 275, 299 (1987).
5 See Case Corp., 304 NLRB 939 (1991), in which the Board in-
cluded industrial engineers in a production and maintenance unit
even though they made technical production and performance stand-
ard determinations including whether overtime and downtime would
be reduced, and assisted in staffing assessments by advising manage-
ment on production operations as to whether a particular manpower
hiring request should be filled.
I do not share my colleagues’ view that this clear
evidence favoring a finding of community of interest
is overcome by Ridings’ authority to monitor the em-
ployees’ production rates. In my view, the studies
Ridings makes of employee production no more place
him in an adversarial position to unit employees than
do the duties of quality control employees; and the
Board has long held that even when quality control
employees have the authority to reject faulty parts or
stop production lines because of defects, that authority
is not a ground for finding that they lack a community
of interest with the employees whose work they are
evaluating.4 Furthermore, my colleagues have de-
scribed the role of a time study employee in the ab-
stract and have not fully considered the record evi-
dence of how Ridings performs his job. In this regard,
the record reveals that Ridings has ‘‘conversations,’’
not ‘‘confrontations,’’ with the production employees
when he talks with them to determine what, if any-
thing, has happened that may have affected production
volume. For example, Ridings testified, he ‘‘goes over
the paperwork with the operators, making sure they
understand the paperwork, their standards as far as
what they have to build’’ and ‘‘would not necessarily
question [an operator] as to why it [production] was
low as he would find out what they’d done and ask
if the machine had broke[n] down or if they was work-
ing with bad material.’’ Moreover, the production op-
erators also help Ridings to do the physical inventory
counts. All of this connotes a working environment of
communication and cooperation, rather than an
adversial one, between Ridings and the production em-
ployees. Finally, there is no evidence in the record that
the reports that Ridings produces have any effect on
the production employees’ wages, hours, and terms
and conditions of employment.5