Westlake United Corp.

National Labor Relations Board - Board Decisions

Jun 21, 1978

236 N.L.R.B. 1114 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Westlake United Corporation and International La-
dies' Garment Workers' Union No. 109, Petitioner.
Case 4-RC-12902
June 21, 1978
DECISION ON REVIEW
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
On December 9, 1977, the Acting Regional Direc-
tor for Region 4 issued a Decision and Direction of
Election in the above-entitled proceeding in which he
found appropriate the Petitioner's requested unit of
all production, maintenance, and plant clerical em-
ployees at the Employer's Mayfield, Pennsylvania.
facility; excluding all other employees, office cleri-
cals, guards, and supervisors as defined in the Act. In
his decision, the Acting Regional Director denied the
Employer's posthearing motion to reopen the record
to introduce evidence to the effect that subsequent to
the hearing it assigned additional supervisory respon-
sibilities to the two shift supervisors, but, in view of
the circumstances, he permitted the Employer's two
shift supervisors to vote under challenge.' Thereafter,
in accordance with Section 102.67 of the National
Labor Relations Board Rules and Regulations, Series
8, amended, the Employer filed a timely request for
review of the Acting Regional Director's decision on
the grounds, inter alia, that he made findings of fact
which are clearly erroneous. The Employer also filed
an appeal from the Regional Director's denial of its
request for an administrative investigation of its alle-
gations of supervisory taint of the Petitioner's show-
ing of interest.
On January 6, 1978, the National Labor Relations
Board, by telegraphic order. granted the Employer's
request for review and stayed the election pending
the decision on review. The Board deferred ruling on
the appeal from the Regional Director's ruling on the
showing of interest.
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 entire record in this
case with respect to the issues under review and
makes the following findings:
The only issue raised at the hearing herein related
to the status of Gary and Dan Allen, brothers, who
are shift supervisors or foremen. The Employer, con-
On Decemher 30, 1977. the Regionall Director issued an order denying a
motion for reconsideration filed hby the Employer.
trary to the Petitioner, contended that they were sup-
ervisors as defined in the Act. As indicated, subse-
quent to the hearing, the Employer filed a motion to
reopen the record to present evidence of changes in
its management structure having a bearing on the
supervisory issue raised. In the circumstances, the
Acting Regional Director, in his Decision and Direc-
tion of Election, deferred resolution of the status of
the shift supervisors and permitted them to vote un-
der challenge. On December 16, the Employer filed a
written request with the Regional Director to con-
duct an administrative investigation of its allegation
that the Petitioner's showing of interest to support its
petition was tainted by the participation of Dan and
Gary Allen in the solicitation of authorization cards.
On December 22, the Regional Director issued a rul-
ing in which he denied the Employer's request as un-
timely. The Employer contends that it was an error
to deny its request as untimely and to defer resolu-
tion of the issue on the status of Gary and Dan Allen
as there was substantial record evidence to establish
that they were supervisors. We have carefully re-
viewed the record and find no merit in the
Employer's contention.
The Employer fabricates plastic sheets or slab
stock at its Mayfield plant. At the time of the hearing
the Employer had a salaried plant manager, John Ar-
pin.2 Under him were 14 employees, including the 2
individuals whose supervisory status is in issue.
Arpin works the day shift, 8:30 a.m. to 5 p.m., as
do a plant clerical and a maintenance man, who re-
port directly to him. Five production employees
work the morning shift, 6 a.m. to 2 p.m., under Shift
Supervisor Gary Allen; and five work the afternoon
shift, 12 to 8 p.m., under Dan Allen.
The shift supervisors, like their crewmembers, are
hourly paid, punch a timeclock, and receive overtime
pay. The plant has one press which is normally oper-
ated by the shift supervisor.3 Preparation of molds
for each production "run" of the press involves a
number of tasks, such as weighing of materials, cut-
ting of wood, mixing and "cooking" of the materials,
raking in of powdered resin, closing in of the molds
(the press takes a number of molds), insertion of
"shims" to control the guage of the sheets produced,
etc. Of all the tasks involved the one requiring the
greatest skill and experience is the operation of the
press. Insertion of the shims and raking in the resin
also require some degree of proficiency. The shift
supervisor, in addition to operating the press, takes
part in performing all phases of the operations.
The Employer's general manager. Richard E. Moore. who testified at
the hearing, has an office in Lenape, Pennsylvania, 140--150 miles from
Mayfield. He visits Ihe plant two or three times a month.
' At least two crewmembers on the afternoon shift on occasion operate
the press. as does Plant Manager Arpin, when a shift supervisor is absent.
236 NLRB No. 139
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WESTLAKE UNITED CORPORATION
Plant Manager Arpin, according to testimony at
the hearing, schedules production for 2 or more
weeks in advance, including a substantial amount of
overtime hours.4 Changes in the schedule, which is
posted, may be made only with his approval. Arpin is
responsible for checking inventories, the quality of
materials, the need for maintenance and repair of
equipment, and the "score card" of production; he
buys materials and equipment, interviews applicants
for employment, and handles other personnel mat-
ters. He also substitutes for shift supervisors when
they are absent.
Shift supervisors have keys to the plant. They often
set earlier shift starting times to accommodate for
overtime work requirements, but individual crew-
members themselves decide whether or not they wish
to work overtime hours. Thus, some crewmembers
may report for work earlier than others in order to
perform scheduled overtime work. Before 8:30 a.m.,
and after 5 p.m., when the plant manager is normally
not there, the shift supervisor is responsible for the
plant. However, when serious problems arise, the
shift supervisor calls the plant manager or consults
with a co-owner of the Employer, who is located on
adjacent property where he operates another busi-
ness.
A job description for the "shift supervisor" posi-
tion, prepared in September 1977, describes it as pri-
marily one of leadership of a production team. It
states that the shift supervisor is responsible for all
production during his shift and assigns tasks to crew-
members to that end; that he hears grievances and
resolves them if possible within existing policy, trains
crewmembers, recommends rate reviews, raises or
decreases, as appropriate, and recommends for em-
ployment any qualified personnel; that he is particu-
larly responsible for discipline, proper work perfor-
mance, and general work habits; that he has
authority to take corrective action, including tempo-
rary dismissal, when a crewmember is not function-
ing in his assigned job, which action is to be made
known to the plant manager and/or owners as soon
as practicable. It adds that, whenever necessary, the
shift supervisor will join in the physical work re-
quired by the particular job as scheduled by the plant
manager for the shift. Finally, it states that in the
absence of the plant manager the shift supervisor will
assume responsibility for the operation of the plant.
A job description was also created at the same time
for a "mold set-up" position, which essentially covers
all aspects of shift production work other than opera-
tion of the press, and states that mold set-up person-
nel report directly to the shift supervisor.
4 Dan Allen testified that the schedule sets forth what "runs" to make.
what materials to use, and generally what has to be set up
Although the record shows that the shift supervis-
ors, consistent with their job description, coordinate
the activities of their crews in following the posted
production schedule, the testimony of General Man-
ager Moore and Plant Manager Arpin was in conflict
with that of Dan Allen with regard to whether the
shift supervisors exercised any independent judg-
ment in directing employees and making work as-
signments. Contrary to conclusional testimony of
Moore and Arpin that independent judgment was in-
volved. Dan Allen testified that all shift employees
knew from their training and experience working as a
team what had to be done to complete a production
run and that he acted merely as a leadman.
There was testimony that Gary Allen had recom-
mended the employment of five individuals: his
brothers Dan and Wally, Matthew Allen, and two
friends. However, these individuals were interviewed
by Arpin and only after meeting with his approval
were they hired. Arpin testified that he interviewed
everyone before they were hired and that, if he was
not satisfied with the interview, he would not hire
them. Also, the record clearly shows that the Em-
ployer does not advertise for employees but hires
mainly through people who know someone.
Arpin testified that shift supervisors have authority
to discipline employees on a day-to-day basis, giving
as examples of exercise of such authority. "where one
of the supervisors will say come on, we've got to get
those molds loaded . . . we got this coming out in 20
minutes . . . let's watch it when you cut this wood
next time . . . I want it the right size .... " Both
Moore and Arpin testified they were told of one in-
stance involving an employee who was drinking a
cup of tea after punching in for work and was told by
Gary Allen to leave the work area while drinking his
tea. Though the employee did so, when he attempted
to return to the work area after finishing his tea he
was told by Gary Allen he would have to wait until
the half hour to punch in again.5 An argument en-
sued, following which the employee, on his own,
punched out and went home.
The record shows that the plant manager was re-
sponsible for wage review and increases. Dan Allen
testified that shift supervisors do not get involved in
these matters, but acknowledged that he did recom-
mend a raise for one employee to bring his pay to a
level commensurate with his seniority. Arpin testified
that after Dan Allen's recommendation he reviewed
the employee's pay rate in relation to that of others
and his work habits, and, on the basis of his findings,
recommended to the Employer that the employee be
given a raise.
IThere was evidence of a plant rule that if an employee arrives for work
after the hour he must wait until the half hour to punch in
1115
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Although Moore stated that shift supervisors have
the authority to grant time off, Arpin testified that
employees must seek his approval, that only in his
absence may they ask shift supervisors for time off,
and that even then the shift supervisor usually in-
formed him. Likewise, Arpin testified that changes
on timecards must be approved by him.
Based on the foregoing and our review of the en-
tire record, we conclude that the evidence is insuffi-
cient to establish that at the time of the hearing the
shift supervisors possessed or exercised any of the
statutory indicia of supervisory authority. We find
that the directions and work assignments they gave
to their crewmembers, including the assignment of
overtime, did not involve the use of independent
judgment but were dictated by the posted production
schedule and the established procedures followed in
implementing the scheduled production runs. Their
directions and work assignments were analogous to
those given by skilled workers to apprentices and
helpers working with them. 6 Nor does the evidence
cited above demonstrate that the discipline adminis-
tered by the shift supervisors went beyond oral repri-
mand having no significant effect on employee sta-
6 see Thayer Dairy Company. Inc., 233 NLRB 1383 (1977); United Stat'e
Gypsum Company, 148 NLRB 1640. 1641 -44 (1964); Southern Bleacherr and
Print Works, Inc., 115 NLRB 787. 791-796 (1956).
tus. 7 Likewise, any recommendations made by the
shift supervisors with regard to hire or wage increase
are not shown to have been effective recommenda-
tions, as the evidence is clear that Arpin made these
decisions and all others affecting employee status on
the basis of his own independent investigation.
Based on the above, we find the record herein es-
tablishes that the shift supervisors were not supervis-
ors as defined in the Act as of the time of the hearing.
Also, we conclude that the Acting Regional Director
correctly denied the Employer's motion to reopen the
record, and that he did not err in allowing the two
shift supervisors to vote under challenge in view of
the alleged change in conditions. In the circumstanc-
es, we hereby deny the Employer's appeal from the
Regional Director's refusal to conduct an adminis-
trative investigation of the alleged participation of
the shift supervisors in obtaining the showing of in-
terest submitted by the Petitioner to support its peti-
tion.
Accordingly, consistent herewith, the case is re-
manded to the Regional Director in order that he
may conduct an election pursuant to the Acting Re-
gional Director's Decision and Direction of Election,
except that the eligibility payroll period therefor shall
be that ending immediately before the date of is-
suance of this Decision on Review.8
See Ball Plastics Division, 228 NLRB 633 (1977).
K [Excelsior footnote omitted from publication.]
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