Hall Level & Manufacturing Works

In the Matter of HALL LEVEL & MANUFACTURING WORKS, EMPLOYER and AMERICAN FEDERATION OF LABOR, PETITIONER Case No. 16-R-1962.-Decided January 16,1947 Hornsby, Kirk and Aycock, by Mr. Stanley Hornsby, of Austin, Tex., for the Employer. Mr. J. W. Park,.of Beaumont, Tex., and Mr. B. J. Walker, of Aus- tin, Tex., for the Petitioner. Dlr. Robert J. Freehlin g, of counsel to the Board. DECISION AND DIRECTION Upon a petition duly filed, the National Labor Relations Board on September 20, 1946, conducted a prehearing election among the em- ployees of the Employer in the alleged appropriate unit, to determine whether or not they desired to be represented by the Petitioner for the purposes of collective bargaining. At the close of the election, a Tally of Ballots was furnished the parties. The Tally shows that, of the approximately 39 eligible voters, 18 cast votes for, and 17 against, the Petitioner; in addition, 7 ballots were challenged. Thereafter, hearing in the case was held at Austin, Texas, on Octo- ber 11 and 12, 1946, before Glenn L. Moller, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in the case, the National Labor Relations Board makes the following: FINDINGS Or FACT 1. THE BUSINESS Or THE EMPLOYER Hall Level & Manufacturing Works, a partnership composed of Frank Al. Holloway and William P. Holloway, is engaged in the man- ufacture of precision levels at its plant located in Austin, Texas. Dur- ing the 6 months preceding the hearing, the Employer received at this plant raw materials valued in excess of $7,500 from sources outside the State of Texas. During the same period, the Employer 72 N. L. R.B,No.27. 165 166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD shipped from this plant finished products valued in excess of $7,500 to ,customers outside the State. The Employer admits and we find that it is engaged in commerce -within the meaning of the National Labor Relations Act. IT. THE ORGANIZATION INVOLVED The Petitioner is a labor organization, claiming to represent em- ployees of the Employer.' III. TILE QUESTION CONCERNING REPRESENTATION The Employer has refused to grant recognition to the Petitioner as the exclusive bargaining representative of employees of the Employer at its Austin, Texas , plant. We find that a, question affecting commerce has arisen concerning the representation of employees of the Employer , within the meaning ,of Section 9 (c) and Section 2 (6) and (7) of the Act. Iv. TILE APPROPRIATE UNIT The Petitioner seeks a unit of all employees of the Employer at its Austin, Texas, plant, excluding office and clerical employees and super- visors. This unit comprises the approximately 39 production and maintenance employees at the plant concerned. The Employer takes the primary position that, because of the small size of this operation, the appropriate unit should consist of all its employees, including office and clerical employees and supervisors. In the alternative, it con- tends that, in the event the Board finds appropriate the unit sought by the Petitioner, Frank G. Holloway should be included as a production and maintenance employee, and Louise Stewart, Dessie Pitts, Lula Lockhart and Mary Polk should be excluded as supervisors. With respect to the primary position, we are not persuaded that the relatively limited nature of the Employer's operation in the instant case warrants a departure from our customary practice of excluding office and clerical employees and supervisors-from a unit of rank and file production and maintenance employees; accordingly, we shall reject this contention of the Employer.2 ' The Employer questioned the competency of the Petitioner to represent the employees involved heietn and, in this connection, sought to introduce in evidence a chatter issued by the Petitionei to the employees of the Employer and to conduct extensive examination of witnesses concerning eligibility of its employees to membership in the Petitioner. The, heating officer properly excluded such matters as irrelevant As the Board has ficquently held in like cases, the willingness of a petitioner to iepiesent the employees in issue is controlling tinder the Act, not the eligibility of employees to membership, nor the exact extent of the Petitioner's constitutional jurisdiction See Matter of News Syndicate Co, Inc, 67 N L R B 1178; Matter of Virginia Fertvy Corpomation , 67 N L. R B 698 and Matter of Wilson & Company, Inc, 62 N. L. R. B. 895. 2 Cf. Matter of Deeco Company, 71 N L. R B 692 HALL LEVEL & MANUFACTURING WORKS 167 We come now to a discussion of the employees in dispute. The dis- agreement of the parties as to these employees is reflected in five of the seven challenged ballots.3 Frank G. Holloway-This employee, who is the father of the two partners, was challenged by the Petitioner as a confidential employee and as an office and clerical employee. It appears from the record that Holloway spends approximately 80 percent of his time in performing various clerical and messenger duties, including writing checks, pre- paring pay-roll records, distrlbutnig mail, and obtaining office supplies, and that during the balance of his time, he performs such miscellaneous tasks as opening and shutting the plant, checking ventilators, and aid- ing in the shipment of finished products. It further appears that he is paid on a salary basis, whereas tha production and maintenance em- ployees are hourly paid. Inasmuch as his functions are, for the most part, clerical in nature,4 and, in any event, in view of his close relation- ship to management; we shall exclude Frank G. Holloway from the unit. Louise Stewart, Dessie Pitts, Lula Lockhart and Mary Polk-These employees were challenged by the Employer on the ground that they exercise supervisory authority. The Employer's plant is housed in a converted two-story residence. The machine shop, part of the assembly department, and storage facili- ties are located on the first floor, and the remainder of the assembly department and the offices occupy the second floor. Close supervision over the various plant functions and the approximately 39 production and maintenance employees is maintained by both partners,6 and, in addition, by the production manager, who is principally concerned with the machine shop operations, and by the chief inspector, who is primarily responsible for the work performed in the assembly department. Reporting directly to the chief inspector, an admittedly supervisory employee, are employees Stewart, Pitts, Lockhart and Polk. These individuals, who have worked for the Employer since the plant opened in February 1946, and are therefore among its senior employees, were designated by the Employer as "supervisors" of groups of 4 to 6 as- sembly employees in July 1946, at which time an increase was made in 3 There appears to be no issue between the parties with respect to the remaining two challenged ballots, namely those of James Maher, production manager, and of Zilmon Smith, chief inspector These two employees were challenged by the Petitioner on the giound that they exercise supervisory authority Inasmuch as it is clear fioni the entice record in the case that these employees are supervisors within the Board's customary defini- tion of that term , we shall exclude James Maher and Zilmon Smith from the unit Cf Matter of Marcellns M. Murdock, 67 N L R. B. 1426 , Mattel of Brown Shoe Conz- pany, Inc., 57 N L. R B 1687. Cf Matter of Jerry and Edythe Belanger, 32 N L R. B 1276 6 One of the partners, William P Holloway, testified that he knows most of the em- ployees by name and that he is aware of their capabilities "to the minutest detail " 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the number of production and maintenance personnel. The so-called "supervisors" are responsible for instructing and watching the progress of new employees and for maintaining adequate supplies in their respective sections. However, the record indicates that the employees in issue spend from 60 to 90 percent of their time performing exactly the same type of manual work as their fellow employees; that they are hourly paid, whereas their immediate superior is paid by salary; and that, except for a mere 5 cents an hour wage differential,' they are subject to the same conditions of employment as the other workers in their respective groups. The record further indicates that, apart from the additional responsibilities detailed above (which have declined again as the new employees have become more proficient) these four individuals have continued to perform substantially the same func- tions as were required of them before their titles were changed. It also appears that the employees under their jurisdiction have never been informed by the Employer of the change in status of the "supervisors." In view of the foregoing, we believe that these individuals are merely more experienced workers who function as leaders in their respective groups, and that their relationship to their fellow workers is not one of supervisor to subordinate." We shall, therefore, include Louise Stewart, Dessie Pitts, Lula Lockhart and Mary Polk in the unit as production employees. We find that all production and maintenance employees of the Employer at its Austin, Texas, plant, excluding Frank G. Holloway, office and clerical employees, the production manager, chief inspector, and all other supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of em- ployees, or effectively recommend such action, constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. v. THE DETERMINATION OF REPRESENTATIVES In conformance with our foregoing conclusions, we hereby sus- tain the challenges to the ballots of James Maher, Zilmon Smith, and Frank G. Holloway, and overrule the challenges to the ballots of Louise Stewart, Dessie Pitts, Lula Lockhart and Mary Polk. Inas- much as the results of the election held before the hearing may depend ,After .their designation as "supeivisois ," the salaries of these employees were raised f, om 50 cents to 55 cents per hour S The evidence that on three occasions between July and September 1946 , recommenda- tions by Polk and Lockhart that three employees be assigned different jobs resulted in such action being taken by the Employer is not sufficient indicia of supervisory status to persuade us that the four employees involved are supervisors within the Board 's usual def- inition of that teen . Cf Matter of The Toledo Casket Company, 71 N. L R . B 821, and Matter of Pittsburgh Equitable Meter Company , 61 N L. It. B 880. HALL LEVEL & MANUFACTURING WORKS 169 on the counting of the challenged ballots declared valid, Ave shall direct that the ballots of Louise Stewart, Dessie Pitts, Lula Lockhart and Mary Polk be opened and counted.° DIRECTION As part of the investigation to ascertain representatives for the purposes of collective bargaining with Hall Level & Manufacturing Works, Austin, Texas, the Regional Director for the Sixteenth Region shall, pursuant to Section 9-03.55 of National Labor Relations Board Rules and Regulations-Series 4, within ten (10) days from the date of this Direction, open and count the ballots of Louise Stewart, Dessse Pitts, Lula Lockhart and Mary Polk, and thereafter prepare and cause to be served upon the parties a Supplemental Talfy of Ballots, includ- ing therein the count of said challenged ballots. MR. JOHN M. HOUSTON, dissenting in part: I would exclude from the appropriate unit established in this case the four employees, Stewart, Pitts, Lockhart and Polk. The Board has established criteria to ascertain supervisory status. One such cri- terion is Whether the employee involved may effectively recommend changes in the status of employees in the unit. Admittedly, as shown by the Decision herein, Polk and Lockhart have that authority and have exercised it. The other two perform the same type of function. No valid reason appears here for making exceptions. In determining this issue I note that these four employees were designated supervisory employees coincidentally with an approx- imately 100 percent expansion of personnel and that, despite the small- ness of the unit, the work performed, being of a highly skilled and precise character, calls for close supervision of small groups. In view of these considerations and because the results of the election indicate that it has received a majority of the valid votes cast, I would certify the Petitioner. 9 At the hearing and in its brief, the Employer contended- that the healing officer erred and that there was, in effect , a denial of an "appropriate hearing " under the Act, in the exclusion from the record of evidence pertaining to an alleged decline in membership in the Petitioner, viz. oral testimony and signed petitions , which it is asserted would prove that, at a date subsequent to the election, 27 of the approximately 39 employees in the appropriate unit did not desire the Petitioner as their bargaining representative. We are of the opinion that such evidence was properly excluded. Although evidence as to the growth or decline of membership in a labor organization may be relevant in other circum- stances, it is clear that such matters have no applicability in the situation presented in the instant case See N. L. R. B. v Century Oxford Mfg Corporation, 140 F. (2d) 541 (C C. A 2) ; N L R. B v Appalachian Electric Power Co, 140 F (2d) 217 (C. C. A. 4) and N L R B v Botany Worsted Mills, 133 F (2d) 876 (C C. A. 3)