Formco, Inc.

FORMCO, INC. Formco, Inc. and International Union, United Auto- mobile, Aerospace & Agricultural Implement Work- ers of America, UAW, Petitioner. Case 9-RC- 11825 September 21, 1979 SECOND SUPPLEMENTAL DECISION AND DIRECTION BY CHAIRMAN FANNING AND MEMBERS MURPHY AND TRUESDALE Pursuant to a Decision and Direction of Second Election issued by the National Labor Relations Board on October 19, 19 77, a second election by se- cret ballot was conducted on December 22, 1977. Upon conclusion of the balloting, the parties were furnished with a tally of ballots which showed that there were approximately 91 eligible voters and that 88 ballots were cast, of which 39 were for Petitioner and 30 were against Petitioner. There were 19 chal- lenged ballots, a number sufficient to affect the elec- tion results. The Employer filed objections to conduct affecting the results of the election. In accordance with the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Regional Director for Region 9 investigated the challenges and on February 24, 1978, issued his Re- port on Challenged Ballots and objections to election and recommendations to the board. He concluded that the Employer's objections did not raise any sub- stantial or material issues affecting the results of the election and recommended that challenges to the bal- lots of five voters be overruled and that a hearing be held before a duly designated hearing officer to re- solve the issues raised by the remaining 14 challenged ballots. Subsequently, on September 12, 1978, the Board issued a Supplemental Decision and Direction 2 essentially adopting the Regional Director's report3 and directing that a hearing be held before a duly designated hearing officer to resolve the issues raised by the remaining challenged ballots. Thereafter, a hearing was held on November 6, 7, 8, and 20, 1978, before Hearing Officer Cassius B. Gravitt, Jr. On February 14, 1979, the Hearing Offi- cer issued and served upon the parties his report and recommendations, recommending that all of the unre- solved challenges be overruled. Petitioner filed excep- 1233 NLRB 61. 2 Not published in bound volumes of Board Decisions. The Board adopted the recommendation that the five challenges referred to above be overruled. but directed that the ballots were not to be opened until the remaining challenges were resolved, and that then they were to be opened only if they remained determinative. tions and a supporting brief and the Employer filed an answering brief. 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 Hearing Officer's re- port in light of the exceptions and briefs and has de- cided to affirm his findings, conclusions, and recom- mendations, 4 except with respect to the challenges to the ballots of Lou Gilbert, Charles Williams, Al Henke, Don Jackson, Louise Maupin, Tim Rash, William Rowe, Rick Treat, and David Schumacher, all of whom were challenged by Petitioner on grounds that they were supervisors within the meaning of the Act. The Hearing Officer found that they were not supervisors on grounds that they lacked the indicia of supervisory authority set forth in Section 2(11) of the Act. However, the Hearing Officer failed to discuss and/or give appropriate weight to evidence which we find establishes that they are supervisors within the meaning of the Act. The Employer employs nine individuals whom it refers to as "supervisors" and "foremen," each of whom is responsible for one of the Employer's de- partments. (These individuals are hereafter called ' Petitioner originally challenged the ballot of Phil Garrett on grounds that he was a supervisor, and at the hearing alleged as an additional basis for the challenge that Garrett was no longer employed by the Employer. According to the uncontradicted testimony of Plant Superintendent Earl Berryman, Jr., Garrett was a production employee at the time of the election. The Hearing Officer apparently credited this testimony, for he found that, as of the date of the election, Garrett was a rank-and-file employee. We agree. Petitioner has not argued the issue of Garrett's supervisory status in its brief to the Board, but contends that Garrett was no longer employed by the Employer as of the date of the election. Further. Petitioner adduced no evidence that Garrett was a supervisor at the time of the election, even though at the close of the heanng Petitioner had not withdrawn this contention. We agree with the Hearing Officer's findings that "at the time of the election, Phil Garrett. a long-time employee on extended sick leave, had a reasonable expectancy of returning to work in the employ of the Company and was, accordingly, eligible to vote in the election." Accordingly, we adopt the Hearing Officer's recommendation that the challenge to Garrett's ballot be overruled. In its exceptions, Petitioner contends that the Hearing Officer erred in finding that employee Tom Haley should be included in the unit, on grounds that Haley does not share a community of interest with production and maintenance employees, and specifically excepts to the finding that Haley was supervised by Earl Berryman. The record indicates that Haley is imme- diately supervised by Gary Sparks, manager of customer relations, and Bob Hende'son, who is in charge of Cincinnati sales. The Hearing Officer, how- ever, found that "While Gary Sparks and Bob Henderson supervise some of Haley's activities, at all times he is under the supervision of Plant Supenn- tendent Earl Berryman, Jr.. and President Gerald Carletti, who also super- vise production employees." The Hearing Officer's finding that Haley is "at all times" supervised by Berryman apparently ignores Haley's uncontra- dicted testimony and that of Sparks and Henderson. However, despite the difference in immediate supervision, we adopt the Heanng Officer's recom- mendation that the challenge to Haley's ballot be overruled. The mere differ- ence in "immediate" supervision, in view of the other factors establishing Haley's community of interest with unit employees (e.g.. the facts that Haley spends a substantial amount of time working in the plant each day and is assisted by production employees in performing his duties, and that he has common holidays and insurance benefits with production employees), does not. in our opinion, warrant Haley's exclusion from the production and maintenance unit. 245 NLRB No. 16 127 DECISIONS OF NATIONAL LABOR RELATIONS BOARD foremen.) All nine are paid a salary while the produc- tion and maintenance employees are paid hourly. The foremen do not punch a timeclock and have certain benefits, i.e., sick leave, not shared by production and maintenance employees. According to the uncontra- dicted testimony of Plant Superintendent Earl Berry- man, all of the foremen who were challenged possess the same amount of authority, and any finding vis-a- vis supervisory status of one would be applicable to the remaining eight. It is undisputed that foremen are responsible for maintaining a constant flow of work through their departments and that in this capacity they are ex- pected to see that each person in their departments has sufficient work to perform. In order to discharge this responsibility, the foremen have authority to transfer employees from one job to another within the department. It is further undisputed that foremen at- tend production meetings not attended by rank-and- file employees and are responsible for safety and housekeeping within their departments. Thus, al- though all nine foremen testified that they spent the majority of their time performing the same work as unit employees, it is clear that they exercise respon- sible judgment in the administration of their respec- tive departments, which evidences supervisory status.5 Further evidence of the foremen's supervisory au- thority is found in the employee handbook, which is prepared by the Employer and distributed to employ- ees.6 The grievance procedure described therein pro- vides, inter alia, that grievances are to be reported directly to the employee's foreman whose responsibil- ity it is to report the problem to management. Thus, the grievance section states, in pertinent part: We strive to prevent such situations, but should you have a grievance, you may present it directly to your foreman. He will hear your problem and report his answer to you within two working days, after your grievance has been presented. He is not only responsible to the company for you and your work, he also has an obligation to you for clearing up any misunderstanding or complaints. Despite the explicit language of the handbook, the Hearing Officer found that foremen possessed no au- thority to adjust grievances or to effectively recom- mend such action, apparently in reliance on testi- mony to this effect by Carletti and Berryman. In this regard, Berryman testified that the handbook proce- dures with respect to grievance adjustment were not 5 EFex Wire Corporation. 188 NLRB 397, 403 (1971). 'Berryman testified that as of the time of the instant hearing the practice of distributing the handbook had been discontinued; however, there is no evidence that the handbook was not given to employees as of December 1977, when the second election was conducted. observed even though the handbook provided for foremen to adjust grievances. However, in response to the Hearing Officer's question, "[D]o you feel there's any conflict in your testimony as to the authority the leadmen have when compared to the authority set forth in this Employees Handbook," Berryman also testified, "I'd say we have to go by the Employee Handbook, sir." In these circumstances, we conclude that the griev- ance procedure set forth in the employee handbook empowers the foremen to adjust grievances and that they therefore possess supervisory authority in this regard.7 In addition, the record establishes that there are approximately 60-80 employees in the voting unit, of whom approximately 10 are maintenance employees. If, as the Hearing Officer found, the foremen are not supervisors, the only immediate supervisors of these employees would be Berryman and possibly Mainte- nance Superintendent Everett Foley and thus the em- ployee-to-supervisor ratio would be 30 to I and per- haps 70 to 1, a ratio which the Board has held to be disproportionate.9 We therefore find that the inordi- nately high ratio of employees to supervisors which would result from a finding that the foremen are rank-and-file employees further supports the conclu- sion that the foremen are indeed supervisors within the meaning of the Act. There is further evidence, not discussed by the Hearing Officer, that the foremen possess supervisory authority. Thus, employee Alice Bryant testified with- out contradiction that on "about" two occasions in 1977 her foreman, Charles Williams, allowed her to leave early without obtaining Berryman's approval. °0 Similarly, employee Barry Kauffman testified that 'Contrary to our dissenting colleague, the question of supervisory status is determined by whether or not the individual possesses supervisory authority, not by whether or not the individual exercises such authority. I Berryman testified that tiere were five supervisors in the plant alto- gether, but did not elaborate on this statement. It appears from the record that six persons, not counting the foremen, exercised some supervisory au- thority: Carletti, Robert Ostop, director of purchasing, Gary Sparks, man- ager of the customer service department, Bob Henderson, who is in charge of Cincinnati sales, Foley, and Berryman. However, it is clear from the record that Ostop and Sparks supervise only Production Scheduler Donald Schultz and Tom Haley, the outside serviceman. Bob Henderson also supervised Tom Haley. The two truckdrivers were supervised by both Sparks and Hen- derson. Furthermore, Carletti does not assume any role in the daily supervi- sion of the production and maintenance employees. Thus, despite Berry- man's assertion that there are five supervisors, if the foremen are not supervisors, there is at best only one other person, Foley, to supervise the vast majority of the production and maintenance employees, and it is clear from the record that Foley supervises only the 10 maintenance employees. Accordingly, a finding that the foremen are not supervisors would essentially leave Berryman as the supervisor for approximately 70 employees. I See. e.g., Colorflo Decorator Products. Inc., 228 NLRB 408, 410 (1977): The Bama Company. 145 NLRB 1141, 1143, fn. 6 (1964). 10 When Williams was asked if he had "told people that they could leave without checking with Mr. Berryman," he replied, "I can't remember if I have. I mean I'm sure that I probably have but I can't remember a single case." 128 FORMCO. INC. "up until this past winter" Lou Gilbert had granted him permission to leave work early, but that more recently Gilbert had told him to ask Berryman. Gil- bert testified that he had allowed employees to leave early and had told Berryman later. These incidents demonstrate that the foremen are not merely conduits for information and instructions from management personnel, but that they possess independent author- ity over the employees in their departments. In concluding that the foremen are not supervisors, the Hearing Officer found, inter alia, that they do not have independent authority to discipline employees. However, the Hearing Officer also found that on sev- eral occasions foremen issued or signed disciplinary notices and the record establishes that, although Ber- ryman signed all such notices, the disciplinary actions in several instances were initiated by a foreman. Thus, during the summer of 1977 Foreman Rick Treat issued a disciplinary notice to employee Harold Campbell for excessive absenteeism. Both Treat and Berryman signed the notice. Although, as the Hear- ing Officer found, Berryman instructed Treat to issue the notice, Treat had informed Berryman that Camp- bell had been absent and it is clear that Treat initi- ated the disciplinary action. On a second occasion in the summer of 1977 Treat informed Berryman that an employee had failed to follow instructions and Berry- man issued a disciplinary notice to the employee as the result of Treat's action. In May 1977 Foreman Louis Gilbert reported to Berryman that employee White refused to perform his work and subsequently Gilbert issued a warning slip to White. Berryman signed and authorized the slip, although he asked Gilbert to sign as well. In August 1977 Foreman Tim Rash signed a disci- plinary notice issued to an employee for excessive ab- senteeism. Although the Hearing Officer found with respect to this incident that Berryman made the deci- sion to issue the notice, he ignored Rash's uncontra- dicted testimony that he had complained to Berry- man. It is apparent from these incidents that the Hearing Officer, in concluding that the foremen lack authority to discipline employees, failed to take into account that the indicia of supervisory authority set forth in Section 2(11) of the Act include not only the power to discipline employees, but also the authority to "effectively recommend" such action. The inci- dents of discipline involving foremen clearly demon- strate that the foremen effectively recommend disci- plinary action. Furthermore, we note that in certain instances, but for the foreman's initiative, the employ- ee's misconduct would have gone unpunished. We conclude that the incidents described above establish that the foremen possess the authority to effectively recommend discipline. For the foregoing reasons, we conclude that the power and authority exercised by or granted to the foremen constitute them supervisors within the mean- ing of Section 2(11) of the Act" and, accordingly, we shall sustain the challenges to their ballots.'2 DIRECTION It is hereby directed that the Regional Director for Region 9 shall, pursuant to the Board's Rules and Regulations, Series 8, as amended, within 10 days from the date of this Decision and Direction, open and count the ballots of Tom Haley, Donald Schultz, Jeff Vaneslow, Allen Shephard, Phil Garrett, Mildred Cook, Dewey Duncil, Wayne Kennedy, Steve Stef- fens, and Deamus Treat. IT IS HEREBY FURTHER DIRECTED that the Regional Director shall thereafter prepare and cause to be served on the parties a revised tally of ballots and in accordance therewith issue the appropriate certifica- tion. IT IS HEREBY FURTHER DIRECTED that the instant proceeding be, and it hereby is, remanded to the Re- gional Director for Region 9 for the purpose of taking the action set forth above. MEMBER MURPHY, concurring in part: Contrary to my colleagues, I do not find that the evidence adduced at the hearing warrants a finding that the leadmen'3 are supervisors. Consequently, while I agree with the majority's disposition of the other challenges, I dissent from the conclusion that the leadmen should be excluded from the unit. The Hearing Officer, on the basis of the credited testimony of the Employer's president, Gerald Car- letti, Plant Superintendent Earl Berryman, and the nine leadmen, found that the leadmen were not su- pervisors. Specifically, he found that the leadmen may show less experienced employees work duties and occasionally perform some paperwork, but that they do not have the authority to hire, discharge, sus- '' It is well established that the indicia of supervisor) authority set forth in Sec. 2(I1 ) of the Act are to be read in the disjunctive, and that an individual need not possess all the powers enumerated in that section in order to be found a supervisor. N. L..R. B. v. Edward G. Budd Manufacturing Company. 169 F.2d 571 (6th Cir. 1948), cert. denied 335 U.S. 908. 12 We are not persuaded by the Employer's contention that our decision in Formco Incorporated, 156 NLRB 1471 (1966). is dispositive of the supervi- sory status of the foremen in the instant case. In the earlier case, the Board reversed the heanng officer and found that an individual who assumed some leadership duties after the resignation of one of two supervisors on the mid- night shift was not a supervisor. Unlike the instant case, however, there was insufficient evidence in that case to establish that the challenged voter had any supervisory powers. In these circumstances, the testimony of Carletti. that the foremen exercise the same amount of authority currently as they did 15 years ago, does not warrant a conclusion that the earlier Formco decision controls the result here. I'The majority refers to these individuals as foremen. As noted bh the majority. the Employer has used this designation for the leadmen: however. title alone does not establish supervisory status. 129 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pend, lay off, recall, promote, reward, or discipline employees or responsibly direct the employees, adjust their grievances, or effectively recommend such ac- tion. The Hearing Officer concluded that the leadmen carry out routine instructions not requiring the use of independent judgment. Nonetheless, the majority concludes that the record establishes that the leadmen are in fact supervisors within the meaning of the Act. In so doing, the major- ity finds that, because the leadmen are responsible for insuring that other employees have enough to do, they direct the work of these other employees. This finding, however, ignores the Hearing Officer's spe- cific finding, based on the credited testimony of Ber- ryman, that the leadmen do not have authority to "responsibly direct" employees. Indeed, it is uncon- troverted that the production and maintenance work is of a highly routine nature, requiring little or no skill, and Berryman testified, without contradiction, in response to the question, Q. Now how do the leadmen know what is to be done in their respective departments? A. It's just obvious and routine. In these circumstances, the majority's conclusion that the leadmen exercise independent judgment in direct- ing the work of employees is not supported by the record. Furthermore, the leadman is generally the most experienced employee in his or her department, and it is clear that any authority the leadman exer- cises over other employees is related to his special skills and experience. It is well established that exer- cise of limited authority in such circumstances does not confer supervisory status.'4 My colleagues assert, inter alia, that certain state- ments in the employee handbook provide support for the conclusion that the leadmen are supervisors. However, what my colleagues fail to note is that that there is no evidence that any leadman ever resolved or played any role whatsoever in resolving a griev- ance. Furthermore, there was testimony that the em- ployee handbook was no longer in use at the time of the election and that, although at some time prior to the election the handbook may have been distributed to each new employee, its provisions were not in fact observed. Thus, the assertion that the employee hand- book authorizes leadmen to resolve grievances is meaningless inasmuch as the record establishes that, at least as to grievances, the Employer did not "go by [that particular] book." The majority, however, finds support for its conclu- sion that the handbook grievance procedure is signif- icant in a statement by Berryman, who testified on direct examination by the Hearing Officer as follows: " Risdon Manufacturing Company, Inc., 195 NLRB 579. 581 (1972). Q. Well, I'll ask you this, I don't know whether it's appropriate or not but it might help me, do you feel there's any conflict in your testi- mony as to the authority set forth in this Em- ployees Handbook? A. I'd say we'd have to go by the Employee Handbook, sir. Q. You have to go by the Handbook? A. Yes, sir. The majority's reliance on this testimony requires a reductio ad absurdum response. They contend the leadmen are supervisors because there is a grievance procedure which, as noted, contains certain state- ments involving leadmen in the resolution of griev- ances. However, as noted, this procedure has never been invoked. Furthermore, the employee handbook. according to credited testimony, is not followed, but, the majority relies on the hypothetical answer (to an equally hypothetical question) that, if there were a conflict between actual practice and the procedures of the handbook that are not observed, then the hand- book would control. How, one might ask, can the ignored handbook control over actual practice? The majority also relies on its finding that the em- ployee supervisor ratio would be at least 60 to 2 if the leadmen are not supervisors. However, in view of the highly routinized nature of the Employer's operations it is reasonable that one or perhaps two supervisors could supervise the entire production and mainte- nance functions. Furthermore, the leadmen can lead by example and instruction without, in the process. being elevated to the role or stature of supervisors within the meaning of the Act. In these circumstances a ratio of 2 supervisors to 60 employees cannot be considered inordinately low. Nor can I agree with my colleagues that isolated instances of discipline "initiated" by leadmen (which consisted of reporting certain employee misconduct to the plant superintendent) constitute effective rec- ommendation of discipline within the meaning of the Act. The majority relies on these isolated instances of conduct by leadmen even though the Hearing Officer found them to be just that-"a few isolated in- stances." The evidence shows, contrary to my colleagues' conclusion of "effective recommendation of disci- pline," that leadmen merely reported to Berryman violations of rules by other employees, a function which may be performed by either a supervisor or a rank-and-file employee. There is a difference between the "effective recommendation" of discipline and re- porting violations to the plant superintendent. The former activity might make the leadmen supervisors, but the latter, which is all that occurred here, would not. Furthermore, there is no evidence that the lead- men ever made recommendations or suggestions to 130 FORMCO. INC. Berryman with respect to the nature or quality of the discipline he imposed. It bears emphasis that Berry- man testified that he independently investigated all instances of employee misconduct and that the Hear- ing Officer credited his testimony. Thus, what re- mains of the majority's contention that leadmen effec- tively recommended disciplining employees is that they exercise the right of any employee to report em- ployee misconduct to management. This right does not constitute power "effectively to recommend" dis- cipline as that term is used in the Act. By the same token, the majority's reliance on a few instances where leadmen gave other employees per- mission to leave work is misplaced, for it is well set- tled that sporadic or isolated instances of the exercise of such authority do not establish supervisory status.15 5 Highland Telephone Cooperative, Inc., 192 NLRB 1057, 1058 (1971) Standing alone, each of the findings on which the ma- jority relies-the responsibility of leadmen for routine functioning of their departments, the employee hand- book provision, the supervisor to employee ratio, the alleged discipline of employees by leadmen, and occa- sional permission to employees to leave work early- is insufficient to establish that the leadmen are super- visors. Likewise, when considered together, these findings do not warrant the conclusion that leadmen are supervisors. However, by their insistence to the contrary, the majority attempts to make the whole greater than the sum of its parts. In conclusion, I would adopt the Hearing Officer's findings with respect to the leadmen, and find that they are production and maintenance employees. Ac- cordingly, I would also find them eligible to vote and would therefore overrule the challenges to their bal- lots. 131