Cinch Manufacturing Corp.

CINCH MANUFACTURING CORPORATION 781 tion is also evidenced by the fact that ultimate financial return is dependent-upon the extent to which deductions for operating costs result in profit or loss. In view of the foregoing and upon the entire record, we conclude that the Companies' insurance agents are independent contractors and not employees within the meaning of the Act .5 Accordingly, we shall dismiss the petition herein. Order Upon the basis of the entire record in this case, the National Labor Relations Board hereby orders that the petition filbd in the instant matter be, and it hereby is, dismissed. Southwestern Associated Telephone Company, 76 NLRB 1105 ; Roy 0 . Martin Lumber Company, Inc., 83 NLRB 691; J. Howard Smith, Inc., 95 NLRB 21. Cf. N. L. It. B. v. Phoenix Mutual Life Insurance Company, 167 F. 2d 983 (C A. 7), where insurance agents were found to be employees because of the close control over their manner of operation exercised by the employer. See, also, Life d Casualty Insurance Co. of Tennessee, 5A NLRB 1196; Metropolitan Life Insurance Co., 43 NLRB 962. CINCH MANUFACTURING CORPORATION' and INTERNATIONAL UNION OF ELECTRICAL, RADIO AND MACHINE WORKERS, CIO, PETITIONER. Case No. 35-RC-640. March 20, 1952 Decision and Direction of Election Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Alan A. Bruckner, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Houston, Murdock, and Styles]. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to represent certain employees of the Employer.2 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. The name of the Employer appears as amended at the hearing. 2 At the hearing the Employer contended that one or more supervisors as defined in the Act sponsored and actively assisted in the Petitioner 's membership campaign and that the petition should therefore be dismissed . In view of our findings herein as to the status of employees classified as "supervisors " at the Employer's plant, we find no merit in this contention. 98 NLRB No. 118. 782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. The Petitioner requests that we find appropriate a unit consisting of all production and maintenance employees at the Employer's Shelbyville, Indiana, assembly plant, excluding office and clerical employees, guards, professional employees, and supervisors as defined in the Act. The Employer agrees with the Petitioner as to the basic unit appropriate for purposes of bargaining, but the parties disagree as to the inclusion of certain employees designated by the Employer as "supervisors." The Employer's Shelbyville plant is engaged in the assembly of radio, television, and electronic parts which are shipped to that location from the Employer's Chicago, Illinois, and St. Louis, Missouri, plants.3 There are approximately 125 employees at the plant, of whom about 110 are classified as assemblers. The assemblers, as well as the visual inspectors, a quality control inspector, setup men, stockboys, an assistant shipping clerk, and the janitor, make up the basic unit requested by the Petitioner.4 Assembly work is done in three depart- ments known, respectively, as (1) battery and connector sockets ; (2) molded and miniature sockets; and (3) terminal strips. From 30 to 50 assemblers work in each department but move from one to another according to the workload and schedule demands. There are two methods of assembly work performed in these departments. The first consists of lines in which a number of assemblers assemble a part which is then permanently joined by an operator at a machine. The second is a single employee operation in which the assembly and joining of the part .is done at one time. Approximately 250 different parts are produced by the plant but the number and type vary frequently. The employees whom the Employer wishes to exclude are classified as "supervisors." Until recently, one "supervisor" was assigned to each department but the Employer now has only two employees in this classification.5 Each of the "supervisors" has an assistant who, the parties agree, does not possess supervisory authority, and should be included in the unit. Above the "supervisors" is the plant foreman who is in charge of the assembly operations as well as of the remainder of the plant. General supervision is exercised by the plant manager. The foreman makes up a daily production schedule which lists the 8 The Employer also has a tool shop at a separate location in Shelbyville , which is not a part of the assembly operations and is not involved in the instant petition. ' The parties agree as to the inclusion of these employees , and to the exclusion of the fore- man, the inventory control clerk , shipping clerk, and a clerical employee located in the production part of the plant because of space problems . The Board finds the record con- tains substantial reasons for the exclusion of the latter employees and we shall exclude them front the unit found appropriate. 5 One "supervisor" was discharged in Decei ber • 1951 and is,the subject of an unfair labor practice charge now pending before the Board . Since the discharge of this employee, two of the departments are assigned to one of the remaining "supervisors." CINCH MANUFACTURING CORPORATION 783 parts to be assembled in the day's operations and the number of assemblers to be assigned to each operation. The "supervisors" and, in many instances, the foremen place the assemblers according to the numbers and jobs indicated on this production schedule. Other duties of the "supervisors" include the maintenance of an even flow of materials to the assemblers, weighing completed parts for production records and maintenance of daily production records, spot checking the parts against a blueprint to determine whether they are being assembled correctly, and, occasionally, helping in the assembly lines for short periods. They are paid on an hourly basis and receive 10 cents an hour more than the assemblers." The Employer contends that the employees in this classification are supervisors as defined in the Act and should, accordingly, be excluded from the unit. The Petitioner asserts a contrary position. ' - The mere title 'of "supervisor" as applied to these positions does not establish supervisory status.7 Rather it is the functions, duties, and authority of these individuals which must be determinative, accord- ing to statutory standards.8 The - record shows clearly that the Employer's "supervisors" do not have authority to hire, discharge, or effectively recommend such action. Hiring is done by the plant per- sonnel department and recommendations are accepted with equal weight from all employees. While the Employer contended the "supervisors" could recommend discharge, no instance was adverted to at the hearing where a "supervisor's" recommendation for termina- tion was the initiating and effective force. Wage increases are auto- matic provided the assembler's production is sufficient and while the "supervisors" are sometimes consulted as to the assemblers' production records, they do not submit recommendations as to the grant or denial of these increases. The same is true of promotions .9 "Supervisors" do not have authority to suspend subordinate employees, and their disciplinary power is limited to "showing employees how to do work right." They do not have authority to lay off or recall employees,, and, although they may confer with the foreman and the plant managers 9 The "supervisors" are also given a higher Christmas bonus than other employees. Assistant supervisors receive 5 cents an hour less than the "supervisors" and a quality control inspector, who is included in the unit but not in the assembly department, receives the same hourly rate as the "supervisors." T See Silverwood'8, 92 NLRB 1114, and cases cited therein. 8 Section 2 (11) of the Act defines a supervisor as "any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall , promote , discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances , or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment." 9In the only instance offered by the Employer as to this-authority, the "supervisor" was consulted after the employee to be promoted had already been selected on seniority , skill, and ability, 784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as to which individuals will be laid off or recalled, it does not appear that they have the authority effectively to recommend in this regard. Nor do they adjust grievances, although they may handle minor com- plaints with or without consultation with the foreman. There remains the question as to whether the "supervisors" transfer, assign, or responsibly direct employees within the statutory defini- tion. As previously noted, the assemblers work on the lines and indi- vidual. operations. These lines and operations are set out in the daily production schedule made up by the foreman who lists the parts. to be produced, which parts require immediate handling, the lines to be established, and the number of employees to be assigned to the assembly of each 'part. The "supervisors" consult this production schedule in the morning and establish new lines as the existing ones finish. -The assemblers move from department to department and from line to line or individual operation as the work schedule demands. As the "supervisors" indicate to each assembler on what line she is. to work, it is contended that the "supervisors" assign, transfer, and responsibly direct the employees. The Board does not agree. It is. clear that the placement of the assemblers on the lines amounts to nothing more than routine shifting of employees to predetermined work according to a predetermined schedule. The foreman, more- over, does some of this routine shifting himself or in company with the "supervisors," and the record shows at least one instance in which an employee who objected to her placement by the "supervisor" was. moved by the foreman's direction. The transfer of employees from one assembly department to another is dictated by the workload; the supervisor's choice of individuals to be shifted is determined by what assemblers are idle at that time, and it does not appear that this requires any use of independent judgement. The quality of the work produced by the assemblers is checked by inspectors who are rank- and-file employees; the quantity of the assemblers production is de- termined from the weight records made daily. The work of the as- semblers, itself, is comprised of simple manual operations which appear to require little supervision. This work is done in one large room and the plant foreman is in attendance much or most of the time. Accordingly, the Bpard finds that the Employer's "supervisors" are not supervisors such as defined in the Act and may properly be included in the unit hereinafter found appropriate." On the entire record, the Board finds that all production and main- tenance employees of the Employer at its Shelbyville, Indiana, as- sembly plant, including assembly employees classified as supervisors, but excluding the inventory control clerk, shipping clerk, office em- 10 See United Screw & Bolt Corporation., 89 NLRB 953 ; Stremei Bros. Manufacturing Company, 89 NLRB 1404, and cases cited therein. RAYTHEON MANUFACTURING COMPANY 785 ployees, the clerical employee now located in the production area, professional employees, guards, foremen, and all supervisors as defined in the amended Act constitute a unit appropriate for purposes of collec- tive bargaining within the meaning of Section 9 (b) of the Act. [Text of Direction of Election omitted from, publication in this volume.] RAYTHEON MANUFACTURING COMPANY and LODGE 1836 OF DISTRICT 38 OF THE INTERNATIONAL ASSOCIATION OF MACHINISTS , AFL, PETI- TIONER. Case No., 1-RC-2230. March 20, 1952 Decision and Direction of Election Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Leo J. Halloran, hear- ing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed? Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-mem- ber panel [Members Houston, Murdock, and Styles]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent certain employees of the Employer. 3. The Intervenor 2 and the Employer urge their current contract as a bar. The Intervenor was certified as bargaining representative for a production and maintenance unit in 1946,3 and contractual relations have continued on that basis to the present time. The most 1 During the hearing, the Employer and the Intervenor requested permission to appeal directly to the Board from the bearing officer's rejection of the Intervenor's Exhibit No. 1 and offer of proof in connection therewith. The Board denied such permission, postponing a ruling on the question until this time. The rejected exhibit is a 1948 contract of indefinite duration between the Petitioner and the Intervenor in which the Petitioner agreed not to file a petition for any unit other than a production and maintenance unit unless there occurred a substantial change in either the Employer's method of operation or "the policy" of this Board. The Intervenor and the Employer now move that the Board overrule the hearing officer and admit the agreement into evidence. Relying on the Board's decision in Briggs Indiana Corporation, 63 NLRB 1270, they contend that this agreement should be considered a bar to the present petition. The motion is denied. In the Briggs Indiana case, the petitioner had made an agreement with the employer that it would not seek to represent a specified group of employees for a 1-year period. The nature of the parties to the instant agreement, its vagueness, and its indefinite term all serve to dis- tinguish it from the contract which was before the Board in the Briggs case, and we do not regard that decision as applicable here. 2 Local 1505, International Brotherhood of Electrical Workers, AFL. 3 66 NLRB 588. 98 NLRB No. 121.