Crescent Ink and Color Co. of Pennsylvania

CRESCENT INK AND COLOR COMPANY OF PENNSYLVANIA 663 mately 50 percent returns to work each year. The Union contends that these employees are ineligible to vote. The Petitioner and the Employer take a neutral position. In view of the limited nature of their employment, we find that these part-time employees are ineligi- ble to vote in the election directed herein.- [Text of Direction of Election omitted from publication in this volume.] " Cf. S & L Co of Pipeatone, 96 NLRB 1418. CRESCENT INK AND COLOR COMPANY OF PENNSYLVANIA and Oii WORKERS' INTERNATIONAL UNION, CIO, PETITIONER and INTER- NATIONAL PRINTING PRESSMEN AND ASSISTANTS ' UNION OF NORTH AMERICA, AFL. Case No. 4-RC-12986. August 18,1952 Supplemental Decision and Certification of Representatives On December 7, 1951, pursuant to a Decision and Direction of Election issued by the Board on November 16, 1951,1 an election by secret ballot was conducted under the direction and supervision of the Regional Director for the Fourth Region. At the conclusion of the election, a tally of ballots was furnished the parties by the Regional Director. The tally shows that there were approximately 63 eligible voters, and that 62 votes were cast, of which 31 votes were for the Petitioner, 28 votes were for the Intervenor, 1 vote was cast against any labor organization, and 2 ballots were challenged. No objections to the conduct of the election were filed by any of the parties. Because the challenged ballots were sufficient in number to affect the results of the election, the Regional Director, in accordance with the Board's Rules and Regulations, conducted an investigation, and thereafter on January 23, 1952, issued and served upon the parties his report on challenges, finding that one Eli Garcia was a supervisor, and recommended that the challenge to his ballot be sustained. The other challenged ballot was cast by Harry V. Duffy, who the Re- gional Director found was a salesman and not a production worker. He made no recommendation as to Duffy's ballot. On February 1, 1952, the Intervenor filed exceptions to the Regional Director's report. On March 20, 1952, the Board, after having duly considered the matter, decided there was insufficient evidence 2 in the record on which ' Not reported in printed volumes of Board decisions. ' At the original hearing, all parties stipulated that the head aniline man was a working foreman and therefore should be included in the unit . Because of this stipulation no evidence was presented as to Garcia's duties. 100 NLRB No. 108. 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to base a finding that Garcia was a supervisor, and ordered a hearing for the purpose of taking evidence on the issue of the challenged ballots and directed the hearing officer to make a report and recommendations to the Board as to the disposition of the challenges. Thereafter, a hearing was held before Harold X. Summers, hearing officer, at which all parties in the proceeding were present and participated .3 On June 10, 1952, the hearing officer issued his report, finding that Garcia was a supervisor at the date of the election and that Duffy's work and inter- ests were more closely allied to a group outside the unit than to the production workers. He therefore recommended that the challenges to the votes of Garcia and Duffy be sustained. Thereafter, the Inter- venor filed timely exceptions to the hearing officer's report on chal- lenges. Eli Garcia On or about September 6, 1951, Garcia, who previously was a work- ing foreman, was promoted to be in charge of the aniline department, where there are 15 or 16 production workers.4 The evidence shows that on the day of the election, Garcia was acting as head of the depart- ment working directly under Carney, the chief chemist, who, in turn, reports to the plant manager. Carney spends only about 5 percent of his time on the production floor of the aniline department, giving his orders to Garcia, who, in carrying them out, uses his own discretion and methods of performance, discussing only major problems with Carney. Garcia does production work only in case of a temporary shortage in help. Although Garcia has no final authority to hire, he participates in the hiring process.-' The usual procedure is for Garcia to give an applicant for employment an application blank, which the latter fills out. Garcia takes it to Carney, who may discuss the qualities of the applicant with Garcia before the selection is made, or the two men may narrow the list of eligibles to a few, after which Carney will make the final decision. Whichever method is used, the new employee re- ports to Garcia, who explains the nature of the work, introduces him to his working foreman, and assigns a locker to him. Garcia has effec- tively recommended at least one employee for promotion, and he testi- fied that in the near future he expects to have the opportunity to recommend wage increases and discipline employees, which authority he has not yet had an opportunity to exercise. Garcia has authority to allot overtime and to select workers for the various shifts. He has 8 The hearing officer's rulings are free from prejudicial error and are hereby affirmed. Garcia stated that he details the work to the men, checks the batches , makes additions, and does everything pertaining to the production work of the department. "Neither Garcia nor Carney has the authority to discharge , this function being exclu- sively in the officers of the Employer. CRESCENT INK AND COLOR COMPANY OF PENNSYLVANIA 665 received memoranda which were also addressed to Carney, and accord- ing to the president of the Employer, he has attended a meeting of management personnel where various aspects of the aniline depart- ment were discussed. On the other hand, Garcia punches a clock, is hourly paid,6 receives premium pay for overtime, and receives the same Christmas bonus and vacations benefits as the other production workers. The Intervenor contends in its exceptions that Garcia is not a super- visor within the meaning of the Act and that in arriving at his con- elusion, the hearing officer has relied solely on the responsible direc- tion of Garcia during Carney's absence. We find no merit in these contentions. As indicated above, not only does Garcia responsibly direct the employees in his department 95 percent of the time,7 but he also directly participates in hiring, has effectively recommended pro- motion," has selected workers for transfer to other jobs and other shifts,' and expects to exercise additional supervisory powers.10 On the basis of the entire record in the case, we find that Garcia is a super- visor and we adopt the hearing officer's recommendation that Garcia's ballot not be counted.11 Harry V. Duffy Duffy's ballot was challenged on the ground that he was a salesman, and as such should be excluded from the production and maintenance unit. The hearing officer agrees with this contention and recommends that the challenge be sustained. The evidence shows that in the summer of 1949, when Duffy was a senior at college, he had a talk with the Employer's president, whom Duffy knew personally, concerning Duffy's future plans. It was then ° Garcia testified that he has not yet been given an increase in wages but that as soon as the present proceeding is closed he will expect to get an increase , and also will have the authority to recommend increases for the production workers whose work he supervises. I Intervenor contends that Garcia is not a supervisor under the rulings of the Board in Potash Company of Ame'ica, 97 NLRB 511 and Warren Petroleum Corporation, 97 NLRB 1458. We do not agree . In neither of the cited cases was there any evidence that the alleged supervisory personnel participated in hiring or had the power to change effectively the status of a production worker. In the present case, it is clear that Garcia has exer- cised such powers and that he is responsible for the over -all work of his department. Smith & Barnett, 88 NLRB 740 . Alabama Marble Co , 83 NLRB 1047, 1074. "Armco Drainage & Metal P, oducts, Inc, 77 NLRB 815. ° Salt Lake Refining Company, 86 NLRB 68. 10 The Muller Company , Ltd, 98 NLRB 737. 11 The Intervenor also contends in its exceptions that because all parties , including the Petitioner , had stipulated in the original hearing that Garcia was not a supervisor and was properly included in the unit , Petitioner cannot now repudiate that stipulation because it appears that Garcia's vote may affect the results of the election . Under these circum- stances , Intervenor argues , the Board should hold Petitioner to the original stipulation We find no merit in this contention As it is clear that Garcia before and on the date of the election was performing supervisory functions , this Board is precluded from including him in the unit. The stipulation cannot bind the Board to include a supervisor in a unit with nonsupervisory employees contrary to the express provisions of the Act The Murray Company, 77 NLRB 481; Brewster Pateros Processors, Inc, 73 NLRB 833 666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD decided that Duffy should obtain some experience in the industry by working during the summer. Duffy was put to work as a color mixer, which consisted of mixing ingredients according to a prescribed for- mula. At the end of the summer, he was transferred to the color matching department, where he was engaged in color matching of oil inks. At this time, the Employer's president told Duffy that eventu- ally lie would be used as a salesman, but that in the meantime he should learn more about the techniques of the industry. Duffy worked part time and holidays during his senior year at college punching a clock and being paid on the basis of hours worked. During that year, at the suggestion of the Employer, he attended a number of graphic arts conventions 12 and meetings of technical men in the graphic arts in- dustries. When he was graduated from college in June 1950, Duffy became a full-time employee in the color matching department. In October or November of that year, Duffy was assigned the additional duties of making service calls on customers, during which he also acted as salesman when necessary. He was then put on a weekly salary basis'3 On the date of the election in December 1951, Duffy was still considered as being in line for the selling job. However, in February 1952, being dissatisfied with his financial progress, Duffy left the Employer. At the time of the election, there were two other employees who were color matchers and who made service call S.114 However, the evi- dence shows that the latter were hourly paid and punched a clock, while Duffy was on a salary basis 15 and did not punch a clock. Duffy attended industry conventions for which he was compensated, while the others did not. Duffy attended discussions of technical men at their clubs, at the invitation of the Employer, while the others did not. Duffy was a college graduate, the others were not. Duffy was hired and accepted the job specifically for the purpose of being trained as a salesman. There is no evidence that the others were hired for anything more than production work. The Intervenor urges that although Duffy was in training to be- come a salesman, he was nevertheless employed as a color matcher at the time of the election, and as such was and should be included in the unit. We do not agree. Upon consideration of the entire record, we are of the opinion that Duffy was primarily a salesman-trainee, whose 1 Duffy was paid his expenses while attending these conventions. 13 The change to a salary basis was made at Duffy's request because he did not wish any question to arise with regard to premium pay for overtime . The Intervenor , which was the bargaining agent for the employees including the color matchers , was not notified of this change 14 The votes of these color matchers were not challenged. 15 Duffy received $60 a week for a 40-hour week Other color matchers received from $1.55 to $1 .70 an hour LAMSON CORPORATION 667 position was clearly different from those of the other employees per- forming. color matching work. - We find therefore that as such, his interests were more closely allied with those of the salesmen than with the production workers included in the unit. We therefore adopt the recommendation of the hearing officer that the challenge to his ballot be sustained.16 Because, as the tally shows, a majority of the valid ballots were cast for the Petitioner, we shall certify it as the exclusive bargaining representative of all the employees in the appropriate unit. Certification of Representatives IT Is HEREBY CERTIFIED that Oil Workers International Union, CIO, has been designated and selected by a majority of the Employer's production and maintenance employees at its Philadelphia, Pennsyl- vania, plant, including the head dry mixer, dry mixer and apprentices, head millman, millman and apprentices, table hands and apprentices, assistant aniline man and apprentices, head shipper, assistant shipper, color matcher, receiving clerk, formula clerk, foreman of day pro- duction, foreman of night production, general maintenance man and janitors, but excluding the head of the aniline department, the sales- man-trainee, laboratory employees, chemists, office employees, the technical representative who does selling, watchmen, and all super- visors as defined in the Act, as their representative for the purposes of collective bargaining and that, pursuant to Section 9 (a) of the Act, the said organization is the exclusive representative of all such employ- ees for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment. MEMBERS Houston and Styles took no part in the consideration of the above Supplemental Decision and Certification of Representatives. 16 Brighton Mills, Inc., 97 NLRB 774; Baltimore Transit Company, 92 NLRB 1260. LAMSON CORPORATION and AMERICAN FEDERATION OF TECHNICAL ENGINEERS, AFL, PETITIONER. Case No. 3-RC-83i. August .18, 196 Supplemental Decision and Direction Pursuant to a Decision and Direction of Election, dated February 12, 1952,1 an election by secret ballot was duly conducted on March 12, 1952, by the Regional Director for the Third Region. Upon the conclusion of the election, a tally of ballots was served upon the 198 NLRB No. 8. 100 NLRB No. 109.