Flagg-Utica Corp.

J. T. FLAGG KNITTING COMPANY 211 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act, the Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. 5. The Respondent has not engaged in any unfair labor practice by the discharge of W. A. Lay. [Recommendations omitted from publication. ] J. T. Flagg Knitting Company, Division of Flagg-Utica Corpora- tion and Lodge No. 1189, International Association of Machin- ists, AFL-CIO, Petitioner. Case No. 10-RC-3209. January 23, 1956 DECISION AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Frank E. Hamilton, Jr., 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 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 em- ployees of the Employer. 3. No question affecting commerce exists concerning the represen- tation of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act for the following reasons: The Petitioner seeks to represent, in general, a unit of machine fixers. It would include in the unit the following job classifications: assistant foremen, machine fixers classified as assistant foremen, ma- chine fixers, and their apprentices. It would exclude employees cov- ered by contracts between the Employer and other labor organizations. It is willing, however, to represent oilers now covered by contract if the Board is of the opinion they should be included in such a unit. The Employer contends that the unit requested by the Petitioner is not appropriate, that assistant foremen or machine fixers classified as assistant foremen are supervisors, and that the existing bargaining contract covers any nonsupervisory classifications requested and bars a current election. The contract urged by the Employer is one with Local 378, Interna- tional Ladies' Garment Workers' Union, AFL-CIO, which did not appear at the hearing although notified of the proceeding. The con- tract was negotiated January 15, 1955, to run for 1 year, and covers production and maintenance employees. Part of the contract dealing 115 NLRB No. 24. 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with its coverage-the only portion of the contract in evidence-reads as follows : ... WHEREAS, it is agreed that the Union represents the workers in this industry now -employed, or hereinafter to be employed as production and maintenance workers by the Firm during the effective life of this Agreement, but not including ex- excutives, office force, foremen and assistant foremen, machine fixers being classified as assistant foremen and foreladies... . As the contract is approaching the expiration date of its term, we find, without regard to its coverage, that it is no bar to a determination of representatives at this time. Concerning the contract's coverage and its consequent effect upon the unit question, the meager record before us warrants only a finding that the language of the contract is suffi- ciently broad to cover any machine fixers there may be who are not classified as assistant foremen.' The Employer is engaged in the manufacture and sale of knitted wearing apparel and employs about 1,300 persons. Its various opera- tions at Florence, Alabama, are carried on in several different build- ings. The classifications sought by the Petitioner are located in the finishing operations and in the knitting and winding rooms. The function of a machine fixer-apart from the particular em- ployee classification and the supervisory status of the classification- is to keep in operation the various machines used in the finishing and knitting and winding operations. A machine fixer sets up the ma- chines according to the product desired and observes the machines in use to see that they are working properly and are being operated properly. When necessary, he makes adjustments and repairs. An apprenticeship of about 2 years is required to qualify a man for ma- chine fixing, but -the time varies according to the ability of the individual. The Employer's classification of persons performing the duty of ma- chine fixing is not entirely clear. Employees classified as oilers or oil boys oil the various machines and have some familiarity with the work.2 Apparently, however, apprentices in machine fixing are classified as "fixers," and in this classification train under and assist the assistant foremen in fixing duties. The Employer also seems to contend that persons classified as fixers are apprentice assistant foremen. Some em- ployees have progressed from oilers to fixers; some from operators to fixers. The line of progression appears to be from oiler to fixer to assistant foreman to foreman. 3 The record contains some testimony to the effect that "fixes s" are not covered by the contract and that when an individual became a "fixer " he went out from under the con- tract or gave up membership in the contracting union It is not clear whether such testimony refers to fixers other than those classified as assistant foremen. 2 The Employer's personnel detector testified that an oiler is "almost an apprentice fixer J. T. FLAGG KNITTING COMPANY 213 There seems to be little question that oilers and fixers other than those who are assistant foremen, are nonsupervisory employees, and that foremen, who are departmental heads with authority to hire and discharge, are supervisors. The chief dispute between the parties concerns the status of assistant foremen. In addition to their machine fixing work, assistant foremen have other duties or authority which the Employer contends makes them supervisors. The Petitioner con- tends, on the other hand, that assistant foremen are not supervisors and that foremen are lowest in the Employer's supervisory hierarchy. Assistant foremen are employed in the finishing departments and the knitting and winding rooms. Each of the 3 finishing departments is supervised by a separate foreman; and each of the 3 shifts operated by the knitting division, which includes the knitting room and the separate winding room, is headed by a separate foreman sometimes referred to as a shift foreman. The finishing departments also em- ploy foreladies, who are excluded from the production and maintenance unit and who are not sought by the Petitioner, to expedite the work. Finishing department 1, employing about 150 employees, has 2 fore- ladies, 2 assistant foremen, and 1 fixer; department 3 has 250 employees, 3 foreladies and 2 assistant foremen; department 2 has only 1 assistant foreman and the record does not show its employee complement. The first knitting shift, which employs 17 production employees in the knit- ting room and 10 employees in the winding room, has 3 assistant fore- men and 1 fixer in the knitting room and 1 assistant foreman in the winding room. On the second and third knitting shifts, each employ- ing about 20 or 25 employees, there is 1 assistant foreman in the winding room for each shift and 2 "knitting fixers" in the knitting room for each shift. At the hearing, the Employer's superintendent of knit- ting, winding, and dyeing testified that the "knitting fixers" on the second and third shifts, who had formerly worked on the first shift under an assistant foreman, were actually assistant foremen, working directly under the knitting shift foreman and have authority similar to that of assistant foremen on the first shift. In view of this testi- mony, we find that the "knitting fixers" on the second and third shifts are in fact assistant foremen and we shall consider their status to be that of assistant foremen. The Employer's personnel director testified concerning the working conditions and responsibilities of assistant foremen in general and with specific reference to those in the finishing operations The superin- tendent of the knitting, winding, and dyeing operations gave testimony concerning assistant foremen in the knitting and winding rooms. The personnel director testified that, although some of the functions vary in different departments, primarily the duties and responsibilities of all assistant foremen are the same. 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Assistant foremen have certain special benefits and conditions of em- ployment. All employees are eligible to participate at the same cost in the Employer's insurance program. However, production em- ployees may obtain only a $1,500 policy whereas managerial individuals are entitled to a $10,000 policy. The assistant foremen carry the $10,000 policy, the only classification below foremen which is entitled to the privilege. Assistant foremen, like foremen, receive a 2-week vacation, whereas production and maintenance employees receive only a 1-week vacation. Assistant foremen are carried on the foremen's payroll as contrasted with the hourly payroll. Assistant foremen also attend certain supervisory meetings. The Employer has supervisory meetings attended -regularly by the plant superintendent and foremen and occasionally by assistant foremen. Usually, however, during these top supervisory meetings, the assistant foremen are left in charge of the various departments. The foremen then later hold departmental meetings which are attended only by the foreman and the assistant foremen. In addition to the times when assistant foremen are in charge of the departments due to the foremen's attendance at supervisory meetings, assistant foremen are also in charge when the foremen have to go into other departments or into the personnel offices in the course of their duties or when foremen are ill or on vacation. Concerning the specific authority and responsibility of assistant foremen the personnel director testified that : The finishing foreman was absent from the department 20 to 25 percent of the time and dur- ing such absences an assistant foreman was appointed to be in complete charge of the department, and, at that time, could discharge a produc- tion employee without clearance from anyone ; 60 to 65 percent of the assistant foreman's time is spent in fixing machines and the balance in patrolling the department to insure quality and assist in production matters; the assistant foreman is responsible for the enforcement of plant rules; his recommendations would be given serious consideration, but the seriousness of the offense would determine whether an inde- pendent investigation would be made ; the assistant foreman has authority to authorize "down time" for a machine which would allow payment to the operator during that time; he exercises independent judgment in the assignment of duties; and he may grant time off, but would usually discuss such a request with the foreman so as not to interfere with scheduled production. - The superintendent of knitting, winding, and dyeing testified that: Even if the knitting foreman were present, if need to discharge arose, the assistant foreman in knitting would likely do the discharging; a regular discharge, such as for poor quality work, would require no- discussion, but when it was for something unusual the assistant fore- man might discuss such action with the foreman who would probably J. T. FLAGG KNITTING COMPANY 215 discuss the matter with the employee involved ; responsibility for the knitting room, which has two types of machines, is split between the assistant foremen during the absence of the foreman; assistant fore- men are required to enforce plant rules and to take necessary steps to correct bad work; the foreman and the assistant foremen select em- ployees who are to receive overtime work limited to individuals; the first shift knitting foreman spends 5 to 10 percent of his time fixing machines while 2 of the assistant foremen on the shift spend about 60 percent of their time in fixing and tlic third assistant foreman about 50 percent of his time; the remaining time of the assistant foremen is devoted to supervisory duties. As to the assistant foremen in the winding room the superintendent testified that : These assistant f ore- men are each in charge of a shift in the winding room and have author- ity to discharge any employee who is not doing the job as they feel it should be done ; their recommendation as to discharge would be con- clusive and no independent investigation would be conducted; and about half their time is spent in repairing machinery and the other half is spent seeing that employees are on the job, scheduling the work, making sure the correct yarn is run at the right time, and attending supervisory meetings. Three assistant foremen also testified as to their duties and the authority they exercised. An assistant foreman in the winding room testified that the knitting shift foreman spent no time in the winding room but that he (the assistant foreman) supervised the 14 employees on his shift pursuant to instructions and orders received from the knitting shift foreman; and that he has neither fired nor hired anyone and that his 1 recommendation as to firing was not effective. He testi- fied further, however, that: He would use his judgment on anything which occurred on the spur of the moment; he had stopped two women who were fighting and had reprimanded an employee who left early; it was his duty and responsibility to see that employees did not leave the job until it ran out and that they properly did their jobs; the employees on his shift look to him for instruction and permission in the performance of their jobs; he has been told he was a foreman; and he feels it is part of his job to report employee misconduct.' An assistant foreman on the first shift in the knitting room testified that he spent all his time fixing machines; that the shift foreman makes all assignments of work and when the shift foreman is absent another shift foreman takes over; that he has never been told he was a foreman or assistant foreman with authority to run the department; and that he has never reprimanded, discharged, or disciplined an em- ployee. He stated that he had attended supervisory meetings. 8 This witness, unlike the other assistant foremen who testified, stated that he receives only a 1-week vacation and carries a $1,500 Insurance policy. 216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Another assistant foreman on the first shift knitting room 4 testified that the foreman had told him he was assistant foreman, but he has exercised no supervision or assigned work; that he would report infrac- tions of plant rules occurring during the absence of the foreman; that he has attended supervisory meetings, and that a fixer had been work- ing with him for 4 or 5 weeks learning how to fix machines. The testimony of the assistant foremen set out above indicates that some assistant foremen exercise more supervisory authority than others. It is clear from the entire record, however, that assistant foremen have been given supervisory authority and that they respon- sibly direct employees. In the winding room they are the only per- sons present to direct and advise employees. Accordingly, we find that assistant foremen are supervisors as defined in the Act .5 It appears that most of the individuals employed in machine fixing are assistant foremen whom we have found to be supervisors. As the unit requested is composed primarily of supervisors, it is inappro- priate, and we shall, therefore, dismiss the petition. Moreover, the present record fails to establish that a unit of nonsupervisory machine fixers is appropriate on a craft,' residual, or other basis. [The Board dismissed the petition.] + The parties stipulated that the remaining assistant foremen on the knitting first shift would give substantially the same testimony. G See Mock, Judson, Voehringer Company of North Carolina. Inc, 110 NLRB 437, 441 ; Nebel Knitting Company, 106 NLRB 114, Silver Kivit hosiery Mills, Inc, 93 NLRB 791. 0 Cf. New Bedford Cotton MIgrs Assn, 78 NLRB 319. The Carborundum Company and Office Employees International Union, Local 212, AFL-CIO, Petitioner. Case No. 3-RC-1591. January 23, 1956 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 William J. Cavers, 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 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 em- ployees of the Employer.' 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. 'Oil, Chemical & Atomic Workers, International Union , CIO, and its local 15-12058, herein called the Intervenor, was permitted to intervene at the hearing. 115 NLRB No. 32.