The Stearns and Foster Co.

446 DECISIONS OF NATIONAL. LABOR ' RELATIONS BOARD than that already considered. Nor would refusal to cooperate, indicated by a driver, probably Wallenhaupt, who according to an unidentified employee "used to be a Drivers' steward," constitute a violation by the Union. No evidence in support of the allegations was offered concerning Pilot. Freight Carriers, Inc., Great Southern Trucking Company (one of whose employees testified), or other employers referred to in the complaint. On the issue of induce- ment by the Union generally, Mathis testified that he knew of a number of cases where members did handle Genuine Parts _ freight after the resolution was passed, but that the Union took no action against them. He testified also that some employers (he did not recall who) reported that some members wanted to handle such, freight and inquired whether the Union would take action against them; and that he replied in the negative. Several employees, called by the Union (with many others available), testified that the Union and its stewards did not tell the men that they were not to handle Genuine Parts freight, but on the contrary did tell them, when they asked, that they had the right to handle it or not as they chose. (Earlier, the stewards had told them that they didn't know whether or not they should handle it; and the men did.) What weight such testimony would carry in the face of inducement or encouragement of other employees need not now be determined. In the absence of proof of such inducement or encouragement, it is unnecessary to evaluate it although it was received for its bearing on the issue of unlawful intent or objective. Various provisions of the Union's bylaws and its International's constitution have been cited as relevant. It is not claimed that these are in violation of the Act. Nor do I find that they provide proof or basis for reasonable inference of violation in the acts which are alleged to be violative. Were the General Counsel to urge that handling of unfair goods would violate the provisions against disrupting or injuring the Union or would constitute disobedience or disloyalty, and would lead to imposition of penalties on the members involved, more than such argument would be necessary to convict the Union of inducement or encouragement in the face of the testimony received. Nor on the record before us, can I adopt the argument "that there were some Sort of instructions, perhaps- explicit or perhaps. implicit, in the other actions of the Union, and that these instructions were understood by the stewards and by the individual members who ,attended the meeting, also that they were not relieved of this understanding by any statement that . . . they should make individual and voluntary decisions on whether or not they should handle the freight." Upon the basis of the above findings of fact, and upon the entire record in the case, I make the following; CONCLUSIONS OF LAW 1. Genuine Parts Company is engaged in commerce within the meaning of, the Act. 2. Truck Drivers and Helpers Local Union No. 728, International Brotherhood of Teamsters, Chauffeurs, Warehousemen- and Helpers of America, AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 3. The Union has not engaged in unfair labor practices within the meaning of Section 8 (b) (4) (A) of the Act. [Recommendations omitted from publication.] The Stearns and Foster Company and Textile Workers Union of America, AFL-CIO, Petitioner The Stearns and Foster Company, Petitioner and Employees' Association of The Stearns and Foster Company and Textile Workers Union of America, AFL-CIO. Cases Nos. 9 IBC-'05'0 and 9 RM-148. November 8,1957 DECISION AND DIRECTION Pursuant.to the provisions of a stipulation -for certification upon consent election, duly executed by the parties hereto on March 15, 119 NLRB No. 51. THE STEARNS AND FOSTER COMPANY 447 1957, an election by secret ballot was conducted on April 5, 1957, under the direction and supervision of the Regional Director for the Ninth Region among the employees in the stipulated unit. At the conclusion of the election, the parties were furnished a tally of ballots which showed that of approximately 665 eligible voters, 643 cast ballots, of which 298 were for Employees' Association of The Stearns and Foster Company, 291 were for Textile Workers Union of America, AFL-CIO, 16 were against both participating labor organi- zations, 34 were challenged, and 4 were void. As the challenged ballots were sufficient in number to affect the results of the election, the Regional Director, acting pursuant to the Board's Rules and Regulations, made an investigation of the issues raised by the challenges, and thereafter, on May 28, 1957, issued and served upon the parties his report on challenged ballots, in which he recommended to the Board that the challenges to 13 ballots 1 be over- ruled, 1 challenge 2 be sustained, and that a hearing be ordered on the issues raised by 20 challenges. He further recommended that the Board defer opening and counting the ballots of employees found to be eligible voters until a final determination with respect to the remaining challenges, as this latter group would still be determinative of the results of the election. No timely exceptions having been filed to the Regional Director's report, the Board adopted his report and recommendations. Accordingly, the Board on June 11, 1957, issued an order directing hearing on the challenged ballots. A hearing was held on July 2, 1957, before A. Bruce Hunt, Trial Examiner, acting as hearing officer. All parties appeared and par- ticipated at the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. On August 15, 1957, the hearing officer issued and served upon the parties his report and recommendations, a copy of which is attached hereto, in which he found that 7 employees casting challenged ballots were guards and that 1 challenged ballot 4 was cast by a supervisor within the meaning of the Act. Accordingly, he recommended that the challenges to their ballots be sustained and that the ballots not be opened or counted. He further found that two voters 5 were not supervisors and recommended that the challenges to their ballots be overruled. At the hearing the challenges to 10 of the ballots' were I Nathan J. Ballinger , John L. Bessenbacher, Netta Brock , Steve Denton , John R. Greene, Loraine Hicks, Clarence Mason . Robert Pease , Arthur R. Rodgers , Helen C. Taylor, William A. Stewart , Ervin Uhrig, and Charles Wright. 2 Joseph H. Guinn. 3 John A . Besch. Everett Claunch, Wofard Lee , James A. Keaton, Roy Lee Stout, Edgar T. Showell , and Charles Wiley. 4 Robert A . Dailey, Jr. " Edward E . Martin and Ralph Al. Eggers. 3 Cleave Campbell , Minnie Doan , Lester B . Engel , George R . French , Russell C . Geihls, Albert D. Mason , John B. Noe, Clarence Showell , Mildred Stall , and Charles Weisbrod. 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD withdrawn, and the hearing officer recommended approval of the withdrawal of such challenges. The Board has reviewed the hearing officer's rulings made at the hearing and finds that no prejudicial error was committed. The Board has considered the hearing officer's report, the exceptions there- to and supporting briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the hearing officer insofar as they are consistent with the findings and conclusions herein set forth. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Rodgers and Jenkins]. 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 represen- tation of employees of the Employer within the meaning of Section 9'.(e) (1) and Section 2 (6) and (7) of the Act. 4. The following employees of the Employer, as stipulated' by the parties, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act: All' production and maintenance employees of the Employer at Lockland, Ohio, excluding- office clerical employees, all guards, pro-: fessional employees, and all supervisors as defined in the Act. We agree with the hearing officer's finding that Dailey is a super- visor for the additional reason that.the record shows he takes the place of the foreman of the department in the latter's absence and at other times acts' as the foreman's assistant as well as checking: the - work. of all employees' in the department. He is classified on the Employer's payroll as acting foreman and checker and has at least one leadman in his department. In view of the foregoing, and' the entire record, we find that Dailey is a supervisor within the, meaning of the Act as found by the hearing officer.' . As we have overruled the challenges to 25 ballots 8 and, as the out- come of the election depends on the consideration of these ballots, we shall direct that these ballots be opened and counted. [The Board directed that the Regional Director for the Ninth Region shall, within ten (10) days from the date of this Direction, open and count the ballots of Nathan J. Ballinger, John L. Bessen- 7 See Gary Steel Products Corporation, 116 NLRB 1192, 1194; River Brand Rice Mills, Inc.,'112 NLRB 1349, '1351: . 8 These ballots were cast . by the individuals listed in footnotes 1, 5, and 6. THE STEARNS AND FOSTER COMPANY 449 bather, Netta Brock, Steve Deaton, John R. Greene, Loraine Hicks, Clarence Mason, Robert Pease, Arthur R. Rodgers, Helen C. Taylor, William A. Stewart, Ervin Uhrig, Charles Wright, Edward E. Mar- tin, Ralph M. Eggers, Cleave Campbell, Minnie Doan, Lester B. Engel, George R. French, Russell C. Geihls, Albert D. Mason, John B. Noe, Clarence Showell, Mildred Stall, and Charles Weisbrod, and serve upon the parties a supplemental tally of ballots.] REPORT AND RECOMMENDATIONS On April 5, 1957, pursuant to a stipulation for certification upon consent election, the Regional Director for the Ninth Region conducted an election among the employees in the appropriate unit. No timely objections to the election were filed by any of the parties. The tally of ballots showed that of approximately 665 eligible voters, 643 cast ballots as follows: 298 for the Employees' Association of The Stearns and Foster Company, 291 for the Textile Workers Union of America, AFL-CIO,' herein called respectively the Association and the Union, and 16 against the 2 labor organizations, with 34 challenged and 4 void. On May 28, 1957, the Regional Director issued his report on challenged ballots in which he recommended to the Board inter alia that 1 challenge be sustained, that 13 be overruled and that a hearing be held concerning the remaining 20 challenges. No exceptions were filed to the report and the Board adopted it. On June 11, the Board issued an order directing hearing, and pursuant thereto I conducted a hearing at Cincinnati, Ohio, on July 2. All parties were represented by counsel and were afforded full opportunity to participate. On August 5, the Employer, the Association and the Union filed briefs. Upon the entire record in the case, and from my observation of the witnesses, I. make the following: FINDINGS AND CONCLUSIONS A. The issues The Board's order directing hearing provided that evidence be taken with respect to the issues raised by challenges to 20 ballots. Those challenges were filed by the Union which asserted that 7 of the voters were guards and 13 were supervisors. At the hearing, however, the Union withdrew 10 of the challenges, all involving alleged supervisors who are named in the footnote.2 B. Employees challenged as guards These seven employees, classified by the Employer as watchmen, are named Besch, Claunch, Lee, Keaton, Stout, Edgar T. Showell, and Wiley. If they are guards in the statutory sense, they are not entitled to vote' in the election. , The appropriate unit is as follows: All production and maintenance employees of the Employer at Lockland, Ohio,. excluding office clerical employees, all guards, professional employees, and. super- visors as defined in the Act. The pertinent portion of Section 9 (b) of the Act reads as follows: Provided, That the Board shall not . . . (3) decide that any unit is appropriate for such [collective bargaining] purposes if it includes, together with other employees, any individual employed as a guard to enforce against employees and other persons rules to protect property of the employer or to. protect the safety of persons on the employer's premises; . . . .There was received in evidence a document entitled "GENERAL RESPONSI-. BILITIES OF WATCHMEN" which was posted at various places in the Employer's plant at times material. It provides, in part: I The Union-Petitioner and the Employees' Association are herein called, respectively, the Union and the Association. 2 Campbell, Doan, Engel, French, Geihls, Mason, Noe, Clarence Showell, Stall, and: Weisbrod. 476321--58-vol. 119-30 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. To make specified rounds of the plant, observing every room of every building to be sure plant is in a satisfactory condition : so far as can be observed. SATISFACTORY CONDITION is as follows: .. . [provisions relating inter alia to fires, fire hazards , pipe leaks, unat- tended machinery in operation , and points of ingress and egress.] (f) That plant rules are observed by employees : such as visiting other departments than that in which employee is working: smoking and/or drinking : reading extraneous reading matter , safety, etc. (h) That there is no entry onto plant property by unauthorized persons. (i) That there is no condition that would cause injury to personnel. (j) That employees use proper gates for entering and leaving Plant. (k) That there is no property taken from the Plant without proper pass .3 2. When any of the above items are NOT in satisfactory condition , it should be handled in the following manner: (a) Condition to be handled by watchman when possible and practical. Written notice of condition to be sent to or given to Maintenance Super- visor. (b) A condition or conditions that need immediate attention and CANNOT be taken care of by watchman , should be reported to persons responsible at once or call for assistance from other watchmen , foreman or employees present. (c) All other conditions, with details, to be sent to Maintenance Super- visor in writing. 4. Passes. (e) If any employee refuses to comply with . . . [requirements that employee removing property from plant shall have a pass therefor, that pass be given to watchman, and that watchman verify that property is that described in the pass, watchman shall] make a full, written report to Mr. Foster - Stearns as soon as possible. Get names of witnesses, if any. 5. There seems to be some misunderstanding as to the Watchmen 's duties in regard to employee's behavior in the Plant. It is important for the well being of the Company that an employees [sic] stays on his job, in an alert manner: and does not sleep, read or otherwise neglect his job. If you observe any such condition, you should report the facts to the employee 's foreman and/or Supervisor. DO NOT approach the employee personally, as many of them will resent your cooperation even though it is for their own good. Leave it up to the employee 's superior to settle with the individual. Make a note of your action on your daily report sheet. All foremen are to be notified by their Supervisor that it is the duty of watchmen to tell them (the Foreman or Supervisor ) of any neglect of work by an employee. The following doors and/or gates are the only ones authorized for entrance and exit of Plant: * * * * * * * Watchmen are responsible to report violations of the above [provision relating to doors and/or gates]. The seven watchmen wear distinctive caps and badges but are not armed. The Employer and the Association, pointing to paragraphs 4 (e) and 5 of the document, assert that the watchmen do not enforce, nor have authority to enforce, any plant rules, but are monitors who report to management . It is apparent, however, that while the watchmen are not authorized to use force to require that an employee not remove articles from the plant without a pass, the watchmen do stop employees who are departing with articles and do insist that authorization for the removal be shown.4 It is apparent , too, that paragraph 5 of the document , in instructing watchmen not to approach employees personally , relates to an employee's neglect s In the document , this provision is incorrectly lettered (h). 4 Upon one occasion an employee attempted to leave the plant with articles for which he did not have a pass and a watchman took possession thereof until the employee had reentered the plant and secured a pass. THE STEARNS AND FOSTER COMPANY 451 of his job, as set out - in that paragraph , and does not relate to the duties of watchmen in other respects. In any event, the fact that in certain instances the watchmen report rule-infractions is a circumstance which reflects their method of participation in enforcement of rules, not that they are without responsibility in that field. Cf. Louis F. Dow Company, 111 NLRB 609. I find that the watchmen are guards within the meaning of the Act. Although their duties with respect to fires and fire hazards may not require such a finding, Drexel Furniture Company, 116 NLRB 1434, 1437, their added responsibilities relating to attempts by unauthorized persons to enter the plant , the use of proper entrances and exits by employees, and the prevention of thefts of the Employer's property, necessitate the conclusion that the watchmen are guards , Drexel Furniture, supra; C. V. Hill & Company, Inc., 76 NLRB 158, 164-5; Allen B. Dumont Laboratories, Inc., 88 NLRB 1296. C. Employees challenged as supervisors 1. Robert A. Dailey, Jr. Dailey works on the day shift in the sorting department where mattresses and box springs are sorted preparatory to filling customers' orders. He is classified by the Employer as acting foreman and checker. The foreman of that department is Harvey Farrell and, according to the Employer, Dailey acts as a checker 5 when Farrell is in the department and as a leadman when Farrell is absent. The Employer's testimony, uncontradicted in some respects , is to the effect that Farrell is absent from the department only about 5 percent of his working time; that, upon occasions when Farrell is absent , Dailey relays Farrell's instructions to 15 to 18 employees ; that Dailey does not possess the indicia of supervisory status; and that Dailey is compensated at the same rate as Ralph Eggers, a nonsupervisory employee discussed below. Were there no additional evidence , I should be inclined to recommend that the challenge to Dailey's ballot be overruled upon the ground that it has not been shown that he is a supervisor . There is, however, the matter of Dailey's participation in affairs of foremen . An educational or training organiza- tion called the Foremen's Club, which was initiated and is operated by supervisory employees, holds monthly meetings at the plant and admits to membership foremen and employees who are being trained to become foremen . Such subjects as human relations , methods of increasing production, and improvement in quality of products are discussed at the meetings . Dailey is president of the club . It thus appears that Dailey has been designated by the Employer as an acting foreman and by supervisory employees as one of their group, that he is so known to rank-and-file employees , and that he was made a member of the Foremen 's Club because he was a foreman or was being trained to become one. Under all the circumstances, I believe that Dailey should be excluded from the appropriate unit as a supervisory employee. 2. Edward E. Martin Martin works on the night shift as a checker and leadman in the sorting depart- ment. His foreman, Farrell, works on the day shift. Martin is the leader of about four employees, but the directions which he gives to them are routine in nature, being instructions which he relays from Farrell , and he does not possess the indicia of supervisory authority . His hourly rate of pay is less than that of Eggers. I find that Martin is not a supervisor within the meaning of the Act. 3. Ralph M. Eggers Eggers works on the night shift as a leadman in the packing department. His foreman, Robert Osner , is not .assigned to that shift . and Eggers , as leadman, works with about nine employees . Eggers does not have the . authority of a supervisor, however, nor may it be found that he responsibly directs employees who work under him. He does production work as an inspector of mattresses and box springs, and his direction of employees is routine in nature , being confined to relaying instruc- tions from Osner and to correcting mistakes in packing . In the event of a matter requiring disciplinary action, Eggers has instructions to telephone a superior or to make a written report to Osner, and subsequently Eggers and the affected employee will be interviewed simultaneously by management representatives , but Eggers is not authorized to recommend disciplinary action. I find that Eggers is not a supervisor within the meaning of the Act. [Recommendations omitted from publication.] 6 A checker checks to ascertain whether other employees have sorted the articles properly.