Musgrave Manufacturing Co.

258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Accordingly, as it appears that the Petitioner did not receive a ma- jority of the valid votes cast, we shall certify the results of the election. [The Board certified that a majority of the valid ballots was not cast for International Union of Electrical, Radio & Machine Workers, AFL-CIO, and that said Union is not the exclusive representative of the Employer's employees in the unit found appropriate.] Musgrave Manufacturing Company and Mast-Foos Manufactur- ing Company, Inc.' and International Union, United Automo- bile, Aircraft and Agricultural Implement Workers of America, UAW-AFL-CIO, Petitioner. Case No. 9-RC-3618. July 29,1959 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 Harry D. Camp, 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 [Chairman Leedom and Members Bean and Fanning]. 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. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section (c) (1) of Section 2(6) and (7) of the Act. 4. Mast-Foos and Musgrave each operates a plant in Springfield, Ohio. The Petitioner seeks a single unit of the production and main- tenance employees employed at these two plants. The two companies contend that they are separate employers under the Act, that the re- quested two-plant unit is, thus, not appropriate, and that separate units limited to the employees at each plant are alone appropriate. `There is no history of collective bargaining on either a two-plant or single-plant basis for the companies here involved. Mast-Foos is an Ohio corporation with its main office and plant at 1305 Innisfallen Avenue, Springfield, Ohio. Musgrave, likewise, is an Ohio corporation, with its main office and plant at 2755 Columbus Avenue, Springfield, Ohio. The distance between the two plants is about 6 miles. Orly Musgrave and his wife own all the outstanding stock of the two corporations. Orly Musgrave is the president and treasurer of each corporation, while his wife is the vice president and 1 Herein called Musgrave and Mast-Foos, respectively. 124 NLRB No. 32. MUSGRAVE MFG. CO. AND MAST-FOOS MFG. CO., INC. 259 secretary of both companies . F. C. McGregor is the general manager of the two companies and maintains an office at each plant. Below McGregor, each plant has a separate managerial and supervisory hierarchy with a plant manager in charge of the Mast-Foos operation and a plant superintendent over the Mush ave plant. Mast-Foos is engaged primarily in the manufacture of reel type lawn mowers ; it also makes a small racing car and does job shop work for other manufacturers. Musgrave assembles from parts purchased from other companies, riding rotary type lawn mowers. It buys about 10 percent of its materials from Mast-Foos. Each company handles its own sales 2 and purchases . There is no interchange of employees between the two plants and hiring and discharging is done separately at the plant level. However, overall control of working conditions is indicated by the fact that employees at the two plants receive similar paid holidays and are under the same insurance program and vacation plan. In view of the foregoing , including the common ownership, the interlocking officers, and the centralized control, we find that Mast- Foos and Musgrave constitute a single employer for purposes of the Act.' We further find that the requested two plant unit, as it is, in effect, an employerwide production and maintenance unit, is appro- priate for purposes of collective bargaining.' The parties are in general agreement as to the composition of the unit. However, the Employer would exclude , over the Petitioner's ob- jection, Carl Lyons who, it contends, is a supervisor. At the time of the hearing, Lyons was temporarily assigned to a nonsupervisory job outside the unit, but will , under present plans, return to his regular position in the Musgrave plant when his special assignment is com- pleted. In his permanent position , Lyons is in charge of the "front assembly operation" at the Musgrave plant which employs 8 to 10 workers. He receives his assignment from the plant superintendent in the morning and is responsible for the production of his department. In carrying out his duties, he assigns employees to various tasks and directs their work. There is no evidence that he is under continuing close supervision. Lyons, like the foreman , who the parties agree is a supervisor, reports directly to the plant superintendent . At the hear- ing Lyons testified that prior to May 1958, he was supervisor but at that time his pay checks ceased carrying the word "supervisor" on them and had the word "assembly " added. In consequence of this change, he considered himself demoted .' However, at no time was his 2 Musgrave sells its entire output to Musgrave , Inc., another Ohio corporation owned by Orly Musgrave and his wife. Musgrave, Inc., is wholly engaged in selling and has no factory production or maintenance employees. 3 See The Family Laundry, Inc., 121 NLRB 1619. " See Western Electric Company, Incorporated, 98 NLRB 1015, 1032. 5 The Employer has since that time further altered its checks which presently bear no classification designation. 260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD wage rate, which exceeded that of any of the employees in the "front, assembly operation" cut, and he was never notified that he had been demoted. Furthermore, he testified that, even after his "demotion," the employees in the department "kind of look towards" him. In view of the foregoing, we believe that Lyons responsibly directs the work of the employees in his department in a nonroutine manner. Accord- ingly, we find he is a supervisor. He is, therefore, excluded from the unit., A question was raised as to the supervisory status of Mable Cook. She spends most of her time doing regular assembly work. However, as an experienced employee, she trains new employees and also helps her coworkers when necessary. There is no evidence that Cook pos- sesses any supervisory authority. At most, the relationship between Cook and other employees is that of the skilled to the less skilled worker. Accordingly, we find that she is not a supervisor. She is, therefore, included in the unit.7 Accordingly, we find that a unit of all production and maintenance employees employed at the Employer's plants at 2755 Columbus Ave- nue and 1305 Innisfallen Avenue, Springfield, Ohio, excluding all service department employees, office clerical employees, professional employees, all guards, and supervisors as defined in the Act, is appro- priate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 5. The Employer's operations are somewhat seasonal in nature. Employment at each plant usually varies between a high of approxi- mately 40 employees during late winter months to a low of about 15 during the summer. Employment picks up in November; layoffs com- mence in late March or early April. However, production continues throughout the year and during the low season there is a represen- tative complement of employees in each plant manufacturing or as- sembling lawn mowers. Neither of the parties requests any delay in the election because of the fluctuating nature of the employment of workers. Under these circumstances, and as we find below that some of the employees involved would be eligible as temporary laid off employees, we believe it appropriate to direct an immediate election.,, However, the Petitioner requests that we depart from our usual eligibility date and apply instead the last payroll period preceding the filing of its petition, thereby making eligible to vote the employees laid off in a recent cutback in operations, who were about 10 in num- ber at the time of the hearing. The Employer takes the position that these employees have no reasonable expectancy of reemployment and, thus, should not be eligible. In support of its position, witnesses for 6 See, The Robert Becht Company, 111 NLRB 1013. 1018. 7 See, United States Gypsum Company, 119 NLRB 1415, 1420-1421. FSee Massachusetts Mohair Plush Company, 112 NLRB 41, 43-44; compare Evan Hall Sugar Cooperative, Inc., 97 NLRB 1258, 1261. FLORIDAN HOTEL OF TAMPA, INC. 261 the Employer, testified in conclusionary language, that the laid-off employees had no "reasonable expectation of recall in the near future." Furthemore, there is no evidence that the laid-off employees are car- ried on any seniority or formal preferential hiring list. However, the plant superintendent for the Musgrave plant testified that, in hiring for the busy season, he gave definite preference in recalling the "really good" employees previously laid off. Moreover, the record shows that, of those employees recently laid off at Musgrave, all had worked for the Employer in previous years, had been laid off, and then recalled for the past busy season. Under these circumstances, we find that these employees have a reasonable expectancy of recall in the foreseeable future and thus are eligible to vote in the election herein directed.' The record is not clear as to the actual practice relating to the recall of laid-off employees at the Mast-Foos plant. It indicates that the employees recently laid off there had not previously worked at Mast- Foos, but the witness who so testified did not know if they had pre- viously worked at the Musgrave plant. Moreover, there is some evi- dence that one of the employees allegedly recently laid off was, in fact, discharged for cause. In these circumstances, we find the record in- sufficient to determine whether employees laid off at Mast-Foos be- cause of the seasonal cutback in operations have a reasonable expec- tancy of recall in the foreseeable future, and thus retain their status as employees. We shall, therefore, permit those who have been so laid off at Mast-Foos in the recent reduction of employees to vote sub- ject to challenge.10 In view of this determination no useful purpose appears in support of our establishing an eligibility date in the elec- tion directed below different from that prescribed in the usual case. The Petitioner's request that we do so is, therefore, denied. [Text of Direction of Election omitted from publication.] 9 These employees are Charles Brubaker, Otis Cochran, Fern Major, Joseph Pagent, and James Stelzer. H. Finney, who is on sick leave, is also eligible to vote. Foley Manufacturing Company, 115 NLRB 1205. 19 See Radio Corporation of America, 121 NLRB 633; Massachusetts Mohair Plush Company, 112 NLRB 41, 43. Floridan Hotel of Tampa, Inc.' and Hotel and Restaurant Em- ployees and Bartenders Union, Local No. 104, Hotel and Res- taurant Employees and Bartenders International Union, AFL- CIO,2 Petitioner. Case No. 12-RC-508. July 30, 1959 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 Joseph V. Moran, hearing 1 The Employer's name appears as corrected at the hearing. 2 The Petitioner's name appears as corrected at the hearing. 124 NLRB No. 34.