New England Processing Unit

NEW ENGLAND PROCESSING UNIT 899 :Swift & Company, doing business as New England Processing Unit and United Packinghouse Workers of America , Local 165, AFL-CIO, Petitioner. Cases Nos. 1-RC-560/. and 1-RC-5625. September 8, 1959 DECISION AND DIRECTION OF ELECTIONS Upon petitions duly filed under Section 9(c) of the National Labor Relations Act, a consolidated hearing was held before John R. Coleman, 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 these cases to a three- member panel [Members Rodgers, Bean, and Fanning]. Upon the entire record, in these cases, 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 9(c) (1) and Section 2(6) and (7) of the Act. 4. The Petitioner is seeking a unit of office clericals in Case No. 1-RC-5625 and a unit of plant clericals in Case No. 1-RC-5624.1 The Employer, a division of Swift & Company, located in Somerville, Massachusetts, is engaged in processing meat products and in their sale and allocation to commercial purchasers and other sales units of Swift. It employs approximately 240 employees of which, the Peti- tioner asserts, 12 are office clerical employees 2 and 8 are plant clerical employees. The Employer asserts that neither unit is appropriate as all individuals who would comprise the proposed units are either supervisory, managerial, and/or confidential employees. Office Clericals The stenographer: The Employer contends that the stenographer, Helen Rogers, is a managerial employee. She occupies an office with the two "commercial men" who are responsible for the purchase of raw materials, and for the sales and allocation of the finished products. 1 The Employer contends that the Petitioner should not be permitted to represent either the office clericals or the plant clericals , because it presently represents the Employer's production and maintenance employees in another unit. In accord with Board precedent upholding the right of both office clericals and plant clericals to bargain through what- ever bargaining agent they choose , including the organization which currently represents their Employer's production and maintenance employees, we find no merit in the Em- ployer's contention. Wilson & Co., Inc., 97 NLRB 1388 ; Swift & Company, 56 NLRB 147. 2 The parties stipulated that one of the office clericals, the secretary to the plant manager, is to be excluded as a confidential employee. 124 NLRB No. 110. 900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD She assists them by compiling price lists, and by allocating certain products in short supply to the other Swift sales units. She also occa- sionally takes dictation and handles correspondence for the plant manager. The Employer asserts that her allocation duties require the exercise of independent judgment in carrying out and effectuating "the major policies of management in their primary function of sales" and that she is, therefore, a managerial employee. We disagree. The fact that some of her duties involve the exercise of discretion does not necessarily indicate managerial status.' Moreover, the Board has held ' that managerial employees are those who formulate , determine, and effectuate the Employer's policies, and the record clearly shows that she does not meet those standards. Accordingly, we find that Rogers is not a managerial employee and shall include her in the unit. The payroll clerk: The duties of the payroll clerk are to prepare payroll sheets, income tax and bond purchases records, weekly health insurance vouchers, and wage information records. The Employer asserts that she is a confidential employee because she is required to investigate all discrepancies in pay, and that these are potential griev- ances under the existing contract with the production and maintenance workers. The Board has consistently held that an employee classified as confidential must "assist and act in a confidential capacity to per- sons who formulate, determine, and effectuate management policies in the field of labor relations." s Performance of the ministerial tasks summarized above do not establish the payroll clerk as a confidential employee. We shall, therefore, include her in the unit.6 Miscellaneous office clericals : The office assistant -voucher clerk shares an office with the office manager. He checks charges from Swift plants and other sales units, investigates discrepancies between receiv- ing records and invoices , and certifies discounts . He also maintains cash books and production sheets and writes, but does not sign, pay- roll checks and sickness and accident checks. The Employer asserts that because the sickness and accident payments are a subject of grievances, and because of the type of information available to him, he is placed in a situation "where his loyalties would be strained," and thus should be excluded . The three office assistants assist in the cod- ing and vertification of sales tickets , writing of service truck logs, and other miscellaneous duties. The two comptometer operators verify inventories, prices, and employee sales, and act as relief payroll clerk and order writer. The order writer types shipping orders, assists the comptometer operators, computes commissions, and writes, but does not sign, checks for supplies and transportation charges. The man- s Eastern Corporation, 116 NLRB 329, 332. 4 American Federation of Labor and Congress of Industrial Organizations , 120 NLRB 969, 973. 6 The B. F. Goodrich Company, 115 NLRB 722. 6 Arden Farms, 117 NLRB 318. NEW ENGLAND PROCESSING UNIT 901 ager's clerk picks up and delivers mail, maintains shortage records, and answers the phone. The relief office assistant assists in the veri- fication of truck tickets, credit vouchers, and certain charges, and also acts as relief messenger. Contrary to the Employer's contention, we find that none of the foregoing employees is a managerial or confidential employee within the Board's definition of those terms. The fact that the office assistant- voucher clerk writes the sickness and accident checks would in no way, make him a managerial or confidential employee.' Accordingly, we shall include the office assistant-voucher clerk, the three office as- sistants, the two comptometer operators, the order writer, the man- ager's clerk, and the relief office assistant. Plant Clericals Assistant foreman of the curing department : The Employer con- tends that the assistant foreman, Minehane, is a supervisor. He is in charge of unloading and receiving meat products from railroad cars and trucks. He spends approximately 75 percent of his time in the responsible direction of his four subordinates and has the authority to recommend discipline. In this circumstance, we find that he is a supervisor and shall exclude him. Clerk of the sliced bacon department: It is the contention of the Employer that this employee, Cogan, is a supervisory, confidential, and managerial employee. Cogan had been a foreman for many years, but approximately 21/2 years ago, the department in which he was then working was eliminated, and he was given the opportunity to become a clerk in the sliced bacon department, with the understanding that he would ultimately replace the present foreman. When transferred, Cogan's salary was not reduced, and consequently he now receives sub- stantially more pay than the other clerks. His primary clerical duties consist of compiling reports relating to intraplant transfers of products, inventories, and overtime figures. Although he "orders" approximately $200,000 worth of supplies each year, the record shows that the Employer has a regular purchasing agent and that Cogan merely submits forms indicating items in short supply. He has no authority to select the quality of goods or decide from whom the goods will be purchased. A witness for the Employer testified that the authority Cogan had when he was a foreman was never revoked, and that he still has the authority to effectively recommend discipline, that he may remove men from their jobs, and that he has continued to receive "premium pay," a type of incentive pay given only to supervisory employees. 4 See Swift & Company, 119 NLRB 1556, 1568, where the timekeepers who actually calculated the sickness and accident pay for the production and maintenance employees were included in a unit of plant clericals. 902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD He further testified that when the foreman goes on vacation or attends: meetings, Cogan is in charge of the 35 or 40 employees within the de- partment. This was estimated to be about 15 percent of his time. Cogan testified that he was never informed that he had the authority to direct, fire, discharge, or discipline employees or to make recom- mendations relating thereto. Cogan further testified that during his foreman's vacation, a Mr. Cox took over the department, and that before attending meetings, the foreman plans the work to be accom- plished and Cogan merely follows his instructions. A short time be- fore the hearing, Cogan was assigned extra duty as clerk for another' department. ' He found that this added work made it impossible for him to spend any portion of his time in supervisory activities whatso- ever and consequently he had his name removed from the "premium pay" list. When this fact came to management's attention, some 3 weeks later, his name was restored to the list, but his duties have re- mained the same. Although Cogan's status is not completely free from doubt, we be- lieve that his time is now devoted almost entirely to his clerical duties,, and that any supervision he might perform is infrequent and sporadic, and is insufficient to bring him within the statutory definition of a supervisor." It is also evident that Cogan's clerical duties are insuffi- cient to clothe him with the status of a confidential or managerial em- ployee. We shall include him in the unit. The shipping department clerk; the part-time standards checker: It is urged by the Employer that these two individuals should be ex- cluded on the ground that they are supervisors. The shipping depart- ment clerk processes orders through the shipping department, pre- pares bills of lading, and maintains weekly and monthly time records. He also has the duty to notify various independent trucking concerns when and where to make certain shipments, but his discretion as to which trucker to choose is limited to those previously approved by the Employer. He directs the work of the five checkers when the ship- ping department foreman is off the floor, which is about 20 percent of the time. However, during the foreman's absences, the shipping clerk has no authority to hire, fire, discharge or discipline the checkers, or to make effective recommendations relating thereto. The Employer asserts that Driscoll, the part-time standards checker, is a supervisor because he substitutes for the head of the standards department when the latter is ill or on vacation. In these circumstances, we find that neither the clerk in the shipping department nor the part-time standards checker are supervisors as any supervisory authority they might possess is at the most, exercised infrequently and irregularly.' 8 United States Gypsum Company, 116 NLRB 1771, 1773. e The Clinton Construction Company, 107 NLRB 946; Sebastopol Cooperative Cannery, 111 NLRB 530. NEW ENGLAND PROCESSING UNIT 903 The standard checkers and the standards clerk: The two standard checkers observe jobs being performed by the production and mainte- nance employees, take time studies and compare these job performances with preestablished standards. A witness of the Employer testified that their jobs required discretion in that they must make allowances for delays or breakdowns and determine what standard should be ap- plied to a given situation . The standards clerk makes computations from the sheets submitted by the standard checkers for weekly re- ports and analyses. It is the Employer's contention that these three employees are confidential or managerial employees because their work bears on the incentive pay received by the production and maintenance workers who are presently represented by the Petitioner. As these employees merely compare job performances with the Employer's preestablished standards and record the same, and do not, in any way, formulate, determine, and effectuate new standards or policies relating to labor relations or any other field, we find the Employer's contention without merit,10 and shall, therefore, include the two standard checkers and the standards clerk in the unit.ll Clerk in the table-ready -meats department : This employee is re- sponsible for the weekly and monthly profit-and -loss reports for each item produced within the table-ready-meats department , relating to labor costs, overhead, inventories, and similar subjects. He also orders supplies estimated at $250,000 yearly, but like Cogan, he has no control over the quality and merely submits a list of items in short supply. As it is clear that the clerk in the table-ready-meats depart- ment is neither a confidential nor managerial employee, we shall include him.i2 We find accordingly that the following employees constitute appro- priate units for purposes of collective bargaining, within the meaning of Section 9(b) of the Act : All office clerical employees at the Employer's Somerville, Massa- chusetts plant, including the stenographer, the payroll clerk, the office assistant-voucher clerk, the office assistants, the comptometer opera- tors, the order writer, the manager's clerk , and the relief office assist- ant, but excluding the secretary to the plant manager, all other em- ployees, guards, professional employees, and supervisors as defined in the Act. All plant clerical employees at the Employer 's Somerville, Massa- chusetts plant, including the clerk in the sliced bacon department, the 10 Chapman Valve Manufacturing Company , 119 NLR]. 935, 937; The Monarch Machine Tool Co ., 98 NLRB 1243. n The Employer asserts that the two standard checkers and the standards clerk should not be included in the unit with the other plant clericals because of their educational differences and separate supervision . As they are in the same department as the other plant clericals and as their interests and working conditions are similar to those of the other employees in the unit , we shall include them . Plankinton Packing Company, 116 NLRB 1225. 25 Plankinton Packing Company, supra, at 1229. 904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD shipping department clerk, the part-time standards checker, the standard checkers, the standards clerk, and the clerk in the table- ready-meats department, but excluding the assistant foreman of the curing department, all other employees, guards, professional employ- ees, and supervisors as defined in the Act. [Text of Direction of Elections omitted from publication.] Western Rolling Mills Division of Yuba Consolidated Industries, Inc.' and United Steelworkers of America, AFL-CIO, Peti- tioner. Case No. 21-RC-5846. September 8, 1959 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, under Section 9(c) of the National La- bor Relations Act, a hearing was held before Floyd C. Brewer, hear- ing officer. The hearing officer's rulings 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 Rodgers, 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 organizations involved claim to represent certain em- ployees of the Employer. 3. A question affecting commerce exists concerning representation 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 Employer and the Intervenor 2 urge that their current collec- tive-bargaining agreement is a bar to the petition. In September 1958 Employer began construction of a rolling mill at Tempe, Arizona, which was substantially completed in January 1959. In the first week in February 1959 the Employer began hiring production and maintenance employees and at the end of its first weekly payroll period, February 8, 1959, the Employer had 1S such employees at work. In a letter dated February 4, 1959, the Inter- venor demanded recognition as the collective-bargaining representa- tive of the employees then employed. At the request of the Employer for proof of representation, on February 5, 1959, the Intervenor obtained and presented to the Employer authorization cards from 17 of the 18 employees and the Employer entered into a recognition 'The Employer's name appears as corrected at the hearing, 2 The International Association of Bridge , Structural and Ornamental Iron Workers, Shopmen's Local #740 , AFL-CIO, intervened on the basis of its current collective- bargaining agreement with the Employer. 124 NLRB No. 111.