Monarch Rubber Co., Inc.

482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Monarch Rubber Company, Inc. and United Rubber, Cork, Lino- leum and Plastic Workers of America , AFL-CIO, Petitioner. Case No. 5-RC-2933. October 28, 1960 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 Louis Aronin, hearing officer. The hearing officer's rulings made at the hearing are free from prej- udicial 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, Fanning, and Kimball]. 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 herein claims to represent cer- tain employees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of certain employees of the Employer within the meaning of Sections 9(c) (1) and 2(6) and (7) of the Act. 4. The Employer is engaged in the manufacture of rubber heel and sole material as well as some plastic products. The Petitioner seeks to represent a unit of all production and maintenance employees, including plant clerical employees and laboratory helpers at the Employer's Baltimore, Maryland, plant, but excluding all office clerical employees, guards, and professional employees 2 The Employer agrees that the unit sought is appropriate except that the Employer would include and the Petitioner exclude all "seniors," two laboratory i The hearing officer revoked three subpenas , which sought to have the Employer pro- duce certain payroll, personnel , and profit-sharing records. He based his revocation on the ground that they called for the production of records and documents not necessary to a determination of the issues . The Board has reviewed the revoked subpenas and affirms the hearing officer. See Section 102.66 ( c) of the Board's Rules and Regulations ( Series 8, 1959). The hearing officer denied the Employer' s motion to quash Petitioner's subpena requesting records of bonus payments . In effect the Employer complied with this sub- pena by testifying as to all bonuses earned in 1958 and paid in 1959 , and the Petitioner in no way impugned such testimony through independent evidence . The Petitioner does not have the unlimited right to examine the Employer 's records indiscriminately for the mere purpose of seeking evidence which may tend to impugn the Employer 's witness. See Meridian Plastics, Inc , 108 NLRB 203 , 204. Further in view of the length and extent of the testimony with respect to the issues here involved , we find the Petitioner was not prejudiced by the hearing officer's rulings. 2The unit described in the petition was amended at the hearing by the Petitioner to include three plant clerical employees and three laboratory helpers. Although the record does not contain a description of their duties , the Employer does not dispute their in- clusion. The laboratory helpers are a different classification from the laboratory assistants in dispute. 129 NLRB No. 57. MONARCH RUBBER COMPANY, INC. 483 assistants, a compounder, a solecutter, an expediter, and a warehouseman? The Employer contends that eight persons, namely its president, vice president, and assistant vice president, as well as its executive secretary, assistant sales manager, plant superintendent, night super- intendent, and chief engineer, generally supervise the production and maintenance employees of three shifts in the plant 4 Apparently there are approximately 150 employees on the first shift, 20 employees on the second shift, and 50 employees on the third shift. According to the Employer the night superintendent is the only supervisor on duty during part of the second and all the third shift for approx- imately 70 employees. The remaining alleged 7 supervisors are at the plant during the first and part of the second shift supervising approximately 170 employees. Thus, based on the Employer's con- tentions, there is only 1 supervisor below the rank of superintendent to supervise the work of 220 employees. In its production and maintenance department, the Employer has certain individuals classified as seniors. Generally, according to the Employer, an employee is promoted to a senior on the basis of skill, experience, knowledge, and a willingness to work. None of the seniors in dispute has the power to hire or fire or effectively recommend the same, but they do make recommendations to management officials as to disciplinary action and possible wage increases which are con- sidered, but are then subject to independent investigation. The Em- ployer testified that seniors are mere conduits of orders. However, the Employer admits that it is the responsibility of the senior to see that the amount of production scheduled for his department is accom- plished, and to the extent necessary to do this, they have the power to make intradepartmental transfers from one machine to another, as well as the duty to perform some physical work. Where incentive rates are involved it appears that such transfers may affect the rate of pay of the employee based on the speed of the machine. Seniors also have the power to grant rest periods during the day. Seniors in the milling, pressing, and buffing departments work an average of 12 hours a day, splitting the second shift where three shifts are run. All seniors, except O'Hara who was hired from another rubber manu- facturer and is paid a salary, are paid 10 to 30 cents more per hour than production employees in their departments' and, in addition, 'Although the record indicates that certain of the employees in dispute were included in previous consent elections involving this Petitioner and the Employer, we note that no bargaining resulted ' The record shows that at least three of these eight spend up to 35 percent of their time away from the plant. ' we note that employees in the buffing and pressing departments are paid according to incentive rates and although their base rate may be as low as $1.30 per hour , they can and have earned as much as $3 19 and $2.50 per hour, respectively . The highest hourly paid senior receives $ 1.70 per hour. 484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD received bonuses in 1959 ranging from $100 to $500, as well as sick- leave benefits not generally given to production employees.6 Otherwise all fringe benefits, e.g., vacations, profit sharing, etc., are the same for all employees. The seniors whose supervisory status is contested are here listed with specific duties as shown by the record, in addition to the general description of their duties as set out above. Harold Cloude is the senior compounder on the first shift in the compounding department. Cloude directs the work of 10 employees by seeing to it that batches of rubber are properly made up, that cor- rect materials are used, and that the production schedule is followed. He initials timecards of employees in his department who inadvert- ently failed to punch in. He makes out production reports and is referred to by employees and management officials as foreman or bossman. Howard Malone is also a senior compounder on the first shift in the compounding department. He directs the work of 11 employees by seeing to it that materials are properly stored in the compounding department. Steve O'Hara is a senior millman in the milling department on the first shift which has 21 employees. O'Hara's duties require him to assign employees to machines, give instructions, inspect materials to see that they are properly mixed, expedite production, and train new men. Walter Perzan is the senior shipper and inspector on the first shift and there are 22 employees in his department. Perzan gives instruc- tions to these employees and is responsible for keeping the work moving and getting the trucks loaded. He has reported one employee for punching out early for lunch and the employee was punished. He checks the report of the shipping department on the third shift as there is no senior on that shift. Horace Reinhardt is the senior maintenance man on the first shift, the only shift in the maintenance department. It has 26 employees. He gives employees instructions as to when and how to work, includ- ing directions as to what to do before he gets to work in the morning. He arrives at 8 a.m. while the other maintenance men get to work between 6 and 7:30 a.m. Lawrence Reinhardt is the senior splitter in the splitting depart- ment. He instructs 14 employees as to what to do. There is no regu- lar second and third shift in the splitting department. Earl Baker is the senior pressman on the first shift in the press department. He gives orders and instructions to 16 employees on 9 However, three production employees, not in dispute, did receive bonuses in 1959, ranging from $50 to $110 Senior Pressman Crawley did not receive a bonus in 1959, as he was not a senior in 1958 when the bonuses , were earned. MONARCH RUBBER COMPANY, INC. 485 the first shift in the press department as to what work to perform and how to perform it. Baker also reprimands employees for poor work or violations of plant rules, e.g., not coming to work on time or leav- ing work early. Employee Sadosky testified that Baker was charac- terized by Plant Superintendent Moore as Sadosky's foreman. In addition Baker makes out job reports in Moore's office, initials time- cards for employees who fail to punch out but have worked the re- quired number of hours, and has reported an employee for changing shifts without first receiving permission. During the third shift he has been called by telephone for advice when Senior Pressman Crawley and the night superintendent are unable to solve a problem involving the press department. Howard Reep is the senior buffer on the first shift in the buffing department. Reep expedites and inspects the work of 15 employees in the buffing department, and assigns these employees their work and the machines they work on. In addition he has the power to permit employees to change shifts and to initial timecards for em- ployees in his department who have worked the required hours but failed to punch in. He checks production tickets turned in by the employees on his shift in the buffing department and each week permits one employee in his department to take time off. The record also indicates that the employees in the buffing department on the first shift consider Reep to be their boss. Guy Testerman is the senior millman on the third shift in the mill- ing and calendar department in which there are 22 employees. Tester- man assigns work to these 22 employees, gives them instructions, trains new employees, and generally expedites the milling process. Wayne Crawley is the senior pressman on the third shift in the press department in which there are 10 employees. Crawley's duties and powers are the same as Earl Baker's, senior pressman on the first shift. Abraham Thieman is the senior buffer on the last half of the second and all of the third shift. Each shift has 10 employees. Thieman expedites work in the buffing department by issuing orders to the employees referred to above. He also checks over production reports turned in by the buffers to see that they have done the work indicated on their reports. He was characterized by one of the employee wit- nesses as the night supervisor in the buffing department, but he denied this. The above circumstances, including the abnormally high ratio of employees to supervisors that would exist if these seniors were not found to be supervisors,' lead us to conclude that they possess the authority responsibly to direct the work of employees under them. a Pearl Packing Co., 116 NLRB 1489, 1491 ; Magnode Products, Inc., 124 NLRB 596 (shift leaders). 486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Accordingly, we find that they are supervisors within the meaning of the Act and we shall exclude them from the unit hereinafter found appropriate. The remaining employees in dispute are compounder Herring, solecutter Anderson, expediter Carper, warehouseman Stouton, and laboratory assistants Alder and Levine. All but Stouton received bonuses in 1959 ranging from $150 to a figure substantially in excess of $500, but only Carper, Alder, and Levine receive sick leave. Walter Herring is a compounder on the second shift in the com- pounding department which runs from 6:30 p.m. to 4:30 a.m. Her- ring is not classified as a senior. There is no third shift in this depart- ment and there are approximately eight employees on the second shift. Herring is paid at the rate of $1.55 per hour, 10 cents more per hour than Cloude, the senior compounder on the first shift, whom we find to be a supervisor, and received an equivalent bonus in 1959. We shall permit Herring to vote subject to challenge inasmuch as the record is insufficient to establish his supervisory authority. Agnes Anderson is classified as a solecutter and packer in the cutting and packing department. She correlates and inspects the work of 22 employees and assigns work to be performed. In addition she initials employees' timecards and assigns lunch hours. She is paid at the rate of $1.25 per hour, 5 cents more than the next highest paid em- ployee in her department. We find she responsibly directs the work of these 22 employees and accordingly exclude her.' Howard Carper is an expediter in quality control. The Petitioner contends he is either a supervisor or a managerial employee. Gen- erally he attempts to see that the production schedule is followed and that particular orders are given special attention as to priority and quality. In addition, he inspects finished stock for quality and density. He has a desk in the plant superintendent's office and is paid $145 per week. From the record, however, it does not appear that Carper has an effective voice in management, nor is he in a position to formulate and determine corporate policy. Accordingly we find he is not a managerial employee.' As it appears that he spends the major portion of his time in the plant performing the usual duties of his classification under plant supervision, we find he is essentially a plant clerical rather than a supervisor and accordingly include him.i' Arie Stouton is a warehouseman who the Petitioner contends is a supervisor. His duties entail the separation and movement of ma- terial in the warehouse and at times he helps out in the packing and waste materials department. He is paid 5 cents less per hour than another warehouseman who is not in dispute. As there is no evidence 88ee Pearl Packing Go, supra; Magnode Products, supra. e See Kstsap County Automobile Dealers Association, 124 NLRB 933; see also Pioneer Holding Co., 126 NLRB 956. 11 See General Electric Co., 127 NLRB 919; Kellogg Switchboard and Supply Co., 127 NLRB 64; Litton Industries of Maryland Inc., 125 NLRB 722. MAYBEE STONE COMPANY 487 in the record that he responsibly directs the work of employees, or has. any other indicia of supervisory authority, we find he is not a super- visor and accordingly include him. Joseph Alder and Gilbert Levine are both laboratory assistants to, the plant chemist. The Petitioner contends they are either super- visors, managerial employees, or professional or technical employees. The record will clearly not support a finding that Levine and Alder are either supervisors or managerial employees as there is no evidence- that they regularly 11 responsibly direct the work of employees, or that either of them has an effective voice in management, or is in a position to formulate and determine corporate policy. However, both of them perform tests on the Employer's products, which tests the Employer- characterizes as routine, as well as test and makeup formulas. In addition they are required to check on the Employer's product through every stage of the operation. The record does not indicate specifically what these tests are or what training is required to do the work. Both are college graduates and Alder attended medical school.. Alder who is an expert on color is paid $170 and Levine $120 per week. We shall permit them to vote subject to challenge inasmuch as. the record is insufficient to establish that they are either professional or technical employees. Accordingly we find that the following employees constitute a unit appropriate for the purposes of collective bargaining within the mean- ing of Section 9 (b) of the Act: All production and maintenance employees of the Employer at its. Baltimore, Maryland, plant, including plant clerical employees, lab- oratory helpers, expediter Carper, and warehouseman Stouton, but. excluding all office clerical and technical employees, professional em- ployees, seniors, solecutter Anderson, guards, and supervisors as de-- fined in the Act. [Text of Direction of Election omitted from publication.] n There was testimony that Levine "sometimes" directs employees in solecutting ins connection with samples for the sales department. Maybee Stone Company, Petitioner and International Union of Operating Engineers, AFL-CIO, Local 324 and Truck Drivers: Union Local No. 164, affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers. of America. Case No. 7-RM-316. October 08, 1960 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 Jon P. Desenberg, hearing 129 NLRB No. 56.