Mark Farmer Co., Inc.

MARK FARMER COMPANY, INC. 785 Mark Farme► Company, Inc. and Laborers' In- ternational Union of North America , Local 324, AGL-CIO, Petitioner. Case 20-RC-9114 July 31, 1970 DECISION AND DIRECTION OF ELECTION By MEMBERS FANNING, MCCULLOCH, AND BROWN Upon an amended petition duly filed under Sec- tion 9(c) of the National Labor Relations Act, as amended, a hearing was held before Shirley Bingham, Hearing Officer. The Employer and Peti- tioner have filed briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. They are hereby af- firmed. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in the manufacture and sale of dolls and related products at El Cerrito, California. It annually derives revenues in excess of $50,000 from sales to customers outside the State of California. The Employer is engaged in com- merce within the meaning of the Act and it will ef- fectuate the purposes of the Act to assert jurisdic- tion herein. 2. The Petitioner is a labor organization within the meaning of Section 2(5) of the Act. 3. The Employer contends that the petition should be dismissed because it was prematurely filed. It asserts that the Employer's present unit complement is only 4 employees, that its business is seasonal and it will employ, a total complement of as many as 18 to 21 at the peak of employment during the last quarter of 1970, and that its present work force is not a substantial and representative segment of the work force as it will add 4 additional permanent employees within the next 6 months. The Employer is engaged in the manufacture of dolls and related items. At the time of the hearing the Employer employed a year-round complement of eight permanent employees in the unit, as found below. During the 4 years prior to 1969, four to six or more temporary employees were hired from Sep- tember to December of each year to produce for and fill the Christmas seasonal influx of orders in ' The Baugh Chemical Company, 150 NLRB 1034, 1035 ' General Cable Corp, 173 NLRB 251, The Baugh Chemical Company, supra those years. In each of those years a new comple- ment of temporary employees was hired because of the Employer's inability to obtain the same em- ployees from year to year. Under the circum- stances, as the Employer operates continuously on a year-round basis with a substantial complement of permanent employees, we find that its business is cyclical in nature, rather than the kind of seasonal business which requires postponement of the elec- tion until the employee complement is at its peak.' During 1969, the Employer suffered a decline in business, so that with the employment of the chil- dren of the president, it obtained sufficient produc- tion on a year-round basis to fill all the orders received throughout the year, including those or- ders received for the Christmas season. As a con- sequence, no cyclical peak in employment occurred in 1969, as it had in the 4 prior years. It thus ap- pears that any hiring of additional temporary em- ployees in the fall of 1970 will depend on an im- provement in the Employer's business. It is there- fore speculative whether, as contended by the Em- ployer, a substantial number of temporary em- ployees will be hired during the period from Sep- tember to December 1970. The Employer presently employs eight em- ployees, as found below, in five classifications: -packaging and shipping, clay and glaze, sewing, decoration, and clerical. Janitorial work is being performed by the president and by children of the president. The Employer desires to hire two em ployees in decoration, including a moldmaker, one employee in shipping, and a janitor, by August 1970, if business conditions permit. The hoped for expansion would therefore result in four additional employees and at most two additional job classi- fications, moldmaker and janitor. However, it is also problematical whether business conditions will improve sufficiently to permit or warrant any in- crease in the employee complement. In the foregoing circumstances, we find, in agree- ment with the Petitioner, that the employees per- manently employed at the Employer's plant con- stitute a substantial and representative segment of the work force. Accordingly, we shall direct an im- mediate election.2 We find that a question affecting commerce ex- ists concerning the representation of certain em- ployees of the Employer within the meaning of Sec- tions 9(c)(1) and 2(6) and (7) of the Act. 4. The Petitioner seeks a unit of all production and maintenance, warehouse, and clerical em- ployees, excluding children of the president, salesmen, guards, and supervisors. The Employer and the Petitioner are in disagreement as to the unit placement of the employees discussed below. There is no bargaining history. 184 NLRB No. 93 786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Employer contends that Elizabeth Baughn, Mary Chamberlain , Carmelita Domingo, and Katherine Williams should be excluded from the unit because of their alleged supervision of the packaging and shipping, clay and glaze , sewing, and decorating departments. The undisputed supervisory complement consists of the Employer 's president and Audrey Williams, who was hired as plant manager some 2 months prior to the filing of the petition herein . There are four employees whose unit placement is not an issue and who are included in the unit. Two of these employees , Nelson and Stranburg , are clas- sified as "clericals" and report directly to Plant Manager Williams.3 The other two employees in the unit, Carol Stevens and Teresa Baughn , are clas- sified respectively as "sewer" and "clay and glaze." The four alleged supervisors work full time on production and warehouse work in the same work area as the unit employees . They are not salaried, as is the plant manager, and their terms and condi- tions of employment are the same as those of other employees , except that three of the four receive a minor wage differential. Before the employment of Williams as plant manager, Elizabeth Baughn and one Mildred Boyum were responsible for interviewing , hiring, and discharging employees. Department supervisors at that time also hired employees . Although Presi- dent Farmer testified that she instructed Williams not to interfere with the discharge of any of the unit employees by one of the four alleged supervisors, and to discuss any discharges in advance with the supervisors, the record shows that Williams did not discuss the only discharge of an employee under a department head, Dianne Fairchild , a "sewer," with her alleged supervisor , Domingo. Instead, Williams discussed it with Farmer. Since Williams became plant manager , she is the only individual who has hired , discharged , and given time off to employees. She has done so without consultation with any of `In accordance with the parties ' agreement , we find that Nelson and Stanburgh are plant clerical employees, and, as indicated, we include them in the unit ' Ross Poria- Plant, Inc , 166 NLRB 494, 496, enfd 404 F 2d 1 180 (C A 5) See also Westinghouse Air Brade Company, 123 NLRB 859, 861 5 In order to assure that all eligible voters may have the opportunity to be informed of the issues in the exercise of their statutory right to vote, all parties to the election should have access to a list of voters and their ad- dresses which may be used to communicate with them Excelsior Un- the four alleged supervisors. She is also the only one to whom employees report their hours of work. Mary Chamberlain is the only employee in the clay and glaze department and therefore has no em- ployees under her to direct or supervise. As in- dicated above, there is one employee, Cora Stevens, in the sewing department in addition to Domingo; and one, Teresa Baughn, in decorating in addition to Katherine Williams. Only Ann Farmer, the daughter of the president, and Elizabeth Baughn , work in packaging and shipping . The al- leged supervisors did not hire the employees in their departments, and there is no evidence that they responsibly direct them, or that they have been delegated or exercise any other indicia of su- pervisory authority over them. If the four individuals discussed above were found to be supervisors, there would be a super- visory ratio of six supervisors, including President Farmer and Plant Manager Williams, to four em- ployees in the unit; or six supervisors to seven em- ployees, counting the three children of President Farmer who are excluded from the unit. In all the circumstances, we find that Elizabeth Baughn, Mary Chamberlain, Carmelita Domingo, and Katherine Williams do not regularly possess or exercise any indicia of supervisory authority, and we shall, in agreement with the Petitioner, include them in the unit' Accordingly, we find that the following em- ployees constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of Section 9(b) of the Act: All production, maintenance, and warehouse employees of the Employer at its El Cerrito, California, plant, including plant clerical em- ployees, but excluding children of the presi- dent, salesmen, guards, and supervisors as defined in the Act. [Direction of Elections omitted from publica- tion. ] derwear Inc, 156 NLRB 1236, N L R B v Wyman-Gordon Co, 394 U S 759 Accordingly, it is hereby directed that an election eligibility list, con- taining the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region 20 within 7 days of the date of this Decision and Direction of Election The Regional Director shall make the list available to all parties to the election No extension of time to file this list shall be granted by the Regional Director except in extraordina- ry circumstances Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed A