Hollywood Plastics, Inc.

678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hollywood Plastics, Inc. and International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, and Its UAW Local 509, Petitioner. Case 21-RC-1 1135 June 30, 1969 DECISION AND DIRECTION By MEMBERS FANNING, BROWN, AND ZAGORIA Pursuant to a Stipulation for Certification upon Consent Election, executed February 17, 1969, an election was conducted on March 7, 1969, under the direction of the Regional Director for Region 21 among the employees in an agreed unit . Upon the conclusion of the balloting, the parties were furnished with a tally of ballots which showed that, of approximately 99 eligible voters, 45 cast ballots for, and 45 against, the participating labor organization , and 5 ballots were challenged. The challenged ballots are sufficient in number to affect the results of the election. After an investigation, the Regional Director on March 28, 1969, issued his Report on Challenged Ballots and Objections, a copy of which is attached hereto, in which he recommended that the challenges to the ballots of Rodriguez, Hamai, Torres, and Manthey should be sustained and the challenge to the ballot of DeLaunay should be overruled.' He further recommended that the Petitioner's objections be overruled in their entirety. Concerning the challenge to the ballot of Erich Manthey the Regional Director found that Manthey is a supervisor within the meaning of the Act and recommended that the challenge to his ballot be sustained. Concerning the challenge to the ballot of Edward DeLaunay the Regional Director found that DeLaunay is not a supervisor within the meaning of the Act and recommended that the challenged ballot be overruled. Having found that the above-sustained ballot is sufficient in number to affect the results of the election, the Regional Director recommended that it be opened and counted, and a revised tally of ballots be issued in accordance with the results shown. Thereafter, the Petitioner filed timely exceptions to the Regional Director's Report and Recommendation on Objection 3 and the Employer filed timely exceptions to the Regional Director's Report and Recommendation on the challenged ballot of Erich Manthey. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The Petitioner is a labor organization claiming to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representation of the employees of the Employer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. 4. The parties stipulated, and we find, that the following employees 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 employed at the Employer's facilities located at 4560 Worth Street, Los Angeles, California, but excluding all office clerical employees, professional employees, plant guards and supervisors, as defined in the Act. 5. The Board has considered the Regional Director's Report and the exceptions and hereby adopts the Regional Director's findings and recommendations.2 As we have overruled the challenge to the ballot of Edward DeLaunay and as such ballot is sufficient to affect the results of the election, we shall direct the Regional Director to open and count such ballot and prepare a revised tally. 'The exceptions raise no material or substantial issues of fact or law which would warrant reversal of the Regional Director's findings and recommendations DIRECTION It is hereby directed that the Regional Director for Region 21 shall, within 10 days from the date of this Direction, open and count the ballot of Edward DeLaunay and thereafter prepare and cause to be served upon the parties a revised tally of ballots. If the revised tally discloses that a majority of the valid votes has been cast for the Petitioner, the Regional Director shall issue a certification of representative in accordance with the Board's Rules and Regulations. If the revised tally of ballots shows that the Petitioner has not received a majority of the valid votes cast, the Regional Director shall issue a certification of results of election in accordance with the Board's Rules and Regulations. MEMBER ZAGORIA, dissenting: For the reasons I expressed in Buzza-Cardozo, A Division of Gibson Greeting Cards, Inc., 177 NLRB No. 38, I would find the Employer's conduct of a raffle objectionable, and would set aside the election. 'Rodriguez, Hamai, Torres, and Manthey were challenged by the Board agent on the ground that their names were not on the eligibility list and DeLaunay's ballot was challenged by the Petitioner on the grounds of being a supervisor . With respect to Rodriguez, Hamai, and Torres, who are employed as foremen , the parties signed a stipulation as to their supervisory status. REPORT ON CHALLENGED BALLOTS AND OBJECTIONS Pursuant to a stipulation for certification upon consent election executed by the parties on February 17, 1969, an 177 NLRB No. 40 HOLLYWOOD PLASTICS, INC. 679 election by secret ballot was conducted on March 7, 1969, under the direction and supervision of the Regional Director, of Region 21, among the employees of the Employer, in the unit agreed appropriate for the purposes of collective bargaining.' The tally of ballots which was served upon the parties immediately following the election showed the following results: Approximate number of eligible voters . . 99 Void ballots . . 0 Votes cast for Petitioner . . 45 Votes cast against participating labor organization . . 45 Valid votes counted . . 90 Challenged ballots . . 5 Valid votes counted plus challenged ballots . . 95 The challenged ballots are sufficient in number to affect the results of the election. On March Il, 1969, the Petitioner filed timely objections to the election, a copy of which was timely served upon the Employer. Pursuant to Section 102.69 of the Board's Rules and Regulations, Series 8, as amended, the undersigned, after reasonable notice to the parties to present relevant evidence, has completed an investigation of the objections and the challenged ballots, and hereby issues his report thereon. The Challenged Ballots The challenged ballots were cast by Henry Rodriguez, Hiro Hamai, Crecencio Torres, Erich Manthey, and Edward DeLaunay. Rodriguez, Hamai, Torres, and Manthey were challenged by the Board Agent inasmuch as their names did not appear on the list of eligibles submitted by the Employer. DeLaunay's ballot was challenged by the Petitioner on the grounds of being a supervisor. With respect to Rodriguez, Hamai, and Torres, who are employed as foremen, the parties have signed a stipulation reflecting their agreement as to their supervisory status, and that the challenges to their ballots be sustained. A copy of the stipulation is attached to this report as Attachment 1. In accordance with the investigation and the stipulation, it is recommended that the challenges to the ballots cast by Rodriguez, Hamai, and Torres be sustained. Erich Manthey: In addition to the above three foremen, the Employer has one other foreman, Erich Manthey. Manthey is the foreman of the tooling and maintenance department. The Employer contends that Manthey's status is different from the status of the other three foremen. It points out that, while the other foremen have between 12 to 16 men and 1 or 2 leadmen under them, the tooling and maintenance department consists of only Manthey and two other men. The investigation shows that Manthey is the highest paid of the four foremen, receiving a monthly salary of $1,005 a month, whereas the other foremen receive about $850. The tooling and maintenance department is located in a separate area of the plant . Its function is the making of tools and the repairing of tools and the plant machinery. The other two men in the department, Thomas Hotchkis and Arshog Sarkisan, have worked about 8 'Included . All production and maintenance employees, including shipping and receiving employees years in the department, and it appears both are experienced and skilled employees requiring a minimum of supervision. Manthey estimates that approximately 90 percent of his time is spent physically working on the machines and tools, and the "remaining 10% of his time is divided among other duties. Those duties are ordering new parts, and tools, and supervision of the other men."' The evidence shows that, once a week on Monday, Manthey attends a management meeting which includes the Employer's president, the production manager, etc. At this meeting, the repairing and tooling work, other than emergency work, is reviewed and discussed, and the work to be undertaken is decided upon. It appears that Manthey makes recommendations, depending upon the type of job involved as to whom it should be assigned, including handling it himself, but his recommendations are not always followed. On the basis of the assignments decided upon, an assignment list is made up, which is posted at Manthey's work bench. On emergency work that arises during the week, Manthey would be notified by the foreman of the department involved. Manthey would then check the machine to see what is required or needed, and then discuss the matter with the production manager including what he and the other two men were presently working on, and who could best handle the emergency work. Manthey states that, while he may be asked as to who he thinks should do it, the production manager makes the assignment. Every Tuesday, the Employer has a meeting of its foremen, designated as "Supervisors Training." The three other foremen regularly attend the meetings. Manthey attends on an irregular basis. As stated by Assistant Operations Manager Dominguez: "He is expected to come if he is not doing something important." It also appears that Manthey attends other miscellaneous management meetings. Thus, Manthey states: Sometime within the last month a meeting was held to discuss the possible moving around of some of the departments in the plant. At this meeting there was Skip Takeuchi [production manager], Dominguez, Tom Wills, Industrial Engineer, and all the foremen in the plant. I also attended. This meeting lasted about 1 1/2 hours. Manthey's affidavit shows that, while, normally, he obtains prior higher approval before authorizing overtime, on occasions he has authorized overtime without obtaining such clearance. The evidence also shows that on occasions Manthey has corrected the time cards of Hotchkis and Sarkisan, where they have made a mistake such as they forgot to clock in or clock out. While there is no evidence that Manthey has made any recommendation with respect to hiring and firing, it would appear that, in view of the small and stable work force, there has been little occasion or necessity to do so. Prior to his promotion to foreman, approximately 3 years ago, Manthey worked in the department as a leadman. On his promotion to foreman, he was given a wage increase . It appears that there was no mention made of whether increased authority accompanied his reclassification. On the other hand, there is no evidence that at any time the Employer has ever announced that the authority vested in Manthey is any different from that given to its other foremen. Under the circumstances shown, including his participation in meetings of top management, his salary compared with other foremen's, etc., the Regional Director concludes that Excluded: All office clerical employees, professional employees, guards 'Manthey's affidavit shows that the reference to the "ordering" of parts and supervisors as defined in the Act, as amended and tools refers to requisitioning, and he does not do any purchasing 680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Manthey has the ostensible authority of the other foremen, and recommends that the challenge to his ballot be sustained. Edward DeLaunay: DeLaunay is an hourly rated employee with the classification of leadman. He is employed in the warehouse department which is engaged in the receiving and storage of supplies and material, and the filling of requisitions for such supplies. There are four employees in the warehouse department including DeLaunay. Identified as in charge of warehousing operation and the supervisor of these four employees is Hal Blair, who is in charge of procurement. The other employees in the department besides DeLaunay consist of a clerk and two employees who drive forklift trucks and work on the storage and handling of the supplies. The clerk, Lillian Cook, shares an office with DeLaunay, which is located adjacent to the warehouse and also used as a supply room for small hardware . Cook devotes her full time to the clerical work in the department and primarily on the records kept in connection with inventory control. The evidence indicates that, if she has a problem with her job, she takes the matter up directly with Blair, rather than through DeLaunay. The two forklift drivers work almost exclusively on the storage and filling of requisitions from the production departments for the plastic compounds used in the Employer's operations. The requisitions are received by DeLaunay and then distributed to the men apparently on the basis of their availability. While it appears to be DeLaunay's responsibility to see that the requisitions are properly filled, this appears to be a routine and repetitive operation that requires a minimum of direction or exercise of judgment . DeLaunay himself handles the filling of requisitions for small hardware or office supplies. It appears that a substantial amount of DeLaunay's time is spent in doing the physical checking and taking inventory of incoming supplies . He also performs miscellaneous paper work which apparently is coordinated with the clerical work performed by Cook. The Employer and DeLaunay deny that he has any authority to hire, fire, discipline, etc., or effectively to recommend such action. DeLaunay has occupied the position he holds since about 6 weeks prior to the election. During this period, one of the forklift drivers was hired. The evidence indicates that DeLaunay did not play any role in his hiring . It further appears that employees who have a complaint have been directed to take the matter up directly with either Blair or the assistant operations manager. The evidence shows that all decisions with respect to overtime are made by Blair. DeLaunay states that he has been specifically instructed by Blair that he has no authority to check or correct employees ' timecards and this was to be done only by Blair. I conclude that the evidence does not support a finding that DeLaunay has supervisory authority as defined in Section 2(11) of the Act, and it is recommended that the challenge to his ballot be overruled. The Objections A copy of the Petitioner's objections, as filed, is attached to this report as Attachment 2. In substance, the objections are based upon the following grounds: (1) Election notices were not posted. (2) The announcement that the polls were opened, made over the Employer's loud speaker , was not heard by employees in the Company's back building, and as a consequence many of these employees did not vote. (3) A raffle conducted by the Employer concurrently with the election. Objections ( 1) and (2) are clearly lacking in merit. The investigation shows five notices of election were posted around the plant, including the plant bulletin boards on March 3, 1969, and remained posted through the election. Even prior to the posting of the notices of election, an announcement had also been made by the Petitioner in its campaign literature on February 19, 1969 , as to the date, time, and place of the election . The investigation shows that any announcement made over the Employer's loud speaker system can be heard by employees in the back building . Further, there is no evidence that any employee failed to vote by reason of failure to hear the announcement . In fact, the investigation shows that only four eligible employees failed to vote in the election. All four of them were absent from work on the day of the election . It is recommended that Objections ( 1) and (2) be overruled. Objection (3) The investigation shows that, on the evening of the day prior to the election , March 6, 1969, the Employer brought into the plant several cartons of groceries, which were stacked along a wall in the main plant and displayed. Above the ' cartons, there were posted on the wall, in Spanish••and English, the notices that are attached to this report as Attachments 3, 4, and 5. The polling of the employees was conducted in two voting sessions . The first voting session was from midnight to 12:30 a.m., and the second session , the following morning, from 9 a.m. to 10 a.m. No announcement other than that contained in the posted notices was made by the Employer with respect to the raffle prior to the voting of the night session . However, after the close of this voting session, the production manager gave one of the employees on duty, Angelo Marciento, raffle tickets with instructions to distribute a ticket to each of the employees who had voted. Marciento was also furnished a sealed box for the employees to deposit their raffle tickets. The raffle ticket consisted of two halves, with duplicating numbers, with one half being retained by the employee for the drawing, and the other deposited in the box . Marciento made the requested distribution . None of the supervisors accompanied Marciento while he was making the distribution. The following morning, and about 10 minutes before the second voting session was scheduled to open, the Employer had its telephone operator read the following announcement over the loud speaker system in English and Spanish: In order to encourage everyone to vote, the Company is holding a raffle. Everyone who votes is eligible to win bags of groceries . All you have to do is vote. Either before you vote or after you vote, pick up your stubs from Tom Hotchkis at the display and assembly area. The drawing will be held today at 12 noon. Thomas Hotchkis, referred to above, and previously mentioned in connection with the challenged ballot of Erich Manthey, had served as the Company's observer in the evening session . Hotchkis distributed the raffle tickets at a table that was set up by the groceries . There is no evidence that he engaged in any electioneering activity while passing out the raffle tickets but he merely handed a HOLLYWOOD PLASTICS, INC. 681 raffle ticket to anyone that presented himself at the table. He' states that he had been instructed by the Employer's attorney not to speak to anyone. No check list was maintained of employees receiving raffle tickets. During the distribution, the notices (Attachments 3, 4, and 5) remained posted above the groceries. Hotchkis states that he passed out the raffle tickets from 9 a.m. until 9:45 a.m., at which time he "went around the shop and made sure that everyone had a ticket. They all did, so I surmised that everyone had voted, so I left." The area in which the groceries were stacked and raffle tickets distributed during the second voting session is known as the display and assembly area . It is located near the front end of the shop of the main plant. The polling place in which the election was conducted was in another building in the rear of the main plant. The two buildings are separated by a yard. Thus, the display area in which the distribution was carried on would not be in the line of march of employees going directly to the polling area from their work stations, or visible from the polling area, and was separated by a distance of approximately 300 feet. The value of the groceries on which the raffle was conducted was in the approximate amount of $82. It is concluded from the evidence and circumstances shown that the raffle was conducted for the purpose of electioneering propaganda, and any inducement of employees to exercise their statutory right to vote in the election was purely incidental to that purpose.' However, it is believed that the use of a raffle as a propaganda gimmick is not a per se basis for setting aside the election, but would rather depend upon the circumstances involved. Thus, the employment of propaganda to demonstrate the amount of dues does not necessarily constitute interference with the exercise, of a free choice.' Note is made of tthe fact that obtaining a raffle ticket or the prize was not contingent upon how the employee voted in the election or the results.' While the distribution of raffle tickets during the second voting session is viewed as electioneering while the polling of the employees is being conducted , it is noted that such activity was not carried on in the vicinity of the polling area." Consideration must, however, be given as to whether a valuation would be placed upon the gift of the raffle ticket by the employees that would reasonably tend to have the effect that they would feel an obligation to vote against the union, or otherwise impair their exercise of a free choice. The undersigned doubts that a 1-out-of-95-chance to win an $80 prize would tend to have this effect.' On consideration of all the facts and circumstances surrounding. the raffle, it is recommended that the objection be overruled. Conclusion It is recommended that the Petitioner's objections be overruled . It is recommended that the challenges to the ballots cast by Henry Rodriguez, Hiro Hamai, Crecencio Torres, and Erich Manthey be sustained, and the challenge, to the ballot cast by Edward DeLaunay be overruled. Inasmuch as DeLaunay' s ballot is sufficient in number to affect ,the results of the election , it is further recommended that it be opened and counted, and a revised tally of ballots be issued in accordance with the results shown. As provided in Section 102.69 of the Board 's Rules and Regulations, Series 8, as amended, any party desiring to take exception to this -report and the recommendations herein may, within 10 days from the date of issuance of this report, file with the Board in Washington, D. C. 20570, eight copies of such exceptions . The party filing the same shall serve a copy thereof upon the other party and shall file a copy with the Regional Director of Region 21, National Labor Relations Board, 849 South Broadway, Los Angeles, California 90014. 'Cf Elgin Butler Brick Company, 147 NLRB 1624, 1627; Austin Concrete Works, Inc.. 132 NLRB 184, 185. 'Mosier Safe Company, 129 NLRB 747 'See Bordo Products. 119 NLRB 79, 84. 'Harold W Moore & Sons. 173 NLRB No 191; Burson Plant of Kendall Company, 115 NLRB 1401, 1402 'See Jai Transportation Corp., 131 NLRB 122, 123-124; cf. Teletype Corporation, 122 NLRB 1594; General Cable Corporation, 170 NLRB No. 172.