Ridgely Manufacturing Co., Inc.

860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ridgely Manufacturing Co., Inc. and Amalgamated Clothing Workers of America, AFL-CIO, Petition- er. Case 26-RC-3997 August 11, 1972 SUPPLEMENTAL DECISION AND DIRECTION BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS Pursuant to a Stipulation for Certification Upon Consent Election approved on June 28, 1971, an election by secret ballot was conducted on August 20, 1971, under the direction and supervision of the Regional Director for Region 26 among employees of the Employer at its Ridgely, Tennessee, location. At the conclusion of the election, the parties were furnished with a tally of ballots which showed that of approximately 233 eligible voters 212 cast ballots, of which 78 were for, and 79 against, the Petitioner, and 55 were challenged. The challenged ballots were sufficient in number to affect the results of the election. Thereafter, the Petitioner filed timely objections to conduct affecting the results of the election. In accordance with the National Labor Relations Board's Rules and Regulations, Series 8, as amended, the Regional Director conducted an investigation and, on October 8, 1971, issued and duly served on the parties his Report on Objections and Challenges, in which he recommended that certain challenges be overruled, that certain challenges be sustained, and that a hearing be held to resolve certain other challenges. The Regional Director further recom- mended that should the Petitioner fail to receive a majority of the valid votes cast, that Objections 1(a) and 9 be sustained, and that a new election be directed, but that should Petitioner receive a majority of the valid votes, an appropriate certification issue. The Employer filed timely exceptions and a brief in support thereof to the Regional Director's report. On November 30, 1971, the Board issued a Decision and Order' in which it adopted the Regional Director's recommendations regarding Petitioner's Objection 1(a), adopted his recommen- dations sustaining the challenges to 35 ballots and overruling the challenges to 6 ballots, and ordered the case remanded to him for the purpose of i Not published in Board bound volumes 2 Chairman Miller, who had reservations concerning the validity of Objection 1(a), would not have ruled on the objections until all challenged ballots had been resolved 3 The Hearing Officer found the eligible voters to be Samuel Maze, Nathan Strain, Dorothy Cantrell, Tommie Martin, Lloyd Spence, Peggy Todd, Mary Lynn Moore, and Ann Jackson arranging a hearing on issues raised by 14 challenged ballots.2 Pursuant to the Board's Decision and Order, a hearing was held before Hearing Officer Charles T. Corn. Thereafter, on - April 7, 1972, the Hearing Officer issued and served on the parties his Report and Recommendations on Challenged Ballots. Upon consideration of the evidence presented, the Hearing Officer concluded that eight of the challenged voters were eligible voters and recommended that the challenges to their ballots be overruled,3 and found that six challenged voters were ineligible and recommended that the challenges to their ballots be sustained.4 Thereafter, the Petitioner filed timely exceptions to the Hearing Officer's report contending that Doris Morgan, to whose ballot the Hearing Officer sus- tained a challenge, had a reasonable expectancy of recall, and that Tommie Martin, Mary Lynn Moore, and Ann Jackson, whom the Hearing Officer found eligible, were and are supervisors within the meaning of the Act. On January 31, 1972, the Petitioner filed a motion for reconsideration with the Board requesting that the Regional Director be directed to reconsider his rulings on objections and challenges relating to certain employees.5 In this regard the Petitioner, when it had filed its objections to conduct affecting the results of the election, alleged, inter aha, that the named employees whose ballots were challenged by the Employer were terminated and other persons were hired just before the election, destroying the laboratory condition necessary for a fair Board election. The Regional Director recommended over- ruling the objections and sustaining the challenges, because no charges alleging any unfair labor prac- tices had been filed with respect to these matters. As no exceptions had been filed to those recommenda- tions, the Board, on November 30, 1971, as noted above, adopted such recommendations. While the Regional Director's report was pending before the Board on exceptions to other matters by the Employer, the Petitioner filed timely unfair labor practice charges. On January 7, 1972, the Regional Director issued a complaint in Case 26-CA-4169 alleging that the discharge of five named employees just prior to the election violated Section 8(a)(3) and (1) of the Act.6 Petitioner therefore claimed that since the Regional Director has issued a complaint, he should also reconsider his rulings in his report as a These voters were Doris Ann Morgan, Shirley Stewart, Caleb Clark, Shirley Smith , Brenda Crittenden . and Charlotte Hollandsworth [Parnell] s The employees were Doris Cook , Betty Cook. Shawanne Cook, Joanne Matlock. Mary Terry. Ida Williams, and "others " 6 Employees named in the complaint were Doris Cook , Betty Cook, Shawanne Cook, Ida Williams. and Mary Terry 198 NLRB No. 114 RIDGELY MANUFACTURING CO. 861 to the alleged discriminatees and consolidate the representation matter and the unfair practice matter. On April 6, 1972, a panel of the Board issued a Notice To Show Cause 7 why the Board should not remand to the Regional Director to reconsider his rulings and to consolidate the representation matter regarding the five named employees with Case 26-CA-4169. The Employer filed a response to the notice and the Petitioner filed a motion to quash the Employer's response. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the Petitioner's excep- tions and brief, the Hearing Officer's report, the Petitioner's motion for reconsideration, and the entire record in this proceeding, and hereby adopts the Hearing Officer's findings and recommendations to the extent consistent herewith. (1) The Hearing Officer concluded that certain individuals, including Tommie Martin, Ann Jackson, and Mary Lynn Moore, were employees and eligible to vote and not supervisors within the meaning of the Act. Petitioner excepts to the Hearing Officer's failure to find that Tommie Martin, Ann Jackson, and Mary Lynn Moore are ineligible voters since they are supervisors. We find merit in Petitioner's exceptions in this regard.8 Martin had worked for the Employer about 4 years, and Jackson and Moore have each been employed for about 12 years. Martin is "supervisor" of the finishing department where he directs the work of about 20 employees. Martin does bundling, supplies his people with work, reports absenteeism, initials bundle tickets, holds production for employ- ees which affects their rate of pay, and has the authority to move employees to different machines within his department. When employees ask for time off, Martin checks with either Assistant Plant Manager Dockery or owner Roseman. Jackson is the "floorlady" in the lining department where she directs the work of up to 30 employees. Jackson watches and regulates the flow of work on the floor, trains new operators, does some bundling and sewing, and has authority to and does shift employ- ees within her department. Jackson has initialed employees' timecards when they have had to leave and has signed for employees holding their pro- ' 196 NLRB No 23 Chairman Miller dissented The Chairman would have denied the Petitioner's motion for reconsideration for the reasons that Petitioner had not included in its exceptions filed to the Regional Director's report the matters it now wanted reconsidered and because Petitioner's motion came too late " For the reasons stated by the Hearing Officer in his report, we find that Doris Morgan was ineligible to vote 9 Monarch Rubber Company, Inc, 129 NLRB 482,483-485 duction. Moore is "floorlady" in the finishing department containing up to 50 employees, where she supervises the flow of work, trains new operators, does bundling and sewing, initials timecards after consulting with owner Roseman, and can move employees to machines within her own department. If a machine breaks down, employees report to their supervisors or floorladies who secure mechanics to fix them. Martin, Jackson, and Moore check on absenteeism in their departments. The supervisors or floorladies secure tickets for bundles, if regular tickets are missing, and regularly collect employees' production sheets, which are turned into the office. Martin, Jackson, and Moore have certain privileges not granted to employees. Thus, they park immedi- ately in front of the building instead of in a lot, they receive their paychecks directly from the plant manager in sealed envelopes while the regular employees receive their checks attached to their timecards, and they receive about 30 cents more per hour. On occasion, they attend supervisory meetings and have, on occasion, reported a failure to make production. The above circumstances, including the abnormal- ly high ratio of employees to supervisors that would exist if the floorladies and supervisor were not found to be supervisors, and the fact they receive 30 cents per hour more than the employees they direct, lead us to conclude that they possess supervisory authori- ty. It is clear that they possess the authority to responsibly direct the work of the employees under them. Accordingly, we find, contrary to the Hearing Officer, that they are supervisors within the meaning of the Act. We sustain the challenges to their ballots and shall direct that their ballots remain unopened and uncounted.9 (2) For the reasons stated in our Notice To Show Cause, 196 NLRB No. 23, we find that the purposes of the Act will best be served by granting the Petitioner's motion for reconsideration, should the votes of the alleged discriminatees in Case 26-CA-4169 be determinative. 10 No reason has been advanced which, to our satisfaction, relieves us of our responsibility of insuring all eligible voters the opportunity to vote. Accordingly, we shall direct the Regional Director to reconsider his rulings regarding the five employees named in the complaint in Case '26-CA-4169, and to consolidate the representation matter regarding the five named employees with 10 Although the Employer's response was filed a week late, there is some basis for the Employer's confusion , as extensions of time for filing exceptions and briefs to the Hearing Officer's report and responses to the Notice to Show Cause referred to the same case number, and were due separately only I week apart Such reasons for late filings are not condoned by the Board, but, in view of our Decision herein , we do not believe the Petitioner will be prejudiced in any manner by our denial of its motion to quash 862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Case 26-CA-4169 for purposes of hearing, ruling, consideration, and decision by a Trial Examiner should such consolidation appear necessary because the five votes may be determinative. In this regard, should the Regional Director find , after opening and counting the ballots to which the challenges have been overruled, that the votes cast for the Petitioner tally a majority of more than five , or that the tally of votes cast against the Petitioner lacks more than five of being a majority, then the Regional Director should take the appropriate action by either certify- ing or directing a second election, respectively. However, should the Regional Director find that the five challenged votes are determinative , he shall direct that the issues concerning them be consolidat- ed with Case 26-CA-4169. DIRECTION It is hereby directed with regard to the election held on August 20, 1971, in Case 26-RC-3997, that the Regional Director for Region 26 shall, pursuant to the Board's Rules and Regulations, within 10 days from the date of this Direction, open and count the ballots of Nathan Strain, Dorothy Cantrell, Peggy Todd, Lloyd Spence, Samuel Maze, Rogenia Farrow, Elvie Choate, Francis Rogers, Margie Farmer, Maxine Clements, and Clyde Tipton, and thereafter prepare and cause to be served on the parties a revised tally of ballots, including therein the count of the above ballots; and IT IS HEREBY FURTHER DIRECTED that if the results according to the revised tally indicate that the Petitioner has received a majority of more than five of the total votes cast, including the above-named challenged ballots, the Regional Director shall certify Petitioner as the exclusive representative for collec- tive-bargaining purposes of the employees in the appropriate unit. However, if the revised tally of ballots indicates that the number of ballots cast against the Petitioner exceeds those cast for it by five or more, then it is ordered that the election held on August 20, 1971, in Case 26-RC-3997, be set aside, and that the Regional Director for Region 26 conduct a second election among the employees in the unit found appropriate, at such time as the Regional Director deems that the circumstances permit the free choice of a bargaining representative. However, if the revised tally of ballots shows that the ballots of Shawanne Cook, Doris Cook, Ida Lou Williams, Betty Cook, and Mary Terry will be determinative of the outcome of the election, then, IT IS ALSO FURTHER DIRECTED that the Regional Director consolidate Case 26-CA-4169 and the representation matter regarding those five named employees in Case 26-RC-3997, whose challenged ballots have not yet been ruled upon, for purposes of hearing, ruling, consideration, and decision by a Trial Examiner, and proceed further in accordance with the Board's Rules and Regulations. CHAIRMAN MILLER, dissenting: (1) I would not reverse the Hearing Officer's recommendations regarding the three employees, Martin, Jackson, and Moore, whom he found to be employees and not supervisors. There is no showing on this record that these employees hire , fire, assign, discipline, or effectively recommend such action, or even responsibly direct other employees. Indeed, the record shows only that these employees have some responsibility for the flow of work through their respective departments, in that they make sure each employee is supplied with work. It appears that the work in each department is of like nature and routine, and that no exercise of genuinely discretion- ary independent judgment is necessary in assigning employees to different machines within the same department. The three alleged supervisors, corrobo- rated by other employees, testified that they had to check with the plant manager , or owner Roseman before they could take any effective, responsible action regarding other employees. Although the ratio of employees to supervisors seems low, that fact, standing alone, can create only an inference and cannot serve as a solid evidentiary base to support a finding that the criteria provided in Section 2(11) of the Act have been met. The record evidence establishes only that these individuals are more senior employees acting in the capacity of nonsuper- visory "leadmen." I would so find, and consequently open and count their ballots, along with the other ballots to which challenges have been overruled. (2) For the reasons set forth in my dissent in the Notice To Show Cause, 196 NLRB No. 23, I would not grant Petitioner's motion to direct the Regional Director to reconsider his rulings regarding the five challenged voters , alleged now as discriminatees, or to consolidate this representation case with subse- quent unfair labor practice case.