McCleary Industries, Inc.

476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD McCleary Industries, Inc. and Amalgamated Meat Cutters & Allied Food Workers Union, Local #444, affiliated with Amalgamated Meat Cutters & Butch- er Workmen of North America AFL-CIO, Peti- tioner. Case 38-RC-1225 August 10, 1973 DECISION AND ORDER BY MEMBERS JENKINS , KENNEDY, AND PENELLO Pursuant to a petition and a Stipulation for Certifi- cation Upon Consent Election filed on August 14, 1972, an election by secret ballot was conducted on November 30, 1972, under the direction and supervi- sion of the Regional Director for Region 13. At the conclusion of the election, the parties were furnished with a tally of ballots which revealed that, of approxi- mately 74 eligible voters, 32 cast ballots for, and 27 cast ballots against, the Petitioner. There were six challenged ballots which were sufficient in number to affect the results of the election. Thereafter, both the Petitioner and the Employer filed timely objections to conduct affecting the results of the election. The objections were investigated by the Regional Director who on February 5, 1973, served on the parties his Report on Challenged Ballots and Objections, in which he recommended that a hearing be held to resolve the issues raised by five of the challenged ballots; that the remaining challenged ballot, declared void by the Board agent, be counted as a "No" vote; that one ballot, subject of a postelec- tion objection by the Petitioner, and counted as a "No" vote by the Board agent, be declared void; and that all remaining objections be overruled. Thereafter, both the Petitioner and the Employer filed limited exceptions to the Regional Director's re- port and, subsequently, the Petitioner filed an answer- ing brief to the Employer's exceptions. On March 27, 1973, the Board, after considering the Regional Director's report, the exceptions, and the briefs, adopted the Regional Director's findings and recom- mendations. The Board further ordered the Regional Director to proceed with the hearing to resolve the issues raised by the five challenges. Pursuant thereto, a hearing was conducted on April 5 and 6, 1973, at Beloit, Wisconsin, before Hearing Officer Lester V. Smith, Jr. On May 2, 1973, the Hear- ing Officer issued his Report on Challenged Ballots in which he recommended that the challenged ballots cast by Lawrence Madru, Marie Anastasi, and Wil- liam Perrin be overruled, and that the challenges to ballots cast by Elsie Kislia and Margaret Anderson be sustained. Inasmuch as the ballots cast by Perrin, Anastasi, and Madru would not be determinative of the results of the election, he recommended that the Petitioner be certified. Thereafter, the Employer filed exceptions to the Hearing Officer's disposition of bal- lots cast by Kislia and Anderson. Petitioner filed an answering brief. 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 au- thority in this proceeding to a three-member panel. The Board has reviewed the Hearing Officer's rul- ings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. The Board has considered the Hearing Officer's report and recommendations, the Employer's excep- tions, the Petitioner's answering brief, and the entire record in this case. While we, in the absence of excep- tions, adopt his findings and recommendations that the challenges to ballots cast by Madru, Anastasi, and Perrin, be overruled, we find merit in the Employer's exception to the Hearing Officer's recommendations that the challenges to the ballots cast by Kislia and Anderson be sustained. The Employer operates a processing plant and is engaged in the production of snack foods. The Em- ployer maintains three shifts. Each of the first two shifts has a manufacturing crew. The third shift is a cleanup shift and is not involved in this proceeding. Each manufacturing shift basically is broken down into a kitchen area where the product is manufac- tured, a packaging area where the product is pack- aged by machine, and a packing area where the product is packed into shipping cartons. The record shows that at all times material the du- ties of Elsie Kislia and Margaret Anderson have been substantially similar. By way of background, prior to August 1972 each held the title of floorlady. In their respective capacities they along with the shift foreman reviewed employment applications on file and in many instances when an applicant was selected for employment by the Employer, it was Kislia or Ander- son who called and informed the applicant of the decision. In the course of the conversation the pros- pective employee was advised when to report for work and as to the proper attire to wear. Upon arrival at the plant the new employee had the details of his job explained by the floorladies who were also responsi- ble for the employee's training and orientation. The Employer contends that the system was changed in August 1972 when it hired a personnel manager who assumed a number of the functions involving employ- ees previously performed by Kislia and Anderson. As a result of personnel changes in the Employer's organization, Kislia and Anderson now hold the title of senior packers on the first and second shifts, re- 205 NLRB No. 85 McCLEARY INDUSTRIES, INC. spectively . They now assist other packers who fall behind in filling boxes, make coffee and perform other duties similar to those of other packers, and on occasion check the timecards of other employees. The Hearing Officer found that, although it appears they have been relieved of some of their responsibilities regarding other employees by the addition of the per- sonnel manager, their duties continue to include the instruction , training, and assignment of work to other packers. They continue to be responsible for the pack- ers' personal appearance and must judge , and if ne- cessary criticize, their work . On the basis of the foregoing he concluded they are supervisors within the meaning of the Act and recommended that the challenges to ballots cast by them be sustained. We find merit in the Employer's exceptions. From a review of the record as a whole we are not persuaded that the above findings on which the Hear- ing Officer relies are sufficient to establish that Kislia and Anderson are supervisors . Thus the record re- veals that while Kislia and Anderson received a $25 Christmas bonus which is the maximum for hourly paid employees, the same is true of eight other senior employees who like Kislia and Anderson are hourly paid . We note that all of Respondent's admitted su- pervisors are salaried and the minimum bonus re- ceived by them is $80. Also the hourly wages received by Kislia and Anderson are consistent with that re- ceived by other hourly paid employees with the same service and grade . The record shows that Kislia and Anderson do not have the authority to hire, fire, lay- off, assign overtime, or grant time off or wage increas- es. While their job descriptions state they are responsible for "Instruct [ing] new girls in procedure," such instruction appears routine , consistent with a set procedure, and not to require independent judgment. 477 It further appears that they direct other employees only on the instructions of admitted supervisors. Nor is there any evidence that Kislia's or Anderson's tell- ing other employees what to do in order keep busy during a lull in work or to move from one line to another is significantly different from similar instruc- tions given by other older and more experienced em- ployees to more recent employees. In our view they are at most leadladies and the routine training and instruction and direction they give are consistent with their long experience. Accordingly, as we find that at least since August 1972 Kislia and Anderson have not possessed supervisory indicia, we shall overrule the challenges to ballots cast by them. As we have overruled the challenges to the two ballots cast by Kislia and Anderson as well as ballots cast by three other employees, and as these may be determinative of the results of the election, we shall direct that the Regional Director open and count the said five ballots and cause to be served on the parties a revised tally. DIRECTION It is hereby directed that, as part of his investigation to ascertain the representative for the purposes of col- lective bargaining with the Employer, the Regional Director for Region 13 shall, pursuant to the Board's Rules and Regulations, within 10 days from the date of this Direction, open and count the ballots cast by Lawrence Madru, Marian Anastasi, William Perrin, Elsie Kislia, and Margaret Anderson and thereafter cause to be served on the parties a revised tally of ballots, including therein the count of the above-men- tioned ballots. Thereafter, the Regional Director shall issue the appropriate certification in accordance with the Board's Rules and Regulations.