Cooper Mattress Manufacturing Co.

200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cooper Mattress Manufacturing Company and Tex- tile Workers Union of America, AFL-CIO-CLC, Petitioner. Case 10-RC-10491 June 25, 1976 DECISION ON REVIEW AND DIRECTION BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS Pursuant to a Decision and Direction of Election I issued by the Regional Director for Region 10 on November 12, 1975, an election by secret ballot was conducted on December 10, 1975, among the em- ployees in the appropriate unit.2 Upon the conclusion of the election, the parties were furnished with a tally of ballots which showed that of approximately 21 eli- gible voters 10 cast valid ballots for Petitioner, 8 cast valid ballots against Petitioner, and 3 ballots were challenged. The challenged ballots were sufficient in number to affect the results of the election. In accordance with National Labor Relations Board Rules and Regulations, the Regional Director conducted an investigation of the challenged ballots, and on January 27, 1976, issued and duly served on the parties a Supplemental Decision and Certifica- tion of Representative in which he sustained the challenges to the ballots of employees Sim Fish, Jr., and Lenora Briley, involved herein, and overruled the challenge to the ballot of Edgar Ralph Griffin. Having concluded that Griffin's ballot would there- fore not affect the results of the election, the Region- al Director certified Petitioner as the collective-bar- gaining representative of the employees in the unit found appropriate. Thereafter, in accordance with Section 102.67 of the National Labor Relations Board Rules and Reg- ulations, Series 8, as amended, the Employer filed a timely request for review of the Regional Director's supplemental decision, contending that the Regional Director erred in finding Fish and Briley ineligible.3 By telegraphic order dated March 11, 1976, the National Labor Relations Board granted the 1 The Employer filed a request for review of the Regional Director's Deci- sion and Direction of Election, claiming that employee Lenora Briley is a plant clerical employee, not an office clerical employee as found by the Regional Director The Board denied the request for review and directed that Briley be permitted to vote subject to challenge 2 The appropriate unit as found by the Regional Director consists of all production and maintenance employees , including truckdrivers, but exclud- ing office clerical employees, salesmen , professional employees, guards, and supervisors as defined in the Act Counsel for Sim Fish , one of the challenged voters, filed a request for review and motion to intervene The Board, by telegraphic order dated March 24, 1975, found that Fish had no standing to request review, but permitted him to intervene with reference to matters affecting his rights Employer's request for review. Thereafter, the Em- ployer filed a brief on review, as did counsel for Sim Fish, Jr. 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 considered the entire record, in- cluding the briefs on review, in this case with respect to the issues under review and makes the following findings: At issue here is the unit placement of employees Sim Fish, Jr., and Lenora Briley. In his Decision and Direction of Election, the Regional Director directed that Fish be allowed to vote subject to challenge, as the record was unclear as to whether the parties had agreed to exclude him from the unit, and, if so, on what basis. The ballot of Fish was challenged by the Board agent. In his supplemental decision, after investigation, the Regional Director found that the parties had in- tended to exclude Fish and, as such agreement was not repugnant to the Act, he sustained the challenge. As to Briley, the Regional Director sustained the challenge to her ballot finding that she is an office clerical employee and therefore ineligible. The Employer, in its request for review, urges that there was no complete and binding agreement to ex- clude Fish from the unit, and that his duties as a janitor indicate that he has a community of interest with the production and maintenance employees. The Employer further claims that Lenora Briley's du- ties show that she is a plant clerical employee who should also be included in the production and main- tenance unit. We find merit in the Employer's con- tentions. With respect to the purported agreement to ex- clude Fish, the Regional Director found that the par- ties at the representation hearing in an off-the-record discussion entered into an agreement to exclude Fish for lack of community of interest with the production and maintenance employees. The Regional Director noted that the record did not reflect the agreement. As indicated above, the Regional Director directed that the "janitors" (Fish's classification) vote subject to challenge. According to the Regional Director, neither party moved to alter its position regarding Fish upon the issuance of the Decision and Direction of Election. The Regional Director further found that, although the Employer filed a request for re- view of his decision, the Employer did not mention Fish. The Regional Director further found that, prior to the election, the Employer footnoted Fish's name on the eligibility list as follows. "Mutually excluded by Petitioner and Company." Both parties approved 225 NLRB No. 21 COOPER MATTRESS MFG. CO. 201 and initialled the election list in the presence of the Board agent. The Regional Director therefore concluded that both parties intended to exclude Fish from eligibility, and, as their agreement was not repugnant to the Act, Fish was so excluded. The Regional Director cited Banner Bedding, Inc.,4 for comparison. The Employer takes issue with the conclusions reached by the Regional Director concerning the agreement to exclude Fish. Contrary to the Regional Director's statement, the Employer maintains, and the record shows, that it did mention Fish in its ini- tial request for review, stating that it had no objec- tion to Fish participating in the election as directed. The Employer admits that it approved the eligibility list at the preelection conference, but claims that the Regional Director omitted some of the fact sur- rounding the approval. According to the Employer, at the preelection conference, Employer's attorney specifically requested that Fish be allowed to vote without challenge. Petitioner's representative object- ed to Fish and wished to challenge his ballot. The Board agent informed the parties that he had been instructed by the Regional Director to challenge Fish's ballot and that he would do so. The Employer asserts that it signed the eligibility list only after re- ceiving assurances from the agent that Fish would be allowed to vote subject to challenge. Furthermore, the Employer contends, contrary to the Regional Director's assertions, that there was never any off-the-record discussion concerning Fish's job duties of his community of interest with the production and maintenance employees, and that, although there may have been some type of agreement to exclude Fish, that agreement was not based on Fish's alleged lack of community of inter- est. Without relying on any of the foregoing conversa- tions which assertedly occurred between the parties at the hearing or with the Board agent at the preelec- tion conference, we conclude that no binding agree- ment was reached to exclude Fish. The mere addition and initialling of a footnote on the eligibility list, we find, does not rise to the level of a Norris-Thermador binding agreement.' Additionally, whatever oral agreement may have existed does not fall within the exception to Norris- Thermador formulated by the Board in Banner Bed- ding, supra. In that case, which involved a consent 214 NLRB 1013 (1974) 5 Norris-Thermador Corporation, 119 NLRB 1301 (1958) The Board de- termined that it would consider a "written and signed agreement which ex- pressly provides that issues of eligibility resolved therein shall be final and binding upon the parties" as a "final determination of the eligibility issues treated therein" unless the agreement is contrary to the Act or Board policy election, there was unequivocal evidence, acknowl- edged by both parties, that they had orally agreed to exclude an employee from voting. The Board accept- ed the oral agreement as disposing of the eligibility question, as both parties admitted that an agreement had been reached and there was no difference of opinion as to the nature of the agreement. In the circumstances which exist here, including the appar- ent absence of an agreement concerning the discus- sions regarding Fish, we find that the principle of Banner Bedding does not apply. Therefore, a determi- nation of Fish's duties and his community of interest with the production and maintenance employees is in order. Fish is classified as a janitor and works 6 hours a week, on a regular part-time basis, during the hours when other employees work. He is supervised by the assistant plant manager. The record reveals that Fish cleans the plant, vacuums and waxes the office floors, and empties the office trash. According to the Employer, Fish spends half his time in the produc- tion area, cleaning that area and the restrooms. Un- like the other employees, Fish does not share in the Employer's hospitalization and pension plans, but he does share in the Christmas bonus on a pro rata basis. By job function, Fish appears to be a maintenance- type employee, covered literally by the word "main- tenance" in the unit description. In any event, the record demonstrates that he shares a substantial community of interest with the other unit employees and, since he works in the same area as the other employees on a regular part-time basis and has the same ultimate supervision,' we conclude that he is included and is an eligible voter. We turn now to a consideration of the unit place- ment of Lenora Briley, whom the Regional Director found to be an office clerical employee and ineligible to vote. Briley works in an office area, which is the only office in the plant, located approximately 20 yards from the production area. Briley's duties con- sist of signing invoices that come in from customers ordering the Employer's products. She takes the or- der, usually over the phone, and sends the order into the plant where it is processed. Daily production is based in large part on the invoices routed by Briley. Briley is also responsible for tracing orders, deciding upon shipping dates, maintaining an inventory of jobbed goods, and reordering goods when necessary. Briley also maintains flammability records as re- quired by the Federal Government. Briley, as well as the truckdrivers and several of the production and maintenance employees, is paid a salary, whereas other employees are paid on an hour- ly basis. She participates in the same fringe benefit 6 Food Marts, Inc, 200 NLRB 18 (1972) 202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plans as do the other employees. Although Briley has limited face-to-face contact with the production em- ployees, she shares similar working and lunch hours. She also acts as a receptionist for approximately I hour per day. Based upon the record facts, we conclude that Bri- ley is predominantly engaged in duties related to the inventory and production of the Employer and, ac- cordingly, we find that she is a plant clerical employ- ee rather than an office clerical and properly belongs in the unit.' Accordingly, we find that she is an eligi- ble voter. Inasmuch as the ballot of Edgar Ralph Griffin, the challenge to which was overruled, may now be deter- 7 Girton Manufacturing Company, Inc, 129 NLRB 656 (1960) minative, we shall also order that his ballot be opened and counted. DIRECTION It is hereby directed that the Regional Director for Region 10 shall, pursuant to the Board's Rules and Regulations, within 10 days of the date of this Deci- sion on Review and Direction, open and count the ballots of Sim Fish, Jr., Lenora Briley, and Edgar Ralph Griffin and thereafter issue a revised tally of ballots and an appropriate certification based there- on. The above-entitled matter is hereby remanded to the Regional Director for Region 10 for the purpose of carrying out the Board's direction herein.