Richardson Brothers Co.

314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Richardson Brothers Company and Local 800, United Furniture Workers of America, AFL-CIO, Peti- tioner. Case 30-RC-2698 February 18, 1977 SUPPLEMENTAL DECISION AND CERTIFICATION OF REPRESENTATIVE' BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO Pursuant to authority granted it by the National Labor Relations Board under Section 3(b) of the National Labor Relations Act, as amended, a three- member panel has considered objections to and determinative challenges in an election held on December 18, 1975,2 and the Hearing Officer's report recommending disposition of same. The Board has reviewed the record in light of the exceptions and briefs, and hereby adopts the Hearing Officer's findings and recommendations,3 except as modified hereinafter. The Hearing Officer found that Richard Menzer is not a supervisor. We disagree, for the following reasons. Menzer is employed in the finishing department as either a "leadman" or "assistant foreman." 4 Menzer's basic function is to keep the production line in the finishing department running smoothly. As part of that function he reassigns the department's 22 em- ployees among the various jobs to meet workflow demands ; 5 examines the work of these employees, pointing out mistakes; checks on errors reported to him by the inspector; and trains new employees. He also substitutes for Finishing Department Supervisor Heckman during his absence. Menzer, in carrying out his duties in connection with monitoring and reassigning the work in a department as large as the finishing department, must of necessity make judgments which are more than routine in nature. Unlike the Hearing Officer, there- fore, we conclude that Menzer responsibly directs employees in their work and that his duties in this regard indicate supervisory status. Further indicative of Menzer's supervisory status is the fact that Heckman informed employees that they would be taken to the personnel office if they failed to obey Menzer's instructions. While the effect of being taken to the personnel office is not set forth in the record, it is clear that employees viewed this action as at least a prelude to possible discipline. Thus, employees in effect were told that Menzer's orders were to be obeyed or discipline would be a likely consequence. In these circumstances, the employees had every reason to conclude that Menzer had the type of authority indicative of supervisory status. 228 NLRB No. 44 We conclude, therefore, that Menzer is a supervi- sor. Accordingly, we shall sustain the Petitioner's challenge to Menzer's ballot. As we have sustained the challenges to the ballots of David Herberg, Richard Menzer, and Stella Miller, and as the ballots of Virginia Boetcher, LeRoy Schuricht, and Albert Wiedemann cannot affect the outcome of the election, we do not adopt the Hearing Officer's recommendation to open and count their ballots. Since the Petitioner has received a majority of the valid votes cast, we shall issue the following: CERTIFICATION OF REPRESENTATIVE It is hereby certified that a majority of the valid ballots have been cast for Local 800, United Furni- ture Workers of America, AFL-CIO, and that, pursuant to Section 9(a) of the National Labor Relations Act, as amended, said labor organization is the exclusive representative of all the employees in the following appropriate unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employ- ment: All production and maintenance employees em- ployed by the Employer at its Sheboygan Falls, Wisconsin, plant, excluding office clerical employ- ees, professional employees, guards and supervi- sors as defined in the Act. 1 The instant decision supplements the Decision and Order issued by the Board in this proceeding on April 13, 1976 (not contained in the printed volumes of the Board's Decisions). 2 The election was conducted pursuant to a Stipulation for Certification Upon Consent Election . The tally was 61 for, and 57 against , the Petitioner; there were 6 challenged ballots. 3 In the absence of exceptions thereto, we adopt pro forma the Hearing Officer's recommendation that Petitioner 's Objections I through 4 be overruled. The portion of the Hearing Officer's report pertinent to the challenged ballots is attached hereto as an appendix. 4 There is a conflict in the testimony as to his exact designation. 5 Even though the assignments are not permanent, they are indicative of supervisory authority. APPENDIX THE CHALLENGES David Herberg The Petitioner challenged Herberg's ballot claiming that he is a casual employee. The Employer contends that Herberg is a regular part-time employee. Herberg began working for the Employer in Sep- tember 1975, at the beginning of his senior year in high school. His job is to chip the accumulated varnish from pallets used in production and to move boxes. Herberg's hours are from 7 a.m. to 12 Noon on Saturdays. It appears that the job was arranged for RICHARDSON him by his father, William Herberg, purchasing agent for the Employer, as the younger Herberg recalls being told about the job by his father; does not recall filling out an application ; and was told his hours of work by his father. The duration of his employment was not discussed when he was hired. Although Herberg stated that Kenneth Heckman, foreman of the finishing department, supervises his activities, Herberg does not report to him at the beginning of his workday. Nor, apparently, is Her- berg required to report his absences or call in when he is unable to work. He is required to punch a timeclock to report his hours worked. The work done by Herberg is not normally includ- ed in the job duties of full-time production employ- ees. However, during the recent slack period, the Employer has allocated this work to production employees in order to keep them busy. During times of full production the Employer keeps a special crew of clean-up employees to perform this work, as well as the cleaning of production booths, after the end of the production shift and on Saturdays. Typically these employees are drawn from the senior class of the high school. One indication that they do not continue in these jobs long after graduation is the fact that the Employer made no attempt to recall the crew disbanded in early 1975 when work became available in September 1975. At the time of the election, Herberg was the only clean-up worker employed. He says he worked alone. There is no evidence that he had contact with any production employees . Herberg receives none of the benefits enjoyed by full-time production employees. The Employer has submitted photocopies of Her- berg's timecards which indicate that he worked 9 of the 14 Saturdays before the election. The Employer presented testimony to show that his absences on November 8, 22, and 29 were due to an injured shoulder. No reason has been offered for his absence on October 25; the September 27 timecard was not submitted. Although the Petitioner attempted to show that Herberg's absences can be primarily attributed to conflicts between his work schedule and that of his school athletic activities (varsity football and basketball), with the athletic events taking priority, the record does not support this claim. Football and basketball games and practices were scheduled for weekdays only. There are only two absences for which Herberg cannot account, Septem- ber 27 and October 25. Therefore, the bulk of the scheduled workhours missed by him (18.2 of 28.2) can be attributed to his shoulder injury, with which he was not able to perform his job. Nevertheless, Herberg worked only 41.7 of the 70 hours for which he was scheduled during the 14 weeks before the election. This results in an average of fewer than three BROTHERS CO. 315 hours worked per week and about a 40 percent absence record. Based upon the above, I conclude that David Herberg is a casual employee, and does not share a community of interest with unit employees. Herberg does not perform unit work ; he has no contact with production employees ; he is not entitled to benefits received by production employees . His average number of hours worked is below that set by the Board to distinguish casual employees in other cases. Allied Stores of Ohio, Inc., 175 NLRB 966. Further, in a case involving a student who did not work in the unit, a 40 percent absence rate for scheduled Satur- days excluded a fording of regular part-time status for that period. N.L.R.B. v. Sandy's Store, Inc., 398 F.2d 268 (C.A. 1, 1968), wherein a Board Order was modified. Moreover, in cases where the majority of student employees terminate their employment soon after graduation (which appears to be the experience of the Employer in the instant case ), the Board is reluctant to include those employees in a unit, regardless of the number of hours worked or the tasks required. Highview, Incorporated, 223 NLRB 646; Pawating Hospital Association, 222 NLRB 672; Auto- mation and Measurement Division of the Bendix Corporation, 179 NLRB 140. Therefore, I recommend that the challenge to the ballot of David Herberg be sustained. Richard Menzer The Petitioner challenged the ballot of Richard Menzer on the basis that he is a supervisor. The Employer contends that Menzer is at most a lead- man, and does not possess supervisory authority. Menzer is employed in the finishing department, which consists of 22 employees. Kenneth Heckman is foreman of the department. Menzer was referred to by Petitioner's witness, employee Carole Fenslau, as the "assistant foreman," although the Employer's witness, M. Glen Dulmes (vice-president-manufac- turing), testified that Menzer's title is "leadman." Menzer has held the position for about 2 years. Although testimony was offered by both parties concerning past occupants of the position now held by Menzer, I do not consider that relevant to a determination of the status and authority held by Menzer at the time of the election. Menzer's basic function appears to be to keep the production line running smoothly. To that end, his job consists of starting the line and various machines before the beginning of the shift; the movement of materials and supplies as the needs of the line demand ; the hour-to-hour reassignment of employees among the various jobs in the department as the workflow demands; filling-in on jobs that are back- logged, including inspection (Menzer knows how to 316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD perform all the operations in the department). In addition to these duties, Menzer is required to train new employees in the job positions to which they are assigned by Heckman; to check on the work of employees and point out errors; to check on errors referred to him by the inspector (Heckman receives about an equal number of these referrals); to substi- tute for Heckman during the latter's absences. Although Menzer may move employees among the jobs they are capable of performing in order to facilitate movement of the line, Dulmes testified that only Heckman has the authority to assign employees to their primary job positions or assign them to be trained for a second operation. There is no evidence that Menzer has ever encroached upon this authority or has effectively recommended the assignment of employees to certain job positions . In one situation described by Fenslau, an employee even refused to move to another job when correctly requested to do so by Menzer. The problem was then resolved by Heckman. Heckman's responsibility also encompasses the discipline of employees and the authorization of vacation leave and floating holidays. He must also complete the forms appropriate to these actions. Dulmes testified that Menzer has never used the forms, even in Heckman's absence. The forms are kept locked in Heckman's desk, to which Menzer does not have a key. If such problems arise during Heckman's absence, they are handled by Superinten- dent Robert Ten Pas. Further, Menzer does not take over Heckman's responsibility to review employee worksheets (timesheets). He does not grant time off or settle grievances in Heckman's absence, but refers such problems to Ten Pas or to Personnel Director Ted Bergstrom. Menzer is hourly paid, unlike Heck- man, who is a salaried employee. Although Menzer's hourly rate is 30 cents higher than the next highest rate in the department, this has been attributed to the fact that he is the only one in the department who is capable of performing all of the operations. Menzer is not entitled to the extra benefits granted foremen, including extra life insurance and income-continua- tion protection. Menzer does not attend supervisory meetings, nor has he ever been invited to them. The extensive testimony regarding the relative amounts of authority held by Heckman and Menzer was presented by the Employer through Duhnes. However, the Petitioner presented no contradictory testimony. Menzer was not presented by either party. The record shows then that Menzer's authority over his fellow employees is limited to his checking of their work and his moving them among the various jobs in the department according to production demands. As he has no authority to discipline employees or recommend such, his checking of their work remains at the level of an inspector, merely pointing out errors and requesting that they be corrected. His reassign- ment of employees among jobs in which they have been trained is for the purpose of maintaining a smoothly-flowing line. His authority does not extend to the original assignments of jobs . Employee Fenslau testified that the department was informed by Heck- man that Heckman would stand behind Menzer and that if employees did not listen to Menzer, he, Heckman, would take them to the personnel office. Petitioner's witness employee Gloria Klumb testified that she had been warned by Menzer himself that if she did not move to another job as he requested, she would be taken to the personnel office. These statements cannot be considered grants of extensive authority or disciplinary authority to Menzer. When Menzer was faced with an employee's refusal to move to another job, he referred the matter to Heckman without taking his own action. Based on the above, I conclude that Menzer's authority does not rise to the level of supervisory status. Therefore, I recommend that the challenge to his ballot be overruled and that his ballot be opened and counted. Stella Miller The Petitioner challenged the ballot of employee Stella Miller on the basis that she does not perform unit work. The Employer however, contends that since Miller does maintenance work, she is to be included in the unit. Stella Miller works 3 days a week for a total of about 6 hours, cleaning the Employer's main office located in a building separate from the production plant. This work is done after the office has closed. Miller performs no job duties within the production plant, and she does not appear to have any contact with production employees. She is supervised,by the office manager, while unit employees are not. Al- though an unchallenged unit employee, Erwin Wag- ner, occasionally cleans the offices, his principle maintenance duties are performed in the production area while the plant is in operation. Miller does not enjoy any of the benefits received by other employees, such as insurance, paid vacations and holidays, or membership in the employee Benefit Club. Based on the above, I conclude that although Stella Miller may perform "maintenance" work for the Employer, she does not share a community of interest with the unit employees. Wendling Printing Company, 177 NLRB 544. Therefore, I recommend that the challenge to her ballot be sustained. RICHARDSON BROTHERS CO. 317 Virginia Boetcher The ballot of employee Virginia Boetcher was challenged by the Petitioner on the basis that she is an office clerical employee, with duties and working conditions differing from those of unit employees. The Employer maintains that she is not an office clerical employee but is rather a plant clerical. Boetcher classifies her job as "production clerk" engaged in "production control." She is the only employee in that classification. Her duties include monitoring and recording production ; preparing route sheets for work to be performed, checking bills of lading against orders ; pulling timecards ; posting absentee records ; and several miscellaneous duties such as delivering mail within the plant; posting notices; answering the telephone during certain hours. Although these are "clerical" functions rather than production or maintenance duties , the Board does not decide community of interest and unit placement merely upon the nature of the job per- formed by the employee. Boetcher is required by the production control portion of her job to spend part of her working day in the plant, monitoring production and resolving problems with production records and plans. The greater portion of her working day is spent in her office, which is located within the plant, a building separate from the main business office . Her only contact with the main office is in her delivery there of mail or records . Boetcher's work is supervised by the plant superintendent, while that of the clericals in the business office is supervised by the office manager. Although she does not punch a timeclock as do the production employees, Boetcher shares their starting time of 7 a.m., whereas the business office clericals begin work 1 hour later. Boetcher is entitled to the same benefits enjoyed by the production employees, including breaks and a pension plan . The business office clericals are not entitled to breaks, although they do have a pension plan. However, the business office pension plan offers a larger amount than the plan to which the produc- tion employees are entitled . Boetcher is listed in the latter plan. The record does not reveal the Employer's back- ground requirements for the classification of produc- tion clerk . Nevertheless, the position appears to be a progression from a production position rather than from, or to, a business office position. No shorthand or speed-typing skills are required, and Boetcher is not expected to prepare correspondence of any nature . Previous to this job she worked in one of the Employer's assembly departments. Based on the above, I find that Virginia Boetcher shares a stronger community of interest with the production and maintenance employees than she might have with the business office clericals based upon the similar nature of their duties . Moreover, the duties required of Boetcher have been found in other cases to be sufficiently close to production to warrant the status of plant clerical . U. S. Postal Service, 200 NLRB 1143. Therefore, I conclude that the challenge to the ballot of Virginia Boetcher should be overruled and recommend that her ballot be opened and counted. Le Roy Schuricht The Petitioner challenged employee Le Roy Schur- icht's ballot claiming that he was a supervisor at the time of the election. Schuricht was foreman of the Employer 's Rough Mill until May 21, 1973, when his requested transfer from supervisory status was granted . Since that time he has been an inspector in the Rough Mill and has held no supervisory authority, with a possible excep- tion of 1-1/2 days in 1975. Sometime in November or December 1975, the foreman of the Rough Mill took an extended medical leave and Aubrey Reicher, a quality-control employ- ee, was assigned to perform the foreman's duties until his return. As Schuricht had previously been foreman of the Rough Mill, he was assigned to assist Reicher's takeover of the position . At most, Schuricht assisted Reicher for 1-1/2 days ; most of that time apparently being spent instructing Reicher in the preparation of the department's paperwork. Reicher was an experi- enced supervisor, having had 10 years' previous experience as a foreman in another department. Although it is doubtful that Schuricht exercised any supervisory authority during the absence of the Rough Mill foreman, and in his rendering assistance to Reicher, even had he done so, that isolated exercise of authority in itself would not exclude him from the unit as a supervisor. Gordon Mills, Inc., 145 NLRB 771. Alternatively, Petitioner presented evidence indi- cating that Schuricht is responsible for the operation of the kiln, a duty he held while foreman of the Rough Mill. This in itself cannot exclude Schuricht as a supervisor. Although operation of the kiln involves a large degree of responsibility, it requires no exercise of authority over other employees. Based on the above, I conclude that Le Roy Schuncht was not a supervisor at the time of the election and that the challenge to his ballot should be overruled and recommend that his ballot be opened and counted. Albert Wiedemann The Petitioner based its challenge to Wiedemann's ballot on the fact that he was not working on the day of the election . The issue to be decided, however, is 318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD whether he was an employee on the date of the election. Wiedemann, a cabinetmaker, works 25 hours per week repairing tables in the Employer's table depart- ment. Since at least 1972, Wiedemann has taken annual leaves of absence near the close of the calendar year in order to avoid surpassing the annual earnings limitations imposed by his Social Security status. It was during his 1975 leave of absence that the election in the instant case occurred. One's status as an employee is not extinguished during a leave of absence taken in order to avoid exceeding the earnings limitation. Holiday Inns of America, Inc. d/b/a Holiday Inn of Oak Ridge, Tennessee, 176 NLRB 939, enfd. 440 F.2d 994 (C.A. 6, 1971). It is presumed that the employee will return when he may again earn wages without threatening his annuity benefits. Although Wiedemann and his foreman did not discuss a precise date for his return to work in 1976, their brief comments indicate that Wiedemann intended to return and there was no evidence to suggest that Wiedemann would fail to follow his pattern of returning to work during the first week of the new year. The fact that other employees may be asked to file a formal request for leave, where Wiedemann is not required to do so, is not surprising considering the recurrent nature of his leaves of absence. Based on the above, I conclude that Wiedemann was an employee on December 18 and eligible to vote in the election. Accordingly, I conclude that the challenge to his ballot should be overruled and recommend that his ballot be opened and counted. CONCLUSIONS AND RECOMMENDATIONS Based upon the findings of fact made herein and the principles of law discussed above, I recommend that the Petitioner's Objections Nos. 1 through 4 be overruled. I further recommend that the challenges to the ballots of Virginia Boetcher, Richard Menzer, Le Roy Schuricht and Albert Wiedemann be overruled and their ballots opened and counted; that the challenges to the ballots of Stella Miller and David Herberg be sustained; and that a revised tally of ballots issue reflecting the results of the count. Finally, I recommend that, based upon the Revised Tally of Ballots, either a Certification of Results of Election or a Certification of Representative issue.