Mamilton Halter Co.

HAMILTON HALTER CO. T. E. Hamilton, A Sole proprietor, d/b/a Hamilton Halter Company and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), Peti- tioner. Case 7-RC-16762 30 April 1984 DECISION AND DIRECTION BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND HUNTER The National Labor Relations Board, by a three- member panel, has considered determinative chal- lenges in an election held 13 October 1982 and the hearing officer's report recommending disposition of them. The election was conducted pursuant to a Stipulated Election Agreement. The tally of ballots shows 13 for and 10 against the Petitioner, with 10 challenged ballots. ' The Board has reviewed the record in light of the exceptions and briefs and has adopted the hear- ing officer's findings and recommendations only to the extent consistent with this Decision and Direc- tion. The issue before us is the voting eligibility of employees Ilona Thompson and Mary Lockwood. The hearing officer found that these employees do not share a community of interest with the Em- ployer's production and maintenance employees. 2 He concluded that Thompson and Lockwood are essentially office clerical employees and therefore recommended that the challenges to their ballots be sustained and that the Petitioner be certified as bar- gaining representative. The Employer excepts to the hearing officer's findings and recommendations. The Employer con- tends that Thompson and Lockwood are plant clerical employees properly included in the unit. For the following reasons we find merit in the Em- ployer's contention. The Employer is engaged in the manufacture, sale, and distribution of animal halters, collars, and rope products at its Lake Orion, Michigan facility. 3 At the hearing the parties agreed that seven challenges should be sus- tained and the Petitioner agreed to withdraw its challenge to one ballot. The hearing officer considered the remaining two challenges and, on concluding that these two challenges should be sustained, found it unnec- essary to open and count the ballot to which the Petitioner withdrew its challenge. a The parties stipulated to the appropriateness of the following unit: All full-time and regular part-time production and maintenance em- ployees employed by the Employer at its facility located at 3301-A Lappeer Road, Lake Orion, Michigan; but excluding office clerical employees, managerial employees, guards and supervisors as defined in the Act. 3 The facts set forth here are based on the credited testimony. The Employer has excepted to some of the hearing officer's credibility find- ings. The Board's established policy is not to overrule a hearing officer's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Stretch-Tex Co., 118 270 NLRB No. 60 Thompson and Lockwood are clerical employees at this facility. Each of them has a desk in an en- closed office area adjacent to the production floor. Their primary job responsibility is handling cus- tomer orders for the Employer's product. This function includes taking information from custom- ers, generally on the telephone, and transferring this information onto invoices. The invoices are routed through the production shop and returned to the clericals after the order has been filled. The clericals then prepare the necessary billing and shipping statements. A weekly record of these in- voices is maintained by the clericals. In addition to order processing, Thompson maintains an invento- ry of supplies and is responsible for ordering items such as tape and shipping labels. Lockwood is in charge of maintaining an inventory of products sold. Lockwood and Thompson spend between 70 percent and 95 percent of their working time in their office engaged in the above duties. In the re- maining time these employees perform other duties in the production area including filling sample orders for customers. On occasion they assist shop employees loading and unloading trucks. Thomp- son occasionally contributes to the design and de- velopment of new products. Lockwood stamps sizes on the tags of a product for one regular cus- tomer. We recognize that the distinction drawn between office clericals and plant clericals is not always clear. These disputed employees appear to share characteristics of both categories of employees in the variety of duties they perform and in the work- ing conditions they enjoy. On the basis of the record as a whole, however, we find that Lock- wood's and Thompson's tasks are more closely akin to those performed by plant clericals than those performed by office clericals. Their primary responsibility is processing customer orders and typing them onto invoice slips. This transcription of sales orders to forms to facilitate production is a function closely associated with production. See Weyerhauser Co., 132 NLRB 84 (1961); Jacob Ash Co., 224 NLRB 74 (1976). In addition, Lockwood and Thompson maintain inventories and order sup- plies, and Thompson collects employees' timecards. These are duties typical of plant clerical workers. See Magna Corp., 261 NLRB 104 (1982). Further- more, both clericals have assisted shop employees in loading and unloading trucks. The record indi- cates further involvement in the production process NLRB 1359, 1361 (1957). We find no basis for reversing the findings. Ad- ditionally, the Employer asserts that the hearing officer's findings are the result of bias. After a careful examination of the entire record we are sat- isfied that this allegation is without merit. 331 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by Thompson's involvement in product design and Lockwood's labeling of certain items. Based on all these factors we find that Lock- wood and Thompson are plant clericals who share a community of interest with the production and maintenance employees. They therefore are includ- ed in the bargaining unit. Accordingly, we shall direct that their ballots, and the ballot from which the Petitioner withdrew its challenged be opened and counted and that a revised tally of ballots shall issue. DIRECTION It is directed that the Regional Director for Region 7 shall, within 10 days from the date of this decision, open and count the ballots of Ilona Thompson, Mary Lockwood, and Nancy Kayne. The Regional Director shall thereafter prepare and cause to be served on the parties a revised tally of ballots and the appropriate certification. MEMBER ZIMMERMAN, dissenting. For reasons set forth in the attached excerpts from the hearing officer's report, I would find that employees Thompson and Lockwood are office clericals who lack a sufficient community of inter- est with the Employer's production and mainte- nance employees to warrant including all employ- ees in a single unit. Accordingly, I would adopt the hearing officer's recommendation to sustain chal- lenges to the ballots cast by Thompson and Lock- wood and to certify the Petitioner's representative status. 4 The Petitioner and the Employer agreed that the ballot of Nancy Kayne should be opened and counted. In these circumstances we grant this withdrawal request. APPENDIX D. The Issue As the parties reached agreement on eight of the ten challenges, the sole issue litigated at the hearing was the eligibility of two employees: Mary Lockwood and Ilona Thompson. The Petitioner took the position that Lock- wood and Thompson were not eligible voters as they were office clerical employees. The Employer took the position that Lockwood and Thompson were plant cleri- cal employees, properly included in the production and maintenance unit, (the election agreement made no men- tion of the classification "plant clerical") and therefore eligible to vote. II. FACTUAL FINDINGS A. Introduction Upon the entire record developed at the hearing and from my observation of the witnesses, the following find- ings of fact are made: B. The Employer's Business The Employer is a family run business engaged in the manufacture, sale and distribution of horse, cow, dog and cat halters, collars and rope products at its facility locat- ed at 3301-A Lapeer Road, Pontiac, Michigan. The co-owners of the company, T. E. Hamilton and his wife, Gwendolyn Hamilton, own and operate a sepa- rate business in Ferndale, Michigan. The undersigned notes that Pontiac, Michigan is located about 15 miles from Ferndale, Michigan. Some of the business affairs of Hamilton Halter Company, such as financial reports, typesetting and computerized payroll, are conducted at the Ferndale facility. C. The Managerial Hierarchy T. E. Hamilton and Gwendolyn Hamilton, as co- owners, are both responsible for the management of Hamilton Halter. However, only Gwendolyn Hamilton spends a significant amount of time at the Pontiac facili- ty, arriving at about 9:30 AM each day and spending an average of eight to ten hours per day there. T. E. Hamil- ton has no office at the Pontiac facility and is not respon- sible for the supervising of employees, and, does not, in fact, supervise any of the employees at that facility. There were in excess of about 25 employees at the Pontiac facility at the time of the election. Notwithstand- ing, Gwendolyn Hamilton asserted that there were only two supervisors, Marilyn Kondash and Clara Holcomb. The assertion that, though Mrs. Hamilton spends forty to fifty hours per week at the facility but does not supervise any employees, is not credible. Mrs. Hamilton claimed that she spent about 1/2 of here time at the facility in the shop, though another Employer witness, Nancy Kayne, estimated that Mrs. Hamilton spent 85 to 90% of her time in her office. Though neither Ms. Kayne nor Mrs. Hamilton seemed entirely credible during their testimo- ny, Ms. Kayne displayed more self assurance on this point and the undersigned finds that her estimate is closer to an accurate estimation. While in the shop, Mrs. Hamilton testified that, "I wander all over and talk to each and every one to see what they're doing . . . I happen to have a general interest in the total operation . ." (Tr. 551); "There isn't anybody that works in the entire plant that I have not at one time or another given something to do or asked them to do something .. ." (Tr. 573). This testimony is inconsistent with attempts, throughout her testimony, to disassociate herself with any supervisory authority. At one point, Mrs. Hamilton apparently claimed that she, an owner, had to obtain the approval of supervisory employee Clara Holcomb before exercising certain managerial powers. This assertion is not credible. The undersigned will delve further into supervisory scope later in this report. However, for the sake of defin- 332 HAMILTON HALTER CO. ing the Employer's hierarchy it is sufficient to note that Mrs. Hamilton acted as the general overseer of the facili- ty and was actively engaged in the supervision of Ilona Thompson and Mary Lockwood, the employees sta- tioned in the office adjacent to hers. Clara Holcomb acted primarily as the supervisor of the sewing and tack- ing area employees, Marilyn Kondash supervised the cut- ting department employees and Nancy Kayne acted as a working leader on the afternoon shift. Evidence adduced contrary to these findings was not credible and further illumination on the bases for these findings will be found below. D. The Layout Petitioner Exhibit #1, copy attached, was the only sketch of the facility submitted into evidence. There are some inaccuracies in the sketch which were noted during the testimony, but, basically, the sketch presents a fair idea of the layout of the Employer's facility [P. Exh. 1 omitted from publication.] Holding the sketch so that the words "shelf", "picnic tables", and "garage door" are in a normal reading posi- tion, the following notations are made: The sketch is ba- sically divided into three areas-the shipping and receiv- ing area on the left most side of the sketch; the middle section where the office, sewing machines (the nine unla- beled boxes in the middle) and tacking machines are lo- cated; and the cutting section on the right most side of the sketch where the break area (where there are picnic tables and a microwave oven) and cutting department are located. There are partitions with doors between the three main sections of the shop. The sketch shows the location of the restrooms located in the middle and right most sections of the sketch (marked "bathrooms"). There is a third restroom located in the left-most section of the sketch, in the lower left hand corner (marked only "room" on the sketch). In the middle section of the sketch, at the top, there is a depiction of the office area. The office consists of two rooms, one room being the office of co-owner Gwendolyn Hamilton, and the other office containing, inter alia, the desks of Ilona Thompson and Mary Lockwood. Both of these rooms have doors leading into the shop which are normally in a closed po- sition so as to reduce the amount of shop noise entering the office area. Outside the office area, a desk and file cabinets are kept. The sketch appears to show a third room attached to the office area, extending over to the partition between the cutting department and the tacking area. Testimony disclosed that no such third room exists and there is an unenclosed area next to the two office rooms. There is no typewriter in Mrs. Hamilton's office but Ilona Thompson and Mary Lockwood each have a type- writer on their desks. Mrs. Hamilton, Ilona Thompson and Mary Lockwood each have their own telephone and adding machines on their desks. During the testimony, Ilona Thompson and Mary Lockwood attempted to dis- enfranchise themselves from their desks by asserting that they did not have assigned desks but worked at all three of the desks located in their office. Ilona Thompson claimed that she used all three desks though she later made references, during her testimony, to "my desk." Mary Lockwood similarly referred to "my table" though further examination revealed that her "table" contained drawers and would be more accurately described as a desk. Throughout their testimony, as this report will detail further, Mrs. Lockwood and Mrs. Thompson were disposed to tailor their responses to favor the Employer's position that they were not office clerical employees. Some of their testimony was inherently improbable and conflicted with that of clearly credible witnesses. Be- cause of their partisanship, lack of candor, and their de- meanor on the witness stand, I am constrained to dis- credit their testimony where it conflicts with that of credible witnesses. Aside from the two desks located in the office occu- pied by Mrs. Thompson and Mrs. Lockwood, there is a table and file cabinets containing employee personnel files (with only minimal tax-related items contained therein), customer file folders and invoices. A xerox ma- chine and window air conditioner are located in Mrs. Hamilton's office. E. Duties Ilona Thompson began working for the Employer about 6 and 1/2 years ago and Mary Lockwood com- menced her employment in January, 1982. Neither knew what their job title was, though Ilona Thompson passed out a card at a trade show in June of 1981 which listed her title as "Manufacturer's Representative." Thompson explained that this card was utilized solely for one trade show and she had not passed it out for any other pur- pose. Testimony disclosed that the Employer has paid for Thompson's transportation and expenses incurred at- tending three trade shows in California, Indiana and Illi- nois during the past several years. Generally, Mrs. Thompson or Mrs. Lockwood will answer the phone when customers or other outsiders call the facility. Their primary responsibility is the handling of customer orders. Basically, they perform all the paper- work necessary to process orders from start to finish. They obtain the necessary information from the custom- ers and write or type it on an invoice. Copies of the in- voice are routed through the shop, and, when the order is filled, the invoice is returned to the office where the information from the shipper is copied onto the order form and the form is filed. Invoices are summarized by Mrs. Thompson and Mrs. Lockwood on a weekly basis. Mrs. Lockwood and Mrs. Thompson also fill sample orders for customers. These are relatively small orders sent to customers for the purpose of promoting the Em- ployer's products. Further, Mrs. Thompson maintains an inventory of needed supplies and Mrs. Lockwood main- tains an inventory of products sold utilizing the invoices processed. Mrs. Thompson gathers the employee's time cards and calls in the hours to the Ferndale office. When customers visit the facility, she escorts them through the shop. Oc- casionally, she has signed payroll checks, during the ab- sence of Mrs. Hamilton. She regularly has access to the Employer checkbook (utilized for payment of supplies, not for the payroll) located in Mrs. Hamilton's filing cab- 333 DECISIONS OF NATIONAL LABOR RELATIONS BOARD inet. Both Mrs. Thompson and Mrs. Lockwood operate the xerox, adding machines and typewriters. On rare oc- casions, they have assisted in the loading of trucks. Mrs. Lockwood stamps the size of a particular product on the product's tag for one particular customer that requires this, and performs this task in her office. Mrs. Thompson is a horse owner, and, because of her knowledge of horses, sometimes assists in the develop- ment and design of certain new products. F. Percentage of Time in Different Functions Mrs. Thompson claimed that she spent 50% of her time in the shop. She initially estimated that she spent 6 to 8 hours in the shipping and receiving department but then estimated it to be about 4 to 6 hours per week. She then estimated that she spent about 5% of her time filling sample orders, 15% of her time doing inventories and matters related to inventory, 2 or 3% of her time loading or unloading trucks (after 3:30 PM when the vast majori- ty of the shop employees had left for the day), 5 to 7% of her time typing, 10% of her time on the office phone, and 12 to 14% of her time writing orders. Mary Lock- wood estimated that she spent only 25% of her time in the office, 35 to 40% of her time working on samples, about 3 hours/week doing inventory (in the office), about 3 hours/week stamping tags, about 2 or 3 hours per day working on matters related to invoicing, a couple hours per week loading trucks (after 3:30 PM), a couple hours per week closing up orders (after 3:30 PM), a couple hours per week on the phone (90% of this time she is on the office phone) and about 2 or 3 hours per week typing. The above estimates by Mrs. Thompson and Mrs. Lockwood are largely inaccurate. For instance, Mrs. Hamilton testified that only a few sample orders are sent each day, and, it was not disputed that sample orders are relatively small. Caroline Kobylczak a candid objective witness, credibly estimated that Mrs. Lockwood and Mrs. Thompson spent only about 5 to 10 minutes per day, each, filling sample orders. This estimation is some- what in line with Mrs. Thompson's estimate that she spends about 5% of her time filling sample orders but is a far cry from Mrs. Lockwood's estimate that she spends 35 to 40% of her time working on sample orders, even in light of the testimony that Mrs. Lockwood spends more time in this task than Mrs. Thompson does. In consider- ation of all testimony adduced, the undersigned finds that Mrs. Thompson spent considerable less than 5% of her time working on sample orders, and Mrs. Lockwood spend about 5% of her time working on sample orders. The credibility of Mrs. Thompson's estimates of time spent on different job functions was weakened by her es- timation that she spent, after the election, about 1 1/2 to 2 hours per day working with Michael Vossi on new products. Michael Vossi was called as a witness by the Petitioner. He displayed a confident demeanor and air of directness. He testified that Mrs. Thompson asked him to make new product samples, and, he only spent about I to 2 hours per week with her. Much of this time was spent in her office. Vossi's estimation is credited. Similarly, though Mrs. Thompson and Mrs. Lockwood asserted that they had assisted in the loading of trucks on a quasi- regular basis, Vossi credibly testified that though he loaded trucks with two other employees during the post election period (there is only one shipping area at the fa- cility), he never observed Mrs. Thompson nor Mrs. Lockwood loading trucks. In light of this, the fact that Mrs. Thompson and Mrs. Lockwood often wear dress clothes to work (discussed below), and all of the evi- dence adduced, it is found that Mrs. Thompson and Mrs. Lockwood only rarely, and on an irregular basis, assist in the loading or unloading of trucks. The estimations concerning the time that Mrs. Thomp- son and Mrs. Lockwood spent in their office as opposed to time spent in the shop during the period preceding the election, varied widely. Linda Typinski, a credible wit- ness, extimated that they spent about 2 hours per week (or about 5% of their time) outside their office. The Em- ployer's witness, Nancy Kayne, estimated that they spent about 60 to 70% of their time in the office. Priscella Gravlin, a generally credible witness, estimated that they spend in excess of 90% of their time in their office. In consideration of all the credible evidence adduced, it is found that the actual time spent in their office as op- posed to being in the shop ranged from about 70% to 95%. The majority of their time was spent answering the phone, typing, processing orders and performing inven- tory and other functions in their office. G. Supervision Mrs. Hamilton claimed that Clara Holcomb, the shop supervisor, was responsible for the supervision of about 13 shop employees, plus, Mrs. Thompson and Mrs. Lockwood. In alignment with this assertion, Mrs. Thompson testified that she would first go to Clara Hol- comb and ask for time off before asking Mrs. Hamilton for time off. However, Mrs. Thompson did not seem at ease with this testimony, which was somewhat contra- dictory to her earlier testimony that Mrs. Holcomb was in charge of the shop. (TR 39, 57 emphasis added). Mrs. Thompson did concede that she reported to both Mrs. Holcomb and Mrs. Hamilton. Mrs. Lockwood, on the other hand, stated that she was supervised by only Mrs. Holcomb and no one else. When the undersigned asked her if Mrs. Hamilton supervised her, Mrs. Lockwood re- sponded, "She'll ask me to do things but she will have asked Clara already if I can do it." (TR 285) This type of answering is indicative of Mrs. Lockwood's partisan dis- position. It is unlikely that the Employer would place employees Lockwood and Thompson, stationed in an en- closed office without windows, under the sole supervi- sion of shop supervisor Holcomb, who would be unable to view these individuals during the vast majority of the work day. It is also unlikely that Mrs. Hamilton, located in the office directly adjacent to Lockwood and Thomp- son, and able to view them during much of her work day, interacting with them throughout the day, would not have primary supervisory responsibility over them. Mrs. Hamilton interviewed both Mrs. Lockwood and Mrs. Thompson prior to their hire and, Mrs. Holcomb's work hours do not correspond to those of employees Thompson and Lockwood, though Mrs. Hamilton's do. 334 HAMILTON HALTER CO. The probability that Mrs. Hamilton, rather than Mrs. Holcomb, is the primary supervisor over Lockwood and Thompson is increased by the fact that Mrs. Hamilton conceded that she gave orders to Lockwood and Thompson on a daily basis. Though Mrs. Hamilton stated that she gave these orders on the average of only once per day, this estimation is probably too low. Mrs. Hamilton was obviously trying to disassociate herself with supervisory authority and, Mrs. Thompson conced- ed that she reported to both Mrs. Holcomb and Mrs. Hamilton. Mrs. Thompson further conceded that she sought authorization from Mrs. Hamilton prior to send- ing out sample orders, and, Mrs. Hamilton told her what materials to order. Caroline Kobylczak credibly testified that in the more than two years she worked for the Em- ployer, she never saw Clara Holcomb instruct, or assign work to either Mrs. Lockwood or Mrs. Thompson. Though Kobylczak works primarily in the shipping and receiving area, it is likely that, if Mrs. Holcomb were ac- tually actively engaged in the supervision of Lockwood or Thompson, Kobylczak would have observed some in- cident of Mrs. Holcomb exercising that supervisory au- thority over them. Based upon the above, and the testimony in its entire- ty, it is found that Mrs. Lockwood and Mrs. Thompson were primarily supervised by Mrs. Hamilton and, the shop employees primarily supervised by Mrs. Holcomb. It is also noted that the cutting department employees were supervised by Marilyn Kondash and, working leader Nancy Kayne, though not a supervisory employ- ee, exercised some guidance over the afternoon shift em- ployees. H. Relationship Between Duties and Production Functions Contact with customers is solely by Mrs. Hamilton, Mrs. Thompson or Mrs. Lockwood. The crux of Lock- wood's and Thompson's job is the handling of customer orders and does not involve any real contact with the production function. The filling of sample orders, (small orders, weighing only a few pounds-regular customer orders generally weigh in excess of forty pounds) is not directly related to the production of the goods. Lock- wood and Thompson don't follow the progress of prod- ucts, add no labor to the product and have no input in the manner or method of production. However, Mrs. Thompson does some work regarding the development of some products and this is indirectly related to the pro- duction function. Similarly the inventory and invoicing of products is indirectly related to the production func- tion. I. Interaction with Other Employees Testimony by Gloria Stensel, regarding the amount of time she spent working on projects with Mrs. Thompson was confused and conflicting. Based on this apparent confusion and lack of confidence, it is necessary to dis- credit her testimony to the extent that it is contrary to the credible evidence adduced. About all that can be noted from her testimony is that her interaction with Mrs. Thompson was infrequent as the one estimation she made of spending 1/2 hours per week, on the average, during the six months preceding the election is most credible. The testimony of Lynda Beth Morgan, that Mary Lockwood average 3 or 4 hours per day in the shipping department and Ilona Thompson average 2 hours per day in the same area, was apparently exagger- ated. Though Ms. Morgan generally seem to be a sincere witness, her testimony exceeds Mrs. Thompson's estimate of 4 to 6 hours per week and that she, Mrs. Thompson, spends in that department, and stretches the credible tes- timony that Mrs. Thompson and Mrs. Lockwood spend 70 to 95% of their time in the office. In any event, Ms. Morgan later noted that, when they are in the depart- ment, Mrs. Thompson and Mrs. Lockwood are located about 25 feet away from where Caroline Kobylczak and she were working and about 5 feet from where Cecilia Amman, another employee, was working. She estimated that the amount of time spent actually interacting with shipping and receiving employees averaged about 15 minutes in the aggregate each day. While this estimate is also probably somewhat high, it will suffice to conclude that the amount of time spent interacting with the em- ployees in the shipping and receiving area is minimal. Linda Typinski credibly testified that Clara Holcomb had pulled shop employees and herself off their machines on occasion to assist in preparation of orders to be shipped but that Mrs. Thompson and Mrs. Lockwood had never participated in this. Caroline Kobylczak testi- fied, without being contradicted, that in August or Sep- tember, 1982, Lynda Morgan and she were told by Clara Holcomb not to take invoices directly into the office but to route them through Mrs. Holcomb. Mrs. Thompson and Mrs. Lockwood do not interact with the production employees while filling sample orders and there are only a few of such orders sent each day. Both Lockwood and Thompson asserted that they had brought telephone messages directly to employees. Ilona Thompson estimated that this occurred about every day and Mary Lockwood estimated this occurred about every other day. Linda Typinski and Kathy Morrow tended to contradict this testimony by asserting that it was Clara Holcomb that brought the shop em- ployees telephone messages. As Typinski and Morrow were the more objective witnesses, it is concluded that Mrs. Thompson and Mrs. Lockwood convey telphone messages directly to the production employees infre- quently. Mrs. Thompson and Mrs. Lockwood do not take breaks with the production employees. Both do not each lunch. They have on occasion participated in some em- ployee birthday parties and also attended the Christmas party sponsored and attended by the owners. Linda Typinski testified that shop employees seldom visit the office and seldom interact with Mrs. Thompson and Mrs. Lockwood. As there is not a great deal of overlap between the functions of Mrs Lockwood and Mrs. Thompson and those of the production employees, and, Typinski had a generally accurate perception of the facts, and, the totality of the evidence supports this, it is found that Mrs. Lockwood and Mrs. Thompson and the production employees seldom interact. 335 DECISIONS OF NATIONAL LABOR RELATIONS BOARD J. Interchange With Other Employees No production employee has ever performed either Mrs. Thompson's or Mrs. Lockwood's job. Mrs. Thomp- son performs Mrs. Lockwood's job when she is not there and vice versa. Neither Mrs. Thompson nor Mrs. Lock- wood have ever been placed on a production job. No shop employees has ever transferred into an office job and vice versa. The evidence showed that neither Mrs. Thompson nor Mrs. Lockwood had ever been assigned to sew, tack, attach eyelets, cut or sort leather, or any of the usual production tasks. While Mrs. Lockwood occa- sionally stamps tags, this function is performed for only one particular account, and performed in her office, as aforementioned in this report, and Mrs. Lockwood is not sent to relieve any production employees on this task. Similarly, though Mrs. Thompson and Mrs. Lockwood have on occasion made entries into the shipping book, as other employees have, they did so in the course of per- forming their own duties, not in the course of relieving shop employees of their duties. K. Use of Facility as Compared With Other Employees Mrs. Thompson and Mrs. Lockwood use all three of the restrooms located at the facility but are not assigned cleaning duties. Shop employees generally use only the restroom in their department and are assigned the duty of cleaning the particular restroom in their department. Mrs. Thompson and Mrs. Lockwood asserted that on oc- casion they have done some cleaning up in the restrooms on their own initiative, but they were not assigned this work, and, the amount of cleaning that they did was rel- atively minor. Prior to the election, afternoon shift shop employees were assigned to vacuum the office occupied by Mrs. Lockwood and Mrs. Thompson. Mrs. Lockwood and Mrs. Thompson keep their purses next to their desks and there is a coat rack located in the office. Shop employees genrally keep their purses next to their machines and there is a coat rack located in the shop. All employees, including Mrs. Thompson and Mrs. Lockwood, park in the same parking area. Mrs. Thomp- son has a key to the shop as does Nancy Kayne, a work- ing leader. On occasion, Mrs. Thompson has borrowed Mrs. Hamilton's car (registered in the name of the Ham- iltons' other corporation) and Mrs. Hamilton has also lent the vehicle to Supervisor Holcomb and a few other employees. Mrs. Thompson and Mrs. Lockwood have access to the employee personnel files maintained in their office but these files contain only W-4 forms and other tax related records. L. Comparison of Working Conditions Production day shift employees are assigned regular work hours beginning at 7:00 AM in the morning and ending at 3:30 PM. Breaks are given from 9:15 AM to 9:30 AM and 1:30 PM to 1:45 PM. Lunch is from 11:30 AM until noon. A few employees worked the afternoon shift and followed a similar regimen. Shop employees are required to punch in and out at the beginning and end of their shift and at breaks and lunch. A time card rack is kept in the shop near the time clock. In contrast, Mrs. Thompson and Mrs. Lockwood operated on a quasi flex- time system. Neither had any regular schedule of hours and no set time to take breaks or lunch. Neither was re- quired to punch a time card. Mrs. Lockwood testified that she kept a time card in her purse and filled it out by hand. Mrs. Thompson stated that she wrote out her hours on a blank time card. It was clear that the Em- ployer did not oversee the making of these entries. Kathy Morrow testified, without contradiction, that on one occasion Mrs. Thompson apparently authorized a departure from routine punching on her time card. Mrs. Thompson stated that she arrived at work between 7:00 AM and 9:00 AM. Mrs. Lockwood generally arrives at work at about 9:00 AM. She initially testified that she ar- rives at work at 10:00 AM about one percent of the time (further stating, "once in a while ... ", "occasionally . .") and then corrected this, upon further examination, to once per week. During testimony on Mrs. Lockwood's working hours, Mrs. Lockwood was asked if she worked the same hours every day and responded, "It varies. I work just like ev- eryone else in the shop." (TR 194) However, the testi- mony was clear that the employees in the shop did not have varying hours like hers. This is another example, and others may be found throughout the entire line of questioning just on this particular topic (TR 195-197), of apparent attempts to tailor testimony to avoid responses that might be contrary to the Employer's position. As previously mentioned, shop employees are assigned to clean restrooms and Mrs. Thompson and Mrs. Lock- wood are not. Mrs Thompson and Mrs Lockwood bene- fit from the air conditioning in Mrs. Hamilton's office and are free to make up time lost from work due to ill- ness or personal problems. Some shop employees are also permitted to make up time lost from work in the same manner. Caroline Kobylczak and other employees testi- fied credibly that Mrs. Lockwood and Mrs. Thompson wore dress clothes (Mrs. Thompson stated that occasion- ally she wore a skirt) to work on a regular basis, whereas shop employees generally wore more casual clothes, such as jeans and so forth, as the nature of shop work caused their clothes to get dirtier. M. Pay, Method of Compensation and Benefits During the relevant period, Mrs. Thompson was paid $6.75/hour and Mrs. Lockwood was paid $4.00/hour. During that same time period, 9 of the shop employees were paid $3.45 hour, 5 were paid $3.55/hour, 2 were paid $3.65/hour, 1 was paid $3.70/hour, 2 were paid $3.50/hour, I was paid $4.00/hour, I was paid $5.00/hour and I was paid $5.65/hour. A few of these rates include night shift premium. The median pay was $3.55/hour. No employees were salaried and there were no bonuses nor fringe benefits. The Employer maintained one payroll list for all employees, and the computerized payroll was processed at the Ferndale facility. Shop em- ployees retrieved their paychecks from the time card rack at the end of the day. Mrs. Thompson and Mrs. Lockwood were handed theirs. 336 HAMILTON HALTER CO. N. Background, Education and Training Mrs. Thompson and Mrs. Lockwood are high school graduates, an educational level comparable to that of shop employees. They have no specialized training back- ground. Mrs. Thompson was previously employed as an office clerical employee and Mrs. Lockwood was previ- ously employed in a production job, and, as a medical as- sistant. Mrs. Lockwood applied for her position in re- sponse to a newspaper ad for office and shop work. ill. ANALYSIS In examining whether employees should be included in a production and maintenance unit versus an office cleri- cal unit, the Board considers community of interest. In Martin Outdoor Advertising Company, 198 NLRB 1136, 1137 (1972), the Board found an employee to be a plant clerical where she occupied a plant storage building physically separated from the office clerical building, had daily contact with unit employees, distributed work orders to their departments, assisted unit employees in filing out administrative forms and reimbursed unit em- ployees for out of pocket expenses. In Jacob Ash Co., Inc., 224 NLRB 74 (1976), three clerical employees were included in a warehouse unit where they worked in an open office area on the first floor of a warehouse, cleri- cal employees and warehousemen resolved questions re- garding customer invoices, shared common supervision, there was some job interchange (one of the clericals had prepared light orders for customers walking into the Em- ployers warehouse), there was regular contact between the clericals and the warehousemen, and 2 of the 3 cleri- cals enjoyed a higher rate of pay than the warehouse- men. Administrative Law Judge Reis, in Gordonville Indus- tries, Inc., 252 NLRB 563, 590 (1980), pointed out, in his affirmed decision, that the determination as to whether an employee is an office clerical employee rather than a plant clerical employee is "occasionally as much visceral as cerebral." Judge Reis noted that "Normally, plant clericals spend all or most of their time working in the plant production area. Normally, they are involved in the production process itself. For example, an employee who worked in the production area requisitioning parts needed by production employees is a plant clerical; an employees who fills out forms in the billing department located in the administrative offices is an office clerical . . ." (id. at 591). The decision noted that the fact that clerical employees exercised secretarial skills does not prevent finding them to be plant clerical employees. In that case, employees were found to be plant clericals as they worked in the production area, contributed directly and meaningfully to the production process, were com- monly supervised and enjoyed similar working condi- In that case, the Employer maintained a separate office clerical build- ing whereas in the instant matter, the Employer herein has its main office clerical functions conducted at its only facility in Pontiac, Michigan. The separate business entity referred to as the Ferndale office fulfilled func- tions primarily related bookkeeping and computerized payroll matters, functions companies often contract out to independent companies. How- ever, the primary customer contact and processing of customer orders is handled at the Pontiac facility by Mrs. Thompson and Mrs. Lockwood. tions. Along the same vein, in American Party System, Inc., 254 NLRB 901 (1981), the Board found that oper- ations-center employees had a sufficient community of interest to be included with warehouse employees where they shared substantially similar supervision, were in constant visual and frequent verbal contact with ware- house employees with whom they exchanged informa- tion, handled the same form essential to their job func- tions, experienced job interchange, took breaks together, all punched time clocks and had common wages and benefits. In contrast, in situations where office clercials enjoyed differing working conditions, they have been excluded from the main unit. Winn-Dixie Stores, Inc., 153 NLRB 273 (1965). The Board has found that invoice clerks, iso- lated from and having no contact with warehouse em- ployees were essentially office clerical employees. Famous-Barr Company, 153 NLRB 341, 344-345 (1965). In Arthur F. Derse Sr., 173 NLRB 214, 219 (1968), the Board affirmed the Administrative Law Judge's finding that 5 employees shared closer community of interest with excluded office clerical employees. The following factors, inter alia, were noted: no working contact exist- ed between the 5 employees and the production and maintenance employees; common supervision was lack- ing; working conditions were dissimilar; skills and func- tions differed; and, their work was not directly integrat- ed with the production process. Few cases are as clear cut as the last three cited. In most situations, the overall duties performed by the dis- puted employees fall into a gray area between office and plant clerical. In Conchemco Inc., 182 NLRB 125 (1970) the Board found that an employee, alleged to be a plant clerical was an office clerical employee where she worked adjacent to the general office where office cleri- cal employees were located, apart from the production area, was separately supervised, maintained the inventory of all raw materials used in the manufacturing process, seldom went into the plant, received the same fringe ben- efits as production employees, including overtime pay, worked different hours, performed different duties and had little or no contact with the production employees. Similarly, in Case Inc., 237 NLRB 798, 806 (1978), the Administrative Law Judge, affirmed by the Board, found two employees to be office clericals rather than plant clericals where one employee prepared job progress tick- ets on the basis of orders received from contractors and distributed these tickets to employees. She kept records of how much material the Employer received, how much was used in the plant, and recorded components produced. Her contact with production employees was limited to recording the number of hours worked by em- ployees from the timeclock, the number of pieces pro- duced by each employee, delivering messages to employ- ees and passing out insurance papers or other personnel- related documents. Somewhat akin to Case Inc., and Conchemco, the Board found, in Prince Gardner, Division of Swank, Inc., 231 NLRB 96 (1977), that payroll clerks were not properly within a production and maintenance unit but were more appropriately places in an office cler- ical unit where their interests in efficient earnings report- 337 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing might come into conflict with the interest of the pro- duction employees. In that case, a work in process clerk was also placed in the office clerical unit though she spent 50% of her time at a centrally located desk in the production area tracking down orders and collecting progress data. The employee had pay, benefits and insur- ance similar to office employees but did not provide any service to the production process. Individual cases may be pointed to which show that the Board has found employees to be office clerical or plant clericals despite the existence or non-existence of one or more the the numerous factors involved herein. No one case reviewed above falls squarely on point, though. The Board set forth the community of interest standard in F: & M. Schaefer Brewing Co., 198 NLRB 323, 326, stating, "Clerical employees may be included in a unit of production and maintenance employees where they enjoy interest and working conditions similar to those production and maintenance employees." Applying this standard to the instant facts, it must be concluded that the working conditions and intersts of Mrs. Thomp- son and Mrs. Lockwood are very different from those of the production and maintenance employees. The produc- tion and maintenance employees are engaged in a manu- facturing operations characterized by physical labor and movement. The disputed employees generally are located within an office area, performing paperwork functions not directly related to the production process. They do not contribute directly to the production process, have different supervision, seldom interact with and never interchange with, the production and maintenance em- ployees, and, though a few of their working conditions are somewhat similar, the majority of their working con- ditions are substantially different. IV. CONCLUSION AND RECOMMENDATION It is concluded that Mrs. Thompson and Mrs. Lock- wood were essentially office clerical employees and should be excluded from the production and maintenance unit. Accordingly, the undersigned recommends that the challenges to their ballots be sustained. Based upon this conclusion and the aforementioned agreements of the parties, it is recommended that the challenges to the ballots of Marilyn Kondash, Virginia Thomas, Christina Edwards, Martha Van Wagner, Mary Johnson, Bonita Porter, Janice Flagg, Ilona Thompson and Mary Lockwood be sustained. The Petitioner agreed, in accord with the Employer, that the challenge ta the ballot of Nancy Kayne should be withdrawn, and the ballot opened and counted. However, this is unneces- sary as the sustaining of the above nine challenges makes the ballot of Nancy Kayne non-determinative of the out- come of the election. Accordingly, it is recommended that the Board issue the following revised Tally of Bal- lots: Approximate number of eligible voters-24 Void Ballots-0 Votes cast for Petitioner--13 Votes cast against participating labor organization--10 Valid votes counted-23 Challenged ballots-I Valid votes counted plus challenged ballots-24 It is further recommended that the Board issue a Certifi- cation of Representative reflecting that the Petitioner is the exclusive collective-bargaining representative of the employees in the unit described hereinabove. I No evidence was adduced at the hearing which indicated that the agreement of the parties regarding certain challenges, as set forth earlier in this Report, should not be honored. 338