Southland Frozen Foods, Inc.

SOUTHLAND FROZEN FOODS 769 Southland Frozen Foods, Inc. and Local 212, United Food & Commercial Workers Union, AFL- CIO. Case 3-RC-8728 15 January 1987 DECISION AND CERTIFICATION OF RESULTS OF ELECTION BY MEMBERS JOHANSEN, BABSON, AND STEPHENS The National Labor Relations Board, by a three- member panel, has considered the objections to an election held on 22 August 1985 and the hearing officer's report recommending disposition of them. The election was conducted pursuant to a Decision and Direction of Election. The tally of ballots shows 75 for and 109 against the Petitioner, with 25 challenged ballots, an insufficient number to affect the results. Thereafter, the Petitioner filed timely objections to conduct affecting the results of the election. The Board has reviewed the record in light of the exceptions and briefs, and has adopted the hearing officer's findings' and recommendations only to the extent consistent herewith. At issue is whether the Employer engaged in ob- jectionable conduct by designating employee Ro- berta Estep as its observer for the election. In his report, the hearing officer concluded that although Estep was not a statutory supervisor,2 she was closely identified with management. The hearing officer therefore concluded that it was improper for her to serve as the Employer's election observ- er and recommended that the election be set aside. The Employer excepts, contending, inter alia, that Estep is not closely identified with management. We find merit in the Employer's exceptions with regard to Estep's asserted identification with man- agement. The Employer is engaged in the packaging and wholesale distribution of fruits and vegetables, and it operates production and maintenance lines on which vegetables are processed. The production lines are staffed by women, with as many as 60 women working on the lines during the busy 1 The Employer has excepted to certain credibility resolutions of the hearing officer It is the established policy of the Board not to overrule a hearing officer's credibility resolutions unless the clear preponderance of all relevant evidence convinces us that the resolutions were incorrect Connor Trading Co, 188 NLRB 263, 264 fn 4 (1971), Coca-Cola Bottling Co, 132 NLRB 481, 485 (1961). We find no sufficient basis for disturbing the credibility resolutions in this case 2 No exceptions were taken to the hearing officer's finding that Estep was not a supervisor In this regard , we note that he found that she does not have the authority to hire , fire, promote, reward , or discipline em- ployees, or to adjust grievances, that she did not exercise independent judgment in performing her assigned tasks, and that she acted merely as a conduit in relaying instructions from management to unit employees. season. Estep has served as the day-shift "floor lady" for production lines since 1982, and she has been employed by the Employer for approximately 20 years in various capacities. Estep spends approximately 75 percent of her workday performing production work. She punches a timeclock, is hourly paid, and receives time and a half for overtime. Her rate of pay is $5.15 per hour, which is considerably more than other female production employees earn.3 While Estep receives benefits that the other female pro- duction employees do not receive, such as compen- sation for the Thanksgiving holiday and paid vaca- tion time, she enjoys none of the other benefits provided for the Employer's admitted supervisors. These benefits include hospitalization, major medi- cal, and life insurance. Estep does not attend management meetings and she does not authorize overtime. Although the hearing officer found evidence that she occasional- ly refers employee complaints to the Employer, he determined that she has no power to adjust griev- ances. When Estep is not performing production work, she spends her workday completing time and production reports, assigning work, training employees, and generally providing routine direc- tion for employees. The completion of time reports includes monitoring absences and reporting any employee who overstays her break. In this regard, Estep has no discretionary authority concerning the length and number of breaks taken by employ- ees as the break schedules are determined by the production supervisor. When an employee calls in sick, the personnel office informs Estep. She re- ports any absences to the production supervisor who tells Estep which employee should be reas- signed.4 Estep is responsible for relaying informa- tion regarding any such reassignments to the em- ployees. Similarly, employees inform Estep, rather than request her permission, if they want time off. Estep relays this information to the production su- pervisor so that the production schedule can be ad- justed. If an employee forgets to punch her time- card, she reports the problem to Estep. Estep in turn informs the secretary in the personnel office who makes the necessary adjustments. Every morning prior to the start of her shift, Estep meets with a production supervisor who tells her which lines will operate and how many em- 3 Although the record does not reveal the exact 1986 wage scale for other female production employees, it appears that Estep earns consider- ably more For example, Virginia Wilbur, a relatively senior production employee, earned $3 80 per hour prior to her April 1985 termination. 4 Estep also informs the production supervisor of any absences that she has noticed which have not been reported previously to the personnel office. 282 NLRB No. 106 770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees will be assigned to each line. After record- ing the assignments in a notebook,, she relays this information to the employees. 5 _ If the production schedule dictates that an employee should be reas- signed during ,the course of the day, the decision is made by the, production supervisor, and Estep relays the information to the affected employees. During the course of the day, she confers with the production supervisors approximately five times. At' the end of the day, Estep completes a report in- dicating where each employee worked that day and how much time was spent on, each job. These reports are used - by the production manager to evaluate the cost of production. As noted, the hearing officer found that Estep is not a statutory supervisor,- and no exceptions were taken to that finding. Thus, the issue of whether su- pervisory status rendered Estep an improper choice is not before us. As the hearing officer noted, however, the test for determining whether, an individual properly may serve as an observer is not limited to an in- quiry into whether the individual is a statutory su- pervisor, but it also includes an inquiry into wheth- er the individual is closely identified with the em- ployer. Peabody Engineering Co., 95 NLRB 952 (1951); Watkins Brick Co., 107 NLRB 500 (1953). An employee, who has none of the authority vested in supervisory personnel, may be closely identified with management if he or she relays in- formation to employees and has been placed by management in a strategic position where employ- ees could reasonably believe that the employee speaks on its behalf. B-P Custom Building Products, 251 NLRB 1337 (1980); River Manor Health Relat- ed Facility, '224 NLRB 227 (1976), enfd. 559 F.2d 1204 (2d Cir. 1977). We find, contrary to the hear- ing officer, that although Estep relays information to employees and acts as a conduit of information between the employees and management, Estep has not been placed in a position where employees would reasonably believe that she is the agent of the Employer. In this regard, in addition to the routine nature of much of Estep's duties with re- spect to other employees, we note particularly that she spends approximately 75 percent of her work- day performing the same tasks as the other produc- tion employees, punches a timeclock, and is not in- cluded in management meetings. Thus, the nature of the circumscribed duties Estep performs on the Employer's behalf are not such as to, require invali- 5 As found by the hearing officer, the record reveals that many of the employees work in the same positions day after day. Estep only informs employees of their assignments if a change has been made dation of the election because of her participation as an observer.6 B-P Custom Building Products, supra, relied on by the hearing officer, is distinguishable. The Board there found that the individual in question was not a statutory supervisor, but was an agent of the employer whom the employees would recog- nize as part of the management team and, accord- ingly, that it was improper for him to serve as an election observer. Like Estep, the individual there had no authority to hire, fire, lay off, discipline, or transfer employees; but he could, however, author- ize shift changes, vacations, overtime, and sick leave without consulting anyone. Estep cannot au- thorize overtime and is merely the person to whom employees report requests for vacation time and sick leave. Similarly, in B-P Custom Building Prod- ucts, the individual attended management meetings, and spoke at two meetings of employees, one of which he handled without the presence of manage- ment personnel. In contrast, there is no evidence that Estep either attends management meetings or speaks on behalf of management at employee meet- ings. Jacobo Marti & Sons, 264 NLRB 30 (1982), and River Manor Health Facility, supra, also cited by the hearing officer, are also distinguishable from the present case. In Jacobo Marti one individual in question was the highest ranking individual present in the plant at night and was found by the Board to be a general agent of the respondent. The other in- dividual was found to be an agent insofar as he was specifically authorized by the employer to engage in the surveillance at issue. Jacobo Marti, supra, at fn. 1. In River Manor Health Facility, where the status of licensed practical nurses was at issue, the Board found that by virtue of their medical respon- sibilities, the licensed practical nurses were in a po- sition of directing aides and orderlies, and conclud- ed that based on this factor, coupled with certain other duties including, inter alia, warning employ- ees about lateness, giving reports to the director of nurses about employee work habits, calling for re- placements, and handing out paychecks, could rea- sonably lead employees to believe that the licensed practical nurses were an arm of management. Finally, Mid-Continent Spring Co., 273 NLRB 884 (1985), also cited by the hearing officer, is dis- 6 The fact that Estep may have been listed as a first-line supervisor in the employee handbooks given to some employees is significant but not in itself dispositive. As stated in Columbia Engineers International, 249 NLRB 1023 fn 11 (1980), "[s]upervisory status may not be determined on the basis of title alone, but upon application of Sec. 2(11) standards." Similarly, while an employee's title is one of the numerous factors the Board considers in determining whether an individual is closely identified with management, merely referring to an employee as a supervisor does not necessarily confer agency status. SOUTHLAND FROZEN FOODS 771 tinguishable from the instant case. The Board in that case adopted the hearing officer's finding that the individual serving as the employer's observer was closely identified with management. There, however, the individual was considered by employ- ees to be a "personnel manager," was a member of the management negotiating team, attended super- visory meetings, represented the employer at the first-step grievance procedure, advised the union of the hiring and termination of employees, advised employees about personnel policy, and received employee complaints. Moreover, no exceptions were filed to the finding by the hearing officer that the individual was closely associated with manage- ment.'' 1n light of the above, we conclude that Estep's relationship with management does not warrant a finding that she was precluded from serving as an election observer. Accordingly, contrary to the hearing officer, we overrule Petitioner's objection and shall certify the results of the election. CERTIFICATION OF RESULTS, OF ELECTION IT IS CERTIFIED that a majority of the valid bal- lots have not been cast for Local 212, United Food & Commercial Workers Union, AFL-CIO and that it is not the exclusive representative of these bar- gaining unit employees. 7 In Knogo Corp, 265 NLRB 935 (1982), the Board held that an em- ployee whose duties mcluded,checking the work of other employees, monitoring production, and reporting rule- infractions or repeated inci- dents of poor performance, was not a supervisor. In additionally deter- mining that other employees would not view the employee as an agent of management, the Board considered, inter alia, that the alleged agent nei- ther attended management meetings nor directed employee meetings on behalf of management and that her direction of production was strictly routine in nature.