Alois Box Co.

National Labor Relations Board - Board Decisions

Sep 30, 1998

326 N.L.R.B. 1177 (N.L.R.B. 1998)

ALOIS BOX CO. 1177
Alois Box Co., Inc. and Graphic Communications
Union Local 415-S, AFL–CIO, Petitioner. Case
13–RC–19729
September 30, 1998
DECISION AND CERTIFICATION
OF REPRESENTATIVE
BY MEMBERS LIEBMAN, HURTGEN, AND BRAME
The National Labor Relations Board, by a three-
member panel, has considered determinative challenges
in an election held November 12, 1997, and the hearing
officer’s report recommending disposition of them.1 The
election was conducted pursuant to a Stipulated Election
Agreement. The tally of ballots shows 19 for and 14
against the Petitioner, with 7 determinative challenged
ballots.2
The Board has reviewed the record in light of the ex-
ceptions and briefs, has adopted the hearing officer’s
findings and recommendations as modified below, and
finds that a certification of representative should be is-
sued.
The hearing officer found, and we agree, that the chal-
lenge to the ballot of Jeff Miller should be sustained be-
cause he is a statutory supervisor.3 We also agree with
the hearing officer’s recommendation that the challenge
to the ballot of Mato Brasic should be sustained because
he is a relative of management who was granted special
privileges. Further, we adopt the hearing officer’s rec-
ommendation that the challenge to the ballot of Julius
Rimdzuis be sustained, because the record supports the
hearing officer’s findings that Rimdzuis is not a regular
part-time employee and that he does not share a commu-
nity of interest with the unit employees.4
The hearing officer also found, however, that Manuel
Garcia is a statutory supervisor, and recommended that
the challenge to his ballot be sustained. We disagree.
We find nothing in the record before us upon which to
predicate a finding that Garcia is a supervisor within the
meaning of Section 2(11) of the Act. Section 2(11) of
the Act defines the term “supervisor” as “any individual
having authority, in the interest of the employer, to hire,
transfer, suspend, lay off, recall, promote, discharge,
assign, reward, or discipline other employees, or respon-
sibly to direct them, or to adjust their grievances, or ef-
fectively to recommend such action, if in connection
with the foregoing the exercise of such authority is not of
a merely routine or clerical nature, but requires the use of
independent judgment.”

1 The pertinent portions of the hearing officer’s report are attached as
an Appendix.
2 The parties stipulated on the record that Juan Duran, whose ballot
was challenged, was terminated prior to the eligibility cut off date and
was ineligible to vote in the election. Absent exceptions, we adopt pro
forma the hearing officer’s recommendation that the challenges to the
ballots of Miguel Granillo and Tom D’Incognito should be overruled.
3 Member Liebman would overrule the challenge to Miller’s ballot.
She finds that the Petitioner has failed to sustain its burden of showing
that the authority Miller exercised required the use of independent
judgment.
4 Contrary to the majority, Member Hurtgen would overrule the
challenge to Rimdzuis’ ballot. The unit expressly includes regular part-
time maintenance employees. Rimdzuis performs maintenance func-
tions and appears to be a regular part-time employee. In this regard,
Member Hurtgen notes that, for the past 7 years, Rimdzuis has worked
for Respondent. He works approximately 20 hours per week for $300
per week. The fact that he schedules his own 20 hours does not detract
from his regular part-time status. To exclude Rimdzuis would mean
that he is the only part-timer who is not included in the unit, except for
the plant manager’s brother. Member Hurtgen would not disenfran-
chise him.
The burden of proving supervisory status is on the
party who alleges that it exists. California Beverage Co.,
283 NLRB 328 (1987). The exercise of some supervi-
sory authority in a merely routine, clerical, perfunctory
or sporadic manner does not confer supervisory status.
Chicago Metallic Corp., 273 NLRB 1677, 1689 (1985),
affd. in relevant part 794 F.2d 527 (9th Cir. 1986).
In making his recommendation, the hearing officer re-
lied on evidence that Garcia was higher paid than any
other hourly employee, that he once sent an injured em-
ployee to receive medical attention, and that he once told
an employee to do his job properly or else he would be
sent home. The hearing officer concluded that Garcia
exercises independent judgment in “the resolution of
various problems that arise on the second shift without
first consulting higher authority.”
We disagree. The issue presented is not whether Gar-
cia used independent judgment in solving problems, but
whether he used independent judgment with respect to
the exercise of one or more of the specific authorities
listed in Section 2(11). It appears that the hearing officer
intended to find that Garcia utilized independent judg-
ment in directing the work of the employees on the sec-
ond shift. The record, however, will not support such a
finding.
Garcia is an experienced employee who has worked
for the Employer for approximately 25 years, concededly
the most senior person among all the hourly employees.
His hourly wage reflects this. The record shows, and the
hearing officer’s own findings establish, that Garcia at-
tends daily preshift meetings with Plant Manager Vlado
Brasic, that Garcia then relates to the four other employ-
ees on the second shift the instructions he has received
from Brasic, that Garcia has standing orders to telephone
Brasic or President David Jones if questions arise, and
that Garcia has no authority to make independent deci-
sions with respect to the second shift employees. Thus, it
appears that Garcia merely serves as a conduit for man-
agement instructions.
The isolated incidents wherein Garcia sent an injured
employee for medical assistance and told employee Chris
McBee that if he did not do his job properly he would be
sent home are insufficient to establish that Garcia used
independent judgment in exercising supervisory author-
ity. Any senior employee could be expected to seek
326 NLRB No. 110
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1178
medical attention for an injured coworker. Garcia’s
statement to McBee that he would have to do his work
properly or go home appears to be at most an oral warn-
ing which had no effect on McBee’s employment status.
That is, there is no showing that McBee was actually sent
home.
We conclude that the Petitioner has failed to meet its
burden of showing that Garcia used independent judg-
ment in responsibly directing the work of other employ-
ees or in exercising any of the other statutory indicia of
supervisory status. Such a showing of the use of inde-
pendent judgment is essential to establish supervisory
status. See NLRB v. Health Care & Retirement Corp.,
511 U.S. 571, 573–574 (1994). Accordingly, we over-
rule the challenge to Garcia’s ballot.
Because the ballots of Manuel Garcia, Miguel Granillo
and Tom D’Incognito are not determinative of the results
of the election, we shall not direct that their ballots be
opened and counted. Rather, because the Petitioner has
received a majority of the valid ballots cast, we shall
issue a certification of representative.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots have
been cast for Graphic Communications Union Local 415-
S, AFL–CIO, and that it is the exclusive collective-
bargaining representative of the employees in the follow-
ing appropriate unit:

All full-time and regular part-time production, mainte-
nance and shipping employees employed by the Em-
ployer at its facility currently located at 2000 North
Mannheim Road, Melrose Park, Illinois 60160; but ex-
cluding all other employees, office clericals, guards and
supervisors as defined in the Act.
APPENDIX
HEARING OFFICER’S REPORT ON
CHALLANGED BALLOTS
. . . .
CHALLENGED BALLOTS4
The ballots of Jeff Miller, Manual Garcia, and Miguel Gra-
nillo were challenged by the Petitioner on the basis that they are
supervisors as defined in Section 2(11) of the Act.
Section 2(11 ) of the National Labor Relations Act sets forth
the test to determine supervisory status:

The term “supervisor” means any individual having authority,
in the interest of the employer, to hire, transfer, suspend, lay-
off, recall, promote, discharge, assign, reward or discipline
other employees, or responsibility to direct them, or to adjust
their grievances, or effectively to recommend such action, if
in connection with the foregoing the exercise of such author-

4The parties entered into a stipulation on the record that Juan Duran
was ineligible to vote in the election. Having been terminated prior to
the eligibility cutoff date.
ity is not of a merely routine or clerical nature, but requires
the use of independent judgment.

Possession of any one of these enumerated powers estab-
lishes supervisory status, since Section 2(11) is to be read in the
disjunctive. See Penn Industries, 233 NLRB 928 (1977). Where
possession of any of these enumerated powers is not conclu-
sively established, the Board looks to certain other factors as
evidence of supervisory status: the individual’s responsibility
for a shift or phase of the employer’s operations; attendance at
supervisory meetings; granting time off to other employees;
responsibility for inspecting the work of others; ability to assign
work; decision making in the hiring process; responsibility for
reporting rules infractions; designation as a supervisor, pay
differentials; and the ratio of supervisors to employees. See
Health Care & Retirement Corp. v. NLRB, 987 F.2d 1256 (6th
Cir. 1993). Flex-Van Service Center, 228 NLRB 956 (1977). In
addition, an analysis of supervisory status must consider the
fact that the intent of Section 2(11) was to exclude leadpersons
and low-level supervisors having modest supervisory authority.
See NLRB v. Res-Care Inc., 705 F.2d 1461 (7th Cir. 1983).
Mato Brasic was challenged on the grounds that he received
special privileges based upon his relationship to his younger
brother, Vlado Brasic, the Employer’s plant manager.5 Tom
D’Incognito was challenged on the grounds that he is retired,
and thus, not employed by the Employer. Julius Rimdzuis was
challenged on the grounds that he does not share a community
of interest with bargaining unit employees.
Alois Box manufactures customized corrugated boxes for
customers who then use the boxes to package their own prod-
ucts. Alois Box employs about 35 production and maintenance
employees on [the] first shift and 5 production employees on
[the] second shift.

Jeff Miller

The Petitioner claims that Jeff Miller is a supervisor on first
shift. Specifically, the Petitioner adduced evidence and argued
that Miller assigns and disciplines employees, adjusts their
schedules, and has responsibility for the first shift. The burden
of proving supervisory status rests on the party asserting that
such status exists. See Bennett Industries, 313 NLRB 1363
(1994); Soil Engineering Co., 269 NLRB 55 (1984). Thus,
Petitioner has the burden to show that Miller as well as Garcia
and Granillo are supervisors under the Act. In response, the
Employer claims that Miller is a first-shift, nonsupervisory
employee in the maintenance department. The Employer claims
that Miller’s position was officially changed to that of a me-
chanic in the maintenance deptartment sometime in 1995. It is
well established that the Board does not view titles or the lack
thereof to be determinative of supervisory status. The proper
consideration is whether the functions and authority of the indi-
vidual, irrespective of title, meet the criteria defined in Section
2(11) of the Act. Mack’s Supermarkets, 288 NLRB 1082
(1988).
The following facts are not in dispute: Miller was hired by
the Employer on May 29, 1990; Miller was promoted to a pro-
duction supervisor under Vlado Brasic in 1993; Miller arrives
at work before Brasic and hands out factory orders and posts
Brasic’s job assignment sheet for first-shift employees, Miller
5 In order to avoid confusion, Vlado Brasic, the plant manager, will
be referred to as Brasic and Mato Brasic, the slitter operator, will be
referred to as Mato.
ALOIS BOX CO. 1179
meets with the Employer’s temporary employees each morning;
and Miller did not testify at the hearing.
President David Jones testified to the organizational structure
that he implemented soon after joining Alois Box: Jones is the
president; Gruna Bernardo is the vice president of sales; George
Hurd is the office manager; Bob Hilmers is the design and
maintenance manager; and Vlado Brasic is the plant manager.
Jones testified that the managers are all of equal rank and report
directly to him.
In addition to the organizational structure described by Jones
above, three types of paperwork determine how the Employer
utilizes the three alleged supervisors: (1) the factory order form;
(2) corrugator lineup sheet; and (3) Brasic’s handwritten job
assignment sheet. The factory orders—also referred to as the
“Pinks” because of their color—are computer printouts that
contain various bits of information on the specific customer’s
order. The factory orders also include printing and cutting in-
structions and the machine to be used. The corrugator lineup
tells employees the order of the jobs to be performed on the
corrugator. George Hurd takes the factory orders that need to be
performed on the corrugator and schedules them onto the cor-
rugator lineup sheet in the order that employees are to perform.
And finally, Brasic, the plant manager handwrites specific job
assignments for those employees who do not have steady posi-
tions. He usually prepares these in the afternoon for Jeff Miller
to use the next day.
The Employer essentially argues that Brasic alone supervises
the production employees through a combination of the paper-
work described above and Miller who acts as a conduit for his
orders. The record evidence clearly indicates that most of the
approximately 35 employees on first shift do not need any spe-
cial instructions to start their work each morning. Brasic de-
scribed these employees as having “steady” positions. The op-
erators, for one, can rely upon the factory orders to start their
jobs. Brasic estimated that about 10 employees are essentially
unassigned. Brasic testified that he makes up the assignment
sheet the day before so that these unassigned employees would
definitely have something to do when they first arrive for their
shift. One can reasonably infer from Brasic’s statement that his
assignment sheet is not intended to give employees all their
assignments for the day. The Petitioner called various employee
witnesses that provided extensive testimony that Miller essen-
tially picks up where Brasic’s assignment sheet and the factory
orders leave off. These witnesses testified that Miller continues
to assign and direct them well after the usefulness of Brasic’s
written assignments have been exhausted.
Pablo Barba, a machine operator since May 1997, testified
that during his time at Alois Box, Miller assigns work to the
permanent employees.6 He described Miller making individual
assignments; not only based on Brasic’s handwritten sheet, but
by conversing with employees. Although Barba’s testimony did
not go into details on how Miller converses with employees, his
testimony brought into question how self-explanatory and en-
compassing Brasic’s written assignments actually are. Manuel
Reyes, a machine operator for the last 4 years, testified that
Miller tells employees when to stop jobs and start others. Reyes

6 The record makes a few references to Miller’s new responsibility
for meeting with the Employer’s temporary workers each morning.
However, the record does not provide any reliable evidence regarding
these temporary workers.
credibly testified that Miller has been doing this for the entire
time that the latter has worked at Alois Box.
Reyes corroborated Brasic’s testimony that most employees
have steady positions. However, he also testified that various
changes are made on the production floor, and Miller is the
person who takes care of making the changes. Neither party
adduced any specific evidence that Miller has a system where
he contacts Brasic or some other superior before making any
changes concerning production. Both Jones and Brasic denied
that Miller had any authority to make changes in either em-
ployee assignments or production. However, the totality of the
record indicates otherwise Miller was the person who usually
fine-tuned production and assignment of employees. The record
indicates that Brasic spent more time in his office than on the
production floor. Since Miller did not testify, these witnesses’
testimony, which was consistent, is mostly uncontradicted.
Jones and Brasic could not specifically deny the majority of
testimonial evidence regarding Miller’s activities on the pro-
duction floor. They could only testify that Miller was not au-
thorized to make changes to production and assignment of em-
ployees.
Juan Duran, a machine operator of 4 years, had been the Un-
ion’s main organizer at Alois Box.7 Nonetheless, Duran credi-
bly testified that when employees finished their assigned tasks,
they go to Miller to ask where they should work next. Although
a bit argumentative during cross-examination, I found Duran to
be credible, unevasive, and willing to provide full descriptions
and explanations even when they tended to support the Em-
ployer’s side. In sum, Duran and other employees depicted a
scene in which Miller shuffles employees between machines
and different factory orders throughout the shift.
Duran testified in great detail how Miller moved him around.
Duran testified that Miller had told him to move to a different
machine almost every day. A majority of the employee wit-
nesses also testified that they regularly worked on more than
one machine during a shift. According to Duran, Miller some-
times had him use up to six different machines during the
course of one shift. If orders were half orders where the cus-
tomer needed the product immediately, Miller would move him
to a different machine to fulfill those orders. Reyes also testi-
fied that Miller makes adjustments in assignments depending
on the changing needs of the production.
There is also uncontradicted testimonial evidence that Miller
has substantial discretion in the handing out of employee as-
signments. Barba testified that Miller listens to employee re-
quests for certain machines or jobs: “People get accommodated
to which things that they need to work.” Miller may very well
rely upon Brasic’s work assignments, but the credible testi-
mony reveals that he also makes adjustments to them based on
individual requests as well as changing production needs. Noth-
ing in the record indicates that Miller makes these impromptu
decisions by first checking with Brasic or any other manage-
ment personnel. No witness contradicted Barba’s testimony.
The Employer in its brief argues that Miller merely relays
Brasic’s orders to the first-shift employees. As discussed above,
there is no dispute that Brasic writes up an assignment sheet for
each first shift. The Board law is clear in this area. The mere
distribution of work assignments that are created by manage-
ment personnel does not confer supervisory status. Blue Star
7 Duran’s termination was the subject of a separate ULP charge
which is not at issue in the instant matter.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1180
Ready-Mix Concrete Corp., 305 NLRB 429 (1991). Further-
more, an individual is not a supervisor if he directs employees
according to guidelines established by management personnel
and that direction does not require the use of independent
judgment. Juniper Industries, 311 NLRB 109 (1993). The re-
cord indicates that Miller verbally conveys Brasic’s assign-
ments or sometimes posts the sheet itself above the timeclock.
However, the record also indicates that Miller’s duties vis-a-vis
the production employees calls upon Miller to use independent
judgment on a daily basis. Credible evidence indicates that
Miller not only issues new assignments after he exhausts the
use of Brasic’s sheet, he makes adjustments to Brasic’s original
assignments as well. The delegation of these duties to Miller
clearly requires that he use independent judgment, which belies
the argument that Miller is a conduit employee or one with only
an incidental amount of supervisory duties.
The record also indicates that Miller has the power to inspect
the work of employees. While neither party argues that Miller
is a stand-alone quality control person, the record indicates that
an employee goes to Miller for approval of his sample run be-
fore starting the rest of the order. If Miller finds the work ac-
ceptable, the employee proceeds with the order and then upon
completion goes back to Miller for further directions. Miller
can decide to move the employee onto a different machine or
factory order. If the work is unacceptable, he tells the employee
the improvements that are needed. Duran testified that Miller
had reviewed his work and told him to improve the painting on
that order. The Employer had ample opportunity to call Miller
to rebut the testimony of the employee witnesses, especially
Juan Duran who provided detailed accounts of Miller’s role in
approving work and handing out new assignments, but did not.
There was neither evidence nor representation that Miller was
unavailable.
It is disputed whether Miller has the power to control em-
ployee work schedules. Reyes testified that prior to the Peti-
tioner’s organizing campaign, Miller had assigned overtime and
employees had complied. Reyes also testified that Brasic had
replaced Miller as the person who talked to employees about
overtime assignments, and that this change occurred about the
time of the organizing and NLRB election. While Brasic per-
sonally handling of overtime matters around the time of the
organizing raises some suspicion, Petitioner has not adduced
any persuasive evidence that Miller controlled the allocation of
overtime. Cirilo Garcia, a 19-year employee at Alois Box, and
Manuel Reyes testified that overtime is not mandatory but one
based on the employees’ cooperation. These two employee
witnesses also stated that Miller writes employees’ names in a
small notebook regarding overtime matters. Since Petitioner did
not adduce any evidence beyond the likelihood that Miller
writes down the names of the employees who have agreed to
work overtime on a particular day, I find that Miller had only a
de minimis role in the assignment of overtime.
Petitioner next contends that Miller grants employees per-
mission to leave early or arrive late. Duran testified that Miller
gave him permission to leave early, and Miller gave that per-
mission immediately and without checking with anyone else.
Manuel Reyes testified that when Brasic was out of the plant,
Miller gave him permission to leave early so that he could go to
court. Cirilo Garcia testified that he had asked Miller on two
occasions to leave early. On one occasion, Miller checked with
Brasic before telling Garcia that he could leave early. However,
on the other occasion, Miller approved the request without
checking with Brasic. Notwithstanding the Employer’s argu-
ment in its brief that Garcia had contradicted himself regarding
how many minutes Miller had taken before granting permission
on his own, I credit Garcia’s testimony that Miller had granted
permission without contacting anybody else on the one occa-
sion. It should not escape notice that when Miller granted per-
mission on his own, these employees were satisfied that they
had properly obtained permission to leave early. They neither
went to Brasic as an additional step nor did they ask Miller to
talk to Brasic on their behalves. Although Jones and Brasic
denied that Miller had authority to grant employees permission
to leave early or come in late, the weight of the credible and
detailed accounts indicate that the practice was to the contrary.
The Employer’s position is that Miller was effectively re-
lieved of his supervisory duties in 1995 when he was converted
into a mechanic in the maintenance dept. The Petitioner argues
that employees were not notified of Miller’s loss of his supevi-
sor’s job, and that the Employer continued to hold out Miller as
a supervisor. Cirilo Garcia and Juan Duran credibly testified
that on several occasions in the last 2 years Brasic had told
employees to do whatever Miller tells them to do. In addition,
employee witnesses testified that during monthly meetings they
were told to listen to Miller. Both Jones and Brasic ostensibly
denied that employees were told this at meetings. I do not credit
either of their denials. When asked if employees were told to
listen to Miller, both hesitated and then stated that they could
not recall or remember employees being told to listen to Miller.
The record evidence indicates that far from telling employees
that Miller was no longer their supervisor, the Employer led
employees to believe the exact opposite, thus, in effect reaf-
firming in the minds of employees that Miller was their desig-
nated superior.
The Employer places somewhat heavy reliance upon the fact
that employees Edgar Pinto, Jose Zapata, and Delfino Tapia
occasionally directed the work of other employees but were
allowed to vote without challenge. While there is some support
in the record that they did, in fact, direct other employees, their
direction of other employees was sporadic, more akin to train-
ing, and incidental to their own assignments. See Bakersfield
Californian, 316 NLRB 1211 (1995). For instance, Pinto taught
another employee how to clean up. Zapata taught 5-month em-
ployee Mariano Rodriguez how the Employer wanted things
done as well as handing written orders directly to him. The
underlying reason for these more frequent opportunities to di-
rect employees was that the Employer had hired many new
employees, both permanent and temporary. It is undisputed that
the Employer suffered a serious manpower shortage after an
INS raid in April 1997 that resulted in about one-third of the
production employees leaving Alois Box. The Employer had
called upon many of its experienced and/or senior employees to
help with the training of the new hires. In comparison, Miller’s
direction of employees was clearly more extensive and of an
ongoing nature.
The Petitioner also contends that Miller has disciplinary au-
thority over employees. Petitioner highlights the termination of
Federico Melendez as an example of Miller’s authority to dis-
cipline. Various employee witnesses testified that they saw
Miller arguing with Melendez immediately prior to his dis-
charge. Overall, their testimonies concerning Melendez are
based on speculation and hearsay, and thus, are unreliable.
Jones provided credible testimony that he himself terminated
ALOIS BOX CO. 1181
Melendez. The Petitioner has not shown that Miller discharged
or even recommended Melendez’ discharge.
More troublesome is Manuel Keyes’ credible testimony that
Miller stopped an exemployee, Ruben Contaras, from working
until Brasic returned to the plant. The responsibility for report-
ing rules infractions can be an additional factor in determining
supervisory status. See Flex-Van Service Center, 228 NLRB
956 (1977). The record is not clear why Miller stopped Conta-
ras from working. Although the event clearly shows that Miller
ultimately referred the discipline matter to his superior, Miller,
nonetheless, believed that he had the authority to stop an em-
ployee from continuing his work. In sum, there is insufficient
record evidence to support a finding that Miller even reported
Contaras, let alone recommended discipline. However, the
event does illustrate the type of independent judgment Miller
practices when Brasic is away from the production floor. In-
stead of merely reporting the situation to his superior, Miller
took it upon himself to halt another employee’s work. This
event belies Brasic’s contention that Miller has no authority to
make decisions that require use of independent judgment.
The Employer seems to suggest that the combination of the
factory order forms and Brasic’s handwritten assignment sheet
is sufficiently specific that first-shift employees can perform
their work without any additional supervision. The totality of
the record simply does not support this contention. According
to Reyes, when Brasic is not there, Miller does not preface or
qualify his orders to employees as being from Brasic or the
plant manager. “When Brasic not available, Miller is the man to
see.” Cirilo Garcia also testified that Miller is in charge when
Brasic is not around. The record evidence indicates that Miller
spends most of his time on the production floor directing em-
ployees or in the production office. The rest of the time he fills
in on machines as an operator or helps the mechanics. A total of
nine employee witnesses testified extensively about Miller’s
prominent role on the production floor. Based on the credible,
consistent, and mostly uncontradicted evidence of these em-
ployee witnesses—all of whom with the exception of Duran are
still employed by the Employer—I find that Miller does have
responsibility for the first shift and uses independent judgment
in his duties as a supervisor. The totality of the record indicates
that Miller, and not Brasic, is the frontline supervisor in
production.

Accordingly, I recommend that the challenged ballot of Jeff
Miller be sustained.

Manuel Garcia

The petitioner claims that Manuel Garcia is the supervisor of
the second shift. The Employer claims that Garcia is merely the
principle machine operator on the second shift. An individual is
a supervisor if he is in charge of a facility operating at night if
he is authorized to exercise independent judgment and is not
able to consult higher authority on a routine basis. See NLRB v.
McCullough Environmental Services, 5 F.3d 923 (5th Cir.
1993).
The following facts are not in dispute: Garcia has about 25
years of experience with the Employer and his hourly rate is
$20.8 Garcia is not only the most senior employee on second
shift, but most senior person among all hourly employees, hav-
ing worked at Alois Box 3 years longer than any other hourly
employee. Garcia’s only break in employment came about 3

8 Garcia’s start date was February 21, 1972.
years ago, when he quit Alois Box for a period of about 5
months due to personal reasons unrelated to work. He returned
to Alois Box when Vlado Brasic, the plant manager, offered
him a job on the then soon to be formed second shift. The sec-
ond shift usually starts at 3 p.m. and ends at 11 p.m. He started
working a modified work schedule where he came into work 30
minutes earlier than the rest of the second shift to have his daily
meetings with Brasic.
The Petitioner suggests that Garcia attends these meetings as
a supervisor. The Employer’s position is that Garcia goes in to
receive from Brasic the factory orders and all relevant instruc-
tions for the second shift, which Garcia then relates to the four
other employees on second shift. Garcia testified that he only
receives orders as an operator. Thus, there is insufficient sup-
port in the record for the Petitioner to prevail on this point.
However, during Garcia’s description of these meetings, I
sensed that the witness was purposely downplaying anything
about him that could possibly be interpreted as supervisory in
nature. For example, Garcia advanced internally contradictory
testimony regarding the frequency with which he had his meet-
ings with Brasic. He initially testified that he met with Brasic
only twice a week. Later in his testimony, Garcia admitted that
he had daily meetings in Brasic’s office.
Garcia also insisted that he did not park in the reserved park-
ing spaces. Both Brasic and Jones testified to the contrary. Bra-
sic had apparently given Garcia permission to park in a re-
served space because it was safer when he locked up the plant.
Garcia also attempted to backtrack on some of his earlier testi-
mony when he had repeatedly referred to the second shift and
its employees using proprietary language. For example, Garcia
used the following descriptions: “I ran the shift;” “my employ-
ees;” and “during my shift.” In light of the fact that Garcia vol-
unteered these descriptions. I found his subsequent backtrack-
ing insincere. Overall, he was highly evasive and appeared to
be testifying in a preformatted manner. Thus, I viewed Garcia’s
testimony with a good deal of suspicion.
Pay differentials can be a factor in determining an individual
employee’s supervisory status. See Health Care & Retirement
Corp., supra. The Employer claims that Garcia’s wage rate
reflects his seniority, experience and the difficulty of his job as
a Flexo operator. Garcia earns $20 an hour which is $4.05 more
than the next highest paid hourly employee, Miguel Granillo,
who has nearly 22 years with the Employer. The record ad-
duced does not permit helpful comparisons between the pay
rates of hourly employees. However, the record does indicate
that Garcia’s annual wages exceed the salary of Bob Hilmers,
the maintenance supervisor.9 This pay differential alone does
not confer supervisory status on Garcia; however, his wages
certainly put him into the range of supervisor compensation.
Plant Manager Brasic testified that Garcia has standing or-
ders to call him or President Jones if he were not at home, in
the event of a problem during second shift. Garcia testified that
he calls Brasic “a couple of times” a week. Brasic essentially
corroborated, stating that Garcia calls about once a week. Bra-
sic forcefully testified that Garcia has no authority to make
independent decisions on second shift, that he is supposed to
call to obtain additional orders regarding machine breakdowns,
9 Jones testified that Hilmers’ annual salary is $33,000–$35,000,
with a bonus of $1200–$1500. Garcia’s annual wages for a standard
2000 hours would be $40,000. This is a conservative estimate because
it excludes Garcia’s bonus and overtime pay, which the record indicates
he receives.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1182
questions in regard to a particular order, and quality issues.
While supervision by phone is plausible, the record shows that
it did not stop Garcia from solving problems on his own.
Garcia testified that a former employee named Jose injured
his foot while working on second shift. Although the injury was
not a medical emergency, he decided to send Jose to the Em-
ployer’s off-site clinic. And since Jose had a foot injury, he
instructed another former employee, David Quintaro, to drive
him to the clinic. The two men returned to inform Garcia that
the clinic was closed. Garcia then decided to send Jose to the
emergency room at the nearby hospital. The record evidence
does not indicate in the slightest that Garcia followed the phone
procedure that Brasic described during his examination. He did
not attempt to call Brasic or Jones. The record indicates that
Garcia eventually talked to Brasic about the injury but only
after having resolved the problem for the night.
The Petitioner also contends that Garcia disciplines second-
shift employees. Mariano Rodriguez testified that while on
second shift he had gone to Garcia to complain about Chris
McBee, a coworker’s poor work. Rodriguez credibly testified
that Garcia went to McBee and told him to do his job properly
or else he would be sent home. Rodriguez testified that McBee
has been mad at him ever since Garcia had spoken to him, but
that McBee now does his job properly. The McBee incident
does not conclusively show that Garcia has disciplinary author-
ity. It does, however, demonstrate another instance where Gar-
cia was willing to exercise his independent judgment in resolv-
ing a problem on second shift. There is no indication in the
record that Garcia contacted Brasic or Jones at any time to dis-
cuss the McBee situation.
Based on the credible evidence that Garcia exercises inde-
pedent judgment in the resolution of various problems that arise
on second shift without first consulting higher authority, I con-
cluded that Garcia is a supervisor. Accordingly, I recommend
that the challenged ballot of Manuel Garcia be sustained.
. . . .

Mato Brasic

Mato Brasic was challenged on the grounds that he is the
brother of Vlado Brasic, the plant manager and thus, receives
special privileges. The Employer denies that Mato receives any
special benefits and that any accommodation afforded Mato
was due to its desperate need for workers following the April
INS raid. An employee who is a relative of management may
be excluded from the bargaining unit if he enjoys special bene-
fits based on that relationship or if his special status aligns his
interests more closely with management than with unit employ-
ees. M. C. Decorating, 306 NLRB 816 (1992).
The following facts are not in dispute: Brasic hired Mato to
operate the slitter machine at $3 an hour; Mato started at Alois
Box on August 11, 1997; he works the first shift; he had no
prior experience either on the machines at Alois Box or work-
ing in the corrugated box industry; prior to his job at Alois Box;
Mato was self-employed in the home rehab business.
The Petitioner and Employer went to great lengths to discuss
the productivity and quality of Mato’s work. The Petitioner
contends that Mato’s special privileges extend to his ability to
stay on at the Alois Box irrespective of his allegedly substan-
dard work. Thus, the Petitioner presented a string of witnesses
who were very critical of Mato’s performance as a slitter opera-
tor as well his industriousness. The Employer defended Mato
through its own witnesses and production statistics. The best
that Jones could do to defend Mato was to state that production
statistics for the time that Mato was the primary slitter operator
were a little below average. Brasic, on the other hand, testified
that Mato was an above-average slitter operator. In sum, I am
inclined to believe Petitioner’s witnesses that Mato was a sub-
par operator lacking diligence. In short, Mato’s testimony left
little doubt that he viewed the slitter job as a less than demand-
ing one.
As much as Mato’s competence as a slitter operator could be
a relevant factor in determining whether he receives special
privileges based upon his relationship to Brasic, I am able to
conclude that he receives special privileges based upon a more
compelling factor, namely abundant evidence that Mato is im-
mune from any meaningful discipline regarding his attendance
problems and is permitted to determine his own schedule.
On September 30, 1997, Brasic issued Mato a written warn-
ing for not adhering to Rule #3,—Being Tardy or Absent With-
out Authorization. The warning detailed the 3 days that Mato
had been absent: Sept. 22, 26, and 29. The Employer argues in
its brief that the written warning demonstrates that Mato re-
ceives no special treatment because his brother, the plant man-
ager, was the person who initiated the discipline. The act of
issuing the written warning itself neither helps nor hurts the
Employer’s defense. While an act of discipline technically did
take place, the “Employee Contact Report” had no teeth to it.
Instead of specifying the next level of discipline if the problem
was not resolved, presumably a second Written Warning or
Suspension, Brasic wrote in the “Action Taken . . .” section that
Alois Box may have to identify a different schedule for Mato.
Mato accumulated eight additional absences after the Warning.
It is abundantly clear that the discipline had little or no effect
on curbing Mato’s absences.
The Written Warning also points to the likelihood that
Mato’s official “Employee Attendance Record” under reports
his absences. While the employee contact report records ab-
sences for Sept. 22 and 26, the employee attendance record
indicates that Mato was not absent those 2 days. This discrep-
ancy adds some credence to employee allegations that Mato
was actually absent much more than nine times.
Assuming for the moment that the employee contact report
was somehow incorrect and the employee attendance record is
an accurate gauge of Mato’s absences, during his first 4 months
at Alois Box, Mato was absent 9 days and late at least twice. In
addition to the actual absences, Mato also did not follow proper
procedure of calling in to notify the Employer that he would be
absent. The record indicates that Mato discussed whatever at-
tendance problems he had exclusively with Brasic. In sum,
Mato had a terrible attendance record. The record is relatively
silent about the Employer’s attendance policy. Jones only de-
scribed it as “flexible.” Fortunately, the record includes evi-
dence of an established practice as it applied to another em-
ployee, Bernardo Merced, whom the Employer terminated for
excessive absenteeism sometime in November 1997.
There is no evidence that Bernardo Merced was terminated
for anything but absenteeism. Merced’s attendance record was
remarkably similar to Mato’s. Another similarity was that both
Mato and Merced were new employees. Merced accumulated
nine absences and two tardies during his first 2 months with the
Employer. Jones testified that Merced was not issued any disci-
pline prior to his termination. In addition, Sebastian Sierra, a
23-year employee, testified that he had never seen another em-
ployee absent as much as Mato, and that the Employer in recent
ALOIS BOX CO. 1183
months had fired other employees with fewer absences that
Mato.
When compared to the case of Merced. the Employer defi-
nitely favored Mato. The Employer repeated its position that its
employment policies regarding Mato was governed by its des-
perate need for workers after the April 1997 INS raid. This
defense is flawed because it still does not explain why Merced
was terminated during the same period of acute labor shortages.
In addition to the comparison to Merced, the Employer’s other
responses to Mato’s attendance problems provide sufficient
evidence that he had special privileges based upon his relation-
ship to Brasic.
In response to Mato’s worsening attendance record after the
Written Warning of September 30, Brasic agreed to Mato’s
suggestion that he switch from a 5-day to 4-day workweek.
Mato testified that the Employer did not set his new schedule,
apparently leaving it to him to decide on a daily basis which
four days he would work. Mato testified that he need only call
the company and leave a message on the mornings that he did
not plan to come in. An employee who is a relative of a man-
agement personnel receives special privileges when he can
unilaterally determine when he would work overtime. M. C.
Decorating, 306 NLRB 816 (1992). Mato’s ability to suggest
an alternative work schedule that allows him to decide each
morning whether he will go to work more than satisfies the
meaning of special privileges under the M. C. Decorating test.
Mato also requested and received from Brasic permission to
take a 2-week leave of absence for the first half of December.
Mato testified that the only reason he had to provide Brasic was
that it was “personal.” The totality of Mato’s testimony reveals
that “personal” means spending time on his rehab business.10
This occurred at a time that Jones and Brasic insisted Alois Box
was desperate for workers such as Mato, whom it had to entice
into the company with a higher rate of pay. Under these cir-
cumstances, the granting of the 2-week leave of absence can
only be seen as another special privilege enjoyed by Mato.
Based on the record evidence, Mato had no reason to view
absences as a danger to his job at Alois Box. After the Em-
ployer’s only discipline of him, Mato proceeded to accumulate
even more absences. The Employer’s response was not to dis-
cipline Mato, but to further accommodate him. Mato was al-
lowed to essentially pick 4 days every week that he wanted to
work. Even after gaining this unprecedented flexibility, the
record indicates that Mato’s absences continued unabated. And
finally, Brasic gave Mato a 2-week leave of absence in the
midst what the Employer explained was an acute labor short-
age. The record indicates that Mato received no other discipline
besides the Written Warning on September 30. Based upon the
Employer’s responses to Mato’s attendance problems, I find
that he does receive special privileges because he is effectively
immunized from any meaningful discipline for absences be-
cause he is the older brother of Vlado Brasic, the plant man-
ager. Accordingly, I recommend that the challenged ballot of
Mato Brasic be sustained.
. . . .

).
10 The totality of Mato’s testimony clearly indicates that even after
taking the slitter job at Alois Box, he continued to spend considerable
time on his rehab business. After testifying that he had no other jobs
outside Alois Box, Mato reluctantly admitted that he still had two
houses that he had to finish rehabbing. After initially denying that his
absences were due to his rehabbing work. Mato conceded that at least
some of the absences were for this very reason.

Julius Rimdzuis

Julius Rimdzuis was initially challenged on the grounds that
he is an office clerical, and thus, specifically excluded from the
stipulated bargaining unit. The Petitioner after Rimdzuis’ testi-
mony modified the basis for its challenge. The Petitioner now
contends.that Rimdzuis does not share a sufficient community
of interest with bargaining unit employees. In light of Rim-
dzuis’ own testimony that he spends a considerable amount of
his working day outside of the plant, the Union’s witnesses—
all of whom work exclusively inside the plant—simply could
not supply much testimonial evidence about what Rimdzuis did
inside the Employer’s plant.
In Kalamazoo Paper Box Corp., 136 NLRB 134 (1962), the
Board enumerated the factors to be considered in determining
whether individuals have a community of interest apart from
other employees such that they would not belong in the same
unit. Included were: a difference in method of wages or com-
pensation; different hours of work; different employment bene-
fits; separate supervision; the degree of dissimilar qualifica-
tions, training and skills; differences in job functions and
amount of working time spent away from the employment or
plant situs; the infrequency or lack of contact with other em-
ployees; lack of integration with the work functions of other
employees or interchange with them; and the history of
bargaining. See also Keeler Brass Co., 301 NLRB 769 (1991
The following facts are not in dispute: Rimdzuis is 78 years
old; he started working for the Employer about 7 years ago; his
job duties include troubleshooting, machine repair and procur-
ing spare parts, he does not punch the timeclock; he works
approximately 20 hours per week and is paid $300 for his work.
The Employer defends Rimdzuis’ eligibility on the grounds that
he is a part-time maintenance employee with a sufficient com-
munity of interest with bargaining unit employees. The Em-
ployer did call Rimdzuis to the stand, and his testimony consti-
tutes the best evidence of his real status.
Rimdzuis testified that he works approximately 20 hours per
week, but he also explained in greater detail that the 20 hours
are not an absolute requirement. He also testified that he
worked up to 60 hours a week when he first started but did not
receive any overtime pay. Rimdzuis also testified that he has no
breaks. He testified that he sometimes works on Saturday and
Sundays to make his 20 hours. In addition, both the testimony
of Rimdzuis and Jones leaves no doubt that Rimdzuis reports to
and departs from the plant at varying times of the day. In short,
Rimdzuis can choose the days that he works and the hours that
he spends at the Employer’s plant.
In regard to his compensation, he explained that he often
works in excess of 20 hours but is still paid only $300. Rim-
dzuis also described his weekly pay to be a flat amount: “It’s a
straight $300 a week, yes.” The Employer did not provide evi-
dence of any deductions for taxes, medicare, Social Security,
etc. He also stated that he receives no employee benefits. At
one point during his testimony, he did specifically state that his
hourly wage is $15. He also has never received a raise during
his 7 years working for the Employer.
Overall, I credit Rimdzuis’ list of the different types of work
that he has performed for the Employer. However, the evidence
clearly points to his not being an hourly employee. First, the $l5
an hour is not Rimdzuis’ pay rate. It cannot be. If the Employer
truly paid Rimdzuis at $15 an hour for a 20-hour week,
Rimdzuis would take home net wages far below the $300 he
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1184
admitted to receiving every week. Unlike in the case of
D’Incognito, the Employer did not produce a W-2 form for
Rimdzuis. The Employer had all the incentive to produce a W-2
for Rimdzuis but did not. In addition to the manner of his com-
pensation, his lack of benefits, his ability to schedule his work
week the way as he sees fit, and the fact that he comes and goes
as he pleases clearly distinguish him from bargaining unit em-
ployees and the terms and conditions under which they work.
Rimdzuis’ work may very well fall under the umbrella of work
performed by maintenance employees, a category of employees
specifically made eligible in the Stipulated Election Agreement;
however, all the other aspects of his job indicate that he is not a
regular part-time employee. Thus, he does not share a sufficient
community of interest with bargaining, unit employees. Ac-
cordingly, I recommend that the challenged ballot of Julius
Rimdzuis be sustained.
. . . .