Frank Foundries Corp.

National Labor Relations Board - Board Decisions

Sep 19, 1974

213 N.L.R.B. 391 (N.L.R.B. 1974)

FRANK FOUNDRIES CORP. 391
Frank Foundries Corporation and International Union,
United Automobile, Aerospace & Agricultural Im-
plement Workers of America , UAW, Petitioner.
Case 38-RC-1501
September 19, 1974
DECISION AND ORDER DIRECTING
REGIONAL DIRECTOR TO OPEN AND
COUNT CHALLENGED BALLOT
BY CHAIRMAN MILLER AND MEMBERS KENNEDY
AND PENELLO
Pursuant to a Stipulation for Certification Upon
Consent Election executed by the parties and ap-
proved by the Regional Director for Region 13 on
February 19, 1974, an election by secret ballot was
conducted on March 6, 1974, under the direction and
supervision of the Regional Director among the em-
ployees in the appropriate unit. At the conclusion of
the election, the parties were furnished with a tally of
ballots which showed that there were approximately
34 eligible voters and 32 ballots cast, of which 16 were
for, and 15 against, the Petitioner Union, and 1 was
challenged. The challenged ballot was sufficient to
affect the results of the election.
In accordance with the National Labor Relations
Board's Rules and Regulations, Series 8, as amended,
the Regional Director conducted an investigation and
on April 5, 1974, issued and duly served on the parties
his Report of Challenged Ballot and Direction of
Hearing, in which he ordered a hearing to be held
before a duly designated Hearing Officer to resolve
the substantial and material issues raised by the chal-
lenged ballot. The Regional Director further ordered
that the Hearing Officer designated for the purpose of
conducting the hearing prepare and cause to be
served on the parties a report containing resolutions
of the credibility of witnesses, findings of fact, and
recommendations to the Board as to the disposition of
said issues.
Pursuant to said order, a hearing was held on May
2 and 3, 1974, before Hearing Officer Ira S. Epstein.
All parties were represented by counsel, participated
fully in the hearing, and were given full opportunity
to be heard, to examine and cross-examine witnesses,
and to produce evidence bearing upon the issues. On
May 24, 1974, the Hearing Officer issued and served
on the parties his Report and Recommendation on
Challenged Ballot in which he recommended that the
challenge to the ballot of Virgil A. Argo be sustained
and that the Petitioner be certified as bargaining rep-
resentative. The Employer filed timely exceptions to
the hearing Officer's report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within
the meaning of the Act and it will effectuate the pur-
poses of the Act to assert jurisdiction herein.
2. The Petitioner Union is a labor organization
claiming to represent certain employees of the Em-
ployer.
3. A question affecting commerce exists concern-
ing the representation of the employees of the Em-
ployer within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
4. The parties stipulated, and we find, that the fol-
lowing employees constitute a unit appropriate for the
purposes of collective bargaining within the meaning
of Section 9(b) of the Act:
All production and maintenance employees, in-
cluding truck drivers employed at the Employer's
machine shop division located on Route 150 in
Moline, Illinois ; but excluding office clerical em-
ployees, professional employees, guards, and su-
pervisors as defined in the Act.
5. The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby af-
firmed.' The Board has considered the Hearing
Officer's report and the Employer's exceptions and
brief and hereby adopts the Hearing Officer's findings
only to the extent consistent herewith. We do not
adopt his conclusion that Virgil A. Argo is a supervi-
sor within the meaning of Section 2(11) of the Act, or
his recommendation that the challenge to his ballot be
sustained and the Petitioner be certified as bargaining
representative.
Argo is officially designated as "Lead Man" in the
heat and treat department, which occupies a building
some 150-250 feet away from the main building of the
Employer's machine shop division. This division pro-
cesses engine cylinder sleeve castings, which are first
annealed in the heat and treat department and then
transferred to the machine shop in the main building
for completion of the Employer's work on these parts.
Approximately 90 percent of the dollar volume of the
division is accounted for by a single part or set of parts
for General Motors.
The 34 employees of the division are under the
' In light of our decision in favor of the Employer 's position, however, we
find it unnecessary to pass on the Hearing Officer's denial of the Employer's
request for sequestration of witnesses.
392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
general supervision of a division manager and a gen-
eral foreman . In addition , there is a maintenance fore-
man and a second-shift foreman, who directly
supervise employees in the main building . There are
no supervisors located in the heat and treat building
except, arguably, Argo. The six other employees who
work there , four on the first shift and two on the
second , are engaged in routine work which varies little
from day to day, and, with relatively minor excep-
tions , they know what to do without being told. A
substantial part of Argo's job is maintenance of the
heating ovens and equipment , and recordkeeping on
(1) tests of the hardness of the castings being pro-
cessed and (2) condition of the equipment. A substan-
tial part of his time is spent outside the heat and treat
building, and he has relatively little contact with the
second -shift employees in the department because his
own work shift overlaps theirs by only 1 hour.
In concluding that Argo was a supervisor, the Hear-
ing Officer placed considerable reliance on Argo's
"ostensible authority in the eyes of other employees,"
on evidence that employees regarded Argo as the
"boss," and on certain other "secondary indicia which
set him apart from other heat and treat employees and
establishes his supervisory status." To the extent that
the evidence relied on relates to Argo's ostensible su-
pervisory status, it is not probative as to the issue
before us. Our task here is to determine whether a
certain employee is actually a supervisor and thereby
disqualified from eligibility to vote. This is not an
unfair labor practice proceeding where, in some cir-
cumstances , the conduct of a nonsupervisory employ-
ee may be attributable to the employer because of that
employee's apparent authority to speak or act for
management . The persuasiveness of this evidence is
further undermined , in our view , by the fact that
Argo's status had not changed for approximately 3
years prior to the hearing, yet within that period Argo
voted , unchallenged , in a representation election
among employees of the Employer. The Employer
states in its brief and the Petitioner has not disputed
that the prior election was held on January 24, 1973,
that the Petitioner was a party thereto, and that the
election was held in the same unit of employees. In
fact, much of the testimony as to Argo's alleged super-
visory authority describes incidents predating that
election.
We need mention only those "secondary indicia"
relied on by the Hearing Officer, which on their face
might suggest actual supervisory authority. Thus, the
Hearing Officer found that employees bring their
complaints to Argo about uncongenial working con-
ditions. There was scant evidence of this, but in any
event there is no evidence that Argo had any authority
to act in the Employer's behalf with regard to such
complaints. The Hearing Officer also found that Argo
is responsible for maintaining production within the
heat and treat department, but the evidence on this
was limited to Argo's exhortations to other employ-
ees. Regarding the Hearing Officer's finding that
Argo can excuse employees from working overtime,
we find that the evidence, being limited to the fact
that he did excuse an employee from working over-
time on one occasion, is insufficient in itself to sup-
port a finding of general authority for such purposes.
Argo's assignment of work to other employees, also
relied on by the Hearing Officer, was limited to pass-
ing on instructions from others, except that sometimes
he gave them jobs to deep them busy. Such assign-
ments, viewed in the context of the record as a whole,
involved no more than routine discretion and are not
indicative of supervisory status?
What remains is the more directly pertinent and
more hotly disputed issue of whether Argo had au-
thority effectively to recommend the hiring or disci-
pline of employees. With respect to hiring, two
employees were hired after having some contact with
Argo. One, Martin, knew an employee in the heat and
treat department, who called him and told him of an
opening. Martin came out and talked to Argo, who
did not know him previously, and who took him to the
general foreman to be interviewed. Martin was not
hired then, but when another vacancy occurred he
was. Another prospective employee, Romero, talked
to Argo (through Romero's bilingual cousin as inter-
preter) and was later informed by Argo that he was
hired. Meanwhile, however, Argo had asked another
Spanish-speaking employee who knew Romero and,
apparently, another applicant to recommend one or
the other. The general foreman testified that he in-
structed Argo to get this employee's recommendation,
and he followed it. Whether or not it could be said
that in some sense Argo recommended the hiring of
Martin and Romero, it is clear that in no sense did the
Employer rely on his judgment in those instances.
On the subject of recommending discipline, the re-
cord contains four instances where some action was
taken regarding an employee after Argo made some
recommendation. In two of the instances, Argo rec-
ommended that the employees be transferred, one
because the employee told him he had a bad back that
hurt him on that job, and the other because in Argo's
opinion the employee could not handle the job of
lift-truck driver. The general foreman, to whom Argo
had made his recommendations, testified that he
made an independent investigation in both cases and
decided to transfer them. A third employee was trans-
ferred after Argo recommended that he be dis-
2 Evans Orchard Supply Company, 166 NLRB 243, 248 (1967).
FRANK FOUNDRIES CORP. 393
charged, after two other employees complained that
he could not do the job and they were doing his work
for him. According to the general foreman, he trans-
ferred that employee on the recommendation of the
two employees who complained about him, after talk-
ing it over with the employee involved; in any event,
the general foreman did not follow Argo's recommen-
dation. The fourth and final disciplinary incident con-
cerned Argo's recommendation that an employee be
suspended for horseplay. The general foreman spoke
to the employee about it and decided not to suspend
him. Absent evidence that Argo was specifically given
authority effectively to recommend transfers or disci-
pline, this evidence falls short of demonstrating con-
duct from which the existence of such authority could
reasonably be inferred.
In short, Argo is a skilled maintenance man with
responsibilities characteristic of a leadman and some
"secondary indicia" of supervisory status. But the re-
cord does not support a finding that he actually pos-
sesses any kind of authority defined in Section 2(11)
of the Act. Accordingly, we shall direct the Regional
Director to open and count his ballot, to prepare a
revised tally of ballots, and to issue the appropriate
certification.
ORDER
It is hereby ordered that as part of the investigation
to ascertain a representative for the purpose of collec-
tive bargaining among certain employees employed
by the Employer, in the unit set forth above, the Re-
gional Director for Region 13 shall, within 10 days
from the date of this decision, open and count the
ballot of Virgil A. Argo and thereafter prepare and
serve on the parties a revised tally of ballots, including
therein the count of said ballot, upon the basis of
which he shall issue the appropriate certification.