Fuqua Homes (Ohio), Inc.

National Labor Relations Board - Board Decisions

Aug 11, 1975

219 N.L.R.B. 1033 (N.L.R.B. 1975)

FUQUA HOMES (OHIO), INC 1033
Fuqua Homes (Ohio), Inc. and United Steelworkers of
America, AFL-CIO. Cases 9-CA-7739 and 9-
RC-9948
gional Director open and count the ballots of the
foregoing employees 5 of the Respondent-Employer,
serve on the parties a revised tally of ballots, and
issue an appropriate certification.
August 11, 1975
SUPPLEMENTAL DECISION AND
DIRECTION
BY CHAIRMAN MURPHY AND MEMBERS FANNING AND
PENELLO
On June 14, 1974, the National Labor Relations
Board issued its original Decision 1 in this case in
which it resolved the unfair labor practice issues but
remanded for further hearing on certain supervisory
issues and for a supplemental decision by the Ad-
ministrative Law Judge containing his findings, con-
clusions, and recommendations concerning the su-
pervisory status of certain individuals and the merits
of the Respondent-Employer's objections to an elec-
tion among its employees held on May 25, 1973. The
additional hearing was held before Administrative
Law Judge James V. Constantine, who also conduct-
ed the original hearing in this proceeding, and on
November 27, 1974, he issued his attached Supple-
mental Decision in which he found Respondent-
Employer's objections to be without merit and James
Archer, Mitchell Perkins, and Fred Kress not to be
supervisors. Thereafter, the Respondent-Employer
filed exceptions and a supporting brief and the
Union filed a brief in answer to Respondent-
Employer's exceptions.
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.
The Board has considered the record and the at-
tached Supplemental' Decision in light of the excep-
tions and briefs and has decided to affirm the rul-
ings,' findings, and conclusions 3 of the Admin-
istrative Law Judge and to adopt his recommenda-
tions as modified below.
We agree with the Administrative Law Judge that
Archer, Perkins, and Kress are not supervisors as de-
fined in the Act. Consequently, we overrule the chal-
lenges to their ballots cast in the May 1973 election.4
In our previous Decision in this proceeding we
adopted the Administrative Law Judge 's recommen-
dation that the challenges to the ballots of Parsons,
Reed, and Flowers be overruled, and, on the basis of
our finding that employee Wehr had been unlawfully
discharged, overruled the challenge to his ballot as
well. Accordingly, we shall now direct that the Re-
DIRECTION
It is hereby directed that as part of his investiga-
tion to ascertain the representative for purposes of
collective bargaining with the Respondent-Employer,
the Regional Director for Region 9 shall, pursuant to
the Board's Rules and Regulations, within 10 days
from the date of this Direction, open and count the
ballots of James Archer, Mitchell Perkins, Fred
Kress, Carl Parsons, James Reed, Robert Flowers,
and Ronald Wehr cast in the election held May 25,
1973, and thereafter prepare and cause to be served
on the parties a revised tally of ballots including
therein the count of the above-mentioned ballots and
issue an appropriate certification.
1 211 NLRB 399
2 Including his rulings made at the hearing which we find were free of
prejudicial error
Contrary to the Administrative Law Judge , the Board's decision in
Frank Foundries Corporation, 213 NLRB No 65 (1974). to which he adverts.
did not reverse established Board law that the testimony of employees as to
what an alleged supervisor actually did or said in his capacity as group
leader , as distinguished from their subjective view of his authority. was
relevant to the issue of supervisory authority Nor do we believe the Admin-
istrative Law Judge has grounds for complaint with respect to the Board's
treatment of him or other Administrative Law Judges for whom he purports
to speak The Board acts in the capacity of an appeals tribunal from the
decisions of its Administrative Law Judges It cannot put its imprimatur of
approval upon those decisions without careful consideration and with due
regard for the interests of the parties , the public, and the effectuation of the
statute Disagreement with, or reversal of, an Administrative Law Judge's
decision ought not to be taken as personal criticism , and is not so intended
From time to time the Board, itself, finds its decisions corrected or reversed
by the Federal courts of appeals which , in turn , receive like guidance from
the Supreme Court The Administrative Law Judges are in no better or
worse position
The Respondent - Employer excepts to the Administrative Law Judge's
conclusions that its Objections I through 4 had been abandoned and were
not properly before him We agree with the Administrative Law Judge's
conclusions but in any event find that Objections I. 2, 3. and 4 are clearly
without merit With respect to Objections 5. 6. and 13-all involving alleged
supervisory activity of one kind or another on behalf of the Union-we
agree that they are without merit because the group leaders involved-
Archer , Perkins. and Kress-were not in fact supervisors We therefore find
it unnecessary to consider the other reasons advanced by the Administrative
Law Judge for rejecting those objections With respect to all other matters
concerning the Administrative Law Judge's ruling on the objections to
which Respondent- Employer excepted . we find that such exceptions raise
no issues of law or fact requiring any further consideration And since no
exceptions were taken to Objections 8, 10. 11, and 12, the Administrative
Law Judge 's recommendations to overrule them are adopted pro forma
5In his Supplemental Decision the Administrative Law Judge recom-
mended that "group leaders at the Employer 's . plant be found to be
employees rather than supervisors" and their ballots counted However, in
our previous Decision we adopted. in the absence of exceptions . the Admin-
istrative Law Judge 's finding that group leaders Stanley Greathouse, Robert
Rossiter , and Dave Matthews were supervisors and sustained the challenges
to their ballots Consequently , their ballots are not valid ballots and are not
to be opened and counted
219 NLRB No. 162
1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
JAMES V. CONSTANTINE, Administrative Law Judge: This
consolidated case was originally tried before me on August
28, 29, and 30, 1973. Thereafter I found that the Employer
had committed certain unfair labor practices. In addition I
found that Archer was an employee, so that the challenge
to his vote should be overruled; and that Perkins and Kress
were supervisors, and that the challenges to their votes
should be sustained. I also excluded certain of the
Employer's evidence in support of its objections to the
election.
Upon exceptions of the Employer the Board ruled that
excluding evidence offered by the Employer from employ-
ees as to the ostensible authority in the eyes of employees
as to the supervisory status of Archer, Perkins, and Kress
was improperly excluded. It also ruled that the Employer's
evidence as to objections to the election were also improp-
erly excluded. Accordingly, the case was remanded to me
to receive evidence on the foregoing issues
It is difficult to perceive why the Board has in this case
decided that employees may describe a supervisor's author-
ity. In Frank Foundries Corporation, 213 NLRB No. 65
(1974), the Board held that "ostensible authority in the
eyes of other employees" "and certain other secondary in-
dicia [as to] supervisory status" is "not probative" as to
whether a person is a supervisor. I rather believe that the
Board frowns upon some Administrative Law Judges, in-
cluding me, and seeks to reverse us upon what I consider
invalid considerations. For example, in Local No 1, Inter-
national Union of Elevator Constructors, AFL-CIO, 210
NLRB 903 (1974), 1 rendered a decision relying on Board
precedents, and the Board affirmed me. When the United
States Supreme Court in another case reversed the doctrine
announced in those Board precedents, respondent Local I
filed a motion for reconsideration with the Board. There-
upon the Board dismissed the complaint in Local 1, supra,
stating that "the Administrative Law Judge's ground for
finding the 8(b)(1)(B) violation now becomes untenable."
213 NLRB No. 27 (1974). 1 regard the Board's going out of
its way to criticize me for relying on Board precedents
demonstrates its willingness to find fault with me even
when I follow Board decisions precisely applicable. Yet the
Board has held "it remains the Trial Examiner's duty to
apply established Board precedent ... " Iowa Beef Pack-
ers, Inc., 144 NLRB 615, 616 (1963).
Pursuant to such remand a further hearing was held be-
fore me on September 10 and 11, 1974, at Columbus, Ohio.
All parties were represented and participated in said trial.
Briefs have been received from the Union and the Employ-
er.
Upon the entire record in this consolidated case, includ-
ing the record in the first trial, and from my observation of
the witnesses, I make the following additional:
FINDINGS OF FACT
1. THE EMPLOYER 'S ADDITIONAL EVIDENCE INTRODUCED AT THE
SECOND TRIAL
The Employer' s production manager , Jerry Clark, testi-
fied in substance as follows. He was hired in February
1972, and became a group leader from the fall of that year
until March 1973.,In-mid-January 1973, he learned of "an
attempt" to organize the plant from Foreman Melvin
Thomas. Clark signed a card for the United Steelworkers
of America, AFL-CIO, herein called the Union, at the re-
quest of group leader Fred Kress and in the presence of a
union representative at the first union meeting. Group
leader Mitchell Perkins also attended this meeting. Other
group leaders also signed union cards.
Between January 26, 1973, when the RC petition was
filed, and May 25, 1973, when the election was held, Clark
observed group leader Fred Kress, in the presence of union
representatives , passing out union stickers , pencils, and lit-
erature . Group leader Archer also had union stickers and
pencils.
During the period from January 26 to May 25, 1973, the
most active leaders on behalf of the Union were group
leaders Fred Kress and Jim Archer. But they acted openly
so that their supervisors, such as Production Manager Gar-
ret and also a foreman , sometimes observed them doing
this. In fact Clark as a foreman observed Kress passing out
union literature.
On cross-examination Clark testified that, notwithstand-
ing that he was a foreman , he signed a union card because
of a statement made by Foreman Melvin Thomas "to us"
on the same day he, Clark, attended the Union meeting.
Thereafter, Clark did not take an active part in the Union's
organizational drive.
James Wimsatt, Respondent 's foreman over " the final
finish ," testified for it substantially as follows. He became
a foreman after the election of May 1973, prior to which he
was a nonsupervisory employee for Respondent. As such
employee he attended union meetings and signed a union
card Between January 26, 1973 , and the said election,
Danny Allbritain and group leader Fred Kress each asked
him to join the Union. During such period in the plant he
observed Kress distributing union literature and giving out
union pencils , stickers , and other union materials . Wimsatt
attended union meetings during said period ; he also ob-
served Kress and Archer wearing union "identification" in
the plant . In Wimsatt 's opinion Fred Kress was the most
active "leader on behalf of the Union" in the plant. Kress
handed him a union pencil, sticker,. and a "pocket protec-
tor." Kress said something to him which would cause him
to join a union, but Wimsatt did not identify what was
mentioned by Kress.
At the Union meeting he went to Wimsatt saw there
group leaders Mitchell Perkins, Fred Kress, Archer, Par-
sons, and Wimsatt's group leader, Bob Rossiter.
Finally, Wimsatt testified that he acted as an observer
for the Employer at the May 25, 1973, election. When the
employees were "assembled to go to vote thereat" the
group leaders and the rank -and-file employees were "all
assembled together" and they all "went to vote together."
Respondent "assembled everybody," according,to Wim-
satt . He saw group leaders Parsons and Perkins in such
group who went "to vote together." At no time did Wim-
satt object to such conduct or call it to anybody's attention
at the time.
Another witness for the Employer, Stanley Greathouse,
gave testimony for it substantially follows. He was one of
the Employer's group leaders in January 1973. At that time
FUQUA HOMES (OHIO), INC.
he attended a union meeting where he also signed a union
card. He .obtained such card in blank at a table there.
Thereafter he went to about three or four more of such
meetings . From January to May 1973, he observed group
leader Fred Kress passing out union literature at the en-
trance roads to the plant . During the same period he over-
heard group leaders Fred Kress and Jim Archer at the
plant "talk to employees about the Union ." And during
that same period he considered Fred Kress and Jim Archer
as "the most active group leaders on behalf of the Union."
Still another witness testifying for the Employer was
Foreman Robert Rossiter . An adequate condensation of
his testimony is here set forth . From January to May 1973,
he was a.group leader for Respondent . About January 22,
1973, employee John King gave him a union card and also
invited him to a union meeting the next day. He later
signed said union card and transmitted it to the Union.
Between January 26 and the date of the election Rossiter
attended union meetings and on such occasions observed
group leaders Archer, Kress, and Perkins there . In addition
he saw union organizers and also Respondent 's employees
at such meetings.
At the foregoing union meetings group leader Fred
Kress "spoke favorably or, the Union and passed out
union literature . Additionally, Rossiter saw group leaders
Archer and Kress wearing union insignia in the plant. In
Rossiter 's opinion said Archer and Kress were " two of the
main" "active" group leaders on behalf of the Union, and
group leader Mitchell Perkins was "just half and half" for
the Union . And "everybody in the plant ," including the
superintendent , knew that Archer and Kress openly were
active for the Union . But nothing Archer and Kress did
influenced , Rossi ter in favor of the Union.
It was stipulated that Foreman Melvin Thomas left
Respondent 's employ on January 30, 1973.
John Shapley also gave testimony for the Employer. A
conspectus thereof follows . He was one of eight laborers in
the finish department under group leader Archer. He was
introduced to Archer by Foreman Greg Stapleton , the lat-
ter stating at that time that Archer would be Shapley's boss
and to do whatever Archer "told" Shapley . Thereafter,
Archer "showed [Shapley ] what to do, different jobs to
do." Archer told Shapley "what to do on various jobs" and
assigned him to another job when the one he was working
on ran out In addition , Shapley "reported " to Archer "if
[Shapley] ran into problems."
Although Foreman Stapleton spent "very little time in
Shapley's area , Archer "was there about . .. 50 percent in
the area." Further , Archer "actually spent in physical labor
... 50 per cent of the time . . [and] supervising . . . the
other 50 per cent of the time."
Between January 26 and May 25, 1973 , Shapley noticed
group leaders Kress and Archer distributing union litera-
ture "by the road , by the highway, of the plant." In fact he
also received such literature from these two men . During
this same time he want to union meetings where he saw
group leaders Kress, Archer , and Perkins in attendance. In
1035
Shapley's judgment Fred Kress and "probably Jim Arch-
er" were the "most active group leaders on behalf of the
Union ." Shapley also asserted that Archer transferred him
and another employee , Larry Thomas, to a job on which
Judy Wheeler , who was working thereon , couldn ' t stand
the odor connected with it , and also stated that he believed
Archer could discipline him. But on cross Shapley testified
that he and Thomas volunteered to do Judy Wheeler's
work when she complained that it was causing her morning
sickness, and that Archer did not assign Shapley and
Thomas to Wheeler 's job . Hence , I find that this did not
amount to an order from Archer.
On cross it developed that Shapley had no way of ob-
serving all the group leaders in the plant or out of the plant,
so that his conclusion that Kress and Archer were the most
active on behalf of the Union was his opinion which he
could not support. And he also testified on cross that the
fact that Kress, a group leader, was supporting the Union
did not influence Shapley to "be in favor of the Union."
A yard man for Respondent , Larry Thomas, testified as
a witness for it. An adequate summary of his testimony
follows. He started working for Respondent in May 1972,
as a laborer in the finish department under group leader
James Archer . He was introduced to Archer by Foreman
Greg Stapleton . A day or two later Archer instructed
Thomas to "keep moving and, and if there was any mistake
... he [Archer] would catch hell for it. And if he [Archer]
caught hell, then I [Thomas ] was going to catch hell " Sta-
pleton "came around . . . very little . . . not over two
hours, at the most , a day" where Thomas worked. There
were six or seven employees in the final finish where
Thomas worked.
On the other hand Archer "was present in the final finish
area . . . seven out of the eight hours," according to Thom-
as. On occasion Archer "made corrections with regard to"
Thomas' work , and also on occasion "commented with
regard to [Thomas'] good performance ." In fact Archer
promised Thomas that Archer would speak to Greg Staple-
ton about getting a raise in pay "ahead of time ," i.e., before
Thomas received one as a matter of course . Thomas did
"get a raise ." Stapleton and not Archer, so told him. In
November 1972, a layoff was effected in Archer 's depart-
ment but he told Thomas , "I'm going to keep you, you're a
good worker ." Consequently , Thomas was not laid off al-
though a few in his finish department were.
Continuing , Thomas claimed that Archer "was always
. saying . . hurry up, speed up. We 've got to get these
out." However, Archer "was engaged in physical labor in
that department . . . approximately 80 per cent of the
time" on production and 20 percent to "go around and
check and make sure that everything was done , and check
the unit out." When Thomas ran out of work "the vast
majority of time" he asked Archer for another assignment,
but sometimes he did "go to Stapleton" for such work. In
such instances Archer even transferred Thomas to another
department , for example , to group leader Stanley
Greathouse 's department Also when other employees in
1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Archer's department were absent Archer directed Thomas
to substitute for them. As to discipline, if Thomas diso-
beyed Archer's orders to him Archer "could go to [Fore-
man Stapleton] and then you'd be in trouble." This means
not too much, as there is nothing to indicate that Archer
ever sought to discipline any employee.
Between the time the RC petition was filed and May 25,
1973, when the election occurred at the plant, Thomas ob-
served group leader Kress distributing union literature "at
the plant, or near the premises of the plant." During this
period Thomas attended union meetings where he saw
group leaders Parsons, Kress, Greathouse, and Archer pre-
sent. -At such meetings Kress spoke in favor of the Union.
Thomas also observed Archer wearing union insignia while
in the plant, and Kress passing out union pencils or pock-
et protectors.
Thomas voted in the election of May 25, 1973. All the
employees were assembled with the group leaders into one
group and such group voted at said election. It was stipu-
lated that the Employer had observers at the election who
were in a position to notice that said group leaders voted
with the employees.
Finally, Thomas stated that nothing group leaders Kress
or Archer said to him caused him to be for the Union.
Macy A. Foster, another witness for the Employer, testi-
fied substantially as follows. He is regional vice president
of the Respondent. On May 25, 1973, the day of the elec-
tion, Fred Kress at about 8:30 in the morning spoke to him
in the plant. The election was held that day from 3:30 p.m.
to 4:30 p.m. Kress commented to him that "If the Union
wins this election, if there were a walk out or strike, the
doors of the plant would be closed and the production line
would not operate." But Foster failed to reply because
counsel for the Respondent had instructed him not to com-
ment or respond to a comment 24 hours prior to the elec-
tion . A group of employees were standing around in the
area at this time. Foster "understood at the time the state-
ment was made . . . that Fred Kress was a supervisor," but
Foster did not "see that a reprimand issued to Fred Kress
because of this." However, Foster repeated to the plant
manager and the production manager said statement by
Kress.
11. EVIDENCE ADDUCED BY THE UNION AT THE SECOND TRIAL
The Union's first witness was Donald Richard Dixon,
who was employed by Respondent. Dixon's group leader
was Fred Kress during the period from January to May 25,
1973. He learned this from Kress himself. A summary of
Dixon's testimony follows. Kress spent "100 per cent" of
his working day in physical work, performing the same
tasks "that the rest of us did. He worked right along side of
us. He had his job just like I have my job . . . . When he
told us anything to do he would say the foreman come and
told [him] that this had to be done, and it's our responsibil-
ity to do it."
About February or March 1973, Kress told Dixon "that
they told him [Kress] he [Kress] had responsibility that he
[Kress] didn't know he [Kress] had. He [Kress] didn't know
he [Kress] had those responsibilities after he [Kress] was
group leader for a period of time." Further, there were
times when "foremen would remove Mr. Kress from the
group [but no other] person [was] appointed as an acting
group leader" in his stead. And "if a problem arose on the
job I [Dixon] would go to a group leader if he was around,
and he, in turn, would go to the foreman . . . [and] the
foreman would tell us what to do."
Continuing, Dixon said that when he needed to take
time off from work he went to General Foreman Jerry
Clark for such permission. He pursued this course because,
although Dixon could have submitted such a request to his
group leader, the latter had to refer such request to the
general foreman. And Dixon added that he never saw any
employee seeking to get time off "during the course of the
day" from the group leader.
On cross it developed that Dixon insisted that when
Kress, his group leader, gave him instructions Kress told
him that "the foreman came and told me [Kress] to do this,
and it's our responsibility to do it." On these occasions
Kress was himself performing work when he gave such in-
structions. Also, on cross, Dixon maintained that when he
ran out of materials on the job "sometimes" he would call
this to the attention of the group leader, and the latter
"would go to the foreman." Further, Dixon "knew . . . all
the group leaders . . . went to . . foremen and group
leader meetings," whereas Dixon did not go to such meet-
ings. Also on cross Dixon admitted "there were occasions
when [his] group leader, Fred Kress, did . . instruct [Dix-
on] to do something and [Dixon] did it." However, when "a
change came along and [Dixon] had not handled that kind
of change" on the coach he was working on Dixon "found
out what to do . . . [from] a floor plan" attached to the
"back of the coach." After examining such a plan Dixon
would tell group leader Kress "that there was a change"
and how Dixon was "going to do it." Sometimes , however,
the foreman usually informed Dixon of such a change, but
less frequently the foreman informed Kress and Kress
passed on this information to Dixon. Finally on cross Dix-
on testified that group leader Kress at no time disciplined
Dixon or any other employee in the group.
Another witness for the Union was Danny Allbritain.
The essential import of his testimony follows. He worked
for Respondent from January 1972, to mid-April 1973. He
observed Archer and Kress at one union meeting in Janu-
ary 1973, but they said and did nothing at the meeting.
Dale Dimmerling, an employee of Respondent in its fin-
ish department, testified for the Union substantially as fol-
lows. From January 26 to May 25, 1973, the critical period
in this case , his group leader was Jim Archer. Said Archer
"worked right alongside of us. He [Archer] did just like we
did . . . there were three trimmers [and Archer] . . . and a
short while after that one of the [trimmers ] quit. So it was
the three of us [i.e ., two trimmers and Archer] doing the
[work]-and it was divided up between the three of us."
Archer spent about 90 percent "of his time ... in doing
physical work." During said critical period the foreman
occasionally "took" Archer "to different departments," but
when this happened no one else was designated as an act-
ing group leader in said finish department.
There were instances when Dimmerling had no work to
FUQUA HOMES (OHIO), INC. 1037
do. In such cases he "usually got [his] work done faster and
[would] go back and help Mat or help him get caught up."
He did this voluntarily and without being instructed to do
so by anyone. Also, he knew each day what work to per-
form without being told by anyone what to do. And, when
he wanted to take time off he requested this of his group
leader, but the latter directed him to "go tell your foreman
... if you wanted off." According to Dimmerling, "You
had to get permission from the foreman to get off." Nor
did Dimmerling ever "see Mr. Archer reprimand any-
body."- Finally, on direct Dimmerling declared that when
he encountered problems on the jobs he called them to the
attention of the foreman.
On cross, however, it developed that although Dimmer-
ling worked physically inside the coach most of the time,
he was nevertheless able. to see Archer because the latter
"was in the coach all day long, too." Also, when the job ran
out of materials "we would usually . . . help the [ladies]
putty and wash down" They helped the ladies after the
group leader was informed of the lack of materials.
On cross Dimmerling added that he knew what to do on
a coach as "there is a hard card on the front of the coach
and before you even go into the coach you're supposed to
read that hard card," because the foreman told them to
look at it "before you went in." Such card "says what's
supposed to go into" the coach.
Steven Waller also testified for the Union. His testimony
may be adequately condensed as follows. During the crit-
ical period of January 26 to May 25, 1973, he was em-
ployed in Respondent's framing department. Foreman
Thomas introduced Waller to Mitch Perkins as the group
leader. Waller observed that Perkins worked 90 to 95 per-
cent of the time on the interior walls of the coaches. Per-
kins told Waller to read the "hard cards" on the coaches to
know what to do. In addition, fellow employees informed
Waller what was "needed" to be done. Foreman Thomas
also introduced Waller to Fred Kress and told Waller that
Waller "would be working with" Kress on the side walls.
Kress at the time was in the group which had Perkins as its
group leader. Early in the said critical period Thomas was
replaced by Jerry Clark as foreman of the aforesaid depart-
ment.
Sometime later during said critical period Waller was
transferred to cutting paneling in the framing department.
But no matter what job Waller performed Perkins did no
more than instruct him to "clean up the area ." Perkins also
informed Waller that a "certain little job needed done right
there in that area" and "would ask if [Waller] had enough
time to go help them get caught up." Moreover, whenever
Waller was caught up on his work he would "usually go to
another department to help out" after the foreman told
him to do so. But Perkins never sent Waller to another
department. Also, Waller never saw Perkins "reprimand
anybody"; and never asked Perkins for a raise because "it
wouldn't have done any good" as he was told that the plant
manager would give such raises.
On cross it was brought out that when Waller was "not
exactly familiar with how the job was to be done" he would
"usually go to Mitch [Perkins] first . . . and if I couldn't
find him, I'd get the foreman if he was around." However,
when Waller "did another job in the department" by help-
ing other employees he did so "on his own." Further, on
cross he stated that there were from six to nine "people" in
his department. Also, on cross Waller also testified that
after a while he learned to go to group leader Perkins to
"get what we needed." And on cross Waller insisted that
only Kress, then an employee, told Waller "to do what
your group leader told you to do." As a result Waller did
admit on cross that he believed "that you were supposed to
do what your group leader had told you to do."
On the other hand, Waller on cross insisted that if he did
not do what the group leader told him Waller could "get
reprimanded." In response to a question by me Waller re-
plied that if he failed to follow the group leader's instruc-
tions the latter "would have probably told the foreman"
about it.
On cross Waller further testified that "at times if [he]
had nothing to do-the foreman would come over to [Wal-
ler] and perhaps send [Waller] to another department to do
some work." Also, the foreman told Waller to "help guys
... if [Waller] finished the work at hand." Finally, on
cross Waller testified that if he did not understand some-
thing on the "hard card" he "would go to [group leader]
Mitch [Perkins] first . . . and ask him to explain what it
meant."
The Union's last witness was James Archer, who testi-
fied substantially as follows. He was a group leader. One
Shapley was in said group. When Shapley as a new em-
ployee was introduced to the group by Foreman Greg Sta-
pleton, the latter said to Archer that, "This is John Shap-
ley, and he's going to take over the job that you was on,"
"so you can help out with the others." Then Archer ex-
plained to Shapley what Archer had been doing on the job.
Such job "was just putting on the furniture, appliances,
and tires." And Archer inspected Shapley's work since it
was the former's "function" to do so. Archer denied he
spent about 50 percent of his time as group leader "watch-
ing the other people in the group."
While Archer was group leader Larry Thomas asked him
about a raise in wages "after [Larry's] 90 days was up and
[Larry] was supposed to get another raise." Archer replied
that he would ask Foreman Stapleton about it. When
Archer passed on Larry's request to Stapleton the latter
promised to look into it. When Thomas again inquired of
Archer about the raise, Archer told Thomas that Thomas
would have to see Stapleton about it. But Archer had noth-
ing to do about Larry's getting a raise, and made no recom-
mendation regarding such raise.
Archer also testified that Foreman Stapleton once called
a meeting of the entire finish department and informed
them that he, Stapleton, "was going to catch it . . . if we
didn't get everything done right." But Archer never told
Thomas, who attended said meeting, or anyone else, "If I
catch hell you catch hell." However, Archer admitted that
he once, after being discharged, passed out union litera-
ture. He also conceded that he passed out union insignia at
the plant while a group leader. And Archer admitted that
he once helped Shapley on a very minor problem relating
to changing a lug bolt. In fact Shapley did come to Archer
.,at times when [Shapley] run into problems" because
"Shapley was supposed to come to [Archer] as group lead-
er.
1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. CONCLUDING FINDINGS AND DISCUSSION
A. As to James Archer's Status
Upon the entire record, including that established at the
prior trial, J find that group leader Archer is an employee
and not a supervisor as defined by the Act. It is true, and I
find, that he attended meetings held by management for
group leaders and foremen; but this in itself is inadequate
to show that he was vested with any supervisory authority.
And I find that when Foreman Stapleton introduced em-
ployee Shapley to Archer, Stapleton told Shapley that
Archer was Shapley's boss and Shapley should do what
Archer told him to do. But on Shapley's own testimony I
find that Archer's directions to Shapley were no more than
routine assignments involving nothing more, than a state-
ment as to what to do. And I note that Archer, on
Shapley's own testimony, spent 50 percent of his time
doing physical work However, I do not credit Shapley that
Archer spent no more than said 50 percent as I find, cred-
iting other witnesses, that Archer devoted 90 to 95 percent
of his time performing physical work. This establishes, and
I find, that Archer was not a supervisor. In fact Larry
Thomas, an employer witness, testified that Archer spent
80 percent of his time on production as distinguished from
supervision.
Nor does the credited testimony of Larry Thomas indi-
cate that Archer was a supervisor. I do not credit Thomas
that Archer obtained a raise for him before it was due, as I
find, crediting Archer, that the latter merely inquired of the
former why Thomas was not receiving a raise after it was
due as a matter of course. And I do not credit Thomas that
Archer prevented Thomas from being laid off, as I find
that Archer did not do this.
In this connection, I find that when Archer on occasions
was temporarily transferred to departments no one was
designated as an acting group leader to substitute for him.
Also, I find that employees in any particular group knew
what to do from reading the directions on a "hard card," so
that only as a matter of routine did they present an occa-
sional problem to Archer as group leader. Then, again, I
find that Archer inspected the work of those in his group.
But I further find that inspecting in itself is not sufficient to
rise to the status of supervision.
Finally, I find that the handbook given by the Employer
to employees directs them to look upon the foreman as
"your immediate supervisor." No evidence was introduced
that this booklet had been revised on this aspect. Hence I
find that, although not conclusive, said booklet indicates
that a group leader was not a supervisor.
B. As to the Status of Mitchell Perkins
It is my opinion, and, upon the entire record I find, that
group leader Perkins is not a supervisor but an employee of
Respondent. According to employee Steven Waller, whom
I credit, Perkins was introduced to Waller by Foreman
Thomas as the group leader, but nothing more was said by
Stapleton. Patently Stapleton's failure to mention to Waller
that the latter should take orders from Perkins cannot be
overlooked, especially since the employee booklet de-
scribed above designates the foreman as "your immediate
supervisor." Nor can I disregard Waller's testimony, which
I credit, that Perkins spent 90 to 95 percent of his time
doing physical work on the interior walls of the coaches.
Again crediting Waller, I find that instead of responsibly
directing Waller, Perkins did no more than tell Waller to
read the "hard cards" on the coaches to know what to do.
And it is significant that Waller testified credibly that he
often ascertained from fellow employees what was "need-
ed" to be done. Further, Waller testified credibly that no
matter what job Waller worked on Perkins did no more
than tell Waller to "clean up the area." And Perkins never
directed Waller to help others but, rather, asked Waller if
Waller "had enough time to go help [others] get caught
up..
Continuing, Waller, whom I credit, stated that when he
was caught up in his work the foreman told him to go to
another department to "help out" there. But Perkins never
sent Waller to another department. And I credit Waller
that the plant manager told him that the latter was the
person to whom a request for a pay raise was to be made
directly. Consequently, I find that Perkins as group leader
perfunctorily and routinely told employees to perform their
tasks, did not exercise any tasks by using independent
judgment, did not have authority to perform or recom-
mend the actions set forth in Section 2(11) of the Act, and
did not responsibly direct employees. Hence I conclude
and find that Perkins is not a supervisor.
C. The Status of Fred Kress
Upon the entire record in this case, I find that group
leader Kress lacks any of the indicia of a supervisor, so that
I find he is an employee rather than a supervisor within the
meaning of the Act. Initially I find that Respondent did
not even reply to Kress when Kress, according to
Respondent's Regional Vice President Macy A. Foster, on
the day of the election told Foster that if the Union won
the election a strike or walk-out would occur. And the rea-
son no reply was given is that counsel instructed Foster to
refrain from comments with employees for 24 hours before
the election. Patently Foster considered Kress to be an em-
ployee and not a supervisor. This has probative value as to
the status of Kress. Foster claims he passed on this com-
ment of Kress to top management of Respondent at the
plant, but the record is bare of evidence that management
did anything about it. Obviously management considered
Kress not to be a supervisor or else they would have repri-
manded him for taking the side of the Union on the very
day of the election.
In addition, employee Donald Dixon, whom I credit, as-
serted that Kress spent 100 percent of his working time
performing physical work of the same nature "that the rest
of us did," and "right along side of us." Moreover, Dixon
insisted that Kress prefaced any instructions to "us" by
saying "the foreman came and told [Kress] that this had to
be done and it's our responsibility to do it." Clearly noth-
ing contained in this paragraph warrants a conclusion that
Kress was a supervisor.
Continuing his testimony, Dixon said that long after
Kress became a group leader Kress informed him that
FUQUA HOMES (OHIO), INC. 1039
"they told [Kress] he [Kress ] had responsibility that he
didn't know he had." But this is so conjectural a remark,
and one which does not describe such responsibility, that I
cannot infer that it connotes that Kress suddenly became a
supervisor . And Dixon also stated that no one substituted
for Kress as acting group leader when Kress was tempo-
rarily "removed from the group" by the foreman. Also,
although Dixon took "problems" arising on the job to
Kress the latter "would go to the foreman . . . [and] the
foreman would tell us what to do." In fact even when Dix-
on wanted to take time off he went directly to the foreman,
because if Dixon requested this of Kress the latter had to
refer such a plea to the foreman . In my opinion nothing in
this paragraph suggests that Kress is a supervisor, and I so
find.
Dixon also "knew" that group leaders attended "fore-
men and group leaders meetings ." And Dixon on occasion
was told by Kress to do something, but generally Dixon
"found out what to do . . . [from] a floor plan [attached to
the] back of the coach ." But the foreman sometimes told
Dixon, or told Kress and Kress told Dixon , what to do.
Finally, Kress never disciplined any employee in the group,
according to Dixon.
It is indisputable that Kress attended meetings held by
management for foremen and group leaders . This is some,
but not conclusive , indicia of being a supervisor . See Adver-
tising Displays Corp., 205 NLRB 879, fn . 4 (1973). But it is
equally incontrovertible that the handbook given to em-
ployees by management expressly provides "that this book-
let . . . define[s] your obligations to the company," and
specifically alludes to the fact that your immediate supervi-
sor is foreman [here is inserted the foreman 's name]."
Hence I find upon the entire record and the findings above
describing the duties of Kress that he is not a supervisor as
contemplated by the Act. Cf. Crest Chemical Company, 213
NLRB No. 118 (1974). See Frank Foundries Corporation,
213 NLRB No. 65 (1974); Salinas Mfg. Corp. and Shuron
Mfg. Corp., 211 NLRB 573 (1974); N.LR.B. v. New Castle
Lumber and Supply Co., 500 F.2d 1405 (C.A. 7, 1974);
N.L.R.B. v. City Yellow Cab Company, 344 F.2d 575, 580-
582 (C.A. 6, 1965).
D. As to the Objections to The Election
Fourteen objections were filed by the Employer "to the
conduct of the election or to conduct affecting the results
of the election." However , at the hearing said Employer
waived, abandoned, or did not press Objections 1, 2, 3, 4,
10, 11, and 12. Accordingly, I shall not pass upon them. I
proceed to decide those numbered 5, 6, 7, 8, 9, 13, and 14.
1. Objection 5 reads, "Supervisors, i.e., group leaders,
engaged in the electioneering activities on behalf of the
Union." On the record before me I find that some group
leaders did engage in electioneering activities during the
critical period. But I have found that such group leaders
were employees and not supervisors. It follows, and I find,
that this objection is not meritorious . However, assuming
that such group leaders were in fact supervisors , I neverthe-
less find that the circumstances surrounding their said elec-
tioneering are such that this objection should not be sus-
tained . Such circumstances are (a) the electioneering was
conducted openly and was observed at times by foremen
or higher officials of Respondent, and (b) such officials did
nothing about it while it was engaged in. I construe such
failure to act by said officials at the time of said occurrenc-
es as constituting a waiver of the right to protest such con-
duct at this late stage of the proceeding.
That Respondent's officials knew of such conduct is ap-
parent from a few typical instances from among these de-
scribed by its witnesses . Thus, Foreman Clark not only
signed a union card at the request of group leader Kress
but also observed Kress and group leader Archer passing
out union stickers and pencils, at a time when Clark was a
foreman. Indeed, Clark testified that Kress and Archer
were the most active leaders on behalf of the Union and
that Production Manager Garrett and at least one foreman
observed them acting openly for the Union. Also, Foreman
Rossiter , another employer witness , testified that during
the period he was a group leader he considered Kress and
Archer "two of the main, active" leaders on behalf of the
Union; and "everybody in the plant," including the super-
intendent, knew that Archer and Kress openly were active
for the Union.
2. Objection 6 claims that "supervisors, i.e., group lead-
ers, participated in obtaining the showing of interest used
to support the petition in the instant case." It is my opin-
ion, and I find, that this objection is not well taken, inas-
much as (a) I have found group leaders not to be supervi-
sors, and (b) I have found that group leaders acted so
openly on behalf of the Union that their actions were ob-
served by higher officials of Respondent. As to (b), supra, I
further find that failure of Respondent to do anything
about these open and visible actions renders Objection 6 to
be lacking in merit . Hence, I recommend that it be over-
ruled.
3. Objection 7 protests that "Supervisors, i.e., group
leaders, comingled [sic] with the rank-and-file voters dur-
ing the period of time that the polls were open." On this
issue I find, crediting Respondent's witness Wimsatt, who
served as an observer for the Employer at the election, that
the Employer "assembled everybody," i.e., the group lead-
ers and the rank-and-file employees were "assembled [by
the employer] to go to vote and they all "went to vote
together." But I find that Wimsatt at no time objected to
such procedure or called it to anybody's attention while
acting as an employer observer. Employer's witness Larry
Thomas, whom I credit, testified that the Employer assem-
bled into one group all the employees with the group lead-
ers and that such assembled group voted at the election.
And it was stipulated that the Employer had observers at
the election who were in a position to see that said group
leaders voted with the employees.
On the basis of the entire record I find that this objection
has not been established because I find that group leaders
are employees and not supervisors. Hence , I further find
that commingling group leaders with employees was not
improper . Even if group leaders are supervisors I find that
this objection should be overruled for two reasons. In the
first place , the Employer caused or effected such an assem-
bling together of employees and group leaders , so that it
may not now complain of conduct which it initiated. And
secondly, the Employer's election observers, who may be
1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
regarded as its agents for this limited purpose, did nothing
about such assembling, so that I find that such assembling,
even if objectionable, was condoned or at least overlooked
by those agents whom the Employer appointed to assure
an election not impaired by irregularities. The inaction of
such agents is binding upon the Employer.
4. Objection 8 complains that "The Union throughout
its election campaign distributed literature and made oral
statements that expressly or impliedly stated that the Unit-
ed States Government and the National Labor Relations
Board supported the Union and wanted the employees to
select the Union as a bargaining representative ." But the
Employer introduced no evidence at the resumed trial held
on September 10 and 11, 1974,-which even remotely relates
to this issue. Absent such evidence I am constrained to find
that the Employer has failed to prove the allegations con-
tained in this objection.
5. Objection 9 alleges that "During the election cam-
paign the Union materially misrepresented the status of the
law regarding the obligation to- bargain, and the law re-
garding ' permanent replacement of economic strikers.
These statements were made at such a time and under such
circumstances that the Employer had not adequate oppor-
tunity to reply." However, a perusal of the record devel-
oped at the trial mentioned in paragraph 4, supra, discloses
that no evidence was offered by the Employer on this issue.
Consequently, I must find that this objection should fail
for want of proof to establish it.
6. Objection 13 maintains that "Individuals who were
supervisors throughout the campaign illegally engaged in
oral solicitation, etc., on behalf of the Union." I have
found, supra, that the so-called supervisors who engaged in
soliciting union membership were group leaders, and that
such group leaders were employees rather than supervisors.
Since those so soliciting were employees, and not supervi-
sors, I find that such acts by employees are lawful and will
not cause an election to be set aside. In any event, it is
doubtful whether an employer or a union may litigate the
validity of a showing of interest as such validity "is for
administrative determination and may not be litigated by
the parties," N.L.R.B. V. Air Control Products of St. Peters-
burg, Inc., 335 F.2d 245, 250 (C.A. 5, 1964).
Assuming that said group leaders are supervisors I nev-
ertheless find that their engaging in such conduct does not
invalidate the election for two reasons . In the first place, I
have found above that said group leaders openly per-
formed such acts of soliciting , and in fact were seen so
soliciting by officials of Respondent. Failure of Respon-
dent to do anything about such conduct constitutes ac-
quiescence therein or condonation thereof so that Respon-
dent cannot now charge that it affects the validity of the
election . N.L.R.B. v. Air Control Products, supra at 250;
Diversified Products Corporation, 199 NLRB 1024 (1972). In
the second place, said group leaders were minor supervi-
sors whose actions, according to the Employer's own wit-
nesses, did not coerce or even influence a single employee
who testified to become prounion. Hence, I find that the
impact of the prounion activities of the group leaders "did
not impair the employees' freedom of choice in the election
or constitute interference which would warrant setting
aside the election ." Fall River House, Inc., 196 NLRB 74,
75 (1972).
7. Objection 14 contends that "The Union representa-
tives and/or agents engaged in material misrepresentations
which were stated or issued at a time and of such circum-
stances that the Employer had no adequate opportunity to
reply." But the record fails to reflect any evidence touching
upon this issue . Under such circumstances I have no alter-
native but to find that this objection cannot be sustained.
Some of the foregoing findings are inconsistent with cer-
tain findings set forth in my previous decision in this case.
Such prior findings are hereby revoked and are hereby su-
perseded by the pertinent findings in this Decision.
RECOMMENDATION
It is hereby recommended that the group leaders at the
Employer's Caldwell, Ohio, plant be found to be employ-
ees rather than supervisors , the challenges to their ballots
be overruled, and that those objections to the election
which were tried before me be overruled.