GAF Corp.

National Labor Relations Board - Board DecisionsOct 29, 1974

214 N.L.R.B. 409 (N.L.R.B. 1974)

GAF CORPORATION 409 GAF Corporation and Texas City Metal Trades Coun- cil, AFL-CIO, Petitioner . Case 23-RC-3994 October 29, 1974 DECISION AND CERTIFICATION OF REPRESENTATIVE BY MEMBERS FANNING, KENNEDY, AND PENELLO Pursuant to a Stipulation for Certification Upon Consent Election approved by the Regional Director on August 22, 1973, an election by secret ballot was conducted in the above-entitled proceeding on Sep- tember 14, 1973, under the direction and supervision of the Regional Director for Region 23 among the employees in the unit described below. Upon the conclusion of the election, the parties were furnished a tally of ballots which showed that of approximately 142 eligible voters 136 cast ballots, of which 68 were for, and 67 against, the Petitioner. There was one challenged ballot which was sufficient in number to affect the results of the election. After conducting an investigation, the Acting Regional Director on Octo- ber 12, 1973, recommended that the challenge to the ballot of Winfred Douglas Reed be overruled, his ballot be opened and counted, and a revised tally of ballots be issued. Thereafter, on October 19, 1973, the Petitioner filed timely exceptions and a supporting brief to the Acting Regional Director's report. The Petitioner re- quested that its exceptions be sustained and that the challenged ballot of Winfred Douglas Reed be ex- cluded from the final tally of votes cast or, in the alternative, that a hearing be directed on the disput- ed issues in the case. On March 5, 1974, the Board found that issues were raised which could best be resolved b' a hear- ing. It ordered that the hearing be held for the pur- pose of receiving evidence to resolve the issues raised in the Petitioner's exceptions as to whether or not Winfred Douglas Reed exercised supervisory author- ity and, if so, whether such supervisory authority was sufficient to make him ineligible to vote during the period relevant herein. Pursuant thereto a hearing was held before Hear- ing Officer Jerry W. Dobbs. On May 14, 1974, Hear- ing Officer Dobbs issued his Report on Challenged Ballots in which he recommended that the chal- lenged ballot of Winfred Douglas Reed be opened and counted. Thereafter, the Petitioner filed timely exceptions to the Hearing Officer's report and rec- ommendations. 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 in this case, including the Hearing Officer's report and the Petitioner's exceptions thereto. The Board has re- viewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. 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 policies of the Act to assert jurisdiction herein. 2. The Petitioner is a labor organization claiming to represent certain employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of the Employer within the meaning of Sections 9(c)(1) and 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 of GAF Corporation, at its Texas City, Texas, plant , including all utility, laboratory and ware- house employees , but excluding all office cleri- cal employees , administrative and professional employees , contracted maintenance employees, janitors , guards , watchmen and supervisors as defined in the Act. 5. The Board has considered the challenge, the Hearing Officer's report, the Petitioner's exceptions and brief, and hereby adopts the Hearing Officer's findings, conclusions, and recommendations only to the extent consistent with this Decision. The Petitioner challenged the ballot of Winfred Douglas Reed on the ground that he was a supervisor within the meaning of Section 2(11) of the Act. The Employer operates a manufacturing facility at Texas City, Texas, where it is engaged in the manu- facture of chemicals. At the Texas City plant, the Employer has a maintenance division consisting of about 40 employees and 5 supervisors. There are ap- proximately nine machinist employees and a machin- ist foreman within the maintenance division. The Employer hired Winfred Douglas Reed as a machinist on January 11, 1971. On approximately July 16, 1973, Machinist Foreman Pete Morris in- formed Reed that Roy Brewer, the supervisor of maintenance, was being assigned to the Employer's plant in Rensselaer, New York. Brewer left the Texas City plant on July 16, 1973, and stayed at the Rensse- 214 NLRB No. 67 410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD laer plant until September 21, 1973, when he re- turned to the Texas City plant. Pete Morris was cho- sen to take the supervisor of maintenance job vacat- ed by Brewer , and Reed was chosen to take the ma- chinist foreman job vacated by Morris. On July 23, 1973, the Employer posted a notice which stated that "Doug Reed will be acting as Machinist Foreman for an indefinite period of time . Your usual cooperation with Mr. Reed in this assignment will be appreciat- ed." The notice was signed by Pete Morris, the ma- chinist foreman, and by D. H. Brinkman, manager of personnel relations. The Petitioner filed a petition on August 3, 1973, and the election was conducted on September 14, 1973. At the time of the election, Reed was filling the position of Morris, the machinist foreman. The Peti- tioner challenged Reed's ballot on grounds that he was a supervisor. Brewer was called back on Septem- ber 21, 1973, 7 days after the election. The record does not show, conclusively, why Brewer was re- called at this time. The record shows that during the period from July 16 to September 21, 1973, Reed had approximately 11 maintenance employees working under him. Reed was given keys to the office as was the Employer's practice with the other foremen; he assigned work and transferred employees from one job to another; he granted time off and could hold employees past their quitting time; he exercised the authority to "call out" employees from a list of names which he, as foreman, took home at night in the event nighttime maintenance might be required; he had to decide which employees were qualified to perform particu- lar fobs; he had the authority, which he exercised, to give employees permission to remove materials from the Employer's premises; and he ate lunch with the other foremen in maintenance. And, at the preelec- tion conference, Brinkman, the Employer's personnel manager, stated that Reed was a foreman with the same authority as any other foreman. The Hearing Officer recommended that we find, based on the foregoing evidence of Reed's job as ma- chinist foreman during the period July 16 through September 21, 1973, that Reed possessed the indicia contained in Section 2(11) of the Act and that he was a supervisor during the period in question including the day of the election on September 14, 1973. We agree, and we so find. However, the Hearing Officer also recommended that we find that Reed was serving in a temporary supervisory capacity and that he would return to rank-and-file status upon the return of Brewer from the Rensselaer plant. Additionally, the Hearing Offi- cer noted that there was no evidence that the tempo- rary supervisory status Reed held was part of a recur- ring situation, and that Reed shares a substantial community of interests with his fellow employees and should not be declared an ineligible voter and excluded from the appropriate unit because of his provisional temporary acting supervisory position. We do not agree. While the Board has often held, as the Hearing Officer noted, that employees serving in a temporary supervisory position are not ineligible to vote in an election solely because they have served briefly in a supervisory capacity,' the record here shows that Reed's status was something more than that of a tem- porary supervisor. Moreover, this case is distinguish- able since Reed was supervising employees in his own unit, thus raising the specter of possible conflict of interest with respect to the unit employees. Although the record does not indicate conclusively the anticipated duration or the terms of Brewer's as- signment at the Rensselaer plant, it does show that Morris, the machinist foreman, was to fill the super- visor-of-maintenance role vacated by Brewer and that Morris informed Reed that he was chosen to fill the machinist foreman vacancy created by Morris' promotion to Brewer's job. Whether Reed was pro- moted to the machinist foreman position "for an in- definite period of time" as the Employer announced in the July 23, 1973, notice to the employees,2 or for a "definite" period of 6 weeks to 6 months as found by the Hearing Officer, it is clear that Reed exer- cised, and was authorized to perform, every supervi- sory act that his predecessor, Morris, performed in such job. The record does not show what, if any, specific time limitations or other restraints were placed on Reed's supervisory authority. Reed's "in- definite" status as machinist foreman indicates the Employer's uncertainty, as well as the employees', and does not constitute notice, nor does it permit an inference, that Reed was only a temporary supervi- sor. Here, as in the E. I. DuPont case,' recently decid- ed by the Board, Reed, unlike employees found to be temporary supervisors in other cases, supervised em- ployees in his own unit before the petition was filed on August 3, 1973, and until more than a week after the election. While the employees in E. I. DuPont were specifically told that their tenure as relief fore- i Untted States Steel Corporation , Central Furnace, 188 NLRB 309 (1971), Adelphi University, 195 NLRB 639 (1972) 2 It is the Employer ' s policy to post notices announcing promotions on the bulletin board There is no evidence that such posting occurs when individuals are promoted to temporary supervisory positions, i e , acting foreman 3 E I DuPont de Nemours & Co, Inc, 210 NLRB 395 (1974) The Board found that relief foremen who exercised supervisory authority on both the eligibility and election dates , for periods ranging from 3 months to 24 months, were ineligible to vote GAF CORPORATION men would be limited in time and that they would return to unit fobs, Reed's supervisory status is more permanent here, since there is no evidence that he would be supervisor for a limited time nor was there any notice given, at any time, that he would return to the unit. While the record also shows that the Employer has a policy of utilizing nearly every maintenance em- ployee in the position of a step-up supervisor, or as "queen-for-a-day," to cover the absences of its regu- lar supervisors, these appointments are of short dura- tion, extending for a day or more, but not exceeding a 2-week period. Moreover, it is the Employer's writ- ten policy that such acting foremen not serve in such capacity for a period beyond 30 days. We also note that Moms had indicated to Gran- tom that he and Reed, the employees who had served most often in temporary supervisory positions, were both considered for the machinist foreman job. The record also shows that, shortly after Brewer returned from Rensselaer , he was promoted to gener- al foreman, and the Employer gave written notice of such promotion on October 16, 1973. However, the record does not show that the Employer informed the employees that Morris, upon returning to his prior job of machinist foreman, no longer served in Brewer 's old capacity as coordinator of maintenance. Moreover, we note that Reed has not fully returned to the tasks within the unit which he customarily per- formed before he was appointed to fill Morris' job. Even if it can be substantiated that, upon Brewer's return, he returned to his old job and tasks and that Morris returned to his prior machinist foreman posi- 411 tion, it is clear that Reed, having served in a supervi- sory capacity with this Employer, as well as with a prior employer, was, and is, at the very least, a prime candidate for any other supervisory positions which become available with this Employer. Thus, the re- cord shows that Reed does not have a sufficient com- munity of interest with the employees in the unit, and there arises the possibility of a serious conflict of in- terest, a concern which the Board expressed as being present in these circumstances in its E. I. DuPont decision, supra. Thus, we find that Winfred Douglas Reed is inele- gible to vote and we hereby find that the challenge to his ballot should be sustained. Accordingly, and in view of the fact that the tally of ballots shows that a majority of the valid votes cast have been cast for the Petitioner, we shall issue a certification of the Petitioner as the collective-bar- gaining agent for the employees in the above-de- scribed unit. CERTIFICATION OF REPRESENTATIVE It is hereby certified that a majority of the valid ballots have been cast for Texas City Metal Trades Council, AFL-CIO, and that, pursuant to Section 9(a) of the National Labor Relations Act, as amend- ed, the said labor organization is the exclusive repre- sentative of all the employees in the unit found ap- propriate herein for the purposes of collective bar- gaining in respect to rates of pay, wages, hours of employment, or other conditions of employment.