Legion Utensils Co.

National Labor Relations Board - Board Decisions

Sep 14, 1954

109 N.L.R.B. 1327 (N.L.R.B. 1954)

LEGION UTENSILS COMPANY 1327
All our employees are free to become or remain members of any
labor organization of their own choosing. We will not discriminate
in regard to hire or tenure of employment or any term or condition
of employment against any employee because of membership in or
activity on behalf of any labor organization, or because he has en-
gaged in concerted activities for the purpose of collective bargaining
or other mutual aid or protection.
KINGS ELECTRONICS Co., INC.,
Employer.
Dated-------------------- By---------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof, and
must not be altered, defaced, or covered by any other material.
ANGELO C. SCAVULLO, ET ALS. D/B/A LEGION UTENSILS COMPANY and
LOCAL 475, UNITED ELECTRICAL, RADIO AND MACHINE WORKERS OF
AMERICA, PETITIONER and LOCAL 463, INTERNATIONAL UNION OF
ELECTRICAL, RADIO AND MACHINE WORKERS, CIO. Case No. 2-RC-
4239. September 14,1954
Supplemental Decision and Certification of Representatives
Pursuant to an order of the Board issued October 20,1953, a hearing
was held before George Turitz, hearing officer, on the issues raised
concerning seven unopened challenged ballots and growing out of a
Direction of Second Election in the above-entitled proceeding.' On
June 2, 1954, the hearing officer issued and served upon the parties
his report in which he found that Rocco Spadaro, Arthur Flecker,
Michael Gross, Louis Panelli, Dominick Franco, and Mario Cinquini
had supervisory authority and were supervisors within the meaning
of the Act; accordingly he recommended that the challenges to their
I The original petition in this proceeding was filed by Petitioner (UE) on November
16, 1951, and following a hearing on February 12, 1952, the Intervenor ( IUE) was
permitted to intervene . Pursuant to a Decision and Direction of Election , there was
held on April 4, 1952, an election which was set aside by the Board on March 20, 1953
(103 NLRB 875 ). Thereafter there was conducted a second election in which the Peti-
tioner's (UE) name by its own request was omitted from the ballot The tally of ballots
showed that out of 78 valid votes counted , 43 were cast for the IUE , 35 against the IUE,
and 19 were challenged The challenges were sufficient in number to affect the results
of the election Concerning these challenges , no exception was taken to the Regional
Director ' s recommendation that 11 challenges be overruled and 1 sustained . Accordingly,
the Board , on September 25, 1953 , issued its decision ( 106 NLRB No . 188, not reported in
printed volumes of Board Decisions and Orders) directing that the Regional Director open
and count these 11 ballots because a conclusive election might result therefrom No
decision was rendered with respect to the 7 other challenges . Of the 11 ballots counted,
5 were cast for the IUE and 6 against it. The tally showed 48 ballots for the HIE, 41
against it, and 7 outstanding challenges . As the 7 unopened challenged ballots were suffi-
cient to affect the outcome of the election, the Board issued an older October 20, 1953,
directing a hearing on the issues raised by these 7 challenged ballots
109 NLRB No. 157.
1328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ballots be sustained and that their ballots be not opened or counted-
Although the hearing officer further found that Frank Bilotti was not
a supervisor, he recommended that Bilotti's ballot not be opened or
counted as the vote would not be determinative of the election results
in view of the findings on the other challenges. In conclusion, the
hearing officer recommended that the Intervenor be certified as the
exclusive bargaining representative for purposes of collective bar-
gaining, of all employees in the unit found appropriate by the Board.
On June 28, 1954, the Employer filed timely exceptions, accompanied
by a supporting brief, to the hearing officer's report and recommenda-
tions therein.
The Board, having considered the Regional Director's report, the
hearing officer's report, the Employer's exceptions and brief, and the
entire record in the case overrules the Employer's exceptions and
adopts the hearing officer's findings, which are amply supported by
the record, and his recommendation with respect to certification. Ac-
cordingly, the Board sustains the challenges to the ballots of Spadaro,
Flecker, Gross, Panelli, Franco, and Cinquini and overrules the chal-
lenges to the ballot of Bilotti; however, for the reason stated by the
hearing officer and hereinabove referred to, we shall not direct that
Bilotti's ballot be opened and counted. As the tally shows that a
majority of the valid votes have been cast for the Intervenor, we shall
certify it as the bargaining representative of the employees in the
unit found appropriate.
[The Board certified Local 463, International Union of Electrical,
Radio and Machine Workers, CIO, as the designated collective-bar-
gaining representative of all production and maintenance employees
of the Legion Utensils Company at its plant in Long Island City, New
York, excluding office clerical employees, guards, watchmen, profes-
sional employees, and all supervisors as defined in the Act.]
MEMBERS MuRDOCK and RODGERS took no part in the consideration
of the above Supplemental Decision and Certification of Represent-
atives.
Report on Challenges
On April 28, 1953 , pursuant to a Direction of Second Election of the Board dated
April 10, 1953, an election by secret ballot was conducted under the direction and
supervision of the Regional Director for the Second Region among the employees
in the unit found appropriate in paragraph numbered 4 of the original Decision and
Direction of Election in this case , dated March 14, 1952, to determine whether or
not the employees desired to be represented for purposes of collective bargaining by
Local 463, International Union of Electrical, Radio and Machine Workers, CIO,
herein called the Union. Upon the conclusion of the election a tally of ballots was
furnished to the parties which showed that 19 ballots were challenged , a number
sufficient to affect the results of the election . On July 9, 1953, the Regional Di-
rector , after an investigation , issued a report on objections and challenges in which
he recommended that 11 of the challenges be overruled and 8 sustained . The Em-
ployer filed exceptions to the recommendation that the Board sustain the challenges
LEGION UTENSILS COMPANY 1329
to the 7 ballots cast by Frank Bilotti, Mario Cinquini, Arthur Flecker, Dominick
Franco, Michael Gross, Serverino Louis Panelli, and Rocco Spadaro; no other ex-
ceptions were filed to the Regional Director's recommendations.
On September 25, 1953, the Board issued a Second Supplemental Decision and Di-
rection, in which it adopted the Regional Director's recommendation that 11 chal-
lenges be overruled and his recommendation with respect to the sustaining of the
1 challenge as to which no exception had been taken. The Board further directed
that the Regional Director open and count the 11 ballots referred to.
On October 2, 1953, the Regional Director, in the presence of the parties, opened
and counted the said 11 ballots. Upon the conclusion of the count, the Regional
Director served upon the parties a revised tally of ballots. The revised tally shows
the following results of the counting of those challenged ballots and their addition
to the original tally of ballots:
Original
tally
Challenged
counted
Final
tally
Approximate number of eligible voters------------------------ 100 -------------- 97
Void ballots-------------------------------------------------- 0 0 0
Votes cast for IUE-CIO, Local 463---------------------------- 43 5 48
Votes cast against participating labor organization------------ 35 6 41
Valid votes counted------------------------------------------- 78 11 89
Unopened challenged ballots---------------------------------- 19 i8 i8
i As I challenge had been finally sustained, these figures should properly have been 7.
The seven unopened challenged ballots were sufficient to affect the outcome of the
election.
On October 6, 1953, the Employer requested a hearing on the seven challenges.
On October 9, 1953, the Union wrote to the Board conceding the challenges which
it alleged had been filed by the Employer and requesting an immediate certification
without hearing. On October 13, 1953, the Employer wrote to the Board admitting
it had made one challenge 2 but alleging that the challenge had been made not because
the voter in question was in its opinion a supervisor but only because he was in the
same category as voters challenged by the Union. The Employer asserted that it
wished to avoid permitting the Union of making a unilateral determination of who
would be eligible to vote. On October 20, 1953, the Board issued an order in which
it directed that a hearing be held on the issues raised by the seven unopened chal-
lenged ballots. The order provided that the hearing officer prepare and cause to be
served upon the parties a report containing resolutions of the credibility of witnesses
and findings of fact and recommendations to the Board as to the disposition of the
challenged ballots.
Pursuant to notice a hearing was held in New York City on various dates starting
November 20, 1953, and ending March 9, 1954, before the undersigned as hearing
officer. The Employer and Petitioner appeared by their respective counsel and par-
ticipated in the hearing. Full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing on the issues was afforded the
parties.
At the beginning of the hearing the Employer and the Union indicated that neither
planned to call the challenged voters as their own witnesses. Five were therefore
called by the hearing officer and examined and cross-examined by the hearing officer
and the parties. A sixth, Panelli, appeared pursuant to an order of the district court
requiring obedience to a subpena issued at the request of the Union. The seventh,
Cinquini, did not appear.
Upon the entire record of the hearing and upon the basis of my observation of the
witnesses, I make the following findings of fact, conclusions of law, and recommenda-
tions as to the seven challenges.
9 The parties agreed that Gross had been challenged by the Employer but disagreed as
to who had challenged Bilotti The challenge envelope indicates that Bilotti was chal-
lenged by the Employer ; the voting list indicates that he was challenged by the Union.
The hearing officer ruled that the question could not be litigated inasmuch as the Board
had refused to certify the Union on the basis of the Union's consent to the sustaining of
the Employer's challenge to Gross. The sustaining of a single challenge would result
in an absolute majority for the Union.
1330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT 3
1. BUSINESS AND OPERATIONS OF THE EMPLOYER
The Employer is engaged in the manufacture and sale of metal cooking and serving
utensils and sinks, mainly of stainless steel. It is partnership consisting of 6
partners, 4 of whom are actively engaged in its operations. Its sole plant is located
in Long Island City, New York, where it has about 95 employees. The nominally
head partner is Angelo Scavullo, who founded the business at the beginning of the
century. His son, Victor, also a partner, acts as general manager and is in overall
charge of operations. He spends about 50 percent of his time in the operating
departments. The plant superintendent is Joseph Scott, son-in-law of Angelo, and
husband of partner Margaret Mary Scott. Gerald Saegert, husband of partner
Marie Isabell Saegert, is in charge of shipping and receiving and also does some
selling. Charles Scavullo, another partner and son of Angelo, is in charge of all
operations on the second floor. John Jensen is Charles Scavullo's assistant, particu-
larly with respect to sink operations on the second floor. Ben Passikoff is production
manager; Michael Martin is in charge of personnel work and, at the time of the
election, of the first floor. At present, George Hyland is in general charge of the
first floor. All the challenges were based upon alleged supervisory status. The
Employer contends however, that the foregoing are the only persons having super-
visory authority.
All the challenged voters punch a time clock, are hourly paid, and have the same
vacation benefits as the rank-and-file employees
In order to regulate the flow of work through and within the various departments
a route sheet is made up for each run of a product. The route sheet indicates the
specific job to be done, the gauge of metal to be used and its total weight, the num-
ber of pieces, and the operations to be performed in each department, including the
setup of the presses. It is sent to Rocco Spadaro, who is in charge of the cutting
department, where the first operation is usually performed. Spadaro then gives
it to the person in charge of the next operation in order. In most cases the route
sheets cover only work done in the basement, i. e., cutting, hydraulic press, power-
press, degreasing, and annealing, the work then goes into stock. From there it is taken
for finishing, as needed, without the use of route sheets but pursuant to a written
order giving necessary details. If the product is not to go to the stockroom before
finishing, the route sheet covers all the operations.
The route sheets are prepared by Passikoff in consultation with two of the chal-
lenged voters-Spadaro and Arthur Flecker, who is in charge of the hydraulic press
department. Passikoff also makes up a biweekly schedule for the hydraulic presses,
setting forth each job to be done, the time it is expected to take, and the particular
press to be used. Flecker and Spadaro are also consulted in making up the schedule.
if. THE CHALLENGED BALLOTS
a. Spadaro
This voter was challenged by the Union.
Spadaro works in the cutting department, which normally has 4 or 5 employees
assigned to it in addition to him. The function of this department is to receive and
stack the sheet metal used for substantially all the Employer's products and, as it
is needed, to cut it into pieces of suitable size for introduction into the machines in
the other departments which perform the manufacturing operations proper. At the
time of the election Spadaro's pay was $2 per hour, the highest in the department. The
next highest rate was that of Locacio, who received $1.60 per hour. The lowest
was $1.40 per hour. The receiving and stacking of material takes approximately
35 to 45 percent of Spadaro's time. For this operation he selects 2 or 3 men from
his department and they proceed to remove the metal from the delivery trucks,
using cranes, lifts, lift trucks, dollies, and hand trucks. Before taking men out for
this operation Spadaro gets permission from Passikoff but it is Spadaro's sole respon-
sibility to decide on the number of men required and their identity. Both of those
decisions require the exercise of judgment by Spadaro, based upon his knowledge of
the various employees' capabilities in the handling of heavy objects and the operation
of the unloading equipment. Spadaro is also responsible for the efficient and safe
carrying out of the unloading itself, using discretion to see to it that the proper
3 Except where the contrary is specifically noted, organization and supervisory authority
are the same at present as at the time of the election. Testimony was given on the same
basis.
LEGION UTENSILS COMPANY 1331
equipment is used. He does some of the physical labor but to a considerably less
extent than the others as established by the testimony of Ray Foley, which I credit.
When metal is to be cut for a job, Spadaro selects the particular sheets from among
several lots of the gauge specified. His selection is made on the basis of the size and
quality of the pieces to be cut, and the size and quality of the sheets available, tak-
ing into consideration what sheets may be needed for other jobs and what additional
sheets are in the warehouse or on order, as well as the question of relative job pri-
orities. Spadaro is the only one with sufficient familiarity with the materials and
their storing to be able to make this selection.
The equipment in the cutting department consists of 3 square cutting machines,
1 rotary cutting machine, 1 circle cutter, and drilling and grinding equipment.
Spadaro lays out the work for the men, telling them what job is to be worked on,
and giving them the material. He decides which machine should be used for each
cutting job, a decision requiring the exercise of discretion. He sets up the machines,
tells the operators what to do, how to do it, checks the work in process to be sure
that it is being done correctly, and orders corrections if necessary. He has full
authority to shift men from one cutting machine to another, exercising discretion
in doing this on the basis of his knowledge of the various men's abilities and of
the other work required in the department. He has the responsibility of seeing to it
that the men in his department are kept busy, assigning them new work when they
have completed a task. If there is no work for them in the cutting department, he
so informs Passikoff, who assigns them elsewhere. When Spadaro thinks he needs
additional men, Passikoff makes the decision whether or not they are to be furnished.
Spadaro has the responsibility of seeing to it that the work in the department is com-
pleted and gets out, recommending overtime work to Passikoff if he thinks it neces-
sary. He must also ensure that his department keeps the hydraulic press department
supplied with sufficient work. For this purpose he has authority to interrupt one
job on a cutter and have another job done instead. He initials the route sheet to
indicate that the work in the cutting department has been completed as there specified.
Spadaro also directs helpers in doing miscellaneous work in the basement, such as
degreasing, pickling, annealing or heat treating, and grinding, as well as sweeping
and scraping the floor. Some of this is also directed by Flecker. When material
is to be moved from the basement to the stockroom, Spadaro gives a written order
which is honored by the elevator men.
Spadaro makes the patterns for articles produced, a duty taking little of his time.
He operates a machine on the average one-half to 1 hour per day. He also trains
new employees in the operation of cutting machines and when asked, reports to his
superiors how they are performing. His assistant is John Locacio, who also trains
new employees.
Paul Szczepanski, who acts as assistant to the person in charge of the hydraulic
press department, testified that on the occasions when he is in charge and needs an
extra man, he asks Spadaro for one, and that Spadaro, without consulting anyone,
releases a man temporarily. He also testified that Spadaro from time to time
orders men in the hydraulic press department to go and work in other departments
in the basement, although he did not know whether Spadaro had cleared the matter
in advance. This testimony referred only to helpers. Spadaro testified that he
makes these transfers only upon specific order by Passikoff. Passikoff testified
that Flecker and Spadaro shift helpers between them temporarily, sometimes, but
not always, checking with Passikoff first. To the extent that Passikoff and Spadaro
contradicted Szczepanski, I credit Szczepanski. He impressed me as a truthful wit-
ness; Spadaro and Passikoff did not. Moreover, it is highly improbable that a
person with as much responsibility as Spadaro admittedly has for the flow of work
throughout the basement would be required to consult as busy a person as Passi-
koff on a temporary change of a helper's assignment. I find that Spadaro has
authority to transfer employees temporarily among the various departments in the
basement and that he frequently exercises such authority.
Szczepanski testified that when men assigned to basement departments are away
from their machines or presses too long, such as when smoking in the washroom,
Spadaro calls their attention to that fact. Spadaro denied this in spite of his admis-
sion that it is his responsibility to keep the men in the cutting department busy.
He testified that if employees persist in loafing, it is his responsibility to report that
to Passikoff. I do not credit Spadaro's denial, and I find, in accordance with Szcze-
panski's testimony, that Spadaro does caution employees about loafing. Employees
leaving for the day before quitting time first report that fact to Spadaro, stating
the reason. They leave without getting specific permission , and Foley testified that
he.left at times merely to play ball.
334811-55-vol. 100-85
1332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Conclusions as to Spadaro
Spadaro is the one who gives substantially all orders to the employees in the cut-
ting department. It is true that he gets general guidance from Passikoff's route
sheets. However, the record shows that he is consulted by Passikoff in the prepa-
ration of the route sheets. The record further shows that even with the route sheets
to guide him he must still exercise considerable discretion and judgment in giving
the orders. He must take into consideration the men's respective abilities and
experience, the capacity of the various machines and other equipment, the nature
of the materials, and the general flow of work in his own and in other departments.
He also reports to his superiors as to the performance of new employees and old
employees requesting increases. It is plain from the foregoing that the Employer
places considerable reliance upon Spadaro in the operation of the cutting depart-
ment. In addition, Spadaro participates in maintaining discipline throughout the
basement. While he cautions, rather than orders, employees who loaf, he is thereby
carrying out the easygoing kind of plant discipline which the Employer chooses to
enforce. The important thing is that Spadaro is the man whose responsibility it
is in the first instance to get employees who loaf back to their machines, and that
he has to use his own, unguided, discretion in determining whether it is time for
him to take steps in this direction.
I find that Spadaro has authority in the interest of the Employer responsibly to
direct employees, and that his exercise of such authority is not of a merely routine
or clerical nature but requires the use of independent judgment. I further find that
Spadaro is a supervisor as defined in Section 2 (11) of the Act.
b. Arthur Flecker
This voter was challenged by the Union.
Flecker works in the hydraulic press department which normally has about 9 or
10 employees. The function of this department is to take the pieces of metal fur-
nished by the cutting department and press and draw them into the basic shapes
required for substantially all the Employer's products. It is considered by the
Employer the "foundation" of the plant. The presses were specially built for the
Employer and are unique, so that there are no experienced operators except persons
trained by the Employer.
At the time of the election Flecker was the most highly paid man in the depart-
ment, receiving $2.10 per hour. The next highest paid man was Paul Szczepanski,
who received $1.80 per hour. Szczepanski is Flecker's assistant and he takes over
many but not all of Flecker's duties in the latter's absence. Flecker frequently
operates the presses but this is a minor part of his work.
The operation of the presses requires considerable attention and skill because
different results follow depending upon the material used and the setting of the dies.
Flecker has been in the department some 30 years and is the person most familiar
with its functioning. The Employer depends upon him and his knowledge to inform
it whether or not given jobs can be done on the respective presses. There are 8
presses in the department, 3 large and 5 small. A given operator and helper are
assigned to each of the large presses. Operators are specially assigned to the smaller
presses also, but here there is some shifting about, as it seldom happen that 1 or 2
presses in the department are not out of operation for repairs or overhauling. Every
2 weeks Passikoff, the production manager, meets with Spadaro and Flecker to make
up the schedule for the hydraulic press department. The schedule has 8 columns, 1
for each press, and lists what jobs will be run on each press every day, half-day, or
other period. Passikoff makes up the schedule but he requests and relies upon
Flecker's advice whenever judgment is needed to decide what presses are appropriate
for given jobs. Flecker's testified that when Passikoff asks his advice, ". . . I will
tell him because I have been around those presses. I know what to tell him." He
testified that he knows more than Passikoff as to what a press can do because Passi-
koff ". . is not a press man."
Flecker gives out the work to the employees in accordance with the schedule and
he sets up the presses. From time to time, however, changes must be made to take
care of rush jobs or because of employees' absence. When this involves stopping
work in process on a press the changes, according to Flecker, require approval by
Passikoff or Victor Scavullo. However, there are occasions when helpers are taken
from large presses and assigned to assist the operators on small ones for 1 or 2
hours and Flecker has authority to do this on his own initiative without prior ap-
proval . He testified that these occasions are rare and that he usually gets Passikoffs
approval. On the other hand, Szczepanski testified that he does this without prior
LEGION UTENSILS COMPANY 1333
approval. Flecker, although called by the hearing officer, conferred with counsel for
the Employer before testifying, and in his manner appeared friendly to Employer's
counsel and not friendly to the Union's counsel. He did not impress me as a frank
witness, especially when his testimony involved estimates and what was customary.
As there was no reason offered why Passikoff's approval was required when Flecker
was there but not when his assistant, Szczepanski, was in charge, and as Szczepanski's
method functions to the Employer's apparent satisfaction, and upon the basis of my
observation of the witnesses, I find that Flecker does have authority to shift operators
about temporarily within his department and that he frequently exercises this
authority.
Flecker is responsible for the quality of work produced. He testified that if
work is not done right, it is his responsibility to tell the man what to do to make
it right. He said, "I will get the dickens if it is not made right." He spends con-
siderable time "watching the work and seeing it is done right." He has to advise
the men to do such things as clean their dies, reset the dies so that they are straight,
and see to it that the products are drawn to the proper depth. He also determines
whether new dies are needed, informing his superiors when that is the case. Flecker
maintains a careful watch to see whether pieces unexpectedly become magnetized
when pressed. When that happens, he requires employees to take them quickly
to the furnace for heat treating. He inspects work in both the heat treating and
pickling rooms.
Flecker is responsible for the efficient flow of work in his department. He'testi-
fied, "Yes, that is what I am there for, to see that the work gets out on time." He
also stated that he is responsible to see to it that each machine is working at its
best capacity and efficiency, reporting to Scott when parts need replacement, or to
Passikoff when an operator is ill and not up to par. Szczepanski also testified that
Flecker is responsible for getting the work out on time. Foley testified that Flecker
specifically discussed with him his rate of production as compared with another
operator's, telling him that he should produce more. Foley was then provided
with a device which enabled him to increase his production.
Flicker has important responsibilities in the maintenance of discipline in the
department. When men are away from their machines too long, Flecker is the
one whose responsibility it is to get them back to work. He uses the same easygoing
discipline practiced in most departments. Thus, he will go to the washroom, he
testified, and "... just remind them there are too many in the bathroom at that
time . I never dragged anybody out." A man who persisted in overstaying
reasonable limits would be sent by Flecker to the personnel director. However,
the system works without such steps being needed for, as Flecker said, ". . . gener-
ally the majority of them, they just manage to come out before I do anything."
When men desire to leave work before the end of the day, they report that to
Flecker. On an occasion when a newly hired helper caused an explosion, Flecker
took it upon himself to inform his superiors that the man was dangerous to have
in that department and that he did not want him there. He told Foley, who had
been working right near the explosion, not to worry since the helper would not be
there any more. The man was discharged after investigation of the facts by higher
supervision.
In deciding whether or not a new man in the department can do his work satis-
factorily, the Employer relies upon Flecker's opinion. Passikoff, Scott, and Victor
Scavullo ask him how new men are doing. Flecker testified that his superiors
could not know how men were doing without asking him. "They are in the offices.
They come down probably every half hour or hour . . . You have to keep watch-
ing them every 5 minutes Asked whether his superiors get a good idea of
how a new man is doing without asking questions of Flecker, he replied, "I don't
see how they could because I am around them and I know. I tell them how to set a
die. The next time they set it up I just watch and see if they do it the same way
as I told them to put it up, the way I trained them."
The Employer from time to time grants employees individual merit increases
and those in the hydraulic press department ask Flecker for such increase. Foley
testified that on one occasion when he made such a request, Flecker said, "I will
see what I can do for you"; and Lepardo testified that on a similar occasion Flecker
said that "he was speaking up for" him and was "going to try to get that raise"
for him. Lepardo also testified that recently Flecker, in the course of a discussion
of his authority, said, "I can help you, but I can't get you a raise, and give you
the money, but I can help you." Flecker testified that he reports requests for
increases to Passikoff or Martin and that they ask him for his opinion as to the
men's performance and whether they deserve the raise requested. He also testified
that sometimes when he tells them that the man "is worth the raise," it is not granted.
1334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Conclusions as to Flecker
While Flecker distributes work in his department according to Passikoff's schedule,
his participation in drawing up the schedule and consequently in the assignment of
work to the various operators is substantial. Indeed insofar as judgment and discre-
tion are required, his participation is greater than Passikoff's. He has authority,
frequently exercised, to shift helpers about temporarily. He must see to it that the
work turned out by the men in his department is of good quality, giving them the
necessary orders to insure that the proper standards are maintained. He must also
see to it that the work gets out on time, watching and criticizing the men's perform-
ance and ordering improved procedures so that the rate of production is satisfactory.
Both of these responsibilities require him to exercise considerable discretion and
judgment in giving orders to the employees.
Flecker is the man responsible in the first instance for maintaining discipline in
the department. As already indicated, the Employer's discipline is easy going, but
that very fact requires Flecker to exercise more discretion and judgment in deciding
whether or not it is appropriate to take steps to get employees back to work than
would a more rigid system. His own sense of responsibility for the maintenance of
order and safety in his department was reflected in his prompt, vigorous action when
the newly hired helper caused an explosion and in his immediate assurance to
Foley that the helper would not be there any more.5
Flecker makes recommendations as to the retention of new employees and the
granting of increases to old employees. The testimony is uncontradicted that the
Employer relies upon his recommendations as to ability in deciding whether to dis-
charge or retain newly hired employees. As to the recommendations for increases
the testimony is not so clear. In weighing this testimony, it is borne in mind that the
weight given to recommendations by an employer is a matter peculiarly within his
knowledge and difficult to prove by testimony other than his own. The hydraulic
press department is basic to the Employer's success and considerable skill is needed
in the operation. The testimony is clear that only Flecker really knows how well em-
ployees are performing and that the Employer requests his recommendation as to
increases. If recommendations given under such circumstances do not carry sub-
stantial weight, it would have to be inferred that the increases are granted for rea-
sons other than merit. As they are for individual merit, however, I find that Fleck-
er's recommendations are effective in the granting of the increases.
I find that Flecker has authority, in the interest of the Employer, responsibly to
direct employees and effectively to recommend the discharge and rewarding of em-
ployees, and that his exercise of such authority is not of a merely routine or clerical
nature but requires the use of independent judgment. I further find that Flecker
is a supervisor as defined in Section 2 (11) of the Act.
c. Michael Gross
This person was challenged by the Employer as a supervisor. At the hearing the
Employer offered to withdraw the challenge but the Union thereupon took the
position that Gross was a supervisor.
Gross works in the welding department, which at the time of the election had
about eight employees. His rate of pay, $2.15 per hour, was the highest in the
department. The next highest was that of his brother, Joe Gross, who received
$1.75 per hour. Gross is in charge of the welding department, although Charles
Scavullo is in general charge of the floor and comes into the department frequently.
The employees are specifically placed by the Employer in Gross' charge. DeFilippo
was brought to Gross by Passikoff, who said to Gross, "Here is a new man for you."
Victor Scavullo sent Correa to Gross, telling him he was "going to work for Mike in
the Welding Department." When a dispute arose as to whether Correa was to
follow Gross' orders even when working in another department on a lower floor,
Victor Scavullo told him: "When you are downstairs, you are not under the com-
mand of Mike." Gross insists that the employees deal with him as to their ordinary
problems rather than go to the office. Except rarely, Charles Scavullo does not
communicate directly with the employees, nor does he watch their individual work.
The great bulk of the products worked on in the department are sinks and kettles.
Charles Scavullo makes up orders indicating what products are to be made up in
what quantities. The sink work is done by Joe Gross with relatively little super-
5 I do not find this incident to constitute sufficient evidence that Flecker had authority to
make effective recommendations ' for discharge because the helper's misconduct was so
flagrant and the anger so obvious.
LEGION UTENSILS COMPANY 1335
vision by Michael Gross. The welding work on kettles consists of assembling the
inner and outer shells and spouts , and attaching handles, legs, covers , and the labels.
Spot welding, arc welding, hell-arc welding , and gas welding are used. The types of
welding on regular runs of kettles are standard , and after a while employees know
which type to use without direction . A large amount of nonstock items are made,
and for these Charles Scavullo's order indicates the particular parts to be assembled
as well as the type of weld to be used for each operation.
Gross is responsible for seeing to it that the work scheduled by Charles Scavullo
gets done . He assigns the work to the employees , lays it out for them, and employees
who finish a job go to him for the next one. Complete kettles are made only pur-
suant to orders , but Gross had authority to have the men make reserve parts without
orders. Where choice among several men is possible , Gross is the one who decides
which should do a given job, and he selects temporary replacements for absentees.
Frequently he interrupts men doing one thing and has them do something else, in-
cluding helping other employees . He shows the men how each job is to be done
and watches them at the beginning of a new job until he thinks they have got it
right. He testified : ". . . every kettle is different . Every job is different ." He also
said : "If I don't show them they would not know ." He follows the same procedure
on old jobs when the lightness or softness of a particular lot of material requires that
the welds be made with more than the usual preciseness.
Gross frequently devises short cuts to make the work easier or speedier . The most
common is the construction of jigs to hold articles being welded. Usually Gross him-
self makes the jigs, but at times he has other employees do it.
Gross does a considerable amount of welding himself, especially on items where
so few are to be made that it is not worthwhile for him to show another man how
to do it. He also redoes defective work done by the employees . Altogether he
spends between 40 and 50 percent of his time at welding , making jigs , and doing
other manual work. I do not credit Charles Scavullo's testimony that this work
takes 90 percent of Gross' time.
Gross is responsible for the quality of the work done in the department . His im-
mediate supervisor , Charles Scavullo , testified that he, himself, has no knowledge of
welding and that he depends upon Gross to correct the men and to see to it that the
welding is performed correctly . Gross checks the men's work from time to time
while it is in progress . Frequently a hasty glance suffices, but often he gives spe-
cific directions , such as, "Don 't make this so big. Make that smaller," or, "Don't
hammer on top, it will dent."
Gross is responsible for maintaining order in the welding department. He re-
quires employees leaving the department to let him know in advance, and he repri-
manded an employee who on Passikoff 's instruction depended upon that official to
inform Gross. He required an employee who wished to leave early to testify at the
hearing to show him a telegram requesting his appearance . When he thinks the men
have been in the lavatory or at coffee too long, he orders them back to work, and he
cautions them against talking too much on the job.
Gross testified that he has authority to "recommend discharges in his department"
and considerable testimony was taken concerning the discharge of "Peanuts" Tullo
following an incident on March 16, 1953. For a period of about 2 years Gross had
constantly reprimanded Tullo for frequent misconduct on the job and had warned
him he would be fired .6 He also warned Tullo not to lunch at what a witness termed
"a gin mill" from which he returned under the influence of liquor . Except for a
very general complaint to Charles Scavullo about Tullo a year before, Gross did not
report Tullo to his superiors and nothing happened . On the afternoon of March 16,
1953, Tullo tossed a hot welding wire at another employee, burning his shirt and
back , to the amusement of the other employees . This time Gross' reaction was swift.
After telling Tullo he had had enough and was through with him and would recom-
mend his discharge , he went to Charles Scavullo and told him he did not want Tullo
in the department . Victor Scavullo, who in normal practice is the only person in
the plant who actually discharges employees , was not in at the time and Tullo con-
tinued to work until 4:30 p . in. The officials of the plant, including Victor Scavullo,
investigated the incident and the next morning Tullo was discharged by Victor
Scavullo .7 In his affidavit given during the investigation , Gross stated that he had
recommended that Tullo be discharged . At the hearing he denied having recom-
8 Gross testified , "I must have warned him a thousand times in the two years" ; and,
I could have reported him every day five times , if I wanted."
7 Tullo's constant luncheon companion, Richards, who worked in another department
was discharged at the same time He accused Gross of having caused his discharge.
1336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mended an actual discharge, claiming that he merely said that he did not want Tullo
in his department.
The Employer consults Gross as to whether new hires are worth keeping insofar as
the quality of their work is concerned and depends upon his judgment in that re-
spect. Charles Scavullo testified that if Gross recommends against a man he requires
Gross to show him the bad work the man has done but I do not credit this testimony.
DeFilippo testified that shortly before the election he found an unsolicited in-
crease in his pay envelope and that Gross claimed to have got him the increase.
Charles Scavullo stated in his affidavit given during the investigation that Gross dis-
cussed with him the workmanship of employees requesting wage increases and that
if that was satisfactory, he "would ask him to comment on how the employee is
getting along on the job." At the hearing Scavullo explained that these statements
referred only to new employees. As the context and circumstances of the statement
in the affidavit indicate that old employees were referred to, and upon the basis of
my own observation of Charles Scavullo on the stand, I find that his explanation at
the hearing is not credible. I find that Charles Scavullo solicits the comment of
Gross upon the performance and general conduct of all employees requesting wage
increases.
Conclusions as to Gross
The record is plain that the employees in the welding department look exclusively
to Michael Gross for their orders. Charles Scavullo schedules the work to be done
in the department but the Employer depends upon Gross to get it out. Gross is
the one who assigns all work and while part of this function is routine, he frequently
must exercise judgment in choosing among several men to do a given job, in taking
men from one job and putting them on another, in having men help one another,
and in selecting temporary replacements for absentees. He exercises discretion too,
in determining whether to have the men make up parts to hold in reserve, and
whether to devise jigs or other shortcuts to facilitate the work.
Gross is responsible for the quality of the work. This responsibility also requires
judgment and discretion. It is up to him to decide whether a man he has just
showed how to do a new job or a job presenting special difficulties-a common
occurrence-can be left with it safely. He checks work in progress, giving specific
directions by way of correction or caution. The very need for such a check on the
welders demonstrates that independent judgment is required.
Gross exercises considerable authority in keeping the men in the department at
their work. Moreover, a careful consideration of all the evidence on the Tullo
incident shows that his recommendation was important in bringing about Tullo's
discharge and, thus, that he has authority to make effective recommendations in this
area. For 2 years the man had been misbehaving with impunity. Charles Scavullo's
frequent presence in the department did not matter; it was only when Gross lost
patience that something was done. In view of Gross' afldavit,$ I find that Gross did
recommend that Tullo be discharged, not merely transferred, as he testified. How-
ever, even if he had merely recommended a transfer and the Employer had decided
upon a discharge, his recommendation would have been effective in bringing about
such discharge.
Gross' recommendations are effective also in the retaining of newly hired em-
ployees. I find, further, that his comments upon the work of employees being
considered for wage increases constitute recommendations and that these recom-
mendations are effective.
I find that Gross has authority, in the interest of the Employer, responsibly to
direct employees and effectively to recommend the disciplining, discharging, and
rewarding of employees, and that his exercise of such authority is not of a merely
routine or clerical nature but requires the use of independent judgment. I further
find that Gross is a supervisor as defined in Section 2 (11) of the Act.
d. Serverino Louis Panelli
This voter was challenged by the Union. Panelli works in the polishing depart-
ment, which is located on both the first and second floors. There are 32 employees
6 Gross' affidavit was admitted, for all purposes, over the Employer's objection. Gross
was not, properly speaking, a party. However, he was the person who in the first instance
asserted his right to vote. For purposes of determining that right in this proceeding,
therefore, his admissions negating the right are being treated as competent evidence on
the same basis as a party's admissions would be It should be noted that even without
the affidavit the evidence shows that Gross is a supervisor.
LEGION 'UTENSILS COMPANY 1337
in the department, about 20 on the first floor and 12 on the second. On the first
floor smaller articles, such as tea pots and strainers, are worked on for the most
part. The second floor is devoted primarily to work on kettles and sinks, although
some work is also done on the smaller items. Lathes are used for the smaller articles,
flexible shafts for the larger. Polishers are permanently assigned to one machine
or the other.
Panelli is the highest paid man in the department. At the time of the election he
received $2.10 per hour; his assistant, DiLorenzo, the next highest paid man, re-
ceived $1 87 per hour. Panelli formerly did some polishing, but since early 1952
he has been ill and does no manual work.
New employees are brought by Martin to Panelli and placed in his charge. Panelli
puts them to work and breaks them in and then is required by Martin to report how
they are doing. Martin instructed Callaghan, when putting him in charge of the
two other sink polishers on the second floor, that he would be responsible to Panelli;
and Panelli communicates with the second floor several times daily, including at
least one or more personal visits. He makes sure that enough work is on hand
there. Bilotti, a polisher who distributes polishing work on the second floor, is in
frequent touch with Panelli.
Panelli is responsible for maintaining adequate supplies of grinding compounds
and other materials, reporting low stocks to the office and receiving the replacements
from suppliers. He also takes care of sending work out to subcontractors and getting
it back.9
Polishers desiring to leave early report that fact to Panelli; on the second floor
they make their report to Bilotti, who tells Panelli. Panelli has authority to see to
it that the employees remain at their jobs and do not abuse their right to go out
for a smoke.
Panelli spends most of his time on the first floor. He receives from his superior
route sheets stating the items to be worked on, their number, the surfaces to be
polished, and the kind of finish. He thereupon ascertains where the articles are
and arranges to have them brought to the department. Panelli then has DiLorenzo
distribute the work among the lathe or flexible-shaft polishers, telling DiLorenzo
how many of each item are to be polished, which surfaces, and the finishes. The
question whether an article is to be polished by lathe or flexible shaft is routine and
no special direction is needed. Usually work goes to the man who is ready for
more work; where there is a choice, Panelli decides who should get it. Panelli
frequently stops a man from doing one job and puts him on another, choosing
a man on the basis of his knowledge of who does a particular job better.'°
Panelli does not work on Saturdays and DiLorenzo takes over. Panelli makes up
a list beforehand of the employees who are to work on Saturday, indicating the
job each is to work on, and he gives it to DiLorenzo, with a copy to either Martin
or Passikoff.
On the first floor Panelli watches the men at their work, inspecting by spot check
as it is done, and having errors corrected when necessary. When men start to
work on new items, Panelli watches them until satisfied that the work is being done
right. Martin and others also inspect work, but usually after it is ready to leave
the department, not while it is at the lathe or shaft, as Panelli does. Their inspec-
tion is directed to conformance to specifications; Panelli's is directed to the quality
of the work as well.
On his visits to the second floor Panelli looks round to see to it that the polishing
is being done right. He also telephones from time to time to ask if things are
going smoothly, and he is called upon by his superiors for advice on technical
problems that arise in the polishing of the sinks.
Panelli testified that men in the department ask him for increases 2 or 3 times
a month and, further, that he never heard men ask Martin for increases. The
record shows that Martin is in the department several times daily and in frequent
communication with employees. Bilotti likewise testified that men ask Panelli
9 In view of the absence of reference to this work in his affidavits referred to below, and
on the basis of my observation of Panelli's stand, I find untrue his testimony that this
work plus his clerical work took up most of his time.
10 Panelli himself so testified He also contradicted the statement, saying that Passikoff
or Martin tells him whom to choose when switching jobs. The testimony is clear that
Panelli is the Employer's expert on polishing, and that he watches the polishers to a
greater extent than Production Manager Passikoff and Personnel Director Martin. The
Employer offered no plausible reason why Panelli, a sick man, should have imposed upon
him the additional burden of having to get orders from higher supervisors to do something
he is better qualified to do than they.
1338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for increases. He stated that sometimes the men on the second floor direct their
requests to himself, in which case he asks Panelli to get the increases. Callaghan
testified that when he was in charge of the sink polishing, Panelli asked him his
opinion of the two other men on that operation because Panelli was thinking of
recommending them for increases. Panelli and Martin testified that the former
merely reports or requests pay increases to Martin without discussion. However,
Panelli admitted that the men thank him when they receive increases, and in affidavits
sworn to by him during investigations in this proceeding 11 he stated that he has
authority to tell Martin that certain employees are entitled to increases.
Panelli also stated in his affidavits that he has authority to recommend hiring and
firing and, as stated above, he testified at the hearing that Martin requires him to
report how the new men are doing.
Conclusions as to Panelli
Panelli unquestionably is in general charge of the polishing department with its
32 employees. Martin presents him to employees as the responsible authority in
the department and he is the source from which all 20 employees on the first floor
receive their work assignments, even on Saturdays when he is not present. The
employees seek him out to report their leaving the plant and to request increases.
The Employer looks to Panelli for expert advice on polishing, to break in new men,
to get work into and out of the department and to keep it moving while there,
to keep the men at their machines, and to maintain adequate stocks of supplies.
Panelli's status as department head is given recognition by the Employer in the
form of a pay rate substantially higher than all others in the department.
To a large extent Panelli is not required to exercise constant discretion in deter-
mining to whom to assign work on the first floor. Howevei, he must frequently
use judgment in choosing the man to do certain work. Moreover, in view of the
variety of articles worked on, it is plain that a smooth and efficient flow of work
among the 20 men could not be maintained without the exercise of substantial
discretion.
In addition to assigning work, Panelli is responsible for the quality of work in the
department. He shows the men how to do new jobs and watches them until satis-
fied that they are doing them right. He keeps a general watch on the men doing old
jobs also, lest standards drop, and orders the employees to make necessary correc-
tions. Plainly this function requires that Panelli use judgment.
The statement in Panelli's affidavit that he has authority to recommend increases
for employees implies that the recommendations carry weight with Martin, the
personnel director. Not to recognize this implication would be to engage in tricky
word-play like Hotspur's often quoted reply to Owen Glendower's boast, "I can call
spirits from the vasty deep." 12 Furthermore, a consideration of all the evidence
convinces me that Panelli's implied statement was not an empty boast but was
truthful. Both he and Martin denied that recommendations are made but I have
found them not credible witnesses. Indeed it would be a strange situation that 32
polishers, including Bilotti, should regularly turn to Panelli for increases when
Martin and Charles Scavullo are in the department so frequently. Stranger still
would be the fact that the polishers thank Panelli when they receive their increases
and he graciously accepts their thanks. It is conceivable that the Employer in grant-
ing increases to polishers would not rely upon the person in closest contact with
them and having the most expert knowledge of polishing; and it is also conceivable
that all 32 polishers should get the wrong idea as to Panelli's effectiveness in getting
pay increases for them. But these things are not very likely. I cannot accept such
improbable testimony on a matter peculiarly within the Employer's knowledge and
control in the face of Panelli's own affidavits. I therefore find that Panelli makes
recommendations for pay increases and that these recommendations are effective.
I find that Panelli has authority, in the interest of the Employer, responsibly to
direct employees and effectively to recommend the discharge and rewarding of
employees and that his exercise of such authority is not of a merely routine nature
but requires the use of independent judgment. I further find that Panelli is a super-
visor as defined in 2 (11) of the Act.
u These affidavits were admitted in evidence for all purposes for the same reason as
Gross's affidavit. See footnote 8 above
22 2 Hen. IV, III, 2.
LEGION UTENSILS COMPANY 1339
e. Frank Bilotti
This person was challenged as a supervisor but it does not appear by whom.13
Bilotti works in the polishing department on the second floor. All operations on
the second floor are under the general supervision of Charles Scavullo, one of the
partners. Scavullo relies upon Jensen to provide the general supervision for all
sink operations, including the polishing. The great bulk of the polishing done on the
second floor is on larger items, especially sinks, kettles, and galley tubs. Bilotti him-
self polishes small copper plated articles and another man polishes handles and legs
for pots and kettles. Bilotti's polishing takes up approximately two-thirds of his
time. His wage at the time of the election was $1.75 per hour, which was the
same rate that some other second floor polishers received and was less than several
on the first floor received.
Bilotti receives the work for the second floor polishers from Charles Scavullo or
Jensen and gives it out to the men, telling them what has to be done. This is usually
routine, as the polishing operation on a given item is always the same and the
large articles manufactured by the Employer do not present the variety that the
smaller articles do. A few kettles are so welded that excessive polishing would
cause eventual rusting. In those instances Bilotti gives special directions, always to
the same effect.
Men taking time off during the day report that fact to Bilotti, who then tells
Panelli. He breaks in new men and reports on their performance to Panelli. He is
responsible for proper performance of the polishing on the second floor and checks
it from time to time. Men ask Bilotti to get increases for them and he then tells
Panelli about it.
Conclusions as to Bilotti
The assignment of work by Bilotti is almost entirely a routine matter. Even
those rare occasions when he gives special directions as to certain work do not re-
quire the exercise of substantial judgment. He may exercise some judgment in check-
ing the work of the polishers. However, this is a small part of his work. In view of
the fact that Bilotti spends some two-thirds of his time polishing, the foregoing duties
hardly constitute responsible direction of the work of employees. His comments on
their performance, moreover, are made to Panelli, who in turn makes recommenda-
tions to higher supervisors. The evidence adduced does not warrant the inference
that these comments to a person in Panelli's position constitute effective recommen-
dations.
I find that Bilotti is not a supervisor within the meaning of 2 (11) of the Act.
f. Dominick Franco
This voter is challenged by the Union.
Franco works in the tinsmith department, which has approximately 11 employees.
He is the highest paid employee in his department. He received $2.05 per hour
at the time of the election. Maki, who at times works in the department but
usually does special tinsmith work on the second floor, receives the same pay.
Pallazola, who does special tinsmith work on the second floor, is more highly paid.
Virtually every product manufactured by the Employer, numbering close to 1,000,
and all different, has work done on it in this department and 50 to 75 different
articles are usually in the department for processing at any given time. The more
important operations are spot welding, rough grinding, soft soldering, silver solder-
ing, rolling, and embossing (gadroon rolling). Usually a particular employee is
assigned to each of these operations, but 2 are assigned to spot welding and in
some cases i man is assigned to more than 1 operation. The less important opera-
tions are shear trimming, deburring, small drilling, name stamping, spit removal,
powerpressing, and possibly handle bending. These operations are performed by
helpers and it is the Employer's policy to have every helper do all from time to
time. The less important operations are quite simple taken one by one with respect
to a single article, but because of a large variety of products and of operations
it takes a helper 4 to 6 months to learn to know his way around the department.
There are approximately 4 helpers and 7 operators.
The assignment of work is handled by Franco. The important operations are
specified on a route sheet supplied by his superiors except as to frequently made
items, on which the procedure has become routinized. As indicated, there is no
choice as to the man to perform each of these operations except as to the two spot
welders. The less important operations are not usually noted on route sheets and
33 See-fodfnote 2 above.
1340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it is Franco's responsibility to see to it that they are all carried out. Usually a
given job is assigned to the helper engaged in such work at the moment; if there
is none, it is assigned to the man who happens to be working near the appropriate
machine or to one who is free. However, Franco must be certain that the man
to whom he assigns a job already knows, or is then and there instructed, how to
do it. In making the assignment he must have in mind, in addition to basic opera-
tion, the particular article, the part to be worked on, the variety of part (e. g.,
whether it is an insulated or uninsulated handle), and its specific placement on
the article. Furthermore, if time is important, as is frequently the case, he is limited
in his choice to the men who he knows are already capable of performing that task.
Franco was specifically assigned the responsibility of seeing to it that work leaves
the tinsmith department properly done. He therefore checks the work at each stage
of the operations and has any defects corrected by the employees. He also has
corrections made in other departments and himself in turn corrects minor defects
at the request of other department heads. Martin testified that the determination
of whether or not to send an article on to another department or to order that the
defect be corrected requires the exercise of discretion.
New employees are placed in Franco's charge by Martin and Franco breaks
them in. He also breaks in helpers who are to advance to operators.
Franco comments to Martin on the work of employees, especially the new ones,
recommending pay increases for them. Martin testified that he might or might
not take such recommendation into consideration in some cases but that he would
not rely upon Franco's opinion . Franco testified that he was in a better position
to judge the men than Martin, but he also stated that many went directly to Martin
to ask for increases.
Conclusions as to Franco
The record shows that Franco does recommend increases for employees, especially
those in the process of learning the job. However, Martin's testimony, that he does
not rely upon these recommendations, is corroborated by Franco's testimony that
employees who have been in the department for some time make this request to
Martin rather than to him. There is further corroboration in Franco's avuncular
attitude towards the other employees revealed by his testimony, an attitude which
his superior might very well think would color his recommendation. I find that
Franco does not make effective recommendations for pay increases.
The assignment of work in the department is an important responsibility at least
so far as the helpers are concerned. These employees would be lost without Franco.
The Employer relies upon him to see to it that a very large variety of distinctly
different individual operations are performed by the few helpers. For this Franco
must, first, know each of the almost 1,000 products; second, he must be thoroughly
familiar with each operation and its numerous variants; third, he must decide when
each helper is ready to perform it; and fourth, he must decide when to teach a helper
a new operation or take a helper who already knows how to do it. Any attempt
to handle these matters in this department of the Employer's plant on a routine basis
would result in failure; considerable discretion and judgment are essential.
Even more important is the control of quality, which is also Franco's responsibility.
He is the one who must decide when each operation-both the minor ones performed
by the helpers and those performed by the operators-has been done satisfactorily so
that the article is ready to leave the department. And if he decides that correction
is required, he has authority to have the employees make it. As already indicated,
the very fact that a person is required to make a decision of this kind shows that it
is not a routine decision which any employee could make but one requiring discretion
and judgment.
I find that Franco has authority in the interest of the Employer responsibly to
direct employees and that his exercise of such authority is not of a merely routine
or clerical nature, but requires the use of independent judgment. I further find that
Franco is a supervisor within the meaning of section 2 (11) of the Act.
g. Mario Cingzini
This person was challenged by the Union. He works in the powerpress
department.
The parties stipulated at the hearing that Cinquini's authority or lack of authority
with respect to criteria set forth in section 2 (11) of the Act is the same of that
of Rocco Spaiiaro, and they requested that the same finding be made as to his right
to vote as is made as to Spadaro's. In view of the length of the record and the fact
that Cinquini had refused to appear and testify voluntarily, the hearing officer re-
ARMSTRONG CORK COMPANY 1341
ceived the stipulation and no substantial testimony was taken as to Cinquini's
authority.
On the basis of the stipulation I find that Cinquini has authority , in the interest
of the Employer , responsibility to direct employees , and that his exercise of such
authority is not of a merely routine or clerical nature but requires the use of inde-
pendent judgment . I further find that Cinquini is a supervisor within the meaning
of Section 2 (11) of the Act.
III. THE TALLY OF BALLOTS
With the exclusion of even 1 of the challenged ballots from the revised tally, the
Union's 48 votes constitute a clear majority of the valid votes cast in the election.
I find that the Union has received a majority of the valid ballots cast in the
election and that it has been designated and selected as representative for the pur-
poses of collective bargaining by the majority of the employees in the unit found
appropriate in paragraph numbered 4 of the original Decision and Direction of
Election , within the meaning of Section 9 (a) of the Act.
CONCLUSIONS OF LAW
Mario Cinquini , Arthur Flecker, Dominick Franco, Michael Gross , Serverino
Louis Panelli , and Rocco Spadaro are supervisors within the meaning of Section 2
( 3) and ( 11) of the Labor Management Relations Act.
Frank Bilotti is not a supervisor within the meaning of Section 2 (3) and (11)
of the Labor Management Relations Act.
Local 463, International Union of Electrical , Radio and Machine Workers, CIO,
is the exclusive representative for the purposes of collective bargaining of all the
employees in the unit described in the original Decision and Direction of Election
within the meaning of Section 9 ( a) of the Labor Management Relations Act.
[Recommendations omitted from publication.]
ARMSTRONG CORK COMPANY and UNITED RUBBER, CORK, LINOLEUM &
PLASTIC WORKERS OF AMERICA, CIO, PETITIONER. Case No. 16-RC-
1491. September 14,1954
Decision and Order Setting Aside Election
On June 30, 1954, pursuant to a stipulation for certification upon
consent election, an election by secret ballot was conducted under the
direction and supervision of the Regional Director of the Sixteenth
Region among the employees in the appropriate unit' Upon comple-
tion of the election, a tally of ballots was issued. The tally shows that,
of approximately 84 eligible voters, 80 cast valid ballots, of which 35
were for and 45 were against the Petitioner. The tally also shows that
there was one void ballot.
The Petitioner timely filed objections to conduct affecting the re-
sults of the election. On July 19, 1954, the Regional Director issued
his report on objections to election, finding, among other things, that
the Employer interfered with the election by its disparate application
of a no-solicitation rule and by its interrogation of certain employees
3 The stipulated unit was composed of all production and maintenance employees at the
Employer's Dallas , Texas, plant, excluding office clerical employees , guards, property main -
tenance man , watchman-floorman , professional employees , and supervisors as defined in
the Act, as amended.
109 NLRB No. 190.