Mitchellace, Inc.

National Labor Relations Board - Board Decisions

Jul 27, 1994

314 N.L.R.B. 536 (N.L.R.B. 1994)

536
314 NLRB No. 95
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Petitioner and the Employer have excepted to some of the
hearing officer’s credibility findings. The Board’s established policy
is not to overrule a hearing officer’s credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that
they are incorrect. Stretch-Tex Co., 118 NLRB 1359, 1361 (1957).
We find no basis for reversing the findings.
2 We recognize that the instant case arises in the Sixth Circuit,
which modified the Board’s Midland National Life Insurance Co.,
263 NLRB 127 (1982), standard in Van Dorn Plastic Machinery Co.
v. NLRB, 736 F.2d 343 (6th Cir. 1984), cert. denied 469 U.S. 1208
(1985). We adhere to the Midland standard. However, even applying
the Van Dorn standard to the facts of this case, we find that the two
flyers distributed by the Union did not contain such pervasive mis-
representations or artful deceptions as to affect employee free choice
in the election.
3 In the absence of exceptions, we adopt pro forma the hearing of-
ficer’s recommendations that the challenges to the ballots of Robert
Allen, Sam Ratliff, Jill Burton, Barbara Bratt, Ina Barton, and Linda
McCoy be overruled.
Mitchellace, Inc. and Chicago & Central States
Joint Board, Amalgamated Clothing & Textile
Workers Union, AFL–CIO–CLC, Petitioner.
Case 9–RC–16259
July 27, 1994
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
The National Labor Relations Board, by a three-
member panel, has considered determinative challenges
and objections to an election held September 23, 1993,
and the hearing officer’s report recommending disposi-
tion of them. The election was conducted pursuant to
a Decision and Direction of Election. The revised tally
of ballots shows 111 for the Petitioner, and 100
against, with 11 remaining determinative challenged
ballots.
The Board has reviewed the record in light of the
exceptions and briefs and has decided to adopt the
hearing officer’s findings1 and recommendations with
respect to the Employer objections,2 but with respect
to the challenged ballots, we find, contrary to the hear-
ing officer’s recommendation, that the Petitioner’s
challenges to the ballots of Holly Boggs and Stacey
Clark should be sustained.3
The facts are not in dispute. Boggs and Clark are
data entry clerks responsible for entering production
data into computers. Operators and floor leaders fill
out production data sheets at the end of their shift
which are then taken by the floor leaders or super-
visors and put into mailboxes situated outside the data
entry clerks’ offices. The data entry clerks generate
production reports which are used to track productivity
by showing operator and machine output. The reports
are posted in the production area and are distributed to
supervisors, floor leaders, and the plant manager via
their mailboxes. Production is then compared with pre-
set ‘‘production norms’’ to determine operator and ma-
chine productivity.
Both Boggs and Clark work in the front office area
where the office clerical, supervisory, and management
offices are located. They have work-related contact
with plant employees only when they have questions
about the production data which cannot be answered
on the phone and occasionally when a floor leader
drops off the production reports. Clark testified that
she would speak to the floor leaders approximately
once a day but that she only entered the production
area about twice a month. Boggs testified that she en-
tered the production area approximately once a week
and spent 50 percent of her time on data entry. In ad-
dition, Boggs also prints shipping labels for large or-
ders which the Employer produces for other companies
and testified that production supervisors would bring
those labeling orders to her office.
Boggs also prepares data on production savings and
conducts observational monitoring of operator and ma-
chine productivity. The results are then used to set
‘‘production norms’’ by which individual output and
efficiency are measured. During the summer, in re-
sponse to a company request, both Boggs and Clark,
like other clerical employees, worked in the production
area for short periods because of temporarily increased
production requirements.
Boggs and Clark are both supervised and evaluated
by office manager, Myria Denniston, who also super-
vises five other admitted office clericals. Office
clericals’ performance evaluations are reviewed by the
Employer’s chief operating officer, Steve Keating, to
whom Denniston reports. Both Boggs and Clark are
identified on their annual performance evaluations as
working in the office department and are paid on the
office pay scale. In contrast, employees Judy Smith
and Barbara Joseph, who are also data entry clerks and
admitted plant clericals, work in the production area,
are part of a separate production supervisory hierarchy
which ultimately reports to the plant manager, and are
paid on the plant employee pay scale.
Boggs and Clark participate in functions which are
for office personnel only, such as the office Christmas
party, and Boggs testified that she attended office em-
ployee birthday parties. In addition, Boggs has partici-
pated on two occasions as a judge in the Employer’s
‘‘Good Housekeeping Program’’ in which office em-
ployees review the production departments for cleanli-
ness and award an extra hour of pay to the production
employees in the winning department.
Given these facts, we find, contrary to the hearing
officer, that Boggs and Clark are office clericals.
The Board has long held that the distinction between
office and plant clericals is rooted in community of in-
terest concepts. Minneapolis-Moline Co., 85 NLRB
597, 598 (1949). Clericals whose principal functions
537MITCHELLACE, INC.
4 We therefore find it unnecessary to pass on the remaining chal-
lenged ballots.
and duties relate to the general office operations and
are performed within the office itself are office
clericals who do not have a close community of inter-
est with a production unit. This is true even if those
clericals spend as much as 25 percent of their time in
the production area and have daily contact with pro-
duction personnel. Container Research Corp., 188
NLRB 586, 587 (1971).
Under the facts of this case, we find Boggs and
Clark do not share a community of interest with the
production employees. They are separately located in
the office area, are separately supervised, and have
limited work-related contact with the production em-
ployees. They attend office functions, are excluded
from participation in plant employee incentive pro-
grams, and are characterized by the Employer as office
employees on their annual evaluations. In these cir-
cumstances, we find that they are office clericals and
therefore are excluded from the unit. See Cook Com-
posites & Polymers Co., 313 NLRB 1105 (1994); Vir-
ginia Mfg. Co., 311 NLRB 992 (1993); Jakel Motors,
288 NLRB 730, 742 (1988), enfd. 875 F.2d 644 (7th
Cir. 1989).
In addition, Boggs also conducted observations of
machine and operator efficiency which were subse-
quently used to set ‘‘production norms,’’ which were
in turn used to evaluate employee output, and on occa-
sion production employees would come and discuss
problems they had in meeting the norms with
Denniston and ask that the norms be reevaluated. As
the Board has noted, this monitoring function may lead
unit employees to consider Boggs to be more aligned
with management’s interest than with theirs. Virginia
Mfg. Co., supra.
For these reasons we shall sustain the challenge to
the ballots of Boggs and Clark. The remaining chal-
lenged ballots are no longer determinative,4 and we ac-
cordingly find that a certification of representative
should be issued.
CERTIFICATION OF REPRESENTATIVE
It is certified that a majority of the valid ballots
have been cast for Chicago & Central States Joint
Board, Amalgamated Clothing & Textile Workers
Union, AFL–CIO–CLC and that it is the exclusive col-
lective-bargaining representative of the employees in
the following appropriate unit:
All production and maintenance employees, in-
cluding receiving, shipping and print shop em-
ployees, employed by Mitchellace, Inc. at its
Portsmouth, Ohio facility, excluding all office
clerical employees and all professional employees,
guards, and supervisors as defined in the Act.