Musgrave Manufacturing Co.

National Labor Relations Board - Board Decisions

Jul 29, 1959

124 N.L.R.B. 258 (N.L.R.B. 1959)

258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, as it appears that the Petitioner did not receive a ma-
jority of the valid votes cast, we shall certify the results of the election.
[The Board certified that a majority of the valid ballots was not
cast for International Union of Electrical, Radio & Machine Workers,
AFL-CIO, and that said Union is not the exclusive representative of
the Employer's employees in the unit found appropriate.]
Musgrave Manufacturing Company and Mast -Foos Manufactur-
ing Company, Inc.' and International Union , United Automo-
bile , Aircraft and Agricultural Implement Workers of America,
UAW-AFL-CIO, Petitioner. Case No. 9-RC-3618. July 29,1959
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Harry D. Camp, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Leedom and Members Bean and Fanning].
Upon the entire record in this case, the Board finds :
1. The 'Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
(c) (1) of Section 2(6) and (7) of the Act.
4. Mast-Foos and Musgrave each operates a plant in Springfield,
Ohio. The Petitioner seeks a single unit of the production and main-
tenance employees employed at these two plants. The two companies
contend that they are separate employers under the Act, that the re-
quested two-plant unit is, thus, not appropriate, and that separate
units limited to the employees at each plant are alone appropriate.
`There is no history of collective bargaining on either a two-plant or
single-plant basis for the companies here involved.
Mast-Foos is an Ohio corporation with its main office and plant at
1305 Innisfallen Avenue, Springfield, Ohio. Musgrave, likewise, is
an Ohio corporation, with its main office and plant at 2755 Columbus
Avenue, Springfield, Ohio. The distance between the two plants is
about 6 miles. Orly Musgrave and his wife own all the outstanding
stock of the two corporations. Orly Musgrave is the president and
treasurer of each corporation, while his wife is the vice president and
1 Herein called Musgrave and Mast-Foos, respectively.
124 NLRB No. 32.
MUSGRAVE MFG. CO. AND MAST-FOOS MFG. CO., INC . 259
secretary of both companies . F. C. McGregor is the general manager
of the two companies and maintains an office at each plant. Below
McGregor , each plant has a separate managerial and supervisory
hierarchy with a plant manager in charge of the Mast-Foos operation
and a plant superintendent over the Mush ave plant.
Mast-Foos is engaged primarily in the manufacture of reel type
lawn mowers ; it also makes a small racing car and does job shop work
for other manufacturers . Musgrave assembles from parts purchased
from other companies , riding rotary type lawn mowers . It buys about
10 percent of its materials from Mast -Foos. Each company handles
its own sales 2 and purchases . There is no interchange of employees
between the two plants and hiring and discharging is done separately
at the plant level. However, overall control of working conditions is
indicated by the fact that employees at the two plants receive similar
paid holidays and are under the same insurance program and vacation
plan.
In view of the foregoing , including the common ownership, the
interlocking officers, and the centralized control, we find that Mast-
Foos and Musgrave constitute a single employer for purposes of the
Act.' We further find that the requested two plant unit, as it is, in
effect, an employerwide production and maintenance unit, is appro-
priate for purposes of collective bargaining.'
The parties are in general agreement as to the composition of the
unit. However , the Employer would exclude , over the Petitioner's ob-
jection, Carl Lyons who, it contends , is a supervisor . At the time of
the hearing , Lyons was temporarily assigned to a nonsupervisory job
outside the unit, but will , under present plans, return to his regular
position in the Musgrave plant when his special assignment is com-
pleted. In his permanent position , Lyons is in charge of the "front
assembly operation" at the Musgrave plant which employs 8 to 10
workers. He receives his assignment from the plant superintendent
in the morning and is responsible for the production of his department.
In carrying out his duties , he assigns employees to various tasks and
directs their work. There is no evidence that he is under continuing
close supervision. Lyons, like the foreman , who the parties agree is a
supervisor , reports directly to the plant superintendent . At the hear-
ing Lyons testified that prior to May 1958 , he was supervisor but at
that time his pay checks ceased carrying the word "supervisor" on
them and had the word "assembly " added. In consequence of this
change, he considered himself demoted .' However, at no time was his
2 Musgrave sells its entire output to Musgrave , Inc., another Ohio corporation owned
by Orly Musgrave and his wife. Musgrave, Inc., is wholly engaged in selling and has
no factory production or maintenance employees.
3 See The Family Laundry, Inc., 121 NLRB 1619.
" See Western Electric Company, Incorporated , 98 NLRB 1015, 1032.
5 The Employer has since that time further altered its checks which presently bear
no classification designation.
260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wage rate , which exceeded that of any of the employees in the "front,
assembly operation" cut, and he was never notified that he had been
demoted. Furthermore, he testified that, even after his "demotion,"
the employees in the department "kind of look towards" him. In view
of the foregoing , we believe that Lyons responsibly directs the work
of the employees in his department in a nonroutine manner. Accord-
ingly, we find he is a supervisor . He is, therefore, excluded from the
unit.,
A question was raised as to the supervisory status of Mable Cook.
She spends most of her time doing regular assembly work. However,
as an experienced employee, she trains new employees and also helps
her coworkers when necessary. There is no evidence that Cook pos-
sesses any supervisory authority. At most, the relationship between
Cook and other employees is that of the skilled to the less skilled
worker. Accordingly, we find that she is not a supervisor. She is,
therefore, included in the unit.7
Accordingly, we find that a unit of all production and maintenance
employees employed at the Employer's plants at 2755 Columbus Ave-
nue and 1305 Innisfallen Avenue, Springfield, Ohio, excluding all
service department employees, office clerical employees, professional
employees, all guards , and supervisors as defined in the Act, is appro-
priate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act.
5. The Employer's operations are somewhat seasonal in nature.
Employment at each plant usually varies between a high of approxi-
mately 40 employees during late winter months to a low of about 15
during the summer. Employment picks up in November; layoffs com-
mence in late March or early April. However, production continues
throughout the year and during the low season there is a represen-
tative complement of employees in each plant manufacturing or as-
sembling lawn mowers. Neither of the parties requests any delay in
the election because of the fluctuating nature of the employment of
workers. Under these circumstances, and as we find below that some
of the employees involved would be eligible as temporary laid off
employees, we believe it appropriate to direct an immediate election.,,
However, the Petitioner requests that we depart from our usual
eligibility date and apply instead the last payroll period preceding
the filing of its petition, thereby making eligible to vote the employees
laid off in a recent cutback in operations, who were about 10 in num-
ber at the time of the hearing. The Employer takes the position that
these employees have no reasonable expectancy of reemployment and,
thus, should not be eligible. In support of its position, witnesses for
6 See , The Robert Becht Company, 111 NLRB 1013. 1018.
7 See, United States Gypsum Company, 119 NLRB 1415, 1420-1421.
FSee Massachusetts Mohair Plush Company, 112 NLRB 41, 43-44; compare Evan Hall
Sugar Cooperative, Inc., 97 NLRB 1258, 1261.
FLORIDAN HOTEL OF TAMPA, INC. 261
the Employer, testified in conclusionary language, that the laid-off
employees had no "reasonable expectation of recall in the near future."
Furthemore, there is no evidence that the laid-off employees are car-
ried on any seniority or formal preferential hiring list. However, the
plant superintendent for the Musgrave plant testified that, in hiring
for the busy season, he gave definite preference in recalling the "really
good" employees previously laid off. Moreover, the record shows that,
of those employees recently laid off at Musgrave, all had worked for
the Employer in previous years, had been laid off, and then recalled for
the past busy season. Under these circumstances, we find that these
employees have a reasonable expectancy of recall in the foreseeable
future and thus are eligible to vote in the election herein directed.'
The record is not clear as to the actual practice relating to the recall
of laid-off employees at the Mast-Foos plant. It indicates that the
employees recently laid off there had not previously worked at Mast-
Foos, but the witness who so testified did not know if they had pre-
viously worked at the Musgrave plant. Moreover, there is some evi-
dence that one of the employees allegedly recently laid off was, in fact,
discharged for cause. In these circumstances, we find the record in-
sufficient to determine whether employees laid off at Mast-Foos be-
cause of the seasonal cutback in operations have a reasonable expec-
tancy of recall in the foreseeable future, and thus retain their status
as employees. We shall, therefore, permit those who have been so
laid off at Mast-Foos in the recent reduction of employees to vote sub-
ject to challenge.10 In view of this determination no useful purpose
appears in support of our establishing an eligibility date in the elec-
tion directed below different from that prescribed in the usual case.
The Petitioner's request that we do so is, therefore, denied.
[Text of Direction of Election omitted from publication.]
9 These employees are Charles Brubaker , Otis Cochran, Fern Major, Joseph Pagent,
and James Stelzer. H. Finney, who is on sick leave, is also eligible to vote. Foley
Manufacturing Company, 115 NLRB 1205.
19 See Radio Corporation of America, 121 NLRB 633; Massachusetts Mohair Plush
Company, 112 NLRB 41, 43.
Floridan Hotel of Tampa, Inc .' and Hotel and Restaurant Em-
ployees and Bartenders Union , Local No. 104, Hotel and Res-
taurant Employees and Bartenders International Union, AFL-
CIO,2 Petitioner. Case No. 12-RC-508. July 30, 1959
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Joseph V. Moran, hearing
1 The Employer' s name appears as corrected at the hearing.
2 The Petitioner' s name appears as corrected at the hearing.
124 NLRB No. 34.