West American Rubber Co., 92 (1973)

West American Rubber Co. and United Rubber, Cork,

Linoleum & Plastic Workers of America, AFLCIO. Case 21-CA-10540

January 8, 1973 DECISION AND ORDER

BY CHAIRMAN MILLER AND MEMBERS

FANNING AND JENKINS

On August 29, 1972, Administrative Law Judge Jerrold H. Shapiro issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief.

Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order.

ORDER

Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent, West American Rubber Co., Orange, California, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order.

i The Administrative Law Judge found that the Respondent did not violate Sec 8(a)(3) of the Act by terminating Howard Fox We agree, and adopt his findings and conclusions with respect thereto. The Administrative Law Judge further found that Respondent violated Sec 8(a)(1) and (5) by engaging in certain conduct, and did not violate Sec. 8(a)(l) by engaging in certain other conduct In the absence of exceptions thereto, we adopt pro forma the findings of the Administrative Law Judge with respect to the allegations of Sec 8(a)(I) and (5) of the Act.

TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE

JERROLD H. SHAPIRO, Trial Examiner : Upon a charge filed by the Union on January 17, 1972, and amended on April 24, 1972, the General Counsel of the National Labor Relations Board, Region 21, issued a complaint, dated April 25, 1972, against West American Rubber Co., herein called the Respondent, alleging, as amended at the hearing, that Respondent has engaged in unfair labor practices within the meaning of Section 8 (a)(l), (3), and (5) of the National Labor Relations Act, as amended . The Respondent filed an answer denying the commission of the alleged unfair labor practices. A hearing was held on July 11 and 12, 1972.

Upon the entire record in the case and from my observation of the demeanor of the witnesses , and having considered the postheanng briefs, I make the following:

FINDINGS OF FACT

1. THE BUSINESS OF THE RESPONDENT West American Rubber Co., a California corporation with its principal place of business in Orange, California, where it is engaged in the manufacture of rubber products, annually sells and ships goods and products valued in excess of $50,000 directly to customers located outside the State of California. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act.

2. THE LABOR ORGANIZATION INVOLVED United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act.

3. THE UNFAIR LABOR PRACTICES A. The Issues The Union, on August 3, 1971, was certified by the Board as the exclusive collective-bargaining representative of Respondent's employees in an appropriate bargaining unit. By January 19721 the Company and Union had held approximately 13 negotiation meetings without succeeding to negotiate a contract. The General Counsel and Union contend that in January Respondent engaged in certain conduct which violated the Act. Briefly stated the issues pleaded and litigated are as follows: (a) Whether employee Howard Fox was discharged and, if so, was the discharge motivated by his Union activity in violation of Section 8(a)(3) and (1) of the Act. (b) Whether in violation of Section 8(a)(5) and (1) of the Act Respondent solicited and aided its employees to resign from the Union and threatened them with reprisals if they did not resign. (c) Whether the Respondent violated Section 8(a)(1) of the Act by interrogating employees about their Union activities; by keeping employees' Union activities under surveillance; by creating the impression that it was keeping employees' union activities under surveillance; by threatening employees with reprisals because of their union activity; and by directing employees to stop engaging in union activity while on Respondent 's premises.

   Also at issue is the supervisory status of Calvin Richardson, a leadman, who the General Counsel claims engaged in some of the above-mentioned alleged unlawful conduct.

   i Unless specified otherwise, all dates refer to the year 1972

   201 NLRB No. 12

   2. The Interference, Restraint, and Coercion and Refusal To Bargain 1. The conduct attributed to Calvin Richardson;

      Richardson's status as a statutory supervisor Calvin Richardson at the time material to this case was employed by Respondent on the first shift in the pressline department, classified as a leadman. His immediate supervisor was Lee Michels, the general foreman responsible for the operation of the pressline and stock prep departments.

      Richardson's leadman classification is included in the appropriate bargaining unit certified by the Board. Like the other unit employees he is paid by the hour and receives time and one-half for overtime.

      There is no evidence that Richardson during the time material had authority to hire, transfer, suspend, lay off, recall, promote, discharge, or discipline other employees, or adjust their grievances, or to effectively recommend such action.

      Regarding wage increases, the employees receive automatic increases after their first 30 and 60 days of employment and merit raises thereafter. Michels decides when a merit increase is warranted. And, although Michels discusses employees' work with Richardson , there is no evidence that Michels follows Richardson's recommendations or that Richardson has effectively recommended that employees receive merit wage increases.

      Regarding the assignment of work or the direction of employees the record establishes that the pressline department has about 45 presses operated by about 18 operators per shift. Either Michels or Richardson, usually Michels, sets up the presses for the operators-ties a mold into the press. It is Michels who schedules the work and it is Richardson who assigns the press operators to the scheduled jobs based upon their skill and experience.

      Michels, however, when he observes an operator not performing competently on an assigned job will direct that he be given something else to do. In operating a press the operator loads the raw material, all the time following written instructions, and following 'these instructions operates the press by pushing a button. As Richardson testified at the hearing, 'it is a pretty routine type of an operation operating a press.' When a new employee starts to work in the department he is assigned by Richardson to work with an experienced operator. Finally, if an operator has trouble operating a press or is producing bad parts Richardson corrects the problem.

      In my view, the record as a whole establishes that any direction or assignment of work to employees by Richardson is of a routine nature and compatible with the functions generally attributed by the Board to a leadman.

      The work performed by the employees in the pressline 2 Although Richardson has the authority to allow employees in his department to leave work early in the case of an emergency, without first seeking the approval of the foreman, this limited authority does not, in my opinion, establish that he is a statutory supervisor especially where, as here, there is no evidence establishing that this authority was exercised other than sporadically if at all.

      3 The Union was certified in the following appropriate unit All production and maintenance employees, including shipping and receiving employees, leadmen, truck drivers and quality control department is of a routine and repetitious nature requiring for the most part little training. The record shows that the work is executed in accordance with written instructions prepared in advance for each job that comes into the department. It is true that Richardson assigns the work, but the record shows that he does so according to the employee's skills and experience and in accordance with a daily work schedule which Richardson merely carries out.

      Under these circumstances, to assign work, to check the quality of work, or to assist employees generally with their work problems, in my opinion, requires no more use of independent judgment or responsible direction than that of the usual leadman functions in such matters. It appears that both the Employer and Union recognized this when they agreed that those employees like Richardson classified as 'leadman' were included in the appropriate certified bargaining unit. In short, I am convinced and find that the evidence does not establish that Richardson responsibly assigns and directs the work in the pressline department, nor does it establish that he exercises the use of independent judgment in performing his job.2 Finally, the record does not indicate that his working conditions differed substantially from those of the other employees.

      On the basis of the foregoing, therefore, and on the record as a whole, I find, that Richardson is not a supervisor as defined in the Act and accordingly shall recommend that those portions of the complaint alleging that Respondent violated the Act because of Richardson's conduct be dismissed.

      2. The aid, assistance, and encouragement to employees to withdraw from the Union The Union was certified by the Board on August 3, 1971, as the exclusive bargaining representative of the Respondent's employees in an appropriate unit3 which in January consisted of about 240 employees. To indicate their support and...