Cinch Manufacturing Corp.

National Labor Relations Board - Board Decisions

Mar 20, 1952

98 N.L.R.B. 781 (N.L.R.B. 1952)

CINCH MANUFACTURING CORPORATION 781
tion is also evidenced by the fact that ultimate financial return is
dependent-upon the extent to which deductions for operating costs
result in profit or loss.
In view of the foregoing and upon the entire record, we conclude
that the Companies' insurance agents are independent contractors and
not employees within the meaning of the Act .5 Accordingly, we shall
dismiss the petition herein.
Order
Upon the basis of the entire record in this case, the National Labor
Relations Board hereby orders that the petition filbd in the instant
matter be, and it hereby is, dismissed.
Southwestern Associated Telephone Company, 76 NLRB 1105 ; Roy 0 . Martin Lumber
Company, Inc., 83 NLRB 691; J. Howard Smith, Inc., 95 NLRB 21. Cf. N. L. It. B. v.
Phoenix Mutual Life Insurance Company, 167 F. 2d 983 (C A. 7), where insurance agents
were found to be employees because of the close control over their manner of operation
exercised by the employer . See, also, Life d Casualty Insurance Co. of Tennessee, 5A
NLRB 1196; Metropolitan Life Insurance Co., 43 NLRB 962.
CINCH MANUFACTURING CORPORATION' and INTERNATIONAL UNION OF
ELECTRICAL, RADIO AND MACHINE WORKERS, CIO, PETITIONER. Case
No. 35-RC-640. March 20, 1952
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 Alan A. Bruckner, 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 [Members Houston, Murdock, and Styles].
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
employees of the Employer.2
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9 (c)
(1) and Section 2 (6) and (7) of the Act.
The name of the Employer appears as amended at the hearing.
2 At the hearing the Employer contended that one or more supervisors as defined in the
Act sponsored and actively assisted in the Petitioner 's membership campaign and that the
petition should therefore be dismissed . In view of our findings herein as to the status
of employees classified as "supervisors " at the Employer 's plant, we find no merit in this
contention.
98 NLRB No. 118.
782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The Petitioner requests that we find appropriate a unit consisting
of all production and maintenance employees at the Employer's
Shelbyville, Indiana, assembly plant, excluding office and clerical
employees, guards, professional employees, and supervisors as defined
in the Act. The Employer agrees with the Petitioner as to the basic
unit appropriate for purposes of bargaining, but the parties disagree
as to the inclusion of certain employees designated by the Employer
as "supervisors."
The Employer's Shelbyville plant is engaged in the assembly of
radio, television, and electronic parts which are shipped to that location
from the Employer's Chicago, Illinois, and St. Louis, Missouri, plants.3
There are approximately 125 employees at the plant, of whom about
110 are classified as assemblers. The assemblers, as well as the visual
inspectors, a quality control inspector, setup men, stockboys, an
assistant shipping clerk, and the janitor, make up the basic unit
requested by the Petitioner.4 Assembly work is done in three depart-
ments known, respectively, as (1) battery and connector sockets ;
(2) molded and miniature sockets; and (3) terminal strips. From
30 to 50 assemblers work in each department but move from one to
another according to the workload and schedule demands. There are
two methods of assembly work performed in these departments.
The first consists of lines in which a number of assemblers assemble a
part which is then permanently joined by an operator at a machine.
The second is a single employee operation in which the assembly
and joining of the part .is done at one time. Approximately 250
different parts are produced by the plant but the number and type
vary frequently.
The employees whom the Employer wishes to exclude are classified
as "supervisors." Until recently, one "supervisor" was assigned to
each department but the Employer now has only two employees in
this classification.5 Each of the "supervisors" has an assistant who,
the parties agree, does not possess supervisory authority, and should
be included in the unit. Above the "supervisors" is the plant foreman
who is in charge of the assembly operations as well as of the remainder
of the plant. General supervision is exercised by the plant manager.
The foreman makes up a daily production schedule which lists the
8 The Employer also has a tool shop at a separate location in Shelbyville , which is not
a part of the assembly operations and is not involved in the instant petition.
' The parties agree as to the inclusion of these employees , and to the exclusion of the fore-
man, the inventory control clerk , shipping clerk, and a clerical employee located in the
production part of the plant because of space problems . The Board finds the record con-
tains substantial reasons for the exclusion of the latter employees and we shall exclude
them front the unit found appropriate.
5 One "supervisor " was discharged in Decei ber • 1951 and is,the subject of an unfair
labor practice charge now pending before the Board . Since the discharge of this employee,
two of the departments are assigned to one of the remaining " supervisors."
CINCH MANUFACTURING CORPORATION 783
parts to be assembled in the day's operations and the number of
assemblers to be assigned to each operation. The "supervisors" and,
in many instances, the foremen place the assemblers according to the
numbers and jobs indicated on this production schedule. Other duties
of the "supervisors" include the maintenance of an even flow of
materials to the assemblers, weighing completed parts for production
records and maintenance of daily production records, spot checking
the parts against a blueprint to determine whether they are being
assembled correctly, and, occasionally, helping in the assembly lines
for short periods. They are paid on an hourly basis and receive
10 cents an hour more than the assemblers."
The Employer contends that the employees in this classification are
supervisors as defined in the Act and should, accordingly, be excluded
from the unit. The Petitioner asserts a contrary position. ' -
The mere title 'of "supervisor" as applied to these positions does not
establish supervisory status.7 Rather it is the functions, duties, and
authority of these individuals which must be determinative, accord-
ing to statutory standards.8 The - record shows clearly that the
Employer's "supervisors" do not have authority to hire, discharge, or
effectively recommend such action. Hiring is done by the plant per-
sonnel department and recommendations are accepted with equal
weight from all employees. While the Employer contended the
"supervisors" could recommend discharge, no instance was adverted
to at the hearing where a "supervisor's" recommendation for termina-
tion was the initiating and effective force. Wage increases are auto-
matic provided the assembler's production is sufficient and while the
"supervisors" are sometimes consulted as to the assemblers' production
records, they do not submit recommendations as to the grant or denial
of these increases. The same is true of promotions .9 "Supervisors"
do not have authority to suspend subordinate employees, and their
disciplinary power is limited to "showing employees how to do work
right." They do not have authority to lay off or recall employees,, and,
although they may confer with the foreman and the plant managers
9 The "supervisors" are also given a higher Christmas bonus than other employees.
Assistant supervisors receive 5 cents an hour less than the "supervisors" and a quality
control inspector, who is included in the unit but not in the assembly department , receives
the same hourly rate as the "supervisors."
T See Silverwood '8, 92 NLRB 1114, and cases cited therein.
8 Section 2 (11) of the Act defines a supervisor as "any individual having authority, in
the interest of the employer, to hire, transfer, suspend, lay off, recall , promote , discharge,
assign, reward, or discipline other employees, or responsibly to direct them, or to
adjust their grievances , or effectively to recommend such action, if in connection with the
foregoing the exercise of such authority is not of a merely routine or clerical nature,
but requires the use of independent judgment."
9In the only instance offered by the Employer as to this-authority , the "supervisor" was
consulted after the employee to be promoted had already been selected on seniority , skill,
and ability,
784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as to which individuals will be laid off or recalled, it does not appear
that they have the authority effectively to recommend in this regard.
Nor do they adjust grievances, although they may handle minor com-
plaints with or without consultation with the foreman.
There remains the question as to whether the "supervisors" transfer,
assign, or responsibly direct employees within the statutory defini-
tion. As previously noted, the assemblers work on the lines and indi-
vidual. operations. These lines and operations are set out in the
daily production schedule made up by the foreman who lists the parts.
to be produced, which parts require immediate handling, the lines to
be established, and the number of employees to be assigned to the
assembly of each 'part. The "supervisors" consult this production
schedule in the morning and establish new lines as the existing ones
finish. -The assemblers move from department to department and
from line to line or individual operation as the work schedule demands.
As the "supervisors" indicate to each assembler on what line she is.
to work, it is contended that the "supervisors" assign, transfer, and
responsibly direct the employees. The Board does not agree. It is.
clear that the placement of the assemblers on the lines amounts to
nothing more than routine shifting of employees to predetermined
work according to a predetermined schedule. The foreman, more-
over, does some of this routine shifting himself or in company with
the "supervisors," and the record shows at least one instance in which
an employee who objected to her placement by the "supervisor" was.
moved by the foreman's direction. The transfer of employees from
one assembly department to another is dictated by the workload;
the supervisor's choice of individuals to be shifted is determined by
what assemblers are idle at that time, and it does not appear that this
requires any use of independent judgement. The quality of the work
produced by the assemblers is checked by inspectors who are rank-
and-file employees; the quantity of the assemblers production is de-
termined from the weight records made daily. The work of the as-
semblers, itself, is comprised of simple manual operations which
appear to require little supervision. This work is done in one large
room and the plant foreman is in attendance much or most of the time.
Accordingly, the Bpard finds that the Employer's "supervisors" are
not supervisors such as defined in the Act and may properly be included
in the unit hereinafter found appropriate."
On the entire record, the Board finds that all production and main-
tenance employees of the Employer at its Shelbyville, Indiana, as-
sembly plant, including assembly employees classified as supervisors,
but excluding the inventory control clerk, shipping clerk, office em-
10 See United Screw & Bolt Corporation., 89 NLRB 953 ; Stremei Bros. Manufacturing
Company, 89 NLRB 1404, and cases cited therein.
RAYTHEON MANUFACTURING COMPANY 785
ployees, the clerical employee now located in the production area,
professional employees, guards, foremen, and all supervisors as defined
in the amended Act constitute a unit appropriate for purposes of collec-
tive bargaining within the meaning of Section 9 (b) of the Act.
[Text of Direction of Election omitted from, publication in this
volume.]
RAYTHEON MANUFACTURING COMPANY and LODGE 1836 OF DISTRICT
38 OF THE INTERNATIONAL ASSOCIATION OF MACHINISTS , AFL, PETI-
TIONER. Case No., 1-RC-2230. March 20, 1952
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 Leo J. Halloran, hear-
ing 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-mem-
ber panel [Members Houston, Murdock, and Styles].
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 organizations involved claim to represent certain
employees of the Employer.
3. The Intervenor 2 and the Employer urge their current contract
as a bar. The Intervenor was certified as bargaining representative
for a production and maintenance unit in 1946,3 and contractual
relations have continued on that basis to the present time. The most
1 During the hearing, the Employer and the Intervenor requested permission to appeal
directly to the Board from the bearing officer's rejection of the Intervenor's Exhibit No. 1
and offer of proof in connection therewith. The Board denied such permission, postponing
a ruling on the question until this time. The rejected exhibit is a 1948 contract of
indefinite duration between the Petitioner and the Intervenor in which the Petitioner
agreed not to file a petition for any unit other than a production and maintenance unit
unless there occurred a substantial change in either the Employer's method of operation or
"the policy" of this Board. The Intervenor and the Employer now move that the Board
overrule the hearing officer and admit the agreement into evidence. Relying on the Board's
decision in Briggs Indiana Corporation, 63 NLRB 1270, they contend that this agreement
should be considered a bar to the present petition. The motion is denied. In the Briggs
Indiana case, the petitioner had made an agreement with the employer that it would not
seek to represent a specified group of employees for a 1-year period. The nature of the
parties to the instant agreement, its vagueness, and its indefinite term all serve to dis-
tinguish it from the contract which was before the Board in the Briggs case , and we do not
regard that decision as applicable here.
2 Local 1505, International Brotherhood of Electrical Workers, AFL.
3 66 NLRB 588.
98 NLRB No. 121.