K. W. Muth Co., Inc.

National Labor Relations Board - Board Decisions

Nov 26, 1963

145 N.L.R.B. 206 (N.L.R.B. 1963)

206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In order to give as wide a publication to the attached notice as possible it will be
recommended that Respondent, by one of its officers, read the notice to the member-
ship of Local 777 at the first regular meeting of its membership held 20 days after
the issuance of this report. It will be further recommended that, to insure compliance
with said recommended reading of the notice, Respondent give 5 days' notice of said
meeting, fixing the time and place, to the Regional Director for the Thirteenth Region
so that the Regional Director may assign a Board agent or agents to attend such meet-
ing to obtain proof of compliance, with police or Federal Bureau of Investigation pro-
tection if deemed advisable by the Regional Director.
It will also be recommended that Respondent post the attached notice in conspicu-
ous places in its halls and offices and that at least one copy of the notice be placed in
each room of Respondent's halls and offices, including the restrooms.
Upon the basis of the foregoing findings and conclusions and upon the entire record
in this case, I make the following:
CONCLUSIONS OF LAW
1. Crown Metal is an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Local 777 is a labor organization within the meaning of Section 2(5) of the Act.
3. Joseph Glimco, Wallace Brown, Raymond Frazier, and Robert Howard are
agents of Local 777.
4. By engaging in the conduct above found, Respondent has restrained and coerced
employees in the exercise of the rights guaranteed by Section 7 of the Act in violation
of Section 8(b) (1) (A) of the Act.
5. The aforesaid labor practices are unfair labor practices within the meaning of
Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
K. W. Muth Company, Inc. and Allan W. Hoffman , Petitioner
and United Furniture Workers of America , Local #800. Case
No. 13-RD-553. November 26, 1963
DECISION, DIRECTION, AND ORDER
DIRECTING HEARING
Pursuant to a stipulation for certification upon consent election,
an election by secret ballot was conducted on July 19, 1963, under the
direction and supervision of the Regional Director for the Thirteenth
Region among the employees in the stipulated unit. At the conclu-
sion of the balloting, the parties were furnished with a tally of ballots
which showed that of approximately 40 eligible voters, 40 cast bal-
lots, of which 17 were for and 17 were against the Union, with 6 bal-
lots challenged. The challenged ballots were sufficient in number to
affect the results. Thereafter, the Union filed timely objections to
conduct affecting the election.
The Regional Director investigated the objections and challenges
and, on'September 12, 1963, issued his report on objections and chal-
lenges. He recommended that the challenges be sustained. He also
found that some of the conduct complained of in objection No. 1
interfered with the election, and recommended that the election be set
145 NLRB No. 22.
K. W. MUTH COMPANY, INC. 207
aside and a new election be directed. However, he further recom-
mended, if the election is not set aside, that a hearing be held to resolve
factual issues which he found were raised by objections Nos. 1, 2, and 4.
The Employer filed timely exceptions to the Regional Director's re-
port and the Union filed a reply.
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 McCulloch and Members Leedom and
Fanning].
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
9(c) (1) and Section 2(6) and (7) of the Act.
4. We find, in accordance with the stipulation of the parties, that
the following unit is appropriate for purposes of collective bargaining
within the meaning of Section 9(b) of the Act: All production and
maintenance employees at the Employer's Sheboygan, Wisconsin, lo-
cation, including truckdrivers, but excluding office clerical employees,
professional employees, guards, and supervisors as defined in the Act.
5. The Board has considered the Regional Director's report, the Em-
ployer's exceptions,' and the Union's reply, and upon the entire record
in this case finds :
The challenged ballots: The Employer, a fabricator of hardboard
and related products, has a complement of approximately 40 produc-
tion employees. Its acknowledged supervisors are the production
superintendent, the production manager, and the silk screen and lami-
nating department supervisor. An undisclosed number of the engi-
neering staff also exercise some supervisory authority. The Union
contended, and the Regional Director found, that in addition to the
admitted supervisors, the six challenged voters-Gehrig, Hildebrand,
Hawkins, Fraizer, Steil, and Semph-are also supervisors. The Em-
ployer contends that the six-named individuals are "leadmen" or
"working foremen" possessing no supervisory attributes within the
statutory definition.
Gehrig and Hildebrand are skilled employees who spend part of
their time setting up machines for other employees in their depart-
ments. The production superintendent, however, assigns work to
In the absence of exceptions thereto, we adopt pro forma the Regional Director's
recommendation that objection No 3 be overruled
208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such other employees and transfers them from department to depart-
ment as work requires.
Hawkins is assigned to the Tufllex department where he works nor-
mally with only one other employee. Fraizer, who has a helper, un-
loads trucks and boxcars and moves stock within the plant. Steil, a
shipping clerk, prepares bills of lading, writes up packing slips, and
makes loading arrangements. Semph, who usually works alone, per-
forms maintenance work throughout the plant.
The Regional Director found that none of the six employees chal-
lenged by the Union has authority to hire, fire, lay off, discipline,
suspend, or recall employees, or to make any effective recommendations
concerning such action. The Regional Director's findings further
reflect that none of the six responsibly directs other employees in a
manner requiring the use of independent judgment. Notwithstanding
such findings-to which the Union has not excepted-the Regional
Director concluded that the employees in question were "clothed with
apparent authority to speak for management" and on that basis found
them to be supervisors. We do not agree. As the six employees do
not possess any of the indicia of supervisory authority as defined in
Section 2(11) of the Act, we find that they are not supervisors. We
shall, therefore, overrule the challenges to their ballots and direct
that their ballots be opened and counted, and that a revised tally of
ballots be served upon the parties.
The objections: The Regional Director recommended that the elec-
tion be set aside on the basis of objection No. 1, because he found that
the Employer had made material misrepresentations on the eve of the
election. He based that finding upon literature issued by the Em-
ployer, as well as oral statements by its managerial and supervisory
personnel which in effect denied the Union's claim that during bargain-
ing prior to the filing of the instant petition the Union had reached
agreement with the Employer upon certain contractual provisions.
In its exceptions, the Employer alleges in substance that there was no
misrepresentation since, so it asserts, there had been no negotiated
agreement authorized by or binding on it with respect to the con-
tractual provisions in question. In view of these circumstances we
believe that an issue of fact is raised at least in part with respect to
objection No. 1 warranting a hearing for purposes of resolving the
factual conflict.
We also find that objection No. 2 raises an issue of fact, except for
that part of the objection concerning alleged statements by Gehrig to
fellow employees. The Regional Director found that Gel rig's state-
ments, if made, were objectionable because they were made by an in-
dividual whom he found to be a supervisor. However, as we have
K. W. MUTH COMPANY, INC. 209
found that Gehrig, like the other challenged individuals, is not a
supervisor, his statements do not constitute election interference.2
For this reason, we likewise do not adopt the Regional Director's
recommendation that a hearing be held with respect to objection No. 4
as it is confined to alleged statements by three of the challenged
employees.
Accordingly, we shall direct that if the revised tally of ballots dis-
closes that the Union has not received a majority of the votes cast, a
hearing be held with respect to objections Nos.1 and 2 except as it con-
cerns Gehrig's conduct.
[The Board directed that the Regional Director shall, within 10
days from the date of this Decision, open and count the ballots of
Gehrig, Hildebrand, Hawkins, Fraizer, Steil, and Semph and serve
upon the parties a revised tally of ballots. If the tally discloses that a
majority of the valid ballots have been cast for the Union, the Regional
Director shall issue the appropriate certification of representatives.
In the event the tally shows that the Union has failed to receive a
majority of the valid ballots, the Regional Director is directed to pro-
ceed with a hearing as hereinafter provided.
[The Board ordered that, in the event the Union fails to receive a
majority of the valid ballots, a hearing be held before a Hearing
Officer to be designated by the Regional Director to resolve the issues
with respect to objections Nos. 1 and 2 except as it concerns Gehrig's
conduct.
[The Board further ordered that the Hearing Officer serve upon
the parties a report containing resolutions of the credibility of wit-
nesses, findings of fact, and recommendations to the Board as to the
disposition of the said objections. Within 10 days from the date
of issuance of such report any party may file with the Board in Wash-
ington, D.C., an original and six copies of exceptions. Immediately
upon the filing of such exceptions, the party filing the same shall serve
a copy upon each of the other parties, and shall file a copy with the
Regional Director. If no exceptions are filed, the Board shall adopt
the recommendations of the Hearing Officer.
[The Board further ordered the above-entitled proceeding be re-
ferred to the Regional Director for the Thirteenth Region for the pur-
pose of opening and counting the challenged ballots and, if necessary,
conducting a hearing.]
2 Pattsfield Shoe Company, 119 NLRB 1067.
734-070-64-vol. 145-15