Cherokee Brick and Tile Co.

National Labor Relations Board - Board Decisions

Aug 14, 1952

100 N.L.R.B. 612 (N.L.R.B. 1952)

612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Petitioner has made an adequate showing of interest in an island-
wide unit, we shall direct an election in the more comprehensive unit.
The following employees of the Employer constitute a unit appro-
priate for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act:
All production and maintenance employees of the salt mine and
plant, the chemical plant, and the village services division, including
laboratory employees,' but excluding laboratory technicians, office and
clerical employees,5 professional employees and supervisors as de-
fined in the Act.
[Text of Direction of Election omitted from publication in this
volume.]
4 A question was raised at the hearing as to the unit placement of laboratory employees.
These employees perform daily tests that are essentially routine, unlike the laboratory
technicians, who carry on research under a chief chemist's direction. We find, contrary
to the Employer's contention, that the laboratory employees are neither technical nor
professional employees, and, accordingly , we shall include them in the unit.
5 In accordance with the agreement of the parties, we shall exclude clericals who, though
employed in the plant, exclusively keep records or do similar clerical work.
CHEROKEE BRICK AND TILE COMPANY and MIDDLE GEORGIA LOCAL
No. 843, INTERNATIONAL UNION OF MINE, MILL AND SMELTER WORK-
ERS, PETITIONER. Case No. 10-RC-1638. August 14, 1952
Supplemental Decision and Amended Description of the Unit
On March 4, 1952, the Board issued a Decision and Direction of
Election in the above-entitled proceeding. Thereafter, on March 17,
1952, the Petitioner filed a motion for reconsideration of the aforesaid
Decision with respect to certain disputed classifications I of employees
whom the Board, on the basis of uncontradicted testimony, found to
be supervisors as defined in the Act. The Board, on March 21, 1952,
denied the Petitioner's motion without prejudice to the Petitioner's
right to challenge the ballots of the individuals in these categories at
the election.
An election was held and the Board, by its Regional Director for the
Tenth Region, on April 3,1952, issued a certification of representatives
in which the Petitioner was certified as the duly designated representa-
tive of a unit of production and maintenance employees of the Em-
ployer. On April 11, 1952, the Petitioner filed a "Petition to Recall
and Amend Certification of Representatives and to Amend the Deci-
sion and Direction of Election herein and for other relief." There-
' The disputed classifications comprise the clay storage shovel operator and foreman,
bead setters , head dryermen , head transfer men, pug mill operators , head kiln burners at
plant No 3 , and head loaders.
100 NLRB No. 100.
CHEROKEE BRICK AND TILEt COMPANY 613
after, the Board, on April 30, 1952, ordered that the record be
reopened and that the case be remanded to the Regional Director for
the Tenth Region for further hearing for the purpose of determining
whether or not employees in the classifications in question are super-
visors as defined in the Act.
In accordance with the Board's order, a further hearing was held
on May 21 and 23, 1952, before Jerrold B. Sindler, hearing officer.
The hearing officer's rulings made at the hearing are free from preju-
dicial 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].
After due consideration and upon the entire record in this case,
the Board makes the following revised findings concerning the super-
visory status of the employees in question.
Head loaders: The head loaders, accompanied in each instance by
two to three other employees, unload brick from kilns, package brick
and tile, and load brick and tile in railway cars or trucks, which latter
duty requires that they exercise care to load only good quality brick
and tile. In the performance of these duties, the head loaders receive
instructions from their superiors concerning the work to be done.
They thereafter transmit these instructions to the employees working
with them and see that the work is performed in a proper manner.
However, if any of the employees perform their tasks improperly,
are absent from work, complain about working conditions, or violate
any of the company rules, it does not appear that the head loaders
may take any action with respect thereto, other than report to a super-
visor the conduct of such employee. Head loaders receive the same
rate of pay as do the employees working with them 2 Moreover,
although head loaders sometimes work alone due to the fact that the
employees with whom they work are not steadily employed, both
loaders and their helpers perform essentially the same tasks.
Head setters : These employees, together with three or four addi-
tional employees who work with each head setter, set green bricks in
kilns. Each head setter is told by his respective supervisor, in the
words of one witness, "what brick to set, where to set them, and how to
set them." These instructions are passed on by the head setter to the
employees in his crew.
Both the head setters and employees who work with them are paid
on a piece-rate basis . However, the head setters receive approxi-
mately 10 cents a day more than the other employees. Although head
2 Although one head loader testified that he received 30 minutes extra pay per day,
amounting to approximately 5 cents per hour more than that received by the employees
working with him, the Employer stipulated that head loaders are paid at the same rate
as employees in their respective groups
614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
setters turn in checks which are used to keep track of production for
employees in the crews, they do not, with the exception of reporting
absences or instances of men leaving work early, keep a record of
hours of work for each crew.
Pug mill operators : Pug mill operators, who are stationed at the
pug mill, watch the clay coming into the pug mill, adjust the temper of
the clay, and see that the proper mixture of clay is maintained. The
pug mill is fed by a crew of approximately nine employees, consisting
of, in addition to the pug mill operator, vat men, cutter or machine
men, off bearers, and clean-up-men. As part of his duties as members
of the crew, the pug mill operator signals a vat man to increase the
water flow if the clay is too dry, or to cut off the water if the clay is too
soft. If there are too many roots in the clay, the operator will tell the
foreman about the condition, and the foreman will assign a man to
pick roots.
Head dryermen: The head dryermen are in charge of the operation
of the dryers, under the direction of the mill foremen, whom the par-
ties acknowledge are supervisors. It is the duty of head dryermen to
see that the proper heat is maintained on the dryer and that the mate-
rial coming from the mill is placed in the proper tunnels. Each head
dryerman is generally assisted in the discharge of his duties by two
employees who perform the same work as the head dryerman. The
record does not indicate that the head dryermen give detailed direc-
tions to the dryermen. The head dryermen average approximately 1
dollar more per week in pay than the employees who work with them.
Head transfer men: These employees are responsible for seeing that
the material being transferred from the mill to the dryer is placed in
the proper dryer tunnels and that empty dryer cars are kept ahead of
the mill crew at all times. They must also see that the tram and trans-
fer cars are kept in good condition and that all defects are reported to
each superintendent. Two employees who work with each head trans-
fer men, perform the same work as that performed by the head trans-
fer men. Both the head transfer men and the employees who work
with them receive the same hourly wage.
The parties stipulated that none of the employees in the disputed
classifications set forth above have the authority to hire, lay off, recall,
promote, discharge or reward employees.
Although the Board previously found that the employees discussed
above were supervisors, the Board based its finding on the uncontra-
dicted testimony of the Employer's executive vice-president who testi-
fied that head loaders exercise independent judgment in responsibly di-
recting the work of the employees under them, and that head setters.
pug mill operators, head dryermen, and head transfer men, effectively
recommend the hire and transfer of employees. Upon reappraising
this testimony together with additional evidence admitted at the sup-
CHEROKEE BRICK AND TILE' COMPANY 615
plemental hearing, we find that such testimony is inconsistent with
other evidence in the record and is therefore not entitled to controlling
weight on the issues presented.
It is, of course, true that the Employer has, during the pendency
of the present proceeding advised all the employees in the above
named classifications that they are to exercise certain duties of a
supervisory nature.3 However, the timing of the alleged delegation
of supervisory authority compels us to scrutinize closely the sur-
rounding factors to determine whether or not supervisory authority
was in fact delegated to the employees concerned .4 Thus, at the sup-
plemental hearing, the employees in the classification of head loaders
testified that not until approximately the date of the election were
they told that they had authority to direct he work of others; sim-
ilarly, the employees in the classifications of head setter, pug mill
operator, head dryerman, and head transfer man testified that, apart
from the recent notification by the Employer, they were never told
that they had authority effectively to recommend the hire, discharge,
or transfer of employees. All these employees testified that their
work or duties had not changed since October 1, 1951." Although
the fact that the Employer has recently notified the employees in
question that they have certain supervisory powers is evidence that
they occupy the position and status of supervisors, the record as a
whole, including (1) the position of these employees in the Em-
ployer's supervisory hierarchy,6 (2) the decrease which would result
in the ratio between supervisors and rank-and-file employees,? (3)
the absence of any apparent need for additional supervisors," (4) the
fact that these employees have not, since that alleged advancement,
been accorded the usual privileges of supervisors,-9 and (5) the further
fact that the Employer's alleged delegation of authority has had
8 The Employer has given to each of the employees concerned written job descriptions in
which the several employees are told, among other things, that they have the duty to
request the transfer or discharge of inefficient crew members and to recommend disciplinary
action when necessary.
United States Gypsum Company, 95 NLRB No 128.
The petition in the present proceeding was filed on October 10, 1951.
e The record discloses that these employees are responsible to foremen of recognized
supervisory standing below the rank of plant superintendents.
7 It appears that the addition of the 28 employees concerned to the Employer's super-
visory staff would practically double the number of supervisors on such staff which pres-
ently consists of 24 individuals of admittedly supervisory rank. See Company's Exhibit
No. 2 (November 29, 1951).
8 The Employer's representative testified (November 29, 1951) that the Employer' s busi-
ness had been going down steadily for the last 90 days and that any improvement in busi-
ness was speculative and depended upon the lightening of Government restrictions. The
witness further testified that the Employer did not contemplate any change in the number
of its employees within the next 60 days.
9 A number of the employees concerned testified that they have not attended supervisory
meetings. There is nothing in the record to indicate that, upon being notified of their
alleged supervisory status, these employees were accorded additional privileges equal to
those of other admitted supervisors. Cf. The Spicer Manufacturing Division, 95 NLRB
No. 115.
616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
little if any effect upon the duties and compensation 1e of these em-
ployees, persuades us that supervisory authority on the part of these
employees in the manner and to the extent claimed by the Employer
does not exist 11 We find, accordingly, that the head loaders, head
setters, pug mill operators, head dryermen, and head transfer men
have not, by the Employer's recent action, been given the status of
supervisors within the meaning of the Act. We shall include them
in the unit found appropriate in our original Decision and Direction
of Election and,shall order that the unit description be amended
accordingly.
There remains for consideration the status of certain employees
as to whom we reaffirm our finding that they are supervisors, as more
fully set forth below, but for reasons different than those relied upon
in our original Decision and Direction of Election.
The clay storage shovel operator and foreman: This employee,
Churchwell, who reports to the plant superintendent of plant No. 1,
operates an electric or Diesel shovel in clay storage, recovering the
clay from piles and placing it in the feeder to go on the conveyor belt
which goes to plants Nos. 1 and 3. It is his duty to watch the clay,
ascertain whether or not the clay is in proper mixture, and maintain
a flow of clay to the two plants. He also performs routine mainte-
nance work on the machinery in his care. There are six employees
under Churchwell: a grinder operator, root picker, shoveler , janitor,
oiler, and shovel operator. Although these employees know their
jobs well, Churchwell can assign work to these employees, tell them
what he wants done, and how to discharge their duties without re-
ceiving previous instructions himself. Churchwell testified without
contradiction that he was advised he could recommend the transfer
of employees, and cited an instance where a root picker was trans-
ferred pursuant to his recommendation and replaced by another
employee. Accordingly, as it appears that the clay storage shovel
operator and foreman can effectively recommend the transfer of em-
ployees working under him, and has exercised such authority, we find
that he is a supervisor as defined in the Act 12
Head kiln burners at plant No. 3: These employees, who report
directly to the plant superintendent, see that brick kilns are properly
10 One employee testified that on the occasion of his recent notification, be was told by
the Employer 's executive vice president that he would be paid an extra 30 minutes per day
for being a "supervisor."
11 United States Gypsum Company, supra The Employer contends that its recent noti-
fication to the employees confirmed and clarified an existing supervisory authority. How-
ever, the Employer appears to have considered these employees to be nonsupervisory
through its acceptance of the contract unit in which these employees were included and
from which supervisors generally were excluded . Because of this fact and because of the
Employer 's previous failure to inform these employees regarding their alleged authority,
we see no basis for concluding that such authority existed prior to the Employer's recent
notification . See Geo. Knight & Co., 93 NLRB 1193; cf. The Baltimore Transit Company,
92 NLRB 688.
11 See Scranton Battery Corporation, 89 NLRB 608.
CHEROKEE BRICK AND TILE COMPANY 617
pulled and properly charged on schedule, and that firing schedules
and dxyer heat schedules are maintained as set forth by the plant super-
intendent. Each head kiln burner has a crew of one to two employees,13
with whom he performs such manual labor as loading bricks into the
kiln.
The head kiln burners change shifts every 2 months, and rotate
through all shifts during an 8-month period. The superintendent of
plant No. 3, who leaves the plant at approximately 5 p. m. every day,
has advised the head kiln burners on the night shifts that they are in
complete charge and control over plant No. 3 when he is not at the
plant. As a result of this arrangement, it appears that during a large
part of the 2: 30 p. m. shift and during the entire 11: 30 p. m. shift,
the head kiln burners are in charge of this plant ; and that for 4 months
out of an 8-month rotation period, head kiln burners discharge their
duties largely in the absence of the plant superintendent. In view,
therefore, of the fact that head kiln burners are in charge of plant
No. 3 at night, we conclude that during that time the head kiln
burners substitute in all respects for the plant superintendent who is
admittedly a supervisor within the meaning of the Act. As head kiln
burners are acting as supervisors for a fixed and substantial period
during the regular course of their employment, we find that they are
supervisors within the meaning of the Act 14
We shall amend the description of the unit by specifically including
the employees in those classifications found to be nonsupervisory and
excluding those employees in other classifications found to be
supervisory.
Amended Description of Unit
IT IS HEREBY ORDERED that the unit description in the Board's De-
cision and Direction of Election in this proceeding and in the certifica-
tion based thereon be, and it hereby is, amended to read as follows :
All production and maintenance employees at the Employer's plant
No. 1 (Old Cherokee), plant No. 2 (Bibb plant), and plant No. 3
(The New Plant), all of which are located in Bibb County, Georgia,
and at the clay mines serving such plants, including the head loaders,
head setters, pug mill operators, head dryermen, and head transfer
men, but excluding office and clerical employees, professional em-
ployees,15 executives, guards,'6 and all supervisors as defined in the
Act17
13 In addition to the one employee who works with each kiln burner , the dryer man on
each of the night shifts also reports to the head kiln burner.
19 Danbury & Bethel Gas & Electric Light Co., 97 NLRB No. 184 , and cases cited therein.
u Excluded from the unit under this category , in accordance with the agreement of the
parties, is the ceramic engineer.
16 Excluded from the unit under this category are the watchmen at plant No 1 and
plant No 2 Macungie Silk Company, 75 NLRB 741.
1' Excluded from the unit under this category are the clay storage shovel operator and
foreman. and the head kiln burners at plant No. 3.