Earle M. Jorgensen Co.

National Labor Relations Board - Board Decisions

Mar 8, 1979

240 N.L.R.B. 1296 (N.L.R.B. 1979)

1296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Earle M. Jorgensen Company and United Steelwork-
ers of America, AFL-CIO, Petitioner. Case 23
RC-4663
March 8, 1979
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY MEMBERS JENKINS, MURPIIY. ANI) TRI:ESDAI.i
Pursuant to the provisions of a Stipulation for Cer-
tification Upon Consent Election, an election by se-
cret ballot was conducted on July 27, 1978, among
the employees in the appropriate unit. Upon the con-
clusion of the election, a tally of ballots was fur-
nished to the parties. which showed that of approxi-
mately61 eligible voters, 25 cast ballots for the
Petitioner, 23 cast ballots against the Petitioner, 6
votes were challenged, and none were void. The chal-
lenged ballots were sufficient in number to affect the
results of the election. No objections to the election
were filed. On August 17, 1978, the Regional Direc-
tor, concluding that the challenges to the ballots
raised substantial and material issues of fact, ordered
that a hearing be held before a duly designated hear-
ing officer for the purpose of taking evidence on the
issues raised by the challenged ballots. Thereafter, a
hearing was held before Hearing Officer Larry D.
Smith of the National Labor Relations Board. The
Hearing Officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed. On
October 16, 1978, the Hearing Officer issued his re-
port and recommendations on the challenged ballots.
The Petitioner filed timely exceptions and a support-
ing brief to the Hearing Officer's report, and the Em-
ployer filed an answering brief in opposition to
Petitioner's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the entire record in this
case and makes the following findings:
1. The Employer is engaged in commerce within
the meaning of the Act, and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The labor organization involved claims to rep-
resent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of certain employees of the
Employer within the meaning of Sections 9 (c)( 1) and
2(6) and (7) of the Act.
4. The parties stipulated, and we find. that the fol-
lowing employees of the Employer constitute a unit
240 NLRB No. 186
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All production and maintenance employees em-
ployed by Earle M. Jorgensen Company at its
facility located at 5311 Clinton Drive, Houston,
Texas; but excluding all office clerical employ-
ees, professional employees. guards and super-
visors as defined in the Act.
5. The Petitioner challenged the ballots of working
foremen Filbert Barrera, Ted Dodd, Howard Hales,
Marlyn Pierce, Martin McGee, and Louis Wentzel
on the grounds that they were supervisors.' The
Hearing Officer, though noting that the record dis-
closes numerous instances suggesting that these indi-
viduals "exercise the type of authority necessary to a
recommendation that they are supervisors," never-
theless concluded that they did not possess the requi-
site authority or exercise the type of independent
judgment supporting a supervisory finding. The Peti-
tioner excepts to this conclusion, and we find merit
in its position.
The Employer is in the business of operating steel
service centers nationwide for the warehousing and
distribution of steel products. Its Houston facility,
which is alone involved in this proceeding, is divided
into nine bays, each with its own crew of employees
and each handling particular types of steel products.
Working foremen are assigned to the bays. Thus Mc-
Gee is the working foreman of bays I through 3:
Dodd, of bays 4 and 5; Wentzel of bays 6 and 7; and
Hales, general working foreman of bays 8 and 9.2
Pierce and Barrera are the working foremen for all of
the bays on the night shift. The foremen spend most
of their time doing the same kind of work as the
conceded unit employees. However, it also appears
that they oversee the work of, and daily assign jobs
to, the employees in their bays. The)y have on occa-
sion moved employees from one bay to another.
They investigate on-the-job accidents and make ap-
propriate recommendations to management, and
they select employees for overtime when manage-
ment has determined that overtime is necessary. The
foremen receive higher wages than the employees in
their crews, attend supervisors' meetings, and on the
night shift are the senior persons present during the
last 6-1/2 hours of the shift. The foregoing does sug-
gest, as the Hearing Officer states, that the foremen
possess supervisory status.
However, their position in that regard is made un-
ambiguously clear, as the record also shows that a
.1Al he , orking forenen have similar responsibililles and job functions
and thus are Ireated together in his decision.
lhere i. il least ith re.peet Ito matters here under cnsideratin. no
distinllciIn helwen a working foreman and general working foreman.
EARLE M. JORGENSEN COMPANY 1297
foreman has issued a warning slip to an employee for
excessive absenteeism; that the foremen have been
instructed to issue certain verbal reprimands; and
that they handle grievances at the primary, albeit in-
formal, first level. With respect to disciplinary action,
the Employer claims that the foremen act wholly as
conduits for transferring warnings or reprimands.
The record shows to the contrary: a foreman has on
one occasion, without specific instructions from
higher management. issued a reprimand for excessive
absenteeism to an employee, and foremen have been
instructed to reprimand employees for improper han-
dling of forklifts. As for the foremen's handling of
grievances, the Employer seeks to minimize its conse-
quence on the grounds that the foremen's role in this
regard is not incorporated into the "formal" griev-
ance procedure. But the record shows that employees
are encouraged to take work-related problems to
their foreman, that the foremen are authorized to set-
tle such problems, and that they do settle some 10 to
25 percent of the employee complaints brought to
them, thereby avoiding recourse to the formal griev-
ance procedure. Thus the foremen clearly can and do
handle grievances and play an active and consequen-
tial part in their resolution. The fact that their role in
this regard is not set forth as part of the Employer's
formal grievance procedure is irrelevant.
In view of all the foregoing, we find that the fore-
men do direct the employees in the crews assigned to
their particular bays, that they have the authority to
issue on their own discretion certain reprimands, and
that they play a substantial and important role in
handling and resolving grievances on behalf of the
Employer. Consequently. we find, contrary to the
Hearing Officer, that the working foremen and gen-
eral working foremen are supervisors and ineligible
to vote. We, therefore, sustain the challenges to their
ballots, and, as the revised tally of ballots shows that
Petitioner has received a majority of the valid votes
cast, we shall certify it as the bargaining representa-
tive of employees in the appropriate unit.
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots have been cast for the United Steelworkers of
America, AFL-CIO, and that, pursuant to Section
9(a) of the Act, the foregoing labor organization is
the exclusive representative of all employees in the
following appropriate unit for the purposes of collec-
tive bargaining with respect to rates of pay, wages,
hours of employment, and other terms and condi-
tions of employment:
All production and maintenance employees em-
ployed by Earle M. Jorgensen Company at its
facility located at 5311 Clinton Drive, Houston.
Texas: but excluding all office clerical employ-
ees, professional employees, guards and super-
visors as defined in the Act.
EARLE M. JORGENSEN COMPANY