Detroit Association of Plumbing Contractors

658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD visors within the meaning of the Act and accordingly exclude them from the unit. In view of the foregoing, we find that all employees of Montgomery Ward & Co., Incorporated, employed in its retail store located in two establishments, at Liberty Plaza, Belmont Avenue, and at Boardman Plaza, Boardman-Canfield Road, Youngstown, Ohio, but excluding the store manager, the assistant store manager, group supervisors, the credit department manager, the catalog managers, the repair service manager, and all guards, professional employees, and supervisors as defined in the Act constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. [Text of Direction of Election omitted from publication.] Detroit Association of Plumbing Contractors and James P. Duffy Mechanical Contractors Association of Detroit and James P. Duffy Farrington Company and James P. Duffy Goss Mechanical Contractors Company and James P. Duffy J. W. Partlan Company and James P. Duffy Stanley Carter Company and James P. Duffy Donald Miller Company and James P. Duffy Johnson Service Company and James P. Duffy United Engineers and Constructors, Inc. and James P. Duffy. Cases Nos. 7-CA-1709,7-CA-1710,7-CA-1784,7-CA-1785,7-CA- 17869 7-CA-1787, 7-CA-1788, 7-CA-1792, and 7-CA-1793. July 31,1961 SUPPLEMENTAL DECISION AND ORDER On March 31, 1960, the Board issued its original decision 1 in the above-entitled proceeding, finding that two Employer Associations and a number of individual employers had interfered with the internal affairs of United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, by permitting supervisors to hold union office, vote in union elections, and engage in negotiations with the Respondent Em- ployer Associations on behalf of the Union, in violation of Section 8(a) (2) and (1) of the Act. a Detroit A8sociation of Plumbing Contractors, 126 NLRB 1381. 132 NLRB No. 40. DETROIT ASSOCIATION OF PLUMBING CONTRACTORS 659 On January 19, 1961, the United States Court of Appeals for the District of Columbia Circuit issued its decision 2 in which it substan- tially enforced the order of the, Board, but remanded the case to the Board for reconsideration with respect to one supervisor, McDonald, "to determine whether in the light of this opinion, his participation, by attending meetings and voting, is improper in view of his position in the respondent company." A review of the record reveals that McDonald is employed by the Goss Mechanical Contractors Company • as a general heating foreman with some 40 to 60 men under. him including 6 to 10 foremen. He is admittedly a supervisor and, has been employed in his present capacity for 1 year, and•prior to that had been a job foreman for 3 years. He is directly responsible to the Company's president and earns approxi- mately $34 more per week than a journeyman pipefitter. He is not a part of the bargaining unit although the Company makes payment to various union funds on his behalf. There is no indication in the record that his position or job title has changed, although the number of men he supervises appears to fluctuate with the progress of the job. In remanding as to McDonald, the court indicated,' inter alia, that in determining whether asupervisor's union activity was violative of the Act, the Board should consider the nature of the supervisory po- sition with particular reference to Section 2(11) ' of the Act which defines supervisors, the apparent permanence of the supervisory posi- tion, and the extent to which the position is properly included in or excluded from the bargaining unit. With respect to Section 2(11) and the nature of the supervisory position, it is clear that McDonald was not only a supervisor within the meaning of that subsection but was such a high-ranking supervisor that he was directly responsible to the Company's president. Regard- ing the permanency of such position, we note that McDonald was not a "transitory" supervisor 5 and apparently had not been employed other than as a supervisor for the last 4 years. As a general foreman, he was properly excluded from the bargaining unit which was limited to journeymen and apprentices. After due consideration of the guidelines enunciated by the court, 2 Local 636 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO v. N.L R.B. (Detroit Assn. of Plumbing Contractors ), 287 F. 2d 354. 3 Local 636 of the United Association of Journeymen, etc. v. N L R.B., supra, at 3162 4 Section 2 ( 11) states : "The term 'supervisor ' means any individual having authouty, 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 fore- going the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment." 5 This does not appear to be a case of an individual who was a job foreman one week and a journeyman the next, but rather a situation in which a job foreman has been ele- vated to the job of general heating foreman and who has retained such position for a year. 614913-62-vol 132-43 660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD we conclude that McDonald's voting in union elections constitutes interference in the internal affairs of the Union and is violative of Sec- tion 8(a) (2) and (1) of the Act.e We therefore affirm our original finding and order' respecting the voting activity of McDonald and the responsibility therefor of Goss Mechanical Contractors Company, his employer. MEa18ER BROWN took no part in the consideration of the above Sup- plemental Decision and Order. Nassau and Suffolk Contractors' Association, Inc., and its members, 118 NLRB 174, 184, 187; Anchorage Businessmen's Association, Drugstore Unit, and its Member Empioyers, etc., 124 NLRB 662. '' Detroit Association of Plumbing Contractors, 126 NLRB 1381, at 1384-1386. National Welders Supply Co., Inc., Lee Associates , Inc., Investi- gations, Inc., R. E. Lee, and W. B. Crider, Jr. and International Union of Operating Engineers, Local No. 465, AFL-CIO. Cases Nos. 11-CA-1458 and 11-CA-1662. August 2, 1961 DECISION AND ORDER On March 21, 1961, Trial Examiner Thomas F. Maher issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report attached hereto. Thereafter, the Respondents filed exceptions to the Intermediate Report and a brief in support thereof. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with these cases to a 'three- member panel [Chairman McCulloch and Members Leedom and Brown]. The Board has reviewed the rulings , of the Trial Examiner made at the hearing and finds that no prejudicial error- was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the cases, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations, with the following exceptions. There are five Respondents in these cases, National Welders Supply Co., Inc.; Lee Associates, Inc.; Investigations, Inc.; R. E. Lee; and W. B. Crider, Jr. The Trial Examiner found, as the complaint alleged, that the five Respondents violated Section 8 (a) (1) by their conduct with respect to employees of National Welders Supply, Inc., and applicants for employment with National Welders Supply, Inc., as set forth in the Intermediate Report, including (1) interrogation concerning union membership, interest, or activity; (2) threats of dis- 132 NLRB No. 39.