Marinette Marine Corp.

MARINETTE MARINE CORPORATION 627 Marinette Marine Corporation and Robert Bell, Donald V. Rhode and Duane Ruggles, a Committee of Individuals International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers, AFL-CIO, and its Local Lodge 6% and Robert Bell, Donald V. Rhode and Duane Ruggles, a Committee of Individuals Cases 30-CA-817 and 30-C B-205 November 18, 1969 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND ZAGORIA On February 19, 1969, Trial Examiner Henry L. Jalette issued his Decision in the above-entitled proceeding, finding that the Respondent Employer had engaged in and was engaging in certain unfair labor practices alleged in the complaint and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also recommended that allegations of certain other unfair labor practices be dismissed. Thereafter, the Respondent Employer and the General Counsel filed exceptions to the Trial Examiner's Decision and supporting briefs, and the Respondent Unions filed cross-exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to 'a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudical error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the i exceptions, the cross-exceptions, the briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, as modified herein. George Mueller has been president of the Respondent Local for 5 years ,and, as such, appoints members of the grievance and bargaining committees and personally participates in contract negotiations and the processing of grievances. At the same time, Mueller is employed by the Respondent Employer in a position which, according to the findings of the Trial Examiner, is supervisory within the meaning ; of Section 2(11) of the Act. Accordingly, the Trial Examiner concluded that by the participation of its supervisor, Mueller, iii the internal affairs of .the Respondent Local, the Respondent Employer has violated Section 8(a)(1) and (2) of the Act. We do not agree, however, that Mueller is a supervisor within the meaning of the Act. Mueller is one of four "senior supervisors" who, the collective agreement states, "shall be responsible to their respective foreman for fulfilling the duties assigned to them and shall supervise their work force accordingly." The Trial Examiner considered this contractual job description, along with Mueller's wearing of a red hat in the past, to be "indicia of supervisory status." In addition, he cited Mueller's higher pay and the fact that some employees consider Mueller to be a "boss" as "factors tending to support" a finding of supervisory status. We do not agree with the Trial Examiner that this limited evidence is sufficient to support such a finding. In the industry involved, the term "senior supervisor" appears to have antecedents in the term "leadman," while the red hats, which were worn only by - admitted supervisors and "senior supervisors," have not been used since the, summer of 1968. Additionally, there is no evidence that the employees were told that the hats signified anything more than experience on the job. The higher wage, rate for "senior supervisors" was established through collective bargaining, is specified in the contract, and is only 15 cents more per hour than the rate for "junior supervisors," who are not alleged to be statutory supervisors. In fact, so-called supervisory positions, both senior and junior, are fully covered by the collective agreement. As they become vacant, the contract requires that they be posted and, other things being equal, filled according to seniority. Foremen, on the other hand, are excluded from coverage by the agreement, are specifically enjoined from using tools, and are therein "charged with carrying out the Company's policies." The other factors cited by the Trial Examiner. in support of his finding are similarly inconclusive. While two employees did testify, in conclusionary language, that they considered Mueller to be in charge of-the plate shop, each also indicated an awareness of the distinction between Mueller and the foremen. In addition, Mueller does not attend management meetings, and punches a timeclock. The Trial Examiner, while noting that Mueller has no authority to hire, suspend, layoff, recall, promote, discharge,, reward, or discipline employees, found nevertheless that Mueller has the authority and responsibility to make effective recommendations concerning conditions of employment The evidence in support of this finding is not persuasive. The record does not disclose any specific incidents wherein Mueller has made such recommendations, and this fact is particularly significant when it 'is considered that Mueller has been a senior supervisor since 1953. The Trial Examiner relied on an affidavit in which a witness stated that supervisors have informed foremen that employees are not working out, but the affidavit mentions 'no specific instances, and the Trial Examiner could only conclude that the supervisors 179 NLRBNo. 102 628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD are "expected" to perform the duty. As' to an unspecified number of instances in which Mueller has gone to the foreman for overtime help, and as to a single incident where time off was granted by the personnel manager because it was "alright with George (Mueller)," it is clear that either the foreman or the personnel manager was vested with the full decision making authority, Mueller's role being perfunctory. We conclude, therefore,,- that Mueller does not make recommendations affecting conditions of employment in a manner contemplated by Section 2(1 1) of the Act The final, and perhaps central finding of the Trial Examiner is that Mueller must exercise independent judgment in directing the work force in the plate shop. Such judgment is required, the Trial Examiner found, in making the initial assignments of work, monitoring its progress, determining which operations are to have priorities, and in- switching operators from one job to another. Nevertheless, all the work in the shop is scheduled on sheets which contain detailed instructions as to which machine and which materials are required at each step of the operation. Moreover, the record indicates that the priority of jobs is determined by higher management and enforced by the project foremen, and that any changes made by Mueller in job assignments are temporary and entail no more than a change in machine or cutting sheet. Mueller must keep close watch on the progress of the work, but this is done as part of his record-keeping function, rather than as a supervisory function, and Mueller does not inspect the work before it goes out of the plate shop. In addition, the specific assignment of -project foreman Newlin to supervise the plate shop, the periodic presence of other project foremen in the shop whose duties are supervisory, and the recent assignment of a full-time foreman, Kuran, to the shop, in which from 15 to 25 employees perform a type of work which requires little supervision, seemingly leaves no part of the judgment-making sphere to Mueller. For the above reasons, and upon consideration of the record as a whole, we find that George Mueller is not a supervisor within the meaning of-the Act. Accordingly, we dismiss the allegations of the complaint premised upon his supervisory status ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, as herein modified, and orders that the Respondent Employer, Marinette Marine Corporation, M arinette, Wisconsin, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as amended below. 1. Delete paragraph l(c) of the Trial Examiner's Recommended Order. 2. Delete the second indented paragraph of the notice attached to the Trial Examiner's Decision. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE HENRY L JALETTE, Trial Examiner These cases were heard on November 13 and 14, 1968,' pursuant to a consolidated complaint issued on October 15, against Marinette Marine Corporation, hereinafter referred to as Respondent Employer, and against International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers, AFL-CIO, and its Local Lodge 696, hereinafter referred to separately as Respondent International and Respondent Local, and collectively as Respondent Union The complaint is based on a charge in Case 30-CA-817 filed on May 3, and a charge in Case 30-CB-205 filed on May 3 and amended on June 17 The charges were filed by Robert Bell, Donald V Rhode, and Duane Ruggles, who described themselves as a committee of individuals The complaint alleges that Respondent Employer violated Section 8(a)(1) of the Act by promulgating and maintaining an invalid union solicitation and distribution rule, and Section 8(a)(I) and (2) by recognizing, bargaining and contracting with Respondent Union when Respondent Union had as its officers individuals who are agents and supervisors of Respondent Employer The Respondent Union is alleged to have violated Section 8(b)(I)(A) of the Act by permitting 'agents and supervisors of the Respondent Employer to serve as representatives and agents of the Respondent Union Upon the entire record, including my observation of the witnesses and after due consideration of the briefs filed by the parties,14 make the following FINDINGS OF FACT I THE BUSINESS OF RESPONDENT EMPLOYER AND THE LABOR ORGANIZATIONS INVOLVED Respondent Employer is a Wisconsin corporation engaged in the shipbuilding industry with plants in' Marinette, Wisconsin, and Menominee, Michigan. During the year preceding issuance of complaint, Respondent Employer sold and shipped products valued in excess of $50,000 from its plant in Wisconsin to points outside the State of Wisconsin and during the same period purchased and received from points outside the State of Wisconsin goods and materials valued in excess of $50,000 The foregoing was admitted by Respondent Employer in its answer. In its answer, Respondent Union averred that it lacked information and knowledge ' of the commerce allegations of the complaint, this . plea, by operation of the Board's Rules and Regulations, Section 102 20, constituted a denial However, at a pretrial conference counsel for the Respondent Union indicated that despite the plea it was not contesting the Board's assertion of -jurisdiction over the Respondent Employer Accordingly, considering Respondent Employer's 'Unless otherwise indicated, all dates refer to the year' 1968 'Motion to dismiss made at the trial by Respondent Union on which I reserved ruling is disposed of in accordance with the findings and conclusions herein MARINETTE MARINE CORPORATION 629 admission, as well as the evidence adduced in the litigation of the substantive issues in this case indicating the nature and size of Respondent Employer's operations , I find that Respondent Employer is , and at all times material herein has been, an employer engaged in commerce within the meaning of Section 2 (6) and (7) of the Act I find that Respondent International and Respondent Local are'each of them labor organizations within the meaning of Section 2(5) of the Act Counsel I agree with the conclusion of the Trial Examiner in that case ' I am unable to see what conduct Respondent ' Local engaged in which could be characterized as restraint and coercion within the meaning of Section 8(b)(l)(A) The local officers, whether or not supervisors, were elected by the members of Respondent Local and it was not the Local which imposed them upon the membership I shall recommend that the complaint against Respondent Local be dismissed iI THE ALLEGED UNFAIR LABOR PRACTICES A. The Alleged 8(b)(1)(A) Violation At all times material herein, Respondent Local has been the recognized bargaining representative of Respondent Employer's employees in an appropriate production and maintenance unit, and, Respondent Employer and Respondent Local are parties to a collective-bargaining agreement covering the wages, hours and other conditions of employment of Respondent Employer's employees The agreement was signed by members of Respondent Local's negotiating committee on behalf of Respondent Local The Respondent International is neither a party to the agreement, nor have any of its officers signed it The gravamen of the complaint against the Respondent International and Respondent Local is that Respondent Union (which term is used in the complaint to signify Respondent International and Respondent Local) accepted recognition from , Respondent Employer although supervisors of Respondent Employer were officers and agents of Respondent Union The evidence indicates, however, that the alleged supervisors were officers of Respondent , Local only, specifically, president and recording secretary No officer or agent of Respondent International is alleged to have occupied any position with management or to have engaged in any act which would constitute an unfair labor practice. Accordingly, there is no basis, on which to predicate a finding that the Respondent International has been guilty of a violation of the Act and I shall recommend a dismissal of the complaint against it There is an additional ground for, dismissal of the complaint against -Respondent International, a ground which also dictates dismissal of the complaint against Respondent Local As noted earlier, the gravamen of the complaint against Respondent Union is solely and simply the fact that two of its officers are also supervisors of Respondent Employer within the meaning of the Act Despite a plethora of cases in which the Board has found that an employer violated- Section- 8(a)(2) of the Act by virtue of the fact that its supervisors participated in the affairs of a union or held office and were agents of the union, including the lead case on this principle,' I know of no case in which the,Board has held that as a corollary to such an employer violation the union violated the Act Without articulating his rationale, General Counsel cites Garment Workers' Union v N L R B (Bernhard-Altmann Texas Corp ), 366 U S 731, and Miranda Fuel Co, Inc 140 NLRB 181, 185-186, in support of a finding that Respondent Union violated the Act in the instant case I deem both cases inapposite In Ace Wholesale Electrical Supply Co , etc, 133 NLRB 480, 507, the Trial Examiner rejected a contention that a labor organization, dominated, assisted or supported by an employer, thereby violated Section 8(b)(1)(A) and (2) of the Act No exceptions were filed by the General B The Alleged Invalid No-Solicitation and Distribution Rule Among the conditions and rules of employment maintained by Respondent Employer are the following Rule 15: Distributing written or printed matter of any description on Company property, except the Union Bulletin Board unless approved by management. Rule 30: Vending, soliciting or collecting contributions for any purpose at any time on the _ premises, unless authorized by management For the first violation of Rule 15, the rules provide for discharge, for Rule 30, written warning, with discharge for a second offense. The rules were unilaterally adopted and are not part of the contract, although Respondent Union is aware of the rules and has the right to object to them, it has not done so The foregoing rules were adopted in 1965, and it is undisputed that they are still in existence and are embodied in the printed rules of Respondent Employer which are distributed to employees While there is no evidence that the rules have been invoked, there is also no evidence that employees have sought to exercise their statutory rights in this area Respondent Employer contends that the promulgation of the rules cannot be held to have. violated the Act since promulgation was made more than 6 months before filing and service of the charge I agree. Mason & Hanger-Silas Mason Co Inc, 167 NLRB No. 122 Respondent Employer also contends that the continued existence of an unenforced no-solicitation rule which does not expressly prohibit union activities is insufficient, basis for an 8(a)(1) finding N L R B v Shawnee Industries, Inc, 333 F 2d 221 (C.A 10). Since the rules prohibit distribution of printed matter "of any description" and soliciting "for any purpose" on company property, they must be deemed to include union solicitation and distribution of union literature As the no-solicitation rule applies to employees' nonworking - time, and the no-distribution rule is not limited to work areas, they are presumptively invalid Walton Manufacturing Company, 126 NLRB 679. In such circumstances, it is not for the General Counsel to show that the rule was illegally motivated, discriminatorily enforced or enforced at all Lexington Metal Products Company, 166 NLRB No 106 So, long as the rule is in existence the possibility of its application against employees engaged in union solicitation or distribution of union literature tends to coerce, restrain ' and interfere with employees in the exercise of Section 7 rights Pueblo Supermarkets, Inc , etc , 156 NLRB 654 The Board's decision in Shawnee Industries' is consistent with the foregoing, and I deem myself bound by it despite the refusal of the Court of Appeals to enforce the Board's order. Moreover, here there is no showing that Respondent Employer's intention 'Nassau and Suffolk Contractors Association , Inc , 118 NLRB 174 'See also Brittany Dyeing and Printing Corp, 126 NLRB 785 '140 NLRB 1451 630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was to limit the rules to activities other than union activities, and the conclusion of the Court in 'Shawnee was based on its finding that the maker's intent was to limit the rule to contributions." Where the rule is ambiguous, the risk of ambiguity must be held against the promulgator N L R B v Harold Miller, d/b/a Miller Charles & Co , 341 F 2d 870 (C.A. 2). Neither Rule 31 which indicates the existence of a union bulletin board (without indicating who may use it), nor Rule 32 which restricts participation in union activities on company property during working hours to the terms of the collective-bargaining agreement, warrants the inference that Rule 15 and 30 were not intended to apply to union activities. Rule 32 is itself ambiguous about the meaning of "on Company property during working hours " Finally, Respondent Employer avers in its brief that the rules in question have been amended to comport with the standards set forth in Stoddard-Quirk Mfg Co, 138 NLRB 615, and that, accordingly, considering the fact that any violation was unintentional, a remedial order is not warranted There is no representation, however, that employees have been informed of their rights. Such notification is an important function of a Board order, and I find that it would effectuate the policies of the Act to require Respondent Employer to cease and desist from the illegal act and to post an appropriate notice. C. The Supervisory Status of George Mueller and Norman Zieroth General Counsel contends that George Mueller and Norman Zieroth, , president and recording secretary respectively of Respondent Local, are supervisors within the meaning of Section 2(11) of the Act Mueller is "senior supervisor" in the plate shop and Zieroth is "senior supervisor" in the piping department Both are in the bargaining, unit and enjoy wages, hours, and other conditions of employment specified in the collective-bargaining agreement They are hourly paid, punch timeclocks, and enjoy no privileges not enjoyed by unit employees As indicated earlier, Respondent Employer is engaged in shipbuilding. At the time of the hearing, there were 327 employees in the bargaining unit On May 23, there had been 431 bargaining unit employees, and on April 6, there had been 506' Supervision of this work force proceeds from a vice president in charge of manufacturing, through project foremen, department or specialty foremen to senior supervisors, junior supervisors, and unit employees There are 5 project foremen,' 8 specialty or department foremen," 4 senior supervisors, and 15 junior supervisors The foremen, project or specialty, are admittedly statutory supervisors Respondent Employer and Respondent Union contend, however, that neither the senior supervisors, nor the junior supervisors, are statutory supervisors. The complaint did not allege that any of the junior supervisors were statutory supervisors, and only two senior supervisors were alleged so to be 10 - ' 'Compare Ferguson-Lander Box Co , 151, NLRB 1615 'Norman Newlin , Ken Mechalson, Gerald Newlin , William Parthie, and Don Wiltzius .Glen Belongie , Walter Bjork, William Dietrich , Scotty Bertrand, Lee Mrotek , Warren Klinke, Lewis England , and Rick Kuran 'These figures vary from time to time, but the variations do not affect the decision herein "At the trial, General Counsel was permitted to amend the complaint to The construction of a ship begins with the drawings on blueprints and the preparation of templates Then, raw materials have to be cut, jigs have to be built, and sub-assemblies prepared This is followed by main assembly with machinery and piping,' and outfitting Finally, there is launching and delivery. The construction of a given boat, or boats of an equal type, is the responsibility of a project foreman, who must "marry" the operations just described. This means he is required to oversee the progress of the work through several departments, including the plate shop and the piping department Although there are specialty foremen in charge of most departments (e.g , electrical foreman, welding foreman, sandblasting, painting, and material handling foreman), until about October 1968, there was no specialty foreman in charge of either the plate shop or the piping department Rather, Project Foreman Norman Newlin had the dual function of supervising a project and supervising the plate shop until October, when Foreman Rick Kuran was assigned over the plate shop There was no similar dual assignment for the piping department Respondent Employer sought to establish that project foreman Mechalson had the dual function of piping department foreman. However, Mechalson testified expressly that he had no relationship to the piping department other than as project foreman, and in an affidavit given by James Derusha during the investigation, he had stated there had been no piping foreman since January 1968 Employee Holmgree 'also testified he knew of no pipe shop foreman. Thus, Zieroth was the 'only individual with any apparent and continuing responsibility for the operation of the piping department From the blueprints. or drawings, Respondent Employer's engineering department prepares "cutting sheets" and "material requisition" sheets which specify in great- detail how each part on a blueprint is to be fabricated Such sheets and blueprints are sent to the plate shop to George Mueller It is Mueller who initiates the completion of the work described on the cutting sheets. He assigns the cutting sheets to the operators, and requisitions the materials which the operator needs to perform the operation described on the cutting sheet A cutting sheet may have several operations for, one operator, and he performs each in turn, checking off those he completes, until he has completed all the operations on the sheet, if he has not already received a new cutting sheet, he will ask Mueller for another one. Mueller continually checks the cutting sheet to determine which operations have been completed, when to requisition materials and when to assign another cutting sheet to the operator. He records the information from the operator's cutting sheet onto a master cutting sheet and in a sub-assembly book The blueprints, master cutting sheets, and sub-assembly books are kept in an office referred to as the "blue room," which is used by all project foremen and Mueller. It is by checking'the master cutting lists and sub-assembly books that a project foreman learns of the progress of a job ' There are- between 15 and 20 employees in the plate shop, who are assigned to a variety of machines (e g , angle shears, press' brake, cutoff saws, drill presses, radial drills) 'Mueller is not assigned 'to a machine. Although allege 'that one of the 15 junior supervisors was a statutory supervisor, however, I granted a motion to dismiss allegations relating to him because of the absence of evidence to support a finding that he was a statutory supervisor MARINETTE MARINE CORPORATION 631 there was testimony that Mueller has no responsibility to see that the work gets done, or to require employees to work faster, nor to do better work, nor to inspect the work of employees, the record indicates that he will on occasion tell employees to correct faulty work Without consulting with the project foreman, Mueller will direct employees to stop work on one operation and to work on another, and he may also transfer an employee from one machine to another, although only within the plate shop and only for temporary reasons, e g , absence of an operator The piping department in which Zieroth is senior supervisor also employs about 25 men They,work in the pipe shop making the sub-assemblies to be placed in the ships and work in the ships installing the sub-assemblies All assignments are made by Zieroth The piping department does not work from cutting sheets but from blueprints. Zieroth receives work orders from the project foreman and assigns work to the employees depending on their qualifications and experience without consulting the foreman As sub-assemblies are finished, Zieroth will direct employees to install them and several installations are always in progress and are being checked by Zieroth As noted earlier, there is no department foreman, and at the time of hearing pipe work was being performed on three projects involving project foremen Newlin, Wiltzius and Parthie Derusha testified this provision was inserted because senior supervisors were receiving conflicting instructions from several project foremen and the provision clarified the position of the senior supervisor by indicating that he has a particular foreman he is primarily responsible to Another insignium of supervisory status is the red hat worn by supervisors it is undisputed that since the date hard , hats have been worn only admitted statutory supervisors and senior supervisors, including Mueller and Zieroth, have worn red hats. Vice President James Derusha stated that the red hats were worn by admitted supervisors and senior supervisors to make it easier for employees to single out who to go to for aid or advice in performing their duties.. I reject this explanation Considering the presence of other factors indicative of a supervisory status, it is more. than mere coincidence that senior supervisors should be wearing the same hats as admitted supervisors In short, both the contract and the red hats are indicia of supervisory status for statutory purposes Although the color of the hats of senior supervisors has been changed since these proceedings were initiated, there is no showing that employees were notified that the change represented any change in their relationship to the senior supervisor B They Receive Higher Pay And Are Considered Bosses By The Employees III ANALYSIS AND CONCLUSIONS General Counsel's contention that Mueller and Zieroth are supervisors within the meaning of Section 2(11) of the Act is based on several factors which I shall discuss seriatim A They Have the Insignia Of Authority The title of Mueller and Zieroth as senior supervisors is derived from article X I of the collective-bargaining agreement which relates to supervision Section 5 thereof states The terms "supervisory employees" and "supervisory positions" as used in this Agreement shall refer to those employees or positions below the rank of foreman They shall be responsible to their respective foreman for fulfilling the duties assigned to them and shall supervise their work force accordingly (Emphasis added) Inspectors and instructors shall be responsible to their respective foreman for the performance of their assigned duties General Counsel contends that this provision, in particular the underlined portion, manifests to employees that they must respond to the directions and orders of Mueller and Zieroth, and that failure to do so may cause the invocation of disciplinary action Respondent Employer's contention is that the contractual term is historically derived from the term leadman which was used prior to 1953 when the Union was certified and that the phrase "supervisors shall supervise their work force accordingly" does not refer to men who are working under the direction and control of the "supervisors," but to those working with a "supervisor " This was the testimony of Roger Derusha I reject such a strained interpretation of what appears to me to be unambiguous language The record indicates that several project foremen have work in progress in a particular department at the same time, and Roger It is undisputed that senior supervisors receive $3 47 per hour which is 40 cents per hour more than is paid to mechanics Junior supervisors, who are not alleged to be statutory supervisors, but who do no production work, receive $3 32 per hour However, there was no junior supervisor in the plate shop at the time of the hearing Employees Schoblocher and Bell considered Mueller to be in charge of the plate shop As Schoblocher stated," when you work at a place the man who gives you your work orders he's your boss, isn't he"" Hornick and Holmgren in the piping department testified that they considered Zieroth the boss in their department " This fact, along with the higher pay and the other factors evaluated herein, is a factor tending to support a finding that Mueller and Zieroth are statutory supervisors C They Make Recommendations Affecting Conditions of Employment of Employees According to the testimony of Mueller and Zieroth, and that of officials of Respondent Employer, they have no authority to hire, suspend, lay off, recall, promote, discharge, reward, or discipline employees However, General Counsel contends that they can make effective recommendations regarding overtime, that they notify foremen if employees are unsatisfactory, and may recommend that employees be reassigned 11 "I attach no weight to employee Anderson 's testimony, including his statement that he did not consider Mueller his boss Anderson appeared to me to be completely biased and unwilling to describe accurately Mueller's role in the operation of the plate shop "Donald Bell, a former employee , testified that Mueller effectively recommended that he not be rehired This was denied by Mueller, and by Industrial Relations Director Westphal who identified Foreman Norman Newlin as the one who made the recommendation He was corroborated by Newlin General Counsel does not specifically advance this alleged recommendation regarding Bell as evidence of Mueller's supervisory status In any event , I do not credit Bell's testimony which is at odds with all the other evidence in the record on this issue of recommending hiring However, I credit his testimony that he asked Mueller for permission to 632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On overtime, Mueller admitted that if it looks as though work is not progressing the way it should, he and the junior supervisor would tell foreman Newlin that they felt overtime was necessary. While the decision was made by Newlin and only after inquiring into the matter, it is not clear from the record what kind of inquiry he made In the case of Zieroth, the evidence' indicates that if he is short handed he will ask a foreman for additional help According to foreman Mechalson, when this occurred he looked into it to confirm the need before assigning more men to the department Again, it is not clear what is meant by looking into it General Counsel contends that the senior supervisors have informed foremen when employees were not satisfactory. This contention is based on a statement by Vice President James Derusha in an affidavit given during the investigation Derusha testified differently at the hearing and sought to explain that the statement had been made in reply to a hypothetical question, nevertheless, he admitted his statement was true when made, and I construe the statement in his affidavit as his understanding of the manner in which the senior supervisors were expected to perform their duties, and that his denial at the hearing was of knowledge of any specific instance when the supervisors had actually performed such a duty There is only one specific instance when a senior supervisor has advised a foreman employees were not working out, and in this instance, the supervisor, Zieroth, testified he acted on the request of the employees to be reassigned, and not because of any supervisory authority he possessed Zieroth would not admit that he made recommendations about the work performance of employees, but described his role as being "asked for an opinion occasionally Despite the absence of specific instances when senior supervisors have made effective recommendations affecting conditions of employment of employees, I am persuaded that both Mueller and Zieroth have the authority and responsibility to do so I reject the testimony that they do not, because as will appear below, I find that they must exercise independent judgment in making assignments and that their direction of employees is responsible direction within the meaning of Section 2(1 1) of the Act D They Assign Work to Employees and Give Responsible Direction It is clear that all assignments of work to plate shop and piping department employees are made by Mueller and Zieroth, respectively, and that they are for all practical purposes the only individuals to direct the employees Respondent Employer contends, however, that in making assignments they are not required to exercise independent judgment and that their direction of employees is not responsible direction Although both are senior supervisors, there are some differences between the duties performed by Zieroth and those performed by Mueller First of all, the very fact that no single foreman has been assigned to the piping department indicates the degree of responsibility that rests on Zieroth to direct the work in the department The 25 employees in the department have no single foreman to whom they can turn for direction, and as several projects are going through the department at one time the sole continual supervision they receive is from Zieroth Secondly, the nature of the work in the piping department and the method of operation negate any possibility that Zieroth's direction is of a routine nature and does not constitute responsible direction. It is he, and he alone, who executes the work orders which initiate the production of piping systems He ' supervises the fabrication of subassemblies and he decides who will install them in the ships and when Those are clearly not routine matters In Mueller's case, there has been a project , foreman specifically assigned to the plate shop, and currently there is a plate shop foreman Mueller, like Zieroth, makes all work assignments, although less independent judgment is required because he assigns work which is detailed on cutting sheets Moreover, there is less occasion for the exercise of independent judgment because he supervises machine operators Despite these differences, I find that Mueller must exercise independent judgment and that his direction of employees is responsible direction. Mueller on his own admission is continually checking the progress of the work It is he who first detects whether the work is progressing in accordance with the schedule, and he must decide if an operator should be switched from one job to another From the fact that it was necessary to amend Article XI, Section 5 of the contract to insulate senior supervisors from conflicting instructions of project foremen, it is clear that the senior supervisor is the individual responsible for the execution of the work orders in accordance with the schedule, and that he must exercise his judgment in determining which operations are to receive priority From the very fact that project foreman Newlin has had the responsibility to supervise the progress of a project through the entire plant, it is evident that the responsibility for the operation of the plate shop has been vested in Mueller " The testimony of Newlin about the frequency of his visits to the plate shop and his contacts with employees is, in my view, exaggerated and at odds with his responsibility for the completion of a project involving work in several departments. While he accounted for his presence in the plate shop when a job started, he did not account for his presence when his project had progressed beyond the plate shop Although Respondent Employer has now assigned a foreman to the plate shop, the record does not indicate that this has in any way affected the manner in which the plate shop has been operated Mueller still assigns the work and directs the work force, and there is no showing that employees have been advised that they are to look to foreman'Kuran for supervision instead of Mueller. In short, a review of all the evidence in the record indicates clearly that both the plate shop and the piping departments are directed almost exclusively by Mueller and Zieroth respectively The only "evidence" proffered by Respondents to negate a finding that their direction of the work force is not responsible direction and does not require the use of independent judgment is testimony of the senior supervisors and foremen that Mueller and Zieroth have no responsibility for the operation of their departments I do not credit this testimony." Granted that take time olf, and was told to check with Westphal who would grant permission because it was "all right with George". I also credit his undemed testimony that upon his transfer by foreman Newlin to the plate shop, it was Mueller who assigned him to the punch press and thereafter directed his work "It is significant that on the occasion when James Derusha believed there was a shortage of parts for sub-assembly, he went to Mueller and the then junior supervisor in the plate shop to find out what was wrong "For example, considering the admissions of James Derusha and MARINETTE MARINE CORPORATION , , 633 responsibility for getting the work done rests on the project foremen, this does not negate a responsibility on the senior supervisors for the execution of the orders given by the project foremen The type of work assigned to the plate shop and the piping department is not such that it can be supervised by a nomadic project foreman In the final analysis, all that Respondent Employer has shown is that Mueller and Zeiroth lack several of the criteria of supervisory status, e g , the authority to hire, discharge, discipline, etc However, they need possess only one, and I find that not only do they have several indicia of supervisory status (higher rate of pay, contract designation.as supervisors, little or no manual labor), but also they are required to exercise independent judgment in their direction of their work forces Accordingly, I find they are supervisors within the meaning of, Section 2(1 1) of the Act.' S Respondent Employer contends that even if Mueller and Zieroth are found to be supervisors, a finding that it has violated the Act because of their holding office in Respondent Local is not warranted In the case of Zieroth, I agree Zieroth is a minor supervisor who has been included in the bargaining unit for many years. The office of Recording Secretary which he holds does not involve participation in contract negotiations or the processing of grievances While he is also a member of the executive board, there is no showing that this has involved him in such matters In these circumstances, and in the absence of any showing that Respondent Employer has played any part in Zieroth's holding office, I find that the fact that Zieroth holds such office is insufficient basis to warrant a finding that Respondent Employer has violated the Act National Gypsum Company, 139 NLRB 916, 920, Banner Yarn Dyeing Corporation, 139 NLRB 1018, 1024 Respondent Employer concedes that Mueller's case is different He not only holds the office of president of Respondent Local, but also, he appoints members of the bargaining and grievance committee and participates in contract negotiations and the processing of grievances. Even minor supervisors who are part of the bargaining unit may not engage in such activities, else emoloyees are deprived of their right to be represented in collective-bargaining negotiations by individuals who have a single-minded loyalty to their interests Nassau and Suffolk Contractors' Association, Inc , 118 NLRB 174, 187, Local 636, Plumbers v N L R B, 287 F 2d 354 (C A D C ). I find, therefore, that by the participation of its supervisor George Mueller in the internal affairs of Respondent Local, including holding the office of president, Respondent Employer has violated Section 8(a)(1) and (2) of the Act THE REMEDY Having found that Respondent Employer has violated Section 8(a)(I) and (2) of the Act, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act General Counsel requests that such recommendations include an order that Respondent Employer cease and desist giving effect to the labor agreement and withdraw recognition from the Union unless and until an election is conducted In my opinion, such an order is not warranted by the facts of this case, nor necessary to effectuate the policies of the Act Respondent Employer has recognized the Union since 1953 as a result of a Board certification, and although it has permitted a supervisor to hold union office and participate in collective bargaining, the supervisor is a minor one, and their is no showing that he has acted other than " honestly on behalf of the interest which they were at the particular time charged with representing " Local 636, Plumbers v N L R B, supra In this last cited case, the Board merely required the respondents to cease and desist from interfering with the administration of the union by engaging in negotiations, with a union committee which included a supervisor 16 In the circumstances herein, the policies of the Act can be effectuated by requiring Respondent Employer to cease and desist from interfering with the administration of Respondent Local by permitting supervisors to participate in the processing of grievances and in collective-bargaining negotiations as representatives of the Union, and by permitting supervisors to hold union office whereby they participate in such matters Upon the foregoing findings of fact, and upon the entire record in this case, I make the following CONCLUSIONS OF LAW I Respondent Employer, Marinette Marine Corporation, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2. International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths , Forgers & Helpers, AFL-CIO , and its Local Lodge 696, and each of them, are labor organizations within the meaning of Section 2(5) of the Act. 3 By maintaining in effect a rule which prohibits solicitation of union membership during the employees' nonworking time and by maintaining a rule which prohibits its employees , when they are on nonworking time, from distributing literature on behalf of any labor organization in nonworking areas of its property, Respondent has engaged in interference , restraint, and coercion in violation of Section 8 (a)(1) of the Act 4 By permitting supervisors to participate in negotiations for a collective -bargaining agreement and in the processing of grievances, and to hold office in Respondent Local whereby they participate in such matters, Respondent Employer has interfered with the administration of the affairs of Respondent Local and with the rights of the employees under Section 7 of the Act and has thereby violated Section 8(a)(1) and (2) of the Act 5 The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act Upon the foregoing findings of fact and conclusions of law, and the entire record in the case , I hereby issue the following RECOMMENDED ORDER Norman Newlin with regard to Mueller's authority to assign work or to transfer men from job to job Mueller's testimony that if he told a mechanic to make part B instead of part A, the mechanic would not have to do it if he did not want to is simply incredible "Research Designing Service, Inc. 141 NLRB 211, 213, Lvon, Incorporated, 145 NLRB 54 Marinette Marine Corporation, its officers, agents, successors, and assigns, shall "See also EEE Co, Inc, 171 NLRBNo 137 634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I Cease and desist from (a) Maintaining in effect a rule which prohibits employees from soliciting union membership during their nonworking hours or on company property (b), Maintaining in effect a rule prohibiting its employees when they are on nonworking time from distributing handbills or similar literature on behalf of any labor organization in nonworking areas of company property (c) Interfering with the administration of Local Lodge 696, International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers, & Helpers, AFL-CIO, and the rights of its employees under Section 7 of the Act, by permitting senior supervisor George Mueller, so long as he is a supervisor, or any other supervisor, to participate in collective- bargaining negotiations as a representative of said Union or to participate in the processing of grievances, and to hold any union office by which they participate in such matters (d) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act, as amended 2 Take the following affirmative action designed to effectuate the policies of the Act (a) Post at its plants at Marinette, Wisconsin, and Menominee, Michigan" copies of the attached notice marked "Appendix "18 Copies of said notice, on forms provided by the Regional Director for Region 30, shall, after being duly signed by Respondent Employer's representative, be posted by Respondent Employer immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted Reasonable steps shall be taken by Respondent Employer to insure that said notices are not altered, defaced or covered by any other material (b)- Notify the Regional Director for Region 30, in writing, within 20 days from the date of receipt of this Decision what steps Respondent Employer has taken to comply therewith 19 '71 include this plant in the posting requirements , because the record shows it is part of the unit with the Marinette plant , covered by the same contract and it is staffed by transferees from the Marinette plant "in the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner ' in the said notice In the further event that the Board ' s Order is enforced by a decree of the United States Court of Appeals , the words "a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order " "in the event that this Recommended Order be adopted by the Board paragraph 2(b) hereof shall be modified to read, "Notify said Regional Director, in writing , within 10 days from the date of this Order, what steps Respondent Employer has taken to comply herewith " As to the allegations of the complaint found not to have constituted violations of the Act, it is recommended that they be dismissed Dated By NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that After a hearing duly held, it has been determined that this Company has violated the National Labor Relations Act In order to remedy this conduct we have been required to post this Notice and to take the following steps WE WILL NOT maintain in effect a rule which prohibits you from soliciting union membership on Company premises during non-working time, nor will we maintain in effect a rule prohibiting you from distributing union literature on Company premises during non-working time in non-work areas WE WILL NOT permit George Mueller, so long as he is a supervisor, or any other supervisor, to participate in negotiations for a contract nor to participate in processing grievances, nor shall we permit George Mueller, so long as he is a supervisor, or any other supervisor, to hold office in Local Lodge 696, International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers, AFL-CIO, whereby they would participate in negotiations for a contract or in the processing of grievances APPENDIX MARINETTE MARINE CORPORATION (Employer) (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 2nd Floor, Commerce Building, 744 North Fourth Street, Milwaukee, Wisconsin, Telephone 414-272-8600, Ext 3872