Custom Bronze & Aluminum Corp.

CUSTOM BRONZE & ALUMINUM CORP. 397 Custom Bronze & Aluminum Corp. and William E. Wood, Petitioner and Shopmen's Local Union No. 627, International Association of Bridge , Structural and Ornamental Iron Workers, AFL-CIO. Case 21-RD-1043 June 12, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO Upon a petition' duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Carl Abrams on February 7, 1972. Following the hearing, pursuant to Section 102.67 of the National Labor Relations Board Rules and Regulations, Senes 8, as amended, this case was transferred to the National Labor Relations Board for decision. Thereafter, the Union filed a 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 authority in this proceeding to a three-member panel. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. The rulings are hereby affirmed. Upon the entire record in this case, the Board finds: 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 Petitioner asserts that the Union, currently recognized by the Employer as the exclusive bargain- ing representative of the employees designated in the petition, is no longer a representative as defined in Section 9(a) of the Act. 3. No question affecting commerce exists con- cerning the representation of employees of the Employer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act, for the following reasons: The Union has moved to dismiss the petition on the ground that Wood, the Petitioner herein, is a supervisor as defined in the Act and is, therefore, ineligible to file the instant petition. This is the sole issue for determination. Wood was the only witness called at the hearing. I This petition was originally filed on November 9, 1971, but was dismissed by the Regional Director on November 12, 1971, on the ground that it was filed before the expiration of a reasonable period following the settlement agreement in Case 21-CA-10154 involving a charge of refusal to bargain in violation of Section 8(a)(5) against this same Employer by the Union involved herein Following administrative appeal , the Board, on January 11, 1972, concluded that the circumstances of this case warranted the reinstatement and further processing of the petition The Employer is engaged in the engineering, design, and fabrication of aluminum rail systems, architectual products, and prototype electronic cabi- netry. Wood has been employed as a welder by the Employer since 1961. At one time the shop employed a complement of about 10 employees with a foreman over it who supervised Wood in all respects except with regard to his welding functions. Since the work force was reduced to three, including Wood, about 2 or 3 years ago, there has been no foreman in charge by that title. There are some factors which seem to indicate his nonsupervisory status. Thus, Wood regards himself as a leadman or working foreman and testified that his responsibilities have not changed over the years.2 He does not attend management meetings and his position with the Company has not been formally designated by management to him personally or to the employees. He reports directly to President Schlutter or to Vice President De Mille when Schlutter is on vacation. On the other hand, by his own testimony Wood is vested with certain defined areas of responsibility beyond those of the two employees with whom he works in the shop. It is clear from the record that Schlutter, or De Mille in his absence, hardly ever ,goes into the work area. Thus Wood, after receiving the daily orders from Schlutter at the outset of the workday is, as he concedes, in charge of the shop with respect to the workload. He schedules the shop work, assigns it to the employees, and gives them their orders; they, in turn, look to him for instruction and guidance in their work. Though he testified that he assigns the work in accordance with the employ- ee's job classification under the Union's contract, it is clear from his testimony that he alone has the sole responsibility for the workload and seeing that the job is done; and if it is not done properly Wood reports that fact to the office. Concerning Wood's responsi- bility for overseeing the work production in the shop, he testified, "I make sure that we get it out. If I see we can't I go to Mr. Schlutter and say that we have got to hire a man whatever it will take to fulfill our obligation." When additional help is required, Wood suggests to management the number of employees needed and his suggestions in this regard are usually followed. Though Schlutter interviews the persons to be hired, on management's request Wood may 2 Wood is senior in job tenure and higher paid than these employees, and, along with one of them, receives above the union scale The record does not disclose the difference in hourly rates paid Wood and this employee. Wood works the same schedule of hours as they do, spends 7 hours of his regular 8-hour day working beside them (the remaining hour is spent making out requisitions ), and shares with them in all fringe benefits, such as health insurance, sick leave, and vacation In this connection, vacation schedules are approved by Schlutter. 197 NLRB No. 67 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD review resumes of applicants to see if the person possesses the necessary qualifications for thejob and gives his opinion thereon. Wood also has the responsibility of checking timecards according to job number to see if the right hours are credited to the particular job. In addition he is charged with the job of checking the shop's inventory and making out requisitions to the office when materials are needed.3 Wood is also consulted by Schlutter concerning whether overtime is required to get the work out and who is best qualified to do it; thereafter Schlutter decides which individual will work the overtime, including, on occasion, Wood. Furthermore, Schlut- ter may ask Wood whether the workload will permit an employee to take time off before Schlutter decides to grant the employee's request to be excused from work. And Wood reports to Schlutter about the conduct of the employees on the job. He once reported an employee for sleeping on the job and the employee was fired by Schlutter.4 In view of the record as a whole we find that Wood responsibly assigns and directs the work in the shop and exercises the use of independent judgment in fulfilling these responsibilities. In reaching these conclusions, we rely in particular on the fact that Wood alone is responsible for the work of the shop employees and the daily production of the shop. He is in charge of the shop and its workload. He exercises responsibilities and duties that his col- leagues do not. He schedules and assigns the work; he gives the employees their orders and instructions and helps them in the performance of their jobs; he makes certain that the work is done and done properly and, in carrying out this charge, determines whether overtime or additional help is needed to get the work out--if it is, he reports this to Mr. Schlutter whose response is usually favorable and in accord with Wood's judgment; in addition, he is consulted by Mr. Schlutter on personnel matters. Furthermore, if Wood were not found to be a supervisor the shop would be without any supervision during each workday.5 Accordingly, we find that Wood is a supervisor within the meaning of the Act. Because of his supervisory status, we further find that under settled law the Petitioner is disqualified from filing the decertification petition.6 ORDER It is hereby ordered that the petition filed herein be, and it hereby is, dismissed. 3 The actual ordering of materials, however, is done by Schlutter Generally, materials are supplied to the men along with the drawings for the job and in accordance with the requirements thereof 4 It is not contended that Wood has the authority to hire or discharge, reward, promote, suspend, layoff, discipline, or reprimand employees, or effectively recommend such action , or handle gnevances CHAIRMAN MILLER, dissenting: I disagree with the majority conclusion that the Petitioner, Wood, is a supervisor as defined in the Act. In my view the record as a whole establishes that any direction of employees that Wood may exercise is of a routine nature and compatible with the functions generally attributed by the Board to a leadman. The work performed by these employees is highly skilled and carried on by employees well qualified by training and experience to know what is required of them. The record shows that the work is executed in accordance with drawings prepared in advance for each job that comes into the shop. It is true that Wood testified that he assigns the work; but the record shows that he does so according to the employee's classification and in accordance with Schlutter's daily orders which Wood merely relays to the others and sees are carried out. To assign a welding fob to a welder or welder's helper, or to see that employees move along with the work at hand, in my opinion, requires no more use of independent judgment than that of the usual leadman functions in such matters; namely, making routine assignments. The lack of day-to-day immediate supervision alone where there are but three highly skilled and experienced employees following the work plan of the drawings and daily instructions relayed to them from the office does not in my viewjustify a finding that the most senior and experienced of the three employees exercises responsible direction and is, therefore, a supervisor. In such circumstances, being "in charge" assumes a perfunctory character which has little or nothing to do with responsible direction or the exercise of independent judgment. Particularly is this so where, as here, the senior employee "in charge" cannot do anything more than report to the office that ajob is done improperly or an employee is acting in a manner detrimental to the performance of his duties, or that overtime or extra men are needed to complete the work on time; and then the Employer may or may not take action in regard to such matters. It is clear from the record that, if the Employer chooses to act, he does so in accordance with his own assessment of the situation and not that of Wood whose opinion he may or may not follow. The circumstance that no foreman has been designated to oversee the work of the shop since the Employer's complement of 10 shrank to its present size and the additional circumstance that Wood's 5 National Electric Coil Div of McGraw-Edison Co, 180 NLRB 961, 963, and Bausch & Lomb, Incorporated 140 NLRB 1400, 1405 6 Modern Hard Chrome Service Company, 124 NLRB 1235 CUSTOM BRONZE & ALUMINUM CORP. responsibilities have continued to remain unchanged further buttress the presumption that management finds immediate shop supervision unnecessary under present conditions. Finally, I cannot overlook the mass of evidence that Schlutter finds it expedient to retain all the reigns of supervisory control in his own hands, even as to such relatively simple decisions as scheduling overtime, granting time off for dental appointments, 7 For example , on a recent occasion an employee was given a raise without any consultation with Wood , though in the past he has been consulted regarding such a matter 8 Howard Johnson Company, 174 NLRB 1217, and cases cited therein at 399 and approving vacation time. Wood's testimony plainly contradicts any conclusion that his recom- mendation as to any matters affecting employees are effective.? On the basis of the foregoing, therefore, and on the record as a wh{le, I would find, contrary to my colleagues, that Wood is not a supervisor as defined in the Act8 and would accordingly direct an election in the unit found appropriate. 1221 and 1222. Iroquois Telephone Corporation, 169 NLRB 344, 345 at fn 6, Mook Weiss Meat Packing Company, 160 NLRB 546, and Phillips Petroleum Company, 129 NLRB 813