Comax Telcom Corp.

688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Comax Telcom Corporation and Communications Workers of America, Petitioner. Case 3-RC-6226 July 29, 1975 DECISION ON REVIEW AND DIRECTION OF ELECTION BY MEMBERS FANNING, JENKINS, AND KENNEDY On February 11, 1975, the Acting Regional Direc- tor for Region 3 issued a Decision and Order in the above-entitled proceeding in which he dismissed the petition, finding that the three previously unrepre- sented technicians the Petitioner sought to add to its existing collective-bargaining unit are supervisors within the meaning of the Act.' Thereafter, in accor- dance with Section 102.67 of the National Labor Re- lations Board's Rules and Regulations, Series 8, as amended, the Petitioner filed a timely request for re- view of the Acting Regional Director's decision on the ground, inter alia, that he made factual findings which are clearly erroneous. By telegraphic order dated March 27, 1975, the Board granted the request for review. 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 with respect to the issue under review and makes the following findings: The Employer, located in Buffalo, New York, is engaged in providing cable television service to its subscribers. Its technical division is headed by Vice President Damato and directly reporting to him are Service Department Manager Krauza and Installa- tion Department Manager Morresy, who have the authority to assign work to the employees within their respective departments, issue written warnings, and hire and discharge employees subject to the ap- proval of the Employer's president. Reporting to these managers are the three techni- cians, involved herein, whose job function is to ser- vice electronics, be on call for failures in the system, and to set up new equipment extensions to systems. They possess a thorough understanding of CATV systems and the engineering related thereto. In per- forming their functions, the technicians are responsi- ble for determining what needs to be done in the 1 The existing collective-bargaining unit consists of "All full-time and reg- event of a system's failure or repair and to insure that the work is performed properly. Approximately 90 percent of the technicians' time is spent in the per- formance of manual duties. They work alone 20 to 60 percent of the time. The remainder of the techni- cians' time is spent performing their tasks along with an assistant technician or, on occasion, with a line- man or a laborer. While working with an assistant technician, both individuals determine the nature of the problem to be corrected and perform the neces- sary repairs. The technician in such situations in- structs and directs the assistant technician concern- ing the duties to be performed. For example, the technician may instruct the assistant technician to climb a pole and attach test equipment while the technician reads equipment on the ground to de- termine the nature of the problem. The expertise of the technician is utilized on the more complex prob- lems, such as an electrical short, whereas the assis- tants working with them are involved in less complex problems and perform more manual labor. The department managers and the technicians dis- cuss the work performance of the assistant techni- cians during the latter's probationary period. The technician reports to the department manager re- garding the assistant technician's general work be- havior, attitude, and abilities. There is no evidence that the technicians have the authority to hire, trans- fer, suspend, layoff, recall, or discharge any employ- ees. The sole technician testifying at the hearing stat- ed that he evaluated the work performance of the assistants orally and in writing, and that such evalua- tions are taken into consideration by the Employer in promoting assistant technicians to the technician po- sition? In addition, the technician testified that he recommended that an employee be disciplined, and he has also written a warning concerning an employ- ee. The technician admitted that Department Man- ager Krauza delivered the warning and spoke to the employee. It is clear that a department manager was involved in the above matters; the extent to which the department manager independently assessed the situation is not revealed. Although there is some gen- eral testimony by the Employer's president that the technicians can write warnings and "basically" rec-, ommend promotions or firing, the Employer's presi- dent was not certain whether the one technician who wrote a warning had signed it and there is no evi- dence that any technicians have ever recommended discharge of any employee. As found by the Acting Regional Director, the technicians are salaried and are not compensated for ular part-time employees, including working foremen, cable splicers, assis- 2 The technician also testified that, in one instance, he determined that an tant technicians, linemen, installers, technician installers, warehousemen employee working as an assistant technician on a 90-day trial basis was and laborers employed by the Employer from its 850 Elk Street, Buffalo, unsuitable for that position and subsequently the employee was returned to New York, facility." his position as an installer 219 NLRB No. 141 COMAX TELCOM CORP. overtime as compared to the bargaining unit employ- ees; however, in some instances, an assistant techni- cian may receive a higher weekly wage than a techni- cian because of seniority and the wage provisions of the collective-bargaining agreement covering the unit employees. The fringe benefits of the technicians are generally comparable to those of the unit employees. Contrary to the finding of the Acting Regional Di- rector, our consideration of the record as a whole leads us to the conclusion that the three technicians herein do not possess sufficient indicia of supervisory authority to warrant their exclusion from the cover- age of the Act. It is readily apparent that the func- tions they perform for the Employer are predicated upon their knowledge and skills regarding the Employer's cable television system. As indicated, these technicians spend the greatest portion of their time performing manual duties and a considerable part of that time working alone. Like the unit em- ployees, the technicians report to the respective de- partment managers who assign the work to be per- formed and have the authority to affect employee status. Although the technicians direct and instruct assistant technicians in the performance of their du- ties when working together, we are of the view that such direction is based on their greater knowledge of the system vis-a-vis that of the assistant technicians, rather than responsible direction contemplated with- in Section 2(11) of the Act. Supporting this conclu- sion is the fact that the technicians work on a one-to- one basis with the assistants and, when so involved, the technicians perform the more complex duties whereas the assistants perform those of a less com- plex nature. Considering their working relationship, it appears, and we so find, that the technicians' evaluations and recommendations regarding the assistants are based on the technicians' expertise rather than any real su- pervisory authority which would affect the employ- ment status of the assistants? In these circumstances, we conclude that the tech- nicians are not supervisors within the meaning of the Act. Therefore, we find that a question exists concern- ing the representation of the technicians within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act which can only be resolved by providing these employees an opportunity by a self-determination election to express their desire with respect to being included in the bargaining unit currently represented by the Petitioner. Photype, - Inc., 145 NLRB 1268 3 Southern Bleachery and Print Works, Inc., 115 NLRB 787 (1956). See also West Virginia Pulp and Paper Company, 122 NLRB 738 (1958). 689 (1964). Accordingly, we shall direct an election in the following voting group: All CATV technicians employed by the Em- ployer at its western New York facilities. If a majority of the employees in the above voting group cast their ballots for the Union, they will be taken to have indicated their desire to constitute a part of the existing unit currently represented by the Union, and the Union may bargain for such employ- ees as a part of that unit. If a majority of them vote against the Union, they will be taken to have indi- cated their desire to remain outside the existing unit, and the Regional Director will issue a certification of results of election to that effect. [Direction of Election and Excelsior footnote omit- ted from publication.] MEMBER KENNEDY, dissenting: I would adopt the Acting Regional Director's find- ing that the three CATV technicians, whom the Peti- tioner seeks to add to its present collective-bargain- ing unit, are supervisors within the meaning of Section 2(11) of the Act The record supports the Acting Regional Director's finding that these technicians must possess a thorough knowledge of CATV systems and its engi- neering. In the case of a system failure or repair, they are responsible for determining what has to be done and arranging for personnel and material to accom- plish the job. During emergency repairs, the techni- cians have the authority to grant overtime and to call in additional help if necessary. A substantial part of the technicians' workday consists of instructing and directing the work of the assistant technicians. Such direction requires the use of independent judgment in the repair of complicat- ed electronic systems. The technicians have been told that they have authority to make recommendations with respect to promotions, demotions, and discipli- nary action. A technician testified that he had recom- mended the demotion of an assistant technician (who was on a 90-day trial period) to his former position of installer because of his inability to perform ade- quately the duties of an assistant technician. The pro- bationary assistant technician was demoted on this recommendation without .an independent investiga- tion being conducted by higher authority. , I would affirm the Acting Regional Director's dis- missal of the petition because of the supervisory sta- tus of the individuals sought to be represented.