Local Union No. 915

LOCAL UNION NO. 915 317 Local Union No. 915, International Brotherhood of Electrical Workers, AFL-CIO (Borrell-Bigby Elec- trical Company, Inc.) and George R. Adams. Case 12-CB-1548 June 29, 1976 DECISION AND ORDER BY MEMBERS FANNING, PENELLO, AND WALTHER ployer, herein called Borrell-Bigby, in the selection of its representatives for the purpose of collective bargaining or the adjustment of grievances by causing Borrell-Bigby to terminate the employment of George R. Adams, a supervi- sory employee; and on March 13 and 14 by authorizing, condoning, and/or ratifying a strike and picketing at Bor- rell-Bigby's place of business in Tampa, Florida, in order to compel Borrell-Bigby to discharge Adams. Respondent in its answer admitted certain allegations of the complaint, but denied it had engaged in any unfair labor practices. The Issues On January 28, 1976, Administrative Law Judge David E. Davis issued the attached Decision in this proceeding. Thereafter, General Counsel filed excep- tions and a supporting brief, the Charging Party filed cross-exceptions and a supporting brief, and Respon- dent filed an answering brief. 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 record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dis- missed in its entirety. DECISION STATEMENT OF THE CASE DAVID E. DAVIS, Administrative Law Judge: This case was heard before me on October 21, at Tampa, Florida, pursuant to a charge filed on March 20, 1975,' by George R. Adams, an individual, against Local Union No. 915, International Brotherhood of Electrical Workers, AFL- CIO, herein sometimes called the Union, Respondent, or Respondent Union, and a complaint issued on June 18, 1975,2 by the Regional Director for Region 12 of the Na- tional Labor Relations Board, herein called the Board, in behalf of the General Counsel, alleging that on or about March 13 and continuing to date, Respondent restrained or coerced Borrell-Bigby Electrical Company, Inc., an em- 1 Served on Respondent on or about March 20, 1975 Service admitted in answer 2 Hereafter all dates will refer to the calendar year 1975, unless otherwise specified The issues in this case are as follows: 1. Was Adams a supervisor within the meaning of the Act? 2. If Adams was a supervisor , did Respondent by its conduct coerce the employer to discharge him? FINDINGS AND CONCLUSIONS 1. THE BUSINESS INVOLVED Borrell-Bigby Electrical Company, a Florida corpora- tion with its principal place of business in Tampa, Florida, is engaged in the construction industry as an electrical con- tractor. During the past 12 months, it received at its Tam- pa, Florida, place of business goods and materials valued in excess of $50,000 directly from points outside the State of Florida. Accordingly, it is found that Borrell-Bigby is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent Union is now and has been at all times ma- terial herein, a labor organization within the meaning of Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES A. Background Borrell-Bigby and Respondent Union, at all times mate- nal to this proceeding having been and are parties to a collective-bargaining agreement.3 Adams was hired by Borrell-Bigby at a time when regis- tered applicants were not available. The Company notified the Union when he was hired. In January 1975, when regis- tered applicants were available, the Union requested that Borrell-Bigby replace "temporary employees" 4 Borrell- Bigby refused saying it had no temporary employees.5 The Union thereupon called a strike which lasted 2 days, March 13 and 14. A State Court enjoined the strike and ordered the dispute to be referred to the arbitral process of the labor agreement .6 On March 17 the Labor-Manage- 3 G C Exh 2(a) The contract defines temporary employees as those hired without a re- ferral from the Union Article IV p 12, G C Exh 2(a) 'G C Exh 2(f). 6 See G C exhibit file, Administrative Law Judge Dorrance's Decision 225 NLRB No. 57 318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment Committee, established under the contract, consid- ered the matter and rendered a unanimous decision that Borrell-Bigby was in violation of the contract by refusing to replace Adams as requested by the Union. Borrell-Bigby thereupon discharged Adams and Adams filed the instant charge. Perhaps this case could have been disposed of un- der the principles governing the Collyer 7 doctrine. Howev- er, none of the parties raised this as an issue and I will not discuss this question any further. B. Contentions of the Parties The General Counsel contends that Adams is a supervi- sor under the Act. He argues that the language of Section 2(11) 8 should be measured against the facts in this case. The General Counsel correctly argues that Section 2(11) of the Act speaks in the disjunctive and that it has been so applied by the Board and the courts. The contention is advanced that Adams being `in charge" of the Schlitz job over a period of 4 months and involving $20,000 as well as six to seven 9 men, eminently qualified Adams as a supervi- sor during this period. On the other hand counsel for Respondent argues that Adams at best was a "leadman" characterized by the ap- pellation "man in charge, of the job." It is further argued that Adams did not exercise independent judgment and the other criteria defining statutory supervisory authority. C. Analysis and Conclusion My study of the record has led me to conclude that Ad- ams was not a supervisor within the meaning of the Act, and did not exercise any of the statutory criteria warrant- ing classification as a supervisor. Rather, I find, the exer- cise of such authority was sporadic, used only in routine fashion and did not require the use of independent judg- ment. The General Counsel's argument that supervisory status should not be determined by reference to industry stan- dards or to other jobs performed by Borrell-Bigby is cor- rect to a limited degree. Industry standards cannot by themselves be controlling in such a determination; but in assessing the overall circumstances industry standards must be given some weight. The comparison and relation- ship with identical or similar jobs in the Borrell-Bigby Company is likewise highly relevant and must be accorded weight. Anthony J. Borrell, Jr., called as a witness by the Gener- al Counsel, testified that he was the vice president in charge of various aspects of the business including supervi- sion and layout; that Adams was employed and classified 7 Collyer Insulated Wire, 192 NLRB 837 (1971) Reads as follows The term "supervisor" means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, pro- mote, discharge, assign, reward, or discipline other employees, or res- ponsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exer- cise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment 9 Actually it was three men, on only I-day four journeymen as a journeyman electrician. 10 With reference to the Schlitz job Borrell testified that he had first discussed the job with an electrician employed by Borrell-Bigby by the name of Zistler in contemplation of sending Zistler "to do this job." Borrell, continuing to explain, then said that as another job came up at the same time which was of a "large magni- tude" Zistler was sent to that project. The Schlitz job was then discussed with Frank Ingraham, who was running a job at another plant for the purpose of "sending another journeyman to the job." 11 Ingraham had another journey- man working for him and they "asked him about the situa- tion of going over and running the job." As the particular journeyman was planning to quit, he could not undertake the job. As a result, Adams was selected.12 Borrell contin- ued his testimony by saying that when Adams was con- fronted with problems of a technical nature or a manage- ment 11 problem he would call Borrell and discuss them; that Adams had no authority to hire and fire. Asked if Adams had authority to discipline, Borrell said, "I would say yes," he then explained that he meant that Adams was authorized to grant time off for medical reasons; also that, "if there were minor problems Adams could take care of them whether it was coffeebreaks . . . on projects like this they have certain rules where you can take your breaks ... and he was to tell them where they were"; that Adams also had the duty to inform the men on the job the safety requirements which were quite stringent on the Schlitz job.14 Asked who was responsible for seeing that the safety regulations were followed, Borrell replied "Well, Mr. Ad- ams, because I gave him a copy of them." Borrell recalled that on one occasion an apprentice needed to be off for medical reasons and Adams excused him. Timecards were kept by the men who turned them in to Adams. Adams, according to Borrell, made recommendations to Borrell as to the number of men to be employed from time to time on the Schlitz job and Borrell made the final decision. Adams also ordered supplies for the job and was responsible for the accuracy of the shipment. On cross-examination Bor- rell was asked what type of grievance Adams could settle, Borrell could only say, "Perhaps the time that somebody wanted to take a coffebreak." Borrell conceded that during the year the Company had 200 to 300 jobs and one man was always "in charge" of a job, that under the terms of the collective-bargaining agreement where there are four or more persons 15 in the crew, one must be a foreman who is paid $1 per hour more than the journeyman's rate; that it was common practice in the industry to designate the man in "charge" of the job as the man who "runs" the job; that if there were three journeymen and one apprentice there was no foreman, that one of the journeymen would be des- 10 Adams , at all times when employed by Borrell-Bigby, received the journeyman 's rate of pay except for I day Emphasis supplied 12 The foregoing testimonial recitation of Borrell is quite convincing that the selection of a journeyman available to "run the job " was a routine affair and did not concern the selection of a person for supervisorial responsibil- ity iJ Emphasis supplied is 1 consider such authority as falling far short of any indicia of superviso- ry authority 15 The contract specifies on jobs requiring four or more journeymen, one shall be foreman The parties agreed to this correction LOCAL UNION NO 915 319 ignated as being in charge of the job and would receive no more money than the other journeymen on the job; that Adams worked along with the other men on the Schlitz jobs using the tools of his trade and that Adams was sent to the Schlitz job with the understanding that he would work with the tools of his trade; that when any journeyman is sent out on a job he is told that it was his `baby" or words having similar connotations like "`Its yours," that basically Borrell told Adams, "You're going to be the man running the job"; and that this was the customary practice; that when Adams was discharged, one of the journeymen, Jones, replaced him and was in charge of the job thereaf- ter. Testifying further Borrell stated that the great majority of the jobs performed by the Company were one- or two- man jobs in which one journeyman and one apprentice was used, if four persons were used there would be three jour- neymen and one apprentice; that one day a man could be in charge of a job and the next day he could be just another journeyman on a job; that Adams was continually on the Schlitz job for 3 months as the man in charge; that the Company had 5 to 15 jobs going at the time of the Schlitz job which were of the same size or larger; that he was a "foreman" within the meaning of the labor agreement dur- ing his 3 months on the Schlitz job for 1 day; that the Schlitz job averaged two journeymen and one apprentice. Adams, called as a witness, gave details concerning his work at the job emphasizing what he considered his super- visory functions. Without unnecessarily prolonging the de- tailing of his testimony, it seems sufficient to say that I do not regard his narration and conclusionary testimony as affording a basis for a finding that he was a supervisor within the meaning of the Act. He testified that he granted Jones time off on one occasion. Jones on the other hand testified he merely informed Adams he was taking time off and would have taken the time, regardless of Adams' de- sires. I credit Jones. Adams on cross-examination conced- ed that he worked with tools about 75 percent of the time when on the Schlitz job and at other times he would be doing preparatory work so that 80-90 percent of his time was spent in work of the trade. David H. Jones, a journeyman electrician called by Re- spondent as a witness, testified that he succeeded Adams as the man in charge of the Schlitz job; that 50 percent of the job had been completed at that time; that the job re- quired three men on the average, two journeymen and one apprentice; that when he was told that he was in charge, it meant that he was to complete the installation, to direct the other men in what ever had to be done, and to answer any problems as they arose. He explained his direction of the other men as follows, "We, got the prints out; we looked the prints over to see what had to be done that day, the next day and what our progress is going to be, and dig in and do it." As Jones explained he was the contact man and consulted with Schlitz' employees on problems that arose, that when material for one phase of the work was out he would talk to the journeyman or apprentice and say "this is as far as we can go here" and they would move over to another place of the work. Jones considered the Schlitz job no different than the 50 or more other jobs to which he had been assigned to be the man in charge. Asked to describe what the procedure that was followed when Adams was in charge, Jones credibly testified: Well, he brought the prints out, like any journeyman would do that's running the job, and lay them out, and say this is what we're got to do. And we had the mate- nal on the jobsite. If there was some questions or objection it would be dis- cussed and between them they would be normally resolved. Asked how much of his time he spent in duties associated with being the man in charge of the job, Jones replied 5 percent and that he spent the other 95 percent working with the tools, and that Adams spent approximately the same time when he was in charge. D. Concluding Findings As I have stated above I do not find Adams to be a supervisor under the Act. The most significant testimonial account was that of Borrell. Although Borrell attempted to portray Adams' duties in several aspects as constituting and meeting the criteria of a supervisor, the essential hard testimony, when considered without the conclusionary re- marks, leaves no doubt that a journeyman in charge of a job does not exercise supervisory functions as specified in the Act. It is clear that the record establishes Adams' so- journ as "man in charge" at Schlitz did not involve duties which substantiate a finding that he was a statutory super- visor. Jones' testimonial account and description of his functions as "man in charge" and his comments concern- ing Adams' activities while in charge are quite convincing and credited. Where Adams and Jones differ, I credit Jones. Specifically, I find that Adams, like other journeyman electricians, acted as a leadman or "straw" boss designated as the "man in charge" of the Schlitz project. Calling atten- tion to the safety rules, coffeebreaks, or other routine mat- ters do not change the facts. His contact with Schlitz per- sonnel in order to coordinate and avoid problems and difficulties was routine and his direction of the workers for Borrell-Bigby hardly measure up to the attributes of super- vision. In view of my findings above, I shall recommend dis- missal of the case in its entirety. Upon the foregoing findings of fact and conclusions of law, and pursuant to Section 10(c) of the Act, I hereby make the following recommended: ORDER 16 I recommend that the complaint be dismissed in its en- tirety. 16 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes.