Eastern Boiler and Electronics, Inc.

568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Eastern Boiler and Electronics, Inc. and District No. 26, International Association of Machinists and Aerospace Workers, AFL-CIO, Petitioner. Case 1-RC-14397 March 2, 1977 DECISION AND ORDER DIRECTING REGIONAL DIRECTOR TO OPEN AND COUNT CHALLENGED BALLOT BY MEMBERS JENKINS, PENELLO, AND WALTHER Pursuant to a Stipulation for Certification Upon Consent Election executed by the parties and approved by the Acting Regional Director for Region 1 on April 1, 1976, an election by secret ballot was conducted on April 29, 1976, under the direction and supervision of the Acting Regional Director, among the employees in the appropriate unit. At the conclusion of the election, the parties were furnished with a tally of ballots which showed that there were approximately 10 eligible voters and 10 ballots cast, of which 5 were for, and 4 against, the Petitioner Union, and 1 was challenged. The chal- lenged ballot was sufficient to affect the results of the election. In accordance with the National Labor Relations Board's Rules and Regulations, Series 8, as amended, the Acting Regional Director conducted an investi- gation and, on July 21, 1976, issued and duly served on the parties his Report on Challenged Ballot. In his report, the Acting Regional Director recommended to the Board that the challenge to the ballot be sustained and that a revised tally of ballots and certification of representative be issued. Exceptions to the Acting Regional Director's report having been filed by the Employer within the time provided therefor, the Board, by Order dated October 5, 1976, ordered that a hearing be held before a duly designated Hearing Officer for the purpose of receiving evidence to resolve the issues raised by the challenge to the ballot of Walter Burnett. The Board further ordered that the Hearing Officer designated for the purpose of conducting the hearing prepare and cause to be served on the parties a report containing resolutions of the credibility of witnesses, findings of fact, and recommendations as to the disposition of said issues. Pursuant to said order, a hearing was held on November 18, 1976, before Hearing Officer Thomas P. Kennedy. All parties were represented, the Employer and the Regional Director by counsel and the Petitioner by a Grand Lodge representative, participated fully in the hearing, and were given full opportunity to be heard, to examine and cross- 228 NLRB No. 101 examine witnesses, and to produce evidence bearing on the issues. On December 10, 1976, the Hearing Officer issued and served on the parties his Report on Challenged Ballot in which he recommended that the challenge to the ballot of Walter Burnett be sustained and that the Petitioner be certified as bargaining representative. The Employer filed timely exceptions to the Hearing Officer's report 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 authority in this proceeding to a three-member panel. 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-Union is a labor organization claiming to represent certain employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of the employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. The parties stipulated, and we find, that the following employees constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act: All full-time production and maintenance em- ployees employed by the Employer at its 550 Wilbur Cross Highway location, but excluding office clerical employees, technical employees, professional employees, watchmen, guards, and supervisors as defined in the Act. 5. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Hearing Officer's report and the Employer's excep- tions and brief and hereby adopts the Hearing Officer's findings only to the extent consistent herewith. We do not adopt his conclusion that Walter Burnett is a supervisor within the meaning of Section 2(11) of the Act, or his recommendation that the challenge to his ballot be sustained and the Petitioner be certified as bargaining representative. The Employer is engaged in the manufacture and distribution of fin tubes and accessories for base- board radiation and other heating products. The Employer's general manager, John O'Brien, is also general manager of two other companies, one in Pennsylvania and the other, Argo Fabricators, located some 200-300 feet away from the building EASTERN BOILER & ELECTRONICS 569 occupied exclusively by the Employer, Eastern Boiler, in Connecticut. Mr. O'Brien's office is located in the Argo Fabricators building. Under normal circumstances, O'Brien visits the Eastern Boiler premises twice a week for about 15 minutes on each occasion. Raymond Pulver, whose supervisory status the parties do not contest, is the foreman in charge of Eastern Boiler. Burnett, with 15 years' service, is the most senior employee of the approximately 10 employees work- ing under Pulver.' Unlike Pulver, Burnett is paid at an hourly rate, earns time-and-a half for overtime, and, at the last general wage increase, received the same wage adjustment as rank-and-file employees. All employees, including Pulver and Burnett, receive virtually identical fringe benefits. Although, like unit employees, Burnett operates machinery, he performs additional duties including driving the delivery truck, setting up machinery, and doing general mainte- nance work. In concluding that Burnett was a supervisor, the Hearing Officer relied in part on his finding that whenever Pulver is away from the premises, such as 1 /2 to 1 hour in the early morning, in O'Brien's office, on vacation, or on sick leave, then Burnett is "in charge of the operations" in that he assigns, directs, and disciplines the employees.2 The record reveals that the other employees are engaged in the routine operation of various pieces of machinery, and generally know what their own specific jobs are without needing to be told. To the extent that any changes are necessitated during the workday, Pulver will order the revisions, although Burnett often relays the instructions to the employees. If changes are to occur in the early morning before Pulver has arrived at the facility, Burnett will so direct the employees based on work assignments which have been previ- ously determined by Pulver. When Pulver leaves on vacation, he provides Burnett with preestablished plans set forth on a production sheet. During Pulver's vacations, Burnett consults with O'Brien when problems arise and O'Brien increases the frequency of his visits to Eastern Boiler to daily trips averaging 1 hour in length. Burnett did testify that there is often some latitude within the perameters of the directions he receives from Pulver, and that, on his own initiative, he may from time to time order an employee to leave his machine temporarily and assist with a more pressing job as, for example, the unloading of t truck. Nonetheless, the record, viewed as a whole, clearly establishes that Burnett's respon- I By comparison, the next senior employee has but 4 years' service. 2 During the period from October 1975 to February 1976, the Employer operated a second shift at nights and on Saturdays. As Pulver never worked on the second shift, the Hearing Officer found that Burnett was "in charge" of the shift. However, as this shift ceased functioning before the election period, and recognizing that the Board's determination whether an sibilities to assign and direct amount to nothing more than routine direction and are not indicative of supervisory status. On the subject of Burnett's alleged authority to discipline employees in Pulver's absence, there are two relevant incidents contained in the record. On the first occasion, Burnett, believing employee Boyko to be intoxicated, directed him either to go home or report to O'Brien. Boyko went to O'Brien, who promptly returned him to his work station. Regard- ing the second incident, Russell Brown, who had previously been warned regarding his absenteeism, failed to report to work on a day when Pulver was absent. Burnett testified that, after consulting with O'Brien and in accordance with prior instructions from Pulver, when Brown showed up on the following day he directed him to go home and report to Pulver when the latter returned. Although Brown testified that he returned to see Pulver of his own volition and had not been instructed to do so by Burnett, other portions of Brown's testimony estab- lish that Pulver regarded the decision to terminate as strictly his own, relying on Burnett only for verifying that Brown had been absent. Such incidents fall short of demonstrating the exercise of independent judg- ment in disciplinary matters. In addition to the foregoing, the Hearing Officer raised a number of secondary indicia which on their face might suggest supervisory status. Thus, the Hearing Officer found that, in Pulver's absence, Burnett approves corrections to timecards. However, the record also establishes that on occasions when both Pulver and Burnett were not present, Boyko, then the ranking employee in seniority following Burnett, had approved corrections to the timecards. The Hearing Officer additionally found that Burnett granted employees time off for sickness or personal matters. We find, however, that in light of Pulver's established policy of automatically approving all such requests, Burnett's approval was merely pro forma and did not entail the exercise of independent judgment. The record does support the Hearing Officer's finding that Burnett does not punch the timeclock, but instead informally reports his hours to Pulver. This practice, however, is of minimal signifi- cance as such a privilege appears attributable to Burnett's position as a trusted employee with over 15 years' service. Finally, considerable reliance was placed by the Hearing Officer on his finding that even when Pulver is present, Burnett has constant responsibility for maintaining order on the premises. employee is a bargaining unit member is based on the employee's status as of the election period, we need not assess whether Burnett's duties on the second shift involved the exercise of independent judgment . Moreover, the record does not specifically show that Burnett's responsibilities while on that shift exceeded those which he exercised when Pulver was absent from the regular shift. 570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Accordingly, when employees are "goofing off ' or "playing around," Burnett will order them to resume work, sometimes including threats to have them discharged if they refuse to comply. In the absence of evidence that these exhortations of Burnett's have led to any instances of disciplinary action, his responsi- bility for maintaining order is not demonstrative of supervisory authority.3 In summary, Burnett is a senior employee, whose occasional exercise of limited authority is best characterized as that of "strawbosses, leadmen, and other minor supervisory employees."4 The record does not support a finding that he actually possesses any kind of supervisory authority as defined in Section 2(11) of the Act. Accordingly, we shall direct the Regional Director to open and count his ballot, to prepare a revised tally of ballots, and to issue the appropriate certification. ORDER It is hereby ordered that as part of the investigation to ascertain a representative for the purpose of collective bargaining among certain employees em- ployed by the Employer, in the unit set forth above, the Regional Director for Region I shall, within 10 days from the date of this Decision, open and count the ballot of Walter Burnett and thereafter prepare and serve on the parties a revised tally of ballots, including therein the count of said ballot, upon the basis of which he shall issue the appropriate certification. 3 Frank Foundries Corporation, 213 NLRB 391 (1974). 4 Harmon Industries, Inc., 226 NLRB 432 (1976).