G. H. Skipper, Inc.

G H. SKIPPFR. INC G. H. Skipper, Inc. and International Brotherhood of Electrical Workers, Local Union 108, AFL- CIO Petitioner. Case 15-RC-6669 January 14, 1981 DECISION ON REVIEW BY CHAIRMAN FANNING AND MEMBI-RS JENKINS ANI) PFNEI.I.O On September 11, 1980, the Acting Regional Di- rector for Region 15 issued a Decision and Direc- tion of Election in the above-entitled proceeding in which he made various findings as to the scope and composition of the appropriate bargaining unit. Thereafter, in accordance with Section 102.67 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Petitioner and the Employer filed timely requests for review in which each disputed the correctness of certain of the Acting Regional Director's findings. By tele- graphic order dated October 3, 1980, the Board granted the Petitioner's and denied the Employer's request for review. Thereafter, the election was held and the ballots of all voters were challenged. All ballots have been impounded pending this De- cision on 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 issues under review and hereby affirms the Acting Regional Director's determinations, as clarified herein. The Employer is engaged in the installation of underground cables for telephone and power lines. Its main facilities are in Panama City, Florida, from which it sends crews to various locations in north- west Florida to perform installations. For some time prior to the hearing in the instant case, ap- proximately eight employees had been stationed at a subsidiary facility in Chipley, Florida, approxi- mately 45 miles from Panama City. The Petitioner listed both the Panama City and the Chipley facili- ties in the unit description in its petition for certifi- cation, but upon being informed at the hearing that the Chipley facility was about to be closed and the employees reassigned to Panama City, the Petition- er amended its petition to delete the Chipley facili- ty. The Petitioner did so, however, with the ex- press understanding that those employees previous- ly located in Chipley, whose jobs otherwise brought them within the unit, were to be consid- ered part of the Panama City unit. Although the Employer argued against what it believed was the Petitioner's request that the Chipley employees 254 NLRB No. 53 vote in a separate polling place in Chipley, it did not contest their inclusion in the unit sought. The Acting Regional Director accepted the Peti- tioner's amendment, but limited the unit sought to the Panama City facility, stating that the amend- ment's effect was to "exclude" the Chipley facility. The Petitioner contends that the Acting Regional Director erred in excluding the Chipley employees and we agree, although, in our view, his exclusion of Chipley is an inadvertency. In acknowledging the parties' agreed-upon posi- tion with respect to the scope of the unit, the Acting Regional Director noted that the Petition- er's amendment reflected the imminent closure of the Chipley facility, "followed by the subsequent transfer of personnel to the Employer's Panama City facility." The Acting Regional Director then described the Employer's employee complement as totaling "about 50 employees," a number which, the record shows, includes those who had been sta- tioned at Chipley. In light of these statements and the statements of the parties on the record it is clear that the Acting Regional Director's "exclu- sion" of the Chipley facility is consistent with an intention to ratify the parties' implied agreement that the former Chipley employees be treated as part of the Panama City unit. Accordingly, al- though we affirm the Acting Regional Director's determination as to the scope of the unit, we also shall include the former Chipley employees in the unit. '2 The Petitioner also contends that the Acting Re- gional Director erred in excluding the Employer's 14 "foremen" in charge of its installation crews on the ground that they are supervisors within the meaning of Section 2(11) of the Act. We find no error. It is true, as Petitioner argues, that the day-to- day functions of these foremen are comparable to those of crew leaders whom the Board, in other cases, has found not to be supervisors.: See Corn- Ihe A lilg Regiolnll D)lre 1 i treatn e nrt if ilh utirit cone in ll I1 LIa follo\N I hi partie are ll h.lc s grccnicit i, er 1ti1 ,ort p i the tilliI At Ii c trlig. P[ctlltinerr amended its pllooll to c dIIIdie lite F :ll- 1 r;i>I'I ( llplie I lioria, f iacililes di to their Ili rl l um t after It1 Ihisrllg toIllou etd h> the suhvstqstlrlt tr.i-tr of trllll Io Ihc Ipi mplc ers i ianama Cilt flll, Jil t1e lIrnplIIcm crii1lo'\s a tota l conplcrlll-rt f ihOlt 5() citpltol ses IT i bhlet ', oipfl'It l ll hich CoiiMIt S iiIrrTl.illS k i l i llatloll ofi ' ti01 l(e1 i ri4d i -ld [t -t llC .11t elctrical -h' I i1 nh rlwl¢.est Florida cin ahscilt ['tIioltir's aietlidlTcril, tht reicord urppiTIs i [ifld.ing Ihal a tunit iclutdlnfg ithc Rtrmer Chiple emploes is approprialCt. 1nll c iirl.liis Ihutlc It sLntling t+ saupport rce1illluurtiI lhtil Ihcw It" t Cu tlUdCi t' hi , thile I'.irla; l (I11' air111i ( '},tipi J - 'llp Ic s IrkllriiCt 11h .aMrllC uliC tIrl s( alli ~crc fric li IItcrchianged ;i tilc, i \crC lrrlLcd I ll 11Tie i.illit p1; - ro ll 11.t {h% '.rt stlhl'- .<t 0 )J C'll 1. I /t I.lho r rllllm, [nilt CI rll n1tl fillgs Orl \ u l t ci i . 11 e I g R.ir n t al h )etu ,,r h .icd is coI lu Ill 1tl;ll 1ihCsc t'rtlllr-i . ,c ' sirc pt tlo r' . r ;Ir s h,+11 t ( .itiueliuid 453 D)ECISIONS OF NATIONAL I.ABOR RELAT'IONS BOARI) mercial Movers, Inc. , 240 NLRB 288 (1979); John Cuneo of Oklahoma. Inc., 238 NLRB 1438 (1978); Greenhorne & O'Mara., Inc., 235 NLRB 1056 (1978). 4 However, the record in the instant case contains uncontradicted evidence that these fore- men have independent authority to discharge or suspend crew employees for such broad reasons as "not putting forth any effort" or doing something the foreman does not like. Such breadth of authori- ty falls expressly within the Section 2(11) definition of supervisory authority and implies the use of in- dependent judgment in its exercise. Uncontradicted testimony also shows that the foremen's authority to discharge has been exercised, although the fre- Ihe f(oremen are in charge of construction crews numbering betwee one aid thirty emnployes and report directly to supervisors I arry Slig anld dward Cashman Forcemen direct the work of the crews. gie Illout job assignCenis and are responsible for the Swork performed by Lthe crew Foremen keep tinie records for crew members, work Ihe anle hotrs and receive the sanle fringe benefits as crew lein- hbers. ilhe are paid oni all houllrl basis but arn 301%7 more than the crew minembers they supervise. I fie oremetc exercise iTidepcipndlei jULdgilmenl ill the direction of' their crews anld possess the authority to ,stspell aild terilliatTe cres tilunbers or Illiscollduct Foreinelll ilsi) possess the authori to assign arild grantl ortrlile to crew rnetihers See Memiber enclilo's dissent i (;n r,,lnhrncl & )'lor, urpru. quency and grounds for such exercise was not es- tablished. In view of such record support, it is clear that the Acting Regional Director's finding that the foremen are supervisors is unassailable. 5 As noted, supra, an election herein has been con- ducted wherein the voters cast challenged ballots. Pursuant to our findings herein, we hereby over- rule the challenges to the ballots cast by the former Chipley employees we have included in the unit, and we hereby sustain the challenges to the ballots of employees we have found to be supervisors and who should not be included in the unit. As the re- maining challenged ballots may be determinative, we hereby remand this proceeding to the Regional Director for Region 15 for the purpose of resolv- ing determinative challenges and for the further processing of the case. Fhe et 'itioner relies heavily on the alleged ratio of 20 superisollr to 26 laborers. if the 14 foremnen are found to he supervisors This stated ratllo i lalclrate, h eser, because the fremlell supervise a unknov n illlnlher of mltlchiie operators in addition tl to the lahborers, and those super- ,isors ahove the level of tile foremcell also supervise other employees Whilc the number of supersisors in rclatioll I the numbher Of employees lciidlills uiluall lrge it is Ixioirnatic that llo cinsiderations of ratio can oirrrlide tl:tlltthigUlotS. persumisiL\ eidellce that the mploycs whose u- pertisory status is In qct ion posses's Sec 2111 authority 454