Upshur-Rural Electric

UPSHUR-RURAL ELECTRIC Upshur-Rural Electric Cooperative Corporation and Local 324, International Brotherhood of Electri- cal Workers, AFL-CIO, Petitioner. Case 16- RC-8081 January 26, 1981 DECISION ON REVIEW AND DIRECTION OF ELECTION BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE On February 27, 1980, the Regional Director for Region 16 issued a Decision and Direction of Elec- tion in the above-entitled proceeding, finding ap- propriate a unit of all outside employees of the Employer including the right of way clearing fore- man, servicemen, helpers, the bucket truck opera- tor, the truck and equipment operator, metermen, assistant metermen, mechanics, assistant mechanics, meter readers and stores personnel, but excluding, inter alia, construction foremen on the ground that they are supervisors within the meaning of the Act. Thereafter, in accordance with Section 102.67 of the National Labor Relations Board Rules and Regulations, the Petitioner timely filed a request for review of the Regional Director's decision, contending that the Regional Director erred in finding the construction foremen to be supervisors and excluding them from the unit found appropri- ate. On May 12, 1980, the National Labor Relations Board, by telegraphic order, granted the request for review. Thereafter, the Employer filed a brief in opposition to the Petitioner's 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 reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. They are hereby af- firmed. The Board has carefully considered the entire record, regarding the issue under review, in- cluding the Regional Director's decision, the Peti- tioner's request for review, and the Employer's brief. The Employer is a Texas corporation engaged in the distribution of electrical power. Construction line crews construct extensions to serve new cus- tomers who have moved into areas previously not served and make improvements to existing con- struction. Each crew is headed by one of six con- struction foremen. Although the size of their re- spective crews may vary with the workload, these crews are usually composed of one lineman and 254 NLRB No. 57 one helper in addition to the construction fore- man. The job description states that the construction foreman is under the general supervision of the line superintendent and is principally responsible for di- recting a crew of two to any number of persons under classification of construction lineman, con- struction helper, laborers, and other related classifi- cations. In concluding that the construction fore- men are supervisors within the meaning of Section 2(11) of the Act, the Regional Director found that a construction foreman "responsibly directs the work of each member of the crew" and "exercises his own judgment in making job assignments." The record reveals, however, that the line superinten- dent maintains general supervision over all the con- struction crews. Each day the construction fore- men go to the line superintendent's office to re- ceive their job assignments. The foremen are told where to go and what to do on each job. If a fore- man's crew is given several jobs to do in I day, the line superintendent decides the order in which the jobs are to be done. Although the line superinten- dent visits the construction crews at their respec- tive jobsites on an irregular bsis, it is evident that little supervision is necessary at the jobsite other than supervision of a routine nature. While the foreman is responsible for the training of new crewmembers, it appears that very little instruction is required. In this regard, we view as significant that the foremen spend 85 to 90 percent of their time working as part of the crew.2 Nor do foremen have any special privileges that differ from their crewmembers. Like the crew- members, construction foremen are hourly paid, re- ceive overtime if they work it, and enjoy the same fringe benefits. Although construction foremen re- ceive from $1.37 to $2.70 more per hour than line- men, the next highest classification on most crews, this wage differential is based upon job experience and ability. Construction foremen, like the mem- bers of their crew, also work standby.3 Although the Regional Director found that con- struction foremen exercise their own judgment and discretion regarding whether to work overtime, the record indicates that their authority is limited in this area. If foremen estimate that it will take less ' At the lime of hearing, fie or six constructioln crvs consisted of only to Nsorkers in addition to the foreman The sixth crew. headed hb Foremani Brasher. contained one aditional wrkeLr in the classification of hulcket ruck operator Ct2 Cttrltlill Forenian Poole Iestfiled that In all -hour daS, he spends 7 houlr working Kith the cre, The ohcr hour doled to nlaklinig linrshee ts and e riting up tickets ' I-i t'Cr e i ek a sercroiio l and a ocl in oretian, and a c sllirue- tion res. are il call so he, canl he r a hed h tilephone ftr emergenc o ork 709 DECISIONS OF NATIONAL LABOR RELATIONS BOARD than an hour to complete a job at the end of a day, then they can authorize overtime of I hour. For jobs requiring more than an hour, the foremen will call the line superintendent for instructions. While the Regional Director also drew the con- clusion that construction foremen have the author- ity to remove employees from their crews, to disci- pline employees, and to recommend effectively the hiring and firing of construction crew employees, 4 the record indicates that, in the past 10 years, only two employees were discharged based on a con- struction foreman's recommendation. 5 As indicat- ed, the record also reveals one minor incident in- volving a construction foreman verbally disciplin- ing a crewmember. We do not regard these few isolated instances, in view of the record as a whole, to be sufficient to establish that construction fore- men possess the supervisory authority contemplat- ed by Section 2(11) of the Act. 6 It is undisputed, moreover, that construction foremen do not handle grievances. The record does indicate that construction fore- men prepare annual appraisal forms evaluating the work performance of their crewmembers. This em- ployee appraisal is then submitted to the line super- intendent. According to the Employer's general manager, Mr. Johns, the annual appraisal forms are relied upon for decisions regarding promotions and wage increases. Johns admitted, however, that ser- ' Constructiol Foreman Poole testified that, except for one instance of oral discipline, he had never exercised such authority and did not believe that he possessed such authority. I This is based upon the testimony of the Employer's general manager, Mr. Johns. Regarding one of these employees, the discharge recommendltion was that the construction foreman "didn't want him in his line crew any- more." Before being discharged, that employee had been transferred to several other crews. 6 Commercial Fleet Wash. Inc., 190 NL.RB 326 (1971). vicemen, who were stipulated to be unit employ- ees, complete the same appraisal forms regarding their helpers. Based on the foregoing considerations and the record as a whole, we cannot agree with the Re- gional Director that construction foremen possess authority, or exercise independent judgment, or re- sponsibly direct employees in a manner or to a degree sufficient to constitute them supervisors within the meaning of the Act. Rather, we con- clude that any authority the construction foremen have is derived from their job experience and that any direction which they give is that given by ex- perienced employees to those less experienced. 7 We note, moreover, that if construction foremen are found to be supervisors, there would be the un- realistic ratio of 7 supervisors to 13 employees. Ac- cordingly, we find that the construction foremen are not supervisors within the meaning of Section 2(11) of the Act, and we find that the following employees constitute a unit appropriate for collec- tive bargaining: All outside employees of the Employer includ- ing the right of way clearing foreman, con- struction foremen, servicemen, helpers, the bucket truck operator, the truck and equip- ment operator, metermen, assistant metermen, mechanics, assistant mechanics, meter readers and stores personnel, but excluding all office clerical employees, guards and supervisors as defined in the Act, as amended. [Direction of Election and Excelsior footnote omitted from publication.] a Commercial Fleer Wash, Inc., supra. G. C Murphy Company, 171 NLRB 370, 371 (1968) Sanborn Telephone Company. Inc., 140 NLRB 512, 515 (1963). 710