Power Piping Co.

494 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Power Piping Company and Larry Jones Case 10- CA-21042 October 31 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND HIGGINS On March 31 1986 Administrative Law Judge William N Cates issued the attached decision The Respondent filed exceptions and a supporting brief The National Labor Relations Board has delegat ed its authority in this proceeding to a three member panel The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge s rulings findings 1 and conclusions only to the extent consistent with this Decision and Order The judge found that the Respondent interfered with the administration of the Union in violation of Section 8(a)(2) and (1) of the Act by permitting its high level supervisors to vote in an internal union election For the reasons set forth below we disagree A Facts The Respondent is a subcontractor on Georgia Power Company s Plant Scherer construction project located in Juliette Georgia where it is en gaged in mechanical contracting and piping instal lation The Respondent commenced its work at Plant Scherer in the summer of 1978 and is expect ed to complete its contractual obligation on the project in the fall of 1989 While not a signatory the Respondent agreed to be bound by the terms and conditions of the collective bargaining agree ment between the Union and the Association of Mechanical Contractors of Atlanta Inc for work performed on the Plant Scherer project The con tract was effective from August 1 1984 to July 31 1986 The Respondents supervisory hierarchy in de scending order comprises the site superintendent, chief engineer general foremen and foremen Su perintendent David Hodgin is and has been the Re spondent s most senior representative at Plant Scherer since its inception and reports directly to the chairman of the board Bill Deluca is the Re I The Respondent has excepted to some of the judge s credibility find rags The Board s established policy is not to overrule an administrative law judge s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings spondent s chief engineer and second in command at the construction site Pursuant to an exclusive hiring hall arrangement with the Union Hodgin requested the referral of skilled pipefitters to work on the project On March 12 1979 Gerald Brazeal was the first person referred by the Union to the Respondent and the Respondent hired Brazeal as the first gen eral foreman for the Plant Scherer jobsite 2 Since the project began in 1978 the Union has referred more than 2000 individuals to the Respondent With the exception of Brazeal all other employ ees were referred from the Union as journeymen and some were later promoted to foremen and some to general foremen When their job assign ments were completed at the Plant Scherer site the employees have either reverted back to journey man status or their employment with the Respond ent has been terminated The Respondents employee complement3 has varied from time to time and the Respondent has found it necessary to employ as many as three su perintendents 4 in addition to Hodgin at the site to supervise a particular area of construction During this time while there were additional superintend ents on the project the general foremen reported directly to the superintendent assigned to their spe cial area The maximum number of general fore men on the project at any one time was five The collective bargaining agreement provided that there was to be at least I foreman for approximate ly every 10 journeymen 5 and that there would be at least 1 general foreman on each project Since 1978 there have been 12 general foremen employed by the Respondent at one time or an other In December 1984 in addition to Brazeal the Respondent employed Ronald Gerald Ronnie Yates and Fred Berger as general foremen Gerald was initially referred to the Respondent on May 10 1979 and was promoted to the position of gen eral foreman in 1981 Yates was referred to the Re spondent on September 9, 1979, and Berger on August 6 1979 Both were promoted and have been general foremen since 1982 The parties stipulated that at all material times Brazeal Gerald and Yates have been supervisors within the meaning of Section 2(11) of the Act The classifications of general foreman and foreman are included in the bargaining unit, and the wage 2 The judge found that Brazeal was head general foreman a The Respondents work force in mid 1981 peaked at between 392 and 425 employees In December 1984 there were 130 employees 4 The additional superintendents were Emery Nichols James Woods and Howard Morns The parties stipulated that this ratio may vary from time to time 291 NLRB No 80 POWER PIPING CO rates6 and benefits7 for these classifications are provided for in the collective bargaining agree ment The wages and benefits of the superintend ents are set by the Respondent 8 On December 28 1984 the Union conducted an internal election It is undisputed that Brazeal Gerald and Yates all of whom were members of the Union voted in the internal union election It is further undisputed that Brazeal Gerald and Yates have never held any union office nor were they candidates for any position in the 1984 internal union election Contentions of the Parties The General Counsel contends that Brazeal Gerald and Yates are high level supervisors and that their mere act of voting in the internal union election constituted unlawful interference with the administration of the Union in violation of Section 8(a)(2) of the Act The Respondents contention is twofold First, it contends that under the test as set forth in Nassau & Suffolk Contractors Assn, 118 NLRB 174 (1957) and its progeny, Brazeal Gerald and Yates are not high level supervisors Second, it contends that even if they are found to be high level supervisors the mere act of voting in the internal union election cannot be attributed to the Respondent and cannot as a matter of law, constitute a violation of the Act Based on his finding that Brazeal Gerald, and Yates are high level supervisors who voted in the internal union election the judge concluded that the Respondent interfered with the administra tion of the Union and thereby violated Section 8(a)(2) and (1) of the Act Relying on Nassau and Three Hundred South Grand Co 257 NLRB 1397 (1981), the judge concluded that a violation of the Act occurs when high level supervisors vote in an internal union election There is no re quirement that the company have knowledge that their high level supervisors voted or that their ac tions be authorized or ratified in order to constitute a violation of the Act Analysis and Conclusions The seminal Board decision involving the issue of whether and under what circumstances an em ployer violates Section 8(a)(2) of the Act by its su pervisors participation in internal union affairs is Nassau & Suffolk Contractors Assn supra In that The contractual wage rates are as follows ,journeymen-$14 90 per hour foremen-$15 90 per hour general foremen-$16 55 per hour Bra zeal received $I per hour more than the general foremen rate r Brazeal Yates and Gerald receive holiday pay from the Respondent which is not provided for in the collective bargaining agreement 8 Hodgin s salary is $72 000 per year The additional superintendents were paid $60 000 annually 495 case the Board found that the voting by master me chamcs at union membership meetings did not con stitute unlawful interference with the administra tion of the union In reaching this conclusion the Board examined numerous factors The master mechanics who were found to be su pervisors within the meaning of the Act were members of the union were included in the unit and were covered by the collective bargaining agreement which provided that [e]mployment of Master Mechanics is to be governed by agreement and they shall be members of this Local Union They may accept such employment only with the consent of this Local Union The Board noted that some master mechanics shifted from job to job with the same employer or with different employ ers and that as a result of these shifts the master mechanics at times worked as nonsupervisory jour neymen The Board recognized that in this situation par ticularly in the construction industry and building trades unions where foremen possess supervisory powers while at the same time remaining subject to union rules and discipline, the master mechanics owe allegiance at least as much to the Union as to their employers They are agents of both Accordingly the Board concluded Where foremen are members of the rank and file unit and union it is reasonable to expect that they will have a voice and vote in the administration of the affairs of the union It is obvious that in a setting where foremen are included in bargaining units together with the rank and file some modification of the ordi nary rules of respondant superior must be made We have been told that acts of supervisory officials are not to be viewed in vacuo Instead they are to be taken in their setting In other words the responsibility of an employer for the conduct of a supervisor cannot be ascer tained by mathematical formulas Rather it is the circumstances which determine the liabil ity 118 NLRB at 181-182 (fns omitted) Examining the circumstances of this case, the Board found that it was totally unrealistic to at tribute automatic responsibility to the respondent for the intraunion conduct of the master mechanics in their union Rather the Board stated that the re spondent would be liable only if it could be shown that the respondent encouraged authorized or ratified the activities of the master mechanics or acted in such manner as to lead employees reason ably to believe that the master mechanics were 496 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD acting for and on behalf of management As there was not a scintilla of evidence that could support a finding to that effect the Board found under the circumstances that the respondent did not un lawfully interfere with the administration of the union by the participation of the master mechanics in union elections The Board also found however that the re spondent was liable for the voting of certain com pany executives and high ranking supervisors who were not included in the bargaining unit Although finding their membership in the union not to be un lawful the Board concluded that an 8(a)(2) finding was warranted since [i]t is quite conceivable that in a closely divided vote executive and high ranked supervisors would have the balance of power and be in a position to select the union officials who are to deal with them in their separate capacity as em ployer agents 118 NLRB at 184 Similarly the Board found that the participation of two master mechanics in bargaining negotiations on behalf of the union constituted unlawful inter ference Because of the divided loyalty and inter ests presented by the master mechanics who were both unit and union members as well as supervi sors the Board concluded that the respondent was under a duty when confronted with a union nego tiating committee that included its own agents to protest its composition and to refuse to deal with it By failing to do so the Board found that the re spondent violated Section 8(a)(2) In subsequent decisions the Board has generally found no violation when supervisors who are in eluded in the bargaining unit vote in internal union elections or hold union offices 9 Conversely the Board has generally found a violation of Section 8(a)(2) when supervisors not included in the unit participate in internal union affairs i 0 Certain Board decisions however deviate from these general rules In Anchorage Businessmen s Assn 124 NLRB 662 (1959) certain of the phar macist supervisors who were included in the bar gaining unit were instrumental in withdrawing from the union that had represented them and forming a new independent union Certain of these supervisors voted in internal union elections of the independent union and served as the independent s officers and as members of the independents nego tiating committee The Board found that by acqui 9 Geihch Tanning Co 122 NLRB 1119 (1959) National Gypsum Co 139 NLRB 916 (1962) Banner Yarn Dyeing Corp 139 NLRB 1018 (1962) Beach Electric Co 174 NLRB 210 (1969) Allied Chemical Corp 175 NLRB 974 (1969) 10 Detroit Assn of Plumbing Contractors 126 NLRB 1381 (1960) enfd in part 287 F 2d 354 (D C Or 1961) decision on remand 132 NLRB 658 (1961) Botifteld Refractories Co 127 NLRB 188 (1960) Geihch Tanning Co 128 NLRB 501 (1960) Employing Bricklayers Assn 134 NLRB 1535 (1961) escing in this conduct of its supervisors the Re spondent violated Section 8(a)(2) As to the viola tion with regard to voting in internal union elec tions the Board in a footnote stated that two of the pharmacist supervisors were supervisors with managerial functions In National Gypsum Co 139 NLRB 916 (1962) the trial examiner in reaching his decision to dis miss the complaint concluded that the Board in its Anchorage decision did not intend to modify the Nassau decision Rather he reconciled the deci sions by noting that the supervisors in the Anchor age case were higher level supervisors having managerial functions as the Board pointed out [and] that the supervisors in question were active in setting up a brand new union which natu rally did not have a long history of independence of the employers as was the case in Nassau 139 NLRB at 921 The Board specifically endorsed this interpretation of these cases in Banner Yarn Dyeing Corp 139 NLRB 1018 1019 fn 1 (1962) Subsequent decisions interpreted the Board s Banner Yarn decision to mean that the matter of whether supervisors were or were not included in the bargaining unit no longer affected the determi nation whether an employer was to be held liable for supervisory voting in internal union elections Rather in these decisions the controlling factor became whether the supervisors involved were high level or low level supervisors Thus in A L Mechhng Barge Lines 197 NLRB 592 597 (1972) the trial examiner found no violation where low level supervisors in a separate bargaining unit from the rank and file employees voted in a union elec tion In Schwenk Inc 229 NLRB 640 (1977) with out any mention of whether the supervisors were in the bargaining unit or not the Board found an 8(a)(2) violation based on the voting by two man agerial and high level supervisors in internal union elections And in Three Hundred South Grand Co supra in which the administrative law judge con cluded that it was immaterial whether the supervi sor was a high or low level supervisor because the supervisors grievance handling for the union rep resented an actual conflict of interest in violation of Section 8(a)(2) the Board in adopting the judge s finding noted that the supervisor was a high level supervisor and voted in an intraunion election for steward 257 NLRB at 1397 fn 1 As can be readily observed from the foregoing discussion of cases the inquiry in these cases has shifted from a complete examination of all the fac tors present as set forth in Nassau to a review re stricted to a determination of whether the supervi sor in question is high level or low level We reject such a limited analysis As the Board made clear in POWER PIPING CO 497 Nassau because supervisors who are union mem bets can be expected to owe allegiance at least as much to the Union as to their employers it cannot automatically be assumed that their state ments or actions as to intraunion matters represent the view and interests of their employers 118 NLRB at 182 The assumption is of even more doubtful validity when the supervisors are mem bets of the bargaining unit with an interest in the contractual conditions their union negotiates for them and it can hardly be assumed that this alle giance to the union loses all force simply because a supervisor is high level rather than low level Thus an employer is properly held liable for the strictly intraunion conduct of its supervisors only if it is clear on the basis of an examination of all the circumstances that the employer encouraged au thonzed or ratified the supervisory activities or acted in such manner as to lead employees reason ably to believe that the supervisors were acting for and on behalf of management Nassau supra 118 NLRB at 183 No one factor can determine this issue As seen in Nassau itself the Board found that the respond ent was not responsible for the voting of the master mechanics but was responsible for their participa tion on the union s negotiating team and the voting of other supervisors not included in the unit and of some executives In sum we reaffirm the analysis set forth in the Board s Nassau decision and will examine all the circumstances presented in a case to determine if a respondent has unlawfully interfered with the ad ministration of a union through its supervisors par ticipation in intraunion affairs We emphasize that this analysis must be conducted on a case by case basis We expressly abandon any attempt to limit this analysis by assigning controlling weight to any one factor 11 We agree with the Court of Appeals for the District of Columbia Circuit that the fol lowing considerations although not intended to be all inclusive will generally serve as a guide in de termining the lawfulness or unlawfulness of the su pervisory participation in internal union affairs (1) The nature of the supervisory position how completely the responsibilites of the par ticular position identify the holder of the posi tion with management Careful reference should be made to § 2(11) bearing in mind that the definition therein contained was not intended to include straw bosses and lead men Such consideration is necessary because of the infinite possible variations in responsibil ities enumerated in § 2(11) (2) Apparent permanence of the supervisory position how long the position has been held how high it is in the company s hierarchy of supervisors This is important because the degree of possibility of the employees being hired later as a journeyman should have a direct bearing on his immediate right to par ticipate in union affairs (3) The extent to which his position is prop erly included in or excluded from the bargain ing unit Plumbers Local 636 v NLRB (Detroit Plumbing Contractors) 287 F 2d 354 362 (D C Cir 1961) With respect to the instant case the judge gave controlling weight to his conclusion that Brazeal Yates and Gerald were high level supervisors Having reached this conclusion he found without further discussion that the Respondent violated Section 8(a)(2) by their voting in the December 28 1984 internal union election Examining all the fac tors present in this case we disagree with the judge and reverse his finding In addition to these factors we will also examine the nature of the su pervisor s alleged participation in mtraunion affairs in determining whether unlawful interference exists As found by the judge Brazeal is head general foreman and reports directly to David Hodgin the site superintendent and the highest official of the Respondent at the Plant Scherer construction site 12 As head general foreman Brazeal attends the project engineers meetings and then with the chief engineer and Hodgin meets with the general foreman to explain what work needs to be done Brazeal can call meetings with the general foremen on his own initiative and has conducted such meet ings without Hodgin Brazeal distributes assign ments to the general foremen directs their work and assigns them additional work when their as signments are completed Brazeal recommends to Hodgin candidates for general foremen and informs the successful candi dates of their selection According to his testimony he has the authority to discharge general foremen but would do so only after consultation with Hodgin Brazeal also has the authority to approve recommendations from either the general foremen or foremen to fire journeymen and he participates as the Respondents representative in the first step of the grievance procedure In addition only Bra zeal and Hodgin have authority to contact the Union for referrals 2 Contrary to the judge s statement in his decision that Brazeal s office was located in the building with the engineers the record reveals that his " To the extent prior cases are inconsistent they are overruled office is located in a trailer in front of the warehouse 498 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Balanced against these supervisory and manage nal functions are the facts that Brazeal is a member of the Union included in the bargaining unit and covered by the collective bargaining agreement to which the Respondent is signatory In addition Brazeal receives only $1 per hour more than the general foremen and considerably less than Hodgin who makes $72 000 per year and the other superintendents who made $60 000 per year Al though Brazeal has held his present position since 1979 and the project is likely to continue until 1989 it is undisputed that Brazeal will return to the Union for referral as a journeyman when the project ends Under these circumstances we do not find that by voting in an internal union election on Decem ber 28 1984 Brazeal acted in such manner as to lead employees reasonably to believe that he was acting for and on behalf of management Nassau supra 118 NLRB at 182-18313 Rather as the Board noted in Nassau we find it reasonable to expect that Brazeal as a member of the Union and unit whose wages and benefits were tied to the col lective bargaining agreement would cast his vote in the election conducted by his union and that em ployees would perceive his participation in the election as a result of his union and unit member ship, not his role as management official We do not view Brazeal as exercising sufficient managerial functions to warrant a finding that the Respondent has interfered with the administration of the Union by virtue of his merely voting in an internal union election In this regard we note that as head gener al foreman Brazeal serves as a conduit between Hodgin and the engineers on the one hand and the general foremen on the other, and that his duties in large part are dictated by decisions made by Hodgin and the engineers which Brazeal in turn effectuates Accordingly under the totality of the circumstances we do not find an 8(a)(2) violation with respect to Brazeal s voting and we dismiss this complaint allegation Similarly we do not find unlawful the voting by Gerald and Yates in the internal union election Both Gerald and Yates are general foremen who supervise three foremen each of whom in turn su pervises approximately 10 employees As general foremen they lay out the pipes in the way they want them to be installed assign work to the fore men assure that supplies, equipment and materials are available to their foremen coordinate between the project engineer and Brazeal on materials and 13 The General Counsel does not argue nor does the record support that the Respondent in any way encouraged authorized or ratified Brazeal s conduct-the alternative basis articulated by the Board in Nassau for finding an 8(a)(2) violation drawings discipline employees including dis charge answer questions for and resolve problems of foremen and make recommendations for fore men positions Gerald has been a general foremen since 1981 and Yates since 1982 As to their ties to the Union both Gerald and Yates are union members were referred to the Re spondent by the Union as journeymen and both will return to the Union for referral as journeymen when the Plant Scherer project ends The classifi cation of general foreman is included in the bar gaining unit, and their wages and benefits are set by the collective bargaining agreement Under these circumstances as with Brazeal we cannot conclude that their mere act of voting in the December 28 1984 internal union election is at tnbutable to the Respondent Again there is no al legation that the Respondent encouraged author ized or ratified their conduct Further given their referral from the Union and their eventual return to it for another referral as journeymen as well as their inclusion in the unit coverage by the collec tive bargaining agreement and exercise of relative ly little managerial functions we do not find that their voting could reasonably lead employees to be lieve that they were acting for and on behalf of management For these reasons we find that the Respondent has not violated the Act and we dis miss the complaint in its entirety ORDER The complaint is dismissed Sharon Effatt Howard Esq for the General Counsel Heather Briggs Esq of Atlanta Georgia for the Re spondent DECISION STATEMENT OF THE CASE WILLIAM N CATES Administrative Law Judge This case was tried at Macon Morrow and Atlanta Georgia on 29 and 30 October 1985 1 The charge was filed by Larry Jones an individual on 24 June and the complaint issued on 16 August alleging that Power Piping Compa ny (the Company) violated Section 8(a)(2) and (1) of the National Labor Relations Act (the Act) by interfering with the administration of United Association of Plumb ers and Steamfitters Local Union 72 (the Union) by per mitting its supervisors Gerald D Brazeal (Brazeal) Ronnie Yates (Yates) and Ronald Gerald (Gerald) to vote on 28 December 1984 in an internal union election The parties stipulated that Brazeal Yates and Gerald are supervisors within the meaning of Section 2(11) of the Act therefore the issues presented are whether the three are high level supervisors and whether their voting in ' All dates are in 1985 unless otherwise indicated POWER PIPING CO the internal election of the Union constituted interference with the administration of the Union I find for the Gen eral Counsel on both issues On the entire record including my observation of the demeanor of the witnesses and after consideration of briefs filed by the General Counsel and Company I make the following FINDINGS OF FACT I JURISDICTION The Company is a Pennsylvania corporation with an office and place of business located at Juliette Georgia where it is engaged in mechanical contracting and piping installation During the calendar year preceding issuance of the complaint the Company purchased and received at its Juliette Georgia facility materials and supplies valued in excess of $50 000 directly from suppliers locat ed outside the State of Georgia The complaint alleges the Company by its answer admits and I find it is an em ployer engaged in commerce within the meaning of Sec tion 2(2) (6) and (7) of the Act II THE LABOR ORGANIZATION INVOLVED The complaint further alleges the Company admits and I find the Union is a labor organization within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES A Background and Undisputed Facts The facts in the instant case are for the greater part not in dispute 2 At all times material the Company has agreed to be hound by the terms and conditions of a collective bar gaining agreement between the Union and the Associa tion of Mechanical Contractors of Atlanta Inc for work performed by it as a contractor on Georgia Power Company s Plant Scherer project located at Juliette Georgia 3 Georgia Power Company is constructing a fossil fuel facility to generate electricity and the Compa ny s contract with Georgia Power calls for it to perform all piping installation which includes rigid turbine out door and heavy wall piping The Company commenced work at Plant Scherer in mid 1978 and expects to corn plete its part of the project in approximately 1989 The working area for the project originally covered 5 miles but currently is confined to approximately 300 acres The Company s first representative at the Plant Scherer site was Superintendent David Hodgin (Hodgin) Hodgin is and has been the Company s senior most representative at the construction site 4 He reports directly to the Corn pany s chairman of the board The Company s chief engi neer Bill Deluca is the second in command at the job site The Company s hierarchy of supervisors in descend 2I shall address certain facts related to the three supervisors specific duties and responsibilities in the Analysis and Conclusions section of this decision 2 The collective bargaining agreement is effective from 1 August 1984 to 31 July 1986 1 Hodgin s pay is $72 000 per year 499 mg order is the site superintendent chief engineer gener al foreman and foreman 5 In addition to Hodgin the Company has had as many as three additional superin tendents working at the site depending it appears on the number of employees on the work force 6 The three su perintendents other than Hodgin were Emery Nichols (Nichols) James Woods (Woods) and Howard Morris (Morris) 7 These three superintendents who were not re ferred to the Company by the Union reported directly to Hodgin Superintendent Woods came on the project in 1980 and was terminated on I1 December 1981 Su perintendent Morris came to the project in June 1980 and was transferred to another company project in Pitts burgh Pennsylvania on 29 January 1982 Superintendent Nichols the first additional superintendent at the project came in 1979 and was thereafter transferred to another company project in Tampa Florida on 13 May 1983 After Nichols was transferred out Hodgin has been the only superintendent on the project Although there were additional superintendents on the project the general foremen reported to the superintendent assigned to their particular area The maximum number of general fore men on the project at any one time was five It appears the Company has had 12 different individuals serve as general foremen at one time or another since 1979 8 Bra zeal was the first general foreman hired by the Compa ny 9 He was also the first person the Union referred to the Company All who served as general foremen except Brazeal were referred from the union hall as journeymen and were thereafter promoted to foremen and/or general foremen positions Since the project began the Union has referred approximately 2000 individuals to the Com pany 10 At the present time there are three general fore men in addition to Brazeal The three are Gerald Yates and Burger Gerald was referred to the Company on 10 May 1979 as a journeyman He was made a general fore man in 1981 and has since that time occupied that pose tion Yates was referred to the Company as a journey man on 4 September 1979 and has at all times since 1982 served as a general foreman Burger was referred to the Company as a journeyman on 6 August 1979 and has at all times since 1982 been a general foreman The parties stipulated that at all times material Brazeal Gerald and Yates have been supervisors within the meaning of Sec tion 2(11) of the Act All wage rates for general foremen and foremen are set by contract The general foremen and foremen share the same benefits as journeymen except they are paid for holidays that are not provided for in the collective bargaining agreement The contract wage rates are 5 Whether the Company has a head general foreman s position is in dis puce I shall address that issue at the point where the specific duties of Brazeal are discussed 6 The work force peaked in mid 1981 at somewhere between 392 and 425 employees 7 Pay for each of the three additional superintendents was approxi mately $60 000 annually All benefits for the superintendents are paid for by the Company s The 12 were Brazeal McLaughlin Burton Owenby Edwards Stover Hall Cook Barnett Gerald Yates and Burger 9 He was hired in as a general foreman on 12 March 1979 10 The Union has an exclusive hiring hall arrangement with the Com pany 500 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Journeymen-$14 90 per hour Foremen-$ 15 90 per hour General Foremen-$16 55 per hour Brazeal is paid $1 per hour more than the general fore men scale The parties stipulated the ratio of journeymen to foremen is approximately 10 to I but may vary from time to time Brazeal Yates and Gerald voted in an internal union election held on 28 December 1984 Brazeal Yates and Gerald have never held any union office and they were not candidates for any position in the 1984 internal union election The Company s work force at the time of the election was 130 There were 4 general foremen 8 fore men 70 journeymen and 16 apprentices at that time The remaining 32 employees were the site superintend ent 8 engineers an office manager clericals and 16 members of other crafts B Contentions of the Parties Before setting forth the specific facts applicable in de ciding the issue of whether the three statutory supervi sors are high level supervisors I shall set forth a brief summary of the parties positions The General Counsel contends Brazeal Gerald and Yates clearly are high level supervisors She asserts their long uninterrupted tenure as general foremen along with their job duties and benefits supports her contention that they are high level supervisors The General Counsel also contends that the large number of foremen and jour neymen that report to the three general foremen demon strate they are high level supervisors aligned with man agement The General Counsel asserts the mere act of voting by these three high level supervisors in the inter nal union election constituted unlawful interference with the administration of the Union The Company makes a twofold defense First it contends Brazeal Gerald and Yates are not high level supervisors In support of that contention the Company asserts the three supervisors in question only perform purely ministerial duties when they direct the work of the foremen and others because they do so according to predetermined schedules pre pared by the engineers and superintendents The Compa ny further contends in support of its first defense that the three supervisors in question are (1) included in the bar gaining unit (2) revert to journeymen status when their employment with the Company ceases and (3) paid ap proximately the same rate as low level supervisors The Company suggests that all three of the preceding factors strongly indicate the three individuals in question are low level supervisors Second the Company contends that even if the three individuals in question are found to be high level supervisors their voting in the internal union election cannot be attributed to it and cannot as a matter of law constitute a violation of the Act The Company contends the General Counsel must prove actual interference with the internal affairs of the Union before a violation of the Act can be established The Company argues there has been no interference in that there is no showing the three ever held any official posi tion with the Union or that they even acted in any manner that would lead other bargaining unit members to believe they acted for or on behalf of management in their involvement with the Union The Company argues the Board has uniformly required a showing as a predi cate to a finding of an 8(a)(2) violation that an employer has somehow failed to act properly and that the supervi sors in question have done something more than merely vote in an internal union election It asserts a violation cannot exist if the employer involved has not had an op portunity to become aware of the potential violation and to avoid it The Company asserts there is no evidence to indicate it was ever confronted with any situation where it could have protested to the Union and have avoided a violation of the Act C Controlling Legal Principles It is helpful to examine the applicable legal precedents and statutory provisions governing the issues before turn ing to the specific facts related to the actual status of the three statutory supervisors in question In itself retention of union membership by supervisors is not illegal 11 Section 14(a) of the Act in part states Nothing herein shall prohibit any individual employed as a supervisor from becoming or remaining a member of a labor organization Section 14(a) of the Act obviously contemplates that supervisors may participate to some extent in the affairs of labor organizations without in volving their employers in violations of Section 8(a)(2) of the Act 12 National Gypsum Co 139 NLRB 916 (1962) The leading case with respect to supervisors par ticipation in the affairs of a labor organization is Nassau & Suffolk Contractors Assn 118 NLRB 174 (1957) In Nassau the Board set forth different rules for low level supervisors who are in the bargaining unit and high ranking supervisors who are outside the bargaining unit The Board ruled that an employer would not be liable for the actions such as voting in internal union elections of its low level supervisors unless it could be affirmative ly shown that the employer encouraged authorized or ratified such activities or that the employer acted in such manner as to lead employees reasonably to believe the low level supervisors were acting for and on behalf of management The Board reasoned that low level su pervisors allegiance was at least as much with the union as with their employer 13 The Board noted that low level supervisors may be working as supervisors at one time and as journeymen at other times As to high rank ing supervisors the Board held they could not lawfully participate even in an election to determine who would administer the affairs of their union The Board held These individuals [company executives and high ranking supervisors] did nothing more than appear at a union meeting and vote at a secret election con cerning administration of the Union However I' The term supervisor is defined in Sec 2(11) of the Act and the definition of an employee set forth in Sec 2(3) of the Act explicitly ex cludes supervisors 12 Sec 8(a)(2) of the Act makes it unlawful for an employer to inter fere with the administration of any labor organization 13 The Board held this was particularly so in certain industries such as the construction industry POWER PIPING CO 501 voting in union elections is plainly a form of inter ference with the administration of a labor organiza tion It may not be unlawful for company execu tives and high ranking supervisors to retain the union membership they acquired as rank and file employees as job insurance in the event they should revert to ordinary employee status but that does not make it lawful for them to participate in elec tions to determine who is to administer the affairs of the union It is quite conceivable that in a closely divided vote executive and high ranking supervisors would have the balance of power and be in a posi tion to select the union officials who are to deal with them in their separate capacity as employer agents [Id at 183-184] The Board continues to adhere to its Nassau holdings See for example Three Hundred South Grand Co 257 NLRB 1397 at fn 1 (1981) in which it held it was a vio lation of Section 8(a)(2) of the Act for a high level su pervisor to simply vote in an intraunion election for steward It is no defense to a finding of interference that the activities of the high level supervisors were car reed on without being expressly authorized or ratified by the employer Plumbers Local 636 (Detroit Plumbing Con tractors) v NLRB 287 F 2d 354 (D C Cir 1961) The Board has also held that Section 8(a)(2) of the Act is vio lated where high level supervisors hold dual positions even though the evidence shows the supervisors merely engaged in routine intraunion activities and no showing was made of any actual conflicts arising from their dual functions Three South Grand Co supra See also Schwenk Inc 229 NLRB 640 (1977) The Board has indi cated it will decide the question of whether an employer interferes in the administration of a union where its su pervisors actively participate in union affairs on a case by case approach specifically rejecting a per se rule as unrealistic especially in the construction industry Wels bach Electric Corp 236 NLRB 503 at 510 (1978) The court in Plumbers Local 636 supra noted there is ex treme upward and downward flexibility in job positions in the construction industry in that a person may be hired one week for a job as a foreman and the next week as a journeyman The court further noted that in view of this flexibility not every supervisory employee would be barred from active participation in a journeymen s union In observing that the Board in Nassau supra had ap proached this problem on a case by case basis the court set forth certain non all inclusive considerations which it said would generally serve as a guide toward reaching a decision on whether the actions of supervisors in partici pating in internal union affairs were proper or improper The court s suggested considerations are (1) The nature of the supervisory position how completely the responsibilities of the particular posi tion identify the holder of the position with man agement Careful reference should be made to Sec tion 2(11) bearing in mind that the definition there in contained was not intended to include straw bosses and leadmen Such consideration is neces sary because of the infinite possible variations and responsibilities enumerated in Section 2(11) (2) Apparent permanence of the supervisory post tion how long the position has been held how high it is in the company s hierarchy of supervisors This is important because the degree of possibility of the employee s being hired later as a journeyman should have a direct bearing on his immediate right to par ticipate in union affairs (3) The extent to which his position is properly included in or excluded from the bargaining unit This is really a conclusion to be drawn from factor (1) above in light of Section VI of this opinion 14 [287 F 2d at 362 ] Applying the above set forth principles and following the guidance therein I shall now consider the specific facts relating to the three statutory supervisors in ques tion to determine whether they are high level supervi sors D Analysis and Conclusions on the Status of Brazeal Gerald and Yates I am persuaded Brazeal qualifies as a high level super visor of the Company Although there is dispute con cerning Brazeal s title and although the title given an in dividual is not controlling I find Brazeal at some point became and at the critical time (December 1984) was head general foreman As will be demonstrated his duties and responsibilities clearly support such a conclu sion Brazeal testified he and others referred to himself as head general foreman 15 Superintendent Hodgin stated he had heard Brazeal referred to as head general fore man and acknowledged he did nothing to dispel that belief Brazeal s office is located in the building with the engineer whereas the general foremen s offices are locat ed elsewhere Brazeal testified he had the authority to fire the general foremen if [he] got mad enough how ever he stated he would consult with Superintendent Hodgin before he actually did so Yet another factor that indicates Brazeal is in fact as well as title head general foreman is that he sits in on the project engineers meet ings whereas the general foremen do not and following such meetings he along with the chief engineer and Hodgin meets with the general foremen to outline what needs to be done Further Brazeal calls general foremen meetings on his own initiative and conducts some such meetings with the general foremen without Superintend ent Hodgin being present 16 That Brazeal is head general 14 In sec VI of the opinion the court held among other things that al though Sec 14(a) of the Act did not prohibit supervisors from becoming or remaining members of a union that section did not necessarily guaran tee supervisors the right to participate actively in a journeymen s union is I credit Brazeal s testimony notwithstanding the fact that he was a little less candid in his trial testimony than it appears he had been in a pretrial affidavit given to the Board I am persuaded he made every rea sonable effort to tell the truth when he testified No reason was advanced by any party as to why Brazeal would not tell the truth about his job title duties and responsibilities On some points Brazeal s testimony con flicted with that of Superintendent Hodgin On those points where there was any conflict I specifically credit Brazeal s testimony Hodgin was somewhat evasive and at times gave contradictory testimony 16 I specifically do not credit Hodgin s testimony that he has attended every meeting held with the general foremen 502 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD foreman in title as well as functions and duties is also demonstrated by the fact the general foremen can not ap point journeymen to the position of foremen without consulting with Brazeal Brazeal is paid $1 per hour more than the general foremen I am persuaded he is paid the extra money to compensate for his extra duties as head general foreman 17 Hodgin testified that only he and Brazeal were authorized to contact the union hall for referrals 18 On occasion Brazeal asks for referrals by name from the union hall Brazeal distributes assignments to the general foremen and directs them in their duties The general foremen report to Brazeal if they need work 19 Brazeal nominates individuals as general fore men and then informs them they have been selected after the project superintendent (Hodgin) gives his concur rence with Brazeal s recommendations Brazeal approves recommendations from either the general foremen or foremen to fire journeymen Brazeal is involved in em ployee grievances at the first step of the grievance pro cedure It is clear from the above that Brazeal s duties and responsibilities identify him with management Bra zeal s position is above journeymen foremen and gener al foremen He reports directly to the site superintendent which is the Company s highest representative at the construction site Brazeal has held his position since 1979 and as such it is clear he is not a transitory supervisor Aithough it is true Brazeal may return to the union hall for a referral as a journeyman foreman or general fore man if anything should happen to his current employ ment however I note that possibility does not seem likely for an extended period of time in that the amount of work as well as the work force at the construction site is expected to remain constant for the next 3 years The fact that general foremen (head general foremen) are in the unit and covered by the collective bargaining agree ment does not preclude a finding that Brazeal is a high level supervisor inasmuch as inclusion or exclusion in the bargaining unit is not dispositive of that issue Brazeal s duties clearly identify him with management notwith standing the fact that he may be covered by the collec Live bargaining agreement Although Brazeal s rate of pay20 is more in keeping with low level supervisors at "Although Superintendent Hodgin testified Brazeal s extra pay was not for extra duties he gave no explanation or reason for the extra pay I am therefore persuaded that contrary to Hodgin s testimony Brazeal s extra pay is based on his extra duties Brazeal s extra pay could not be based on seniority because the other general foremen in question were hired in very close proximity to the time Brazeal was hired 18 There is some indication that others may have in the very recent past contacted the union hall for referrals however I note Brazeal has been away from the jobsite for health reasons In fact Brazeal s testimo ny here was taken at his home because of his physical condition at the time of the trial 19 Although it appears the work is designed by project engineers and although the engineers determine how the work is to progress it is Bra zeal who takes the actual work requirements to the general foremen and then oversees their progress and compliance with the designated work Hodgin acknowledged he had given Brazeal instructions regarding Bra zeal s directing the general foremen in their assigned duties 20 Brazeal s pay is $ 17 55 per hour whereas superintendents such as the three who at one time worked on the project were paid $60 000 per year and Site Superintendent Hodgin is paid $72 000 per year the Company his responsibilities align him with higher management and his responsibilities must be given con trolling weight Although Brazeal s as well as Yates and Gerald s health and medical benefits are paid for pursu ant to the collective bargaining agreement they do re ceive holiday pay from the Company which is not cov ered by the collective bargaining agreement For all the above reasons I am persuaded and find Brazeal is a high level supervisor of the Company 2 i Similarly Yates and Gerald who are next below Bra zeal in the Company s hierarchy of supervisors are high level supervisors Yates is in charge of all turbine piping work and Gerald is in charge of all underground and outside piping work As a general rule Yates and Gerald do not perform any work with tools At the time of the internal election Yates and Gerald each had three fore men working for them Each foreman in turn had ap proximately 10 employees that worked for them There fore Yates and Gerald each supervised approximately 33 employees at the time of the internal union election The foremen who work directly for Yates and Gerald qualify as statutory supervisors in that they among other things discipline employees up to and including discharge with out prior approval from anyone General foremen such as Yates and Gerald (1) lay out the way they want pipe installed after they have been assigned a particular system to work on (2) make work assignments to the foremen assigned to them (3) see that supplies equip ment and materials are available to the foremen assigned to them (4) coordinate between the project engineer and the head general foreman on materials and drawings (5) discipline employees to include discharge without prior approval (6) answer questions for and resolve problems of the foremen assigned to them and (7) make recom mendations for foremen positions It is apparent that Yates and Gerald are identified with higher management rather than with low level supervision Although there is the clear probability that general foremen such as Yates and Gerald will if and when their general foremen pose tions cease to exist return to the union hall for referral as journeymen they nevertheless are not in the circum stances of the instant case transitory supervisors 22 Gerald has been a general foreman since 1981 and Yates since 1982 As noted earlier the amount of work as well as the work force at the construction site is expected to remain constant for the next 3 years Therefore the in stant case does not involve a situation where an individ ual is a general foreman one week and a journeyman the next week The issue of whether one is a high level su pervisor does not turn so much on what the individual is paid or on whether the individual is included or ex 21 I have intentionally not discussed certain evidence that would dem onstrate the 2(11) supervisory status of Brazeal inasmuch as the parties stipulated that he as well as Yates and Gerald are supervisors within the meaning of that section of the Act 22 The likelihood of general foremen returning to the union hall for re ferrals after their general foremen positions cease to exist has been amply demonstrated in this record For example Edwards Burton McLaughlin Owensby and Stover were each initially referred to the Company by the Union as journeymen They each later became general foremen who thereafter left the Company for whatever reason and were subsequently referred back to the Company as journeymen POWER PIPING CO 503 cluded from the bargaining unit but rather turns on whether the duties and responsibilities of the individual will cause the individual to be identified with higher levels of management In the instant case the duties of Yates and Gerald clearly identify them with higher levels of management notwithstanding the fact they are included in the bargaining unit and are paid wages and enjoy benefits set by the collective bargaining agreement In light of all the above I am persuaded and find Yates and Gerald are high level supervisors of the Company I reject the Company s contention that even if Brazeal Yates and Gerald are found to be high level supervisors the General Counsel must prove they actually interfered with the internal affairs of the Union The Board cases do not require the General Counsel to meet such a burden Nassau and Three Hundred South Grand Co supra make it clear that a violation of Section 8(a)(2) of the Act occurs when high level supervisors vote in an internal union election There is no requirement that the company have knowledge that their high level supervi sors voted or that their actions be authorized or ratified in order to constitute a violation of the Act In summary I conclude and find as alleged in the corn plaint that the Company interfered with the administra tion of the Union in violation of Section 8(a)(2) of the Act on or about 28 December 1984 by permitting its high level supervisors Brazeal Yates and Gerald to vote in an internal union election CONCLUSIONS OF LAW 1 Power Piping Company is an employer engaged in commerce within the meaning of Section 2(2) (6) and (7) of the Act 2 United Association of Plumbers and Steamfitters Local No 72 is a labor organization within the meaning of Section 2(5) of the Act 3 By permitting Gerald D Brazeal Ronald Gerald and Ronnie Yates its high level supervisors to vote in an internal election of the Union the Company has inter fered with the administration of the Union and has en gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(2) and (1) of the Act 4 The violations of the Act noted above constitute unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act THE REMEDY Having found that the Company has engaged in cer tam unfair labor practices I find it necessary to order it to cease and desist and to take certain affirmative actions designed to effectuate the policies of the Act Although I have concluded the Company has inter fered with the administration of the Union by permitting its high level supervisors to vote in an internal union election and although I have recommended that it be or dered to cease and desist therefrom nothing in this pro posed remedy shall be construed to imply that any of the Company s supervisors are prohibited from maintaining basic union membership It is recommended that the Company be ordered to post the attached notice for 60 days 23 [Recommended Order omitted from publication ] 23 Under the circumstances of this case I deny the General Counsel s request for a visitatorial clause