Somerset Welding & Steel, Inc

SOMERSET WELDING & STEEL Somerset Welding & Steel, Inc and United Steel workers of America, AFL-CIO-CLC, Petition er Case 6-RC-9822 November 29 1988 DECISION AND DIRECTION BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT The National Labor Relations Board by a three member panel has considered determinative chal lenges in an election held May 15 1987 and the hearing officers report recommending disposition of them The election was conducted pursuant to a Stipulated Election Agreement The tally of ballots shows 62 for and 58 against the Petitioner with 15 challenged ballots I a sufficient number to affect the results of the election The Board has reviewed the record in light of the exceptions2 and brief and has adopted the hearing officers findings3 and recommendations only to the extent consistent with this decision The hearing officer found that leadmen Donald R Hauger Alexander Weir James Gooden David Mishler and Vincent Flannery are supervisors within the meaning of Section 2(11) of the Act The Employer excepts contending that these lead men neither exercise independent judgment nor have the authority to exercise independent judg ment in connection with their duties and that their duties are routine and clerical and therefore do not establish supervisory status We find merit in the Employer s exceptions The Employer is engaged in the manufacture in stallation and repair of truck bodies and trailers at three separate facilities Company President S Wil Liam Riggs Vice President of Production Guy Rush, and Chairman of the Board Sidney Riggs are the only individuals involved in the formulation and determination of management and labor rela tions policies Rush is responsible for the hiring and discharging of employees and also the determina tion of employee wages Each of the three Somer set facilities has at least two supervisors whose status is not in dispute Daily production meetings At the hearing the Petitioner withdrew its challenges to the eligibility of Neil Berkley Jeff Lohr and George Reese The parties stipulated to their employment at the time of the election and to their eligibility 2 In the absence of exceptions we adopt pro forma the hearing offs cer s recommendation that the challenges to the ballots of Calvin H Mowry Dale S Leslie Thomas P Pletcher Larry Sarver Larry Liven good Richard Edmunds and Todd Walker be overruled and their ballots be opened and counted 3 The Employer has excepted to some of the hearing officers credibil ity findings The Board s established policy is not to overrule a hearing officer s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Stretch Tex Co 118 NLRB 1359 1361 (1957) We find no basis for reversing the findings 913 are held to set work priorities assign and schedule orders and discuss the production process The hearing officer found that the five leadmen have basically the same authority They are respon sible for inspection of work and can order it redone if necessary Employees are expected to follow their leadmen s instructions and leadmen report to Guy Rush if an employee fails to do so Leadmen do not attend production meetings and cannot alter the production schedules However they are responsible for ensuring that production schedules are met The leadmen do not have au thonty to hire fire discipline promote transfer reward employees with wage increases or bonuses recall or lay off employees or to effectively rec ommend that Further as the hearing officer found leadmen do not have authority to grant time off for vacations or authorize overtime Leadmen cannot alter policies set by management They spend the majority of their time performing unit work and re ceive the same benefits as unit employees and like those employees are paid hourly and overtime pay Leadmen attend monthly safety meetings along with several supervisors and two unit employees Safety committee members communicate safety regulations to employees and report safety viola tions Safety committee notices manuals and meet ing minutes have referred to committee members as supervisors The hearing officer found that these five lead men are supervisors within the meaning of Section 2(11) based on their authority to direct employees in their work The hearing officer also found that the work being performed by the employees re quires daily more than routine hands on super vision Finally the hearing officer found that the leadmen s ability to report employee infractions and disobedience is more indicative of supervisory than employee status The Employer excepts to the hearing officers findings arguing that the lead men do not possess or exercise independent judg ment and authority in any aspect of their work We agree It is well established that the possession of any one of the indicia of supervisory authority specified in Section 2(11) of the Act is sufficient to confer supervisory status on an employee provided that the authority is exercised with independent judg ment on behalf of management and not in a routine or sporadic manner Thus the exercise of some supervisory authority in a merely routine clerical perfunctory or sporadic manner does not confer supervisory status on an employee 4 4 See Feralloy West Co 277 NLRB 1083 1084 (1985) 291 NLRB No 109 914 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Contrary to the heanng officer we conclude that the preponderance of the evidence fails to show that the leadmen exercise independent judg ment in directing the work force Rather the record evidence indicates that leadmen direct em ployees in a routine manner and the responsibility to direct the work was given to them based on their higher level of skill and greater seniority The hearing officer placed undue reliance on the fact that leadmen have authority to direct employ ees because they inspect their work Employees are able to perform their work with a minimum of guidance because the work is routine and predeter mined by the production schedule Thus the lead men function as quality control employees in in specting the work of others If an employee is not performing work properly the leadman reports this to his supervisor Leadmen do not have authority to effectuate any ultimate personnel decisions in cluding disciplining or rewarding employees for the quality of their work Leadmen do not exercise independent judgment but are merely responsible for distributing predeter mined work assignments and making sure they are completed to predetermined specifications Lead men are in daily contact with a supervisor who dis tributes their work assignments The amount of contact a supervisor has with a particular leadman depends on the need for supervision within his de partment If a leadman is faced with any significant personnel or production problem he is required to call his supervisor for instruction On two occasions a leadman was asked to com plete an Employee Evaluation However as the hearing officer found there is insufficient evidence to establish that management acts on these evalua tions without independent investigation or that the evaluations constitute effective recommendations for promotions wage increases or discipline Fur thermore the authority simply to evaluate em ployees without more is insufficient to find supervi sory status 5 8 Passavant Health Center 284 NLRB 887 890 (1987) The hearing officer also relied on the leadmen s inclusion on the safety committee as a factor sup porting his supervisory finding However the lead men s responsibility as safety committee members for ensuring that work is performed safely does not reflect the type of discretion indicative of supervi sory status Further the fact that the documents utilized by the safety committee refer to its mem bers as supervisors is not dispositive of their status See Feralloy West Co supra at fn 6 Under these circumstances we find that the Peti tioner has failed to meet its burden of producing sufficient evidence to prove that supervisory status in fact exists 6 In summary the factors relied on by the hearing officer when reviewed in light of the record fail to establish that the leadmen are su pervisors We therefore reject the hearing officer s recommendation with regard to the leadmen s su pervisory status and conclude that the challenges to their ballots should be overruled Accordingly as the challenges to the ballots of the leadmen are overruled and as these ballots are sufficient in number to affect the results of the elec tion we shall direct the Regional Director to open and count the ballots to prepare a revised tally of ballots and to take further appropriate action 7 DIRECTION It is directed that the Regional Director within 10 days from the date of this decision open and count the challenged ballots of employees Hauger Mishler Weir Gooden and Flannery and prepare and serve on the parties a revised tally of ballots IT IS FURTHER DIRECTED that this proceeding is remanded to the Regional Director for further ap propriate action 6 See Commercial Movers 240 NLRB 288 290 (1979) Both the Employer and the Petitioner filed objections to conduct of fecting the results of the election The Employer s objections were with drawn with the approval of the Regional Director on June 10 1987 The Petitioner s objections were consolidated for hearing before an adminis trative law judge with Cases 6-CA-19922 and 6-CA-20034