Hoyt, Brumm & Link, Inc

1060 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Hoyt, Brumm & Link, Inc and James A Fowler and Local Union No 72, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States of America, Intervenor Case 10-CA-21823 February 14, 1989 DECISION AND ORDER BY CHAIRAN STEPHENS AND MEMBERS CRACRAFT AND HIGGINS On March 3, 1987, Administrative Law Judge Lawrence W Cullen issued the attached decision The General Counsel filed exceptions and a sup porting brief to which the Respondent and the In- tervenor filed answering briefs 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 briefs and has decided to affirm the judge's rulings, findings, and conclusions, as modified, and to adopt the recom- mended Order The amended complaint alleges that the Re spondent violated Section 8(a)(2) and (1) of the Act by interfering with the administration of the Union through permitting its supervisor Fred Abbott to serve as a delegate to the Union's national conven- tion and as a member of the Union's finance com- mittee Based on evidence showing that Abbott possesses the authority effectively to recommend the hiring of employees, to assign work, to disci- pline employees, and responsibly to direct them, the judge found that Abbott is a supervisor within the meaning of Section 2(11) of the Act He further found, however, that although Abbott has the title of general foreman and, on the Respondent's job site, is second in authority to the project superin- tendent, Lapman, the Respondent has not accorded Abbott the status of a high-level supervisor Rather, the judge found that Abbott's performance of his supervisory duties is within the parameters set out and monitored by Lapman Moreover, the judge noted that there was no evidence that Abbott was involved in the Respondent's high- level affairs or participated in collective-bargaining negotiations on the Respondent's behalf Thus, the judge found no evidence that Abbott was so close ly aligned with management as to create a conflict of interest proscribed by Section 8(a)(2) merely by his limited participation, as a finance committee member and convention delegate, in intraunion af- fairs Accordingly, he recommended dismissal of the complaint We adopt the judge's recommended dismissal of the complaint In doing so, however, we rely on the rationale set forth in the Board's recent deci- sion in Power Piping Co, 291 NLRB 494 (1988) In Power Piping, the Board held that, in cases involv ing alleged unlawful employer interference in union affairs by virtue of a supervisor's participa tion in strictly intraunion activities, it would no longer ascribe controlling weight to a determina- tion of whether the individual in question is a "high-level" or "low-level" supervisor Rather, the Board reaffirmed the analysis set forth in Nassau & Suffolk Contractors Assn, 118 NLRB 174 (1957) Under Nassau, a determination of whether an em- ployer is liable for alleged unlawful interference in cases of this type requires an examination of all the circumstances in each case I See Power Piping, above at 497, Nassau, above at 183 In reaffirming Nassau, the Board in Power Piping also set forth guidelines that are intended to aid in determining whether the supervisor's participation in internal union affairs (as distinct from union-employer deal- ings) constitutes unlawful interference by the em- ployer These guidelines include considering the nature of the supervisory position, the permanence of the position, and the extent to which the super- visor's position is properly included in the unit As found by the judge, Abbott is the Respond- ent's onsite general foreman He is second in au- thority to the Respondent's onsite job superintend- ent, Thomas Lapman,2 and is responsible for carry ing out Lapman's decisions In addition to possess- ing the authority effectively to recommend hiring, firing, and disciplinary actions and to adjust griev- ances, Abbott directs the work of the other fore- men,3 and has the authority to override a fore man's disciplinary decision 4 Abbott is paid above ' In Nassau the Board found in the circumstances of that case that the respondent was not responsible for the voting at union membership meetings of certain supervisory master mechanics included in the unit but was responsible for the voting of other supervisors not included in the unit and of some executives The Board also found that the respond ent was responsible for the participation of the master mechanics on the union s negotiating team 2 Lapman is at the jobsite approximately 12 hours per day makes regu lar daily rounds of the jobsite and is personally familiar with the work of employees on the job He confers with the Respondents management of ficials concerning the work to be done at the jobsite generally and deter mines what work is to be done weekly Lapman sets the jobsite rules e g disciplinary rules and makes the final decisions regarding hirings firings and layoffs 3 There are three or four foremen depending on work demands each of whom directs approximately 10 journeymen * In addition to the judge s findings the record shows that Abbott has attended meetings with Lapman at which the other foremen were not present These meetings have included at least one meeting during which Lapman and Abbott discussed layoffs and one meeting among Lapman the project manager and the project engineer at which according to un contradicted testimony Abbott was present as a spectator 292 NLRB No 111 HOYT BRUMM & LINK INC the pay scale for general foremen set by the con- tracts and receives holiday benefits pursuant to the contract Although Abbott was hired as a general foreman, he may be reclassified as a foreman or a journeyman as the current project winds down Further, once the project is completed, Abbott will be terminated by the Respondent and will need to return to the Union's hiring hall for future job re ferrals 6 Abbott is a 40-year member of the Union and has served on the finance committee since 1984 The finance committee, which has three members, examines the Union's expenditures for accuracy and reports these findings to the executive board or business manager, but does not approve or disap- prove any expenditure Abbott was 1 of 16 dele- gates elected by the membership to the national convention in 1986 7 There is no evidence that he has ever served as a member of the Union's gov- erning body or that he has served as a member of a negotiating committee for either the Union or the Respondent Applying the analysis set forth in Power Piping to the facts of this case, we find that the Respondent did not violate Section 8(a)(2) and (1) by permit ting Abbott to serve either as a member of the Union's finance committee or as a convention dele- gate First, we find that Abbott's activities in the Union were purely internal affairs that did not in- volve him in the Union's collective-bargaining rela- tionship with the Respondent Therefore, the threshold requirement for application of the Power Piping test is met Second, we find that the nature of his position with the Respondent is such that he would reason- ably be viewed as participating in those internal union affairs as a member of the Union rather than as an agent of his employer Although there is evi- dence that Abbott exercises considerable superviso ry authority in his capacity as general foreman on the Respondent's jobsite, there is no evidence that Abbott is an official or executive of the Respond- ent, otherwise exercises managerial functions, or has participated in collective bargaining on the Re- spondent's behalf In this respect we also note that Abbott's position as general foreman is transitory 6 At the hearing the parties stipulated that the contract sets forth mini mum wage rates for general foremen There is no other evidence indicat mg whether Abbott is in the unit 6 The record shows that during his career Abbott has held the various positions of journeyman foreman and general foreman at different work sites Abbott testified that in the past 5 years his jobs were basically general foreman jobs The record also shows that within this same time frame Abbott has worked for approximately five employers for periods generally ranging from 3 to 9 months At the time of the hearing he had worked for the Respondent for approximately 6 months 7 The record shows that the Union s national convention is held once every 5 years and that in his 40 years as a union member Abbott has served as a convention delegate twice 1061 He is subject to possible reclassification as a fore- man or a journeyman, depending on the needs of the Respondent at the jobsite and, further, will return to journeyman status once the job is com- pleted The evidence also shows that Abbott is a longtime member of the Union and that, through out his work history, has regularly obtained em- ployment through the hiring hall We also note that, although there is no specific evidence as to whether Abbott is in the unit, the contract pro- vides for the general foreman position, at least re- garding mimmum pay scales and holiday benefits Thus, we find no basis for concluding that the Respondent "encouraged, authorized, or ratified" the intraunion conduct of Abbott in performing the duties of finance committee member or convention delegate or "acted in such a manner as to lead em- ployees reasonably to believe that [Abbott was] acting for and on behalf of management " Nassau, 118 NLRB at 183 Instead, we infer that employees would perceive Abbott's participation in intraunion affairs as one of the incidents of his long-term union membership Additionally, we do not view Abbott as exercising sufficient managerial authority to warrant a finding that the Respondent has inter- fered with the Union's administration by virtue of his performing duties as finance committeeman and convention delegate See Power Piping Co, 291 NLRB 494, 497-498 Accordingly, under the totali- ty of the circumstances, we do not find an 8(a)(2) violation, and we shall dismiss the complaint ORDER The recommended order of the administrative law judge is adopted and the complaint is dis missed Sharon E Howard Esq for the General Counsel C Robert Wartell Esq (Madden Weiner Houser Wartell & Roth) of Southfield, Michigan, for the Respondent Harris Jacobs Esq (Jacobs & Langford), of Atlanta Georgia for the Intervenor DECISION STATEMENT OF THE CASE LAWRENCE W CULLEN, Administrative Law Judge This case was heard by me at Atlanta, Georgia, on 10 October 1986 The charge was filed by James A Fowler an individual on 9 June 1986, and amended on 29 July 1986 The complaint was issued on 31 July 1986 by the Regional Director for Region 10 of the National Labor Relations Board (the Board) The complaint, as amended at the hearing alleges that Hoyt, Brumm & Link Inc (the Respondent) violated Section 8(a)(2) and (1) of the National Labor Relations Act (the Act), by since on or about 8 April 1986, interfering with the administration of the United Association of Journeymen and Apprentices 1062 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 72 (the Union) by permitting its supervisor, General Foreman Fred Abbott, to serve as a delegate to the Union's national convention and to serve as a member of the Unions finance committee The Respondent has by its answer filed on 13 August 1986, as amended at the hearing, denied the commission of any violation of the Act Respondent has also pleaded affirmatively that Fred Abbott is not a supervisor within the meaning of Section 2(11) of the Act On 23 Septem ber 1986, the Union filed a motion to intervene in this proceeding and a memorandum in support thereof By his order of 3 October 1986 the Regional Director granted the motion to intervene On the entire record including my observation of the demeanor of the witnesses, and after due consideration of the closing statement made by the General Counsel and the briefs filed by the Respondent and the Intervenor, I make the following FINDINGS OF FACT I JURISDICTION The complaint alleges, Respondent admits, and I find that Respondent is, and has been at all times material, a Michigan corporation with an office and place of busi ness located at Doraville, Georgia, where it is engaged in construction work, that during the calendar year prior to the filing of the complaint, a representative period, Respondent purchased and received at its Doraville Georgia facility materials and supplies valued in excess of $50,000 directly from suppliers located outside the State of Georgia, or from suppliers located within the State of Georgia, who in turn received such materials and supplies directly from suppliers located outside the State of Georgia and that Respondent is, and has been at all times material an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act II THE LABOR ORGANIZATION The complaint alleges, the answer admits , and I find the Union is, and has been at all times material , a labor organization within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES The issues in this case are whether the Respondent violated Section 8(a)(2) of the Act by interfering with the internal affairs of the Union by permitting its general foreman, Fred Abbott, a member of the Union, to serve as a member of the Union s three member finance com mittee which reviews and reports on expenditures that have been made to union officials and/or by permitting Abbbott to serve as a delegate to the Union s national convention in 1986 Central to the determination of these issues are determinations regarding whether Abbott is a supervisor and if so whether he is a high level or low level supervisor and whether his service as a union dele gate to the International convention and/or service as a member of the Local Union s finance committee is attrib utable to Respondent and thus unlawful interference in violation of the Act At the outset it should be noted that the General Counsels case was premised on the testimony of two witnesses Respondents job superintendent Thomas C Lapman, and Respondents general foreman Fred W Abbott, both of whom were examined by the General Counsel pursuant to Rule 611(c) of the Federal Rules of Evidence Charging Party James A Fowler, called by the Intervenor, was unable to testify from personal knowledge concerning the job duties of Abbott in his ca pacity of general foreman for the Respondent Thomas C Payne, the Union s business manager, also called by the Intervenor, did not testify concerning the job duties of Abbott in his capacity as general foreman for Re spondent The evidence as developed through the unre butted testimony of Job Superintendent Lapman and General Forman Abbott showed that Lapman is an on site management official who is on the site 12 hours per day and actively engages in meetings with contractors and owners to determine the job to be done Lapman orders the materials and sets out the work to be per formed on the job each week, directing Abbott to set it out for the foreman who in turn direct the men who per form the work Lapman also sets the project work rules for the jobsite (such as a rule providing for the automatic termination of employees who are absent two times in a weekly period) Lapman also listens to the recommenda tions of Abbott and the foremen and journeymen regard ing the hire of employees, but makes the hiring determi nations himself Lapman also makes the decision whether or whom to layoff or discharge and is personally familiar with the work of the employees on the job Although Abbott routinely signs termination forms, he does so only on the orders of Lapman who has made the deter mination in every case Abbott does not make any job rules, but follows the rules set out in the contract and carries out the decisions made by Job Superintendent Lapman Abbott attempts to resolve grievances that have been brought to him by the foremen Abbott is paid above the wage rate set forth in the labor agreement with respect to general foremen and is paid for certain holidays as are all general foremen under the terms of the National Master Agreement As the job winds down, Abbott faces the prospect of being set back to foreman or journeyman and of being terminated which will re quire him to return to the Union s hiring hall for referral to another job as has occurred in the past during his career and as is the custom in the construction industry that involves an up and down fluctuation in job opportu nities as new projects are started and existing projects wind down Abbott has never served as a member of the Union s governing body, nor has he ever served in any union ca pacity other than as a convention delegate for two annual conventions including the 1986 national conven tion and as a member of the finance committee since 1984 during his 40 years as a member of the Union There was no evidence that the Respondent initiated en couraged, ratified, or utilized Abbott s internal union po sitions for any purpose or in any manner otherwise com HOYT BRUMM & LINK INC 1063 matted any specific interference in the Union s internal affairs The record is devoid of any evidence that Abbott ever sat on either side of the bargaining table on behalf of the Employer or the Union in this case or of any specific in stance of interference or domination resulting from his service as 1 of 16 delegates selected to attend the 1986 International convention or as 1 of 3 members of the Union s finance committee, which is a listed position in the Union's bylaws and which examines expenditures that have been made for accuracy and reports its find ings to the executive board or to the business manager of the Union, but has no authority to approve or disap prove expenditures of union funds nor to take any other action concerning these expenditures Analysis The Board and courts have considered cases involving issues of employer interference in the internal affairs of unions on a number of occasions in the past A substan tial number of these cases have been cited by the Gener al Counsel, Intervenor, and Respondent , in this case As a basic premise the Board has held that each case must be decided on its own merits The Board has recognized the special circumstances that exist in the construction industry in which projects come and go and employment of the members of the construction craft unions rise and fall accordingly The nature of employment of the indi viduals employed by the crafts who traditionally are re ferred for employment by the union referral system is transitory as is the level of their job status Todays gen eral foreman may be set back to foremen next week and journeyman a month later and terminated shortly there after, whereupon he registers as an out of work journey man with the hiring hall and may be referred out as a journeyman to another job In this type of situation the union is generally not threatened by divided loyalties nor its affairs interfered with by the employment of its mem bers as supervisory employees in the normal course of events It is in situations where other circumstances exist that give rise to a potential for interference by the em ployer with the union s internal affairs such as the mem bers holding which union office and high level supervi sory poistions with the employer or negotiating on behalf of the Union with the employer or where the tenure of the member as a long term supervisor of the Employer gives rise to circumstances that have the po tential for divided loyalties if he engages in intraunion of fairs that violations of Section 8(a)(2) by the employer are found to have occurred Also, in situations where there is evidence of active interference, a finding of a violation of Section 8(a)(2) of the Act may be found Welsbach Electric Corp, 236 NLRB 503 510 (1978), Nassau & Suffolk Contractors' Assn, 118 NLRB 174 (1957) The evdidence relied on by the General Counsel to es tablish the alleged high level supervisory status of Abbott is as follows He is employed as a general fore man and directs the work of other foremen He has signed the termination slips of employees who have been terminated He receives a wage rate in excess of the wage rate accorded a general foreman under the terms of the labor agreement He has recommended employees for hire to the project superintendent and his recommen dations have been followed approximately 50 percent of the time He has served as a foreman and general fore man on several occasions in the past and has been called for by name by several employers including the Re spondent in this case He also brought two employees along with him when he was hired for his current job through the use of the Union's referral system in which employers may request employees by name from the Union Evidence relied on by the Respondent and the Interve nor in this case to establish lack of any supervisory status, including high level supervisory status, is as fol lows Abbott has worked a succession of jobs over the years, including journeymen and foremen classifications as well as that of general foreman Most of these jobs have been of relatively short duration (less than a year) All jobsite rules are governed by contract except one rule that was implemented by Project Superintendent Lapman making two absences in a week's period auto matic grounds for termination of an employee All deci sions to hire and terminate employees are made by Project Superintendent Lapman who relies on the rec ommendations of Abbott and other foremen and employ ees, as well as on his own observations in that Lapman is on the jobsite 12 hours a day and makes the rounds of the jobsite at least twice a day and is familiar with who is or is not working Abbott has no authority to dis charge an employee and has never done so Abbott is paid no benefits and will be reduced in classification to foreman and journeyman and terminated as the job winds down in the very near future as of the date of the hearing whereupon he will return to the union hall for referral as he has in the past I find that Abbott is a supervisor within the ambit of Section 2(11) of the Act I note that employees griev ances are taken up with him after the foremen have been unable to resolve them He has the authority to and does effectively recommend the hire of employees and his rec ommendations have been followed 50 percent of the time He makes assignments to the foremen after receiv ing orders from the superintendent He also receives in centive pay in excess of the rate accorded general fore men under the terms of the contract He is second in command to the project superintendent who although he makes the rounds of the jobsite approximately twice daily, is not consistently in the field and has other re sponsibilities He is accorded his own office or area in a trailer although it is also used by the foremen He also has the authority to recommend the termination of em ployees although he has never discharged an employee NLRB v Fullerton Publishing Co, 283 F 2d 545, 550 (9th Cir 1960) Thus, he has the authority to effectively rec ommend the hire of employess to assign them work to discipline employees and to responsibly direct them I find that the exercise of this authority requires the use of independent judgment as encompassed in Section 2(11) of the Act NLRB v Security Guard Service, 384 F 2d 143 147- 148 (5th Cir 1967), NLRB v Edward G Budd Mfg Co, 169 F 2d 571 576 (6th Cir 1948) 1064 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD I have examined the cases cited by the General Coun- sel and find that they do not support the General Coun- sel's position in this case. In each instance cited in those cases in which violations were found, there existed either a situation in which the alleged high-level supervisors were clearly accorded such authority as a high-level management official or were high-level ranking union of- ficials who engaged in direct collective bargaining with the Employer on behalf of the Union. See Three Hun- dred South Grand Co., 257 NLRB 1397 (1981); Welsbach Electric Corp., supra; Schwenk Inc., 229 NLRB 640 (1977); and Beach Electric Co., 174 NLRB 210 (1969), cited by the General Counsel. Rather, I find that the Re- spondent's and Intervenor's positions find support in Nassau & Suffolk Contrators Assn., supra, wherein the Board found no violation as the "master mechanics" in question were low-level supervisors and in Beach Electric Co., supra, involving the construction industry in which the general foreman and foremen's engagement in in- traunion activities were held not to violate the Act. See also National Gypsum Co., 139 NLRB 9196 (1962), wherein a supervisor served as an auditor for the union and no violation was found. I find that, although Abbott carries the title of general foreman he is actually not accorded the status of a high- level supervisor as a result of the manner of control and responsibility for supervision exercised by Project Super- intendent Lapman. The reality of the referral system in the construction industry, as has occurred in the instant case, shows a general continuing transitory type of job assignments to relatively short work projects, often less than a year in duration at varying levels of employment. Each of these cases must be judged on individual facts. Abbott has been restricted to performing his duties within relatively narrow confines and parameters set out and closely monitered by Project Superintendent Lapman, and in the absence of Abbott's involvement in high-level affairs of Respondent or in negotiations or bargaining on behalf of Respondent, there appears to be little, if any, evidence that he is so closely aligned with Respondent as to create a conflict proscribed by Section 8(a)(2) of the the Act, by his engagement in limited in- traunion activities. I find that the likelihood for a dis- abling loyalty by Abbott such as to prevent him from representing the Intervenor's interest in the engagement of intraunion activities as a delegate to the national con- vention and as a member of the finance committee is so remote as to preclude a finding of a violation of the Act. In making this decision I recognize that Abbott's position as the second in command on the jobsite may rise to a suspicion that he is a high-level supervisor. However, the evidence in this case fails to establish that he has been accorded this status by Respondent's management. I, ac- cordingly, recommend that the complaint be dismissed in its entirety. CONCLUSIONS OF LAW 1. Hoyt, Brumm & Link, Inc. is an employer within the meaning of Section 2(6) and (7) of the Act. 2. Local Union No. 72, United Association of Journey- men and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. Hoyt, Brumm & Link, Inc. did not violate Section 8(a)(2) of the Act by its employment of union member Fred Abbott at a time or during a period when he was serving as a member of the Union's finance committee or as a delegate to the Union's national convention. On these findings of fact and conclusions of law, I issue the following recommended' ORDER The complaint is dismissed in its entirety. ' If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall. as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses.