A.D.T. Co., Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1969

177 N.L.R.B. 704 (N.L.R.B. 1969)

704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A.D.T. Company, Inc. and A.D.T. Company,
Petitioners, and Local Union No. 3, International
Brotherhood of Electrical Workers, AFL-CIO.
Case 2-UC-30
June 30, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
Upon a petition of A.D.T. Company, Inc., and
A.D.T. Company, duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held on various dates in January,
February, and March 1969, before Hearing Officer
Haywood E. Banks. Following the hearing and
pursuant to Section 102.67 of the National Labor
Relations Board Rules and Regulations, Series 8, as
amended, the Regional Director for Region 2 issued
an Order transferring the case to the Board for
decision. Thereafter, briefs were timely filed by the
Employers and the Union, which have been duly
considered.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby
affirmed.
Upon the entire record in this case, the Board
finds:
1. The Employers are engaged in commerce
within the meaning of the Act, and it will effectuate
the policies of the Act to assert jurisdiction herein.'
2. The labor organization involved claims to
represent certain employees of the Employers.
3. A. D. T. Company, Inc., and A. D. T.
Company, are wholly owned subsidiaries of the
American District Telephone Company and are
engaged in the installation and servicing of security
systems, primarily for commerical, mercantile and
industrial subscribers such as banks, department
stores, and factories in the States of New York and
New Jersey. The operations of the two companies
are conducted in the same manner. Protective
devices are installed and maintained by employees in
the Employers' plant department. When the devices
are activated, a signal is transmitted to the
Employers' operating department employees, who
We find no merit in the Union 's contention that we lack jurisdiction to
clarify bargaining units established by agreement of the parties and not
certified by the Board , for the reasons fully set forth in our decision in
Brotherhood of Locomotive Firemen and Enginemen , 145 NLRB 1521,
1522-24. Accordingly, we hereby deny the Union's motion, made at the
outset of the hearing herein , to dismiss the present unit clarification
petition on the ground that the Board has no authority to entertain or act
upon the petition.
monitor and respond to these alarms.
Since about 1937, the Employers have recognized
the Union as the bargaining representative of their
plant and operating department employees in the
New York district (covering locations in New York
and New Jersey) and have executed a series of
separate but identical collective-bargaining
agreements covering units identically described for
both Employers as follows:
(a) plant department employees, excepting
accountants, bookkeepers, clerks, stenographers,
other office employees and employees above the
rank of foreman, and
(b) operating department employees below the
rank of manager and excluding accountants,
bookkeepers, clerks and other office employees.
Apparently, the parties have treated all plant and
operating employees of both Employers as a
single-bargaining unit, even though separate
contracts have been utilized. The most recent such
agreements expired on December 14, 1968, at which
time the Employers' operating department
employees went on strike, seeking increased
economic benefits.
The Employers' present unit clarification petition
requests that 5 classifications occupied by 94
individuals be excluded from the Employers' plant
and operating department unit currently represented
by the Union.' The Employers contend that they are
not required to bargain with the Union concerning
the terms and conditions of employment of the
persons in these classifications because they are
supervisors within the meaning of Section 2(11) of
the Act, and therefore excludable from the
bargaining unit. The Union contends that none of
the persons in the classifications which the
Employers seek to exclude from the bargaining unit
in fact perform the duties of supervisors.' Three of
the classifications in issue are in the Employers'
plant department, namely, district inspector,
foremen, and plant supervisor, while the remaining
two, service supervisor and relief service supervisor,
are in their operating department.
The record shows that the two district inspectors
in question act as management representatives
directly assisting District Service Manager Burns,
who is responsible for the proper functioning of
approximately 300 plant department employees
performing installation, inspection, and maintenance
work from plants in New York and New Jersey.
Burns' testimony shows that he relies heavily upon
the district inspectors' recommendations whenever
'At the hearing, the Employers withdrew a request in the unit
clarification petition that guard operators be excluded from the unit as
"guards" within the meaning of Sec. 9 (b) of the Act.
'Sec. 2(11) of the Act provides as follows - "The term ' supervisor' means
any individual having authority, in the interest of the employer, to hire,
transfer, suspend , lay off, recall , promote, discharge , assign, reward, or
discipline other employees , or responsibly to direct them, or to adjust their
grievances, or effectively to recommend such action , if in connection with
the foregoing the exercise of such authority is not merely of a routine or
clerical nature , but requires the use of independent judgment "
177 NLRB No. 112
A.D.T. COMPANY, INC. 705
he is called upon to promote plant department
employees to positions as plant supervisors or plant
foremen, since they have the duty of visiting plant
offices chore frequently than he, and, therefore, the
opportunity to gauge more accurately the
capabilities and competency of plant personnel. In
addition , Burns' testimony plainly indicates that
district 'inspectors have a prime responsibility of
solving ' intricate repair and installation problems
which arise in the field activities of the several plant
offices, and, in this connection, they issue, to plant
department personnel doing installation and
maintenance work, orders pertaining to proper
performance of that work. The district inspectors
earn $5,255 per hour, substantially more than other
employees considered hereafter, and, according to a
letter issued to plant foremen by Burns, they carry
Burns' "authority" when in the field. On the above
evidence, essentially uncontested we find the two
district inspectors to be supervisors within the
meaning of Section 2(11) of the Act, since they
possess 'and exercise both the authority responsibly
to direct other employees and effectively to
recommend their promotion.
The classification of plant foreman is also in
dispute. The Union essentially contends that the
seven individuals employed in this capacity, who
have immediate and sole charge of widely separated
plant offices, are mere conduits who transmit orders
from the District Service Manager in New York
City to all plant department employees. The record
is abundantly clear that, contrary to this contention,
such individuals function as true supervisors. It
shows that foremen, as the highest ranking
management representatives in plant offices,
normally direct the work of numerous plant
personnel in a manner which requires the use of
independent judgment . They have primary
responsibility for the proper installation , repair, and
inspection of security systems maintained by the
plant office to which they are assigned. They
periodically determine which plant supervisors (a
category discussed below) and plant employees
should be assigned to particular groups of work
projects, and they decide the general priority of each
project in the interest of maintaining efficient
protective service. They are the highest ranking and
best paid employees in the plant offices, receiving
from $5.12 to $5.255 per hour, depending upon the
size of the work force in the office they direct,
which ranges from 23 to 60 employees. Foremen
hire and evaluate their own clerical personnel, have
recommended promotion and discharge, have
disciplined plant personnel in such matters as
tardiness, attendance, and work performance, and
possess contractual authority to adjust employee
grievances. On the basis of the foregoing, as noted
previously, we find that the foremen are employed
as supervisors under Section 2(11) of the Act.
Twenty-four plant supervisors, who are
immediately responsible for the proper execution of
construction, inspection, and repair work performed
by 258 plant employees, constitute the final disputed
classification in the Employers' plant departments.
The Union contends, in essence, that the plant
employees performing such field work must
necessarily operate with minimal supervision due to
geographical considerations, and that the direction
they receive concerning their work performance is
too negligible to warrant a finding that the plant
supervisors, who furnish such direction, are
supervisors within the meaning of Section 2(11).
Contrary to the Union's position, the record shows
that each plant supervisor has initial responsibility
for, and is in immediate charge of, several groups of
either construction, inspection, or repair employees,
with the duty of assigning and responsibly directing
them on work projects for which the plant
supervisors are held immediately accountable.
During the week, they travel from job to job,
overseeing the progress of the projects under their
control. While they also perform manual work, it
appears that their primary responsibility is to
supervise the work of the 6-12 men assigned to
them. One plant supervisor testified at the hearing
that he had ordered a member of his crew to
perform his job properly, and this would appear to
support the testimony of Service Manager Burns
that the power to reprimand and recommend
discipline is inherent in their positions. We find,
therefore, that the plant supervisors are supervisors
within the meaning of Section 2(l1).
The final two classifications of employees in
dispute, service supervisors and relief service
supervisors, are. employed in the Employers'
operating departments, which are engaged in
monitoring and responding to alarms received from
the protective systems installed and maintained by
the plant department. This service is rendered from
nine central stations and a number of substations,
where, respectively, operators monitoring the signals
and guard operators responding to them are
stationed. In a typical central station, service
supervisors work five 8-hour shifts each week, with
regular guard operators, serving as relief service
supervisors and performing the same duties as
service supervisors while so assigned, relieving them
for two 8-hour shifts each week. The stations
operate on three 8-hour shifts, 7 days a week. As
many as 23 guard operators may work out of or
under the control of larger central stations, while as
few as 7 may be assigned to the smaller central
stations. Relief service supervisors function as guard
operators when not assigned to relieve the service
supervisors.
The Employers contend that service supervisors
and relief service supervisors have the usual
attributes of supervisors under Section 2(11) of the
Act. Heavy emphasis is placed on the contention
that these employees responsibly direct the activities
of guard operators as the urgent necessities of
incoming alarms require, particularly since they are
706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
normally the sole individuals in charge of central
operating stations at night and during the early
morning hours , when day-time station managers are
not present. The Union contends that the daily
duties and decisions of service supervisors and relief
service supervisors are essentially routine and
governed by detailed company policy. The Union
asserts further that the record shows that any
unusual situations , which might in fact require the
use of independent judgment , are usually referred to
the central station managers who are present during
the day and normally available, at home, to make
decisions at night . The Union argues , in other
words, that the service supervisors and relief service
supervisors in reality act only as dispatchers of
guard operators and mere conduits through which
decisive judgments of station managers are
transmitted.
While the question before us is, on the present
record , a close one , we find merit in the Union's
contention , and conclude that the 34 service
supervisors and 22 relief service supervisors are not
supervisors under Section 2(11) of the Act, but
rather are employees properly included in the unit
represented by the Union. The record contains no
clear evidence that these employees have, as a
matter of course, hired, fired, transferred, or
suspended employees, or effectively recommended
such actions. An analysis of all the testimony
indicates that in the central stations these employees
perform the same manual and clerical duties as
guard operators , except that they also keep some
records and dispatch the guards to answer alarms in
accordance with established company procedures.
The testimony further shows that the guards
themselves frequently perform dispatching duties
and communicate with subscribers , and that most of
the time, the guards are not in the station with the
service supervisors . Where situations arise which are
more involved and are considered to require more
discerning judgment , they are usually referred to the
central station manager for resolution at any time of
the day or night . It appears that, depending upon
the shift and the station , the ratio of service
supervisors to guards may be as low as one to two.
For instance, at the White Plains Central Station,
the evening shift on Monday, Tuesday, and
Wednesday consists of one service supervisor and
two guards.
In our opinion, the present record shows that
service supervisors and relief service supervisors
routinely dispatch guard operators and make
recurrent decisions in accordance with well-defined
guidelines , but fails to show that such authority as
they exercise requires the use of independent
judgment. It further appears that these
"supervisors" have no real authority over the few
operators working with them on their shifts, and do
not regularly exercise any of the functions normally
associated with supervisory status. In view of the
foregoing, we find that service supervisors are not
employed as supervisors within the meaning of
Section 2(11) of the Act, and further find that
guard-operators are similarly not employed as
supervisors during such times as they are performing
the duties of service supervisors in a relief capacity.
In view of our findings and conclusions with
respect to the five classifications in dispute, we shall
grant the Employer-Petitioners' request that we
exclude from the collective-bargaining unit
recognized by the Employers herein the categories of
district inspectors , foremen and plant supervisors,
and we shall deny the request that we exclude from
the same unit the categories of service supervisors
and relief service supervisors.
ORDER
It is hereby ordered that the collective-bargaining
units of plant and operating department employees
of A.D.T. Company, Inc., and A.D.T. Company
represented by Local Union No. 3, International
Brotherhood of Electrial Workers, AFL-CIO, be,
and they hereby are, clarified by specifically
including therein operating department employees
performing the duties of service supervisor and relief
service supervisor, and by specifically excluding
therefrom, plant department employees performing
the duties of district inspector, foreman, and plant
supervisor.