Arlington Masonry Supply, Inc.

National Labor Relations Board - Board Decisions

Jul 21, 2003

339 N.L.R.B. 817 (N.L.R.B. 2003)

ARLINGTON MASONRY SUPPLY, INC. 817
Arlington Masonry Supply, Inc. and Local 247, Inter-
national Brotherhood of Teamsters, AFL–CIO,
Petitioner. Case 7–RC–22225
July 21, 2003
DECISION AND DIRECTION
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
The National Labor Relations Board, by a three-
member panel, has considered objections to, and deter-
minative challenges in, an election held May 23, 2002,1
and the hearing officer’s report recommending disposi-
tion of them. The election was conducted pursuant to a
Stipulated Election Agreement. The tally of ballots
shows 4 for and 2 against the Petitioner, with 6 chal-
lenged ballots, a sufficient number to affect the results of
the election.
The Board has reviewed the record in light of the ex-
ceptions2 and brief, and has adopted the hearing officer’s
findings and recommendations, only to the extent consis-
tent with this Decision and Direction.
We agree with the hearing officer, for the reasons
stated in her report, that the Petitioner’s challenge to the
ballots of Lawrence Smith and Robert Hanson3 should be

1 Hereinafter all dates are in 2002 unless otherwise noted.
2 In the absence of exceptions, we adopt pro forma the hearing offi-
cer’s recommendations that the challenges to the ballots of Lee Roy
Cox and Brandon Faircloth be overruled.
3 In adopting the hearing officer’s recommendation that the chal-
lenge to Hanson’s ballot be sustained, we emphasize that the record
evidence is insufficient to warrant a finding that he was eligible to vote
as a dual-function employee. Thus, the record contains only estimates
of the amount of time Hanson spent performing unit work, and these
estimates ranged from a low of 15 percent to a high of 25 percent.
Under Board precedent, an employee spending 15 percent of his time
performing unit work is not included in the unit. See, e.g., Continental
Cablevision, 298 NLRB 973, 974–975 (1990) (excluding employees
spending approximately 17 percent of their time performing unit work).
Although in some weeks Hanson may have spent up to 25 percent of
his time performing unit work, there is no evidence to show how often
this occurred. In sum, on this record, we cannot conclude that Hanson
“regularly perform[s] duties similar to those performed by unit employ-
ees for sufficient periods of time to demonstrate that [he has] a substan-
tial interest in working conditions of the unit.” Martin Enterprises, 325
NLRB 714, 715 (1998).
Chairman Battista and Member Schaumber agree with the hearing
officer that the record fails to establish that Smith and Hanson were
eligible to vote as dual function employees. However, Chairman Bat-
tista and Member Schaumber do not rely on Oxford Chemicals, 286
NLRB 187 (1987), cited by the hearing officer, to the extent that it
holds that if it can be shown that an employee regularly performs unit
work for a sufficient period, it is inappropriate to evaluate other com-
munity of interest factors in determining whether that employee should
be included in the unit.
Member Walsh joins his colleagues in adopting the hearing officer’s
finding that Smith and Hanson were not eligible to vote as dual func-
tion employees. However, Member Walsh does not join his colleagues’
sustained, and that the Employer’s objections to the elec-
tion should be overruled. However, we find, contrary to
the hearing officer’s recommendations, that the challenge
to the ballot of Dana Justice should be sustained, and the
challenge to the ballot of Michael Yax should be over-
ruled.
The Employer distributes building materials such as
blocks, bricks, and steel. The Petitioner seeks to repre-
sent a unit of the Employer’s full-time and part-time
maintenance employees, yard employees, hi-lo operators,
material drivers-stake and dump, material drivers-semi
double bottom, front end operator, and mechanics. The
parties’ Stipulated Election Agreement specifically ex-
cludes from the unit supervisors and certain other classes
of employees not relevant here.
I. DANA JUSTICE’S SUPERVISORY STATUS
The Board agent challenged the ballot of Dana Justice
because his name did not appear on the Excelsior list.
The Petitioner contends that Justice is a lead mechanic
who should be included in the unit. The Employer, how-
ever, argues that Justice is a supervisor under the Act,
and should be excluded from the unit.
Justice has the title of “maintenance supervisor” of the
Employer’s vehicle maintenance garage. He was pro-
moted to that position in 2001, after 18 years of service
with the Employer.4
The Employer’s general manager, Michael Cox, testi-
fied that he visits the maintenance garage only about
three times a week for about 5 minutes a visit. Thus, as
maintenance supervisor, Justice is responsible for all the
work going in and out of the maintenance garage. There
is one mechanic, Wayne Pardon, working at the garage.5
Justice prioritizes all the work that needs to be done in
the garage and assigns Pardon to work on specific trucks,
directs Pardon as to what type of maintenance needs to
be done to the trucks that come into the garage, and in-
spects Pardon’s work. Cox testified that Justice assigns
all of the maintenance work at his discretion and that
Cox has no input in Justice’s assignment of duties.6 Jus-
tice creates the employee work schedule; approves time

dicta in which they distance themselves from Oxford Chemicals, supra.
That case correctly holds that if a dual-function employee regularly
performs a substantial amount of unit work, he is eligible to vote, and
“it is both unnecessary and inappropriate to evaluate other aspects of
the dual function employee’s terms and conditions of employment in a
kind of second tier community-of-interest analysis.” Id. at 188. Ac-
cord, Continental Cablevision, supra, 298 NLRB at 973. Member
Walsh adheres to this well-established Board precedent.
4 Justice did not receive a raise when promoted to this position.
5 Another mechanic also works in the garage, but he is not on the
Employer’s payroll. There is no evidence that Justice directs his work.
6 Cox testified that Justice “probably” spends a lot of time actually
engaging in maintenance work on the vehicles.
339 NLRB No. 99
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 818
off, which is noted on a calendar in the garage with Jus-
tice’s initials on it; and assigns hours of work, including
overtime. As Justice’s supervisor, Cox testified that he
does not even approve Justice’s time off or his schedule.
Cox testified that Justice may issue written or verbal rep-
rimands without Cox’s consent.7 Cox also noted that
Justice may recommend suspension or discharge of an
employee, and that even though Justice has never done
so, Cox would “most likely” follow the recommendation.
Additionally, Justice orders parts for the garage and ap-
proves invoices. Cox testified that Justice exercises in-
dependent judgment in performing all of the aforemen-
tioned tasks.8
The hearing officer concluded that Justice did not have
supervisory authority within the meaning of Section
2(11) of the Act. The hearing officer noted that as a
“maintenance supervisor,” Justice did not have the au-
thority to hire, fire, transfer, suspend, lay-off, promote,
reward, or discipline employees. She found that “any
authority to assign or direct the work of other employees
is in the nature of an experienced employee lending his
or her expertise to less experienced employees and not
that which requires true supervisory prerogatives or the
‘use of independent judgment.’” The hearing officer also
discounted Justice’s authority to reprimand or discipline
employees because there was no evidence that he had
ever exercised that authority. According to the hearing
officer, “Justice appears at most to act as a conduit of
information without exercising significant discretion.”
As noted above, we disagree with the hearing officer’s
conclusion that Justice is not a supervisor. Section 2(11)
of the Act defines the term “supervisor” as “any individ-
ual having authority, in the interest of the employer, to
hire, transfer, suspend, lay off, recall, promote, dis-
charge, 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
of a merely routine or clerical nature, but requires the use
of independent judgment.” (Emphasis added.) An indi-
vidual need possess only one of the enumerated indicia
of authority in order to be encompassed by Section 2(11),
as long as the exercise of such authority is carried out in
the interest of the employer, and requires the exercise of
independent judgment. California Beverage Co., 283
NLRB 328 (1987). “[T]he employee is [not] required to
regularly and routinely exercise the powers set forth in
the statute. It is the existence of the power which deter-
mines whether or not an employee is a supervisor.”

7 Cox testified that he was not aware of any reprimands that Justice
may have issued since he began his tenure as maintenance supervisor.
8 Neither Justice nor Pardon testified at the hearing.
NLRB v. Roselon Southern, Inc., 382 F.2d 245, 247 (6th
Cir. 1967). However, only individuals with “genuine
management prerogatives” should be considered supervi-
sors, as opposed to “straw bosses, leadmen . . . and other
minor supervisory employees.” Chicago Metallic Corp.,
273 NLRB 1677, 1688 (1985), enfd. in relevant part 794
F.2d 527 (9th Cir. 1986). Therefore, an individual who
exercises some “supervisory authority” only in a routine,
clerical, or perfunctory manner will not be found to be a
supervisor. Bowne of Houston, Inc., 280 NLRB 1222,
1223 (1986). Further, the burden of proving that an indi-
vidual is a supervisor is on the party alleging such status.
NLRB v. Kentucky River Community Care, 532 U.S. 706,
712 (2001).
Applying these principles to the facts of this case, we
find that the Employer has met its burden of proving that
Dana Justice possesses supervisory authority within the
meaning of Section 2(11). It is undisputed that Justice
prioritizes all the maintenance work that needs to be per-
formed on vehicles in the Employer’s garage. On a daily
basis, Justice assigns specific jobs to Pardon, while re-
serving other duties for himself. In addition, the record
shows that Justice’s discretion in making these assign-
ments is in no way limited or circumscribed by the Em-
ployer. Thus, Cox testified that although he is Justice’s
supervisor, Cox has absolutely no input as to the manner
in which Justice carries out his daily responsibilities.
Justice “is the only one” making work-assignment deci-
sions because Cox is “not there to do it. It’s Dana’s ga-
rage.”9 Accordingly, we conclude that the record estab-
lishes that Justice uses independent judgment in assign-
ing work—a primary indicia of supervisory authority.
See Oscar Ewing, Inc., 124 NLRB 941 (1959) (person in
charge of employer’s garage was found to be a supervi-
sor because he, inter alia, assigned work, even though he
spent 90 percent of his time working as a mechanic);
Walker-Roemer Dairies, Inc., 186 NLRB 430 (1970)
(lead mechanic, who inspected vehicles for repairs, as-
signed work, told mechanics “which way to do it,” and
could have required that it be redone, was found a super-
visor under the Act). We also rely upon Justice’s author-
9 In Kentucky River, supra, the Supreme Court rejected the rationale
relied on by the hearing officer here that judgment involving assign-
ment and direction of work which is based on technical skill and ex-
perience does not constitute “independent judgment” within the mean-
ing of Sec. 2 (11). 532 U.S. at 717.
Hydro Conduit Corp., 254 NLRB 433, 436–437 (1981), relied on by
the hearing officer is distinguishable. In that case, the evidence
“fail[ed] to show that [the individual] in question exercised independent
judgment in performing [supervisory] functions.” Id. at 437.

ARLINGTON MASONRY SUPPLY, INC. 819
ity to create the work schedule, grant time off and assign
hours and overtime.10
For these reasons, we sustain the challenge to Justice’s
ballot.11
II. MICHAEL YAX’S PART-TIME STATUS
Michael Yax began working as a part-time driver for
the Employer on April 3, 10 days prior to the eligibility
date for the election.12 The Petitioner, however, chal-
lenged Yax’s ballot, contending that because he was a
casual employee, Yax should not have been included in
the unit. The Employer, however, argued that Yax was a
regular part-time employee who should be included in
the unit. The hearing officer agreed with the Petitioner
and recommended that the challenge to Yax’s ballot be
sustained.
Yax is the only part-time driver employed at the Em-
ployer’s facility at the present time. He earns the same
hourly rate as the full-time drivers when he is working,
and performs the same duties as the other drivers. He
drives one of the two brick trucks or the dump truck, as
needed. Yax is not a regularly scheduled employee. Cox
testified that there may be days when Yax calls into work
to see if anything is available, and he can also turn down
work if called by the Employer to come in.

10 We find it unnecessary to rely upon Justice’s alleged authority to
issue reprimands and recommend suspension and discharge.
Contrary to the view of our dissenting colleague set forth in fn. 11
below, we find that Cox’s testimony is not conclusory and that the
cases cited by the dissent are therefore distinguishable on their facts.
Cox’s uncontradicted testimony clearly and succinctly describes how
Justice has the authority and the unbridled discretion to make work-
assignment decisions in the Employer’s garage. It is only necessary to
show that an individual possesses supervisory authority within the
meaning of the Act; it is not essential to show that the authority was
actually exercised. Ohio Power Co. v. NLRB, 176 F.2d 385, 388 (6th
Cir. 1949) (Sec. 2(11) “does not require the exercise of the power de-
scribed . . . . It is the existence of the power which determines the
classification”), cert. denied 338 U.S. 899 (1949). Cox’s testimony is
sufficient in this case to establish that Justice possessed the authority to
assign work utilizing independent judgment.
11 Contrary to his colleagues, Member Walsh finds that the Em-
ployer has not provided sufficient evidence to prove that Justice is a
supervisor under the Act. Member Walsh notes that Cox’s testimony
was purely conclusionary and failed to offer any specific instances or
examples of Justice’s exercise of independent judgment. See Chevron
Shipping Co., 317 NLRB 379 fn. 6 (1995) (citing Sears, Roebuck &
Co., 304 NLRB 193 (1991) (“conclusionary statements made by wit-
nesses in their testimony, without supporting evidence, do[] not estab-
lish supervisory authority”)). In light of the conclusionary nature of
Cox’s testimony, Member Walsh finds that the Employer has not met
its burden of proving that Cox possessed supervisory authority within
the meaning of Sec. 2(11) of the Act. Therefore, Member Walsh would
adopt the hearing officer’s recommendation and overrule the challenge
to Justice’s ballot.
12 The ending date of the payroll period for eligibility in the election
was April 13.
It is the Employer’s policy not to provide benefits to
any part-time employees, and therefore Yax does not
have any of the benefits that the full-time drivers enjoy.
However, Cox did state that Yax enjoys the “same
wages, benefits, and conditions of employment” as other
part-time employees have in the past.
According to the hearing officer, Yax could not be
considered a regular part-time employee because: (1) he
was not eligible to vote as a part-time employee under
the Davison-Paxon test13 because he began work only 3
days prior to the payroll period designated for eligibility
purposes,14 and (2) he exhibited more signs of a casual
employee than a regular part-time employee. The hear-
ing officer determined that Yax worked infrequently in
April and May, and has worked less since the election.
In addition, he is able to decline work and he does not
receive benefits. Because of Yax’s “sporadic employ-
ment,” she found that he did “not share a sufficient
community of interest with the Employer’s other em-
ployees to be included in the bargaining unit.” We dis-
agree with the hearing officer’s recommendation and find
that Yax is a regular part-time employee.
The test to determine whether one is a regular part-
time employee versus a casual employee “takes into con-
sideration such factors as regularity and continuity of
employment, tenure of employment, similarity of work
duties, and similarity of wages, benefits, and other work-
ing conditions.” Muncie Newspapers, Inc., 246 NLRB
1088, 1089 (1979). “In short, the individual’s relation-
ship to the job must be examined to determine whether
the employee performs unit work with sufficient regular-
ity to demonstrate a community of interest with remain-
ing employees in the bargaining unit.” Pat’s Blue Rib-
bons, 286 NLRB 918 (1987).
The standard frequently used by the Board to deter-
mine the regularity of part-time employment is to exam-
ine whether the employee worked an average of 4 or
more hours a week in the quarter preceding the eligibility
date. See Davison-Paxon, supra.
In cases in which an employee is hired during the
quarter preceding the eligibility date, however, the Board
has sometimes calculated the employee’s hours from the
hire date up until the election date, as opposed to the
eligibility date. For example, in Stockham Valve & Fit-
tings, Inc., 222 NLRB 217 (1976), the Board found that
13 Under Davison-Paxon Co., 185 NLRB 21, 24 (1970), “any con-
tingent or extra employee who regularly averages 4 hours or more per
week for the last quarter prior to the eligibility date has a sufficient
community of interest for inclusion in the unit and may vote in the
election.”
14 In fact, Yax began work on April 3, 10 days before the April 13
end of the eligibility payroll period.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 820
two part-time employees, who began working 1 month
prior to the election, individually worked sufficient hours
to be eligible to vote in the election. The Board calcu-
lated their work hours from their hire date up until the
election date. Under that calculation, they each worked
at least 4 hours per week on average, enough to make
them eligible to vote in the election.
Because the period of time between Yax’s hire date
and the eligibility date for the election was so brief, a
period of 10 days, we think it appropriate, pursuant to
Stockham Valve & Fittings, supra, to consider Yax’s
hours from his hire date up until the date of the election
in determining whether he is eligible to vote. From April
3, Yax’s date of hire, to May 23, the date of the election,
Yax worked over 66 hours, for an average of slightly in
excess of 9 hours per week.15 We find this to be suffi-
cient to warrant Yax’s inclusion in the unit under Stock-
ham Valve.

15 Yax worked the following hours: April 3 to 6–14.17 hours; April
22 to 27–24.28 hours; April 29 to May 4–18.68 hours; and May 6 to
11–9.09 hours. Yax’s hourly total between his hire date and election
date is 66.22 hours, which gives him an average of more than 9 hours
per week over the 7-week period between his hire date and the election
date.
The hearing officer erred in relying on Yax’s work history after the
election. It is well established that the Board does not “determine voter
eligibility on the basis of after-the-fact considerations.” Georgia Pa-
cific Corp., 201 NLRB 831, 832 (1973).
Furthermore, when working, Yax receives the same
pay, is under the same supervision and works under the
same conditions as other drivers. The fact that Yax can
turn down work or is unscheduled is not determinative.
See Tri-State Transportation Co., Inc., 289 NLRB 356,
357 (1988) (Board held that an employee’s ability to
decline work and be employed elsewhere is not determi-
native of employment status); see also Mercury Distribu-
tion Carriers, Inc., 312 NLRB 840 (1993) (the fact that a
part-time employee does not call in to work every day to
find out if work is available, does not require his exclu-
sion from the unit).
For the reasons set forth above, we conclude that Yax
is a regular part-time employee under the Act and should
be included in the unit. Accordingly, we overrule the
challenge to Yax’s ballot and shall direct that it be
opened and counted.
DIRECTION
IT IS DIRECTED that the Regional Director shall, within
14 days from the date of this Decision and Direction,
open and count the ballots of Lee Roy Cox, Brandon
Faircloth, and Michael Yax, and prepare and serve on the
parties a revised tally of ballots, and issue the appropriate
certification.