02-RC-023127 (N.L.R.B. Dec. 27, 2006)

City Waste Services of New York, Inc.

National Labor Relations Board - Administrative Judge OpinionsDec 27, 2006

02-RC-023127 (N.L.R.B. Dec. 27, 2006)

JD(NY)-50-06 Bronx, NY UNITED STATES OF AMERICA BEFORE THE NATIONAL LABOR RELATIONS BOARD DIVISION OF JUDGES NEW YORK BRANCH OFFICE CITY WASTE SERVICES OF NEW YORK, INC. Employer and Case No. 2-RC-23127 WASTE MATERIAL, RECYCLING AND GENERAL INDUSTRIAL LABORERS LOCAL 108, LIUNA Petitioner and LOCAL 621, UNITED WORKERS OF AMERICA Intervenor # 1 and INTERNATIONAL BROTHERHOOD OF MAINTENANCE AND DOORMEN OF AMERICA, LOCAL 862, IUJAT Intervenor # 2 Haluk Savci, Esq., New York, NY, for the Petitioner Stuart Weinberger, Esq., (Goldberg & Weinberger), New York, NY, for the Employer Stephen Sombrotto, President, Clifton, NJ, for Local 621 RECOMMENDED DECISION ON OBJECTIONS STEVEN DAVIS, Administrative Law Judge: Upon a petition filed on July 13, 2006 by Waste Material, Recycling and General Industrial Laborers Local 108, LIUNA, (Petitioner or Local 108) and pursuant to a Stipulated Election Agreement, an election was held on August 25, 20061 among a unit of all full-time and regular part-time mechanics, mechanics helpers, welders, sweepers and maintenance workers employed by the Employer at and out of its facilities located at 167-33 Porter Road, Jamaica, NY, and 155 Bruckner Boulevard, Bronx, NY, excluding all other employees, including office clerical employees, and guards, professional employees, and supervisors as defined in the Act. It should be noted that only the 155 Bruckner Boulevard location (sometimes called the facility) is involved in this proceeding. The Tally of Ballots showed that of approximately 9 eligible voters, 4 cast votes for Local 108, one cast a vote for Local 621, United Workers of America, no votes were cast for International Brotherhood of Maintenance and Doormen of America, Local 862, IUJAT, no votes were cast against participating unions, and one vote was challenged. The challenged vote was not sufficient in number to affect the results of the election. 1 All dates herein are in 2006 unless otherwise stated. JD(NY)-50-06 5 10 15 20 25 30 35 40 45 50 2 On August 31, City Waste Services of New York, Inc., (Employer), filed six objections to conduct affecting the results of the election. Five of those objections were withdrawn and only Objection 1 is before me. It states: Waste Material, Recycling and General Industrial Laborers Local 108 LIUNA (“Local 108”) used supervisors employed by the Company to act as Local 108’s observers at the election, including, but not limited to, using a supervisor to act as an observer at the Bronx location for the election. On September 1, Local 621 filed the following objection to the election: On or about August 25, 2006 the Company by its officers agents and representatives and Local 108 by its officers agents and representatives used a company supervisor to serve as Local 108 observer. On November 6, the Regional Director issued a Notice of Hearing on Objections, directing that a hearing be held on the above Objections. On November 16, I conducted a hearing in New York, NY. Based on the record and my observation of the demeanor of the witnesses and the briefs filed by the Employer and Local 108, I make the following Recommended Decision. Findings of Fact The Facts The question presented is whether Herminio Ostolaza, the Petitioner’s observer and challenged voter, is a supervisor within the meaning of Section 2(11) of the Act. A party’s use of a statutory supervisor as an observer constitutes objectionable conduct. Family Service Agency, 331 NLRB 850 (2000). The Employer is a private sanitation company involved in the waste hauling business. Its facility involved here at 155 Bruckner Boulevard in the Bronx is used for the repair, service and maintenance of its garbage trucks and metal containers. The Employer’s officials are president Samuel Martino and vice president James Tesi, both of whom work in a separate facility in the Bronx. Four employees work at 155 Bruckner Boulevard. They are Herminio Ostolaza, Jean Joseph, Bhanupratat (Sam) Lallo and Balas Sepio. Ostolaza, who has been employed by the Employer for five years, is a mechanic and welder who does electrical work and hydraulic repairs. Joseph, longest tenured of the four workers, is the welder who welds broken metal parts on the trucks and containers. He does not perform mechanical work or repairs on the trucks other than welding. Lallo does the tire repairs, helps the mechanics with work they are doing and does cleaning work in the shop. Sepio is a mechanic and a diesel mechanic who also works on brake lines. Sal Tesi, a principal of the Employer who is James Tesi’s brother, was in charge of maintenance for the Employer and was employed at the 155 Bruckner Boulevard facility until August 15, 2005 when he retired. When Sal Tesi left, James Tesi and Martino met with JD(NY)-50-06 5 10 15 20 25 30 35 40 45 50 3 Ostolaza, gave him a $2.00 per hour raise, and told him about his new responsibilities. Ostolaza concedes that he was told that he had additional responsibilities which included arriving earlier than usual, opening the shop, bringing any trucks into the shop that were parked outside and that he had to “get the job organized in the morning.” Ostolaza further admits that he was told that he was in charge of the shop and further stated that although he was not in charge of the other employees, he was 50% responsible for how the shop operated. Ostolaza denied being told that he was taking over as the supervisor of maintenance. He also denied being told that he had any responsibility for the work of his fellow employees, or that if they made mistakes he would be held accountable. Ostolaza further denied Martino’s testimony that he was told that he was responsible to diagnose the problems with the trucks, assign the work, and ensure that the vehicles were repaired. Tesi stated that “it’s up to Mr. Ostolaza at the end of the day to deliver the equipment repaired or give a reason why it wasn’t repaired.” Martino testified that Ostolaza is responsible when he arrives at 8:00 a.m. to assign work to the employees, including telling which employee to fix an engine. James Tesi and Martino testified that it is Ostolaza’s job to diagnose the problem, decide how the repair should be made, prioritize the work and assign workers to do the job. If parts are being obtained, Ostolaza assigns the employee to work on something else. Martino stated that he arrives at the facility at about 10:00 a.m. each day and spends 30 to 40 minutes with Ostolaza, asking which trucks are being worked on. He sometimes returns to the facility once or twice more each day, but he periodically checks with Ostolaza to see if the work has been done. When Martino is at the facility he observes what jobs are being worked on and what is being done. Martino stated that if he sees something that should be done differently, or if Ostolaza asks his advice on an issue, the nature of the work could change. For example, a truck was brought in with a hole in its radiator. Martino assumed that the radiator had to be replaced and attempted to find a used replacement before buying a new one but was unable to. He then went to the facility and was told by Ostolaza that the radiator could be repaired. Martino agreed and it was sent to a radiator repair shop. The trucks make their garbage runs late at night and return to the Employer’s office facility early the next morning. The drivers submit a Department of Transportation (DOT) form to the office in which they state obvious problems with the truck such as a flat tire, or their suspicions that something is wrong - an air leak under the dashboard, which may require diagnosis in order to find the problem. James Tesi and Martino meet in the morning, review the DOT reports and “coordinate the day’s activities.” Ostolaza is not present at such meetings. Tesi and Martino decide which trucks will be sent to the maintenance facility for repair, and Martino notifies Ostolaza which trucks will be sent and what is required to be done on each. James Tesi testified that when the trucks are sent to the facility, Ostolaza “directs” what the other employees are to do on the trucks if they are proficient at the skills needed. Tesi stated that he saw Ostolaza tell Sepio to work on fuel pumps, engine problems, fuel lines, brake problems and brake lines. He continued that Ostolaza determined who would adjust a clutch. In one instance, Ostolaza reported to him or Martino that the clutch could not be adjusted any more and that it had to be changed. Tesi stated that Ostolaza showed his co-workers how to perform their work if they did not know how to complete the task. Ostolaza denied telling his co- workers how to perform their work. Tesi further stated that Ostolaza has the authority to prioritize the work. At the start of the day he decides which repairs must be done first: which is a simple repair and which can wait. The Employer has no written guidelines regarding the assignment of work, but Ostolaza has the authority to transfer an employee from one task to another if a truck arrived and had to be worked on immediately. Tesi and Martino stated that JD(NY)-50-06 5 10 15 20 25 30 35 40 45 50 4 Ostolaza directs Joseph as to where, how and what to cut with the welding machine, and Tesi stated that Ostolaza directs Sepio as to how he wanted engine work to be done. Martino testified that he saw Ostolaza tell Lallo to fix a flat tire and instructed Joseph to weld and repair broken metal parts on the trucks. Ostolaza stated that the only responsibilities of the retired Sal Tesi that he assumed were that he opens the shop, brings the trucks inside the facility and takes them outside when finished. He said that, in contrast Sal Tesi, a “boss,” assigned work to the workers, directed their work and told them how to make repairs. Ostolaza testified that he and employee Lallo have keys to the facility. When Ostolaza arrives he unlocks the door, turns on the lights and compressor, and brings any trucks inside the facility that were left outside. The facility has space for only three or four trucks. Ostolaza stated that if nothing is noted on the DOT report, Martino calls and advises him what is wrong with the truck. Martino could be specific – the radiator is leaking – or general “the driver feels the truck is not running right.” Martino regularly calls at 9:00 or 9:30 a.m. and most of the time Ostolaza answers the phone. Ostolaza testified that Martino can either speak to him or anyone who answers the phone, however most of the time Ostolaza answers the phone. If the truck has a flat tire, Martino speaks to Lallo. Also, at times, Martino will ask to speak to Ostolaza if the problem concerns mechanical issues. Martino will also advise him if the truck needs regular, routine service, which includes checking the brakes, fluids and lights. Ostolaza conceded that after receiving Martino’s call, he tells the other mechanics what he has been told of the problems with the truck, or if a list is received with the truck they divide the responsibilities for repairs. If it an hydraulic problem, Ostolaza fixes it. If it is a mechanical problem Sepio would handle it. Ostolaza gave an example where the driver felt a vibration in the truck. Sepio automatically, without being told by Ostolaza, inspected the truck and found that the shock absorbers were worn. He replaced those parts on his own. Ostolaza called Martino and told him that the shock absorbers were being replaced. If tires are involved, Lallo does that work. If the hopper or metal step is broken, Joseph welds them. Ostolaza denied supervising any employees. He claimed that Martino is “in charge” of the workers. Ostolaza testified that on a typical day, the driver would drive his truck into the facility or Ostolaza would bring the truck in. Whichever truck arrives first, that is the truck that is worked on first. If two trucks arrive at the same time, the employees “work as a team” in deciding who would work on it. Typically, the truck has the DOT form explaining what was wrong with it. He explained that each of the four employees has his own specialty and each knows his job. For example, if the truck has a flat tire, Lallo fixes it. Ostolaza said that he did not have to tell Lallo to fix it – he knows that that is his job. Sepio does the brake jobs, and Ostolaza does other mechanical work such as engine and hydraulic repairs. He stated that Joseph, the welder, was his “own supervisor.” He welds trucks and containers according to his own schedule. If Ostolaza or Sepio notices a broken step they tell Joseph to weld it. He stated that Joseph follows that order because it is his job to weld, and not because Ostolaza told him to do it. Ostolaza knows that between welding a container and welding a truck, the truck is a priority, but if Martino told Joseph to weld the container first, he would do so. Ostolaza testified that he is not necessarily the person who inspects the truck when it first arrives to see what is wrong. If he is busy working on another truck, Sepio would check the new arrival, and if Sepio was busy he would do so. If it has a flat tire, Ostolaza does not concern himself with it since Lallo fixes it. If it involves a mechanical problem, and both Sepio and Ostolaza are busy they will ask each other whether the other wants to look at the truck. JD(NY)-50-06 5 10 15 20 25 30 35 40 45 50 5 Martino conceded that “to a point” there is a routine division of labor, with each worker having his expertise: Ostolaza and Sepio as mechanics, Lallo as tire person, Joseph as welder, but stated that Ostolaza has directed Lallo to help the mechanic repair an engine. Ostolaza stated that he does not give orders or direction to his co-workers. Martino tells him if one truck must be repaired before another one, but occasionally if a truck needs a simple repair such as a light bulb replacement, Ostolaza decides that that repair should be done first so that the truck can be returned to service immediately, before a more complex repair of another truck is begun. James Tesi testified that Ostolaza has no authority to discharge anyone, but he has the authority to recommend discipline. However, there has been no need for discipline, and none has been given. Ostolaza stated that he has no authority to discipline or suspend workers, and that he has not exercised such authority, nor was he told by James Tesi or Martino that he had such authority. He also denied being told that he was responsible for the employees, or that he was responsible for ensuring that the work was done. No one has refused to perform a task. Ostolaza stated that occasionally there are disagreements in which Lallo allegedly refused to help Joseph, causing an argument. In such cases, Joseph complained to Martino and not Ostolaza. Ostolaza has the authority to purchase needed parts. He stated that he could buy small parts, but Martino stated that no limit was placed on his power to buy parts. However, he could not buy an engine or transmission without obtaining the approval of management. James Tesi testified that prospective employee Elizander Ramos applied for a diesel mechanic’s job at the location where Tesi worked. Tesi interviewed him briefly and sent him to Ostolaza for a further interview essentially because Tesi was not a diesel mechanic and Ostolaza could determine if he had the skills to work for the Employer. Tesi stated that Ostolaza recommended that he be hired, and based on that recommendation he was hired and began work in early July, 2006 in Queens. Ostolaza denied interviewing Ramos, and stated broadly that he never interviewed anyone for a position with the Employer. James Tesi stated that Ostolaza is usually scheduled to work on Saturdays but if he has a conflict he arranges for someone else to substitute for him. Tesi was not informed of those days when Ostolaza obtains a replacement. Ostolaza works on Saturdays. He claimed that he was told by management that he or Sepio had to work on Saturday so that they could make emergency repairs or fix flat tires. He and Sepio agreed that they would alternate such work. Ostolaza did not inform his superiors of that arrangement since he believed that they would not care as long as one mechanic was present, but he believed that they are aware of it since Sepio told them that he could not work every Saturday. James Tesi stated that Ostolaza is responsible at the end of the day to ensure that the equipment was repaired or give a reason as to why it was not repaired. Ostolaza stated that Martino routinely calls and simply asks which trucks are repaired and ready to be picked up. Whoever answers the phone will tell him, and Martino then picks up the trucks. All the workers know which trucks are ready because they work on the trucks together. Ostolaza’s wage rate is higher than his co-workers, and he was the only unit employee who received a raise in August, 2005. At the time of the hearing, neither he nor any of the unit employees received medical benefits due to the Employer’s interpretation of a Board settlement agreement reached between it and a union which previously represented the employees. Prior JD(NY)-50-06 5 10 15 20 25 30 35 40 45 50 6 to that agreement, all the unit employees including Ostolaza received such benefits. Nonunion employees including officials James Tesi and Martino receive benefits. A collective-bargaining agreement was executed between the Employer and Local 124 U.U.J.A.T. which ran from March, 2005 through February, 2008. The contract covered the unit involved herein, and excluded statutory supervisors. A Board settlement agreement, executed in about April, 2006, required, among other things, that the Employer cease giving effect to the contract and reimburse its employees for dues and initiation fees. Even after Sal Tesi resigned and Ostolaza was allegedly appointed supervisor in August, 2005, the Employer continued to deduct dues from his salary until the April, 2006 settlement agreement was signed. Ostolaza was included in the settlement agreement as one of the employees who was entitled to be reimbursed. An Excelsior list of employees prepared by the Employer and reviewed by James Tesi included Ostolaza’s name. The Election Ostolaza was designated as the Petitioner’s election observer. At a pre-election conference immediately before the election, Jim Tesi and a representative for Local 621 objected to his voting or acting as observer because he was a supervisor. Ostolaza testified that the Board agent announced that inasmuch as his name was on the Excelsior list he could vote. His vote was challenged at the election, and he acted as the Local 108 observer. Discussion and Analysis Section 2(11) of the Act defines a supervisor as: Any individual having the 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 of a merely routine or clerical nature, but requires the use of independent judgment. The burden of proving supervisory authority is on the party asserting it, and such proof must be established by a preponderance of the evidence. Oakwood Healthcare, Inc., 348 NLRB No. 37, slip op. at 3 (2006); Dean & Deluca, 338 NLRB 1046, 1047 (2003). Purely conslusory evidence is not sufficient to establish supervisory status. The Board requires evidence that the employee actually possesses the Section 2(11) authority at issue. Golden Crest Healthcare Center, 348 NLRB No. 39, slip op. at 5 (2006). The legislative history of this section establishes that the term “responsibly to direct” sought to distinguish two classes of workers: true supervisors vested with “genuine management prerogatives,” and employees such as “straw bosses, lead men, and set-up men” who are protected by the Act even though they perform “minor supervisory duties.” NLRB v. Bell Aerospace Co., 416 U.S. 267, 280-281 (1974) (quoting S. Rep. No. 105, 80th Cong., 1st Sess., 4 (1947). The Board has used caution “not to construe supervisory status too broadly because the employee who is deemed a supervisor is denied rights which the Act is intended to protect.” Chevron Shipping Co., 317 NLRB 379, 381 (1995). JD(NY)-50-06 5 10 15 20 25 30 35 40 45 50 7 The evidence establishes that the only arguable supervisory authority possessed and/or exercised by Ostolaza includes the assignment and responsible direction of employees, authority to discipline and the recommendation to hire. In contrast to the Employer’s witnesses’ testimony, Ostolaza credibly testified that he was never told that he had the power to discipline or recommend such action, and he has exercised no such authority. With respect to the recommendation to hire, Ostolaza credibly denied James Tesi’s testimony that he interviewed Ramos and recommended that he be hired based on Ostolaza’s determination that Ramos possessed the skills of a diesel mechanic. Even if Tesi’s testimony is believed it is clear that Ostolaza spoke to him as a skilled diesel mechanic who was assessing his ability as a mechanic, and not as someone who would be Ramos’ supervisor. Even assuming that Ramos was hired on Ostolaza’s recommendation, that recommendation, the only one in his one year of employment as an ostensible supervisor, must be considered as isolated or sporadic and insufficient to confer supervisory authority. Bowne of Houston, 280 NLRB 1222, 1225 (1986). In Oakwood Healthcare, above, the Board adopted definitions for the terms “assign,” “responsibly to direct,” and “independent judgment.” Under each of those definitions it is clear that Ostolaza does not exercise supervisory authority using independent judgment and cannot be considered a statutory supervisor. “The authority to assign refers to the ‘act of designating an employee to a place (such as a location, department, or wing), appointing an employee to a time (such as a shift or overtime period), or giving significant overall duties, i.e., tasks to an employee…. In sum, to ‘assign’ for purposes of Section 2(11) refers to the … designation of significant overall duties to an employee, not to the … ad hoc instruction that the employee perform a discrete task.’” Oakwood Healthcare, above, slip op. at 4 First, it appears that Martino or one of the Tesi brothers and not Ostolaza had initially assigned the four workers to the place (the facility), appointing their hours, and giving them “significant overall duties.” Second, the evidence establishes that the Employer’s small repair shop with four employees operates almost as a self-assigning place of business. Each employee has distinct duties at which he is very experienced. Joseph is the welder and does no mechanical work. Ostolaza is primarily a mechanic who does electrical work and hydraulic repairs. Lallo does the tire repairs, helps the mechanics with work they are doing and does cleaning work in the shop. Sepio is a mechanic and a diesel mechanic who also works on brake lines. Any instruction that Ostolaza gave Lallo to work on a tire, or in telling Joseph where and what to weld, or telling Sepio how he wanted work done on an engine constitutes the “ad hoc instruction” that they perform those specific tasks which is not sufficient to establish supervisory authority. Oakwood Healthcare, above. Further, when Ostolaza and Sepia agree as to who would repair a truck, such an agreement was their mutual arrangement between them as experienced mechanics, either of whom could do the job. “The party seeking to establish supervisory authority must show that the putative supervisor has the ability to require that a certain action be taken; supervisory authority is not established where the putative supervisor has the authority merely to request that a certain action be taken.” Golden Crest, above, slip op. at 3. Here, at most it could be said that Ostolaza asked Sepio to make the repair if he (Ostolaza was occupied). The same applies to JD(NY)-50-06 5 10 15 20 25 30 35 40 45 50 8 Ostolaza’s arrangement with Sepio for Saturday work. There was no evidence that Ostolaza required Sepia to work certain Saturdays. Rather, Ostolaza alternated such work being aware that Sepio did not want to work on Saturday. When a truck comes in for repair, as Ostolaza testified, the workers look at what needs to be done and each employee works on that part of the truck requiring repair in his own specialty. Where mechanics Ostolaza and Sepio could both make a repair they consult with each other as to what each is doing and decide themselves who is available to do the work. In order to find that a person responsibly directs employees, it must be shown that he has the authority to direct the work – to decide ‘what job shall be undertaken next or who shall do it’ … provided that the direction is both ‘responsible’ … and carried out with independent judgment.’” It must also be shown that the person directing has the authority to take corrective action, and that the putative supervisor is “accountable for the performance of the task by the employee, meaning that “some adverse consequence may befall the one providing the oversight if the tasks performed by the employee are not performed properly.” Oakwood Healthcare, above, slip op. at 6, 7. First, I find that Ostolaza did not responsibly direct employees in their work, by assigning them to perform certain tasks. As set forth above, the employees worked in their own area of expertise without being directed to do a particular job. Even assuming that Ostolaza looked at the DOT report or received instructions from Martino as to what the truck needed, and then told them what to do, such direction was not responsible since it has not been shown that he would be held accountable if they did not do such work. Although the Employer’s witnesses testified that Ostolaza was responsible to ensure that the work was performed, or give a reason why not, it has not shown any “actual accountability” or the “prospect of adverse consequences” if the work was not completed. Golden Crest Healthcare Center, 348 NLRB No. 39, slip op. at 5 (2006). The above criteria for the finding of supervisory status, assignment of workers and responsibly directing them must be exercised with the use of independent judgment and not be merely routine or clerical in nature. The use of independent judgment involves acting or recommending action “free of the control of others” by the use of forming an opinion or evaluation by discerning and comparing data. Oakwood Healthcare, above, slip op. at 8. Such judgment must involve a degree off discretion that rises above the ‘routine or clerical.’ Here, it cannot be said that Ostolaza used independent judgment free of the control of others. Martino spoke to Ostolaza in the morning and “coordinated” the day’s activity each morning. Martino called early in the day and told Ostolaza what trucks would be coming in and what needed to be repaired on each, and visited the shop to see what was being done, and whether something should be done differently. Even assuming that Ostolaza assigned and directed his co-workers to perform certain tasks, such direction to employees who he knew regularly performed such work constituted “routine” assignments and direction not involving the use of independent judgment. Similarly, his general understanding and direction that trucks requiring minor repairs should be repaired before those involving more time-consuming or complex work is not the exercise of independent judgment as used in the statute. Such a decision is simply routine. In this regard, Ostolaza’s effort at “equalizing workloads” between him and Sepio may be said to be routine or clerical. Oakwood Healthcare, above, slip op. at 9. Croft Metals, Inc., 348 NLRB No. 38 (2006) is particularly instructive here. That case JD(NY)-50-06 5 10 15 20 25 30 35 40 45 50 9 involved the question of whether lead persons are statutory supervisors. The Board found that the lead persons were not supervisors within the meaning of Section 2(11) of the Act. Croft, a manufacturer of doors and windows employs “Specialty Lead Persons” who maintain the plant’s equipment. As in our case, the lead persons, like Ostolaza, spend much of their time performing hands-on work of the type done by unit members. As with Ostolaza, they are hourly paid, receive the same benefits as rank and file workers, do not attend supervisory meetings, have been included in a bargaining unit with the rank-and-file production employees and had been subject to successive collective-bargaining agreements that had been negotiated by the employer and another union on behalf of the unit. In Croft, the lead persons receive from their supervisors a list of projects to accomplish that day. Here, Ostolaza receives the trucks to be repaired and a written or oral list of problems with the truck that must be fixed. The employees in Croft perform the same task on the line each day. Here, the four employees generally fix the same type of problem each day. Although the lead person may occasionally switch tasks among employees, the Board found that occasional switching of tasks did not mean that they had the statutory power to “assign” because such involved only the “ad hoc instruction that the employee perform a discrete task” which was insufficient to confer supervisory status. Croft, slip op. at 6. Although in Croft the lead persons have recommended persons for hire who have been hired, the Board in finding no supervisory authority to recommend hire, noted that the personnel director interviews the prospective hire. The Board found that the lead persons possessed the statutory authority to responsibly direct employees because they oversee production and have the authority to decide the order in which the work is to be performed and to determine who on the crew does which tasks, and also have been held accountable, through discipline, to ensure that their crew met production goals, the Board found that such direction was no more than “merely routine or clerical” and thus not encompassed by Section 2(11). In Tom’s Ford, Inc., 233 NLRB 23, 28 (1977), the working foreman in an automobile service department who was found not to be a supervisor, testified, similarly to Ostolaza, that distribution of repair orders was based on the preference and abilities of the mechanics. “Well, I don’t make the judgment. It’s just common knowledge among all of us. I know what I can do. He knows what I can do. I know what he can do. It’s general knowledge. We work together.” The fact that Ostolaza received a $2.00 per hour wage raise does not require a finding that he is a statutory supervisor. He did perform additional tasks including opening the shop early, bringing the trucks into the facility and organizing the work in the morning. The facts that the Employer continued to include Ostolaza in the bargaining unit and included his name on the Excelsior list after it had allegedly made him a supervisor, supports a finding that it did not consider him to be a statutory supervisor. I accordingly find and conclude that Herminio Ostolaza was at no time relevant in this proceeding a supervisor within the meaning of Section 2(11) of the Act. He therefore properly served as the observer for Local 108 at the election. Local 108 also asserts that the Employer waived its right to object to the use of Ostolaza as the observer for Local 108 because this objection was not raised at the time of the preelection conference. Liquid Transporters, Inc., 336 NLRB 420 (2001), where the issue was JD(NY)-50-06 5 10 15 20 25 30 35 40 45 50 10 not raised at the conference, the employer included the observer on its Excelsior list and in an earlier case included him in the unit. I do not agree. I find here that the Employer’s first knowledge that Ostolaza would be the observer for Local 108 was at a pre-election conference held immediately prior to the election, and the Employer immediately objected to his use on the ground that he was a supervisor. Moreover, even if the Employer waived its objection, Local 621’s objection, also made at the conference is sufficient to preserve this issue. I accordingly find that neither the Employer nor Local 621 has waived its objection. Conclusions and Recommendations Inasmuch as I have found that Herminio Ostolaza is not a supervisor within the meaning of Section 2(11) of the Act, I therefore find that the Objections of the Employer and Local 621 to the election held on August 25, 2006 have no merit. I hereby recommend that those Objections be overruled in their entirety. I further recommend that inasmuch as Waste Material, Recycling and General Industrial Laborers Local 108, LIUNA has received a majority of the valid votes cast, the Board issue a certification of representative on behalf of Local 108 in the collective-bargaining unit set forth in the Stipulated Election Agreement.2 Dated: Washington, D.C., December 27, 206. ______________ Steven Davis Administrative Law Judge 2 Pursuant to the provisions of Section 102.69 of the Board’s Rules and Regulations, Series 8, as amended, within 14 days from the date of issuance of this Recommended Decision, either party may file with the Board in Washington D.C. an original and eight copies of exceptions thereto. Immediately upon the filing of such exceptions, the party filing same shall serve a copy thereof upon the other parties and shall file a copy with the Regional Director. If no exceptions are filed thereto, the Board may adopt this Recommended Decision.