DST Industries

National Labor Relations Board - Board Decisions

Mar 31, 1993

310 N.L.R.B. 957 (N.L.R.B. 1993)

957
310 NLRB No. 157
DST INDUSTRIES
1 The unit is:
All full-time and regular part-time employees, including truck
drivers, non-supervisory leaders and field operations personnel,
employed by the Employer at or out of facilities located at its
Romulus and Clinton, Michigan facilities, but excluding office
clerical employees, design department employees, confidential
employees, managerial employees, guards and supervisors as de-
fined in the Act.
2 The initial tally of ballots showed 67 ballots for the Petitioner
and 61 against with 26 determinative challenges. On December 5,
1991, the hearing officer issued her report and recommendation on
challenged ballots in which she recommended that the challenges to
19 ballots be sustained, that the challenges to 7 ballots be overruled
and that these ballots be opened and counted, and that a revised tally
of ballots be issued. Subsequently, the Employer filed timely excep-
tions to sustaining the challenges to the ballots of Daniel Byrd, Ty-
rone Weaver, John Fox, and Donald ‘‘Joe’’ Mason. On December
27, 1991, the Employer filed a motion for an order to adopt the
hearing officer’s report in part and to direct the opening of the un-
challenged ballots. Thereafter, on January 21, 1992, pursuant to the
Board’s Order and Direction, the challenged ballots of employees
Poet, Maloney, Wandrack, Slezak, Gott, Helser, and Miglio were
opened and counted and a revised tally of ballots issued as noted
above. On January 29, 1992, the Regional Director referred the in-
stant matter to the Board for further processing since the determina-
tive challenged ballots of Byrd, Weaver, Fox, and Mason were still
in issue.
3 The Petitioner filed a brief in support of the hearing officer’s
findings and in reply to the Employer’s exceptions.
DST Industries, Inc. and Local 174, International
Union, United Automobile, Aerospace and Ag-
ricultural Implement Workers of America,
UAW, AFL–CIO, Petitioner. Case 7–RC–19582
March 31, 1993
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
The National Labor Relations Board, by a three-
member panel, has considered determinative challenges
in an election held on June 14, 1991, and the hearing
officer’s report recommending disposition of them. The
election was conducted pursuant to a Stipulated Elec-
tion Agreement.1 The revised tally of ballots shows 68
for and 67 against the Petitioner, with 4 remaining
challenged ballots, a number sufficient to affect the re-
sults of the election.2
The Board has reviewed the record in light of the
exceptions and briefs3 and has adopted the hearing of-
ficer’s findings and recommendations, and finds that a
certification of representative should be issued.
The hearing officer found that Daniel Byrd, John
Fox, Donald ‘‘Joe’’ Mason, and Tyrone Weaver were
supervisors within the meaning of Section 2(11) of the
Act and thus recommended that the challenges to their
ballots be sustained. The Employer excepts, contending
that these individuals are nonsupervisory leaders who
do not exercise independent judgment and are nothing
more than ‘‘straw bosses’’ and conduits for relaying
management information to other employees. The Em-
ployer further contends that Weaver was a non-
supervisory, probationary employee who, in addition to
his production work, routinely performed quality-con-
trol duties based on his skill and experience. Finally,
the Employer asserts that these individuals do not pos-
sess or exercise supervisory authority because each
spends 50 percent of his time performing bargaining
unit work. We find no merit to the Employer’s conten-
tions.
The Employer operates a highly sophisticated auto-
motive, manufacturing facility where it is engaged in
designing, displaying, and marketing present and future
automobile prototypes and specialty automobiles,
trucks, and vans for the automotive industry in general
and specifically for the Ford Motor Company. The
Employer also performs engineering and testing serv-
ices on future car systems as requested by Ford, in-
cluding supplying employees on a temporary contract
basis to perform specific mechanical or engineering
work at Ford’s facilities.
John Fox is the working leader in the Employer’s fi-
berglass department where there are approximately
four employees. The hearing officer found, and the
record shows, that Fox is responsible for the operation
in which fiberglass parts are made from clay molds
and supplied to the other departments of the Employer.
Donald ‘‘Joe’’ Mason is the working leader of the
Employer’s truck maintenance department. The hearing
officer found, and the record shows, that he is respon-
sible for seeing that the mechanics in his department
maintain all of the Company’s various vehicles in
good working order and for staying within a budget.
Daniel Byrd is the location manager of the Employ-
er’s Los Angeles (LA) facility where Lincoln/Mercury
prototypes are housed and cars are furnished for
Lincoln/Mercury’s marketing programs. The hearing
officer found, and the record shows, that Byrd is the
only person there responsible for carrying out the goals
of this facility.
In finding these three individuals to be supervisors,
the hearing officer found that they exercised inde-
pendent judgment in performing their various job du-
ties, including responsibilities for establishing job pri-
orities, assigning work, approving requests for vaca-
tions and time off, and in the cases of Fox and Mason,
effectively recommending employees for hire and lay-
off. The hearing officer further found that all of them
exhibited other indicia of supervisory authority, re-
ceived higher pay, and enjoyed special privileges and
benefits reserved by the Employer for its supervisors
and managers.
Tyrone Weaver was employed by the Employer as
its body shop floor manager from March 18, 1991,
until his termination on June 14, 1991. The hearing of-
ficer found, and the record shows, that Weaver was re-
958 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 29 U.S.C. § 152(11) (1982).
5 See Monongahela Power Co. v. NLRB, 657 F.2d 608, 613 (4th
Cir. 1981) (control room foremen responsibly direct other employees
and in doing so utilize ‘‘independent judgment’’ despite the fact that
they do not exercise authority with regard to hiring, discharge, trans-
fer, promotion, recall, discipline, or adjustment of grievances of
other employees).
6 Opelika Foundry, 281 NLRB 897, 899 (1986), and cases cited
therein; NLRB v. St. Mary’s Home, 690 F.2d 1062, 1068 (4th Cir.
1982).
7 The Employer relies on R. H. Peters Chevrolet, 303 NLRB 791
(1991), to support its contention that Byrd is not a supervisor. We
find that Peters is distinguishable. There the issue before the Board
was whether the service advisors shared a sufficient community of
interest with the body shop employees to be included in the unit.
Moreover, the Board did not address the supervisory issue because
no exceptions had been taken to the hearing officer’s disposition of
that issue. Therefore, we find that neither the facts nor the issues
raised in Peters are dispositive of the issue in this case.
8 The hearing officer relied on the fact that the Employer held
Weaver out as a supervisor by introducing him ‘‘as their new guy
that they answer to’’ and that Weaver was ‘‘the new floor man-
ager.’’ We find it unnecessary to rely on this evidence in adopting
her recommendations. See S & S Screw Machine Co., 288 NLRB
235, 243 (1988).
9 Bowne of Houston, 280 NLRB 1222, 1225 (1986).
10 California Beverage Co., 283 NLRB 328, 330 (1987).
sponsible for the direct supervision of 24 body shop
employees. This consisted, inter alia, of assigning
work, inspecting the quality of the body work, granting
requests for time off, and regularly filling in for Ham-
ilton, the body shop manager, whenever he was absent.
Like the other supervisory leaders discussed above,
Weaver did not punch a timecard, received a higher
hourly salary than the unit employees, and attended
most leader meetings. In concluding that Weaver was
a supervisor, the hearing officer relied on the addi-
tional fact that Weaver laid off an employee without
advance approval. This layoff was subsequently rati-
fied by the plant manager, Krohn.
Section 2(11) of the Act defines ‘‘supervisor’’ as an
individual who has
[A]uthority, in the interest of the employer, to
hire, transfer, suspend, lay off, recall, promote,
discharge, assign, reward, or discipline other em-
ployees, or responsibly to direct them, or to adjust
their grievances, or effectively to recommend such
action, if in connection with the foregoing the ex-
ercise of such authority is not of a merely routine
or clerical nature, but requires the use of inde-
pendent judgment.4
The statutory indicia quoted above are in the dis-
junctive and only one need exist to confer supervisory
status on an individual if that power is exercised with
independent judgment on behalf of management, and
not in a routine or clerical manner.5 Individuals with
statutory supervisory authority do not lose their status
simply because they infrequently exercise their author-
ity.6
Having considered all the facts relating to the em-
ployment of Fox, Mason, Byrd, and Weaver in the
light of the statutory definition of ‘‘supervisor,’’ we
agree with the hearing officer that these four individ-
uals are supervisors within the meaning of the Act. In
so finding, we rely on the fact that Fox, Mason, and
Byrd responsibly assign and direct the work in their
departments using discretion and exercising inde-
pendent judgment and authority. Further, they have,
without consulting their superiors, signed off on time-
cards and approved vacation requests. In addition, Fox
and Mason have granted requests to leave work early.
They also have determined when they have had too
many employees in their departments and on those oc-
casions have effectively recommended and carried out
the layoff of employees. As for Byrd, he is the only
permanent person assigned to the LA facility. Nor-
mally two to nine other employees are detailed from
the Employer’s Romulus facility to work at the LA fa-
cility. The number of employees needed to be detailed
at any one time is independently determined by Byrd;
and he similarly determines which of the detailed em-
ployees shall be sent out to various marketing loca-
tions. We also find it significant that the responsibility
for the performance of the various functions and jobs
at the Los Angeles facility rests solely with Byrd.7
With respect to Weaver, although his employment
with the Employer was of short duration, we neverthe-
less find that he exercised independent judgment in
carrying out his body shop floor manager duties in the
following ways: he effected the layoff of an employee
without any prior approval; he assigned and checked
employees’ work and granted a request to leave work
early; and he regularly filled in for Hamilton, the body
shop manager and supervisor, whenever he was out of
the building or on vacation. Further, the record shows
that Weaver independently set job priorities of the em-
ployees in the body shop and regularly gave them di-
rect assignments about what work to perform. Also,
the record shows that during the time Weaver was with
the Employer, he was observed performing bargaining
unit work on only one occasion.8
Finally, the record does not show that Fox, Mason,
Byrd, or Weaver’s exercise of supervisory authority
was sporadic, routine, or subject to independent review
by a higher management official which would be the
case if, as the Employer contends, these persons were
merely ‘‘straw bosses.’’9 Rather, the record shows that
these individuals operated their departments with a fair
amount of independence, as indicated above, and that
they did not merely relay management’s instructions to
the unit employees.10
Accordingly, we conclude that Fox, Mason, Byrd,
and Weaver at all material times possessed and exer-
cised supervisory authority. Consequently, the chal-
959DST INDUSTRIES
lenges to their ballots are sustained, and the tally of
ballots is further revised to reflect that 68 votes were
cast for, and 67 were cast against, the Petitioner, with
no remaining determinative challenges. Therefore, we
issue the following
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots
have been cast for Local 174, International Union,
United Automobile, Aerospace and Agricultural Imple-
ment Workers of America, UAW, AFL–CIO, of the
employees in the following appropriate unit:
All full-time and regular part-time employees, in-
cluding truck drivers, non-supervisory leaders and
field operations personnel, employed by the Em-
ployer at or out of its facilities located at 34364
Goddard Road, Romulus, Michigan and 11900
Tecumseh Road, Clinton, Michigan; but excluding
office clerical employees, design department em-
ployees, confidential employees, managerial em-
ployees, guards and supervisors as defined in the
Act.