Dynamic Science, Inc.

National Labor Relations Board - Board Decisions

Jun 27, 2001

334 N.L.R.B. 391 (N.L.R.B. 2001)

DYNAMIC SCIENCE, INC. 391
Dynamic Science, Inc. and District Lodge 12, Local
Lodge 2424, International Association of Ma-
chinists and Aerospace Workers, Petitioner.
Case 5–RC–15189
June 27, 2001
DECISION ON REVIEW AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN, TRUESDALE, AND WALSH
On May 7, 2001, the Regional Director for Region 5
issued a Decision and Direction of Election (relevant
portions of which are attached as an appendix) finding
that the Employer’s artillery test leaders are not supervi-
sors within the meaning of Section 2(11) of the Act.
Thereafter, in accordance with Section 102.67 of the
National Labor Relations Board’s Rules and Regulations,
the Employer filed a timely request for review of the
Regional Director’s decision, contending that the test
leaders are statutory supervisors because, inter alia, they
use independent judgment in responsibly directing other
employees.
On May 29, 2001, the Supreme Court issued its deci-
sion in NLRB v. Kentucky River Community Care, 121
S.Ct. 1861 (2001). In that case, the Court upheld the
Board’s Rule that the burden of proving Section 2(11)
supervisory status rests with the party asserting it. How-
ever, the Court rejected the Board’s interpretation of “in-
dependent judgment” in Section 2(11)’s test for supervi-
sory status, i.e., that registered nurses will not be deemed
to have used “independent judgment” when they exercise
ordinary professional or technical judgment in directing
less-skilled employees to deliver services in accordance
with employer-specified standards. Although the Court
found the Board’s interpretation of “independent judg-
ment” in this respect to be inconsistent with the Act, it
recognized that it is within the Board’s discretion to de-
termine, within reason, what scope or degree of “inde-
pendent judgment” meets the statutory threshold.
The Employer’s request for review of the Regional Di-
rector’s Decision and Direction of Election is granted as
it raises substantial issues warranting review in light of
the Supreme Court’s decision in Kentucky River. Having
carefully reviewed the entire record in light of Kentucky
River, we affirm the Regional Director’s finding that the
Employer has failed to sustain its burden of establishing
that the test leaders possess statutory supervisory author-
ity in their direction of other employees.
The Employer’s test leaders, along with the petitioned-
for artillery testers, run tests of military artillery, weap-
ons, and armaments for the United States Army. Each
working day, a stipulated supervisor provides the test
leaders with detailed assignment sheets. These sheets
detail the test leaders’ daily activities, including: where
he will report to carry out the testing; to whom he will be
reporting; which testers will be on his crew; and what
equipment he and his crew will be testing. Upon reach-
ing the assigned site, the test leader checks in with the
on-site test director, who provides additional instructions,
such as what equipment needs to be set up and where
exactly the test is to be executed. Depending on the
equipment being tested, the test director will even spec-
ify the distance between the equipment and the target. In
setting up the equipment, the leader and his crew are also
required to follow written standard operating procedures
that are provided by the manufacturer at each test site.
Although the Employer’s test leaders are responsible for
the safe execution of the tests, it is uncontested that it is
the responsibility of all the testers, as well as the test
leaders, to stop the testing procedure and call the safety
office should a safety violation occur.
Based on the foregoing, the Board agrees with the Re-
gional Director’s determination that the Employer has
failed to sustain its burden of establishing that the test
leaders possess statutory supervisory authority in their
direction of other employees. The evidence shows that
the test leaders’ role in directing employees is extremely
limited and circumscribed by detailed orders and regula-
tions issued by the Employer and other standard operat-
ing procedures. Consequently, the degree of judgment
exercised by the test leaders falls below the threshold
required to establish statutory supervisory authority. See
Chevron Shipping Co., 317 NLRB 379, 381 (1995), cited
with approval in Kentucky River.
ORDER
The Regional Director’s Decision and Direction of
Election is affirmed.
APPENDIX
DECISION AND DIRECTION OF ELECTION
District Lodge 12, Local Lodge 2424, International Association of Machinists and Aero-
space Workers (the Petitioner or the Union) filed a petition seeking to represent a unit of all
full-time and regular part-time artillery testers and artillery test leaders employed by the Em-
ployer at its Aberdeen Proving Grounds facility, Aberdeen, Maryland, but excluding all other
employees, office clerical, professional, managerial, guards and supervisors as defined in the
Act. The only issue raised at the hearing was whether artillery test leaders are supervisors
within the meaning of Section 2(11) of the Act. The Employer contends that artillery test
leaders are statutory supervisors, while the Petitioner contends that they are eligible employees.
The parties stipulated at the hearing that Program Manager Al Moran, and Range Supervi-
sor Jerry Overbay are supervisors as defined under Section 2(11) of the Act. The parties stipu-
lated Ruth Peterson is an office clerical who does not share a community interest with the
petitioned-for unit and should be excluded from any unit found appropriate.
Employer’s Operation
The Employer serves as a contractor to the United States Army at Aberdeen Proving
Grounds where it performs tests on certain weapons. The weapons testing is performed by the
artillery testers and the artillery test leaders.
334 NLRB No. 57
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 392
Test Artillery Test Leaders
John Gillion has been employed as an artillery test leader for about 3 years. Prior to being
an artillery test leader, Gillion was employed as an artillery tester. Gillion testified that he does
not recall being provided any job description at the time he became a test leader and does not
recall being told what his duties would be when he became a test leader. He reports every
morning at 7 a.m. to Jerry Overbay, the range supervisor. According to Gillion, Overbay
prepares a schedule each day for the work to be preformed. Gillion states during a typical day,
he makes sure who is working with him that day, which is two or four people, and he checks
with the test director concerning what needs to be done. According to Gillion, he then performs
the test with the testers making sure everything functions in a safe manner. Gillion states he
does not have the ability to hire, fire, promote, demote, or grant overtime to employees. In fact,
Gillion states he spends almost all of his time performing the same work as testers. Gillion
testified he is responsible for safety, but states that it is also the responsibility of any tester or
test director to stop a safety violation when they see it. Gillion is not aware that he possesses
any supervisory indicia.
Employer’s Position
The Employer, who presented no witnesses with first-hand knowledge of the day-to-day
duties performed by the artillery test leaders,1 contends the artillery test leaders are supervisors
based on the two documents attached hereto as Exhibits 1 and 2. Exhibit 1 is a page from the
contract between the Army and the Employer, and Exhibit 2 is a three-page portion of the 1993
wage determination covering this job.2
Conclusions
Section 2(11) of the Act, 29 U.S.C. §152, provides:

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 recom-
mend 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.

Section 2(11) is to be read in the disjunctive; the possession of any one of the authorities
listed is sufficient to place an individual invested with this authority in the supervisory class.
Mississippi Power Co., 328 NLRB 965, 969 (1999), citing Ohio Power v. NLRB, 176 F.2d 385,
387 (6th Cir. 1949), cert. denied 338 U.S. 899 (1949). Applying Section 2(11) to the duties and
responsibilities of any given person requires the Board to determine whether the person in
question possesses any of the authorities listed in Section 2(11), uses independent judgment in
conjunction with those authorities, and does so in the interest of management and not in a
routine manner. Hydro Conduit Corp., 254 NLRB 433, 437 (1981). Thus, the exercise of a
2(11) authority in a merely routine, clerical, perfunctory, or sporadic manner does not confer
supervisory status. Chicago Metallic Corp., 273 NLRB 1677 (1985). As pointed out in West-
inghouse Electric Corp. v. NLRB, 424 F.2d 1151, 1158 (7th Cir. 1970), cited in Hydro Conduit
Corp.: “the Board has a duty to employees to be alert not to construe supervisory status too
broadly because the employee who is deemed a supervisor is denied employee rights which the
Act is intended to protect.” See also Quadrex Environmental Co., 308 NLRB 101, 102 (1992).
In this regard, employees who are mere conduits for relaying information between management
and other employees are not statutory supervisors. Bowne of Houston, 280 NLRB 1222, 1224
(1986).

1 The employer’s sole witness was Richard Cheliras, director and di-
vision manager, general manager for the Defense Services Technical
Division of Dynamic Science, Inc. Cheliras testified that the last time
he observed artillery testers and artillery test leaders performing their
jobs was in mid-October 2000, for about 10 minutes.
2 Petitioner objected to the receipt of these exhibits for lack of a
foundation. While the receipt of these documents in the record raise
some issues, for the purposes of this decision, I have reviewed them
and considered them to be what the Employer asserts they are, a portion
of their current contract with the Army and a portion of the 1993 wage
determination.
In enacting Section 2(11), Congress emphasized its intention that only supervisory person-
nel vested with “genuine management prerogatives” should be considered supervisors, and not
“straw bosses, leadmen, setup men and other minor supervisory employees.” See S. Rep. No.
105 at 4, 80th Cong., 1st Sess., reprinted in 1 Leg. Hist. (LMRA 1947). The Board has long
recognized “there are highly skilled employees whose primary function is physical participation
in the production or operating processes of their employer’s plants and who incidentally direct
the movements and operations of less skilled subordinate employees,” who nevertheless are not
supervisors within the meaning of the Act, since their authority is based on their working skills
and experience. Southern Bleachery & Print Works, 115 NLRB 787, 791 (1956), enfd. 257
F.2d 235 (4th Cir. 1958), cert. denied 359 U.S. 911; Gulf Bottlers, Inc., 127 NLRB 850, fn. 3,
858–861 (1960), enfd. sub nom. Brewery Workers v. NLRB, 298 F.2d 297 (D.C. Cir. 1961);
Koons Ford of Annapolis, 282 NLRB 506, 513–514 (1986), enfd. 833 F.2d 310 (4th Cir. 1987),
cert. denied 485 U.S. 1021 (1988). See also KGW-TV, 329 NLRB 378 (1999) (“even the
exercise of substantial and significant judgment by employees instructing other employees
based on their own training, experience and expertise does not translate into supervisory
authority responsibly to direct other employees”).
The party seeking to exclude an individual from voting for a collective-bargaining represen-
tative has the burden of establishing that the individual is ineligible to vote. Golden Fan Inn,
281 NLRB 226, 229–230 fn. 12 (1986). As stated in Ohio Masonic Home, 295 NLRB 390, 393
(1989): “in representation proceedings such as this, the burden of proving that an individual is a
supervisor rests on the party alleging that supervisory status exists. Tucson Gas & Electric Co.,
241 NLRB 181 (1979).” Accord: Carlisle Engineered Products, 330 NLRB 1359 (2000);
Fleming Cos., 330 NLRB 277 fn. l (1999); Bennett Industries, 313 NLRB 1363 (1994). Con-
clusory evidence, “without specific explanation that the [disputed person or classification] in
fact exercised independent judgment,” does not establish supervisory authority. Sears, Roebuck
& Co., 304 NLRB 193 (1991). Similarly, it is an individual’s duties and responsibilities that
determine his or her status as a supervisor under the Act, not his or her job title. New Fern
Restorium Co., 175 NLRB 871 (1969).
The record establishes the artillery test leaders perform similar duties to the artillery testers.
Moreover, the record is devoid of any evidence the artillery test leaders are supervisors within
the meaning of Section 2(11) of the Act. The Employer’s argument that the artillery test leaders
are supervisors rests solely on a line in their contract with the Army and a second line in the
1993 wage determination to the effect that they have “experience leading” and “coordinate the
efforts” of the crew. However, no evidence was presented that the actual duties of the artillery
test leaders involved supervisory authority. In view of the foregoing, I find the artillery test
leaders are not supervisors within the meaning of Section 2(11) of the Act and are eligible to
vote in the election directed herein.
In summary, I direct an election in the following unit:

All full-time and regular part-time artillery testers and artillery test leaders employed by the
Employer at its Aberdeen Proving Grounds facility, Aberdeen, Maryland, but excluding all
other employees, office clericals, professionals, managerial employees, guards and supervisors
as defined in the Act.