Eastern Boiler and Electronics, Inc.

National Labor Relations Board - Board Decisions

Mar 2, 1977

228 N.L.R.B. 568 (N.L.R.B. 1977)

568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Eastern Boiler and Electronics, Inc. and District No.
26, International Association of Machinists and
Aerospace Workers, AFL-CIO, Petitioner. Case
1-RC-14397
March 2, 1977
DECISION AND ORDER DIRECTING
REGIONAL DIRECTOR TO OPEN AND
COUNT CHALLENGED BALLOT
BY MEMBERS JENKINS, PENELLO, AND
WALTHER
Pursuant to a Stipulation for Certification Upon
Consent Election executed by the parties and
approved by the Acting Regional Director for
Region 1 on April 1, 1976, an election by secret
ballot was conducted on April 29, 1976, under the
direction and supervision of the Acting Regional
Director, among the employees in the appropriate
unit. At the conclusion of the election, the parties
were furnished with a tally of ballots which showed
that there were approximately 10 eligible voters and
10 ballots cast, of which 5 were for, and 4 against, the
Petitioner Union, and 1 was challenged. The chal-
lenged ballot was sufficient to affect the results of the
election.
In accordance with the National Labor Relations
Board's Rules and Regulations, Series 8 , as amended,
the Acting Regional Director conducted an investi-
gation and, on July 21, 1976, issued and duly served
on the parties his Report on Challenged Ballot. In his
report, the Acting Regional Director recommended
to the Board that the challenge to the ballot be
sustained and that a revised tally of ballots and
certification of representative be issued.
Exceptions to the Acting Regional Director's
report having been filed by the Employer within the
time provided therefor, the Board, by Order dated
October 5, 1976, ordered that a hearing be held
before a duly designated Hearing Officer for the
purpose of receiving evidence to resolve the issues
raised by the challenge to the ballot of Walter
Burnett. The Board further ordered that the Hearing
Officer designated for the purpose of conducting the
hearing prepare and cause to be served on the parties
a report containing resolutions of the credibility of
witnesses, findings of fact, and recommendations as
to the disposition of said issues.
Pursuant to said order, a hearing was held on
November 18, 1976, before Hearing Officer Thomas
P. Kennedy. All parties were represented, the
Employer and the Regional Director by counsel and
the Petitioner by a Grand Lodge representative,
participated fully in the hearing, and were given full
opportunity to be heard, to examine and cross-
228 NLRB No. 101
examine witnesses , and to produce evidence bearing
on the issues . On December 10, 1976, the Hearing
Officer issued and served on the parties his Report
on Challenged Ballot in which he recommended that
the challenge to the ballot of Walter Burnett be
sustained and that the Petitioner be certified as
bargaining representative. The Employer filed timely
exceptions to the Hearing Officer's report and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Upon the entire record in this case, the Board
finds:
1. The Employer is engaged in commerce within
the meaning of the Act and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The Petitioner-Union is a labor organization
claiming to represent certain employees of the
Employer.
3. A question affecting commerce exists concern-
ing the representation of the employees of the
Employer within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
4. The parties stipulated, and we find, that the
following employees constitute a unit appropriate for
the purpose of collective bargaining within the
meaning of Section 9(b) of the Act:
All full-time production and maintenance em-
ployees employed by the Employer at its 550
Wilbur Cross Highway location, but excluding
office clerical employees, technical employees,
professional employees, watchmen, guards, and
supervisors as defined in the Act.
5. The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Hearing Officer's report and the Employer's excep-
tions and brief and hereby adopts the Hearing
Officer's findings only to the extent consistent
herewith. We do not adopt his conclusion that
Walter Burnett is a supervisor within the meaning of
Section 2(11) of the Act, or his recommendation that
the challenge to his ballot be sustained and the
Petitioner be certified as bargaining representative.
The Employer is engaged in the manufacture and
distribution of fin tubes and accessories for base-
board radiation and other heating products. The
Employer's general manager, John O'Brien, is also
general manager of two other companies, one in
Pennsylvania and the other, Argo Fabricators,
located some 200-300 feet away from the building
EASTERN BOILER & ELECTRONICS 569
occupied exclusively by the Employer, Eastern
Boiler, in Connecticut. Mr. O'Brien's office is located
in the Argo Fabricators building. Under normal
circumstances, O'Brien visits the Eastern Boiler
premises twice a week for about 15 minutes on each
occasion. Raymond Pulver, whose supervisory status
the parties do not contest, is the foreman in charge of
Eastern Boiler.
Burnett, with 15 years' service, is the most senior
employee of the approximately 10 employees work-
ing under Pulver.' Unlike Pulver, Burnett is paid at
an hourly rate, earns time-and-a half for overtime,
and, at the last general wage increase, received the
same wage adjustment as rank-and-file employees.
All employees, including Pulver and Burnett, receive
virtually identical fringe benefits. Although, like unit
employees, Burnett operates machinery, he performs
additional duties including driving the delivery truck,
setting up machinery, and doing general mainte-
nance work.
In concluding that Burnett was a supervisor, the
Hearing Officer relied in part on his finding that
whenever Pulver is away from the premises, such as
1 /2 to 1 hour in the early morning, in O'Brien's
office, on vacation, or on sick leave, then Burnett is
"in charge of the operations" in that he assigns,
directs, and disciplines the employees.2 The record
reveals that the other employees are engaged in the
routine operation of various pieces of machinery, and
generally know what their own specific jobs are
without needing to be told. To the extent that any
changes are necessitated during the workday, Pulver
will order the revisions, although Burnett often relays
the instructions to the employees. If changes are to
occur in the early morning before Pulver has arrived
at the facility, Burnett will so direct the employees
based on work assignments which have been previ-
ously determined by Pulver. When Pulver leaves on
vacation, he provides Burnett with preestablished
plans set forth on a production sheet. During
Pulver's vacations, Burnett consults with O'Brien
when problems arise and O'Brien increases the
frequency of his visits to Eastern Boiler to daily trips
averaging 1 hour in length. Burnett did testify that
there is often some latitude within the perameters of
the directions he receives from Pulver, and that, on
his own initiative, he may from time to time order an
employee to leave his machine temporarily and assist
with a more pressing job as, for example, the
unloading of t truck. Nonetheless, the record, viewed
as a whole, clearly establishes that Burnett's respon-
I By comparison, the next senior employee has but 4 years' service.
2 During the period from October 1975 to February 1976, the Employer
operated a second shift at nights and on Saturdays. As Pulver never worked
on the second shift, the Hearing Officer found that Burnett was "in charge"
of the shift. However, as this shift ceased functioning before the election
period, and recognizing that the Board's determination whether an
sibilities to assign and direct amount to nothing more
than routine direction and are not indicative of
supervisory status.
On the subject of Burnett's alleged authority to
discipline employees in Pulver's absence, there are
two relevant incidents contained in the record. On
the first occasion, Burnett, believing employee Boyko
to be intoxicated, directed him either to go home or
report to O'Brien. Boyko went to O'Brien, who
promptly returned him to his work station. Regard-
ing the second incident, Russell Brown, who had
previously been warned regarding his absenteeism,
failed to report to work on a day when Pulver was
absent. Burnett testified that, after consulting with
O'Brien and in accordance with prior instructions
from Pulver, when Brown showed up on the
following day he directed him to go home and report
to Pulver when the latter returned. Although Brown
testified that he returned to see Pulver of his own
volition and had not been instructed to do so by
Burnett, other portions of Brown's testimony estab-
lish that Pulver regarded the decision to terminate as
strictly his own, relying on Burnett only for verifying
that Brown had been absent. Such incidents fall short
of demonstrating the exercise of independent judg-
ment in disciplinary matters.
In addition to the foregoing, the Hearing Officer
raised a number of secondary indicia which on their
face might suggest supervisory status. Thus, the
Hearing Officer found that, in Pulver's absence,
Burnett approves corrections to timecards. However,
the record also establishes that on occasions when
both Pulver and Burnett were not present, Boyko,
then the ranking employee in seniority following
Burnett, had approved corrections to the timecards.
The Hearing Officer additionally found that Burnett
granted employees time off for sickness or personal
matters. We find, however, that in light of Pulver's
established policy of automatically approving all
such requests, Burnett's approval was merely pro
forma and did not entail the exercise of independent
judgment. The record does support the Hearing
Officer's finding that Burnett does not punch the
timeclock, but instead informally reports his hours to
Pulver. This practice, however, is of minimal signifi-
cance as such a privilege appears attributable to
Burnett's position as a trusted employee with over 15
years' service. Finally, considerable reliance was
placed by the Hearing Officer on his finding that
even when Pulver is present, Burnett has constant
responsibility for maintaining order on the premises.
employee is a bargaining unit member is based on the employee's status as
of the election period, we need not assess whether Burnett's duties on the
second shift involved the exercise of independent judgment . Moreover, the
record does not specifically show that Burnett 's responsibilities while on that
shift exceeded those which he exercised when Pulver was absent from the
regular shift.
570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, when employees are "goofing off ' or
"playing around ," Burnett will order them to resume
work , sometimes including threats to have them
discharged if they refuse to comply . In the absence of
evidence that these exhortations of Burnett's have led
to any instances of disciplinary action, his responsi-
bility for maintaining order is not demonstrative of
supervisory authority.3
In summary , Burnett is a senior employee, whose
occasional exercise of limited authority is best
characterized as that of "strawbosses, leadmen, and
other minor supervisory employees."4 The record
does not support a finding that he actually possesses
any kind of supervisory authority as defined in
Section 2(11) of the Act. Accordingly, we shall direct
the Regional Director to open and count his ballot,
to prepare a revised tally of ballots, and to issue the
appropriate certification.
ORDER
It is hereby ordered that as part of the investigation
to ascertain a representative for the purpose of
collective bargaining among certain employees em-
ployed by the Employer, in the unit set forth above,
the Regional Director for Region I shall, within 10
days from the date of this Decision, open and count
the ballot of Walter Burnett and thereafter prepare
and serve on the parties a revised tally of ballots,
including therein the count of said ballot, upon the
basis of which he shall issue the appropriate
certification.
3 Frank Foundries Corporation, 213 NLRB 391 (1974). 4 Harmon Industries, Inc., 226 NLRB 432 (1976).