Howard Johnson Co.

National Labor Relations Board - Board Decisions

Mar 18, 1969

174 N.L.R.B. 1217 (N.L.R.B. 1969)

HOWARD JOHNSON COMPANY 1217
Howard Johnson Company and International Union
of Operating Engineers , Local 68, AFL-CIO. Case
22-CA-2961
March 18, 1969
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND ZAGORIA
On May 22, 1967, the National Labor Relations
Board issued a Decision and Order in this
proceeding,' finding that the Respondent had
violated Section 8(a)(5) and (1) of the National
Labor Relations Act, as amended, by refusing to
bargain with the Union, the Charging Party herein,
alter it was certified by the Board,' as the
bargaining representative for a two-man unit of
licensed operating engineers at the Respondent's
Englewood, New Jersey, ice cream producing plant
and ordering the Respondent to take specific action
to remedy such unfair labor practices. Subsequently,
the Board sought enforcement of its Order before
the United States Court of Appeals for the Third
Circuit On July 26, 1968, the court handed down its
Decision.3 The court agreed with the Board's unit
determination, but found that an issue as to the
supervisory status of Henry Koehler, one of the two
employees in the unit found appropriate by the
Board, had not been fully litigated in the
representation hearing. Accordingly, the court
remanded the case to the Board for a hearing on
that question. On September 4, 1968, the Board
accepted the remand and issued an Order reopening
the record and directing a further hearing before a
Trial Examiner consistent with the court's remand.
On December 30, 1968, Trial Examiner Samuel
M. Singer issued his Supplemental Decision,
attached hereto, in which he concluded that Koehler
was neither a supervisor within the meaning of
Section 2(11) of the National Labor Relations Act,
as amended, nor a managerial employee within the
meaning of that term as defined under the Board's
existing policy. He recommended that the Board
reaffirm its Order of May 22, 1967. Thereafter, the
Respondent filed exceptions, and a brief in support
thereof, to the Trial Examiner's Supplemental
Decision. The General Counsel filed limited
exceptions to the Supplemental Decision, as well as
a brief in support of his exceptions and in support of
the Trial Examiner's Recommended Order.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
1164 NLRB No 121
'Case 22-RC- 3282, not reported in NLRB printed volumes
'N L R B v Howard Johnson Company , 398 F 2d 435 (C A 3)
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Supplemental Decision, the
Respondent's exceptions4 and brief, and the General
Counsel's brief and exceptions, and the entire record
in the case, and hereby adopts the findings,
conclusions, and recommendations of the Trial
Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby overrules the objections' to
the election; affirms the certification of International
Union of Operating Engineers, Local 68, AFL-CIO,
as the representative of the employees in the
appropriate unit; and orders that the Respondent
take the action set forth in the Order previously
issued herein on May 22, 1967.
'The Respondent excepts primarily to the credibility resolutions of the
Trial Examiner It is the Board ' s established policy not to overrule a Trial
Examiner ' s resolutions of credibility unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Such a
conclusion is not warranted here Standard Dry Wall Products , Inc , 91
NLRB 544, enfd 188 F 2d 362 (C A 3)
TRIAL EXAMINER'S SUPPLEMENTAL
DECISION
STATEMENT OF THE CASE
SAMUEL M. SINGER, Trial Examiner- On May 22, 1967,
the Board issued a Decision and Order in this proceeding
(164 NLRB No. 121) affirming Trial Examiner Charles
W. Schneider's decision that Respondent violated Section
8(a)(5) and (1) of the National Labor Relations Act by its
refusal to recognize the Charging Party (herein called the
Union) as the bargaining representative for a two-man
unit of licensed operating engineers at Respondent's
Englewood, New Jersey, ice cream producing plant,
notwithstanding Board certification of the Union as such
bargaining representative (Case 22-RC-3282) Trial
Examiner Schneider had granted General Counsel's
motion for summary judgment, rejecting Respondent's
contentions with respect to the appropriateness of the
bargaining unit and the alleged supervisory status of
Henry Koehler (one of the two in the unit found
appropriate) on the ground that Respondent was
attempting to relitigate matters previously determined in
the underlying representation proceeding. In adopting the
Trial Examiner's findings and conclusions, the Board
noted that "the status and duties of Koehler were, in fact,
fully litigated in that hearing"; and that the testimony of
Respondent's own officials demonstrated that "Koehler
did not possess any indicia of supervisory status," his
relationship to Vary (the second employee in the two-man
unit) being that of "a senior, more experienced employee
to a junior, less experienced employee "
Thereafter, the Board filed a petition with the United
States Court of Appeals for the Third Circuit for
enforcement of its Order While agreeing with the Board's
unit determination, the Court in its July 26, 1968, decision
174 NLRB No. 182
1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
found, contrary to the Board, that the issue of Koehler's
supervisory status had not been fully litigated in the
representation hearing, pointing out that the "entire thrust
of that hearing was focused on other issues " N L R.B v.
Howard Johnson Company, 398 F.2d 435, 441 Without
deciding "the merits of respondent's contentions," the
Court stated that certain matters raised by Respondent
after the close of the representation hearing, "if true, raise
a substantial question" as to Koehler's status as
supervisor, accordingly remanding the case for further
hearing on this issue. Id. at 442
On September 4, 1968, the Board issued an
implementing order reopening this proceeding for "further
hearing before a Trial Examiner as to the supervisory
status of Henry Koehler, in accordance with the Court's
Opinion of July 26, 1968." The Board's order also
directed that, upon conclusion of such hearing, the Trial
Examiner should prepare a supplemental decision
A supplemental hearing was accordingly held before me
on October 24 and 25, 1968, in Newark, New Jersey, at
which all parties were represented by counsel and afforded
full opportunity to participate, to introduce evidence
relevant to the supervisory issue, and to file briefs Briefs,
received from General Counsel and Respondent, have
been fully considered.
Upon the record of the entire case, including the record
in the representation proceeding, of which (as indicated at
the hearing) I have taken official notice, and from my
observation of the witnesses, I make the following
supplemental findings of fact and conclusions of law:
FINDINGS AND CONCLUSIONS
A. The Evidence
1.
or 25 percent of their time, in the boiler and compressor
rooms operating and maintaining equipment to assure the
proper steam pressure, temperature, and humidity
necessary to the manufacturing process. Both men held
licenses required by the State of New Jersey to perform
these jobs.' In addition, State regulations required that the
boiler and compressor rooms be attended by a licensed
operating engineer during the entire workday The
remainder (75 percent) of the maintenance men's time was
occupied in maintaining equipment on the production
floor (conveyors, conveyor belts, power machinery, etc.),
in carpentry, plumbing, painting, and electrical work, and
in performing sundry tasks such as unloading trucks and
freight cars, dumping flavoring in ice cream machinery,
and assembling and stacking cake boxes.'
Koehler and Vary worked together on some jobs (e.g.,
construction work and repairs) and separately on others
Each periodically checked gauges, temperatures, and
pressures and adjusted valves and controls on boiler and
refrigeration equipment However, unlicensed employees
("a pasteurizer" and porter) "on a regular basis" turned
on the boiler and compressor upon arrival at work at 3
a.m. (before arrival of the maintenance men).'
Vary worked the 6 a m.-2.30 p.m. shift while Koehler
worked 9:30 am -6 p.m Each punched a timecard and
was paid on an hourly basis. Koehler, the senior and more
experienced man,' was paid $3 70 and Vary was paid
$3 25 an hour. Each was paid for overtime, including
weekends (Saturday and Sunday) when they alternated to
check on operation of equipment Each received the same
benefits (holidays, vacations, leave, medical, etc ) received
by all Company hourly employees.
The testimony respecting Koehler's supervisory status is
in sharp conflict in material respects As to the following,
however, there is no substantial dispute-
During the period here involved, April - July 1966,'
Respondent employed approximately 38 employees in its
ice cream manufacturing plant - 21 production, 15
shipping, and 2 "maintenance" employees The last two,
Koehler and Vary (the employees here directly involved),
were also known as operating engineers. Plant Manager
Burnham had "overall operating responsibility for the
Englewood commissary."' The production supervisor,
transportation and warehouse manager, and office
manager were salaried, worked no fixed hours (they did
not punch a timeclock), and were not paid overtime. All
of them reported directly to Burnham.
An "evaluation booklet," prepared by one of
Burnham's predecessors and produced in the
representation hearing, describes the functions of the
"maintenance man" as follows " Maintains all machinery,
repairs breakdowns, does carpentry, plumbing, painting
and electrical work, to the limit of tools available, does
other work as required "' Burnham and other Company
officials testified in the representation hearing that the two
maintenance men (Koehler and Vary) spent about 2 hours,
The Union' s representation petition was filed on April 29, the hearing
thereon was conducted on May 18, and the election was directed and held
on June 9 and July 6, 1966
'Burnham was production manager from November 1, 1965, to February
6, 1968 , when he left Respondent ' s employ Keenan was plant manager
from October 1964 to November 1965 and Faust (now Company vice
president ) from 1958 to October 1964
'In the complaint hearing, Burnham testified that he "felt that [this job
description ] was incomplete," indicating that he did not confine the
maintenance men, including Koehler, to this description He admitted,
however , that there were no "written " Company records identifying
Koehler as a supervisor
'Koehler held a second-class or red seal license entitling him to operate
refrigeration equipment up to 300 tons , and Vary a third-class or blue seal
license entitling him to maintain refrigeration equipment up to 65 tons
Respondent ' s Vice President Faust held a first-class or gold seal license,
which was required to operate refrigeration equipment of tonnage in excess
of 300 According to Koehler's uncontradicted testimony in the
representation hearing , Respondent ' s refrigeration tonnage was "around
300 tons " Burnham testified in the complaint hearing that Koehler, whom
he characterized as "chief engineer ," had the required State license to
operate the plant
'According to Respondent's witness Keenan ( former production
manager ), the maintenance men's duties included unskilled janitorial tasks
such as removal of garbage from production and lunchroom areas, putting
away laundered uniforms , replacing towels, changing bulbs, carrying candy
to the production area , replacing soap on the conveyors , mopping the
warehouse floor, watering the lawn , and inspecting mousetraps
'Plant Manager Burnham could not tell whether a license was required
to turn on the compressor and boiler but added that "they [ the unlicensed
employees ] are covered by licenses" of others
'Koehler had been in Respondent ' s employ for 5 years and had had
vocational training , he left the Company in February 1968 Although hired
in 1959, Vary did not qualify as an operating engineer until 1965, working
as checker until that time As previou ,ly noted, Koehler held a higher
grade license than Vary In addition , Vary was less experienced than
Koehler in such matters as electrical work, plumbing, and carpentry in the
representation hearing, Koehler characterized Vary as his "assistant " Vary
testified that Burnham assigned him to the early shift because there were
fewer breakdowns earlier in the day Burnham testified that as "senior
man" Koehler was given "the option of picking the shift that he wanted "
HOWARD JOHNSON COMPANY 1219
2
The disputed evidence involving Koehler's authority
may be summarized as follows
a. In the complaint hearing, Burnham testified that
shortly after taking over as plant manager in November
1965, he told Koehler that he would be "chief engineer of
the Englewood plant" and "responsible for the operation"
of the boilers and refrigeration facilities (i.e , all licensed
engineer work); and that Koehler would be "directing and
assigning" other maintenance work to Vary According to
Burnham, he instructed Vary to take his assignments from
Koehler. Burnham also testified that as to "any
emergency breakdown," he instituted the procedure
whereby Koehler was to be called by the production
operator and, after evaluating the situation, Koehler was
to correct the situation himself, call upon Vary to help
him, or assign the work to Vary He further testified that
in case of scheduled work, he and Koehler would jointly
compile a list of projects and would assign the order of
work, with Koehler determining which he and Vary were
to perform. Burnham admitted, however, that "at times"
he personally assigned the work to Vary and that much of
the engineer's work was routine since "you have an engine
room that literally is automatic machine, it runs itself.
There are switches when the machine cuts in and out "
Koehler specifically denied that Burnham had
designated him as chief engineer and that Burnham had
authorized him to direct Vary's work and to determine
whether he or Vary were to perform any particular job.
He testified that Burnham himself "laid out all the work
for us," periodically preparing a list of required jobs, that
Burnham selected the work to be done by each; and that
Koehler "never planned" Vary's work. According to
Koehler, Burnham summoned him and Vary to the office
soon after Burnham's arrival at the plant in November
1965 and told them that he was "the new plant manager
. that we will take orders from him, and [h]e would
lay out the work that would have to be done." Koehler
admitted that he sometimes called upon Vary to help on
certain jobs since "a lot of jobs require two men," but
that Vary would sometimes likewise ask him to help As
to machinery breakdowns, he testified that the operator
would contact either him or Vary, "whoever was around
at the time," for repairs.
Vary's testimony is essentially consistent with
Koehler's. Thus, he testified that management never
advised him that Koehler was chief engineer or that he
was to take orders from Koehler He also testified that he
received assignments from Burnham from a list prepared
by Burnham He stated, however, that he assisted Koehler
not only in connection with jobs requiring two-man
handling, but also in construction work in which he was
less skilled than Koehler.' He also admitted seeking
Koehler's advice on the use of equipment and on repair
procedures According to Vary, in case of equipment
breakdowns, a supervisor would call over the loudspeaker
for a maintenance man and either he or Koehler would
respond to make necessary repairs, indicating that
Koehler had nothing to do with assigning this work
b. In the complaint hearing, Burnham indicated that
Koehler exercised discretion in assigning overtime to
Vary. Thus, he testified that there were "many instances
As previously noted, Vary was less experienced than Koehler in skilled
operations such as carpentry, electricity , and plumbing Vary and Koehler
testified that when Burnham interviewed them shortly after arriving in
Englewood , he suggested that Vary go to school for training in these skills
when Mr. Koehler would have a project going . he
would come to me and say, 'I feel it's necessary that we
continue on with the job Shall Vic Vary stay on the job
and continue on working on it "' Burnham would say, "If
you feel this is what is necessary, you know what has to
be done, all right, go ahead and use your own discretion "
Burnham added that in weekend "emergency situations"
Koehler "did call Victor Vary directly to come in to work
to correct the situation without discussing it with me."
However, he recalled only one instance when this was
done, namely, a Saturday emergency when Koehler (then
on duty) discovered "an improper functioning in the
hardening room, with liquid ammonia coming back on a
machine," causing a shutdown
Both Koehler and Vary denied that Koehler exercised
authority respecting overtime assignments Each recalled
the emergency involving the ammonia, indicating that
Koehler called in Vary because he could not handle the
"dangerous operation" by himself. Koehler stated that he
did this on his own because of the extreme emergency and
his inability to reach Burnham by telephone for advance
authorization According to Koehler, Burnham "wrote me
up and told me that next time I have no authorization to
call anybody in on overtime . you can be fired "'
c In March 1966, Burnham granted Koehler a 20-cent
hourly wage increase ($3 50 to $3 70) and Vary a 15-cent
increase ($3 10 to $3.25) Burnham testified that he gave
the increase to Vary after conferring on the matter with
Koehler who told him, "I feel we should give a pay
increase to him."
Koehler denied recommending the 15-cent increase to
Vary, stating that his and Vary's increases were part of a
"general" plantwide wage raise, that the increases were
announced by supervisors to employees working under
them, and that he first learned of Vary's raise when
Burnham "came around and told us " Koehler's version is
supported by Respondent's records showing that most of
the plant employees were given comparable increases on
the date in question.
Based on all of the foregoing and the entire record,
including appraisal of comparative demeanor of witnesses,
I resolve the conflicting testimony concerning the nature
of Koehler's duties and authority in favor of Koehler
rather than Burnham, although I am fully aware that in
testifying in this proceeding, Koehler sometimes was not
averse to minimizing his responsibilities, as was Burnham
to magnifying them, in order to advance their respective
interests 10 It is to be noted that Koehler's testimony is
'I credit Koehler's version of the incident Burnham was vague and
uncertain about some of the details, including the disciplinary warning
Koehler referred to Respondent failed to produce Koehler's personnel
folder which might have shed light on the nature of the warning , if any,
given to Koehler
"A seemingly glaring example of minimization by Koehler of his
responsibilities is his testimony concerning his role in ordering and
purchasing equipment and supplies, discussed infra , section A, 3 My
failure to credit portions of Koehler ' s testimony on that point does not
require alteration of my determination that he testified truthfully about
other matters "It is no reason for refusing to accept everything that a
witness says , because you do not believe all of it, nothing is more common
in all kinds of judicial decisions than to believe some and not all"
N L R B v Universal Camera Corporation , 179 F 2d 749, 754 (C A 2),
reversed on other grounds 340 U S 474 See also N L R B v Izzi, 395
F 2d 241, 243-244 (C A 1), Champion Papers, Inc v N L R B, 393 F 2d
388 (C A 6) This is particularly true where , as here , Koehler's testimony
must be evaluated in relation to other contradictory testimony, practically
all of his other testimony is corroborated by other credible evidence, and
his testimony comports with the inherent probabilities in the entire context
of the case
1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
corroborated in material respects by Vary, who impressed
me as an essentially truthful witness Vary is still in
Respondent's employ and in a sense, therefore, his
testimony (to the extent adverse to Respondent) was
potentially inimical to his interest in retaining his
employer's goodwill. On the other hand, Respondent
called no witnesses to corroborate Burnham's testimony in
the complaint hearing on the issue of Koehler's
supervisory status " To the extent that the testimony of
Company officials (former Plant Managers Keenan and
Faust) in the representation proceeding is relevant and
material to the duties and authority of Koehler during the
period here involved, it is clear that that testimony is
totally at odds with Burnham's testimony in the complaint
hearing All Company officials who testified in the
representation case (including Burnham) depicted Koehler
and Vary as mere rank-and-file employees to be included
in a single unit with all other Company rank-and-filers.
None claimed that Koehler was vested with authority over
Vary, each indicating that Koehler and Vary worked
together and were on equal footing Burnham himself
testified that he would each morning give "the work
assignments for [the] day" to his senior employee
Koehler, who "in turn will generally talk with Mr Vary,"
without at all indicating that Koehler was more than a
conduit for relaying instructions Burnham gave no inkling
that Koehler was "chief engineer" (as he vigorously
claimed at the complaint hearing), clothed with
supervisory functions - a claim which, if established in
the representation proceeding, would have defeated the
Union's petition for an operating engineer bargaining unit,
since Koehler's exclusion from the unit would have left
only a one-man unit (consisting of Vary) which would
have been inappropriate. Also significant is the fact that,
as Burnham testified, Respondent does not have a single
record - lob description, payroll, or any other written
document identifying Koehler as a supervisory
employee.
To be sure, as the Court of Appeals observed in its
decision remanding this case for further hearing (supra),
the testimony in the representation proceeding "was
focused on other issues, issues related to the 'integration'
of respondent's production process" (398 F.2d at 441)
rather than on the "supervisor" question. This is not to
say that Burnham's (as well as other Company witnesses')
factual account of Koehler duties and responsibilities in
the representation proceeding - including the
circumstance that the testimony there was given without
an eye to the strictly supervisory issue - should not be
given the weight which it deserves This includes the
evaluation of the impact of inconsistent testimony upon
credibility resolution As I read the Court's decision, its
determination to remand the case was predicated on the
view that Respondent had not been afforded opportunity
to "fully litigate" the supervisor issue, in view of
preoccupation of the parties with the overall unit question
The Court did not, of course, preclude considering the
testimony adduced there for purposes of evaluating
credibility of testimony given in the complaint proceeding
"Respondent called only one other witness (Lilley) whose testimony was
confined to Koehler ' s alleged managerial authority concerning purchasing
equipment and pledging Respondent's credit (infra, section A, 3)
3.
Burnham testified that during the period here involved
(prior to the July 1966 Board election), Koehler possessed
and exercised authority to purchase "small miscellaneous
items . on a day-by-day basis, things like electrical
fuses, some nuts and bolts," without prior clearance from
Burnham He further testified that in case of "major
maintenance" projects, Koehler was authorized to order
and purchase necessary items after the two agreed on
proceeding with a particular project Burnham cited two
"sizable jobs" completed between December 1965 and
April 1966 - construction of a shipping office and
overhaul of the refrigeration system (four compressors) -
for which Koehler without prior specific clearance from
Burnham ordered parts and materials aggregating some
$6,000 According to Burnham, Koehler did report to
him, however, on the given orders and Burnham did keep
an eye and checked on the progress of the project
Burnham indicated that he terminated Koehler's authority
to place orders without advance clearance in October
1966, when he instituted a requirement that "purchase
orders [signed by Burnham] had to be used or that [the
orders]had to be cleared through [him] in every case." As
to capital expenditures, clearance and signed purchase
orders were always required Regarding Vary, Burnham
testified that he, unlike Koehler, was never authorized to
make purchases of any nature, without "prior clearance"
from himself or Koehler.
Koehler specifically denied ordering any materials for
the four-compressor overhaul ($4,000 of the $6,000 total
expended, according to Burnham), asserting that he "had
no authority on that at all." According to Koehler, when
Burnham inquired whether he could handle the overhaul
and he (Koehler) indicated that he could, Burnham
contacted Respondent's supplier and manufacturer of the
equipment (Wilbur Lilley, branch manager of St. Regis
Pulp & Paper Company) who then selected all the
necessary parts from a catalogue. Koehler further testified
that Lilley would come to the plant "many times
when we had trouble with the refrigeration" and when
replacement parts were needed. He admitted ordering
parts by telephone directly from the supplier, but stated
that he did this only upon direction or clearance from
Burnham. Koehler testified that a purchase order, signed
by Burnham, was always required for materials procured
by himself and Vary, even for hardware items such as
bolts and screws
Vary corroborated Koehler's testimony concerning the
purchase order and clearance procedures, but could not
accurately fix the time these procedures were instituted,
other than saying in general terms that it was in effect
when Burham "first started there" or "soon after he came
there I'd say a month or so." He testified, contrary to
Burnham, that he had purchased various needed items and
parts, and, indeed, that anybody ("whoever is available,"
even the porter) had made purchases after obtaining
Burnham's approval. He gave as an example a situation
when "a belt breaks, and you need it right away, so you
go to Mr. Burnham" for permission to obtain a
replacement Another cited example was when he obtained
Burnham's approval to buy a gasket cutter from a
salesman in the plant':
"Burnham ' s testimony that it was Koehler who purchased the gasket
cutter and that Koehler did this on his own is not credited Vary' s vivid
recollection of the event was most persuasive
HOWARD JOHNSON COMPANY 1221
Lilley, branch manager of St Regis Paper Company
which supplied the compressor parts, corroborated
Burnham's testimony that Koehler had personally ordered
such parts in November 1965 - March 1966 Lilley
testified that he dealt "basically" with Koehler and that
the orders were not accompanied by purchase orders In
support of Lilley's testimony, Respondent introduced 10
invoices showing orders placed by Koehler for compressor
parts (by telephone or person) on 10 occasions between
November 1965 and March 1966, ranging from $22 73 to
$585.10 and aggregating $2,106 Lilley testified that when
he took an order in person, Koehler would sometimes
have a prepared list showing the parts "he wanted" and at
other times would "ask" Lilley to help "pick out" the
required parts." He further testified that, particularly
since he resided close to the plant, he would often visit on
request of Burnham , Faust, and Koehler; that he would
advise Koehler on equipment problems; that he would
check the work of Koehler and Vary for accuracy while
the overhauling was in progress, and that Koehler had
"relied on [his] judgment." Finally, Lilley testified that in
addition to Koehler and Burnham, two (production)
supervisors placed orders for maintenance materials
during 1966, and that his company would receive roughly
100 orders annually from Respondent, of which 40 were
for refrigeration parts
On the basis of all of the foregoing, particularly the
testimony of Lilley (corroborated by Respondent' s regular
business records), I find that, contrary to his assertion,
Koehler prior to the July 1966 election possessed and
exercised authority to purchase some maintenance items
(including compressor parts) without necessity for express
prior clearance from Burnham and without purchase
orders signed by Burnham for each item;" that in making
certain purchases, however, Koehler frequently obtained
assistance and relied on the advice and judgment of an
experienced refrigeration engineer (Lilley); and that,
contrary to Burnham 's claim, only a portion of the
purchases of compressor parts used for the 1966
overhauling ($2,100 out of a $4,000 total expended) was
attributable to Koehler, the rest having been made by
other Company officials, including Burnham
B Conclusions
1
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 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
Respondent does not claim that Koehler possessed or
exercised authority to hire, transfer, suspend, lay off,
recall, promote, discharge, reward, discipline, adjust
grievances, or effectively to recommend actions with
respect thereto. Its contention that Koehler was a
supervisor is grounded basically on the claims that, in his
capacity of "chief engineer," Koehler had authority to
assign, responsibly direct, and evaluate the work of Vary,
to assign him overtime work and regulate his hours, and
to effectively recommend him for a pay increase As
found, however, it was Plant Manager Burnham, not
Koehler, who assigned and directed Vary's (as well as
Koehler's) work, established and regulated their hours and
overtime, and granted them wage increases "
To be sure, the record demonstrates that Koehler was
and Respondent regarded him as a skilled and valuable
employee. He was the senior and more experienced of the
Company's two licensed engineers; as such, he advised and
directed Vary, an engineer for only 1 year with the lowest
(third class ) license But these factors did not constitute
Koehler a supervisor vested with genuine management
prerogatives Koehler was no more than "a supperior
workman or lead man who exercises the control of a
skilled worker over less capable employees " N L R B v
Southern Bleachery & Print Works, Inc, 257 F.2d 235,
239 (C A 4) See also N.L R.B v Quincy Steel Casting
Co., Inc , 200 F 2d 293, 296 (C.A 1), N L R B v. Beaver
Meadow Creamery, Inc, 215 F.2d 247, 251 (C.A 3),
Northern Virginia Steel Corp v. N.L.R.B., 300 F 2d 168,
171-172 (C A 4); Dubin-Haskell Lining Corp v
N L R B, 375 F 2d 568, 570 (C A 4), N.L R B v.
Security Guard Service, Inc , 384 F.2d 143, 144 (C A. 5)
"Every order-giver is not a supervisor " Security Guard
Service, 384 F.2d at 151 Mere lead or "direction" of the
work of others is not equivalent to true power over
subordinates nor need it require use of independent
judgment ; it may be no more than routine and cooperative
in nature, reflecting the relationship of the older, more
Section 2(11) of the Act defines a "supervisor" as
follows
"In its brief , Respondent moved to correct p 308 of the transcript to the
extent it shows Lilley answering "yes" to counsel ' s question of whether he
took any orders from Burnham for the compressor parts, contending that
this answer " is inconsistent with all other testimony on this point and is an
error in reporting " General Counsel filed a memorandum in opposition to
the motion
The motion is hereby denied It is to be noted that two-three pages
subsequent to the testimony in, question (pp 310-311 ), Lilley indicated that
Burnham did place orders for compressor parts, the number of such orders
being "rather difficult for me to answer ," although he "would say not
quite as often " as Koehler In any event , the matter raised by Respondent
is neither "critical" nor essential in reaching the conclusions herein, which
would be the same even were the motion granted
"As previously indicated, Burnham later ( October 1966 ) did institute a
clearance and purchase order procedure , but this was subsequent to the
decisive time here in issue Vary, whom I regard as an essentially truthful
witness, but who supported Koehler's testimony that this procedure was in
effect prior to July 1966, seemed confused on the timing of the effectuation
of the change
"Respondent also introduced evidence purporting to show that
approximately a year after the period here in issue (April - June 1967),
Burnham and Koehler jointly interviewed nine applicants for engineer jobs,
of whom two were hired on Koehler ' s recommendation Actually, only one
(Christensen ) of the two reported to work and was made "chief engineer"
and Koehler ' s superior I cannot believe that it was Koehler's "effective
recommendation" that prompted Burnham to engage Koehler ' s superior I
credit Koehler's testimony that since he knew more about the refrigeration
and boilers than Burnham, he was asked "to sit in with him, when he
interviewed a man , to see what his qualifications were," but that he had no
real voice in selecting any applicant In any event , this single instance of
alleged participation in hiring - long after the crucial period here involved
(April - July 1966 ) - is hardly sufficient to overcome the overwhelming
weight of credited evidence demonstrating that Koehler did not occupy a
supervisory position Isolated or "sporadic" exercise of some supervisory
tasks does not make a supervisor out of a rank - and-file employee See
NLRB v Lindsay Newspapers , Inc, 315 F 2d 709, 712 (C A 5),
N L R B v Quincy Steel Casting Co. Inc , 200 F 2d 293, 296 (C A 1)
"Moreover , the Board has long frowned on the view that a craftsman with
one or two helpers who makes the customary recommendations with
respect to them is a supervisor , stating that 'to do otherwise would be to
attribute to Congress a result never intended ' " Advance Envelope
Manufacturing Company , Inc, 170 NLRB No 166
1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
experienced, or more skillful to the younger, more junior,
less experienced, or less skillful employee Schott Metal
Products Company, 129 NLRB 1233, Willis Shaw Frozen
Food Express, Inc , 173 NLRB No 77 Contrary to
Respondent's contention, Koehler did not regard himself
as Vary's supervisor merely because he considered Vary
his "assistant" or helper, and Vary surely did not view
Koehler as his superior. Like Vary, and unlike
Respondent's supervisors, Koehler worked fixed hours,
was paid on an hourly basis, punched a timeclock, and
was compensated for overtime Finally, apparently
without challenge from Respondent, Koehler identified
himself with the Union, having served as its observer in a
recent (1965) electron.
Nor, in the circumstances of this case, does the
requirement of the New Jersey licensing statute that Vary
be supervised by a higher grade license holder in operating
compressors of certain tonnage (supra, fn 4) require the
conclusion that Koehler (a second class licensee)
"supervised" Vary within the meaning of the National
Labor Relations Act To begin with, as Burnham testified,
much of the engineer's work is routine since "you have an
engine room that literally is automatic" and is controlled
by switches The record shows that Respondent has
permitted Vary to attend to its boilers and compressors
during regular hours and on alternate weekends when
Koehler was off duty. Even unlicensed and unsupervised
employees (the pasteurizer and porter) were allowed to
turn on the compressors every morning before Koehler
and Vary reported to work. In any event, the Board's
decisions under the Act are not mechanically controlled by
the wording of a local licensing requirement. See
N L R B v Randolph Electric Membership Corp, 343
F 2d 60, 64-65 (C A. 4), Independent Stave Company,
inc v N L R B, 352 F 2d 553, 561-562 (C.A 8), and
cases therein cited. The criteria for "supervisor"
established by a State do not necessarily satisfy the
criteria of Section 2(11) of the National Labor Relations
Act Congress has entrusted to the Board the power and
duty to determine "who is an employee for the purposes
of the National Labor Relations Act." N.L R B v E C
Atkins & Company, 331 U S. 398, 403; NLRB v
Hearst Publications, Inc , 322 U S. 111, 130-134.
I conclude that Koehler was not a supervisor within the
meaning of Section 2(11) of the National Labor Relations
Act, since he did not possess the indicia of supervisory
status ennumerated in that section I find that at most he
was a "leadman" of a two-man maintenance engineer
team in the plant This does not "require that [he] be put
in the supervisor class, and so deprived automatically of
the organizational privileges of the Act " N L R B v.
Browne & Sharpe Mfg Co, 169 F 2d 331, 335 (C A 1)
from the protection of the Act . . The Board has defined
`managerial employees' as `those who formulate,
determine and effectuate an employers' policies
American Federation of Labor, 120 NLRB 969, 973 "
This exclusionary practice rests on the premise that the
functions and interests of such individuals are more
closely allied with those of management than with
production workers and, therefore, that they are not truly
"employees" within the meaning of the statute However,
as the Board has stated, "determination of an employee's
managerial status depends upon the extent of his
discretion, and the absence of established policy and
regulations to aid in the exercise of such discretion is a
factor entitled to considerable weight." Central Maine
Power Company, 151 NLRB 42, 45 "The exercise of
judgment within the limits of established policy does not
confer managerial status absent authority to influence the
establishment of such policies." American Radiator &
Standard Sanitary Corp, 119 NLRB 1715, 1717
While the Board has held that individuals with "broad
authority to pledge their employer's credit" qualify as
"managerial employees,"" those whose authority "is
strictly limited" or who exercise it only routinely or within
clearly previously defined employer policy, do not.
American Federation of Labor and Congress of Industrial
Organizations , 120 NLRB 969, 974. See also
International Ladies' Garment Workers' v N L R B,
supra, 339 F.2d at 123.18 It appears that here Koehler's
orders and purchases entailed little if any independent
judgment. Thus, he neither selected the vendor nor
negotiated for or determined the price or quality of the
materials which he "ordered." Cf Copeland Refrigeration
Corp , 118 NLRB 1364, 1365 Other employees (including
Vary) also ordered and purchased ordinary maintenance
items in connection with their regular routine work
Koehler often required technical assistance in procuring
materials and Plant Manager Burnham kept a close watch
on his orders Finally, capital purchases were admittedly
outside the scope of Koehler's authority Since Koehler
was the senior of the two maintenance men on the spot, it
fell to him as the logical person to obtain the maintenance
materials routinely needed in his work " It is clear that
Koehler's authority in this area was not only strictly
within limits of Company policy and instructions but did
not require truly independent, important, or managerial
judgment See Central Maine Power and American
Radiator cases, supra, and footnote 18, supra
I conclude that the record fails to establish that
Koehler's day-to-day activities in "ordering" supplies
involved the exercise of such a degree of responsibility and
discretion as to invest him with managerial status. I find
that as to these functions, as well as to others he exercised
2.
There remains the question whether even though not a
supervisor, Koehler was a managerial employee since
during the decisive period here involved he ordered and
purchased maintenance materials and parts.16
As stated in International Ladies' Garment Workers'
Union, AFL-CIO v N L R B, 339 F.2d 116, 123 (C A
2), "Although the Act makes no special provision for
`managerial employees,' under a Board policy of long
duration, this category of personnel has been excluded
"As noted, this authority was admittedly terminated in October 1966,
when Plant Manager Burnham set up new clearance and purchase order
procedures
"Eastern Camera and Photo Corp, 140 NLRB 569, 572 See also
Central Maine Power Company, supra Brotherhood of Locomotive
Firemen and Enginemen , 145 NLRB 1521, 1527-28, 1535-36
"Accord St Cloud Rendering Co, 116 NLRB 1069, J Segari & Co,
114 NLRB 1159, 1161, Vulcanized Rubber and Plastics Company. Inc,
129 NLRB 1256, 1260 Cf, Lumbermen's Mutual Casualty Co, 75 NLRB
1132, 1139
"Burnham admitted that Koehler could not handle major engineering
"problems" and, accordingly, that both Koehler and Burnham had
"informally" taken up such problems with Vice President Faust, project
engineer for refrigeration operations for all Howard Johnson facilities and
a gold seal license holder whose office was in Englewood Burnham
testified that as plant manager he had sole responsibility for routine
maintenance He also admitted that when Englewood ' s refrigerator
facilities were expanded in April 1967, it was Faust ' s gold seal which
covered the plant until Christensen (another gold seal licensee and
Koehler's new superior ) was hired
HOWARD JOHNSON COMPANY
(supra , section B, I), he was more closely allied to his
fellow rank -and-file worker (Vary) than to management;
and that he properly belonged in the appropriate
(maintenance ) bargaining unit
1223
Respondent within the meaning of that term under the
Board's established policy
3. Henry Koehler was eligible to vote in the July 6,
1966, Board election in the appropriate licensed operating
engineers bargaining unit established in Case 22-RC-3232
CONCLUSIONS OF LAW
1 At all times material herein Henry Koehler was an
employee of Respondent within the meaning of Section
2(3) of the Act
2. At no time material herein was Henry Koehler a
supervisor of Respondent within the meaning of Section
2(11) of the Act, nor a managerial employee of
RECOMMENDATION
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this case,
I recommend that the Board reaffirm its Order of May
22, 1967, in this proceeding.