Hoyt, Brumm & Link, Inc

National Labor Relations Board - Board Decisions

Feb 14, 1989

292 N.L.R.B. 1060 (N.L.R.B. 1989)

1060 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Hoyt, Brumm & Link , Inc and James A Fowler
and Local Union No 72 , United Association of
Journeymen and Apprentices of the Plumbing
and Pipefitting Industry of the United States of
America, Intervenor Case 10-CA-21823
February 14, 1989
DECISION AND ORDER
BY CHAIRAN STEPHENS AND MEMBERS
CRACRAFT AND HIGGINS
On March 3, 1987, Administrative Law Judge
Lawrence W Cullen issued the attached decision
The General Counsel filed exceptions and a sup
porting brief to which the Respondent and the In-
tervenor filed answering briefs
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions, as modified, and to adopt the recom-
mended Order
The amended complaint alleges that the Re
spondent violated Section 8(a)(2) and (1) of the Act
by interfering with the administration of the Union
through permitting its supervisor Fred Abbott to
serve as a delegate to the Union's national conven-
tion and as a member of the Union's finance com-
mittee Based on evidence showing that Abbott
possesses the authority effectively to recommend
the hiring of employees, to assign work, to disci-
pline employees, and responsibly to direct them,
the judge found that Abbott is a supervisor within
the meaning of Section 2(11) of the Act He further
found, however, that although Abbott has the title
of general foreman and, on the Respondent's job
site, is second in authority to the project superin-
tendent, Lapman, the Respondent has not accorded
Abbott the status of a high-level supervisor
Rather, the judge found that Abbott's performance
of his supervisory duties is within the parameters
set out and monitored by Lapman Moreover, the
judge noted that there was no evidence that
Abbott was involved in the Respondent's high-
level affairs or participated in collective-bargaining
negotiations on the Respondent's behalf Thus, the
judge found no evidence that Abbott was so close
ly aligned with management as to create a conflict
of interest proscribed by Section 8(a)(2) merely by
his limited participation, as a finance committee
member and convention delegate, in intraunion af-
fairs Accordingly, he recommended dismissal of
the complaint
We adopt the judge's recommended dismissal of
the complaint In doing so, however, we rely on
the rationale set forth in the Board's recent deci-
sion in Power Piping Co, 291 NLRB 494 (1988) In
Power Piping, the Board held that, in cases involv
ing alleged unlawful employer interference in
union affairs by virtue of a supervisor's participa
tion in strictly intraunion activities, it would no
longer ascribe controlling weight to a determina-
tion of whether the individual in question is a
"high-level" or "low-level" supervisor Rather, the
Board reaffirmed the analysis set forth in Nassau &
Suffolk Contractors Assn, 118 NLRB 174 (1957)
Under Nassau, a determination of whether an em-
ployer is liable for alleged unlawful interference in
cases of this type requires an examination of all the
circumstances in each case I See Power Piping,
above at 497, Nassau, above at 183 In reaffirming
Nassau, the Board in Power Piping also set forth
guidelines that are intended to aid in determining
whether the supervisor's participation in internal
union affairs (as distinct from union-employer deal-
ings) constitutes unlawful interference by the em-
ployer These guidelines include considering the
nature of the supervisory position, the permanence
of the position, and the extent to which the super-
visor's position is properly included in the unit
As found by the judge, Abbott is the Respond-
ent's onsite general foreman He is second in au-
thority to the Respondent's onsite job superintend-
ent, Thomas Lapman,2 and is responsible for carry
ing out Lapman's decisions In addition to possess-
ing the authority effectively to recommend hiring,
firing, and disciplinary actions and to adjust griev-
ances, Abbott directs the work of the other fore-
men,3 and has the authority to override a fore
man's disciplinary decision 4 Abbott is paid above
' In Nassau the Board found in the circumstances of that case that
the respondent was not responsible for the voting at union membership
meetings of certain supervisory master mechanics included in the unit
but was responsible for the voting of other supervisors not included in
the unit and of some executives The Board also found that the respond
ent was responsible for the participation of the master mechanics on the
union s negotiating team
2 Lapman is at the jobsite approximately 12 hours per day makes regu
lar daily rounds of the jobsite and is personally familiar with the work of
employees on the job He confers with the Respondents management of
ficials concerning the work to be done at the jobsite generally and deter
mines what work is to be done weekly Lapman sets the jobsite rules
e g disciplinary rules and makes the final decisions regarding hirings
firings and layoffs
3 There are three or four foremen depending on work demands each
of whom directs approximately 10 journeymen
* In addition to the judge s findings the record shows that Abbott has
attended meetings with Lapman at which the other foremen were not
present These meetings have included at least one meeting during which
Lapman and Abbott discussed layoffs and one meeting among Lapman
the project manager and the project engineer at which according to un
contradicted testimony Abbott was present as a spectator
292 NLRB No 111
HOYT BRUMM & LINK INC
the pay scale for general foremen set by the con-
tracts and receives holiday benefits pursuant to the
contract Although Abbott was hired as a general
foreman, he may be reclassified as a foreman or a
journeyman as the current project winds down
Further, once the project is completed, Abbott will
be terminated by the Respondent and will need to
return to the Union's hiring hall for future job re
ferrals 6
Abbott is a 40-year member of the Union and
has served on the finance committee since 1984
The finance committee, which has three members,
examines the Union's expenditures for accuracy
and reports these findings to the executive board or
business manager , but does not approve or disap-
prove any expenditure Abbott was 1 of 16 dele-
gates elected by the membership to the national
convention in 1986 7 There is no evidence that he
has ever served as a member of the Union's gov-
erning body or that he has served as a member of a
negotiating committee for either the Union or the
Respondent
Applying the analysis set forth in Power Piping to
the facts of this case, we find that the Respondent
did not violate Section 8(a)(2) and (1) by permit
ting Abbott to serve either as a member of the
Union's finance committee or as a convention dele-
gate First, we find that Abbott's activities in the
Union were purely internal affairs that did not in-
volve him in the Union's collective-bargaining rela-
tionship with the Respondent Therefore, the
threshold requirement for application of the Power
Piping test is met
Second, we find that the nature of his position
with the Respondent is such that he would reason-
ably be viewed as participating in those internal
union affairs as a member of the Union rather than
as an agent of his employer Although there is evi-
dence that Abbott exercises considerable superviso
ry authority in his capacity as general foreman on
the Respondent's jobsite, there is no evidence that
Abbott is an official or executive of the Respond-
ent, otherwise exercises managerial functions, or
has participated in collective bargaining on the Re-
spondent's behalf In this respect we also note that
Abbott's position as general foreman is transitory
6 At the hearing the parties stipulated that the contract sets forth mini
mum wage rates for general foremen There is no other evidence indicat
mg whether Abbott is in the unit
6 The record shows that during his career Abbott has held the various
positions of journeyman foreman and general foreman at different work
sites Abbott testified that in the past 5 years his jobs were basically
general foreman jobs The record also shows that within this same time
frame Abbott has worked for approximately five employers for periods
generally ranging from 3 to 9 months At the time of the hearing he had
worked for the Respondent for approximately 6 months
7 The record shows that the Union s national convention is held once
every 5 years and that in his 40 years as a union member Abbott has
served as a convention delegate twice
1061
He is subject to possible reclassification as a fore-
man or a journeyman, depending on the needs of
the Respondent at the jobsite and, further, will
return to journeyman status once the job is com-
pleted The evidence also shows that Abbott is a
longtime member of the Union and that, through
out his work history, has regularly obtained em-
ployment through the hiring hall We also note
that, although there is no specific evidence as to
whether Abbott is in the unit , the contract pro-
vides for the general foreman position, at least re-
garding mimmum pay scales and holiday benefits
Thus, we find no basis for concluding that the
Respondent "encouraged, authorized, or ratified"
the intraunion conduct of Abbott in performing the
duties of finance committee member or convention
delegate or "acted in such a manner as to lead em-
ployees reasonably to believe that [Abbott was]
acting for and on behalf of management " Nassau,
118 NLRB at 183 Instead, we infer that employees
would perceive Abbott's participation in intraunion
affairs as one of the incidents of his long-term
union membership Additionally, we do not view
Abbott as exercising sufficient managerial authority
to warrant a finding that the Respondent has inter-
fered with the Union's administration by virtue of
his performing duties as finance committeeman and
convention delegate See Power Piping Co, 291
NLRB 494, 497-498 Accordingly, under the totali-
ty of the circumstances, we do not find an 8(a)(2)
violation, and we shall dismiss the complaint
ORDER
The recommended order of the administrative
law judge is adopted and the complaint is dis
missed
Sharon E Howard Esq for the General Counsel
C Robert Wartell Esq (Madden Weiner Houser Wartell
& Roth) of Southfield, Michigan, for the Respondent
Harris Jacobs Esq (Jacobs & Langford), of Atlanta
Georgia for the Intervenor
DECISION
STATEMENT OF THE CASE
LAWRENCE W CULLEN, Administrative Law Judge
This case was heard by me at Atlanta, Georgia, on 10
October 1986 The charge was filed by James A Fowler
an individual on 9 June 1986, and amended on 29 July
1986 The complaint was issued on 31 July 1986 by the
Regional Director for Region 10 of the National Labor
Relations Board (the Board) The complaint, as amended
at the hearing alleges that Hoyt, Brumm & Link Inc
(the Respondent) violated Section 8(a)(2) and (1) of the
National Labor Relations Act (the Act), by since on or
about 8 April 1986, interfering with the administration of
the United Association of Journeymen and Apprentices
1062 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of the Plumbing and Pipe Fitting Industry of the United
States and Canada, Local 72 (the Union) by permitting
its supervisor, General Foreman Fred Abbott, to serve as
a delegate to the Union's national convention and to
serve as a member of the Unions finance committee
The Respondent has by its answer filed on 13 August
1986, as amended at the hearing, denied the commission
of any violation of the Act Respondent has also pleaded
affirmatively that Fred Abbott is not a supervisor within
the meaning of Section 2(11) of the Act On 23 Septem
ber 1986, the Union filed a motion to intervene in this
proceeding and a memorandum in support thereof By
his order of 3 October 1986 the Regional Director
granted the motion to intervene
On the entire record including my observation of the
demeanor of the witnesses, and after due consideration of
the closing statement made by the General Counsel and
the briefs filed by the Respondent and the Intervenor, I
make the following
FINDINGS OF FACT
I JURISDICTION
The complaint alleges, Respondent admits, and I find
that Respondent is, and has been at all times material, a
Michigan corporation with an office and place of busi
ness located at Doraville, Georgia, where it is engaged
in construction work, that during the calendar year prior
to the filing of the complaint, a representative period,
Respondent purchased and received at its Doraville
Georgia facility materials and supplies valued in excess
of $50,000 directly from suppliers located outside the
State of Georgia, or from suppliers located within the
State of Georgia, who in turn received such materials
and supplies directly from suppliers located outside the
State of Georgia and that Respondent is, and has been at
all times material an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
II THE LABOR ORGANIZATION
The complaint alleges, the answer admits , and I find
the Union is, and has been at all times material , a labor
organization within the meaning of Section 2(5) of the
Act
III THE ALLEGED UNFAIR LABOR PRACTICES
The issues in this case are whether the Respondent
violated Section 8(a)(2) of the Act by interfering with
the internal affairs of the Union by permitting its general
foreman, Fred Abbott, a member of the Union, to serve
as a member of the Union s three member finance com
mittee which reviews and reports on expenditures that
have been made to union officials and/or by permitting
Abbbott to serve as a delegate to the Union s national
convention in 1986 Central to the determination of these
issues are determinations regarding whether Abbott is a
supervisor and if so whether he is a high level or low
level supervisor and whether his service as a union dele
gate to the International convention and/or service as a
member of the Local Union s finance committee is attrib
utable to Respondent and thus unlawful interference in
violation of the Act
At the outset it should be noted that the General
Counsels case was premised on the testimony of two
witnesses Respondents job superintendent Thomas C
Lapman, and Respondents general foreman Fred W
Abbott, both of whom were examined by the General
Counsel pursuant to Rule 611(c) of the Federal Rules of
Evidence Charging Party James A Fowler, called by
the Intervenor, was unable to testify from personal
knowledge concerning the job duties of Abbott in his ca
pacity of general foreman for the Respondent Thomas
C Payne, the Union s business manager , also called by
the Intervenor, did not testify concerning the job duties
of Abbott in his capacity as general foreman for Re
spondent The evidence as developed through the unre
butted testimony of Job Superintendent Lapman and
General Forman Abbott showed that Lapman is an on
site management official who is on the site 12 hours per
day and actively engages in meetings with contractors
and owners to determine the job to be done Lapman
orders the materials and sets out the work to be per
formed on the job each week, directing Abbott to set it
out for the foreman who in turn direct the men who per
form the work Lapman also sets the project work rules
for the jobsite (such as a rule providing for the automatic
termination of employees who are absent two times in a
weekly period) Lapman also listens to the recommenda
tions of Abbott and the foremen and journeymen regard
ing the hire of employees, but makes the hiring determi
nations himself Lapman also makes the decision whether
or whom to layoff or discharge and is personally familiar
with the work of the employees on the job Although
Abbott routinely signs termination forms, he does so
only on the orders of Lapman who has made the deter
mination in every case Abbott does not make any job
rules, but follows the rules set out in the contract and
carries out the decisions made by Job Superintendent
Lapman Abbott attempts to resolve grievances that have
been brought to him by the foremen Abbott is paid
above the wage rate set forth in the labor agreement
with respect to general foremen and is paid for certain
holidays as are all general foremen under the terms of
the National Master Agreement As the job winds down,
Abbott faces the prospect of being set back to foreman
or journeyman and of being terminated which will re
quire him to return to the Union s hiring hall for referral
to another job as has occurred in the past during his
career and as is the custom in the construction industry
that involves an up and down fluctuation in job opportu
nities as new projects are started and existing projects
wind down
Abbott has never served as a member of the Union s
governing body, nor has he ever served in any union ca
pacity other than as a convention delegate for two
annual conventions including the 1986 national conven
tion and as a member of the finance committee since
1984 during his 40 years as a member of the Union
There was no evidence that the Respondent initiated en
couraged, ratified, or utilized Abbott s internal union po
sitions for any purpose or in any manner otherwise com
HOYT BRUMM & LINK INC 1063
matted any specific interference in the Union s internal
affairs
The record is devoid of any evidence that Abbott ever
sat on either side of the bargaining table on behalf of the
Employer or the Union in this case or of any specific in
stance of interference or domination resulting from his
service as 1 of 16 delegates selected to attend the 1986
International convention or as 1 of 3 members of the
Union s finance committee, which is a listed position in
the Union 's bylaws and which examines expenditures
that have been made for accuracy and reports its find
ings to the executive board or to the business manager of
the Union, but has no authority to approve or disap
prove expenditures of union funds nor to take any other
action concerning these expenditures
Analysis
The Board and courts have considered cases involving
issues of employer interference in the internal affairs of
unions on a number of occasions in the past A substan
tial number of these cases have been cited by the Gener
al Counsel , Intervenor , and Respondent , in this case As
a basic premise the Board has held that each case must
be decided on its own merits The Board has recognized
the special circumstances that exist in the construction
industry in which projects come and go and employment
of the members of the construction craft unions rise and
fall accordingly The nature of employment of the indi
viduals employed by the crafts who traditionally are re
ferred for employment by the union referral system is
transitory as is the level of their job status Todays gen
eral foreman may be set back to foremen next week and
journeyman a month later and terminated shortly there
after, whereupon he registers as an out of work journey
man with the hiring hall and may be referred out as a
journeyman to another job In this type of situation the
union is generally not threatened by divided loyalties nor
its affairs interfered with by the employment of its mem
bers as supervisory employees in the normal course of
events It is in situations where other circumstances exist
that give rise to a potential for interference by the em
ployer with the union s internal affairs such as the mem
bers holding which union office and high level supervi
sory poistions with the employer or negotiating on
behalf of the Union with the employer or where the
tenure of the member as a long term supervisor of the
Employer gives rise to circumstances that have the po
tential for divided loyalties if he engages in intraunion of
fairs that violations of Section 8(a)(2) by the employer
are found to have occurred Also, in situations where
there is evidence of active interference, a finding of a
violation of Section 8(a)(2) of the Act may be found
Welsbach Electric Corp, 236 NLRB 503 510 (1978),
Nassau & Suffolk Contractors' Assn, 118 NLRB 174
(1957)
The evdidence relied on by the General Counsel to es
tablish the alleged high level supervisory status of
Abbott is as follows He is employed as a general fore
man and directs the work of other foremen He has
signed the termination slips of employees who have been
terminated He receives a wage rate in excess of the
wage rate accorded a general foreman under the terms
of the labor agreement He has recommended employees
for hire to the project superintendent and his recommen
dations have been followed approximately 50 percent of
the time He has served as a foreman and general fore
man on several occasions in the past and has been called
for by name by several employers including the Re
spondent in this case He also brought two employees
along with him when he was hired for his current job
through the use of the Union 's referral system in which
employers may request employees by name from the
Union
Evidence relied on by the Respondent and the Interve
nor in this case to establish lack of any supervisory
status, including high level supervisory status, is as fol
lows Abbott has worked a succession of jobs over the
years, including journeymen and foremen classifications
as well as that of general foreman Most of these jobs
have been of relatively short duration (less than a year)
All jobsite rules are governed by contract except one
rule that was implemented by Project Superintendent
Lapman making two absences in a week 's period auto
matic grounds for termination of an employee All deci
sions to hire and terminate employees are made by
Project Superintendent Lapman who relies on the rec
ommendations of Abbott and other foremen and employ
ees, as well as on his own observations in that Lapman is
on the jobsite 12 hours a day and makes the rounds of
the jobsite at least twice a day and is familiar with who
is or is not working Abbott has no authority to dis
charge an employee and has never done so Abbott is
paid no benefits and will be reduced in classification to
foreman and journeyman and terminated as the job
winds down in the very near future as of the date of the
hearing whereupon he will return to the union hall for
referral as he has in the past
I find that Abbott is a supervisor within the ambit of
Section 2(11) of the Act I note that employees griev
ances are taken up with him after the foremen have been
unable to resolve them He has the authority to and does
effectively recommend the hire of employees and his rec
ommendations have been followed 50 percent of the
time He makes assignments to the foremen after receiv
ing orders from the superintendent He also receives in
centive pay in excess of the rate accorded general fore
men under the terms of the contract He is second in
command to the project superintendent who although
he makes the rounds of the jobsite approximately twice
daily , is not consistently in the field and has other re
sponsibilities He is accorded his own office or area in a
trailer although it is also used by the foremen He also
has the authority to recommend the termination of em
ployees although he has never discharged an employee
NLRB v Fullerton Publishing Co, 283 F 2d 545, 550 (9th
Cir 1960) Thus, he has the authority to effectively rec
ommend the hire of employess to assign them work to
discipline employees and to responsibly direct them I
find that the exercise of this authority requires the use of
independent judgment as encompassed in Section 2(11)
of the Act NLRB v Security Guard Service , 384 F 2d
143 147- 148 (5th Cir 1967), NLRB v Edward G Budd
Mfg Co, 169 F 2d 571 576 (6th Cir 1948)
1064 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
I have examined the cases cited by the General Coun-
sel and find that they do not support the General Coun-
sel's position in this case. In each instance cited in those
cases in which violations were found, there existed either
a situation in which the alleged high-level supervisors
were clearly accorded such authority as a high-level
management official or were high-level ranking union of-
ficials who engaged in direct collective bargaining with
the Employer on behalf of the Union. See Three Hun-
dred South Grand Co., 257 NLRB 1397 (1981); Welsbach
Electric Corp., supra; Schwenk Inc., 229 NLRB 640
(1977); and Beach Electric Co., 174 NLRB 210 (1969),
cited by the General Counsel. Rather, I find that the Re-
spondent's and Intervenor's positions find support in
Nassau & Suffolk Contrators Assn., supra, wherein the
Board found no violation as the "master mechanics" in
question were low-level supervisors and in Beach Electric
Co., supra, involving the construction industry in which
the general foreman and foremen's engagement in in-
traunion activities were held not to violate the Act. See
also National Gypsum Co., 139 NLRB 9196 (1962),
wherein a supervisor served as an auditor for the union
and no violation was found.
I find that, although Abbott carries the title of general
foreman he is actually not accorded the status of a high-
level supervisor as a result of the manner of control and
responsibility for supervision exercised by Project Super-
intendent Lapman. The reality of the referral system in
the construction industry, as has occurred in the instant
case, shows a general continuing transitory type of job
assignments to relatively short work projects, often less
than a year in duration at varying levels of employment.
Each of these cases must be judged on individual facts.
Abbott has been restricted to performing his duties
within relatively narrow confines and parameters set out
and closely monitered by Project Superintendent
Lapman, and in the absence of Abbott's involvement in
high-level affairs of Respondent or in negotiations or
bargaining on behalf of Respondent, there appears to be
little, if any, evidence that he is so closely aligned with
Respondent as to create a conflict proscribed by Section
8(a)(2) of the the Act, by his engagement in limited in-
traunion activities. I find that the likelihood for a dis-
abling loyalty by Abbott such as to prevent him from
representing the Intervenor's interest in the engagement
of intraunion activities as a delegate to the national con-
vention and as a member of the finance committee is so
remote as to preclude a finding of a violation of the Act.
In making this decision I recognize that Abbott's position
as the second in command on the jobsite may rise to a
suspicion that he is a high-level supervisor. However, the
evidence in this case fails to establish that he has been
accorded this status by Respondent's management. I, ac-
cordingly, recommend that the complaint be dismissed in
its entirety.
CONCLUSIONS OF LAW
1. Hoyt, Brumm & Link, Inc. is an employer within
the meaning of Section 2(6) and (7) of the Act.
2. Local Union No. 72, United Association of Journey-
men and Apprentices of the Plumbing and Pipe Fitting
Industry of the United States and Canada, AFL-CIO is a
labor organization within the meaning of Section 2(5) of
the Act.
3. Hoyt, Brumm & Link, Inc. did not violate Section
8(a)(2) of the Act by its employment of union member
Fred Abbott at a time or during a period when he was
serving as a member of the Union's finance committee or
as a delegate to the Union's national convention.
On these findings of fact and conclusions of law, I
issue the following recommended'
ORDER
The complaint is dismissed in its entirety.
' If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall. as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.