Latas De Aluminio Reynolds, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1985

276 N.L.R.B. 1313 (N.L.R.B. 1985)

LATAS DE ALUMINIO REYNOLDS
Latas De Aluminio Reynolds, Inc. and United Steel-
workers of America, AFL-CIO, Petitioner.
Case 24-RC-6928
30 September 1985
DECISION AND DIRECTION,
BY MEMBERS DENNIS, JOHANSEN, AND
BABSON
The National Labor Relations Board, by a three-
member panel, has considered determinative chal-
lenges in an election held 29 November 1984, and
the hearing officer's report recommending disposi-
tion of them. The election was conducted pursuant
to a Stipulated Election Agreement. The tally of
ballots shows 56 for and 53 against the Petitioner,
with 4 challenged ballots.
The Board has reviewed the record in light of
the exceptions and briefs and adopts the hearing of-
ficer's findings' and recommendations to overrule
the challenges to the ballots of Roberto Fiqueroa
Montes, Nelson Santiago, and Jose M. Gonzalez.
We do not adopt the recommendation to sustain
the challenge to Tomas Rosa Santos' ballot.
The Respondent hired Rosa Santos in March
1982 as a machine operator. He subsequently
became a general mechanic, his position at the time
of the election. In 1983 Rosa Santos substituted
twice, each time for 2- to 3-week periods, for vaca-
tioning supervisors. In 1984 he substituted again for
a vacationing supervisor, and remained in this role
for 4 to 5 months while the supervisor received
training after he had returned from vacation. On 26
November 1984, 3 days before the election, the su-
pervisor resumed his supervisory responsibilities.
Rosa Santos took a 2-week vacation and then re-
turned to his normal shift as a general mechanic.
On these facts the hearing officer reasoned that
Rosa Santos' periods of supervisory authority were
frequent and substantial, and concluded that he was
F The Employer and Petitioner have excepted to some of the hearing
officer's credibility fmdmgs The Board's established policy is not to
overrule a hearing officer's credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incorrect.
Stretch-Tex Co., 118 NLRB 1359, 1361 (1957). We fmd no basis for re-
versing the findings
1313
a supervisor within the meaning of the Act. We do
not agree.
We agree that the appropriate test for determin-
ing the status of employees who substitute for su-
pervisors is whether they spend a regular and sub-
stantial portion of their working time performing
supervisory tasks.2 Here, no such regularity exist-
ed. In 1983 Rosa Santos substituted for vacationing
supervisors twice, and in 1984 only once. Although
the 1984 substitution was extended, Rosa Santos
was specifically told that he would remain a super-
visor only until the regular supervisor finished his
training. "It has long been held that sporadic as-
sumption of supervisory duties, e.g., during annual
vacation periods of a regular supervisor, is not suf-
ficient to establish supervisory status at other
times."3
Buttressing our finding that Rosa Santos' substi-
tutions, including training period, were temporary
and sporadic is the fact that Rosa Santos retained
benefits afforded the rest of the unit employees. As
a unit employee, and unlike full-time supervisors,
he was paid on a weekly basis, he was eligible for
overtime, he received shift differentials, he
punched a timecard, and he was assigned a tool-
box. We find that Rosa Santos shared a community
of interest with his fellow employees.
For the reasons detailed above, we conclude that
Tomas Rosa Santos is eligible to vote, and the
challenge to his ballot should be overruled.
DIRECTION
IT IS DIRECTED that the Regional Director open
and count the ballots of Tomas Rosa Santos, Ro-
berto Fiqueroa Montes, Nelson Santiago, and Jose
M. Gonzalez, and thereafter prepare and serve on
the parties a revised tally of ballots on the basis of
which he shall issue the appropriate certification.
2 See Aladdin Hotel, 270 NLRB 838 (1984) (individuals were statutory
supervisors when they substituted for supervisors on the average of at
least twice per month); Honda of San Diego, 254 NLRB 1248 ( 1981) (indi-
vidual who substituted regularly for a supervisor 10 of his 40 working
hours each week was statutory supervisor)
3 Stewart & Stevenson Services, 164 NLRB 741, 742 (1967).
The only time other than vacation periods that Rosa Santos filled in as
a supervisor was when the regular supervisor was in training . Because we
find no evidence that Rosa Santos regularly replaced in-training supervi-
sors, we fmd that it was an isolated instance
276 NLRB No. 147