Local Union No. 915

National Labor Relations Board - Board Decisions

Jun 29, 1976

225 N.L.R.B. 317 (N.L.R.B. 1976)

LOCAL UNION NO. 915 317
Local Union No . 915, International Brotherhood of
Electrical Workers, AFL-CIO (Borrell-Bigby Elec-
trical Company, Inc.) and George R. Adams. Case
12-CB-1548
June 29, 1976
DECISION AND ORDER
BY MEMBERS FANNING, PENELLO, AND WALTHER
ployer, herein called Borrell-Bigby, in the selection of its
representatives for the purpose of collective bargaining or
the adjustment of grievances by causing Borrell-Bigby to
terminate the employment of George R. Adams, a supervi-
sory employee; and on March 13 and 14 by authorizing,
condoning, and/or ratifying a strike and picketing at Bor-
rell-Bigby's place of business in Tampa, Florida, in order
to compel Borrell-Bigby to discharge Adams. Respondent
in its answer admitted certain allegations of the complaint,
but denied it had engaged in any unfair labor practices.
The Issues
On January 28, 1976, Administrative Law Judge
David E. Davis issued the attached Decision in this
proceeding. Thereafter, General Counsel filed excep-
tions and a supporting brief, the Charging Party filed
cross-exceptions and a supporting brief, and Respon-
dent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is, dis-
missed in its entirety.
DECISION
STATEMENT OF THE CASE
DAVID E. DAVIS, Administrative Law Judge: This case
was heard before me on October 21, at Tampa, Florida,
pursuant to a charge filed on March 20, 1975,' by George
R. Adams, an individual, against Local Union No. 915,
International Brotherhood of Electrical Workers, AFL-
CIO, herein sometimes called the Union, Respondent, or
Respondent Union, and a complaint issued on June 18,
1975,2 by the Regional Director for Region 12 of the Na-
tional Labor Relations Board, herein called the Board, in
behalf of the General Counsel, alleging that on or about
March 13 and continuing to date, Respondent restrained
or coerced Borrell-Bigby Electrical Company, Inc., an em-
1 Served on Respondent on or about March 20, 1975 Service admitted in
answer
2 Hereafter all dates will refer to the calendar year 1975, unless otherwise
specified
The issues in this case are as follows:
1. Was Adams a supervisor within the meaning of the
Act?
2. If Adams was a supervisor , did Respondent by its
conduct coerce the employer to discharge him?
FINDINGS AND CONCLUSIONS
1. THE BUSINESS INVOLVED
Borrell-Bigby Electrical Company, a Florida corpora-
tion with its principal place of business in Tampa, Florida,
is engaged in the construction industry as an electrical con-
tractor. During the past 12 months, it received at its Tam-
pa, Florida, place of business goods and materials valued
in excess of $50,000 directly from points outside the State
of Florida. Accordingly, it is found that Borrell-Bigby is
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent Union is now and has been at all times ma-
terial herein , a labor organization within the meaning of
Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Borrell-Bigby and Respondent Union, at all times mate-
nal to this proceeding having been and are parties to a
collective-bargaining agreement.3
Adams was hired by Borrell-Bigby at a time when regis-
tered applicants were not available. The Company notified
the Union when he was hired. In January 1975, when regis-
tered applicants were available, the Union requested that
Borrell-Bigby replace "temporary employees" 4 Borrell-
Bigby refused saying it had no temporary employees.5 The
Union thereupon called a strike which lasted 2 days,
March 13 and 14. A State Court enjoined the strike and
ordered the dispute to be referred to the arbitral process of
the labor agreement .6 On March 17 the Labor-Manage-
3 G C Exh 2(a)
The contract defines temporary employees as those hired without a re-
ferral from the Union Article IV p 12, G C Exh 2(a)
'G C Exh 2(f).
6 See G C exhibit file, Administrative Law Judge Dorrance's Decision
225 NLRB No. 57
318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment Committee, established under the contract, consid-
ered the matter and rendered a unanimous decision that
Borrell-Bigby was in violation of the contract by refusing
to replace Adams as requested by the Union. Borrell-Bigby
thereupon discharged Adams and Adams filed the instant
charge. Perhaps this case could have been disposed of un-
der the principles governing the Collyer 7 doctrine. Howev-
er, none of the parties raised this as an issue and I will not
discuss this question any further.
B. Contentions of the Parties
The General Counsel contends that Adams is a supervi-
sor under the Act. He argues that the language of Section
2(11) 8 should be measured against the facts in this case.
The General Counsel correctly argues that Section 2(11) of
the Act speaks in the disjunctive and that it has been so
applied by the Board and the courts. The contention is
advanced that Adams being `in charge" of the Schlitz job
over a period of 4 months and involving $20,000 as well as
six to seven 9 men, eminently qualified Adams as a supervi-
sor during this period.
On the other hand counsel for Respondent argues that
Adams at best was a "leadman" characterized by the ap-
pellation "man in charge, of the job." It is further argued
that Adams did not exercise independent judgment and the
other criteria defining statutory supervisory authority.
C. Analysis and Conclusion
My study of the record has led me to conclude that Ad-
ams was not a supervisor within the meaning of the Act,
and did not exercise any of the statutory criteria warrant-
ing classification as a supervisor. Rather, I find, the exer-
cise of such authority was sporadic, used only in routine
fashion and did not require the use of independent judg-
ment.
The General Counsel's argument that supervisory status
should not be determined by reference to industry stan-
dards or to other jobs performed by Borrell-Bigby is cor-
rect to a limited degree. Industry standards cannot by
themselves be controlling in such a determination; but in
assessing the overall circumstances industry standards
must be given some weight. The comparison and relation-
ship with identical or similar jobs in the Borrell-Bigby
Company is likewise highly relevant and must be accorded
weight.
Anthony J. Borrell, Jr., called as a witness by the Gener-
al Counsel, testified that he was the vice president in
charge of various aspects of the business including supervi-
sion and layout; that Adams was employed and classified
7 Collyer Insulated Wire, 192 NLRB 837 (1971)
Reads as follows
The term "supervisor" means any individual having authority, in the
interest of the employer, to hire, transfer, suspend, lay off, recall, pro-
mote, discharge, assign, reward, or discipline other employees, or res-
ponsibly to direct them, or to adjust their grievances, or effectively to
recommend such action, if in connection with the foregoing the exer-
cise of such authority is not of a merely routine or clerical nature, but
requires the use of independent judgment
9 Actually it was three men, on only I-day four journeymen
as a journeyman electrician. 10 With reference to the Schlitz
job Borrell testified that he had first discussed the job with
an electrician employed by Borrell-Bigby by the name of
Zistler in contemplation of sending Zistler "to do this job."
Borrell, continuing to explain, then said that as another job
came up at the same time which was of a "large magni-
tude" Zistler was sent to that project. The Schlitz job was
then discussed with Frank Ingraham, who was running a
job at another plant for the purpose of "sending another
journeyman to the job." 11 Ingraham had another journey-
man working for him and they "asked him about the situa-
tion of going over and running the job." As the particular
journeyman was planning to quit, he could not undertake
the job. As a result, Adams was selected.12 Borrell contin-
ued his testimony by saying that when Adams was con-
fronted with problems of a technical nature or a manage-
ment 11 problem he would call Borrell and discuss them;
that Adams had no authority to hire and fire. Asked if
Adams had authority to discipline, Borrell said, "I would
say yes," he then explained that he meant that Adams was
authorized to grant time off for medical reasons; also that,
"if there were minor problems Adams could take care of
them whether it was coffeebreaks . . . on projects like this
they have certain rules where you can take your breaks
... and he was to tell them where they were"; that Adams
also had the duty to inform the men on the job the safety
requirements which were quite stringent on the Schlitz
job.14 Asked who was responsible for seeing that the safety
regulations were followed, Borrell replied "Well, Mr. Ad-
ams, because I gave him a copy of them." Borrell recalled
that on one occasion an apprentice needed to be off for
medical reasons and Adams excused him. Timecards were
kept by the men who turned them in to Adams. Adams,
according to Borrell, made recommendations to Borrell as
to the number of men to be employed from time to time on
the Schlitz job and Borrell made the final decision. Adams
also ordered supplies for the job and was responsible for
the accuracy of the shipment. On cross-examination Bor-
rell was asked what type of grievance Adams could settle,
Borrell could only say, "Perhaps the time that somebody
wanted to take a coffebreak." Borrell conceded that during
the year the Company had 200 to 300 jobs and one man
was always "in charge" of a job, that under the terms of
the collective-bargaining agreement where there are four or
more persons 15 in the crew, one must be a foreman who is
paid $1 per hour more than the journeyman's rate; that it
was common practice in the industry to designate the man
in "charge" of the job as the man who "runs" the job; that
if there were three journeymen and one apprentice there
was no foreman, that one of the journeymen would be des-
10 Adams , at all times when employed by Borrell-Bigby, received the
journeyman 's rate of pay except for I day
Emphasis supplied
12 The foregoing testimonial recitation of Borrell is quite convincing that
the selection of a journeyman available to "run the job " was a routine affair
and did not concern the selection of a person for supervisorial responsibil-
ity
iJ Emphasis supplied
is 1 consider such authority as falling far short of any indicia of superviso-
ry authority
15 The contract specifies on jobs requiring four or more journeymen, one
shall be foreman The parties agreed to this correction
LOCAL UNION NO 915 319
ignated as being in charge of the job and would receive no
more money than the other journeymen on the job; that
Adams worked along with the other men on the Schlitz
jobs using the tools of his trade and that Adams was sent to
the Schlitz job with the understanding that he would work
with the tools of his trade; that when any journeyman is
sent out on a job he is told that it was his `baby" or words
having similar connotations like "`Its yours," that basically
Borrell told Adams, "You're going to be the man running
the job"; and that this was the customary practice; that
when Adams was discharged, one of the journeymen,
Jones, replaced him and was in charge of the job thereaf-
ter. Testifying further Borrell stated that the great majority
of the jobs performed by the Company were one- or two-
man jobs in which one journeyman and one apprentice was
used, if four persons were used there would be three jour-
neymen and one apprentice; that one day a man could be
in charge of a job and the next day he could be just another
journeyman on a job; that Adams was continually on the
Schlitz job for 3 months as the man in charge; that the
Company had 5 to 15 jobs going at the time of the Schlitz
job which were of the same size or larger; that he was a
"foreman" within the meaning of the labor agreement dur-
ing his 3 months on the Schlitz job for 1 day; that the
Schlitz job averaged two journeymen and one apprentice.
Adams, called as a witness, gave details concerning his
work at the job emphasizing what he considered his super-
visory functions. Without unnecessarily prolonging the de-
tailing of his testimony, it seems sufficient to say that I do
not regard his narration and conclusionary testimony as
affording a basis for a finding that he was a supervisor
within the meaning of the Act. He testified that he granted
Jones time off on one occasion. Jones on the other hand
testified he merely informed Adams he was taking time off
and would have taken the time, regardless of Adams' de-
sires. I credit Jones. Adams on cross-examination conced-
ed that he worked with tools about 75 percent of the time
when on the Schlitz job and at other times he would be
doing preparatory work so that 80-90 percent of his time
was spent in work of the trade.
David H. Jones, a journeyman electrician called by Re-
spondent as a witness, testified that he succeeded Adams
as the man in charge of the Schlitz job; that 50 percent of
the job had been completed at that time; that the job re-
quired three men on the average, two journeymen and one
apprentice; that when he was told that he was in charge, it
meant that he was to complete the installation, to direct the
other men in what ever had to be done, and to answer any
problems as they arose. He explained his direction of the
other men as follows, "We, got the prints out; we looked
the prints over to see what had to be done that day, the
next day and what our progress is going to be, and dig in
and do it." As Jones explained he was the contact man and
consulted with Schlitz' employees on problems that arose,
that when material for one phase of the work was out he
would talk to the journeyman or apprentice and say "this is
as far as we can go here" and they would move over to
another place of the work. Jones considered the Schlitz job
no different than the 50 or more other jobs to which he had
been assigned to be the man in charge. Asked to describe
what the procedure that was followed when Adams was in
charge, Jones credibly testified:
Well, he brought the prints out, like any journeyman
would do that's running the job, and lay them out, and
say this is what we're got to do. And we had the mate-
nal on the jobsite.
If there was some questions or objection it would be dis-
cussed and between them they would be normally resolved.
Asked how much of his time he spent in duties associated
with being the man in charge of the job, Jones replied 5
percent and that he spent the other 95 percent working
with the tools, and that Adams spent approximately the
same time when he was in charge.
D. Concluding Findings
As I have stated above I do not find Adams to be a
supervisor under the Act. The most significant testimonial
account was that of Borrell. Although Borrell attempted to
portray Adams' duties in several aspects as constituting
and meeting the criteria of a supervisor, the essential hard
testimony, when considered without the conclusionary re-
marks, leaves no doubt that a journeyman in charge of a
job does not exercise supervisory functions as specified in
the Act. It is clear that the record establishes Adams' so-
journ as "man in charge" at Schlitz did not involve duties
which substantiate a finding that he was a statutory super-
visor. Jones' testimonial account and description of his
functions as "man in charge" and his comments concern-
ing Adams' activities while in charge are quite convincing
and credited. Where Adams and Jones differ, I credit
Jones.
Specifically, I find that Adams, like other journeyman
electricians, acted as a leadman or "straw" boss designated
as the "man in charge" of the Schlitz project. Calling atten-
tion to the safety rules, coffeebreaks, or other routine mat-
ters do not change the facts. His contact with Schlitz per-
sonnel in order to coordinate and avoid problems and
difficulties was routine and his direction of the workers for
Borrell-Bigby hardly measure up to the attributes of super-
vision.
In view of my findings above, I shall recommend dis-
missal of the case in its entirety.
Upon the foregoing findings of fact and conclusions of
law, and pursuant to Section 10(c) of the Act, I hereby
make the following recommended:
ORDER 16
I recommend that the complaint be dismissed in its en-
tirety.
16 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings , conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.