Marinette Marine Corp.

National Labor Relations Board - Board Decisions

Nov 18, 1969

179 N.L.R.B. 627 (N.L.R.B. 1969)

MARINETTE MARINE CORPORATION 627
Marinette Marine Corporation and Robert Bell,
Donald V. Rhode and Duane Ruggles, a
Committee of Individuals
International Brotherhood of Boilermakers , Iron Ship
Builders , Blacksmiths, Forgers & Helpers,
AFL-CIO, and its Local Lodge 6% and Robert
Bell, Donald V. Rhode and Duane Ruggles, a
Committee of Individuals Cases 30-CA-817 and
30-C B-205
November 18, 1969
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND ZAGORIA
On February 19, 1969, Trial Examiner Henry L.
Jalette issued his Decision in the above-entitled
proceeding, finding that the Respondent Employer
had engaged in and was engaging in certain unfair
labor practices alleged in the complaint and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. The Trial
Examiner also recommended that allegations of
certain other unfair labor practices be dismissed.
Thereafter, the Respondent Employer and the
General Counsel filed exceptions to the Trial
Examiner's Decision and supporting briefs, and the
Respondent Unions filed cross-exceptions and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to 'a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudical error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the i exceptions, the
cross-exceptions, the briefs, and the entire record in
this case, and hereby adopts the findings,
conclusions, and recommendations of the Trial
Examiner, as modified herein.
George Mueller has been president of the
Respondent Local for 5 years ,and, as such, appoints
members of the grievance and bargaining
committees and personally participates in contract
negotiations and the processing of grievances. At the
same time, Mueller is employed by the Respondent
Employer in a position which, according to the
findings of the Trial Examiner, is supervisory within
the meaning ; of Section 2(11) of the Act.
Accordingly, the Trial Examiner concluded that by
the participation of its supervisor, Mueller, iii the
internal affairs of .the Respondent Local, the
Respondent Employer has violated Section 8(a)(1)
and (2) of the Act. We do not agree, however, that
Mueller is a supervisor within the meaning of the
Act.
Mueller is one of four "senior supervisors" who,
the collective agreement states, "shall be responsible
to their respective foreman for fulfilling the duties
assigned to them and shall supervise their work
force accordingly." The Trial Examiner considered
this contractual job description, along with
Mueller's wearing of a red hat in the past, to be
"indicia of supervisory status." In addition, he cited
Mueller's higher pay and the fact that some
employees consider Mueller to be a "boss" as
"factors tending to support" a finding of supervisory
status. We do not agree with the Trial Examiner
that this limited evidence is sufficient to support
such a finding.
In the industry involved, the term "senior
supervisor" appears to have antecedents in the term
"leadman," while the red hats, which were worn
only by - admitted supervisors and "senior
supervisors," have not been used since the, summer
of 1968. Additionally, there is no evidence that the
employees were told that the hats signified anything
more than experience on the job. The higher wage,
rate for "senior supervisors" was established
through collective bargaining, is specified in the
contract, and is only 15 cents more per hour than
the rate for "junior supervisors," who are not
alleged to be statutory supervisors. In fact, so-called
supervisory positions, both senior and junior, are
fully covered by the collective agreement. As they
become vacant, the contract requires that they be
posted and, other things being equal, filled
according to seniority. Foremen, on the other hand,
are excluded from coverage by the agreement, are
specifically enjoined from using tools, and are
therein "charged with carrying out the Company's
policies." The other factors cited by the Trial
Examiner. in support of his finding are similarly
inconclusive. While two employees did testify, in
conclusionary language, that they considered
Mueller to be in charge of-the plate shop, each also
indicated an awareness of the distinction between
Mueller and the foremen. In addition, Mueller does
not attend management meetings, and punches a
timeclock.
The Trial Examiner, while noting that Mueller
has no authority to hire, suspend, layoff, recall,
promote, discharge,, reward, or discipline employees,
found nevertheless that Mueller has the authority
and responsibility to make effective
recommendations concerning conditions of
employment The evidence in support of this finding
is not persuasive. The record does not disclose any
specific incidents wherein Mueller has made such
recommendations, and this fact is particularly
significant when it 'is considered that Mueller has
been a senior supervisor since 1953. The Trial
Examiner relied on an affidavit in which a witness
stated that supervisors have informed foremen that
employees are not working out, but the affidavit
mentions 'no specific instances, and the Trial
Examiner could only conclude that the supervisors
179 NLRBNo. 102
628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
are "expected" to perform the duty. As' to an
unspecified number of instances in which Mueller
has gone to the foreman for overtime help, and as
to a single incident where time off was granted by
the personnel manager because it was "alright with
George (Mueller)," it is clear that either the
foreman or the personnel manager was vested with
the full decision making authority, Mueller's role
being perfunctory. We conclude, therefore,,- that
Mueller does not make recommendations affecting
conditions of employment in a manner contemplated
by Section 2(1 1) of the Act
The final, and perhaps central finding of the Trial
Examiner is that Mueller must exercise independent
judgment in directing the work force in the plate
shop. Such judgment is required, the Trial Examiner
found, in making the initial assignments of work,
monitoring its progress, determining which
operations are to have priorities, and in- switching
operators from one job to another. Nevertheless, all
the work in the shop is scheduled on sheets which
contain detailed instructions as to which machine
and which materials are required at each step of the
operation. Moreover, the record indicates that the
priority of jobs is determined by higher management
and enforced by the project foremen, and that any
changes made by Mueller in job assignments are
temporary and entail no more than a change in
machine or cutting sheet. Mueller must keep close
watch on the progress of the work, but this is done
as part of his record-keeping function, rather than
as a supervisory function, and Mueller does not
inspect the work before it goes out of the plate shop.
In addition, the specific assignment of -project
foreman Newlin to supervise the plate shop, the
periodic presence of other project foremen in the
shop whose duties are supervisory, and the recent
assignment of a full-time foreman, Kuran, to the
shop, in which from 15 to 25 employees perform a
type of work which requires little supervision,
seemingly leaves no part of the judgment-making
sphere to Mueller.
For the above reasons, and upon consideration of
the record as a whole, we find that George Mueller
is not a supervisor within the meaning of-the Act.
Accordingly, we dismiss the allegations of the
complaint premised upon his supervisory status
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, as
herein modified, and orders that the Respondent
Employer, Marinette Marine Corporation,
M arinette, Wisconsin, its officers, agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order,
as amended below.
1. Delete paragraph l(c) of the Trial Examiner's
Recommended Order.
2. Delete the second indented paragraph of the
notice attached to the Trial Examiner's Decision.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HENRY L JALETTE, Trial Examiner These cases were
heard on November 13 and 14, 1968,' pursuant to a
consolidated complaint issued on October 15, against
Marinette Marine Corporation, hereinafter referred to as
Respondent Employer, and against International
Brotherhood of Boilermakers, Iron Ship Builders,
Blacksmiths, Forgers & Helpers, AFL-CIO, and its Local
Lodge 696, hereinafter referred to separately as
Respondent International and Respondent Local, and
collectively as Respondent Union The complaint is based
on a charge in Case 30-CA-817 filed on May 3, and a
charge in Case 30-CB-205 filed on May 3 and amended
on June 17 The charges were filed by Robert Bell,
Donald V Rhode, and Duane Ruggles, who described
themselves as a committee of individuals The complaint
alleges that Respondent Employer violated Section 8(a)(1)
of the Act by promulgating and maintaining an invalid
union solicitation and distribution rule, and Section
8(a)(I) and (2) by recognizing, bargaining and contracting
with Respondent Union when Respondent Union had as
its officers individuals who are agents and supervisors of
Respondent Employer The Respondent Union is alleged
to have violated Section 8(b)(I)(A) of the Act by
permitting 'agents and supervisors of the Respondent
Employer to serve as representatives and agents of the
Respondent Union
Upon the entire record, including my observation of the
witnesses and after due consideration of the briefs filed by
the parties,14 make the following
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT EMPLOYER AND THE
LABOR ORGANIZATIONS INVOLVED
Respondent Employer is a Wisconsin corporation
engaged in the shipbuilding industry with plants in'
Marinette, Wisconsin, and Menominee, Michigan. During
the year preceding issuance of complaint, Respondent
Employer sold and shipped products valued in excess of
$50,000 from its plant in Wisconsin to points outside the
State of Wisconsin and during the same period purchased
and received from points outside the State of Wisconsin
goods and materials valued in excess of $50,000
The foregoing was admitted by Respondent Employer
in its answer. In its answer, Respondent Union averred
that it lacked information and knowledge ' of the
commerce allegations of the complaint, this . plea, by
operation of the Board's Rules and Regulations, Section
102 20, constituted a denial However, at a pretrial
conference counsel for the Respondent Union indicated
that despite the plea it was not contesting the Board's
assertion of -jurisdiction over the Respondent Employer
Accordingly, considering Respondent Employer's
'Unless otherwise indicated, all dates refer to the year' 1968
'Motion to dismiss made at the trial by Respondent Union on which I
reserved ruling is disposed of in accordance with the findings and
conclusions herein
MARINETTE MARINE CORPORATION 629
admission, as well as the evidence adduced in the litigation
of the substantive issues in this case indicating the nature
and size of Respondent Employer' s operations , I find that
Respondent Employer is , and at all times material herein
has been, an employer engaged in commerce within the
meaning of Section 2 ( 6) and (7) of the Act I find that
Respondent International and Respondent Local are'each
of them labor organizations within the meaning of Section
2(5) of the Act
Counsel I agree with the conclusion of the Trial
Examiner in that case ' I am unable to see what conduct
Respondent ' Local engaged in which could be
characterized as restraint and coercion within the meaning
of Section 8(b)(l)(A) The local officers, whether or not
supervisors, were elected by the members of Respondent
Local and it was not the Local which imposed them upon
the membership I shall recommend that the complaint
against Respondent Local be dismissed
iI THE ALLEGED UNFAIR LABOR PRACTICES
A. The Alleged 8(b)(1)(A) Violation
At all times material herein, Respondent Local has
been the recognized bargaining representative of
Respondent Employer's employees in an appropriate
production and maintenance unit, and, Respondent
Employer and Respondent Local are parties to a
collective-bargaining agreement covering the wages, hours
and other conditions of employment of Respondent
Employer's employees The agreement was signed by
members of Respondent Local's negotiating committee on
behalf of Respondent Local The Respondent
International is neither a party to the agreement, nor have
any of its officers signed it
The gravamen of the complaint against the Respondent
International and Respondent Local is that Respondent
Union (which term is used in the complaint to signify
Respondent International and Respondent Local) accepted
recognition from , Respondent Employer although
supervisors of Respondent Employer were officers and
agents of Respondent Union The evidence indicates,
however, that the alleged supervisors were officers of
Respondent , Local only, specifically, president and
recording secretary No officer or agent of Respondent
International is alleged to have occupied any position with
management or to have engaged in any act which would
constitute an unfair labor practice. Accordingly, there is
no basis, on which to predicate a finding that the
Respondent International has been guilty of a violation of
the Act and I shall recommend a dismissal of the
complaint against it
There is an additional ground for, dismissal of the
complaint against -Respondent International, a ground
which also dictates dismissal of the complaint against
Respondent Local As noted earlier, the gravamen of the
complaint against Respondent Union is solely and simply
the fact that two of its officers are also supervisors of
Respondent Employer within the meaning of the Act
Despite a plethora of cases in which the Board has found
that an employer violated- Section- 8(a)(2) of the Act by
virtue of the fact that its supervisors participated in the
affairs of a union or held office and were agents of the
union, including the lead case on this principle,' I know of
no case in which the,Board has held that as a corollary to
such an employer violation the union violated the Act
Without articulating his rationale, General Counsel cites
Garment Workers' Union v N L R B
(Bernhard-Altmann Texas Corp ), 366 U S 731, and
Miranda Fuel Co, Inc 140 NLRB 181, 185-186, in
support of a finding that Respondent Union violated the
Act in the instant case I deem both cases inapposite In
Ace Wholesale Electrical Supply Co , etc, 133 NLRB
480, 507, the Trial Examiner rejected a contention that a
labor organization, dominated, assisted or supported by
an employer, thereby violated Section 8(b)(1)(A) and (2)
of the Act No exceptions were filed by the General
B The Alleged Invalid No-Solicitation and
Distribution Rule
Among the conditions and rules of employment
maintained by Respondent Employer are the following
Rule 15: Distributing written or printed matter of any
description on Company property, except the Union
Bulletin Board unless approved by management.
Rule 30: Vending, soliciting or collecting contributions
for any purpose at any time on the _ premises, unless
authorized by management
For the first violation of Rule 15, the rules provide for
discharge, for Rule 30, written warning, with discharge for
a second offense. The rules were unilaterally adopted and
are not part of the contract, although Respondent Union
is aware of the rules and has the right to object to them, it
has not done so
The foregoing rules were adopted in 1965, and it is
undisputed that they are still in existence and are
embodied in the printed rules of Respondent Employer
which are distributed to employees While there is no
evidence that the rules have been invoked, there is also no
evidence that employees have sought to exercise their
statutory rights in this area
Respondent Employer contends that the promulgation
of the rules cannot be held to have. violated the Act since
promulgation was made more than 6 months before filing
and service of the charge I agree. Mason & Hanger-Silas
Mason Co Inc, 167 NLRB No. 122
Respondent Employer also contends that the continued
existence of an unenforced no-solicitation rule which does
not expressly prohibit union activities is insufficient, basis
for an 8(a)(1) finding N L R B v Shawnee Industries,
Inc, 333 F 2d 221 (C.A 10). Since the rules prohibit
distribution of printed matter "of any description" and
soliciting "for any purpose" on company property, they
must be deemed to include union solicitation and
distribution of union literature As the no-solicitation rule
applies to employees' nonworking - time, and the
no-distribution rule is not limited to work areas, they are
presumptively invalid Walton Manufacturing Company,
126 NLRB 679. In such circumstances, it is not for the
General Counsel to show that the rule was illegally
motivated, discriminatorily enforced or enforced at all
Lexington Metal Products Company, 166 NLRB No 106
So, long as the rule is in existence the possibility of its
application against employees engaged in union
solicitation or distribution of union literature tends to
coerce, restrain ' and interfere with employees in the
exercise of Section 7 rights Pueblo Supermarkets, Inc ,
etc , 156 NLRB 654 The Board's decision in Shawnee
Industries' is consistent with the foregoing, and I deem
myself bound by it despite the refusal of the Court of
Appeals to enforce the Board's order. Moreover, here
there is no showing that Respondent Employer's intention
'Nassau and Suffolk Contractors Association , Inc , 118 NLRB 174
'See also Brittany Dyeing and Printing Corp, 126 NLRB 785
'140 NLRB 1451
630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was to limit the rules to activities other than union
activities, and the conclusion of the Court in 'Shawnee
was based on its finding that the maker's intent was to
limit the rule to contributions." Where the rule is
ambiguous, the risk of ambiguity must be held against the
promulgator N L R B v Harold Miller, d/b/a Miller
Charles & Co , 341 F 2d 870 (C.A. 2). Neither Rule 31
which indicates the existence of a union bulletin board
(without indicating who may use it), nor Rule 32 which
restricts participation in union activities on company
property during working hours to the terms of the
collective-bargaining agreement, warrants the inference
that Rule 15 and 30 were not intended to apply to union
activities. Rule 32 is itself ambiguous about the meaning
of "on Company property during working hours "
Finally, Respondent Employer avers in its brief that the
rules in question have been amended to comport with the
standards set forth in Stoddard-Quirk Mfg Co, 138
NLRB 615, and that, accordingly, considering the fact
that any violation was unintentional, a remedial order is
not warranted There is no representation, however, that
employees have been informed of their rights. Such
notification is an important function of a Board order,
and I find that it would effectuate the policies of the Act
to require Respondent Employer to cease and desist from
the illegal act and to post an appropriate notice.
C. The Supervisory Status of George Mueller and
Norman Zieroth
General Counsel contends that George Mueller and
Norman Zieroth, , president and recording secretary
respectively of Respondent Local, are supervisors within
the meaning of Section 2(11) of the Act Mueller is
"senior supervisor" in the plate shop and Zieroth is
"senior supervisor" in the piping department Both are in
the bargaining, unit and enjoy wages, hours, and other
conditions of employment specified in the
collective-bargaining agreement They are hourly paid,
punch timeclocks, and enjoy no privileges not enjoyed by
unit employees
As indicated earlier, Respondent Employer is engaged
in shipbuilding. At the time of the hearing, there were 327
employees in the bargaining unit On May 23, there had
been 431 bargaining unit employees, and on April 6, there
had been 506'
Supervision of this work force proceeds from a vice
president in charge of manufacturing, through project
foremen, department or specialty foremen to senior
supervisors, junior supervisors, and unit employees
There are 5 project foremen,' 8 specialty or department
foremen," 4 senior supervisors, and 15 junior supervisors
The foremen, project or specialty, are admittedly statutory
supervisors Respondent Employer and Respondent Union
contend, however, that neither the senior supervisors, nor
the junior supervisors, are statutory supervisors. The
complaint did not allege that any of the junior supervisors
were statutory supervisors, and only two senior
supervisors were alleged so to be 10 - '
'Compare Ferguson-Lander Box Co , 151, NLRB 1615
'Norman Newlin , Ken Mechalson , Gerald Newlin , William Parthie, and
Don Wiltzius
.Glen Belongie , Walter Bjork , William Dietrich , Scotty Bertrand, Lee
Mrotek , Warren Klinke, Lewis England , and Rick Kuran
'These figures vary from time to time, but the variations do not affect
the decision herein
"At the trial, General Counsel was permitted to amend the complaint to
The construction of a ship begins with the drawings on
blueprints and the preparation of templates Then, raw
materials have to be cut, jigs have to be built, and
sub-assemblies prepared This is followed by main
assembly with machinery and piping,' and outfitting
Finally, there is launching and delivery. The construction
of a given boat, or boats of an equal type, is the
responsibility of a project foreman, who must "marry" the
operations just described. This means he is required to
oversee the progress of the work through several
departments, including the plate shop and the piping
department
Although there are specialty foremen in charge of most
departments (e.g , electrical foreman, welding foreman,
sandblasting, painting, and material handling foreman),
until about October 1968, there was no specialty foreman
in charge of either the plate shop or the piping
department Rather, Project Foreman Norman Newlin
had the dual function of supervising a project and
supervising the plate shop until October, when Foreman
Rick Kuran was assigned over the plate shop There was
no similar dual assignment for the piping department
Respondent Employer sought to establish that project
foreman Mechalson had the dual function of piping
department foreman. However, Mechalson testified
expressly that he had no relationship to the piping
department other than as project foreman, and in an
affidavit given by James Derusha during the investigation,
he had stated there had been no piping foreman since
January 1968 Employee Holmgree 'also testified he knew
of no pipe shop foreman. Thus, Zieroth was the 'only
individual with any apparent and continuing responsibility
for the operation of the piping department
From the blueprints. or drawings, Respondent
Employer's engineering department prepares "cutting
sheets" and "material requisition" sheets which specify in
great- detail how each part on a blueprint is to be
fabricated Such sheets and blueprints are sent to the plate
shop to George Mueller It is Mueller who initiates the
completion of the work described on the cutting sheets.
He assigns the cutting sheets to the operators, and
requisitions the materials which the operator needs to
perform the operation described on the cutting sheet A
cutting sheet may have several operations for, one
operator, and he performs each in turn, checking off those
he completes, until he has completed all the operations on
the sheet, if he has not already received a new cutting
sheet, he will ask Mueller for another one. Mueller
continually checks the cutting sheet to determine which
operations have been completed, when to requisition
materials and when to assign another cutting sheet to the
operator. He records the information from the operator's
cutting sheet onto a master cutting sheet and in a
sub-assembly book The blueprints, master cutting sheets,
and sub-assembly books are kept in an office referred to
as the "blue room," which is used by all project foremen
and Mueller. It is by checking'the master cutting lists and
sub-assembly books that a project foreman learns of the
progress of a job '
There are- between 15 and 20 employees in the plate
shop, who are assigned to a variety of machines (e g ,
angle shears, press' brake, cutoff saws, drill presses, radial
drills) 'Mueller is not assigned 'to a machine. Although
allege 'that one of the 15 junior supervisors was a statutory supervisor,
however, I granted a motion to dismiss allegations relating to him because
of the absence of evidence to support a finding that he was a statutory
supervisor
MARINETTE MARINE CORPORATION 631
there was testimony that Mueller has no responsibility to
see that the work gets done, or to require employees to
work faster, nor to do better work, nor to inspect the
work of employees, the record indicates that he will on
occasion tell employees to correct faulty work Without
consulting with the project foreman, Mueller will direct
employees to stop work on one operation and to work on
another, and he may also transfer an employee from one
machine to another, although only within the plate shop
and only for temporary reasons, e g , absence of an
operator
The piping department in which Zieroth is senior
supervisor also employs about 25 men They,work in the
pipe shop making the sub-assemblies to be placed in the
ships and work in the ships installing the sub-assemblies
All assignments are made by Zieroth The piping
department does not work from cutting sheets but from
blueprints. Zieroth receives work orders from the project
foreman and assigns work to the employees depending on
their qualifications and experience without consulting the
foreman As sub-assemblies are finished, Zieroth will
direct employees to install them and several installations
are always in progress and are being checked by Zieroth
As noted earlier, there is no department foreman, and at
the time of hearing pipe work was being performed on
three projects involving project foremen Newlin, Wiltzius
and Parthie
Derusha testified this provision was inserted because
senior supervisors were receiving conflicting instructions
from several project foremen and the provision clarified
the position of the senior supervisor by indicating that he
has a particular foreman he is primarily responsible to
Another insignium of supervisory status is the red hat
worn by supervisors it is undisputed that since the date
hard , hats have been worn only admitted statutory
supervisors and senior supervisors, including Mueller and
Zieroth, have worn red hats.
Vice President James Derusha stated that the red hats
were worn by admitted supervisors and senior supervisors
to make it easier for employees to single out who to go to
for aid or advice in performing their duties.. I reject this
explanation Considering the presence of other factors
indicative of a supervisory status, it is more. than mere
coincidence that senior supervisors should be wearing the
same hats as admitted supervisors
In short, both the contract and the red hats are indicia
of supervisory status for statutory purposes Although the
color of the hats of senior supervisors has been changed
since these proceedings were initiated, there is no showing
that employees were notified that the change represented
any change in their relationship to the senior supervisor
B They Receive Higher Pay And Are Considered
Bosses By The Employees
III ANALYSIS AND CONCLUSIONS
General Counsel's contention that Mueller and Zieroth
are supervisors within the meaning of Section 2(11) of the
Act is based on several factors which I shall discuss
seriatim
A They Have the Insignia Of Authority
The title of Mueller and Zieroth as senior supervisors is
derived from article X I of the collective-bargaining
agreement which relates to supervision Section 5 thereof
states
The terms "supervisory employees" and "supervisory
positions" as used in this Agreement shall refer to those
employees or positions below the rank of foreman
They shall be responsible to their respective foreman
for fulfilling the duties assigned to them and shall
supervise their work force accordingly (Emphasis
added)
Inspectors and instructors shall be responsible to
their respective foreman for the performance of their
assigned duties
General Counsel contends that this provision, in
particular the underlined portion, manifests to employees
that they must respond to the directions and orders of
Mueller and Zieroth, and that failure to do so may cause
the invocation of disciplinary action
Respondent Employer's contention is that the
contractual term is historically derived from the term
leadman which was used prior to 1953 when the Union
was certified and that the phrase "supervisors shall
supervise their work force accordingly" does not refer to
men who are working under the direction and control of
the "supervisors," but to those working with a
"supervisor " This was the testimony of Roger Derusha I
reject such a strained interpretation of what appears to me
to be unambiguous language The record indicates that
several project foremen have work in progress in a
particular department at the same time, and Roger
It is undisputed that senior supervisors receive $3 47 per
hour which is 40 cents per hour more than is paid to
mechanics Junior supervisors, who are not alleged to be
statutory supervisors, but who do no production work,
receive $3 32 per hour However, there was no junior
supervisor in the plate shop at the time of the hearing
Employees Schoblocher and Bell considered Mueller to
be in charge of the plate shop As Schoblocher stated,"
when you work at a place the man who gives you your
work orders he's your boss, isn't he"" Hornick and
Holmgren in the piping department testified that they
considered Zieroth the boss in their department " This
fact, along with the higher pay and the other factors
evaluated herein, is a factor tending to support a finding
that Mueller and Zieroth are statutory supervisors
C They Make Recommendations Affecting
Conditions of Employment of Employees
According to the testimony of Mueller and Zieroth, and
that of officials of Respondent Employer, they have no
authority to hire, suspend, lay off, recall, promote,
discharge, reward, or discipline employees However,
General Counsel contends that they can make effective
recommendations regarding overtime, that they notify
foremen if employees are unsatisfactory, and may
recommend that employees be reassigned 11
"I attach no weight to employee Anderson 's testimony, including his
statement that he did not consider Mueller his boss Anderson appeared to
me to be completely biased and unwilling to describe accurately Mueller's
role in the operation of the plate shop
"Donald Bell, a former employee , testified that Mueller effectively
recommended that he not be rehired This was denied by Mueller, and by
Industrial Relations Director Westphal who identified Foreman Norman
Newlin as the one who made the recommendation He was corroborated
by Newlin General Counsel does not specifically advance this alleged
recommendation regarding Bell as evidence of Mueller's supervisory status
In any event , I do not credit Bell's testimony which is at odds with all the
other evidence in the record on this issue of recommending hiring
However , I credit his testimony that he asked Mueller for permission to
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On overtime, Mueller admitted that if it looks as
though work is not progressing the way it should, he and
the junior supervisor would tell foreman Newlin that they
felt overtime was necessary. While the decision was made
by Newlin and only after inquiring into the matter, it is
not clear from the record what kind of inquiry he made
In the case of Zieroth, the evidence' indicates that if he
is short handed he will ask a foreman for additional help
According to foreman Mechalson, when this occurred he
looked into it to confirm the need before assigning more
men to the department Again, it is not clear what is
meant by looking into it
General Counsel contends that the senior supervisors
have informed foremen when employees were not
satisfactory. This contention is based on a statement by
Vice President James Derusha in an affidavit given during
the investigation Derusha testified differently at the
hearing and sought to explain that the statement had been
made in reply to a hypothetical question, nevertheless, he
admitted his statement was true when made, and I
construe the statement in his affidavit as his understanding
of the manner in which the senior supervisors were
expected to perform their duties, and that his denial at the
hearing was of knowledge of any specific instance when
the supervisors had actually performed such a duty
There is only one specific instance when a senior
supervisor has advised a foreman employees were not
working out, and in this instance, the supervisor, Zieroth,
testified he acted on the request of the employees to be
reassigned, and not because of any supervisory authority
he possessed Zieroth would not admit that he made
recommendations about the work performance of
employees, but described his role as being "asked for an
opinion occasionally
Despite the absence of specific instances when senior
supervisors have made effective recommendations
affecting conditions of employment of employees, I am
persuaded that both Mueller and Zieroth have the
authority and responsibility to do so I reject the
testimony that they do not, because as will appear below,
I find that they must exercise independent judgment in
making assignments and that their direction of employees
is responsible direction within the meaning of Section
2(1 1) of the Act
D They Assign Work to Employees and Give
Responsible Direction
It is clear that all assignments of work to plate shop
and piping department employees are made by Mueller
and Zieroth, respectively, and that they are for all
practical purposes the only individuals to direct the
employees Respondent Employer contends, however, that
in making assignments they are not required to exercise
independent judgment and that their direction of
employees is not responsible direction
Although both are senior supervisors, there are some
differences between the duties performed by Zieroth and
those performed by Mueller First of all, the very fact that
no single foreman has been assigned to the piping
department indicates the degree of responsibility that rests
on Zieroth to direct the work in the department The 25
employees in the department have no single foreman to
whom they can turn for direction, and as several projects
are going through the department at one time the sole
continual supervision they receive is from Zieroth
Secondly, the nature of the work in the piping department
and the method of operation negate any possibility that
Zieroth's direction is of a routine nature and does not
constitute responsible direction. It is he, and he alone,
who executes the work orders which initiate the
production of piping systems He ' supervises the
fabrication of subassemblies and he decides who will
install them in the ships and when Those are clearly not
routine matters
In Mueller's case, there has been a project , foreman
specifically assigned to the plate shop, and currently there
is a plate shop foreman Mueller, like Zieroth, makes all
work assignments, although less independent judgment is
required because he assigns work which is detailed on
cutting sheets Moreover, there is less occasion for the
exercise of independent judgment because he supervises
machine operators Despite these differences, I find that
Mueller must exercise independent judgment and that his
direction of employees is responsible direction. Mueller on
his own admission is continually checking the progress of
the work It is he who first detects whether the work is
progressing in accordance with the schedule, and he must
decide if an operator should be switched from one job to
another From the fact that it was necessary to amend
Article XI, Section 5 of the contract to insulate senior
supervisors from conflicting instructions of project
foremen, it is clear that the senior supervisor is the
individual responsible for the execution of the work orders
in accordance with the schedule, and that he must exercise
his judgment in determining which operations are to
receive priority From the very fact that project foreman
Newlin has had the responsibility to supervise the progress
of a project through the entire plant, it is evident that the
responsibility for the operation of the plate shop has been
vested in Mueller "
The testimony of Newlin about the frequency of his
visits to the plate shop and his contacts with employees is,
in my view, exaggerated and at odds with his
responsibility for the completion of a project involving
work in several departments. While he accounted for his
presence in the plate shop when a job started, he did not
account for his presence when his project had progressed
beyond the plate shop Although Respondent Employer
has now assigned a foreman to the plate shop, the record
does not indicate that this has in any way affected the
manner in which the plate shop has been operated
Mueller still assigns the work and directs the work force,
and there is no showing that employees have been advised
that they are to look to foreman'Kuran for supervision
instead of Mueller.
In short, a review of all the evidence in the record
indicates clearly that both the plate shop and the piping
departments are directed almost exclusively by Mueller
and Zieroth respectively The only "evidence" proffered
by Respondents to negate a finding that their direction of
the work force is not responsible direction and does not
require the use of independent judgment is testimony of
the senior supervisors and foremen that Mueller and
Zieroth have no responsibility for the operation of their
departments I do not credit this testimony." Granted that
take time olf, and was told to check with Westphal who would grant
permission because it was "all right with George". I also credit his
undemed testimony that upon his transfer by foreman Newlin to the plate
shop , it was Mueller who assigned him to the punch press and thereafter
directed his work
"It is significant that on the occasion when James Derusha believed
there was a shortage of parts for sub-assembly, he went to Mueller and the
then junior supervisor in the plate shop to find out what was wrong
"For example, considering the admissions of James Derusha and
MARINETTE MARINE CORPORATION , , 633
responsibility for getting the work done rests on the
project foremen, this does not negate a responsibility on
the senior supervisors for the execution of the orders given
by the project foremen The type of work assigned to the
plate shop and the piping department is not such that it
can be supervised by a nomadic project foreman
In the final analysis, all that Respondent Employer has
shown is that Mueller and Zeiroth lack several of the
criteria of supervisory status, e g , the authority to hire,
discharge, discipline, etc However, they need possess only
one, and I find that not only do they have several indicia
of supervisory status (higher rate of pay, contract
designation.as supervisors, little or no manual labor), but
also they are required to exercise independent judgment in
their direction of their work forces Accordingly, I find
they are supervisors within the meaning of, Section 2(1 1)
of the Act.' S
Respondent Employer contends that even if Mueller
and Zieroth are found to be supervisors, a finding that it
has violated the Act because of their holding office in
Respondent Local is not warranted In the case of
Zieroth, I agree Zieroth is a minor supervisor who has
been included in the bargaining unit for many years. The
office of Recording Secretary which he holds does not
involve participation in contract negotiations or the
processing of grievances While he is also a member of the
executive board, there is no showing that this has involved
him in such matters In these circumstances, and in the
absence of any showing that Respondent Employer has
played any part in Zieroth's holding office, I find that the
fact that Zieroth holds such office is insufficient basis to
warrant a finding that Respondent Employer has violated
the Act National Gypsum Company, 139 NLRB 916,
920, Banner Yarn Dyeing Corporation, 139 NLRB 1018,
1024
Respondent Employer concedes that Mueller's case is
different He not only holds the office of president of
Respondent Local, but also, he appoints members of the
bargaining and grievance committee and participates in
contract negotiations and the processing of grievances.
Even minor supervisors who are part of the bargaining
unit may not engage in such activities, else emoloyees are
deprived of their right to be represented in
collective-bargaining negotiations by individuals who have
a single-minded loyalty to their interests Nassau and
Suffolk Contractors' Association, Inc , 118 NLRB 174,
187, Local 636, Plumbers v N L R B, 287 F 2d 354
(C A D C ). I find, therefore, that by the participation of
its supervisor George Mueller in the internal affairs of
Respondent Local, including holding the office of
president, Respondent Employer has violated Section
8(a)(1) and (2) of the Act
THE REMEDY
Having found that Respondent Employer has violated
Section 8(a)(I) and (2) of the Act, I will recommend that
it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act
General Counsel requests that such recommendations
include an order that Respondent Employer cease and
desist giving effect to the labor agreement and withdraw
recognition from the Union unless and until an election is
conducted In my opinion, such an order is not warranted
by the facts of this case, nor necessary to effectuate the
policies of the Act Respondent Employer has recognized
the Union since 1953 as a result of a Board certification,
and although it has permitted a supervisor to hold union
office and participate in collective bargaining, the
supervisor is a minor one, and their is no showing that he
has acted other than " honestly on behalf of the
interest which they were at the particular time charged
with representing " Local 636, Plumbers v N L R B,
supra In this last cited case, the Board merely required
the respondents to cease and desist from interfering with
the administration of the union by engaging in
negotiations, with a union committee which included a
supervisor 16 In the circumstances herein, the policies of
the Act can be effectuated by requiring Respondent
Employer to cease and desist from interfering with the
administration of Respondent Local by permitting
supervisors to participate in the processing of grievances
and in collective-bargaining negotiations as representatives
of the Union, and by permitting supervisors to hold union
office whereby they participate in such matters
Upon the foregoing findings of fact, and upon the
entire record in this case, I make the following
CONCLUSIONS OF LAW
I Respondent Employer, Marinette Marine
Corporation , is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act
2. International Brotherhood of Boilermakers, Iron
Ship Builders, Blacksmiths , Forgers & Helpers,
AFL-CIO , and its Local Lodge 696, and each of them,
are labor organizations within the meaning of Section 2(5)
of the Act.
3 By maintaining in effect a rule which prohibits
solicitation of union membership during the employees'
nonworking time and by maintaining a rule which
prohibits its employees , when they are on nonworking
time, from distributing literature on behalf of any labor
organization in nonworking areas of its property,
Respondent has engaged in interference , restraint, and
coercion in violation of Section 8 (a)(1) of the Act
4 By permitting supervisors to participate in
negotiations for a collective - bargaining agreement and in
the processing of grievances, and to hold office in
Respondent Local whereby they participate in such
matters, Respondent Employer has interfered with the
administration of the affairs of Respondent Local and
with the rights of the employees under Section 7 of the
Act and has thereby violated Section 8(a)(1) and (2) of the
Act
5 The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2 ( 6) and (7) of the Act
Upon the foregoing findings of fact and conclusions of
law, and the entire record in the case , I hereby issue the
following
RECOMMENDED ORDER
Norman Newlin with regard to Mueller's authority to assign work or to
transfer men from job to job Mueller's testimony that if he told a
mechanic to make part B instead of part A, the mechanic would not have
to do it if he did not want to is simply incredible
"Research Designing Service, Inc. 141 NLRB 211, 213, Lvon,
Incorporated, 145 NLRB 54
Marinette Marine Corporation, its officers, agents,
successors, and assigns, shall
"See also EEE Co, Inc, 171 NLRBNo 137
634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I Cease and desist from
(a) Maintaining in effect a rule which prohibits
employees from soliciting union membership during their
nonworking hours or on company property
(b), Maintaining in effect a rule prohibiting its
employees when they are on nonworking time from
distributing handbills or similar literature on behalf of any
labor organization in nonworking areas of company
property
(c) Interfering with the administration of Local Lodge
696, International Brotherhood of Boilermakers, Iron
Ship Builders, Blacksmiths, Forgers, & Helpers,
AFL-CIO, and the rights of its employees under Section 7
of the Act, by permitting senior supervisor George
Mueller, so long as he is a supervisor, or any other
supervisor, to participate in collective- bargaining
negotiations as a representative of said Union or to
participate in the processing of grievances, and to hold
any union office by which they participate in such matters
(d) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act, except to the
extent that such rights may be affected by an agreement
requiring membership in a labor organization as a
condition of employment, as authorized in Section 8(a)(3)
of the Act, as amended
2 Take the following affirmative action designed to
effectuate the policies of the Act
(a) Post at its plants at Marinette, Wisconsin, and
Menominee, Michigan" copies of the attached notice
marked "Appendix "18 Copies of said notice, on forms
provided by the Regional Director for Region 30, shall,
after being duly signed by Respondent Employer's
representative, be posted by Respondent Employer
immediately upon receipt thereof and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted Reasonable steps shall be taken by
Respondent Employer to insure that said notices are not
altered, defaced or covered by any other material
(b)- Notify the Regional Director for Region 30, in
writing, within 20 days from the date of receipt of this
Decision what steps Respondent Employer has taken to
comply therewith 19
'71 include this plant in the posting requirements , because the record
shows it is part of the unit with the Marinette plant , covered by the same
contract and it is staffed by transferees from the Marinette plant
"in the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner ' in the said notice In the
further event that the Board ' s Order is enforced by a decree of the United
States Court of Appeals , the words "a Decree of the United States Court
of Appeals, Enforcing an Order" shall be substituted for the words "a
Decision and Order "
"in the event that this Recommended Order be adopted by the Board
paragraph 2(b) hereof shall be modified to read, "Notify said Regional
Director , in writing , within 10 days from the date of this Order, what steps
Respondent Employer has taken to comply herewith "
As to the allegations of the complaint found not to
have constituted violations of the Act, it is recommended
that they be dismissed
Dated By
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that
After a hearing duly held, it has been determined that
this Company has violated the National Labor Relations
Act In order to remedy this conduct we have been
required to post this Notice and to take the following
steps
WE WILL NOT maintain in effect a rule which
prohibits you from soliciting union membership on
Company premises during non-working time, nor will
we maintain in effect a rule prohibiting you from
distributing union literature on Company premises
during non-working time in non-work areas
WE WILL NOT permit George Mueller, so long as he
is a supervisor, or any other supervisor, to participate
in negotiations for a contract nor to participate in
processing grievances, nor shall we permit George
Mueller, so long as he is a supervisor, or any other
supervisor, to hold office in Local Lodge 696,
International Brotherhood of Boilermakers, Iron Ship
Builders, Blacksmiths, Forgers & Helpers, AFL-CIO,
whereby they would participate in negotiations for a
contract or in the processing of grievances
APPENDIX
MARINETTE MARINE
CORPORATION
(Employer)
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered,
defaced, or covered by any other material
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 2nd Floor,
Commerce Building, 744 North Fourth Street,
Milwaukee, Wisconsin, Telephone 414-272-8600, Ext
3872