Miller Electric Co.

National Labor Relations Board - Board Decisions

Jan 24, 1991

301 N.L.R.B. 294 (N.L.R.B. 1991)

294
301 NLRB No. 41
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are 1989 unless otherwise indicated.
2 It appears the Company in its posttrial brief has abandoned any contention
Dickerson is a confidential employee. The uncontradicted testimony of
Dickerson’s immediate superior on that particular point establishes Dickerson
did not utilize nor have access to information such that he could even be con-
sidered to be a confidential employee of the Company. Accordingly, I find it
unnecessary to treat that issue any further. Additionally, there is insufficient
record evidence to so support a finding that Dickerson has, at any time perti-
nent herein, a professional employee within the meaning of the Act.
Miller Electric Company and Arthur D. Dickerson.
Case 11–CA–13589
January 24, 1991
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On August 29, 1990, Administrative Law Judge
William N. Cates issued the attached decision. The
General Counsel filed exceptions and a supporting
brief, and the Respondent filed a brief in support of
the judge’s decision.
The National Labor Relations Board has delegated
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 de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Paris Favors. Jr., Esq., for the General Counsel.
Robert O. Sands, Esq. (Ogletree, Deakins, Nash, Smoak &
Stewart), of Atlanta, Georgia, for the Respondent.
DECISION
STATEMENT OF THE CASE
WILLIAM N. CATES, Administrative Law Judge. This case
was tried before me at Aiken, South Carolina, on April 16
and 17, 1990, pursuant to an amended complaint and notice
of hearing (complaint) issued by the Acting Regional Direc-
tor for Region 11 of the National Labor Relations Board
(Board) on February 28, 1990, which in turn was based on
a charge originally filed by International Brotherhood of
Electrical Workers, Local Union No. 1579 (Union) on No-
vember 1, 1989,1 and thereafter amended on December 15.
The Charge was amended a second time by Arthur D.
Dickerson (Dickerson), on February 20, 1990. It is alleged
in the complaint that Miller Electric Company (Miller, Mil-
ler-Dunn, Dunn, or Company) discharged Dickerson on or
about December 4, in violation of Section 8(a)(3) and (1) of
the Act. The Company timely answered the complaint and
admitted certain allegations therein but denied the commis-
sion of any unfair labor practices.
All parties were given full opportunity to participate, to in-
troduce relevant evidence, to examine and cross-examine wit-
nesses, to argue orally, and to file briefs. Briefs, which I
have carefully considered, were filed on behalf of the Gen-
eral Counsel and the Company.
On the entire record of the case, and from my observation
of the witnesses and their demeanor, I make the following
FINDINGS OF FACT
I. JURISDICTION
The complaint alleges and the Company admits it is a
Florida corporation with an office and place of business lo-
cated at the Savannah River Plant, South Carolina, where it
is engaged in electrical construction. During the 12-month
period preceding issuance of the complaint herein, a rep-
resentative period, the Company, in the course and conduct
of its business operations, received at its Savannah River
Plant (SRP) goods and raw materials valued in excess of
$50,000 directly from points located outside the State of
South Carolina. I find the Company is now, and at all times
material has been, an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
The complaint alleges, the parties admit, and I find, the
Union is a labor organization within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Central Issue Presented
It is undisputed that Dickerson was discharged on or about
December 4, for refusing to adhere and/or agreeing to adhere
to restrictions on any union activities he might engage in.
The controlling issue with respect to whether the Company
violated the Act by terminating Dickerson turns on whether,
at material times herein, he was a supervisor, professional,
managerial, and/or confidential employee within the actual or
judicially implied meaning of the National Labor Relations
Act (Act). The parties agree that if Dickerson is found to be
an employee within the meaning of the Act, the Company,
by attempting to restrict his union activities, violated the Act;
but, if Dickerson is found to be a supervisor or managerial2
employee it did not violate the Act by terminating him.
B. Background and Operative Facts
The Company, as well as various other contractors, per-
form work at a project in South Carolina (near Aiken, South
Carolina) known as the Savannah River Plant Project. The
SRP produces special nuclenr materials for the United States
Department of Energy (DOE). At all times material the
Bechtel Corporation (Bechtel) has been, and continues to be,
the general contractor at the project with overnll responsi-
bility for construction it the SRP. The Company more fully
described as Miller-Dunn Electric Company operates as a
joint venture to perforn electrical contracting work at the
SRP. Miller, pursuant to the terms of the venture, employs
all managerial, administrative, and clerical personnel while
Dunn employs the manual or electrical craft employees. The
Dunn employees are represented by the Union and work
under the terms of a collective-bargaining agreement, how-
295MILLER ELECTRIC CO.
3 He testified Resident Manager Walton told him there would not be conflict
with his working for Miller and his holding the position he did in the Union.
4 The parties acknowledge Timmerman was not at any time supervised by
Dickerson but rather they both reported to Miller’s field superintendent
Ratherine Tharin (Tharin) or her predecessor.
5 Others in the exempt pay status included Walton, area superintendents, as-
sistant superintendents, and certain supervisors. General foremen and foremen
are not exempt employees.
6 The Company’s pay zone 13 includes, among others, the area super-
intendent and supervisors for employee relations, employment, and quality as-
surance.
7 Field Superintendent Tharin, Dickerson’s immediate supervisor, testified
that some of the ‘‘unique privileges’’ Dickerson as well as other exempt em-
ployees she described as ‘‘top level managers and supervisors’’ enjoyed were,
and are, the accrual of compensatory time, lenient working hours, and annual
bonuses ‘‘keyed’’ to performnnce and cost effectiveness.
8 I am unwilling to credit Dickerson’s testimony regarding the unchanging
nature of his job duties. I am persuaded Dickerson attempted to describe his
duties (or lack thereof) in a manner he perceived would serve his own best
interest without regard for total accuracy. Eor example, Dickerson denied hav-
ing any input into the quality control procedures issued by the quality assur-
ance department; however, on self-prepared (June 1989) employee evaluation
(Dickerson was dissatisfied with the one given him by his superior) he listed
one of his four primary job duties as ‘‘responsible for reviewing QCPs and
commenting on them so as to improve the quality program.’’ (G.C. Exh. 10.)
9 Tharin assumed responsibility for the training department in February
1989. Other departments she had overall responsibility for included (1) the
payroll department, (2) the computer department, and (3) the document control
clerical staff in central shop. Tharin also serves as the Company’s overall ad-
ministrative assistant.
10 Tharin testified in a calm, relaxed, articulate, comprehensive, and candid
manner. As such, I have credited her testimony regarding the training depart-
ment in general and Dickerson’s duties and responsibilities in particular.
ever, the Union has no representational authority for the em-
ployees of Miller. At times material Miller-Dunn had a work
force in excess of 1000 employees, 38 of which were exempt
employees. At and for sometime before his discharge,
Dickerson was one of the exempt employees.
Dickerson commenced working for Dunn Electric as a
journeyman wireman in June 1988. After approximately 2
weeks, he was assigned to Dunn’s quality assurance depart-
ment where he conducted quality assurance training for jour-
neymen and others performing manual labor. In carrying out
his quality assurance functions, he conducted classroom
training that consisted of oral presentations supplemented by
overhead slide transparencies and other training devices.
Dickerson testified:
I held classroom training for the quality control proce-
dures. We would take a quality control procedure and
outline the information in it and, then, present it to the
people.
He added:
The quality assurance procedures [were] written by the
Miller quality assurance group.
He stated he had not been involved in writing these quality
assurance training procedures. Dickerson testified Miller’s
Resident Manager W. T. Walton (Walton) asked him in
early June 1988 about coming to work for Miller.
Dickerson testified he was ‘‘hired on the Miller payroll’’
in a ‘‘non-manual role’’ ‘‘in a non-exempt’’ position in Sep-
tember 1988.3 According to Dickerson, he performed the
same tasks for Miller that he had performed for Dunn but
his title was changed to that of a quality assurance techni-
cian. Dickerson stated he was assigned an office which he
shared with Miller training department employee Daniel
Timmerman.4
Dickerson testified that in December 1988, Resident Man-
ager Walton told him he was being made one of the 38 em-
ployees in an exempt pay status5 and that his title would be
training supervisor. Dickerson was paid at the zone 13 level
for exempt employees.6 As an exempt employee, Dickerson
was accorded certain ‘‘unique privileges’’ not provided to
nonexempt employees.7 Dickerson testified his duties did not
change when he became training supervisor but rather stated
his duties remained the same from the time he was made a
quality assurance technician in September 1988 until he was
terminated in December 1989.8
During certain material times Field Superintendent Tharin
had general overall responsibility for the training department9
and she described the functions of that department in de-
tail.10 Tharin testified Dickerson was not only responsible for
all aspects of the Company’s quality control training but that
he was also responsible for various other projects assigned
to the training department for development and/or review.
Tharin testified Dickerson’s duties consistently increased
after she became his superior in February 1989. Tharin had
Dickerson review all quality control procedures developed by
the quality assurance department specifically with regard to
technical merit, feasibility, and jobsite impact. She said that
although Dickerson had to follow some 40 quality control
procedures closely, he produced and/or approved all training
outlines or lesson plans for each of those procedures before
any of them could be used to teach from. Dickerson was also
responsible for the preparation of all slides, transparencies,
and handouts used in conjunction with the quality control
procedure classes.
Area Superintendent Tharin testified the training depart-
ment, under Dickerson’s guidance, prepared a suggested
training matrix, copies of which were distributed to all super-
intendents in order for the superintendents to assess training
needs pertaining to employees under their supervision. The
matrix outlined approximately 43 quality control procedures
reflecting the title or subject matter of the procedures along
with recommended training methods such as reading selected
materials and/or attending class lectures as well as reflecting
how long the classes would last and suggestions regarding
who should attend each of the classes. It is undisputed that
Dickerson was the only supervisory type individual present
during some of the training classes he conducted. Dickerson
determined starting and stopping times, as well as
breaktimes, for the training classes. He also determined when
those attending the training classes understood, at least to his
satisfaction, the materials presented in the classes.
Dickerson acknowledged that in some of the classes he
taught, he provided ‘‘hands on’’ training that resulted in
those attending the classes being certified or licensed to per-
form certain types of work. Tharin testified it was left to
Dickerson’s discretion as to whether anyone would be cer-
tified as trained and capable of performing certain specific
procedures. Dickerson would, if the journeymen or super-
visors attending certain of his classes demonstrated sufficient
knowledge and/or skills, issue certification papers for them
on procedures such as fiber optics, megger testing, high po-
tential testing, oil dielectric testing, tool inspection, platform
aerial work, and cadweld, and maxibolt installations.
Area Superintendent Tharin testified she assigned the de-
velopment of a craft procedures manual to the training de-
296 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 There had been some work performed on the craft procedures manual in
1988 but work on the Project ‘‘fell by the wayside’’ during that year.
12 Dickerson denied having anything to do with this manual. He specifically
denied performing ‘‘work’’ on the manual or ‘‘drafting’’ or ‘‘revising’’ any
part of it. He testified Timmerman performed all the work on this manual. As
alluded to elsewhere in this Decision, I find Dickerson’s testimony on this,
as well as certain other matters, to fall short of being accurate. Area Super-
intendent Tharin assigned the project to the training department and evaluated
both Dickerson and Timmerman on the finished product. Timmerman, called
as a rebuttal witness by counsel for the General Counsel, stated Dickerson re-
viewed the manual as he (Timmerman) wrote it out. Accordingly, I am per-
suaded Dickerson, consistent with his general responsibilities for the training
department, reviewed the manual in question as it was being prepared.
13 Area Superintendent Tharin testified certain sections of the manual were
written by individuals from other departments such as the EEO department.
partment in 198911 and that she rated Dickerson and training
department employee Timmerman on the final product which
she said was produced by them and presented to her in 1989.
The craft procedures manual not only sets forth detailed in-
formation related to electrical work, inspection of tools and
equipment, safety, and work verification procedures, it also
establishes a detailed manual employee payroll procedure
that defines the responsibilities of supervisors related there-
to.12 The manual consists of approximately 70 plus pages
and was ‘‘created to insure safe [and] efficient work per-
formance.’’
The training department produced a 155-page foreman’s
training manual in 1989. Dickerson signed off on the docu-
ment approving it for publication on June 2. Dickerson testi-
fied he had extensive help in preparing the manual from
training depnrtment employee Timmerman. He testified they
utilized materials from various sources and he either wrote
or reviewed and approved everything in the manual.13
Although the manual had not been produced in final form
at the time of the trial herein, all portions to be produced by
the training department had been completed. Area Super-
intendent Tharin testified her instructions to Dickerson re-
garding the portions of the foreman’s manual to be produced
by the training department were ‘‘make this project happen’’
‘‘put the thing together,’’ and let her know ‘‘who need[ed]
to do what.’’ Tharin stated:
Our intent was to provide training for all the foremen
and general foremen. It would explain their responsibil-
ities. Some of the specific areas we wanted them to in-
struct them on was effective communication, cost, pro-
ductivity, and scheduling; how we as a company felt
they should handle their jobs.
Tharin testified she and Dickerson discussed who would
teach what portions of the manual. She said they envisioned
Dickerson teaching 16 of the 32 to 30 total hours of instruc-
tion that would be given to the foremen on the manual.
Tharin said others envisioned to teach portions of the manual
were Company EEO Officer Libby Rushing—teaching the
EEO section; Field Superintendent Jimmy Carter—teaching
the high voltage and high voltage safety portions; Resident
Manager Walton—teaching about the collective-bargaining
agreement, and, she (Tharin)—teaching the portions related
to payroll and timekeeping.
Area Superintendent Tharin testified she also assigned the
training department the task of developing a procedure for
the custody, maintenance, and repair of welding machines.
She said Dickerson had primary responsibility for the project
which was completed in 1989. She stated that in order to
complete this project, Dickerson had to coordinate with the
management personnel of the general contractor, Bechtel, in
order to incorporate its policies and procedures into the
project. She testified he also had to apply and follow guide-
lines issued by DOE in completing the project. The com-
pleted procedure outlines specific responsibilities for super-
intendents, supervisors, and craft employees related to the
custody, maintenance, and repair of 811 welding machines
located at the SRP. The procedure includes forms to be uti-
lized by all employees at the SRP for issuing, relocating, re-
pairing, maintaining, and inspecting welding machines.
Area Superintendent Tharin credibly testified Dickerson
also reviewed various electrical procedures being developed
by other contractors such as Bechtel and Westinghouse for
‘‘technical merit.’’ She said that after Dickerson reviewed
the various draft procedures and made suggested changes,
she forwarded his recommendations to the contractors ‘‘for
them to change [their] procedure[s].’’
It is acknowledged that Company President H. E. Autrey
issued a memorandum dated October 20, to all salaried per-
sonnel. The memorandum stated:
Most of us are aware that nearly all of our super-
visors in the company are, or were, members of the
IBEW. This is something we are extremely proud of.
I feel it advisable, however, to inform you that it is
against company policy for any salaried (non-hourly)
employee to participate in any union activities such as
attending union meetings, participating in elections,
holding union office or serving on union committees
other than those where they are representing manage-
ment, i.e., labor/management or health and welfare, etc.
Please contact me should you have any questions re-
garding the above.
Dickerson testified he received a copy of Autrey’s memo-
randum in his pay envelope on October 24. Dickerson said
he asked Area Superintendent Tharin about the memorandum
but she was unable to enlighten him thereon. Dickerson testi-
fied that thereafter on October 26, Tharin provided him a
copy of a ‘‘Policy Compliance Agreement’’ initiated by
Autrey which she asked him to sign. The compliance agree-
ment pertained to Autrey’s October 20 memorandum. The
compliance agreement reads as follows:
The attached memorandum to ALL MILLER NON-
MANUAL PERSONNEL serves as notification that it is
against Company policy to participate in Union activi-
ties. Please complete this Compliance Agreement as in-
dicated below and return to W. T. Walton, Jr., Resident
Manager, no later than 9:00 a.m., Friday, October 27,
1989.
HAVING READ THE ATTACHED MILLER POL-
ICY, I DO HEREBY SUBMIT THAT: (Indicate by
‘‘X’’ in appropriate block)
I do presently and will continue to comply with this
policy.
I am not in compliance with this policy. I request a
meeting with Miller management to review my options
for compliance.
297MILLER ELECTRIC CO.
14 Thereafter, President Autrey clarified his policy regarding supervisors and
managers being involved in union activity and at a later date rescinded the
policy altogether.
15 Dickerson was rehired by the Company on December 18, at his same rate
of pay but was detailed to the training department of Bechtel pending the out-
come of the instant case.
Will not comply with this policy. I request a meeting
with Miller Management to review my options.
Signature: (Full name) lllllllllllll
Social Security No. llllllllllllll
Date: llllllllllllllllllll
Witness: lllllllllllllllllll
Title: llllllllllll Payroll No. ll14
Dickerson said that although Tharin asked him to sign the
compliance agreement, he refused telling her he was not a
supervisor and as such the policy did not apply to him.
Dickerson said be asked for, and was granted, a meeting with
management. Dickerson met with Resident Manager Walton
and Tharin in Walton’s office on November 2. Dickerson
testified about the meeting as follows:
Basically, they said that the policy did apply to me and
that I could either sign the policy agreement or they
said I could go to work as a quality control inspector
at a substantial cut in pay or I could go to work at ma-
terial take off at a less substantial cut in pay or I could
go back to work with my tools which, of course, would
be a substantial cut in pay.
Dickerson said Walton told him he had to sign the compli-
ance agreement because he was a supervisor. Dickerson
thereafter exercised his option of speaking with President
Autrey. Such a meeting was arranged for and held on No-
vember 7. Those present at the meeting other than Autrey
and Dickerson were Tharin and a representative of Bechtel,
Rich Johansson. According to Dickerson, Autrey told him:
He said that by his interpretation of my job that I had
people that were in my charge when I had the classes.
Therefore, I was a supervisor and the policy would
apply to me.
Dickerson told Autrey he did not think the policy ap-
plied to him because he could not hire or fire nor rec-
ommend the hiring or firing of employees. Dickerson
testified Autrey said he would ‘‘check with his lawyers
to see how they looked at [his] position nnd that he
would get back to me on it.’’ Dickerson met with
Autrey, Resident Manager Walton, and one other indi-
vidual again on November 9. Autrey told Dickerson he
was a supervisor and would have to sign the compli-
ance agreement or if he did not he would be ‘‘busted
back to [his] tools.’’ Dickerson again asserted he was
not a supervisor and Autrey gave him until November
13 to think it over. Dickerson said nothing happened
until December 1, at which time he was called into
Resident Manager Walton’s office and told he would
have to sign the compliance agreement or report to a
specific work area as a journeyman wireman. Dickerson
said he reported to the designated work area the next
workday but was not put to work because he was told
by the supervisor in charge of that area he did not have
a referral from the Union. Thereafter, Dickerson re-
turned to Area Superintendent Tharin’s office where he
was given some draft procedures to look over.
Dickerson said that after an hour of doing so, he was
told by Tharin:
I was being terminated because I was no longer suitable
for my present position. There was no suitable work
available and that I was no longer suitable for a man-
agement position.
Dickerson was terminated that day, December 4.15
C. Analysis, Discussion, and Conclusions
Inasmuch as the ultimate issue of whether the Company
violated the Act turns on whether Dickerson was, at material
times herein, a supervisor or manager for the Company, I
shall set forth certain legal principles applicable thereto.
Generally speaking, supervisors and managerial employees
are excluded from the categories of employees entitled to the
benefits of collective bargaining and other protection af-
forded employees under the Act.
First, it is clear that an individual’s status as ‘‘supervisor
is not determined by the individual’s title or job classifica-
tion but rather is determined by the individual’s functions
and authority. See, e.g., Mack’s Supermarkets, 288 NLRB
1082 (1988).
Section 2(11) of the Act defines a supervisor as follows:
(11) The term ‘‘supervisor’’ means any individual hav-
ing authority, in the interest of the employer, to hire,
transfer, suspend, lay off, recall, promote, discharge, as-
sign, reward, or discipline other eeployees, or respon-
sibly to direct them, or to adjust their grievances, or ef-
fectively recommend such action, if in connection with
the foregoing the exercise of such authority is not of a
merely routine or clerical nature, but requires the use
of independent judgment.
The statutory indicia outlined above in Section 2(11) of the
Act are in the disjunctive and only one need exist to confer
supervisory status on an individual. See, e.g., Opelika Found-
ry, 281 NLRB 897, 899 (1986). However, in order for super-
visory status to exist, the exercise of one or more of the
above-outlined powers must be accomplished with inde-
pendent judgment on behalf of management in other than a
routine or clerical manner. Stated differently, the statute ex-
pressly insists that a supervisor (1) have authority, (2) to use
independent judgment, (3) in performing supervisory func-
tions, (4) in the interest of management. These latter require-
ments are conjunctive. See, e.g., Hydro Conduit Corp., 254
NLRB 433 (1981). The party that alleges supervisory status
has the burden of proving it exists. See, e.g., Commercial
Movers, 240 NLRB 288, 290 (1979). An individual with stat-
utory supervisory authority does not lose that status simply
because it is infrequently exercised and supervision of one
employee is sufficient if one or more of the statutory indicia
of supervisory status is met. Opelika Foundry, supra at 899.
The Board, down through the years, has consistently held
that supervisors may be discharged for union activity.
Parker-Robb Chevrolet, 262 NLRB 402 (1982). In Parker-
Robb, the Board held:
298 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 The Board noted in Parker-Robb, supra, ‘‘The discharge of supervisors
is unlawful when it interferes with the right of employees to exercise their
rights under Section 7 of the Act, as when they give testimony adverse to their
employers’ interest or when they refuse to commit unfair labor practices.’’
The discharge of supervisors as a result of their partici-
pation in union or concerted activity—either by them-
selves or when allied with rank-and-file employees—is
not unlawful for the simple reason that employees, but
not supervisors, have rights protected by the Act.
Notwithstanding the general exclusion of supervisors from
coverage under the Act, the discharge of a supervisor may
violate Section 8(a)(1) in certain circumstances, none of
which are present in the case sub judice.16
Managerial employees are not covered by the Act and are
therefore not entitled to its protection. NLRB v. Bell Aero-
space Co., 416 U.S. 267 (1974). The Board set forth ‘‘the
proper legal standard’’ for determining managerial status in
Simplex Industries, 243 NLRB 111 (1979). The Board in that
case noted:
The Supreme Court and the Board, in determining
managerial status, weigh the facts elicited to determine
whether or not the persons at issue are involved in the
formulation, determination, and effectuation of manage-
ment policies by expressing and making operative the
decisions of their employer, and whether they have dis-
cretion in the performance of their job duties inde-
pendent of their employer’s established policies.
Managerial employees must not only exercise discre-
tion within, or even independently of, established em-
ployer policy, they must also be aligned with manage-
ment. NLRB v. Yeshiva University, 444 U.S. 672
(1980). In that regard, the Supreme Court in Yeshiva
University, noted:
Although the Board has established no firm criteria
for determining when an employee is so aligned, nor-
mally an employee may be excluded as managerial only
if he represents management interests by taking or rec-
ommending discretionary actions that effectively control
or implement employer policy.
The Board in Peter Kiewit Sons’ Co., 106 NLRB 194, 196
(1953), held that ‘‘lecturers’’ who ‘‘plan and present the in-
doctrination program for all employees and the training pro-
gram for all supervisors . . . have interests more closely al-
lied with management than with employees.’’
Counsel for the General Counsel argues persuasively, on
the basis of the evidence, that Dickerson does not qualify as
a supervisor within the meaning of the Act. Although
Dickerson had the title of training supervisor and even as-
cribed that title to himself, such does not establish he was
in fact a supervisor. An examination of the functions he per-
formed and the authority he exercised establishes his status
was other than that of an supervisor. Dickerson was in
charge of the training department which had one employee;
however, it is undisputed he did not supervise that employee
but rather they both reported to Area Superintendent Tharin.
It is also undisputed Dickerson did not have or exercise the
authority to hire or fire employees and there is no showing
he ever effectively recommended such action. It is likewise
undisputed thst Dickerson did not evaluate the performance
of the one employee in the training department. Although
Dickerson had an office with a telephone and was paid in
the supervisory (exempt) zone, such does not establish he
was a supervisor nor does such require a different result than
I have reached herein. It is also undisputed that Dickerson
did not attend any supervisory meetings.
The Company contends Dickerson had and exercised at
least three functions that qualified him as a supervisor. The
Company argues Dickerson responsibly directed employees,
possessed the authority to discipline employees, and had the
ability to reward employees. Close scrutiny of these three
functions as related to Dickerson fails to demonstrate he was
a supervisor. Simply establishing the starting times for class-
es, when breaks would be taken in those classes, and decid-
ing when employees would be released from such classes
does not, in my opinion, constitute responsibly directing em-
ployees within the meaning of the Act. Dickerson’s imme-
diate superior, Area Superintendent Tharin, testified
Dickerson never issued any warnings, reprimands, or em-
ployee evaluations during the time she was his superior. The
fact Dickerson may have been able to ask an unruly class
attendee to leave class does not constitute the type of dis-
ciplinary authority envisioned by the Act to establish one as
a supervisor within the meaning of the Act. Likewise, I do
not find the fact Dickerson could issue certifications to em-
ployees who successfully accomplished certain craft proce-
dures to constitute rewarding employees within the meaning
of the Act. I am persuaded the Company failed to meet its
burden of establishing Dickerson was a supervisor within the
meaning of the Act. Therefore, if Dickerson is to be denied
the protection afforded by the Act, it will have to be because
he, at material times, was a managerial employee.
I am persuaded the Company met its burden of dem-
onstrating that Dickerson was, at material times, a manage-
rial employee and as such was excluded from protection
under the Act.
The record contains numerous indications that Dickerson’s
functions and duties aligned him with management. All as-
pects of work performed by the training department and the
actual training of employees and supervisors came under his
overall responsibility. He served at an executive level as one
of approximately 38 exempt employees of the Company.
Dickerson had overall responsibility for the development of
a foreman’s manual and training course. In preparing the
foreman’s training manual, Dickerson had to pass judgment
on the appropriateness of the various provisions contained in
the manual and what source materials would be used and to
what extent in order to instruct the foremen in the policies
of the Company. The manual is the guide to train foremen
who in turn train or are responsible for the entire work force
of craft employees. It is, as contended by the Company, dif-
ficult to imagine that an individual would not be considered
to be managerial where the individual, as was the case with
Dickerson, develops an extensive manual for the training of
supervisors. Dickerson, if he had continued his employment
with the Company, would have been one of approximately
three or four primary trainers who would have utilized the
manual to instruct foremen in their fundamental responsibil-
ities with respect to discipline, communication, and motiva-
tion. It was envisioned that Dickerson would have taught 16
of the 40 hours of instruction the Company planned to pro-
vide its foremen on their responsibilities. Others designated
299MILLER ELECTRIC CO.
17 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 objec-
tions to them shall be deemed waived for all purposes.
to teach in the foremen’s training program were the resident
manager, the employee relations officer, and a field super-
intendent, all of whom are, without dispute, high-level man-
agers of the Company. As the Board noted in Peter Kiewit
Sons’ Co., supra, those who plan and present the training for
supervisors have interest more closely allied with manage-
ment than with rank-and-file employees. Thus, I am per-
suaded the above facts alone establishes Dickerson as a man-
agerial employee. However, other factors add strongly to that
conclusion.
Dickerson also had, and exercised, overall responsibility
for the development and issuance of a craft procedures man-
ual. That manual deals with various electrical work-related
issues and outlines the responsibilities related thereto for var-
ious levels of supervision as well as manual craft type per-
sonnel. Dickerson, in approving and reviewing the craft pro-
cedures manual, had to make decisions that formulated and
effectuated the Company’s policies related to craft proce-
dures. Such further establishes Dickerson as a managerial
employee. His actions both with respect to the foreman’s
manual and craft procedures manual implemented Company
policy.
In developing a written procedure related to the custody
maintenance and repair of welding machines, Dickerson
again had to make independent decisions that effectuated and
implemented company policies. The procedures established
by Dickerson were to be, and are, followed by all supervisors
and craft employees of all contractors performing work at the
SRP.
Dickerson was paid at a level designated for higher man-
agement. He accrued compensatory time and was subject to
bonuses keyed to cost effectiveness and production goals as
were other high level managers.
Accordingly, and for all the above reasons, I conclude
Dickerson, at material times herein, was a managerial em-
ployee excluded from the protection of the Act. Inasmuch as
Dickerson was, at material times, a manngerial employee, I
find the Company did not violate the Act by the actions it
took against him. Accordingly, I shall recommend the com-
plaint be dismissed in its entirety.
CONCLUSIONS OF LAW
1. Miller Electric Company is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Arthur D. Dickerson, at material times herein, did not
function as a supervisor for the Company within the meaning
of Section 2(11) of the Act.
4. Dickerson, at material times, did serve the Company as
a managerial employee.
5. The Company has not engaged in the unfair labor prac-
tices alleged in the complaint.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended17
ORDER
The complaint is dismissed in its entirety.