MJ Metal Products

National Labor Relations Board - Board Decisions

Nov 21, 1997

325 N.L.R.B. 240 (N.L.R.B. 1997)

240
325 NLRB No. 22
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Regional Director found that two of the three coor-
dinator/supervisors have evaluated employees. The assistant
coordinator/supervisor has not evaluated any employees.
2 The Employer contends that the Regional Director erred in find-
ing that Johnston did not follow the recommendation of coordinator
Newcombe in deciding to cut an employee’s overtime pay. The Em-
ployer cites Newcombe’s testimony that he had recommended
‘‘something be done,’’ arguing that this shows that Johnston fol-
lowed Newcombe’s recommendation. We agree with the Regional
Director that this does not establish Newcombe’s authority in effec-
tively recommending discipline, as Newcombe never made a specific
recommendation. The Employer provides no explanation as to how
the decision to cut the employee’s pay was made.
MJ Metal Products, Inc. and Sheet Metal Workers
International Association, Local 207, Petitioner.
Case 27–RC–7813
November 21, 1997
ORDER DENYING REVIEW
BY CHAIRMAN GOULD AND MEMBERS FOX AND
LIEBMAN
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel, which has considered the Employer’s request for
review of the Regional Director’s Decision and Direc-
tion of Election (relevant portions are attached as an
appendix). The request for review is denied as it raises
no substantial issues warranting review.
In denying review, we reject the Employer’s argu-
ment that, inter alia, the coordinator/supervisors are
2(11) supervisors, because they have the authority to
evaluate and discipline the production employees.
While it is true that coordinator/supervisors fill out
evaluation forms for production employees,1 the Re-
gional Director found that management independently
reviews these evaluations. Indeed, the Regional Direc-
tor found that Manager Dykes has changed evaluation
items with which he disagrees. Furthermore, there is
no evidence indicating what effect these evaluations
have on the production employees’ wage rates as the
Employer’s president, Johnston, makes this determina-
tion independently and communicates it to the employ-
ees. See Northcrest Nursing Home, 313 NLRB 491,
498 fns. 36 and 37 (1993). Similarly, the Regional Di-
rector found, and the Employer does not contest,2 that
while coordinator/supervisors have recommended dis-
cipline of production employees, management performs
its own investigation and does not necessarily follow
the coordinator/supervisors’ recommendations. As
such, the Employer has failed to show that
coordinator/supervisors’ authority rises above the abil-
ity merely to report employee problems to higher man-
agement. This ability, without more, is insufficient to
confer supervisory status. Passavant Health Center,
284 NLRB 887, 892 (1987).
APPENDIX
DECISION AND DIRECTION OF ELECTION
The Employer, MJ Metal Products, Inc., is engaged in the
fabrication and installation of metal products at its facility in
Casper, Wyoming. The parties stipulated at the hearing that
the unit appropriate for collective bargaining (the unit)
should include all full-time and part-time production employ-
ees engaged in the fabrication, assembly, shipping and re-
ceiving, and installation of products produced at the Employ-
er’s Casper, Wyoming facility; and exclude all other employ-
ees, office clerical employees, professional employees,
guards, and supervisors as defined in the Act. The parties
also stipulated that shop-helper/draftsman, Celeste J. John-
ston, is ineligible to vote in the directed election, because she
is the daughter of the sole shareholders of the Employer’s
corporation. That stipulation being supported in the record, I
find that Celeste J. Johnston is ineligible to vote. Bridgeton
Transit, 123 NLRB 1196 (1959).
The sole issue to be determined herein is whether
Coordinator/Supervisors Dan Ashley, Bardo (Bart) Miller,
Leslie Jay Newcomb, and Assistant Coordinator/Supervisor
Brian Johnson are statutory supervisors as contended by the
Employer. (Hereinafter, these individuals shall be referred to
as coordinators.)
The owner, president, and general manager of the Em-
ployer is Mark P. Johnston. Reporting to him are Estimator
Eric Riesberg, Office Manager Novella Marvel, and Produc-
tion Manager John Dykes. The parties stipulated, the record
supports and, accordingly, I find that these individuals are
managerial and should be excluded from the unit.
. . . .
The nine unit employees work on three teams. The teams
work on staggered shifts to provide maximum coverage for
shipping and receiving. This team concept was established in
1995, after the Employer hired a consultant to organize the
operation. The various job titles of the mangers and coordi-
nators were established at that time also.
Team one works from 6 a.m. to 2:30 p.m. and its three
employees are overseen by Coordinator Dan Ashley. Team
one is responsible for the shearing, layout, and punching op-
erations. Specifically, they take the flat metal sheets, shear
them to size, and machine punch the necessary holes. They
then deburr the parts and place them in bins for the next
phase of production.
Team two is overseen by Coordinator Jay Newcomb.
Newcomb and three additional employees work from 8 a.m.
to 4:30 p.m. Team two employees assemble the flat parts and
spot weld to form the particular product. After the product
is welded, it goes to Brian Johnson, the assistant coordinator,
who works 10 a.m. to 6:30 p.m. Johnson, who also reports
directly to Newcombe, polishes the products which are sold
unpainted to the customers. Johnson also is in charge of crat-
ing the product for shipping and arranges transportation.
Johnson occasionally requests that Newcombe assign an em-
ployee to assist him, but Johnson normally performs his du-
ties alone.
Team three, overseen by Coordinator Bart Miller, works
from 10 a.m. to 6:30 p.m. Miller and his three employees are
responsible for the assembly of ovens and refrigerators man-
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241MJ METAL PRODUCTS
ufactured by the Employer. Team three employees assemble
the products with nuts and bolts and wire them for elec-
tricity.
. . . .
All employees, including those in classifications excluded
from the unit, enjoy the same fringe benefits including vaca-
tions and health insurance. There is no dress code or uniform
policy for any employee. The only nonsalaried employees are
the office clerical employees, unit employees, and coordina-
tors. Nonsalaried employees record their time worked on an
electronic timecard system. The unit employees’ wages range
from $5.50 to $8 per hour. Ashley earns $612, Newcombe
$11.75, and Miller and Johnson earn $9.25 per hour. It is un-
disputed that the four coordinators do not have the authority
to hire, fire, or discipline employees. The coordinators do not
attend the regularly scheduled managerial meetings at which
the production schedules are established. While coordinators
can recommend discipline of employees, General Manager
Johnston independently investigates all such recommenda-
tions before finalizing any decision regarding discipline. In
this regard, the record reflects that Ashley and Newcombe
have each recommended the discipline of different employ-
ees. Johnston ultimately did not take any action on Ashley’s
recommendation. With regard to Newcombe’s recommenda-
tion, Johnston did not discipline the employee other than to
cut the employee’s overtime, which had not been a rec-
ommendation made by Newcombe. All requests for vacation
and time off must also be made directly to Johnston.
In 1995, the Employer implemented an annual employee
evaluation system at the direction of the consultant. As a re-
sult, Coordinator Newcombe has filled out evaluation forms
on a number of employees. Ashley has filled out an evalua-
tion on one employee. Miller and Johnson have not evaluated
any employees.
. . . .
These forms are then submitted to Dykes, who can and does
change the evaluation items he disagrees with. Dykes then
meets with Johnston to discuss the evaluation. The coordina-
tor is not present at this meeting. Johnston later meets with
the employee being evaluated and makes independent deter-
minations as to the effect the evaluation will have on the em-
ployee’s wage rate.
Ashley, Newcombe, and Miller receive production sched-
ules several times a week directly from Johnston. They are
responsible for seeing that the schedule is met. If there are
problems with the schedule, they discuss it with either Pro-
duction Manager Dykes or Johnston. They do not, however,
have the authority to change the priority of the scheduled
production. While Dykes meets frequently with the individ-
ual coordinators to discuss production, these meetings are not
prescheduled and generally occur on the production floor.
These meetings also are strictly to discuss production prob-
lems, not employee grievances or terms and conditions of
employment. The coordinators assess the scheduled produc-
tion at the start of their respective shifts and assign their
team employees to machines or tasks at the start of the shift
to fulfill the production requirements. Coordinators do the
same thing when the employees return from lunch. With re-
gard to the assignment of work to the team employees, the
evidence establishes that these assignments to various ma-
chines and tasks are based solely on the training and skill
level of the person being assigned in conjunction with the
production schedule, leaving little room for discretion on the
part of the coordinator. The coordinators can trade employees
among the teams
. . . .
for specific production runs without seeking authorization
from Dykes or Johnston. However, the selection of the em-
ployee being lent to another team is based on which em-
ployee possesses the skill to run the equipment or perform
the needed task and can be spared, again leaving little room
for discretion. Ashley testified that he spends about 70 per-
cent of his time working with tools. This is, in part, because
he currently has three new employees on his team so he is
involved in training these new employees. Newcombe testi-
fied that he spends about 80 percent of his time working
with tools, and Miller and Johnson both spend over 95 per-
cent of their time working with tools. The time not spent
working with tools involves the meetings with Dykes and
Johnston referred to above, reviewing the production sched-
ule, observing the progress and quality of the actual produc-
tion runs and cross-training employees.
Notwithstanding the above, the Employer contends that the
four coordinators exercise independent judgment in directing
the work of the employees on their respective teams and, ac-
cordingly, are supervisors within the meaning of Section
2(11) of the Act. I find that the record before me does not
support a finding that these four are statutory supervisors for
the following reasons:
The Board has long held that the title ‘‘supervisor’’ is not
dispositive of supervisory status. Waterbed World, 286
NLRB 426 (1987). To support a finding of supervisory status
an individual must possess one or more of the indicia set
forth in Section 2(11) of the Act. The statutory criteria are
read in the disjunctive and possession of any one of the indi-
cia listed is sufficient to make an individual a supervisor.
Providence Hospital, 320 NLRB 717 (1996). An
. . . .
individual possessing 2(11) supervisory indicia must exercise
that authority in a manner which is not merely routine or
clerical in nature and only individuals with genuine manage-
ment prerogatives are to be considered supervisors as op-
posed to leadmen and other minor supervisory employees.
Azusa Ranch Market, 321 NLRB 811 (1996), citing Chicago
Metallic Corp., 273 NLRB 1677 (1985). Further, the burden
of proving that an individual is a supervisor is on the party
alleging such status. California Beverage Co., 283 NLRB
328 (1987).
Applying these principles to the facts of this case, I find
on the record before me that the Employer has failed to es-
tablish that coordinators perform their team coordinator du-
ties in a manner which is not merely routine or perfunctory
in nature. While the Employer contends that the four coordi-
nators assign and direct the work of their team employees,
such direction is incidental to their level of experience and
length of time working for the Employer. The record does
not establish that they exercise independent judgment in
making such assignments. Moreover, any deviations from the
production schedule established by Johnston must be ap-
proved by him. Finally, although supervisor/employee ratios
are not dispositive in establishing supervisory status, I note
that to find the four coordinators to be statutory supervisors
would result in a ratio of about two employees for each su-
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242 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
pervisor. Based on the above, I find that there is insufficient
evidence that the coordinators possess sufficient indicia of
supervisory status set forth in Section 2(11) and, accordingly,
I shall include them in the unit.
. . . .
There are approximately 13 employees in the unit found
appropriate.
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