Power Piping Co.

National Labor Relations Board - Board Decisions

Oct 31, 1988

291 N.L.R.B. 494 (N.L.R.B. 1988)

494 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Power Piping Company and Larry Jones Case 10-
CA-21042
October 31 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND HIGGINS
On March 31 1986 Administrative Law Judge
William N Cates issued the attached decision The
Respondent filed exceptions and a supporting brief
The National Labor Relations Board has delegat
ed 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 brief and has
decided to affirm the judge s rulings findings 1 and
conclusions only to the extent consistent with this
Decision and Order
The judge found that the Respondent interfered
with the administration of the Union in violation of
Section 8(a)(2) and (1) of the Act by permitting its
high level supervisors to vote in an internal
union election For the reasons set forth below we
disagree
A Facts
The Respondent is a subcontractor on Georgia
Power Company s Plant Scherer construction
project located in Juliette Georgia where it is en
gaged in mechanical contracting and piping instal
lation The Respondent commenced its work at
Plant Scherer in the summer of 1978 and is expect
ed to complete its contractual obligation on the
project in the fall of 1989 While not a signatory
the Respondent agreed to be bound by the terms
and conditions of the collective bargaining agree
ment between the Union and the Association of
Mechanical Contractors of Atlanta Inc for work
performed on the Plant Scherer project The con
tract was effective from August 1 1984 to July 31
1986
The Respondents supervisory hierarchy in de
scending order comprises the site superintendent,
chief engineer general foremen and foremen Su
perintendent David Hodgin is and has been the Re
spondent s most senior representative at Plant
Scherer since its inception and reports directly to
the chairman of the board Bill Deluca is the Re
I The Respondent has excepted to some of the judge s credibility find
rags The Board s established policy is not to overrule an administrative
law judge s credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
spondent s chief engineer and second in command
at the construction site
Pursuant to an exclusive hiring hall arrangement
with the Union Hodgin requested the referral of
skilled pipefitters to work on the project On
March 12 1979 Gerald Brazeal was the first
person referred by the Union to the Respondent
and the Respondent hired Brazeal as the first gen
eral foreman for the Plant Scherer jobsite 2 Since
the project began in 1978 the Union has referred
more than 2000 individuals to the Respondent
With the exception of Brazeal all other employ
ees were referred from the Union as journeymen
and some were later promoted to foremen and
some to general foremen When their job assign
ments were completed at the Plant Scherer site the
employees have either reverted back to journey
man status or their employment with the Respond
ent has been terminated
The Respondents employee complement3 has
varied from time to time and the Respondent has
found it necessary to employ as many as three su
perintendents 4 in addition to Hodgin at the site to
supervise a particular area of construction During
this time while there were additional superintend
ents on the project the general foremen reported
directly to the superintendent assigned to their spe
cial area The maximum number of general fore
men on the project at any one time was five The
collective bargaining agreement provided that
there was to be at least I foreman for approximate
ly every 10 journeymen 5 and that there would be
at least 1 general foreman on each project
Since 1978 there have been 12 general foremen
employed by the Respondent at one time or an
other In December 1984 in addition to Brazeal
the Respondent employed Ronald Gerald Ronnie
Yates and Fred Berger as general foremen Gerald
was initially referred to the Respondent on May
10 1979 and was promoted to the position of gen
eral foreman in 1981 Yates was referred to the Re
spondent on September 9, 1979, and Berger on
August 6 1979 Both were promoted and have
been general foremen since 1982
The parties stipulated that at all material times
Brazeal Gerald and Yates have been supervisors
within the meaning of Section 2(11) of the Act
The classifications of general foreman and foreman
are included in the bargaining unit, and the wage
2 The judge found that Brazeal was head general foreman
a The Respondents work force in mid 1981 peaked at between 392 and
425 employees In December 1984 there were 130 employees
4 The additional superintendents were Emery Nichols James Woods
and Howard Morns
The parties stipulated that this ratio may vary from time to time
291 NLRB No 80
POWER PIPING CO
rates6 and benefits7 for these classifications are
provided for in the collective bargaining agree
ment The wages and benefits of the superintend
ents are set by the Respondent 8
On December 28 1984 the Union conducted an
internal election It is undisputed that Brazeal
Gerald and Yates all of whom were members of
the Union voted in the internal union election It is
further undisputed that Brazeal Gerald and Yates
have never held any union office nor were they
candidates for any position in the 1984 internal
union election
Contentions of the Parties
The General Counsel contends that Brazeal
Gerald and Yates are high level supervisors and
that their mere act of voting in the internal union
election constituted unlawful interference with the
administration of the Union in violation of Section
8(a)(2) of the Act The Respondents contention is
twofold First, it contends that under the test as set
forth in Nassau & Suffolk Contractors Assn, 118
NLRB 174 (1957) and its progeny, Brazeal
Gerald and Yates are not high level supervisors
Second, it contends that even if they are found to
be high level supervisors the mere act of voting
in the internal union election cannot be attributed
to the Respondent and cannot as a matter of law,
constitute a violation of the Act
Based on his finding that Brazeal Gerald, and
Yates are high level supervisors who voted in
the internal union election the judge concluded
that the Respondent interfered with the administra
tion of the Union and thereby violated Section
8(a)(2) and (1) of the Act Relying on Nassau and
Three Hundred South Grand Co 257 NLRB 1397
(1981), the judge concluded that a violation of
the Act occurs when high level supervisors
vote in an internal union election There is no re
quirement that the company have knowledge that
their high level supervisors voted or that their ac
tions be authorized or ratified in order to constitute
a violation of the Act
Analysis and Conclusions
The seminal Board decision involving the issue
of whether and under what circumstances an em
ployer violates Section 8(a)(2) of the Act by its su
pervisors participation in internal union affairs is
Nassau & Suffolk Contractors Assn supra In that
The contractual wage rates are as follows ,journeymen-$14 90 per
hour foremen-$15 90 per hour general foremen-$16 55 per hour Bra
zeal received $I per hour more than the general foremen rate
r Brazeal Yates and Gerald receive holiday pay from the Respondent
which is not provided for in the collective bargaining agreement
8 Hodgin s salary is $72 000 per year The additional superintendents
were paid $60 000 annually
495
case the Board found that the voting by master me
chamcs at union membership meetings did not con
stitute unlawful interference with the administra
tion of the union In reaching this conclusion the
Board examined numerous factors
The master mechanics who were found to be su
pervisors within the meaning of the Act were
members of the union were included in the unit
and were covered by the collective bargaining
agreement which provided that [e]mployment of
Master Mechanics is to be governed by agreement
and they shall be members of this Local Union
They may accept such employment only with the
consent of this Local Union The Board noted
that some master mechanics shifted from job to job
with the same employer or with different employ
ers and that as a result of these shifts the master
mechanics at times worked as nonsupervisory jour
neymen
The Board recognized that in this situation par
ticularly in the construction industry and building
trades unions where foremen possess supervisory
powers while at the same time remaining subject to
union rules and discipline, the master mechanics
owe allegiance at least as much to the Union as to
their employers They are agents of both
Accordingly the Board concluded
Where foremen are members of the rank
and file unit and union it is reasonable to
expect that they will have a voice and vote in
the administration of the affairs of the union It
is obvious that in a setting where foremen are
included in bargaining units together with the
rank and file some modification of the ordi
nary rules of respondant superior must be made
We have been told that acts of supervisory
officials are not to be viewed in vacuo Instead
they are to be taken in their setting In other
words the responsibility of an employer for
the conduct of a supervisor cannot be ascer
tained by mathematical formulas Rather it is
the circumstances which determine the liabil
ity
118 NLRB at 181-182 (fns omitted)
Examining the circumstances of this case, the
Board found that it was totally unrealistic to at
tribute automatic responsibility to the respondent
for the intraunion conduct of the master mechanics
in their union Rather the Board stated that the re
spondent would be liable only if it could be shown
that the respondent encouraged authorized or
ratified the activities of the master mechanics or
acted in such manner as to lead employees reason
ably to believe that the master mechanics were
496 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
acting for and on behalf of management As there
was not a scintilla of evidence that could support
a finding to that effect the Board found under
the circumstances that the respondent did not un
lawfully interfere with the administration of the
union by the participation of the master mechanics
in union elections
The Board also found however that the re
spondent was liable for the voting of certain com
pany executives and high ranking supervisors who
were not included in the bargaining unit Although
finding their membership in the union not to be un
lawful the Board concluded that an 8(a)(2) finding
was warranted since [i]t is quite conceivable that
in a closely divided vote executive and high ranked
supervisors would have the balance of power and
be in a position to select the union officials who are
to deal with them in their separate capacity as em
ployer agents 118 NLRB at 184
Similarly the Board found that the participation
of two master mechanics in bargaining negotiations
on behalf of the union constituted unlawful inter
ference Because of the divided loyalty and inter
ests presented by the master mechanics who were
both unit and union members as well as supervi
sors the Board concluded that the respondent was
under a duty when confronted with a union nego
tiating committee that included its own agents to
protest its composition and to refuse to deal with
it By failing to do so the Board found that the re
spondent violated Section 8(a)(2)
In subsequent decisions the Board has generally
found no violation when supervisors who are in
eluded in the bargaining unit vote in internal union
elections or hold union offices 9 Conversely the
Board has generally found a violation of Section
8(a)(2) when supervisors not included in the unit
participate in internal union affairs i 0
Certain Board decisions however deviate from
these general rules In Anchorage Businessmen s
Assn 124 NLRB 662 (1959) certain of the phar
macist supervisors who were included in the bar
gaining unit were instrumental in withdrawing
from the union that had represented them and
forming a new independent union Certain of these
supervisors voted in internal union elections of the
independent union and served as the independent s
officers and as members of the independents nego
tiating committee The Board found that by acqui
9 Geihch Tanning Co 122 NLRB 1119 (1959) National Gypsum Co
139 NLRB 916 (1962) Banner Yarn Dyeing Corp 139 NLRB 1018
(1962) Beach Electric Co 174 NLRB 210 (1969) Allied Chemical Corp
175 NLRB 974 (1969)
10 Detroit Assn of Plumbing Contractors 126 NLRB 1381 (1960) enfd
in part 287 F 2d 354 (D C Or 1961) decision on remand 132 NLRB 658
(1961) Botifteld Refractories Co 127 NLRB 188 (1960) Geihch Tanning
Co 128 NLRB 501 (1960) Employing Bricklayers Assn 134 NLRB 1535
(1961)
escing in this conduct of its supervisors the Re
spondent violated Section 8(a)(2) As to the viola
tion with regard to voting in internal union elec
tions the Board in a footnote stated that two of
the pharmacist supervisors were supervisors with
managerial functions
In National Gypsum Co 139 NLRB 916 (1962)
the trial examiner in reaching his decision to dis
miss the complaint concluded that the Board in its
Anchorage decision did not intend to modify the
Nassau decision Rather he reconciled the deci
sions by noting that the supervisors in the Anchor
age case were higher level supervisors having
managerial functions as the Board pointed out
[and] that the supervisors in question were
active in setting up a brand new union which natu
rally did not have a long history of independence
of the employers as was the case in Nassau 139
NLRB at 921 The Board specifically endorsed this
interpretation of these cases in Banner Yarn Dyeing
Corp 139 NLRB 1018 1019 fn 1 (1962)
Subsequent decisions interpreted the Board s
Banner Yarn decision to mean that the matter of
whether supervisors were or were not included in
the bargaining unit no longer affected the determi
nation whether an employer was to be held liable
for supervisory voting in internal union elections
Rather in these decisions the controlling factor
became whether the supervisors involved were
high level or low level supervisors Thus in A L
Mechhng Barge Lines 197 NLRB 592 597 (1972)
the trial examiner found no violation where low
level supervisors in a separate bargaining unit from
the rank and file employees voted in a union elec
tion In Schwenk Inc 229 NLRB 640 (1977) with
out any mention of whether the supervisors were
in the bargaining unit or not the Board found an
8(a)(2) violation based on the voting by two man
agerial and high level supervisors in internal union
elections And in Three Hundred South Grand Co
supra in which the administrative law judge con
cluded that it was immaterial whether the supervi
sor was a high or low level supervisor because the
supervisors grievance handling for the union rep
resented an actual conflict of interest in violation of
Section 8(a)(2) the Board in adopting the judge s
finding noted that the supervisor was a high level
supervisor and voted in an intraunion election
for steward 257 NLRB at 1397 fn 1
As can be readily observed from the foregoing
discussion of cases the inquiry in these cases has
shifted from a complete examination of all the fac
tors present as set forth in Nassau to a review re
stricted to a determination of whether the supervi
sor in question is high level or low level We reject
such a limited analysis As the Board made clear in
POWER PIPING CO 497
Nassau because supervisors who are union mem
bets can be expected to owe allegiance at least as
much to the Union as to their employers it
cannot automatically be assumed that their state
ments or actions as to intraunion matters represent
the view and interests of their employers 118
NLRB at 182 The assumption is of even more
doubtful validity when the supervisors are mem
bets of the bargaining unit with an interest in the
contractual conditions their union negotiates for
them and it can hardly be assumed that this alle
giance to the union loses all force simply because a
supervisor is high level rather than low level
Thus an employer is properly held liable for the
strictly intraunion conduct of its supervisors only if
it is clear on the basis of an examination of all the
circumstances that the employer encouraged au
thonzed or ratified the supervisory activities or
acted in such manner as to lead employees reason
ably to believe that the supervisors were acting
for and on behalf of management Nassau supra
118 NLRB at 183
No one factor can determine this issue As seen
in Nassau itself the Board found that the respond
ent was not responsible for the voting of the master
mechanics but was responsible for their participa
tion on the union s negotiating team and the voting
of other supervisors not included in the unit and of
some executives
In sum we reaffirm the analysis set forth in the
Board s Nassau decision and will examine all the
circumstances presented in a case to determine if a
respondent has unlawfully interfered with the ad
ministration of a union through its supervisors par
ticipation in intraunion affairs We emphasize that
this analysis must be conducted on a case by case
basis We expressly abandon any attempt to limit
this analysis by assigning controlling weight to any
one factor 11 We agree with the Court of Appeals
for the District of Columbia Circuit that the fol
lowing considerations although not intended to be
all inclusive will generally serve as a guide in de
termining the lawfulness or unlawfulness of the su
pervisory participation in internal union affairs
(1) The nature of the supervisory position
how completely the responsibilites of the par
ticular position identify the holder of the posi
tion with management Careful reference
should be made to § 2(11) bearing in mind
that the definition therein contained was not
intended to include straw bosses and lead
men Such consideration is necessary because
of the infinite possible variations in responsibil
ities enumerated in § 2(11)
(2) Apparent permanence of the supervisory
position how long the position has been held
how high it is in the company s hierarchy of
supervisors This is important because the
degree of possibility of the employees being
hired later as a journeyman should have a
direct bearing on his immediate right to par
ticipate in union affairs
(3) The extent to which his position is prop
erly included in or excluded from the bargain
ing unit
Plumbers Local 636 v NLRB (Detroit Plumbing
Contractors) 287 F 2d 354 362 (D C Cir 1961)
With respect to the instant case the judge gave
controlling weight to his conclusion that Brazeal
Yates and Gerald were high level supervisors
Having reached this conclusion he found without
further discussion that the Respondent violated
Section 8(a)(2) by their voting in the December 28
1984 internal union election Examining all the fac
tors present in this case we disagree with the
judge and reverse his finding In addition to these
factors we will also examine the nature of the su
pervisor s alleged participation in mtraunion affairs
in determining whether unlawful interference
exists
As found by the judge Brazeal is head general
foreman and reports directly to David Hodgin the
site superintendent and the highest official of the
Respondent at the Plant Scherer construction
site 12 As head general foreman Brazeal attends
the project engineers meetings and then with the
chief engineer and Hodgin meets with the general
foreman to explain what work needs to be done
Brazeal can call meetings with the general foremen
on his own initiative and has conducted such meet
ings without Hodgin Brazeal distributes assign
ments to the general foremen directs their work
and assigns them additional work when their as
signments are completed
Brazeal recommends to Hodgin candidates for
general foremen and informs the successful candi
dates of their selection According to his testimony
he has the authority to discharge general foremen
but would do so only after consultation with
Hodgin Brazeal also has the authority to approve
recommendations from either the general foremen
or foremen to fire journeymen and he participates
as the Respondents representative in the first step
of the grievance procedure In addition only Bra
zeal and Hodgin have authority to contact the
Union for referrals
2 Contrary to the judge s statement in his decision that Brazeal s office
was located in the building with the engineers the record reveals that his
" To the extent prior cases are inconsistent they are overruled office is located in a trailer in front of the warehouse
498 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Balanced against these supervisory and manage
nal functions are the facts that Brazeal is a member
of the Union included in the bargaining unit and
covered by the collective bargaining agreement to
which the Respondent is signatory In addition
Brazeal receives only $1 per hour more than the
general foremen and considerably less than
Hodgin who makes $72 000 per year and the other
superintendents who made $60 000 per year Al
though Brazeal has held his present position since
1979 and the project is likely to continue until
1989 it is undisputed that Brazeal will return to the
Union for referral as a journeyman when the
project ends
Under these circumstances we do not find that
by voting in an internal union election on Decem
ber 28 1984 Brazeal acted in such manner as to
lead employees reasonably to believe that he was
acting for and on behalf of management Nassau
supra 118 NLRB at 182-18313 Rather as the
Board noted in Nassau we find it reasonable to
expect that Brazeal as a member of the Union and
unit whose wages and benefits were tied to the col
lective bargaining agreement would cast his vote
in the election conducted by his union and that em
ployees would perceive his participation in the
election as a result of his union and unit member
ship, not his role as management official We do
not view Brazeal as exercising sufficient managerial
functions to warrant a finding that the Respondent
has interfered with the administration of the Union
by virtue of his merely voting in an internal union
election In this regard we note that as head gener
al foreman Brazeal serves as a conduit between
Hodgin and the engineers on the one hand and the
general foremen on the other, and that his duties in
large part are dictated by decisions made by
Hodgin and the engineers which Brazeal in turn
effectuates Accordingly under the totality of the
circumstances we do not find an 8(a)(2) violation
with respect to Brazeal s voting and we dismiss
this complaint allegation
Similarly we do not find unlawful the voting by
Gerald and Yates in the internal union election
Both Gerald and Yates are general foremen who
supervise three foremen each of whom in turn su
pervises approximately 10 employees As general
foremen they lay out the pipes in the way they
want them to be installed assign work to the fore
men assure that supplies, equipment and materials
are available to their foremen coordinate between
the project engineer and Brazeal on materials and
13 The General Counsel does not argue nor does the record support
that the Respondent in any way encouraged authorized or ratified
Brazeal s conduct-the alternative basis articulated by the Board in
Nassau for finding an 8(a)(2) violation
drawings discipline employees including dis
charge answer questions for and resolve problems
of foremen and make recommendations for fore
men positions Gerald has been a general foremen
since 1981 and Yates since 1982
As to their ties to the Union both Gerald and
Yates are union members were referred to the Re
spondent by the Union as journeymen and both
will return to the Union for referral as journeymen
when the Plant Scherer project ends The classifi
cation of general foreman is included in the bar
gaining unit, and their wages and benefits are set
by the collective bargaining agreement
Under these circumstances as with Brazeal we
cannot conclude that their mere act of voting in
the December 28 1984 internal union election is at
tnbutable to the Respondent Again there is no al
legation that the Respondent encouraged author
ized or ratified their conduct Further given their
referral from the Union and their eventual return
to it for another referral as journeymen as well as
their inclusion in the unit coverage by the collec
tive bargaining agreement and exercise of relative
ly little managerial functions we do not find that
their voting could reasonably lead employees to be
lieve that they were acting for and on behalf of
management For these reasons we find that the
Respondent has not violated the Act and we dis
miss the complaint in its entirety
ORDER
The complaint is dismissed
Sharon Effatt Howard Esq for the General Counsel
Heather Briggs Esq of Atlanta Georgia for the Re
spondent
DECISION
STATEMENT OF THE CASE
WILLIAM N CATES Administrative Law Judge This
case was tried at Macon Morrow and Atlanta Georgia
on 29 and 30 October 1985 1 The charge was filed by
Larry Jones an individual on 24 June and the complaint
issued on 16 August alleging that Power Piping Compa
ny (the Company) violated Section 8(a)(2) and (1) of the
National Labor Relations Act (the Act) by interfering
with the administration of United Association of Plumb
ers and Steamfitters Local Union 72 (the Union) by per
mitting its supervisors Gerald D Brazeal (Brazeal)
Ronnie Yates (Yates) and Ronald Gerald (Gerald) to
vote on 28 December 1984 in an internal union election
The parties stipulated that Brazeal Yates and Gerald are
supervisors within the meaning of Section 2(11) of the
Act therefore the issues presented are whether the three
are high level supervisors and whether their voting in
' All dates are in 1985 unless otherwise indicated
POWER PIPING CO
the internal election of the Union constituted interference
with the administration of the Union I find for the Gen
eral Counsel on both issues
On the entire record including my observation of the
demeanor of the witnesses and after consideration of
briefs filed by the General Counsel and Company I
make the following
FINDINGS OF FACT
I JURISDICTION
The Company is a Pennsylvania corporation with an
office and place of business located at Juliette Georgia
where it is engaged in mechanical contracting and piping
installation During the calendar year preceding issuance
of the complaint the Company purchased and received
at its Juliette Georgia facility materials and supplies
valued in excess of $50 000 directly from suppliers locat
ed outside the State of Georgia The complaint alleges
the Company by its answer admits and I find it is an em
ployer engaged in commerce within the meaning of Sec
tion 2(2) (6) and (7) of the Act
II THE LABOR ORGANIZATION INVOLVED
The complaint further alleges the Company admits
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 Background and Undisputed Facts
The facts in the instant case are for the greater part
not in dispute 2
At all times material the Company has agreed to be
hound by the terms and conditions of a collective bar
gaining agreement between the Union and the Associa
tion of Mechanical Contractors of Atlanta Inc for
work performed by it as a contractor on Georgia Power
Company s Plant Scherer project located at Juliette
Georgia 3 Georgia Power Company is constructing a
fossil fuel facility to generate electricity and the Compa
ny s contract with Georgia Power calls for it to perform
all piping installation which includes rigid turbine out
door and heavy wall piping The Company commenced
work at Plant Scherer in mid 1978 and expects to corn
plete its part of the project in approximately 1989 The
working area for the project originally covered 5 miles
but currently is confined to approximately 300 acres The
Company s first representative at the Plant Scherer site
was Superintendent David Hodgin (Hodgin) Hodgin is
and has been the Company s senior most representative
at the construction site 4 He reports directly to the Corn
pany s chairman of the board The Company s chief engi
neer Bill Deluca is the second in command at the job
site The Company s hierarchy of supervisors in descend
2I shall address certain facts related to the three supervisors specific
duties and responsibilities in the Analysis and Conclusions section of this
decision
2 The collective bargaining agreement is effective from 1 August 1984
to 31 July 1986
1 Hodgin s pay is $72 000 per year
499
mg order is the site superintendent chief engineer gener
al foreman and foreman 5 In addition to Hodgin the
Company has had as many as three additional superin
tendents working at the site depending it appears on the
number of employees on the work force 6 The three su
perintendents other than Hodgin were Emery Nichols
(Nichols) James Woods (Woods) and Howard Morris
(Morris) 7 These three superintendents who were not re
ferred to the Company by the Union reported directly
to Hodgin Superintendent Woods came on the project
in 1980 and was terminated on I1 December 1981 Su
perintendent Morris came to the project in June 1980
and was transferred to another company project in Pitts
burgh Pennsylvania on 29 January 1982 Superintendent
Nichols the first additional superintendent at the project
came in 1979 and was thereafter transferred to another
company project in Tampa Florida on 13 May 1983
After Nichols was transferred out Hodgin has been the
only superintendent on the project Although there were
additional superintendents on the project the general
foremen reported to the superintendent assigned to their
particular area The maximum number of general fore
men on the project at any one time was five It appears
the Company has had 12 different individuals serve as
general foremen at one time or another since 1979 8 Bra
zeal was the first general foreman hired by the Compa
ny 9 He was also the first person the Union referred to
the Company All who served as general foremen except
Brazeal were referred from the union hall as journeymen
and were thereafter promoted to foremen and/or general
foremen positions Since the project began the Union
has referred approximately 2000 individuals to the Com
pany 10 At the present time there are three general fore
men in addition to Brazeal The three are Gerald Yates
and Burger Gerald was referred to the Company on 10
May 1979 as a journeyman He was made a general fore
man in 1981 and has since that time occupied that pose
tion Yates was referred to the Company as a journey
man on 4 September 1979 and has at all times since 1982
served as a general foreman Burger was referred to the
Company as a journeyman on 6 August 1979 and has at
all times since 1982 been a general foreman The parties
stipulated that at all times material Brazeal Gerald and
Yates have been supervisors within the meaning of Sec
tion 2(11) of the Act All wage rates for general foremen
and foremen are set by contract The general foremen
and foremen share the same benefits as journeymen
except they are paid for holidays that are not provided
for in the collective bargaining agreement The contract
wage rates are
5 Whether the Company has a head general foreman s position is in dis
puce I shall address that issue at the point where the specific duties of
Brazeal are discussed
6 The work force peaked in mid 1981 at somewhere between 392 and
425 employees
7 Pay for each of the three additional superintendents was approxi
mately $60 000 annually All benefits for the superintendents are paid for
by the Company
s The 12 were Brazeal McLaughlin Burton Owenby Edwards
Stover Hall Cook Barnett Gerald Yates and Burger
9 He was hired in as a general foreman on 12 March 1979
10 The Union has an exclusive hiring hall arrangement with the Com
pany
500 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Journeymen-$14 90 per hour
Foremen-$ 15 90 per hour
General Foremen-$16 55 per hour
Brazeal is paid $1 per hour more than the general fore
men scale The parties stipulated the ratio of journeymen
to foremen is approximately 10 to I but may vary from
time to time
Brazeal Yates and Gerald voted in an internal union
election held on 28 December 1984 Brazeal Yates and
Gerald have never held any union office and they were
not candidates for any position in the 1984 internal union
election The Company s work force at the time of the
election was 130 There were 4 general foremen 8 fore
men 70 journeymen and 16 apprentices at that time
The remaining 32 employees were the site superintend
ent 8 engineers an office manager clericals and 16
members of other crafts
B Contentions of the Parties
Before setting forth the specific facts applicable in de
ciding the issue of whether the three statutory supervi
sors are high level supervisors I shall set forth a brief
summary of the parties positions
The General Counsel contends Brazeal Gerald and
Yates clearly are high level supervisors She asserts their
long uninterrupted tenure as general foremen along with
their job duties and benefits supports her contention that
they are high level supervisors The General Counsel
also contends that the large number of foremen and jour
neymen that report to the three general foremen demon
strate they are high level supervisors aligned with man
agement The General Counsel asserts the mere act of
voting by these three high level supervisors in the inter
nal union election constituted unlawful interference with
the administration of the Union The Company makes a
twofold defense First it contends Brazeal Gerald and
Yates are not high level supervisors In support of that
contention the Company asserts the three supervisors in
question only perform purely ministerial duties when
they direct the work of the foremen and others because
they do so according to predetermined schedules pre
pared by the engineers and superintendents The Compa
ny further contends in support of its first defense that the
three supervisors in question are (1) included in the bar
gaining unit (2) revert to journeymen status when their
employment with the Company ceases and (3) paid ap
proximately the same rate as low level supervisors The
Company suggests that all three of the preceding factors
strongly indicate the three individuals in question are
low level supervisors Second the Company contends
that even if the three individuals in question are found to
be high level supervisors their voting in the internal
union election cannot be attributed to it and cannot as a
matter of law constitute a violation of the Act The
Company contends the General Counsel must prove
actual interference with the internal affairs of the Union
before a violation of the Act can be established The
Company argues there has been no interference in that
there is no showing the three ever held any official posi
tion with the Union or that they even acted in any
manner that would lead other bargaining unit members
to believe they acted for or on behalf of management in
their involvement with the Union The Company argues
the Board has uniformly required a showing as a predi
cate to a finding of an 8(a)(2) violation that an employer
has somehow failed to act properly and that the supervi
sors in question have done something more than merely
vote in an internal union election It asserts a violation
cannot exist if the employer involved has not had an op
portunity to become aware of the potential violation and
to avoid it The Company asserts there is no evidence to
indicate it was ever confronted with any situation where
it could have protested to the Union and have avoided a
violation of the Act
C Controlling Legal Principles
It is helpful to examine the applicable legal precedents
and statutory provisions governing the issues before turn
ing to the specific facts related to the actual status of the
three statutory supervisors in question
In itself retention of union membership by supervisors
is not illegal 11 Section 14(a) of the Act in part states
Nothing herein shall prohibit any individual employed
as a supervisor from becoming or remaining a member of
a labor organization Section 14(a) of the Act obviously
contemplates that supervisors may participate to some
extent in the affairs of labor organizations without in
volving their employers in violations of Section 8(a)(2)
of the Act 12 National Gypsum Co 139 NLRB 916
(1962) The leading case with respect to supervisors par
ticipation in the affairs of a labor organization is Nassau
& Suffolk Contractors Assn 118 NLRB 174 (1957) In
Nassau the Board set forth different rules for low level
supervisors who are in the bargaining unit and high
ranking supervisors who are outside the bargaining unit
The Board ruled that an employer would not be liable
for the actions such as voting in internal union elections
of its low level supervisors unless it could be affirmative
ly shown that the employer encouraged authorized or
ratified such activities or that the employer acted in
such manner as to lead employees reasonably to believe
the low level supervisors were acting for and on behalf
of management The Board reasoned that low level su
pervisors allegiance was at least as much with the union
as with their employer 13 The Board noted that low
level supervisors may be working as supervisors at one
time and as journeymen at other times As to high rank
ing supervisors the Board held they could not lawfully
participate even in an election to determine who would
administer the affairs of their union The Board held
These individuals [company executives and high
ranking supervisors] did nothing more than appear
at a union meeting and vote at a secret election con
cerning administration of the Union However
I' The term supervisor is defined in Sec 2(11) of the Act and the
definition of an employee set forth in Sec 2(3) of the Act explicitly ex
cludes supervisors
12 Sec 8(a)(2) of the Act makes it unlawful for an employer to inter
fere with the administration of any labor organization
13 The Board held this was particularly so in certain industries such as
the construction industry
POWER PIPING CO 501
voting in union elections is plainly a form of inter
ference with the administration of a labor organiza
tion It may not be unlawful for company execu
tives and high ranking supervisors to retain the
union membership they acquired as rank and file
employees as job insurance in the event they should
revert to ordinary employee status but that does
not make it lawful for them to participate in elec
tions to determine who is to administer the affairs of
the union It is quite conceivable that in a closely
divided vote executive and high ranking supervisors
would have the balance of power and be in a posi
tion to select the union officials who are to deal
with them in their separate capacity as employer
agents [Id at 183-184]
The Board continues to adhere to its Nassau holdings
See for example Three Hundred South Grand Co 257
NLRB 1397 at fn 1 (1981) in which it held it was a vio
lation of Section 8(a)(2) of the Act for a high level su
pervisor to simply vote in an intraunion election for
steward It is no defense to a finding of interference
that the activities of the high level supervisors were car
reed on without being expressly authorized or ratified by
the employer Plumbers Local 636 (Detroit Plumbing Con
tractors) v NLRB 287 F 2d 354 (D C Cir 1961) The
Board has also held that Section 8(a)(2) of the Act is vio
lated where high level supervisors hold dual positions
even though the evidence shows the supervisors merely
engaged in routine intraunion activities and no showing
was made of any actual conflicts arising from their dual
functions Three South Grand Co supra See also
Schwenk Inc 229 NLRB 640 (1977) The Board has indi
cated it will decide the question of whether an employer
interferes in the administration of a union where its su
pervisors actively participate in union affairs on a case
by case approach specifically rejecting a per se rule as
unrealistic especially in the construction industry Wels
bach Electric Corp 236 NLRB 503 at 510 (1978) The
court in Plumbers Local 636 supra noted there is ex
treme upward and downward flexibility in job positions
in the construction industry in that a person may be
hired one week for a job as a foreman and the next week
as a journeyman The court further noted that in view of
this flexibility not every supervisory employee would be
barred from active participation in a journeymen s union
In observing that the Board in Nassau supra had ap
proached this problem on a case by case basis the court
set forth certain non all inclusive considerations which it
said would generally serve as a guide toward reaching a
decision on whether the actions of supervisors in partici
pating in internal union affairs were proper or improper
The court s suggested considerations are
(1) The nature of the supervisory position how
completely the responsibilities of the particular posi
tion identify the holder of the position with man
agement Careful reference should be made to Sec
tion 2(11) bearing in mind that the definition there
in contained was not intended to include straw
bosses and leadmen Such consideration is neces
sary because of the infinite possible variations and
responsibilities enumerated in Section 2(11)
(2) Apparent permanence of the supervisory post
tion how long the position has been held how high
it is in the company s hierarchy of supervisors This
is important because the degree of possibility of the
employee s being hired later as a journeyman should
have a direct bearing on his immediate right to par
ticipate in union affairs
(3) The extent to which his position is properly
included in or excluded from the bargaining unit
This is really a conclusion to be drawn from factor
(1) above in light of Section VI of this opinion 14
[287 F 2d at 362 ]
Applying the above set forth principles and following
the guidance therein I shall now consider the specific
facts relating to the three statutory supervisors in ques
tion to determine whether they are high level supervi
sors
D Analysis and Conclusions on the Status of Brazeal
Gerald and Yates
I am persuaded Brazeal qualifies as a high level super
visor of the Company Although there is dispute con
cerning Brazeal s title and although the title given an in
dividual is not controlling I find Brazeal at some point
became and at the critical time (December 1984) was
head general foreman As will be demonstrated his
duties and responsibilities clearly support such a conclu
sion Brazeal testified he and others referred to himself as
head general foreman 15 Superintendent Hodgin stated
he had heard Brazeal referred to as head general fore
man and acknowledged he did nothing to dispel that
belief Brazeal s office is located in the building with the
engineer whereas the general foremen s offices are locat
ed elsewhere Brazeal testified he had the authority to
fire the general foremen if [he] got mad enough how
ever he stated he would consult with Superintendent
Hodgin before he actually did so Yet another factor that
indicates Brazeal is in fact as well as title head general
foreman is that he sits in on the project engineers meet
ings whereas the general foremen do not and following
such meetings he along with the chief engineer and
Hodgin meets with the general foremen to outline what
needs to be done Further Brazeal calls general foremen
meetings on his own initiative and conducts some such
meetings with the general foremen without Superintend
ent Hodgin being present 16 That Brazeal is head general
14 In sec VI of the opinion the court held among other things that al
though Sec 14(a) of the Act did not prohibit supervisors from becoming
or remaining members of a union that section did not necessarily guaran
tee supervisors the right to participate actively in a journeymen s
union
is I credit Brazeal s testimony notwithstanding the fact that he was a
little less candid in his trial testimony than it appears he had been in a
pretrial affidavit given to the Board I am persuaded he made every rea
sonable effort to tell the truth when he testified No reason was advanced
by any party as to why Brazeal would not tell the truth about his job
title duties and responsibilities On some points Brazeal s testimony con
flicted with that of Superintendent Hodgin On those points where there
was any conflict I specifically credit Brazeal s testimony Hodgin was
somewhat evasive and at times gave contradictory testimony
16 I specifically do not credit Hodgin s testimony that he has attended
every meeting held with the general foremen
502 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
foreman in title as well as functions and duties is also
demonstrated by the fact the general foremen can not ap
point journeymen to the position of foremen without
consulting with Brazeal Brazeal is paid $1 per hour
more than the general foremen I am persuaded he is
paid the extra money to compensate for his extra duties
as head general foreman 17 Hodgin testified that only he
and Brazeal were authorized to contact the union hall
for referrals 18 On occasion Brazeal asks for referrals by
name from the union hall Brazeal distributes assignments
to the general foremen and directs them in their duties
The general foremen report to Brazeal if they need
work 19 Brazeal nominates individuals as general fore
men and then informs them they have been selected after
the project superintendent (Hodgin) gives his concur
rence with Brazeal s recommendations Brazeal approves
recommendations from either the general foremen or
foremen to fire journeymen Brazeal is involved in em
ployee grievances at the first step of the grievance pro
cedure It is clear from the above that Brazeal s duties
and responsibilities identify him with management Bra
zeal s position is above journeymen foremen and gener
al foremen He reports directly to the site superintendent
which is the Company s highest representative at the
construction site Brazeal has held his position since 1979
and as such it is clear he is not a transitory supervisor
Aithough it is true Brazeal may return to the union hall
for a referral as a journeyman foreman or general fore
man if anything should happen to his current employ
ment however I note that possibility does not seem
likely for an extended period of time in that the amount
of work as well as the work force at the construction site
is expected to remain constant for the next 3 years The
fact that general foremen (head general foremen) are in
the unit and covered by the collective bargaining agree
ment does not preclude a finding that Brazeal is a high
level supervisor inasmuch as inclusion or exclusion in the
bargaining unit is not dispositive of that issue Brazeal s
duties clearly identify him with management notwith
standing the fact that he may be covered by the collec
Live bargaining agreement Although Brazeal s rate of
pay20 is more in keeping with low level supervisors at
"Although Superintendent Hodgin testified Brazeal s extra pay was
not for extra duties he gave no explanation or reason for the extra pay I
am therefore persuaded that contrary to Hodgin s testimony Brazeal s
extra pay is based on his extra duties Brazeal s extra pay could not be
based on seniority because the other general foremen in question were
hired in very close proximity to the time Brazeal was hired
18 There is some indication that others may have in the very recent
past contacted the union hall for referrals however I note Brazeal has
been away from the jobsite for health reasons In fact Brazeal s testimo
ny here was taken at his home because of his physical condition at the
time of the trial
19 Although it appears the work is designed by project engineers and
although the engineers determine how the work is to progress it is Bra
zeal who takes the actual work requirements to the general foremen and
then oversees their progress and compliance with the designated work
Hodgin acknowledged he had given Brazeal instructions regarding Bra
zeal s directing the general foremen in their assigned duties
20 Brazeal s pay is $ 17 55 per hour whereas superintendents such as
the three who at one time worked on the project were paid $60 000 per
year and Site Superintendent Hodgin is paid $72 000 per year
the Company his responsibilities align him with higher
management and his responsibilities must be given con
trolling weight Although Brazeal s as well as Yates and
Gerald s health and medical benefits are paid for pursu
ant to the collective bargaining agreement they do re
ceive holiday pay from the Company which is not cov
ered by the collective bargaining agreement For all the
above reasons I am persuaded and find Brazeal is a high
level supervisor of the Company 2 i
Similarly Yates and Gerald who are next below Bra
zeal in the Company s hierarchy of supervisors are high
level supervisors Yates is in charge of all turbine piping
work and Gerald is in charge of all underground and
outside piping work As a general rule Yates and Gerald
do not perform any work with tools At the time of the
internal election Yates and Gerald each had three fore
men working for them Each foreman in turn had ap
proximately 10 employees that worked for them There
fore Yates and Gerald each supervised approximately 33
employees at the time of the internal union election The
foremen who work directly for Yates and Gerald qualify
as statutory supervisors in that they among other things
discipline employees up to and including discharge with
out prior approval from anyone General foremen such
as Yates and Gerald (1) lay out the way they want pipe
installed after they have been assigned a particular
system to work on (2) make work assignments to the
foremen assigned to them (3) see that supplies equip
ment and materials are available to the foremen assigned
to them (4) coordinate between the project engineer and
the head general foreman on materials and drawings (5)
discipline employees to include discharge without prior
approval (6) answer questions for and resolve problems
of the foremen assigned to them and (7) make recom
mendations for foremen positions It is apparent that
Yates and Gerald are identified with higher management
rather than with low level supervision Although there is
the clear probability that general foremen such as Yates
and Gerald will if and when their general foremen pose
tions cease to exist return to the union hall for referral
as journeymen they nevertheless are not in the circum
stances of the instant case transitory supervisors 22
Gerald has been a general foreman since 1981 and Yates
since 1982 As noted earlier the amount of work as well
as the work force at the construction site is expected to
remain constant for the next 3 years Therefore the in
stant case does not involve a situation where an individ
ual is a general foreman one week and a journeyman the
next week The issue of whether one is a high level su
pervisor does not turn so much on what the individual is
paid or on whether the individual is included or ex
21 I have intentionally not discussed certain evidence that would dem
onstrate the 2(11) supervisory status of Brazeal inasmuch as the parties
stipulated that he as well as Yates and Gerald are supervisors within the
meaning of that section of the Act
22 The likelihood of general foremen returning to the union hall for re
ferrals after their general foremen positions cease to exist has been
amply demonstrated in this record For example Edwards Burton
McLaughlin Owensby and Stover were each initially referred to the
Company by the Union as journeymen They each later became general
foremen who thereafter left the Company for whatever reason and were
subsequently referred back to the Company as journeymen
POWER PIPING CO 503
cluded from the bargaining unit but rather turns on
whether the duties and responsibilities of the individual
will cause the individual to be identified with higher
levels of management In the instant case the duties of
Yates and Gerald clearly identify them with higher
levels of management notwithstanding the fact they are
included in the bargaining unit and are paid wages and
enjoy benefits set by the collective bargaining agreement
In light of all the above I am persuaded and find Yates
and Gerald are high level supervisors of the Company
I reject the Company s contention that even if Brazeal
Yates and Gerald are found to be high level supervisors
the General Counsel must prove they actually interfered
with the internal affairs of the Union The Board cases
do not require the General Counsel to meet such a
burden Nassau and Three Hundred South Grand Co
supra make it clear that a violation of Section 8(a)(2) of
the Act occurs when high level supervisors vote in an
internal union election There is no requirement that the
company have knowledge that their high level supervi
sors voted or that their actions be authorized or ratified
in order to constitute a violation of the Act
In summary I conclude and find as alleged in the corn
plaint that the Company interfered with the administra
tion of the Union in violation of Section 8(a)(2) of the
Act on or about 28 December 1984 by permitting its
high level supervisors Brazeal Yates and Gerald to vote
in an internal union election
CONCLUSIONS OF LAW
1 Power Piping Company is an employer engaged in
commerce within the meaning of Section 2(2) (6) and
(7) of the Act
2 United Association of Plumbers and Steamfitters
Local No 72 is a labor organization within the meaning
of Section 2(5) of the Act
3 By permitting Gerald D Brazeal Ronald Gerald
and Ronnie Yates its high level supervisors to vote in
an internal election of the Union the Company has inter
fered with the administration of the Union and has en
gaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(2) and (1) of the Act
4 The violations of the Act noted above constitute
unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act
THE REMEDY
Having found that the Company has engaged in cer
tam unfair labor practices I find it necessary to order it
to cease and desist and to take certain affirmative actions
designed to effectuate the policies of the Act
Although I have concluded the Company has inter
fered with the administration of the Union by permitting
its high level supervisors to vote in an internal union
election and although I have recommended that it be or
dered to cease and desist therefrom nothing in this pro
posed remedy shall be construed to imply that any of the
Company s supervisors are prohibited from maintaining
basic union membership It is recommended that the
Company be ordered to post the attached notice for 60
days 23
[Recommended Order omitted from publication ]
23 Under the circumstances of this case I deny the General Counsel s
request for a visitatorial clause