RCC Fabricators

National Labor Relations Board - Administrative Judge Opinions

Jan 30, 2007

04-CA-031757 (N.L.R.B. Jan. 30, 2007)

JD–81-06
Southampton, NJ
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
RCC FABRICATORS, INC.
and Case 4—CA—31757
METROPOLITAN REGIONAL COUNCIL
OF CARPENTERS, EASTERN
PENNSYLVANIA, STATE OF DELAWARE
AND EASTERN SHORE OF MARYLAND
RCC FABRICATORS, INC.
and Case 4—RC--20569
PILEDRIVER’S LOCAL 454 a/w
METROPOLITAN REGIONAL COUNCIL
OF CARPENTERS, EASTERN PENNSYLVANIA,
STATE OF DELAWARE AND EASTERN
SHORE OF MARYLAND
and Case 4—RC—20572
CONSTRUCTION AND GENERAL
LABORERS UNION LOCAL 172 OF
SOUTH JERSEY
Henry R. Protas, Esq. and Ann Marie Cummins, Esq.,
for the General Counsel.
John H. Widman, Esq. and Amy Niedzalkoski, Esq.,
of King of Prussia, Pennsylvania, for the Respondent.
Stephen J. Holroyd, Esq. and Richard C. McNeill, Jr., Esq.,
of Philadelphia, Pennsylvania, for the Charging Party.1
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
PAUL BUXBAUM, Administrative Law Judge. This case was tried in Philadelphia,
Pennsylvania, on April 8 and 10 and May 15, 2003. An unfair labor practice charge had been
filed on November 25, 2002, and an amended charge was filed on January 28, 2003. The
complaint was issued on February 19, 2003.

1 Listed are the attorneys who participated in the original trial and in this remand proceeding.
JD–81-06
5
10
15
20
25
30
35
40
45
50
2
In addition to the unfair labor practice allegations, this case involves issues arising from
representation proceedings. On October 25, 2002, the Metropolitan Regional Council of
Carpenters, Eastern Pennsylvania, State of Delaware and Eastern Shore of Maryland filed a
petition for certification as collective-bargaining representative of certain employees of the
Company.2 Six days later, the Construction and General Laborers Union Local 172 of South
Jersey filed a similar petition.3 The Regional Director consolidated these petitions on October
31, 2002.
A representation election was held on November 21, 2002. Sixteen votes were cast.
Six votes favored the Carpenters, five votes were against any union representation, and no
votes were cast in favor of the Laborers. Five ballots were challenged, a potentially
determinative number. On March 6, 2003, the Regional Director issued an order consolidating
the ballot challenges and the unfair labor practice allegations and scheduling the hearing. After
that hearing, on October 23, 2003, I issued a decision setting forth my resolution of each of the
issues arising in the unfair labor practice and representation portions of the proceedings. RCC
Fabricators, Inc., 348 NLRB No. 56 (2006).
As to the unfair labor practice portion of the case, the General Counsel alleged that an
admitted supervisor told an employee that the Company would close if the employees selected
a union as their bargaining representative. It was also alleged that a foreman, James Phillips,
interrogated employees regarding their union activities and created an impression that union
activities were under employer surveillance. That foreman was asserted to be a supervisor and
agent of the Company. Finally, the General Counsel contended that the Company discharged
an employee, Daniel Pohubka, because of his involvement in union activities. The Company
filed an answer, denying the material allegations of the complaint, including the contention that
the foreman was a supervisor and agent.
In my decision, I concluded that the General Counsel had failed to prove that a
supervisor threatened closure of the Company if employees selected union representation. I
recommended dismissal of that charge. Similarly, I recommended dismissal of the charge that
the Company’s firing of employee Pohubka was unlawful. Specifically, while I found that
Pohubka’s involvement in union activities was a factor in the decision to terminate his
employment, his poor work performance and insubordination would have caused the Company
to discharge him regardless of his involvement in those union activities. No exceptions to these
recommendations for dismissal were filed.
The General Counsel alleged that Phillips was a supervisor and agent of the Company
and that he had unlawfully interrogated certain employees and created an impression that union
activities were under surveillance by the Company’s officials. I determined that Phillips was
both a supervisor within the meaning of the Act and an agent of the Employer. I further found
that his conduct constituted unlawful interrogation and the creation of an improper impression of
surveillance. The Company filed exceptions to these findings and conclusions.
The representation issues involved in this case concerned challenges to five ballots, any
one of which could be determinative of the outcome of the election. The Board agent

2 This is Case 4-RC-20569. As the Carpenters were the only labor organization that
participated actively in this case, I will refer to them where appropriate as the “Union.”
3 This is Case 4-RC-20572. The Laborers Union did not participate in this case, either
through counsel or otherwise.
JD–81-06
5
10
15
20
25
30
35
40
45
50
3
challenged 3 ballots because those voters’ names were not found on the Excelsior list.4 One of
these prospective voters was Pohubka. His eligibility to vote depended on the outcome of my
resolution of the unfair labor practice allegation that he was wrongfully terminated from
employment due to his union activities. Since I found that he had been lawfully discharged, I
sustained the challenge to his ballot. The remaining two prospective voters challenged by the
Board agent were employees who were laid off prior to the election. The Union contended that
these employees enjoyed a reasonable expectation of returning to work in the foreseeable
future. The Company denied that such an expectation existed. Because I agreed with the
Company’s assertion that the evidence established that there was no reasonable expectation of
such a return to employment, I sustained the challenge to these ballots. No exceptions were
filed to my determinations regarding the 3 ballots challenged by the Board Agent.
The remaining issue forms the heart of the matters that must be resolved in this
supplemental decision. The Union challenged the ballots of the two shop foremen, James
Phillips and Ronald Earley, contending that they were supervisors within the meaning of the Act.
The Company disputed this characterization of their status. Having concluded that the foremen
were statutory supervisors, I recommended that the challenges to their ballots be sustained.
The Company filed exceptions to these recommendations.
On September 30, 2006, the Board issued an Order remanding the matter to me for
further analysis. RCC Fabricators, Inc., supra. As explained in the Board’s Order, the remand
is designed to permit an assessment of the impact of the Board’s recent trilogy of decisions
addressing a number of issues arising from the Act’s exclusion of supervisors from the scope of
its coverage. Specifically, I was directed to engage in, “further consideration in light of Oakwood
Healthcare, Croft Metals, and Golden Crest.”5
As part of the remand order, the Board required that I evaluate the need for any
reopening of the evidentiary record and that I afford the parties an opportunity to file briefs. I
solicited the views of all counsel regarding both of these matters. Their written responses
indicated that they each wished to file briefs.6 Counsel for the Company sought to submit one
additional item of documentary evidence. This was identified as Joint Exhibit 2 and was
accompanied by a written stipulation signed by all counsel. By order dated November 22, 2006,
I received it into evidence. As indicated in their respective letters, no counsel sought to reopen
the record for the production of any other evidence or testimony. Having considered the
existing record and the parties’ arguments, I similarly conclude that it is not necessary to reopen
the record to obtain any further evidence. Finally, I granted the parties time to file briefs, and
those briefs have now been received.7

4 Excelsior Underwear, 156 NLRB 1236 (1966).
5 RCC Fabricators, Inc., supra, slip op. at 1, citing Oakwood Healthcare, 348 NLRB No. 37
(2006); Croft Metals, 348 NLRB No. 38 (2006); and Golden Crest Healthcare Center, 348 NLRB
No. 39 (2006).
6 By letter dated December 26, 2006, counsel for the Union joined in most aspects of the
General Counsel’s brief. I will discuss the one aspect of the case about which the Union parts
company with the General Counsel’s position at the appropriate point in this decision.
7 Due to the procedural posture of this case, the General Counsel and the Company have
each filed a number of briefs. When citing from some of those briefs, I have abbreviated their
titles as set forth parenthetically: Counsel for the General Counsel’s Brief [to the Administrative
Law Judge] (GC Br. ALJ); Answering Brief of Counsel for the General Counsel to Respondent’s
Exceptions (GC Ans. Br.); Counsel for the General Counsel’s Supplemental Brief [on Remand]
(GC Br. Rem.); Posthearing Brief of RCC Fabricators, Inc. (R. Br. ALJ); Respondent RCC
Continued
JD–81-06
5
10
15
20
25
30
35
40
45
50
4
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and the Company, I make the following
supplemental8
Findings of Fact
I. The Pertinent Background
In my original decision, I described events relevant to all of the issues presented in both
the unfair labor practice and representation proceedings. Given the considerably narrower
focus of inquiry on remand, it is useful to provide a revised factual narrative directed specifically
toward the issues concerning the status of the two foremen.9 In so doing, I found it interesting
to note that when attention is directed to this particular question of the foremen’s status, certain
facts assume a greater significance than appeared to be the case originally. For example, in my
prior decision, I tended to scrutinize the circumstances of Pohubka’s discharge from the primary
viewpoint of whether the Employer had acted lawfully in terminating his employment. With this
question now resolved, it has been useful to reexamine the events involving Pohubka to
determine what they demonstrate regarding the powers and duties of the foremen. Similarly,
the previous focus regarding the layoff of Maurice Lopez was on the reasonableness of his
expectation of a return to employment. Now, I have examined these events with an eye toward
what may be revealed regarding the supervisory powers of the foremen. Like a ray of the sun
seen through a prism, certain facts that were previously viewed in one light may now be
reexamined from another angle to provide a clearer vision of the proper resolution of the
questions presented on remand of this case.
At the outset, it is useful to note that at the time of these events, the Company, RCC
Fabricators, Inc., was a new offspring of a set of venerable corporate ancestors. The
Company’s owner, Alphonso Daloisio, Jr., testified that the firm’s acronym is an abbreviation for
“Railroad Construction Company.” The original company with that name was founded by
Daloisio’s grandfather in 1926. Although the initial nature of the business was confined to the
railroad industry, over time the extent of the business activities grew to include road, bridge, and
site work, as well as, building construction. As the scope of activities developed, the operations
expanded into what is now termed the RCC Family of Companies.
Among the entities included in the RCC Family of Companies was a firm known as RCC
Materials and Equipment, located in Lexington, North Carolina. That company was owned by
Daloisio and his brother, James. It manufactured railroad equipment. Among its employees
_________________________
Fabricators, Inc.’s Brief in Support of its Exceptions to the Decision of the Administrative Law
Judge (R. Br. Ex.); and Brief on Remand of RCC Fabricators, Inc. (R. Br. Rem.).
8 I have not addressed those issues resolved in my original decision that were not the
subject of any exceptions.
9 I do not mean to suggest that I have altered my conclusions regarding the facts of this
case. My review of the evidentiary record, including the additional items submitted by counsel
for the Company, persuades me that the factual narrative in my original decision was accurate.
The revisions that I am referring to concern the desirability of restating only those facts that bear
on the remand topics and presenting them in a manner more highly focused on resolution of
those more limited issues.
JD–81-06
5
10
15
20
25
30
35
40
45
50
5
was James Phillips. It is undisputed that Phillips’ job title while employed at RCC Materials and
Equipment was “Team Leader/Supervisor.”10 (Jt. Exh. 2, pp. 1 and 2.)
Daloisio reported that by the fall of 2001, it became apparent that RCC Materials and
Equipment was not proving to be a profitable enterprise. In consequence, it was decided to
close the North Carolina facility and combine its production work with a steel fabrication
operation that was intended to supply the building component of the RCC Family of Companies.
It was decided to locate this new entity in New Jersey. A facility suitable for the manufacture of
both railroad equipment and structural steel components for the building industry was obtained
in Southampton and RCC Fabricators, Inc., was launched.
In order to meet some of the new company’s staffing needs, certain veteran employees
of the North Carolina facility were recruited for operations in New Jersey. Among these persons
were two who figure prominently in this narrative, Phillips, and Carl Baer. Baer became the
shop manager for the Company. Daloisio testified that Phillips was initially hired during the
period when the Company organized itself and took the steps needed to become ready to begin
production. Although he was not given a formal title at that time, Daloisio testified that he came
to New Jersey to take the “same position that he had” in North Carolina. (Tr. 42.) Daloisio
went on to explain why Phillips was valuable and also why he was not initially given any sort of
formal job title, noting that,
his expertise was mainly in handling a lot of the equipment, the wiring,
the mechanics. He was an excellent mechanic. He could weld. He
basically was a jack of all trades, and, you know, came up with the
other gentlemen [from North Carolina]. I honestly don’t think there was
a [job] title associated that I can think of, that was associated with any
one of the three of them, to be perfectly honest. I don’t have any title
on my business card. I’m not big with titles.
(Tr. 42.)
In November 2001, the new company began production. Baer reported that at that time
Phillips was formally appointed as shop foreman. He further testified that this was, “basically
the same position that he was given in North Carolina.” (Tr. 404.) During the following month,
the Company hired Ronald Earley as a welder and fitter. He had extensive prior experience,
having risen from laborer to foreman in the defunct company that had been the prior occupant of
the Southampton plant. Less than a year after he was hired, Earley was promoted to be the
second shop foreman.11 At the time of his promotion, the respective areas of responsibility for
the two foremen were established. Phillips would be the foreman for the department of the shop

10 Examination of the newly-submitted exhibits provided by the Company confirms that
Phillips’ job title at RCC Materials and Equipment is undisputed. Frank Santos, the
Respondent’s lead controller, testified that Phillips prepared a resume which his wife submitted
to Santos. (Jt. Exh. 2, p. 1.) In this document, Phillips listed his job title as “Team
Leader/Supervisor.” (Jt. Exh. 2, p. 1.) Santos testified that he made certain revisions as shown
in the second version. (Jt. Exh. 2, p. 2.) The Company then used the revised edition when
preparing “prequalification statements” for job proposals. (Tr. 601.) In Santos’ revised version,
Phillips continues to be shown as “Team Leader/Supervisor.” (Jt. Exh. 2, p. 2.) From this, it is
evident that his possession of the job title of “Team Leader/Supervisor” is not in dispute.
11 At this point, it is worthwhile to note that both foremen were often referred to by their
nicknames. Phillips was known as “Bud,” and Early was called “Butch.”
JD–81-06
5
10
15
20
25
30
35
40
45
50
6
that produced railroad equipment and Earley would hold the same position for the structural
steel operation. In turn, both men reported to Baer.
It is undisputed that the two shop foremen were co-equals. As Earley put it, he was told
by the Company’s vice president, Dave Puza, that, “me and Bud [Phillips] would be even. I
would be a foreman as much as he was a foreman.”12 (Tr. 541.) This was confirmed by
Santos, who indicated that both men had the same job, “just [in] two different areas of the
manufacturing process.” (Tr. 560.)
It is now appropriate to examine the record in order to develop an understanding of the
powers, duties, and functions of the shop foremen. There are two types of evidence that bear
on this subject, the testimony of management officials, employees, and the foremen
themselves, and the documentary evidence created and maintained by the Company.13
Turning first to the rather basic question of job title, the record is more complicated than
one might expect. This most likely stems from Daloisio’s admitted aversion to such structural
formalities as job titles. The result was perfectly illustrated by Phillips’ response to counsel for
the General Counsel’s inquiry as to his job title:
Leadman, foreman, you know, I mean you could call it leadman,
foreman, supervisor, whatever you wanted to call it.
(Tr. 139.) What is interesting about this rather diffuse formulation is that it mirrors the
language employed by Santos in the Company’s own version of Phillips’ resume utilized to
impress prospective customers with the qualifications of its foreman. In that document, Phillips

12 Puza’s testimony supported Earley’s account. He characterized the responsibilities of
Phillips and Earley as being the “same.” (Tr. 651.)
13 In his brief in support of exceptions to my original decision, counsel for the Company
contends that it was error for me to accord significant probative weight to the documentary
evidence. (R. Br. Ex., pp. 14-15.) He correctly notes that the Board has always cautioned
against mechanical reliance on job descriptions or titles. Thus, the Board recently reaffirmed its
position that it is error to give such documents “controlling weight.” Avante at Wilson, Inc., 348
NLRB No. 71, slip op. at p. 3 (2006) and Golden Crest Healthcare Center, 348 NLRB No. 39,
slip op. at p. 5 (2006). It is important to note that the context for these admonitions is one where
the employer asserts that supervisory status exists based on job descriptions but fails to adduce
evidence showing actual possession of such supervisory authority. See, Golden Crest, supra,
slip op. at p. 5 (“Board insists on evidence supporting a finding of actual as opposed to mere
paper authority.”) Nothing in this line of cases suggests that company-issued job descriptions or
titles are irrelevant. It is obvious that such documentary evidence easily meets the test of
“having any tendency to make the existence of any fact that is of consequence . . . more
probable or less probable than it would be without the evidence.” Fed. R. Evid. 401. Indeed,
the Board quoted extensively from the “Employer’s written job bid descriptions” in assessing
supervisory status in Croft. Croft, supra, slip op. at p. 3. Furthermore, it is perhaps ironic to
observe that counsel for the Company quoted the Board’s citation to that job description from
Croft when making an argument in his brief on this remand. (R. Br. Rem., p. 9.) To the extent
that it is corroborated by other evidence of actual conduct and behavior, I have accorded
significant value to the Company’s own documentation regarding job descriptions and job titles.
JD–81-06
5
10
15
20
25
30
35
40
45
50
7
is referred to as a “Team Leader/ Supervisor” for the “RCC Family of Companies.”14 (Jt. Exh. 2,
p. 2.) The common thread here is the use of the term “supervisor” to characterize his role.
Another indication of the scope of the foremen’s role in operating the facility is found in
the written job description of their immediate supervisor, Baer. Among Baer’s enumerated
duties was the requirement that he, “[s]upervise shop operations and provide direction to the
two Shop Foremen in charge of equipment and steel fabrication.”15 (Tr. 419.) As with the use
of the term “supervisor,” the choice of the phrase “in charge of,” while not dispositive, is certainly
suggestive of the Company’s expansive view of the scope of the foremen’s responsibilities.
There is a third item of documentary evidence; one that poses quite a conundrum in this
case. Puza, the Company’s vice president, clearly testified that he “wrote the job descriptions”
for the foreman positions occupied by Phillips and Earley. (Tr. 651.) The existence of such a
document or documents is supported by Baer’s testimony regarding the existence of a job
description for his own position as superintendent. Furthermore, counsel for the Company
conceded that “Puza wrote the working foreman job description.” (R. Br. ALJ, p. 12.) It is
difficult to imagine the existence of a piece of documentary evidence that would be more
probative on the issue of supervisory status than the Company’s own written description of the
duties and responsibilities of the foremen. Nevertheless, the document was never offered into
evidence during the trial.
In my original decision, I drew adverse inferences against the Company based on its
failures to produce Phillips’ resume prepared by Santos and the foremen’s job description
prepared by Puza. I noted that the Board has long held that the failure to produce evidence in
the possession of a party that may reasonably be assumed to be favorable to its position raises
an adverse inference. I cited Board decisions to this effect, including the Board’s reliance on
language from a treatise noting that,
where relevant evidence which would properly be part of a case is
within the control of the party whose interest it would naturally be
to produce it, and he fails to do so, without satisfactory explanation,
the [trier of fact] may draw an inference that such evidence would
have been unfavorable to him.
Martin Luther King Sr. Nursing Center, 231 NLRB 15 at fn. 1 (1977).
In its brief in support of exceptions to my decision, the Company mounted a vigorous
attack on my use of this principle of legal analysis.16 I will not further discuss the role of this

14 While this document shows Phillips’ job location as being in North Carolina, it was
prepared by Santos on behalf of the New Jersey operation. Furthermore, the Company’s owner
testified that Phillips held the “same position” in both locales. (Tr. 42.)
15 In his brief in support of the Company’s exceptions to my decision, counsel correctly
observes that I mistakenly referred to Baer’s job description as being part of the record. While it
was identified as R. Ex. 3, it was never introduced. The reporter inadvertently included it in the
binder containing the exhibits admitted on behalf of the Company. Nevertheless, my error was
not material since Baer was shown the document during his testimony and was asked if the
quoted language was an “accurate description of your job.” (Tr. 419.) He unhesitatingly
answered in the affirmative. I credit that testimony.
16 For example, the Company contended that I impermissibly shifted the burden of proof by
drawing the adverse inference. Apart from the fact that I repeatedly acknowledged that the
Continued
JD–81-06
5
10
15
20
25
30
35
40
45
50
8
analytical tool with regard to Phillips’ resume. The Company has now provided the documents
in question and there is no need to make any inferential assumptions regarding their content.17
On the other hand, the eventual, albeit belated, submission of the resume stands in
harsh and illuminative contrast to the Company’s continuing decision not to similarly introduce
the job description for the foremen’s position. On direct examination by counsel for the
Company, Puza testified that he was particularly familiar with the nature of the foremen’s
authority because he wrote their job description. Counsel asked him to describe that authority
and Puza proceeded to outline a rather constrained version of their role. And yet, the Company
has now twice failed to admit the job description into evidence. This is particularly notable with
regard to these remand proceedings, given the Board’s authorization for the admission of new
evidence to supplement the record and my subsequent invitation to all parties in this regard.
As another administrative law judge has noted, the Board has established the
preconditions for application of an adverse inference. They are that,
(1) the party against whom the rule is invoked must have control
of certain evidence; (2) the evidence in question must be relevant
evidence which would properly be part of a case; (3) this party’s
interest would naturally be to produce the evidence; and (4) it did
not offer a satisfactory explanation for failing to produce the
evidence. [Internal quotation marks omitted.]
Forsyth Electric Co., 332 NLRB 801, 818 (2000), vacated 69 Fed. Appx. 164 (4th Cir. 2003).
In this case, it is undisputed that the Company created and possessed the job
description. That description was directly relevant to the central issue in the representation
proceeding; indeed it may reasonably be assumed to have delineated the Company’s view of
the precise issues of authority under scrutiny in this proceeding. The Company’s interest would
ordinarily be to produce the document it had created that most directly addressed the powers
and authority of its own foremen. Finally, the Company offered no explanation for the failure to
produce the job description, despite having now been afforded multiple opportunities to produce
the document and having observed the impact of its failure to produce it on my earlier
_________________________
General Counsel and the Union had the burden of proof on the issue, this argument conflates
two unrelated legal concepts. This is illustrated by reference to one of the cases I cited on the
adverse inference principle, Martin Luther King Sr. Nursing Center, supra. In that unfair labor
practice case, the Board affirmed the administrative law judge’s decision to apply an adverse
inference against the respondent for failing to call any witnesses. It is clear that the Board did
not see the result as involving any shifting of the burden of proof. In a case involving the
drawing of a negative inference from the failure of a defendant to produce a required timber
license, the Supreme Court long ago warned of the error of becoming “confounded” by
confusing this sort of inferential analysis with the ultimate burden of proof in the proceeding, a
burden that continued to reside with the plaintiff. U.S. v. Denver & RGR Co., 191 U.S. 84, 92
(1903).
17 I do note, however, that their actual content supports the rationale underlying the adverse
inference that I drew. In particular, the resume prepared by the Company for use in bidding for
contracts described Phillips as “Team Leader/Supervisor” for the “RCC Family of Companies.”
(Jt. Exh. 2, p. 2.) The Company’s choice of these descriptors tends to undercut its claim in this
proceeding that the foremen were mere straw bosses of the type excluded from statutory
supervisory status.
JD–81-06
5
10
15
20
25
30
35
40
45
50
9
decisionmaking process. As the prerequisites for the drawing of an adverse inference are all
met, I do not hesitate to apply this traditional principle of evidentiary analysis.
Many years ago, the Supreme Court observed that, “[t]he production of weak evidence
when strong is available can lead only to the conclusion that the strong would have been
adverse.” Interstate Circuit, Inc. v. U.S., 306 U.S. 208, 226 (1939). Here, counsel for the
Company chose to rely on Puza’s testimony about the issue under scrutiny while withholding
the document that Puza had written for this employer that formed much of the basis for that
testimony and that would have possessed compelling probative value on the issue since it was
written for purposes unrelated to this litigation and could have shed great light on the parties’
dispute. The ongoing choice not to produce the one document that purports to set forth a
comprehensive description of the Company’s own conception of the nature and duties of the
foremen’s job continues to lead me to the conclusion that the job description contains a
description of that job that is adverse to the Company’s position in this litigation.18
One additional matter regarding the documentary evidence needs to be addressed. In
his brief in support of exceptions, counsel for the Company contends that my application of the
adverse inference doctrine was incorrect because the record revealed that counsel for the
General Counsel possessed a copy of the foremen’s job description. He cites transcript pages
99-100, which consist of portions of a discussion among counsel and me, as well as, testimony
by Baer. There are several difficulties with this argument. At the outset, it is important to note
that counsel does not suggest that the attorney for the Union had been furnished with a copy of
the document. It will be recalled that the foremost importance of the supervisory status issue in
this case is the potential determinative impact on the outcome of the representation election.
The General Counsel has no position on this issue and his attorneys did not and do not
represent the Union’s position on the matter.
Beyond this, careful study of the transcript relied on by counsel for the Company does
not support his interpretation. The discussion in question actually begins at page 97 of the
transcript, during the testimony of Baer. Counsel for the General Counsel indicates that he
wishes to introduce documents that were provided to him by the Company pursuant to a
subpoena. He seeks a stipulation in this regard, indicating that the documents are job
descriptions. I ask counsel for the Company whether these are “authentic company
documents.” (Tr. 99.) Counsel for the Company sidesteps the question, stating in part that,
“[e]xactly what they are, what timeframe they apply to, I don’t know.” (Tr. 99.) He offers to
confer with his client. After some further inconclusive discussion among the lawyers, counsel
for the General Counsel asked Baer if the documents in question were the Company’s “written
job descriptions for jobs in the facility in Southampton.” (Tr. 100.) Baer responds, “[i]t appears
to be, but to be perfectly honest with you, I don’t ever remember this.” (Tr. 100.) At that point,
counsel for the Company sought a recess and I granted the request. After the recess, counsel
for the General Counsel advised that, “after consulting with the Respondent, I’ve decided that I
am not going to offer [the materials] into evidence.” (Tr. 100.) The examination of Baer then
moved on to other matters.
It is apparent from a close reading of the entire discussion that counsel for the Company
never established that counsel for the General Counsel possessed the job description for the

18 However, as in my original decision, I continue to base my ultimate findings and
conclusions on a mosaic of evidence as described in this decision. The adverse inference is
simply one significant piece of that mosaic.
JD–81-06
5
10
15
20
25
30
35
40
45
50
10
foremen’s position.19 In fact, when shown the documents in counsel for the General Counsel’s
possession, Baer was unable to identify them at all. The record fails to establish that counsel
for the General Counsel possessed the document at issue.
Finally, I note that the thrust of counsel for the Company’s argument seems to be that it
would be error to draw an adverse inference if the document in question was also in the
possession of the General Counsel. In my view, this confuses the nature of the analytical
principle I employed with the imposition of sanctions for failure to produce evidence that had
been subpoenaed. If a party fails to comply with a subpoena, the trier of fact may impose an
adverse inference as a sanction for the noncompliance. McAllister Towing & Transportation
Co., 341 NLRB 394, 396 (2004), enf. 156 Fed. Appx. 386 (2d Cir. 2005). In that event, the fact
that the party actually had complied with the subpoena would certainly be a complete defense.
In this case, nobody has sought imposition of any sanction for noncompliance with a subpoena
and I have not imposed any such relief. Instead, I have examined the entirety of the evidence
and drawn the appropriate inferences from what was presented and what was not presented.
The simple and inescapable fact remains that, despite having multiple opportunities to provide
the trier of fact with the document that may best represent the Company’s non-litigation based
view of the status and responsibilities of the foremen, the Company has chosen not to provide
the document and has also chosen not to present any explanation in support of that decision.
From this, applying longstanding and wise principles of jurisprudential analysis, I infer that the
document contained a vision of the scope and nature of the foremen’s job that is adverse to the
constricted picture of that job painted in the Company’s trial testimony.20
Having examined the documentary evidence,21 it is now important to turn to the
testimony, particularly the testimony that reveals the manner in which the foremen actually
functioned at the Southampton facility. I will begin this analysis with a description of the
foremen’s working conditions and daily routines. Then, I will address the key areas of
assignment of work and imposition of discipline.
To start with some basics, it is interesting to note that the foremen were provided with

19 I do not mean to suggest that this represented a failure on the part of counsel. There was
no reason at this early stage of the trial to think that this would assume the importance that
counsel now ascribes to it.
20 For a good example of the difference between the drawing of an adverse inference for
failure to comply with a subpoena versus an adverse inference from the failure to produce
evidence that one would expect to have been produced at trial, see the administrative law
judge’s decision in Commercial Cabinets, Inc., Case 7-CA-45023, 2002 WL 31758368, at p. 4
(2002), enf. 89 Fed Appx. 511 (6th Cir. 2004) (judge rejected the General Counsel’s request for
adverse inference for failure to produce documents sought by subpoena, but drew adverse
inference from the respondent’s failure to offer those same documents into evidence to shed
light on a significant issue in the case).
21 There is one additional piece of documentary evidence that sheds a bit of light on the
foremen’s job title and scope of authority. After the trial in this case, the Company filed a Motion
to Reopen the Record to admit the decision of the New Jersey Appeals Tribunal regarding
Pohubka’s denial of unemployment benefits. Over objection, I granted this motion. In that
decision, which followed a telephonic hearing during which Baer, Santos, and Pohubka testified,
the appeals examiner made factual findings regarding the events of Pohubka’s discharge.
Based on the evidence presented to her, she characterized Baer as the “shop supervisor” and
Phillips as Pohubka’s “immediate supervisor.” This is simply another example of the use of the
term “supervisor” to describe the Company’s foremen.
JD–81-06
5
10
15
20
25
30
35
40
45
50
11
their own desks in Baer’s office. Earley testified that, “I’m not a desk person.” (Tr. 505.) As a
result, he did not use his desk. By contrast, Phillips spent a great deal of time at his desk,
usually while ordering the many parts needed for the manufacturing process. As Pohubka
described it, “Like I was done with a job, I’d have to go find [Phillips] for another job. If I have to
go up to his office, you know, usually he’s on the phone ordering parts.” (Tr. 174.)
As with the provision of desks, both foremen were also issued company credit cards.
Perhaps more significantly, these cards were not merely for their own use on company
business. Both foremen provided uncontroverted testimony that they also issued the cards to
other employees whom they were assigning to tasks involving purchase of supplies or
equipment for the facility.
With regard to timeclocks, it appears that the foremen were not treated alike.22 Earley
always punched a timeclock. According to Puza, Phillips was not required to punch the clock
for a period of “close to a year.” 23 (Tr. 654.) Interestingly, Phillips confirmed that he was not
required to punch in until, “[w]hen all this stuff came about.” (Tr. 141.) Asked to be more
precise about the timing, he testified that he began to be required to punch the clock, “[p]robably
right at the same time” as the Union’s first organizational meeting occurred. (Tr. 142.) This
meeting was held on October 9, 2002.24
Although there were disparities regarding documentation of the foremen’s own time and
attendance, both foremen were actively involved in the supervision and documentation of other
employees’ time and attendance. Phillips testified without contradiction that he possessed the
authority to certify the start time of an employee who had not punched in. Earley provided clear
testimony regarding his colleague’s role in supervising time and attendance:
Every morning he [Phillips] would check the cards to make sure
everybody was here. Because he checks to make sure they
punched in, make sure they were here. That was like a common
thing.
(Tr. 560.) Additionally, an employee, Brian Van Nordwick, testified that, for some period during
the time at issue, employees would fill out a weekly timesheet to show what tasks they had
performed and for how long they had performed them. These were submitted to Baer and

22 It may well be that the disparity reflected Phillips’ long history with the RCC Family of
Companies. By contrast, Earley was only hired after the Southampton facility was already in
production.
23 Santos indicated that this subject was controversial. He noted that he asked Baer about
it, and Baer told him Phillips, “doesn’t have to punch a time clock.” (Tr. 589.)
24 As I observed in my original decision, this illustrates the caution that must be employed
when examining the Company’s evidence on the issue presented in this remand. There are
instances where it appears that the Company took certain actions designed to make the
foremen appear to possess less stature than they had actually been accorded. It is reasonable
to infer that the decision to begin requiring Phillips to punch the clock and the timing of that
action represented a response to the Union’s organizational effort. Another such example
concerns the question of whether the foremen should be allowed to participate in meetings with
the representative of the competing union. As discussed in my original decision, management
initially ordered the foremen, along with other managers, to refrain from attending such
meetings. Subsequently, for reasons never explained, the foremen were instructed to attend
the meetings.
JD–81-06
5
10
15
20
25
30
35
40
45
50
12
Phillips, who would log in the hours. Baer confirmed this arrangement, testifying that, Phillips
and Earley would verify the employee timesheets on a daily basis, “because they knew what
each man worked on.” (Tr. 435.)
The Company maintained a practice of holding production meetings on a weekly basis.
Baer testified that these were attended by himself, along with Plant Manager Tanzola, Vice
President Puza, Controller Santos, Quality Assurance Manager Thomashefsky, and the two
foremen. Baer reported that the foremen were active participants in the meetings, going so far
as to observe that, “[a] lot of times, they would know where they stood on a particular project
better than I did.” (Tr. 452.) Puza’s testimony also shed light on the nature of the foremen’s
role at these meetings. He noted that one topic for discussion would be the addition of more
employees to handle a given project. In such cases, the foremen were asked, “who would you
guys like to have in there?” (Tr. 658.)
In addition to the top-level production meetings, the foremen frequently met with Baer to
discuss plant operations. Indeed, the content and frequency of these discussions was so
striking that, in my original decision, I chose to refer to the communal decisionmaking process
involving these three men as constituting a “troika.” Counsel for the General Counsel asked
Baer if, “generally each morning you asked the foremen who is working on what project.” (Tr.
93-94.) Baer agreed that this was his practice. Employee Van Nordwick provided further
insight into this process, testifying that,
Gene [Baer] would go around the shop mostly observing what’s
going on in the shop, conferring with Bud [Phillips] and Butch
[Earley] about jobs that need to be worked on; what would have
to be worked on first to meet a required deadline.
(Tr. 337.)
It is undisputed that both foremen worked alongside the production employees.
However, their responsibilities included far more. Thus, when counsel for the Union asked Baer
if the foremen “directed groups that worked with them,” Baer responded, “[y]es, sir.” (Tr. 116.)
Part of that process involved the inspection of the work performed by the employees. For
example, Pohubka testified that Phillips inspected his completed work approximately 80 per
cent of the time. Similarly, he reported that when he worked on the structural steel side of the
facility doing such tasks as “cutting steel,” Earley would inspect his work. (Tr. 176.) In addition
to the inspection function, employees provided testimony that the foremen would respond to
their questions about the work process and would train the employees.
Because of the nature of their job responsibilities, the foremen spent a great deal of time
directing, inspecting, and instructing the employees. As Phillips put it,
I usually go around and make rounds, see who’s working and if they
need something or, you know, to inform them what to do, you know,
if they run out of something to do.
(Tr. 481.) Pohubka described the nature of the foremen’s role in similar terms, reporting of
Phillips, that,
[s]ometime’s he’d work, sometimes he was just like overseeing
everything . . . . Just walk around and make sure everybody
was working, seeing like if they were doing their job right.
JD–81-06
5
10
15
20
25
30
35
40
45
50
13
(Tr. 171.) Indeed, Phillips noted the magnitude of this aspect of his position as it related to
Pohubka himself, commenting, perhaps hyperbolically, that “sometimes I would spend half the
day hunting him.” (Tr. 483.)
Not surprisingly given their involvement in daily oversight and evaluation of the
employees’ work, the foremen were also asked to rate their employees. Vice President Puza
testified that, in September 2002, a meeting was convened. As he described it:
We had Butch and Bud there. And we had told them that we were
going to start letting people go. And, we wanted input from them as
to who were the performers, who were not the performers.
(Tr. 646.) Puza noted that the purpose was to “just basically get a characterization of all the
people” from Phillips and Earley. (Tr. 648.)
In addition to regular oversight of the production employees, the foremen provided
important information from management to those employees. Such information would include
the decisions taken at the production meetings. It also included the solicitation of both overtime
and consent to voluntary layoff. Van Nordwick noted that it was a “common occurrence” for
Baer, Phillips, and Earley to asked him if he wanted to work overtime. (Tr. 340.) Baer
confirmed that both Phillips and Earley were involved in this activity, noting that Earley did so
“[f]airly regularly.” (Tr. 430.) He also reported that the requests were always voluntary since it
was unclear whether the Company maintained any requirement for mandatory overtime on the
part of its employees.
Insight into Phillips’ role in these matters was also provided in the testimony of Maurice
Lopez, an employee whose layoff status was an issue in the original proceeding. Lopez
testified that Baer and Phillips came to him to inform him of his layoff. Tellingly, Lopez went on
to report that he would later telephone the Company to inquire about the chances of a recall to
duty. When he spoke to the controller, Santos “just passed me through [to] Bud [Phillips].” (Tr.
323.)
With this broad context as explanatory background, it is now necessary to assess the
foremen’s role in the two most important areas of supervision involved in this remand, the power
to assign and the power to discipline employees. Turning first to the power to make
assignments, it is undisputed that the foremen possessed this authority to some degree. As
counsel for the Company noted in his brief in support of exceptions, “Earley and Phillips also
had some responsibility for giving assignments or telling employees what they should be
working on.” (R. Br. Ex., p. 14.) The contest here concerns the scope of this admitted job
function.
In their testimony, Baer and Earley attempted to downplay the nature of the foremen’s
role in this regard. Thus, Baer contended that the foremen’s assignments were “more of a
spontaneous thing” that occurred when they “didn’t track me down” to seek permission. (Tr.
94.) Baer gave the example of a need to unload a truck. In such a case, the foremen would
select, “whoever was closest, probably.” (Tr. 94.) Earley was even more emphatic, reporting
that,
I work and help keep the guys busy, whatever Mr. Baer gave
me to do. I told the guys, I relayed the message. I’m just like
a messenger boy.
JD–81-06
5
10
15
20
25
30
35
40
45
50
14
(Tr. 501.)
I do not credit these narrow depictions of the foremen’s role in assigning work. They are
contradicted by much other testimony, including additional testimony provided by both Baer and
Earley themselves.25 For example, Baer made a major retreat from his just-cited testimony that
had been provided on the first day of the trial. When he was recalled as a witness much later in
the case, he noted that both foremen played a major role in the assignment process. When
speaking of his discussions with Earley, he testified that,
we would determine that if one—if one employee was more suited
to drilling, and another employee was more suited to doing layout
work . . . and we would make the determination who should do what.
(Tr. 428.) He observed that he followed the same procedure with Phillips.
Baer’s view of the respective roles of the superintendent and foremen was crystallized in
his testimony that the three men operated by “consensus,” and that, if the foremen “had
assigned people to do certain jobs, I wouldn’t come behind them and say, ‘No, don’t do that; do
something else.’” (Tr. 428.) Examining Baer’s testimony as a whole, I conclude that, as with so
much else in his relationship with his foremen, he viewed the decisionmaking process as a
troika.26 Many assignment decisions were made by mutual agreement. Significantly, however,
Baer conceded that if a foreman made a unilateral assignment, he would not intervene to alter
that decision.
Similarly, while Earley provided a highly self-effacing description of his role as that of a
mere messenger boy, he also gave other testimony that showed it in quite a different light. For
example, he noted that, with regard to the steel operation, “I run the shop for RCC, sir.” (Tr.
501.) And, in a rather extensive bit of testimony, he described how he would pick who worked
on his structural steel crew. Taking obvious pride in the importance and difficulty of his work
with structural steel, he noted that the selection of his crew involved critical issues of
competence and safety. He made his assignments based on such factors as the particular
worker’s familiarity with the use of cranes and knowledge of blueprints. (See, Tr., at pp. 506-
508.)27

25 Furthermore, as I noted in my original decision, Earley’s testimony must be viewed with
caution as it was very much influenced by his understandable gratitude toward his employer.
As he made clear on the witness stand, he felt that the Company had saved his career by hiring
and promoting him after his previous long-term employment had ended when that employer
went out of business. It was evident that Earley’s feelings were sincere and heartfelt, but they
also caused him to shade his testimony in order to express his gratitude.
26 Interestingly, the foremen also had a similarly cooperative decisionmaking pattern of
behavior between themselves. Thus, Earley testified that, “if [Phillips] needed somebody, he
could have it. Or, if I needed somebody, or if I needed help, he would help me.” (Tr. 542.)
27 At the end of this detailed description of his assignment duties, Earley backtracked a bit,
noting that Baer “usually” gave him the employees who were “always” on the job on the
structural steel side. (Tr. 508.) I discount this testimony as being both inconsistent with the
immediately preceding description and reflective of Earley’s previously described desire to
support his employer’s position. Furthermore, even if credited in full, the testimony reveals that
Baer did not always participate in the assignment process with Earley, he simply did so
“usually.”
JD–81-06
5
10
15
20
25
30
35
40
45
50
15
As one would expect, Earley’s colleague also provided detailed and illuminating
testimony about the foremen’s role in assigning work.28 He reported that he discussed work
assignments with Baer, but did not always consult before making such assignments. As he
explained,
[i]f they’re working with me and they’re done with that task and I
know what task that needs to be done next and everything, then
I’ll move them to another task so that we can keep the production
of the equipment going. Where if I had to run and find [Baer] every
time that I needed to move somebody, then I’d be running to find
him all day instead of doing anything.
(Tr. 153.) For this reason, Phillips testified that he made his own assignment decisions “a
couple times a day, probably.” (Tr. 153.) Indeed, when asked if making a job assignment on
his own authority would be something likely to get him “in trouble,” Phillips unhesitatingly
answered in the negative. (Tr. 160.)
While I recognize that testimony from the production employees is necessarily based on
their subjective perceptions regarding the foremen’s power to assign, I was nevertheless
impressed by the uniformity of their opinions regarding the power to assign. Thus, Jesse
Iannaco reported that Earley gave him assignments a couple of times each day. Another
employee, Duane Ashcraft, was asked who gave him his work assignments on a “day-to-day
basis.” (Tr. 622.) He responded that the assignments were made by Phillips, except on the
rarer occasions when he was working on the steel side of the operation. In that case, his
assignments came from Earley.
Van Nordwick summed up the assignment process in the following terms:
Once we finished a project, we would either find Bud or Butch
to see what needed to be done next; and then they would assign
you to the next task.
(Tr. 338.) Indeed, Van Nordwick was asked why he concluded that the foremen were part of
management, and he posed this pithy rhetorical question in response:
If they weren’t part of—my understanding—if they weren’t part
of management, why would they be handing out these work
assignments?
(Tr. 353.)
Considering the entire body of testimony on the issue of job assignment, I conclude that

28 As I explained in my original decision, I give Phillips’ testimony greater weight than that of
Earley. Aside from Earley’s bias, I noted that, at the time he testified, Phillips was no longer
employed by the RCC Family of Companies. As counsel for the Company observed, Phillips’
employment had been terminated, “due to a ‘mutual agreement’ between himself and the
Company.” (R. Br. ALJ, p. 12.) He had no apparent interest in shading his testimony to support
one side or the other. This was reflected in the fact that his testimony did support one side on
some issues and the other side as to other matters in controversy.
JD–81-06
5
10
15
20
25
30
35
40
45
50
16
both foremen regularly made individual decisions to assign work to employees. They did this
over and above their practice of consulting with Baer to make other such decisions by
consensus. Furthermore, the assignments they made on their own authority and initiative ran
the gamut from the simple (such as sweeping the floor) to the complex (such as operating a
crane in the dangerous process of moving heavy pieces of steel). Regarding frequency, I
conclude that both men assigned work to employees on a daily basis, often more than once
each workday.
Finally, it is necessary to closely examine the power and authority of the foremen in the
area of discipline. The credible evidence demonstrates that the two men did possess such
authority, both in taking action on their own individual initiative and in functioning as part of the
cooperative management team with Baer that I have previously characterized as the “troika.”
To begin, I note that the Company’s management witnesses testified that the foremen
did not possess disciplinary authority. Baer asserted that, “[t]he only discipline that was
administered came through me.” (Tr. 427.) Puza contended that the foremen had no
authorization to administer discipline. Rather, their role was to tell Baer about their “displeasure
with an employee’s performance,” and leave it to Baer to “have to handle it.” (Tr. 654.)
The great weight of the evidence does not support this depiction of the foremen’s lack of
disciplinary authority. The contrary evidence is particularly compelling. It begins with the
testimony of employees who reported that the foremen did, in fact, have the authority to
discipline them. Thus, Baer and Puza’s testimony was matched by Van Nordwick and
Iannaco’s directly contrary claims. For example, Iannaco was asked who had the power to
impose discipline. He responded, “[j]ust Gene, Bud, or Butch.” (Tr. 288.)
Given this conflicting testimony, it is fortunate that the record is enhanced by two
particularly probative types of evidence. First, as will shortly be described, Baer and Puza’s
description is contradicted by the actual behavior of the parties in a number of specific
instances. The general claims of Baer and Puza cannot withstand comparison with these
particular examples of contrary practices. Second, the evidence as to disciplinary authority
does not consist simply of conflicting testimony presented by the parties. Instead, key insight is
provided by reference to an extensive set of documentary records. I am referring to the
numerous corrective action notices issued by the Company to errant employees, as well as,
other disciplinary records maintained by the Company.29 Many of these documents were
created by the Company at a time when this litigation was not on the horizon and they were all
issued for important corporate purposes other than those under consideration in this case. As
such, they represent the best unfiltered, unbiased, and reliable view of the Company’s
disciplinary system in operation.
Turning first to the specific instances illustrating the possession of disciplinary authority
by the foremen, three examples stand out. On September 11, 2002, Phillips issued a corrective
action notice to Matthew Rettberg. (GC Exh. 4, p. 28.) This was signed by Phillips on the line
for the “Supervisor’s Signature.” It was also signed by Rettberg and Earley. Earley added the
notation that he was signing as a “witness.” The incident arose when Rettberg objected to a job
assignment he had been given by Phillips. In voicing his complaint, he made a comment

29 These forms are located at GC Exh. 4. The parties stipulated that these constitute all of
such forms issued to employees from October 1, 2001 through March 31, 2003. In addition, R.
Exh. 2 is another corrective action form that was issued to Maurice Lopez in place of a
nonexistent layoff notification form.
JD–81-06
5
10
15
20
25
30
35
40
45
50
17
suggestive of ethnic bias. Phillips testified about his thought process in confronting this
problem, noting that the Company had a zero tolerance position with respect to discrimination
and that,
we hire all types of people, doesn’t matter what color they are or
anything else because, you know, we’re all people and we just
work together to try to get the job done.
(Tr. 158.) As a result, he decided to issue a corrective action notice to Rettberg.
Phillips testified that he then telephoned Baer who was away from the facility. He
described the phone call, reporting that,
I explained to him what was going on and everything, and told him that,
you know, that we’d already went through the zero tolerance thing because
it was our stand, the company’s stand, and I was going to take and do this,
write this corrective thing up and everything, and I just wanted to check
with him first and make sure that that’s the way he wanted it handled and
everything. And then I did it and signed it and turned it in.
(Tr. 158.) When Baer was questioned about this incident, he agreed with counsel that, “[o]n that
particular date, at least, Mr. Phillips has authorization to take corrective action of a disciplinary
nature against Mr. Rettberg.” (Tr. 132.)
While not entirely free from ambiguity, these events certainly tend to demonstrate that
Phillips had the authority to take disciplinary action on his own initiative. While the misconduct
was serious, there was no emergency presented. If Phillips lacked disciplinary authority, he
could have simply written a memorandum for Baer’s further consideration. Alternatively, he
could have immediately taken the matter to higher management officials present at the facility.
Instead, he chose to write and issue the disciplinary action himself. I recognize that he elected
to phone Baer and explain what he was doing. In my view, this does not demonstrate any lack
of authority. Instead, it represents the common human desire to seek validation of an important
decision from someone whom one trusts and respects. Had the phone call been evidence of a
lack of authority, one would have expected that Baer would have given Phillips a directive to
seek assistance from other members of management, delay action until his return, or sign the
form on Baer’s behalf.30 Instead, Baer did not express any doubts about either Phillips’ wisdom
or his authority to act on behalf of the Company.
Two related incidents shed even more light on Phillips’ role in the Company’s disciplinary
processes. These both involved Pohubka.31 On July 2, 2002, Phillips discovered Pohubka and
another employee sleeping on the job. He ordered them to return to work. About an hour later,
Pohubka confronted Phillips in an angry manner, complaining about his assignment to a welding
project, dropping a heavy piece of metal, and cursing. Phillips told Pohubka to report to Baer’s

30 The Company had no policy preventing one official from signing a disciplinary action on
behalf of another. Tanzola signed three such forms in that manner, twice on behalf of Puza,
and once for Santos. (GC Exh. 4, pp. 7, 21, & 39.)
31 As will shortly be described, I generally credit Pohubka’s largely uncontroverted
description of the procedural history of his suspension and discharge. While I found him to be
an unreliable witness regarding his workplace misconduct and the reasons for his discipline, his
account of how the discipline was meted out to him is credible.
JD–81-06
5
10
15
20
25
30
35
40
45
50
18
office. Pohubka testified regarding what transpired next, relating that Phillips told Baer that he
was “sick of my attitude.” (Tr. 183.) Without directing any questions to either Pohubka or
Phillips, Baer instructed the men to report to the front office. The three men met with Plant
Manager Tanzola. Tanzola did not ask Pohubka any questions. Baer remained silent. Phillips
told Tanzola that he was sick of Pohubka’s attitude. Pohubka testified that, upon hearing
Phillips’ complaint, “[t]hat’s when Dave Tanzola said if he had a problem with me, he should
write me up.” (Tr. 184.) At that point, Pohubka was directed to return to work. He further
testified that, 10 minutes later, he met with Phillips and Baer in their office. He was issued a
corrective action notice for a 3-day suspension. (GC Exh. 4, p. 24.) While this was signed by
Baer, tellingly, it was handed to Pohubka by Phillips. (Tr. 252.)
Just as Phillips had been the primary initiator of Pohubka’s suspension, he had a similar
role in Pohubka’s discharge from employment on October 11, 2002. Events began with a
confrontation between Baer and Pohubka over Pohubka’s poor work habits. Shortly thereafter,
Pohubka had an exchange with Phillips. Pohubka testified about what transpired next,
POHUBKA: That’s when Bud said he’s sick of my attitude and he sent
me up to Gene’s office.
COUNSEL: How did you respond?
POHUBKA: I walked up to Gene’s office. I didn’t even say anything.
COUNSEL: Did Bud go with you?
POHUBKA: Yes.
COUNSEL: What happened once you were in Gene’s office?
POHUBKA: He told Gene that he’s sick of my attitude, and then Gene looked
at me and said they no longer needed my services.
(Tr. 197-198.) Pohubka’s discharge was memorialized on a 2-page corrective action notice that
was signed at the bottom of each page by Baer, Phillips, and Earley. (GC Exh. 4, pp. 26-27.)
Turning now to the records, I have examined the disciplinary reports in an effort to
discern patterns of authority. Plant Manager Tanzola signed one disciplinary form on his own
account. (GC Exh. 4, p. 16.) He signed two such forms on behalf of Vice President Puza and
another one on behalf of Controller Santos. (GC Exh. 4, pp. 7, 21 and 39.) Baer was the sole
signatory on five forms. (GC Exh. 4, pp. 9, 15, 22, 24, and 33.) Phillips signed one form as the
supervisory official with Earley’s signature as a witness. (GC Exh. 4, p. 28.) One form was
signed by both an indecipherable writer and Phillips. (GC Exh. 4, p. 41.) The remaining 10
forms were each signed by Baer, Phillips, and Earley. (GC Exh. 4, pp. 1, 10, 13, 14, 26, 29, 30,
40, and 42; R. Exh. 2.)
Review of this documentary record shows that the most common single form of
discipline issued to employees was a joint corrective action notice signed by the members of
what I have denominated as the troika: Baer, Phillips, and Earley. This is consistent with the
general pattern of evidence confirming Baer’s testimony that he preferred to act by consensus
among himself and his foremen. Furthermore, this understanding of the meaning of the joint
signatures was explicitly confirmed by Phillips. When asked in what capacity he had been
signing these notices, he answered,
JD–81-06
5
10
15
20
25
30
35
40
45
50
19
I mean, what it was, it was me, Butch and Gene would agree on,
you know, we all showed, signed it, showing that we agreed with
whatever was happening. If it was, you know, this corrective action
notice or another corrective action notice, then you know, so we
were all in agreeance.
(Tr. 489.)
Examination of individual notices lends further support to this explanation. For example,
the troika signed a corrective action notice for a 5-day suspension and final warning issued to
Van Nordwick. (GC Exh. 4, p. 43.) There are several reasons why this particular document is
illuminating. Van Nordwick’s misconduct did not directly involve any of the troika members.
Rather, he engaged in insubordinate and disrespectful conduct toward the Company’s quality
assurance manager, Pat Thomashefsky. She filed a written account. (GC Exh. 4, p. 44.) In
that account, she described the events and noted that she informed Baer and Tanzola of what
had happened. Nevertheless, the disciplinary form was not signed by either Thomashefsky or
Tanzola. Instead, it was signed by Baer, Phillips, and Earley.
Additionally, it is interesting that Baer signed the notice on November 13, 2002, but
Phillips and Earley did not add their signatures until the following day, a fact that is inconsistent
with any attempt to characterize their role as simply serving as witnesses. All of this provides
impressive support to corroborate the practices of management reflected on the corrective
action notices as described in Phillips’ testimony recounted above. The Company took pains to
obtain the concurrence of both foremen in the disciplinary decision involving an employee’s
misconduct that had not occurred in their presence and did not involve them in any direct way.
The manner in which the Company proceeded to suspend Van Nordwick is strongly indicative of
the possession of meaningful and powerful disciplinary authority by both foremen.
Another explicit example of the troika in action is contained in a corrective action notice
issued to Shawn Mace on October 14, 2002. (GC 4, Exh. 14.) The offense involves
absenteeism and tardiness. Baer, Phillips, and Earley each signed the form. The sanction was
merely a verbal warning.32 In explanation, the three signatories noted that they “understood
there is a problem w/his family vehicle being wrecked and we will excuse for this week.” (GC
Exh. 4, p. 14.) (Boldface added.) This constitutes an open and obvious example of the troika in
operation.
I recognize that the Company has attempted to provide an alternate explanation for the
presence of the three signatures on a plurality of its corrective action notices. Thus, for
example, Baer testified that Phillips and Earley signed the layoff notice for Lopez because, “I
normally like to have witnesses.” (Tr. 423.) Earley tried to make the same point, claiming that
his signature kept appearing on these documents because, “I would witness that the guy did
sign it, and this is what was said in a meeting.” (Tr. 508.)
There are a number of reasons why I decline to accept this explanation. First, Earley
could not be signing merely as a witness to what was said at the disciplinary meetings. He
admitted that he was not present at the meeting at which Pohubka was discharged. Yet, he

32 This is an illustration of a perplexing and recurring phenomenon in the life of a labor law
judge. All sorts of employers maintain an Orwellian practice of issuing so-called “verbal”
warnings that are memorialized in writing.
JD–81-06
5
10
15
20
25
30
35
40
45
50
20
signed both pages of that corrective action notice. Lopez testified that he was laid off by Baer
and Phillips. Although Earley was not there, he signed the layoff notice anyway. And, I have
already noted that he signed Van Nordwick’s suspension notice on the day after Baer signed it.
Perhaps most tellingly, Baer, Phillips, and Earley signed a corrective action notice issued to
Iannaco. (GC Exh. 4, p. 10.) Baer signed it on November 13, but the two foremen signed it the
following day. Baer testified that he could not recall why they signed that notice. Beyond this,
he testified that, “when I talked to Mr. Iannaco about this particular offense, that it was in the
presence of Mr. Dave Puza.” (Tr. 127.) Yet, Puza, the actual witness, did not sign the form.
Furthermore, there is simply no evidence that the Company required the signature of witnesses.
Baer signed five corrective action notices without any cosigners. Tanzola signed one form by
himself as well. Indeed, there is not even a requirement that the issuing official sign the form. It
will be recalled that Tanzola signed forms on behalf on both Puza and Santos. The signatures
of those officials were never added to the forms at any subsequent time.
Finally, I note that on one occasion the evidence is clear that Earley did sign as a mere
witness. The evidence is clear because Earley wrote the word, “witness,” next to his signature.
As I opined in my original decision, this constituted an excellent example of the old adage that
the exception can sometimes prove the rule.33 When Earley was desirous of limiting the
purpose of his signature he was clearly capable of doing so.34
In sum, the credible evidence shows that Phillips and Earley imposed discipline on
employees, both by direct individual action and through consensus decisionmaking with Baer. It
is also evident that the nature of the disciplinary decisions was far more than minor correction of
workplace mistakes. Both foremen were active participants in decisions to suspend, discharge,
and lay off employees.
II. Scope and Context of the Legal Analysis on Remand
It is now necessary to apply the Board’s principles of legal analysis to the facts and
circumstances outlined above regarding the status of the two foremen. While the Board’s
remand order makes specific mention of the need to consider its recent decisions in Oakwood
Healthcare, 348 NLRB No. 37 (2006); Croft Metals, 348 NLRB No. 38 (2006); and Golden Crest
Healthcare Center, 348 NLRB No. 39 (2006), it is appropriate to begin with some mention of the
overall context in which these matters arose.
As the Board has observed, “[s]upervisory status is one of the most common issues” in
labor law, and its decisions are “replete with findings of supervisory and nonsupervisory status.”
McCullough Environmental Services, 306 NLRB 565 (1992), enf. denied 5 F.3d 923 (5th Cir.
1993). The issue arises because Section 2(3) of the Act excludes “supervisors” from the
statute’s coverage. Section 2(11) contains a detailed definition, providing that a supervisor is,
any individual having the authority, in the interest of the employer,
to hire, transfer, suspend, lay off, recall, promote, discharge, assign,
reward, or discipline other employees, or responsibly to direct them,

33 I cannot be certain as to why Earley chose to sign that form as a witness. In his
testimony, he was never really asked to explain this. It may be that he disagreed with Phillips’
choice of discipline in that instance.
34 Counsel’s attempt to explain this away borders on the fatuous. He suggests that Earley’s
decision to write the word “witness” on Rettberg’s form, “was not a conscious one.” (R. Br. Ex.,
p. 26.) Does counsel mean to suggest that Earley was in a coma when he made this notation?
JD–81-06
5
10
15
20
25
30
35
40
45
50
21
or to adjust their grievances, or effectively to 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 situation is made difficult by the recognition that the correct outcome when applying
this definition “has not always been readily discernible by either the Board or reviewing courts.”
Oakwood, supra, slip op. at 3. In particular, there has been considerable tension between the
Board’s views of the statutory requirements for supervisory status and those of the Supreme
Court. The Court has rejected the Board’s interpretations of the provisions of the Act regarding
aspects of the definition in a number of cases, NLRB v. Yeshiva University, 444 U.S. 672
(1980); NLRB v. Healthcare & Retirement Corp. of America, 511 U.S. 571 (1994); and NLRB v.
Kentucky River Community Care, 532 U.S. 706 (2001). As the Board has observed, the
common theme of these decisions was the Court’s conclusion that the Board had “reached too
far” by imposing an “overly narrow construction” of the Act’s definition of a supervisor.
Oakwood, supra, slip op. at 3. In other words, in each of those cases, the Board had erred by
failing to include the affected employees within the statutory exclusion. It was this persistent
problem that the Board chose to address in a comprehensive fashion through its decisions in
Oakwood, Croft, and Golden Crest. As a result, the overall context mandates application of
appropriate caution to avoid applying the statutory definition of supervisory status in a manner
that is overly restrictive. In other words, the objective of the analysis must be to effectuate the
Congressional intent to exclude from the Act’s coverage “such individuals whose fundamental
alignment is with management” since this purpose “is at the heart of Section 2(11).” Oakwood,
supra, slip op. at 7.
Before venturing further, it is necessary to make one additional comment on the
Supreme Court precedents. In his brief in support of exceptions, counsel for the Company
argued that it was error for me to find that Phillips and Earley exercised independent judgment
when making job assignments “based on experience, skill, and the known abilities of others.”
(R. Br. Ex., p. 21.) He cited a number of Board decisions, the most recent of which was
Hausner Hard-Chrome of KY, Inc., 326 NLRB 426, 427 (1998) (leadman’s assignments based
on “employee’s skills and experience with respect to particular tasks” are merely routine and do
not demonstrate independent judgment). This was the Board’s position. However, that position
was squarely rejected by the Supreme Court in Kentucky River, supra. As Justice Scalia
hypothesized for the majority:
What supervisory judgment worth exercising, one must wonder, does
not rest on “professional or technical skill or experience”? If the Board
applied this aspect of its test to every exercise of a supervisory function,
it would virtually eliminate “supervisors” from the Act. [Citation omitted.]
Kentucky River, supra at 715. In light of the Court’s conclusions, I will continue to assess the
statutory element of independent judgment regardless of whether that judgment “is informed by
professional or technical training or experience.” Kentucky River, supra at 708.
As a further preliminary consideration, I note that other aspects of the law regarding the
issues in this remand proceeding have also evolved since I issued my original decision. In
particular, there have been significant developments in the Board’s articulation of the meaning
of the statutory language concerning a supervisor’s power to “effectively recommend” any of the
enumerated functions listed in Section 2(11). There has also been some development in the
Board’s explanation of its views of the common law concepts of agency and apparent authority.
I find it necessary and appropriate to consider the evolution of these concepts in the intervening
JD–81-06
5
10
15
20
25
30
35
40
45
50
22
period because, “[t]he Board’s usual practice is to apply new policies and standards
retroactively ‘to all pending cases in whatever stage.’”35 SNE Enterprises, Inc., 344 NLRB No.
81, slip op. at 1 (2005). [Citations omitted.] As a result, these concepts will be addressed
below.
Finally, I have already noted that when I issued my original decision, the status of the
foremen was simply one piece of a much larger legal puzzle. I simplified the focus of my
decisionmaking, finding that the foremen possessed the primary supervisory indicia of power to
assign and authority to discipline employees. As a result, I did not address the possible
existence of other primary indicia of supervisory status. It is important to note, however, that
both the Union and the General Counsel argued that additional indicia of such status were
present. Thus, in his opening statement, counsel for the Union contended that Phillips and
Earley possessed the power “to hire, fire, recommend hiring, recommend firing, impose
discipline, [and] recommend discipline.” (Tr. 14.) Similarly, in his brief to the Board, counsel for
the General Counsel contended that Phillips, “assigned and directed employees and disciplined
employees, including effectively recommending discipline and layoff of employees.” (GC Ans.
Br., p. 24.) Thus, this remand provides the opportunity to examine additional elements of
supervisory status that were litigated by the parties.
In Oakwood, the Board provided the labor law community with a complete formulation of
the legal standard, holding that,
individuals are statutory supervisors if (1) they hold the authority to
engage in any 1 of the 12 supervisory functions (e.g., “assign” and
“responsibly to direct”) listed in Section 2(11); (2) their exercise of
such authority is not of a merely routine or clerical nature, but
requires the use of independent judgment; and (3) their authority
is held in the interest of the employer. Supervisory status may be
shown if the putative supervisor has the authority either to perform
a supervisory function or to effectively recommend the same. The
burden to prove supervisory authority is on the party asserting it.
Oakwood, supra, slip op. at 2-3. [Footnotes and some internal quotation marks omitted.]
I will now examine the components of this analytical framework that are pertinent to the
issues presented in this case.
III. The Foremen’s Power to Assign and Effectively Recommend Assignments
As another administrative judge observed in what was perhaps the first post-Oakwood
judicial decision, the Board in Oakwood took the opportunity of “restating certain principles and
clarifying others.” South Jersey Healthcare, 4-RC-21179 (November 1, 2006), at p. 20. Among
the most significant of these clarifications was the Board’s analysis of the power to assign. It
held:

35 The Board makes an exception for situations that would lead to manifest injustice.
Pattern Makers (Michigan Model Mfrs.), 310 NLRB 929, 931 (1993). The points discussed in
the recent cases that I will apply do not involve any significant departure from preexisting law,
but simply represent the evolving process of development of precedent through case
adjudication. There is no unfairness in applying these teachings to the facts of this case.
JD–81-06
5
10
15
20
25
30
35
40
45
50
23
[W]e construe the term “assign” to refer to the act of designating an
employee to a place (such as a location, department, or wing),
appointing an employee to a time (such as a shift or overtime period),
or giving significant overall duties, i.e., tasks, to an employee. . . .
It follows that the decision or effective recommendation to affect one
of these—place, time, or overall tasks—can be a supervisory function.
Oakwood, supra, slip op. at 4. The Board also provided a useful illustration of the concept of
appointment to significant overall tasks. It noted that such an assignment would include, for
example, a directive to an employee to restock shelves. However, it did not encompass lesser
instructions within this broad category, such as telling an employee to restock one type of
commodity before another one. In further explication of the power to assign, the Board noted
that a key consideration was whether the nature of the assignments imposed a significant effect
on the employee’s terms and conditions of employment. Once again, it provided a useful
illustration, noting that some workplaces contain “plum assignments” and “bum assignments.”
Oakwood, supra, slip op. at p. 4. The power to order an employee to perform such tasks is an
example of the power to impose a significant effect on a worker’s job conditions.
Turning now to Phillips and Earley, I conclude that they did not possess the power to
appoint an employee to a shift or worktime. The Company only operated one shift. The
foremen routinely solicited employees for overtime work, but the uncontroverted testimony
established that this was always voluntary. There is no evidence that any manager possessed
the authority to order mandatory overtime. In Golden Crest, supra, slip op. at p. 3, the Board
clearly held that “the authority merely to request that employees work overtime does not
constitute the power to assign within the meaning of the Act.” [Italics in the original.]
The situation is different with regard to the designation of an employee to a particular
place within the facility. It will be recalled that the Company’s operations were divided into two
departments, the manufacture of railroad equipment and the work with structural steel
components. These production processes took place on different sides of the facility in what
were described as separate “long bays.” (Tr. 153.) The evidence demonstrated that Phillips
and Earley possessed the power to assign employees to either wing of the facility and also
possessed the authority to effectively recommend such assignments. This is perhaps best
illustrated by the undisputed testimony that the foremen would consult with each other and trade
employees between the railroad and steel operations as the need arose. As Earley put it, “if
[Phillips] needed somebody, he could have it. Or, if I needed somebody, or if I needed help, he
would help me.”36 (Tr. 542.)
At this workplace, the power to assign to a location is interwoven with the power to
assign to overall tasks. As a result, I will now turn to an assessment of this component of the
power to assign. It will be recalled that much of the management authority in the operation of
the railroad and steel production processes was exercised by what I have chosen to call the
troika. As Baer explained, he liked to function through “consensus” with his foremen. (Tr. 428.)
He explained the operation of this management style in the area of job assignments as follows:
[W]e would determine that if one—if one employee was more suited
to drilling, and another employee was more suited to doing layout

36 This contrasts with the lack of similar authority of the lead persons in Croft. The Board
noted that, “[t]he lead person’s supervisor, not the lead person, decides whether to borrow or
temporarily transfer an employee from another part of the plant.” Croft, supra, slip op. at p. 2.
JD–81-06
5
10
15
20
25
30
35
40
45
50
24
work . . . and we would make the determination who should do what.
(Tr. 428.) This is clearly either the power to assign employees to significant overall tasks or its
close cousin, the power to effectively recommend such assignment.
However one chooses to characterize the operation of the troika, it is also evident that
each foreman had the power to assign significant overall tasks independent of the consensus
style of management. As Baer explained, in cases where a foreman “had assigned people to
do certain jobs, I wouldn’t come behind them and say, ‘No, don’t do that; do something else.’”
(Tr. 428.)
It is also noteworthy that the overall task assignments did not merely consist of choices
from among a number of routine, repetitive chores. Instead, they ran the gamut from simple to
complex, and even dangerous, duties. In other words, these were just the sort of plum and bum
assignments mentioned by the Board in Oakwood. This was well illustrated in the incident
involving Phillips’ issuance of a corrective action notice to Rettburg. It will be recalled that this
disciplinary measure was imposed after Phillips had ordered Rettburg to sweep the shop and
Rettburg complained that other employees with less seniority should be performing this
distasteful task. Unfortunately, Rettburg choose to sully his complaint by linking it to the
ethnicity of the less senior employees. The vehement nature of his ill-chosen protest vividly
illustrates both the existence of bum assignments and Phillips’ ability to affect employees’
quality of work life through exercise of the assignment power. Similarly, it was Pohubka’s
equally inappropriately vehement response to his assignment by Phillips to a welding project
that played a role in leading to his suspension. The controversies arising from some of Phillips’
decisions in this area vividly illustrate his possession of the power to impose a dramatic impact
on the work life of the production employees through his exercise of the assignment power.
In Oakwood, the Board emphasized that the analysis of the power to assign remains fact
specific. In making that assessment here, I have found it useful to compare the facts with those
described in Oakwood and those outlined in Croft. In Oakwood, a key indicator of the quality of
the assignments being made by the charge nurses involved the matching of the needs of the
workplace with the “skills and special training” of the employees. Oakwood, supra, slip op. at p.
4. Thus, the fact that a charge nurse was required to match a patient’s needs with the particular
expertise of the available nursing staff was deemed a critical aspect of the analysis. By
contrast, in Croft, while the lead persons made some shifting of jobs on the production line in
order to finish projects or meet goals, there was no evidence regarding the “factors, if any, taken
into account by leads in reallocating work.” Croft, supra, slip op. at p. 6. Furthermore, the jobs
in Croft involved repetitive tasks “requir[ing] minimal guidance.” Infra., slip op. at p. 6. As a
result, in contrast to the charge nurses’ duties, the nature of the assignment role for the lead
persons in Croft did not rise to the level of a primary indicator of supervisory status.
The evidence in this case establishes that the quality of the assignment process involved
in the foremen’s job duties was much closer to that of the charge nurses in Oakwood than the
lead persons in Croft. As Earley definitively described it for his part of the shop,
structural steel is kind of a, you know, touchy job. You’ve got to have
somebody who knows how to use squares, you know, and has to have
a little bit of knowledge what they’re doing with stuff . . . . And, you’re
using cranes on it. I don’t want to see anybody get hurt, so you’ve got
to watch who you’re using and why. And when you’ve got 20-ton cranes
in the shop, somebody goes to flip a beam, and they flip it off on the
floor on somebody, you know, I, it’s very, it’s kind of a delicate thing.
JD–81-06
5
10
15
20
25
30
35
40
45
50
25
(Tr. 506-507.) Earley goes on to provide an example of his reasoning in making assignments,
describing that he made assignments to an employee named Jesus based on his extensive job
experience and knowledge of blueprints. It is evident that this type of exercise of the power to
assign employees involves careful evaluation of the skills and abilities of the available staff and
the demands of the particular work to be performed. Applying the Board’s test, I find that
Phillips and Earley possessed a power to assign that required “the degree of discretion” that
rose above “the routine or clerical.” Croft, supra, slip op. at p. 6. (Footnote omitted.)
Because of the nature of the assignment process employed by the foremen, I further
conclude that it involved the application of independent judgment within the meaning of the Act.
Returning to the comparison with the charge nurses in Oakwood, I note that the Board relied on
the fact that each charge nurse, “weighs the individualized condition and needs of a patient
against the skills or special training of available nursing personnel,” in finding that the
assignment power involved the application of independent judgment. Oakwood, supra, slip op.
at p. 8. Phillips and Earley engaged in the identical analytical process, albeit in the very
different context of a specialized manufacturing facility. Their assignments were based on these
important considerations, not on instructions from higher authority, detailed company
procedures, or application of existing policies, rules, or contractual provisions.
At this juncture, it is appropriate to discuss the current position of the General Counsel
on the question of whether Phillips’ power to assign work required the exercise of independent
judgment. In his answering brief to the Board, the General Counsel asserted that, “[c]learly,
Phillips exercised independent judgment when he assigned work.” (GC Ans. Br., p. 24.)
However, in his brief on remand, the General Counsel now advises that, “we no longer allege”
that Phillips used independent judgment when making assignments.37 (GC Br. Rem., p. 13.)
The change in the General Counsel’s position is based on his view of the impact of the
Oakwood trilogy. I have given this careful thought. Respectfully, I must disagree with this
reading of the Oakwood cases. To begin with, I have already noted the significance of the
context in which the Oakwood cases arose. In his remand brief, the General Counsel correctly
states that the Oakwood cases were decided “in light of the Supreme Court’s decision in NLRB
v. Kentucky River Community Care, 532 U.S. 706 (2001).” (GC Br. Rem., p. 2.) It will be
recalled that, in Kentucky River, the Court was harshly critical of the Board’s prior restrictive
interpretation of the scope of the independent judgment language contained in the statutory
definition of supervisory status. Indeed, the Court opined that the Board’s narrow reading of
that language was “directly contrary to the text of the statute.” Kentucky River, supra at 715. It
is apparent that the Oakwood trilogy was the Board’s effort to ensure that its interpretation of the
independent judgment requirement was no longer “unduly circumscribed.” Oakwood, supra, slip
op. at p. 3. As a result, it would be counter-intuitive to conclude that a finding of independent
judgment that was legally correct under the Board’s pre-Oakwood standards would somehow no
longer be justified in light of the Oakwood cases.

37 In his letter submitted in lieu of a brief, counsel for the Union states that the Union
continues to believe that “the record in this case is sufficient to establish that Phillips exercised
‘independent judgment.’” (In this letter, counsel for the Union mistakenly assumes that the
General Counsel no longer contends that Phillips was a statutory supervisor. In fact, the
General Counsel continues to assert that Phillips possessed statutory supervisory status due to
his possession of authority to discipline employees through the exercise of independent
judgment. See, GC Br. Rem., pp. 13-15.)
JD–81-06
5
10
15
20
25
30
35
40
45
50
26
While the General Counsel’s contention is counter-intuitive, it is, nevertheless, still
possible. The General Counsel bases his conclusion that such is the case on a belief that the
record fails to explain the nature of Phillips’ decisionmaking process when making assignments.
For two reasons, I cannot agree. First, the record regarding Phillips is sufficiently developed to
permit the drawing of informed conclusions regarding the considerations involved in Phillips’
assignment decisions. Second, the record regarding Phillips cannot be viewed in isolation, but
must be considered along with the comprehensive evidence developed that demonstrated that
Phillips’ colleague and co-equal as foreman employed the precise type of independent judgment
regarding assignments outlined by the Board in Oakwood.
Turning first to Phillips, it will be recalled that his department of the Company was
engaged in the manufacture of sophisticated equipment for the railroad industry. As Baer
described it, “we build and market railroad maintenance equipment and it can be a variety of
applications. But I mean anything from tie exchangers . . . to specialized equipment.”38 (Tr.
91.) Daloisio testified that Phillips was brought to New Jersey because of his wide-ranging
knowledge of all aspects of this manufacturing process. The Company’s edition of Phillips’
resume described in detail the breadth and extent of Phillips’ technical knowledge in this area,
including many aspects of the “[f]abrication and design of machinery.” (Jt. Exh. 2, p. 2.) It will
be recalled that this was written in the context of describing for potential customers Phillips’ role
as “Team Leader/Supervisor.” Finally, I note that Baer delineated the precise nature of the
assignment decisionmaking process. He testified that he and Earley,
would determine that if one—if one employee was more suited
to drilling, and another employee was more suited to doing layout
work, you know; we would just talk it out with the people we had
available, and we would make the determination who should do
what.
(Tr. 428.) Of crucial importance, several minutes later, Baer was asked additional questions
regarding this testimony as follows:
COUNSEL: Did you have—did Mr. Phillips meet with you to assign work?
BAER: Yes.
COUNSEL: Were those meetings similar in nature to the meetings you’ve
described with Mr. Earley?
BAER: Yes.
(Tr. 432.) In fact, counsel for the Company correctly summarized the evidence on this issue of
the nature of the assignment-related decisional process, noting that “the record shows that
Phillips and Earley discussed with Baer which employees should be assigned to which tasks in
a routine manner based on their skill, experience, and knowledge of other employees’
abilities.”39 (R. Br. Ex., p. 19.)

38 Van Nordwick testified that a tie exchanger is a machine that is designed to travel along
the track removing and replacing railroad ties.
39 The “routine manner” referenced by counsel refers to the frequency of the meetings of the
troika, not to the nature of the decisions being made in those meetings.
JD–81-06
5
10
15
20
25
30
35
40
45
50
27
Any lingering doubt as to the nature of the decisionmaking process is dispelled when
one examines the evidence regarding the other foreman whose status is equally at issue in this
case.40 I have already recounted how Earley described in detail the factors involved in making
these assignment decisions, including the employees’ abilities to operate equipment such as
cranes, read blueprints, and perform dangerous tasks safely. It is important to recall that there
is no dispute as to the fact that Phillips and Earley held the same position with the same duties
and responsibilities. This point was made particularly clearly in counsel for the Company’s
posthearing brief, where it was noted concerning Phillips and Earley that, “at all relevant times,
they performed the same work and had the same functions and responsibilities.” (R. Br. ALJ, p.
12.)
Ultimately, I have compared the assignment process employed by Phillips and Earley
with the assignment decisionmaking processes described by the Board in Oakwood and Croft.
In Oakwood, the charge nurses made discriminating judgments about the abilities of the
available nursing staff and the specific needs of the patients on the hospital ward. In Croft, the
lead persons sporadically shifted employees among a range of “repetitive tasks.” Croft, supra.,
slip op. at p. 6. Based on the full evidentiary picture presented by the General Counsel and the
Union, I conclude that Phillips and Earley engaged in a mental process far closer to that of the
Oakwood charge nurses than that of the Croft lead persons. Because both Phillips and Earley
employed independent judgment when assigning and effectively recommending assignments, I
find that the General Counsel and the Union have met their burden of establishing that the
foremen utilized a process involving independent judgment when exercising their power to
assign within the meaning of the Act.
Upon consideration of the credible evidence, I find that Phillips and Earley regularly
assigned employees to significant overall tasks and departments within the facility. The nature
of those assignments imposed a material effect on the employees’ terms and conditions of
employment. In making these choices, the foremen applied a sophisticated analytical process
to match skills and abilities with work tasks and safety considerations.41 That independent
analytical process was not significantly constrained by any instructions from higher officials or
by company rules or procedures. As a result, the foremen possessed primary indicators of
supervisory authority within the meaning of the Act: the power to assign and to effectively
recommend assignments.
IV. The Foremen’s Power to Discipline and Effectively Recommend Discipline
The record in this case shows that the foremen possessed two variant forms of the
disciplinary power.42 First, there are specific instances that involved the unilateral imposition of

40 Indeed, I suspect that the General Counsel’s belief as to the quantum of evidence
produced on this point stems from the limited nature of his role in this case. Because he, quite
properly, takes no position as to Earley’s possession of supervisory status, it is possible that he
has failed to take into consideration the evidence regarding Earley’s specific description of the
foremen’s decisionmaking process for assigning employees to overall tasks.
41 Safety considerations weigh heavily in the Board’s assessment of the quality of the
assignment power. For example, see American River Transportation Co., 347 NLRB No. 93,
slip op. at p. 1 (2006) (towboat pilots’ responsibility for “safe transport of the vessels, cargo, and
the crew” is an important factor in establishing supervisory status).
42 Sec. 2(11) lists a number of different aspects of the disciplinary power, including the
authority to suspend, lay off, discharge, or discipline employees. As I will discuss, Phillips and
Earley possessed authority to perform or effectively recommend each of these functions. For
Continued
JD–81-06
5
10
15
20
25
30
35
40
45
50
28
disciplinary measures by a foreman. In addition, there is an impressive quantum of testimony
and documentary evidence establishing that the foremen had a very substantial role in the
disciplinary functions of the collective form of leadership that I refer to as the troika. I will
discuss each of these elements of the disciplinary power in turn.
A clear demonstration of the foremen’s unilateral authority to impose disciplinary action
is the Rettberg incident. It will be recalled that Phillips chose to issue a formal corrective action
notice to Rettberg resulting from certain discriminatory comments made by Rettberg when
protesting a job assignment. I have already noted that this situation did not represent an
emergency and that Phillips could have simply chosen to report the incident to Baer or to have
sought the intervention of other higher ranking company officials. Although he did telephone
Baer to discuss the matter, he acted unilaterally in issuing the notice. That action was never
questioned by his superiors. Indeed, Baer clearly affirmed counsel’s observation that Phillips
had been authorized “to take corrective action of a disciplinary nature against Mr. Rettberg.”
(Tr. 132.)
There is additional persuasive evidence that the foremen possessed the unilateral
authority to impose discipline. That evidence stems from actions taken at the highest level of
management. In particular, Pohubka provided testimony about the procedural circumstances of
his disciplinary suspension. He reported that Phillips informed Plant Manager Tanzola about his
misconduct. Tanzola, while in Pohubka’s presence, responded by instructing Phillips that, “if he
had a problem with me, he should write me up.” (Tr. 184.) Although the ensuing suspension
notice was signed by Baer, it was issued to Pohubka by Phillips himself.
I recognize that the evidence does not show that Phillips utilized his unilateral authority
to impose discipline on any sort of regular basis. In addition, the record does not demonstrate
that Earley ever imposed unilateral discipline. This is not decisive. As the Board noted in citing
a Sixth Circuit decision with approval:
the employee is [not] required to regularly and routinely exercise the
powers set forth in the statute. It is the existence of the power which
determines whether or not an employee is a supervisor.
Arlington Masonry Supply, Inc., 339 NLRB 817, 818 (2003), citing NLRB v. Roselon Southern,
Inc., 382 F.2d 245, 247 (6th Cir. 1967). See also West Penn Power Co. v. NLRB, 337 F.2d 993,
996 (3d Cir. 1964). Perhaps an ultimate illustration of this precept was recently provided by the
Board in Mountaineer Park, Inc., 343 NLRB 1473 (2004), a case that I will discuss in detail later
in this decision. Suffice it to say at this point that the Board found that an employee possessed
supervisory status based on the power to effectively recommend discipline despite the fact that
the employee had never actually made any disciplinary recommendations. I conclude that the
evidence establishes that Phillips and Earley possessed the authority to impose discipline on a
unilateral basis as illustrated by the incidents involving Rettberg and Pohubka.
I will now address the legal significance of the disciplinary procedures employed by the
management troika consisting of Baer, Phillips, and Earley. The record contains the entire
corpus of documentation of the Company’s disciplinary actions during the period under
consideration. It is striking that the single largest category of such documents consists of
notices signed jointly by the three troika members. The nature of these disciplinary actions
_________________________
the sake of simplicity, I will refer to the general power to discipline as including each of these
particular aspects of that authority as outlined in the Act.
JD–81-06
5
10
15
20
25
30
35
40
45
50
29
ranges from so-called verbal warnings through suspensions, a layoff, and, ultimately, the
discharges of four employees. Furthermore, I have credited Phillips’ explanation of the
significance of the three signatures on each form. As he described it, the three signed the forms
to demonstrate that “we agreed with whatever was happening.” (Tr. 489.) This is entirely
consistent with Baer’s description of his preference for management by “consensus.” (Tr. 428.)
It is also consistent with an analysis of the content of the forms as detailed earlier in this
decision. I readily find that the foremen were full, regular, and active participants in the tripartite
process of decisionmaking regarding the entire range of employee discipline.
I have given consideration to the question of how to categorize the tripartite operation in
terms of the Board’s standards for assessment of supervisory status. Does the foremen’s role
in the troika constitute the power to discipline, or is it a variant of the power to effectively
recommend discipline? While I conclude that the best answer is that it constitutes the power to
discipline, I will also discuss the alternative construction.
At the outset, I note that the Board does not require that the power to discipline must be
held unilaterally to constitute a primary indicator of supervisory status. For example, in Florida
Southern College, 196 NLRB 888, 889 (1972), the Board found that a college’s dean of students
was a statutory supervisor because he was a member of a committee of four whose function
was to “make [effective] recommendations regarding the hiring or firing of faculty members.”
Because the committee as a whole possessed supervisory powers, the dean was deemed to be
a supervisor. Further reflection on this subject demonstrates the wisdom of this conclusion. For
example, while a member of the House of Representatives has only one vote out of 435, it can
hardly be contended that he or she is not a legislator. Of course, an example closer to home
would be the recognition that a member of an appellate administrative tribunal or court is no less
an adjudicator because he or she may cast only one of the votes necessary to affirm or reverse
a prior judgment. Finally, an examination of the purpose underlying the existence of the
statutory exclusion of supervisors reveals the propriety of classifying a member of such a troika
as a possessor of supervisory authority. As the Board reiterated in Oakwood, supra, slip op. at
p. 7, the “heart” of the statutory provision is the desire to exclude from a collective-bargaining
unit those employees “whose fundamental alignment is with management.” Employees who
regularly vote on the fate of others accused of misconduct are so aligned. It would undermine
the goals of the collective-bargaining process to hold otherwise.
Although I have concluded that the participation of Phillips and Earley in the disciplinary
decisions made by the troika constituted possession of the power to discipline, I will also
examine the related power to effectively recommend discipline. In the period since my original
decision, the Board has provided additional guidance concerning the concept of the effective
recommendation of discipline.
Initially, I note that the Supreme Court has observed that the power to make effective
recommendations is given equal weight in the statute with the unilateral possession of any of
the primary indicators of supervisory status. As the Court explained:
The statutory definition of “supervisor” expressly contemplates that
those employees who “effectively . . . recommend” the enumerated
actions are to be excluded as supervisory. 29 U.S.C. § 152(11).
Consistent with the concern for divided loyalty, the relevant
consideration is effective recommendation or control rather than
final authority.
NLRB v. Yeshiva University, 444 U.S. 672, 684 at fn. 17 (1980).
JD–81-06
5
10
15
20
25
30
35
40
45
50
30
In two cases decided after my original decision, the Board has provided pertinent
illustrations of the operation of this concept of effective recommendation of discipline. The issue
in Progressive Transportation Services, 340 NLRB 1044 (2003), was whether a deck lead
supervisor named Yozzo fell within the statutory exclusion. Yozzo was clearly a working
“supervisor,” performing all of the duties of the other dispatchers. However, she also issued 33
disciplinary notices to those other dispatchers. These consisted mostly of warnings, but did
include two suspensions. The credited evidence showed that Yozzo did not prepare the notices
by herself. Rather, she brought the disciplinary issues to the attention of her own superior, “who
then [told] Yozzo what level of discipline to impose and how to draft the notices.”43 340 NLRB
at 1044. Based in large measure on the fact that Yozzo’s superior did not conduct any
independent investigation once Yozzo proposed discipline, the Board found that Yozzo
possessed the power to effectively recommend discipline.
One year later, in Mountaineer Park, Inc., 343 NLRB 1473 (2004), the Board addressed
the supervisory status of two assistant housekeeping supervisors, Fullerton and Guzzo. These
employees spent half of their workday performing housekeeping work and the remainder
engaged in supervisory duties. Their superior testified that he had received between three to
five recommendations for employee discipline from Fullerton. All of these recommendations
were approved. He had never received any such recommendations from Guzzo. Relying on
the holding in Progressive Transportation Services, supra, the Board found that both Fullerton
and Guzzo possessed the power to effectively recommend discipline. The Board’s primary
rationale was that both were authorized to initiate the disciplinary process and their superior did
not conduct any independent investigation once it was so initiated. While that superior did
review each recommendation and added “his own judgment and insight,” he placed weighty
reliance on the recommendations. 343 NLRB at 1476.
If Yozzo and Guzzo possessed supervisory status based on their significant roles in the
effective recommendation of discipline, there can be little doubt that Phillips and Earley fall
within the same legal category. If one characterizes the operation of the troika as consisting of
Baer’s imposition of discipline upon the recommendation of Phillips and Earley, the case falls
squarely within the Board’s recent precedents just described. In addition, the record
demonstrates that the foremen possessed the power to make such effective recommendations
of disciplinary action apart from their activities in the troika. The most obvious example
concerns the firing of Pohubka. Pohubka testified that, on the day of his discharge, Phillips told
him that he was sick of his attitude. The men reported to Baer’s office. Once in the office,
“[Phillips] told Gene [Baer] that he’s sick of my attitude, and then Gene looked at me and said
they no longer needed my services.” (Tr. 198.) That was the end of Pohubka’s employment
with the Company. There can be no more powerful illustration that the foremen’s
recommendations were effective—they were implemented without any additional investigation
by higher levels of management. I find that the foremen possessed the power to effectively
recommend discipline both through their participation in the troika and by their own unilateral
action in reporting instances of misconduct to higher levels of management.
One additional matter related to the issue of disciplinary authority remains to be
addressed. In his brief in support of the Company’s exceptions, counsel for the Company cited
my failure to explicitly discuss whether the foremen’s authority to recommend and impose

43 The evidence showed that Yozzo did issue discipline to one employee without first
consulting her own superior. Her superior subsequently rescinded that discipline. This stands
in illuminating contrast to Phillips’ independent issuance of discipline to Rettburg.
JD–81-06
5
10
15
20
25
30
35
40
45
50
31
discipline included the element of independent judgment. In particular, he contends that the
foremen’s participation in the troika demonstrated the lack of such judgment since “only
individuals who can act independently with respect to discipline have the power to discipline.”
(R. Br. Ex., p. 25.)
In my view, this formulation confuses the power to act with the requirement of exercising
a particular degree of judgment in deciding what action to take. It is not the action which must
be independent, it is the judgment that sets the action in motion that must have certain
characteristics of independence. This is most obviously illustrated by the specific enumeration
of the power to effectively recommend the various supervisory functions described in the Act. It
is inherent in such a formulation that the person possessing such power to effectively
recommend is not an independent actor. Nevertheless, if that person applies independent
judgment to the process of making the recommendation, supervisory status is achieved. As the
Board explained in Mountaineer Park, supra, at 1476, “Section 2(11) requires only that an
individual have the authority to ‘effectively recommend’ discipline—not that he or she have the
final authority to impose it.”
In Oakwood, the Board provided further guidance to the labor law community regarding
the meaning of independent judgment. It held that the elements of such a degree of decision-
making include the power to act or recommend action “free from the control of others,” by
forming an opinion through the process of “discerning and comparing data.” Oakwood, supra,
slip op. at p. 8. Beyond this, to constitute independent judgment, the decision-making must rise
above the level of the routine or clerical and must not be “dictated or controlled by detailed
instructions,” whether such instructions come from higher officials, company policies, or the
provisions of a collective-bargaining agreement.44 Oakwood, supra.
With these guidelines in mind, it is evident that the authority possessed by Phillips and
Earley involved the application of independent judgment. During the relevant period, the
Company simply did not possess any handbook or formal disciplinary rules. In an affidavit, Baer
reported that the Company also did not have any progressive disciplinary policy. Instead, “[w]e
determine on a case-by-case basis what type of discipline to issue.” (R. Motion for Partial
Summary Judgment, Ex. C, p. 4.) Both Baer and Santos testified that written disciplinary
procedures were not effectuated until approximately one or two months before the trial of this
case. Similarly, counsel for the Company noted that there were no instructions about how to
use the corrective action forms. (R. Br. Ex., p. 6, fn. 2.) This is not a case where disciplinary
decisions were constrained by detailed rules and procedures or by the terms of a progressive
disciplinary process. Deciding whether to impose discipline and what form of discipline to
impose was essentially an unrestrained exercise of discretion on the part of the decisionmakers.
It represents the classic case of decisionmaking through application of independent judgment.
The nature of the judgments being made is constant regardless of whether the
decisionmaker is acting unilaterally or as part of the troika. In either case, no company policy,
rule, or procedure of any type was available for consultation. Thus, when any member of the
troika came to a conclusion as to which position to take with regard to the imposition of
discipline, he did so by the exercise of independent judgment. Once again, it is important not to
be misled by the fact that the troika member possessed only one vote among three. As with my

44 This does not represent any major departure from prior precedent. For example, in
Wackenhut Corp., 345 NLRB No. 53, slip op. at p. 5 (2005), the Board found a lack of
independent judgment when the discipline imposed was mandated by “detailed orders or
regulations issued by the employer.”
JD–81-06
5
10
15
20
25
30
35
40
45
50
32
hypothetical appellate judges, the point is not that it takes more than one vote. Instead, the key
factor is that the voter engages in an independent mental exercise in deciding which way to cast
that vote. In making difficult choices with far-reaching consequences up to and including
termination of employment, Phillips and Earley employed exactly the sort of decisionmaking
process intended by Congress to fall within the statutory exclusion for supervisors.
In sum, I find that the General Counsel and the Union have fulfilled their burden of
demonstrating that Phillips and Earley possessed the power to discipline and effectively
recommend discipline both through unilateral action and by their participation as
decisionmakers in the management troika that imposed the plurality of disciplinary actions on
behalf of this Employer. In exercising those powers, the foremen acted on their employer’s
behalf and operated by utilizing independent judgment. As a result, they possessed these
primary indicia of supervisory status within the meaning of the Act.
V. The Foremen’s Power to Responsibly Direct Employees
In its remand of this case, the Board instructed me to consider whether the foremen
possessed the power to responsibly direct the members of the workforce as defined in
Oakwood, supra, slip op., at pp. 5-7. Under that definition, if the foremen have employees
serving under them whom they instruct as to which tasks shall be undertaken next and who
shall perform them, they may meet the requirements for this primary indicator of supervisory
status. In that event, it is also necessary to determine whether the foremen are accountable for
the performance of the subordinate employees such that there is the possibility of adverse
consequences to the foremen for any failure of performance by those subordinates. If so, the
foremen possess the power to responsibly direct employees. If they exercise that power in the
interests of their employer and through the application of independent judgment, they are
supervisors within the meaning of the Act.
It is clear that Phillips and Earley possessed the first of these prerequisites. They
routinely determined which jobs should be undertaken next and who should undertake them.
As Van Nordwick put it:
Once we finished a project, we would either find Bud or Butch
to see what needed to be done next; and then they would assign
you to the next task.
(Tr. 338.) Furthermore, for the same reasons I have discussed in detail regarding the foremen’s
power to assign, the directions they gave their subordinates involved the application of
independent judgment, including the matching of work tasks with known skills and aptitudes of
the workers and the assessment of issues of efficiency and safety.
Although the foremen’s position involves many of the required aspects of responsible
direction, I cannot conclude that this indicator of supervisory status is present. The record is
barren of evidence showing that Phillips and Earley were held accountable for the success or
failure of their subordinate employees. Nothing in the evidence establishes whether “there is a
prospect of adverse consequences for the putative supervisor” if there is deficient performance.
Oakwood, supra, slip op. at p. 7. I recognize that one reason for this dearth of evidence is the
newness of the Company and the lack of such items as a handbook or written disciplinary
procedures. Where such things have never existed, their absence from the record cannot be
troubling.
In this connection, I note that the single item of existing documentation most likely to
JD–81-06
5
10
15
20
25
30
35
40
45
50
33
contain such evidence is the job description of the foreman position that had been written by the
Company’s vice president, Puza. The Company has repeatedly foregone the opportunity to
introduce this document into evidence. I have drawn an adverse inference from this behavior.
This inference has been a decisional factor as to other aspects of this case, issues where there
is significant other evidence that is consistent with the adverse inference. Here, however, the
adverse inference stands alone. I decline to find that the inference, by itself, constitutes
sufficient evidence to demonstrate the element of accountability. As a result, I conclude that the
General Counsel and the Union have failed to meet their burden of presenting evidence
sufficient to support a finding that the foremen possess the power to responsibly direct or
effectively recommend such responsible direction.
VI. Remaining Issues
In my original decision, I concluded that Phillips was an agent of the Company when he
engaged in certain unlawful conduct consisting of the interrogation of employees and the
creation of an impression that their organizing activities were under surveillance by the
Employer. I based this conclusion on my finding that the Company had clothed Phillips with
apparent authority to act on its behalf, particularly by making him a conduit of information from
management to the work force. In his brief in support of the Company’s exceptions, counsel for
the Company asserts that I erred in two respects. First, he contends that, although Phillips may
have been used as a conduit and so may have possessed apparent authority, there was no
finding that this authority covered the behavior at issue here.45 Second, he opines that the lack
of such authority should be evident from the fact that Phillips’ communications were at variance
with the Company’s policy toward the organizing campaign as articulated to the work force by its
owner, Daloisio.
I will provide additional clarification of my reasoning as to both of these aspects of the
agency issue. In addition, I will consider the issue of agency status in light of a decision issued
by the Board in the period since I made my original decision.
While counsel for the Company does not seriously contest my finding that Phillips was a
conduit of information between management and staff, he argues that this role was narrowly
limited to job assignment information. As he put it, “the only type of decision Phillips
occasionally relayed to employees related to work assignments to be completed.” (R. Br. Ex., p.
30.) I cannot agree. The evidence actually shows that Phillips served as a conduit of
information on a very wide array of topics.
One of the significant work functions of the foremen was the transmission of information
to the workers regarding production decisions, scheduling of work, and job assignments. Vice
President Puza testified that one of the primary purposes of having the foremen attend the
production meetings was so that,
in that way, our foremen were informed as to being to talk to the
people and say listen, we’re going to be working so many hours,
you know, notify the loved ones that you’re not going to be home
for an extra two hours a day; or you’re going to have to work six
days a week.

45 In my original decision, I characterized the subject matter of Phillips’ grant of apparent
authority as the “authority to speak on behalf of management regarding work-related questions.”
RCC Fabricators, Inc., supra, slip op. at p. 12.
JD–81-06
5
10
15
20
25
30
35
40
45
50
34
(Tr. 658.) In addition to conveying information about production decisions, work schedules, and
the need for overtime, Phillips conveyed information about layoffs. For instance, Lopez testified
that it was Phillips who informed him of his layoff. Beyond this, when Lopez telephoned Santos
to ask about the possibility of a recall to work, Santos “just passed me through [t]o Bud” for
information about this hiring issue. (Tr. 323.) Phillips also served as a conduit for the
Company’s disciplinary decisions, for example, handing Pohubka his suspension notice.
An overall appraisal of the evidence leads to the conclusion that the foremen were
employed as conduits of information about the full range of topics of concern to management
and workers. Two broad statements about this practice perfectly illustrate the point. It will be
recalled that, in a bit of self-deprecation, Earley characterized the foreman’s role as that of a
mere “messenger boy.” (Tr. 501.) While the foremen were far more than that, there is no doubt
that the relay of messages was an integral part of their role for the Company. This was clearly
articulated by Vice President Puza, who observed:
We like to keep our, our employees totally informed. And we
do that through all our companies, and with our foremen.
(Tr. 658.) Thus, the evidence establishes that the foremen, including Phillips, were regularly
utilized by management as conduits of information to the workers. More specifically, they were
employed as conduits of information about the entire range of issues regarding the terms and
conditions of their employment.
The legal effect of the Company’s use of Phillips as a conduit of information about a
wide scope of topics related to the employment of their workers was that the Company clothed
him in apparent authority. The principle is well illustrated in the case of Zimmerman Plumbing &
Heating Co., 325 NLRB 106 (1997), enf. in pertinent part 188 F.3d 508 (6th Cir. 1999), where
the Board noted that, as a general proposition,
[i]t is well established that apparent authority results from a
manifestation by the principal to a third party that creates a
reasonable basis for that party to believe that the principal
has authorized the alleged agent to perform the acts in
question. Thus, in determining whether statements made
by individuals to employees are attributable to the employer,
the test is whether under all the circumstances, the employees
would reasonably believe that the employee in question [alleged
agent] was reflecting company policy and speaking and acting
for management. [Internal quotation marks and citations omitted.]
325 NLRB at 106.
In Zimmerman, the Board found that foremen attended management meetings and were
privy to the employer’s policies and objectives. They “acted as the conduits for relaying and
enforcing the Respondent’s decisions, directions, policies and views.” As a result, “given the
position in which the Respondent had placed them, it was reasonable for the rank-and-file
employees to believe that these foremen were reflecting company policy and acting for
management when they engaged in the conduct found to be unlawful.” 325 NLRB at 106. By
the same token, having clothed Phillips with the identical broad apparent authority to speak as
to the wide range of employment issues, the Company became responsible for his conduct in
interrogating employees and creating an impression of surveillance among them. Similarly, in
JD–81-06
5
10
15
20
25
30
35
40
45
50
35
Speed Mail Service, 251 NLRB 476 (1980), the employer was held responsible for the coercive
statements made by someone who was utilized by the employer as a conduit for information
“with respect to such important matters as job assignments and layoffs.”
The second aspect of the Company’s argument on the issue of agency is the contention
that Phillips cannot be considered an agent of the Company since the conduct at issue was
merely personal behavior and was at odds with the Employer’s actual position regarding the
Carpenters Union’s organizing campaign. As to the personal aspects of the behavior under
scrutiny, the Board has taken a more realistic approach than simply deferring to the personal
nature of the words used. For example, in Mid-South Drywall Co., 339 NLRB 480, 481 (2003),
Campbell, a leadman who was found to be an agent of the employer, told two employees that,
with regard to union activities, “if he owned the business he would close it.” The Board rejected
the same argument made here, holding that:
Although Campbell phrased his statement in terms of what he would
do if it was his company, given Campbell’s role as spokesman for
management and the degree to which employees viewed Campbell
as being “in charge” of the job, we find that the employees would
reasonably view Campbell’s statement as authorized by the Respondent
or at least reflecting a shared management view.
339 NLRB at 481. Thus, Phillips’ questions and statements concerning the organizing meeting
held at the pizza parlor may have contained an element of personal content. Nevertheless, they
could also reasonably be viewed by the employees as being either directly authorized by
management or as conveying management’s opinions and concerns.
This leads to discussion of counsel’s remaining point, that management’s views actually
differed from the antiunion message implicit in Phillips remarks. In his brief in support of
exceptions, counsel for the Company contends that Daloisio told the employees that “the
Company would stand by any choice that they made with respect to union representation.”
Furthermore, “[i]t is also undisputed that the Company attempted to make arrangements for
both unions to meet with the employees on company premises.” As a consequence, “[g]iven
this official[ly] neutral Company policy with respect to union representation, no reasonable
employee would have viewed Phillips’ questions as representing a negative view held by RCC
management with respect to unions.” (R. Br. Ex., p. 35.)
This is a disingenuous depiction of the Company’s position regarding the Carpenters
Union’s organizing effort. The fact is that a reasonable employee could readily conclude that,
far from being “neutral,” the Company was opposed to the Carpenters Union becoming the
representative of its work force. At a meeting convened by management, Daloisio conveyed his
actual views quite clearly. As I described it in my original decision, Daloisio testified that,
he went so far as to tell the employees that “the Carpenters
were more—a little more expensive, in terms of their overall
package, than the Laborers Union.” (Tr. 355.) Indeed, he
noted that the employees told him that the Carpenters were
promising wages of $50 per hour. He responded by informing
them that the Laborers had shop agreements with some
components of the RCC family of companies and generally
received between $14 and $17 per hour. He coupled this with
the pointed admonition that union representation would not be
JD–81-06
5
10
15
20
25
30
35
40
45
50
36
a problem so long as any resulting agreement was “economically
advantageous to keep the company going.” (Tr. 50.)
RCC Fabricators, Inc., 348 NLRB No. 56, slip op. at p. 14 (2006). Beyond this, the Company’s
position was further underscored by the fact that, only after the Carpenters began their
organizing effort, did it extend repeated invitations to the Laborers to come into the facility to
discuss representation with the employees. In addition, while it is “undisputed” that the
Company offered the Carpenters Union an opportunity to come into the facility to address the
employees, this was only done “as part of a negotiated agreement to facilitate the
representation election.” 348 NLRB No. 56, slip op. at fn. 38. As counsel for the General
Counsel has described it, “[b]y allowing the Laborers to have continued access to employees,
the Respondent implicitly supported the Laborers, which flies in the face of Daloisio’s claim that
Respondent maintained a neutral position during the union campaign.” (GC Br. ALJ, fn. 18.)
Phillips’ statements were not inconsistent with the Company’s viewpoint. Instead, a
reasonable employee could readily discern that the foreman’s statements were congruent with
the opinions of Daloisio and reflected a shared management view of the Carpenters’ campaign.
For example, Phillips was asked if he told employees that “the employer would go out of
business with the Carpenters.” (Tr. 164.) He responded that this was “probably” accurate. (Tr.
164.) It is instructive to compare this with Iannaco’s testimony that, during a meeting, Daloisio
told the assembled employees that “he actually couldn’t afford the Carpenters Union in there.”
(Tr. 284.) The confluence between Phillips’ assertions and the Company’s expressed position
on the Carpenters Union reinforces the reasonableness of the conclusion that Phillips was an
agent of the Company when discussing the representation issue.
As with the issue of supervisory status, the Board’s views concerning apparent authority
have continued to evolve through the adjudicatory process in the time since my original
decision. In particular, in Facchina Construction Co., 343 NLRB 886 (2004), enf. 180 Fed.
Appx. 178 (D.C. Cir. 2006), the Board addressed the agency status of a foreman who had made
coercive antiunion statements.46 As the Board’s reasoning applies directly to the circumstances
of this case, I will quote it at some length:
Here, the evidence demonstrates that the foremen serve as
conduits between employees and management, i.e., that
management routinely communicates with employees through
its foremen and receives information about employees from its
foremen. Employees receive their daily assignments and work
instructions from the foremen. Foremen are responsible for
overseeing employees’ work and instructing them to redo work if
it is done incorrectly. When the discriminatees were discharged by
the Respondent, it was [the foreman] who informed them of their
discharge. If employees need to leave work early, or need some
time off, they inform the foremen. Foremen regularly report to
[the] superintendent about personnel issues and other problems
that arise during the course of the day. In these circumstances, we

46 Interestingly, given the great similarity in the facts as will be apparent upon reading the
portion of the case about to be quoted, the administrative law judge found that the foreman was
not only an agent, but also a statutory supervisor. Because of the more limited nature of the
issue in that case, the Board held that it was unnecessary to pass on the judge’s finding of such
supervisory status. See, 343 NLRB at 889, fn. 4.
JD–81-06
5
10
15
20
25
30
35
40
45
50
37
conclude that employees would have reasonably believed that [the
foreman] was speaking on behalf of management when he engaged
in the conduct at issue.
The Respondent argues that the judge’s finding of agency is precluded
because there is no evidence that [the foreman] was instructed by
[the superintendent] to engage in the above-mentioned conduct. We
reject this argument. A finding of apparent authority here does not turn
on whether [the foreman] was acting pursuant to specific instructions by
the Respondent; rather, it turns on whether the Respondent placed [the
foreman] in a position in which employees could reasonably believe he
was speaking on behalf of management. [Footnote and citation omitted.]
343 NLRB at 887.
Finding no meaningful distinction between the facts described above and the situation I
must address in this case, I readily conclude that Phillips was clothed in the apparent authority
to speak regarding the wide range of employee concerns relating to the terms and conditions of
their employment. When he engaged in interrogations and the creation of an impression of
surveillance, reasonable employees were entitled to conclude that his views were either
“authorized by Respondent or at least reflecting a shared management view.” Mid-South
Drywall Co., supra, at 481.
Because of his status as supervisor and agent, I determined that the Company was
responsible for certain statements made to employees by Phillips on the day following the
Union’s organizational meeting at the pizza parlor. In particular, Phillips informed employees
that he was aware of the meeting and asked detailed questions regarding the identity of persons
attending the meeting and about the nature of the discussions at that event. I found that this
behavior, when considered in its full context, constituted the unlawful creation of an impression
of employer surveillance of protected activity and unlawful interrogation of employees in
violation of Section 8(a)(1) of the Act. In the period since my decision, the Board has continued
to apply the same lodestar principles in analyzing such allegations. For example, regarding
interrogations, compare American Red Cross Missouri-Illinois Blood Services Region, 347
NLRB No. 33 (2006) (unlawful interrogation found where, on the day after an organizational
meeting, company official asked employee who had attended that meeting) with Amcast
Automotive of Indiana, 348 NLRB No. 47 (2006) (questioning found lawful where it did not
attempt to uncover the union sympathies and activities of any employee). As to the impression
of surveillance, see Spartech Corp., 344 NLRB No. 72 (2005) (employer’s agent’s statement
that company knew who had attended organizational meeting held a day or two earlier
constituted creation of unlawful impression of surveillance); and Dallas & Mavis Specialized
Carrier Co., 346 NLRB No. 27 (2006) (employer’s manager created improper impression of
surveillance when, 2 days after an offsite organizational meeting, he told an employee that he
was aware of the union’s organizing effort). Given the continuity of the Board’s approach to
these issues, I continue to conclude that Phillips’ statements were unlawful.
VII. Summary
Applying the Board’s analytical standards for determination of supervisory and agency
status, including the clarifications enunciated in Oakwood, Croft, and Golden Crest, supra, I
conclude that the General Counsel and the Union have met the burden of establishing that
Phillips and Earley possessed primary indicia of supervisory status, including the powers to
assign, effectively recommend assignment, discipline (including suspend, layoff, and discharge),
JD–81-06
5
10
15
20
25
30
35
40
45
50
38
and effectively recommend such discipline. They exercised these powers on behalf of their
employer and did so through application of independent judgment.47 In addition, by regularly
using him as a conduit of information, the Company vested Phillips with apparent authority to
speak on its behalf as to matters related to the employees’ terms and conditions of employment.
When Phillips made certain statements that constituted unlawful interrogations of employees
and the improper creation of an impression that the employees’ protected activities were under
employer surveillance, he acted as a supervisor and agent of the Company.
Before letting this matter rest, I believe it is appropriate to step back from the necessary,
but sometimes tedious, discussion of the minutiae involving the issue of supervisory status and
reflect on the purpose underlying the statutory exclusion. As the Board noted, the exclusion
from a collective-bargaining unit of those employees “whose fundamental alignment is with
management,” is at the “heart” of the statutory provision involved in this case.48 Oakwood,
supra, slip op. at p. 7. The evidence establishes that Phillips and Earley are so aligned,
particularly in the critical areas analyzed in this decision. If one were to imagine that the
Company’s production employees were participating in a collective-bargaining unit that included
their foremen, the issues in this remand are brought into sharp focus. At such a hypothetical
union meeting, the rank-and-file employees would certainly wish to discuss those terms and
conditions of their employment that should be subject to future contract negotiations with their
employer. It is clear from the record that controversy surrounds the Company’s current
practices in the areas of assignment and discipline. Would a line employee feel at liberty to
raise the suggestion that onerous chores such as sweeping the shop should be assigned by
seniority? Would that same employee be comfortable in raising the suggestion that disciplinary
procedures should include uniformly applied predetermined progressive steps? It is difficult to
conceive that the presence of the persons who currently wield such unrestrained power in these
areas would not have a chilling effect.49 The community of interest essential to the success of
collective bargaining would be absent. The foremen’s fundamental alignment with management
would preclude effective participation of the work force in the labor relations scheme created by
Congress through passage of the Act.

47 Although not central to my post-Oakwood analysis, I note that the foremen possessed
numerous secondary indicia of supervisory status, including the title of “supervisor;” the
provision of office space for their use; their attendance and participation in production meetings;
their prominent role in rating the performance of the production employees; their authority with
regard to documentation of time and attendance; the issuance of company credit cards for their
own use and for provision to other employees assigned to tasks outside the facility; and the
subjective opinions of production employees that the foremen were their supervisors. See
Palagonia Bakery Co., 339 NLRB 515 (2003) (application of secondary indicia, including the
opinions of other employees); McClatchy Newspapers, Inc., 307 NLRB 773 (1992) (use of
secondary indicia, including attendance at management meetings and access to supervisory
office space); and NLRB v. Chicago Metallic Corp., 794 F.2d 527 (9th Cir. 1986) (propriety of
consideration of secondary indicia, including perception of other employees).
48 Of course, this exclusion is designed to protect the interests of both labor and
management. As the Supreme Court noted, in part, the exclusion reflects Congressional
concern about creating “divided loyalty” among supervisory employees. NLRB v. Yeshiva
University, 444 U.S. 672, at fn. 17 (1980).
49 I do not mean to cast any aspersions against Phillips or Earley. They both seemed like
decent people. Even the most well-intentioned boss can be influenced, consciously or
otherwise, by opinions and criticisms voiced by subordinates.
JD–81-06
5
10
15
20
25
30
35
40
45
50
39
Conclusions of Law
1. The General Counsel and the Union have met their burden of proving that, at all
relevant times, the Company’s shop foremen, James Phillips and Ronald Earley, were
supervisors within the meaning of Section 2(11) of the Act.
2. The General Counsel has met his burden of proving that, at all relevant times, James
Phillips was an agent of the Company with apparent authority to speak on behalf of the
Company regarding matters related to the terms and conditions of employment of the
Company’s work force.
3. By interrogating employees regarding their protected, concerted activities and the
protected, concerted activities of other employees, the Company, through its supervisor and
agent, James Phillips, violated Section 8(a)(1) of the Act.
4. By creating an impression that employees’ protected, concerted activities were under
surveillance by their employer, the Company, through its supervisor and agent, James Phillips,
violated Section 8(a)(1) of the Act.
5. Because James Phillips and Ronald Earley were supervisors within the meaning of
Section 2(11) of the Act, they were not eligible to vote in the representation election held on
November 21, 2002. The challenges to their ballots should be sustained.
Remedy
Having found that the Company has engaged in certain unfair labor practices, I conclude
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act. In particular, I recommend that the Company be ordered to
post notices in the usual manner.
Having found that none of the challenged ballots should be counted, I recommend that
an appropriate Certification of Results of Election be issued.
On these findings of fact and conclusions of law, and on the entire record, I issue the
following recommended50 order and certification of representative.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots have been cast for Piledrivers Local
454 a/w Metropolitan Regional Council of Carpenters, Eastern Pennsylvania, State of Delaware
and Eastern Shore of Maryland, and that it is the exclusive collective-bargaining representative
of the employees in the following appropriate bargaining unit:
All full time Layout Men, Machinists, Mechanics, Shop Laborers,
Welders, and Welders/Fitters employed by the Employer at its
2035 State Highway 206 South, Southampton, New Jersey facility,

50 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 objections to them shall be deemed
waived for all purposes.
JD–81-06
5
10
15
20
25
30
35
40
45
50
40
but excluding all other employees, including clerical employees,
guards, and supervisors as defined in the Act.
ORDER
IT IS ORDERED that the Respondent, RCC Fabricators, Inc., Southampton, New
Jersey, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating its employees regarding their union sympathies or their
participation in protected, concerted activities or regarding the union sympathies or participation
in protected, concerted activities of other employees.
(b) Creating an impression that its employees’ protected, concerted activities are
under surveillance by their employer.
(c) In any like or related manner interfering with, restraining, or coercing employees
in the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its facility in Southampton,
New Jersey, copies of the attached notice marked “Appendix.”51 Copies of the notice, on forms
provided by the Regional Director for Region 4, after being signed by the Respondent's
authorized representative, shall be posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and former employees employed by
the Respondent at any time since October 10, 2002.
(b) Within 21 days after service by the Region, file with the Regional Director a
sworn certification of a responsible official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.
Dated, Washington, D.C. January 30, 2007
_____________________
Paul Buxbaum
Administrative Law Judge

51 If this Order is enforced by a Judgment of the United States Court of Appeals, the words
in the notice reading “POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD”
shall read “POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF
APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD.”
JD–81-06
Southampton, NJ
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT coercively question you about your union support and activities or the union
support and activities of other employees.
WE WILL NOT create an impression that your union activities are being placed under
surveillance by us.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Federal labor law.
RCC FABRICATORS, INC.
Employer
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
615 Chestnut Street, One Independence Mall, 7th Floor, Philadelphia, PA 19106-4404
(215) 597-7601, Hours: 8:30 a.m. to 5 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (215) 597-7643.