United Resource, Inc.

National Labor Relations Board - Board Decisions

Dec 14, 1972

200 N.L.R.B. 914 (N.L.R.B. 1972)

914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Resources , Inc. and Country Club of Miami
Corporation and Carpenters District Council of
Miami, Florida and Vicinity. Case 12-CA-5319
December 14, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On August 2, 1972, Administrative Law Judge'
Samuel M . Singer issued the attached Decision in
this proceeding . Thereafter , Respondent and the
Charging Party filed exceptions and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three -member panel.
The Board has considered the record2 and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,
findings,3 and conclusions of the Administrative Law
Judge and to adopt his recommended Order.4
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, United Resources,
Inc. and Country Club of Miami Corporation,
Miami, Florida, its officers, agents, successors, and
assigns, shall take the action set forth in the said
recommended Order.
i The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972
2 The Respondent has requested oral argument This request is hereby
denied as the record, the exceptions, and the briefs adequately present the
issues and positions of the parties
3 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions were incorrect Standard Dry Wall
Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 3) We have carefully
examined the record and find no basis for reversing his findings
4 It appears that a majority of the Employer's employees are Spanish-
speaking and do not understand English We therefore order that the
Appendix attached to the Administrative Law Judge's Decision be posted in
both English and Spanish
TRIAL EXAMINER'S DECISION
SAMUEL M. SINGER, Trial Examiner: This proceeding
was heard before me in Miami, Florida, on May 16-22,
1972, pursuant to a complaint dated March 9, 1972, based
upon charges filed on September 17 and 21, 1971, and
March 3, 1972. The complaint alleges that Respondent
violated Section 8(a)(1) and (3) of the Act. All parties
appeared and were afforded full opportunity to be heard
and to examine and cross-examine witnesses. At the end of
the hearing General Counsel and Respondent presented
oral argument. Briefs were received from Respondent and
Charging Party. Upon the entire record' and my observa-
tion of the testimonial demeanor of the witnesses, I make
the following:
FINDINGS AND CONCLUSIONS
1. BUSINESS OF RESPONDENTS; LABOR ORGANIZATION
INVOLVED
The complaint alleges, and at the hearing Respondents
admitted, that they are Florida corporations; that they are
affiliated businesses, with common officers and directors;
that they constitute a single employer in which the
directors and officers formulate and administer common
labor policy affecting their employees; that during the past
year Country Club of Miami, which is engaged in the
construction and sale of homes in Miami, Florida,
purchased and received goods and materials valued in
excess of $50,000 from points outside of Florida; and that
Respondents, as a single employer, at all material times
have been and are engaged in commerce within the
meaning of the Act. I so find.2
Carpenters, District Council of Miami, Florida and
Vicinity (the Union) is a labor organization within the
meaning of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Interference, Restraint, and Coercion
The complaint alleges that beginning around August 31,3
and continuing to the date of complaint, Respondent,
through two of its officials (Vice President Brugnetti and
his administrative assistant, Polanco), has interfered with,
restrained, and coerced its employees in the exercise of
rights guaranteed in Section 7, in violation of Section
8(a)(1) of the Act, by telling employees that any problems
between them and the Company "should be settled"
among themselves without "outside help;" by stating that
Respondent had planned for them "more benefits," but
had "no intentions of going union;" by threatening to
"close down" the construction job at which they were
working "before going union"; by telling employees
wanting a union that they were "welcome to leave"; and by
i General Counsel's unopposed action, dated July 7, 1972, to correct the
transcript is hereby granted It is further ordered that the following
additional typographical and obvious errors in the transcript be and hereby
are corrected as follows at page 145 , line 11, substitute "and don't talk" for
"and talk;" at page 434 , line 14 , "elicit" for "solicit", and at page 504, line
12, "have not already" for "have already."
2 The two named corporations will hereafter be referred to collectively as
Respondent
3 Unless otherwise indicated, all dates are 1971
UNITED RESOURCES, INC
requesting its employees to sign and send to the National
Labor Board 's regional office letters repudiating the
Union Although all these allegations were denied in its
answer, Respondent admitted them at the hearing, express-
ly stating that it had no objection to a finding that
Respondent committed the unfair labor practices charged
Accordingly, I find and conclude that Respondent
violated Sectioli 8(a)(1) of the Act by the acts and conduct
above enumerated
B The Alleged Discriminatory Discharges
The complaint alleges that Respondent discrmimatonly
discharged or laid off the following seven "employees" on
September 10 or 20 because of their membership in or
activity on behalf of Charging Party, in violation of Section
8(a)(3) and (1) of the Act
Domingo Garcia Jesus Sentmanat
Humberto Gonzalez Juan Carballo
Remaldo Hernandez Nicolas Valladares
Jose Rivero
As in the case of the independent 8(a)(1) allegations,
Respondent in its answer denied the 8 (a)(3) discriminatory
discharge allegations , but at the hearing admitted them
insofar as concerns the first five named individuals As to
the two remaining ones (Carballo and Valladares), it
consented to a finding that these two were also discnmana-
tonly discharged in violation of Section 8(a)(3) and (1), but
only if it is also found that the two men were "employees"
within the meaning of the Act According to Respondent,
Carballo and Valladares were supervisors not subject to
the protection of the statute
In view of the foregoing admissions, I find and conclude
that, as alleged in the complaint , Respondent discriminato-
nly discharged the following five employees on September
10 or 20 (as the case may be), in violation of Section 8(a)(3)
and (1) of the Act Domingo Garcia, Humberto Gonzalez,
Reinaldo Hernandez , Jose Rivero, and Jesus Sentmanat
The only remaining issue-and the one vigorously litigated
at the hearing-is whether Carballo and Valladares are
"employees," as contended by General Counsel and
Charging Party, or "supervisors" as contended by Respon-
dent
C The Employment Status of Carballo and
Valladares
1 Introduction
a General credibility resolutions
In its brief, Respondent asserts that "much of the
testimony presented by Respondents was uncontroverted,"
but it also recognizes that "there are credibility conflicts
which [the] Trial Examiner may find necessary to resolve "
There is indeed sharp conflict in testimony on the most
crucial points left in the case , namely, the indicia of
supervisory status (authority to hire and fire or effectively
recommend such action, responsible direction of employ-
ees, etc ) which require resolution In support of its position
that Carballo and Valladares were supervisors , Respondent
915
called two major witnesses (Assistant to the Superinten-
dent Polanco and General Foreman Castellano), and
General Counsel called three (Carballo, Valladares, and
former Foreman Feliciano) to show that they were not Of
all witnesses , Polanco impressed me as least credible He
often testified in vague and broad generalizations, dis-
played poor power of recollection (see e g , infra, fns 10, 11
and section C 3), and claimed to have vast knowledge of
Carballo's and Valladares ' activities and responsibilities on
the jobsite although he admittedly spent only a small
portion of his time outside his trailer Furthermore, he
seemed eager to conform his testimony to what he
considered to be in the best interest of his employer, and he
was personally involved in the unfair labor practices
admitted by the Employer, including urging unionists to
send letters to the Board repudiating the Union Castellano
struck me as more reliable than Polanco , but he was far
from the "neutral, disinterested witness" Respondent
portrays him to be Although first testifying that he was
now unemployed , thereby implying that he severed his
connection with Respondent, it later developed that
Castellano 's failure to work at the time of the hearing was
due to an automobile accident , that he was drawing
unemployment compensation , and that his return to work
for Respondent is by no means foreclosed General
Counsel witness Feliciano , a discharged foreman, dis-
played a tendency to exaggerate and color his testimony,
but his testimony on essential matters was consistent with
(and corroborative of) testimony given by Carballo and
Valladares The latter two, although the center of litigation,
impressed me as the most sincere and truthful witnesses in
this proceeding and I credit their testimony in full As
Respondent emphasizes , both made some admissions
adverse to their personal interests, but certainly not to the
extent Respondent would have me believe To be sure, as
Respondent stresses , both stand to gain a monetary
advantage (backpay) if found to be employees , but by the
same token Respondent stands to gain financially in the
same proportion it stands to lose if it establishes (through
its officials) that they were in fact supervisors Moreover,
as we shall see (fn 7), some of the claimed admissions are
not really admissions, but misstatements due to linguistic
imprecision and unfamiliarity with idiomatic English
Accordingly the findings that follow, to the extent based
on resolution of conflicting testimony as between Carballo
and Valladares on the one hand and company testimony
on the other hand , are based on the credited testimony of
these two employees
b Respondent's operations and work force
During the 3- or 4-month period prior to the discharges
here involved (i e, September 10), Respondent was
constructing a 40-unit townhouse complex and a 29-unit
condominium It also was working on three "model"
projects , a house for a Dr Sierra , and a remodeling of its
Clubhouse kitchen The distances between the various
projects or jobs ranged from 2 to 6 blocks, but company
official Polanco testified that the longest diameter between
the remotest areas (Clubhouse to Model C) could be as
much as 2 miles Company Vice President Brugnetti was in
charge of all construction Under him in the chain of
916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
command came the superintendent (Arrington, later
succeeded by Price), and then the general foreman
(Castellano) Respondent's witness Polanco testified that,
while Castellano was in charge of construction, he was in
charge of administration-both men under the direction of
the superintendent In addition to handling administrative
matters, including processing hiring (W-2 and health
forms), requisitioning supplies, and checking safety condi-
tions, Polanco was in charge of a special 4-man "finishing-
up crew" (carpenters and laborers) which completed all
necessary work on houses or apartments to assure they
were in good condition before purchasers took possession
It is conceded that Samuel Feliciano was a supervisor-
-foreman of carpenters and answerable to General
Foreman Castellano
The record establishes that Respondent employed two
major classification of employees at its jobsite, namely,
carpenters and laborers A carpenter could also perform
"layout" work 4 so that at times he would work as part of a
"carpenter crew" and at times as part of a "layout crew "
The layout crew consisted of two men and the carpenter
crew of three-one of them a laborer Laborers, not
assigned to a carpenter crew, performed such work as
hauling trash, and bringing materials to and otherwise
assisting carpenters During the period here involved
(approximately 3 months before the first September 10
discharges), the number of Respondent's carpenters (ex-
cluding admitted supervisors) ranged from around 14 to 20
on any given day and its laborers from around 13 to 25 5
The number of employees during the last week in which
the two disputed employees (Carballo and Valladares)
were employed did not exceed 15 in each job classification
Also during the period here involved, employees of
various contractors worked on the jobsite-including
plumbers, electricians, plasterers, and roofers-but these
were supervised by the contractors or their own foremen
2 Carballo's employment
Juan (Tony) Carballo, 24 years old, worked for Respon-
dent for about 3-1/2 months prior to his discharge on
September 10 He obtained his carpenter's position when
his friend, employee Donungo Garcia, told him of the
vacancy, asked him if he knew "how to do that kind of
work," and sent him to see General Foreman Castellano
When Carballo saw Castellano the next day, the latter
interviewed and hired him as a carpenter at the prevailing
$5 hourly rate
About a week later, Castellano asked Carballo if he
could read blueprints, when told that he could, Castellano
put him on layout work, increasing his hourly rate to $5 25
4 Layout work basically entails reading blueprints using a transit and
tape to establish dimensions of the slab to be poured and setting up points
for walls, carports columns and beams
5 Based on C P Exh 1 and 2 Respondent s timebooks list, respectively
hours worked from June 14 through September 8 by named carpenters and
laborers The precise figures are difficult to determine since in some cases
names are scratched Respondent s official, Polanco, testifying without the
benefit of company records, stated that the number of men on the Jobsite
varied considerably from time to time somewhere between 25 and 50
people
6 I credit Carballo s denial that when his hourly wages were increased
from $5 to $5 25 and he allegedly was made foreman he was given the
According to Castellano, he knew that Carballo had no
experience in this field, but he and his superior (Superin-
tendent Arrington) were confident that Carballo could do
the work Carballo spent 20 percent of his time as a layout
man and the remainder as a carpenter working "along with
the [carpenter] crew " At least one other carpenter (Ramon
Gaztambide) also did layout work during Carballo's
employment Castellano or Foreman Feliciano assigned
this work to Carballo after a block mason foreman, for
example, informed Castellano that he needed a layout
However, the property points had already been checked
and marked before Carballo commenced the job Carballo
would select a carpenter or even a "smart laborer" as his
"helper" or have one assigned to him by Castellano or
Feliciano The helper's job consisted of holding up the
grade stick or ruler, or the other end of a tape, and
otherwise helping Carballo set up the points where the
walls, beams, etc were to be placed (supra, In 4) It was
Carballo's "responsibility" to see that the markings were
made as called for in the blueprints According to
Castellano, Carballo also saw to it that the crew (carpen-
ters and laborers) following behind him and his helper put
up the forms and did the other work in accordance with
the blueprint specifications At times, Castellano would tell
Carballo to select the men he needed to do certain jobs
"like building foundations and slabs "
Insofar as his carpentry work was concerned-to which
he devoted 80 percent of his time-Carballo worked along
with the carpenter crew after completing his layout work
As carpenter, he did such work as building and nailing
forms and putting standing up columns, beams, "and
everything," normally under the supervision of Foreman
Feliciano (who was in charge of the carpenter crews) and
at times under General Foreman Castellano, Feliciano's
superior Carballo always wore a nail apron (to hold tools
and nails)-as layout man or carpenter, neither Supervi-
sors Feliciano or Castellano wore such an apron Unlike
the latter, Carballo was required to punch the timeclock,
which Respondent installed for the first time shortly before
his discharge He was paid on an hourly basis, unlike
Castellano and Feliciano who were salaried 6 Prior to
institution of the timeclock, when the hours worked by
carpenters and layout men were recorded in a timebook, it
was Feliciano, not Carballo, who kept track of the hours
worked and made the appropriate entries 7
In addition to his layout and carpentry duties, Carballo
frequently transmitted General Foreman Castellano's
orders to other carpenters The record shows that the great
bulk of the employees at the construction site, particularly
carpenters, were Spanish-speaking Cubans Unable to
communicate in Spamsh, Castellano called upon Carballo
option to go on a guaranteed weekly salary It is hard to believe (as
Polanco and Castellano testified) that Carballo and Valladares had insisted
on remaining on an hourly basis while all admitted supervisors (including
Castellano and Feliciano) elected to be paid a guaranteed weekly salary,
regardless of the hours worked or hours lost due to inclement weather
r While the timebook invariably described Castellano and Feliciano as
Foreman Carballo is only rarely listed with the designation fore or
F leaving the impression that the marginal marking to that effect-unlike
those for conceded foremen-may have been added to the timebook after
Respondent s need arose to justify its position that Carballo was a
foreman
UNITED RESOURCES, INC
(and a few other bilingual individuals, including Feliciano
and Valladares) to translate and relay his orders 8
Admittedly Carballo had no authority to hire or fire
employees Often short of help, Castellano would ask
Carballo and others to refer "friends" and acquaintances,
which they did, sending the men directly to Castellano 9
When the latter asked Carballo if he knew an applicant's
qualifications and Carballo said he knew him to be a
"good" carpenter from another job or because other
employees had described him as such, Castellano would
hire the man on Carballo's "recommendation " As previ-
ously noted, Carballo himself was hired by Castellano after
his "friend" Domingo Garcia described the nature of the
work and referred him to Castellano 10 As to his authority
to discharge or recommend discharges, Respondent ad-
duced evidence as to only one incident Carballo on one
occasion complained to Castellano that Iglesias, his
partner in a carpenter crew working under Castellano, had
set the stakes incorrectly on a form they were building
Castellano himself went to the site to "make sure
[Carballo] was telling the truth" and later in the day
discharged Iglesias 11 Carballo testified credibly that in
addition to lack of authority concerning discharges or
effectively to recommend them, he had no authority to
discipline and could not grant time off to any employee
3 Valladares' employment
Nicolas Valladares, 20 years of age, was hired as a
laborer and worked for Respondent for 3 or 4 months until
discharged on September 10 He had not previously
worked on any construction job, his last previous job
having been nonsupervisory factory work as a door
assembler About a month after hired, General Foreman
Castellano told Valladares that he was being made "labor
foreman" and "will try to get" him a raise, that Castellano
"was going to tell [him] what to do and [Valladares] should
[in turn] tell the laborers", and that Valladares would be a
"working foreman" and his responsibilities would include
locking up and guarding the tools Two weeks later
8 In attempting to establish that Carballo was a foreman and supervisor
giving orders to employees Respondent s counsel confronted Carballo with
his prehearing affadavit in which he had stated that he worked as a
pusher and my duties as a pusher was to help Castellano Asked at the
hearing what he meant by pusher Carballo said a translator explaining
that Castellano who spoke no Spanish would tell him You go tell these
guys what I want to do I want a carport 21 by 8 foot wide tell those
guys that couldn t understand his English and tell them what got to be
done Ca-ballo who had studied English in Cuba before coming to Florida
5 years ago did indeed speak English well enough to translate and transmit
Castellanos orders but his spoken English at the hearing leads me to
believe that he was unfamiliar with many words and certainly not with
idiomatic expressions It is not at all surprising, as he tried to demonstrate at
the hearing that Carballo had used the term pusher in his affidavit to
denote that he was pushing' his fellow employees in his native language to
do the work Castellano was directing him to relay As already pointed out
Carballo impressed me as a sincere and honest witness In any event
pusher does not necessarily equate with foreman much less with a
supervisor as defined in the Act
9 Castellano testified every day in the week I was always screaming for
men
io General Counsel witness Hernandez testified that he was hired by
Castellano in like fashion after being referred to Castellano by Garcia
Company witness Sentmanat s testimony does not support Respondent s
contention that he was hired by Carballo Sentmanat testified only that
Carballo found me work indicating (as Carballo testified regarding usual
917
Valladares was assigned to drive a truck with instructions
that he was to be the "only" one to drive it He was paid
$3 50 an hour after he became foreman, compared to the
$3 rate paid laborers 12
As previously noted (supra, section C 2), some of
Respondent's laborers were assigned to carpenter crews
while others performed general labor such as hauling trash
and bunging materials to and generally assisting carpen-
ters Valladares personally performed manual work
Although carpenters themselves could pick and choose
laborers to work with them, Valladares could and did
supply laborers to carpenter crews on request by Castella-
no or Feliciano (the carpenter foreman) He opened the
toolshed each morning for carpenters and laborers to
obtain equipment and collected the tools in the evening,
using a wheelbarrow or truck for that purpose He also
brought the workmen ice each morning to put into kegs for
cold drinking water He drove the company truck around
the project and, sometimes with the assistance of other
laborers, moved plywood and other materials from place to
place and picked up garbage and weeds "and stuff like
that " It was his responsibility to insure that the carpenters
were furnished needed materials His duties also included
helping, along with other laborers, to pour concrete, and
making sure that the foundations were properly compacted
prior to a pour
Valladares, like Carballo, was bilingual It was his
responsibility to convey General Foreman Castellano's
instructions regarding work to be done by the laborers-in-
structions which he received from Castellano during as
well as at the beginning of the day Valladares saw to it
that laborers were busy and working, if he noticed a
laborer idle or out of work, he would "show him what he
had to do" or report him to Castellano However, he was
never told that he had the right to reprimand employees
and he never had occasion to discipline any, indeed,
Valladares himself and two other laborers were at least
once reprimanded for "sitting down waiting for the rain to
stop " Like other laborers, Valladares punched the time-
clock installed shortly before his discharge Prior to then,
procedure) that Carballo had told Sentmanat about a vacancy the nature of
the job, and the wages Carballo later took Sentmanat to Respondents
office According to General Counsel Feliciano s credited testimony, it was
he (an admitted supervisor) who introduced Sentmanat to Castellano and
the latter hired him upon Feliciano s assurance that he knew Sentmanat as a
good man I do not credit Assistant Superintendent Polanco's testimony
that Carballo had hired too many' men to enable him to recall or that it
was he (Polanco) who hired men, including Sentmanat upon Carballo s
recommendation As already stated, Polanco impressed me as an unreliable
witness with poor power of recollection Both Carballo and Feliciano
rebutted Polanco s testimony (which was based on a list of suggested names
furnished him by Company counsel) that Carballo had hired or recom-
mended the hiring of certain named individuals
i i Carballo s account of the incident is in part corroborated by Foreman
Feliciano who testified that Carballo and Iglesias were at the time working
on a carport as part of Castellano's crew and that he too, had complained
about Iglesias performance and recommended his discharge Castellano
recalled the Carballo Iglesias incident but frankly admitted he could not
remember the details Polanco in typical fashion sought to exaggerate
Carballo s authority regarding discharges asserting that Carballo had
discharged employees many times , but he could not name any other than
Iglesias
12 Like Carballo, Valladares credibly denied that he was given the
choice of going on a guaranteed weekly salary or taking the increased
hourly rate (supra In 6)
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he kept the record of the time put in by laborers in the
company timebook when told to do so by Castellano-on
the average of 2 or 3 days a week He had no authority to
grant overtime work or select employees to work overtime,
but he did relay Castellano's requests for overtime
volunteers Nor did he have authority to grant leave or
time off, or to excuse absences
As in the case of Carballo, Respondent admits that
Valladares had no authority to hire or fire, contending only
that he effectively recommended hiring and firing Never-
theless, Respondent's official Polanco, testified that Valla-
dares had actually hired and fired laborers, without any
check or investigation by Respondent I do not credit
Polanco's testimony 13 I credit Valladares' testimony that
he had no hand whatever in hiring or firing any employee
and, indeed, that he never even told anybody that there
was a job vacancy or brought anyone to the jobsite to fill
one Admittedly, Polanco independently recalled only one
employee (Domingo Garcia, Jr, a summer student) as
allegedly hired by Valladares, under unrecalled "details "
On the other hand, Feliciano (the carpenter foreman), who
vividly recalled the incident, testified credibly that it was
he who asked General Foreman Castellano about hiring
young Garcia and his schoolmate (Feliciano's younger
brother) 2 weeks before school ended and Castellano
agreed to hire them as laborers 14 Although Polanco
further testified that Valladares hired "very often," he
could name no other employees until his memory was
"refreshed" by company counsel, but this testimony was
similarly vague and indefinite, was in part rebutted by
Feliciano, and was entirely contradicted by Valladares
For similar reasons, I discredit Polanco's testimony
regarding certain individuals named by him (almost all
identified after his memory was "refreshed" by counsel) as
having been fired by Valladares Not only did the latter
credibly deny the actions attributed to him, but credibly
testified that he did not even know some of the men
named Respondent's own witness, General Foreman
Castellano, failed to corroborate Polanco Asked if he
recalled Valladares firing anybody, Castellano said, "Val-
ladares would more or less come to me each individual
had the right to go to the office and turn the man's name in
[Valladares] would go to Sam Feliciano and Sam
Feliciano would come and tell me to show that he
[Valladares] didn't have really anything to do with it, you
know shoving the buck "
4 Conclusions
Section 2(11) of the Act defines a "supervisor" as
follows
any individual having 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, 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
In his brief, counsel for Respondent correctly recites some
of the criteria used by the Board and courts in determining
whether an individual falls within the above definition As
he aptly states, "the requirements of this Section of the Act
are disjunctive, not conjunctive " However, as emphasized
in Poultry Enterprises, Inc v N L R B, 216 F 2d 798, 802
(C A 5), "[a]lthough the statute states various sorts
of supervisory authority coupled by the disjunctive
(or ), it states the requirement of independence of
judgment in the conjunctive (i e, in connection) with
what goes before " See also N L R B v Security
Guard Services, Inc, 384 F 2d 143, 146-147 (C A
5) Thus, the exercise of some supervisory tasks in a merely
"routine," "perfunctory," or "sporadic" manner does not
elevate a rank-and-file employee into the supervisory
ranks Poultry Enterprises, supra, at 801-802, Security
Guard Service, supra at 149, N L R B v Overrate Transpor-
tation Co 308 F 2d 284, 289-290 (C A 4) "Every order-
giver is not a supervisor " Security Guard Service, supra, 384
F 2d at 151 "Whether an employee is a supervisor is a
question of fact," Dubin-Haskell Lining Co v N L R B,
375 F 2d 568, 570 (C A 4), and "the important thing is the
actual duties and authority of the employee, not his formal
title " N L R B v Quincy Steel Casting Co, 200 F 2d 293,
296 (CA 1)
Applying these principles to the facts found, I find and
conclude that Carballo and Valladares, although employed
and regarded by Respondent as valued key employees-as
evidenced by some of the tasks especially assigned them
and the somewhat higher hourly wages paid them-they
were nevertheless not vested with any of the indicia of
supervisory status enumerated in Section 2(11) of the Act
Neither possessed the right to hire, fire, reward, discipline,
or discharge, or to effectively to recommend such action
Nor did they responsibly direct other employees as would a
supervisor They spent all, or practically all, of their time
working physically with and alongside other employees in
their job classifications To be sure, Carballo could select a
carpenter or "smart laborer" to help him in his most
important (layout) work and to see that the work
conformed to blueprint specifications, and at times
General Foreman Castellano would permit him to select
the men he needed for certain jobs such as building
foundations Similarly, Valladares was authorized to select
and supply laborers to carpenter crews under and in
accordance with General Foreman Castellano's or Carpen-
ter Foreman Feliciano's instructions, and he could check
to see whether idle laborers were occupied Moreover, both
transmitted and relayed specific instructions of acknowl-
edged managerial officials (Castellano and Feliciano)
However, the credited evidence establishes that all of these
tasks were routine in nature, requiring little if any
independent judgment and that the two men were little
more than conduits as opposed to management spokes-
men In short, Carballo and Valladares were at best
"leadmen" or "straw bosses," but this factor does not
"require that they be put in the supervisor class, and so
deprived automatically of the organizational privileges of
13 I have already expressed my reservations about Polanco s reliability as corroborate Polanco s sweeping testimony as to other hirings (and firings)
a witness (supra section C 1 and fns 10 and 11) by Valladares
14 Castellano did not contradict Feliciano s testimony nor did he
UNITED RESOURCES, INC
the Act " NLRB v Browne & Sharpe Mfg Co, 169 F 2d
331, 335 (C A 1) See also Quincy Steel Casting, supra, 200
F 2d at 296, Meier Electric & Machine Co Inc, 107 NLRB
143 "The natural alignment of [the two employees] was
not with management There was no showing
that [their] duties gave [them] the feeling of control, power,
or superiority that one finds in a supervisor " Security
Guard Service, supra, 384 F 2d at 15015
Accordingly, I conclude that Carballo and Valladares
were not supervisors within the meaning of Section 2(11) of
the Act Since, as noted supra (section B), Respondent
stipulated to a finding that these two were discnmmatonly
discharged in violation of Section 8(a)(3) and (1) if found
to be employees, I conclude that their September 10
discharge was violative of the Act
CONCLUSIONS OF LAW
1 Respondent has interfered with, restrained, and
coerced employees in the exercise of rights guaranteed in
Section 7, in violation of Section 8(a)(1) of the Act, by
telling employees that any problems between them and the
Company "should be settled" among themselves without
"outside help", by stating that it had planned for them
"more benefits," but had "no intentions of going union",
by threatening to "close down" the construction job at
which they were working "before going union", by telling
employees wanting a union that they were "welcome to
leave", and by requesting them to sign and send to the
National Labor Board's regional office letters repudiating
the Union
2 At all material times herein Juan Carballo and
Nicolas Valladares were employees of Respondent within
the meaning of Section 2(3) and not supervisors within the
meaning of Section 2(11) of the Act
3 Respondent discriminatonly discharged the follow-
ing employees on the dates indicated below, and since such
dates has failed or refused to reinstate them, in order to
discourage union activities, in violation of Section 8(a)(3)
and (1) of the Act
Juan Carballo September 10, 1971
Domingo Garcia September 10, 1971
Humberto Gonzalez September 10, 1971
Nicolas Valladares September 10, 1971
Reinaldo Hernandez September 20, 1971
Jose Rivero September 20, 1971
Jesus Sentmanat September 20, 1971
4 The aforesaid are unfair labor practices and each of
is I am not persuaded by Respondents contention that Carballo and
Valladares were supervisors for the simple reason that without them there
was simply no one to supervise 25-50 employees of Respondents in their
day to-day activities To begin with, the objective evidence shows that the
number of carpenters and laborers on any given day was lower (supra fn
5) Feliciano estimated the number as 30 and Castellano although first
stating there were at least 40 later admitted that this figure does sound
kind of high and that he could not estimate the number Secondly the
undisputed evidence shows that during the period here involved the project
was supervised by at least four acknowledged managerial representatives
namely the superintendent , general foreman (Castellano) assistant superin-
tendent (Polanco who had his own 4 man crew) and the carpenter foreman
(Feliciano)-the latter (contrary to Respondent s suggestion) was in
Respondents employ during particularly the entire period here involved
919
them affects commerce within the meaning of Section 2(6)
and (7) of the Act
THE REMEDY
The recommended Order will contain the conventional
remedial provisions in cases involving findings of interfer-
ence, restraint, and coercion, and discriminatory discharg-
es, in violation of Section 8(a)(1) and (3) of the Act These
will require Respondent to cease and desist from the unfair
labor practices found, and to offer reinstatement with
backpay to the employees discriminated against In
accordance with usual requirements , reinstatement shall be
to the discriminatees ' former jobs, or if those jobs no
longer exist, to substantially equivalent positions, without
prejudice to their seniority or other rights or privileges The
discriminatees shall be made whole for any loss of earnings
they may have suffered by reason of the discrimination
against them by payment to each of a sum of money equal
to that which he normally would have earned from the date
of discharge to the date of a valid offer of reinstatement,
less net earnings during such period, to be computed in the
manner prescribed in F W Woolworth Company, 90 NLRB
289, and Isis Plumbing & Heating Co, 138 NLRB 716
In view of the nature of the unfair labor practices
Respondent has engaged in, I shall recommend that it be
required to cease and desist from infringing in any manner
upon rights guaranteed employees by Section 7 of the Act
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended 16
ORDER
United Resources , Inc and Country Club of Miami
Corporation , and their respective officers , agents, succes-
sors, and assigns, shall
I Cease and desist from
(a) Inducing or attempting to induce employees to settle
work problems without union help, stating or implying
that they would receive no benefits if the business were
unionized, threatening to close down construction jobs if
the employees organized , telling employees to leave their
jobs if they wanted a union , requesting employees to
repudiate or withdraw from their union, or in any other
manner interfering with, restraining, or coercing employees
in the exercise of any of their rights under Section 7 of the
Act
(b) Discouraging membership and activities in Carpen-
ters District Council of Miami , Florida and Vicinity, or
(See C P Exh 1) This degree of supervision cannot be said to have
provided an unacceptable ratio In any event , even assuming the lack of
adequate supervision (or any supervision ) this would not render Carballo
and Valladares supervisors without a showing that they performed the
functions listed in Section 2(11) with the required independence of
judgment See Security Guard Service, supra 384 F 2d at 148 N L R B v
City Yellow Cab Co 344 F 2d 575, 581 -582 (C A 6)
is In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board the findings
conclusions recommendations and recommended Order herein shall, as
provided in Sec 102 48 of the Rules and Regulations be adopted by the
Board and become its findings , conclusions, and Order and all objections
thereto shall be deemed waived for all purposes
920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any other union , by discriminating in regard to hire and
tenure of employment of Respondents' employees or by
discriminating in any other manner in regard to any term
or condition of their employment, in order to discourage
membership or activities therein
2 Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act
(a) Offer the employees named below immediate and full
reinstatement to their former jobs , or, if these jobs no
longer exist, to substantially equivalent positions , without
prejudice to their seniority or other rights and privileges,
and make them whole for any loss of pay they may have
suffered as a result of their discharge , in the manner set
forth in The Remedy section herein
Juan Carballo Reinaldo Hernandez
Domingo Garcia Jose Rivero
Humberto Gonzalez Jesus Sentmanat
Nicolas Valladares
(b) Notify each of the above-named employees who is
presently serving in the Armed Forces of the United States
of his right to full reinstatement upon application in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as amended,
after discharge from the Armed Forces
(c) Preserve and, upon request, make available to the
Board or its agents , for examination and copying, all
payroll records, social security payment records , timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under and
the extent of compliance with the terms of this Order
(d) Post at their places of business , including construc-
tion sites, in Miami , Florida, copies of the attached notice
marked "Appendix " 17 Copies of said notice, on forms
provided by the Regional Director for Region 12, after
being duly signed by Respondents ' representatives , shall be
posted by them immediately upon receipt thereof, and be
maintained by them for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted Reasonable steps shall
be taken by Respondents to insure that said notices are not
altered , defaced, or covered by any other material
(e) Notify said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps have
been taken to comply herewith 18
17 In the event that the Board s Order is enforced by a Judgment of a
United States Court of Appeals the words in the notice reading Posted by
Order of the National Labor Relations Board shall be changed to read
Posted pursuant to a Judgment of the United States Court of Appeals
enforcing an Order of the National Labor Relations Board
18 In the event that this recommended Order is adopted by the Board
after exceptions have been filed , this provision shall be modified to read
Notify said Regional Director in writing within 20 days from the date of
this Order what steps Respondents have taken to comply herewith
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial before a Trial Examiner of the National Labor
Relations Board, at which all sides had the chance to give
evidence , it has been decided that we, United Resources,
Inc and Country Club of Miami Corporation , violated the
National Labor Relations Act, and we have been ordered
to post this notice
The National Labor Relations Act gives you, as an
employee, these rights
To engage in self-organization,
To form, join , or help unions,
To bargain collectively through a representative
of your choosing,
To act together with other employees to bargain
collectively or for other mutual aid or protection,
and,
If you wish , not to do any of these things
Accordingly, we give you these assurances
WE WILL NOT do anything that interferes with any of
your rights listed above
WE WILL NOT induce or attempt to induce you to
settle work problems without union help, nor state or
imply that you will receive no benefits if our business is
unionized, nor threaten to close down our construction
sites if you organize, nor tell you to leave your jobs if
you desire a union , nor request you to repudiate or
withdraw from your union
WE WILL NOT discourage membership in, or activi-
ties on behalf of, Carpenters District Council of Miami,
Florida and Vicinity, or other union, by discriminating
against you in regard to yourjobs
WE WILL OFFER each of the following named
employees immediate and full reinstatement to his
former job or, if that job no longer exists, to a
substantially equivalent position , with full seniority and
all other rights and privileges , since he was found to
have been discharged for supporting the Union's
organizational campaign
Juan Carballo Remaldo Hernandez
Domingo Garcia Jose Rivero
Humberto Gonzalez Jesus Sentmanat
Nicolas Valladares
WE WILL make up all pay the above-named
employees lost, plus interest
WE WILL notify each of the above-named employees
who is serving in the Armed Forces of the United
States of his right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and
the Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces
UNITED RESOURCES, INC 921
Dated By
UNITED RESOURCES, INC This is an official notice and must not be defaced by
AND COUNTRY CLUB OF anyone
MIAMI CORPORATION This notice must remain posted for 60 consecutive days
(Employers) from the date of posting and must not be altered, defaced,
or covered by any other material Any questions concern-
ing this notice or compliance with its provisions may be
(Representative) (Title) directed to the Board's Office, Room 706, Federal Office
Building, 550 Zack Street, P 0 Box 3322, Miami Beach,
Florida, Telephone 813-228-7227