Wolff And Munier, Inc.

National Labor Relations Board - Board Decisions

Nov 14, 1986

282 N.L.R.B. 150 (N.L.R.B. 1986)

150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wolff and Munier, Inc. and Robert Campione. Case
22-CA-10279
14 November 1986
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHENS
On 29 July 1986 Administrative Law Judge D.
Barry Morris issued the attached supplemental de-
cision . The Respondent filed exceptions and a sup-
porting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge' s rulings , findings, and
conclusions and to adopt the recommended Order.
ORDER
On the basis of the judge's supplemental decision
and the entire record, the National Labor Relations
Board reaffirms its Order issued 21 June 1982 [262,
NLRB 333] and orders that the Respondent, Wolff
and Munier, Inc., Newark, New Jersey, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
Marta Figueroa, Esq., for the General Counsel.
Lee D. Unterman, Esq. (Whitman & Ransom), of New
York, New York, for the Respondent.
John A. Craner, Esq. (Craner, Nelson, Satkin & Glazner,
P.A.), of Scotch Plains, New Jersey, for the Charging
Party.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
D. BARRY MORRIS, Administrative Law Judge. On 6
November 1981 Administrative Law Judge Thomas T.
Trunkes issued a decision finding that Wolff & Munier,
Inc. (Respondent) engaged in certain unfair labor prac-
tices in violation of Section 8(a)(1) and (3) of the Act.
On 21 June 1982 the Board issued its Decision and Order
affirming the rulings, findings, and conclusions of Judge
Trunkes. Thereafter, the Board filed a petition with the
United States Court of Appeals for the Third Circuit
seeking enforcement of its Order. On 31 November 1984
the Court remanded the case to the Board for further
proceedings consistent with its opinion. On 12 July 1985
the Board issued its Order Remanding Proceeding to
Administrative Law Judge for the purpose of determin-
ing whether the Joint Conference Committee's findings
were a resolution of a statutory inquiry whether the dis-
criminatees were supervisors within the meaning of Sec-
tion 2(11) of the Act and whether those findings warrant
deferral under Olin Corp., 268 NLRB 573 (1984); and
Spielberg Mfg. Co., 112 NLRB 1080 (1955).
Pursuant to the Board' s remand , a hearing was held
before me on 3 March 1986. The parties were given full
opportunity to participate, produce evidence, examine
and cross-examine witnesses, argue orally, and file briefs.
Briefs were filed by all the parties. On the record, in-
cluding my observation of the demeanor of the wit-
nesses, I make the following
FINDINGS OF FACT
Pursuant to a grievance filed with the Union, a Joint
Conference Committee meeting was held on 5 November
1980. At the hearing held before me three witnesses testi-
fied as to what transpired at this meeting. The three wit-
nesses were Robert Campione, one of the three alleged
discriminatees; William Bulman, executive director of the
Mechanical Contractors Association; and Francis Chang,
executive vice president of Respondent.
Campione testified that he, Ralph Campione, and
Walter Dowd, the other two alleged discriminatees, ad-
dressed the committee and told them their versions of
what transpired on 9 September 1980, the day of their
discharge. Thereafter, two of Respondent's representa-
tives testified before the committee, giving their reasons
for the discharge. In this connection, Emil Le Doux, Re-
spondent's superintendent, accused the three generally of
nonproductivity. Campione testified that either Chang or
Le Doux stated at the meeting that, "[w]e failed to work
the men."
Campione testified that he, his brother, and Dowd
tried to "interject and clarify points" as they were being
presented by Chang and Le Doux. However, the meet-
ing was cut short when it was mentioned that charges
had been filed with the Board.
Bulman testified that at the committee meeting, Le
Doux:
... described the fact that they were foremen and
that . . . one of them was a general foreman [and]
the other two were foremen. And he described inci-
dents where he told them certain things to do and
they didn't carry them out. . . . [T]he Campiones
and Mr. Dowd . . . identified themselves as fore-
men on the job.
The Joint Conference Committee consisted of five me-
chanical contractors and five union officers. When asked
whether there was any elaboration of what the alleged
discriminatees were supposed to do as foremen, Bulman
replied, "[y]ou're dealing with people who are pretty
well versed in what a foreman is supposed to do with
four or five contractors and four or five union people."
At the hearing on remand, Campione credibly testified
that there was no discussion at the Joint Conference
Committee meeting concerning the alleged discrimina-
tees' duties or responsibilities. In addition, there was no
discussion about their authority to hire, fire, lay off, dis-
cipline, reprimand, reward, or promote employees. Con-
cerning the assignment of work, Chang credibly testified
that there was a discussion at the committee meeting that
because the alleged discriminatees were the foremen:
282 NLRB No. 22
WOLFF & UNIER 151
[T]hey are the men to direct the people and to
follow the order [sic] and the work that they have
to do; assign the work, and keep the job
moving... .
Bulman testified , as follows:
Q. . . . and you testified before that Mr. Le
Doux talked about the fact that these people were
foremen, right?
A. Sure.
Q. But he didn't go into what their duties and re-
sponsibilities are as foremen , right?
A. Yes, he did. In describing what they didn't do.
Q. What specifically did he talk about there?
A. Didn't carry out his orders [sic] his instruc-
tions.
Q. That they didn't carry out his instructions?
A. Well he was the superintendent. . . . They
would work under him.
Q. So as foremen, what they were supposed to
do is transmit his instructions to the men?
A. Sure, they were supposed to be foremen.
Q.... Did he give you . . . any examples?
A. I think I said that he made frequent reference'
to that they did not carry out his instructions or
they didn't do it in a timely manner.
Bulman testified that after the hearing the Joint Con-
ference Committee met in executive session, that their
decision was unanimous and thereafter he drafted the
committee's decision. He testified that the most impor-
tant factor considered by the committee in reaching its
decision was that the "men were not doing their job as
foremen."
Discussion
The purpose of the remand is to determine "whether
the Joint Conference Committee's findings were a resolu-
tion of a statutory inquiry as to whether the discrimina-
tees were 'supervisors within the meaning of Section
2(11) of the Act" and whether those findings warrant de-
ferral.
It is clear that the committee Was apprised of the fact
that the alleged discriminatees were foremen. Campione
testified that the alleged discriminatees stated that they
were foremen and Bulman testified that Le Doux in-
formed the committee that one of the three was a gener-
al foreman and that the other two were foremen. That,
however, does not end the inquiry. The fact that an em-
ployee has the title of foreman does not automatically
mean that he is a supervisor within the meaning of Sec-
tion 2(11) of the Act. Berger Transfer & Storage, 253
NLRB 5, 10 (1980), enfd. 678 F.2d 679, 688 (7th Cir.
1982).
The evidence in the record shows that the specific
duties and responsibilities of the` foremen were not dis-
cussed at the Joint Conference Committee meeting. No
evidence was presented before the committee regarding
their authority to hire, lay off, fire, or discipline employ-
ees. While Chang testified that he told the committee
that these men were foremen, whose duties were "to
direct the people," to "assign the work," and to "keep
the job moving," according to Bulman, Le Doux stated
before the committee that the alleged discriminatees did
not perform their jobs as foremen because they failed to
transmit Le Doux's instructions to the men.
To constitute supervisors under Section 2(11) of the
Act it is necessary in assigning work that there be the
exercise of independent judgment. The record shows that
Respondent believed that the alleged discriminatees did
not perform their jobs as foremen because they failed to
transmit the superintendent's instructions to the men.
Thus, the foremen were not exercising independent judg-
ment but were merely acting as conduits for Respondent
by transmitting orders. See Vanport Sand & Gravel, 267
NLRB 150 (1983); Humes Electric, 263 NLRB 1238,
1241-1242 fn. 2 (1982), enfd. 715 F.2d 468, 472 (9th Cir.
1983). Therefore, the fact that the Joint Conference
Committee may have considered and decided that their
duties as foremen included directing the men pursuant to
Le Doux's orders, such decision was not a resolution of
whether the employees were supervisors within the
meaning of the Act.
Conclusion
Based on the foregoing, I find that the Joint Confer-
ence Committee did not consider or resolve the statutory
inquiry whether the alleged discriminatees were supervi-
sors within the meaning of Section 2(11) of the Act.. Ac-
cordingly, I believe that there should be no deferral
under Olin Corp., 268 NLRB 573 (1984), and Spielberg
Mfg. Co., 112 NLRB 1080 (1955).