Benchmark Mechanical

National Labor Relations Board - Board Decisions

Mar 11, 1999

327 N.L.R.B. 829 (N.L.R.B. 1999)

BENCHMARK MECHANICAL CONTRACTORS 829
Benchmark Mechanical Contractors, Inc. and
Plumbers and Pipefitters Local Union No. 189,
AFL–CIO, Petitioner. Case 9–RC–17037
March 11, 1999
DECISION AND DIRECTION
BY MEMBERS FOX, LIEBMAN, AND HURTGEN
The National Labor Relations Board, by a three-
member panel, has considered determinative challenges
and an objection to an election held March 5, 1998,1 and
the Regional Director's report recommending disposition
of them.2 The election was conducted pursuant to a
Stipulated Election Agreement. The tally of ballots
shows 1 for and 1 against the Petitioner, with 3 chal-
lenged ballots.
The Board has reviewed the record in light of the ex-
ceptions and briefs, and has adopted the Regional Direc-
tor’s findings and recommendations.3
The Regional Director found, inter alia, that employee
Jack Emmons was not a statutory supervisor, and accord-
ingly recommended that the challenge to his ballot be
overruled. We agree.
Emmons was hired as a welder in August 1997, and
was promoted to a nonsupervisory foreman position in
October 1997. On about February 24, Superintendent
Tracy McCray approached Emmons about a general
foreman position on a job in Hazard, Kentucky, from
March 9 through April 3. McCray told Emmons that, as
the general foreman on that job, he could get a $1-per-
hour raise.4 Emmons agreed to take this position. On
March 3, McCray informed Emmons that he would not
be allowed to vote in the election because he had been
selected as the general foreman on the Hazard job. Em-
mons continued performing unit work until the March 5
election, however, and voted subject to challenge. Later
that day Emmons quit his employment. Upon receiving
his last paycheck on March 12, Emmons discovered that
he had been given a $1 raise effective March 2.
Although finding that the general foreman’s position
entailed supervisory authority,5 the Regional Director
recommended overruling the challenge to Emmons’ bal-
lot. The Regional Director found that Emmons was a
unit employee from August 1997 through at least March
2,6 and that the general foreman position on the Hazard
job would have lasted for a period of less than a month.
Further, the Regional Director noted that the Employer,
through McCray, admitted that Emmons most likely
would have returned to his unit position thereafter.7 Ac-
cordingly, the Regional Director found that such limited
service as a supervisor was insufficient to warrant exclu-
sion from the bargaining unit.

1 All dates are in 1998 unless stated otherwise.
2 The Regional Director did not consider the Petitioner’s objections,
as they are being held in abeyance pending completion of the investiga-
tion in Case 9–CA–35780.
3 In the absence of exceptions, we adopt pro forma the Regional Di-
rector’s recommendation to sustain the ballot of Paul Zickafoose.
4 According to McCray, he offered, and Emmons accepted, the gen-
eral foreman position on February 24. According to Emmons, McCray
told him that there was a chance Emmons could be the general foreman
on the job and get a $1 raise, but that he would have to speak to the
owner about it first.
5 The Regional Director relied on the statement of Sam Malone, who
was subsequently hired as the general foreman on the Hazard job.
Malone stated that he was responsible for ensuring that the work got
done and that it was his understanding that he could hire, fire and disci-
pline employees, and could give employees time off and adjust work
schedules, but did not actually exercise such authority on the job.
Assuming without finding that the general foreman’s
position involved the exercise of supervisory authority,
we find, in agreement with the Regional Director, that
this assignment to Emmons, limited to the Hazard pro-
ject, does not warrant his exclusion from the bargaining
unit.8
As the party seeking to exclude an individual from the
unit, the Employer has the burden of proof on the issue
of Emmons’ supervisory status. Gaines Electric Co., 309
NLRB 1077, 1078 (1992); Pacific Dry Dock Co., 303
NLRB 569 (1991). Where the employee at issue is en-
gaged part of the time in a supervisory position and the
rest of the time as a nonsupervisory unit employee, the
legal standard for a supervisory determination is whether
the individual spends a regular and substantial portion of
his working time in a supervisory position or whether
such work is merely sporadic and insignificant. See, e.g.,
Gaines Electric Co., supra;9 Canonie Transportation Co.,
289 NLRB 299, 300 (1988).
Applying this standard, we find the evidence fails to
establish that Emmons would have spent a regular and
substantial portion of his time as a supervisor, even if he
had not quit on the day of the election. As noted above,
Emmons worked as a unit employee from the time of his
hire in August 1997, until at least March 2. The record
establishes that he would have worked in the general
6 The Regional Director found that the evidence was not clear as to
whether Emmons in fact possessed or exercised supervisory authority
at the time of the election. Although the Employer asserts that Em-
mons became a supervisor on March 2, the Regional Director’s
investigation showed that during the week of March 2, Emmons per-
formed almost exclusively the same unit work he had always per-
formed, i.e., gluing and/or welding pipe with another employee; and no
evidence to the contrary has been proffered.
7 McCrary added that if Emmons had performed well as general
foreman, he may have been offered a general foreman position at an-
other location

if one became available at the time. The Employer’s
records indicate, however, that only rarely does it have a general fore-
men on the jobs where the unit employees are working.
8 We agree with the Regional Director that the evidence is not clear
as to whether Emmons possessed or exercised supervisory authority at
the time of the election. We find it unnecessary, however, to resolve
this issue in view of our finding that the assignment does not establish
supervisory authority in any event.
9 We find unpersuasive our dissenting colleague’s contention that the
principles set forth in Gaines Electric are inapplicable because Em-
mons’ had been appointed to the supervisory position as of the day of
the election. A showing that the appointment became effective as of
the date of the election cannot compensate for the failure to show that
the appointment is more than one of limited duration.
327 NLRB No. 151
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 830
foreman position through the completion of the Hazard
project on April 3, but not beyond that. Significantly, by
the Employer’s admission, it was anticipated that Em-
mons would return to his unit position thereafter. In
these circumstances, where the supervisory position is of
such limited duration, where Emmons had not previously
acted with supervisory authority, and where there is no
showing of any likelihood to serve as a supervisor in the
future (even had he not quit his employment), we find
that the general foreman assignment is insufficient to
extinguish Emmons’ community of interest with other
employees. OHD Service Corp., 313 NLRB 901 (1994);
St. Francis Medical Center-West, 323 NLRB 1046
(1997).
In finding that Emmons’ assignment as general fore-
man is sufficient to establish supervisory status, our dis-
senting colleague contends that the supervisory assign-
ment must be presumed to be permanent, even though
the actual assignment was one of limited duration. He
implies that the Union has the burden here of showing
that there were temporal limits on Emmons’ status, and
that the Union has failed to meet its burden here. Our
colleague’s contention ignores both the law and the facts.
First, it is well established that the burden of proof is on
the party alleging supervisory status. See e.g., General
Security Services Corp., 326 NLRB 312 (1998). That
burden is not met by coming forth with evidence of a
supervisory assignment of limited duration. Indeed, as
noted above, it is not disputed that the general foreman
position on the Hazard site was scheduled to end on
April 3. Second, in view of the Employer’s admission
that Emmons would likely return to his unit position after
the Hazard job ended, there is simply no basis for our
colleague to presume that Emmons’ supervisory status is
not temporary.
In sum, we find the evidence fails to establish that Jack
Emmons is a statutory supervisor. Accordingly, we shall
direct the Regional Director to open and count his ballot.
DIRECTION
IT IS DIRECTED that the Regional Director for Re-
gion 9 shall, within 14 days from the date of this Deci-
sion and Direction, open and count the ballot of Jack
Emmons. The Regional Director shall then serve on the
parties a revised tally of ballots and take further appro-
priate action. In the event the
Petitioner receives a majority of votes cast, a certifica-
tion of representative shall issue.

MEMBER HURTGEN, dissenting in part.
The Employer challenged the ballot of Jack Emmons
on the ground that he was a supervisor at the time of the
March 5, 1998 election.1 I agree.
Emmons previously worked as a nonsupervisory fore-
man for the Employer. On February 24, he was offered,

1 All dates are in 1998 unless indicated.
and accepted, a position as general foreman. His first job
would begin on March 9. On February 27, Emmons and
Employer Superintendent McCray visited the jobsite
(Hazard) where Emmons was to be the general foreman.
They looked over the job, determined what materials
would be needed, and discussed how many employees
and what hours of work would be necessary for the job.
In addition, Emmons was asked to recommend welders
for the job.
Effective March 2, Emmons title was changed to gen-
eral foreman, and his pay was increased at that time by
$1 an hour. On March 3, he was told that, since he was
general foreman, he would not be allowed to vote in the
upcoming election.
On March 5, Emmons nonetheless sought to vote in
the election, and his ballot was challenged by the Em-
ployer. On that same day, but after the election,
Emmons changed his mind about becoming a general
foreman, and he quit his employment with the Employer.
Following Emmons’ resignation, Sam Malone became
the general foreman on the job which was to have been
supervised by Emmons. Based on the duties carried out
by Malone, the Regional Director found that the general
foreman’s job was a supervisory position. This finding is
not contested. He further found, however, that Emmons
was not a supervisor, and overruled the challenge to his
ballot. The Regional Director found that, even if
Emmons had become a supervisor on March 2, his ser-
vice as a supervisor would have been for less than a
month, at which time he “would have most probably’’
returned to a job in the unit. The Regional Director
found that such temporary service as a supervisor was
not sufficient to exclude him from the unit. I disagree.
As discussed above, Emmons became a supervisor on
March 2. His title was changed on that day and his su-
pervisory pay began on that day. And, significantly, his
supervisory authority began on that day.
This status of supervisor continued to exist at the time
of the election. The fact that Emmons terminated his
relationship with the Employer after the election is ir-
relevant. Indeed, my colleagues do not rely upon this
termination. Rather, they argue that, even absent the
termination, Emmons would cease to be a supervisor as
of April 3 (the scheduled end of the Hazard job). They
thus regard Emmons as only a temporary supervisor as of
the date of the election.
My colleagues do not quarrel with the proposition that
Emmons was a supervisor on the Hazard job. However,
as noted, they assert that his supervisory position was
one of limited duration, i.e., it would definitely come to
an end at the conclusion of the Hazard job on April 3.
The record does not support such a definitive conclusion.
Indeed, it is contradicted in the majority opinion itself.
That is, the majority acknowledges that it was uncertain
BENCHMARK MECHANICAL CONTRACTORS 831
as to what would happen to Emmons after the Hazard job
ended.2
I agree that the burden of proof is on the party who
seeks to show supervisory status. However, in my view,
once supervisory status is shown to exist, that status is
presumed to continue until the contrary is shown.3 In the
instant case, there was only a showing that the supervi-
sory status might come to an end at the conclusion of the
Hazard job.

2 See, for example, fn. 7, supra, and accompanying text.
3 This position is consistent with the general rules of law (and phys-
ics) that once a state of affairs is shown to exist, it is presumed to con-
tinue until the contrary is shown.
In sum, Emmons was a supervisor on the day of the
election, and he was scheduled to remain a supervisor for
at least another month. There is no showing that he
thereafter would revert to employee status.4

4 My colleagues rely on Gaines Electric, 309 NLRB 1077 (1992).
The case does not aid them. Under Gaines, “the fact that [a person]
may have engaged in Section 2(11) duties on the date of the election”
does not make the person ineligible. I agree. Obviously, the mere fact
that an employee performs a 2(11) action on election day does not
transform the employee into a supervisor. But where, as here, a person
is appointed to, and holds, a supervisory position on the day of the
election, that is sufficient to render the person ineligible to vote.