Biewer Wisconsin Sawmill

National Labor Relations Board - Board Decisions

Sep 29, 1993

312 N.L.R.B. 506 (N.L.R.B. 1993)

506
312 NLRB No. 94
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The judge inadvertently stated that Kaser was hired in 1991. We
correct the error.
2 It is uncontested that Williamson was a supervisor within the
meaning of Sec. 2(11). The size of the ‘‘maintenance department’’
that Williamson supervised, however, is a subject of disagreement
between the parties. The General Counsel contends as one of his
theories that the boiler room was part of the larger maintenance de-
partment supervised by Williamson. The Respondent contends that
maintenance operations and the boiler room constituted two separate
departments, supervised by Williamson and Kaser, respectively.
3 The judge inadvertently stated that it was Biewer who told Kaser
to write up Polacek after the November 11 incident.
Biewer Wisconsin Sawmill, Inc. and Midwestern In-
dustrial Council-United Brotherhood of Car-
penters and Joiners of America, AFL–CIO.
Case 18–CA–11936
September 29, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On September 16, 1992, Administrative Law Judge
Clifford H. Anderson issued the attached decision. The
General Counsel filed exceptions and a supporting
brief, and the Respondent filed an answering brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings, findings, and conclusions as modified below and
to adopt the recommended Order.
The complaint alleges that on August 16, 1991, the
Respondent violated Section 8(a)(3) and (1) of the Act
by admittedly discharging Leonard Kaser because he
engaged in union activities. The judge found that the
Respondent committed no violation because Kaser was
a supervisor within the meaning of Section 2(11) of
the Act, and consequently unprotected by the Act. The
General Counsel excepts to the judge’s finding that
Kaser was a supervisor. We reject the General Coun-
sel’s exception because we agree with the judge that
Kaser possessed the authority to discipline employees.
Factual History
The Respondent operates a sawmill in Prentice, Wis-
consin. The sawmill contains several boilers, integral
to the operation of the enterprise and located in a facil-
ity set apart from the rest of the plant. Tim Biewer is
the senior management official at the plant.
On February 26, 1990, 3 months before either the
boilers or the plant commenced operation, Biewer
hired Leonard Kaser to work in the boiler room.1 Un-
like the inexperienced individuals who were subse-
quently to be hired as boiler operators, Kaser was a li-
censed operator with 14 years of experience. Because
of his experience and with the express authorization of
Biewer, Kaser played a large role in training the new
boiler employees. And though much of the employees’
work was routine, Kaser continued to monitor their ac-
tivities and progress, to recommend ways for them to
become more familiar with the machinery, to direct
their performance of maintenance and safety proce-
dures, and to hold occasional troubleshooting meetings.
On November 11, 1990, boiler operator Glenn
Polacek allowed the pressure in one of the boilers to
go down to zero for the third time in 5 months. After
the second time Polacek ‘‘dropped’’ the boiler, Kaser
had gone to Biewer and recommended that Polacek be
fired. Biewer told him that an employee had to be
‘‘written up’’ before he was discharged. Kaser had
also discussed the matter with Russell Williamson, su-
pervisor of the plant’s maintenance department, who
informed Kaser that if such an incident happened
again, Kaser could write up Polacek.2
On learning of Polacek’s November 11 mishap,
Kaser again took the matter to Williamson, who di-
rected Kaser to write up Polacek.3 Kaser followed
Williamson’s instructions, and signed Polacek’s write-
up in the space left for the issuing ‘‘supervisor.’’
Kaser presented a copy of the writeup to Polacek in
a meeting on November 13 between himself, Polacek,
and Biewer.
According to Biewer, Kaser told Polacek at that
meeting that if the boiler lost pressure again while
under Polacek’s control, it would be ‘‘the end of his
job.’’ Polacek testified that Kaser told him, ‘‘if I
couldn’t do the job, he’d find someone that would.’’
The judge did not specifically credit either version of
the testimony, but found that Kaser’s statement, what-
ever its precise phrasing, carried with it the threat that
another mistake of this kind would cost Polacek his
job.
Biewer apparently said nothing at the November 13
meeting. Both Polacek and Biewer testified that Kaser
did the talking at that meeting. Kaser testified that
Biewer also spoke, but could not remember anything
that was said. The judge generally credited Polacek
over Kaser.
Polacek was never fired, but subsequently quit of his
own volition.
Analysis
Section 2(11) of the Act sets forth the 13 indicia of
supervisory status. It is well established that the pos-
session of any one of those indicia is sufficient to con-
fer supervisory status, provided that authority is exer-
cised with independent judgment on behalf of manage-
ment and not in a routine manner. Phelps Community
Medical Center, 295 NLRB 486, 489 (1989); Bowne of
Houston, 280 NLRB 1222, 1223 (1986). Hence, the
exercise of some purportedly ‘‘supervisory authority’’
in a merely routine, clerical, perfunctory, or sporadic
manner does not confer supervisory status. Id.
507BIEWER WISCONSIN SAWMILL
4 This duty becomes readily apparent where, as here, an individual
is fired for engaging in union activities.
5 We similarly reject the judge’s finding that Kaser had the power
effectively to recommend discipline. The only recommendation
Kaser made as regards Polacek was discharge, and that recommenda-
tion was ineffective. There is not a single instance in the record of
Kaser recommending discipline, much less doing so effectively.
6 After the second incident, Biewer told Kaser that a writeup was
a condition precedent to a discharge. This is not the same thing as
saying that misconduct following a writeup must result in discharge.
After the third incident, Williamson told Kaser to write up the em-
ployee. However, it was Kaser who decided, on his own, that subse-
quent misconduct would result in discharge.
7 The need to impose such a serious penalty is not one that cus-
tomarily arises on a daily basis, particularly in a ‘‘department’’—like
Kaser’s—containing only three other employees. These details, as
well as the fact that Kaser had only worked at the sawmill for a year
and a half, make it unsurprising that Kaser exercised this authority
only once.
Moreover, Kaser’s prior conversations with both Williamson and
Biewer as to how he might penalize Polacek for future delinquencies
belie any assertion that Kaser’s disciplining of Polacek was outside
the normal scope of his authority.
As the Board and the Seventh Circuit have noted,
the Board owes a duty to employees not to construe
supervisory status too broadly, for if the individual is
deemed a supervisor, he loses the Section 7 rights
Congress intended to be protected by the Act.4 Phelps
Community Medical Center, 295 NLRB at 492; Wes-
tinghouse Electric v. NLRB, 424 F.2d 1151, 1158 (7th
Cir. 1970). For that reason, the party contending that
a person is a supervisor carries the burden of persua-
sion on that issue. Adco Electric, 307 NLRB 1113 fn.
3 (1992).
We agree with the judge’s finding that the Respond-
ent has met its burden, because we agree with him that
Kaser possessed ‘‘the authority . . . to discipline other
employees’’ as set forth in Section 2(11). We do so,
however, only on the basis of the following analysis.
The judge found that Kaser was not only clearly ex-
pected to but did issue writeups to other boiler opera-
tors when appropriate, and that his writeup of Polacek
constituted ‘‘strong . . . evidence of Kaser’s authority
to discipline employees . . . .’’ We do not rely on
these findings for two reasons. First, the only time
Kaser wrote up an employee, Polacek, was pursuant to
Williamson’s specific instruction; consequently, there
is no support in the record—not even a single epi-
sode—for finding that Kaser used the independent
judgment required by Section 2(11) to issue writeups.
Second, to establish that Kaser’s authorization to write
up other employees gave him the statutory authority to
discipline, the Respondent would have to show that the
writeups themselves affected the employees’ tenure or
job status. Passavant Health Center, 284 NLRB 887,
889 (1987); Phelps Community Medical Center, 295
NLRB at 490, 491. Here, the only individual Kaser
ever wrote up was Polacek, and that writeup neither
indicated that Polacek’s job status had been affected
nor was itself relied on in imposing discipline. Thus
even if we were to find that Kaser exercised independ-
ent judgment in deciding to write up other employees,
no supervisory status would be established, because no
facts support a finding that disciplinary decisions were
made based on Kaser’s writeups.5 Phelps Community
Medical Center, supra at 491.
Although Kaser’s writeup of Polacek does not estab-
lish Kaser’s disciplinary authority, his words and ac-
tions at the meeting between himself, Polacek, and
Biewer on November 13 do. As the judge found, Kaser
warned Polacek at that meeting that if the boiler lost
pressure again, it would cost Polacek his job. It is this
warning that leads us to find that Kaser had the author-
ity to discipline within the meaning of Section 2(11).
Authoritatively placing an employee one step away
from termination is discipline of the most basic sort,
almost tautologically affecting job status. Here,
Biewer’s presence at the meeting—as well as his tacit
approval by silence—strongly suggest that Kaser’s
words were not frivolous; that he had the power to
mete out the punishment to which his words gave
shape. And even though Williamson originally told
Kaser to write up Polacek, Kaser’s act of admonishing
Polacek as to what the discipline would be in the event
of a recurrence, and his determination of the nature of
that discipline, were products of no one’s independent
judgment but Kaser’s.6 There was nothing routine, per-
functory, or clerical about it; and although it was the
only time that Kaser exercised such authority, we do
not view it as sporadic.7
Having found that Kaser had the authority to dis-
cipline other employees, we need not decide whether
Kaser ‘‘responsibly directed’’ the other boiler employ-
ees within the meaning of Section 2(11). His discipli-
nary authority is sufficient to make him a supervisor,
and to exempt him from the protections of the Act.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Marlin O. Osthus and Susan E. Moore, Esqs., for the Gen-
eral Counsel.
Richard J. Seeryak, Esq. (Miller, Canfield, Paddock and
Stone), of Detroit, Michigan, and Douglas S. Touma, Esq.
(Touma, Watson, Coury & Castello), of Port Huron,
Michigan, for the Respondent.
DECISION
STATEMENT OF THE CASE
CLIFFORD H. ANDERSON, Administrative Law Judge. I
heard this case in trial on May 28, 1992, in Phillips, Wiscon-
sin. Posthearing briefs were due on July 2, 1992. Subsequent
briefs were received on July 23 and August 3, 1992. The
case arose as follows:
508 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Respondent filed a motion to receive a reply brief and a reply
brief on July 23, 1992. The General Counsel filed a response and
motion to strike, in part, Respondent’s reply brief on August 3,
1992. Respondent’s reply brief is not opposed in its entirety by the
General Counsel. Rather the General Counsel opposes only a portion
which, the General Counsel argues, contains improper argument.
Both parties’ responses are received into the record and have been
considered in reaching the decision herein. I do not find it necessary
under all the circumstances to strike any portion of any brief.
2 As a result of the pleadings and the stipulations of counsel at the
trial, there were few disputes of fact regarding collateral matters.
Where not otherwise noted, the findings herein are based on the
pleadings, the stipulations of counsel, or unchallenged credible evi-
dence.
On October 15, 1991, the Midwestern Industrial Council—
United Brotherhood of Carpenters and Joiners of America,
AFL–CIO (the Union) filed a charge with Region 18 of the
National Labor Relations Board, docketed as Case 18–CA–
11936, against Biewer Wisconsin Sawmill, Inc. (Respondent)
and amended that charge on February 10, 1992. Following
an investigation the Regional Director of Region 18 on Feb-
ruary 11, 1992, issued an order consolidating cases, consoli-
dated complaint, and notice of hearing consolidating certain
allegations arising under the instant charge with other allega-
tions arising under other charges against Respondent. There-
after further consolidation and complaint amendment orders
were issued by the Regional Director. Immediately preceding
the trial the parties resolved all matters not contained in the
charge herein and the February 11, 1992 consolidated com-
plaint. Further during this time the parties narrowed the alle-
gations under the charge and complaint.
The complaint during the process described above was
winnowed to a single allegation of wrongdoing, i.e., that on
or about August 16, 1991, Respondent discharged its em-
ployee Leonard (Lenny) Kaser because of his union activities
and to discourage employees from engaging in union activi-
ties. This conduct is alleged to violate Section 8(a)(3) and (1)
of the National Labor Relations Act (the Act).
Respondent, in its answer and in stipulations at trial, ad-
mits that it discharged Kaser because of his union activities.
It further avers, however, that its conduct was permissible
under the Act because at all relevant times Kaser was a su-
pervisor within the meaning of Section 2(11) of the Act.
All parties were given full opportunity to participate at the
hearing, to introduce relevant evidence, to call, examine, and
cross-examine witnesses, to argue orally, and to file
posthearing briefs.
On the entire record, including helpful briefs from the
General Counsel and Respondent,1 and from my observation
of the witnesses and their demeanor, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a State of Michigan corporation with an of-
fice and place of business in Prentice, Wisconsin, where it
is engaged in the operation of a sawmill. Respondent during
the 12 months preceding the issuance of the complaint here-
in, a representative period, in the course and conduct of its
business operations, purchased and received at its Prentice,
Wisconsin facility goods valued in excess of $50,000 directly
from points outside the State of Wisconsin. There is no dis-
pute and I find that Respondent at all material times has been
an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issue Narrowed
As noted supra, the single allegation of wrongdoing re-
maining in the complaint is the allegation that Respondent
discharged Leonard Kaser on August 16, 1991, because of
his union activities. Respondent admits the allegation, but al-
leges that its action was permissible because Kaser was a su-
pervisor within the meaning of Section 2(11) of the Act and
therefore not protected by the Act against discharge for his
union activities. The parties agreed that the supervisory status
of Kaser at relevant times is determinative of the result of
the litigation, i.e., if Kaser was a statutory employee, Re-
spondent has violated Section 8(a)(3) and (1) of the Act as
alleged in the complaint and, if Kaser was a supervisor with-
in the meaning of Section 2(11) of the Act, the Act was not
violated and the complaint should be dismissed.
Given this admirable narrowing of the issues, the sole dis-
pute at the hearing was the supervisory status of Kaser. This
issue was closely litigated by the parties.
B. The Supervisory Status of Leonard Kaser
1. Respondent’s sawmill’s general organizational
structure
Respondent commenced operations of a new sawmill (the
mill or the plant) in Prentice, Wisconsin, in 1990. The saw-
mill cuts full tree logs into commercial lumber and timber
and thereafter kiln dries and surfaces the finished wood prod-
ucts which are shipped to customers in Wisconsin and var-
ious States. The operation generates tree bark and sawdust as
byproducts which are used to fuel the boilers which in turn
generate steam used in the kiln-drying process and in general
building heating.
At all material times, Timothy Biewer, the plant manager,
has been the senior official of Respondent on site. His ad-
ministrative assistant at relevant times was Jamie Hurschutz.
Timothy Biewer identified various departments within the
mill whose department heads reported directly to him: the
saw mill section of the plant supervised by Frank Dennee,
the dryline department supervised by Victor (Vick)
McKitterick, the maintenance department supervised at rel-
evant times by Russ Williamson and the disputed category
and supervisor—the boiler department supervised by Lenny
Kaiser.
Biewer testified that in the summer of 1991 the mill’s em-
ployee complement was approximately 45. The sawmill de-
partment employed approximately 24 employees, the dryline
department approximately 12, the maintenance department 6,
and the boiler department 4.
509BIEWER WISCONSIN SAWMILL
3 All dates refer to 1991 unless otherwise indicated.
2. Lenny Kaser’s employment at the mill
Leonard (Lenny) Kaser, an experienced and licensed boiler
operator, initially contacted Respondent in August 1989 con-
cerning employment in the mill then under construction.
Kaser was accepted as a boiler operator but his employment
was delayed due to construction difficulties. In February
1991,3 Kaser started employment at the mill. Because the
boiler had not as yet been ‘‘fired up,’’ Kaser was initially
on the sawmill startup crew ‘‘working the bugs out’’ of the
new equipment. In early May Kaser spent his time familiar-
izing himself with the boiler equipment and related manuals
and systems. The boiler began operation in mid-May and
Kaser spent this period working with the boiler manufactur-
er’s on site field representative who was present for the boil-
er’s startup and break-in process.
Until the day before the boiler was fired, Kaser was the
only boiler operator on staff. That day three other boiler op-
erators were hired without Kaser’s participation. Kaser testi-
fied that two of the three had no prior boiler operation expe-
rience and the remaining employee had ‘‘minimal’’ experi-
ence.
Once the new boiler break-in period passed, the four boiler
operators worked nonrotating 12-hour shifts totaling 48 hours
of work in 1 week and 36 the following week until a fifth
boiler operator was hired and initially trained in the spring
of 1991. At that time Kaser testified he suggested to Biewer
that the other four operators continue the regular schedule
gaining experience and he rotate as appropriate over the
shifts spending time with the operators and instructing them
on boiler operation. Biewer agreed and thereafter Kaser
worked varying 10-hour days overlapping boiler operator
shifts as he felt was appropriate at any given time. Because
the change in his schedule reduced his overtime hours and
premium pay, his wage rate was increased to produce the
same fortnightly gross pay that he had previously enjoyed
working on 12-hour rotating shifts. Kaser continued this self-
determined work schedule until his discharge.
3. Kaser’s relative remuneration, experience, duties,
and responsibilities
Victor McKittrick, the dryline department supervisor, at all
times after June 1990 received an hourly wage rate less than
that paid Kaser. Sawmill Department Supervisor Frank
Dennee was initially paid somewhat less, then somewhat
more, then somewhat less than Kaser. The boiler operators
received substantially less to somewhat less than Kaser.
There is no doubt that Kaser was at all times the most ex-
perienced and able boiler operator. He often wrote instruc-
tions and special comments for other operators which were
posted so that each operator could see them. Nonroutine
tasks were directed and coordinated by him. He both trained
other operators and reported on their skill levels to manage-
ment.
Kaser performed regular shift duties until April when he
was freed from regular production shift obligations. There-
after he varied his hours at his discretion to overlap other op-
erators for the purpose of training, special work require-
ments, and general adjustments as needed. The change in-
creased his opportunity to exercise his training and review
functions with respect to the boiler operators as well as his
ability to address special boiler problems.
Kaser was responsible for and undertook the creation of
boiler maintenance and safety procedures and the instruction
of the boiler operators with respect to these matters. Both
during the original installation process and thereafter he had
contact with outside contractors respecting boiler processes
and procedures.
4. Documentary evidence respecting Kaser’s
2(11) status
Respondent’s mill seems to have been singularly devoid of
paper recordation of employee job classifications. No job de-
scriptions apparently existed respecting the various positions.
Many of the documents prepared by Kaser respecting train-
ing and procedure which boiler employees were required to
sign noted he was ‘‘supervisor.’’ As noted infra, Kaser’s
‘‘write up’’ of Polacek titled Kaser as Polacek’s ‘‘super-
visor.’’ Other forms prepared by Kaser respecting safety and
maintenance procedures set forth Kaser’s ‘‘occupation/job
title’’ as ‘‘Boiler foreman.’’ Kaser’s August 1990 employee
performance evaluation was prepared and signed by Russell
Williamson as Kaser’s supervisor.
5. Testimony relevant to Kaser’s supervisor status
a. General testimony respecting Kaser’s
supervisory authority
Kaser testified that he was never told that he was the boil-
erroom supervisor or that he had supervisory responsibilities.
He testified he acted as a lead employee in the boiler depart-
ment answering to Maintenance Supervisor Russ Williamson
and in some cases to Plant Manager Timothy Biewer. He
generally characterized his relationship to employees as non-
supervisory involving training and technical assistance. Kaser
testified that boiler employee workday scheduling was vir-
tually automatic, operators tried to fill in for one another for
special occasions and employees contacted the office for sick
calls. He asserted he generally passed employee requests or
complaints on to his supervisors and, when he made rec-
ommendations respecting boiler operator wage increases or
discipline, his recommendations were not regularly carried
out.
Boiler operator Aaron Bishop testified he worked with
Kaser and did not regard him as his supervisor. Rather
Bishop considered Russell Williamson and Timothy Biewer
to have been his supervisors. Bishop generally corroborated
the essentially automatic operation of boiler department
scheduling. Bishop testified that when he asked Kaser for a
wage increase, Kaser told him he agreed that Bishop should
receive an increase and would discuss it with Biewer. There-
after Kaser reported to Bishop that Biewer had ‘‘no problem
with that.’’ Bishop testified that he never received the raise.
Former boiler operator, now procurement forester, Thad
Henderson, testified that he regularly took problems in his
boiler operator work to Kaser and regarded him as the person
in charge. He took a complaint to Kaser that he was not
earning enough money. Kaser told him he would raise the
issue with Biewer. As a result, Henderson received an in-
crease in hours of work. Former boiler operator Glenn
Polacek testified that Kaser told him that neither Biewer nor
Williamson knew anything about the boiler operations and
510 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
‘‘so as far as the boiler is concerned, [Kaser] ran the show.’’
Indeed Polacek testified he resigned primarily because Kaser
was too dominant and critical of Polacek’s work: ‘‘You
couldn’t do nothing good enough for him. He’d never listen
to your point of view on anything.’’
Timothy Biewer testified that Leonard Kaser was the su-
pervisor in charge of the four operators in the boiler depart-
ment although Biewer had never formally created that classi-
fication nor explicitly told Kaser that he held specific super-
visory duties and responsibilities. Biewer testified that Kaser
was responsible for making recommendations regarding hir-
ing, wage increases, and discipline regarding the boiler de-
partment. He further testified that Kaser regularly gave his
opinion regarding employees’ needs and problems including
recommendations respecting wages and discipline. Biewer
suggested that on occasions those recommendations were re-
lied on. Kaser was also generally in charge of boiler oper-
ations including employee training, safety procedures, and re-
lated matters.
b. Kaser’s role in hiring
Kaser testified he suggested various individuals to Biewer
for consideration as boiler operators on a general referral
basis, but did not participate in their interviews or in their
evaluation and hire process. Biewer recalled that Kaser’s rec-
ommendations were significantly more specific and quali-
tative than Kaser’s testimony suggested and asserted that he
relied on Kaser’s recommendations in hiring certain employ-
ees.
Kaser’s role in the hire of boiler operator Aaron Bishop
in December 1990 was disputed. Bishop was initially
screened by Respondent’s Administrative Assistant Jamie
Harschutz and an initial interview was conducted by her.
Harschutz testified Bishop’s second interview was held on a
later occasion and was conducted by Biewer and Kaser. She
testified that after the interview Kaser took Bishop on a tour
of the boiler facilities and thereafter brought Bishop back to
the office. She testified that Kaser told Biewer: ‘‘I think he’ll
work fine.’’ Thereafter she recalled they discussed both a
start date and starting wage rate for Bishop. Biewer corrobo-
rated Harschutz’ recollection of the interview process and
Kaser’s participation in the hiring process and recommenda-
tion that Bishop be hired.
Kaser testified that he reviewed Bishop’s application in the
office and spoke to Bishop in Harschutz’ office. Thereafter
he showed Bishop around the boiler facilities. He recalled
that he did not return to the office with Bishop. Bishop gen-
erally corroborates Kaser. Later, Kaser recalled, Biewer
asked Kaser his opinion of Bishop and Kaser was ‘‘positive’’
indicating that Bishop would ‘‘work out.’’ Bishop was subse-
quently hired.
c. Kaser’s role in discipline
Biewer testified that Kaser told him that employee Carlton
Loewe was not able to get up and down stairs and that ‘‘we
needed to do something about it.’’ Biewer testified that
Kaser reported that operator Archie Russel was not ade-
quately recording gauge readings on the boiler reports and
sought a meeting respecting this fact. Biewer testified that
Kaser recommended the discharge of Glenn Polacek for ‘‘let-
ting the boiler go down’’ and that Biewer responded that
Kaser needed ‘‘to first write him up before expelling an em-
ployee.’’ Harschutz generally corroborated Biewer respecting
Kaser’s recommendations.
Kaser prepared and issued a written warning to Polacek
about that incident dated November 13, 1990. The form was
filled out in a manner indicating that Kaser was Polacek’s
supervisor. The written warning was placed in Polacek’s per-
sonnel file. Polacek testified that Kaser gave him the warning
and told him: ‘‘If I couldn’t do the job, he’d find someone
that would.’’ Biewer testified that after Polacek was written
up Kaser and Polacek met and discussed the problem. In that
meeting Biewer recalled Kaser told Polacek that, if the boiler
lost pressure again, it would be ‘‘the end of his job.’’
Kaser testified to numerous occasions when he reported to
Biewer on the skills, improvement, problems, and inadequa-
cies of boiler operators. He testified that he had had several
problems with Polacek’s work performance prior to the
events in question. Kaser testified he had talked to both Rus-
sell Williamson and Tim Biewer about Polacek telling them
he did not feel that he would make a good boiler operator
and that Polacek was not ‘‘cut out for the work.’’ He specifi-
cally recalled telling Biewer that Polacek should be fired, but
that no action had been taken. Kaser recalled Williamson
told him to assign Polacek ‘‘out of the ordinary’’ tasks and,
if Polacek did not do them, to ‘‘write him up for that.’’
Kaser also recalled that when he related the boiler pressure
failure events to Biewer, Biewer told him to write up
Polacek. In response Kaser did so and Polacek, Biewer, and
Kaser met to discuss the writeup.
d. Kaser’s role in scheduling, authorizing overtime, and
recommending wage increases
Kaser testified that on many occasions he recommended to
Biewer that boiler operators receive greater than customary
wage increases and carried employees’ wishes in this regard
to Biewer. The record is not clear respecting the effective-
ness of these requests. At least some of these recommenda-
tions were not followed.
There is no dispute that Kaser made the necessary deter-
minations respecting what had to be done to the boiler be-
yond regular operations and maintenance. Kaser testified that
the work schedule was fixed, but that boiler operators could
arrange to trade days among themselves with the approval of
Biewer. He suggested that timesheets were prepared both by
himself and by others. Overtime, which was part of the regu-
lar recurring schedule, was automatically authorized. Kaser
testified that Biewer had to approve extraordinary overtime.
Hurschutz testified that Kaser approved overtime based on
her observation of Kaser’s initials on timesheets.
C. Analysis and Conclusions
1. The supervisory status of Leonard Kaser
a. The arguments of the parties
Counsel for Respondent on brief argue that Kaser pos-
sessed and regularly exercised the authority to direct the
work of the boiler operators. They argue further that Kaser
possessed and exercised disciplinary authority and that he did
not do regular unit work, but rather was in charge of the de-
partment and its employees. The General Counsel rather
characterizes Kaser as the most skilled and experienced em-
511BIEWER WISCONSIN SAWMILL
ployee in a subdepartment within the maintenance depart-
ment who functioned as a leadman, boiler expert, and trainer
of other boiler employees. The General Counsel argues that
Kaser did not independently direct employees nor effectively
recommend either discipline or rewards for employees. In
learned presentations of case law, each party advances Board
and court decisional law that, given the factual arguments
made, supports the legal conclusion sought.
b. Credibility resolutions
Turning initially to credibility resolutions respecting the
conflicting testimony of certain of the witnesses, I do not be-
lieve any witness testified falsely to what he or she recalled
concerning the relevant events herein. In no case did the de-
meanor of a particular witness convince me that he or she
was not testifying truthfully. Rather I find that the recollec-
tions of some witnesses differed simply because of human
variation and differing recollections of events. The bulk of
the testimony given was not in significant conflict with the
testimony of others. Further much of what was in conflict
arose from differing shadings or characterizations of inher-
ently ambiguous circumstances or differed only in conclu-
sions respecting Kaser’s general supervisory authority.
Even seeming conflicts such as Bishop’s and Polacek’s
views of Kaser as a supervisor in the boiler department may
be explained by the differing perceptions of individuals over
a course of time with respect to a series of common but not
identical circumstances. While not equally susceptible to har-
monization, the testimony of Biewer and Kaser respecting
Kaser’s authority and actions again is explainable by the fact
that Respondent did not have bright line distinctions or es-
tablished classifications which made Kaser’s title, status and
authority in the organization clear. Each individual simply
viewed the various events discussed above differently. For
example, Kaser testified he did not have the authority to ap-
prove overtime. Harschutz disputed that testimony, but did so
based on her assumptions of the meaning of Kaser’s nota-
tions of the boiler operator’s timecards.
Where specific assertions or attributions have been made
and not denied, such as Polacek’s attributions respecting
Kaser’s statements to him, they are credited. Where Bishop,
Polacek and Henderson—current or former boiler opera-
tors—attribute actions or statements to Kaser, even where
Kaser directly or indirectly denied such conduct, I credit
their testimony over that of Kaser because I believe their
recollections are honest and more likely to be accurately re-
called. I find that Kaser’s denials were more likely to have
resulted from a failure of memory.
In reaching my conclusions below, I have found it unnec-
essary to resolve all conflicting or ambiguous evidence.
Thus, for example, I find it unnecessary to determine if
Kaser and the boiler operation had an independent reporting
relationship to Biewer or whether the reporting obligation
was through another supervisor and department. Indeed given
the lack of clear designations at relevant times at the mill,
it may be better said that the lines of authority were never
clearly or unambiguously spelled out and that reporting was
inconsistent. Save where explicit findings are made herein, I
have not felt it necessary to further resolve the remaining
subsidiary issues in dispute.
c. Conclusions
For the reasons appearing below, I find that Leonard Kaser
at the time of his discharge by Respondent in August 1991
was a supervisor within the meaning of Section 2(11) of the
Act. In reaching this conclusion I have put the burden of
proof explicitly on Respondent to demonstrate Kaser was not
an employee protected by Section 7 of the Act as the Gen-
eral Counsel argued citing Communications Workers Local
9509, 303 NLRB 264 (1991).
Clearly the boiler operation was securely in Kaser’s capa-
ble hands. He was the sole employee truly knowledgeable in
boiler operations. He had essentially sole responsibility for
the training of boiler operators. He was in charge of making
the boiler operations work and he did so issuing regular spe-
cial instructions to boiler operating staff, preparing mainte-
nance, training, and safety procedures. He has a generally
proprietary attitude about the boiler department.
Training and other technical responsibilities and technical
knowledge, standing alone, do not sustain a finding of super-
visory status under the Act. In the instant case however, the
technical evaluation of operators by Kaser and his reporting
on employee competence and industry to management was
clear and ongoing. These reports, even if not always acted
on, were not independently investigated or verified by Re-
spondent and had the effect of directly effecting boiler opera-
tor’s jobs. The evidence is undisputed that Kaser reported
and/or complained to Williamson and Biewer about employ-
ees’ performance as boiler operators and made recommenda-
tions respecting employee discipline which included rec-
ommending an employee’s discharge.
Further there is no doubt that Williamson and Biewer ex-
pected Kaser to issue disciplinary warnings, i.e., ‘‘write em-
ployees up,’’ where appropriate. Kaser testified that
Williamson told him to assign special duties to an employee
and thereafter to ‘‘write up’’ the employee if he did not per-
form satisfactorily. Biewer specifically directed Kaser to
‘‘write up’’ Polacek. This is clear evidence that Williamson
and Biewer regarded Kaser as possessing disciplinary pow-
ers.
The Polacek written warning events constitute strong sup-
porting evidence of Kaser’s authority to discipline employees
as well as evidence that employees knew of his authority in
this regard. In that case, as described above, Kaser’s report
of Polacek’s job failure was accepted without independent
investigation by management. It is not disputed that Kaser
sought Polacek’s discharge and that Biewer told Kaser he
could not fire Polacek, but rather had to first issue him a dis-
ciplinary warning. The fact that Kaser’s recommendation that
Polacek be discharged was not accepted because of Biewer’s
preference for a progressive disciplinary approach does not
diminish the simple proposition that Polacek was disciplined
based on Kaser’s complaint and recommendation. Further the
warning slip itself, signed by Kaser as ‘‘supervisor,’’ along
with Kaser’s statement to Polacek in their meeting with
Biewer that another mistake would cost Polacek his job, aug-
ments the finding that Kaser had the power to adversely af-
fect Polacek’s job. This authority to effectively recommend
discipline of employees independently sustains a finding of
Kaser’s supervisory status at relevant times.
My finding that Kaser was a supervisor within the mean-
ing of the Act is also supported by the evidence of Kaser’s
substantial independent direction and control over the boiler
512 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 As each party noted on brief, the authorities set forth in Sec.
2(11) of the Act necessary to find an individual a supervisor are to
be read in the disjunctive. Thus, a finding that an individual pos-
sesses any one indicium enumerated in Sec. 2(11) is sufficient to
sustain a finding of supervisory status under the statute. This being
so it is not necessary to make additional findings respecting the
other contentions of the parties respecting the actual and apparent
authority possessed by Kaser at relevant times and I decline to do
so.
5 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
department and the boiler operators. There is no dispute that
Kaser was in charge of day-to-day affairs in the boiler de-
partment. Indeed following the hire of a fifth boiler em-
ployee, Kaser was exclusively devoted to training and direc-
tion of employees in the department. As Kaser told Polacek,
with respect to the boiler department, Kaser ‘‘ran the show.’’
As noted, supra, Williamson make it clear to Kaser he ex-
pected him to assign boiler operators various tasks. Given all
the above, I find that Kaser was a supervisor within the
meaning of Section 2(11) of the Act at the time of his dis-
charge.4
2. Summary and conclusion
The parties stipulated that Respondent terminated Kaser
because of his union activities. I have found that Kaser was
a supervisor within the meaning of the Act at the time of his
discharge. The General Counsel concedes that, if Kaser was
a supervisor at the time of his discharge, the complaint lacks
merit. Given these findings, I further find and conclude that
the General Counsel’s complaint is without sustainable merit.
I shall therefore recommend it be dismissed in its entirety.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent did not violate the Act as alleged in the
complaint.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended5
ORDER
The complaint shall be and it is dismissed.