Byers Engineering Corp.

National Labor Relations Board - Board Decisions

Oct 15, 1997

324 N.L.R.B. 740 (N.L.R.B. 1997)

740
324 NLRB No. 125
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Regional Director issued an order and notice of hearing on
February 13, 1997, recommending that the challenges to the ballots
of Anthony Pubins and John Main be deferred pending the outcome
of investigations of unfair labor practice charges pertaining to Pubins
and Main, and that a hearing be held for the purpose of resolving
the issues raised by the challenges to the ballots of Michael
Hennessey and William Wett. The Regional Director also rec-
ommended that all of the Employer’s objections be overruled. In an
order dated March 20, 1997, the Board adopted the recommenda-
tions of the Regional Director.
2 We agree with the hearing officer, for the reasons set forth in
her report, that the challenge to the ballot of Michael Hennessey
should be overruled.
The Employer has excepted to some of the hearing officer’s credi-
bility findings. The Board’s established policy is not to overrule a
hearing officer’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Stretch-Tex Co., 118 NLRB 1359, 1361 (1957). We find no basis
for reversing the findings.
In adopting the hearing officer’s credibility resolutions, however,
we do not rely on the negative inference she drew from the Employ-
er’s failure to present Supervisor Louis Simone to corroborate Wil-
liam Wett’s testimony. We note that the burden of proof in this case
rests on the Petitioner as the party asserting Wett’s supervisory sta-
tus.
Member Higgins agrees with his colleagues, albeit under a dif-
ferent rationale, that Hennessey’s ballot should be counted. Member
Higgins agrees with former Member Cohen’s dissent in Vanalco,
Inc., 315 NLRB 618 (1994), that the appropriate standard for deter-
mining the eligibility of an employee on sick or disability leave at
the time of the election is whether the employee has a reasonable
expectancy of return and not—as set forth by the Vanalco major-
ity—whether the employee had quit or been discharged as of the
election. Member Higgins further finds, however, that under either
test Hennessey was eligible to vote.
As to the ‘‘reasonable expectancy’’ test, Member Higgins notes
that Hennessey had returned to work in the fall of 1996 following
an earlier back injury, and thereafter worked for the Employer until
reinjuring his back in early December 1996. On December 4,
Hennessey presented the Employer with a doctor’s note stating that
he was disabled from performing work until January 2, 1997. On
December 30—the day before the election—Hennessey presented the
Employer with an updated doctor’s note stating that Hennessey was
‘‘totally temporarily disabled until January 13, 1997.’’
On these facts, where Hennessey previously had returned to work
after a back injury, and where the duration of his current disability
was brief and was predicted to end shortly after the election, Mem-
ber Higgins finds that Hennessey had a reasonable expectancy of re-
turning to work. Member Higgins has considered Hennessey’s De-
cember statement to Manager Berntsson that Hennessey would be
undergoing further tests to determine whether surgery was required
and that ‘‘based on the type of the injury and surgery, that he
would—he would not be able to be a locator.’’ This evidence does
not warrant a contrary result. The statement is necessarily specula-
tive as to such medical questions as whether there would be surgery
and what the outcome of any such surgery would be.’’
3 Berntsson and Simone are both salaried.
Byers Engineering Corp. and Local 1049, Inter-
national Brotherhood of Electrical Workers,
AFL–CIO, Petitioner. Case 29–RC–8711
October 15, 1997
DECISION, DIRECTION, AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HIGGINS
The National Labor Relations Board has considered
determinative challenges in an election held December
31, 1996, and the hearing officer’s report recommend-
ing disposition of them. The election was conducted
pursuant to a Stipulated Election Agreement. The tally
of ballots shows seven for and six against the Peti-
tioner, with four challenged ballots, a number suffi-
cient to affect the results.1
The Board has reviewed the record in light of the
exceptions and briefs, and has adopted the hearing of-
ficer’s findings2 and recommendations only to the ex-
tent consistent with this Decision, Direction, and
Order.
The hearing officer found, inter alia, that William
Wett is a supervisor within the meaning of Section
2(11) of the Act and recommended that the challenge
to his ballot be sustained. The Employer excepts, con-
tending that Wett is a leadman who does not have au-
thority to exercise independent judgment in connection
with his duties. For the reasons set forth below, we
find merit in the Employer’s exception.
The Employer is under contract with utility compa-
nies in Long Island, New York, to locate and mark out
underground gas, electric, water, and telephone lines in
order to assist companies to avoid damaging the utili-
ties in the process of excavation. The Petitioner seeks
to represent 18 locators, whose responsibilities are to
verify and mark the location of utility lines by using
electronic equipment or by visual inspection through a
manhole.
The Employer’s Long Island operations are com-
posed of two divisions: Suffolk County and Nassau
County. Each county is further subdivided into six ge-
ographic areas. One or two locators are assigned to
perform work within each geographic area. Hugo
Berntsson manages the Employer’s operations in Long
Island. Louis Simone supervises locators in both coun-
ties and reports to Bertnsson. William Wett is the lead
locator in Nassau County and reports to Simone.
Like the Employer’s other locators, Wett is an hour-
ly employee.3 As one of the Employer’s most experi-
enced locators, he trains new employees and conducts
quality audits of their work in addition to performing
locating work of his own. He shares responsibility for
training and conducting audits with at least two other
senior locators whose ballots were not challenged.
In the morning before work commences, Wett re-
views the work in Nassau County to determine if it is
evenly distributed among the locators. If he finds that
there is too much or too little work in any locator’s
assigned area, he shifts and reassigns cases in order to
equalize the work load. The record does not disclose
who makes the initial assignment of locators to a par-
ticular geographic area of the county.
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741BYERS ENGINEERING CORP.
4 Hennessey testified, ‘‘I had an argument with the supervisor that
were [sic] going to send me into the Rockaways and that’s when
Hugo Berntsson decided maybe I’d be better off, I should stay in
the office. . . . It seems Byers had a policy that they would send
me to the farthest points of Long Island. . . . My question to them
was, I could not make these appointments, the doctor’s appoint-
ments, while they were sending me where I have to drive two-and-
a-half hours to and from a job.’’
5 The hearing officer relied on locator Brian Johnson’s testimony
that Wett’s reassignment of work could impact earnings, ‘‘[o]nly by
the—incentive, which is a bonus that you get for doing X amount
of jobs. But I couldn’t see—I couldn’t see it really affecting it, that
as long as he kept having steady work.’’ We find that Johnson’s tes-
timony is inconclusive and fails to support the hearing officer’s in-
ference that Wett’s reassignment of work affects employees’ incen-
tive bonuses.
Wett also serves as the Employer’s center of com-
munication in Nassau County. Utilities and contractors
contact Wett with service questions in the county and
employees contact Wett if they experience problems
such as equipment failures.
The hearing officer found that the Petitioner failed
to show that Wett has authority to hire, suspend, lay
off, recall, promote, discharge, reward, transfer, inde-
pendently discipline employees, or effectively rec-
ommend such action. Nevertheless, she found Wett is
a 2(11) supervisor because Wett exercises independent
judgment in assigning, adjusting, and directing the
work of the Employer’s Nassau County locators. The
hearing officer principally relied on Wett’s role in
training other locators and monitoring their perform-
ance. From this, she inferred that Wett assigns work
based on the locators’ relative skills. The hearing offi-
cer additionally relied on locator Michael Hennessey’s
testimony that he argued with Wett over an assignment
in the Rockaways which interfered with his ability to
attend his doctor’s appointments. Based on
Hennessey’s testimony, she found that Wett took into
consideration Hennessey’s medical condition in assign-
ing him work. She also relied on the impact of Wett’s
assignments on employee bonuses.
Contrary to the hearing officer, we find that, al-
though Wett has some authority to make and adjust as-
signments and to direct the work of other locators, the
record does not establish that Wett uses independent
judgment in exercising this authority. Thus, although
Wett’s training and monitoring functions provide him
with significant opportunity to compare employees’
skills, the Petitioner did not present any evidence that
Wett selects employees to perform work based on his
judgment of their skills. Further, with regard to
Hennessey’s Rockaways assignment, Hennessey’s testi-
mony does not indicate that Wett independently as-
signed him to the Rockaways or that his medical con-
dition was a factor in that assignment.4 The only factor
which the record indicates plays a part in Wett’s deci-
sion to shift or reassign work is the equitable distribu-
tion of the workload. The Board has consistently found
that assignments made to equalize employees’ work
are routine and do not require the exercise of inde-
pendent judgment. Ohio Masonic Home, 295 NLRB
390, 395 (1989); and Providence Hospital, 320 NLRB
717, 727 (1996).
Similarly, we find no support in the record for the
hearing officer’s finding that Wett’s reassignment of
work affects employees’ incentive bonuses. The Em-
ployer awards two types of incentive bonuses. One is
based on consecutive jobs performed successfully; that
is, on consecutive jobs in which there is no damage to
utilities. The other is based on having perfect attend-
ance, no tardiness, no damages and no accidents for a
month. Thus, a locator’s attendance, punctuality, and
skill determine whether a locator will earn an incentive
bonus and the amount of the bonus.5
Furthermore, we find no record support for the hear-
ing officer’s finding that Wett exercises independent
discretion in directing the work of other locators. Lo-
cators essentially work alone and unsupervised. On oc-
casion, Wett inspects the work of other locators and
reports the results to Simone. There is no evidence that
his reports include recommendations. Moreover, the
record indicates that he does not provide feedback di-
rectly to other locators concerning deficiencies in their
work, unless instructed to do so by Simone. Under
these circumstances, Wett’s auditing function appears
to be merely reportorial and does not connote super-
visory authority and responsibility. Hogan Mfg., 305
NLRB 806, 807 (1991); and Somerset Welding &
Steel, 291 NLRB 913, 914 (1988).
The hearing officer also found Wett’s supervisory
status was supported by the testimony of several loca-
tors that, if they encountered unusual problems in the
field, they called Wett for help and advice. The only
specific problem identified by the locators which
would prompt a call to Wett, however, was a broken
down truck or some other equipment failure. Wett’s
help in such instances, based on seniority and experi-
ence, does not establish supervisory status. Even as-
suming it involves the exercise of independent judg-
ment within the meaning of Section 2(11), it is well
established that such isolated or sporadic exercise of
authority is insufficient to establish supervisory status.
Bowne of Houston, 280 NLRB 1222, 1223 (1986).
In sum, we conclude that the Petitioner has not met
its burden of establishing that Wett is a supervisor as
defined in the Act. As both the Board and the courts
have recognized, an employee does not become a su-
pervisor merely because he has greater skills and job
responsibilities than fellow employees or because he
gives some instructions or minor orders. Chicago Me-
tallic Corp., 273 NLRB 1677, 1689 (1985), enfd. in
relevant part 794 F.2d 527 (9th Cir. 1986). The deci-
sive factor is whether the employee possesses the au-
thority to use independent judgment with respect to the
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742 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Member Higgins agrees with his colleagues that the challenge to
the ballot of William Wett should be overruled. Although Member
Higgins finds that an individual who assigns work based on such
subjective factors as employee skills, patient needs, and employee
preference is quintessentially engaged in the exercise of independent
judgment, he agrees with his colleagues that the instant record does
not support such a finding as to Wett.
exercise of one or more of the specific authorities list-
ed in Section 2(11). Id. In analyzing Wett’s role in
training other locators, altering their assignments in
order to equalize the workload, monitoring employee
performance, and serving as a center for communica-
tion, we find that in each instance the authority exer-
cised does not involve the use of independent judg-
ment, but rather involves routine decisions typical of
leadman positions and other minor supervisory em-
ployees that are found by the Board not to be statutory
supervisors. See, e.g., Hydro Conduit Corp., 254
NLRB 433 (1981); Jordan Marsh Stores Corp., 317
NLRB 460, 467 (1995); North Shores Weeklies, 317
NLRB 1128 (1995); and Brown & Root, Inc., 314
NLRB 19, 21–22 (1994).6
Accordingly, we overrule the challenges to the bal-
lots of Michael Hennessey and William Wett and shall
direct that their ballots be opened and counted.
DIRECTION
IT IS DIRECTED that the Regional Director for Re-
gion 29 shall, within 14 days from the date of this De-
cision, Direction, and Order, open and count the bal-
lots of Michael Hennessey and William Wett, and
serve on the parties a revised tally of ballots. In the
event the Petitioner receives a majority of votes cast
and the remaining challenged ballots are not deter-
minative, a certification of representative shall issue.
IT IS FURTHER DIRECTED that should the revised
tally of ballots indicate that the remaining challenged
ballots are determinative, any certification shall be held
in abeyance pending resolution of the challenges to the
ballots of Anthony Pubins and John Main.
ORDER
It is ordered that this matter be remanded to the Re-
gional Director for Region 29 for further processing
consistent with this decision.
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