Detroit Association of Plumbing Contractors

National Labor Relations Board - Board Decisions

Jul 31, 1961

132 N.L.R.B. 658 (N.L.R.B. 1961)

658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
visors within the meaning of the Act and accordingly exclude them
from the unit.
In view of the foregoing, we find that all employees of Montgomery
Ward & Co., Incorporated, employed in its retail store located in two
establishments, at Liberty Plaza, Belmont Avenue, and at Boardman
Plaza, Boardman-Canfield Road, Youngstown, Ohio, but excluding
the store manager, the assistant store manager, group supervisors, the
credit department manager, the catalog managers, the repair service
manager, and all guards, professional employees, and supervisors as
defined in the Act constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of the Act.
[Text of Direction of Election omitted from publication.]
Detroit Association of Plumbing Contractors and James P.
Duffy
Mechanical Contractors Association of Detroit and James P.
Duffy
Farrington Company and James P. Duffy
Goss Mechanical Contractors Company and James P. Duffy
J. W. Partlan Company and James P. Duffy
Stanley Carter Company and James P. Duffy
Donald Miller Company and James P. Duffy
Johnson Service Company and James P. Duffy
United Engineers and Constructors , Inc. and James P. Duffy.
Cases Nos. 7-CA-1709,7-CA-1710,7-CA-1784,7-CA-1785,7-CA-
17869 7-CA-1787, 7-CA-1788, 7-CA-1792, and 7-CA-1793. July
31,1961
SUPPLEMENTAL DECISION AND ORDER
On March 31, 1960, the Board issued its original decision 1 in the
above-entitled proceeding, finding that two Employer Associations and
a number of individual employers had interfered with the internal
affairs of United Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United States and Canada,
AFL-CIO, by permitting supervisors to hold union office, vote in
union elections, and engage in negotiations with the Respondent Em-
ployer Associations on behalf of the Union, in violation of Section
8(a) (2) and (1) of the Act.
a Detroit A8sociation of Plumbing Contractors , 126 NLRB 1381.
132 NLRB No. 40.
DETROIT ASSOCIATION OF PLUMBING CONTRACTORS 659
On January 19, 1961, the United States Court of Appeals for the
District of Columbia Circuit issued its decision 2 in which it substan-
tially enforced the order of the, Board, but remanded the case to the
Board for reconsideration with respect to one supervisor, McDonald,
"to determine whether in the light of this opinion, his participation,
by attending meetings and voting, is improper in view of his position
in the respondent company."
A review of the record reveals that McDonald is employed by the
Goss Mechanical Contractors Company • as a general heating foreman
with some 40 to 60 men under. him including 6 to 10 foremen. He is
admittedly a supervisor and, has been employed in his present capacity
for 1 year, and•prior to that had been a job foreman for 3 years. He is
directly responsible to the Company's president and earns approxi-
mately $34 more per week than a journeyman pipefitter. He is not a
part of the bargaining unit although the Company makes payment to
various union funds on his behalf. There is no indication in the record
that his position or job title has changed, although the number of men
he supervises appears to fluctuate with the progress of the job.
In remanding as to McDonald, the court indicated,' inter alia, that
in determining whether asupervisor's union activity was violative of
the Act, the Board should consider the nature of the supervisory po-
sition with particular reference to Section 2(11) ' of the Act which
defines supervisors, the apparent permanence of the supervisory posi-
tion, and the extent to which the position is properly included in or
excluded from the bargaining unit.
With respect to Section 2(11) and the nature of the supervisory
position, it is clear that McDonald was not only a supervisor within
the meaning of that subsection but was such a high-ranking supervisor
that he was directly responsible to the Company's president. Regard-
ing the permanency of such position, we note that McDonald was not
a "transitory" supervisor 5 and apparently had not been employed
other than as a supervisor for the last 4 years. As a general foreman,
he was properly excluded from the bargaining unit which was limited
to journeymen and apprentices.
After due consideration of the guidelines enunciated by the court,
2 Local 636 of the United Association of Journeymen and Apprentices of the Plumbing
and Pipe Fitting Industry of the United States and Canada, AFL-CIO v. N.L R.B. ( Detroit
Assn. of Plumbing Contractors ), 287 F. 2d 354.
3 Local 636 of the United Association of Journeymen, etc. v. N L R.B., supra, at 3162
4 Section 2 ( 11) states : "The term ' supervisor ' means any individual having authouty,
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 fore-
going the exercise of such authority is not of a merely routine or clerical nature, but
requires the use of independent judgment."
5 This does not appear to be a case of an individual who was a job foreman one week
and a journeyman the next, but rather a situation in which a job foreman has been ele-
vated to the job of general heating foreman and who has retained such position for a year.
614913-62-vol 132-43
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
we conclude that McDonald's voting in union elections constitutes
interference in the internal affairs of the Union and is violative of Sec-
tion 8(a) (2) and (1) of the Act.e We therefore affirm our original
finding and order' respecting the voting activity of McDonald and the
responsibility therefor of Goss Mechanical Contractors Company, his
employer.
MEa18ER BROWN took no part in the consideration of the above Sup-
plemental Decision and Order.
Nassau and Suffolk Contractors' Association, Inc., and its members, 118 NLRB 174,
184, 187; Anchorage Businessmen's Association, Drugstore Unit, and its Member Empioyers,
etc., 124 NLRB 662.
'' Detroit Association of Plumbing Contractors , 126 NLRB 1381, at 1384-1386.
National Welders Supply Co., Inc., Lee Associates , Inc., Investi-
gations, Inc., R. E. Lee , and W. B. Crider, Jr. and International
Union of Operating Engineers , Local No . 465, AFL-CIO. Cases
Nos. 11-CA-1458 and 11-CA-1662. August 2, 1961
DECISION AND ORDER
On March 21, 1961, Trial Examiner Thomas F. Maher issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Report
attached hereto. Thereafter, the Respondents filed exceptions to the
Intermediate Report and a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with these cases to a 'three-
member panel [Chairman McCulloch and Members Leedom and
Brown].
The Board has reviewed the rulings , of the Trial Examiner made at
the hearing and finds that no prejudicial error- was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
cases, and hereby adopts the Trial Examiner's findings, conclusions,
and recommendations, with the following exceptions.
There are five Respondents in these cases, National Welders Supply
Co., Inc.; Lee Associates, Inc.; Investigations, Inc.; R. E. Lee; and
W. B. Crider, Jr. The Trial Examiner found, as the complaint
alleged, that the five Respondents violated Section 8 (a) (1) by their
conduct with respect to employees of National Welders Supply, Inc.,
and applicants for employment with National Welders Supply, Inc.,
as set forth in the Intermediate Report, including (1) interrogation
concerning union membership, interest, or activity; (2) threats of dis-
132 NLRB No. 39.