Feralloy West Co.

National Labor Relations Board - Board DecisionsDec 13, 1985

277 N.L.R.B. 1083 (N.L.R.B. 1985)

FERALLOY WEST CO. Feralloy West Corporation and Pohang Steel Amer- ica d/b/a Feralloy West Company and Bay Counties District Council of Carpenters United Brotherhood of Carpenters & Joiners of Amer- ica, AFL-CIO, Petitioner . Case 32-RC-2092 13 December 1985 DECISION AND DIRECTION BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND JOHANSEN The National Labor Relations Board, by a three- member panel, has considered determinative chal- lenges in the election held 19 February 1985 and the hearing officer's report recommending disposi- tion of them. The election was conducted pursuant to a Stipulated Election Agreement. The tally of ballots shows eight for and six against the Petition- er, with two challenged ballots. The Board has reviewed the record in light of the exceptions and briefs, and has adopted the hearing officer's findings and recommendations' only to the extent consistent with this Decision and Direction. The hearing officer found that Gary Hudson is a supervisor within the meaning of Section 2(11) of the Act, and recommended that the challenge to Hudson's ballot be sustained. The Employer ex- cepts, contending that Hudson neither exercises in- dependent judgment nor has the authority to exer- cise independent judgment in connection with his duties, and that Hudson's duties are routine and clerical in nature and therefore do not establish su- pervisory status . We find merit in the Employer's exceptions. The Facts The Employer, Feralloy West Company, is a flat-rolled steel processor. Employee Gary Hud- son's job title is "production supervisor," and he reports directly to Plant Manager Rick Callow. He has his own office, desk, and phone. Plant Manager Callow and Hudson are the only ones involved in the production process who have their own office. In his office, Hudson maintains copies of produc- tion-related coil movement charts, work orders, employee attendance reports, and supplies. Hudson receives work orders daily from Plant Manager Callow. The work orders are written by the order office at headquarters and then sent to Callow, who adds any updated packaging information, the order of the runs, and the designation of the line on which the work will be run. On receiving the work 1 In the absence of exceptions, we adopt, pro forma, the hearing offi- cer's recommendation to overrule the challenge to the ballot of Daniel Cesena 1083 orders from Callow, Hudson adds the coil location, which indicates the location of the steel to be used on a particular run, and any special handling in- structions. Hudson determines the location of the coils by referring to a chart given to him by the crane operator. Hudson then makes a copy of the work order for his office files and distributes a copy to the respective line which is to perform the work. Hudson maintains files of employee attendance in his office and also provides a copy for Callow's files. He keeps blank verbal and written reprimand forms in his office, which he fills out, signs, and issues to employees upon Callow's approval. Hudson keeps track of employee attendance and determines when a particular employee has reached the appropriate number of infractions which could warrant discipline according to the attendance pro- gram . He then brings that employee's record to Callow's attention for a decision on whether to give the employee a reprimand. Callow does not conduct an independent investigation of the attend- ance record; rather, he makes a decision based on the records submitted by Hudson. Hudson then issues verbal and written reprimands on Callow's direction. Employees who are unable to work or who arrive late for work contact either the clerical unit, Callow, or Hudson. When an employee contacts Hudson, Hudson informs Plant Manager Callow, who then assigns the work. If Callow is not -avail- able, Hudson either does the work himself or as- signs the work, using a seniority list. Under such circumstances, Hudson later informs Callow as to what he has done and the decision is reviewed by Callow. Hudson is not authorized to assign overtime work independent of Callow's authority. Hudson posts an overtime signup sheet in the morning. Callow, alone, however, authorizes and schedules overtime. If overtime is scheduled, Hudson confers with Callow before a determination is made con- cerning who will perform the work. If Callow is not present, then Hudson refers to the overtime signup sheet and the seniority list in determining who will work overtime on a specific job, and Hudson later informs Callow of the assignments. Hudson has no authority to freely move employ- ees within jobs where it would result in their work- ing that position for greater than 4 hours, since this would make them eligible for a higher rate of pay. When, there is a need for an employee to fill in temporarily, and it is for less than 4 hours, Hudson may temporarily transfer an employee; but he usu- ally reviews this with Callow. On those occasions when Callow is not present, Hudson may transfer, 277 NLRB No. 114 1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and has transferred, employees to work in higher paying positions for less than 4 hours.2 On one oc- casion , when Callow took a 3-day vacation, he left a detailed production schedule with Hudson indi- cating what particular orders were to run on each machine . Hudson was responsible for implementing the production schedules and making sure the place ran properly. Callow also left directions for Hudson to call him on vacation if there were any work-related problems. Hudson testified that while Callow was on vacation Callow called to check on how things were going and to see if there was a need to run overtime. The record indicates that Hudson has no author- ity to hire, discharge, lay off, recall, reward, pro- mote, or evaluate employees, or to grant them time off. Hudson testified that he has never made a job transfer or issued reprimands without Callow's ap- proval or subsequent ratification. The hearing officer found that Hudson is a su- pervisor within the meaning of Section 2(11) be- cause he had independently assigned work and temporarily transferred employees to other posi- tions using his own judgment and without prior consultation with Plant Manager Callow, and had made effective recommendations to issue written and oral reprimands to employee' The hearing of- ficer also found that Hudson used independent judgment in the assignment of employees to par- ticular machines when overtime is worked. The Employer -contends that Hudson does not possess or exercise independent judgment and authority in any aspect of his work. We agree. It is well established that the possession of any one of the indicia specified in Section 2(11)3 of the Act is sufficient to confer supervisory status on an employee,4 provided that authority is exercised with independent judgment on behalf of manage- ment and not in a routine manner .5 Thus, the exer- cise of some "supervisory authority" in a merely rountine, clerical, perfunctory, or sporadic manner does not confer supervisory status on an employee. See Chicago Metallic Corp., 273 NLRB 1677 (1985); a The record indicates that the occasions when Callow is absent from the plant are very limited . In fact, a 3-day vacation, mentioned below, is the only evidence of Callow's absence from the plant, although there is some mention of his occasional absence from the production area 8 Sec 2(11) of the Act provides. The term "supervisor" means any individual having authority, 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 effective- ly to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment 4 See George C. Foss Co, 270 NLRB 232 (1984), NLRB v. Edward G. Budd Mfg Co., 169 F.2d 571 (6th Cir. 1948), cert denied 335 U S. 908 (1949). 5 See Hydro Conduit Corp, 254 NLRB 433, 437 (1981). Advanced Mining Group, 260 NLRB 486, ' 507 (1982). Contrary to the hearing officer, we conclude that while there is evidence that Hudson exercised some authority in carrying out his duties, the pre- ponderance of the evidence fails to show that Hudson exercised independent judgment in per- forming such duties. With respect to the effective recommendation of discipline, the record shows that Hudson signs and issues written and oral reprimands, but only on, Plant Manager Callow's direction. As a part of, ad- ministering the attendance program, Hudson main- tains records of the employees ' absences and'tardi- ness and informs Callow when an employee has..; reached a certain number of infractions under the attendance program. In this regard, Hudson's deci- sion to bring an employee's attendance record to Callow's attention is dictated by the established at- tendance program and is not based on any, inde- pendent evaluation by Hudson of the employee's record of attendance. While Callow does not con- duct an independent investigation of the employ- ee's attendance, he does review the records submit- ted by Hudson and must approve the issuance of any reprimand . In these circumstances , we cannot find that Hudson makes effective recommendations to discipline employees. Instead, we find that, he performs the essentially clerical function of keeping a record of absence and tardiness , and merely in- forms Callow when an employee has reached a level of infractions requiring some discipline in ac- cordance with established guidelines. Thus, Hud- son's "recommendation" of discipline amounts to nothing more than the relaying of information to Callow and, as such, does not establish the exist- ence of authority to discipline, employees. See George C. Foss Co., 270 NLRB 232 (1984); Howland _ Hook Marine Terminal Corp., 263 NLRB 453,, (1982). The hearing officer found, and the record estab- lishes, that Hudson distributes work orders to,the employees each day. However, these work orders are prepared by the headquarters' order office, and it is Plant Manager Callow who indicates, on the work orders, any updated packaging information, the chronological order of the runs, and the desig- nation as to the line on which the work will be run. Although Hudson adds to the work order the coil location and any special handling instructions, this does not require the use of independent judg- ment. Hudson simply indicates the location of the coil to be used on a particular run, based on infor- mation provided by the crane operator. As to the special handling instructions, Hudson, after calling the order office to verify any customer restrictions FERALLOY WEST CO. or specifications , simply indicates on the work orders whether a particular product is to be proc- essed or handled in a special way. Such duties are routine and it appears that Hudson merely serves as a conduit for management instructions . Thus, we find that Hudson's assignment of work to employ- ees is routine and clerical in nature and, according- ly, does not confer supervisory status . See Chicago Metallic Corp., supra ; Hydro Conduit Corp., 254 NLRB 433 ( 1981). The record further shows that Hudson has limit- ed authority , in Callow 's absence, to assign em- ployees to fill the position of an absent employee or to transfer employees to a different , higher paying position for short periods of time . However, the normal procedure followed by Hudson when an employee is absent is to contact Callow, who then assigns the work. On those occasions when Callow is not present , Hudson simply follows a se- niority list in making the assignments . He must still report to Callow afterwards , and Callow reviews what Hudson has done . Further , Hudson has no authority to transfer employees to work for more than 4 hours in a higher paying position, because the employee would be entitled to the higher rate. Hudson 's authority in such matters is extremely limited in view of Callow's rare absences . Indeed, the record shows only one instance where Callow was absent from the plant : a 3-day vacation, during which Callow called Hudson to check on the work . Accordingly , we find that Hudson 's assign- ment of work is exercised sporadically and irregu- larly in a routine manner involving no use of inde- pendent judgment and, therefore, that this function does not confer supervisory status on him. See Chi- cago Metallic Corp., supra; Hydro Conduit Corp., supra. With regard to the assignment of overtime, the record indicates that Hudson has no authority to assign overtime independent of Callow 's authority, and that it is Callow, and not Hudson , who decides when and if overtime is to be worked .- However, in Callow 's rare absences Hudson may assign over- 1085 time that has been authorized . Under such circum- stances , Hudson uses a preestablished seniority list and an overtime signup list to make the assign- ments . Accordingly , we find that Hudson 's assign- ment of overtime is, like his assignment of work, exercised sporadically and irregularly in a routine manner , without use of independent judgment, and that it is insufficient to confer supervisory status on him. See Chicago Metallic Corp., supra. In summary, the factors relied on by the hearing officer, when reviewed in light of the record, do not establish the existence of supervisory status.6 We therefore do not adopt the hearing officer's recommendation with regard to Hudson , and con- clude that the challenge to his ballot should be overruled. Accordingly , as the challenges to the ballots of Hudson and Cesena are overruled , and as these bal- lots are sufficient in number to affect the results of the election, we shall direct the Regional Director to open and count the ballots, to prepare a revised tally of ballots , and to issue the appropriate certifi- cation. DIRECTION It is directed that the Regional Director , within 10 days from the date of this decision , open and count the ballots cast by Gary Hudson and Daniel Cesena , and prepare and cause to be served on the parties a revised tally of ballots . Thereafter, the Regional Director shall issue the appropriate certi- fication. IT IS FURTHER DIRECTED that this proceeding is remanded to the Regional Director for the purpose of taking actions consistent with this Decision and Direction. 6 In view of this finding , we further find that the additional factors relied on by the hearing officer, such as Hudson 's title, his possession of an office , his higher wage, his greater experience than Callow, and the small size of the unit, do not establish supervisory status.