Gaines Electric Co.

National Labor Relations Board - Board Decisions

Dec 16, 1992

309 N.L.R.B. 1077 (N.L.R.B. 1992)

1077
309 NLRB No. 172
GAINES ELECTRIC CO.
1 All subsequent dates are in 1991 unless otherwise noted.
Gaines Electric Company, Inc. and Local No. 237,
International Brotherhood of Electrical Work-
ers. Cases 3–CA–16329 and 3–RC–9744
December 16, 1992
DECISION, ORDER, AND DIRECTION
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On March 23, 1992, Administrative Law Judge
Lowell M. Goerlich issued the attached decision. The
General Counsel and the Union filed exceptions and
supporting briefs, and the Respondent filed a brief sup-
porting the judge’s decision and opposing the excep-
tions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions only to the extent consistent with this Deci-
sion and Order.
I. OVERVIEW
This is a consolidated representation and unfair
labor practice proceeding. The Respondent is an elec-
trical contractor engaged in business in the Niagara
Falls area. It employs about 17 workers. Concerning
Case 3–CA–16329, pursuant to an unfair labor practice
charge filed by the Union on May 23, 1991,1 and an
amended charge filed June 20, the Regional Director
issued a complaint on August 23 alleging that the Re-
spondent threatened one of its employees with dis-
charge in January because of his protected, concerted
activities, and that subsequent to May 20 the Respond-
ent made several threats to close its business because
of its employees’ union activities.
With regard to Case 3–RC–9744, the Union filed a
petition on May 17, and the Stipulated Election Agree-
ment approved by the Regional Director on June 5 set
forth the appropriate bargaining unit as ‘‘all full time
and regular part time production and maintenance em-
ployees including journeymen, apprentices and help-
ers.’’ Following the July 3 election, the initial tally of
ballots showed six votes in favor of representation by
the Union and five against, with five challenged bal-
lots—a number sufficient to affect the outcome of the
election. The Union filed objections to the election.
On August 29, the Acting Regional Director issued
a report on objections and challenged ballots, in which
he ordered the representation case consolidated with
the pending unfair labor practice case and set for hear-
ing concerning the five challenged ballots and the
Union’s first objection—to the extent that that objec-
tion was coextensive with the business-closing threats
alleged in the complaint.
Of the five challenged ballots, three had been chal-
lenged by the Union at the election. The parties stipu-
lated that two of these belonged to ineligible voters
and thus the challenges to their ballots were sustained.
The Union’s third challenge—to the ballot of em-
ployee Scott Thomas—was overruled by the judge.
Of the two ballots challenged by the Respondent at
the election, the first—that of employee Gerald
Wisor—was sustained by the judge. He also sustained
the Employer’s second challenged ballot—that of
Jayson Mitchell. The judge agreed with the Respond-
ent that Mitchell, when working as a ‘‘journeyman
foreman,’’ was a supervisor within the meaning of
Section 2(11) of the Act and was therefore ineligible
to vote. Further, because Mitchell’s supervisory status
excluded him from the Act’s coverage, the judge found
it unnecessary to address the evidence relating to the
Union’s objection and the complaint’s unfair labor
practice allegations, each of which involved alleged
conduct by the Respondent assertedly in violation of
Mitchell’s rights as a statutory employee. Pursuant to
his supervisory-exclusion rationale, the judge overruled
the objection and dismissed the complaint.
We agree with the judge’s sustention of the chal-
lenge to Wisor’s ballot and his overruling of the chal-
lenge to Thomas’ ballot for the reasons set forth in his
decision. We do not agree with his disposition of the
challenge to Mitchell’s ballot. We conclude that, at
best, Mitchell possessed 2(11) authority on a sporadic,
insubstantial basis—insufficient to deny him the cov-
erage of the Act with respect to his membership in the
bargaining unit and the rights afforded by Section 7.
We therefore overrule this challenge and order that his
ballot and that of employee Thomas be opened and
counted and that a revised vote tally be made. We also
address the substance of the complaint allegations and
the Union’s objection and, as explained below, con-
clude that they lack merit.
II. MITCHELL’S CHALLENGED BALLOT
Mitchell worked for the Respondent from 1984 until
early September 1991, when he was laid off, appar-
ently for economic reasons. About 1989, while work-
ing for the Respondent, Mitchell became a journeyman
electrician.
In 1987 or 1988, the Respondent established the
‘‘journeyman foreman’’ position (foreman). Thus, on
any particular job with four or more employees, the
Respondent would select one of its journeyman elec-
tricians to be the foreman. According to the Respond-
ent, the selection was based in part on seniority and
in part on supervisory skill and knowledge of the job.
It is undisputed that from time to time Mitchell and
1078 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 The Respondent at no time has contended that any of these other
journeymen electricians are statutory supervisors.
3 The Respondent contends that Mitchell was a foreman from May
25 through the July 3 election and remained so until he was laid off
in September. In view of our finding that, on this record, Mitchell’s
engagement in foreman activity is insufficient to exclude him from
the unit, the fact that he may have been engaged in 2(11) duties on
the date of the election would not make him ineligible to vote. See
Thermoid Co., 123 NLRB 57, 58–59 (1959). See also, e.g., Lovilia
Coal Co., 275 NLRB 1358, 1365–1366 (1985); Sharondale Corp.,
262 NLRB 1238 fn. 3 (1982). In any event, although clearly within
its control, the Respondent has provided no evidence of Mitchell’s
foreman work following May 25—either to show his status on the
relevant eligibility dates, or to affect our view of the sporadic, insig-
nificant character of his foreman assignments.
several other journeymen electricians were designated
as foremen on particular jobs.2 The foreman designa-
tion paid $1 an hour over straight time pay.
We will assume for purposes of this decision, with-
out finding, that when Mitchell worked as a foreman
he possessed supervisory authority over unit employees
within the meaning of Section 2(11) of the Act. Not-
withstanding this, we find that Mitchell is not exclud-
able from the bargaining unit because the evidence
does not show him to be engaged sufficiently as a
foreman—in comparison with his work as a journey-
man electrician—to negate his community of interest
with the unit employees and to identify him as a statu-
tory supervisor.
As the party seeking to exclude an individual from
the unit, the Respondent has the burden of proof on
the issue of Mitchell’s supervisory status. See, e.g.,
Pacific Dry Dock Co., 303 NLRB 569 (1991). Where,
as here, the individual at issue is engaged part of the
time as a supervisor of unit employees and the rest of
the time as a unit employee himself, the legal standard
for a supervisory determination is whether the individ-
ual 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.,
Canonie Transportation Co., 289 NLRB 299, 300
(1988); Latas de Aluminio Reynolds, 276 NLRB 1313
(1985); Aladdin Hotel, 270 NLRB 838, 840 (1984).
The Respondent submitted in evidence payroll infor-
mation concerning Mitchell covering the period from
January 6, 1990, to May 25, 1991,—a total of 72 con-
secutive 1-week pay periods. Based on the $1-an-hour
differential for foremen, this documentation clearly sets
forth the times when Mitchell worked as a foreman
and as a journeyman electrician. Of these 72 weekly
pay periods, there were 14 in which Mitchell received
at least some pay for foreman work. Thus, considered
in this light, Mitchell acted as a foreman 19.4 percent
of the time. In other words, he worked as a journey-
man electrician, a unit employee, slightly more than 80
percent of the time.
In a sense, however, calculating the amount of
Mitchell’s foreman work by the number of pay periods
is misleading because in several of the pay periods in
which he was paid the foreman’s rate he worked less
than 40 hours as a foreman. For example, in one pay
period he worked only 4 hours as a foreman, in an-
other only 8 hours. Of the 14 pay periods in which he
worked some amount of time as a foreman, there ap-
pears to be only 8 weeks when he acted as a foreman
for a full 40-hour week. Accordingly, his total hours
worked as a foreman set against his sum total of hours
worked for the entire 17-month period yields a more
accurate picture. Of Mitchell’s approximately 2938.5
total hours worked, he acted as a foreman approxi-
mately 429.5 hours, or, about 14.6 percent of the time.
In other words, he worked as a unit employee slightly
more than 85 percent of the time.
With regard to the regularity of Mitchell’s work as
a foreman, the Respondent’s documentation shows that
over the 17-month period he worked 1 partial week
(i.e., less than 40 hours) and 1 full week as a foreman
in March 1990; 2 partial weeks in April 1990; 2 full
weeks in July 1990; and 3 consecutive partial weeks
in April 1991 followed by 5 consecutive full weeks
from the end of April until May 25, 1991.
Evaluating this evidence in light of the legal stand-
ard set forth above, we conclude that over the 72-week
period provided by the Respondent, it has not been es-
tablished that Mitchell spent a regular and substantial
portion of his worktime as a foreman. Rather, there ap-
pears to be no pattern to his foreman assignments; they
were intermittent and sporadic. Further, in view of the
relative percentage of his time spent as a foreman—
about 15 percent—and as a unit employee—85 per-
cent, we find that Mitchell’s foreman work is insuffi-
cient to exclude him from the unit on this basis. Ac-
cordingly, we conclude that he is an employee within
the meaning of Section 2(3), not a supervisor within
Section 2(11), and that he is included in the appro-
priate unit. See, e.g., Canonie Transportation, supra.
Therefore, we overrule the Employer’s challenge to
Mitchell’s ballot.3
III. THE ALLEGED UNFAIR LABOR PRACTICES AND
THE UNION’S OBJECTION
As explained above, because he concluded that
Mitchell was a supervisor, the judge found it unneces-
sary to address the evidence supporting the complaint
allegation that the Respondent unlawfully threatened to
discharge Mitchell in January and the evidence sup-
porting the complaint allegation, and the Union’s par-
allel election objection, that the Respondent, during the
critical period before the election, made threats to
Mitchell that it would close its business if the Union
were selected. We have reversed the judge’s finding
that Mitchell was a supervisor with respect to his chal-
lenged ballot and accordingly we proceed to a consid-
eration of the objection and the complaint allegations.
1079GAINES ELECTRIC CO.
4 Apart from our finding that Mitchell worked as a foreman on a
merely sporadic basis, we note that the evidence also shows affirma-
tively that Mitchell was working as a journeyman electrician, not a
foreman, at the time of the January incident alleged as an unfair
labor practice. With respect to the plant-closure allegation, the evi-
dence set forth below indicates that the incidents occurred in June,
and we again note that there is no showing at all of Mitchell’s super-
visory status after May 25.
As a threshold matter, concerning the Respondent’s
contention that Mitchell’s excluded supervisory status
absolved it of any unfair labor practice liability, it was
the Respondent’s burden, like its burden in the election
proceeding here, to establish that status. See, e.g., Pon-
tiac Osteopathic Hospital, 284 NLRB 442, 449 (1987).
For the same reasons set forth above with respect to
our disposition of the challenge to Mitchell’s ballot,
we find that the Respondent has not established Mitch-
ell’s supervisory status with respect to the alleged un-
fair labor practices and objection.4 Because we have
concluded that Mitchell was an employee within the
meaning of the Act, we must address the evidence of
the Respondent’s allegedly unlawful and objectionable
conduct.
The General Counsel supplied evidence in support
of the complaint allegation that in January, Roy
Gaines, the owner and president of the Respondent,
threatened to discharge Mitchell because of his pro-
tected, concerted activity. The crucial testimony in-
volved a conversation between Mitchell and Gaines
alone. Mitchell was the only witness presented con-
cerning this conversation; Gaines had died prior to the
hearing.
Mitchell testified that, on or about January 16, a
meeting involving several of the Respondent’s journey-
man electricians—Kevin Coram and Mike Taylor
among them—was held at Mitchell’s house. The em-
ployees discussed terms and conditions of employment,
especially wages and benefits, and specifically how to
approach Roy Gaines concerning these matters. Noth-
ing was resolved at the meeting, which lasted about 3
hours.
According to Mitchell’s further testimony, the fol-
lowing morning, January 17, he reported to the Re-
spondent’s facility before heading out for his worksite.
He noticed that Mike Taylor’s truck was parked in the
lot and that Taylor had arrived earlier than usual.
Mitchell was told that Taylor, who had been present
at the employees’ discussion the night before, was
meeting with Gaines in his office. Mitchell then left
for his worksite. At the end of the workday, he re-
ported back to the Respondent’s facility, and Gaines
called him in to his office. On direct examination by
the General Counsel, Mitchell testified:
A. (by Mitchell) He started yelling at me, tell-
ing me that I had a big mouth and I should learn
to keep my mouth shut. He said he thought I was
spreading rumors and then he just started discuss-
ing, he thought I should look for work elsewhere
while I still had a good record, reputation, record
I think he said. And, I asked him if it had any-
thing to do with the meeting and he said, I don’t
know anything about your stupid meeting and
then he told me to—he told me he says, pick up
my check the next day and I asked him what
time, he said 9:00 and I said all right, I’ll get—
be in after 9:00 o’clock. I got up and started
walking out and he says, well, we can work this
out. He says, you’re too good of a worker to lose.
He says come in in the morning and we’ll work
it out.
Q. (by General Counsel) When Mr. Gaines was
asked by you if what he was talking about had
anything to do with your meeting—
A. Uh, huh.
Q. You’re referring to the meeting of the night
before?
A. Right, yeah. At my house, yes.
On cross-examination by the Respondent’s attorney,
Mitchell gave the following testimony concerning the
reason for Gaines’ threat to discharge him:
Q. (by Respondent’s Counsel) You’re telling us
that he fired you because he said you had a big
mouth and were spreading rumors?
A. (by Mitchell) That’s right. That’s what he
said, yeah.
Q. And yet he never in that conversation told
you what rumors you had spread or what you’d
been saying that upset him?
A. He might, he did say something. He brought
up something about some job that he was going
to do for somebody from Texas. I didn’t listen to
it too much because I didn’t know anything about
it, but he was talking about a job, that something
to do in Texas or some Texas firm, but like I
said, I didn’t pay that much attention to it because
I knew that that was beside the story, it wasn’t
why I was there.
Q. Well, you just finished telling us that he
never told you why you were there except to criti-
cize you for having a big mouth and spreading ru-
mors. Other than with reference to the Texas job,
did he ever tell you what it was you had said or
allegedly what rumors you’d spread that upset
him so?
A. No, I don’t remember. If he did, I didn’t pay
attention.
After January 17, nothing further occurred between
Mitchell and Gaines concerning this incident.
Even assuming that the judge would have fully cred-
ited Mitchell’s testimony on this issue, we conclude
that this evidence is insufficient to establish an unfair
1080 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
labor practice. Without doubt, Mitchell was engaged in
protected, concerted activity under Section 7 on Janu-
ary 16 in the employee meeting at his home, knowl-
edge of which may be imputed to the Respondent, as
the General Counsel argues, in light of the fact that
Kevin Coram, a supervisor by stipulation of the par-
ties, attended the meeting. What is significantly lack-
ing, however, is a sufficient nexus in all the cir-
cumstances between Mitchell’s protected activity and
Gaines’ threat of termination. Gaines charged Mitchell
with having a ‘‘big mouth’’ and ‘‘spreading rumors’’
and these characterizations preceded Gaines’ discharge
threat. Yet, there is no evidence that these characteriza-
tions are descriptive of Mitchell’s conduct during the
employees’ discussion at his home. The evidence, on
the contrary, provides a separate, direct connection be-
tween the ‘‘spreading rumors’’ and ‘‘big mouth’’ accu-
sations and a ‘‘Texas job,’’ ‘‘something to do in Texas
or some Texas firm . . . .’’ The General Counsel does
not contend that the Texas references pertain to pro-
tected concerted activity. On this record, it is at least
as likely that Gaines threatened Mitchell with dis-
charge in connection with a matter entirely unrelated
to the protected employee activity of the night before.
Accordingly, we conclude that the General Counsel
has not established that an unfair labor practice oc-
curred here, and we dismiss this complaint allegation.
With regard to the Respondent’s alleged misconduct
during the critical period before the election, Mitchell
testified that after the petition was filed on May 17 he
had several conversations—possibly as many as 12—
with Roy Gaines concerning the union organizing cam-
paign. Two of these discussions occurred at the Re-
spondent’s worksite at the Niacet Chemical facility be-
tween Gaines and Mitchell alone. Both took place in
June; Mitchell could not identify the exact dates. Re-
garding these conversations, Mitchell testified on direct
examination by the General Counsel:
A. (by Mitchell) Basically all of his statements
were the same. That we were making a terrible
mistake by going Union, we didn’t need the
Union. He could offer us anything the Union
could offer us and at one point he was telling me
that he thought we were stabbing him in the back
by talking to the Union, and the next meeting he
would say that he enjoyed the challenge with a
big smile on his face. I think you guys are proper
in talking to the Union and then he says, I enjoy
the challenge and then one time he was telling me
that he says, I don’t care what you guys do. He
says my wife and I are well enough off, he says
I’ll just forget the whole thing and spend more
time fishing.
Mitchell further testified that he did not remember the
immediate context of Gaines’ ‘‘fishing’’ comment, i.e.,
exactly what the two were discussing leading up to
that statement. He also testified that the ‘‘fishing’’
comment was made in at least one of the conversations
and possibly both. With Roy Gaines deceased, Mitch-
ell was the only witness presented regarding this alle-
gation. Also, there was no evidence that the alleged
threatening language uttered to Mitchell was dissemi-
nated to any other employee.
On June 20, the Union filed an amended unfair
labor practice charge alleging that the Respondent vio-
lated the Act by, inter alia, ‘‘issuing veiled threats to
close the business because of its employees’ union ac-
tivity.’’ On and after June 21, the Respondent cir-
culated the following statement, over the signature of
Roy Gaines and dated June 21, to the unit employees:
TO ALL EMPLOYEES
On several occasions I have talked about the
worsening economy and its effect on our past and
future business. I have also attempted to make the
point, which I sincerely believe, that by becoming
an IBEW employer, our economic opportunities
will be reduced in the County-not increased.
You and our other employees, in an appropriate
unit, have a legal right to self organization, to
form, join, or assist labor organizations, including
the IBEW, to bargain collectively through rep-
resentatives of your own choosing and to engage
in other protected concerted activities for the pur-
pose of collective bargaining or other mutual aid
or protection. You also have the right to refrain
from any or all such activities.
It is unlawful for me to threaten to close or sell
the Company because of employees’ union activi-
ties. You should disregard all statements I may
have made to you, which even created an impres-
sion in your mind that I was threatening you be-
cause you were engaging in union activities.
I am repudiating any express or inferred threats to
discontinue business activity or impose unreason-
able working conditions because I do not want
any cloud to interfere with your rights and the
rights of your fellow employees to vote in a fair
election run by the National Labor Relations
Board.
The Company assures you that it will not in any
other manner interfere with the rights you and
other employees have which are protected by the
National Labor Relations Act.
It is undisputed that Mitchell and the other unit em-
ployees, except for one, read and received a copy of
the June 21 statement.
We find it unnecessary to determine whether
Gaines’ alleged comments to Mitchell violated the Act
1081GAINES ELECTRIC CO.
because, even assuming Mitchell’s testimony is fully
credited and we were to find that the General Counsel
had proven a violation, we conclude that the Respond-
ent’s June 21 statement was a repudiation of the un-
lawful conduct sufficient to remedy the violation and
to restore laboratory conditions for a valid election.
The Board set forth the standard for an appropriate
repudiation of unfair labor practices in Passavant Me-
morial Hospital, 237 NLRB 138 (1978). For a repudi-
ation to be effective, it must be timely, unambiguous,
specific in nature to the coercive conduct, free from
other proscribed conduct, and adequately published to
the employees involved. In addition, it must set forth
assurances to employees that no interference with their
Section 7 rights will occur in the future, and in fact
there must be no unlawful conduct by the employer
after publication of the repudiation. Id. at 138–139.
Reviewing the June 21 statement under the
Passavant standard, we find that it was timely, coming
reasonably promptly after the alleged threat or threats
were made to Mitchell, and almost 2 weeks before the
July 3 election. We also find that the statement was
sufficiently unambiguous and sufficiently specific in
addressing the coercive conduct. The June 21 state-
ment was free from any other unlawful conduct, and
it was more than adequately published, in light of the
isolated nature of the matter and the absence of dis-
semination to other employees. Finally, the statement
made the requisite assurances to employees regarding
their future exercise of Section 7 rights, and the Re-
spondent engaged in no subsequent unlawful conduct.
Overall, we conclude that the June 21 statement is rea-
sonably consistent with the Passavant standard and
that it adequately remedied any unfair labor practice
committed against Mitchell in June. See Raysel-Ide,
Inc., 284 NLRB 879, 881 (1987); Broyhill Co., 260
NLRB 1366 (1982). We also conclude that in the cir-
cumstances of this case the June 21 statement, effec-
tively disavowing the Respondent’s conduct at issue,
also acted to restore in a timely fashion the laboratory
conditions for a fair election on July 3. See Agri-Inter-
national Inc., 271 NLRB 925, 926–927 (1984). Ac-
cordingly, the complaint allegation involving a threat
of plant closure is dismissed, and the Union’s parallel
election objection is overruled.
ORDER
The complaint in Case 3–CA–16329 is dismissed.
DIRECTION
IT IS DIRECTED that Case 3–RC–9744 be remanded
to the Regional Director for Region 3, who shall, with-
in 10 days from the date of this Decision, Order, and
Direction, open and count the ballots of Scott Thomas
and Jayson Mitchell. Thereafter, the Regional Director
shall prepare and serve on the parties a revised tally
of ballots, and issue the appropriate certification.
Michael Israel, Esq., for the General Counsel.
Jeremy V. Cohen, Esq., of Buffalo, New York, for the Re-
spondent.
Russell J. Sciandra, Esq., of Buffalo, New York, for the
Union.
DECISION
STATEMENT OF THE CASE
LOWELL M. GOERLICH, Administrative Law Judge. The
original charge filed by International Brotherhood of Elec-
trical Workers, Local 237 (the Union), on May 23, 1991, was
served by certified mail on Gaines Electric Company, Inc.
(the Respondent) on the same date. The first amended charge
filed by the Union on June 20, 1991, was served by certified
mail on the same date. A complaint and notice of hearing
was issued on August 23, 1991. Among other things, it is
alleged in the complaint that the Respondent unlawfully
threatened an employee with discharge and threatened to
close the Respondent’s business in violation of Section
8(a)(1) of the National Labor Relations Act (the Act).
On July 3, 1991, an election by secret ballot had been held
among employees in the following described appropriate col-
lective-bargaining unit in Case 3–RC–9744:
All full time and regular part-time production and
maintenance employees including journeymen, appren-
tices and helpers; excluding all other employees, office
staff, guards and supervisors as defined in the Act.
On August 29, 1991, the Acting Regional Director issued
a report on objections and challenged ballots and order di-
recting hearing on objections and challenged ballots, order
consolidating cases and notice of hearing in which Cases 3–
RC–9744 and 3–CA–16329 were consolidated ‘‘for the pur-
poses of hearing, ruling and decision’’ by an administrative
law judge.
The Respondent filed a timely answer denying that it had
engaged in the unfair labor practices alleged.
The cases came on for hearing in Buffalo, New York, on
December 16, 1991. All parties were afforded full oppor-
tunity to be heard, to call, to examine and cross-examine wit-
nesses, to argue orally on the record, to submit proposed
findings of fact and conclusions, and to file briefs. All briefs
have been carefully considered.
On the entire record in this case and from my observation
of the witnesses and their demeanor, I make the following
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND
REASONS THEREFOR
I. THE BUSINESS OF THE RESPONDENT
At all times material, the Respondent, a New York State
corporation, with an office and place of business in Niagara
Falls, New York (the Respondent’s facility), has been en-
gaged as an electrical contractor performing residential, com-
mercial and industrial wiring, installation, repair, and mainte-
nance service in the building and construction industry.
1082 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Wisor denied the notification. Wisor is not credited. According
to Gaines’ son, his father contacted Wisor ‘‘under the advice of an
attorney.’’
2 From sometime prior to the election Mitchell worked on a Niacet
job and other jobs where he was designated as a journeyman fore-
man. Mitchell testified that his work was the same whether he was
a journeyman or a designated foreman.
During the 12-month period ending May 31, 1991, the Re-
spondent, in the course and conduct of its business oper-
ations described above, purchased and received at its Niagara
Falls, New York facility products, goods, and materials val-
ued in excess of $50,000 directly from points outside the
State of New York.
The Respondent is now, and has been at all times material,
an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION
The Union is now, and has been at all times material, a
labor organization within the meaning of Section 2(5) of the
Act.
III. THE CHALLENGES
The petitioning Union challenged the ballots of David
Gaines, Kevin Coran, and Scott Thomas. The parties agree
that Gaines and Coran are ineligible voters. Challenges to
their ballots are sustained.
Scott Thomas commenced working for the Employer on
December 26, 1990. He performed carpentry work when he
was first hired. Thereafter around May 15, 1991, he com-
menced performing electrical work in which he was engaged
in at the time of the election. He had been placed in the ap-
prentice program and worked with a journeyman. His job
was not unlike the jobs of other apprentices and helpers
which were included in the appropriate unit. The challenge
to his ballot is overruled.
The Employer challenged the ballots of Gerald Wisor and
Jason Stewart Mitchell. Wisor was employed by the Em-
ployer on May 8, 1991. After working a few days Wisor was
laid off on May 8, 1991. Wisor testified that Roy Gaines,
who is now deceased, called him on May 18 or 19 and told
him that work was slow and that he did not want Wisor to
come in on Monday. Gaines said that he would call Wisor
if ‘‘things got better.’’ Wisor was never recalled.
The Employer produced a memo written by Roy Gaines
as follows:
called Jerry Wisor 6-14-91 at 5:05 PM, told we are
slowing down & he is laid off permanently. [Emp.
Exh. 6.]1
Under the credited facts, I do not find that Wisor had reason-
able expectancy of recall. Challenge to his ballot is sus-
tained.
The Employer claims that Mitchell is a supervisor within
the meaning of the Act and thus should be excluded from
the appropriate unit. The Petitioner and the General Counsel
claim the contrary.
At the time of the election, Mitchell was a journeymen
electrician. He was hired by the Employer on July 27, 1984,
and worked until September 2, 1991, at which time he was
laid off. During his tenure of employment, Mitchell advanced
to journeymen electrician around 1989.
Kevin Coram, who called himself an estimator, testified
that Roy Gaines was over the whole operation. Under him
was Coram and under Coram was ‘‘probably’’ David Gaines,
Roy Gaines’ son. There was no one under David Gaines.
However, the Employer did have a designation, journeyman
foreman. According to Coram, this designation was used
when there were four or more employees on a job. ‘‘The rule
was that the, you should be, most senior journeymen on the
job, would become journeymen foremen when including
himself, there was three others, a total of four employees on
that particular job.’’ The journeyman foreman, while serving
as such, was paid $1 more an hour than his journeyman pay.
The designation was established in 1987 or 1988. Mitchell
explains:
The reason he started that, Roy, in my opinion, which
I don’t know if I’m allowed to say or not. A few years
ago I was working at a job at Niacet and we were get-
ting people, I was working during the day and there
was people coming in the afternoon shift making more
than what the people were making during the day be-
cause they were getting paid overtime for coming in on
the afternoon shift. So I complained to Mr. Gaines
about it and he says how about if I give you a dollar
more an hour if I give the foreman’s rate, or the JF rate
for having four people and I said, well, I’ll take it. I
was hoping for a little bit different situation, but that’s
what started it with Mr. Gaines and I wasn’t going to
complain, it was a dollar an hour more.
Sometimes other journeymen electricians were designated
journeymen foremen.2
Factors which reflect on Mitchell’s supervisory capacity
may be summarized as follows:
Michael R. Brannen, manager new construction for Niacet
Chemical on whose site Mitchell had worked as journeyman
foreman testified, ‘‘we had an incident where a guy specifi-
cally on this site broke a major safety rule and Jayson threw
him off the job.’’
On another occasion Mitchell removed an employee from
a bulldozer because he thought the employee was unable to
operate it.
Mitchell could assign employees to jobs on the site, and
according to Coram decide how a job was to be done before
it started including the materials to be used. He was respon-
sible for directing the work performed at the jobsite. Coram
testified that if work fell off the foreman would ‘‘probably’’
recommend that someone be removed from the job, or he
could request additional manpower.
Mitchell, on occasion, procured materials for the jobsite
and utilized the Employer’s credit. Occasionally he sent em-
ployees for materials. He made sure the employees did the
‘‘job right the first time.’’
Mitchell filled out his own and another employee’s acci-
dent reports. He also filed daily reports of hours worked by
employees and materials used.
Customers dealt with the foreman on the job. The foreman
sometimes suggested increasing or decreasing the labor force.
The customer brought safety matters to the foreman’s atten-
tion. There was no on-site supervisor except Mitchell. When
1083GAINES ELECTRIC CO.
3 Brannen testified:
If I wanted to get something done so that the unit could get
back in operation over the weekend and I wanted, needed to
work late on Friday night, I’d come to Jay and I’d say Jay, we
got to get this job done, it’s gotta be done tonight. I don’t care
if it’s 10:00 o’clock tonight, and you know, whatever’s nec-
essary. Jay would get guys and work overtime and if the guys
that were working with him at the time wouldn’t work overtime,
he’d get other guys from other jobs to come in and work over-
time.
Mitchell acted as the designated foreman, always three or
more other employees worked under him.
Coram testified:
A. Journeymen usually, if there are any problems or
headaches that might arise on a job would deal back
through the office for assistance or correct the situation
where a journeyman would deal directly with it on site
with the individuals, with the owner, try to correct it on
site without coming back through the office.
Q. Any other differences that you could relate to us?
A. No.
Q. What, if any, responsibility did journeymen fore-
men have for the crews on the job site that a journey-
man electrician did not?
A. Generally the journeyman would get the orders
through the office, either for changes to be made or if
the customer had changes to be made where the fore-
man would be in direct contact with a customer on site
and if the customer wanted to make a change imme-
diately and said it had to be done immediately, the
foreman on the job would have to decide who, who to
stop working on this part of the project and pull him
to put him on this part or make a decision and on the
need for more materials, if they weren’t on site to send
someone to go get them.
Q. To what extent where other journeymen or ap-
prentices on the job site where there was a foreman, en-
titled to refuse to obey or follow the instructions of the
foreman?
A. They were obligated to listen to and take direc-
tion from the journeyman foreman.
A ‘‘supervisor’’ is defined in Section 2(11) of the Act as:
any individual having authority, in the interest of the
employer, to hire, transfer, suspend, lay off, recall, pro-
mote, discharge, assign, reward or discipline other em-
ployees, or responsibly to direct them, or to adjust their
grievances, or effectively 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.
The law on the subject is well summarized by Judge Itkin
in the case of Amperage Electric, 301 NLRB 5, 13 (1991):
Actual existence of true supervisory power is to be dis-
tinguished from abstract, theoretical or rule book au-
thority. It is well established that a rank-and-file em-
ployee cannot be transformed into a supervisor merely
by investing him or her with a ‘‘title and theoretical
power to perform one or more of the enumerated func-
tions.’’ NLRB v. Southern Bleachery & Print Works,
257 F.2d 235, 239 (4th Cir. 1958), cert. denied 359 US
911 (1959). What is relevant is the actual authority pos-
sessed and not the conclusory assertions of witnesses.
And while the enumerated powers listed in Section
2(11) of the Act are to be read in the disjunctive, Sec-
tion 2(11) also ‘‘states the requirement of independence
of judgment in the conjunctive with what goes before.’’
Poultry Enterprises, Inc. v. NLRB, 216 F.2d 798, 802
(5th Cir. 1954). Thus, the individual must consistently
display true independent judgment in performing one or
more of the enumerated functions in Section 2(11) of
the Act. The performance of some supervisory tasks in
a merely ‘‘routine,’’ ‘‘clerical’’ ‘‘perfunctory’’ or ‘‘spo-
radic ‘‘manner does not elevate a rank-and-file em-
ployee into the supervisory ranks. NLRB v. Security
Guard Service, 384 F.2d 143, 146–149 (5th Cir. 1967).
Nor will the existence of independent judgment alone
suffice; for ‘‘the decisive question is whether [the indi-
vidual involved] has been found to possess authority to
use [his or her] independent judgment with respect to
the exercise [by him or her] of some one or more of
the specific authorities listed in Section 2(11) of the
Act.’’ See NLRB v Brown & Sharpe Mfg. Co., 169 F.2d
331, 334 (1st Cir. 1948). In short, ‘‘some kinship to
management, some empathetic relationship between em-
ployer and employee, must exist before the latter be-
comes a supervisor of the former.’’ NLRB v. Security
Guard Service, supra.
The following factors establish that Mitchell exercised
independent judgment in assigning and responsibly directing
other employees.
Mitchell possessed authority to assign jobs to employees
working under him and to enforce safety rules and discipline
for violation of them. Mitchell was responsible for work per-
formed on site and the quality of the work performed. Mitch-
ell requested manpower when needed and recommend re-
moval of employees for lack of work. Mitchell purchased
materials for the job without prior approval and pledged the
Employer’s credit. Mitchell accounted for labor and materials
used on the jobsite. Mitchell decided how jobs would be
done and materials to be used. Mitchell assigned other em-
ployees to pick up supplies. Mitchell filled out accident re-
ports. Mitchell dealt directly with ‘‘problems or head aches’’
which would arise on the site. Mitchell dealt with the cus-
tomer on the site and, if immediate changes were requested,
he would decide who to stop working on the project and
‘‘pull him’’ or ‘‘make a decision on the need for more mate-
rials, if they weren’t on site to send some one to get them.’’
Other employees were obligated to listen to and take direc-
tions from the journeyman foreman. Journeyman foreman
were paid a $1-an-hour differential in wages. Mitchell au-
thorized overtime in an emergency.3
Mitchell recommended that a couple of ‘‘real goof-ups’’
be removed from the job.
Mitchell referred to the journeyman foreman as ‘‘running
the job.’’
Mitchell was the sole person on the site representing the
Employer.
I find that Mitchell was a supervisor within the meaning
of the Act. See Clark & Wilson Industries, 290 NLRB 106
1084 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(1988); McDonald Mitler Co., 277 NLRB 701, 703 (1985);
and Amperage Electric, supra. Accordingly the challenge to
Mitchell’s ballot is sustained.
IV. THE UNFAIR LABOR PRACTICES AND OBJECTIONS TO
THE ELECTION
Since the unfair labor practices alleged in the complaint
are planted on alleged threats to Mitchell, a supervisor within
the meaning of the Act, the complaint is dismissed. Since the
objections to the election are grounded on the same facts as
alleged in the complaint the objections are overruled.
[Recommended Order for dismissal omitted from publica-
tion.]