RCC Fabricators, Inc.

National Labor Relations Board - Board Decisions

Jun 9, 2008

352 N.L.R.B. 701 (N.L.R.B. 2008)

RCC FABRICATORS, INC.
352 NLRB No. 88
701
RCC Fabricators, Inc. and Metropolitan Regional
Council of Carpenters, Eastern Pennsylvania,
State of Delaware and Eastern Shore of Mary-
land
RCC Fabricators, Inc. and Piledriver’s Local 454 a/w
Metropolitan Regional Council of Carpenters,
Eastern Pennsylvania, State of Delaware and
Eastern Shore of Maryland and Construction
and General Laborers Union Local 172 of South
Jersey. Cases 4–CA–31757, 4–RC–20569, and 4–
RC–20572
June 9, 2008
DECISION, ORDER, AND CERTIFICATION
OF REPRESENTATIVE
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
On October 23, 2003, Administrative Law Judge Paul
Buxbaum issued the attached decision. The Respondent
filed exceptions and a supporting brief, the General
Counsel filed an answer, and the Respondent filed a re-
ply. On September 20, 2006, the National Labor Rela-
tions Board remanded the case to the judge for further
consideration in light of the Board’s decisions in Oak-
wood Healthcare, Inc., 348 NLRB 686 (2006), Croft
Metals, Inc., 348 NLRB 717 (2006), and Golden Crest
Healthcare Center, 348 NLRB 727 (2006). On January
30, 2007, Judge Buxbaum issued the attached supple-
mental decision. The Respondent filed exceptions and a
supporting brief, and the General Counsel filed an an-
swering brief.
The National Labor Relations Board has considered
the decision, the supplemental decision, and the record in
light of the exceptions and briefs,1 and has decided to
affirm the judge’s rulings,2 findings,3 and conclusions as

1 The Respondent has requested oral argument. The request is de-
nied as the record, exceptions, and briefs adequately present the issues
and the positions of the parties.
2 In his initial decision, the judge dismissed the allegation that shop
manager Carl Baer threatened to close the plant if the Union were
elected, and the allegation that employee Pohubka was unlawfully
discharged. In addition, the judge sustained challenges to Pohubka’s
ballot, because he was lawfully discharged, and to the ballots of two
laid-off employees, finding that they had no reasonable expectation of
recall. In the absence of exceptions, we affirm these findings
3 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 54 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
modified, to adopt the recommended Order as modified
below, and to issue a certification of representative.4
We affirm the judge’s finding that Foremen Ronald
Earley and James Phillips were statutory supervisors
based on the judge’s finding that they exercised inde-
pendent judgment when assigning, and effectively rec-
ommending the assignment of, employees to departments
and significant overall tasks. In light of that finding, we
do not pass on the judge’s further finding that they pos-
sessed the power to discipline and effectively recom-
mend discipline, and his alternative finding that foreman
Phillips was the Respondent’s agent. In addition, we
affirm the judge’s finding that Phillips unlawfully inter-
rogated employees about a union meeting; however, we
reverse the judge and dismiss the allegation that Phillips’
questions about the union meeting created the impression
of surveillance. Finally, because of their supervisory
status, the challenges to Earley’s and Phillips’ ballots are
sustained. Accordingly, we shall issue a certification of
representation.
I. SUPERVISORY STATUS
The Respondent manufactures railroad equipment and
structural steel components in a plant in Southampton,
New Jersey. At all times relevant to these proceedings,
Carl Baer was the shop manager. Under his supervision,
James Phillips was foreman in charge of railroad con-
struction operations, and Ronald Earley was foreman in
charge of structural steel operations. We agree with the
judge’s finding that the foremen possessed and exercised
supervisory authority to assign and recommend assign-
ment of employees to departments and significant overall
tasks as defined by the Board in Oakwood Healthcare,
supra at 688. We thus affirm the judge’s finding that the
foremen were supervisors.5

4 We shall modify the judge’s Conclusions of Law and recom-
mended Order to reflect our finding that the Respondent did not violate
Sec. 8(a)(1) by creating an impression of surveillance. We shall substi-
tute a new notice to conform to the Order as modified.
Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Schaumber and Member Liebman constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
5 The judge supported his finding that the foremen were supervisors
by, among other things, drawing an adverse inference against the Re-
spondent for its repeated failure to produce a written job description for
the position of foreman, despite the Respondent’s concession that such
a job description existed. Indeed, as the judge noted in his supplemen-
tal decision, the Respondent excepted to the judge’s adverse inference
in the initial decision, yet it still refused to produce the document de-
spite the opportunity to do so on remand. Under these circumstances,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD702
II. THE 8(A)(1) ALLEGATIONS
On the evening of October 9, 2002, most of the Re-
spondent’s employees met with union representatives in
a local pizza parlor. The following morning, as several
employees, including Phillips and Earley, gathered in the
breakroom before work, an employee asked Phillips why
he was not at the meeting the night before. Phillips re-
sponded that he did not know about it and asked the
other employees why he wasn’t invited. As part of the
discussion, he also asked who attended the meeting and
what happened there. In addition, the evidence shows
that, on separate occasions during that day, Phillips
raised the issue of the union meeting individually with
employees Pohubka and Iannaco and asked about the
meeting, who was there, and what was said. We agree
with the judge that Phillips unlawfully interrogated Po-
hubka and Iannaco in these individual conversations.6
The judge further found that Phillips’ interrogation of
Pohubka and Iannaco created an impression of surveil-
lance. We disagree. The undisputed evidence shows
that Phillips did not know about the meeting beforehand,
but rather learned about it the next morning during a
breakroom conversation with several employees, includ-
ing Iannaco, before work. Phillips testified that the
meeting was a topic of discussion around the plant dur-
ing the day. Under these circumstances, we do not find
that Phillips’ questions to Pohubka or Iannaco would
cause them to reasonably assume that their union activi-
ties had been placed under surveillance. Park ‘N Fly,
Inc., 349 NLRB 132, 133 (2007). We therefore reverse
the judge and dismiss this allegation.
AMENDED CONCLUSION OF LAW
We modify the judge’s Conclusions of Law by delet-
ing paragraph 4 and renumbering the subsequent para-
graph.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, RCC
Fabricators, Inc., Southampton, New Jersey, its officers,
agents, successors, and assigns, shall take the action set
forth in the Order as modified.

we agree with the judge that an adverse inference was warranted and
that such inference supports the judge’s finding that the foremen were
supervisors.
6 We do not read the judge’s decision as finding that Phillips’ infor-
mal conversation with employees before work in the breakroom, during
which an employee informed Phillips about the union meeting, consti-
tuted unlawful interrogation. To the extent that the judge made such a
finding, we do not need to pass on it.
1. Delete paragraph 1(b) and reletter the subsequent
paragraph.
2. Substitute the attached notice for that of the admin-
istrative law judge.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots have
been cast for Piledrivers Local 454 a/w Metropolitan
Regional Council of Carpenters, Eastern Pennsylvania,
State of Delaware and Eastern Shore of Maryland, and
that it is the exclusive collective-bargaining representa-
tive of the employees in the following appropriate bar-
gaining unit:
All full time Layout Men, Machinists, Mechanics,
Shop Laborers, Welders, and Welders/Fitters employed
by the Employer at its 2035 State Highway 206 South,
Southampton, New Jersey facility, but excluding all
other employees, including clerical employees, guards,
and supervisors as defined in the Act.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT coercively question you about your un-
ion support and activities or the union support and activi-
ties of other employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Federal labor law.
RCC FABRICATORS, INC.
Henry R. Protas, Esq. and Ann Marie Cummins, Esq., for the
General Counsel.
John H. Widman, Esq. and Amy Niedzalkoski, Esq., of King of
Prussia, Pennsylvania, for the Respondent.
Richard C. McNeill Jr., Esq., of Philadelphia, Pennsylvania, for
the Charging Party.
RCC FABRICATORS, INC. 703
DECISION
STATEMENT OF THE CASE
PAUL BUXBAUM, Administrative Law Judge. This case was
tried in Philadelphia, Pennsylvania, on April 8 and 10 and May
15, 2003. The charge was filed on November 25, 2002, and an
amended charge was filed on January 28, 2003. The complaint
was issued on February 19, 2003.
On October 25, 2002, the Metropolitan Regional Council of
Carpenters, Eastern Pennsylvania, State of Delaware and East-
ern Shore of Maryland filed a petition for certification as col-
lective-bargaining representative of certain employees of the
Company.1 Six days later, the Construction and General Labor-
ers Union Local 172 of South Jersey filed a similar petition.2
The Regional Director consolidated these petitions on October
31, 2002.
A representation election was held on November 21, 2002.
Sixteen votes were cast. Six votes favored the Carpenters, five
votes were against any union representation, and no votes were
cast in favor of the Laborers. Five ballots were challenged, a
potentially determinative number. On March 6, 2003, the Re-
gional Director issued an order consolidating the ballot chal-
lenges and the unfair labor practice allegations and scheduling a
hearing.
The General Counsel alleges that an admitted supervisor told
an employee that the Company would close if the employees
selected a union as their bargaining representative. It is also
alleged that a foreman interrogated employees regarding their
union activities and created an impression that union activities
were under employer surveillance. That foreman is alleged to
be a supervisor and agent of the Company. Finally, the General
Counsel contends that the Company discharged an employee,
Daniel Pohubka, because of his involvement in union activities.
The Company filed an answer, denying the material allegations
of the complaint, including the contention that the foreman was
a supervisor and agent.
Regarding the representation election, the Board agent chal-
lenged three ballots since the names of the prospective voters
were not contained on the Excelsior list of voters.3 One of
these prospective voters is Pohubka. His eligibility depends on
a resolution of the unfair labor practice allegation that he was
wrongfully terminated from employment due to his union ac-
tivities. The remaining two prospective voters challenged by
the Board agent were employees who were laid off prior to the
election. The Union contends that these employees enjoyed a
reasonable expectation of returning to work in the foreseeable
future. The Company denies that such an expectation existed.
Finally, the Union challenges the ballots of the two shop fore-
men, contending that they were supervisors within the meaning
of the Act. The Company denies this assertion regarding their
status.

1 This is Case 4–RC–20569. As the Carpenters were the only labor
organization that participated actively in this trial, I will refer to them
where appropriate as the “Union.”
2 This is Case 4–RC–20572. The Laborers Union did not participate
in this trial, either through counsel or otherwise.
3 Excelsior Underwear, 156 NLRB 1236 (1966).
As described in detail in the decision that follows, I conclude
that the General Counsel has failed to prove that a supervisor
threatened closure of the Company in the event the employees
elected union representation. I further find that the foreman, a
supervisor and agent of the Company, did unlawfully interro-
gate employees and create an impression that their union activi-
ties were under surveillance. I also conclude that, while the
General Counsel met its initial burden regarding the discharge
of Pohubka, the Company established that he would have been
discharged regardless of his union sympathies and activities. It
follows that Pohubka’s ballot in the representation election was
properly subject to challenge. By the same token, I find that the
remaining four ballot challenges should be sustained since the
evidence establishes that the laid-off employees did not have
any reasonable expectancy of return within the foreseeable
future and that the two shop foremen were supervisors within
the meaning of the Act.
Before detailing my findings of fact, I must address prelimi-
nary matters regarding the state of the record. As is virtually
inevitable, there are errors in the transcription of the testimony.
Those significant errors involving testimony given on April 8
and 10, were corrected on the record during the second portion
of the trial conducted in May. (Tr. 463–465.) Several errors
relating to the testimony on May 15, require correction. The
witness was actually asked if Pohubka often “didn’t” punch in
on time. (Tr. 543, l. 10.) The witness testifies that he observed
Pohubka “wandering.”4 (Tr. 580, l. 14.) Three other errors can
be seen in a more lighthearted vein. The Company’s comptrol-
ler is reported to have testified that he was a “beam counter.”
(Tr. 609, l. 9–10.) This would be logical given the Company’s
involvement in the structural steel industry. Nevertheless, in
referring to his duties as financial analyst, he actually said he
was a “bean counter.” (Tr. 670, l. 13.) Counsel for the Union
characterizes the Company as asserting a “Great Wine De-
fense.” While such a defense would certainly be interesting,
counsel’s reference was, of course, to a Wright Line defense.
Finally, at the conclusion of the hearing, it is reported that I
promised the parties that I would strive for a decision that was
both just and “fear.” (Tr. 677, l. 21.) Naturally, I expressed my
hope that the eventual decision would be just and “fair.”
On June 5, 2003, the Company filed a motion to reopen the
record and admit newly discovered evidence. This evidence
consists of a decision of the Appeal Tribunal of the State of
New Jersey Department of Labor regarding the disposition of
Pohubka’s claim for unemployment compensation benefits. On
June 11, 2003, counsel for the Union filed an opposition to this
motion, contending that the decision did not constitute newly
discovered evidence and was “at best . . . marginally relevant.”
The General Counsel takes a somewhat different view, conced-
ing that the document is admissible, but asserting that it should
be accorded no probative worth.
Counsel for the Union argues that the Department of Labor’s
decision cannot be deemed newly discovered evidence since
the Company was aware of the pendency of the unemployment

4 This error, using the term “wondering” instead of “wandering,”
also occurs at Tr. 581, l. 10, Tr. 607, l. 24, Tr. 630, ll. 11, 12, 20, 24,
and 25, and Tr. 648, l. 1.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD704
compensation claim throughout the hearing in this matter and
could have offered to introduce evidence regarding “the possi-
bility of the issuance of a decision favorable to RCC” by the
Appeals Tribunal. I find this argument to be unpersuasive.
Counsel does not cite, and I am not aware of, any principle in
the law of evidence that would authorize the submission into
evidence of a “possibility” that a party may at some future date
prevail in a pending lawsuit whose outcome could affect these
proceedings. Evidence of such a contingency would fail the test
for relevancy since it would not have
[A]ny tendency to make the existence of any fact that is of
consequence to the determination of the action more probable
or less probable than it would be without the evidence.
Federal Rules of Evidence, Rule 401. As a result, I attach no
significance to the Company’s failure to mention the pending
unemployment case during the trial of this matter.
The Company has filed an affidavit from its comptroller,
Frank Santos, indicating that he received the decision of the
Appeals Tribunal upon returning to his office after attendance
at the final day of trial in this case on May 15, 2003. The Ap-
peals Tribunal decision states that it was mailed to the parties
on May 13, 2003. This is entirely consistent with Santos’ un-
controverted affidavit. By unfortunate coincidence, it appears
that the Company received the document immediately after the
trial concluded and the record was closed. From this it follows
that the Appeals Tribunal decision was newly discovered evi-
dence that could not reasonably have been produced during the
trial in this matter.5
I must next address the question of whether the Appeals Tri-
bunal decision is relevant to the issues under consideration.
Both counsel for the Union and counsel for the General Coun-
sel concede that the document is at least marginally relevant.
More importantly, the Board had addressed this issue on sev-
eral occasions. In Western Publishing Co., 263 NLRB 1110
(1982), it observed that
We have long held that [unemployment compensation deci-
sions by state departments of labor], although not controlling
as to the findings of fact or conclusions of law contained
therein, have some probative value and are admissible into
evidence.
Id. at fn. 1. The Third Circuit has described the Board’s view
as being that the decisions of state unemployment compensa-
tion agencies, although not controlling, “may be judicially no-
ticed.” NLRB v. Duquesne Electric & Mfg. Co., 518 F.2d 701,
703 (3d Cir. 1989). Under the Board’s longstanding policy
authorizing admission of unemployment compensation deci-
sions, I will reopen the record and admit the decision of the
Appeals Tribunal into evidence. At the appropriate time, I will
discuss the weight I have assigned to this document.
Finally, I note that, on June 19, 2003, the General Counsel
filed an errata to counsel for the General Counsel’s brief to the

5 In his affidavit, Santos also stated that the parties before the Ap-
peals Tribunal were not given an indication of when its decision would
issue. This is certainly consistent with the nature of the litigation proc-
ess.
administrative law judge. This contains only technical correc-
tions. No party has objected to this submission, and I grant
leave to file this document.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Company and the oral closing
argument presented by counsel for the Union, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
The Company, a corporation, manufactures railroad equip-
ment and structural steel components at its facility in South-
ampton, New Jersey, where it annually purchases and receives
at the facility goods valued in excess of $50,000 directly from
points outside the State of New Jersey. The Company admits
and I find that it is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act and that the
Union is a labor organization within the meaning of Section
2(5) of the Act.6
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Factual Background
Alphonso Daloisio Jr. is the owner of RCC Fabricators, Inc.
The firm’s acronym is an abbreviation of “Railroad Construc-
tion Company.” Daloisio’s family has a long history in this
field of endeavor. His grandfather started the original company
in 1926, with exclusive focus on the railroad industry. Over
time, the nature of the business expanded to include road,
bridge, and site work, as well as, building construction. In
2000, the original company was divided into a number of sepa-
rate entities. Historically, these companies have had work
forces represented by a variety of unions. Daloisio testified that
the family of companies currently has 27 agreements with un-
ions, including the operators, teamsters, iron workers, laborers,
dock builders, and carpenters.
Although RCC Fabricators, Inc. has a venerable corporate
ancestry; the Company itself is quite new. Its immediate prede-
cessor was a corporation known as RCC Materials and Equip-
ment, located in North Carolina. Daloisio owned this company
in conjunction with his brother, James. The company manufac-
tured railroad equipment, but it was not a profitable enterprise.
Daloisio testified that in the fall of 2001, it was decided to
combine the North Carolina production with a steel fabrication
operation intended to supply the building component of the
RCC family of companies. It was further decided to locate this
new company in New Jersey. As a result, Daloisio established
the Company as a New Jersey corporation engaged in the
manufacture of railroad equipment and structural steel compo-
nents for the building industry.
A suitable facility for the Company was purchased. Located
in Southampton, New Jersey, the property consists of 16 acres,
including a 53,000 square foot manufacturing plant. Several
veteran employees from the former North Carolina plant were

6 The Company’s position as to jurisdiction is set forth in its answer
to the complaint, par. 2(b), as supplemented by counsel for the Com-
pany’s stipulations at Tr. 6–7.
RCC FABRICATORS, INC. 705
recruited for operations in Southampton. Among those who
transferred to New Jersey for this purpose were two who figure
prominently in this case, Carl Baer and James Phillips. Along
with several other employees, they were housed in a residence
located on the Company’s property. Baer was hired as the shop
superintendent. Daloisio testified that Phillips was initially
hired to be a “jack of all trades” and did not have a formal title.
(Tr. 42.) As the autumn of 2001 progressed, additional employ-
ees were hired, including principal management officers.
Among them was Dave Puza, the Company’s vice president.
He testified that one of his initial impressions was a concern
that the Company lacked formal disciplinary procedures for
employees. He believed that the absence of such procedures
was a cause of developing disciplinary problems. As a result,
he directed that disciplinary forms be obtained from other com-
ponents of the RCC family of companies.
In November 2001, operations began. Originally, these con-
sisted of the cleaning and painting of the shop facility. At this
time, Phillips was appointed as a foreman. He was told that he
“would be working, as well.” (Tr. 403.) The hiring process also
continued. In December, Ronald Earley was hired as a welder
and fitter. He had extensive prior experience, having risen from
laborer to foreman in the defunct company that had been the
prior occupant of the Southampton plant. Less than a year after
he was hired, Earley was promoted to be the second shop fore-
man. At that point, the two foremen, Phillips and Earley, were
each given responsibility for a facet of the Company’s opera-
tions. Phillips dealt with the production of railroad equipment,
while Earley was foreman of the structural steel operation. Both
men reported to Baer.
By January 2002, the Company was fully operational and
was manufacturing its products. The first billing was generated
in that month. At the same time, the Company implemented use
of the disciplinary form provided by the human resource man-
ager of the RCC family of companies.
In the following month, Daniel Pohubka, another important
participant in the events involved in this case, was hired. His
job was as a laborer and the duties consisted of painting,
sweeping, and, as he put it, “a little welding” and “whatever
[else] I was told to do.” (Tr. 169.)
At the approximate time that Pohubka began his employment
with the Company, the question of union representation for the
work force first arose. Daloisio testified that he serves as co-
chair of Project Build, a cooperative union-management com-
mittee that resolves jurisdictional disputes among unions in
New Jersey. His co-chair is Frank D’Antonio, the president of
Laborers Union Local 172. On the occasion of a Project Build
meeting in February 2002, Daloisio told D’Antonio that he had
opened a new shop. Daloisio testified that D’Antonio re-
sponded by asking, “hey, do you want me to get a shop agree-
ment, you know, for down there also?” (Tr. 43.) Daloisio re-
ports that he told D’Antonio that he was uncertain about the
Company’s viability. As a result, he suggested,
[W]hy don’t you give us a year or two and we’ll definitely,
we’ll talk about it, there’s no question that if the co-workers7

7 In his testimony, Daloisio referred to the Company’s employees as
“coworkers.”
are interested[,] that we’d be interested.
(Tr. 44.) Daloisio indicated that subsequent to this conversa-
tion, D’Antonio would occasionally ask him about the status of
the Company.
Pohubka testified that in March 2002, he began speaking to
his fellow employees regarding the question of union represen-
tation. He reported that the idea for such representation came to
him after employees of another RCC company took him to task,
telling him that he was doing union work and should be getting
paid union wages. Pohubka asserts that in the following month
he asked Baer why there was no union at the plant and Baer
responded by telling him that Daloisio would “shut down the
shop” if a union came in. (Tr. 219.) Baer flatly denies any such
conversation.
There is general agreement that Pohubka raised a peripheral
issue regarding union representation during a meeting in April.
Puza testified that during the meeting Pohubka asked why the
employees were not being paid union wages when the material
they were fabricating was being used on union contract jobs.
Puza responded by noting that the contracts were prevailing
wage contracts and that the Company was complying with this
requirement. Puza opined that this response appeared to satisfy
Pohubka, “because I was never asked about it again.” (Tr. 640.)
On July 2, 2002, Pohubka became involved in an event that
resulted in his first formal disciplinary sanction. Foreman Phil-
lips discovered Pohubka and another employee, Shawn Mace,
sleeping in the parts room 10 minutes after the conclusion of an
employee breaktime. Phillips testified that he told both men
that they owed the Company 10 minutes of work time. He told
both men to make up the 10 minutes and then “forget about it.”
(Tr. 482.) Pohubka refused to make up the lost time and told
Phillips he was being “anal” about the episode.8 By contrast,
Mace readily agreed to make up the time.
Phillips instructed Pohubka to return to the welding job that
he had been performing. Pohubka testified that approximately 1
hour later, he became angry that he was being required to per-
form a welder’s duties but was not being compensated at a
welder’s level of pay. He took this complaint to Phillips. Po-
hubka conceded that he behaved poorly, intentionally dropping
a 30-pound piece of metal and cursing at Phillips.9 Phillips
ordered Pohubka to report to Baer’s office. Pohubka was given
formal notice that he was being suspended for 3 days. The sus-
pension was memorialized and explained on a written “Correc-
tive Action Notice” form. The nature of the misconduct was
characterized as “insubordination” and “inadequate work per-

8 I do not find Pohubka to be a credible and reliable witness. As an
example, in his testimony he initially conceded that he refused to make
up the time spent sleeping. Later, he denied being asked to make up the
time. Still later, he was again asked if Phillips directed him to make up
the lost time. He responded, “[h]e might have, and he might have not. I
really do not recall.” (Tr. 226.) Compounding the confusion, later still
in his examination, Pohubka agreed that the portion of the written dis-
ciplinary report about this incident describing the need to make up the
time was accurate. That portion included the notation that Pohubka
“was asked by [Phillips] to make-up the 10 mins. at end of shift. He
thought it was funny.” (GC Exh. 4, p. 24.)
9 He testified that, in a loud voice, he told Phillips, “[d]on’t f—kin’
talk to me.” (Tr. 224.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD706
formance.” Pohubka was warned that he must improve both his
attitude and his performance. (GC Exh. 4, p. 24.)
As mentioned, another employee, Mace, was discovered
sleeping in the parts room at the same time as Pohubka. The
corrective action notice issued to Mace is significantly different
from Pohubka’s. The level of discipline is listed as a verbal
warning that Mace must be “more aware of scheduled break
time.” In addition, Baer added a comment that Mace deserved
commendation for “the manner in which he handled this inci-
dent.” (GC Exh. 4, p. 14.)
In his testimony regarding these events, Baer evinced a bit of
difficulty in articulating his reasoning underlying Pohubka’s
suspension. At first, he contended that the suspension was im-
posed for the offense of sleeping on work time. Later, he testi-
fied that “[a]ttitude was the major reason” for the suspension.
(Tr. 410.) Interestingly, Pohubka chose the same word to de-
scribe his conduct on this date, testifying that he gave his su-
pervisors “attitude” and that he “yelled back at them.” (Tr.
201.) I conclude that the best explanation for Pohubka’s sus-
pension is found in the reasons enumerated on the contempora-
neously prepared corrective action notice, particularly the of-
fense of insubordination. Emphasis on Pohubka’s poor attitude
as demonstrated by his insubordinate refusal to make up the
lost time and his cursing at his foreman satisfactorily account
for the difference in severity and tone between his discipline
and that issued to Mace.10
In the following months, the new company continued to ex-
perience a variety of growing pains. Santos testified that among
these was an increase in employees’ tardiness. He described
this problem as a spreading cancer. In mid-July, Santos drafted
six identical corrective action notices addressing this tardiness.
Among the six employees cited in these notices was Pohubka.
Santos gave the draft notices to Baer for issuance to the em-
ployees. Baer did not issue them. In fact, he threw all of them
away, including the one addressed to Pohubka.11
In early October 2002, the first concrete action was taken re-
garding union representation for the Company’s employees.
One of those employees, Brian VanNortwick, contacted the
Carpenter’s Union through his son’s teacher’s husband, a union
member. VanNortwick discussed the issue of representation
with his coworkers. Pohubka testified that he escalated his own
similar discussions after VanNortwick made contact with the
Union. He indicated that he spoke to all but two of his cowork-

10 It follows from this that I further conclude that Pohubka’s union
sympathies and activities did not play a role in the differing disciplinary
outcomes. Pohubka confirmed that his supervisors did not raise this as
an issue and I find that it was not a factor. As both Baer and Pohubka
noted, the problem was Pohubka’s attitude toward his supervisors as
manifested in his behavior on that day. This impression is reinforced by
Phillips’ testimony that he made his initial report regarding the incident
due to Pohubka’s “bad attitude” about it. (Tr. 484.)
11 This is a good illustration of one of the sources of conflict and in-
consistency among the Company’s management officials. It is evident
that those managers with prior experience in New Jersey favored a
tougher, more confrontational approach to employee discipline. Super-
visors whose prior experience was gained in the North Carolina opera-
tion were more inclined to a conciliatory approach to employee rela-
tions.
ers about the issue, albeit doing so “a little secretly.” (Tr. 186.)
Paradoxically, Pohubka also testified that at this time he had a
similar conversation with Phillips and Baer in Baer’s office. He
asked them why they opposed a union, and suggested to them
that a union would benefit them. Pohubka testified that Phillips
made no response, but Baer told him that Daloisio would close
the shop if the employees chose union representation. Baer
denied the existence of any such conversation, testifying that he
never discussed union issues with any employees.
VanNortwick took the next step by scheduling a meeting be-
tween interested employees and representatives of the Union.12
Pohubka suggested that VanNortwick hold the meeting at a
local pizzeria owned by Pohubka’s friend. The meeting was
scheduled for October 9 at the pizza shop. Approximately 13
employees attended the meeting. This represented the great
majority of the Company’s work force. All of those in atten-
dance, including Pohubka and VanNortwick, signed cards au-
thorizing the Union to act as their collective-bargaining repre-
sentative.
There is no evidence to suggest that company officials had
any advance notice that the Carpenters were meeting with em-
ployees. On the other hand, it is clear that immediately after the
meeting the Company learned about it from a number of
sources. Phillips testified that three employees told him about it
either later that evening or the following day. Indeed, he re-
ported that “lots of people” were discussing it. (Tr. 491.) Phil-
lips also confirmed that he “probably” asked employees ques-
tions about the meeting, including why he was not invited to
attend. (Tr. 491.) Counsel asked Phillips if he told employees
“that the employer would go out of business with the Carpen-
ters.” (Tr. 164.) He responded that he may not have used those
exact words, but “I’m sure I probably would’ve said something
to that effect.” (Tr. 164.) Pohubka testified that Phillips asked
him “how the meeting went, what was said at the meeting.” (Tr.
192.) In response, Pohubka indicated that he “just blew him
[Phillips] off.” (Tr. 192.) Another employee, Jesse Iannaco,
also testified that Phillips inquired why he had not been invited
to the meeting. He also asked who had attended the meeting.
Earley reported that he learned of the meeting through em-
ployee discussions on the following day. He confirmed the fact
that he and Phillips asked employees why they had not been
invited. He was informed that the employees did not invite the
foremen because they were not considered to be “workers.” (Tr.
532.) In addition to the foremen, Baer learned of the meeting on
the next day. He testified that he thought Phillips told him
about it. Santos also learned of the meeting on the following
day. He gained his knowledge when an employee asked him if
the shop would stay open. The question puzzled him, so he
reported it to Baer. Baer then told him about the meeting at the
pizzeria. Thus, it is apparent that the Company’s officials had
widespread knowledge of the meeting by the following day.
On the day after the meeting, the Union addressed a letter to
the Company, informing it that the Union represented a major-
ity of the workers and demanding recognition as exclusive bar-

12 Pohubka testified that he did not speak with any union representa-
tives prior to this meeting. VanNortwick handled all the contacts and
arrangements.
RCC FABRICATORS, INC. 707
gaining agent. (R. Exh. 1.) Daloisio testified that he received
this letter within the next couple of days. He then consulted
with counsel.
The culminating event referred to in the General Counsel’s
complaint of unfair labor practices took place on October 11.
Baer testified that on this day Pohubka arrived at work a few
minutes late. He got a cup of coffee and paused to speak to at
least two coworkers. Baer confronted him about his failure to
begin performing work. Pohubka angrily responded that he was
unable to begin working because he could not find Phillips in
order to ascertain his next assignment. Baer responded that this
could not be true, since Pohubka had a clear view of Phillips.
Bear instructed Pohubka to report to Phillips, whereupon he
entered his office. He testified that, 10 minutes later, Pohubka
and Phillips arrived at his office. Phillips informed him that
Pohubka had called Baer a f—king asshole. Pohubka did not
deny making the comment, but grew angry and loud, complain-
ing that he was being treated unfairly. Baer testified that, at this
point, he told Pohubka that he was fired. He directed Pohubka
to leave the plant.
Phillips testified that Pohubka had arrived late. Upon punch-
ing in, Pohubka “went right by me, and cut down the first
aisle.” (Tr. 486.) At that time, Phillips was engaged in assign-
ing tasks to other employees. Within 5 to 10 minutes, Phillips
observed Baer and Pohubka talking. Afterwards, Pohubka ap-
proached Phillips and told him that Baer was a f—king asshole.
He accused Phillips of getting him into trouble. Phillips de-
scribed Pohubka’s attitude and his own opinion by noting that:
[H]e felt like being as I didn’t just grab him by the shoulder
and bring him over there, and say “hey, do this, this, and this,”
then it was part my fault. And then, you know, that’s bull crap
because he should have stopped over and seen me instead of
walking around.
(Tr. 496.) Phillips testified that Pohubka kept getting louder and
louder. When he refused to calm down, Phillips took him to
Baer’s office. Pohubka and Baer “got into it again” and Baer
fired him. (Tr. 488.)
Pohubka testified that he arrived at work a minute late due to
ongoing car troubles. He proceeded to get a cup of coffee. He
then walked to the back of the shop in order to find Phillips. He
asked a couple of coworkers about Phillips’ whereabouts. He
encountered Earley and asked him if he had any work. Earley
responded negatively and told Pohubka to find Phillips.13 He
then saw Baer and asked him what to do. Baer asked him why
he wasn’t working and Pohubka replied that it was due to his
inability to locate Phillips. Pohubka testified that Baer became
angry and told him that he was sick of his not working. Po-
hubka reports that within 30 seconds thereafter he located Phil-
lips who was entering the building. He told Phillips that Baer
was in a bad mood. Pohubka testified that Phillips responded by
telling him that he was “sick of my attitude” and sent him to
Baer’s office. (Tr. 198.) Baer told him he was fired.

13 Earley does not corroborate this testimony. He indicated that he
observed Pohubka walk past Phillips. He further testified that Pohubka
also walked past him.
Although Pohubka’s discharge is the ultimate allegation in
the complaint, it is necessary to consider subsequent events. It
will be recalled that Daloisio testified that, as of approximately
October 12, he received the Carpenters Union’s demand for
recognition. Thereafter, Daloisio informed D’Antonio of the
Carpenters’ involvement at the shop. D’Antonio requested an
opportunity to talk with the Company’s employees and Da-
loisio agreed.
On October 18, the Company arranged for a representative
of the Laborers Union to address the work force at the shop
during work hours. One hour before this meeting, Daloisio
addressed the employees. As described by Iannaco, Daloisio
told them that he had contracts with both unions in other parts
of the family of companies. According to Iannaco, he went on
to say, “You vote what you feel is best. And he said he actually
couldn’t afford the Carpenters Union in there.” (Tr. 284.)
Daloisio testified that he told the employees that he had rela-
tionships with both unions, but added that, “I had a long term
relationship with shop agreements with the Laborers. We did
not have a shop agreement with the Carpenters.” (Tr. 50.)
Daloisio also testified that during the meeting an employee
asked him about the odds that the shop would stay open in the
event of union representation. He told the employee that this
would not be a problem “as long as we came to an agreement
that was reasonable” but an unreasonable package from a union
“would not be a long term viable operation for us.” (Tr. 52–53.)
He also testified that employees said that the Carpenters Union
had promised them pay of $50 per hour. He responded by in-
forming them that under his shop agreements with the Labor-
ers, pay ranges from $14 to $17 per hour.
Shortly thereafter, a meeting with Derrick Weber of the La-
borers Union was convened. Phillips testified that the workers
were assembled along with himself, Earley, and Santos. Puza
asked Phillips, Earley, and Santos to leave “so that the guys
could talk to the Laborer guy.” (Tr. 492.) A few minutes later,
Phillips and Earley were told that they could attend the meet-
ing. Santos was not given a similar invitation.
Santos confirmed that he did not stay for the substance of the
meeting. However, he introduced Weber to the employees,
telling them that Weber was there to “speak with the shop em-
ployees about, you know, an alternative union if the guys were
interested.” (Tr. 598.) After making this introduction, Santos
left the room. During the meeting, authorization cards for the
Laborers Union were passed to the attendees. Three days later,
a second meeting with the Laborers Union was held at the shop
on worktime.
On October 23, 25, and 30, a carpenter’s union representa-
tive left voice mail messages for Daloisio, telling him “who I
was with and what we were about.” (Tr. 372.) Having received
no response, on October 25, the Union filed a petition seeking
certification as collective-bargaining representative. (GC Exh.
1(a).) On the same date, the Acting Regional Director mailed
notice of this petition to the Company. (GC Exh. 1(c).)
The Company continued to provide the Laborers Union with
access to its employees at the plant during working hours. On
October 31, the Laborers filed a petition seeking representation
of the Company’s employees. (GC Exh. 1(d).) The Regional
Director consolidated the two representation proceedings and
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD708
issued an appropriate notice. (GC Exh. 1(f).) At approximately
the same time, Daloisio again addressed the employees. Ac-
cording to VanNortwick, Daloisio stated that he was leaving it
up to the employees as to whom they chose to represent them.
However, he added that the Carpenters Union was “more—a
little more expensive, in terms of their overall package, than the
Laborers Union.”14 (Tr. 355.) Shortly thereafter, another meet-
ing with a Laborers Union representative was held. Among
those attending were Phillips and Earley. Authorization cards
were passed out.
On November 4, a hearing was convened at the Regional Of-
fice regarding the representation petitions. All parties reached
consensus as to a stipulated election agreement. In particular,
two issues were addressed and resolved. The Laborers’ petition
had included “working foremen” within the proposed collec-
tive-bargaining unit. The Carpenters’ petition did not. The par-
ties agreed that the Carpenters reserved the right to challenge
the ballots of the foremen if they voted in the election. The
Carpenters also raised the issue of the provision of access to
representatives of the Laborers Union on the Company’s prem-
ises during working hours. It was agreed that the Carpenters
would be given an opportunity to meet with the employees at
the shop on worktime. The election was scheduled for later in
the month.
VanNortwick testified that during this period leading up to
the election, Earley discussed the union issue on an almost
daily basis. He warned that the shop would close if the employ-
ees selected the Carpenters Union. As VanNortwick put it,
Earley told them that, “Al would close, ‘cause Al did not want
a union in here.” (Tr. 358.)
Puza testified that in accordance with the parties’ election
agreement, arrangements were made for the Carpenters to ad-
dress the employees at the plant. The meeting never took place
since the Carpenters’ representatives got lost on their way to
the facility and arrived after closing time. Puza indicated that
VanNortwick then asked the Company to reschedule the meet-
ing. The record does not reflect precisely what occurred, but it
is uncontroverted that the Carpenters did not meet with the
employees at the plant on company time. They did hold another
meeting with employees at an employee’s home.
The election was held on November 21.15 Sixteen ballots
were cast. There were 6 votes for the Carpenters, 5 votes
against union representation, no votes for the Laborers, and 5
challenged ballots. Three days later, the Union filed an unfair
labor practice charge arising from Pohubka’s dismissal. This
was supplemented by an amended charge filed on January 29,
2003.

14 This is quite consistent with Daloisio’s testimony that “[o]verall
for our construction activities, generally the Carpenter’s benefits are
significantly higher than the Laborer’s benefits.” (Tr. 62.) He also
reported that the Carpenter’s wages were higher, but that this gap was
closing.
15 There is some confusion in the record regarding the date of the
election. I will adopt the date set forth by the Regional Director in her
notice of hearing on challenged ballots. (GC Exh. 1(o).)
B. Legal Analysis
1. Baer’s alleged threat of plant closure
The General Counsel alleges that Baer warned an employee
that the Company “would close the shop if the employees se-
lected a union as their bargaining representative.” (Complaint,
par. 5, GC Exh. 1(m).) The approximate date of this conversa-
tion is alleged to have been during the first week of October
2002. As is customary, the complaint does not name the em-
ployee. At trial, counsel for the General Counsel confirmed that
the employee alleged to have received this threat of plant clo-
sure was Pohubka. (Tr. 665–666.) It is contended that Baer’s
alleged statement violated Section 8(a)(1) of the Act.
In the course of 3 days of trial testimony, very little was elic-
ited regarding this allegation. Counsel for the General Counsel
asked Pohubka if he ever talked about union representation
with a supervisor. Pohubka testified that he had such a conver-
sation with Baer and Phillips in their office. He indicated that
this happened in late September or early October. He described
the conversation as follows.
POHUBKA: . . . I asked Bud [Phillips] and Gene [Baer]
why they’re not for the Union because it would actually
benefit them more if they went for the Union?
COUNSEL: How did Gene respond to this?
POHUBKA: He told me that Al [Daloisio] would close
down the shop if the Union got into RCC.
COUNSEL: Did he say anything else?
POHUBKA: No.
COUNSEL: Did Bud have, did he make a comment?
POHUBKA: No.
(Tr. 187.) Although Baer was not asked directly about this as-
serted conversation, he addressed it in general terms. Counsel
for the Company directed Baer to Pohubka’s allegation that
Baer threatened plant closure during a conversation in April.
Baer denied make such a statement at that time. Counsel then
asked him,
COUNSEL: Did you ever tell any employee in the shop
at RCC Fabricators that Al [Daloisio] would close the
shop if they brought a Union in?
BAER: No I didn’t.
COUNSEL: Did you ever say anything like that to the
employees?
BAER: No.
(Tr. 406.) Nobody asked Phillips if he had any recollection of a
conversation among Pohubka, Baer, and himself during the
time period under consideration.16

16 In certain circumstances, it is appropriate to draw an adverse in-
ference from the failure to question a witness who was present during a
disputed event. See Daikichi Sushi, 335 NLRB 622 (2001). However,
such an inference is only applicable in circumstances showing that the
witness “may reasonably be presumed to be favorably disposed to any
party.” Queen of Valley Hospital, 316 NLRB 721 fn. 1 (1995). Phillips
testified that he was demoted immediately prior to his testimony in
April and left the Company’s employ under disputed circumstances
immediately prior to his testimony in May. The evidence does not
support a presumption that his testimony would be favorable to either
side. Indeed, review of his entire testimony shows that it sometimes
RCC FABRICATORS, INC. 709
It is evident from this sparse record that resolution of this un-
fair labor practice charge hinges entirely on assessment of
credibility. Because I do not find Pohubka’s uncorroborated
claim to be credible or reliable, I cannot conclude that the Gen-
eral Counsel has met its burden of proving this charge by a
preponderance of the evidence. Pohubka’s account is implausi-
ble on its face and is further undermined by my general assess-
ment of his credibility.
Pohubka claims that during the week immediately preceding
the employees’ first meeting with the Carpenters, he boldly
interrogated his foreman and his foreman’s supervisor regard-
ing their opinions on the issue of union representation. He not
only demanded to know their reasons for opposing the union,
but also attempted to persuade them of the error of their views.
One may give credence to such a conversation in circumstances
where an employee and his supervisors share cordial and
friendly relations. Indeed, the annals of labor law are replete
with cases involving allegations of improper interrogation when
a supervisor quizzes a subordinate who is also a friend.17 I have
no difficulty accepting the notion that a prounion employee
would feel free to raise similar issues with supervisors with
whom he or she shares a warm personal relationship. The diffi-
culty here is that Pohubka’s relationship with Phillips and Baer
was adversarial, not friendly.
It will be recalled that several months earlier Baer had sus-
pended Pohubka based on Phillips’ report regarding his sleep-
ing on company time and his insubordination when told to
make up the lost time. Both Phillips and Baer testified credibly
regarding their assessment of Pohubka. Phillips reported that,
“more often than not” he would “spend half the day hunting”
Pohubka in order to get him to perform his work. (Tr. 483,
485.) Baer testified to a variety of problems with Pohubka. He
had a disrespectful attitude toward the foremen. He was late for
work on a “[f]airly regular basis.” (Tr. 412.) Baer warned him
about this behavior continually. He would spend time talking to
other employees at the beginning of his shift instead of getting
to the tasks at hand. Again, Baer reported that he discussed this
with Pohubka on a frequent basis. Finally, Baer reported that
Pohubka would not stay on task. He observed that “it was just a
matter of continually chasing him down, getting him back on
the job.” (Tr. 411.)
Whatever the accuracy of Phillips and Baer’s criticisms of
Pohubka’s work attitude and performance, they certainly put
Pohubka on notice that he was not highly regarded by these
superiors. Interestingly, Pohubka was examined about his view
of their attitude toward him. His testimony underscores my
findings that his assertion about a threat of plant closure is im-
plausible and his general credibility is suspect. Counsel for the
Company asked Pohubka about his relationship with Baer dur-
ing the summer of 2002. He estimated that the relationship was
cordial. Even after his suspension, he continued to believe that

advanced the Company’s cause and sometimes directly undermined it. I
do not draw any inference from the failure of any counsel to question
Phillips regarding Baer’s alleged threat of plant closure.
17 For example, in Acme Bus Corp., 320 NLRB 458 (1995), enfd.
198 F.3d 233 (2d Cir. 1999), the Board held that a supervisor’s friend-
ship with employees increased the likelihood that his solicitation of
information about the union from them would be coercive.
the relationship remained cordial. However, he testified that, in
late September, he concluded that the relationship “got a little
weird.” (Tr. 235.) He opined that this did not stem from any
specific conversation, but arose after Pohubka began discussing
the Union with coworkers. Upon additional questioning, he
retreated somewhat from this position, stating he was having
difficulty recalling and that it was “a possibility” that Baer’s
attitude “got weird.” (Tr. 236.)
Pohubka’s description of his relationship with Baer height-
ens my sense of the implausibility of the asserted conversation
leading to the alleged threat of plant closure. It certainly ap-
pears that, as of the end of September, Pohubka had doubts
about his standing with Baer. This is also supported by his tes-
timony that when he discussed the Union with coworkers in
late September, he did so “a little secretly.” (Tr. 186.) Never-
theless, he contends that immediately thereafter he addressed
both superiors in their office, questioning them about the rea-
sons for their opposition to the Union and explaining the error
of their views. Given the objective circumstances demonstrat-
ing that Pohubka’s attitude and work performance were viewed
unfavorably by these supervisors, and the subjective assessment
that caused Pohubka to conduct his conversations with cowork-
ers more covertly, I cannot credit his testimony that he interro-
gated and lectured his superiors about the benefits of the Union
and received a threat of plant closure in return. I find this story
to be unlikely and contrary to common perceptions of human
behavior.
My conclusion that Pohubka’s tale regarding this alleged
threat of plant closure is implausible is further supported by
overall doubts regarding his veracity when recounting events
related to his discharge from employment. His demeanor as a
witness conveyed a distinct impression that his testimony was
clearly colored by his perception of self-interest. On key points,
he was unable to present a coherent and consistent account.
Thus, his testimony vacillated regarding whether he was an
overt union activist or a covert union supporter. He was unable
to clearly articulate whether he was viewed as being in good
stead with his supervisors or was the subject of their unfavor-
able scrutiny. I have already related his inability to set forth a
consistent account of his behavior on the day he was suspended
for sleeping on the job. I cannot credit his testimony, except in
circumstances where it is corroborated by independent evi-
dence. Because of his unreliability as a witness and the inherent
implausibility of his uncorroborated account, I do not find that
Baer told him that the plant would close if the employees se-
lected the Union as their representative.
2. Interrogation of employees by Phillips
On October 9, at a pizza restaurant, the Company’s employ-
ees met with representatives of the Carpenters Union for the
first time. The General Counsel alleges that, in the days follow-
ing this meeting, Phillips interrogated employees regarding the
reasons why he was not invited to attend the union meeting. He
is also alleged to have interrogated employees regarding their
union activities and sympathies and the union activities of their
fellow workers. Phillips’ behavior is asserted to have violated
Section 8(a)(1) of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD710
There is little, if any, dispute among the witnesses regarding
these events. Pohubka testified that Phillips asked him “how the
meeting went, what was said in the meeting.”18 (Tr. 192.) An-
other employee, Iannaco, testified that Phillips asked him why
he wasn’t invited to the meeting. He also “wanted to know who
was there.” (Tr. 278.) Phillips confirmed that he “probably”
asked questions about the pizza party, including an inquiry
about why he was not invited. (Tr. 491.) In addition, Earley
confirmed that both he and Phillips asked, “how come we
weren’t invited.” (Tr. 532.) Significantly, Earley testified that
he asked this question because it was “my future I’m looking
at.” (Tr. 532.) He told the employees about the reason for his
concern, noting that, “I really don’t like Unions that much,
because I had a few bad experiences with them, you know.
And, I, I says I can’t afford to be out of work.” (Tr. 534.) Thus,
two employees reported that Phillips questioned them about the
meeting with the Carpenters Union, seeking to learn who at-
tended and what was discussed. Both of the foremen confirmed
this questioning, and Earley placed it in context by noting that
he had articulated his concerns about the negative impact of
union representation.
In its leading case on this subject, the Board observed that it
would be unrealistic to contend that any instance of casual
questioning about union sympathies would violate the Act.
Noting that, “there are myriad situations in which interrogations
may arise,” it articulated a totality of circumstances standard
for assessment of alleged illegal interrogations. Rossmore
House, 269 NLRB 1176 fn. 20 (1984), affd. 760 F.2d 1006 (9th
Cir. 1985). Among the key circumstances to be considered are
the background to the questioning, the nature of the information
sought, the identity of the questioner, and the place and method
of the questioning. Rossmore House, supra, citing Bourne v.
NLRB, 332 F.2d 47 (2d Cir. 1964). The fundamental issue to be
addressed by application of the totality of circumstances test is
whether the questioning “would reasonably have a tendency to
interfere with, restrain, or coerce employees in the exercise of
their Section 7 rights.” Multi-Ad Services, 331 NLRB 1126,
1228 (2000), enfd. 255 F.3d 363 (7th Cir. 2001). This is an
objective standard, and it does not turn on whether the “em-
ployee in question was actually intimidated.” Multi-Ad Ser-
vices, supra at 1228.
Considering the totality of circumstances, the Company ar-
gues that Phillips’ conduct was not unlawful. There is evidence
that supports the Company’s position. Phillips was a foreman,
not a higher management official. His questions were asked in
casual conversation, not in the more formal setting of an office
interview. There is no evidence that the questions were posed in
a hostile manner. While these factors are in the Company’s
favor, I conclude that they are outweighed by other relevant
factors that direct a finding of reasonable tendency to interfere
with, restrain, or coerce the employees.

18 In this instance, I credit Pohubka’s account. It is corroborated by
the testimony of a coworker. Significantly, it is also corroborated by the
testimony of both foremen. In this connection, the Board has endorsed
the observation that “nothing is more common in all kinds of judicial
decisions than to believe some and not all” of a witness’ testimony.
Daikichi Corp., 335 NLRB 622, 622 (2001), citing NLRB v. Universal
Camera Corp., 179 F.2d 749, 754 (2d Cir. 1950). Such is the case here
I find that the background to the questioning is highly sig-
nificant. The questions were posed immediately after the em-
ployees’ first organizational meeting with the Carpenters Un-
ion. Thus, they came at a particularly delicate moment in the
life of this workplace. Regarding the background, I have also
considered whether the subjects of the questioning were open
union supporters. As to Pohubka, the evidence is conflicting, in
large measure due to credibility concerns regarding his own
testimony. It is undisputed that he had questioned management
about union pay rates for work being performed by the Com-
pany. He also contends that he openly discussed the union issue
itself with management officials. This is disputed, and it is
further undercut by his testimony that he had attempted to or-
ganize his coworkers secretly. It is simply unclear whether he
was known to be a union supporter at the time Phillips ques-
tioned him. By contrast, there is no evidence whatsoever to
suggest that Iannaco was an open union supporter.19 It is also
clear that there were other employees present when Phillips and
Earley asked their questions.20 There is nothing to show that
such other employees had openly expressed any union sympa-
thies. I conclude that the background circumstances show that
the questions were posed immediately after the first organiza-
tional meeting and were addressed to employees, at least some
of whom were not known to be active and open union support-
ers.
I also conclude that the nature of the questions posed
strongly supports a finding of reasonable tendency to interfere
with, restrain, or coerce the employees. The Board has recently
underscored the importance of some of the employee rights
directly implicated in Phillips’ questions, including his ques-
tions about who attended the meeting. In Guess?, Inc., 339
NLRB 432 (2003), the Board found a violation of the Act
where an attorney for an employer who was deposing an em-
ployee asked for the names of persons who had attended a un-
ion meeting. The Board noted that,
It is well settled that Section 7 of the Act gives em-
ployees the right to keep confidential their union activities,
including their attendance at union meetings. . . . This
right to confidentiality is a substantial one, because the
willingness of employees to attend union meetings would
be severely compromised if an employer could, with rela-
tive ease, obtain the identities of those employees.
Id. at 434. The Board went on to observe that this confidential-
ity interest would be even greater in the case of a union meeting
held during an organizational campaign. Phillips’ questions
about what took place during the organizational meeting impli-
cate these grave concerns. The answers to this question could
have readily revealed information regarding the union sympa-
thies of specific employees. As a result, I find that the nature of
the information sought strongly supports a finding of interfer-
ence with Section 7 rights.

19 Counsel for the Company concedes as much. See R. Br. at 49.
20 Pohubka specifically mentioned an employee he knew as “Charlie
H.” (Tr. 192.) Earley also testified that the relevant conversations in-
volved other employees.
RCC FABRICATORS, INC. 711
Finally, I conclude that the context of the interrogation by
Phillips was not innocuous, but rather was directly linked to the
Company’s opposition to the Carpenters’ Union. I base this
conclusion on Earley’s testimony that during the conversation
involving himself, Phillips, and the employees, he directly in-
formed those employees that he viewed his own future as being
at stake.21 He elucidated this concept by describing his own
negative experiences and opinions about unions. This placed a
clear and pointed meaning on Phillips’ inquiries that would
reasonably tend to convey a message that the questioners were
interested in the information about union sympathies and activi-
ties out of concern that the organizational campaign was harm-
ful to their interests.
Based on the totality of circumstances, with particular em-
phasis on the nature of the questioning, as well as, the back-
ground, context, and timing of that questioning, I conclude that
Phillips’ questions reasonably tended to interfere with, restrain,
and coerce the employees in their exercise of the rights granted
them by Section 7 of the Act.
3. Phillips’ status as supervisor and agent of the Company
A major component of the Company’s defense to the allega-
tion of unlawful interrogation of employees by Phillips is its
contention that he was not a supervisor within the meaning of
the Act. Section 2(11) of the Act defines the term “supervisor”
as including an individual who has “the authority to hire, trans-
fer, suspend, lay off, recall, promote, discharge, assign, reward,
or discipline other employees.” Possession of any one of these
powers is sufficient to qualify the person as a supervisor. How-
ever, in order to so qualify, the authority must involve more
than simply routine or clerical duties. The statute requires that
the authority be exercised through the application of independ-
ent judgment. The Act does not require that the individual exer-
cise such authority on a regular or routine basis; it is the pos-
session of this type of authority that mandates a finding of su-
pervisory status. Finally, the burden of proving supervisory
status is upon those who assert it.22 In this case, that places the
burden on the General Counsel and the Union.
In analyzing this issue, it is necessary to consider several
general observations stemming from the Company’s brief his-
tory. The evidence established that the lines of authority in this
new enterprise have not yet crystallized. Managerial and super-
visory employees continue to jostle for position and authority.
This reality is reflected in the relative lack of probative weight

21 As will be discussed later in this decision, I have concluded that
both Phillips and Earley were statutory supervisors. Earley’s supervi-
sory status lent great weight to his words in opposition to the Union.
While Earley’s statements are not the subject of any unfair labor prac-
tice charge, they form part of the vital context of Phillip’s interrogation
of the employees. The Board permits consideration of such evidence
even in the absence of a formal charge when the evidence sheds light
on the “underlying character of other conduct that is alleged to violate
the Act.” American Packaging Corp., 311 NLRB 482 fn. 1 (1993).
22 This summary of the Board’s standards for adjudication of the is-
sue of supervisory status is adapted from the Board’s recent discussion
in Arlington Masonry Supply, Inc., 339 NLRB 817, 818 (2003).
that can be given to job titles within the Company.23 The
owner, Daloisio, testified that he was “not big with titles.” (Tr.
42.) Indeed, his own business card does not contain any title
denoting his position in the Company. The ongoing fluidity of
the situation was illustrated by Baer’s testimony at trial. As late
as the trial date, he indicated that he was “not real clear” as to
Santos’ position within the Company. (Tr. 408.) Thus, even
within the ranks of the undisputed managers, the lines were
blurry. Hence, it was no surprise that when the counsel for the
General Counsel asked Phillips what his job title was, he re-
sponded that he was, “Leadman, foreman, you know, I mean
you could call it leadman, foreman, supervisor, whatever you
wanted to call it.” (Tr. 139.) Despite this amorphous corporate
structure, I note that there exists one type of documentary evi-
dence that could shed considerable light on the issue of Phil-
lips’ supervisory status.
Phillips testified that he was told that he was a “working
foreman,” but at the same time he noted that he “had a resume
that they [the Company] had done for me that said leadman
supervisor on it.” (Tr. 140.) Santos confirmed the existence of
this document, but attempted to minimize its significance. He
reported that it was prepared for submission to potential cus-
tomers. He asserted that the Company simply took a resume
prepared by Phillips and reformatted it for this use. He further
contended that the document merely described Phillips’ prior
work experience before joining the Company. Despite these
claims that the document would have limited probative value in
assessing Phillips’ responsibilities, the Company did not offer it
into evidence so as to conclusively establish its contents. This is
particularly striking since the Company did introduce a docu-
ment describing Baer’s job as shop superintendent. (R. Exh. 3.)
Interestingly, that document is very specific in laying out the
nature and quality of Baer’s authority. Among other things, it
empowers him to “[s]upervise shop operations” and be respon-
sible for employees’ “adherence to company policy and proce-
dures.” (R. Exh. 3, pars. 3 and 7.) Furthermore, contrary to the
point Santos was trying to make, Puza, the Company’s vice
president, testified that “job descriptions” for the foremen did
exist. (Tr. 651.) His testimony on this point is authoritative
since he noted that he wrote the job descriptions himself.
The Board has long held that a party’s failure to present evi-
dence within its possession that may reasonably be assumed to
be favorable to it raises an adverse inference regarding the fac-
tual issue that the evidence could have addressed. Thus, for
example, the Board approvingly cited language from a treatise
setting forth the rule that:
[W]here relevant evidence which would properly be part of a
case is within the control of the party whose interest it would
naturally be to produce it, and he fails to do so, without satis-
factory explanation, the [trier of fact] may draw an inference
that such evidence would have been unfavorable to him. [Ci-
tation omitted.]

23 In any event, the Board has observed that it is “well settled” that
supervisory status depends on an individual’s duties, not his or her title.
Dole Fresh Vegetables, 339 NLRB 785, 785 (2003).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD712
Martin Luther King Sr., Nursing Center, 231 NLRB 15 fn. 1
(1997).24 The document that Phillips’ called his “resume” was
uniquely within the possession of the Company, the organiza-
tion that admittedly prepared it for use in its business opera-
tions. The nature of the document, coupled with the highly
relevant contents of the similar document regarding Baer, leads
me to infer that the Company failed to produce it because its
contents would tend to support the existence of Phillips’ super-
visory status. As the Supreme Court has put it, “[t]he produc-
tion of weak evidence [Santos’ testimony about the document]
when strong is available [the document itself] can lead only to
the conclusion that the strong would have been adverse.” Inter-
state Circuit v. U.S., 306 U.S. 208, 226 (1939).
While on the subject of the Company’s job descriptions for
employees, it is instructive to note that Baer’s written statement
of duties and responsibilities indirectly addresses the duties and
responsibilities of Phillips and his counterpart, Earley. Among
Baer’s duties is the requirement that he, “[s]upervise shop op-
erations and provide direction to the two shop foreman [sic] in
charge of equipment and steel fabrication.” (R. Exh. 3, par. 3.)
This supports the undisputed testimony that Earley and Phillips,
the foremen, reported to Baer. It also supports the assertion
that, by being “in charge of” the Company’s two production
processes, the foremen were vested with the sort of authority
consistent with the exercise of independent judgment and su-
pervisory responsibility.25 Therefore, to the extent that the
Company maintained any written policy regarding the nature
and extent of Phillips’ supervisory authority, I find that such
written guidance supports the General Counsel and Union’s
position that Phillips was a statutory supervisor.
Turning now to the analysis of job duties required in order to
assess supervisory status, I note that the parties have narrowed
the issue. In their brief, counsel for the General Counsel assert
that Phillips possessed two of the specific attributes of supervi-
sory status enumerated in the Act, the powers to assign and
discipline employees. It is further contended that these powers
were sufficiently broad so as to require that Phillips exercise
independent judgment in their application. The Company dis-
putes these assertions.
In evaluating the Company’s position, it is necessary to em-
ploy caution. The evidence demonstrates that management has
been well aware of the legal issues involved and the tactical
advantages of describing Phillips and Earley as nonsupervisory
employees. For example, on October 18, the representative of
the Laborers Union addressed the employees at the shop. San-
tos, Phillips, and Earley were present with the employees as the
meeting commenced. Phillips testified that they were instructed
to leave the meeting “so that the guys could talk to the Laborer
guy.” (Tr. 492.) A few minutes later, Phillips and Earley were
told to return to the meeting. Santos was not invited to rejoin
the meeting. It is apparent that the shift in management’s posi-

24 The Board recently reaffirmed these observations, including refer-
ence to the Martin Luther King Sr., Nursing Center case, in Daikichi
Sushi, supra at 622 fn. 4.
25 In addition, the document also sheds light on the precise job title
possessed by Phillips and Earley. In testimony, they were identified
with various titles, most commonly that of “working foremen.” How-
ever, it appears that their actual formal title was that of “shop foremen.”
tion as to the foremen’s status as possible bargaining unit
members reflected a perception of advantage in having them
participate. Similarly, the Company manipulated its position
regarding Phillips in another respect. The evidence shows that
Phillips was exempted from the requirement that production
employees punch a timeclock. He testified that this changed,
noting that “[w]hen all this stuff came about,” he was ordered
to punch the clock. (Tr. 141.) This was basically confirmed by
Santos who testified that he complained about Phillips’ exemp-
tion from this requirement. As a result, by December 2002 or
January 2003, Puza directed that Phillips punch the clock. Once
again, I conclude that management made decisions to alter the
appearance of Phillips’ status for tactical advantage.
With these considerations in mind, I will assess and resolve
the conflicts in the evidence regarding Phillips’ role. Phillips’
immediate superior, Baer, testified regarding Phillips’ ability to
assign work to employees. When asked if Phillips assigned
“people working on one job to another job,” he first responded
that he “wouldn’t say that.” (Tr. 94.) Shortly thereafter, he re-
treated from this position, noting that, as “a spontaneous thing,”
the foreman may assign a worker on his own authority rather
than attempting to “track me down.” (Tr. 94.) Under examina-
tion by counsel for the Union, Baer agreed that Phillips and
Earley “directed the groups that worked with them.”26 (Tr.
116.) Baer also testified that he would hold informal meetings
with Phillips and Earley to decide which employees would
work on each of the current jobs. After these meetings, the
foremen would inform the employees of their assignments.
Phillips and the employees presented a different picture of
the foremen’s authority to assign work. Phillips reported that he
would make the decisions to assign employees from one com-
pleted task to another job that needed to be done. Typically, this
would occur twice daily. The employees who testified sup-
ported his description of the nature and extent of his authority.
Pohubka, Iannaco, and Duane Ashcraft all reported that Phillips
made their work assignments, often on a daily basis. VanNort-
wick put it this way:
Once we finished a project, we would either find Bud [Phil-
lips] or Butch [Earley] to see what needed to be done next;
and then they would assign you to the next task.
(Tr. 338.) Indeed, the actual operation of this management
practice is well illustrated by the events immediately preceding
Pohubka’s termination. On that day, Baer confronted Pohubka
because he was angry that Pohubka had walked past Phillips.
Phillips was in the process of assigning employees to their
tasks. Baer admonished Pohubka and directed him to report to
Phillips for job assignment. All of this is consistent with the
practices outlined by Phillips and the employees in their testi-
mony. I find that Phillips played a key role in making job as-
signments to employees on a regular basis.
I also find that Phillips employed independent judgment in
making job assignments. As noted, the preponderance of the
credible evidence establishes that Phillips’ role was far more
than merely making ad hoc transfers of employees from one

26 Baer also confirmed that the foremen “worked along with” other
employees. (Tr. 116.)
RCC FABRICATORS, INC. 713
simple task to another when Baer was unavailable. Rather,
Phillips was a primary participant in the daily process of deter-
mining which employees would undertake the necessary tasks
involved in the entire production process for railroad compo-
nents. Even the picture presented by management witnesses
confirms this arrangement. Baer conceded that he had regular
meetings with the foremen to work out the assignments. Puza
agreed that the foremen could select workers for tasks, but
added that this was “[o]nly after discussion with Gene [Baer].”
(Tr. 651.) At a minimum, the evidence establishes that Baer,
Phillips, and Early formed a troika responsible for the assign-
ment of all job tasks in the production process. This troika
made complex and sophisticated judgments. I conclude that
Phillips possessed the authority to assign employees and that
the breadth and complexity of his authority encompassed the
power and duty to make independent judgments as to those
assignments.
In reaching the conclusion that Phillips possessed the super-
visory authority to assign work contemplated in the language of
the Act, I have considered the precedents cited by counsel for
the General Counsel and for the Company, as well as, other
cases addressing supervisory status. It is clear that the cases
turn on their unique facts. To the extent that any precedent is
helpful, I find that Richardson Bros. Co., 228 NLRB 314
(1977), bears considerable resemblance to the circumstances
involved here. In Richardson, the issue was whether an em-
ployee characterized as a “leadman” or “assistant foreman” was
a statutory supervisor. As part of his job, he “reassigns the de-
partment’s 22 employees among the various jobs to meet work-
flow demands.” 228 NLRB at 314. The Board found that he
possessed supervisory status, observing that
[I]n carrying out his duties in connection with monitoring and
reassigning the work in a department as large as the finishing
department, [he] must of necessity make judgments which are
more than routine in nature.
228 NLRB at 314. The same is true of Phillips.
The General Counsel contends that Phillips also possessed
the power to impose discipline. Puza testified that the foremen
were not empowered to impose discipline, not even the issu-
ance of a written warning. Baer made the same assertion. Nev-
ertheless, on examination by counsel for the Union, he con-
ceded that it was “very possible” that a foreman could sign a
corrective action notice on the line indicated for supervisors.
(Tr. 125.) Once again, the employees testified that the foremen
were more powerful figures than described by the management
witnesses. Iannaco agreed with counsel’s contention that they
had the “authority and power to discipline.” (Tr. 288.) Van-
Nortwick was of the same opinion.
I find that the conflicting testimony is best resolved by con-
sideration of the documentary evidence, the corrective action
notices themselves. A substantial number of these notices were
signed by Baer, Phillips, and Earley together. (GC Exh. 4, pp.
1, 9, 13, 14, 25, 29, 30, 40, 42, and 43.) Baer contended that he
liked to have Phillips and Earley join him in signing these
forms because they could serve as witnesses to the discipline
being meted out. The first difficulty with this contention is that
the forms do not show them to be signing as witnesses. In fact,
when Earley did sign one such form as a mere witness, he was
careful to annotate the form to this effect. (GC Exh. 4, p. 28.)
Furthermore, there was no evidence of any Company require-
ment that such forms be witnessed. In fact, Baer issued correc-
tive action notices that contained only his own signature. (GC
Exh. 4, pp. 8, 22, 24, and 33.) Other management officials also
issued corrective action notices or other disciplinary letters
containing only their own signatures. (GC Exh. 4, pp. 16, 38.)
Some disciplinary notices were even signed by one manager
acting on behalf of another manager who did not sign the form.
(GC Exh. 4, pp. 7, 21, 39.)
Events involved in the issuance of one particular disciplinary
form emphatically undercut Baer’s contention that Phillips and
Earley were simply witnesses. On November 13, 2002, Iannaco
was issued a corrective action notice for using abusive lan-
guage. Baer signed the notice on November 13. Phillips and
Earley signed the same notice on the following day. As a result,
they could hardly be signing as witnesses. Indeed, when ques-
tioned about this document, Baer testified that he could not
recall why they had signed it. He went on to report that “when I
talked to Mr. Iannaco about this particular offense, that it was
in the presence of Mr. Dave Puza.” (Tr. 127.) Yet, although he
was a bona fide witness, Puza did not sign the form. I do not
credit Baer’s testimony that Phillips and Earley signed correc-
tive action notices as mere witnesses.27
If Phillips and Earley did not sign these disciplinary forms as
witnesses, in what capacity did they sign the forms? To answer
this question, it is helpful to recall that the evidence has already
established that Baer, Phillips, and Earley often acted as a
troika in making work assignments. I find that this pattern is
repeated as to the issuance of discipline. The three men often
acted together and used their signatures on the corrective action
notices to demonstrate their consensus to the offending em-
ployee. In drawing this conclusion, I place great weight upon
Phillips’ testimony as to this precise issue. When asked about
the meaning of his signature on the corrective action forms, he
responded that:
Sometimes I did them, you know, I signed them myself. And
sometimes I signed them as a witness . . . I mean, what it was
it was me, Butch [Earley] and Gene [Baer] would agree on,
you know, we all showed, signed it, showing that we agreed
with whatever was happening. If it was, you know, this cor-
rective action notice or another corrective action notice, then
you know, so we were all in agreeance [sic].
(Tr. 489.) Phillips’ explanation that the presence of the three
signatures on corrective action notices represented confirmation
to the employee that the three persons in charge of plant opera-
tions had reached agreement as to the imposition of the disci-
plinary action is consistent with the evidence regarding their
pattern of exercise of joint authority in running those opera-
tions. In addition, I have generally found Phillips to be a reli-
able witness regarding the events involved in this matter. His

27 By the same token, I do not credit Earley’s testimony in support of
Baer on this point. His testimony is fatally undermined by the fact that
he carefully noted that he was signing as a witness when that was actu-
ally his role. (GC Exh. 4, p. 28.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD714
general reliability is reinforced on this point since he provided
this testimony in May, after he had left the Company’s employ.
By then, he had no apparent reason to curry favor with any
party to this litigation.
Although my conclusion that Phillips possessed supervisory
authority within the meaning of the Act is grounded upon the
evidence regarding his exercise of independent judgment while
assigning work and disciplining employees, I have also consid-
ered the secondary indicia of supervisory status to the extent
mandated by the Board.28 Phillips’ possession of significant
secondary indicia lends additional support to a finding of su-
pervisory status. Puza testified that when considering whom to
lay off due to decline in work, top management asked Phillips
and Earley for “a characterization of all the people” in order to
ascertain “who were good workers, who were marginal work-
ers.” (Tr. 648.) Phillips and Earley were also regular partici-
pants in the weekly production meetings. These were attended
by Tanzola, Puza, Santos, and Baer. The purpose of the meet-
ings was to assess each ongoing work order, including sched-
ules, targets, delivery goals, assignment of workers, and au-
thorization of overtime. The foremen not only attended the
meetings, they were active participants. Indeed, Baer testified
that during the meetings, they would frequently “know where
they stood on a particular project better than I did.” (Tr. 452.)
In addition, Phillips shared use of Baer’s office and had his
own desk in that office.29 He used this for sophisticated work
tasks that included drawing schematics and ordering thousands
of parts for the production process. He had the authority to
order such parts based on his own judgment and initiative. He
also possessed the power to sign timecards for employees when
their duties prevented them from punching in personally. He
testified that the other persons who possessed this power were
Santos, Tanzola, Baer, and perhaps Earley. In addition to sign-
ing corrective action notices, Phillips and Earley joined Baer in
signing a notice informing an employee that he was being laid
off. (R. Exh. 2.) Phillips was issued a Company credit card that
he used for purchases on the Company’s behalf.
Contrary to the Company’s assertions, the evidence shows
that Phillips possessed key primary and secondary indicia of
supervisory status.30 The General Counsel also contends that,
apart from the issue of supervisory status, Phillips was an agent
of the employer within the meaning of the Act. The Board ap-
plies common law principles of agency in making this determi-
nation. An employer is responsible for the conduct of an em-
ployee if that employee acted with apparent authority with re-

28 The Board holds that secondary factors should only be considered
if primary indicia of supervisory status enumerated in Sec. 2(11) have
been found to exist. Compare: J.C. Brock Corp., 314 NLRB 157, 159
(1994), with McClatchy Newspapers, Inc., 307 NLRB 773 (1992).
29 Earley was offered a similar arrangement, but declined. He testi-
fied that he was “not a desk person” and disliked even going into of-
fices. (Tr. 505.)
30 By not inviting the foremen to their organizational meeting at the
pizza restaurant, the employees demonstrated their view that the men
were supervisors. In his testimony, one employee, VanNortwick, sum-
marized his reasons for drawing this conclusion by noting that the
foremen issued discipline, attended production meetings, and assigned
work. The factors he identified are all deemed probative by the Board.
spect to the conduct. Apparent authority results from a manifes-
tation by the employer that creates a reasonable basis for the
employee to believe that the employer has authorized the al-
leged agent to perform the acts at issue. A key aspect of the
analysis is whether the employer has used the employee in
question as a conduit for transmitting information from man-
agement to other employees.31
Phillips testified that in addition to attending the weekly pro-
duction meetings, he would convey decisions made at those
meetings to the employees. This is quite significant. In Ready
Mix, Inc., 337 NLRB 1189 (2002), the Board noted that it has
held that employees were conduits from management
[W]here they attended daily production meetings with top
management, from which they returned to communicate man-
agement’s production priorities and were the “link” between
employees and upper management.
Id., citing Hausner Hard-Chrome of KY, Inc., 326 NLRB 426,
428 (1998). Such was the case regarding these foremen.
Phillips also asked Iannaco if he would consent to a volun-
tary layoff. Both foremen asked the employees if they were
available to work overtime. Indeed, counsel for the Company
concedes that by asking about overtime, the foremen were “re-
laying messages from management to the employees.” (R. Br.
at 23.) Although Earley attempted to minimize his role as a
supervisor in his trial testimony, he emphasized his role as a
conduit of information. As he put it,
I work and help keep the guys busy, whatever Mr. Baer gave
me to do. I told the guys, I relayed the message. I’m just like a
messenger boy. I relay the message, but I also did my job.
(Tr. 501.)32 I find that, at a minimum, the foremen were regu-
larly used by the Company to serve as conduits of important
employment information to the production employees. They
passed out work assignments, signed disciplinary notices, in-
spected employees’ work, conveyed management decisions
made during the production meetings, and asked employees
about their willingness to work overtime or accept temporary
layoff. From all this, I conclude that the General Counsel has
met its burden of establishing that the foremen, including Phil-
lips, possessed actual and apparent authority to speak on behalf
of management regarding work-related questions. See Mid-
South Drywall Co., 339 NLRB 480 (2003).
4. The impression of surveillance charge
The General Counsel contends that the Company created an
impression that it was engaging in surveillance of the employ-
ees’ union activities. Specifically, it is asserted that Phillips’

31 This summary of the Board’s standard for analysis of the issue is
paraphrased from the recent decision in D&F Industries, 339 NLRB
618, 619 (2003).
32 On the witness stand, Earley conveyed a clear impression that he
was (understandably) profoundly grateful to the Company for hiring
him and promoting him after the closure of his prior long-term em-
ployer who had occupied the same factory complex. His gratitude col-
ored the accuracy of his testimony. Even so, at the same time that he
described himself as a mere “messenger boy,” he conceded that, as the
foreman, he “run[s] the shop for RCC.” (Tr. 501.)
RCC FABRICATORS, INC. 715
discussions with Pohubka and Iannaco about the organizational
meeting at the pizza restaurant created this impression of sur-
veillance. (GC Br. at 33.) Having found that Phillips was a
supervisor and agent of the Company, it is necessary to evalu-
ate the impact of his conversations regarding the pizza meeting.
The Board has recently described the standard involved in
this evaluation, observing that
In order to establish an impression of surveillance violation,
the General Counsel bears the burden of proving that the em-
ployees would reasonably assume from the statement in ques-
tion that their union activities had been placed under surveil-
lance.
Heartshare Human Services of New York, 339 NLRB 842, 844
(2003). The concept underlying the prohibition of this type of
employer conduct is that Section 8(a)(1) of the Act protects
employees from fear that “members of management are peering
over their shoulders, taking note of who is involved in union
activities, and in what particular ways.” Fred’k Wallace & Son,
331 NLRB 914 (2000).
In his conversations with Pohubka and Iannaco on the day
after the organizational meeting, Phillips clearly indicated to
these employees that he was aware of the meeting. I conclude
that his comments would reasonably cause those employees to
assume that their union activities had been placed under sur-
veillance. In reaching this conclusion, I note that the Board has
not required employees to keep their activities secret before an
employer can be found to have created an improper impression
of surveillance. United Charter Service, Inc., 306 NLRB 150,
151 (1992). Thus, the fact that other employees may have told
Phillips about the meeting does not serve to excuse his state-
ments to Pohubka and Iannaco that suggested surveillance of
their attendance at the pizza meeting. In United Charter Ser-
vice, the Board also noted that it was significant that the em-
ployees chose to conduct their union business at an off-site
restaurant. Id. at 151.
Finally, of decisive importance in these circumstances, I note
that Phillips’ comments creating an impression of surveillance
were made at the same time that he engaged in questioning of
the employees regarding the events that transpired at the meet-
ing and the names of other employees who attended. The Board
has observed that the context of comments alleged to have cre-
ated an impression of surveillance is highly probative. In Flex-
steel Industries, 311 NLRB 257, 258 (1993), it held that com-
ments suggestive of surveillance made in the context of an
unlawful interrogation would lead an employee to conclude that
his behavior was under observation and would tend to discour-
age his participation in protected activity. The circumstances
presented here are quite similar to those in Newlonbro, LLC
(Connecticut’s Own), 332 NLRB 1559 (2000), where the Board
affirmed an administrative law judge’s conclusion that an em-
ployer had created an impression of surveillance when a man-
ager told an employee that he “understood” that the employee
had attended a union meeting. Id. at 1571. In reaching his con-
clusion that the statement was unlawful, the judge noted that it
was coupled with other comments found to constitute an im-
proper interrogation.
Phillips’ comments to Pohubka and Iannaco indicating that
he knew they had attended the organizational meeting, made
during the same conversations in which he asked improper
questions about that meeting, created an unlawful impression of
surveillance. As a result, the Company violated Section 8(a)(1)
of the Act.
5. The discharge of Pohubka
The General Counsel’s final unfair labor practice charge em-
bodies the contention that the Company discharged Pohubka
because he “supported and assisted the Union.” (GC Exh.
1(m).) This is alleged to have violated Section 8(a)(1) and (3)
of the Act. In order to evaluate this charge, I must apply the
Board’s analytical framework set forth in Wright Line.33 This
requires that the General Counsel show that Pohubka was en-
gaged in protected activity, that the Company was aware of his
activity, and that the activity was a substantial or motivating
factor for the decision to terminate him. If the General Counsel
fulfills these requirements, the burden shifts to the Company to
demonstrate that it would have terminated Pohubka even in the
absence of his protected conduct. I will address each factor in
turn.
While there is some disagreement about the precise nature
and extent of Pohubka’s union activity, there is no doubt that he
did engage in some forms of protected conduct.34 Pohubka
testified that he began speaking to coworkers about union rep-
resentation within approximately 1 month after being hired by
the Company.35 It is undisputed that, at a company meeting in
April 2002, he raised the issue of union level compensation.
Finally, in late September 2002, he testified that in response to
VanNortwick’s steps to obtain representation by the Union, he
escalated his efforts to urge such representation.36 He reported
that he spoke to virtually all of his coworkers in support of this
idea. In addition, he attended the meeting at the pizza restaurant
and signed an authorization card at that time. I readily conclude
that Pohubka engaged in concerted activity of the type that is
protected by the Act.
I also find that the Company’s management officials were
aware that Pohubka supported and was participating in the
campaign to secure representation of the employees by the
Carpenters Union. Puza, the Company’s vice president, con-
firmed that during a meeting in April 2002, Pohubka raised the
issue of union pay for the work being performed at the facility.
Thus, shortly after Pohubka was hired, he chose to address
management regarding an issue that touched on union represen-
tation. It is true that Pohubka indicated that his efforts to per-

33 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert denied 455 U.S. 989 (1982), approved in NLRB v. Transportation
Management Corp., 462 U.S 393 (1983).
34 The Company concedes that “Pohubka was engaged in protected
activity under the Act.” (R. Br. at 32.)
35 During the same period, Pohubka also claimed to have spoken to
Baer, Phillips, and Earley about his interest in the Union. This claim is
disputed, and I do not credit it.
36 Coupled with this testimony, Pohubka again asserted that he also
discussed the benefits of union representation with his superiors. They
denied such conversations and I have found that their denials are credi-
ble.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD716
suade coworkers to support the Carpenters Union were done “a
little secretly.” (Tr. 186.) On the other hand, Pohubka attended
the pizza meeting and was interrogated by his foreman regard-
ing the meeting on the following day. The foreman testified that
he was aware that Pohubka had attended this meeting, noting
that “lots of people” were talking about the meeting. (Tr. 491.)
A probative illustration of the extent of upper management’s
knowledge about this meeting was given by Santos. He testified
that on the day after the pizza meeting an employee asked him
if the Company would remain in business. He was perplexed by
the question and reported it to Baer. Baer then told him about
the Carpenters Union’s organizational meeting. Based on the
evidence, I conclude that officials at all levels of management
were aware of Pohubka’s union sympathies and activities, in-
cluding his attendance at the organizational meeting held by the
Carpenters Union.37
Having found that Pohubka engaged in protected activities
and that his involvement was known by management, I must
address the issue of the Company’s motivation in reaching the
decision to discharge him. In my view, this presents a close
question. On balance, I conclude that the General Counsel has
shown that Pohubka’s support for the Carpenters Union consti-
tuted one of several factors in the decision to discharge him.
In his testimony, the Company’s owner, Daloisio, went to
considerable lengths to demonstrate that he does not harbor
antiunion animus. He noted that the family of companies asso-
ciated with RCC Fabricators has 27 union agreements. He has
served as trustee and representative for a variety of union-
management organizations. Furthermore, he discussed the issue
of union representation with a representative of the Laborers
Union very shortly after the Company commenced its opera-
tions.
While all of Daloisio’s assertions may be accurate, they miss
the point. The General Counsel contends, and I find, that Da-
loisio harbored specific animus against the Carpenters Union’s
effort to organize this workplace. This is reflected in his vigor-
ous attempts to deflect the employees from this option by pre-
senting the alternative of the Laborers Union. In this connec-
tion, he testified that he went so far as to tell the employees that
“the Carpenters were more—a little more expensive, in terms
of their overall package, than the Laborers Union.” (Tr. 355.)
Indeed, he noted that the employees told him that the Carpen-
ters were promising wages of $50 per hour. He responded by
informing them that the Laborers had shop agreements with
some components of the RCC family of companies and gener-
ally received between $14 and $17 per hour. He coupled this
with the pointed admonition that union representation would
not be a problem so long as any resulting agreement was “eco-
nomically advantageous to keep the company going.” (Tr. 50.)
His explicit preference for the Laborers was further reinforced
by the powerful implicit message conveyed by his direction that
the employees be authorized to attend meetings with the Labor-

37 In this regard, I agree with counsel for the General Counsel’s ar-
gument that the quantum of evidence showing management’s general
knowledge about the organizational meeting supports an inference that
it knew of Pohubka’s specific involvement. See Montgomery Ward &
Co., 316 NLRB 1248, 1253 (1995), enfd. 97 F.3d 1448 (4th Cir. 1996).
ers on work premises during working hours.38 I further infer
that Daloisio’s strong preference for the Laborers Union was
conveyed to his managers in at least as clear a fashion as it was
conveyed to the rank and file employees. As a result, it is real-
istic to find that the desire to thwart the Carpenters’ organiza-
tional effort formed a factor in the determination to discharge
Pohubka, an employee who was active in that organizational
effort.39 I, therefore, conclude that the General Counsel has
carried its initial burdens and the focus of the inquiry must shift
to assessment of the Company’s defense.
In evaluating the Company’s defense to this unfair labor
practice charge, I have been mindful of the overall context,
including the labor-relations history just discussed. By the same
token, I have also considered the general background of Po-
hubka’s employment history with the Company as this also
provides essential context for assessment of the crucial events
regarding his termination. The record strongly demonstrates
that he was far from an exemplary employee. There was over-
whelming evidence that he was generally seen as an unmoti-
vated worker who was difficult to supervise effectively. For
example, Baer testified that Pohubka was not attentive to work
tasks and “it was a matter of continually chasing him down,
getting him back on the job.” (Tr. 411.) In addition, Baer re-
ported that he had “a disrespectful attitude towards the Fore-
men.” (Tr. 411.) Earley testified that Pohubka was “[n]ot a very
good worker,” that he spent too much time “getting coffee,
walking around talking to people,” and engaging in loud, curs-
ing speech “[a] couple of times a week at least.”40 (Tr. 522,
526.) Phillips also reported that “sometimes I would spend half
a day hunting him.” (Tr. 483.) Santos colorfully characterized
Pohubka’s pattern of lack of attentiveness to his work as being
similar to that of “a very slow moving pinball, going side to
side in the shop.” (Tr. 580.)
I found it noteworthy that the managers’ unfavorable overall
impression of Pohubka’s work attitudes and behavior was ech-
oed by those coworkers who were called upon to comment. For
example, Ashcraft testified that he requested not to have to
work with Pohubka because,
He would, you know, walk away and be talking or he would
[be] too hard to keep track of. There was like I had to work,
you know, I had to do the job of two people then.
(Tr. 623.) Iannaco reported similar behavior by Pohubka. His
testimony was impressive since it was obvious that he was
uncomfortable in reporting his observations about a coworker.

38 While Daloisio eventually agreed to permit a similar meeting with
the Carpenters, this was only done as part of a negotiated agreement to
facilitate the representation election.
39 On the other hand, I do not accept the General Counsel’s reliance
on the timing of Pohubka’s discharge as evidence of illegal motivation.
Although Pohubka was discharged only 2 days after the pizza meeting,
for reasons shortly to be discussed, I agree with counsel for the Com-
pany’s assertion that “the timing of Pohubka’s discharge was dictated
by Pohubka and not the Company.” (R. Br. at 33.)
40 Earley’s opinion was particularly significant because he gave me
the impression that he was a rather mild-mannered individual who was
inclined to give others the benefit of the doubt. As a foreman, he was
far from being a stickler for perfection.
RCC FABRICATORS, INC. 717
The overall impression of Pohubka’s work history was of an
employee whose behavior was characterized by inattentiveness
to his duties and a pattern of disrespect for his supervisors,
sometimes expressed in a loud and profane manner. Thus, this
case does not present the picture of an otherwise exemplary (or
even merely satisfactory) employee who is suddenly discharged
on the basis of a single alleged infraction. To the contrary, the
evidence established that prior to the events immediately pre-
ceding his discharge, Pohubka already stood out as a problem
employee.41
Turning now to the events of October 11, 2002, the day be-
gan with Pohubka’s late arrival at work. It is undisputed that,
although he arrived late, he stopped to get a cup of coffee. I
credit the testimony that he then resumed his pattern of wander-
ing in the shop instead of proceeding to obtain a work assign-
ment from his foreman. Baer observed this misbehavior. Rather
than imposing any formal discipline, Baer merely expressed his
displeasure at Pohubka’s conduct and directed him to report to
the foreman for assignment of duties. Upon reporting to Phil-
lips, Pohubka elected to revert to his pattern of loud and pro-
fane insubordination. He told Phillips that Baer was a fucking
asshole.42 Phillips described what occurred next:
I said no, Dan, calm down, you know, just stay calm.
And, we would, you know, we would go on to work.
Well, he just kept on getting louder and louder and
louder and louder and louder. . . . And, he just kept on.
And finally, I said “That’s it, go to the office.” (Tr. 487.)
Upon reporting to Baer, Pohubka continued his insubordi-
nate behavior. In response, Baer terminated his employ-
ment.
Counsel for the General Counsel argue that the Company’s
decision to terminate Pohubka was unlawful since management
had acquiesced in Pohubka’s pattern of poor performance and
behavior until the Carpenters Union’s organizational campaign
came to a head. The record does not support this conclusion. It
will be recalled that VanNortwick first contacted a representa-
tive of the Carpenters Union in late September 2002. Almost 3
months before the initiation of such contact, management disci-
plined Pohubka for conduct and attitude problems that were
virtually identical to those displayed on October 11. On that

41 For this reason, counsel for the General Counsel’s reliance on
Naomi Knitting Plant, 328 NLRB 1279, 1283 (1999), is inapposite. The
Board described the discharged employee in that case as having a
“good employment record” and no history of prior discipline. As a
result, the context in which the events occurred was quite different.
42 The Board has recently sustained the discharge of an employee for
engaging in workplace profanity of this type. In Aluminum Co. of
America, 338 NLRB 20 (2002), the employee engaged in a “tirade”
during which he referred to “chicken s– bosses” and supervisors who
were “mother f—kers.” Id. at 21. The Board found that such profane
speech was not protected within the meaning of the Act, and that appli-
cation of the analysis required by Wright Line was unnecessary. The
parties have not suggested that American Aluminum should govern the
result in this case. Given that the events here took place during an orga-
nizing campaign, I have applied the Wright Line analysis with its re-
quirement that employer motivation be assessed. Nevertheless, I cer-
tainly recognize that in American Aluminum, the Board has condemned
the sort of profane workplace speech indulged in by Pohubka.
occasion, Pohubka and Mace were discovered to be sleeping on
work time. They were simply instructed to make up the lost
time at the end of their workday. Mace readily complied and
was issued only a warning. An additional notation further sof-
tened this warning, noting that he deserved commendation for
his compliant response to the discipline. (GC Exh. 4, p. 15.)
Unlike Mace, Pohubka responded to the discipline by growing
angry, dropping a heavy piece of metal, and resorting to exple-
tives. He was issued a corrective action notice for
“[m]isconduct/insubordination” and “[i]adequate work per-
formance.” (GC Exh. 4, p. 24.) I find that the supervisors cited
inadequate work performance because of his conduct in sleep-
ing on the job. I further find that they cited insubordination due
to his refusal to comply with the directive that he make up the
lost time and because of his loud and abusive conduct directed
at his supervisors.
The corrective action notice issued to Pohubka on July 2,
2002, clearly informed him of the precise nature of the disci-
pline being imposed. The form lists three types of disciplinary
sanctions: warning, suspension, and termination. He was in-
formed that the discipline imposed at that time consisted of
both a warning and a suspension. It was apparent from the
manner in which the form was completed that the only remain-
ing sanction was termination. Despite this, less than 4 months
later, Pohubka committed essentially identical disciplinary
infractions. As in July, he was observed to be avoiding work
during his scheduled work time. When the shop superintendent
attempted to impose the mildest of discipline, simply ordering
him to obtain a work assignment, Pohubka responded by en-
gaging in loud and profane disparagement of the manager. It
was a clear repetition of the same types of misconduct for
which he had been sanctioned by all steps short of termination
in July. Therefore, I find it logical, consistent, and reasonable
that the resulting sanction in October consisted of his termina-
tion. In other words, I conclude that the Company would have
terminated Pohubka for this recidivist pattern of severe mis-
conduct regardless of his participation in the Carpenters Un-
ion’s organizational campaign.43
To summarize, I find that the General Counsel established
that Pohubka engaged in protected, concerted activity and that
his participation in such activity was known to management
officials. Additionally, I infer that Pohubka’s involvement in
the Carpenters Union’s organizational effort formed one of the
factors in his discharge. Finally, I determine that the Company
has proven by preponderance of the credible evidence that Po-
hubka’s poor work performance, including his loud and profane
insubordination, would have resulted in a decision to terminate

43 In this regard, my ultimate conclusion mirrors that of the Appeals
Examiner for the New Jersey Department of Labor who concluded that
Pohubka’s “actions in shouting and acting in an insubordinate manner
. . . were the cause of [his] discharge.” (Appeals Tribunal Decision, p.
2.) I recognize that the Department of Labor’s decision may not reflect
knowledge of the larger context. However, while the labor-relations
portion of that context raises concern regarding management’s motiva-
tions, the full history of Pohubka’s employment by the Company pro-
vides compelling support for the conclusion that he was terminated for
insubordinate behavior. Overall, the context reinforces the accuracy of
the Appeals Examiner’s characterization of what occurred.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD718
his employment regardless of his union sympathies and activi-
ties. As a result, the Company did not commit any violation of
the Act in terminating his employment.
III. THE CHALLENGED BALLOTS
On November 21, 2002, a representation election was held.
Sixteen ballots were cast. Six bargaining unit members voted
for the Carpenters Union as their representative. Five voted
against any union representation. Nobody voted for representa-
tion by the Laborers Union. Three ballots were challenged ad-
ministratively since those voters’ names did not appear on the
list of eligible voters. In addition, the Carpenters Union chal-
lenged the ballots of two voters, contending that they were not
proper members of the bargaining unit. As is apparent, the dis-
position of these ballot challenges could be determinative of the
election result.
The five challenged ballots fall into three categories. One
ballot was challenged because the individual did not appear on
the list of eligible voters since he had previously been termi-
nated from employment. The eligibility of two voters is chal-
lenged due to the contention that, as shop foremen, they are
statutory supervisors. Two ballots are challenged because the
voters did not appear on the list of eligible employees since
they had been laid off. I will address each of these issues in
turn.
A. The Discharged Employee’s Ballot
Daniel Pohubka cast one of the challenged ballots. If, as the
General Counsel contended, Pohubka’s discharge had been
unlawful under the Act, then he would have retained the status
of an eligible member of the bargaining unit. For reasons al-
ready discussed, I have concluded that Pohubka’s discharge
was lawful. As a result, he was no longer employed by the
Company and was ineligible to vote in the election. I will rec-
ommend that the challenge to his ballot be sustained.
B. The Ballots Cast by the Foremen
The Company’s two shop foremen, Phillips and Earley, cast
ballots in the election. The Union challenged their ballots on
the basis that they are supervisors within the meaning of the
Act and are not properly included in the bargaining unit.44 I
have already engaged in extensive analysis of the issue of Phil-
lips’ supervisory status since resolution of this question was
required in order to adjudicate alleged unfair labor practices.
Having found that Phillips possessed the power to assign and
discipline employees and was required to exercise independent
judgment while doing so, I have concluded that he was a super-
visor within the meaning of the Section 2(11) of the Act. As a
consequence, I will recommend that the challenge to his ballot
be sustained.
The issue of Earley’s status has not yet been resolved. In
grappling with this question, I note at the outset that there was
general agreement that Phillips and Earley had the same job.
Phillips was the shop foreman for the railroad component por-

44 Although the shop foremen had been included in the description of
the bargaining unit written before the election, the parties agreed that
the Carpenters Union remained entitled to challenge the inclusion of the
foremen. (Tr. 393–395, 463–464.)
tion of the facility and Earley was the shop foreman for the
structural steel side of the operation. As Earley put it in his
testimony, he and Phillips were “even,” meaning that, “I would
be a foreman as much as he was a foreman.” (Tr. 541.) Both
Puza and Santos confirmed that the two foremen possessed the
same responsibilities. Bargaining unit members who were
asked to comment expressed the same conclusion. Therefore,
the record fully supports counsel for the Company’s characteri-
zation as follows:
Earley performed the majority of his work on the structural
steel side of the RCC Fabricators facility. Phillips performed
the majority of his work on the railroad side. However, at all
relevant times, they performed the same work and had the
same functions and responsibilities. [Citations to the transcript
are omitted.]
(R. Br. at 12.) For this reason, I have considered the material
portions of the record pertaining to Phillips’ status in evaluating
Earley’s eligibility to vote. 45
I have earlier noted when evaluating Phillips’ status that
Puza testified that he had written job descriptions for Phillips
and Earley. Despite this testimony, the Company failed to in-
troduce these documents. As with Phillips, I draw the inference
that this failure to present documentary evidence uniquely
within the possession of the Company means that Earley’s job
description would tend to show that he possessed the type of
authority contemplated by the definition of supervisory status
contained in the Act. This conclusion is reinforced by consid-
eration of the job description prepared for Baer. That document
noted that the shop foremen were “in charge of” the Company’s
two production processes. (R. Exh. 3.) Such language is also
suggestive of the possession of the degree of authority required
by the Act. I have also noted that the Company’s assertions
regarding the foremen’s status must be viewed with reserva-
tions since management officials attempted to manipulate the
evidence in support of their position. Such manipulation di-
rectly involved Earley’s status. It will be recalled that Earley
was initially excluded from attending the organizing meeting
conducted by the Laborers Union. This position was abruptly
reversed and management authorized Earley to attend the meet-
ing. I conclude that this was done because it was perceived that
his participation in the bargaining unit would convey a tactical
advantage even though it was initially clear to the higher man-
agers that he was a supervisory employee. Thus, circumstantial
evidence and the associated inferences support a conclusion
that the Company’s position is not credible and that the fore-
men were, in fact, statutory supervisors.
Turning to the direct evidence, I have found that, as a shop
foreman, Phillips possessed the power to assign and discipline
employees. He exercised independent judgment while perform-
ing these functions. The same is true of Earley. Employees
testified that Earley made job assignments related to the struc-
tural steel manufacturing process. For example, Iannaco testi-
fied that Earley gave out such assignments a couple of times

45 It also follows that, where appropriate, I have considered the evi-
dence regarding Earley in determining that Phillips was a supervisor
within the meaning of the Act.
RCC FABRICATORS, INC. 719
each day. VanNortwick reported that Earley gave out assign-
ments and monitored his work. He also solicited overtime from
VanNortwick. VanNortwick summarized his view of Earley’s
power to assign work by observing that, “Once we finished a
project, we would either find Bud [Phillips] or Butch [Earley]
to see what needed to be done next, and then they would assign
you to the next task.” (Tr. 338.) Baer also confirmed that Ear-
ley formed a part of the troika that met regularly to determine
job assignments. He also attended and was an active participant
in the weekly production meetings where important decisions
were reached. I conclude that Earley had the authority to assign
work.
As to the issue of exercise of independent judgment in mak-
ing work assignments, I find that the evidence of the exercise of
such discretion is even better established than in the case of
Phillips. This is so because Earley ran the structural steel opera-
tion. He testified that this was the more difficult of the two
operations and involved more potential hazard to employees
due to the dangers involved in moving heavy pieces of steel. As
a result, it is evident that the assignment process required exer-
cise of a highly significant degree of independent judgment in
order to assure safe and efficient operations.
Like his counterpart Phillips, Earley also possessed the
power to discipline employees. In reaching this conclusion, I
note that the evidence is virtually identical to that discussed
with reference to Phillips. In particular, consideration of the
documentary evidence shows that Earley signed substantial
numbers of corrective action notices and, for reasons discussed
earlier in this decision, I have concluded that he signed those
notices as a participant in the tripartite disciplinary decision-
making process.46
One further matter requires comment. I have already noted
that I credit Phillips’ expansive view of the nature of his duties
and authority. In large measure, this is due to his independent
status after having left the Company’s employ. He does not
appear to have any remaining interest in maintaining a relation-
ship with the employer or employees.47 By contrast, since Phil-
lips’ departure, Earley has assumed the status of sole foreman
in charge of both sides of the Company’s production processes.
In addition, his testimony clearly demonstrated that his loss of
prior long-term employment and rescue through employment
by this employer has inspired deep feelings of loyalty and grati-
tude. I conclude that these emotions have affected his objectiv-
ity in describing his role as foreman. As a result, I do not credit
his testimony that his duties were limited to those of a mere
“messenger boy.” (Tr. 501.) Nor do I credit his other attempts
to support his employer’s position in this litigation by minimiz-
ing his duties and authority as shop foreman. Indeed, the reli-
ability of his assessment is directly undercut by his own recog-
nition that, as foreman, he “run[s] the shop for RCC.” (Tr. 501.)

46 There is one exception, the corrective action notice that Earley an-
notated by noting that he was merely signing as a witness. (GC Exh. 4,
p. 28.) The old adage that an exception sometimes proves the rule ap-
plies to this document.
47 It will be recalled that Phillips came to New Jersey from his home
in North Carolina in order to work for the Company. Having severed
this tie, he has no evident connection to any of the persons associated
with this case.
For these reasons, I place greater reliance on Phillips descrip-
tion of the foreman position that he shared with Earley.
Because Earley’s duties as shop foreman included the au-
thority to assign and discipline employees and required the
exercise of independent judgment in so doing, I find that he is a
supervisor within the meaning of the Act. As a result, he is not
properly included in the bargaining unit and I shall recommend
that the challenge to his ballot be sustained.
C. The Ballots Cast by Laid-Off Employees
In September 2002, the Company hired two brothers, Mau-
rice and George Lopez.48 These men were laid off on October
22. The men cast ballots in the November 21 election. Their
ballots are challenged administratively since their names did
not appear on the list of eligible voters. (Jt. Exh. 1.) The Union
asserts that their ballots should be counted because the layoff
was temporary and the men possessed a reasonable expectation
that they would be recalled to work in the foreseeable future.
The Company disputes this, arguing that the men were termi-
nated from employment and had no such reasonable expecta-
tion of regaining employment in the foreseeable future.
The legal standard for assessment of this issue is clear. As
the Board has put it,
The voting eligibility of laid-off employees depends on
whether objective factors support a reasonable expectancy of
recall in the near future, which establishes the temporary na-
ture of the layoff. The Board examines several factors in de-
termining voter eligibility, including the employer’s past ex-
perience and future plans, the circumstances surrounding the
layoff, and what the employees were told about the likelihood
of recall.
Apex Paper Box Co., 302 NLRB 67, 68 (1991).49 I will now
address these factors.
As RCC Fabricators is in its corporate infancy, the Company
has had no prior layoffs. As a result, there can be no evidence
regarding the employer’s past experience with such events. In
Sol-Jack Co., 286 NLRB 1173, 1174 (1987), the Board made a
passing reference to the absence of a prior history of layoffs as
constituting an objective factor arguing against a reasonable
expectancy of recall. Absent a clearer exposition of this less
than self-evident concept, it would appear to me that the Com-
pany’s lack of history or policy regarding layoffs is simply a
neutral factor.50

48 For clarity, I will sometimes refer to the two men by their first
names.
49 These standards have been reiterated very recently in MJM Studios
of New York, Inc., 338 NLRB 980 (2003), and Laneco Construction
Systems, 339 NLRB 1048 (2003). In MJM Studios, it was also noted
that the determination of eligibility is based on the circumstances as of
the payroll eligibility date and the date of the election, with the burden
of proof placed on the party seeking to exclude the challenged indi-
viduals. Id. at 980.
50 As the Sixth Circuit has observed in the case of a company with
no prior history of layoffs, “Of course, the absence of a prior policy of
recalling laid-off employees does not prove that they did not have a
reasonable expectancy of recall. Thus, we must focus our attention on
other factors.” NLRB v. Seawin, Inc., 248 F.3d 551, 555 (6th Cir. 2001).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD720
I will now address the evidence regarding the circumstances
of the layoff. Baer testified that the Lopez brothers were hired
in order to meet increased staffing needs for a job involving the
production of rail cars for the Port Authority. Although this
contract had been awarded to the Company, the Port Authority
subsequently “pulled it” due to lack of funds. (Tr. 421.) Baer
continued by noting that the Company kept the brothers on the
payroll for a week by giving them duties such as sweeping the
shop floor. This was done because the Company was “trying to
hold on as long as we could.” (Tr. 117.) After a week, it was
apparent that there was no work for the men and “we had to lay
them off.” (Tr. 117.) There is no evidence to suggest that the
men were laid off for any reason other than an unanticipated
loss of business. The Board treats this factor as evidence cutting
against a reasonable expectancy of recall. See Heatcraft, 250
NLRB 58 (1980), and Osram Sylvania, Inc., 325 NLRB 758
(1998). Indeed, relying on these Board decisions, the Sixth
Circuit observed that evidence of a downturn in orders and loss
of customers “compellingly” indicates that laid-off employees
lacked a reasonable expectancy of recall. NLRB v. Seawin, Inc.,
248 F.3d 551, 555–556 (6th Cir. 2001). I find that the reason
for the layoff, the unexpected loss of the contract that had justi-
fied the workers’ hiring, supports a conclusion that there was
no reasonable expectancy of recall.
The remaining factors to be considered involve the evidence
of the employer’s future plans and what the employees were
told about the likelihood of recall. The evidence regarding these
factors is intertwined and it is appropriate to address the factors
together. Baer testified that on October 22, he intended to per-
sonally inform both men of the layoff. Unfortunately, George
was not at work, having been required to attend to a matter in
court. As a consequence, Baer met with Maurice alone. He
testified that he told Maurice that both men had been satisfac-
tory employees. Maurice confirmed that Baer indicated that the
layoff was solely due to work being “slow.” (Tr. 314.) Both
men agree that Baer also made some statements indicative of a
desire to hire the men in the future. Baer reported that he
probably said that “I hoped things did pick up, and if they did
we’d consider using them again.” (Tr. 118.) Later in his testi-
mony he amplified this, indicating that he told Maurice that “if,
or when work picked up, you know, I’d see what we could do
about calling them back.” (Tr. 424–425.) Maurice described
Baer’s remarks as indicating that the layoff “was just going to
be temporary; I wasn’t going to be fired; and that, you know,
just call him up to see if there was any job available.” (Tr. 314.)
Later in his account, Maurice seemingly contradicted this de-
scription. At that point, he testified that Baer told him that “as
soon as he gets more jobs, he was going to call me.” (Tr. 319,
321.)
There is one additional item of evidence that sheds light on
what transpired during the conversation between Baer and
Maurice Lopez. Both men agree that Baer asked Maurice to
sign a form documenting the layoff.51 The form noted that the
presenting problem was that Maurice’s “[s]ervices are no

51 The form employed was the corrective action notice. Although not
really appropriate to the situation, the form was used since the Com-
pany lacked a layoff form.
longer required due to lack of work.” This explanation was
handwritten on the form. Using a checklist, the form went on to
advise him that it was to be considered as notice of
“[t]ermination.” (R. Exh. 2.) Maurice Lopez, Baer, Phillips, and
Earley signed the form. In his testimony, Maurice disputed that
the checklist designation for termination had been marked
when he signed the form. However, he conceded that he did
recall the language regarding lack of work being written on the
form. I find that both of these items were on the form as ten-
dered to him. It is natural that his attention would be directed to
the handwritten notation on the form rather than to the check-
box at the bottom of the document. There is nothing to suggest
that the Company’s officials have altered the appearance of the
form after it was signed.
After this meeting, Maurice told George that they had been
laid off. George testified that Maurice told him the reason for
the layoff was that “there was no more work for us.” (Tr. 308.)
Several days later, George telephone Baer who told him he was
sorry about the layoff. This was the extent of their conversa-
tion. Maurice testified that for approximately 2 months he con-
tinued to call the Company regarding return to employment.
During these conversations, he was never given any indication
that he would be called back to work. After 2 months, he found
new work and stopped calling.
In resolving the disputes regarding this matter, I generally
credit the Company’s version. Baer’s account is supported by
the documentary evidence showing that Maurice Lopez was
given a written explanation that he was being terminated from
employment due to lack of available work. There is no doubt
that Baer expressed a desire to consider the brothers for future
employment. The Board has realistically noted that such ex-
pressions are common in this type of unfortunate situation and
reflect a desire on the part of the bearer of ill tidings to soften
the blow. Thus, the Board has held that a supervisor’s “equivo-
cal statement” of this sort “expresses a possibility more likely
expressed to lend hope to the laid-off employee than to give a
realistic assessment of his being recalled to work.” Sol-Jack
Co., supra at 1174. As a result, such statements do not provide
an adequate basis for a finding of reasonable expectancy of
recall. Such is the situation here. Even if Baer made the state-
ments in the precise manner attributed to him by Maurice Lo-
pez, they were merely expressions of vague hopefulness and
cannot be seen as constituting any indication of a return to em-
ployment in the foreseeable future.
Considering the factors outlined by the Board, I conclude
that the Company has carried its burden of establishing that the
circumstances of the layoff, the evidence regarding the Com-
pany’s future plans, and the statements made to the laid-off
employees failed to create any reasonable expectancy of recall.
As the Board said in its leading case,
In the absence of evidence of past practice regarding layoffs,
where an employee is given no estimate as to the duration of
the layoff or any specific indication as to when, if at all, the
employee will be recalled, the Board has found that no rea-
sonable expectation of recall exists.
Apex Paper Box Co., supra at 69. That is the situation here.
Accordingly, I find that George and Maurice Lopez could not
RCC FABRICATORS, INC. 721
have had a reasonable expectation of recall to employment in
the foreseeable future. As a result, I must recommend that the
challenges to their ballots be sustained.
CONCLUSIONS OF LAW
1. By interrogating employees regarding their protected,
concerted activities and the protected concerted activities of
other employees, the Company violated Section 8(a)(1) of the
Act.
2. By creating an impression that employees’ protected, con-
certed activities were under surveillance, the Company violated
Section 8(a)(1) of the Act.
3. The Company did not violate the Act in any other manner
alleged in the complaint.
4. Having been lawfully discharged from employment,
Daniel Pohubka was not eligible to vote in the representation
election held on November 21, 2002. The challenge to his bal-
lot should be sustained.
5. Having been laid off without reasonable expectation of
recall in the foreseeable future, George and Maurice Lopez
were not eligible to vote in the representation election held on
November 21, 2002. The challenges to their ballots should be
sustained.
6. James Phillips and Ronald Earley were supervisors within
the meaning of Section 2(11) of the Act. As a result, they were
not eligible to vote in the representation election held on No-
vember 21, 2002. The challenges to their ballots should be
sustained.
REMEDY
Having found that the Company has engaged in certain un-
fair labor practices, I conclude that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act. In particular, I recommend
that the Company be ordered to post notices in the usual man-
ner.
Having found that none of the challenged ballots should be
counted, I recommend that an appropriate Certification of Re-
sults of Election be issued.
On these findings of fact and conclusions of law, and on the
entire record, I issue the following recommended52
CERTIFICATION OF REPRESENTATIVE
It is certified that a majority of the valid ballots have been
cast for Piledrivers Local 454 a/w Metropolitan Regional
Council of Carpenters, Eastern Pennsylvania, State of Delaware
and Eastern Shore of Maryland, and that it is the exclusive
collective-bargaining representative of the employees in the
following appropriate bargaining unit:
All full time Layout Men, Machinists, Mechanics, Shop La-
borers, Welders, and Welders/Fitters employed by the Em-
ployer at its 2035 State Highway 206 South, Southampton,
New Jersey facility, but excluding all other employees, in-

52 If this Order is enforced by a judgment of the United States Court
of Appeals, the words in the notice reading “Posted by Order of the
National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.”
cluding clerical employees, guards, and supervisors as defined
in the Act.
ORDER
IT IS ORDERED that the Respondent, RCC Fabricators, Inc., its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating its employees regarding their
union sympathies or their participation in protected concerted
activities or regarding the union sympathies or participation in
protected, concerted activities of other employees.
(b) Creating an impression that its employees protected con-
certed activities are under surveillance.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
by Section 7 of the Act.
2. Take the following affirmative action to effectuate the
policies of the Act.
(a) Within 14 days after service by the Region, post at its fa-
cility in Southampton, New Jersey, copies of the attached no-
tice marked “Appendix.”53 Copies of the notice, on forms pro-
vided by the Regional Director for Region 4, after being signed
by the Respondent's authorized representative, shall be posted
by the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including all
places where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure that
the notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these pro-
ceedings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondent at any time since October 10, 2002.
(b) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.

53 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD722
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT coercively question you about your union sup-
port and activities or the union support and activities of other
employees.
WE WILL NOT create an impression that your union activities
are being placed under surveillance.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Federal labor law.
RCC FABRICATORS, INC.
Henry R. Protas, Esq. and Ann Marie Cummins, Esq., for the
General Counsel.
John H. Widman, Esq. and Amy Niedzalkoski, Esq., of King of
Prussia, Pennsylvania, for the Respondent.
Stephen J. Holroyd, Esq. and Richard C. McNeill, Jr., Esq., of
Philadelphia, Pennsylvania, for the Charging Party.1
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
PAUL BUXBAUM, Administrative Law Judge. This case was
tried in Philadelphia, Pennsylvania, on April 8 and 10 and May
15, 2003. An unfair labor practice charge had been filed on
November 25, 2002, and an amended charge was filed on Janu-
ary 28, 2003. The complaint was issued on February 19, 2003.
In addition to the unfair labor practice allegations, this case
involves issues arising from representation proceedings. On
October 25, 2002, the Metropolitan Regional Council of Car-
penters, Eastern Pennsylvania, State of Delaware and Eastern
Shore of Maryland filed a petition for certification as collec-
tive-bargaining representative of certain employees of the
Company.2 Six days later, the Construction and General La-
borers Union Local 172 of South Jersey filed a similar petition.3
The Regional Director consolidated these petitions on October
31, 2002.
A representation election was held on November 21, 2002.
Sixteen votes were cast. Six votes favored the Carpenters, five
votes were against any union representation, and no votes were
cast in favor of the Laborers. Five ballots were challenged, a
potentially determinative number. On March 6, 2003, the Re-
gional Director issued an order consolidating the ballot chal-
lenges and the unfair labor practice allegations and scheduling

1 Listed are the attorneys who participated in the original trial and in
this remand proceeding.
2 This is Case 4–RC–20569. As the Carpenters were the only labor
organization that participated actively in this case, I will refer to them
where appropriate as the “Union.”
3 This is Case 4–RC–20572. The Laborers Union did not participate
in this case, either through counsel or otherwise.
the hearing. After that hearing, on October 23, 2003, I issued a
decision setting forth my resolution of each of the issues arising
in the unfair labor practice and representation portions of the
proceedings. RCC Fabricators, Inc., 348 NLRB 56 (2006).
As to the unfair labor practice portion of the case, the Gen-
eral Counsel alleged that an admitted supervisor told an em-
ployee that the Company would close if the employees selected
a union as their bargaining representative. It was also alleged
that a foreman, James Phillips, interrogated employees regard-
ing their union activities and created an impression that union
activities were under employer surveillance. That foreman was
asserted to be a supervisor and agent of the Company. Finally,
the General Counsel contended that the Company discharged
an employee, Daniel Pohubka, because of his involvement in
union activities. The Company filed an answer, denying the
material allegations of the complaint, including the contention
that the foreman was a supervisor and agent.
In my decision, I concluded that the General Counsel had
failed to prove that a supervisor threatened closure of the Com-
pany if employees selected union representation. I recom-
mended dismissal of that charge. Similarly, I recommended
dismissal of the charge that the Company’s firing of employee
Pohubka was unlawful. Specifically, while I found that Po-
hubka’s involvement in union activities was a factor in the
decision to terminate his employment, his poor work perform-
ance and insubordination would have caused the Company to
discharge him regardless of his involvement in those union
activities. No exceptions to these recommendations for dis-
missal were filed.
The General Counsel alleged that Phillips was a supervisor
and agent of the Company and that he had unlawfully interro-
gated certain employees and created an impression that union
activities were under surveillance by the Company’s officials. I
determined that Phillips was both a supervisor within the mean-
ing of the Act and an agent of the Employer. I further found
that his conduct constituted unlawful interrogation and the crea-
tion of an improper impression of surveillance. The Company
filed exceptions to these findings and conclusions.
The representation issues involved in this case concerned
challenges to five ballots, any one of which could be determina-
tive of the outcome of the election. The Board agent chal-
lenged 3 ballots because those voters’ names were not found on
the Excelsior list.4 One of these prospective voters was Po-
hubka. His eligibility to vote depended on the outcome of my
resolution of the unfair labor practice allegation that he was
wrongfully terminated from employment due to his union ac-
tivities. Since I found that he had been lawfully discharged, I
sustained the challenge to his ballot. The remaining two pro-
spective voters challenged by the Board agent were employees
who were laid off prior to the election. The Union contended
that these employees enjoyed a reasonable expectation of re-
turning to work in the foreseeable future. The Company denied
that such an expectation existed. Because I agreed with the
Company’s assertion that the evidence established that there
was no reasonable expectation of such a return to employment,
I sustained the challenge to these ballots. No exceptions were

4 Excelsior Underwear, 156 NLRB 1236 (1966).
RCC FABRICATORS, INC. 723
filed to my determinations regarding the 3 ballots challenged by
the Board Agent.
The remaining issue forms the heart of the matters that must
be resolved in this supplemental decision. The Union chal-
lenged the ballots of the two shop foremen, James Phillips and
Ronald Earley, contending that they were supervisors within
the meaning of the Act. The Company disputed this characteri-
zation of their status. Having concluded that the foremen were
statutory supervisors, I recommended that the challenges to
their ballots be sustained. The Company filed exceptions to
these recommendations.
On September 30, 2006, the Board issued an Order remand-
ing the matter to me for further analysis. RCC Fabricators,
Inc., supra. As explained in the Board’s Order, the remand is
designed to permit an assessment of the impact of the Board’s
recent trilogy of decisions addressing a number of issues arising
from the Act’s exclusion of supervisors from the scope of its
coverage. Specifically, I was directed to engage in, “further
consideration in light of Oakwood Healthcare, Croft Metals,
and Golden Crest.”5
As part of the remand order, the Board required that I evalu-
ate the need for any reopening of the evidentiary record and
that I afford the parties an opportunity to file briefs. I solicited
the views of all counsel regarding both of these matters. Their
written responses indicated that they each wished to file briefs.6
Counsel for the Company sought to submit one additional item
of documentary evidence. This was identified as Joint Exhibit
2 and was accompanied by a written stipulation signed by all
counsel. By order dated November 22, 2006, I received it into
evidence. As indicated in their respective letters, no counsel
sought to reopen the record for the production of any other
evidence or testimony. Having considered the existing record
and the parties’ arguments, I similarly conclude that it is not
necessary to reopen the record to obtain any further evidence.
Finally, I granted the parties time to file briefs, and those briefs
have now been received.7
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed

5 RCC Fabricators, Inc., supra, slip op. at 1, citing Oakwood Health-
care, 348 NLRB 686 (2006); Croft Metals, 348 NLRB 717 (2006); and
Golden Crest Healthcare Center, 348 NLRB 727 (2006).
6 By letter dated December 26, 2006, counsel for the Union joined in
most aspects of the General Counsel’s brief. I will discuss the one
aspect of the case about which the Union parts company with the Gen-
eral Counsel’s position at the appropriate point in this decision.
7 Due to the procedural posture of this case, the General Counsel and
the Company have each filed a number of briefs. When citing from
some of those briefs, I have abbreviated their titles as set forth paren-
thetically: Counsel for the General Counsel’s Brief [to the Administra-
tive Law Judge] (GC Br. ALJ); Answering Brief of Counsel for the
General Counsel to Respondent’s Exceptions (GC Ans. Br.); Counsel
for the General Counsel’s Supplemental Brief [on Remand] (GC Br.
Rem.); Posthearing Brief of RCC Fabricators, Inc. (R. Br. ALJ); Re-
spondent RCC Fabricators, Inc.’s Brief in Support of its Exceptions to
the Decision of the Administrative Law Judge (R. Br. Ex.); and Brief
on Remand of RCC Fabricators, Inc. (R. Br. Rem.).
by the General Counsel and the Company, I make the following
supplemental8
FINDINGS OF FACT
I. THE PERTINENT BACKGROUND
In my original decision, I described events relevant to all of
the issues presented in both the unfair labor practice and repre-
sentation proceedings. Given the considerably narrower focus
of inquiry on remand, it is useful to provide a revised factual
narrative directed specifically toward the issues concerning the
status of the two foremen.9 In so doing, I found it interesting to
note that when attention is directed to this particular question of
the foremen’s status, certain facts assume a greater significance
than appeared to be the case originally. For example, in my
prior decision, I tended to scrutinize the circumstances of Po-
hubka’s discharge from the primary viewpoint of whether the
Employer had acted lawfully in terminating his employment.
With this question now resolved, it has been useful to reexam-
ine the events involving Pohubka to determine what they dem-
onstrate regarding the powers and duties of the foremen. Simi-
larly, the previous focus regarding the layoff of Maurice Lopez
was on the reasonableness of his expectation of a return to em-
ployment. Now, I have examined these events with an eye
toward what may be revealed regarding the supervisory powers
of the foremen. Like a ray of the sun seen through a prism,
certain facts that were previously viewed in one light may now
be reexamined from another angle to provide a clearer vision of
the proper resolution of the questions presented on remand of
this case.
At the outset, it is useful to note that at the time of these
events, the Company, RCC Fabricators, Inc., was a new off-
spring of a set of venerable corporate ancestors. The Com-
pany’s owner, Alphonso Daloisio, Jr., testified that the firm’s
acronym is an abbreviation for “Railroad Construction Com-
pany.” The original company with that name was founded by
Daloisio’s grandfather in 1926. Although the initial nature of
the business was confined to the railroad industry, over time the
extent of the business activities grew to include road, bridge,
and site work, as well as, building construction. As the scope
of activities developed, the operations expanded into what is
now termed the RCC Family of Companies.
Among the entities included in the RCC Family of Compa-
nies was a firm known as RCC Materials and Equipment, lo-
cated in Lexington, North Carolina. That company was owned
by Daloisio and his brother, James. It manufactured railroad
equipment. Among its employees was James Phillips. It is
undisputed that Phillips’ job title while employed at RCC Mate-

8 I have not addressed those issues resolved in my original decision
that were not the subject of any exceptions.
9 I do not mean to suggest that I have altered my conclusions regard-
ing the facts of this case. My review of the evidentiary record, includ-
ing the additional items submitted by counsel for the Company, per-
suades me that the factual narrative in my original decision was accu-
rate. The revisions that I am referring to concern the desirability of
restating only those facts that bear on the remand topics and presenting
them in a manner more highly focused on resolution of those more
limited issues.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD724
rials and Equipment was “Team Leader/Supervisor.”10 (Jt.
Exh. 2, pp. 1 and 2.)
Daloisio reported that by the fall of 2001, it became apparent
that RCC Materials and Equipment was not proving to be a
profitable enterprise. In consequence, it was decided to close
the North Carolina facility and combine its production work
with a steel fabrication operation that was intended to supply
the building component of the RCC Family of Companies. It
was decided to locate this new entity in New Jersey. A facility
suitable for the manufacture of both railroad equipment and
structural steel components for the building industry was ob-
tained in Southampton and RCC Fabricators, Inc., was
launched.
In order to meet some of the new company’s staffing needs,
certain veteran employees of the North Carolina facility were
recruited for operations in New Jersey. Among these persons
were two who figure prominently in this narrative, Phillips, and
Carl Baer. Baer became the shop manager for the Company.
Daloisio testified that Phillips was initially hired during the
period when the Company organized itself and took the steps
needed to become ready to begin production. Although he was
not given a formal title at that time, Daloisio testified that he
came to New Jersey to take the “same position that he had” in
North Carolina. (Tr. 42.) Daloisio went on to explain why
Phillips was valuable and also why he was not initially given
any sort of formal job title, noting that,
his expertise was mainly in handling a lot of the equipment,
the wiring, the mechanics. He was an excellent mechanic.
He could weld. He basically was a jack of all trades, and, you
know, came up with the other gentlemen [from North Caro-
lina]. I honestly don’t think there was a [job] title associated
that I can think of, that was associated with any one of the
three of them, to be perfectly honest. I don’t have any title on
my business card. I’m not big with titles.
(Tr. 42.)
In November 2001, the new company began production.
Baer reported that at that time Phillips was formally appointed
as shop foreman. He further testified that this was, “basically
the same position that he was given in North Carolina.” (Tr.
404.) During the following month, the Company hired Ronald
Earley as a welder and fitter. He had extensive prior experi-
ence, having risen from laborer to foreman in the defunct com-
pany that had been the prior occupant of the Southampton
plant. Less than a year after he was hired, Earley was promoted

10 Examination of the newly-submitted exhibits provided by the
Company confirms that Phillips’ job title at RCC Materials and Equip-
ment is undisputed. Frank Santos, the Respondent’s lead controller,
testified that Phillips prepared a resume which his wife submitted to
Santos. (Jt. Exh. 2, p. 1.) In this document, Phillips listed his job title
as “Team Leader/Supervisor.” (Jt. Exh. 2, p. 1.) Santos testified that
he made certain revisions as shown in the second version. (Jt. Exh. 2,
p. 2.) The Company then used the revised edition when preparing
“prequalification statements” for job proposals. (Tr. 601.) In Santos’
revised version, Phillips continues to be shown as “Team
Leader/Supervisor.” (Jt. Exh. 2, p. 2.) From this, it is evident that his
possession of the job title of “Team Leader/Supervisor” is not in dis-
pute.
to be the second shop foreman.11 At the time of his promotion,
the respective areas of responsibility for the two foremen were
established. Phillips would be the foreman for the department
of the shop that produced railroad equipment and Earley would
hold the same position for the structural steel operation. In
turn, both men reported to Baer.
It is undisputed that the two shop foremen were co-equals.
As Earley put it, he was told by the Company’s vice president,
Dave Puza, that, “me and Bud [Phillips] would be even. I
would be a foreman as much as he was a foreman.”12 (Tr. 541.)
This was confirmed by Santos, who indicated that both men
had the same job, “just [in] two different areas of the manufac-
turing process.” (Tr. 560.)
It is now appropriate to examine the record in order to de-
velop an understanding of the powers, duties, and functions of
the shop foremen. There are two types of evidence that bear on
this subject, the testimony of management officials, employees,
and the foremen themselves, and the documentary evidence
created and maintained by the Company.13
Turning first to the rather basic question of job title, the re-
cord is more complicated than one might expect. This most
likely stems from Daloisio’s admitted aversion to such struc-
tural formalities as job titles. The result was perfectly illus-
trated by Phillips’ response to counsel for the General Coun-
sel’s inquiry as to his job title:
Leadman, foreman, you know, I mean you could call it lead-
man, foreman, supervisor, whatever you wanted to call it.

11 At this point, it is worthwhile to note that both foremen were often
referred to by their nicknames. Phillips was known as “Bud,” and
Early was called “Butch.”
12 Puza’s testimony supported Earley’s account. He characterized
the responsibilities of Phillips and Earley as being the “same.” (Tr.
651.)
13 In his brief in support of exceptions to my original decision, coun-
sel for the Company contends that it was error for me to accord signifi-
cant probative weight to the documentary evidence. (R. Br. Ex., pp.
14–15.) He correctly notes that the Board has always cautioned against
mechanical reliance on job descriptions or titles. Thus, the Board re-
cently reaffirmed its position that it is error to give such documents
“controlling weight.” Avante at Wilson, Inc., 348 NLRB 1056, 1057
(2006), and Golden Crest Healthcare Center, 348 NLRB 727, 731
(2006). It is important to note that the context for these admonitions is
one where the employer asserts that supervisory status exists based on
job descriptions but fails to adduce evidence showing actual possession
of such supervisory authority. See Golden Crest, supra at 731 (“Board
insists on evidence supporting a finding of actual as opposed to mere
paper authority.”) Nothing in this line of cases suggests that company-
issued job descriptions or titles are irrelevant. It is obvious that such
documentary evidence easily meets the test of “having any tendency to
make the existence of any fact that is of consequence . . . more probable
or less probable than it would be without the evidence.” Fed. R. Evid.
401. Indeed, the Board quoted extensively from the “Employer’s writ-
ten job bid descriptions” in assessing supervisory status in Croft. Croft
Metals, supra at 717, 719. Furthermore, it is perhaps ironic to observe
that counsel for the Company quoted the Board’s citation to that job
description from Croft when making an argument in his brief on this
remand. (R. Br. Rem., p. 9.) To the extent that it is corroborated by
other evidence of actual conduct and behavior, I have accorded signifi-
cant value to the Company’s own documentation regarding job descrip-
tions and job titles.
RCC FABRICATORS, INC. 725
(Tr. 139.) What is interesting about this rather diffuse formu-
lation is that it mirrors the language employed by Santos in the
Company’s own version of Phillips’ resume utilized to impress
prospective customers with the qualifications of its foreman. In
that document, Phillips is referred to as a “Team Leader/ Su-
pervisor” for the “RCC Family of Companies.”14 (Jt. Exh. 2, p.
2.) The common thread here is the use of the term “supervisor”
to characterize his role.
Another indication of the scope of the foremen’s role in op-
erating the facility is found in the written job description of
their immediate supervisor, Baer. Among Baer’s enumerated
duties was the requirement that he, “[s]upervise shop operations
and provide direction to the two Shop Foremen in charge of
equipment and steel fabrication.”15 (Tr. 419.) As with the use
of the term “supervisor,” the choice of the phrase “in charge
of,” while not dispositive, is certainly suggestive of the Com-
pany’s expansive view of the scope of the foremen’s responsi-
bilities.
There is a third item of documentary evidence; one that
poses quite a conundrum in this case. Puza, the Company’s
vice president, clearly testified that he “wrote the job descrip-
tions” for the foreman positions occupied by Phillips and Ear-
ley. (Tr. 651.) The existence of such a document or documents
is supported by Baer’s testimony regarding the existence of a
job description for his own position as superintendent. Fur-
thermore, counsel for the Company conceded that “Puza wrote
the working foreman job description.” (R. Br. ALJ, p. 12.) It is
difficult to imagine the existence of a piece of documentary
evidence that would be more probative on the issue of supervi-
sory status than the Company’s own written description of the
duties and responsibilities of the foremen. Nevertheless, the
document was never offered into evidence during the trial.
In my original decision, I drew adverse inferences against
the Company based on its failures to produce Phillips’ resume
prepared by Santos and the foremen’s job description prepared
by Puza. I noted that the Board has long held that the failure to
produce evidence in the possession of a party that may rea-
sonably be assumed to be favorable to its position raises an
adverse inference. I cited Board decisions to this effect, includ-
ing the Board’s reliance on language from a treatise noting that
where relevant evidence which would properly be part of a
case is within the control of the party whose interest it would
naturally be to produce it, and he fails to do so, without satis-
factory explanation, the [trier of fact] may draw an inference
that such evidence would have been unfavorable to him.

14 While this document shows Phillips’ job location as being in
North Carolina, it was prepared by Santos on behalf of the New Jersey
operation. Furthermore, the Company’s owner testified that Phillips
held the “same position” in both locales. (Tr. 42.)
15 In his brief in support of the Company’s exceptions to my deci-
sion, counsel correctly observes that I mistakenly referred to Baer’s job
description as being part of the record. While it was identified as R.
Ex. 3, it was never introduced. The reporter inadvertently included it in
the binder containing the exhibits admitted on behalf of the Company.
Nevertheless, my error was not material since Baer was shown the
document during his testimony and was asked if the quoted language
was an “accurate description of your job.” (Tr. 419.) He unhesitatingly
answered in the affirmative. I credit that testimony.
Martin Luther King Sr. Nursing Center, 231 NLRB 15 fn. 1
(1977).
In its brief in support of exceptions to my decision, the
Company mounted a vigorous attack on my use of this princi-
ple of legal analysis.16 I will not further discuss the role of this
analytical tool with regard to Phillips’ resume. The Company
has now provided the documents in question and there is no
need to make any inferential assumptions regarding their con-
tent.17
On the other hand, the eventual, albeit belated, submission of
the resume stands in harsh and illuminative contrast to the
Company’s continuing decision not to similarly introduce the
job description for the foremen’s position. On direct examina-
tion by counsel for the Company, Puza testified that he was
particularly familiar with the nature of the foremen’s authority
because he wrote their job description. Counsel asked him to
describe that authority and Puza proceeded to outline a rather
constrained version of their role. And yet, the Company has
now twice failed to admit the job description into evidence.
This is particularly notable with regard to these remand pro-
ceedings, given the Board’s authorization for the admission of
new evidence to supplement the record and my subsequent
invitation to all parties in this regard.
As another administrative law judge has noted, the Board has
established the preconditions for application of an adverse in-
ference. They are that
(1) the party against whom the rule is invoked must have con-
trol of certain evidence; (2) the evidence in question must be
relevant evidence which would properly be part of a case; (3)
this party’s interest would naturally be to produce the evi-
dence; and (4) it did not offer a satisfactory explanation for
failing to produce the evidence. [Internal quotation marks
omitted.]

16 For example, the Company contended that I impermissibly shifted
the burden of proof by drawing the adverse inference. Apart from the
fact that I repeatedly acknowledged that the General Counsel and the
Union had the burden of proof on the issue, this argument conflates two
unrelated legal concepts. This is illustrated by reference to one of the
cases I cited on the adverse inference principle, Martin Luther King Sr.
Nursing Center, supra. In that unfair labor practice case, the Board
affirmed the administrative law judge’s decision to apply an adverse
inference against the respondent for failing to call any witnesses. It is
clear that the Board did not see the result as involving any shifting of
the burden of proof. In a case involving the drawing of a negative
inference from the failure of a defendant to produce a required timber
license, the Supreme Court long ago warned of the error of becoming
“confounded” by confusing this sort of inferential analysis with the
ultimate burden of proof in the proceeding, a burden that continued to
reside with the plaintiff. U.S. v. Denver & RGR Co., 191 U.S. 84, 92
(1903).
17 I do note, however, that their actual content supports the rationale
underlying the adverse inference that I drew. In particular, the resume
prepared by the Company for use in bidding for contracts described
Phillips as “Team Leader/Supervisor” for the “RCC Family of Compa-
nies.” (Jt. Exh. 2, p. 2.) The Company’s choice of these descriptors
tends to undercut its claim in this proceeding that the foremen were
mere straw bosses of the type excluded from statutory supervisory
status.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD726
Forsyth Electric Co., 332 NLRB 801, 818 (2000), vacated 69
Fed. Appx. 164 (4th Cir. 2003).
In this case, it is undisputed that the Company created and
possessed the job description. That description was directly
relevant to the central issue in the representation proceeding;
indeed it may reasonably be assumed to have delineated the
Company’s view of the precise issues of authority under scru-
tiny in this proceeding. The Company’s interest would ordinar-
ily be to produce the document it had created that most directly
addressed the powers and authority of its own foremen. Fi-
nally, the Company offered no explanation for the failure to
produce the job description, despite having now been afforded
multiple opportunities to produce the document and having
observed the impact of its failure to produce it on my earlier
decision-making process. As the prerequisites for the drawing
of an adverse inference are all met, I do not hesitate to apply
this traditional principle of evidentiary analysis.
Many years ago, the Supreme Court observed that, “[t]he
production of weak evidence when strong is available can lead
only to the conclusion that the strong would have been ad-
verse.” Interstate Circuit, Inc. v. U.S., 306 U.S. 208, 226
(1939). Here, counsel for the Company chose to rely on Puza’s
testimony about the issue under scrutiny while withholding the
document that Puza had written for this employer that formed
much of the basis for that testimony and that would have pos-
sessed compelling probative value on the issue since it was
written for purposes unrelated to this litigation and could have
shed great light on the parties’ dispute. The ongoing choice not
to produce the one document that purports to set forth a com-
prehensive description of the Company’s own conception of the
nature and duties of the foremen’s job continues to lead me to
the conclusion that the job description contains a description of
that job that is adverse to the Company’s position in this litiga-
tion.18
One additional matter regarding the documentary evidence
needs to be addressed. In his brief in support of exceptions,
counsel for the Company contends that my application of the
adverse inference doctrine was incorrect because the record
revealed that counsel for the General Counsel possessed a copy
of the foremen’s job description. He cites transcript pages 99-
100, which consist of portions of a discussion among counsel
and me, as well as, testimony by Baer. There are several diffi-
culties with this argument. At the outset, it is important to note
that counsel does not suggest that the attorney for the Union
had been furnished with a copy of the document. It will be
recalled that the foremost importance of the supervisory status
issue in this case is the potential determinative impact on the
outcome of the representation election. The General Counsel
has no position on this issue and his attorneys did not and do
not represent the Union’s position on the matter.
Beyond this, careful study of the transcript relied on by
counsel for the Company does not support his interpretation.
The discussion in question actually begins at page 97 of the

18 However, as in my original decision, I continue to base my ulti-
mate findings and conclusions on a mosaic of evidence as described in
this decision. The adverse inference is simply one significant piece of
that mosaic.
transcript, during the testimony of Baer. Counsel for the Gen-
eral Counsel indicates that he wishes to introduce documents
that were provided to him by the Company pursuant to a sub-
poena. He seeks a stipulation in this regard, indicating that the
documents are job descriptions. I ask counsel for the Company
whether these are “authentic company documents.” (Tr. 99.)
Counsel for the Company sidesteps the question, stating in part
that, “[e]xactly what they are, what timeframe they apply to, I
don’t know.” (Tr. 99.) He offers to confer with his client.
After some further inconclusive discussion among the lawyers,
counsel for the General Counsel asked Baer if the documents in
question were the Company’s “written job descriptions for jobs
in the facility in Southampton.” (Tr. 100.) Baer responds, “[i]t
appears to be, but to be perfectly honest with you, I don’t ever
remember this.” (Tr. 100.) At that point, counsel for the Com-
pany sought a recess and I granted the request. After the re-
cess, counsel for the General Counsel advised that, “after con-
sulting with the Respondent, I’ve decided that I am not going to
offer [the materials] into evidence.” (Tr. 100.) The examina-
tion of Baer then moved on to other matters.
It is apparent from a close reading of the entire discussion
that counsel for the Company never established that counsel for
the General Counsel possessed the job description for the fore-
men’s position.19 In fact, when shown the documents in coun-
sel for the General Counsel’s possession, Baer was unable to
identify them at all. The record fails to establish that counsel
for the General Counsel possessed the document at issue.
Finally, I note that the thrust of counsel for the Company’s
argument seems to be that it would be error to draw an adverse
inference if the document in question was also in the possession
of the General Counsel. In my view, this confuses the nature of
the analytical principle I employed with the imposition of sanc-
tions for failure to produce evidence that had been subpoenaed.
If a party fails to comply with a subpoena, the trier of fact may
impose an adverse inference as a sanction for the noncompli-
ance. McAllister Towing & Transportation Co., 341 NLRB
394, 396 (2004), enfd. 156 Fed. Appx. 386 (2d Cir. 2005). In
that event, the fact that the party actually had complied with the
subpoena would certainly be a complete defense. In this case,
nobody has sought imposition of any sanction for noncompli-
ance with a subpoena and I have not imposed any such relief.
Instead, I have examined the entirety of the evidence and drawn
the appropriate inferences from what was presented and what
was not presented. The simple and inescapable fact remains
that, despite having multiple opportunities to provide the trier
of fact with the document that may best represent the Com-
pany’s non-litigation based view of the status and responsibili-
ties of the foremen, the Company has chosen not to provide the
document and has also chosen not to present any explanation in
support of that decision. From this, applying longstanding and
wise principles of jurisprudential analysis, I infer that the
document contained a vision of the scope and nature of the

19 I do not mean to suggest that this represented a failure on the part
of counsel. There was no reason at this early stage of the trial to think
that this would assume the importance that counsel now ascribes to it.
RCC FABRICATORS, INC. 727
foremen’s job that is adverse to the constricted picture of that
job painted in the Company’s trial testimony.20
Having examined the documentary evidence,21 it is now im-
portant to turn to the testimony, particularly the testimony that
reveals the manner in which the foremen actually functioned at
the Southampton facility. I will begin this analysis with a de-
scription of the foremen’s working conditions and daily rou-
tines. Then, I will address the key areas of assignment of work
and imposition of discipline.
To start with some basics, it is interesting to note that the
foremen were provided with their own desks in Baer’s office.
Earley testified that, “I’m not a desk person.” (Tr. 505.) As a
result, he did not use his desk. By contrast, Phillips spent a
great deal of time at his desk, usually while ordering the many
parts needed for the manufacturing process. As Pohubka de-
scribed it, “Like I was done with a job, I’d have to go find
[Phillips] for another job. If I have to go up to his office, you
know, usually he’s on the phone ordering parts.” (Tr. 174.)
As with the provision of desks, both foremen were also is-
sued company credit cards. Perhaps more significantly, these
cards were not merely for their own use on company business.
Both foremen provided uncontroverted testimony that they also
issued the cards to other employees whom they were assigning
to tasks involving purchase of supplies or equipment for the
facility.
With regard to timeclocks, it appears that the foremen were
not treated alike.22 Earley always punched a timeclock. Ac-
cording to Puza, Phillips was not required to punch the clock
for a period of “close to a year.”23 (Tr. 654.) Interestingly,
Phillips confirmed that he was not required to punch in until,
“[w]hen all this stuff came about.” (Tr. 141.) Asked to be
more precise about the timing, he testified that he began to be

20 For a good example of the difference between the drawing of an
adverse inference for failure to comply with a subpoena versus an ad-
verse inference from the failure to produce evidence that one would
expect to have been produced at trial, see the administrative law judge’s
decision in Commercial Cabinets, Case 7–CA–45023, 2002 WL
31758368, at p. 4 (2002), enfd. 89 Fed Appx. 511 (6th Cir. 2004)
(judge rejected the General Counsel’s request for adverse inference for
failure to produce documents sought by subpoena, but drew adverse
inference from the respondent’s failure to offer those same documents
into evidence to shed light on a significant issue in the case).
21 There is one additional piece of documentary evidence that sheds
a bit of light on the foremen’s job title and scope of authority. After the
trial in this case, the Company filed a Motion to Reopen the Record to
admit the decision of the New Jersey Appeals Tribunal regarding Po-
hubka’s denial of unemployment benefits. Over objection, I granted
this motion. In that decision, which followed a telephonic hearing
during which Baer, Santos, and Pohubka testified, the appeals examiner
made factual findings regarding the events of Pohubka’s discharge.
Based on the evidence presented to her, she characterized Baer as the
“shop supervisor” and Phillips as Pohubka’s “immediate supervisor.”
This is simply another example of the use of the term “supervisor” to
describe the Company’s foremen.
22 It may well be that the disparity reflected Phillips’ long history
with the RCC Family of Companies. By contrast, Earley was only
hired after the Southampton facility was already in production.
23 Santos indicated that this subject was controversial. He noted that
he asked Baer about it, and Baer told him Phillips, “doesn’t have to
punch a time clock.” (Tr. 589.)
required to punch the clock, “[p]robably right at the same time”
as the Union’s first organizational meeting occurred. (Tr. 142.)
This meeting was held on October 9, 2002.24
Although there were disparities regarding documentation of
the foremen’s own time and attendance, both foremen were
actively involved in the supervision and documentation of other
employees’ time and attendance. Phillips testified without
contradiction that he possessed the authority to certify the start
time of an employee who had not punched in. Earley provided
clear testimony regarding his colleague’s role in supervising
time and attendance:
Every morning he [Phillips] would check the cards to make
sure everybody was here. Because he checks to make sure
they punched in, make sure they were here. That was like a
common thing.
(Tr. 560.) Additionally, an employee, Brian Van Nordwick,
testified that, for some period during the time at issue, employ-
ees would fill out a weekly timesheet to show what tasks they
had performed and for how long they had performed them.
These were submitted to Baer and Phillips, who would log in
the hours. Baer confirmed this arrangement, testifying that,
Phillips and Earley would verify the employee timesheets on a
daily basis, “because they knew what each man worked on.”
(Tr. 435.)
The Company maintained a practice of holding production
meetings on a weekly basis. Baer testified that these were at-
tended by himself, along with Plant Manager Tanzola, Vice
President Puza, Controller Santos, Quality Assurance Manager
Thomashefsky, and the two foremen. Baer reported that the
foremen were active participants in the meetings, going so far
as to observe that, “[a] lot of times, they would know where
they stood on a particular project better than I did.” (Tr. 452.)
Puza’s testimony also shed light on the nature of the foremen’s
role at these meetings. He noted that one topic for discussion
would be the addition of more employees to handle a given
project. In such cases, the foremen were asked, “who would
you guys like to have in there?” (Tr. 658.)
In addition to the top-level production meetings, the foremen
frequently met with Baer to discuss plant operations. Indeed,
the content and frequency of these discussions was so striking
that, in my original decision, I chose to refer to the communal
decision-making process involving these three men as constitut-
ing a “troika.” Counsel for the General Counsel asked Baer if,

24 As I observed in my original decision, this illustrates the caution
that must be employed when examining the Company’s evidence on the
issue presented in this remand. There are instances where it appears
that the Company took certain actions designed to make the foremen
appear to possess less stature than they had actually been accorded. It
is reasonable to infer that the decision to begin requiring Phillips to
punch the clock and the timing of that action represented a response to
the Union’s organizational effort. Another such example concerns the
question of whether the foremen should be allowed to participate in
meetings with the representative of the competing union. As discussed
in my original decision, management initially ordered the foremen,
along with other managers, to refrain from attending such meetings.
Subsequently, for reasons never explained, the foremen were instructed
to attend the meetings.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD728
“generally each morning you asked the foremen who is work-
ing on what project.” (Tr. 93–94.) Baer agreed that this was
his practice. Employee Van Nordwick provided further insight
into this process, testifying that
Gene [Baer] would go around the shop mostly observing
what’s going on in the shop, conferring with Bud [Phillips]
and Butch [Earley] about jobs that need to be worked on;
what would have to be worked on first to meet a required
deadline.
(Tr. 337.)
It is undisputed that both foremen worked alongside the pro-
duction employees. However, their responsibilities included far
more. Thus, when counsel for the Union asked Baer if the
foremen “directed groups that worked with them,” Baer re-
sponded, “[y]es, sir.” (Tr. 116.) Part of that process involved
the inspection of the work performed by the employees. For
example, Pohubka testified that Phillips inspected his com-
pleted work approximately 80 per cent of the time. Similarly,
he reported that when he worked on the structural steel side of
the facility doing such tasks as “cutting steel,” Earley would
inspect his work. (Tr. 176.) In addition to the inspection func-
tion, employees provided testimony that the foremen would
respond to their questions about the work process and would
train the employees.
Because of the nature of their job responsibilities, the fore-
men spent a great deal of time directing, inspecting, and in-
structing the employees. As Phillips put it
I usually go around and make rounds, see who’s working and
if they need something or, you know, to inform them what to
do, you know, if they run out of something to do.
(Tr. 481.) Pohubka described the nature of the foremen’s role
in similar terms, reporting of Phillips, that
[s]ometime’s he’d work, sometimes he was just like oversee-
ing everything . . . . Just walk around and make sure every-
body was working, seeing like if they were doing their job
right.
(Tr. 171.) Indeed, Phillips noted the magnitude of this aspect
of his position as it related to Pohubka himself, commenting,
perhaps hyperbolically, that “sometimes I would spend half the
day hunting him.” (Tr. 483.)
Not surprisingly given their involvement in daily oversight
and evaluation of the employees’ work, the foremen were also
asked to rate their employees. Vice President Puza testified
that, in September 2002, a meeting was convened. As he de-
scribed it:
We had Butch and Bud there. And we had told them that we
were going to start letting people go. And, we wanted input
from them as to who were the performers, who were not the
performers.
(Tr. 646.) Puza noted that the purpose was to “just basically
get a characterization of all the people” from Phillips and Ear-
ley. (Tr. 648.)
In addition to regular oversight of the production employees,
the foremen provided important information from management
to those employees. Such information would include the deci-
sions taken at the production meetings. It also included the
solicitation of both overtime and consent to voluntary layoff.
Van Nordwick noted that it was a “common occurrence” for
Baer, Phillips, and Earley to asked him if he wanted to work
overtime. (Tr. 340.) Baer confirmed that both Phillips and
Earley were involved in this activity, noting that Earley did so
“[f]airly regularly.” (Tr. 430.) He also reported that the re-
quests were always voluntary since it was unclear whether the
Company maintained any requirement for mandatory overtime
on the part of its employees.
Insight into Phillips’ role in these matters was also provided
in the testimony of Maurice Lopez, an employee whose layoff
status was an issue in the original proceeding. Lopez testified
that Baer and Phillips came to him to inform him of his layoff.
Tellingly, Lopez went on to report that he would later telephone
the Company to inquire about the chances of a recall to duty.
When he spoke to the controller, Santos “just passed me
through [to] Bud [Phillips].” (Tr. 323.)
With this broad context as explanatory background, it is now
necessary to assess the foremen’s role in the two most impor-
tant areas of supervision involved in this remand, the power to
assign and the power to discipline employees. Turning first to
the power to make assignments, it is undisputed that the fore-
men possessed this authority to some degree. As counsel for
the Company noted in his brief in support of exceptions, “Ear-
ley and Phillips also had some responsibility for giving assign-
ments or telling employees what they should be working on.”
(R. Br. Exh., p. 14.) The contest here concerns the scope of this
admitted job function.
In their testimony, Baer and Earley attempted to downplay
the nature of the foremen’s role in this regard. Thus, Baer con-
tended that the foremen’s assignments were “more of a sponta-
neous thing” that occurred when they “didn’t track me down”
to seek permission. (Tr. 94.) Baer gave the example of a need
to unload a truck. In such a case, the foremen would select,
“whoever was closest, probably.” (Tr. 94.) Earley was even
more emphatic, reporting that
I work and help keep the guys busy, whatever Mr. Baer gave
me to do. I told the guys, I relayed the message. I’m just like
a messenger boy.
(Tr. 501.)
I do not credit these narrow depictions of the foremen’s role
in assigning work. They are contradicted by much other testi-
mony, including additional testimony provided by both Baer
and Earley themselves.25 For example, Baer made a major
retreat from his just-cited testimony that had been provided on
the first day of the trial. When he was recalled as a witness
much later in the case, he noted that both foremen played a

25 Furthermore, as I noted in my original decision, Earley’s testi-
mony must be viewed with caution as it was very much influenced by
his understandable gratitude toward his employer. As he made clear on
the witness stand, he felt that the Company had saved his career by
hiring and promoting him after his previous long-term employment had
ended when that employer went out of business. It was evident that
Earley’s feelings were sincere and heartfelt, but they also caused him to
shade his testimony in order to express his gratitude.
RCC FABRICATORS, INC. 729
major role in the assignment process. When speaking of his
discussions with Earley, he testified that
we would determine that if one—if one employee was more
suited to drilling, and another employee was more suited to
doing layout work . . . and we would make the determination
who should do what.
(Tr. 428.) He observed that he followed the same procedure
with Phillips.
Baer’s view of the respective roles of the superintendent and
foremen was crystallized in his testimony that the three men
operated by “consensus,” and that, if the foremen “had as-
signed people to do certain jobs, I wouldn’t come behind them
and say, ‘No, don’t do that; do something else.’” (Tr. 428.)
Examining Baer’s testimony as a whole, I conclude that, as
with so much else in his relationship with his foremen, he
viewed the decision-making process as a troika.26 Many as-
signment decisions were made by mutual agreement. Signifi-
cantly, however, Baer conceded that if a foreman made a uni-
lateral assignment, he would not intervene to alter that decision.
Similarly, while Earley provided a highly self-effacing de-
scription of his role as that of a mere messenger boy, he also
gave other testimony that showed it in quite a different light.
For example, he noted that, with regard to the steel operation,
“I run the shop for RCC, sir.” (Tr. 501.) And, in a rather ex-
tensive bit of testimony, he described how he would pick who
worked on his structural steel crew. Taking obvious pride in
the importance and difficulty of his work with structural steel,
he noted that the selection of his crew involved critical issues of
competence and safety. He made his assignments based on
such factors as the particular worker’s familiarity with the use
of cranes and knowledge of blueprints. (See, Tr., at pp. 506–
508.)27
As one would expect, Earley’s colleague also provided de-
tailed and illuminating testimony about the foremen’s role in
assigning work.28 He reported that he discussed work assign-

26 Interestingly, the foremen also had a similarly cooperative deci-
sion-making pattern of behavior between themselves. Thus, Earley
testified that, “if [Phillips] needed somebody, he could have it. Or, if I
needed somebody, or if I needed help, he would help me.” (Tr. 542.)
27 At the end of this detailed description of his assignment duties,
Earley backtracked a bit, noting that Baer “usually” gave him the em-
ployees who were “always” on the job on the structural steel side. (Tr.
508.) I discount this testimony as being both inconsistent with the
immediately preceding description and reflective of Earley’s previously
described desire to support his employer’s position. Furthermore, even
if credited in full, the testimony reveals that Baer did not always par-
ticipate in the assignment process with Earley, he simply did so “usu-
ally.”
28 As I explained in my original decision, I give Phillips’ testimony
greater weight than that of Earley. Aside from Earley’s bias, I noted
that, at the time he testified, Phillips was no longer employed by the
RCC Family of Companies. As counsel for the Company observed,
Phillips’ employment had been terminated, “due to a ‘mutual agree-
ment’ between himself and the Company.” (R. Br. ALJ, p. 12.) He had
no apparent interest in shading his testimony to support one side or the
other. This was reflected in the fact that his testimony did support one
side on some issues and the other side as to other matters in contro-
versy.
ments with Baer, but did not always consult before making
such assignments. As he explained
[i]f they’re working with me and they’re done with that task
and I know what task that needs to be done next and every-
thing, then I’ll move them to another task so that we can keep
the production of the equipment going. Where if I had to run
and find [Baer] every time that I needed to move somebody,
then I’d be running to find him all day instead of doing any-
thing.
(Tr. 153.) For this reason, Phillips testified that he made his
own assignment decisions “a couple times a day, probably.”
(Tr. 153.) Indeed, when asked if making a job assignment on
his own authority would be something likely to get him “in
trouble,” Phillips unhesitatingly answered in the negative. (Tr.
160.)
While I recognize that testimony from the production em-
ployees is necessarily based on their subjective perceptions
regarding the foremen’s power to assign, I was nevertheless
impressed by the uniformity of their opinions regarding the
power to assign. Thus, Jesse Iannaco reported that Earley gave
him assignments a couple of times each day. Another em-
ployee, Duane Ashcraft, was asked who gave him his work
assignments on a “day-to-day basis.” (Tr. 622.) He responded
that the assignments were made by Phillips, except on the rarer
occasions when he was working on the steel side of the opera-
tion. In that case, his assignments came from Earley.
Van Nordwick summed up the assignment process in the fol-
lowing terms:
Once we finished a project, we would either find Bud or
Butch to see what needed to be done next; and then they
would assign you to the next task.
(Tr. 338.) Indeed, Van Nordwick was asked why he concluded
that the foremen were part of management, and he posed this
pithy rhetorical question in response:
If they weren’t part of—my understanding—if they weren’t
part of management, why would they be handing out these
work assignments?
(Tr. 353.)
Considering the entire body of testimony on the issue of job
assignment, I conclude that both foremen regularly made indi-
vidual decisions to assign work to employees. They did this
over and above their practice of consulting with Baer to make
other such decisions by consensus. Furthermore, the assign-
ments they made on their own authority and initiative ran the
gamut from the simple (such as sweeping the floor) to the com-
plex (such as operating a crane in the dangerous process of
moving heavy pieces of steel). Regarding frequency, I con-
clude that both men assigned work to employees on a daily
basis, often more than once each workday.
Finally, it is necessary to closely examine the power and au-
thority of the foremen in the area of discipline. The credible
evidence demonstrates that the two men did possess such au-
thority, both in taking action on their own individual initiative
and in functioning as part of the cooperative management team
with Baer that I have previously characterized as the “troika.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD730
To begin, I note that the Company’s management witnesses
testified that the foremen did not possess disciplinary authority.
Baer asserted that, “[t]he only discipline that was administered
came through me.” (Tr. 427.) Puza contended that the foremen
had no authorization to administer discipline. Rather, their role
was to tell Baer about their “displeasure with an employee’s
performance,” and leave it to Baer to “have to handle it.” (Tr.
654.)
The great weight of the evidence does not support this depic-
tion of the foremen’s lack of disciplinary authority. The con-
trary evidence is particularly compelling. It begins with the
testimony of employees who reported that the foremen did, in
fact, have the authority to discipline them. Thus, Baer and
Puza’s testimony was matched by Van Nordwick and Iannaco’s
directly contrary claims. For example, Iannaco was asked who
had the power to impose discipline. He responded, “[j]ust
Gene, Bud, or Butch.” (Tr. 288.)
Given this conflicting testimony, it is fortunate that the re-
cord is enhanced by two particularly probative types of evi-
dence. First, as will shortly be described, Baer and Puza’s de-
scription is contradicted by the actual behavior of the parties in
a number of specific instances. The general claims of Baer and
Puza cannot withstand comparison with these particular exam-
ples of contrary practices. Second, the evidence as to discipli-
nary authority does not consist simply of conflicting testimony
presented by the parties. Instead, key insight is provided by
reference to an extensive set of documentary records. I am
referring to the numerous corrective action notices issued by
the Company to errant employees, as well as, other disciplinary
records maintained by the Company.29 Many of these docu-
ments were created by the Company at a time when this litiga-
tion was not on the horizon and they were all issued for impor-
tant corporate purposes other than those under consideration in
this case. As such, they represent the best unfiltered, unbiased,
and reliable view of the Company’s disciplinary system in op-
eration.
Turning first to the specific instances illustrating the posses-
sion of disciplinary authority by the foremen, three examples
stand out. On September 11, 2002, Phillips issued a corrective
action notice to Matthew Rettberg. (GC Exh. 4, p. 28.) This
was signed by Phillips on the line for the “Supervisor’s Signa-
ture.” It was also signed by Rettberg and Earley. Earley added
the notation that he was signing as a “witness.” The incident
arose when Rettberg objected to a job assignment he had been
given by Phillips. In voicing his complaint, he made a com-
ment suggestive of ethnic bias. Phillips testified about his
thought process in confronting this problem, noting that the
Company had a zero tolerance position with respect to dis-
crimination and that
we hire all types of people, doesn’t matter what color they are
or anything else because, you know, we’re all people and we
just work together to try to get the job done.

29 These forms are located at GC Exh. 4. The parties stipulated that
these constitute all of such forms issued to employees from October 1,
2001 through March 31, 2003. In addition, R. Exh. 2 is another correc-
tive action form that was issued to Maurice Lopez in place of a non-
existent layoff notification form.
(Tr. 158.) As a result, he decided to issue a corrective action
notice to Rettberg.
Phillips testified that he then telephoned Baer who was away
from the facility. He described the phone call, reporting that
I explained to him what was going on and everything, and
told him that, you know, that we’d already went through the
zero tolerance thing because it was our stand, the company’s
stand, and I was going to take and do this, write this correc-
tive thing up and everything, and I just wanted to check with
him first and make sure that that’s the way he wanted it
handled and everything. And then I did it and signed it and
turned it in.
(Tr. 158.) When Baer was questioned about this incident, he
agreed with counsel that, “[o]n that particular date, at least, Mr.
Phillips has authorization to take corrective action of a discipli-
nary nature against Mr. Rettberg.” (Tr. 132.)
While not entirely free from ambiguity, these events cer-
tainly tend to demonstrate that Phillips had the authority to take
disciplinary action on his own initiative. While the misconduct
was serious, there was no emergency presented. If Phillips
lacked disciplinary authority, he could have simply written a
memorandum for Baer’s further consideration. Alternatively,
he could have immediately taken the matter to higher manage-
ment officials present at the facility. Instead, he chose to write
and issue the disciplinary action himself. I recognize that he
elected to phone Baer and explain what he was doing. In my
view, this does not demonstrate any lack of authority. Instead,
it represents the common human desire to seek validation of an
important decision from someone whom one trusts and re-
spects. Had the phone call been evidence of a lack of authority,
one would have expected that Baer would have given Phillips a
directive to seek assistance from other members of manage-
ment, delay action until his return, or sign the form on Baer’s
behalf.30 Instead, Baer did not express any doubts about either
Phillips’ wisdom or his authority to act on behalf of the Com-
pany.
Two related incidents shed even more light on Phillips’ role
in the Company’s disciplinary processes. These both involved
Pohubka.31 On July 2, 2002, Phillips discovered Pohubka and
another employee sleeping on the job. He ordered them to
return to work. About an hour later, Pohubka confronted Phil-
lips in an angry manner, complaining about his assignment to a
welding project, dropping a heavy piece of metal, and cursing.
Phillips told Pohubka to report to Baer’s office. Pohubka testi-
fied regarding what transpired next, relating that Phillips told
Baer that he was “sick of my attitude.” (Tr. 183.) Without
directing any questions to either Pohubka or Phillips, Baer in-

30 The Company had no policy preventing one official from signing
a disciplinary action on behalf of another. Tanzola signed three such
forms in that manner, twice on behalf of Puza, and once for Santos.
(GC Exh. 4, pp. 7, 21, & 39.)
31 As will shortly be described, I generally credit Pohubka’s largely
uncontroverted description of the procedural history of his suspension
and discharge. While I found him to be an unreliable witness regarding
his workplace misconduct and the reasons for his discipline, his ac-
count of how the discipline was meted out to him is credible.
RCC FABRICATORS, INC. 731
structed the men to report to the front office. The three men
met with Plant Manager Tanzola. Tanzola did not ask Pohubka
any questions. Baer remained silent. Phillips told Tanzola that
he was sick of Pohubka’s attitude. Pohubka testified that, upon
hearing Phillips’ complaint, “[t]hat’s when Dave Tanzola said
if he had a problem with me, he should write me up.” (Tr.
184.) At that point, Pohubka was directed to return to work.
He further testified that, 10 minutes later, he met with Phillips
and Baer in their office. He was issued a corrective action no-
tice for a 3-day suspension. (GC Exh. 4, p. 24.) While this was
signed by Baer, tellingly, it was handed to Pohubka by Phillips.
(Tr. 252.)
Just as Phillips had been the primary initiator of Pohubka’s
suspension, he had a similar role in Pohubka’s discharge from
employment on October 11, 2002. Events began with a con-
frontation between Baer and Pohubka over Pohubka’s poor
work habits. Shortly thereafter, Pohubka had an exchange with
Phillips. Pohubka testified about what transpired next.
POHUBKA: That’s when Bud said he’s sick of my atti-
tude and he sent me up to Gene’s office.
COUNSEL: How did you respond?
POHUBKA: I walked up to Gene’s office. I didn’t even
say anything.
COUNSEL: Did Bud go with you?
POHUBKA: Yes.
COUNSEL: What happened once you were in Gene’s
office?
POHUBKA: He told Gene that he’s sick of my attitude,
and then Gene looked at me and said they no longer
needed my services.
(Tr. 197–198.) Pohubka’s discharge was memorialized on a 2-
page corrective action notice that was signed at the bottom of
each page by Baer, Phillips, and Earley. (GC Exh. 4, pp. 26–27.)
Turning now to the records, I have examined the disciplinary
reports in an effort to discern patterns of authority. Plant Man-
ager Tanzola signed one disciplinary form on his own account.
(GC Exh. 4, p. 16.) He signed two such forms on behalf of
Vice President Puza and another one on behalf of Controller
Santos. (GC Exh. 4, pp. 7, 21 and 39.) Baer was the sole sig-
natory on five forms. (GC Exh. 4, pp. 9, 15, 22, 24, and 33.)
Phillips signed one form as the supervisory official with Ear-
ley’s signature as a witness. (GC Exh. 4, p. 28.) One form was
signed by both an indecipherable writer and Phillips. (GC Exh.
4, p. 41.) The remaining 10 forms were each signed by Baer,
Phillips, and Earley. (GC Exh. 4, pp. 1, 10, 13, 14, 26, 29, 30,
40, and 42; R. Exh. 2.)
Review of this documentary record shows that the most com-
mon single form of discipline issued to employees was a joint
corrective action notice signed by the members of what I have
denominated as the troika: Baer, Phillips, and Earley. This is
consistent with the general pattern of evidence confirming
Baer’s testimony that he preferred to act by consensus among
himself and his foremen. Furthermore, this understanding of
the meaning of the joint signatures was explicitly confirmed by
Phillips. When asked in what capacity he had been signing
these notices, he answered
I mean, what it was, it was me, Butch and Gene would agree
on, you know, we all showed, signed it, showing that we
agreed with whatever was happening. If it was, you know,
this corrective action notice or another corrective action no-
tice, then you know, so we were all in agreeance.
(Tr. 489.)
Examination of individual notices lends further support to
this explanation. For example, the troika signed a corrective
action notice for a 5-day suspension and final warning issued to
Van Nordwick. (GC Exh. 4, p. 43.) There are several reasons
why this particular document is illuminating. Van Nordwick’s
misconduct did not directly involve any of the troika members.
Rather, he engaged in insubordinate and disrespectful conduct
toward the Company’s quality assurance manager, Pat
Thomashefsky. She filed a written account. (GC Exh. 4, p.
44.) In that account, she described the events and noted that
she informed Baer and Tanzola of what had happened. Never-
theless, the disciplinary form was not signed by either
Thomashefsky or Tanzola. Instead, it was signed by Baer,
Phillips, and Earley.
Additionally, it is interesting that Baer signed the notice on
November 13, 2002, but Phillips and Earley did not add their
signatures until the following day, a fact that is inconsistent
with any attempt to characterize their role as simply serving as
witnesses. All of this provides impressive support to corrobo-
rate the practices of management reflected on the corrective
action notices as described in Phillips’ testimony recounted
above. The Company took pains to obtain the concurrence of
both foremen in the disciplinary decision involving an em-
ployee’s misconduct that had not occurred in their presence and
did not involve them in any direct way. The manner in which
the Company proceeded to suspend Van Nordwick is strongly
indicative of the possession of meaningful and powerful disci-
plinary authority by both foremen.
Another explicit example of the troika in action is contained
in a corrective action notice issued to Shawn Mace on October
14, 2002. (GC 4, Exh. 14.) The offense involves absenteeism
and tardiness. Baer, Phillips, and Earley each signed the form.
The sanction was merely a verbal warning.32 In explanation,
the three signatories noted that they “understood there is a
problem w/his family vehicle being wrecked and we will ex-
cuse for this week.” (GC Exh. 4, p. 14.) (Boldface added.)
This constitutes an open and obvious example of the troika in
operation.
I recognize that the Company has attempted to provide an al-
ternate explanation for the presence of the three signatures on a
plurality of its corrective action notices. Thus, for example,
Baer testified that Phillips and Earley signed the layoff notice
for Lopez because, “I normally like to have witnesses.” (Tr.
423.) Earley tried to make the same point, claiming that his
signature kept appearing on these documents because, “I would
witness that the guy did sign it, and this is what was said in a
meeting.” (Tr. 508.)

32 This is an illustration of a perplexing and recurring phenomenon
in the life of a labor law judge. All sorts of employers maintain an
Orwellian practice of issuing so-called “verbal” warnings that are me-
morialized in writing.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD732
There are a number of reasons why I decline to accept this
explanation. First, Earley could not be signing merely as a
witness to what was said at the disciplinary meetings. He ad-
mitted that he was not present at the meeting at which Pohubka
was discharged. Yet, he signed both pages of that corrective
action notice. Lopez testified that he was laid off by Baer and
Phillips. Although Earley was not there, he signed the layoff
notice anyway. And, I have already noted that he signed Van
Nordwick’s suspension notice on the day after Baer signed it.
Perhaps most tellingly, Baer, Phillips, and Earley signed a cor-
rective action notice issued to Iannaco. (GC Exh. 4, p. 10.)
Baer signed it on November 13, but the two foremen signed it
the following day. Baer testified that he could not recall why
they signed that notice. Beyond this, he testified that, “when I
talked to Mr. Iannaco about this particular offense, that it was
in the presence of Mr. Dave Puza.” (Tr. 127.) Yet, Puza, the
actual witness, did not sign the form. Furthermore, there is
simply no evidence that the Company required the signature of
witnesses. Baer signed five corrective action notices without
any cosigners. Tanzola signed one form by himself as well.
Indeed, there is not even a requirement that the issuing official
sign the form. It will be recalled that Tanzola signed forms on
behalf on both Puza and Santos. The signatures of those offi-
cials were never added to the forms at any subsequent time.
Finally, I note that on one occasion the evidence is clear that
Earley did sign as a mere witness. The evidence is clear be-
cause Earley wrote the word, “witness,” next to his signature.
As I opined in my original decision, this constituted an excel-
lent example of the old adage that the exception can sometimes
prove the rule.33 When Earley was desirous of limiting the
purpose of his signature he was clearly capable of doing so.34
In sum, the credible evidence shows that Phillips and Earley
imposed discipline on employees, both by direct individual
action and through consensus decision making with Baer. It is
also evident that the nature of the disciplinary decisions was far
more than minor correction of workplace mistakes. Both fore-
men were active participants in decisions to suspend, discharge,
and lay off employees.
II. SCOPE AND CONTEXT OF THE LEGAL ANALYSIS ON REMAND
It is now necessary to apply the Board’s principles of legal
analysis to the facts and circumstances outlined above regard-
ing the status of the two foremen. While the Board’s remand
order makes specific mention of the need to consider its recent
decisions in Oakwood Healthcare, 348 NLRB 686 (2006);
Croft Metals, 348 NLRB 717 (2006); and Golden Crest Health-
care Center, 348 NLRB 727 (2006), it is appropriate to begin
with some mention of the overall context in which these mat-
ters arose.

33 I cannot be certain as to why Earley chose to sign that form as a
witness. In his testimony, he was never really asked to explain this. It
may be that he disagreed with Phillips’ choice of discipline in that
instance.
34 Counsel’s attempt to explain this away borders on the fatuous. He
suggests that Earley’s decision to write the word “witness” on
Rettberg’s form, “was not a conscious one.” (R. Br. Ex., p. 26.) Does
counsel mean to suggest that Earley was in a coma when he made this
notation?
As the Board has observed, “[s]upervisory status is one of
the most common issues” in labor law, and its decisions are
“replete with findings of supervisory and nonsupervisory
status.” McCullough Environmental Services, 306 NLRB 565
(1992), enfd. denied 5 F.3d 923 (5th Cir. 1993). The issue
arises because Section 2(3) of the Act excludes “supervisors”
from the statute’s coverage. Section 2(11) contains a detailed
definition, providing that a supervisor is
any individual having the authority, in the interest of the em-
ployer, to hire, transfer, suspend, lay off, recall, promote, dis-
charge, assign, reward, or discipline other employees, or re-
sponsibly to direct them, or to adjust their grievances, or ef-
fectively 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 situation is made difficult by the recognition that the
correct outcome when applying this definition “has not always
been readily discernible by either the Board or reviewing
courts.” Oakwood, supra at 687. In particular, there has been
considerable tension between the Board’s views of the statutory
requirements for supervisory status and those of the Supreme
Court. The Court has rejected the Board’s interpretations of the
provisions of the Act regarding aspects of the definition in a
number of cases, NLRB v. Yeshiva University, 444 U.S. 672
(1980); NLRB v. Healthcare & Retirement Corp. of America,
511 U.S. 571 (1994); and NLRB v. Kentucky River Community
Care, 532 U.S. 706 (2001). As the Board has observed, the
common theme of these decisions was the Court’s conclusion
that the Board had “reached too far” by imposing an “overly
narrow construction” of the Act’s definition of a supervisor.
Oakwood, supra at 687. In other words, in each of those cases,
the Board had erred by failing to include the affected employ-
ees within the statutory exclusion. It was this persistent prob-
lem that the Board chose to address in a comprehensive fashion
through its decisions in Oakwood, Croft, and Golden Crest. As
a result, the overall context mandates application of appropriate
caution to avoid applying the statutory definition of supervisory
status in a manner that is overly restrictive. In other words, the
objective of the analysis must be to effectuate the Congres-
sional intent to exclude from the Act’s coverage “such indi-
viduals whose fundamental alignment is with management”
since this purpose “is at the heart of Section 2(11).” Oakwood,
supra at 690.
Before venturing further, it is necessary to make one addi-
tional comment on the Supreme Court precedents. In his brief
in support of exceptions, counsel for the Company argued that
it was error for me to find that Phillips and Earley exercised
independent judgment when making job assignments “based on
experience, skill, and the known abilities of others.” (R. Br.
Ex., p. 21.) He cited a number of Board decisions, the most
recent of which was Hausner Hard-Chrome of KY, Inc., 326
NLRB 426, 427 (1998) (leadman’s assignments based on “em-
ployee’s skills and experience with respect to particular tasks”
are merely routine and do not demonstrate independent judg-
ment). This was the Board’s position. However, that position
RCC FABRICATORS, INC. 733
was squarely rejected by the Supreme Court in Kentucky River,
supra. As Justice Scalia hypothesized for the majority:
What supervisory judgment worth exercising, one must won-
der, does not rest on “professional or technical skill or experi-
ence”? If the Board applied this aspect of its test to every ex-
ercise of a supervisory function, it would virtually eliminate
“supervisors” from the Act. [Citation omitted.]
Kentucky River, supra at 715. In light of the Court’s conclu-
sions, I will continue to assess the statutory element of inde-
pendent judgment regardless of whether that judgment “is in-
formed by professional or technical training or experience.”
Kentucky River, supra at 708.
As a further preliminary consideration, I note that other as-
pects of the law regarding the issues in this remand proceeding
have also evolved since I issued my original decision. In par-
ticular, there have been significant developments in the Board’s
articulation of the meaning of the statutory language concern-
ing a supervisor’s power to “effectively recommend” any of the
enumerated functions listed in Section 2(11). There has also
been some development in the Board’s explanation of its views
of the common law concepts of agency and apparent authority.
I find it necessary and appropriate to consider the evolution of
these concepts in the intervening period because, “[t]he Board’s
usual practice is to apply new policies and standards retroac-
tively ‘to all pending cases in whatever stage.’”35 SNE Enter-
prises, Inc., 344 NLRB 673 (2005). [Citations omitted.] As a
result, these concepts will be addressed below.
Finally, I have already noted that when I issued my original
decision, the status of the foremen was simply one piece of a
much larger legal puzzle. I simplified the focus of my decision
making, finding that the foremen possessed the primary super-
visory indicia of power to assign and authority to discipline
employees. As a result, I did not address the possible existence
of other primary indicia of supervisory status. It is important to
note, however, that both the Union and the General Counsel
argued that additional indicia of such status were present.
Thus, in his opening statement, counsel for the Union con-
tended that Phillips and Earley possessed the power “to hire,
fire, recommend hiring, recommend firing, impose discipline,
[and] recommend discipline.” (Tr. 14.) Similarly, in his brief
to the Board, counsel for the General Counsel contended that
Phillips, “assigned and directed employees and disciplined
employees, including effectively recommending discipline and
layoff of employees.” (GC Ans. Br., p. 24.) Thus, this remand
provides the opportunity to examine additional elements of
supervisory status that were litigated by the parties.
In Oakwood, the Board provided the labor law community
with a complete formulation of the legal standard, holding that

35 The Board makes an exception for situations that would lead to
manifest injustice. Pattern Makers (Michigan Model Mfrs.), 310
NLRB 929, 931 (1993). The points discussed in the recent cases that I
will apply do not involve any significant departure from preexisting
law, but simply represent the evolving process of development of
precedent through case adjudication. There is no unfairness in applying
these teachings to the facts of this case.
individuals are statutory supervisors if (1) they hold the au-
thority to engage in any 1 of the 12 supervisory functions
(e.g., “assign” and “responsibly to direct”) listed in Section
2(11); (2) their exercise of such authority is not of a merely
routine or clerical nature, but requires the use of independent
judgment; and (3) their authority is held in the interest of the
employer. Supervisory status may be shown if the putative
supervisor has the authority either to perform a supervisory
function or to effectively recommend the same. The burden
to prove supervisory authority is on the party asserting it.
Oakwood, supra at 686–687. [Footnotes and some internal
quotation marks omitted.]
I will now examine the components of this analytical frame-
work that are pertinent to the issues presented in this case.
III. THE FOREMEN’S POWER TO ASSIGN AND EFFECTIVELY
RECOMMEND ASSIGNMENTS
As another administrative judge observed in what was per-
haps the first post-Oakwood judicial decision, the Board in
Oakwood took the opportunity of “restating certain principles
and clarifying others.” South Jersey Healthcare, Case 4–RC–
21179 (November 1, 2006), at p. 20. Among the most signifi-
cant of these clarifications was the Board’s analysis of the
power to assign. It held:
[W]e construe the term “assign” to refer to the act of designat-
ing an employee to a place (such as a location, department, or
wing), appointing an employee to a time (such as a shift or
overtime period), or giving significant overall duties, i.e.,
tasks, to an employee. . . . It follows that the decision or effec-
tive recommendation to affect one of these—place, time, or
overall tasks—can be a supervisory function.
Oakwood, supra at 688. The Board also provided a useful illus-
tration of the concept of appointment to significant overall
tasks. It noted that such an assignment would include, for ex-
ample, a directive to an employee to restock shelves. However,
it did not encompass lesser instructions within this broad cate-
gory, such as telling an employee to restock one type of com-
modity before another one. In further explication of the power
to assign, the Board noted that a key consideration was whether
the nature of the assignments imposed a significant effect on
the employee’s terms and conditions of employment. Once
again, it provided a useful illustration, noting that some work-
places contain “plum assignments” and “bum assignments.”
Oakwood, supra at 689. The power to order an employee to
perform such tasks is an example of the power to impose a
significant effect on a worker’s job conditions.
Turning now to Phillips and Earley, I conclude that they did
not possess the power to appoint an employee to a shift or
worktime. The Company only operated one shift. The foremen
routinely solicited employees for overtime work, but the uncon-
troverted testimony established that this was always voluntary.
There is no evidence that any manager possessed the authority
to order mandatory overtime. In Golden Crest, supra at 728,
the Board clearly held that “the authority merely to request that
employees work overtime does not constitute the power to as-
sign within the meaning of the Act.” [Italics in the original.]
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD734
The situation is different with regard to the designation of an
employee to a particular place within the facility. It will be
recalled that the Company’s operations were divided into two
departments, the manufacture of railroad equipment and the
work with structural steel components. These production proc-
esses took place on different sides of the facility in what were
described as separate “long bays.” (Tr. 153.) The evidence
demonstrated that Phillips and Earley possessed the power to
assign employees to either wing of the facility and also pos-
sessed the authority to effectively recommend such assign-
ments. This is perhaps best illustrated by the undisputed testi-
mony that the foremen would consult with each other and trade
employees between the railroad and steel operations as the need
arose. As Earley put it, “if [Phillips] needed somebody, he
could have it. Or, if I needed somebody, or if I needed help, he
would help me.”36 (Tr. 542.)
At this workplace, the power to assign to a location is inter-
woven with the power to assign to overall tasks. As a result, I
will now turn to an assessment of this component of the power
to assign. It will be recalled that much of the management
authority in the operation of the railroad and steel production
processes was exercised by what I have chosen to call the
troika. As Baer explained, he liked to function through “con-
sensus” with his foremen. (Tr. 428.) He explained the opera-
tion of this management style in the area of job assignments as
follows:
[W]e would determine that if one—if one employee was
more suited to drilling, and another employee was more suited
to doing layout work . . . and we would make the determina-
tion who should do what.
(Tr. 428.) This is clearly either the power to assign employees
to significant overall tasks or its close cousin, the power to
effectively recommend such assignment.
However one chooses to characterize the operation of the
troika, it is also evident that each foreman had the power to
assign significant overall tasks independent of the consensus
style of management. As Baer explained, in cases where a
foreman “had assigned people to do certain jobs, I wouldn’t
come behind them and say, ‘No, don’t do that; do something
else.’” (Tr. 428.)
It is also noteworthy that the overall task assignments did not
merely consist of choices from among a number of routine,
repetitive chores. Instead, they ran the gamut from simple to
complex, and even dangerous, duties. In other words, these
were just the sort of plum and bum assignments mentioned by
the Board in Oakwood. This was well illustrated in the incident
involving Phillips’ issuance of a corrective action notice to
Rettburg. It will be recalled that this disciplinary measure was
imposed after Phillips had ordered Rettburg to sweep the shop
and Rettburg complained that other employees with less senior-
ity should be performing this distasteful task. Unfortunately,
Rettburg choose to sully his complaint by linking it to the eth-

36 This contrasts with the lack of similar authority of the lead persons
in Croft. The Board noted that, “[t]he lead person’s supervisor, not the
lead person, decides whether to borrow or temporarily transfer an em-
ployee from another part of the plant.” Croft, supra at 718.
nicity of the less senior employees. The vehement nature of his
ill-chosen protest vividly illustrates both the existence of bum
assignments and Phillips’ ability to affect employees’ quality of
work life through exercise of the assignment power. Similarly,
it was Pohubka’s equally inappropriately vehement response to
his assignment by Phillips to a welding project that played a
role in leading to his suspension. The controversies arising
from some of Phillips’ decisions in this area vividly illustrate
his possession of the power to impose a dramatic impact on the
work life of the production employees through his exercise of
the assignment power.
In Oakwood, the Board emphasized that the analysis of the
power to assign remains fact specific. In making that assess-
ment here, I have found it useful to compare the facts with
those described in Oakwood and those outlined in Croft. In
Oakwood, a key indicator of the quality of the assignments
being made by the charge nurses involved the matching of the
needs of the workplace with the “skills and special training” of
the employees. Oakwood, supra at 689. Thus, the fact that a
charge nurse was required to match a patient’s needs with the
particular expertise of the available nursing staff was deemed a
critical aspect of the analysis. By contrast, in Croft, while the
lead persons made some shifting of jobs on the production line
in order to finish projects or meet goals, there was no evidence
regarding the “factors, if any, taken into account by leads in
reallocating work.” Croft, supra at 721. Furthermore, the jobs
in Croft involved repetitive tasks “requir[ing] minimal guid-
ance.” Infra at 721. As a result, in contrast to the charge
nurses’ duties, the nature of the assignment role for the lead
persons in Croft did not rise to the level of a primary indicator
of supervisory status.
The evidence in this case establishes that the quality of the
assignment process involved in the foremen’s job duties was
much closer to that of the charge nurses in Oakwood than the
lead persons in Croft. As Earley definitively described it for
his part of the shop
structural steel is kind of a, you know, touchy job. You’ve
got to have somebody who knows how to use squares, you
know, and has to have a little bit of knowledge what they’re
doing with stuff . . . . And, you’re using cranes on it. I don’t
want to see anybody get hurt, so you’ve got to watch who
you’re using and why. And when you’ve got 20-ton cranes in
the shop, somebody goes to flip a beam, and they flip it off on
the floor on somebody, you know, I, it’s very, it’s kind of a
delicate thing.
(Tr. 506–507.) Earley goes on to provide an example of his
reasoning in making assignments, describing that he made as-
signments to an employee named Jesus based on his extensive
job experience and knowledge of blueprints. It is evident that
this type of exercise of the power to assign employees involves
careful evaluation of the skills and abilities of the available
staff and the demands of the particular work to be performed.
Applying the Board’s test, I find that Phillips and Earley pos-
sessed a power to assign that required “the degree of discre-
tion” that rose above “the routine or clerical.” Croft, supra at
721. (Footnote omitted.)
RCC FABRICATORS, INC. 735
Because of the nature of the assignment process employed
by the foremen, I further conclude that it involved the applica-
tion of independent judgment within the meaning of the Act.
Returning to the comparison with the charge nurses in I, I note
that the Board relied on the fact that each charge nurse, “weighs
the individualized condition and needs of a patient against the
skills or special training of available nursing personnel,” in
finding that the assignment power involved the application of
independent judgment. Oakwood, supra at 692. Phillips and
Earley engaged in the identical analytical process, albeit in the
very different context of a specialized manufacturing facility.
Their assignments were based on these important considera-
tions, not on instructions from higher authority, detailed com-
pany procedures, or application of existing policies, rules, or
contractual provisions.
At this juncture, it is appropriate to discuss the current position
of the General Counsel on the question of whether Phillips’
power to assign work required the exercise of independent judg-
ment. In his answering brief to the Board, the General Counsel
asserted that, “[c]learly, Phillips exercised independent judgment
when he assigned work.” (GC Ans. Br., p. 24.) However, in his
brief on remand, the General Counsel now advises that, “we no
longer allege” that Phillips used independent judgment when
making assignments.37 (GC Br. Rem., p. 13.)
The change in the General Counsel’s position is based on his
view of the impact of the Oakwood trilogy. I have given this
careful thought. Respectfully, I must disagree with this reading
of the Oakwood cases. To begin with, I have already noted the
significance of the context in which the Oakwood cases arose.
In his remand brief, the General Counsel correctly states that
the Oakwood cases were decided “in light of the Supreme
Court’s decision in NLRB v. Kentucky River Community Care,
532 U.S. 706 (2001).” (GC Br. Rem., p. 2.) It will be recalled
that, in Kentucky River, the Court was harshly critical of the
Board’s prior restrictive interpretation of the scope of the inde-
pendent judgment language contained in the statutory definition
of supervisory status. Indeed, the Court opined that the Board’s
narrow reading of that language was “directly contrary to the
text of the statute.” Kentucky River, supra at 715. It is apparent
that the Oakwood trilogy was the Board’s effort to ensure that
its interpretation of the independent judgment requirement was
no longer “unduly circumscribed.” Oakwood, supra, slip op. at
p. 3. As a result, it would be counter-intuitive to conclude that
a finding of independent judgment that was legally correct un-
der the Board’s pre-Oakwood standards would somehow no
longer be justified in light of the Oakwood cases.
While the General Counsel’s contention is counter-intuitive,
it is, nevertheless, still possible. The General Counsel bases his
conclusion that such is the case on a belief that the record fails

37 In his letter submitted in lieu of a brief, counsel for the Union
states that the Union continues to believe that “the record in this case is
sufficient to establish that Phillips exercised ‘independent judgment.’”
(In this letter, counsel for the Union mistakenly assumes that the Gen-
eral Counsel no longer contends that Phillips was a statutory supervi-
sor. In fact, the General Counsel continues to assert that Phillips pos-
sessed statutory supervisory status due to his possession of authority to
discipline employees through the exercise of independent judgment.
See, GC Br. Rem., pp. 13-15.)
to explain the nature of Phillips’ decision-making process when
making assignments. For two reasons, I cannot agree. First,
the record regarding Phillips is sufficiently developed to permit
the drawing of informed conclusions regarding the considera-
tions involved in Phillips’ assignment decisions. Second, the
record regarding Phillips cannot be viewed in isolation, but
must be considered along with the comprehensive evidence
developed that demonstrated that Phillips’ colleague and co-
equal as foreman employed the precise type of independent
judgment regarding assignments outlined by the Board in Oak-
wood.
Turning first to Phillips, it will be recalled that his depart-
ment of the Company was engaged in the manufacture of so-
phisticated equipment for the railroad industry. As Baer de-
scribed it, “we build and market railroad maintenance equip-
ment and it can be a variety of applications. But I mean any-
thing from tie exchangers . . . to specialized equipment.”38 (Tr.
91.) Daloisio testified that Phillips was brought to New Jersey
because of his wide-ranging knowledge of all aspects of this
manufacturing process. The Company’s edition of Phillips’
resume described in detail the breadth and extent of Phillips’
technical knowledge in this area, including many aspects of the
“[f]abrication and design of machinery.” (Jt. Exh. 2, p. 2.) It
will be recalled that this was written in the context of describ-
ing for potential customers Phillips’ role as “Team
Leader/Supervisor.” Finally, I note that Baer delineated the
precise nature of the assignment decision-making process. He
testified that he and Earley
would determine that if one—if one employee was more
suited to drilling, and another employee was more suited to
doing layout work, you know; we would just talk it out with
the people we had available, and we would make the deter-
mination who should do what.
(Tr. 428.) Of crucial importance, several minutes later, Baer
was asked additional questions regarding this testimony as
follows:
COUNSEL: Did you have—did Mr. Phillips meet with
you to assign work?
BAER: Yes.
COUNSEL: Were those meetings similar in nature to
the meetings you’ve described with Mr. Earley?
BAER: Yes.
(Tr. 432.) In fact, counsel for the Company correctly summa-
rized the evidence on this issue of the nature of the assignment-
related decisional process, noting that “the record shows that
Phillips and Earley discussed with Baer which employees
should be assigned to which tasks in a routine manner based on
their skill, experience, and knowledge of other employees’
abilities.”39 (R. Br. Ex., p. 19.)
Any lingering doubt as to the nature of the decision-making
process is dispelled when one examines the evidence regarding

38 Van Nordwick testified that a tie exchanger is a machine that is
designed to travel along the track removing and replacing railroad ties.
39 The “routine manner” referenced by counsel refers to the fre-
quency of the meetings of the troika, not to the nature of the decisions
being made in those meetings.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD736
the other foreman whose status is equally at issue in this case.40
I have already recounted how Earley described in detail the
factors involved in making these assignment decisions, includ-
ing the employees’ abilities to operate equipment such as
cranes, read blueprints, and perform dangerous tasks safely. It
is important to recall that there is no dispute as to the fact that
Phillips and Earley held the same position with the same duties
and responsibilities. This point was made particularly clearly
in counsel for the Company’s posthearing brief, where it was
noted concerning Phillips and Earley that, “at all relevant times,
they performed the same work and had the same functions and
responsibilities.” (R. Br. ALJ, p. 12.)
Ultimately, I have compared the assignment process employed
by Phillips and Earley with the assignment decision-making
processes described by the Board in Oakwood and Croft. In
Oakwood, the charge nurses made discriminating judgments
about the abilities of the available nursing staff and the specific
needs of the patients on the hospital ward. In Croft, the lead
persons sporadically shifted employees among a range of “repeti-
tive tasks.” Croft, supra at 721. Based on the full evidentiary
picture presented by the General Counsel and the Union, I con-
clude that Phillips and Earley engaged in a mental process far
closer to that of the Oakwood charge nurses than that of the Croft
lead persons. Because both Phillips and Earley employed inde-
pendent judgment when assigning and effectively recommending
assignments, I find that the General Counsel and the Union have
met their burden of establishing that the foremen utilized a proc-
ess involving independent judgment when exercising their power
to assign within the meaning of the Act.
Upon consideration of the credible evidence, I find that Phil-
lips and Earley regularly assigned employees to significant over-
all tasks and departments within the facility. The nature of those
assignments imposed a material effect on the employees’ terms
and conditions of employment. In making these choices, the
foremen applied a sophisticated analytical process to match skills
and abilities with work tasks and safety considerations.41 That
independent analytical process was not significantly constrained
by any instructions from higher officials or by company rules or
procedures. As a result, the foremen possessed primary indica-
tors of supervisory authority within the meaning of the Act: the
power to assign and to effectively recommend assignments.

40 Indeed, I suspect that the General Counsel’s belief as to the quan-
tum of evidence produced on this point stems from the limited nature of
his role in this case. Because he, quite properly, takes no position as to
Earley’s possession of supervisory status, it is possible that he has
failed to take into consideration the evidence regarding Earley’s spe-
cific description of the foremen’s decision-making process for assign-
ing employees to overall tasks.
41 Safety considerations weigh heavily in the Board’s assessment of
the quality of the assignment power. For example, see American River
Transportation Co., 347 NLRB 925, 925 (2006) (towboat pilots’ re-
sponsibility for “safe transport of the vessels, cargo, and the crew” is an
important factor in establishing supervisory status).
IV. THE FOREMEN’S POWER TO DISCIPLINE AND EFFECTIVELY
RECOMMEND DISCIPLINE
The record in this case shows that the foremen possessed two
variant forms of the disciplinary power.42 First, there are specific
instances that involved the unilateral imposition of disciplinary
measures by a foreman. In addition, there is an impressive quan-
tum of testimony and documentary evidence establishing that the
foremen had a very substantial role in the disciplinary functions
of the collective form of leadership that I refer to as the troika. I
will discuss each of these elements of the disciplinary power in
turn.
A clear demonstration of the foremen’s unilateral authority to
impose disciplinary action is the Rettberg incident. It will be
recalled that Phillips chose to issue a formal corrective action
notice to Rettberg resulting from certain discriminatory com-
ments made by Rettberg when protesting a job assignment. I
have already noted that this situation did not represent an emer-
gency and that Phillips could have simply chosen to report the
incident to Baer or to have sought the intervention of other higher
ranking company officials. Although he did telephone Baer to
discuss the matter, he acted unilaterally in issuing the notice.
That action was never questioned by his superiors. Indeed, Baer
clearly affirmed counsel’s observation that Phillips had been
authorized “to take corrective action of a disciplinary nature
against Mr. Rettberg.” (Tr. 132.)
There is additional persuasive evidence that the foremen pos-
sessed the unilateral authority to impose discipline. That evi-
dence stems from actions taken at the highest level of manage-
ment. In particular, Pohubka provided testimony about the pro-
cedural circumstances of his disciplinary suspension. He re-
ported that Phillips informed Plant Manager Tanzola about his
misconduct. Tanzola, while in Pohubka’s presence, responded
by instructing Phillips that, “if he had a problem with me, he
should write me up.” (Tr. 184.) Although the ensuing suspen-
sion notice was signed by Baer, it was issued to Pohubka by Phil-
lips himself.
I recognize that the evidence does not show that Phillips util-
ized his unilateral authority to impose discipline on any sort of
regular basis. In addition, the record does not demonstrate that
Earley ever imposed unilateral discipline. This is not decisive.
As the Board noted in citing a Sixth Circuit decision with ap-
proval:
the employee is [not] required to regularly and routinely ex-
ercise the powers set forth in the statute. It is the existence
of the power which determines whether or not an employee
is a supervisor.
Arlington Masonry Supply, 339 NLRB 817, 818 (2003), citing
NLRB v. Roselon Southern, Inc., 382 F.2d 245, 247 (6th Cir.
1967). See also West Penn Power Co. v. NLRB, 337 F.2d 993,

42 Sec. 2(11) lists a number of different aspects of the disciplinary
power, including the authority to suspend, lay off, discharge, or disci-
pline employees. As I will discuss, Phillips and Earley possessed au-
thority to perform or effectively recommend each of these functions.
For the sake of simplicity, I will refer to the general power to discipline
as including each of these particular aspects of that authority as out-
lined in the Act.
RCC FABRICATORS, INC. 737
996 (3d Cir. 1964). Perhaps an ultimate illustration of this
precept was recently provided by the Board in Mountaineer
Park, Inc., 343 NLRB 1473 (2004), a case that I will discuss in
detail later in this decision. Suffice it to say at this point that
the Board found that an employee possessed supervisory status
based on the power to effectively recommend discipline despite
the fact that the employee had never actually made any disci-
plinary recommendations. I conclude that the evidence estab-
lishes that Phillips and Earley possessed the authority to impose
discipline on a unilateral basis as illustrated by the incidents
involving Rettberg and Pohubka.
I will now address the legal significance of the disciplinary
procedures employed by the management troika consisting of
Baer, Phillips, and Earley. The record contains the entire corpus
of documentation of the Company’s disciplinary actions during
the period under consideration. It is striking that the single larg-
est category of such documents consists of notices signed jointly
by the three troika members. The nature of these disciplinary
actions ranges from so-called verbal warnings through suspen-
sions, a layoff, and, ultimately, the discharges of four employees.
Furthermore, I have credited Phillips’ explanation of the signifi-
cance of the three signatures on each form. As he described it,
the three signed the forms to demonstrate that “we agreed with
whatever was happening.” (Tr. 489.) This is entirely consistent
with Baer’s description of his preference for management by
“consensus.” (Tr. 428.) It is also consistent with an analysis of
the content of the forms as detailed earlier in this decision. I
readily find that the foremen were full, regular, and active par-
ticipants in the tripartite process of decision making regarding the
entire range of employee discipline.
I have given consideration to the question of how to categorize
the tripartite operation in terms of the Board’s standards for as-
sessment of supervisory status. Does the foremen’s role in the
troika constitute the power to discipline, or is it a variant of the
power to effectively recommend discipline? While I conclude
that the best answer is that it constitutes the power to discipline, I
will also discuss the alternative construction.
At the outset, I note that the Board does not require that the
power to discipline must be held unilaterally to constitute a pri-
mary indicator of supervisory status. For example, in Florida
Southern College, 196 NLRB 888, 889 (1972), the Board found
that a college’s dean of students was a statutory supervisor be-
cause he was a member of a committee of four whose function
was to “make [effective] recommendations regarding the hiring
or firing of faculty members.” Because the committee as a whole
possessed supervisory powers, the dean was deemed to be a su-
pervisor. Further reflection on this subject demonstrates the wis-
dom of this conclusion. For example, while a member of the
House of Representatives has only one vote out of 435, it can
hardly be contended that he or she is not a legislator. Of course,
an example closer to home would be the recognition that a mem-
ber of an appellate administrative tribunal or court is no less an
adjudicator because he or she may cast only one of the votes
necessary to affirm or reverse a prior judgment. Finally, an ex-
amination of the purpose underlying the existence of the statutory
exclusion of supervisors reveals the propriety of classifying a
member of such a troika as a possessor of supervisory authority.
As the Board reiterated in Oakwood, supra at 692, the “heart” of
the statutory provision is the desire to exclude from a collective-
bargaining unit those employees “whose fundamental alignment
is with management.” Employees who regularly vote on the fate
of others accused of misconduct are so aligned. It would under-
mine the goals of the collective-bargaining process to hold oth-
erwise.
Although I have concluded that the participation of Phillips
and Earley in the disciplinary decisions made by the troika con-
stituted possession of the power to discipline, I will also examine
the related power to effectively recommend discipline. In the
period since my original decision, the Board has provided addi-
tional guidance concerning the concept of the effective recom-
mendation of discipline.
Initially, I note that the Supreme Court has observed that the
power to make effective recommendations is given equal weight
in the statute with the unilateral possession of any of the primary
indicators of supervisory status. As the Court explained:
The statutory definition of “supervisor” expressly contem-
plates that those employees who “effectively . . . recom-
mend” the enumerated actions are to be excluded as super-
visory. 29 U.S.C. § 152(11). Consistent with the concern
for divided loyalty, the relevant consideration is effective
recommendation or control rather than final authority.
NLRB v. Yeshiva University, 444 U.S. 672, 684 at fn. 17
(1980).
In two cases decided after my original decision, the Board
has provided pertinent illustrations of the operation of this con-
cept of effective recommendation of discipline. The issue in
Progressive Transportation Services, 340 NLRB 1044 (2003),
was whether a deck lead supervisor named Yozzo fell within
the statutory exclusion. Yozzo was clearly a working “supervi-
sor,” performing all of the duties of the other dispatchers.
However, she also issued 33 disciplinary notices to those other
dispatchers. These consisted mostly of warnings, but did in-
clude two suspensions. The credited evidence showed that
Yozzo did not prepare the notices by herself. Rather, she
brought the disciplinary issues to the attention of her own supe-
rior, “who then [told] Yozzo what level of discipline to impose
and how to draft the notices.”43 340 NLRB at 1044. Based in
large measure on the fact that Yozzo’s superior did not conduct
any independent investigation once Yozzo proposed discipline,
the Board found that Yozzo possessed the power to effectively
recommend discipline.
One year later, in Mountaineer Park, Inc., 343 NLRB 1473
(2004), the Board addressed the supervisory status of two assis-
tant housekeeping supervisors, Fullerton and Guzzo. These
employees spent half of their workday performing housekeeping
work and the remainder engaged in supervisory duties. Their
superior testified that he had received between three to five rec-
ommendations for employee discipline from Fullerton. All of
these recommendations were approved. He had never received
any such recommendations from Guzzo. Relying on the holding

43 The evidence showed that Yozzo did issue discipline to one em-
ployee without first consulting her own superior. Her superior subse-
quently rescinded that discipline. This stands in illuminating contrast
to Phillips’ independent issuance of discipline to Rettburg.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD738
in Progressive Transportation Services, supra, the Board found
that both Fullerton and Guzzo possessed the power to effectively
recommend discipline. The Board’s primary rationale was that
both were authorized to initiate the disciplinary process and their
superior did not conduct any independent investigation once it
was so initiated. While that superior did review each recommen-
dation and added “his own judgment and insight,” he placed
weighty reliance on the recommendations. 343 NLRB at 1476.
If Yozzo and Guzzo possessed supervisory status based on
their significant roles in the effective recommendation of disci-
pline, there can be little doubt that Phillips and Earley fall within
the same legal category. If one characterizes the operation of the
troika as consisting of Baer’s imposition of discipline upon the
recommendation of Phillips and Earley, the case falls squarely
within the Board’s recent precedents just described. In addition,
the record demonstrates that the foremen possessed the power to
make such effective recommendations of disciplinary action apart
from their activities in the troika. The most obvious example
concerns the firing of Pohubka. Pohubka testified that, on the
day of his discharge, Phillips told him that he was sick of his
attitude. The men reported to Baer’s office. Once in the office,
“[Phillips] told Gene [Baer] that he’s sick of my attitude, and
then Gene looked at me and said they no longer needed my ser-
vices.” (Tr. 198.) That was the end of Pohubka’s employment
with the Company. There can be no more powerful illustration
that the foremen’s recommendations were effective—they were
implemented without any additional investigation by higher lev-
els of management. I find that the foremen possessed the power
to effectively recommend discipline both through their participa-
tion in the troika and by their own unilateral action in reporting
instances of misconduct to higher levels of management.
One additional matter related to the issue of disciplinary au-
thority remains to be addressed. In his brief in support of the
Company’s exceptions, counsel for the Company cited my failure
to explicitly discuss whether the foremen’s authority to recom-
mend and impose discipline included the element of independent
judgment. In particular, he contends that the foremen’s participa-
tion in the troika demonstrated the lack of such judgment since
“only individuals who can act independently with respect to dis-
cipline have the power to discipline.” (R. Br. Ex., p. 25.)
In my view, this formulation confuses the power to act with
the requirement of exercising a particular degree of judgment in
deciding what action to take. It is not the action which must be
independent, it is the judgment that sets the action in motion that
must have certain characteristics of independence. This is most
obviously illustrated by the specific enumeration of the power to
effectively recommend the various supervisory functions de-
scribed in the Act. It is inherent in such a formulation that the
person possessing such power to effectively recommend is not an
independent actor. Nevertheless, if that person applies independ-
ent judgment to the process of making the recommendation, su-
pervisory status is achieved. As the Board explained in Moun-
taineer Park, supra, at 1476, “Section 2(11) requires only that an
individual have the authority to ‘effectively recommend’ disci-
pline—not that he or she have the final authority to impose it.”
In Oakwood, the Board provided further guidance to the labor
law community regarding the meaning of independent judgment.
It held that the elements of such a degree of decision-making
include the power to act or recommend action “free from the
control of others,” by forming an opinion through the process of
“discerning and comparing data.” Oakwood, supra at 693. Be-
yond this, to constitute independent judgment, the decision-
making must rise above the level of the routine or clerical and
must not be “dictated or controlled by detailed instructions,”
whether such instructions come from higher officials, company
policies, or the provisions of a collective-bargaining agreement.44
Oakwood, supra.
With these guidelines in mind, it is evident that the authority
possessed by Phillips and Earley involved the application of in-
dependent judgment. During the relevant period, the Company
simply did not possess any handbook or formal disciplinary rules.
In an affidavit, Baer reported that the Company also did not have
any progressive disciplinary policy. Instead, “[w]e determine on
a case-by-case basis what type of discipline to issue.” (R. Motion
for Partial Summary Judgment, Ex. C, p. 4.) Both Baer and San-
tos testified that written disciplinary procedures were not effectu-
ated until approximately 1 or 2 months before the trial of this
case. Similarly, counsel for the Company noted that there were
no instructions about how to use the corrective action forms. (R.
Br. Ex., p. 6, fn. 2.) This is not a case where disciplinary deci-
sions were constrained by detailed rules and procedures or by the
terms of a progressive disciplinary process. Deciding whether to
impose discipline and what form of discipline to impose was
essentially an unrestrained exercise of discretion on the part of
the decision makers. It represents the classic case of decision
making application of independent judgment.
The nature of the judgments being made is constant regardless
of whether the decisionmaker is acting unilaterally or as part of
the troika. In either case, no company policy, rule, or procedure
of any type was available for consultation. Thus, when any
member of the troika came to a conclusion as to which position
to take with regard to the imposition of discipline, he did so by
the exercise of independent judgment. Once again, it is impor-
tant not to be misled by the fact that the troika member possessed
only one vote among three. As with my hypothetical appellate
judges, the point is not that it takes more than one vote. Instead,
the key factor is that the voter engages in an independent mental
exercise in deciding which way to cast that vote. In making dif-
ficult choices with far-reaching consequences up to and including
termination of employment, Phillips and Earley employed ex-
actly the sort of decision-making process intended by Congress to
fall within the statutory exclusion for supervisors.
In sum, I find that the General Counsel and the Union have
fulfilled their burden of demonstrating that Phillips and Earley
possessed the power to discipline and effectively recommend
discipline both through unilateral action and by their participation
as decisionmakers in the management troika that imposed the
plurality of disciplinary actions on behalf of this Employer. In
exercising those powers, the foremen acted on their employer’s
behalf and operated by utilizing independent judgment. As a

44 This does not represent any major departure from prior precedent.
For example, in Wackenhut Corp., 345 NLRB 850, 854 (2005), the
Board found a lack of independent judgment when the discipline im-
posed was mandated by “detailed orders or regulations issued by the
employer.”
RCC FABRICATORS, INC. 739
result, they possessed these primary indicia of supervisory status
within the meaning of the Act.
V. THE FOREMEN’S POWER TO RESPONSIBLY DIRECT EMPLOYEES
In its remand of this case, the Board instructed me to consider
whether the foremen possessed the power to responsibly direct
the members of the workforce as defined in Oakwood, supra at
691–692. Under that definition, if the foremen have employees
serving under them whom they instruct as to which tasks shall be
undertaken next and who shall perform them, they may meet the
requirements for this primary indicator of supervisory status. In
that event, it is also necessary to determine whether the foremen
are accountable for the performance of the subordinate employ-
ees such that there is the possibility of adverse consequences to
the foremen for any failure of performance by those subordinates.
If so, the foremen possess the power to responsibly direct em-
ployees. If they exercise that power in the interests of their em-
ployer and through the application of independent judgment, they
are supervisors within the meaning of the Act.
It is clear that Phillips and Earley possessed the first of these
prerequisites. They routinely determined which jobs should be
undertaken next and who should undertake them. As Van Nord-
wick put it
Once we finished a project, we would either find Bud or
Butch to see what needed to be done next; and then they
would assign you to the next task.
(Tr. 338.) Furthermore, for the same reasons I have discussed
in detail regarding the foremen’s power to assign, the directions
they gave their subordinates involved the application of inde-
pendent judgment, including the matching of work tasks with
known skills and aptitudes of the workers and the assessment of
issues of efficiency and safety.
Although the foremen’s position involves many of the required
aspects of responsible direction, I cannot conclude that this indi-
cator of supervisory status is present. The record is barren of
evidence showing that Phillips and Earley were held accountable
for the success or failure of their subordinate employees. Noth-
ing in the evidence establishes whether “there is a prospect of
adverse consequences for the putative supervisor” if there is defi-
cient performance. Oakwood, supra at 692. I recognize that one
reason for this dearth of evidence is the newness of the Company
and the lack of such items as a handbook or written disciplinary
procedures. Where such things have never existed, their absence
from the record cannot be troubling.
In this connection, I note that the single item of existing
documentation most likely to contain such evidence is the job
description of the foreman position that had been written by the
Company’s vice president, Puza. The Company has repeatedly
foregone the opportunity to introduce this document into evi-
dence. I have drawn an adverse inference from this behavior.
This inference has been a decisional factor as to other aspects
of this case, issues where there is significant other evidence that
is consistent with the adverse inference. Here, however, the
adverse inference stands alone. I decline to find that the infer-
ence, by itself, constitutes sufficient evidence to demonstrate
the element of accountability. As a result, I conclude that the
General Counsel and the Union have failed to meet their burden
of presenting evidence sufficient to support a finding that the
foremen possess the power to responsibly direct or effectively
recommend such responsible direction.
VI. REMAINING ISSUES
In my original decision, I concluded that Phillips was an
agent of the Company when he engaged in certain unlawful
conduct consisting of the interrogation of employees and the
creation of an impression that their organizing activities were
under surveillance by the Employer. I based this conclusion on
my finding that the Company had clothed Phillips with appar-
ent authority to act on its behalf, particularly by making him a
conduit of information from management to the work force. In
his brief in support of the Company’s exceptions, counsel for
the Company asserts that I erred in two respects. First, he con-
tends that, although Phillips may have been used as a conduit
and so may have possessed apparent authority, there was no
finding that this authority covered the behavior at issue here.45
Second, he opines that the lack of such authority should be
evident from the fact that Phillips’ communications were at
variance with the Company’s policy toward the organizing
campaign as articulated to the work force by its owner, Da-
loisio.
I will provide additional clarification of my reasoning as to
both of these aspects of the agency issue. In addition, I will con-
sider the issue of agency status in light of a decision issued by the
Board in the period since I made my original decision.
While counsel for the Company does not seriously contest my
finding that Phillips was a conduit of information between man-
agement and staff, he argues that this role was narrowly limited
to job assignment information. As he put it, “the only type of
decision Phillips occasionally relayed to employees related to
work assignments to be completed.” (R. Br. Ex., p. 30.) I cannot
agree. The evidence actually shows that Phillips served as a
conduit of information on a very wide array of topics.
One of the significant work functions of the foremen was the
transmission of information to the workers regarding production
decisions, scheduling of work, and job assignments. Vice Presi-
dent Puza testified that one of the primary purposes of having the
foremen attend the production meetings was so that
in that way, our foremen were informed as to being to talk
to the people and say listen, we’re going to be working so
many hours, you know, notify the loved ones that you’re not
going to be home for an extra two hours a day; or you’re go-
ing to have to work six days a week.
(Tr. 658.) In addition to conveying information about produc-
tion decisions, work schedules, and the need for overtime, Phil-
lips conveyed information about layoffs. For instance, Lopez
testified that it was Phillips who informed him of his layoff.
Beyond this, when Lopez telephoned Santos to ask about the
possibility of a recall to work, Santos “just passed me through
[t]o Bud” for information about this hiring issue. (Tr. 323.)

45 In my original decision, I characterized the subject matter of Phil-
lips’ grant of apparent authority as the “authority to speak on behalf of
management regarding work-related questions.” RCC Fabricators,
Inc., supra at 932.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD740
Phillips also served as a conduit for the Company’s disciplinary
decisions, for example, handing Pohubka his suspension notice.
An overall appraisal of the evidence leads to the conclusion
that the foremen were employed as conduits of information about
the full range of topics of concern to management and workers.
Two broad statements about this practice perfectly illustrate the
point. It will be recalled that, in a bit of self-deprecation, Earley
characterized the foreman’s role as that of a mere “messenger
boy.” (Tr. 501.) While the foremen were far more than that,
there is no doubt that the relay of messages was an integral part
of their role for the Company. This was clearly articulated by
Vice President Puza, who observed
We like to keep our, our employees totally informed. And
we do that through all our companies, and with our foremen.
(Tr. 658.) Thus, the evidence establishes that the foremen,
including Phillips, were regularly utilized by management as
conduits of information to the workers. More specifically, they
were employed as conduits of information about the entire
range of issues regarding the terms and conditions of their em-
ployment.
The legal effect of the Company’s use of Phillips as a conduit
of information about a wide scope of topics related to the em-
ployment of their workers was that the Company clothed him in
apparent authority. The principle is well illustrated in the case of
Zimmerman Plumbing & Heating Co., 325 NLRB 106 (1997),
enfd. in pertinent part 188 F.3d 508 (6th Cir. 1999), where the
Board noted that, as a general proposition
[i]t is well established that apparent authority results from a
manifestation by the principal to a third party that creates a
reasonable basis for that party to believe that the principal
has authorized the alleged agent to perform the acts in ques-
tion. Thus, in determining whether statements made by in-
dividuals to employees are attributable to the employer, the
test is whether under all the circumstances, the employees
would reasonably believe that the employee in question [al-
leged agent] was reflecting company policy and speaking
and acting for management. [Internal quotation marks and
citations omitted.]
325 NLRB at 106.
In Zimmerman, the Board found that foremen attended man-
agement meetings and were privy to the employer’s policies and
objectives. They “acted as the conduits for relaying and enforc-
ing the Respondent’s decisions, directions, policies and views.”
As a result, “given the position in which the Respondent had
placed them, it was reasonable for the rank-and-file employees to
believe that these foremen were reflecting company policy and
acting for management when they engaged in the conduct found
to be unlawful.” 325 NLRB at 106. By the same token, having
clothed Phillips with the identical broad apparent authority to
speak as to the wide range of employment issues, the Company
became responsible for his conduct in interrogating employees
and creating an impression of surveillance among them. Simi-
larly, in Speed Mail Service, 251 NLRB 476 (1980), the em-
ployer was held responsible for the coercive statements made by
someone who was utilized by the employer as a conduit for in-
formation “with respect to such important matters as job assign-
ments and layoffs.”
The second aspect of the Company’s argument on the issue of
agency is the contention that Phillips cannot be considered an
agent of the Company since the conduct at issue was merely
personal behavior and was at odds with the Employer’s actual
position regarding the Carpenters Union’s organizing campaign.
As to the personal aspects of the behavior under scrutiny, the
Board has taken a more realistic approach than simply deferring
to the personal nature of the words used. For example, in Mid-
South Drywall Co., 339 NLRB 480, 481 (2003), Campbell, a
leadman who was found to be an agent of the employer, told two
employees that, with regard to union activities, “if he owned the
business he would close it.” The Board rejected the same argu-
ment made here, holding that
Although Campbell phrased his statement in terms of what
he would do if it was his company, given Campbell’s role as
spokesman for management and the degree to which em-
ployees viewed Campbell as being “in charge” of the job,
we find that the employees would reasonably view Camp-
bell’s statement as authorized by the Respondent or at least
reflecting a shared management view.
339 NLRB at 481. Thus, Phillips’ questions and statements
concerning the organizing meeting held at the pizza parlor may
have contained an element of personal content. Nevertheless,
they could also reasonably be viewed by the employees as be-
ing either directly authorized by management or as conveying
management’s opinions and concerns.
This leads to discussion of counsel’s remaining point, that
management’s views actually differed from the antiunion mes-
sage implicit in Phillips remarks. In his brief in support of excep-
tions, counsel for the Company contends that Daloisio told the
employees that “the Company would stand by any choice that
they made with respect to union representation.” Furthermore,
“[i]t is also undisputed that the Company attempted to make
arrangements for both unions to meet with the employees on
company premises.” As a consequence, “[g]iven this official[ly]
neutral Company policy with respect to union representation, no
reasonable employee would have viewed Phillips’ questions as
representing a negative view held by RCC management with
respect to unions.” (R. Br. Ex., p. 35.)
This is a disingenuous depiction of the Company’s position
regarding the Carpenters Union’s organizing effort. The fact is
that a reasonable employee could readily conclude that, far from
being “neutral,” the Company was opposed to the Carpenters
Union becoming the representative of its work force. At a meet-
ing convened by management, Daloisio conveyed his actual
views quite clearly. As I described it in my original decision,
Daloisio testified that
he went so far as to tell the employees that “the Carpenters
were more—a little more expensive, in terms of their overall
package, than the Laborers Union.” (Tr. 355.) Indeed, he
noted that the employees told him that the Carpenters were
promising wages of $50 per hour. He responded by inform-
ing them that the Laborers had shop agreements with some
components of the RCC family of companies and generally
received between $14 and $17 per hour. He coupled this
RCC FABRICATORS, INC. 741
with the pointed admonition that union representation would
not be a problem so long as any resulting agreement was
“economically advantageous to keep the company going.”
(Tr. 50.)
RCC Fabricators, Inc., 348 NLRB 920, 934 (2006). Beyond
this, the Company’s position was further underscored by the
fact that, only after the Carpenters began their organizing effort,
did it extend repeated invitations to the Laborers to come into
the facility to discuss representation with the employees. In
addition, while it is “undisputed” that the Company offered the
Carpenters Union an opportunity to come into the facility to
address the employees, this was only done “as part of a negoti-
ated agreement to facilitate the representation election.” 348
NLRB 920 fn. 38. As counsel for the General Counsel has
described it, “[b]y allowing the Laborers to have continued
access to employees, the Respondent implicitly supported the
Laborers, which flies in the face of Daloisio’s claim that Re-
spondent maintained a neutral position during the union cam-
paign.” (GC Br. ALJ, fn. 18.)
Phillips’ statements were not inconsistent with the Company’s
viewpoint. Instead, a reasonable employee could readily discern
that the foreman’s statements were congruent with the opinions
of Daloisio and reflected a shared management view of the Car-
penters’ campaign. For example, Phillips was asked if he told
employees that “the employer would go out of business with the
Carpenters.” (Tr. 164.) He responded that this was “probably”
accurate. (Tr. 164.) It is instructive to compare this with Ian-
naco’s testimony that, during a meeting, Daloisio told the assem-
bled employees that “he actually couldn’t afford the Carpenters
Union in there.” (Tr. 284.) The confluence between Phillips’
assertions and the Company’s expressed position on the Carpen-
ters Union reinforces the reasonableness of the conclusion that
Phillips was an agent of the Company when discussing the repre-
sentation issue.
As with the issue of supervisory status, the Board’s views con-
cerning apparent authority have continued to evolve through the
adjudicatory process in the time since my original decision. In
particular, in Facchina Construction Co., 343 NLRB 886 (2004),
enfd. 180 Fed. Appx. 178 (D.C. Cir. 2006), the Board addressed
the agency status of a foreman who had made coercive antiunion
statements.46 As the Board’s reasoning applies directly to the
circumstances of this case, I will quote it at some length:
Here, the evidence demonstrates that the foremen serve as
conduits between employees and management, i.e., that
management routinely communicates with employees
through its foremen and receives information about employ-
ees from its foremen. Employees receive their daily as-
signments and work instructions from the foremen. Fore-
men are responsible for

46 Interestingly, given the great similarity in the facts as will be ap-
parent upon reading the portion of the case about to be quoted, the
administrative law judge found that the foreman was not only an agent,
but also a statutory supervisor. Because of the more limited nature of
the issue in that case, the Board held that it was unnecessary to pass on
the judge’s finding of such supervisory status. See, 343 NLRB at 889,
fn. 4.
overseeing employees’ work and instructing them to redo
work if it is done incorrectly. When the discriminatees were
discharged by the Respondent, it was [the foreman] who in-
formed them of their discharge. If employees need to leave
work early, or need some time off, they inform the foremen.
Foremen regularly report to [the] superintendent about per-
sonnel issues and other problems that arise during the course
of the day. In these circumstances, we conclude that em-
ployees would have reasonably believed that [the foreman]
was speaking on behalf of management when he engaged in
the conduct at issue.
The Respondent argues that the judge’s finding of agency is
precluded because there is no evidence that [the foreman]
was instructed by [the superintendent] to engage in the
above-mentioned conduct. We reject this argument. A
finding of apparent authority here does not turn on whether
[the foreman] was acting pursuant to specific instructions by
the Respondent; rather, it turns on whether the Respondent
placed [the foreman] in a position in which employees could
reasonably believe he was speaking on behalf of manage-
ment. [Footnote and citation omitted.]
343 NLRB at 887.
Finding no meaningful distinction between the facts described
above and the situation I must address in this case, I readily con-
clude that Phillips was clothed in the apparent authority to speak
regarding the wide range of employee concerns relating to the
terms and conditions of their employment. When he engaged in
interrogations and the creation of an impression of surveillance,
reasonable employees were entitled to conclude that his views
were either “authorized by Respondent or at least reflecting a
shared management view.” Mid-South Drywall Co., supra, at
481.
Because of his status as supervisor and agent, I determined that
the Company was responsible for certain statements made to
employees by Phillips on the day following the Union’s organ-
izational meeting at the pizza parlor. In particular, Phillips in-
formed employees that he was aware of the meeting and asked
detailed questions regarding the identity of persons attending the
meeting and about the nature of the discussions at that event. I
found that this behavior, when considered in its full context, con-
stituted the unlawful creation of an impression of employer sur-
veillance of protected activity and unlawful interrogation of em-
ployees in violation of Section 8(a)(1) of the Act. In the period
since my decision, the Board has continued to apply the same
lodestar principles in analyzing such allegations. For example,
regarding interrogations, compare American Red Cross Missouri-
Illinois Blood Services Region, 347 NLRB 347 (2006) (unlawful
interrogation found where, on the day after an organizational
meeting, company official asked employee who had attended that
meeting) with Amcast Automotive of Indiana, 348 NLRB 836
(2006) (questioning found lawful where it did not attempt to
uncover the union sympathies and activities of any employee).
As to the impression of surveillance, see Spartech Corp., 344
NLRB 576 (2005) (employer’s agent’s statement that company
knew who had attended organizational meeting held a day or two
earlier constituted creation of unlawful impression of surveil-
lance); and Dallas & Mavis Specialized Carrier Co., 346 NLRB
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD742
253 (2006) (employer’s manager created improper impression of
surveillance when, 2 days after an offsite organizational meeting,
he told an employee that he was aware of the union’s organizing
effort). Given the continuity of the Board’s approach to these
issues, I continue to conclude that Phillips’ statements were
unlawful.
VII. SUMMARY
Applying the Board’s analytical standards for determination of
supervisory and agency status, including the clarifications enun-
ciated in Oakwood, Croft, and Golden Crest, supra, I conclude
that the General Counsel and the Union have met the burden of
establishing that Phillips and Earley possessed primary indicia of
supervisory status, including the powers to assign, effectively
recommend assignment, discipline (including suspend, layoff,
and discharge), and effectively recommend such discipline. They
exercised these powers on behalf of their employer and did so
through application of independent judgment.47 In addition, by
regularly using him as a conduit of information, the Company
vested Phillips with apparent authority to speak on its behalf as to
matters related to the employees’ terms and conditions of em-
ployment. When Phillips made certain statements that consti-
tuted unlawful interrogations of employees and the improper
creation of an impression that the employees’ protected activities
were under employer surveillance, he acted as a supervisor and
agent of the Company.
Before letting this matter rest, I believe it is appropriate to step
back from the necessary, but sometimes tedious, discussion of the
minutiae involving the issue of supervisory status and reflect on
the purpose underlying the statutory exclusion. As the Board
noted, the exclusion from a collective-bargaining unit of those
employees “whose fundamental alignment is with management,”
is at the “heart” of the statutory provision involved in this case.48
Oakwood, supra at 692. The evidence establishes that Phillips
and Earley are so aligned, particularly in the critical areas ana-
lyzed in this decision. If one were to imagine that the Company’s
production employees were participating in a collective-
bargaining unit that included their foremen, the issues in this

47 Although not central to my post-Oakwood analysis, I note that the
foremen possessed numerous secondary indicia of supervisory status,
including the title of “supervisor;” the provision of office space for
their use; their attendance and participation in production meetings;
their prominent role in rating the performance of the production em-
ployees; their authority with regard to documentation of time and atten-
dance; the issuance of company credit cards for their own use and for
provision to other employees assigned to tasks outside the facility; and
the subjective opinions of production employees that the foremen were
their supervisors. See Palagonia Bakery Co., 339 NLRB 515 (2003)
(application of secondary indicia, including the opinions of other em-
ployees); McClatchy Newspapers, Inc., 307 NLRB 773 (1992) (use of
secondary indicia, including attendance at management meetings and
access to supervisory office space); and NLRB v. Chicago Metallic
Corp., 794 F.2d 527 (9th Cir. 1986) (propriety of consideration of
secondary indicia, including perception of other employees).
48 Of course, this exclusion is designed to protect the interests of
both labor and management. As the Supreme Court noted, in part, the
exclusion reflects Congressional concern about creating “divided loy-
alty” among supervisory employees. NLRB v. Yeshiva University, 444
U.S. 672, at fn. 17 (1980).
remand are brought into sharp focus. At such a hypothetical
union meeting, the rank-and-file employees would certainly wish
to discuss those terms and conditions of their employment that
should be subject to future contract negotiations with their em-
ployer. It is clear from the record that controversy surrounds the
Company’s current practices in the areas of assignment and dis-
cipline. Would a line employee feel at liberty to raise the sugges-
tion that onerous chores such as sweeping the shop should be
assigned by seniority? Would that same employee be comfort-
able in raising the suggestion that disciplinary procedures should
include uniformly applied predetermined progressive steps? It is
difficult to conceive that the presence of the persons who cur-
rently wield such unrestrained power in these areas would not
have a chilling effect.49 The community of interest essential to
the success of collective bargaining would be absent. The fore-
men’s fundamental alignment with management would preclude
effective participation of the work force in the labor relations
scheme created by Congress through passage of the Act.
CONCLUSIONS OF LAW
1. The General Counsel and the Union have met their burden
of proving that, at all relevant times, the Company’s shop fore-
men, James Phillips and Ronald Earley, were supervisors within
the meaning of Section 2(11) of the Act.
2. The General Counsel has met his burden of proving that, at
all relevant times, James Phillips was an agent of the Company
with apparent authority to speak on behalf of the Company re-
garding matters related to the terms and conditions of employ-
ment of the Company’s work force.
3. By interrogating employees regarding their protected, con-
certed activities and the protected, concerted activities of other
employees, the Company, through its supervisor and agent,
James Phillips, violated Section 8(a)(1) of the Act.
4. By creating an impression that employees’ protected, con-
certed activities were under surveillance by their employer, the
Company, through its supervisor and agent, James Phillips, vio-
lated Section 8(a)(1) of the Act.
5. Because James Phillips and Ronald Earley were supervisors
within the meaning of Section 2(11) of the Act, they were not
eligible to vote in the representation election held on November
21, 2002. The challenges to their ballots should be sustained.
REMEDY
Having found that the Company has engaged in certain unfair
labor practices, I conclude that it must be ordered to cease and
desist and to take certain affirmative action designed to effectuate
the policies of the Act. In particular, I recommend that the Com-
pany be ordered to post notices in the usual manner.
Having found that none of the challenged ballots should be
counted, I recommend that an appropriate Certification of Results
of Election be issued.

49 I do not mean to cast any aspersions against Phillips or Earley.
They both seemed like decent people. Even the most well-intentioned
boss can be influenced, consciously or otherwise, by opinions and
criticisms voiced by subordinates.
RCC FABRICATORS, INC. 743
On these findings of fact and conclusions of law, and on the
entire record, I issue the following recommended50 order and
certification of representative.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots have been
cast for Piledrivers Local 454 a/w Metropolitan Regional Council
of Carpenters, Eastern Pennsylvania, State of Delaware and East-
ern Shore of Maryland, and that it is the exclusive collective-
bargaining representative of the employees in the following ap-
propriate bargaining unit:
All full time Layout Men, Machinists, Mechanics, Shop La-
borers, Welders, and Welders/Fitters employed by the Em-
ployer at its 2035 State Highway 206 South, Southampton,
New Jersey facility, but excluding all other employees, in-
cluding clerical employees, guards, and supervisors as de-
fined in the Act.
ORDER
IT IS ORDERED that the Respondent, RCC Fabricators, Inc.,
Southampton, New Jersey, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Coercively interrogating its employees regarding their un-
ion sympathies or their participation in protected, concerted ac-
tivities or regarding the union sympathies or participation in pro-
tected, concerted activities of other employees.

50 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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.
(b) Creating an impression that its employees’ protected, con-
certed activities are under surveillance by their employer.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectu-
ate the policies of the Act.
(a) Within 14 days after service by the Region, post at its facil-
ity in Southampton, New Jersey, copies of the attached notice
marked “Appendix.”51 Copies of the notice, on forms provided
by the Regional Director for Region 4, after being signed by the
Respondent's authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility involved
in these proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time since
October 10, 2002.
(b) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.

51 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”