Sharondale Corporation

National Labor Relations Board - Board DecisionsJul 23, 1982

262 N.L.R.B. 1238 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sharondale Corporation and United Mine Workers of America, Petitioner. Case 9-RC-13836 July 23, 1982 DECISION AND CERTIFICATION OF REPRESENTATIVE BY CHAIRMAN VAN DE WATER AND MEMBERS FANNING AND JENKINS Pursuant to authority granted it by the National Labor Relations Board under Section 3(b) of the National Labor Relations Act, as amended, a three- member panel has considered challenges to an elec- tion held on September 9, 1981,1 and the Hearing Officer's report recommending disposition of the same. 2 The Board has reviewed the Hearing Offi- cer's report in light of the exceptions and support- ing briefs filed by the Employer and the Petitioner as well as the answering briefs of both parties to exceptions of the other, and hereby adopts the Hearing Officer's recommendations except as modi- fied herein. In his report and recommendations on chal- lenged ballots, the Hearing Officer concluded that Jeffrey Rutherford was a supervisor within the meaning of Section 2(11) and recommended that the challenge to his ballot be sustained. We do not agree. Jeffrey Rutherford, an electrician, was assigned to work on the third shift as foreman. He received 2 additional hours' pay but received the same shift premium, insurance benefits, holiday pay, and vaca- tion as other employees. Finding that, as foreman, Rutherford assigned work to employees, initialed and approved timecards, decided when to work overtime, performed similar duties as other supervi- sory foremen, and exercised independent judgment in performing his functions, the Hearing Officer ' The election was conducted pursuant to a Stipulation for Certifica- tion Upon Consent Election. The tally of ballots showed that, of approxi- mately 120 eligible voters, 118 ballots were cast, of which 58 were for, and 52 were against, the Petitioner. There were eight challenged ballots, a sufficient number to affect the results of the election. I The hearing was conducted pursuant to a Report on Challenged Bal- lots, Order Directing Hearing and Notice of Hearing issued by the Acting Regional Director on October 16, 1981, and adopted by the Board on November 9, 1981. In the report, the Acting Regional Director sustained the challenge to the ballot of Ermel Akers; overruled the chal- lenge to the ballot of David Blankenship, the opening and counting of which he recommended be held in abeyance pending the resolution of the challenged ballots which were the subject of the hearing; recom- mended that the challenge to the ballot of James Bowling, if it remained determinative of the results of the election, be held in abeyance pending a ruling on the merits of a charge with the Mine Safety and Health Admin- istration; and directed a hearing on the remaining five challenged ballots. concluded that Jeffrey Rutherford was a supervisor under Section 2(11) of the Act. We find, however, that Rutherford was filling in temporarily as foreman. Unlike permanent supervi- sors who are salaried, Rutherford was an hourly paid employee, who received 2 additional hours' overtime to perform safety checks required by law. While working on the third shift as temporary foreman, Rutherford received a shift premium which supervisors do not receive. Also, Rutherford received all the same fringe benefits as did other employees. In addition, Rutherford received orders from the general mine foreman and called the gen- eral mine foreman every night for specific instruc- tions including the assignment of work. According- ly, the challenge to Rutherford's ballot is over- ruled. The Hearing Officer also recommended that the challenges to the ballots of Ward Cranor and Randy Hatfield be sustained on the grounds that they were full-time students and therefore did not share a sufficient community of interest with other bargaining unit employees to warrant their inclu- sion in the unit. The Employer excepted to the Hearing Officer's findings and recommendations. We agree with the Hearing Officer that both Cranor and Hatfield worked on an internship basis, earning college credit while they worked, that they were not given all the privileges and benefits ac- corded full-time employees, and that their employ- ment was incidental to their education. We there- fore sustain the challenges. The Hearing Officer further recommended that challenges to the ballots of Lee Leedy and Wesley Kendrick be overruled. The Petitioner excepted to these recommendations. We are in agreement with the Hearing Officer and find that Lee Leedy was serving briefly as a substitute foreman at the time of the election but returned to his former position as a rank-and-file employee. It was found that he received the same pay rate, fringe benefits, and shift premium as other underground miners. We also agree that, as mine warehouseman, Wesley Kendrick had a sufficient community of interest with the other employees to warrant his inclusion in the unit. The Hearing Officer found that Ken- drick was not an office clerical but worked in the mine warehouse together with other surface em- ployees included in the unit, was hourly paid, re- ceived the same fringe benefits, and was under the same supervision as other surface employees. 262 NLRB No. 158 1238 SHARONDALE CORPORATION In view of the determination sustaining the chal- lenges to three ballots-Akers, Cranor, and Hat- field-the remaining four ballots to which chal- lenges have been overruled and the one challenge held in abeyance are not determinative of the re- sults of the election. Accordingly, we hereby issue a Certification of Representative. 3 s Chairman Van de Water would affirm the Hearing Officer and find Rutherford a supervisor. He views his colleagues as overruling credited testimony which establishes that Rutherford's position was not temporary and that he exercised supervisory authority. Members Fanning and Zimmerman find that Rutherford's position as foreman on the third shift at the time of the September 9 election was temporary inasmuch as he returned to his second-shift position as electri- cian for 4 or 5 weeks and then went again to the third shift as "foreman" about 2 weeks before the hearing. As temporary foreman, Rutherford carried out specified. predirected duties. He was given none of the emoluments of a supervisor. Instead, he received the same pay and fringe benefits as nonsupervisory employees and received daily instructions from the general mine foreman. It is well settled that an employee "may not be denied his right to vote in the unit to which he properly belongs solely because he was temporarily substituting for a supervisor at the time of the election." Thermoid Company (Southern Division), 123 NLRB 57, 58-59 (1959), principle cited with approval m WCAR, Inc., 203 NLRB 1235, 1245 (1973). The Hearing Officer credited Rutherford's tes- timony that he decided when to work overtime and that he assigned em- ployees work. The Hearing Officer also credited both Ward Cramer's testimony that Rutherford assigned employees work and supervised them, and the mine foreman's testimony that no definite limit was set for the time Rutherford would serve as foreman. We are not overruling credited testimony, as claimed by Chairman Van de Water, but we do not reach the same conclusion as did the Hearing Officer as there is sufficient un- disputed evidence to support the conclusion that Rutherford was only temporarily filling in as supervisor on the third shift at the time of the election. Further, there is nothing in the record to indicate that Ruther- ford's return to the position as "foreman" shortly before the hearing was attended by a change to permanent supervisory status and emoluments. In addition we see no plausible ground for distinguishing, as the Hear- ing Officer does, the case of employee Leedy. The Hearing Officer, CERTIFICATION OF REPRESENTATIVE It is hereby certified that a majority of the valid ballots have been cast for the United Mine Work- ers of America and that, pursuant to Section 9(a) of the National Labor Relations Act, as amended, the foregoing labor organization is the exclusive repre- sentative of all the employees in the following ap- propriate unit for the purposes of collective bar- gaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment: All underground and above ground production and maintenance employees at the Employer's Canada, Kentucky, deep mine and Belfry, Kentucky, preparation plant, including miners, mine repairmen, belt examiners, screen opera- tors, outside laborers, outside supplymen, mine warehousemen, shop mechanics, bulldozer op- erators, coal truck drivers, truck garage mne- chanics, and refuse truck drivers, but exclud- ing all office clerical employees, all profession- al employees, office janitor, guards and super- visors as defined in the Act. simply stated that "because [Leedy] was substituting as a supervisor on an intermittent basis at the time of the election... his temporary fore- man assignment did not destroy his community of interest with the other employees in the unit . . " It appears to us, and we find, that Ruther- ford and Leedy were both substituting as supervisors on an intermittent basis at the time of the election. 1239