Solartec, Inc.

National Labor Relations Board - Administrative Judge Opinions

Aug 23, 2007

08-CA-031778 (N.L.R.B. Aug. 23, 2007)

JD(ATL)–22–07
Salem, OH
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE
SOLARTEC, INC.
and CASES 8-CA-31778-1
8-CA-31857-1
SEKELY INDUSTRIES, INC. 8-CA-31943-1
a Single Employer 8-CA-32362-1
8-CA-32427-1
and 8-CA-32462-1
8-CA-33237-3
INTERNATIONAL UNION, UNITED
AUTOMOBILE, AEROSPACE, AND
AGRICULTURAL IMPLEMENT WORKERS
OF AMERICA, UAW, REGION 2B
Steven Wilson, Esq. and Melanie Bordelois,
Esq., for the General Counsel.
Bob Nece, Organizing Representative, for the
Charging Party.
Scott A. Lefelar, Esq., for the Employer.
DECISION
Statement of the Case
MARGARET G. BRAKEBUSCH, Administrative Law Judge. This case was
tried in Cleveland, Ohio, on June 11, 2007. The charge in Case 8-CA-31778-1 was filed by
the International Union, United Automobile, Aerospace and Agricultural Implement
Workers of America, UAW, Region 2B (Union), on July 25, 2000. The charge in Case 8-
CA-31857-1 was filed by the Union on August 31, 2000 and amended on May 4, 2001 and
February 28, 2007. The Union filed Cases 8-CA-31943-1 and 8-CA-32362 on October 10,
2000 and April 23, 2001, respectively. The original charge in Case 8-CA-32427-1 was filed
on May 22, 2001 and amended on June 14, 2001. The original charge in Case 8-CA-32462-
1 was filed by the Union on June 1, 2001 and amended on August 29, 2001. The charge in
Case 8-CA-33237-3 was filed by the Union on March 25, 2002. On February 28, 2007, the
Regional Director for Region 8 of the National Labor Relations Board issued an Order
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Consolidating Cases, Consolidating Complaint and Notice of Hearing based upon the
allegations contained in the above-identified charges. The consolidated complaint alleges
that Solartec, Inc. and Sekely Industries, Inc. constitute a single employer. Based upon the
parties’ stipulation described below, both Solartec, Inc. and Sekely Industries, Inc. are
referenced collectively as the Employer for this proceeding. The consolidated complaint
further alleges that the Employer has engaged in various violations of Section 8(a)(1), (3),
and (4) of the National Labor Relations Act. The Employer filed a timely answer denying
the alleged unfair labor practices.
Prior to the June 11, 2007, hearing, the parties entered into a settlement agreement
resolving the 8(a)(1) allegations1 contained in the February 28, 2007 consolidated complaint.
The settlement agreement, providing for the posting of a Board notice, was approved by the
Regional Director on June 6, 2007. Paragraph 35 of the consolidated complaint alleges that
Chris Imburgia was unlawfully terminated by the Employer on or about July 21, 2000. On
June 6, 2007, the Union requested a partial withdrawal of Case. 8-CA-31778 as related only
to consolidated complaint paragraph 35 and in conjunction with a non-Board settlement.
Paragraph 39 of the consolidated complaint alleges the unlawful permanent
layoff/termination of Robert “Pete” Lanzendorfer. Based upon the parties’ non-Board
settlement, the Union requested the partial withdrawal of Case 8-CA-33237-3 as it related to
paragraph 39 of the consolidated complaint. On June 11, 2007, the Regional Director for
Region 8 of the Board notified the Employer that he had approved the Union’s partial
withdrawal requests.
By virtue of the Regional Director’s approval of the Union’s partial withdrawals in
Cases 8-CA-31778 and 8-CA-33237-3 and the Regional Director’s approval of the informal
settlement agreement resolving the consolidated complaint’s 8(a)(1) allegations, only the
allegations concerning the termination of Robert Stallsmith (as originally alleged in Case 8-
CA-31857) remain in issue. Accordingly, counsel for the General Counsel moved to
withdraw all complaint allegations that were resolved by a non-Board settlement or by an
informal Board settlement of the parties. There being no objection from the Employer or the
Union, counsel for the General Counsel’s motion to withdraw the charges and allegations as
enumerated was granted.
During the June 11, 2007, trial, the parties additionally submitted a joint stipulation
in the interest of expediency and to avoid potentially unnecessary litigation. In order to
preserve the Board’s resources, the parties stipulated to defer the issue of whether the
Employer is a single employer to the compliance stage of the proceeding.2

1 Specifically, the settlement agreement settles the allegations contained in pars. 6 through 33, 36, 37,
38 and corresponding allegations in pars. 40, 41, and 42 of the consolidated complaint.
2 Counsel for the General Counsel and the Union expressly reserve the right to allege, pursue, and
litigate the single employer issue, if necessary, at any compliance stage of this proceeding and the Employer
stipulates to recognize that right. The Employer also expressly agrees that it will not raise the deferral of this
single employer issue as a defense to its pursuit of litigation at a later stage in this proceeding.
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The Employer further stipulated that it terminated Stallsmith on or about July 10,
2000 because it believed that Stallsmith had engaged in activities on behalf of the Union
and/or because Stallsmith supported the Union’s organizing efforts among the Employer’s
Sekely Industries, Inc.’s employees at that time. The Employer asserts in the stipulation that
it concluded that Stallsmith was a managerial employee, as defined by the Board and court
precedent, and therefore not protected by the Act. The Employer further asserts that
Stallsmith’s union activities and support for the Union constituted disloyalty; which
warranted his termination. Counsel for the General Counsel and the Union dispute that
Stallsmith was a managerial employee at the time of his termination. It is undisputed that
the Employer also terminated five other individuals in or about July 2000 for engaging in
disloyalty toward the Employer by supporting the Union’s organizing efforts and each of
these individuals have been found to be a supervisory employee under Section 2(11) of the
Act.
Accordingly, by virtue of the settlement agreements described above and the parties’
stipulations, the only remaining issue is whether Stallsmith was a managerial employee at
the time of his July 10, 2000 termination.
Prior to the hearing in this unfair labor practice proceeding, the parties agreed that a
substantial portion of the hearing conducted in Cases 8-RC-16070 and 8-RC-16071 related
to Stallsmith’s duties and responsibilities. In an attempt to avoid repetition of testimony and
duplication of exhibits, the parties jointly submitted the entire sworn testimony and all of the
exhibits that constituted the record in the representation hearing in Cases 8-RC-16070 and 8-
RC-16071. The parties further agreed to address in their posthearing briefs the specific
portions of the representation proceeding upon which they respectively rely in this unfair
labor practice proceeding. On the entire record, including my observation of the demeanor
of the witnesses, and after considering the briefs filed by counsel for the General Counsel
and by the Employer, I make the following:
Findings of Fact
I. Jurisdiction
The Employer, an Ohio corporation, manufactures stamping dies for the automobile
industry at its Salem, Ohio facility. Annually, the Employer sells and ships goods valued in
excess of $50,000 directly to points outside the State of Ohio. The Employer admits that it3
is engaged in commerce and also admits that the Union is a labor organization within the
meaning of Section 2(5) of the Act. Accordingly, I find the Employer to be engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act and I find that the
Union is a labor organization within the meaning of Section 2(5) of the Act.

3 Although the issue of whether Solartec, Inc. and Sekely Industries, Inc. constitute a single employer is
deferred to the compliance proceeding, the Employer admits that both entities are engaged in commerce.
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II. Alleged Unfair Labor Practices
A. Procedural History
On May 25, 2000, the Union filed Cases 8-RC-16070 and 8-RC-16071 with Region
8 of the National Labor Relations Board, seeking to represent all full-time production and
maintenance employees of Solartec, Inc. and Sekely Industries, Inc., respectively.
Beginning on July 28, 2000 and continuing on various dates thereafter until December 7,
2000,4 the Region conducted a hearing to resolve various issues related to the Union’s
petitions. Included in the issues5 was the question of whether production leaders of Sekely
Industries, Inc. and Solartec, Inc. are supervisors within the meaning of Section 2(11) of the
Act. On February 14, 2001, the Regional Director for Region 8 of the Board issued a
Decision and Direction of Elections involving both cases. Based upon the record evidence
presented, the Regional Director found that production leaders are not statutory supervisors
under Section 2(11) of the Act. The Regional Director also found that Sekely Industries,
Inc. and Solartec, Inc. constitute a single employer. On March 9, 2001, the Employer filed
its Request for Review of the Decision and Direction of Elections. On March 28, 2001, the
Board denied the Employer’s Request for Review.
On September 25, 2001, and in response to the Supreme Court’s May 29, 2001,
decision in NLRB v. Kentucky River Community Care, 532 U.S. 706 (2001), in which the
Court rejected the Board’s previous interpretation of “independent judgment” as found in
the Act’s test for supervisory status, the Employer filed a Motion for Reconsideration of the
Board’s Order denying review of the Decision and Direction of Elections. In its November
14, 2001 Supplemental Decision, the Board remanded the proceeding to the Regional
Director for Region 8 for further consideration and to reopen the record to take additional
evidence on the issue of whether the Employer’s production leaders “assign” and
“responsibly direct” other employees and on the scope or degree of “independent judgment”
used in the exercise of such authority.
Commencing on January 14, 2002, and continuing on various dates through February
20, 2002, a hearing was conducted to receive evidence in accordance with the Board’s Order
of November 14, 2001. At the conclusion of the hearing that generated a total transcript of
4230 pages of sworn testimony, the Regional Director issued a Supplemental Decision and
Direction of Elections on August 12, 2002. In the Supplemental Decision, the Regional
Director found that the evidence had not demonstrated that the Die Construction Department
leaders were supervisors under the Act.
On October 18, 2002, the Board granted the Employer’s Request for Review. On
September 28, 2006, the Board issued decisions in Oakwood Healthcare, Inc., 348 NLRB

4 There are 3031 transcript pages for this initial portion of the hearing.
5 The evidence also involved the issue of whether Solartec, Inc. and Sekely, Industries, Inc. constitute a
single employer.
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No. 37 (2006), Croft Metals, Inc., 348 NLRB No. 38 (2006), and Golden Crest Healthcare
Center, 348 NLRB No. 39 (2006), in which the Board established new definitions of the
terms “assign,” “responsibility to direct,” and “independent judgment.” On January 4,
2007, the Regional Director for Region 8 issued a Second Supplemental Decision and
Direction of Elections, finding the Sekely Small Machine Department leader and the Die
Construction Department leaders to be supervisors as defined by Section 2(11) of the Act.
B. Background
1. The Employer’s Operation
Founded in 1947, the Employer’s facility manufactured6 stamping dies for the North
American automotive industry. The Employer’s Die Construction Department produced
large automotive stamping dies for such parts as automotive fenders, hoods, as well as inner
and outer doors. The individual automotive parts were created by moving a flat sheet metal
stock or blank die through a sequence of different stamping presses. Die Construction
Superintendent Homer Sanor testified in the representation hearing that the individual dies
could weigh as much as 50,000 to 60,000 pounds and he estimated the value of a single die
at approximately $250,000.
In January 2000, James Randall Sekely, assumed the position as chief operating
officer for the Employer’s facility; after having previously served as vice president. After 6
months as the Employer’s chief operating officer, Sekely became president of the
Employer’s operation.
2. Stallsmith’s Work Background
Prior to Stallsmith’s termination on July 10, 2000, he had been employed by the
Employer for over 28 years. At the time of his discharge, Stallsmith worked as the large
machine department leader on first shift. He had held that position since March 1996 and
was supervised by Large Machine Supervisor7 Tom Furlong. Stallsmith estimated that at
the time of his discharge, there were approximately 220 hourly employees and 15 to 20
office clerical, supervisory, and managerial employees at the Employer’s facility.8
Stallsmith did not have an office. He had a work bench in the tool/grinding
department where he repaired tooling. He also kept a tool box at the south end of the
building near the office area. Furlong, however, maintained an office in the upstairs area
above the QC (quality control) room. Stallsmith estimated that he spent approximately 5
percent of his time with administrative responsibilities.

6 The Employer asserts in its posthearing brief that the Sekely Industries, Inc. facility closed in early
2007. The Employer’s Solartec, Inc. facility has continued to operate.
7 Furlong’s position is also referenced as superintendent.
8 Stallsmith was employed at the Employer’s Sekely Industries, Inc. facility.
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C. The Issue of Stallsmith’s Managerial Status
There is no dispute that the Employer terminated Stallsmith because he engaged in
union activities and supported the Union’s organizing efforts. The Employer argues that it
terminated Stallsmith because of a concern that he would unjustly and improperly influence
employees because of his support for the Union. While the protected status of other
production leaders was resolved over the course of the above-described representation
proceedings, Stallsmith’s status as a supervisor or manager was not resolved.
The Employer asserts that Stallsmith was a managerial employee at the time of his
discharge, and thus without the protection of the Act. Specifically, the Employer asserts that
Stallsmith was a managerial employee because he (1) exercised plenary authority over the
purchase and testing of hundreds of thousands of dollars of tooling and (2) served as the
“right-hand man” of Machine Superintendent Tom Furlong and in that role was clearly
aligned with management. Counsel for the General Counsel submits, however, that
Stallsmith was not a managerial employee at the time of his discharge and was
discriminatorily discharged because of his support for the Union.
D. Prevailing Law
Although the Act does not specifically address managerial employees, the Board has
traditionally excluded these employees from the protection of the Act. Ford Motor Co., 66
NLRB 1317 (1946). In its 1974 decision in NLRB v. Bell Aerospace Co., Div. of Textron,
Inc.,9 the Supreme Court addressed this category of employees; finding them to be excluded
from the protection of the Act. Writing for the majority, Justice Powell acknowledged that
the Act does not explicitly refer to managerial employees. He reasoned, however, that the
Act’s specific exclusion of supervisors evidenced Congress’s general intent to also include
managerial employees in an impliedly excluded group. Id. at 1766. As the Court has
subsequently pointed out, the purpose of exempting managerial employees is to ensure “that
employees who exercise discretionary authority on behalf of the employer will not divide
their loyalty between employer and union.” NLRB v. Yeshiva University, 444 U.S. 672, 687-
688, (1980).
The Board has defined “managerial employees” as those who formulate and
effectuate management policies by expressing and making operative the decisions of their
employers, and those who have discretion in the performance of their jobs independent of
their employer’s established policy.” General Dynamics Corp., 213 NLRB 851, 857 (1974).
There is no dispute that the specific job title of the employee is not controlling. Whether an
employee is “managerial” is determined by the employee’s actual job responsibilities,
authority, and relationship to management. 416 U.S. at 290.

9 416 U.S. 267 (1974).
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E. Stallsmith’s Responsibilities for Purchasing and Related Functions
1. Stallsmith’s transportation of the stamping dies
Prior to Stallsmith’s discharge, there were approximately 13 machines in the large
machine department; the majority of which were computer-controlled. Stallsmith testified
that by following a work sheet, he knew the jobs that were assigned to the various machines.
Based upon that schedule, Stallsmith transported the various dies by “electric buggies” to
and from the bay area to the designated machines in the department. He used one of the two
hand-operated buggies to transport the smaller dies and he rode on the larger electric
buggies to transport the heavier dies. Stallsmith explained that the major machine area ran
from one end of the plant to the other and that he had some responsibility for all the
machines in the major machine area. He routinely wore gloves to perform his work.
2. Stallsmith’s direct work with the operators and specific machines
Stallsmith denied that he had any control over which machine was used for a specific
die or that that he had any responsibility for programming the machines or determining the
operators for the machines. He testified that while he sometimes suggested tooling for a
machine, he did not determine the machine feeds and speeds.
He also routinely assisted the operators in the department with positioning the dies
on the machine tables for the various jobs. He assisted the operators with cleaning the dies
and changing the angle plates when necessary. Stallsmith estimated that he spent
approximately 10 percent of his time repairing end-caps and damaged tools. There were
also cutters and other items in the department that were sent out for repair when they were
damaged. Stallsmith asserted that Furlong decided when it was time to send the items out
for repair. At Furlong’s direction, Stallsmith prepared the orders for the repairs.
3. Stallsmith’s purchasing responsibilities
The Employer argues that Stallsmith is a managerial employee by virtue of his duties
as “tooling buyer.” The extent to which he was involved in purchasing both routine and
nonroutine items for the Employer received a great deal of attention in both the
representation hearing as well as the underlying unfair labor practice proceeding. In its
posthearing brief, the Employer argues that Stallsmith exercised substantial discretion and
control over the Employer’s tooling purchases, including meeting with tooling vendors,
negotiating the price of tooling, evaluating the quality of vendors’ tooling, and committing
the Employer to substantial purchases with little oversight. The record evidence concerning
his participation in such purchasing responsibility is described below:
a. Meeting with vendors and outside sales representatives
Prior to May 2000, Stallsmith met with outside sales representatives who visited the
plant. Stallsmith described the meetings with the sales representatives as unscheduled and
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casual. He recalled that during the visits, the sales representatives often gave him their
product catalogs and discussed such personal matters as their golf games and their home
remodeling projects. When he received the product catalogs, he filed them with other
catalogs in a large filing cabinet. In May 2000, Sekely directed Stallsmith to discontinue
meeting with the outside sales representatives and tooling vendors. Sekely testified that he
did so because there was too much conversation and not enough work. Beginning in May
2000, Purchasing Agent Dale Metzger assumed the responsibility for talking with the sales
representatives who visited the plant and Stallsmith no longer had this responsibility or
function. Stallsmith testified that after the middle of May or the first of June 2000, he no
longer went to the lobby to greet the visiting salesmen.
b. Stallsmith’s role in purchasing nonroutine items
During the representation hearing, Stallsmith acknowledged that tooling salesmen
normally submitted price quotes for their tooling to him. He identified a number of quotes
for various tooling items submitted by different vendors. He explained, however, that it was
necessary for him to review the quotes with Metzger because Metzger was aware of the
prices that the Employer was currently paying and he was not.
The Employer asserts that Stallsmith’s discretion in dealing with tooling salesmen is
illustrated in his involvement in the Employer’s purchase of a tool identified as a ball nose
end mill. In April 1999, a sales representative told Stallsmith about this new tool or cutter
that had the potential for cutting much faster than the tool that was currently used.
Stallsmith testified that he showed the tool to Furlong and asked his opinion. Furlong
agreed that it appeared to be a good cutter and suggested that Stallsmith test it. Stallsmith
initially tested the tool himself on one machine and then asked an operator to run it on a
different machine to test it at an even higher feed rate. Stallsmith testified that he did not
recommend that the Employer purchase the tool. He recalled that Sekely observed the test
and then told Furlong to obtain the tool for the shop. Sekely testified that he did not recall
making the direct decision to purchase the ball nose end mill. He went on to explain that
generally he did not involve himself in that much detail. He said that if the testing in the
shop was successful and proved the productivity the Employer was seeking, there was
authorization in the budget to purchase the product. In his testimony, Sekely did not
confirm or deny that he had been present during the testing. Stallsmith recalled that Furlong
told him the quoted price seemed expensive and he asked Stallsmith to see what price he
could get. Stallsmith recalled that the Employer may have received a price reduction after
he spoke with the vendor. Stallsmith denied, however, that he played any role in negotiating
a price.
Stallsmith acknowledged that prior to May 2000; there were other occasions when
the outside sales representatives offered their products to him for testing and for sales. He
denied, however, that he ever tested or purchased the products without consulting with
Furlong. He testified that on occasion, he told Furlong that he believed that a particular
product seemed “like a pretty good tool.” Furlong did not always agree with him. When the
sales representatives gave him price quotes on their products, he referred the quotes to either
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Furlong or Metzger. He recalled that there were occasions when Furlong asked him to try to
get better prices on some of the inserts. He testified that his doing so was a part of his job
and what he was instructed to do. He recalled that sometimes the sales representatives sent
in a better quote to the office and sometimes they did not. He denied, however, that he ever
became involved in any price haggling or continued discussions with the representatives
about the specific prices.
The Employer argues in its posthearing brief that if Stallsmith was satisfied with the
testing of a new tool, he would purchase it. The Employer cites Stallsmith’s testimony from
the representation proceeding as an example of such decisional authority. Stallsmith’s
testimony, however, contradicts such absolute authority.
Stallsmith recalled that he was present with operator Al Rogers when he tested a tool
identified as a Sandvik drilling end mill. When the Employer’s counsel asked Stallsmith
what he thought of the tool that was tested, Stallsmith replied: “Good tool.” Stallsmith did
not deny that he had been the individual who had prepared the purchase requisition for the
new tool. During the representation hearing, Stallsmith identified a number of purchase
requisition orders that he had prepared. Stallsmith explained, however, that if the
department needed tooling or tool bodies, he notified Furlong. Based upon Furlong’s
directive, Stallsmith prepared the requisition form to order the tools. He explained that
while he prepared requisition orders, he did so because he was instructed to do so.10 He
recalled only one occasion when he prepared a requisition form without first consulting with
Furlong and this was for his personal purchase of a gun safe. Stallsmith testified that while
he also prepared orders to send items out for repair, he did so at Furlong’s direction.
c. Stallsmith’s role in purchasing routine items
One of Stallsmith’s responsibilities was to maintain an inventory of carbide inserts
for the department. He estimated that there are hundreds of different inserts that are used to
cut the metals in the die manufacturing process. Stallsmith explained that normally
purchase requisitions were not used for ordering tooling. The tooling was ordered by using
the machine inventory book, also known as the blanket order book. Because Stallsmith was
responsible for ordering the inserts, he used the blanket order book to do so. The book,
maintained in the tool grinding department, consisted of a loose-leaf ringed binder
containing lists of parts that were regularly ordered in the large machine department. There
is no dispute that Stallsmith continued to place orders using the blank order book even after
he no longer met with the outside sales representatives who visited the facility. When filling
out an order sheet, Stallsmith indicated the date of the inventory and the number of listed
parts that were needed. He estimated that he spent about 10 to 15 minutes each week
completing the blanket order book. Once he had marked the items that he wished to order,
he gave the book to the tool grinder to place his order for parts as well. Once Stallsmith and

10 He continued to submit purchase requisition orders even after he no longer met with the sales
representatives who visited the facility.
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the tool grinder marked the items they wished to order, Stallsmith gave the book to Furlong
for his review. From Furlong, the order list went to Metzger.
During the representation hearing, the Union submitted into evidence a copy of
document relating to the Employer’s blanket order book. During the unfair labor practice
hearing, Sekely explained the information contained therein. The document contained a list
of blanket order numbers for specific vendors and the services or items that were covered by
each blanket order number. The document also includes the name or names of individuals
employed by the Employer who were authorized for purchases for each blanket order
number. Sekely testified that the Employer maintained an outstanding purchase order with
the vendors that were listed on the blank order forms. He explained that the named
managers and employees listed on the blanket order forms were authorized to call the
vendors and place orders for the commodities listed on the form without having to prepare a
written purchase order. The document reflects that only Furlong and Metzger were shown
to have such authorization for ordering the carbide inserts. Stallsmith is not listed as having
such purchasing authority for the carbide inserts or for any other items.
Stallsmith recalled that “a couple of times” Furlong suggested that he not order as
many inserts because the department was getting close to the budget for the month. During
the representation hearing, Controller Jeff Musleve testified that Furlong and Stallsmith had
been present for an October 1999 meeting concerning the budget for the large machine
department. In later testimony, however, he was asked to identify all of the individuals who
were present for the meeting. He identified a number of individuals and explained that he
“believed” that Stallsmith was present because he “handled the mill tooling.” Stallsmith,
however, testified that he was unaware of the amount of the department’s budget. He
further denied that he ever attended any meetings in which the department budget was
discussed or determined.
d. The monetary value of Stallsmith’s purchases
The Employer submitted into evidence a copy of its budget detail report for 1999.
The report contained the names of suppliers from whom the Employer purchased inserts and
the document reflects a total expense of over $108,000. Stallsmith testified that while the
supplier names, the quantities, and the frequency of purchases appeared to be correct, he had
no knowledge of the Employer’s budget for such items and could not verify the total
expense.
In reviewing other budget detail reports, Stallsmith also identified other suppliers
and purchase items for which he had submitted requisitions to Furlong in 1999. Stallsmith
acknowledged that Furlong routinely approved the requisitions if there was money available
in the monthly budget. In his posthearing brief, counsel for the Employer points out a
particular section of Stallsmith’s testimony in which he testified that he could not recall a
case in which Furlong ever failed to approve his requisitions for tooling. Stallsmith
continued his testimony, however, by further explaining that he usually spoke with Furlong
before he actually submitted the requisition and therefore he knew in advance as to whether
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to submit the requisition. He recalled that Furlong either told him that he should hold up in
submitting the requisition or Furlong told him to go ahead and submit the requisition.
Citing specific testimony in the representation hearing, the Employer argues that
there was a separate budget for experimental tooling and that Stallsmith selected the tools to
purchase. During the hearing, Stallsmith denied any knowledge as to whether the Employer
had an annual budget of $8000 for experimental tooling. Stallsmith recalled an occasion
when a vendor left a cutter that would also perform as an end mill. Stallsmith testified that
he took the tool to an operator and told him: “I think we ought to try this tool on the heels
because you don’t have anything to reach it.” The operator agreed. Stallsmith did not tell
him what feeds or speeds to use with the tool. On another occasion, a vendor asked him to
try out a particular insert as a substitution for another insert. Stallsmith denied that he
requisitioned the inserts using the experimental tool budget. He recalled that the salesman
came into the facility with the inserts and remained until 8 p.m. on the evening shift while
the operators used the new inserts. Stallsmith left at the end of his shift. Stallsmith testified
that the salesman later argued that he had stayed at the facility for 8 or 9 hours and he should
at least be paid for the inserts. Stallsmith asked Furlong and he directed Stallsmith to
prepare an order for the experimental inserts.
F. Did Stallsmith’s Purchasing and Related Responsibilities Establish Managerial
Status
As the Board has pointed out, the fact that employees may exercise some discretion
in carrying out their responsibilities and do not work under close immediate supervision
does not compel a finding that that the employees are managerial.11 The determination of an
employee’s “managerial” status depends upon the extent of the exercise of his discretion.
The routine performance by an employee of largely predetermined policies does not warrant
finding him to be a managerial employee. Kitsap County Automobile Dealers Assn., 124
NLRB 933, 934 (1959).
As has been recognized by the Board and the courts, an employee’s exercise of
discretion is not a touchstone of managerial authority if the employee’s actions must
conform to the employer’s established policy. Eastern Camera and Photo Corp., 140
NLRB 569, 571 (1963); Retail Clerks International Assn. v. NLRB, 366 F.2d 642, 645 (D.C.
Cir.1966). As the Supreme Court specifically noted in NLRB v. Yeshiva University, supra
444 U.S. at 683, a managerial employee must “exercise discretion within, or even
independently of, established employer policy and must be aligned with management.” The
Court went on to note that even though the Board had not established a firm criteria for
determining when an employee is so aligned, an employee is normally only excluded as
managerial when the employee represents management interests by taking or recommending
discretionary actions that effectively control or implement employer policy. Ibid.

11 American Federation of Labor-Congress of Industrial Organizations, 120 NLRB 969, 972 (1958).
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Even when an employer may consult with an employee prior to purchasing major
machinery or when the employee can pledge the employer’s credit for nonroutine items, the
employee’s advice may be viewed as no more than that of a knowledgeable employee and
his purchases may be a routine part of his duty to maintain a supply inventory. Such actions
have not been found to be conclusive of independent judgment or the exercise of
independent discretion, indicative of managerial status. Sampson Steel & Supply, 289
NLRB 481, 482 (1988); Westinghouse Electric Corporation v. NLRB, 424 F.2d 1151, 1158
(7th Cir. 1970).
Although an employee may have the authority to recommend various types of action
by the employer with respect to the use and purchase of equipment and machinery, such
authority does not always evidence the employee’s discretion or authority to make the
ultimate determination, independent of the employer’s consideration and approval. Iowa
Southern Utilities Co., 207 NLRB 341, 345 (1973). In fact, in Iowa Southern Utilities Co.
the employee in issue prepared specifications for equipment to be purchased, reviewed
conformity with the specifications upon completion of the contract, and submitted
recommendations that led to the employer’s financial outlay. Such authority, however, was
not found to be sufficient to exclude the employee from the protection of the Act as a
managerial employee. Id. at 345.
The Employer asserts that Stallsmith operated with independence and autonomy in
negotiating tooling prices with the vendors. The Employer specifically points to
Stallsmith’s testimony in 2000 when he was asked if he had negotiated a better price on a
particular insert and end mill. Stallsmith simply answered: “Yes.” Stallsmith went on to
explain in his testimony, however, that part of his job was to find better prices. During the
unfair labor practice proceeding, Stallsmith explained that when Furlong told him that the
vendor’s price was expensive and to see what he could do, he asked the vendor for a better
price. Stallsmith explained that the sales representatives sometimes submitted a better quote
to the office and sometimes they did not. He denied that he engaged in further haggling or
debate with the representatives about reducing the price. Stallsmith confirmed that there
were never any occasions when he rejected a supplemental price quote from a vendor. He
recalled that when he received a verbal quote from the sales representative, he
communicated the quote to Furlong. Written quotes were forwarded to Furlong or the
office. It has been found that even where an employee may solicit estimates from outside
suppliers in collecting data for cost estimates, such action has not been found sufficient to
establish managerial status. Case Corp. 304 NLRB 939, 949 (1991), enfd. 995 F.2d 700 (7th
Cir. 1993).
In the Board’s decision in Washington Post Company, 254 NLRB 168, 189 (1981),
an assistant purchasing manager was not found to be a managerial employee although half
the employee’s time was devoted to determining the need for stock items and ordering such
items. The assistant purchasing manager usually solicited three bids from vendors, and then,
using price and quality guidelines, selected the most appropriate vendor for the employer.
The total of the inventory under the control of the assistant manager approximated $500,000
and the monthly authorization for purchases ranged from $25,000 to $50,000. The Board
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concluded that while the assistant manager was able to commit the Employer to purchasing
stock items, the assistant manager must nevertheless conform to certain employer guidelines
and, on occasion, must clear decisions with higher department or company authorities.
Thus, the ordering of supplies and repairs is not the “pledging of employer credit” that
inevitably constitutes managerial authority. Additionally, the employee’s selection of repair
services or training was not indicative of independent discretion or actions outside the
employer’s guidelines sufficient to convert an otherwise rank and file employee to a
management employee.
The Employer asserts that the overall record demonstrates that Stallsmith acted
independently in meeting with tooling vendors, negotiating the price of tooling, evaluating
the quality of the vendors’ tooling, and committing the Employer to substantial purchases
with little oversight. Citing Concepts & Designs, Inc., 318 NLRB 948 (1995), the Employer
argues that under almost identical facts, the Board found such buyer functions to be
indicative of an employee’s managerial status. The Employer is correct in that the Board in
Concepts & Designs, Inc. found an employee whose duties involved purchasing
responsibility for a third of her time to be exempt as a managerial employee. The Board
affirmed the judge in finding that the manner in which she exercised her purchasing
authority, the extent of unreviewed discretion that she exercised, and the magnitude of its
impact on the employer’s overall business established that she was more than simply a buyer
performing routine duties.
Unlike Stallsmith, however, the purchasing employee in issue in Concepts &
Designs, Inc. had the discretion and authority to change vendors in order to obtain better
prices or if the current vendors were not meeting their delivery obligations. She had the
authority to evaluate the quality of parts and could select a particular vendor based upon that
evaluation. Her discretion in performing her duties was not ordinarily reviewed by any
company official. She was the only company representative to meet with vendors. During
the prior year, the employee purchased approximately $2 million in items or services. The
judge noted that an employee’s ability to commit an employer’s credit in amounts which are
substantial, especially where done through exercise of discretion which is not ordinarily
reviewed, is strong evidence of managerial status.
In comparing the facts of Concepts & Design, Inc., and the current case, I do not find
a significant correlation. Admittedly, Stallsmith was often given the responsibility to solicit
better prices for various tooling items from the Employer’s vendors. There is no evidence,
however, that he had any personal responsibility for choosing vendors or for rejecting
vendors because of their prices or any other reasons. While he testified that he successfully
obtained better prices when he spoke with vendors, there is no evidence to contradict his
testimony that he did so at Furlong’s direction. Additionally, while Furlong may have
normally approved the purchase requisitions submitted by Stallsmith, there is no evidence to
contradict Stallsmith’s testimony that he consulted with Furlong prior to the submission.
In its posthearing brief, the Employer also cites the Board’s decision in Kearney &
Trecker Corp., 121 NLRB 817, 822 (1958), involving buyers who interviewed prospective
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suppliers and effectuated purchases of machine parts. Because they also had the authority to
place orders with alternative suppliers if deliveries were not made on time, they were found
to be managerial employees. Additionally, the Employer cites the Board’s early decision in
Mack Trucks, Inc., 116 NLRB 1576, 1578 (1956), in which buyers were excluded from a
bargaining unit because they had authority to negotiate prices, change delivery dates, and
adjust disputes with suppliers over rejected items. The Board reasoned similarly in its
decision in Aeronca, Inc., 221 NLRB 326, 328 (1975), where an estimator was found to be a
managerial employee. The estimator was instrumental in setting prices and negotiating
contracts with the employer’s customers. In fact, the estimator was given the monetary
figure that the company expected to negotiate with the Union. Additionally, the estimator
met with the director of industrial relations in order to compare notes on anticipated wage
increases that would affect the cost of the employer’s product.
The kind of discretion and alignment with management in the cases discussed above
is clearly dissimilar to the responsibility given to Stallsmith. The evidence in this case
reflects that Stallsmith often served as a conduit for vendors to introduce their new products.
Conversely, Stallsmith’s job also included soliciting better prices from vendors and
physically requisitioning tooling from the various vendors. The record does not reflect,
however, that Stallsmith possessed any authority to reject or to change suppliers because
they were unable to make timely deliveries or to adjust disputes with suppliers over rejected
items. Clearly this kind of interaction with the vendors was the responsibility of Furlong, if
not Metzger.
Stallsmith’s purchasing authority and responsibility might better be compared with a
systems/pagination coordinator who was not found by the Board to be a managerial
employee in Bakersfield Californian, 316 NLRB 1211, 1214-1215 (1995). As a computer
specialist, the coordinator researched and made recommendations concerning the purchase
of systems hardware and software in additional to assuring proper installation. She handled
trouble shooting and also developed and implemented the prepress computer system
policies. She monitored the system and instructed and trained employees on the system.
She submitted requisitions for computer equipment and her requests were invariably
granted. She could return equipment to the vendors without checking with the manager.
She evaluated and recommended the purchase of certain systems’ equipment. While the
Board noted that her job required technical skill and expertise, it did not involve formulating
policy or acting independently of the employer’s established policy. She did not regularly
resolve managerial problems nor did she formulate, determine, or oversee employer policy
or act independently of established policy to any meaningful degree.
In International Transportation Service, Inc., 344 NLRB No. 22, slip op. at 14
(2005), only the alleged managerial employee and her supervisor had the authority to order
modifications to the employer’s software program and to contract with the employer’s
outside contractors for those modifications. Such modifications resulted in more than
$23,000 in payments to the outside contractors. Because the employee was the person most
familiar with the payroll software program, it was reasonable that she could authorize the
contractors to perform modifications or correct observable flaws. Her authorization for the
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expenditure of funds for work on the program was not found to be independent of
established employer policy. Rather, it was found to be routine operating procedure under
the employer’s established policy to allow her to authorize such work on its software
program. Her authority is not really that much different from that exercised by Stallsmith.
Because he was the person most familiar with all of the machines and their tooling needs, it
is reasonable that he was the person who requisitioned the tooling products from the vendors
and functioned as the conduit through which the vendors presented their new products to the
Employer.
There is no question that Stallsmith was responsible for maintaining an inventory of
inserts for the large machine department and for requisitioning other tooling products that
might be needed by the machinists in the department. Clearly, Stallsmith used the blanket
order book to initiate orders for the carbide inserts. As the Employer’s records indicate,
however, he was not designated to actually call a vendor and place an order for the inserts
without having a formal written purchase order. Only Furlong and Metzger had such
authority. Stallsmith credibly testified that once he and the tool grinder submitted their
proposed order in the blanket order book, the order was submitted to Furlong and then to
Metzger for review. While this very protracted record contains numerous requisition orders
prepared by Stallsmith, Stallsmith does not deny his role in their preparation. He readily
admits that he was actively involved in requisitioning various tooling products for the
department. He maintains, however, that he did so only at Furlong’s instruction and with
prior consultation with Furlong. His testimony was not contradicted. Neither Furlong nor
Metzger testified in either the very long representation case or in the unfair labor practice
proceeding. Although the Employer’s controller initially placed Stallsmith at a budget
meeting in 1999, he later testified that he “believed” that Stallsmith was present because of
his involvement in purchasing tooling. Stallsmith credibly testified that he was not involved
in any such meeting and that he had no knowledge of the Employer’s budget for the large
machine department. He relied upon Furlong to keep him within budget guidelines.
Thus, there is nothing in the record to indicate that the Stallsmith’s purchases are
independent of the Employer’s established policies rather than essential to maintaining an
operational status quo. Even if Stallsmith could pledge the Employer’s credit or effectively
recommend the purchase of tooling, his recommendations are those of a knowledgeable
employee and his purchases are a routine part of his responsibility to maintain a tooling
inventory. Sampson Steel & Supply, 289 NLRB 481, 482 (1988). Accordingly, I do not find
Stallsmith’s purchasing authority, responsibility, or duties sufficient to establish managerial
status.
G. The Issue of Stallsmith’s Alignment with Management
1. The June 2000 job description
Stallsmith testified that in June 2000, the employer presented him with a document
entitled “Sekely Industries, Inc. Job Description.” The document was captioned “Major
Machine Supervisor” and included a job summary as well as a listing of job duties and
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responsibilities. The document was given to Stallsmith in a meeting with Stuart Keene; the
Employer’s labor consultant. Sekely joined Stallsmith and Keene during the course of the
meeting. Keene asked Stallsmith to review the document and to sign the document if he
agreed with it. Stallsmith, who had never previously seen this document, did not agree with
the document and objected to signing it. He also tape recorded the meeting with Keene and
the tape recording was played into the record during the representation proceeding.
During the meeting, Keene told Stallsmith that some of his duties had always been a
part of management. Stallsmith questioned why it was advantageous for him to be
considered as a part of management at that time when it had not been advantageous in the
past. Stallsmith also questioned the legality of the Employer’s changing his job description
at that particular time from leader to supervisor.
Stallsmith argued that he performed physical work and he did not oversee
evaluations or make recommendations for raises or discipline. When Stallsmith argued that
he was a leader and not a supervisor, Keene asserted that the dictionary definition of leader
is actually “supervisor.” When Stallsmith pointed out that he had never received a bonus,
Keene responded: “You will” and explained that the Employer had “just made the change.”
Stallsmith again argued that while he did some of the jobs listed in the job description, he
did not recommend raises.
Keene explained that Furlong’s title had been changed to machine superintendent
and Stallsmith’s job was now changed from leader to machine supervisor. When Stallsmith
questioned the reason for such a change at that time, Keene simply explained that it had
been done in order that the description would better reflect “what people are doing.” When
Stallsmith questioned what had happened to his previous job description for his position as
leader, Keene replied that it had “gone by the wayside.”
While Stallsmith argued that he did not know that he could accept the title as
supervisor, he acknowledged that he performed the duties described on the document.
Keene asserted that the Employer had plans that were very positive for him and for all the
supervisors. Stallsmith asserted that plans for him would have to be very far-reaching
because he wanted to keep his job and not have someone tell him to “hit the road.” Even
though Keene assured him not to worry about the change, Stallsmith nevertheless asserted
that he was concerned with the fact that suddenly his job title had changed. Keene then
admitted that the Employer had prepared the job description in order that the Employer did
not get “caught” with his being a leader and to clarify that he was performing supervisory
duties under Section 2(11) of the National Labor Relations Act. Reluctantly, Stallsmith
agreed to sign the document under protest. Several days later, the Employer asked
Stallsmith to sign the job description again in the presence of a notary. Stallsmith declined
to do so. Stallsmith told the notary that he did not have legal counsel present. He also
added that the flag of the United States guaranteed him the right to vote and the Employer
was denying him that right.
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2. The Duties included in the job description
a. Assignment of jobs
The first job duty and responsibility listed on the June 2000 job description includes
the following responsibility: “Assign job tasks to machinists appropriate to the employee’s
skill level and directs them according to the manufacturing needs and priorities using
independent judgment.” Stallsmith testified that while he assigned job duties, it was only
after his receiving notice of the job duties from his supervisor. Stallsmith acknowledged
that he walked through the machine area to see if there were problems and if the machinists
were performing the jobs correctly. If a machinist was using the wrong tool, he suggested
he use a different tool. He denied that he ever instructed a machinist to change tools. If a
machinist needed a different tool and did not have it, Stallsmith got it for him from the tool
crib. An additional duty shown in paragraph one of the document is the requirement to
execute a daily line up for both the computerized and conventional machines. Stallsmith
asserted that while he received a daily line up from Furlong, he did not create the daily line
up.
Stallsmith testified that Furlong made the assignments of the various jobs to the
individual machines. He denied that he had any role in assigning machinists according to
their skills or manufacturing needs and priorities as specified in the job description. During
the representation hearing, machinist Keith Speerhas testified that there were occasions
when Stallsmith brought him new jobs. He testified that he would not have felt comfortable
telling Stallsmith that he did not want to do the job or that he wanted another job. He
explained, however, that he would not have objected because any job that Stallsmith would
have brought him would have been one that was on the line up sheet.
Stallsmith explained that while he might occasionally offer suggestions or
recommendations to Furlong concerning the job line up, Furlong sometimes listened and
sometimes did not listen. When Furlong was on vacation, Die Construction Superintendent
Sanor determined the priorities of the jobs in the department. If there were two machines
opened at the same time and only one job, Stallsmith consulted Sanor as to which machine
would be used. There were occasions when he had to change the line up on a particular job
when Furlong was in a meeting or unavailable. Stallsmith acknowledged that there have
been times when he has asked a machinist to stop what he is doing in order to help another
machinist with a particular job.
b. Evaluation of employee’s work
Item nine of the job description includes the responsibility to provide input on
employee performance reviews and to recommend employee merit increases and job
classification changes. Stallsmith denied that he ever reviewed other employees or
evaluated their work performance for a report to Furlong. He recalled that there were
occasions when Furlong informally asked for his input; but not in conjunction with
Furlong’s preparation of written employee evaluations. Stallsmith acknowledged that if
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Furlong asked for his opinion about whether someone should receive a raise, he always
agreed. He never told Furlong “No.” Stallsmith initially denied that he ever recommended
anyone for a promotion and he never recommended that anyone be denied a promotion. On
cross-examination, Stallsmith was asked if he had recommended promotions for two
specific machinists. He testified that they were both very good machinists and he
acknowledged that he may have made a recommendation. He also acknowledged that had
he been asked about giving a raise to another identified machinist, he would probably have
recommended against it. He had not recalled, however, as to whether any such input was
ever requested from him.
Stallsmith testified that he reported production problems and forwarded work
improvement suggestions to Furlong. If a machinist was going too slowly, Stallsmith would
suggest that he move a little faster. There were occasions when he suggested to machinists
to change the speed or feed on their machines. Occasionally, he would also tell Furlong if
the machinist failed to follow his suggestion. In those instances when it was quite obvious
that a machinist was running a job too slow or “milking it,” he reported such to Furlong.
Stallsmith testified that he would probably tell Furlong that a machinist was “milking it” and
ask Furlong if the machinist could run it any faster. He explained: “It didn’t do me any good
to say anything to many operators there, they didn’t listen to anything I said.”
c. Discipline of employees
Item number 10 of the description provides that the supervisor recommend
disciplinary action regarding employee performance issues or other violations of company
rules or policies. Stallsmith denied that he had ever disciplined another employee. He
admitted that he told Furlong that an employee should be fired after the employee badly
damaged a bridge mill. Stallsmith explained, however, that almost everyone in the shop
made similar comments to Furlong. The employee who damaged the bridge mill was not
terminated and there is no evidence that he was given any discipline.
d. Direction and training of newly hired machinists
Item number 6 of the description provides that the supervisor will direct and train
newly hired machinists. The supervisor is also required to monitor and evaluate the results
of their work and report the work results to the supervisor as appropriate. Stallsmith
testified that there had been no new machinists hired into his area since he had been a leader
on first shift. He denied that he had ever monitored and evaluated the results of newly hired
machinists.
e. Authorization of employee work hours
Item 8 of the job description provides that the supervisor review and authorize
employee work hours and job codes on the Employer’s daily Time Processing Report.
Stallsmith confirmed that only in Furlong’s absence did he ever have occasion to perform
this responsibility. He estimated that it occurred approximately 3 weeks each year and only
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while Furlong was on vacation.
H. Whether Stallsmith was Furlong’s Right-Hand Man
In NLRB v. Yeshiva University, 444 U.S. 672, 683 (1980), the Court noted that under
Board policy, an employee may normally be excluded as managerial only if he represents
management interests by taking or recommending discretionary actions that effectively
control or implement employer policy. The Employer asserts that Stallsmith was a
managerial employee because he was aligned with management as Furlong’s “right-hand
man.” In its argument that Stallsmith was Furlong’s “right-hand man,” the Employer relies
primarily upon two areas of testimony: (1) Stallsmith’s testimony concerning the June 2000
job description and (2) the testimony of a machinist James C. Boals concerning how other
employees perceived Stallsmith’s authority. As discussed below, neither area substantiates a
finding of Stallsmith’s managerial status.
1. The June 2000 job description
The Employer argues that a compelling piece of evidence establishing Stallsmith’s
authority is the job description that he signed in June 2000. The Employer specifically
focuses on the description’s duties that include work assignment, direction of work,
monitoring and evaluation of work, input concerning employee performance, and the
recommendation of disciplinary action.
During the June 11, 2007 cross-examination of Stallsmith, Employer’s counsel
directed Stallsmith to portions of his previous testimony on September 28, 2000, and to
portions of his tape recorded conversation with Keene in June 2000. Stallsmith
acknowledged that during his conversation with Keene and Sekely, he stated that he
performed the duties included in the job description. During cross-examination on June 11,
2007, Stallsmith was also asked about a deposition that he had given in a private lawsuit in
2001. Stallsmith admitted that during the 2001 deposition, he acknowledged his previous
testimony during the 2000 representation hearing. The Employer asserts that Stallsmith’s
responses to Keene and Sekely as well as his subsequent sworn testimony indicates that
Stallsmith did, in fact, perform the duties and exercise the authority set forth in the job
description. I do not find, however, that the entire record supports this premise.
First, whatever Stallsmith told Keene and Sekely about his duties is less persuasive
than the overall evidence of his actual duties and responsibilities. As counsel for the
General Counsel pointed out in his brief, the circumstances of Stallsmith’s June 2000
meeting with Keene and Sekely belies the assertion that Stallsmith willingly acknowledged
all of the duties and authority outlined in the job description. During the meeting, Stallsmith
argued that he performed physical work and he asserted that he did not oversee evaluations
or make recommendations for raises or discipline. He questioned not only the legality of the
Employer’s attempt to convert his job to supervisor, but he also questioned the timing of the
Employer’s action. As evidenced by the tape recording, Stallsmith pointed out that while he
did some of the jobs listed, he did not have all of the authority included in the job
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description. Stallsmith told Keene and Sekely that he wanted to keep his job and he did not
want to be terminated. With continued pressure from the Employer, however, Stallsmith
reluctantly signed the job description. It is quite apparent that Stallsmith was not only
uncomfortable with this meeting, but also fearful of losing his job. The fact that he felt a
need to tape record the conversation indicates his apparent apprehension in participating in
this meeting. Therefore, it is not surprising that he agreed that he performed the duties listed
in the description and that he felt compelled to sign the description. The Employer argues
that Stallsmith acknowledged that he had time to read the job description and understood it
before signing it. The fact that he read it and even understood it does not negate his signing
it under apparent duress.
When Sekely asked Stallsmith if those were his duties as a supervisor, Stallsmith
simply responded: “I do the duties.” During the tape recorded conversation, Stallsmith also
confirmed that he did “the tasks” and he did the “work.” There is no portion of the recorded
conversation in which Stallsmith actually acknowledged that he had the authority to assign
jobs using independent judgment, evaluate employee’s work, participate in employee
reviews, recommend employee merit increases and job classification changes, or to
recommend disciplinary action for employees. Thus, while Stallsmith agreed with Keene
and Sekely that he performed some of the listed tasks and work assignments, he did not
confirm that he had the broad authority and responsibility included in this self-serving job
description; which was apparently prepared by the Employer in response to the Union’s
organizational activity and the Union’s May 25, 2000 petition to represent the Employer’s
employees. Additionally, there is no dispute that Keene told Stallsmith that he was being
asked to sign the job description in order to designate him as a supervisor under Section
2(11) of the Act.
2. Stallsmith’s performance of the alleged duties
Focusing on Stallsmith’s testimony, the Employer asserts that Stallsmith admits to
performing many of the jobs contained in the 2000 job description. Specifically, the
Employer argues that Stallsmith admits to policing machinists’ work and reporting such to
Furlong “when a machinist’s pace of work was not to his liking.” The record reflects,
however, that Stallsmith testified that he seldom told the machinists to pick up the pace of
their work. He explained that he was more likely to tell Furlong that a machinist was
“milking” the job and to ask Furlong if the machinist could run a job any faster. He went on
to explain that it did not do him any good to say anything to the operators because they did
not listen to anything that he said.
The Employer also argues that Stallsmith admitted to recommending the discharge of
a machinist after the machinist badly damaged a bridge mill. Stallsmith testified, however,
that almost everyone else in the shop also recommended the termination of the machinist.
Additionally, there is no evidence that the machinist in question was ever disciplined.
In the posthearing brief, the Employer further asserts that Stallsmith admitted that he
recommended a promotion for two of the employees in the department. During the 2000
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hearing, Stallsmith testified that while Furlong sometimes asks him about how individual
machinists were doing, they never talked directly about an employee’s potential raise.
Additionally, he acknowledged that there were two machinists who were very good and that
he may have recommended to Furlong that they be promoted. Inasmuch as Furlong did not
testimony, there is no evidence as to the extent to which Furlong may have considered
Stallsmith’s recommendation. In response to a question on cross-examination, Stallsmith
could not recollect that Furlong had ever asked his opinion about giving a raise to a
particular employee on second shift. Stallsmith candidly testified, however, that had he
been asked, he would probably not have encouraged it.
The Employer submits that Stallsmith’s testimony indicates that he “roamed” the
large machine department and policed the machinists’ performance and use of tooling.
There is no question that Stallsmith spent a significant amount of time in the work area
assisting and communicating with the machinists. Because he was responsible for keeping
an inventory of inserts and other tooling, it was common practice for him to check the
machines to see if an excessive number of inserts were accumulating at the individual
machines. If he found that to be the case, he redistributed the inserts. If he saw that a
machinist was using an excessive number of inserts, he would try to find the problem. If he
saw that a machinist was using the wrong size end mill or the wrong blade, he would
suggest a change. Based upon the work sheet and the job, Stallsmith would normally
anticipate the tools that would be needed by the machinists. If he saw that a machinist was
using the wrong tool, he would ask him if he could use a different tool that might work
better. If he saw that the machinist did not have the tool that he needed, he would get it for
him from the tool crib. He denied that he ever ordered a machinist to change his tool. If he
thought that the machinist was running the machine too fast, he would suggest a slower
pace. Thus, he readily acknowledged that he regularly observed the operation of the
machines and made suggestions to the machinists for more efficient and effective operation.
The evidence, however, does not support a finding that his observation and suggestions
constituted an evaluation or monitoring of work performance dispositive of managerial
status. Further, while Stallsmith may have offered his personal opinions on employee
performance to Furlong, there is no evidence that Furlong ever acted on them or even
considered them.
3. Whether employees perceived Stallsmith as aligned with management
During the unfair labor practice proceeding, the Employer presented the testimony of
machinist James C. Boals. When asked to describe Stallsmith’s daily duties, Boals
explained that Stallsmith was the person the machinists went to if they needed inserts or
other items. Stallsmith also assisted in helping the machinists “take jobs on and off.” Boals
further described Stallsmith as the man who took care of the tooling, ordered tools for the
machinists, and obtained such materials as clamps, bolts, and nuts that were needed by the
machinists. Stallsmith ate lunch with Boals and the other machinists. Furlong did not.
Boals testified that Stallsmith was Furlong’s “right-hand man” and that he and most
of the other machinists always did what Stallsmith said because he “was supposed to be the
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guy in charge.” Boals confirmed that Stallsmith sometimes questioned why a machinist was
using certain tooling and would often suggest different tooling for a job. He recalled that
when Stallsmith told him that he should be using a short cutter, he told Stallsmith to get him
one and he would use it. He went on to explain that if Stallsmith questioned his using the
wrong size cutter, Stallsmith would also help him find the right size cutter or “they” would
try a different tool. He recalled that during one of their lunch conversations, Stallsmith told
one of the other machinists that he was taking too long to run a particular job. In describing
Stallsmith’s conversation with the machinists during lunch, Boals testified: “… we talked
about that crap at lunch, we’d make fun of each other, you know, and do that stuff.” Boals
remembered that there had been occasions when Stallsmith had also told him that he needed
to slow the machine or to try a different speed. Boals testified that when Stallsmith asked
him to do so, he slowed the machine. He explained that because Stallsmith had more years
of experience, he followed Stallsmith’s suggestions and did what he suggested. Boals
testified that he was afraid that he would get in trouble if he refused to do what Stallsmith
requested. He went on to explain however, that he was afraid of getting in trouble because
he did not want to cost the company excess money. Boals testified that he had been
concerned that he would be “pulled out on the carpet” by Furlong if he had run the machine
incorrectly and it had cost the company money. When asked by the Employer’s counsel as
to how Furlong would find out about such a mistake, Boals speculated that Stallsmith might
tell Furlong. He presented no evidence, however, to substantiate that he had ever been
disciplined or reprimanded because of Stallsmith’s report to Furlong.
Although Boals testified that Stallsmith was the “man in charge,” he also
acknowledged that Stallsmith maintained contact with Furlong by personally speaking with
him and by using a two-way radio. Boals recalled an incident in which he was experiencing
a problem with his machine. Stallsmith called Furlong and told him that he might want to
look at the machine and see if there was anything that Furlong wanted to change and to see
what action Furlong wanted to take. Furlong then came to Boals’ work area and personally
checked out the machine.
I do not find that Boals’ overall testimony demonstrates Stallsmith’s managerial
status. While he broadly described Stallsmith as Furlong’s right-hand man and the guy
“who was supposed to be in charge,” his testimony concerning Stallsmith’s day-to-day
interaction with him and the other machinists is not indicative of managerial status. It is
apparent that Stallsmith worked closely with the machinists to make sure that they had the
necessary tooling to do their jobs correctly. Additionally, it is not disputed that if he saw a
problem in the production, he suggested ways that they could perform their work with
greater efficiency and more cost effectively. Such interaction, however, does not show the
requisite alignment with management.
Furthermore, I do not find Boals’ testimony to be impartial and objective. He
admitted that he had been angry with Stallsmith for something that had occurred during the
time that he worked with Stallsmith. Boals described an incident in which he had damaged
one of the computerized machines by mis-programming the machine. In explaining the
damage to the machine, he explained: “… it screwed everything up pretty bad.”
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The following day Stallsmith asked Boals what happened and Boals explained what
occurred. Stallsmith then spoke with Die Construction Superintendent Sanor and Sanor
devised a way to repair the damage. Boals admitted that he had no other knowledge as to
what Stallsmith did after he learned the details of Boals’ accident. Boals admitted, however,
that he nevertheless became angry with Stallsmith. He believed that Stallsmith had
photographed the damaged machine and left the picture for everyone in the department to
see. Boals admitted, however, that he had not seen Stallsmith take the picture and he had
based his suspicions only upon what other employees had told him. Boals recalled that the
other employees laughed at him and made fun of him. Boals had been upset and he felt that
Stallsmith had made a fool of him. Sometime after Boals damaged the machine, Furlong
asked him what had happened. Boals admitted that it had been his fault.
4. Summary and conclusions
In its decision in Dow Chemical Co., 237 NLRB 1276, (1978), the Board dealt with
the managerial status of paint inspectors. The inspectors, who were referred to as “owner
representatives,” were responsible for distributing work orders to the contractors’ general
foreman and inspecting all phases of painting performed by contractor personnel. They also
coordinated the various phases of work with contractors’ foremen and were responsible for
meeting work schedules. The inspectors were additionally responsible for making certain
that the various jobs were in accordance with the work orders and they had the authority to
either accept or reject the contractors’ work. If the inspector witnessed a violation of a
safety rule, he had the authority to stop the work until there was compliance with the rules.
Inspectors verified overtime worked by contractors’ employees and reviewed and signed
timesheets submitted by contractors and checked and ordered material utilized on the job.
Despite the extent of authority exercised by the inspectors in controlling the flow of work
and in policing and monitoring the work performance, the inspectors were not found to be
managerial employees. The Board concluded that the inspectors lacked a significant degree
of discretion in the performance of their jobs independent of the employer’s established
policy. Id. at 1277. Although the employees in issue in Dow Chemical, Co., exercised their
authority primarily with outside contractors’ supervisors and employees, they nevertheless
had the requisite authority to speak for the employer and were viewed as the employer’s
representatives in managing and monitoring the work. Their authority was quite similar to
Stallsmith’s responsibilities in keeping the department machines operating at maximum
efficiency with minimal waste and expense. His suggestions to the operators to modify or to
improve their performance were strikingly similar to the responsibilities of the paint
inspectors.
The Employer cites the Board’s decision in EDP Medical Computer Systems, Inc.,
284 NLRB 1232, 1263 (1987); asserting that the Board found the “right-hand man” of a
company officer to be a managerial employee where the employee was placed in a position
in which the employees could reasonably believe that he was an agent of management.
While the employee in issue was found to be a managerial employee and also found to be in
a position wherein employees could reasonably believe him to be an agent of the employer,
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the circumstances of the cited case are significantly distinguishable. In EDP Medical
Computer Systems, Inc., the employer stipulated that the employee in issue was a managerial
employee during a representation proceeding. The employee assigned work to employees,
signed checks on behalf of the employer, resolved employee problems, and effectively
recommended a raise for an employee. The employee was in charge of the employer’s
facility on Jewish holidays and on Fridays in the absence of the principals. The employee
held himself out to the public as a representative of management, using titles such as
controller and assistant to the president. Finding the employee to be in an executive type
position, the judge determined that he was more closely aligned with management than
rank-and-file employees. With respect to how he was viewed by other employees, the judge
noted that even if the employee were not found to be a managerial employee, it was clear
that the respondent had placed him in a position in which employees could reasonably
believe that he speaks on management’s behalf. Accordingly, the judge determined that the
employee in issue must be found to be an agent of the respondent. Thus, the employee in
issue was found to be an agent of the employer partly because of his managerial status,
rather than his being a managerial employee because of his agency status.
Although the Board has established no firm criteria for determining when an
employee is sufficiently aligned with management to confirm managerial status, an
employee will usually be excluded from the protection of the Act as managerial only if he
represents management interests by “taking or recommending discretionary actions that
effectively control or implement employer policy.” NLRB v. Yeshiva University, 444 U.S.
672, 682-683 (1980). The total record evidence in this case does not reflect that Stallsmith’s
duties, responsibilities, or authority met this criteria. Stallsmith was actively involved in
supplying the necessary tooling to the machinists and in assisting them to utilize the tooling
in the most efficient and cost effective manner. As supported by Boals’ testimony,
machinists followed his suggestions and directions because he was more experienced. At
the time of his termination, Stallsmith had worked for the Employer for over 28 years. He
began as a machinist and progressed through all of the pay scales until he became the top
machinist and then he finally became a lead employee in 1996. One of his primary
responsibilities was to maintain the inventory of inserts. His testimony reflects that he was
able to do this by monitoring how quickly the inserts were being used by the machinists. In
doing so, he assisted the machinists in improving their performance and in using the right
tooling. While Stallsmith’s interaction with the machinists may have helped him to perform
his personal job responsibilities and duties, such interaction did not constitute discretionary
actions that controlled or implemented an employer policy. Thus, I do not find that
Stallsmith was a managerial employee at the time of his termination.
Finding that Stallsmith was not a managerial employee at the time of his discharge, I
have credited in large part the testimony of Robert Stallsmith in both the representation
proceeding as well as the unfair labor practice proceeding. The Employer submits that
Stallsmith’s testimony is not credible because portions of his testimony in the representation
proceeding and the unfair labor practice proceeding are contradictory. I do not find a
significant variance sufficient to discredit his overall testimony. Stallsmith testified on
various dates throughout the representation hearing; a proceeding that spanned a 19-month
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period of time. More than 5 years later, he again testified in the unfair labor practice
hearing. It is not unreasonable that there would be some variance in his recall over this 7-
year period of time. Any discrepancies in his testimony throughout this 7-year period were
minor. His overall testimony was consistent. I found him to be a forthright and credible
witness. One of the most significant factors in crediting Stallsmith, however, is the fact that
he was essentially uncontradicted in his testimony. Neither Furlong nor Metzger were
called to testify in either the representation proceeding or the unfair labor practice
proceeding. The failure to call a witness whose testimony would reasonably be presumed to
favor a party warrants an adverse inference that had the individual been called as a witness,
his testimony would not have supported the party’s position. DMI Distribution of Delaware,
Ohio Inc., 334 NLRB 409, 412 (2001): Iron Workers Local 118 (California Erectors), 309
NLRB 808, 811 (1992); Property Resources Corp., 285 NLRB 1105 fn. 2 (1987).
Accordingly, inasmuch as Stallsmith was essentially uncontradicted, I credit his testimony.
There is no dispute that the Employer terminated Stallsmith because of his support
for the Union. The Employer asserts that it did so because of its belief that Stallsmith was a
managerial employee and thus his termination was not viewed as a violation of the Act.
Additionally, Stallsmith’s tape-recorded conversation with Sekely and Keene demonstrates
that the Employer sought his signature on the June 2000 job description in order to also
establish his supervisory status under Section 1(11) of the Act.
The Board has long held, however, that if the conduct giving rise to the employer’s
mistaken belief is itself protected, then the employer’s erroneous actions cannot justify the
employee’s termination. The fact that an employer may have acted in good faith is
immaterial where the activity for which the employee was discharged was actually protected
by the Act. To excuse the employer because of even a good-faith mistake would materially
weaken the guarantees of the Act and would allow the employer’s state of mind to vary the
extent of employees’ protected rights. Montgomery Ward & Co., 179 NLRB 686, 692
(1969). Thus, the Employer’s mistaken belief that Stallsmith was a supervisor or managerial
employee does not lessen the protection of the Act or excuse action that would otherwise be
unlawful.
For there to be a violation of Section 8(a)(1) and (3) of the Act , the Board’s
guidelines in Wright Line, 251 NLRB 1083, (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), require the General Counsel to make a prima facie showing
sufficient to support the inference that the employee’s protected conduct was a “motivating
factor” in the employer’s decision to terminate the employee. In this instance, it is
undisputed that Stallsmith supported the Union and that he was terminated because of that
support. Accordingly, inasmuch as he was fully protected by the Act at the time of his
discharge, his termination violates Section 8(a)(1) and (3) of the Act. Farmer Bros. Co.,
303 NLRB 638, 649 (1991), enfd. 988 F.2d 120 (9th Cir. 1993).
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Conclusions of Law
1. The Employer, composed of Sekely Industries, Inc. and Solartec, Inc., is
engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2. The International Union, United Automobile, Aerospace and Agricultural
Implement Workers of America, UAW, Region 2B is a labor organization within the
meaning of Section 2(5) of the Act.
3. By terminating the employment of Robert Stallsmith on July 10, 2000, the
Employer violated Section 8(a)(1) and (3) of the Act.
Remedy
Having found that the Employer has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Employer having discriminatorily discharged Robert Stallsmith, it must offer
him reinstatement and make him whole for any loss of earnings and other benefits,
computed on a quarterly basis from date of discharge to date of proper offer of
reinstatement, less any net interim earnings, as prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), plus interest, as computed in New Horizons for the Retarded, 283 NLRB
1173 (1987).
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended:12
ORDER
The Employer, Solartec, Inc. and Sekely, Industries, Inc., Salem, Ohio, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against any employee for
supporting the International Union, United Automobile, Aerospace and Agricultural
Implement Workers of America, UAW, Region 2B, or any other labor organization.
(b) 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.

12 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended 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.
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2. Take the following affirmative action necessary to effectuate the policies of
the Act:
(a) Within 14 days from the date of this Order, if the Employer has not
already done so, offer Robert Stallsmith full reinstatement to his former job, or, if that job no
longer exists, to a substantially equivalent position, without prejudice to his seniority or any
other rights or privileges previously enjoyed.
(b) Make Robert Stallsmith whole for any loss of earnings and other
benefits suffered as a result of the discrimination against him, in the manner set forth in the
remedy section of this decision.
(c) Within 14 days from the date of this Order, remove from its files any
reference to the unlawful discharge of Robert Stallsmith, and within 3 days thereafter notify
him in writing that this has been done and that the discharge will not be used against him in
any way.
(d) Preserve and, within 14 days of a request, or such additional time as
the Regional Director may allow for good cause shown, provide at a reasonable place
designated by the Board or its agents, all payroll records, social security payment records,
timecards, personnel records and reports, and all other records, including an electronic copy
of such records if stored in electronic form, necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Within 14 days after service by the Region, post at its Salem, Ohio,
facility copies of the attached notice marked “Appendix.”13 Copies of the notice, on forms
provided by the Regional Director for Region 8, after being signed by the Employer's
authorized representative, shall be posted by the Employer 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 Employer 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 Employer has gone out of business
or closed the facility involved in these proceedings, the Employer shall duplicate and mail,
at its own expense, a copy of the notice to all current employees and former employees
employed by the Employer at any time since July 10, 2000.
(f) Within 21 days after service by the Region, file with the Regional

13 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.”
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Director a sworn certification of a responsible official on a form provided by the Region
attesting to the steps that the Employer has taken to comply.
Dated, Washington, D.C., August 23, 2007.
Margaret G. Brakebusch
Administrative Law Judge
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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.
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 benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT discharge or otherwise discriminate against any of you for supporting the
International Union, United Automobile, Aerospace and Agricultural Implement Workers of
America, UAW, Region 2B or any other union.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order, offer Robert Stallsmith, full
reinstatement to his former job or, if his job no longer exists to a substantially equivalent job
without prejudice to his seniority or other rights or privileges previously enjoyed; and WE
WILL make him whole for any loss of earnings and other benefits resulting from his
discharge less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s Order, remove from our files any
reference to the unlawful discharge of Robert Stallsmith, and WE WILL, within 3 days
thereafter, notify him in writing that this has been done and that the discharge will not be
used against him in any way.
SOLARTEC, INC./SEKELY INDUSTRIES, INC.
(Employer)
Dated By
(Representative) (Title)
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The National Labor Relations Board is an independent Federal Agency created in 1935 to
enforce the National Labor Relations Act. It conducts secret-ballot elections to determine
whether employees want union representation and it investigates and remedies unfair labor
practices by employers and unions. To find out more about your rights under the Act and
how to file a charge or election petition, you may speak confidentially to an agent with the
Board’s Regional Office set forth below. You may also obtain information from the Board’s
website: www.nlrb.gov.
1240 East 9th Street – Room 1695, Cleveland, Ohio 44199-2086
(216) 522-3716, Hours: 8:15 a.m. to 4:45 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE
DATE OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY
ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE
REGIONAL OFFICE’S COMPLIANCE OFFICER (216) 522-3740.