Solartec, Inc.

National Labor Relations Board - Board Decisions

Apr 11, 2008

352 N.L.R.B. 331 (N.L.R.B. 2008)

SOLARTEC, INC.
352 NLRB No. 52
331
Solartec, Inc. and Sekely Industries, Inc. and Interna-
tional Union, United Automobile, Aerospace,
and Agricultural Implement Workers of Amer-
ica, UAW, Region 2B. Case 8–CA–31778–11
April 11, 2008
DECISION AND ORDER
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
On August 23, 2007, Administrative Law Judge Mar-
garet G. Brakebusch issued the attached decision. The
Respondent filed exceptions and a supporting brief, the
General Counsel filed an answering brief, and the Re-
spondent filed a reply brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,2 and conclusions and to adopt the recommended
Order.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondents, Solartec, Inc. and Sekely
Industries, Inc., a single employer, Salem, Ohio, its offi-
cers, agents, successors, and assigns, shall take the action
set forth in the Order.
Steven Wilson and Melanie Bordelois, Esqs., for the General
Counsel.
Scott A. Lefelar, Esq., for the Employer.
Bob Nece, Organizing Representative, for the Charging Party.
DECISION
STATEMENT OF THE CASE
MARGARET G. BRAKEBUSCH, Administrative Law Judge.
This case was tried in Cleveland, Ohio, on June 11, 2007. The

1 On April 7, 2008, the Board granted the General Counsel’s motion
to sever the instant case from Cases 8–CA–31778, 8–CA–31943, 8–
CA–32362, 8–CA–32427, 8–CA–32462, and 8–CA–33237, and re-
manded the severed cases to the Regional Director for further appropri-
ate action.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
3 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Schaumber and Member Liebman constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
charge in Case 8–CA–31778–1 was filed by the UAW, Region
2B (the 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
(the Board) issued an order 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’ stipula-
tion described below, both Solartec, Inc. and Sekely Industries,
Inc. are referenced collectively as the Employer for this pro-
ceeding. 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 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 con-
tained 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 con-
solidated complaint paragraph 35 and in conjunction with a
non-Board settlement. Paragraph 39 of the consolidated com-
plaint 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 con-
solidated 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) alle-
gations, 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 with-
draw the charges and allegations as enumerated was granted.

1 Specifically, the settlement agreement settles the allegations con-
tained in pars. 6 through 33, 36, 37, and 38, and corresponding allega-
tions in pars. 40, 41, and 42 of the consolidated complaint.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD332
During the June 11, 2007 trial, the parties additionally sub-
mitted 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
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. 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 war-
ranted 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 de-
scribed 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 con-
ducted 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 ex-
hibits 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 por-
tions of the representation proceeding upon which they respec-
tively rely in this unfair labor practice proceeding. On the en-
tire 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

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 de-
fense to its pursuit of litigation at a later stage in this proceeding.
Employer admits that it3 is engaged in commerce and also ad-
mits 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 or-
ganization within the meaning of Section 2(5) of the Act.
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 Board, seeking to represent
all full-time production and maintenance employees of So-
lartec, 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 Direc-
tor 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 Elec-
tions. 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 em-
ployees and on the scope or degree of “independent judgment”
used in the exercise of such authority.
Commencing on January 14, 2002, and continuing on vari-
ous 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 gen-
erated a total transcript of 4230 pages of sworn testimony, the
Regional Director issued a Supplemental Decision and Direc-
tion of Elections on August 12, 2002. In the Supplemental

3 Although the issue of whether Solartec, Inc. and Sekely Industries,
Inc. constitute a single employer is deferred to the compliance proceed-
ing, the Employer admits that both entities are engaged in commerce.
4 There are 3031 transcript pages for this initial portion of the hear-
ing.
5 The evidence also involved the issue of whether Solartec, Inc. and
Sekely, Industries, Inc. constitute a single employer.
SOLARTEC, INC. 333
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 Re-
quest for Review. On September 28, 2006, the Board issued
decisions in Oakwood Healthcare, Inc., 348 NLRB 686 (2006),
Croft Metals, Inc., 348 NLRB 717 (2006), and Golden Crest
Healthcare Center, 348 NLRB 727 (2006), in which the Board
established new definitions of the terms “assign,” “responsibil-
ity to direct,” and “independent judgment.” On January 4,
2007, the Regional Director for Region 8 issued a Second Sup-
plemental Decision and Direction of Elections, finding the
Sekely small machine department leader and the die construc-
tion 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 auto-
motive 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 posi-
tion 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 presi-
dent 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 de-
partment leader on the first shift. He had held that position
since March 1996 and was supervised by Large Machine Su-
pervisor7 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 em-
ployees at the Employer’s facility.8
Stallsmith did not have an office. He had a workbench in the
tool/grinding department where he repaired tooling. He also
kept a toolbox 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 adminis-
trative responsibilities.

6 The Employer asserts in its posthearing brief that the Sekely Indus-
tries, 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.
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 Un-
ion’s organizing efforts. The Employer argues that it termi-
nated 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 lead-
ers was resolved over the course of the above-described repre-
sentation proceedings, Stallsmith’s status as a supervisor or
manager was not resolved.
The Employer asserts that Stallsmith was a managerial em-
ployee at the time of his discharge, and thus without the protec-
tion of the Act. Specifically, the Employer asserts that Stalls-
mith was a managerial employee because he (1) exercised ple-
nary 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 employ-
ees 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 manage-
rial 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 express-
ing and making operative the decisions of their employers, and
those who have discretion in the performance of their jobs in-
dependent of their employer’s established policy.” General
Dynamics Corp., 213 NLRB 851, 857 (1974). There is no dis-
pute that the specific job title of the employee is not control-
ling. Whether an employee is “managerial” is determined by
the employee’s actual job responsibilities, authority, and rela-
tionship to management. 416 U.S. at 290.
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

9 416 U.S. 267 (1974).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD334
which were computercontrolled. Stallsmith testified that by
following a worksheet, 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 trans-
port the heavier dies. Stallsmith explained that the major ma-
chine area ran from one end of the plant to the other and that he
had some responsibility for all the machines in the major ma-
chine 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 ma-
chine was used for a specific die or that he had any responsibil-
ity for programming the machines or determining the operators
for the machines. He testified that while he sometimes sug-
gested 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 direc-
tion, Stallsmith prepared the orders for the repairs.
3. Stallsmith’s purchasing responsibilities
The Employer argues that Stallsmith is a managerial em-
ployee by virtue of his duties as “tooling buyer.” The extent to
which he was involved in purchasing both routine and non-
routine items for the Employer received a great deal of atten-
tion 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 repre-
sentatives who visited the plant. Stallsmith described the meet-
ings with the sales representatives as unscheduled and 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 repre-
sentatives 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 as-
sumed the responsibility for talking with the sales representa-
tives 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 testi-
fied 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 Em-
ployer 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 expen-
sive 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, how-
ever, that he ever tested or purchased the products without con-
sulting 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 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 in-
structed to do. He recalled that sometimes the sales representa-
tives 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.
SOLARTEC, INC. 335
The Employer argues in its posthearing brief that if Stalls-
mith was satisfied with the testing of a new tool, he would pur-
chase 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 num-
ber of purchase requisition orders that he had prepared. Stalls-
mith explained, however, that if the department needed tooling
or tool bodies, he notified Furlong. Based upon Furlong’s di-
rective, 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 pur-
chase of a gun safe. Stallsmith testified that while he also pre-
pared 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 in-
ventory 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 inven-
tory 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 con-
tinued 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 indi-
cated 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 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 a document relating to the Employer’s blan-
ket 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

10 He continued to submit purchase requisition orders even after he
no longer met with the sales representatives who visited the facility.
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 em-
ployees 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 in-
serts. Stallsmith is not listed as having such purchasing author-
ity for the carbide inserts or for any other items.
Stallsmith recalled that “a couple of times” Furlong sug-
gested that he not order as many inserts because the department
was getting close to the budget for the month. During the rep-
resentation hearing, Controller Jeff Musleve testified that Fur-
long and Stallsmith had been present for an October 1999 meet-
ing 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 sup-
pliers 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 iden-
tified other suppliers and purchase items for which he had sub-
mitted requisitions to Furlong in 1999. Stallsmith acknowl-
edged 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 requi-
sitions for tooling. Stallsmith continued his testimony, how-
ever, by further explaining that he usually spoke with Furlong
before he actually submitted the requisition and therefore he
knew in advance as to whether 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 experi-
mental tooling and that Stallsmith selected the tools to pur-
chase. 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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD336
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. Stalls-
mith 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 di-
rected Stallsmith to prepare an order for the experimental in-
serts.
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 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 em-
ployee’s exercise of discretion is not a touchstone of manage-
rial authority if the employee’s actions must conform to the
employer’s established policy. Eastern Camera & Photo
Corp., 140 NLRB 569, 571 (1963); and Retail Clerks Interna-
tional Assn. v. NLRB, 366 F.2d 642, 645 (D.C. Cir. 1966). As
the Supreme Court specifically noted in NLRB v. Yeshiva Uni-
versity, supra, 444 U.S. at 683, a managerial employee must
“exercise discretion within, or even independently of, estab-
lished 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 manage-
rial when the employee represents management interests by
taking or recommending discretionary actions that effectively
control or implement employer policy. Ibid.
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 em-
ployee’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 manage-
rial status. Sampson Steel & Supply, 289 NLRB 481, 482

11 American Federation of Labor-Congress of Industrial Organiza-
tions, 120 NLRB 969, 972 (1958).
(1988); and Westinghouse Electric Corp. 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 em-
ployer’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 ex-
clude the employee from the protection of the Act as a manage-
rial employee. Id. at 345.
The Employer asserts that Stallsmith operated with inde-
pendence and autonomy in negotiating tooling prices with the
vendors. The Employer specifically points to Stallsmith’s tes-
timony 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 testi-
mony, however, that part of his job was to find better prices.
During the unfair labor practice proceeding, Stallsmith ex-
plained 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 representa-
tives 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 occa-
sions when he rejected a supplemental price quote from a ven-
dor. 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 manage-
rial status. Case Corp., 304 NLRB 939, 949 (1991), enfd. 995
F.2d 700 (7th Cir. 1993).
In the Board’s decision in Washington Post Co., 254 NLRB
168, 189 (1981), an assistant purchasing manager was not
found to be a managerial employee although half the em-
ployee’s time was devoted to determining the need for stock
items and ordering such items. The assistant purchasing man-
ager usually solicited three bids from vendors, and then, using
price and quality guidelines, selected the most appropriate ven-
dor for the employer. The total of the inventory under the con-
trol of the assistant manager approximated $500,000 and the
monthly authorization for purchases ranged from $25,000 to
$50,000. The Board concluded that while the assistant manager
was able to commit the employer to purchasing stock items, the
assistant manager must nevertheless conform to certain em-
ployer 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
SOLARTEC, INC. 337
indicative of independent discretion or actions outside the em-
ployer’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 sub-
stantial 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 func-
tions 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 re-
sponsibility 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 is-
sue in Concepts & Designs, Inc. had the discretion and author-
ity 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 dis-
cretion in performing her duties was not ordinarily reviewed by
any company official. She was the only company representa-
tive 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 re-
sponsibility for choosing vendors or for rejecting vendors be-
cause 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 testi-
mony 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 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 mana-
gerial 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. Addi-
tionally, the estimator met with the director of industrial rela-
tions 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 responsi-
bility given to Stallsmith. The evidence in this case reflects
that Stallsmith often served as a conduit for vendors to intro-
duce 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 author-
ity 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 ven-
dors 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 addition to assuring proper installation. She
handled trouble shooting and also developed and implemented
the prepress computer system policies. She monitored the sys-
tem 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 inde-
pendently 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, 344 NLRB 279, 292
(2005), only the alleged managerial employee and her supervi-
sor 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 re-
sulted in more than $23,000 in payments to the outside contrac-
tors. 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 expenditure of
funds for work on the program was not found to be independent
of established employer policy. Rather, it was found to be rou-
tine operating procedure under the employer’s established pol-
icy to allow her to authorize such work on its software pro-
gram. Her authority is not really that much different from that
exercised by Stallsmith. Because he was the person most fa-
miliar with all of the machines and their tooling needs, it is
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD338
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 de-
partment 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. Stalls-
mith credibly testified that once he and the tool grinder submit-
ted 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 de-
partment. He maintains, however, that he did so only at Fur-
long’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 Em-
ployer’s controller initially placed Stallsmith at a budget meet-
ing 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 Fur-
long to keep him within budget guidelines.
Thus, there is nothing in the record to indicate that Stalls-
mith’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 mana-
gerial 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 De-
scription.” The document was captioned “Major Machine Su-
pervisor” and included a job summary as well as a listing of job
duties and responsibilities. The document was given to Stalls-
mith 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 proceed-
ing.
During the meeting, Keene told Stallsmith that some of his
duties had always been a part of management. Stallsmith ques-
tioned why it was advantageous for him to be considered as a
part of management at that time when it had not been advanta-
geous 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 re-
sponded: “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 rec-
ommend 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 ques-
tioned 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 per-
formed 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 admit-
ted 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 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 pres-
ence 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.
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 ac-
SOLARTEC, INC. 339
knowledged 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 in-
structed a machinist to change tools. If a machinist needed a
different tool and did not have it, Stallsmith got it for him from
the toolcrib. An additional duty shown in paragraph one of the
document is the requirement to execute a daily lineup for both
the computerized and conventional machines. Stallsmith as-
serted that while he received a daily lineup from Furlong, he
did not create the daily lineup.
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 de-
scription. 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 lineup
sheet.
Stallsmith explained that while he might occasionally offer
suggestions or recommendations to Furlong concerning the job
lineup, Furlong sometimes listened and sometimes did not lis-
ten. When Furlong was on vacation, Die Construction Superin-
tendent Sanor determined the priorities of the jobs in the de-
partment. If there were two machines opened at the same time
and only one job, Stallsmith consulted Sanor as to which ma-
chine would be used. There were occasions when he had to
change the lineup 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 rec-
ommend employee merit increases and job classification
changes. Stallsmith denied that he ever reviewed other em-
ployees 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 Fur-
long’s preparation of written employee evaluations. Stallsmith
acknowledged that if 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 rec-
ommended 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 sug-
gested to machinists to change the speed or feed on their ma-
chines. Occasionally, he would also tell Furlong if the machin-
ist 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 testi-
fied 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 10 of the description provides that the supervisor rec-
ommend disciplinary action regarding employee performance
issues or other violations of company rules or policies. Stalls-
mith 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 6 of the description provides that the supervisor will di-
rect 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. Stalls-
mith 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 re-
view 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 ap-
proximately 3 weeks each year and only 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 man-
agement interests by taking or recommending discretionary
actions that effectively control or implement employer policy.
The Employer asserts that Stallsmith was a managerial em-
ployee because he was aligned with management as Furlong’s
“right-hand man.” In its argument that Stallsmith was Fur-
long’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 ma-
chinist James C. Boals concerning how other employees per-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD340
ceived 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 es-
tablishing 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,
the 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 in-
cluded 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 ad-
mitted 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 au-
thority 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 author-
ity outlined in the job description. During the meeting, Stalls-
mith 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 evi-
denced by the tape recording, Stallsmith pointed out that while
he did some of the jobs listed, he did not have all of the author-
ity included in the job 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, how-
ever, 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 appar-
ent 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 acknowl-
edged that he had time to read the job description and under-
stood it before signing it. The fact that he read it and even un-
derstood 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 con-
firmed 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, par-
ticipate in employee reviews, recommend employee merit in-
creases and job classification changes, or to recommend disci-
plinary 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 Em-
ployer 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 report-
ing 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 Fur-
long 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 rec-
ommending 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 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 testify, there is no
evidence as to the extent to which Furlong may have consid-
ered Stallsmith’s recommendation. In response to a question
on cross-examination, Stallsmith could not recollect that Fur-
long had ever asked his opinion about giving a raise to a par-
ticular 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 ques-
tion that Stallsmith spent a significant amount of time in the
work area assisting and communicating with the machinists.
SOLARTEC, INC. 341
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 accumu-
lating 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 worksheet 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 toolcrib. 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 moni-
toring of work performance dispositive of managerial status.
Further, while Stallsmith may have offered his personal opin-
ions 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 guy in
charge.” Boals confirmed that Stallsmith sometimes ques-
tioned 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 pre-
sented 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 con-
tact 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 ma-
chine.
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 Stalls-
mith’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. Addi-
tionally, it is not disputed that if he saw a problem in the pro-
duction, he suggested ways that they could perform their work
with greater efficiency and more cost effectively. Such interac-
tion, however, does not show the requisite alignment with man-
agement.
Furthermore, I do not find Boals’ testimony to be impartial
and objective. He admitted that he had been angry with Stalls-
mith 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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD342
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 neverthe-
less 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 dam-
aged 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 in-
spectors. The inspectors, who were referred to as “owner rep-
resentatives,” were responsible for distributing work orders to
the contractors’ general foreman and inspecting all phases of
painting performed by contractor personnel. They also coordi-
nated 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 vari-
ous 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 inspec-
tors 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 contrac-
tors’ 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 per-
formance were strikingly similar to the responsibilities of the
paint inspectors.
The Employer cites the Board’s decision in EDP Medical
Computer Systems, 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 where employees could reasonably believe him to be
an agent of the employer, the circumstances of the cited case
are significantly distinguishable. In EDP Medical Computer
Systems, 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 effec-
tively 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 man-
agement than rank-and-file employees. With respect to how he
was viewed by other employees, the judge noted that even if
the employee was 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 re-
spondent. 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 de-
termining when an employee is sufficiently aligned with man-
agement 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 recom-
mending discretionary actions that effectively control or im-
plement 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 assist-
ing them to utilize the tooling in the most efficient and cost
effective manner. As supported by Boals’ testimony, machin-
ists 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 ma-
chinists 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
SOLARTEC, INC. 343
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
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 proceed-
ing. The failure to call a witness whose testimony would rea-
sonably be presumed to favor a party warrants an adverse infer-
ence that had the individual been called as a witness, his testi-
mony would not have supported the party’s position. DMI
Distribution of Delaware, Ohio, 334 NLRB 409, 412 (2001);
Iron Workers Local 118 (California Erectors), 309 NLRB 808,
811 (1992); and 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 manage-
rial 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 Em-
ployer 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 mate-
rially weaken the guarantees of the Act and would allow the
employer’s state of mind to vary the extent of employees’ pro-
tected 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 em-
ployee’s protected conduct was a “motivating factor” in the
employer’s decision to terminate the employee. In this in-
stance, 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).
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 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 un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate 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 quar-
terly 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 recommended12
ORDER
The Employer, Solartec, Inc. and Sekely, Industries, Inc., Sa-
lem, Ohio, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against any em-
ployee for supporting the 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.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, if the Em-
ployer 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

12 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD344
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 addi-
tional 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 re-
cords, 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 Sa-
lem, Ohio, facility copies of the attached notice marked “Ap-
pendix.”13 Copies of the notice, on forms provided by the Re-
gional Director for Region 8, after being signed by the Em-
ployer’s authorized representative, shall be posted by the Em-
ployer immediately upon receipt and maintained for 60 con-
secutive 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 for-
mer 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 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.

13 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
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 be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT discharge or otherwise discriminate against
any of you for supporting the UAW, Region 2B, or any other
union.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by 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.
WE WILL make him whole for any loss of earnings and other
benefits resulting from his discharge less any net interim earn-
ings, 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 dis-
charge will not be used against him in any way.
SOLARTEC, INC. AND SEKELEY INDUSTRIES, INC.