Triple A Fire Protection

National Labor Relations Board - Board Decisions

Oct 19, 1993

312 N.L.R.B. 1088 (N.L.R.B. 1993)

1088
312 NLRB No. 162
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 John Deklewa & Sons, 282 NLRB 1375 (1975), enfd. sub nom.
Iron Workers Local 3 v. NLRB, 843 F.2d 770 (3d Cir. 1988), cert.
denied 488 U.S. 889 (1988).
Triple A Fire Protection, Inc. and United Associa-
tion of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the
United States and Canada, Road Sprinkler Fit-
ters Local Union No. 669, AFL–CIO. Case 15–
CA–11498
October 19, 1993
ORDER REMANDING
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On March 26, 1993, Administrative Law Judge
Richard J. Linton issued the attached decision. The
General Counsel, the Charging Party, and the Re-
spondent filed exceptions and supporting briefs. The
General Counsel and the Charging Party also filed an-
swering briefs.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to remand the proceeding
to the judge for consideration of the complaint allega-
tions in light of our findings set forth below.
The complaint alleges, inter alia, that the Respond-
ent violated Section 8(a)(5) and (1) of the Act by ceas-
ing to make fringe benefit contributions and changing
the wage rates of employees provided for in the ex-
pired collective-bargaining agreement between the Re-
spondent and the Union. The judge found that the
agreement was an 8(f) contract and therefore the Re-
spondent was free to repudiate it on expiration. We
disagree with the judge.
The Respondent is an Alabama corporation engaged
in the construction industry installing sprinkler sys-
tems. For several years, the Union has entered into na-
tional collective-bargaining agreements with the Na-
tional Fire Sprinkler Association, Inc. Since 1983, the
Respondent has been party to successive national col-
lective-bargaining agreements, the latest effective from
April 1, 1988, through March 31, 1991.
In early October 1987, the Union sent a letter to the
Respondent requesting that the Respondent sign a form
recognition agreement. The purpose of obtaining the
signed form was to ‘‘solicit [the Respondent’s] co-
operation in minimizing any possible disruption to our
relationship that might otherwise be caused by the
Deklewa1 decision,’’ and to confirm the Union’s ‘‘sta-
tus as the current exclusive bargaining representative
of your sprinkler fitter employees under the National
Labor Relations Act.’’ The Union enclosed a copy of
a fringe benefit report form and the recognition form.
The recognition form, signed on October 19, 1987,
by the Respondent’s president, Alton Turner, reads:
ACKNOWLEDGEMENT OF THE
REPRESENTATIVE STATUS
OF ROAD SPRINKLER FITTERS
LOCAL UNION NO. 669, U.A., AFL–CIO
The Employer executing this document below
has, on the basis of objective and reliable infor-
mation, confirmed that a clear majority of the
sprinkler fitters in its employ have designated, are
members of, and are represented by, Road Sprin-
kler Fitters Local Union No. 669, U.S., AFL–
CIO, for purposes of collective bargaining.
The Employer therefore unconditionally ac-
knowledges and confirms that Local 669 is the
exclusive bargaining representative of its sprinkler
fitter employees pursuant to Section 9(a) of the
National Labor Relations Act.
The Union states in its letter that the enclosed fringe
benefit form, covering the weeks ending May 30
through June 20, 1987, ‘‘confirms that all, or nearly
all, of your sprinkler fitter employees are members of
and represented by Local 669.’’ The form lists eight
names, including Respondent President Alton Turner
and his son, a supervisor. Turner testified that before
March 1991, the greatest number of workers employed
for a given month was seven or eight.
On March 26, 1991, the Respondent informed the
Union that, effective on the expiration of the contract
on March 31, it would no longer adhere to the extant
wage and benefit terms and conditions of employment.
The judge rejected the contention of the General
Counsel and the Union that the Union in 1987 attained
the status of a 9(a) representative. He found that al-
though the Respondent voluntarily recognized the
Union as the exclusive 9(a) representative of its em-
ployees and the fringe benefit reports reflected that a
majority of the Respondent’s sprinkler fitter employees
were then members of the Union, the transformation
from 8(f) to 9(a) status requires a more ‘‘affirmative’’
showing of majority support ‘‘manifested’’ by unit em-
ployees. The judge concluded that the General Counsel
and the Union failed to carry their burden of establish-
ing that the Union’s 8(f) contractual status with the
Respondent matured into a relationship under Section
9(a) of the Act. He therefore dismissed the complaint.
We do not agree with the judge. The record estab-
lishes that the Union made an unequivocal demand for
recognition as the 9(a) representative of the Respond-
ent’s unit employees and proffered to the Respondent
documentary evidence which was purported to support
the Union’s claim of majority status. By executing the
acknowledgement, the Respondent voluntarily and un-
equivocally granted recognition to the Union as 9(a)
representative. It is clear that the parties intended to
establish a bargaining relationship under Section 9(a)
1089TRIPLE A FIRE PROTECTION
2 The Respondent contends that the Union was not a 9(a) rep-
resentative because the Union did not represent an uncoerced major-
ity of its unit employees, arguing that it had unlawfully assisted the
Union in the past and that the Union’s acts had coerced a majority
into supporting the Union.
3 In joining his colleagues in finding that the agreement between
the parties was a 9(a) contract, Member Devaney relies on the par-
ties’ clear expression of their intent in October 1987 that they were
establishing a 9(a) bargaining relationship. See Comtel Systems Tech-
nology, 305 NLRB 287, 291 (1991) (Member Devaney, dissenting).
Member Devaney did not participate in Casale Industries and does
not rely on the 6-month time limit on construction industry employ-
ers’ challenges to 9(a) relationships set forth therein. In his view, the
basis for applying a 10(b) limitations period in the nonconstruction
industry workplace, where minority recognition is unlawful, does not
hold in the construction industry, where there is no statutory prohibi-
tion on minority recognition.
of the Act. See Golden West Electric, 307 NLRB 1494
(1992).
Contrary to the approach of the judge and the Re-
spondent,2 we will not at this late date inquire into the
Union’s showing of majority status. In Deklewa, the
Board stated that unions should not have less favored
status with respect to construction industry employers
than they possess with respect to those outside the con-
struction industry. In nonconstruction industries, if an
employer grants Section 9 recognition to a union and
more than 6 months elapse, the Board will not enter-
tain a claim that majority status was lacking at the
time of recognition. As parties in the construction in-
dustry are entitled to no less protection against such
late claims, we will not entertain a challenge here,
where the Respondent voluntarily recognized the
Union as a 9(a) representative in 1987 and waited until
4 years later to object. See Casale Industries, 311
NLRB 951 (1993), which issued after the judge’s deci-
sion in the instant case.3
Because he dismissed the complaint based on his
threshhold finding that the agreement between the par-
ties was an 8(f) and not a 9(a) contract, the judge did
not address the issue of whether the Respondent may
have been privileged to implement changes in wages
and fringe benefit contributions because of impasse or
other reasons. We shall remand the proceeding for a
resolution of the complaint’s unilateral change and
other allegations in light of our reversal of the judge’s
8(f) finding.
ORDER
IT IS ORDERED that the proceeding is remanded to
the judge for resolution of the complaint allegations in
light of our determination above.
IT IS FURTHER ORDERED that the judge shall prepare
and serve on the parties a supplemental decision set-
ting forth credibility resolutions, findings of fact, and
conclusions of law and recommendations as found nec-
essary consistent with the remand. Copies of the sup-
plemental decision shall be served on all parties after
which the provisions of Section 102.46 of the Board’s
Rules and Regulations shall be applicable.
Keith R. Jewell, Esq., for the General Counsel.
Willis C. Darby Jr., Esq., of Mobile, Alabama, for the Re-
spondent.
Richard W. Gibson, Esq. (Beins, Axelrod, Osborne & Moon-
ey), of Washington, D.C., for the Charging Party.
DECISION
STATEMENT OF THE CASE
RICHARD J. LINTON, Administrative Law Judge. This con-
struction industry case of unilateral changes and direct deal-
ing involves Sections 8(f) and 9(a) of the Act. Resolution of
the legal issues is governed by the principles enunciated by
the Board in John Deklewa & Sons, 282 NLRB 1375 (1987).
Finding that the General Counsel failed to establish that the
Union’s 8(f) status with Triple A matured into a 9(a) rela-
tionship with the Company, I dismiss the complaint.
The main question here is whether a contract, permitted
under Section 8(f) of the Act, was transformed in October
1987 into a relationship in which the Union would enjoy the
full benefits of Section 9(a) of the Act. The answer to that
question depends on resolution of a subsidiary issue concern-
ing whether the General Counsel and Local 669 dem-
onstrated that the Union, in October 1987, made a ‘‘clear
showing’’ of majority status among Triple A’s sprinkler fitter
employees.
The subsidiary issue turns on the linchpin question of
whether majority status can be demonstrated by the union
membership reflected by fringe benefit reports, or whether
majority status must be manifested by some overt action of
the employees themselves (such as signing authorization
cards or answering questions in a poll). Finding that the
Board requires the latter, while the General Counsel proved
only the former, I dismiss the complaint in its entirety. Alle-
gations of direct dealing fall with the complaint because they
depend on 9(a) status, a status Local 669 never achieved.
I presided at this 7-day trial, opening August 25, 1992,
and closing December 17, 1992, in Mobile, Alabama, pursu-
ant to the September 27, 1991 complaint issued by the Gen-
eral Counsel of the National Labor Relations Board through
the Acting Regional Director for Region 15 of the Board.
The complaint is based on a charge filed April 4, 1991, and
later amended, by the United Association of Journeymen and
Apprentices of the Plumbing and Pipefitting Industry of the
United States and Canada, Road Sprinkler Fitters Local
Union No. 669, AFL–CIO (the Union, Local 669, or the
Charging Party) against Triple A Fire Protection, Inc. (Re-
spondent, the Company, TAF, or Triple A).
In the complaint, the General Counsel alleges that Re-
spondent TAF violated Section 8(a)(1) and (5) of the Act,
when (1) Alton Turner (Turner), the Company’s president,
bypassed the Union and dealt directly with TAF’s employees
by various acts between about late February and March
1991, and (2) when Steve Turner, an admitted supervisor of
the Company, also bypassed Local 669 about March 1991.
The complaint also alleges that since about April 20, 1991,
the Company unilaterally (1) has ceased making fringe bene-
fit payments required by the collective-bargaining agreement
1090 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Unless otherwise indicated, all dates are for 1991. References to
the seven-volume transcript of testimony are by volume and page.
Exhibits are designated G.C. Exh. for the General Counsel’s, C.P.
Exh. for the Union’s, and R. Exh. for Respondent TAF’s.
(CBA) and (2) has changed the wage rates of employees
covered by the CBA which expired March 31, 1991.
Aside from admitting some facts, Triple A denies any vio-
lation of the Act, alleges that the CBA was an ‘‘8(f)’’
prehire agreement, and asserts three affirmative defenses: (1)
the Union has never represented an uncoerced majority of
Triple A’s employees in an appropriate unit; (2) since March
1, 1990 (at trial TAF’s counsel gives the more likely date of
April 1, 1991), the Union has failed to bargain in good faith
with the Company; and (3) the Union waived any right it
may have had to bargain over proposed changes in wage
rates and fringe benefits by failing to act with due diligence.
Based on the motions, the due date for the filing of
posthearing briefs was extended to Monday, March 8, 1993.
The parties have filed briefs. The General Counsel and the
Union filed their briefs by the due date. Because it was un-
able to meet the extended deadline, TAF submitted its first
44 pages, which were received on the March 8 due date, ex-
plaining that the balance would follow. On Tuesday, March
9, the balance of TAF’s 101-page brief (plus attachments)
was received. Tables for contents and authorities were re-
ceived Thursday, March 11. Also received on March 11 was
Triple A’s unverified motion to file, under 29 CFR
§ 102.111(c), its brief was 1 day late. On Friday, March 12,
the Division of Judges’ Atlanta office received the March 11
affidavit (required by Rule 102.111c) of TAF’s attorney,
Willis C. Darby Jr., in support of TAF’s motion.
In his affidavit Darby describes his efforts to complete and
mail TAF’s brief on Saturday, March 6. No description is
given for events before March 5. Despite work of 14 hours
on Friday and 12 hours on Saturday by Darby and four cleri-
cal employees in completing the brief and verifying ref-
erences, the brief was not ready to deliver to Federal Express
by its 5 p.m. closing time on Saturday, March 6. Darby im-
plies that if Federal Express had been available on Sunday,
March 7, TAF could have filed its brief on time.
Darby further asserts in his affidavit that before mailing
his completed brief he had not received any mail during
March from the General Counsel or the Union, and he had
not yet claimed two certified envelopes waiting for him. The
suggestion is that he did not receive and read their briefs be-
fore completing and mailing TAF’s. By Thursday, March 11,
Darby concludes, the General Counsel had informed him he
intended to oppose the late filing, and union counsel stated
he had not decided. Since then the Union has filed its March
12 response in which, taking no position, it defers to the
judge’s ‘‘sound discretion.’’ By his written response of
March 16, 1993, the General Counsel also takes no position
and, like the Union, leaves the matter to the judge’s discre-
tion.
Under 29 CFR § 102.111(c), a brief may be filed late on
a showing of good cause based on ‘‘excusable neglect’’
when ‘‘no undue prejudice would result.’’ A motion shall be
filed stating the grounds relied on. ‘‘The specific facts relied
on to support the motion shall be set forth in affidavit form
and sworn to by individuals with personal knowledge of the
facts.’’
Granting TAF’s motion will not result in any undue preju-
dice. TAF’s brief was only one day late (and probably would
have been timely if there had been overnight mail pickup
service on Sundays), it appears that Attorney Darby did not
receive and read the briefs of opposing counsel during the
interim, and because the slight delay will not result in delay
of this decision, I shall grant TAF’s motion to file its brief
one day late. Because there is no right to file reply briefs be-
fore judges (and because counsel for the General Counsel
and the Union telephonically informed the Division of
Judges’ Atlanta office that they were not going to seek to file
reply briefs), I need not wait for reply briefs under any ex-
tension of time contemplated by Rule 102.111(c) for a re-
sponding document.
On the entire record,1 including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel (whose brief includes a pro-
posed order and notice), Local 669, and Triple A, I make the
following
FINDINGS OF FACT
I. JURISDICTION
An Alabama corporation, Respondent Triple A operates
from Semmes (Mobile), Alabama, where it is engaged in the
nonretail installation of sprinkler systems. During the 12
months ending August 31, 1991, the Company purchased and
received at its Semmes facility goods and materials valued
at $50,000 or more direct from points outside Alabama. Re-
spondent TAF admits, and I find, that it is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. LABOR ORGANIZATION INVOLVED
TAF admits, and I find, that Road Sprinkler Fitters Local
Union No. 669 is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
1. Collective-bargaining history
Alton Turner began working in the sprinkler fitting indus-
try about 1972 or 1973. (Tr. 6:1029, 1155.) At that time he
joined Local 669. (Tr. 6:1027.) Some 10 years later, about
1983, Turner founded his own the Company to engage in
that business, incorporating Triple A about 1983. (Tr. 1:190;
2:290.) Turner, who is president of TAF, holds a 51-percent
majority of the Company’s stock and runs the business. (Tr.
1:191.) Turner’s wife, Lovina, owns the balance of the stock
and is TAF’s secretary and treasurer. (Tr. 7:1252–1253,
1269.) She also serves as Turner’s office secretary. (Tr.
1:198, 215; 7:1253.) Turner’s son Steve is an acknowledged
statutory supervisor for TAF. Other family members also
work for TAF. (Tr. 7:1253–1254.)
Local 669 is headquartered in Landover, Maryland (Tr.
2:319), where H. V. Simpson is the Union’s business man-
ager. (Tr. 1:125; 2:319.) Ronnie L. Phillips has worked 15
years for Local 669, and is a business agent of the southern
district and a regional representative for the Union. His area
covers Alabama, Mississippi, and Puerto Rico. Since 1983
1091TRIPLE A FIRE PROTECTION
Phillips, on behalf of the Union, has dealt with Turner re-
specting all matters between Local 669 and TAF. (Tr. 2:299–
300; 316; 4:650; and 5:819.)
The Union’s territorial jurisdiction receives different de-
scriptions in the record. (Tr. 1:34; 2:319; 5:836–838, 855–
856, 881.) However, articles in the 1988–1991 national CBA
(G.C. Exh. 21; R. Exh. 41) for recognition (art. 3) and terri-
tory (art. 6) disclose that it covers offshore drilling oper-
ations plus 47 States and the District of Columbia, but not
Connecticut (Local 676), Florida (Local 821), and the terri-
tory covered by Locals in some 18 cities. Rhode Island ap-
parently is covered by the Providence Local. The matter of
TAF’s desire to be able to do business outside Alabama, par-
ticularly in Florida, arose during the negotiations between
Local 669 and TAF.
For years Local 669 has entered into national CBAs with
the National Fire Sprinkler Association, Inc. (NFSA). A copy
is in evidence, for historical purposes only (Tr. 6:1049), of
the CBA for April 1, 1982, through March 31, 1985. (R.
Exh. 18.) In October 1983 Turner, as president of TAF,
signed an interim agreement (R. Exh. 20) to be bound to the
1982–1985 contract (Tr. 1:192; 6:1051), and on February 8,
1984, he signed a one-page (R. Exh. 22; Tr. 7:1288) amend-
ment to the economic package. Turner also signed to be
bound to the national CBA of 1985–1988. (G.C. Exh. 20;
G.C. Exh. 2; Tr. 1:193–194.)
Triple A, by Turner, also signed (G.C. Exh. 2: Tr. 1:193–
194) to be bound to the national CBA of April 1, 1988,
through March 31, 1991 (G.C. Exh. 21; R. Exh. 41; Tr.
2:301). As we shall see, on March 31, 1991, the 1988–1991
CBA expired as to TAF. On April 9 the Union and TAF
began independent negotiations for a CBA, but after a dozen
or so meetings, the last one held in July 1992, there still was
no agreement for a replacement contract. The 1988–1991
CBA’s recognition clause, in article 3, provided:
Recognition: The National Fire Sprinkler Associa-
tion, Inc. for and on behalf of its contractor members
that have given written authorization and all other em-
ploying contractors becoming signatory hereto, recog-
nize the Union as the sole and exclusive bargaining rep-
resentative for all Journeymen Sprinkler Fitters and Ap-
prentices in the employ of said Employers, who are en-
gaged in all work as set forth in Article 18 of this
Agreement with respect to wages, hours and other con-
ditions of employment pursuant to Section 9(a) of the
National Labor Relations Act.
In early October 1987 (Tr. 1:138), from its national office
in Landover, Maryland, Local 669 Business Manager H. V.
Simpson (Tr. 1:125) mailed letters (Tr. 1:127), with enclo-
sures, ‘‘To All Independent Contractors,’’ some 400 in num-
ber (Tr. 1:132). A copy of the letter, in evidence (C.P. Exh.
1), reads:
As a contractor signatory to the 1985–1988 collec-
tive bargaining agreement with Local 669, it can come
as no surprise to you that Local 669 is the designated
and exclusive bargaining representative of your sprin-
kler fitter employees, almost all of whom are 669 mem-
bers.
Earlier this year, the National Labor Relations Board
in Washington, D.C. issued a decision in John Deklewa
and Sons, 282 NLRB [1375] (1987), which, if it stands
on appeal, may throw into question the nature of the re-
lationship between your organization and Local 669.
The purpose of this letter is to solicit your cooperation
in minimizing any possible disruption to our relation-
ship that might otherwise be caused by the Deklewa de-
cision.
Enclosed is a copy [C.P. Exh. 3; Tr. 1:128, 130] of
a recent fringe benefit report filed by your organization
with the N.A.S.I. Funds. [National Automatic Sprinkler
Industry Fringe Benefit Funds.] Upon reviewing it, you
will note that it accurately confirms that all, or nearly
all, of your sprinkler fitter employees are members of
and represented by Local 669. Also enclosed is a form
recognition agreement [C.P. Exh. 2; Tr. 1:128, 131–
132] reflecting that fact and Local 669’s status as the
exclusive bargaining representative of your sprinkler fit-
ters. Please review the enclosed and return an executed
copy of the recognition agreement to this office. The
only significance of the agreement is that it confirms
Local 669’s status as the current exclusive bargaining
representative of your sprinkler fitter employees under
the National Labor Relations Act.
Because of our concern over the possible and unnec-
essary disruptive effects of Deklewa, we have deter-
mined to initiate legal proceedings with the National
Labor Relations Board with respect to any contractor
who declines to execute and return the enclosed form.
We need your response within fourteen (14) days.
Please accept our regrets for any inconvenience
caused by this request. The National Labor Relations
Board, not Local 669, is the villain of this piece.
Thank you for your cooperation. We look forward to
a harmonious and mutually beneficial relationship with
your organization for years to come.
The recognition form (C.P. Exh. 2) enclosed, signed on
October 19, 1987 by Turner on behalf of TAF (Tr. 1:197;
2:291), reads:
ACKNOWLEDGEMENT OF THE
REPRESENTATIVE STATUS
OF ROAD SPRINKLER FITTERS LOCAL
UNION NO. 669, U.A., AFL–CIO
The Employer executing this document below has,
on the basis of objective and reliable information, con-
firmed that a clear majority of the sprinkler fitters in its
employ have designated, are members of, and are rep-
resented by, Road Sprinkler Fitters Local Union No.
669, U.S., AFL–CIO, for purposes of collective bar-
gaining.
The Employer therefore unconditionally acknowl-
edges and confirms that Local 669 is the exclusive bar-
gaining representative of its sprinkler fitter employees
pursuant to Section 9(a) of the National Labor Rela-
tions Act.
The fringe benefit form (C.P. Exh. 3) lists eight names, in-
cluding two Turners (Alton, the president, and his son Steve,
the acknowledged supervisor). Two of the names (W. A.
Hudspeth and R. S. Vernon) are shown as having worked no
hours during the 4-week covered period for the weeks ending
1092 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
May 30 through June 20, 1987. The other four individuals
listed are: C. W. Aikens, J. R. Moiren, P. A. Thames, and
G. J. Andrews. Turner testified that before March 1991 the
greatest number of employees he had for a given month was
seven or eight. (Tr. 6:1156.) At the hearing the General
Counsel introduced similar reports for October and Novem-
ber 1987 (G.C. Exh.s 4, 5) also reflecting union membership
by TAF’s sprinkler fitter employees.
In evidence is a copy (G.C. Exh. 26) of certain Alabama
statutes, enacted in 1953, currently in force. Under these stat-
utes, Alabama may be described as a right-to-work state. (Tr.
3:514–518; 4:653.)
2. Events preliminary to 1991–1992 negotiations
By letter dated December 14, 1990 (R. Exh. 5), the Union,
by Business Manager Simpson, notified ‘‘All Independent
Local 669 Contractors’’ of the Union’s desire to negotiate a
renewal CBA effective April 1, 1991. If a renewal contract
were not reached before March 31, Simpson warned, ‘‘lawful
economic action’’ could ensue on and after April 1. Simpson
enclosed two copies ‘‘of our Assent and Interim Agreement’’
to consider, sign, and return. (Tr. 2:413.) A copy of the type
of assent and interim agreement that was enclosed is sepa-
rately in evidence as Respondent’s Exhibit 14. (Tr. 3:621–
624.)
Under the two-page assent and interim agreement form (R.
Exh. 14) which Simpson mailed to TAF, the Union would
agree not to strike to obtain a successor CBA to the one ex-
piring March 31, 1991. The parties would agree, among
other provisions, that all terms of the current CBA would re-
main in effect until the effective date of the successor CBA,
with increases in wages and fringes retroactive to April 1,
1991.
Apparently around mid-March 1991 Simpson, Phillips tes-
tified (Tr. 2:415), telephoned Phillips and informed him that
Turner had failed to sign and return the Assent and Interim
Agreement. On March 18 Phillips telephoned Turner and,
Phillips testified, asked if they could meet to discuss negotia-
tions for a renewal contract. Turner said he had business in
Atlanta the next day. They set no date to meet. (Tr. 2:302–
303, 337; 3:578.) With an important exception, Turner’s ver-
sion of the call is generally consistent with that of Phillips.
(Tr. 6:1086–1087.) The main difference is Turner’s assertion
that Phillips asked whether Turner was going to sign the in-
terim agreement. (Tr. 6:1087.)
At several points in his testimony Phillips clearly denies
that he even mentioned the interim agreement to Turner. (Tr.
2:373, 413, 417.) That was before it was disclosed that Turn-
er had tape recorded the March 18 telephone conversation.
A transcript (R. Exh. 11) of that telephone conversation was
received in evidence. (Tr. 3:576, 609.) Later, in conjunction
with other tape recordings excluded on the basis they per-
tained to settlement discussions of a related matter (Tr.
5:780, 790), the Union moved (C.P. Exh. 8; Tr. 4:641;
5:792; 6:942) to strike the transcript (R. Exh. 11). The Gen-
eral Counsel joined in that motion. (Tr. 6:948.) The Union
so moves on the basis that Board policy excludes from evi-
dence any secret tape recordings of conversations which in-
volve contract negotiations. Carpenter Sprinkler Corp., 238
NLRB 974, 975 (1978), enfd. on point 605 F.2d 60 (2d Cir.
1979). I postponed ruling until this decision. (Tr. 6:953.)
The taped telephone conversation of March 18 focused on
the interim agreement and when the parties could meet and
discuss contract negotiations. As such topics appear to fall
within the rule of Carpenter Sprinkler, I grant the Union’s
motion, strike Respondent’s Exhibit 11, and transfer it to the
rejected exhibits file. On the same basis I transfer Respond-
ent’s Exhibit 94 to the rejected exhibits file. (Tr. 7:1297.)
Respondent’s Exhibit 94 is the transcript of a tape recording
which Turner secretly made of his April 3, 1991 telephone
conversation with Phillips concerning the beginning of con-
tract negotiations.
Although Phillips testified that he never asked Turner to
sign an interim agreement (Tr. 2:412; 3:577), he clearly as-
serts that he never mentioned the term (Tr. 2:373, 413, 417)
during the telephone conversation. Later he admits that he
did mention it and that when he did so he was referring to
Respondent’s Exhibit 14. (Tr. 3:622.)
On March 19, the day following the March 18 telephone
conversation, Phillips made a surprise visit to Triple A and
found Turner there. (Tr. 2:303, 337, 416; 6:1088.) Turner
testified that the Atlanta trip canceled, but concedes he did
not notify the Union. (Tr. 6:1168–1169.) Accompanying
Phillips was Clarence Radecker (Tr. 2:304), a business agent
from the Union’s Arkansas-Louisiana District 6. (Tr. 7:1339.)
Phillips testified that he went there to set up contract negotia-
tions. (Tr. 2:304, 340, 416.) Phillips testified that Turner said
he had no intention of negotiating a CBA with Local 669.
(Tr. 2:304, 307.) (Radecker was not called as a witness until
rebuttal and therefore did not address this visit.)
Turner testified that Phillips asked if Turner was going to
sign the contract. Turner asked what the contract consisted
of. (Jack Moiren and Alan Thames also were present.) It was
not yet complete, Phillips advised. Phillips then called Turner
aside and asked if Turner would go ahead and sign the (in-
terim) agreement, that he had a copy in his briefcase in his
car. (According to Phillips, Tr. 2:240, 417, neither he nor
Radecker had a copy of the interim agreement with him that
day.) ‘‘No,’’ Turner responded, explaining that he would not
sign a blank check. (Tr. 6:1088–1090.) At about that point
Phillips said they had to discuss a contract. Turner said he
was preparing a proposed contract to submit to him later.
(Tr. 6:1130–1133.)
Two days later, by letter dated March 21 (G.C. Exh. 22),
Phillips wrote Turner. After referencing their March 18 and
19 contacts, Phillips accused Turner of refusing to bargain,
expressed puzzlement at that, and suggested a need ‘‘to avert
a work stoppage on April 1, 1991.’’ Crossing that letter in
the mail was Turner’s letter of March 21 (G.C. Exh. 7) trans-
mitting TAF’s proposal (G.C. Exh. 8) for a complete con-
tract. (Tr. 1:220–222; 6:1157.)
In the meantime the Union had been alerting its member-
ship to a possible strike beginning April 1. The Union’s
March 1991 newsletter (R. Exh. 88) did so. Business Man-
ager Simpson, by a Special Strike Notice To All Members
(R. Exh. 6), dated March 22, advised that effective April 1
‘‘WE ARE STRUCK’’ against any contractor not named on
an attached list of over 200 signatory contractors. Triple A
is not one of the 200-plus names. (Tr. 2:427.) Phillips so no-
tified TAF’s employees when he met with them shortly be-
fore April 1. (Tr. 2:427; 5:920–921; 6:992–993.)
By letter dated March 26 (G.C. Exh. 9), Turner wrote
Phillips that strike replacements would be hired and paid
1093TRIPLE A FIRE PROTECTION
under the terms of TAF’s proposed CBA which TAF had
mailed to the Union by letter of March 21. Current employ-
ees represented by the Union would continue to be paid
under the CBA ‘‘until further notice.’’ The further notice
was expressed in a separate letter (R. Exh. 89) of the same
date, March 26, in which TAF notified the International
Union that TAF ‘‘hereby terminates’’ the CBA ‘‘effectively
immediately or as soon as permitted by applicable law.’’
On March 28 (Tr. 7:1281) Turner, in a two-page memo
(C.P. Exh. 5), summarized the CBA status, discussed union
fines and possible options for employees who desire to work,
notified TAF’s employees that TAF would be open for busi-
ness on April 1, and would have to operate with, if nec-
essary, new employees.
Before April 1, however, Phillips told TAF’s employees
there would be no strike and to report to work on April 1.
(Tr. 2:430; 6:993.) Phillips did not notify Turner there would
be no strike. (Tr. 2:430.) There was no strike or picketing
by the Union on April 1 at TAF. (Tr. 2:309, 318, 429;
6:1012–1013.) Turner thought there would be a strike on
April 1 (Tr. 2:293), and he made preparations for a strike.
(Tr. 6:1094.) There is no strike allegation in the complaint.
TAF’s position is that the strike notice bears on TAF’s fur-
ther position that the Union’s contract demands caused an
impasse. (Tr. 2:432–434.)
On April 3 Turner and Phillips agreed to meet for bargain-
ing, and to hold the first session on April 9. (Tr. 2:309.) On
April 4 Turner wrote (G.C. Exh. 10; R. Exh. 98) confirming
a CBA meeting for April 9. (Tr. 1:227; 5:919; 6:1095.) Phil-
lips confirmed by his letter of April 5. (G.C. Exh. 23; Tr.
2:310.) Turner observed that although TAF had forwarded a
complete contract proposal, TAF had not received the
Union’s counterproposal and would like to have it for review
before the April 9 meeting. The next day Phillips, by his let-
ter of April 5 (G.C. Exh. 23, apparently crossing R. Exh. 98
in the mail), confirmed the first meeting date of April 9 for
CBA negotiations, stated he had questions concerning TAF’s
proposed contract, and asserted that he had some contract
proposals of his own which he would present at the meeting.
The parties held their first bargaining session on April 9,
1991, at the Bradbury Inn in Mobile. At this point, I pause
only to list the dates of the 10 or so meetings. I write ‘‘or
so’’ because the parties list 13 scheduled meetings even
though bargaining occurred only at 9 or 10. For example, the
parties refer to one meeting date, May 21, as a meeting. Al-
though the third meeting was scheduled for May 21, TAF’s
representatives arrived a few minutes late, the Union left
(there is a dispute whether the Union’s representatives saw
TAF’s representatives entering the parking lot), and no bar-
gaining occurred until the next day, May 22. Similarly, no
bargaining occurred at the eighth meeting on October 8 be-
cause Turner, who had broken a tooth the previous evening,
left early for an emergency dental appointment. Finally, no
bargaining occurred at the 10th meeting on January 14, 1992.
There is a dispute over attendance. Accordingly, the actual
10 bargaining sessions are (plus the aborted meetings of May
21, October 8, and January 14 shown in brackets):
1. 4–9–91 8. [10–8–91]
2. 4–30–91 9. 11–25–91
3. [5–21–91] 10. [1–14–92]
4. 5–22–91 11. 2–18–92
5. 6–25–91 12. 3–17–92
6. 6–26–91 13. 7–16–92
7. 8–28–91
On April 10 the Union, by Business Manager Simpson,
sent a two-page special notice (R. Exh. 104) to all members
informing them that agreement had been reached for a re-
newal 3-year national CBA, wages retroactive to April 1
within 30 days of ratification. Phillips concedes that he never
delivered a copy of the new (1991–1994) CBA to TAF. (Tr.
3:618, 621.) Although no copy of the national 1991–1994
CBA is in evidence, Simpson’s April 10 announcement (R.
Exh. 104) summarizes the highlights, including the increased
wages and benefits, of that new contract. Following the final
(and abbreviated) meeting on July 16, 1992, the Union wrote
(R. Exh. 224) that it was willing to continue negotiations.
TAF did not respond, and no further meetings have been
held.
B. The Union’s Lack of 9(a) Status
This case arises in the construction industry, and the case
is controlled by the principles enunciated in John Deklewa
& Sons, 282 NLRB 1375 (1975). One of those principles is
this: ‘‘In light of the legislative history and the traditional
prevailing practice in the construction industry, we will re-
quire the party asserting the existence of a 9(a) relationship
to prove it.’’ Id. at 1385 fn. 41. The General Counsel and
Local 669 assert that they carried this burden by virtue of
the earlier cited assents, acknowledgments, confirmations,
and fringe benefit reports showing majority status by virtue
of union membership in Alabama, a right-to-work state.
In determining whether the Union’s 8(f) status with TAF
was transformed into a 9(a) relationship, the focus is on Oc-
tober 19, 1987, when Alton Turner, TAF’s president, signed
the Acknowledgment of Representative Status (C.P. Exh. 2).
Recall that in such acknowledgment Turner declares that a
‘‘clear majority’’ of TAF’s sprinkler fitters are members of
Local 669 and have designated the Union as their collective-
bargaining representative. Turner then ‘‘unconditionally ac-
knowledges and confirms that Local 669 is the exclusive bar-
gaining representative of its sprinkler fitter employees pursu-
ant to Section 9(a) of the National Labor Relations Act.’’
When Turner signed TAF’s assent to the 1988–1991 CBA,
he recognized, as I quoted earlier, the Union as the exclusive
bargaining representative for TAF’s sprinkler fitter employ-
ees ‘‘pursuant to Section 9(a) of the National Labor Rela-
tions Act.’’ The fringe benefit reports (C.P. Exh. 3; G.C.
Exhs. 4, 5) apparently reflect that a majority, perhaps all, of
TAF’s sprinkler fitter employees were then members of
Local 669.
The question is, did these acknowledgments, confirma-
tions, and recognitions by Turner/TAF, plus the 1987 fringe
benefit reports showing that a majority of TAF’s sprinkler
fitter employees were members of Local 669, achieve the
Union’s goal of transforming itself from an 8(f) limited rep-
resentative to a 9(a) full representative of TAF’s sprinkler fit-
ter employees. The test for determining transformation from
8(f) to 9(a) status is set forth by the Board in Deklewa, supra
at 1387 fn. 53 (emphasis added):
We do not mean to suggest that the normal presump-
tions would not flow from voluntary recognition ac-
corded to a union by the employer of a stable work
1094 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
force where that recognition is based on a clear show-
ing of majority support among the unit employees, e.g.,
a valid card majority. Island Construction Co., 135
NLRB 13 (1962). That is, nothing in this opinion is
meant to suggest that unions have less favored status
with respect to construction industry employers than
they possess with respect to those outside the construc-
tion industry.
Copies of these acknowledgments are present in the recent
case of Excel Fire Protection Co., 308 NLRB 241 (1992).
(The case involves the same Local 669.) The employer there
confirmed, among other acknowledgments, that all of its
sprinkler fitters were members of Local 669. The Board
adopted Administrative Law Judge Pannier’s finding of 9(a)
status. As Judge Pannier observes, however, the employer re-
spondent in Excel raised no issue about the majority status
on which the acknowledgments and CBA were based. Id. at
433. Because no question was raised in Excel about majority
status, it is questionable whether Excel resolves the issue
here where TAF, unlike the passive position of the employer
there, disputes the General Counsel’s contention that the evi-
dence shows majority status.
Does a showing of majority status by virtue of union
membership, as exists here (based on the 1987 fringe benefit
reports), satisfy Deklewa’s requirement of a ‘‘clear show-
ing’’? In fact, the Board in Deklewa, at a point earlier than
footnote 53, quotes the statement that union membership ‘‘is
not always an accurate barometer of union support.’’
Deklewa at 1383–1384. And fringe benefit reports are de-
scribed there as demonstrating only ‘‘some degree of compli-
ance with a benefit provision in the agreement.’’ Id. at 1384.
The one example the Board gave in footnote 53 for a ‘‘clear
showing’’ is a showing by ‘‘a valid card majority.’’ In short,
the Board cited an affirmative expression by the employees
themselves.
Language in subsequent cases repeat the need for the
showing to be ‘‘affirmative.’’ Brannan Sand & Gravel Co.,
289 NLRB 977, 979 (1988). Support must be ‘‘manifested’’
by the employees. Comtel Systems Technology, 305 NLRB
287, 289 (1991). Dissenting in Comtel, Member Devaney
wrote, ‘‘if it is clear the parties understood they were enter-
ing into a 9(a) relationship, I would find a valid 9(a) rela-
tionship.’’ Comtel, dissent. Id. at 292. At footnote 5 of his
dissent, Member Devaney wrote that majority status may be
shown, among other methods, by the union’s assertion that
it represents a majority. It appears that Member Devaney’s
dissenting position in Comtel would find 9(a) status here.
Nevertheless, the Board has held that union membership,
even in a right-to-work state, does not satisfy the Deklewa
requirement for a ‘‘clear showing.’’ J & R Tile, 291 NLRB
1034, 1037 (1988). Thus, in the absence of a showing by
valid card majority, a valid poll, or other objective method
by which a majority of TAF’s employees manifested their
designation of the Union as their collective-bargaining rep-
resentative, I find that the General Counsel and the Union
failed to carry their burden of establishing that Local 669’s
8(f) contractual status with TAF ever matured into a relation-
ship under Section 9(a) of the Act. In short, the 1988–1991
national CBA, to which TAF was bound, was an 8(f) prehire
contract as to Triple A.
C. Complaint Dismissed
1. Unilateral changes
Under Deklewa, a union signatory to an 8(f) prehire con-
tract has only the limited 9(a) right to enforce the 8(f) agree-
ment under Section 8(a)(5). Deklewa at 1387; R & R Brick-
work, 299 NLRB 542 (1990). When an 8(f) contract expires,
either party may repudiate so that there is no renewal or ex-
tension. Deklewa at 1387, 1388. When TAF, by letter of
March 26, 1991 (R. Exh. 89), terminated the 1988–1991
CBA effective with the contract’s March 31, 1991 expiration,
TAF escaped its contractual and statutory relationship with
Local 669. Accordingly, I shall dismiss the complaint para-
graphs which allege that since about April 20, 1991, TAF (a)
unilaterally ceased making fringe benefit payments required
by the expired CBA (complaint par. 12), and (2) since about
April 20 TAF has changed wage rates of unit employees
(par. 13). Because the 8(f) contract had expired, and because
the evidence fails to show that TAF at any time became the
full 9(a) representative, beginning on April 1, 1991, Triple
A had no obligation to continue honoring provisions of the
expired 1988–1991 CBA or terms and conditions of employ-
ment which existed under that contract. In short, on and after
April 1, 1991, TAF, under the Act, was free to do as it
pleased respecting terms and conditions of employment.
In view of these findings, the matter of the negotiations
and TAF’s affirmative defenses, such as impasse, are ren-
dered moot.
2. Direct dealing
a. Introduction
Turning now to the balance of the complaint’s paragraphs,
the direct dealing allegations, I note that TAF does not ad-
dress them in its posthearing brief. No party discusses them
in light of a possible finding of no 9(a) relationship. That is,
even assuming that I credit (and I do) the General Counsel’s
evidence on the direct dealing allegations, can there be a di-
rect dealing violation in the absence of a full 9(a) relation-
ship? I find the answer to be no because the only rights and
privileges Local 669 enjoyed under the 8(f) contract was the
right to enforce the contract, under Section 8(a)(5), during
the contract’s term.
Although the complaint phrases the direct dealing allega-
tions as Section 8(a)(1) and (5), as if they include allegations
of independent coercion, such is not the case for two reasons.
First, had the General Counsel intended to allege coercion,
the complaint no doubt would have included (it does not) a
conclusory allegation of coercion under Section 8(a)(1) of
the Act. NLRB Pleadings Manual, section 901.1 at 250
(1991). Second, violations of Section 8(a)(5) derivatively
violate Section 8(a)(1) of the Act, Harris Painting, 286
NLRB 642 (1987), as Section in 8(a)(5) and (1). In other
words, the direct dealing incidents are not also alleged as co-
ercion. Thus, with the incidents not resulting in 8(a)(5) viola-
tions, there necessarily is no derivative 8(a)(1) allegation.
Accordingly, I shall dismiss the complaint in its entirety.
However, before dismissing the complaint, and from an
abundance of caution on the matter, I shall make findings re-
specting the direct dealing allegations. Moreover, as the sta-
tus of foremen as employees or supervisors is relevant both
1095TRIPLE A FIRE PROTECTION
to the direct dealing allegations and to the issue of majority
status, I shall include findings on that topic as well.
b. Alton Turner
(1) Introduction
Witnesses who are either employees or former employees
of the Company describe the following conversations. In his
own testimony, Turner does not address these conversations.
Aside from its argument that the foremen are supervisors
(and therefore no violation in the conversations), TAF argues
that even if the General Counsel’s witnesses are credited,
Turner’s comments are not violative of the Act. I credit the
General Counsel’s witnesses and I would find the direct deal-
ing violations if I were not dismissing the complaint.
(2) Complaint paragraphs 10(a) and (b)
Danny Carpenter worked for the Company from February
1988 to September 1991. (Tr. 1:172, 184.) He became a jour-
neyman fitter in January 1991. (Tr. 1:173.) He and Turner
were social friends, sipping beer on a few occasions. (Tr.
1:188–189.) About late February to early March 1993, Car-
penter testified, as employees Carpenter, Jack Moiren, and
Alan Thames were standing at the shop’s doorway with
Turner, Turner told the three employees that he might not
sign the union contract and that he would guarantee each a
foreman’s job, pay their insurance, and provide them a truck.
About mid-March 1991, as Turner was visiting at Car-
penter’s house, Carpenter testified, Turner said he probably
was not going to sign the upcoming union contract. Asking
Carpenter to stay with TAF, Turner said he would raise Car-
penter’s pay to a foreman’s rate. (Tr. 1:174–175, 184–186.)
(3) Complaint paragraph 10(c)
Jack Moiren worked at the Company for about 6 years,
from 1985 to September 1991. (Tr. 1:65, 76, 83.) For his last
several years at Triple A, Moiren worked as a foreman. (Tr.
1:65, 116.) Moiren has been a member of the Union for
about 20 years. (Tr. 1:65.)
About early March at the shop, Moiren testified, Turner
asked whether Moiren would stay with him if Turner went
nonunion. Turner said that if Moiren stayed his pay would
remain at the union rate, he would receive raises when union
pay rates increased, would get to keep the the company truck
he was driving, with gas paid, that he would be provided in-
surance, and something would be worked out for retirement.
(Tr. 1:66–67, 99–100.)
(4) Complaint paragraph 10(d)
Cecil P. ‘‘Shorty’’ Davidson has worked three different
times for the Company, the first from October 1985 to about
October 1986, again from September to November 1987, and
finally from September 1989 to August 1991. (Tr. 1:40.) Da-
vidson became foreman about February 1990 (Tr. 1:151),
and was such in March 1991. (Tr. 1:151.)
About early to mid-March 1991, Davidson testified, he,
Jack Moiren, Danny Carpenter, and the Turners (Alton,
president and father, Steve, supervisor and son) had a lengthy
conversation on the front porch of the Company’s office. At
one point the conversation turned to the pros and cons of
working union and nonunion. Toward the end of the topic,
Turner told Davidson that Davidson had a job there no mat-
ter what happened, and that Davidson could have insurance
by paying one half the premium. At that time Davidson paid
no part of the cost of the insurance which the Company pro-
vided. (Tr. 1:140–142, 151–152.)
c. Steve Turner
Complaint paragraph 11 alleges that about March 1991
TAF, acting through Supervisor Steve Turner, promised em-
ployees insurance and higher wages if they remained with
TAF in the event TAF did not sign another contract with the
Union, and impliedly promised that TAF would institute a
profit-sharing plan in such circumstances. Phillip Alan
Thames testified in support of these allegations.
Phillip Alan Thames has worked for TAF about 7 years,
although he left it in August 1991 and returned about June
1992. (Tr. 1:41–41, 47, 52.) Thames works for the Company
as an apprentice fitter. (Tr. 1:42.) Thames describes a late
March conversation in Supervisor Steve Turner’s vehicle as
they drove back to the shop from a job at a local bank. Turn-
er, Thames testified, said that if the Company did not sign
a union contract that Thames would still have a job at $14
an hour and still have insurance. Moreover, Turner added
that the Company would institute either a pension or profit-
sharing plan. (Tr. 1:44–45.) Steve Turner did not testify.
d. Job foremen not statutory supervisors
(1) Introduction
Although the recognized bargaining unit under the CBA
does not specify foremen (G.C. Exh. 21 at 4), the CBA pro-
vides (art. 9) that foremen will be selected by the employer
from its journeymen and will be paid $1.25 per hour more
than the journeyman’s rate. Under article 9 of the CBA the
employer must assign a foreman for each job. Selection of
a foreman is the employer’s province. (G.C. Exh. 21 at 12.)
TAF contends that during the relevant time the unit included
two foremen who were statutory supervisors. (Tr. 1:178.)
Apparently the two were Jack Moiren and Cecil P. Davidson.
(2) Applicable law
In assessing the facts on this issue, I am guided by the ap-
plicable law as summarized in Adco Electric, 307 NLRB at
1124. The first important Adco point I shall emphasize here
is that the party asserting supervisor status has the burden of
persuasion on the issue. Id. at fn. 3 and 1119.
The second point from the Adco summary, which I high-
light here is, ‘‘Exercise of the authority which derives from
a worker’s status as a skilled craftsman does not confer su-
pervisory status because that authority is not the type con-
templated in the statutory definition.’’ Id. at 1120. The third
point from the summary is that the powers enumerated at 29
U.S.C. § 152(11) are termed the ‘‘primary’’ indicia of super-
visory status. When the issue of supervisory status presents
a borderline question, ‘‘secondary’’ indicia may be consid-
ered. Nevertheless, ‘‘secondary’’ indicia alone will not con-
fer supervisory status under the Act. Adco at 1120. Even the
‘‘primary’’ powers must be linked to the use of or need to
exercise independent judgment. Adco at 1120.
Finally, ‘‘In these cases the Board has a duty to be alert
not to construe supervisory status too broadly because the
1096 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 If no exceptions are filed as provided by Sec. l02.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. l02.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
employee who is deemed a supervisor loses his protected
right to organize, a right Congress intended to protect by the
Act.’’ Adco at 1120.
(3) Facts
Evidence on the supervisor question is quite limited, with
Turner never addressing the matter when he testified. The
bulk of the evidence comes from the testimony of Jack
Moiren and Cecil P. Davidson, job foremen during the rel-
evant time.
Most of the time the job foremen served as part of three-
man crews, the number including themselves. As job fore-
man Langford in Adco at 1124, the job foremen here spend
about 90 percent of their time working with the tools and the
other 10 percent on paperwork and training their
apprentices/helpers. They do not independently hire workers.
Instead, the instances in which they successfully rec-
ommended that someone, usually a relative, be hired, con-
stitute nothing more than the recommendations of skilled
craftsmen referring and recommending others from a pool of
qualified craftsmen. That is not indicative of statutory author-
ity. Adco at 1120–1124. The testimony by Phillip Alan
Thames that he was hired by his foreman uncle, Ronnie
Pugh (Tr. 6:955–956, 964), does not establish that Pugh
independently hired Thames. The evidence supports the equal
inference that Pugh, as a skilled craftsman, simply rec-
ommended Thames and Turner authorized Pugh to hire
Thames. In the circumstances here, that action does not indi-
cate statutory authority.
Hours and overtime are matters preset by TAF. Although
neither Turner would visit some of the jobs outside Mobile,
their absence merely reflects the experience level of the job
foremen as skilled craftsmen.
Transfers to and from the crews come at the direction of
the Turners, generally after discussion with the foremen
about the progress of the job. When a larger crew is
downsized to fit reduced job needs, any selection of crew
members by the job foremen for release back to the office
for reassignment is the function of the foremen in their ca-
pacity as skilled craftsmen matching crew skills with job
needs. The foremen do not resolve grievances. No evidence
of disciplinary action by the foremen, exercising independent
judgment, was adduced.
(4) Conclusions
TAF has failed to show that the job foremen, and particu-
larly Jack Moiren or Cecil Davidson, possessed any of the
primary indicia of a statutory supervisor, or that they exer-
cised any of those powers with independent judgment. As
TAF has failed to carry its burden of demonstrating statutory
supervisor status on the part of the job foremen, including
Jack Moiren and Cecil Davidson, I find that at all relevant
times Triple A’s job foremen were statutory employees.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended2
ORDER
The complaint is dismissed.