Standard Auto Body, Inc., 628 (1968)

Standard Auto Body, Inc. and District No. 9, International Association of Machinists and Aerospace Workers, AFL-CIO. Case 14-CA-4427

May 21, 1968 DECISION AND ORDER

MEMBERS FANNING , JENKINS, AND ZAGORIA On February 23, 1968, Trial Examiner Jerry B.

Stone issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that such allegations be dismissed. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief.

Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a threemember panel.

The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in the case, and hereby adopts the findings,' conclusions,2 and recommendations of the Trial Examiner, as amended herein with respect to remedy.

ORDER

Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner as modified below, and orders that Respondent, Standard Auto Body, Inc., St. Louis, Missouri, its officers, agents, successors, and assigns, shall take the 'Since, in the absence of exceptions thereto, we are adopting pro forma, the Trial Examiner's finding that Respondent did not violate Section 8(a)( I) by granting a wage increase , we find it unnecessary to pass upon the validity of the Trial Examiner' s reasoning as to Respondent 's purpose in granting said increase.

In adopting the Trial Examiner 's conclusion that Cassidy is not a supervisor, we rely solely on his finding that the evidence is insufficient to establish that he is a supervisor within the meaning of the Act Accordingly, we find it unnecessary to decide upon the applicability of the Montgomery Ward doctrine if Cassidy were a supervisor See Montgomery Ward & Coinpany, Inc , 115 NLRB 645 action set forth in the Trial Examiner's Recommended Order, as herein modified:

1. Delete subparagraph (b) from paragraph 2, the present subparagraphs (c), (d), (e), and (f), being relettered as (b), (c), (d), and (e), respectively.

2. Amend the Trial Examiner's proposed notice by deleting the last paragraph.

   TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE

   JERRY B. STONE, Trial Examiner: This proceeding, under Section 10(b) of the National Labor Relations Act, as amended, was tried pursuant to due notice on December 11, 1967, at St. Louis,

   Missouri.

   The charge was filed on August 28, 1967. The complaint in this matter was issued on October 6, 1967.

   The issues in this proceeding are (1) whether the Respondent engaged in certain acts that constituted interference, restraint, and coercion concerning employees' rights to have collective bargaining, (2) whether the Respondent has violated a collectivebargaining obligation, and (3) whether George Cassidy is a supervisor within the meaning of the Act.

   In short, the main question is whether the Respondent has violated Section 8(a)(1) and (5) of the Act. The main issues are whether the Respondent had an obligation to bargain with the Union, recognized the Union, and then illegally revoked its recognition of the Union.

   All parties were afforded full opportunity to participate in the proceeding, and the General Counsel and the Respondent filed briefs which have been considered.

   Upon the entire record in the case and from my observation of witnesses, I hereby make the following:

   FINDINGS OF FACT

   1. THE BUSINESS OF THE EMPLOYER' Standard Auto Body, Inc., the Respondent, is, and has been at all times material herein, a corporation duly organized under, and existing by virtue of, the laws of the State of Missouri. At all times material herein the Respondent has maintained its office and place of business at 6907 Page Boulevard, St. Louis, Missouri. The Respondent is, and has been at all times material herein, engaged in the business of providing and performing automobile body repair services and related services.

      During the year ending December 31, 1966, which period is representative of its operations during all ' The facts are based upon the pleadings and admissions therein.

      171 NLRB No. 91

      STANDARD AUTO BODY, INC.

      times material herein, Respondent, in the course and conduct of its business operations, derived a gross revenue in excess of $260,000 of which in excess of $15,000 was derived from the performance of services for other businesses and commercial establishments.

      During the year ending December 31, 1966, which period is representative of its operations during all times material herein, Respondent, in the course and conduct of its business operations, purchased and caused to be transported and delivered at its St. Louis, Missouri, place of business, automobile body, suspension, and drive parts, and supplies and related products, and other goods and materials valued in excess of $90,000 of which goods and materials valued in excess of $50,000 were transported and delivered to said place of business in St. Louis, Missouri, and received from other enterprises located in the State of Missouri, each of which other enterprises had received the said goods and materials delivered to Missouri directly from points located outside the State of Missouri. As conceded by the Respondent, and based upon the foregoing, it is concluded and found that Standard Auto Body, Inc., the Respondent, is now, and has been at all material times herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.

   2. THE LABOR ORGANIZATION INVOLVED2

      District No. 9, International Association of Machinists and Aerospace Workers, AFL-CIO, is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act.

   3. THE UNFAIR LABOR PRACTICES A. Preliminary Issues 1. Supervisory status The pleadings establish that the following persons are supervisors and agents of the Respondent within the meaning of Section 2(11) of the Act, and occupy the positions indicated: James C. Spillman, vice president, and Kermit Gibson, secretarytreasurer.

      The parties are in dispute as to the status of George Cassidy who admittedly holds the position of shop foreman. The Respondent contends further, however, that the evidence establishes that Cassidy's duties and status were changed on or about July 5, 1967, as a result of a union-company discussion.

      With respect to the evidence relating to the union and company discussion of Cassidy on July 5, 1967, suffice it to say that it constituted a discus629 sion of whether the parties should consider Cassidy in the bargaining unit and whether Cassidy should have to join the Union. Cassidy credibly and clearly testified to the effect that his duties did not change thereafter. The parties' determination of what an employee's or supervisor's duties mean in term of status is not controlling. This is an issue of evidence and law and is determined accordingly.

      As I see the evidence, the issue of Cassidy's status narrows to one of whether the evidence reveals that Cassidy had (1) the authority to make job assignments, (2) the authority to effectively recommend raises or similar action, or (3) the authority to responsibly direct the work of employees.

      The evidence relating to Cassidy's duties and authority was the testimony of Cassidy and Spillman.

      As to the question of Cassidy's authority to assign work to employees, there is no evidence to reveal that the Respondent granted Cassidy the authority to exercise independent judgment in assigning work to employees. Briefly stated, both Cassidy and Spillman testified to the effect that the job assignments were determined by Secretary-Treasurer Gibson and that Cassidy merely relayed the message of assignment to the employees involved. Cassidy testified to the effect that 90 percent of the time Gibson wrote the assignment on the job order. Cassidy testified to the effect that approximately 10 percent of the time the assignments were not listed on the job sheet but that he then assigned the first man who became available. In my opinion the latter type assignment does not reveal an assignment requiring the exercise of independent judgment.

      Cassidy also testified to the effect that at times emergencies came up necessitating reassignment of employees, that on such occasions Gibson would question him as to who was about to finish a 'ob and would then tell him to pull a certain man off of a job for the emergency job.

      Considering all of the evidence and the foregoing, I conclude and find that the evidence fails to establish that Cassidy has the authority to make job assignments with the exercise of independent judgment.

      As to the question of Cassidy's authority to effectively recommend raises and similar actions, I find no evidence to reveal that the Respondent has granted to Cassidy the authority to effectively recommend raises and similar actions. Spillman's testimony was to the effect that the Respondent had not granted Cassidy the authority to effectively recommend raises or other actions. Spillman did testify to the effect that he gave great weight to Cassidy's recommendations and that Cassidy's recommendations were substantially effective. The question is essentially one of grant of authority.

      I The facts are based upon the pleadings and admissions thereto Considering all of the foregoing, I conclude and find that the...