Marinette Marine Corp., 627 (1969)

Marinette Marine Corporation and Robert Bell,

Donald V. Rhode and Duane Ruggles, a Committee of Individuals International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers,

AFL-CIO, and its Local Lodge 6% and Robert Bell, Donald V. Rhode and Duane Ruggles, a Committee of Individuals Cases 30-CA-817 and 30-C B-205

November 18, 1969 DECISION AND ORDER

BY MEMBERS FANNING, BROWN, AND ZAGORIA On February 19, 1969, Trial Examiner Henry L.

Jalette issued his Decision in the above-entitled proceeding, finding that the Respondent Employer had engaged in and was engaging in certain unfair labor practices alleged in the complaint and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also recommended that allegations of certain other unfair labor practices be dismissed.

Thereafter, the Respondent Employer and the General Counsel filed exceptions to the Trial Examiner's Decision and supporting briefs, and the Respondent Unions filed cross-exceptions 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 three-member panel.

The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudical error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the i exceptions, the cross-exceptions, the briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, as modified herein.

George Mueller has been president of the Respondent Local for 5 years ,and, as such, appoints members of the grievance and bargaining committees and personally participates in contract negotiations and the processing of grievances. At the same time, Mueller is employed by the Respondent Employer in a position which, according to the findings of the Trial Examiner, is supervisory within the meaning ; of Section 2(11) of the Act.

Accordingly, the Trial Examiner concluded that by the participation of its supervisor, Mueller, iii the internal affairs of .the Respondent Local, the Respondent Employer has violated Section 8(a)(1) and (2) of the Act. We do not agree, however, that Mueller is a supervisor within the meaning of the Act.

Mueller is one of four 'senior supervisors' who, the collective agreement states, 'shall be responsible to their respective foreman for fulfilling the duties assigned to them and shall supervise their work force accordingly.' The Trial Examiner considered this contractual job description, along with Mueller's wearing of a red hat in the past, to be 'indicia of supervisory status.' In addition, he cited Mueller's higher pay and the fact that some employees consider Mueller to be a 'boss' as 'factors tending to support' a finding of supervisory status. We do not agree with the Trial Examiner that this limited evidence is sufficient to support such a finding.

In the industry involved, the term 'senior supervisor' appears to have antecedents in the term 'leadman,' while the red hats, which were worn only by - admitted supervisors and 'senior supervisors,' have not been used since the, summer of 1968. Additionally, there is no evidence that the employees were told that the hats signified anything more than experience on the job. The higher wage, rate for 'senior supervisors' was established through collective bargaining, is specified in the contract, and is only 15 cents more per hour than the rate for 'junior supervisors,' who are not alleged to be statutory supervisors. In fact, so-called supervisory positions, both senior and junior, are fully covered by the collective agreement. As they become vacant, the contract requires that they be posted and, other things being equal, filled according to seniority. Foremen, on the other hand, are excluded from coverage by the agreement, are specifically enjoined from using tools, and are therein 'charged with carrying out the Company's policies.' The other factors cited by the Trial Examiner. in support of his finding are similarly inconclusive. While two employees did testify, in conclusionary language, that they considered Mueller to be in charge of-the plate shop, each also indicated an awareness of the distinction between Mueller and the foremen. In addition, Mueller does not attend management meetings, and punches a timeclock.

The Trial Examiner, while noting that Mueller has no authority to hire, suspend, layoff, recall, promote, discharge,, reward, or discipline employees, found nevertheless that Mueller has the authority and responsibility to make effective recommendations concerning conditions of employment The evidence in support of this finding is not persuasive. The record does not disclose any specific incidents wherein Mueller has made such recommendations, and this fact is particularly significant when it 'is considered that Mueller has been a senior supervisor since 1953. The Trial Examiner relied on an affidavit in which a witness stated that supervisors have informed foremen that employees are not working out, but the affidavit mentions 'no specific instances, and the Trial Examiner could only conclude that the supervisors 179 NLRBNo. 102 are 'expected' to perform the duty. As' to an unspecified number of instances in which Mueller has gone to the foreman for overtime help, and as to a single incident where time off was granted by the personnel manager because it was 'alright with George (Mueller),' it is clear that either the foreman or the personnel manager was vested with the full decision making authority, Mueller's role being perfunctory. We conclude, therefore,,- that Mueller does not make recommendations affecting conditions of employment in a manner contemplated by Section 2(1 1) of the Act The final, and perhaps central finding of the Trial Examiner is that Mueller must exercise independent judgment in directing the work force in the plate shop. Such judgment is required, the Trial Examiner found, in making the initial assignments of work, monitoring its progress, determining which operations are to have priorities, and in- switching operators from one job to another. Nevertheless, all the work in the shop is scheduled on sheets which contain detailed instructions as to which machine and which materials are required at each step of the operation. Moreover, the record indicates that the priority of jobs is determined by higher management and enforced by the project foremen, and that any changes made by Mueller in job assignments are temporary and entail no more than a change in machine or cutting sheet. Mueller must keep close watch on the progress of the work, but this is done as part of his record-keeping function, rather than as a supervisory function, and Mueller does not inspect the work before it goes out of the plate shop.

In addition, the specific assignment of -project foreman Newlin to supervise the plate shop, the periodic presence of other project foremen in the shop whose duties are supervisory, and the recent assignment of a full-time foreman, Kuran, to the shop, in which from 15 to 25 employees perform a type of work which requires little supervision, seemingly leaves no part of the judgment-making sphere to Mueller.

For the above reasons, and upon consideration of the record as a whole, we find that George Mueller is not a supervisor within the meaning of-the Act.

Accordingly, we dismiss the allegations of the complaint premised upon his supervisory status 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 herein modified, and orders that the Respondent Employer, Marinette Marine Corporation,

M arinette, Wisconsin, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as amended below.

1. Delete paragraph l(c) of the Trial Examiner's Recommended Order.

2. Delete the second indented paragraph of the notice attached to the Trial Examiner's Decision.

TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE

HENRY L JALETTE, Trial Examiner These cases were heard on November 13 and 14, 1968,' pursuant to a consolidated complaint issued on October 15, against Marinette Marine Corporation, hereinafter referred to as Respondent Employer, and against International Brotherhood of Boilermakers, Iron Ship Builders,

Blacksmiths, Forgers & Helpers, AFL-CIO, and its Local Lodge 696, hereinafter referred to separately as Respondent International and Respondent Local, and collectively as Respondent Union The complaint is based on a charge in Case 30-CA-817 filed on May 3, and a charge in Case 30-CB-205 filed on May 3 and amended on June 17 The charges were filed by Robert Bell,

Donald V Rhode, and Duane Ruggles, who described themselves as a committee of individuals The complaint alleges that Respondent Employer violated Section 8(a)(1) of the Act by promulgating and maintaining an invalid union solicitation and distribution rule, and Section 8(a)(I) and (2) by recognizing, bargaining and contracting with Respondent Union when Respondent Union had as its officers individuals who are agents and supervisors of Respondent Employer The Respondent Union is alleged to have violated Section 8(b)(I)(A) of the Act by permitting 'agents and supervisors of the Respondent Employer to serve as representatives and agents of the Respondent Union Upon the entire record, including my observation of the witnesses and after due consideration of the briefs filed by the parties,14 make the following FINDINGS OF FACT

I THE BUSINESS OF RESPONDENT EMPLOYER AND THE

LABOR ORGANIZATIONS INVOLVED

Respondent Employer is a Wisconsin...