Hogan Mfg.

National Labor Relations Board - Board Decisions

Dec 6, 1991

305 N.L.R.B. 806 (N.L.R.B. 1991)

806
305 NLRB No. 111
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are 1990 unless indicated otherwise.
2 The initial tally showed 80 for and 73 against the Petitioner with
8 challenged ballots. On August 31, 1990, the Regional Director,
after investigation of the challenged ballots, recommended that the
ballots of Jim Suniga, Ralph Kehano, Jim Sweat, Mike Reichmuth,
Michael Nelson, and Steve Castro be opened and counted. No rec-
ommendation was made as to the ballots of Jim Nunley and Gary
Mouldenhauer as it appeared likely that the opening and counting of
the other ballots would render the ballots of Nunley and
Mouldenhauer no longer determinative. Pursuant to a Board Order
Directing Regional Director to Open and Count Challenged Ballots
that issued on September 24, the other ballots were opened and
counted on October 3. The final tally as shown above made Nunley
and Mouldenhauer’s ballots determinative. Accordingly, on October
9, the Regional Director issued a Supplemental Report on Chal-
lenged Ballots and Notice of Hearing regarding Nunley and
Mouldenhauer’s challenged ballots.
3 In its aforementioned September 24 Order, the Board adopted the
Regional Director’s recommendation that the Employer’s objections
be overruled in their entirety. Regarding the Petitioner’s objections,
the Board noted that in Case 32–CA–11218, the Employer entered
into a settlement agreement in which it agreed, inter alia, that should
the Petitioner not receive a majority of the valid ballots cast after
the challenged ballots are resolved, the election shall be set aside on
the basis of the Petitioner’s objections, which parallel the allegations
of the unfair labor practice charge.
4 The unit is:
All full-time and regular part-time production and maintenance
employees employed at the Employer’s Plant Number 1, 2, and
3 (including its machine shop) in Escalon, California; excluding
all other employees office clerical employees, draftsmen, engi-
neering employees, watchmen, guards, and supervisors as de-
fined in the Act.
Hogan Manufacturing, Inc. and International Asso-
ciation of Bridge, Structural and Ornamental
Iron Workers, Local 792, AFL–CIO, Peti-
tioner. Case 32–RC–3256
December 6, 1991
DECISION AND DIRECTION
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
The National Labor Relations Board, by a three-
member panel, has considered determinative challenges
in an election held on June 20, 1990, and the hearing
officer’s report recommending disposition of them.1
The election was conducted pursuant to a Stipulated
Election Agreement. The tally of ballots shows 80 for
and 79 against the Petitioner, with 2 challenged bal-
lots.2
The Board has reviewed the record in light of the
exceptions and briefs and has adopted the hearing offi-
cer’s findings and recommendations only to the extent
consistent with this Decision and Direction.3
1. The hearing officer found that Gary Mould-
enhauer is a supervisor within the meaning of Section
2(11) of the Act and recommended that the challenge
to his ballot be sustained. The Employer excepts, con-
tending that Mouldenhauer neither exercises, nor has
the authority to exercise, independent judgment in con-
nection with his duties, and that Mouldenhauer pos-
sesses none of the indicia of supervisory status enu-
merated in Section 2(11) of the Act. We find merit in
the Employer’s exceptions.
The Employer builds wheelchair lifts for municipal
buses and fabricates structural steel products at its
plants 1, 2, and 3 in Escalon, California. The election
here was conducted in a unit of employees at these
three plants.4 Mouldenhauer is a certified welder and
welding inspector. He works primarily in plant 2 but
performs some welding inspection duties in plant 3. He
works the same hours, takes the same breaks, and
punches the same timeclock as the plant 2 shop em-
ployees. He is supervised by Lon Rose, the quality as-
surance manager and personnel director.
Mouldenhauer’s varied duties include inspecting
welds, testing welds, writing welding procedure speci-
fications, reviewing blueprints and project specifica-
tions, checking dimensions of materials and parts, re-
viewing welding codes, reviewing mill test reports, and
qualifying new welding procedure when a standardized
procedure cannot be used. Since July, he has been as-
signed to do production welding. His duties that gave
rise to the finding of supervisory status concern certain
welding tests he administers to potential new hires and
current employee welders.
The Employer tests the welding capability of poten-
tial new hires and also tests its employee welders when
their ability is in question or when the need to qualify
for a new procedure or for upgrading. The hearing of-
ficer’s description of Mouldenhauer’s test procedure is
not in dispute. He found that:
To qualify a welder, Mouldenhauer gives two
standard welding tests, a stick test and a flux core
wire test. To conduct the test, Mouldenhauer or-
ders test plates which the foreman sets up for the
welder who is to be tested. Mouldenhauer gives
instructions to the welder before a test and
throughout the procedure, as necessary. Mould-
enhauer testified it takes a day to test a new hire
and that he can spend from one half hour to three
hours with an employee who is being qualified. If
the welder is not producing a satisfactory weld,
e.g., making a flawed ‘‘root pass,’’ which is the
initial, critical welding pass upon which the entire
weld depends, Mouldenhauer interrupts the test
informing the welder that his root pass is unac-
ceptable, and/or suggesting practice for a retest. If
during testing, the welder appears to be qualify-
ing, Mouldenhauer checks on the weld periodi-
cally (observing the process through a welding
hood, as it occurs). When the welder completes a
satisfactory weld, Mouldenhauer or a brake opera-
tor bends the weld test plates; Mouldenhauer may
also have the weld plates radiographed. Mould-
807HOGAN MFG.
5 Although no employee welder was discharged or laid off as a re-
sult of Mouldenhauer’s testing, assuming they were, we would find,
for similar reasons, that the use of the test result, without more, did
not confer supervisory status on him.
6 We reject the hearing officer’s attempt to distinguish Jefferson
Chemical, on the basis that the welding test administered by Riley,
whose employee status was at issue there, were given to outside con-
tractors’ employees and only affected those employees hired for a
particular job and not for a job elsewhere with Riley’s employer.
The Board’s decision did not turn on such considerations. Instead,
the Board found that Riley was not a supervisor because any atten-
tion paid to Riley’s opinions or recommendations was based on def-
erence to his expertise, not to any delegation of authority to him to
participate in the hiring process.
That same distinction applies to Mouldenhauer’s role in the weld-
testing process here. Indeed, Mouldenhauer’s role in hiring falls
short of Riley’s, in that Riley ‘‘sometimes recruited welders and
made ad hoc recommendations to the Employer’s personnel depart-
ment.’’ No evidence was presented here that Mouldenhauer had any
role in recruiting or making ad hoc recommendations, or that his role
in hiring extended beyond administering tests to employees or poten-
tial hires who were referred to him by the Employer, and reporting
those results.
7 As the hearing officer correctly observed, the Board will not
automatically exclude technical employees from units of other em-
ployees whenever their placement is in issue. Livingston College,
290 NLRB 304, 306 (1988).
enhauer interprets the test specimen and the
radiograph as to whether the test weld passes the
required standard. If the call is close, Mould-
enhauer asks Rose for a second opinion. If the
welder passes the qualifying procedure, Mould-
enhauer fills out American Welding Society
(AWS) and American Society of Mechanical En-
gineering (ASME) certification forms, stamps his
CWI stamp, and files the certification record in
his office.
Mouldenhauer has administered approximately 100
qualifying tests in the past 5 years. More than one-half
of the tests were given to potential new hires; approxi-
mately a dozen of the potential new hires failed the
test and were not hired as welders. Mouldenhauer of-
fered uncontradicted testimony that he believes em-
ployee welders have received a pay increase as a result
of reclassification.
The hearing officer found Mouldenhauer to be a
statutory supervisor because he effectively rec-
ommends to Personnel Director Rose which welder the
Employer should hire and which of the Employer’s
welders are qualified for reclassification. His finding
rests primarily on Rose’s testimony that he relies on
Mouldenhauer’s testing of the welders, that no one
retests them after Mouldenhauer, and that job appli-
cants have been denied jobs as welders if they could
not pass a welding certification test. The hearing offi-
cer also found that Mouldenhauer’s recommendations
to Rose regarding the Employer welders ‘‘appear to
equate with Mouldenhauer’s also effectively recom-
mending promotions.’’
Unlike the hearing officer, we find that Mould-
enhauer’s role in conducting the welding tests and re-
porting the test results to Rose represents neither a del-
egation of authority, nor an effective recommendation,
to hire or promote. It is undisputed that the tests, with
preestablished standards, are designed to determine the
technical competence of welders, an area in which
Mouldenhauer possesses both expertise and experience.
In essence, Mouldenhauer reports on whether the
welds passed or failed the particular test. And it is the
test result, as indicated in the report, not an inde-
pendent recommendation from Mouldenhauer, that
Rose uses in deciding to hire a welding applicant or
promote an employee welder. That this is so, and that
Mouldenhauer’s exercise of judgment is limited wholly
to conducting and grading the test and not recom-
mending hire or promotion, is further demonstrated by
the fact that ‘‘where the call is close,’’ Mouldenhauer
does not make a recommendation for or against hire or
promotion but instead asks Rose for a ‘‘second opin-
ion’’ concerning whether the tested individual qualifies
as a welder. In these circumstances, Rose’s acceptance
of Mouldenhauer’s reports and his reliance on them
without retesting the welders does not bestow on
Mouldenhauer the authority to hire or promote or ef-
fectively recommend such action.5 At most such ac-
ceptance and reliance show Rose’s confidence in
Mouldenhauer’s testing procedures and abilities and
thus represent a deference to his expertise rather than
a delegation of supervisory authority. See Plumbers
Local 19 (Jefferson Chemical), 237 NLRB 1099,
1101–1102 (1978).6
Finally, no other basis for finding Mouldenhauer a
supervisor exists. No evidence was presented to show
that any of the Employer’s employees are regularly as-
signed to work under Mouldenhauer’s supervision or
direction. As to Mouldenhauer’s inspection of welds in
the production process, as opposed to the testing proc-
ess, he is required to report defective welds to Rose
or a foreman. Rose testified that the foreman, not
Mouldenhauer, decides if an employee welder is to be
disciplined for a defective weld. Thus, as in the case
of testing, Mouldenhauer’s inspection of welds is but
another example of the application of his technical
competence and experience rather than the exercise of
supervisory authority.
Accordingly, we find that Mouldenhauer is not a su-
pervisor within the meaning of Section 2(11) of the
Act.
2. The hearing officer also found that, if Mould-
enhauer was not excluded as a statutory supervisor, the
record establishes that he is a technical employee who
has a community of interest with the unit employees.7
We agree with the hearing officer that Mouldenhauer’s
role in quality control is a vital part of the production
process here and that he shares a community of inter-
808 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 Blue Grass Industries, 287 NLRB 274 (1987); Owens-Illinois,
Inc., 211 NLRB 939, 940–941 (1974), and W. R. Grace & Co., 202
NLRB 788, 789 (1973).
est with the unit employees. Accordingly, we direct
that Mouldenhauer’s ballot be opened and counted.
So too, we agree with the hearing officer, for the
reasons stated by him, that employee Jim Nunley, a
quality control inspector, has a substantial community
of interest with the production and maintenance em-
ployees in the appropriate unit here and that his ballot
should be opened and counted.8
DIRECTION
IT IS DIRECTED that the Regional Director, within 10
days from the date of this decision, shall open and
count the ballots cast by Gary Mouldenhauer and Jim
Nunley, and prepare and cause to be served on the par-
ties a revised tally of ballots. If, based on that tally,
Petitioner has received a majority of the votes cast, the
Regional Director shall issue a certification of rep-
resentative. If the Petitioner has not received a major-
ity of the votes cast, then the election shall be set aside
based on the Petitioner’s objections and a new election
shall be held whenever the Regional Director deems it
appropriate.
IT IS FURTHER DIRECTED that this proceeding is re-
manded to the Regional Director for the purpose of
taking actions consistent with this Decision and Direc-
tion.