Hydro Conduit Corp.

National Labor Relations Board - Board Decisions

Jan 14, 1981

254 N.L.R.B. 433 (N.L.R.B. 1981)

HYDRO CONDUIT CORPORATION
Hydro Conduit Corporation and Operating Engi-
neers Local Union No. 3, International Union of
Operating Engineers, AFL-CIO and Construc-
tion and General Laborers Union, Local 185,
Laborers International Union of North America,
AFL-CIO. Cases 20-CA-14675 and 20-CA-
14678
January 14, 1981
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENE.IO
On August 5, 1980, Administrative Law Judge
William J. Pannier III issued the attached Decision
in this proceeding. Thereafter, the General Coun-
sel, Respondent, and Charging Party Local No. 3
filed exceptions and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
Our dissenting colleague, contrary to the Admin-
istrative Law Judge, would find that Foreman
Eggleston was a supervisor under the Act, and that
Respondent's withdrawal of recognition from the
Unions in reliance on a petition circulated by
Eggleston violated the Act. We disagree. In find-
ing that Eggleston was not a supervisor, the Ad-
ministrative Law Judge presented a very compre-
hensive and in-depth account of the record evi-
dence and, applying appropriate Board precedent
to the facts, determined that Eggleston did not pos-
sess supervisory authority at the time he circulated
the petition. After a careful examination of the
entire record and the Administrative Law Judge's
Decision, we agree, for the reasons given by him,
that Eggleston possessed no authority to act other
than in a routine manner and as a conduit between
employees and management, and that he was not a
supervisor under the Act at the time in question.
We shall therefore dismiss the complaint.
Moreover, assuming arguendo that Eggleston
was a supervisor, we would still dismiss the com-
plaint. The record shows that Eggleston was a
member of the bargaining unit and a member of the
Union and, in circulating the petition, was acting in
concert with his fellow employees, and not as a
representative of management. Nor did manage-
ment encourage, authorize, or ratify Eggleston's
254 NLRB No. 48
actions or lead the employees to believe he was
acting for management.'
Our understanding of the facts varies some from
that of our dissenting colleague. The record shows
that on June 22, 1979, the employees congregated
in the lunchroom sometime around noon (lunch
breaks are staggered between 11:30 a.m. and I
p.m.). At this meeting Eggleston informed the em-
ployees of his petition to get rid of the Unions and
told the employees they could sign or not, which-
ever they wished. Out of approximately 34 to 38 in
the unit, 34 signed the petition. Plant Manager
Hunot returned to the plant about 1:30 and found
the signed petition on his desk. Acting on his doubt
of the Unions' majority status based on this peti-
tion, Hunot thereupon took steps culminating in
the withdrawal of recognition of the Unions.
The General Counsel's case rested solely on the
theory that the petition was tainted because of the
action of Eggleston, the alleged supervisor. The
facts do not support this theory.
The evidence shows that the employees were
dissatisfied with the representation they received
from the Unions and with particular things such as
their pension plan. There had been much discussion
among the employees about this and talk of a possi-
ble petition prior to June 22. Although Hunot was
aware of this dissatisfaction, he had not spoken to
Eggleston of union matters.
The evidence does not show that, at the June 22
meeting, Eggleston predicted or promised anything
that the Company would do or that any employees
were pressured into signing the petition. The only
evidence of predictions was presented by employee
witnesses who neither speak nor understand Eng-
lish, and had no idea what Eggleston had said
except what employee Whatley told them in Span-
ish had been said. However, Whatley and other
witnesses who understand English and heard Egg-
leston's talk testified that there were no predictions
or promises made by Eggleston, nor any represen-
tations of what the Company might do.2 Further,
employees specifically testified that they looked on
Eggleston as a fellow employee and union member,
and that they did not consider that he was speaking
for management.
There is also no evidence that Hunot or Kincaid
was aware of the circumstances surrounding the
petition or of the meeting. At some undetermined
time subsequent to receipt of the hand-printed (not
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433
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
written) petition, Hunot learned of Eggleston's role
in its preparation.
After reviewing all of the evidence before us, we
see nothing to show that management had anything
to do with the preparation of the petition; that
Eggleston spoke for management; or that the em-
ployees considered that Eggleston was acting on
behalf of management. We therefore would find no
violation of the Act even if Eggleston were a su-
pervisor.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
MEMBER JENKINS, dissenting:
I dissent from the majority's affirmance of the
Administrative Law Judge's dismissal of the 8(a)(1)
and (5) violations based on his finding that the em-
ployee decertification petition underlying Respon-
dent's withdrawal of recognition from the Unions
was not tainted by supervisory solicitation.
The record evidence plainly shows that on June
22, 1979, after Respondent and the Unions had
commenced contract renewal negotiations, Produc-
tion Foreman Eggleston called a meeting of em-
ployees in the plant lunchroom, during working
hours,3 to solicit signatures on a decertification pe-
tition. He explained to the assembled employees
that the purpose of the petition was to get rid of
the Unions, that "no one had to sign who did not
want to," and that if there were no unions the
Company would continue their insurance coverage
and would also put their retirement deductions into
a bank for them. Eggleston obtained 34 signatures
and then left the signed petition on Plant Manager
Hunot's desk. The same day, Respondent's labor
relations consultant wrote to the Unions informing
them of Respondent's good-faith doubt as to their
majority status, and, on June 26, sent another letter
stating that Respondent was in possession of a peti-
tion from a majority of its employees and could not
therefore enter into any collective-bargaining
agreements. The Administrative Law Judge did not
mention any of the foregoing evidence in view of
his dismissal of the complaints on the grounds that
the General Counsel failed to establish that Eggle-
ston was a supervisor or agent of Respondent.
As to the supervisor issue, the Administrative
Law Judge found that Production Foreman Eggle-
3 Eggleston's meeting extended over Respondent's staggered lunch pe-
riods, thereby causing production to be shut down.
ston, with the help of two leadmen, had charge of
18 to 20 employees who comprised the certrifugal 4
department, the largest of three production depart-
ments at Respondent's Orland, California, concrete
pipe manufacturing facility. He found that the plant
was supervised solely by Plant Manager Hunot and
Plant Superintendent Kincaid. The Administrative
Law Judge acknowledged evidence that Eggleston
was empowered, inter alia, to assign work, give
verbal reprimands, grant leave requests, assign
overtime, handle employee complaints and griev-
ances, report poor production and infractions of
work rules, and provide "input" regarding evalua-
tion of probationary and permanent employees. He
further found that, although Eggleston occupied
the "working foremen" bargaining unit classifica-
tion, he devoted little time to performing produc-
tion work, earned 50 cents an hour more than pro-
duction employees, regularly attended production
meetings of management, wore a supervisor's hard
hat, and shared a desk and office (with two other
production foreman) in the production area where
he prepared production, maintenance, and accident
reports, and initialed employee timecards. Howev-
er, he found, based on Hunot's largely uncontra-
dicted testimony,5 that Eggleston lacked authority
to effectively recommend changes in employees'
status or to make any decisions involving the exer-
cise of independent judgment during his perfor-
mance of the aforesaid "supervisory-type" func-
tions. Accordingly, he concluded that Eggleston
was merely a conduit of management, and that
complete supervision of the plant reposed in Hunot
and Kincaid-the former working most of his time
in an office in a separate building 500 to 700 feet
away from the production areas, and the latter di-
viding his worktime among three production areas.
Contrary to the Administrative Law Judge, I
find that Hunot's self-serving testimony is rebutted
by the physical evidence showing that Respon-
dent's supervisory structure is inherently inad-
equate to control the approximately 50 employees
who are spread over such a large facility as is in-
volved herein,6 and by documentary and testimoni-
al evidence which reveals that Hunot looked to
Eggleston for assistance during Kincaid's apparent-
ly not infrequent absences, as shown by Hunot's re-
quests that Eggleston sign employee Schwellen-
bach's disciplinary warning and discharge notices
4 'Ihis department, which performs spinning operations, is erroneously
spelled "centrifical" throughout the transcript of the hearings.
' Neither Eggleston nor Kincaid appeared as a witness at the hearing
I note that even after accepting Hunot's description of Respondent's
supervisory structure as valid the Administrative aw Judge was con-
strained to comnment that this "unusual" stance did not square with his
own subjective impressions
434
HYDRO CONDUIT CORPORATION
on June 25 and 27. 7 I similarly reject the notion
that the plant runs itself in view of the evidence
that each of the nonsupervisory production fore-
men required the assistance of one or more lead-
men.
Apart from the question of Eggleston's alleged
supervisory status, it is clear from the duties that
Respondent required of him, including verbal repri-
mands and signing of disciplinary and discharge
notices, that production employees reasonably
viewed his position and interests as more closely
allied with that of management than with their
own.8 Furthermore, Eggleston's calling of an em-
ployee meeting during worktime which halted pro-
duction, together with the nature of his remarks re-
garding what the company would do for them if
they ousted the Unions, must have made it plain to
those assembled that he was speaking as a represen-
tative of management. Such antiunion solicitation
by a supervisor and/or agent of management con-
stitutes an infringement on employees' Section 7
rights, and is therefore violative of Section 8(a)(l)
of the Act. 9 That is no less true if the supervisor or
agent also occupies a bargaining unit position if, as
is indicated here, the duties which Respondent as-
signed to him cause the employees to regard him as
an arm of management. '
Respondent's plant manager readily admitted
that he quickly recognized the handwritten word-
ing of the petition as the work of Eggleston. Re-
spondent's knowledge of Eggleston's "supervisory-
type" functions must have alerted it to the likeli-
hood that employees would view the petition as
company-instigated. It nevertheless swiftly seized
upon the petition as the basis for its withdrawal of
union recognition without even inquiring into its
obviously suspicious origins. Respondent's afore-
said conduct served to ratify Eggleston's actions.
In all the attendant circumstances, I would find
that Eggleston's solicitation of employee signatures
against the Unions on worktime, and Respondent's
subsequent withdrawal of recognition based there-
on, violate Section 8(a)(l) and (5) of the Act.
' No mention is made of how the meeting and interruption of produc-
tion went undetected. Hunot testified that he was away from the plant,
but he did not know about Kincaid. Surely, the presence of either would,
without more, establish knowledge of unlawful solicitation on company
time. On the other hand, I would view their concurrent absences as fur-
ther evidence of the improbahility of the supervisory rrangement foimnd
by the Administrative Law Judge.
' Duo-Bed Corporation, 172 NLRB 1581, fn. I (1908)
9 See assau Glass Corporation 222 NLRB 792 (197b): Subhurhan
Homes Corporation, 173 NLRB 497 (1968)
' Montgomery Ward & Co. Incorporated, 115 NLRB 45 1950), enf d
242 F.2d 497 (2d Cir 1957), cert denied 355 S. 829 (19571
DECISION
STATEMENT OF THE CASE
WILLIAM J. PANNIER, III, Administrative Law Judge:
This matter was heard by me in Chico, California, on
January 9 and 10, 1980. On August 31, 1979,' the Re-
gional Director for Region 20 of the National Labor Re-
lations Board issued an order consolidating cases, con-
solidated complaint, and notice of hearing, based upon
the unfair labor practice charge filed in Case 20-CA-
14675 on June 29, as amended on August 28, and upon
the unfair labor practice charge filed in Case 20-CA-
14678 on July 2, alleging violations of Section 8(a)(1)
and (5) of the National Labor Relations Act, as amend-
ed, 19 U.S.C., §151, et seq., herein called the Act. All
parties have been afforded full opportunity to appear, to
introduce evidence, to examine and cross-examine wit-
nesses, and to file briefs. Based upon the entire record,2
upon the briefs filed on behalf of the parties, and upon
my observation of the demeanor of the witnesses, I make
the following:
FINDINGS OF FACT
I. JURISDICTION
At all times material, Hydro Conduit Corporation,
herein called Respondent, has been a Delaware corpora-
tion, with a place of business in Orland, California, and
has been engaged in the manufacture of concrete pipe.
During 1978, Respondent, in the course and conduct of
its business operations, sold and shipped products, goods,
and materials valued in excess of $50,000 directly from
its Orland facility to points outside the State of Califor-
nia and, additionally, during that same period purchased
and received products, goods, and materials valued in
excess of $50,000 directly from points outside the State
of California. Therefore, I find that at all times material,
Respondent has been an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
11. THE LABOR ORGANIZATIONS INVOL.VED
At all times material, Construction and General Labor-
ers Union Local 185, Laborers International Union of
North America, AFL-CIO, herein called Local 185, has
been a labor organization within the meaning of Section
2(5) of the Act.
At all times material, Operating Engineers Local
Union No. 3, International Union of Operating Engi-
neers, AFL-CIO, herein called Local 3, has been a labor
organization within the meaning of Section 2(5) of the
Act.
At all times material, General Teamsters Local Union
No. 137, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, herein
I Unless oilhtrwise stated, all dates occurred in 1979
2 The General Counsel's unopposed motion to correct the transcript is
hereb granted and the ranscript should he corrected il the manner set
forth the-rein
435
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
called Local 137, has been a labor organization within
the meaning of Section 2(5) of the Act.
At all times material, Laborers Union Local No. 121,
Laborers International Union of North America, AFL-
CIO, herein called Local 121, has been a labor organiza-
tion within the meaning of Section 2(5) of the Act.
11. THE ALLEGED UNFAIR I.ABOR PRACTICES
During at least the 10-year period prior to June, Re-
spondent has entered into a series of collective-bargain-
ing agreements. Most recently, from July 1, 1976,
through June 30, Respondent had been party to two col-
lective-bargaining agreements; one with Local 3 and
Local 137,
3 and the other with Local 121 and Local
185. 4 Respondent has refused to continue recognizing
these four labor organizations and has withdrawn recog-
nition from them on the basis of a petition signed by ma-
jorities of the employees in each of the bargaining units.
It is undisputed that Respondent's employees had been
dissatisfied with their representation for a substantial
period prior to June 30. However, the petition was pre-
sented to them by Ray Eggleston,5 centrifugal operation
foreman at Respondent's Orland facility. The General
Counsel contends, contrary to Respondent, that Eggle-
ston has been a supervisor within the meaning of Section
2(11) of the Act and an agent of Respondent since his
appointment to the position of foreman in April. Based
upon that contention, the General Counsel argues that
the petition was tainted and that Respondent violated the
Act by relying upon it as the basis for withdrawing rec-
ognition. The General Counsel concedes that if Eggle-
ston had not been a statutory supervisor when the peti-
tion had been circulated, then "we are not contending
that the union's-that any of the unions would have re-
tained majority status in any of the units. We are con-
tending that the majority stands or falls with the petition,
and that if the petition is valid and if Mr. Eggleston was
not a supervisor or agent of the Respondent, then the
Section 8(a)(5) and 8(a)(1) of the allegations of the com-
plaint would not be meritorious."
The Orland facility is located on a 20-acre tract, with
operations conducted in a number of separate areas.
Thus, the offices are located in the southwest corner of
the tract. The maintenance area is located 50 to 10() feet
away from there. There are three production areas. The
tamp and head area, where six or seven employees
worked in June, is located 500 to 600 feet from the office
area. The cage and honing operation, where 10 or 11
employees were working in June, is located a similar dis-
3 That agreement provides that it covers all eplohyees performing
work within the jurisdiction of Local 3 and local 137, including batch
plant operators, cage makers, hyster operators (plant operation), pipe ma-
chine operators, semi-automatic cage machine operators, bridge crane op-
erators (up to and including 20-ton capacity), repairmen-welders, hyster
operators (loading operation), truckdrivers (plant and transport, and
working foremen.
4 That agreement provsides that it covers all employees performing
work coming within the jurisdiction of ocals 121 and I15, including air
strippers, general laborers, working foreniel, pipe layers (including pipe
repairmen), and leadmen.
s Although spelled "Eggelston" throughout the transcript, the spelling
used in the text conforms to the spelling used in the complaint and all
briefs.
tance from there. The centrifugal area is located central-
ly in the tract. It is bifurcated into two operations: spin-
ning, located 500 to 600 feet from the offices, and strip-
ping, which is located an additional 100 feet from there.
Depending upon the season, the employment comple-
ment in the centrifugal operation varies from 5 to 25 in
number. In June, 18 to 20 employees were working
there.
Peter Hunot is the plant manager at Orland. Reporting
to him is Plant Superintendent Ed Kincaid. According to
Hunot, Kincaid's "primary responsibility is to answer to
me in all matters relating to production, repair, and man-
ufacturing of concrete pipe. He takes his orders from me
and transmits them to each of the respective departments
and sees that each of them are carried out in an orderly,
efficient, productive manner. He has primary responsibil-
ity for seeing that everything relating to production is
carried out and then he reports back to me and answers
to me if it's not." Below Kincaid are the production fore-
men, of whom there were three in number in June. 6
Jerry Newham was assigned to the tamp and head area,
Larry Davis to the cage and honing area and Eggleston
to the centrifugal area. In addition, in June, two lead-
men, Ken Northrope and John Lewis, worked in the
centrifugal operation.
Hunot testified that all three foremen possessed the
same authority during the April to June period. 7 Specifi-
cally, Hunot testified that during June, Eggleston's re-
sponsibilities, in general, had been "to produce and see
the production of concrete pipe was carried out under
the direction of the plant superintendant [sic], by a pro-
duction schedule that was predetermined and based on
needs for specific contractor jobs that were being carried
out at that time." To accomplish this, testified Hunot,
Eggleston "spent his time basically seeing that what was
carried out by his lead people and personnel, in general,
was being done properly and in [a] timely manner, and
that we were on schedule based on a predetermined hour
joint ratio, which is just something we all know where
we should be in the production schedule." Based essen-
tially upon this description of Eggleston's responsibilities,
the General Counsel and the Charging Party contend
that he had been a statutory supervisor in June when the
petition to decertify the Unions had been circulated by
him.
Under Section 2(11) of the Act, a supervisor is "any
individual having authority, in the interest of the em-
ployer, to hire, transfer, suspend, lay off, recall, promote,
discharge, assign, reward, or discipline other employees,
or responsibly to direct them, or to adjust their griev-
ances, or effectively to recommend such action...."
To qualify as a supervisor, it is not necessary that an in-
dividual possess all of these powers. Rather, possession
of any one of them is sufficient to confer supervisory
status. N.L.R.B. v. Edward G. Budd Mfg. Co., 169 F.2d
ILater in the ycar, operations in the centrifugal operation were divid-
ed, ilh Egglestlon continuing to serve as foreman for spinning and with
a fi)urth foreman position being created for stripping and setup oper-
atitlls
' Neither gglestonl nor any of the other foremen were called as wit-
incssc in this proceeding
436
HYDRO CONDUIT CORPORATION
571 (6th Cir. 1948), cert. denied 335 U.S. 908 (1949);
Ohio Power Co. v. N.L.R.B., 176 F.2d 385, 387 (6th Cir.
1949), cert. denied 338 U.S. 899 (1950). However, posses-
sion, alone, of one of these powers does not suffice to
confer supervisory status. Rather, supervisory status
exists only if the power is exercised with independent
judgment on behalf of management, and not in a routine
or clerical manner. "Nevertheless, the statute expressly
insists that a supervisor (I) have authority (2) to use in-
dependent judgment (3) in performing such supervisory
functions (4) in the interest of management. These latter
requirements are conjunctive." N.L.R.B. v. Security
Guard Service, Inc., 384 F.2d 143, 147-148 (5th Cir.
1967). Moreover, "the burden is on the party alleging su-
pervisory status to prove that it, in fact, exists.... "
Commercial Movers, Inc., 240 NLRB 288, 290 (1979).
Further, in making determinations regarding supervisory
status, "the Board has a duty to employees to be alert
not to construe supervisory status too broadly because
the employee who is deemed a supervisor is denied em-
ployee rights which the Act is intended to protect." Wes-
tinghouse Electric Corporation v. N.L.R.B., 424 F.2d 1151,
1158 (7th Cir. 1970), cert. denied 400 U.S. 831. In the in-
stant case, while the evidence does show that Eggleston
exercised certain powers that were supervisory, a pre-
ponderance of the evidence fails to show that he exer-
cised independent judgment in performing these func-
tions. Put another way, it fails to show that he acted
other than as a conduit and without the ability to exer-
cise any significant discretion in connection with those
powers.
Thus, it is Kincaid who interviews and hires employ-
ees, and it is he who determines the job classification to
which newly hired employees are assigned. There is no
evidence that the foremen are involved in the hiring pro-
cess. Nor, for that matter, is there any evidence that the
foremen possess authority to recall employees or to ef-
fectively recommend that they be recalled.
Respondent has a 30-day probationary period for
newly hired employees. While Kincaid and Hunot solicit
"input" from foremen as to whether to retain employees
beyond their probationary period, Kincaid personally
monitors their progress, which is evaluated throughout
the 30-day period, and it is Kincaid and Hunot who inde-
pendently determine whether their status should be con-
verted from probationary to permanent. There is no evi-
dence that any recommendations made by the foremen in
this respect "were, in fact, followed." A. Barton Hepburn
Hospital, 238 NLRB 95, 96 (1978). Indeed, there is no
evidence that foremen are even called upon to make rec-
ommendations as a part of the "input" which they pro-
vide with regard to these matters.
Similarly, while the evaluations of foremen are sought
in connection with decisions to promote or transfer em-
ployees, such evaluations are but one of a number of
items considered in making these determinations. It is
Hunot and Kincaid who make an independent determina-
tion as to whether employees should be promoted or
transferred permanently. There is no evidence that any
recommendations which the foremen may make are fol-
lowed with any regularity. Accordingly, there is no evi-
dence that foremen, such as Eggleston, can convert the
status of probationary employees to that of permanent
employees, promote, or permanently transfer employees.
Nor does the evidence show that they can effectively
recommend such action. At best, the evidence shows
that they are consulted about these matters, but that their
comments are but one aspect of the total information
considered, with the final decisions in these areas being
made independently by Kincaid and Hunot. See, e.g.,
Victory Electric Cooperative Association, Inc., 230 NLRB
1201, 1202 (1977) (Pyle). So far as the record discloses,
any information which the foremen may provide in con-
nection with these matters is based upon their working
skill and experience. That is not sufficient to confer su-
pervisory status. Medicine Bow Coal Company, 217
NLRB 931, 939 (1975), and cases cited therein.
There is no evidence that foremen can discharge em-
ployees. Again, there is testimony that they provide
"input" into the process of making discharge determina-
tions, but there is no evidence that such "input" involves
making recommendations, nor, if it does, that such rec-
ommendations are followed with any regularity. Similar-
ly, there is no evidence that the foremen possess author-
ity to layoff or to suspend employees. Nor is there evi-
dence that they can effectively recommend such actions.
However, the General Counsel does contend that the
foremen, specifically Eggleston, can discipline employees
and the record does show that he has signed two warn-
ing notices that were issued to employees. With regard
to the matter of discipline, evidence was presented that
centered on three subsidiary areas. First, it is undisputed
that foremen possess authority to verbally admonish em-
ployees for performing incorrect or unsafe work. How-
ever, Respondent's leadmen, who all parties agree are
not statutory supervisors, have also done the same thing.
Further, responsibility for ensuring that work is per-
formed safely "does not reflect the kind of discretion in-
dicative of supervisory status." Commercial Movers,
supra, 240 NLRB at 289. More importantly, absent some
showing of impact on employees' job status, it is settled
that verbal reprimands do not constitute "discipline"
within the meaning of Section 2(11) of the Act. Id, Wm.
P. McDonald Corporation, 97 NLRB 1471, 1472, fn. 4
(1952); John Cuneo of Oklahoma. Inc., 238 NLRB 1438,
1440 (1978). Here, there is no evidence that Eggleston's
admonishments regarding unsafe or improper perfor-
mance of work have ever had any effect on employees'
job status. Accordingly, such verbal admonishments do
not serve to establish the existence of authority to disci-
pline employees.
The second subsidiary area covered with regard to dis-
cipline pertained to the responsibility of the foremen to
report failures to produce at the proper level and infrac-
tions of work rules. There is no evidence that such con-
duct involved any more than simply making a report.
There is no evidence that, in doing so, the foremen made
any recommendation, much less evidence that any rec-
ommendation made had been effective within the mean-
ing of Section 2(11) of the Act. What the record does
show is that upon receiving such reports, Kincaid checks
them out and, based upon his own investigation, deter-
mines what, if any, action should be taken. So far as the
437
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
record discloses, the foreman who made the report does
not participate in the investigation conducted by Kincaid
and his opinion is not solicited concerning the results of
Kincaid's investigation. Consequently, the fact that fore-
men may bring insufficient productivity and rule infrac-
tions to Respondent's attention, without doing anything
more, "is no evidence that [they] can effectively recom-
mend disciplinary action or take such action...." The
Western Union Telegraph Company, 242 NLRB 825, 826
(1979); Accord: Loffland Brothers Company, 243 NLRB
74, 75 (1979).
Finally, it is accurate that Eggleston did sign two
warning notices. However, these were the only 2 warn-
ing notices of the 34 issued by Respondent since Febru-
ary 1978 that he has signed. Moreover, so far as the
record discloses, no other foreman has ever signed a
warning notice issued by Respondent to an employee.
On each of the two warning notices signed by Eggle-
ston, the signatures of both Kincaid and Hunot appear as
well. On neither of them did Eggleston's signature
appear on the blank provided for "Supervisor's Signa-
ture." Instead, Kincaid's signature appeared there. On
one of the notices, Eggleston's signature appears on the
blank prefaced by the words "Approved By" and on the
other it appears on the blank for "Signature of person
who prepared warning."
Both notices pertained to cagemaker Guy Schwellen-
bach's failure to call in on days that he did not report for
work. Hunot testified that it had been Eggleston who
had reported Schwellenbach's absences and that on both
days, Kincaid had not been at work at the time. On the
first occasion, Hunot had directed Eggleston to write out
the warning notice, instructing him regarding the words
that should be written on the notice. With respect to the
second notice, Hunot testified that he had instructed his
secretary to type the notice and then had directed Eggle-
ston to sign it, in Kincaid's absence, as "a witness in case
this particular person shows up today. .. " Later on
both days, Kincaid had reported and had then signed the
notices. The significant point, however, is that, so far as
the record discloses, when the notices had been pre-
pared, there was no indication that Kincaid would be re-
porting before they would be issued to Schwellenbach.
Moreover, while Schwellenbach was called as a witness
by the General Counsel, he gave no testimony that
would tend to refute Hunot's account of Eggleston's role
in the preparation of these notices; that is, Schwellen-
bach gave no testimony in connection with the receipt of
these notices that would tend to show either that
Hunot's descriptions were inaccurate or that Eggleston
had performed other than ministerial acts in connection
with their preparation. Consequently, there is no evi-
dence that Eggleston had played any effective role or
had exercised any independent judgment in the formula-
tion of the decision to issue these two warning notices,
nor with respect to the substance of what had been writ-
" Hunot's testimony that Eggleston's signature on this particular notice
constituted no more than the act of being a witness tends to be confirmed
by the fact that it appears on the "Approved By" line. Both Hunot and
Kincaid were his superiors and, accordingly, it hardly appears likely that.
if signing in some other capacity, he would have been approving the
signing of the notice by those to whom he had been subordinate.
ten on them. Moreover, in light of the total number of
warning notices issued since February 1978, the fact that
only two of them had been signed by foremen would
appear to be but a "few isolated instances . . .
[in]sufficient to establish that they possess the supervi-
sory authority contemplated by Section 2(11) of the
Act." Commercial Fleet Wash, Inc., 190 NLRB 326
(1971).
With regard to the day-to-day operations in the centri-
fugal area, it is undisputed that Eggleston had been the
individual who had advised employees there of the work
that they would be performing each day. However, so
far as the record discloses, each employee in the centri-
fugal area is assigned to a specific job and there is no
evidence that Eggleston plays any role in deciding which
employee is assigned to which position. Each day, Hunot
and Kincaid prepare a master schedule, detailing the
work to be performed at Orland during the following
day, based upon the equipment available, upon the time
allotted for production and upon Respondent's delivery
commitments. This schedule sets forth the numbers and
sizes of each item to be manufactured. Eggleston is not
involved in this process and makes no contribution to
these determinations. Once the master schedule is com-
pleted, Kincaid makes it available to the foremen who, in
turn, prepare separate lists for the employees in their
areas by copying down on each individual list the appro-
priate items from the master schedule. There is no evi-
dence that the foremen possess any authority to vary the
information on the master schedule in any respect.
Therefore, there is no evidence that the foremen, includ-
ing Eggleston, exercise any independent judgment with
regard to the daily assignments of work. Rather, any au-
thority which they exercise in this area is "more clerical
than supervisory." N.L.R.B. v. St. Francis Hospital, 601
F.2d 404, 421 (9th Cir. 1979); see also John Cuneo of
Oklahoma, supra, 238 NLRB at 1439; Medicine Bow Coal
Company. supra, 217 NLRB at 938.
There is no showing that employees require close su-
pervision in performing the duties to which Kincaid has
assigned them. That is, given the fact that the products
to be produced are listed on the master schedule and that
the employees are assigned to work classifications, which
there is no evidence are interchanged, the record does
not establish other than that when the foreman "does
give directions to others on the job . . . such directions
do not require the exercise of independent judgment."
John Cuneo of Oklahoma, supra, 238 NLRB 1439. See
also The Western Union Telegraph Company, supra, 242
NLRB at 826.
Like other foremen, Eggleston is responsible for seeing
that work is completed on schedule. Yet, responsibility
for ensuring that work is completed properly on sched-
ule is not, of itself, sufficient to confer supervisory status.
See, e.g., Loffland Brothers Company, supra, 243 NLRB
at 75. If it becomes apparent that the production goal is
not being met on a particular day, Eggleston is charged
with ascertaining why the centrifugal operations employ-
' Employees who perform tasks which are no more than continuations
of the production process, on products initiated by other employees, do
not receive separate schedules
438
HYDRO CONDUIT CORPORATION
ees are falling behind schedule. There is no showing that
this has occurred on any significent number of occasions.
When it does, if the problem is routine and not "terribly
difficult," he will attempt to resolve it. In so doing, how-
ever, there is "no indication in the record that the per-
formance of duties pursuant to [that] authority requires
the exercise of independent judgment characteristic of
statutory supervisory status." Print-O-Stat, Inc., 247
NLRB No. 47, (1980). That is, there is no indication that
his actions in resolving such routine problems represent
more than an exercise of work "judgment rather than be-
cause of delegated authority." Dubin-Haskell Lining
Corp. v. N.L.R.B., 375 F.2d 568, 570 (4th Cir. 1967). If
the problem encountered is abnormal or cannot be
solved by Eggleston in routine fashion, he is obliged to
report to Kincaid who undertakes to resolve it. If it be-
comes apparent that it is impossible to meet the produc-
tion schedule for the day, then Kincaid makes the deci-
sion as to the manner in which the schedule is to be re-
vised. There is no evidence that Eggleston plays any role
in such determinations, nor that he makes any recom-
mendations in connection with revisions of the work
schedule.
Although Eggleston has reassigned employees from
their normal duties to perform other duties, there is no
showing that such reassignments have been frequent nor
that they have been for longer than very brief periods of
time. In all other instances, involving reassignments or
transfers for prolonged periods, Eggleston must confer
with Kincaid and can make these changes in duties "only
with the prior approval of the . . . superintendent." John
Cuneo of Oklahoma, supra, 238 NLRB at 1439. There is
no evidence that Eggleston, or any other foreman, has
ever made any recommendations regarding such matters,
nor is there any evidence that any recommendations that
they may have made have been followed by Kincaid,
without an independent determination by the latter.
It is the foremen who request employees to work
overtime whenever there is a need to do so. However, it
is Kincaid who makes the determination as to whether
overtime work is to be performed. There is no evidence
that the foremen make any recommendation to Kincaid
regarding the advisability of performing overtime work.
Further, there is no evidence that Kincaid relies upon
any such recommendations that the foremen may make.
Respondent is obliged to follow the terms of the applica-
ble collective-bargaining agreement in selecting employ-
ees to work overtime. There is no basis in the record for
concluding that the foremen exercise independent judg-
ment in selecting or in effectively recommending the se-
lection of employees who are to be assigned to perform
overtime work.
While Eggleston has authority to grant time off, such
authority is restricted. When employees request time off
because of illness, he grants such requests automatically,
according to Hunot, "without carrying it any further. If
it's obvious a person is sick, I don't want him around, he
is a safety hazard." Consequently, Eggleston has no dis-
cretion to reject an employee's request to leave early due
to illness and there is no evidence that he ever has done
so. Accordingly, his authority in this regard is not super-
visory. Western Union Telegraph, supra, 242 NLRB at
830.
Hunot testified that whenever employees request none-
mergency leave, Eggleston has authority to grant such
requests only if those employees' departure would not
prevent completion of the production schedule without
the need for overtime work. If, testified Hunot, this was
not possible, then Eggleston will ask them to defer
taking leave, but if they will not do so, then Eggleston
has no authority to grant such requests, but must bring
the requests to Kincaid's attention. It is the latter who
makes the decision as to whether to grant such requests
and, so far as the record discloses, no recommendation is
solicited from nor made by Eggleston in such situations.
Consequently, any authority which Eggleston possesses
to grant nonemergency time off is restricted to determi-
nations based upon the objective exigencies of ability to
complete the work listed by the production schedules.
Two employees testified regarding requests which
they had made for nonemergency leave. Schwellenbach
testified that whenever he wanted time off, he would
make a request to Eggleston who "probably would say
he would get back to me later about it if he could find
somebody to fill in for me." Such testimony is not incon-
sistent with that given by Hunot. In the first place, the
tenor of Schwellenbach's answer was such that it ap-
peared that he could not recall precisely what had been
said in response to his requests to Eggleston. Secondly,
the fact that Eggleston reserved giving a final response
to the request until "later," would not be inconsistent
with Hunot's testimony that Eggleston lacked authority
to grant nonemergency time off without first checking
with Kincaid. For, by deferring a final response, Eggle-
ston would have given himself time to confer with Kin-
caid before providing a final answer to Schwellenbach.
Former batch man Vernon Harkema testified that on
two occasions he had requested time off. On one occa-
sion, he had to go to court. On the other, he had a medi-
cal appointment. He testified that on the first occasion,
Eggleston had said, "O.K., I'll see about getting some-
body to take your place." On the other occasion, testi-
fied Harkema, Eggleston had replied simply that "he
would get somebody to take my place when I leave."
Assuming that Harkema can be credited,' 0 neither of
these responses is inconsistent with Hunot's account of
the limited authority possessed by Eggleston in the area
of granting time off to employees. Although court ap-
pearances are not illnesses, neither are they discretionary
10 When he testified, Harkema appeared to be slanting his testimony so
that it would appear, from his descriptions, that Eggleston had exercised
supervisory authority For example, Harkema claimed that prior to Octo-
ber, Kincaid had only come to the centrifugal area once or twice a week,
would just look around on those occasions and then would leave. Such
testimony, of course, tends to support an inference that Eggleston had
been a supervisor Yet, Harkema's testimony in this respect was not only
uncorroborated by any other employees, but was contradicted by
Schwellenbach who testified that the employees had observed Eggleston
talking to Kincaid "once or twice a day or so." In another area, Harkema
claimed that Eggleston had participated in two meetings with centrifugal
area employees after he had become foreman in April. However, Schwel-
lenbach testified that he knew of no meetings of employees that Eggle-
ston had conducted and no other employee was called to corroborate
Hlarkelna's descriptions of these meetings I do not credit Harkema
439
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
matters that citizens are free to ignore or to postpone at
their own whim. Consequently, it cannot be said that
Eggleston would have viewed such a request as being
nonemergency in nature. Similarly, a medical appoint-
ment can fall into the area of time off for illness and
there has been no showing that Harkema's request for
that time off had involved a matter of elective medical
treatment that could have been deferred. Finally, there is
no evidence that after speaking with Harkema, Eggleston
had not spoken with Kincaid to secure his permission to
Harkema's departure on those days or, for that matter,
had not ascertained that Harkema would not be needed
to complete the work schedule. In short, Harkema's de-
scriptions of his request for time off, assuming arguendo
that they were credible, do not suffice to show that Egg-
leston's authority to grant time off exceeded the limited
scope of authority conferred upon him by Respondent in
this area. See, e.g., Victory Electric. supra, 230 NLRB at
1202 (Pyle).
While Hunot testified generally that employees bring
minor complaints and grievances to Eggleston, so far as
the record discloses these matters pertain primarily to
machine malfunctions and to safety concerns--matters
which are routine and which are referred to him "out of
respect for his judgment rather than because of designat-
ed authority." Dubin-Haskell Lining Corp., supra. Non-
routine complaints must be referred to Kincaid. Even as
to routine problems, if Eggleston is unable to resolve
them, he must bring them to the attention of Kincaid.
There is no evidence that Eggleston participates "in the
formulation of personnel or work policies." Western
Union Telegraph, supra, 242 NLRB at 826. There is no
evidence that the complaints and grievances brought to
him pertain to personnel or work policies. Moreover,
there is no evidence that he possesses authority to re-
solve complaints concerning those matters. To the con-
trary, the most recent collective-bargaining agreements
covering both units at Orland make no provision for par-
ticipation by foremen in the grievance procedure and
there is no evidence that any foreman, including Eggle-
ston, has ever participated in the initial stages of process-
ing such grievances. Accordingly, the evidence is insuffi-
cient to establish that Eggleston possesses authority to
adjust grievances or to recommend such grievances in
the manner contemplated by Section 2(11) of the Act.
Schwellenbach testified that he had seen Eggleston
collect and initial timecards each day. Hunot testified
that the timecards are collected each day and are taken
to the office so that the information thereon can be re-
corded for payroll purposes.'' There is no evidence that
in so doing, Eggleston had made any comments regard-
ing the information on the timecards. Hunot was un-
aware that Eggleston had initialed the cards. However,
there is no evidence that such initialing had any effect
upon the employees' time as shown on the timecards.
"1 In a pretrial affidavit, Hunot stated that it had been the foremen
who had filled out the daily timesheets for employees. Hunot testified
that while, at the time he had given the affidavit, he had believed that to
be the practice, he had later learned that it had nlot been the practice fol-
lowed. Even had it been the practice, however, "the recording of time is
merely a routine clerical function, not necessarily indicative of supervi-
sory status. John Cuneo of Oklahoma., supra, 238 NLRB at 1439.
That is, there is no evidence tlat Eggleston ever recom-
mended, or had the authority to recommend, that the
time shown on the cards be changed. Indeed, there is no
evidence that any change had ever been made on the
time recorded on any timecard. Consequently, there is
no evidence that Eggleston's function pertaining to the
timecards was other than the plant clerical function of
serving as a conduit for transmission of them to the
office.
Similarly, the fact that it is Eggleston who passes out
paychecks to employees on payday hardly establishes a
responsibility that is other than clerical in nature.
Schwellenbach testified that if he had ever had a prob-
lem with his paycheck, he would "probably" have taken
it to Eggleston. Yet, he conceded that no such problem
had ever arisen. There is no evidence of any employee
ever having approached Eggleston with a paycheck
problem. Nor is there evidence that Eggleston had au-
thority to resolve such problems had they been brought
to him.
The General Counsel and the Charging Party also
point to certain other factors, not enumerated in Section
2(11) of the Act, which are claimed to evidence supervi-
sory status. For example, those witnesses who possessed
firsthand knowledge of what occurred in the centrifugal
area, by virtue of it being their work location, testified
that Eggleston spent a minority of his time performing
the same type of work as other personnel who worked
there. The majority of his time is spent inspecting the
work being performed to ensure that it is being done
properly and on schedule. Yet, the work of an inspector,
ensuring the quality of the product being produced, is
not one of the powers listed in Section 2(11) of the Act
and, in fact, Congress made a conscious decision to ex-
clude such work from the definition of a statutory super-
visor. See Clayton Mark & Company, 76 NLRB 230, 232-
234 (1948); Bryant Heater Co., 77 NLRB 744, 746 (1948).
Of course, if in performing his inspection function,
Eggleston had exercised any of the supervisory powers
of Section 2(11) of the Act-such as being able to dis-
charge, direct, reward, or discipline employees, or such
as effectively recommending such actions-then there
would be a basis for concluding that he had been a su-
pervisor. However, as found above, Eggleston does not
exercise any of those statutory powers. So far as the
record discloses, any direction that he may give in con-
nection with inspection of work being performed by the
employees "is dictated solely and routinely by the specif-
ic demands of each production job." Print-O-Stat, supra,
247 NLRB No. 47. It has not been shown to be other
than ministerial. Loffland Brothers, supra, 243 NLRB at
75.
Similarly, the fact that employees come to Eggleston
whenever there is a malfunction in machinery does not
serve to confer supervisory status. If the problem is
minor, Eggleston will attempt to repair it. If it is major,
he must contact the maintenance department and Kin-
caid. There is no evidence that he exercises any of the
powers listed in Section 2(11) of the Act in doing so.
So far as the record discloses, foremen have been re-
sponsible for completing two types of paperwork. It is
440
HYI)RO CONDUIT CORPORATION
the foreman who prepares the accident report submitted
to the plant safety coordinator whenever an employee
has an accident. Yet, the information that the foremen
record on those reports is no more than that provided by
the employee who had the accident. So far as the record
discloses, the foremen neither add to the information
provided by the employees, nor do they make any com-
ments or recommendations on the form. Indeed, it is
Kincaid or the safety coordinator, not the foremen, who
sign the accident report. Consequently, this function of
the foremen is no more than clerical in nature. Likewise,
while at one time foremen prepared daily reports listing
the time spent performing maintenance work by non-
maintenance employees, there is no evidence that in
doing so, they did other than simply record informa-
tion-"a routine clerical function, not necessarily indica-
tive of supervisory status." John Cuneo of Oklahoma.
supra, 238 NLRB at 1439.
Significant emphasis is placed upon the ratio of em-
ployees to supervisors should the foremen be found not
to have been statutory supervisors. Yet, such ratios are
"not always determinative...." Commercial Fleet
Wash, supra. The Board has not been unwilling to make
a finding of employee status simply because such a result
would leave employees at a particular operation immedi-
ately unsupervised. See, e.g., Commercial Fleet Wash,
supra, Highland Telephone Cooperative, Inc, 192 NLRB
1057 (1971). Indeed, high ratios of employees to supervi-
sors have been recognized as being not abnormal even in
certain industries. See, e.g., Eastern Greyhound Lines (A
Division of the Greyhound Corporation), 138 NLRB 8, 14
(1962). Here, employees are assigned to specific duties by
Kincaid and the work to be performed by them each day
is delineated in the master schedule. While the foremen
may bring problems to Kincaid's attention, it is he who
makes all decisions regarding reassignment, overtime,
and modification of that schedule. Accordingly, there is
only a "very limited sphere" in which the foremen
would need to act with respect to the work of the
Orland employees. Loffland Brothers, supra, 243 NLRB
at 75. The fact is that even when Kincaid is not in the
centrifugal area, the office where he works is, at most,
600 or 700 feet away. There is no evidence that Kincaid
is not readily accessible if needed. He makes periodic
daily visits to the centrifugal area. The Act does not re-
quire that a supervisor be present and hovering over em-
ployees at every moment of their working time. There-
fore, I find that the ratio of employees to supervisors
cannot, in the circumstances of and given the record in
this case, be relied upon to establish that Eggleston and
the other foremen are statutory supervisors.
While Eggleston is paid 50 cents more per hour than
the next highest paid employee in the centrifugal oper-
ation, of itself that is not dispositive of whether he is a
statutory supervisor. Else, every more highly skilled em-
ployee and leadman would be one. As found above, in
addition to providing experienced guidance to employees
in the centrifugal area, Eggleston performs inspection
and plant clerical functions that other employees there
do not perform. Moreover, the collective-bargaining
agreements to which Respondent is a party oblige it to
pay premium rates to foremen. Like acknowledged em-
ployees at Orland, Eggleston is paid on an hourly basis
and receives overtime pay for performing overtime
work. Finally, like the employees there, Eggleston
punches a timeclock, whereas Kincaid, the superinten-
dent, does not do so.
Like other foremen, Eggleston attends periodic meet-
ings with management. Yet, these are production meet-
ings and there is no evidence that the formulation of per-
sonnel or work policies is discussed during these meet-
ings. More significantly, there is evidence that the lead-
men, who all agree are not supervisors, attend some of
these meetings.
Like conceded supervisory personnel, Eggleston wears
a blue hard hat. However, there is no evidence that the
foremen dress differently in other respects from employ-
ees at Orland. Of far greater significance is the fact that
the foremen are included in the Orland bargaining units
and are encompassed by the collective-bargaining agree-
ments there.
That some of the employees at Orland view the fore-
men as being supervisors "is not determinative, particu-
larly where, as here, the facts themselves suggest other-
wise." Commercial Movers, supra, 240 NLRB at 289. So
far as the record in this matter shows, foremen, such as
Eggleston, possess no authority to exercise independent
judgment in exercising the powers set forth in Section
2(11) of the Act. "Yet critical to the finding of supervi-
sory status is the further statutory requirement that the
exercise of such authority be not merely routine or cleri-
cal in nature, but require the use of independent judg-
ment." Seeney & Company, Inc. v. N.L.R.B., 437 F.2d
1127, 1131 (5th Cir. 1971). Here, there has been no
showing, by a preponderance of the evidence, that Re-
spondent has conferred upon foremen the right to act
other than in a routine manner and as a conduit between
employees and management. While the situation may be
unusual, Respondent is entitled to make its own decisions
as to how best to supervise its operations. "Board law
does not permit the trier of fact to substitute his own
subjective impression of what he would have done were
he in Respondent's position." Grand Auto, Inc., d/b/a
Super Tire Stores, 236 NLRB 877, fn. 1 (1978). Moreover,
a too cavalier application of Section 2(11) of the Act will
deprive employees of the protection afforded by Section
7 of the Act. This is to be avoided. Westinghouse Electric
Corporation, supra. Therefore, based upon the record as a
whole, I find that a preponderance of the credible evi-
dence does not establish that Ray Eggleston had been a
supervisor, within the meaning of Section 2(11) of the
Act, when he circulated the petition in June.
While the matter has not been argued specifically, I
have considered the possibility that Eggleston's conduct
in circulating that petition might be attributable to Re-
spondent. However, the record will not support such a
conclusion. It is undisputed that for some time the em-
ployees had been dissatisfied with the caliber of the rep-
resentation that they had been receiving. There is no evi-
dence that Respondent took any action, parallel to that
of Eggleston, to persuade employees to withdraw sup-
port from their collective-bargaining representatives. Al-
though Eggleston made predictions regarding what
441
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would happen to employees' benefits should they cease
being represented, there is no basis for concluding that
Respondent had been the origin of his comments. There-
fore, I find that the evidence will not support a conclu-
sion that Eggleston had been acting as an agent of Re-
spondent with regard to his activities in June.
CONCLUSIONS OF LAW
1. Hydro Conduit Corporation is an employer within
the meaning of Section 2(2) of the Act, engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. Construction and General Laborers Union Local
185, Laborers International Union of North America,
AFL-CIO; Operating Engineers Local Union No. 3, In-
ternational Union of Operating Engineers, AFL-CIO;
General Teamsters Local Union No. 137, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America; and Laborers Union Local No.
121, Laborers International Union of North America,
AFL-CIO, are each labor organizations within the
meaning of Section 2(5) of the Act.
3. Hydro Conduit Corporation has not violated the
Act in any manner.
Based upon the foregoing findings of fact, conclusions
of law, and the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER 1 2
It is hereby ordered that the consolidated complaint
be, and it hereby is, dismissed in its entirety.
:2 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions. and recommended Order herein shall, as provided
in Sec 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
442