S.D.I. Operating Partners, L.P.

National Labor Relations Board - Board Decisions

Apr 30, 1996

321 N.L.R.B. 111 (N.L.R.B. 1996)

111
321 NLRB No. 24
S.D.I. OPERATING PARTNERS, L.P.
1 In agreeing with the hearing officer that Michael D. Williams is
an employee, we rely on the Supreme Court’s recent decision in
NLRB v. Town & Country Electric, 116 S.Ct. 450 (1995), vacating
34 F.3d 625 (8th Cir. 1994). No exceptions were filed concerning
the ballots of John S. Vasconcellos and Darryl Fakhreich, and we
adopt pro forma the hearing officer’s recommendation to overrule
the challenge to Vasconcellos’ ballot and to sustain the challenge to
Fakhreich’s ballot.
S.D.I. Operating Partners, L.P., Harding Glass Di-
vision and Glaziers, Architectural Metal &
Glass Workers Local Union No. 558, affiliated
with International Brotherhood of Painters and
Allied Trades, AFL–CIO, Petitioner. Case 17–
RC–11262
April 30, 1996
DECISION, DIRECTION, AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
The National Labor Relations Board, by a three-
member panel, has considered determinative challenges
in an election held August 11, 1995, and the hearing
officer’s report recommending disposition of them. The
election was conducted pursuant to a Stipulated Elec-
tion Agreement. The tally of ballots shows 5 for and
4 against the Petitioner, with 4 challenged ballots, a
number sufficient to affect the results.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has reviewed the record in light of the
exceptions and brief and has adopted the hearing offi-
cer’s findings and recommendations only to the extent
consistent with this decision.1 Contrary to the hearing
officer, we find that David W. Decamp is not a super-
visor under Section 2(11) of the Act, and that the chal-
lenge to his ballot should thus be overruled.
Decamp is a leadman glazier who has worked on
field projects and at the time of the hearing was as-
signed to the Employer’s auto glass shop. Before the
start of a new field project, Decamp would meet with
Facility Manager Gary Schamberger and Contract
Manager Shane Riggs to discuss the Employer’s staff-
ing needs for the project. Schamberger testified that he
made the ultimate determination regarding staffing, but
relied on Decamp’s input concerning the number of
employees needed to accomplish the tasks involved in
a particular project. As the highest ranking individual
present at field locations, Decamp gave the other gla-
ziers their assignments, distributing the work based in
part on his past observations concerning the employ-
ees’ qualifications. Decamp also instructed other em-
ployees as needed in accomplishing the work, relying
on his own experience and expertise, as well as the in-
struction manuals provided by the suppliers of the
products being installed. Decamp lacks the authority to
grant overtime without consulting Schamberger, to re-
quire an employee to work overtime, which is vol-
untary, or generally to grant time off, although he did
so on one occasion when an employee’s wife called to
report that the sheriff was at their home.
Contrary to the hearing officer, we find that the re-
sponsibilities carried out by Decamp with respect to
the assignment and direction of employees do not dem-
onstrate the exercise of independent judgment, but
rather involve routine decisions typical of leadman po-
sitions that are found by the Board not to be statutory
supervisors. See, e.g., Hydro Conduit Corp., 254
NLRB 433 (1981); Jordan Marsh Stores, 317 NLRB
460, 467 (1995); North Shores Weeklies, 317 NLRB
1128 (1995); and Brown & Root, Inc., 314 NLRB 19,
21–22 (1994). As a leadman, Decamp provides direc-
tion and guidance to other employees involved in a
project based on his experience and craft skill. He di-
rects employees to perform various necessary tasks ac-
cording to the skills they have previously dem-
onstrated, inquiring of the employees, as needed,
whether a particular job is within their expertise. These
responsibilities involve no real managerial discretion
that would require the exercise of independent judg-
ment. We particularly find that Decamp’s participation
with conceded supervisors in determining the Employ-
er’s staffing needs for a project does not render De-
camp a supervisor. Responsibility for planning or de-
signing a project, which may involve determining such
matters as the appropriate staffing, materials, and
schedule, must be distinguished from the exercise of
authority and independent judgment in the role of as-
signing and directing employees in the accomplishment
of the work. Decamp’s input to Schamberger and
Riggs regarding staffing does not alter the routine na-
ture of his role in assigning and directing employees.
Similarly, we find that Decamp does not possess au-
thority to discipline employees. The record shows that,
as the leadman on field projects and in the auto glass
shop, Decamp informs employees of the Employer’s
work rules regarding such matters as safety, breaks,
and smoking, and corrects employees who fail to com-
ply with those rules. Schamberger testified as follows
concerning Decamp’s authority in disciplinary matters,
in response to questions from the counsel for the Gen-
eral Counsel:
Q. Has Mr. Decamp ever issued a disciplinary
action against an employee?
A. He may have.
Q. Do you know specifically of an incident
where he has disciplined someone or issued some
sort of disciplinary warning?
A. No, I don’t, but I’m not saying there isn’t
because I think there is a time or two in the past
where Dave has done that.
Q. Okay. And in your—your best recollection
of those time or two incidents in the past, did he
112 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 We find it unnecessary to consider the secondary indicia relied
on by the hearing officer, such as Decamp’s pay differential, his not
being required to punch a timeclock, his status as the most senior
employee at the project site, and the lack of an onsite statutory su-
pervisor if Decamp were not found to be one. In the absence of pri-
mary indicia as enumerated in Sec. 2(11), these secondary indicia
are insufficient to establish supervisory status. See, e.g., J. C. Brock
Corp., 314 NLRB 157, 159 (1994); Billows Electric Supply, 311
NLRB 878 fn. 2 (1993); Hydro Conduit, supra at 441; and
Windemuller Electric, 306 NLRB 664, 666–667 (1992), modified on
other grounds 34 F.3d 384 (6th Cir. Sept. 14, 1994).
1 See my dissenting opinions in Providence Hospital, 320 NLRB
717 (1996), and Ten Broeck Commons, 320 NLRB 806 (1996).
2 Unlike the majority, I would not dismiss Schamberger’s testi-
mony in this regard as a ‘‘vague recollection.’’ As a representative
of the party opposing supervisory status, Schamberger’s statement
represents an admission of Decamp’s authority.
3 See, e.g., DST Industries, 310 NLRB 957, 958 (1993), and
Opelika Foundry, 281 NLRB 897, 899 (1986), and cases cited there.
actually fill out a form saying, you know, ‘‘Em-
ployee Joe Blow did X or failed to do X.’’ He
would fill out some sort of documentation to that
effect?
A. I think it’s something he made up, yes.
Q. Did he—what would he do with it? What do
you recall him doing with this document that he
prepared?
A. Confront the employee.
Q. And —
A. Probably have him sign it.
Q. Okay. And then what, if anything, would he
do with it at that point? Would he give it to you?
A. Yes.
. . . .
Q. Those instances when he has written up
some sort of disciplinary form or action against an
employee, what did you do about that situation, if
anything?
A. I don’t think anything was done with it.
Decamp testified that he has never completed a com-
pany disciplinary form, but has provided written and
oral reports of incidents to Schamberger.
Instructing employees concerning the Employer’s
rules, even in their breach, demonstrates neither au-
thority over the employees nor the exercise of inde-
pendent judgment as required by Section 2(11). More-
over, Schamberger’s vague recollection does not estab-
lish that Decamp has in fact disciplined any employee,
or that whatever possible action he may have taken
had any effect, immediate or long term, on the em-
ployee involved. The evidence thus fails to show that
Decamp has authority to discipline employees. See
Hydro Conduit, supra at 437–438; Jordan Marsh,
supra at 467; and North Shore Weeklies, supra at
1130.2
DIRECTION
IT IS DIRECTED that the Regional Director for Re-
gion 17 shall within 10 days from the date of this di-
rection open and count the ballots of David W. De-
camp, John S. Vasconcellos, and Michael D. Williams,
and thereafter prepare and cause to be served on the
parties a revised tally of ballots, upon which he shall
issue the appropriate certification.
ORDER
It is ordered that the above-entitled matter be, and
is, remanded to the Regional Director for Region 17
for further processing consistent with this decision.
MEMBER COHEN, dissenting in part.
Contrary to my colleagues, I would adopt the hear-
ing officer’s finding that Lead Glazier David W. De-
camp is a supervisor.
As my colleagues concede, before the start of a new
field project, the Employer’s managers and Decamp
meet to discuss staffing needs for the upcoming
project. The Employer relies on Decamp’s rec-
ommendations in determining that staffing.
In addition, on field projects, Decamp is the highest
ranking individual present. He gives other glaziers
their assignments, and these assignments are based, in
substantial part, on his independent view of the em-
ployees’ qualifications. Decamp also instructs employ-
ees concerning the methods for accomplishing their
work, relying in this regard on his own expertise and
experience.
In sum, Decamp uses independent judgment in di-
recting and assigning employees. He also uses such
judgment in making recommendations regarding staff-
ing. As I have said elsewhere, the essence of an inde-
pendent judgment is that it is based on one’s personal
experiences and expertise, rather than on some outside
source.1 That is the case with respect to Decamp’s
judgments here.
Further, the Employer (the party opposing a finding
that Decamp is a supervisor) acknowledged that De-
camp has exercised authority to discipline employees
by issuing written reprimands to them.2 Similarly, the
Employer admitted that Decamp has the authority to
decide, on his own, to let someone go home from the
jobsite. I recognize that these exercises of supervisory
authority have not been frequent. However, as the
Board has often stated, individuals with statutory su-
pervisory authority do not lose their status simply be-
cause they exercise that authority infrequently.3
Finally, as the hearing officer found, secondary indi-
cia also suggest that Decamp is a supervisor. He is
paid more than other glaziers and he does not use a
timeclock. Further, if Decamp is not a supervisor, then
glaziers working on field projects would generally be
unsupervised.
For all of these reasons, I would adopt the hearing
officer’s finding of supervisory status.