Siemens Building Technologies, Inc.

National Labor Relations Board - Board Decisions

Dec 14, 2005

346 N.L.R.B. 53 (N.L.R.B. 2005)

SIEMENS BUILDING TECHNOLOGIES
346 NLRB No. 9
53
Siemens Building Technologies, Inc. and Interna-
tional Union of Operating Engineers, Local 832.
Cases 3–CA–24624
December 14, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On August 25, 2004, Administrative Law Judge C.
Richard Miserendino issued the attached decision. The
Respondent filed exceptions and a supporting brief,1 the
General Counsel filed an answering brief to the Respon-
dent’s exceptions, and the Respondent filed a reply brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,2 and conclusions and to adopt the recommended
Order.

1 In our September 30, 2005 decision in Siemens Building Technolo-
gies, 345 NLRB 1108 (Siemens I), we found that the Respondent be-
came a successor employer to Monroe County, New York, when it took
over the operations of the County’s Iola powerplant, that a subsequent
poll of employees’ union sentiments was unlawful, and that the Re-
spondent violated Sec. 8(a)(1) and (5) by failing to recognize and bar-
gain with the Union.
In the instant case, the Respondent has excepted to the judge’s find-
ing that it violated Sec. 8(a)(1) and (5) by failing and refusing to recog-
nize and bargain with the Union as the exclusive bargaining representa-
tive of its employees at its Fleet facility, which the Respondent began
operating when the Iola plant was decommissioned. The judge, relying
on the standard articulated in Rock Bottom Stores, 312 NLRB 400, 401
(1993), found that the Respondent had a continuing obligation to rec-
ognize and bargain with the Union because the operations at the Fleet
facility are substantially the same as those at the Iola plant, and because
employees formerly employed at Iola constitute a substantial percent-
age of the Fleet facility’s employee complement. Chairman Battista
and Member Schaumber note that a majority of the Fleet employees
were former unit employees from the Iola facility, and find it unneces-
sary to pass on whether the bargaining obligation would exist if some
lesser percentage of employees had transferred.
The Respondent asserts that it has no obligation to bargain regarding
its employees at the Fleet facility. The Respondent contends that it was
not a successor of Monroe County at the time it took over the operation
of the Iola plant, and that the poll it conducted in June 2003 was valid
and demonstrated that the bargaining unit employees “oppose[d] repre-
sentation by IUOE Local 832.” In light of our decision in Siemens I,
supra, we find no merit in the Respondent’s exceptions, as to the issue
of successorship, in the instant case. See Detroit Newspapers, 326
NLRB 782 fn. 3, 784–785 (1998) (applying collateral estoppel), enf.
denied on other grounds 216 F.3d 109 (D.C. Cir. 2000). We also find
no merit in the Respondent’s contention that the judge erred in denying
its motion to postpone the hearing in this case until the issuance of
Siemens I. See Detroit Newspapers, 326 NLRB at 785.
2 The Respondent excepts to the judge’s description of employees
James Muhs’ and Henry Brown’s job duties. The Respondent asserts
that these employees have no reasonable expectation of obtaining a
permanent assignment at the Fleet facility.
The judge did not specifically include either of these employees in
the bargaining unit. The evidence shows that both employees were in
The judge found that the lead building operator (some-
times designated the “chief stationary engineer”) should
be included in the bargaining unit. The judge found that
there was insufficient evidence that the incumbent in the
position, Tim Berna, possessed the indicia of supervisory
status. The Respondent excepts, contending that the
judge should not have addressed the issue.
We conclude that the judge appropriately addressed
the lead building operator’s supervisory status. We fur-
ther conclude that the judge correctly found that the posi-
tion was not supervisory, and therefore should be in-
cluded in the bargaining unit.
Before the Respondent took over the Iola plant, the po-
sition at issue was included in the bargaining unit. The
position was also included in the alleged appropriate bar-
gaining unit in Siemens I, supra, and the inclusion was
not challenged. Thus, historically, the lead building op-
erator has been included in the bargaining unit.
The complaint in the instant case did not allege that the
position of lead building operator was included in the
unit. The Respondent, in its answer to the complaint,
denied without explanation the appropriateness of the
unit. At the hearing, the General Counsel attempted to
elicit testimony to support a finding that Berna possesses
statutory supervisory authority.
Although the Respondent objected to testimony re-
garding Berna’s supervisory status as of the time of the
June 2003 poll (see fn. 1, above), it did not state at the
hearing a position as to Berna’s current supervisory
status. Additionally, the Respondent did not offer at the
hearing to stipulate to either the appropriateness of the
alleged unit or Berna’s supervisory status.3 Under these
circumstances, it was appropriate for the judge to deter-
mine whether the lead building operator was in the bar-
gaining unit.
In his decision, the judge correctly stated that the bur-
den is on the General Counsel, as the party asserting su-
pervisory status, to show that the lead building operator
is a supervisor,4 and he found that the General Counsel
had not met his burden.5 The Respondent, having denied

the unit at the time the Union demanded bargaining in December 2003
following the opening of the Fleet facility. It is not necessary to the
disposition of this case to determine whether Muhs or Brown remained
unit employees thereafter and we therefore do not reach that issue.
3 In its reply brief to the Board, the Respondent stated that the super-
visory status of the lead building operator had not been fully or fairly
litigated in this case but nevertheless offered to stipulate that the posi-
tion is supervisory. This belated offer has no bearing on the propriety
of the judge having addressed the issue.
4 See NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706,
712 (2001).
5 We affirm the judge’s finding that the General Counsel failed to
show that Berna was a supervisor for the reasons stated in his decision.
We also rely on the Board’s inclusion of the position in the bargaining
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD54
the appropriateness of the alleged bargaining unit exclud-
ing the lead building operator, and having failed to offer
to stipulate to the supervisory status of the position, can-
not now be heard to complain that the judge decided the
issue.6
ORDER
The National Labor Relations Boards adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Siemens Building Technolo-
gies, Inc., Rochester, New York, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in the
Order.
Greg Lehmann, Esq., for the General Counsel.
Daniel M. Novak, Esq., for the Respondent.
Peter C. Nelson, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
C. RICHARD MISERENDINO, Administrative Law Judge. This
case was tried in Buffalo, New York, on May 4–5, 2004. The
International Union of Operating Engineers, Local 832 (the
Union) filed a charge against Siemens Building Technologies,
Inc. (Respondent), alleging that on December 18, 2003, the
Respondent violated Section 8(a)(5) and (1) of the Act by fail-
ing and refusing to recognize and bargain with the Union as the
exclusive collective-bargaining representative of the Respon-
dent’s employees. A complaint was issued alleging, among
other things, that since January 1, 2003, the Union has been the
exclusive collective-bargaining representative of the Respon-
dent’s employees in the appropriate bargaining unit; that the
Respondent has unlawfully failed and refused to recognize and
bargain with the Union; and that the appropriate bargaining unit
includes all full-time and regular part-time stationary engineers,
building operators, and firemen employed by the Respondent.
The Respondent’s timely answer denied the material allega-
tions of the complaint. The parties have been afforded a full
opportunity to appear, present evidence, examine and cross-
examine witnesses, and file posthearing briefs.
On the entire record, including my observation of the de-
meanor of the witnesses, as well as my credibility determina-
tions based on the weight of the respective evidence, estab-
lished and admitted facts, inherent probabilities, and reasonable

unit in Siemens I and the absence of any evidence of significant
changes in the duties of the position at the time of the hearing in this
case.
6 Chairman Battista notes that in Siemens Building Technologies, su-
pra, the General Counsel alleged that the position of chief stationary
engineer was a nonsupervisory unit position. The Board agreed and
explicitly included that position in the unit. In the instant case, the
General Counsel argues that the position of lead building engineer is a
supervisory one. The parties are in accord that the change in name is
inconsequential, and the General Counsel has not shown any substan-
tive change in duties. In these circumstances, Chairman Battista agrees
that the matter was adjudicated in the prior case. Thus, the Respon-
dent’s contention (that it was inappropriate to resolve it in the instant
case) is moot.
inferences drawn from the record as a whole, and after consid-
ering the briefs filed by the General Counsel, the Respondent,
and the Charging Party, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, operates three power facili-
ties in Rochester, New York, which generate steam heat and/or
domestic hot water for certain buildings owned by Monroe
County, New York. In the 12-month period prior to the filing of
the complaint, the Respondent purchased and received at its
Rochester, New York facilities goods valued in excess of
$50,000 from points outside the State of New York. The Re-
spondent admits, and I find, that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
The Respondent further admits, and I find, that the Union is
a labor organization within the meaning of Section 2(5) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Prior Cases 3–CA–24050 and 3–CA–24304
On October 6–8, 2003, the following background facts con-
cerning the parties here were fully litigated before Administra-
tive Law Judge Martin J. Linsky in Cases 3–CA–24050 and 3–
CA–24304.
Pursuant to a collective-bargaining agreement between the
Union and Monroe County, New York, the Union represented
certain stationary engineers, HVAC service engineers, and a
chief stationary engineer located at the Iola Powerhouse Station
(Iola plant) in Rochester, New York. The Iola plant provided
steam heat and hot water to certain buildings owned by Monroe
County in Rochester, New York. Although the Iola plant ini-
tially was a coal burning power plant, at some point prior to
October 2003, two of its four boilers were converted to burn oil
and natural gas, and a third boiler was converted to burn oil and
natural gas in addition to coal.
In late 2002, Monroe County announced its decision to phas-
eout the Iola plant and to build two natural gas fired co-
generation facilities in Rochester, New York, that would pro-
vide steam heat and hot water to the buildings serviced by the
Iola plant. Shortly thereafter, Monroe County sold the Iola plant
to Monroe Newpower Corporation, a nonprofit entity formed
by Monroe County to (1) build the two cogeneration facilities,
(2) phaseout and close the Iola plant, and (3) provide steam and
energy to certain Monroe County buildings. At the same time,
Monroe Newpower negotiated a contractual arrangement with
the Respondent to install, operate, and maintain the two co-
generation facilities, and to operate, phaseout and close the Iola
plant. The effective date of the sale to Monroe Newpower was
December 23, 2002. The effective date of the contract between
Monroe Newpower and the Respondent was December 31,
2002. (GC Exh. 8.) The Respondent took over the Iola plant on
January 1, 2003.
In mid-December 2002, the Union contacted the Respondent
about negotiating a collective-bargaining agreement for the
employees who would continue operating and maintaining the
Iola plant. The Respondent expressed a willingness to negotiate
SIEMENS BUILDING TECHNOLOGIES 55
with the Union. Contract proposals were exchanged, but a dis-
pute arose over the length of the contract and discussions broke
down. In the meantime, the employees represented by the Un-
ion continued working at the Iola plant doing the same jobs in
the same manner servicing the same customers through the end
of December.
In late December, the Respondent interviewed and hired em-
ployees to operate the Iola plant. A majority of the work force
hired by the Respondent were the former employees of Monroe
County who were represented by the Union. On January 2,
2003, the Union formally requested the Respondent to recog-
nize and bargain with it. On January 16, 2003, the Respondent
denied the Union’s request.
On January 23, 2003, the Union filed an unfair labor practice
charge in Case 3–CA–24050 alleging that the Respondent
unlawfully refused to recognize and bargain with the Union. A
hearing eventually was rescheduled for June 18, 2003. Two
days before the hearing date, the Respondent polled the em-
ployees as to whether they wanted to be represented by the
Union. The vote was 7–0 against union representation.
On June 17, 2003, the Union filed a charge in Case 3–CA–
24304 alleging that the Respondent unlawfully told employees
that they would have to resign from the Union in order to ac-
cept employment with the Respondent and that the Respondent
unlawfully polled or otherwise interrogated the Iola plant em-
ployees about whether they wanted to be represented by the
Union.
In a decision dated February 25, 2004, in Siemens Building
Technologies, Inc. (Siemens I), JD–13–04 (Feb. 25, 2004) (GC
Exh. 3), Judge Linsky found (1) that the Respondent was a
Burns2 successor with an obligation to recognize and bargain
with the Union; (2) that the reasons given by the Respondent
for not recognizing and bargaining with the Union do not dem-
onstrate an objective loss of majority support to justify its re-
fusal; and (3) that the poll taken was tainted by the unremedied
unfair labor practice of the Respondent dating back to January
2003 when the Respondent unlawfully refused to recognize and
bargain with the Union. The Respondent filed exceptions to the
decision with the Board, the General Counsel filed an answer-
ing brief, and no cross-exceptions were filed. The matter is
currently pending before the Board.
In the interim, and more specifically, on November 13, 2003,
the Respondent began phasing in the new cogeneration facili-
ties and phasing out the Iola plant. A majority of the regular
full-time employees, who operated and maintained the boilers
at the Iola plant, were relocated to one of the new cogeneration
facilities. On December 3, 2003, the Union made a formal re-
quest for recognition and bargaining for the stationary engi-
neers working at the new facility. On December 18, the Re-
spondent denied that request, which is at issue here.
B. The Operation of the Iola Plant
When it took over the Iola plant on January 1, 2003, the Re-
spondent hired nine bargaining unit employees on a regular
full-time basis: Timothy Berna, Henry Brown Jr., John F. Ci-
minelli, Michael H. Healy, Paul T. McBride, James H. Muhs

2 NLRB v. Burns Security Services, 406 U.S. 272 (1972).
Jr., Ray O’Dell,3 Anthony J. Pursati, and Daniel A. Steinfeldt.
(GC Exh. 9.) Over the next 11 months, these employees main-
tained and operated the same equipment on the same shifts at
the Iola plant for the same pay under the same immediate su-
pervision for the same customers as they had prior to the take-
over. The only change was in their job titles. Instead of being
called stationary engineers, the Respondent called them build-
ing operators. Tim Berna, the chief stationary engineer, who
was included in the bargaining unit, was entitled lead building
operator.
The Respondent hired three other bargaining unit employees
on a part-time basis and a third on a per diem basis. Robert
Cammilleri, James C. White, and Richard C. Healy Jr. were
bargaining unit employees, who were hired as part-time build-
ing operators.4 Bert L. Lute was a former chief stationary engi-
neer for Monroe County, who retired from that position prior to
October 2002. The Respondent hired Lute on October 15, 2002,
as a full-time consultant to assist with the take over of the Iola
plant, but he was never stationed at the Iola plant after the Re-
spondent took over on January 1, 2003. Instead, Lute worked
an office job at another location in Rochester, New York. Al-
though he was available to work as building operator at the Iola
plant, Lute was seldom used in that capacity. (Tr. 43.)
The Iola plant had four boilers. Although it originally was a
coal burning power plant, three of the four boilers had been
converted to burn oil and natural gas long before the Respon-
dent took over. (Tr. 43, 150.) Two of the boilers burned gas as a
primary fuel. One boiler was modified with a side burner for
gas. All three could also burn oil. When the Respondent took
over in January 2003, there was only one boiler that burned
only coal. By October 2003, the sole coal burning boiler was
no longer operating and the coal supply was gone.5 (Tr. 181.)
Throughout year 2003, the Iola plant provided steam heat to
three buildings owned by Monroe County: Monroe Community
Hospital; Monroe County Health and Social Services Building;
and Pure Water Building. (Tr. 34.) The building operators with
classes I and II stationary engineer licenses were responsible
for the operation and maintenance of the boilers. They moni-
tored the pumps, motors, and fans by observing a computer
terminal in the control room and by visually inspecting the
equipment as they made rounds at the plant. (Tr. 66–69; 87–
90.) These individuals took water samples and tested the water.
They also adjusted the chemical mix and water temperatures by
turning values and knobs and adjusting other apparatus.

3 O’Dell became ill in February 2003, was absent from work for sev-
eral weeks, and never returned to the Iola plant. Instead, he received
another job with the Respondent at another location.
4 Cammilleri and Richard Healy left the Respondent’s employ prior
to November 2003, while John White left in early 2004. (Tr. 29–30,
43.)
5 The unloading and transferring of coal from hoppers to conveyors
to roto-stokers was the primary duty of a fireman, who had a class III
stationary engineer license. The fireman was also responsible for re-
trieving and dumping coal ash. The stationary engineers responsible for
maintaining and operating the boilers usually had a class I stationary
engineer license or at least a class II license. (Tr. 148–149.) By October
2003, the fireman position had been completely eliminated. (Tr. 149.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD56
C. The Fleet Maintenance Facility is Brought Online
The original plan was to phase out and close the Iola plant
and replace it with two new cogeneration plants. (Tr. 54.) One
of the new plants is the Fleet Maintenance Building (Fleet facil-
ity), which is located approximately 500 feet from the Iola
plant.6 The Fleet facility has three boilers fueled by natural gas
that generate steam. (Tr. 136.)
On November 13, 2003, the Respondent began the gradual
startup of the Fleet facility and simultaneously began to close
down the Iola plant.7 (Tr. 23, 54.) The Respondent did not hire
any new employees for the new facility. (Tr. 31.) Instead, five
of the original nine regular full-time Iola plant building opera-
tors were relocated to the Fleet facility to operate and maintain
the Fleet equipment. They are Tim Berna, John Ciminelli, An-
thony Pursati, Michael Healy, and Dan Steinfeldt.8 Their wages
were unchanged and they kept the same shifts and same hours
after relocating to Fleet. (Tr. 32–33, 59.) Their supervision
stayed the same, i.e., Chief Stationary Engineer Tim Berna
became the Fleet lead building operator.
In addition, Berna, Pursati, and Steinfeldt also continued to
work at the Iola plant after November 13. (Tr. 26–28; 66–70,
83.) They were responsible for maintaining the Iola plant boil-
ers in the event that extra capacity was needed during the win-
ter months, as was the case in January and February 2004. (Tr.
42–43.) The three class I licensed stationary engineers were
assisted by class II licensed stationary engineer James Muhs,
who remained assigned to the Iola plant, but also worked at the
Fleet facility.9 Muhs made rounds at Iola, maintained the
equipment, and maintained the water levels in certain tanks.
(Tr. 99.) Muhs also performed general maintenance duties at
the Fleet facility, like painting and cleaning, and was gradually
taught how to operate the Fleet equipment. (Tr. 118, 120.) He
estimated spending 50 percent of his time performing general
maintenance at the Fleet facility. (Tr. 120.)
Two other full-time Iola plant employees, Henry Brown and
Paul McBride, and one part-time employee, James White, re-
mained assigned to the Iola plant. Brown continued to make
rounds at the Iola plant checking air temperatures, gauges, and
boilers. He was not responsible for maintaining the water tanks.
(Tr. 125–126.) He, along with McBride, assisted in painting
and color-coding lines at the Fleet facility, sweeping floors, and
helping get that facility ready for full operations.10 (Tr. 57.)
White stopped working for the Respondent in early 2004.
D. Analysis and Findings
The complaint alleges, and the General Counsel argues, that
on December 18, 2003, the Respondent failed and refused to

6 The other cogeneration plant is located on the campus of Monroe
Community College, Rochester, New York. It is operated by the col-
lege’s engineering staff and is not involved in this case. (Tr. 30–31; 47–
48.)
7 At the time of the hearing, May 4, 2004, the Fleet building still was
not fully operational.
8 All five of these “building operators” have class I stationary engi-
neer’s licenses.
9 Muhs received his class II stationary engineer’s license in Septem-
ber 2003.
10 Brown and McBride have class III stationary engineer’s licenses.
recognize and bargain with the Union as the exclusive collec-
tive-bargaining representative of the Iola plant employees that
were relocated to the Fleet facility. The underlying obligation
to recognition and bargain with the Union is based on the fact
that the Respondent is a Burns successor and that the poll it
took in June 2003 was invalid because of the Respondent’s
unfair labor practice as found by Judge Linsky in Siemens I.
Relying on Rock Bottom Stores, 312 NLRB 400 (1993), and
Harte & Co., 278 NLRB 947 (1986), the General Counsel and
the Charging Party assert the Respondent had a continuing
obligation to recognize and bargain with the Union because the
operations at the Fleet facility are substantially the same as
those at the Iola plant and because the employees that relocated
to the Fleet facility constitute a substantial percentage—
approximately 40 percent or more—of the new facility’s com-
plement.
The Respondent argues that it had no underlying obligation
to recognize and bargain with the Union because it is not a
Burns successor and because the poll that was taken in June
2003 indicates that the employees do not desire to be repre-
sented by the Union. These are precisely the same arguments
raised in Siemens I and decided by Judge Linsky. In addition, it
asserts that it has no duty to recognize the Union because the
operations at the Fleet facility and the Iola plant are not sub-
stantially the same.
The Board has held on numerous occasions that absent
newly discovered or previously unavailable evidence or special
circumstances, a respondent in a proceeding alleging a violation
of Section 8(a)(5) of the Act is not entitled to relitigate issues
that were litigated in a prior proceeding. See Task Force Secu-
rity & Investigations, 323 NLRB 674, 675 fn. 2 (1997) (a re-
spondent in a compliance proceeding may not relitigate issues
previously decided in an underlying unfair labor practice pro-
ceeding); Nursing Center at Vineland, 318 NLRB 901, 903
(1995) (alleged supervisory status of all LPNs could have been,
but was not, raised by the respondent during the representation
hearing, therefore, the parties and administrative law judge
were bound by Board’s unit determination); Carlow’s Ltd., 315
NLRB 27, 28 (1994) (respondent’s defense that it had no re-
sponsibilities under expired collective-bargaining agreement is
res judicata because issue was determined in previous contempt
proceeding before Federal circuit court); Bryan Memorial Hos-
pital, 282 NLRB 235, 235–236 (1986) (summary judgment
granted by Board because all jurisdictional and evidentiary
issues raised by the respondent were litigated in previous unfair
labor practice proceeding); Western Temporary Services, 278
NLRB 469 fn. 1 (1986) (respondent had adequate opportunity
to litigate all relevant issues in underlying representation case
proceeding and therefore all issues raised by respondent were
res judicata). Prior to the hearing in this case, all parties were
advised that there would be no relitigation of the issues ad-
dressed by Judge Linsky’s findings in Siemens I. Those issues
are now before the Board for resolution. I know of no reason or
legal authority (Board or otherwise) which requires me to con-
SIEMENS BUILDING TECHNOLOGIES 57
sider and decide the issues now pending before the Board as a
part of this case.11
The primary issue in the present case is whether both prongs
of the Rock Bottom Stores test have been met. With respect to
the employee complement at the Fleet facility, it is undisputed
that all the regular full-time positions at that facility were filled
by Iola plant stationary engineers, who had class I stationary
engineer licenses and that no one other than those employees
were hired to work or have been hired to work at the Fleet facil-
ity since that time.12 In addition, the undisputed evidence shows
that one other stationary engineer, James Muhs, who has a class
II stationary engineer license, was gradually transitioned from
the Iola plant to the Fleet facility and, at the time of hearing, he
was performing several of the tasks performed by the class I
stationary engineers. Thus, the undisputed evidence shows that
the relocated Iola plant employees constituted the entire em-
ployee complement of the new Fleet facility.
With respect to whether the operations of the Fleet facility
remain substantially the same as those of the Iola plant, the
credible evidence shows that from the time it began operating
on November 13, 2003, through the date of the hearing, May 4–
5, 2004, the Fleet facility generated steam and hot water for the
same buildings that the Iola plant generated steam and hot wa-
ter. (Tr. 72.) Although the Fleet facility was designed to gener-
ate electricity, as well as steam, the undisputed evidence shows
that at the time of the hearing that aspect of the Fleet operations
was not operational. (Tr. 74, 95.) The Iola plant had four hot
water boilers and the Fleet facility has four hot water boilers.
As class I stationary engineer Daniel Steinfeldt testified, “[T]he
Fleet boilers are smaller, but they operate the way boilers oper-
ate and they produce steam.” (Tr. 94.) Between October 2003,
and the date of the hearing, the Iola plant boilers were powered
by oil and natural gas and the Fleet facility boilers were pow-
ered mostly by natural gas, but are equipped to burn oil. (Tr.
84.)
The evidence also shows that there was no change in job
skills for the regular full-time building operators and that they
received very minimal formal and informal training in order to
operate and maintain the Fleet boilers. Although the Fleet facil-
ity was brought online in mid-November 2003, there was no
formal training whatsoever until the very end of March 2004.
(Tr. 60–61, 74.) The first day of formal training took place on
March 30, 2004. Class I building operators Anthony Pursati and
Daniel Steinfeldt testified that the regular full-time building
operators received one-half day of training by Encorp concern-
ing a switchgear, which was not fully operational as of the date
of the hearing. (Tr. 61, 74, 85.) The second formal training took
place on March 31. Pursati and Steinfeldt stated that they re-
ceived another one-half day of training on the Siemens’ auto-
mated controls systems, which was operational only for testing
purposes. (Tr. 78–79, 86.)

11 At trial here, the General Counsel, without objection from the
Charging Party and Respondent, introduced into evidence the transcript
and exhibits of Siemens I, as well as a copy of Judge Linsky’s decision
for the background purposes. (Tr. 6–7; GC Exhs. 2 and 3.)
12 In its posthearing brief at pp. 18–19, the Respondent concedes that
a substantial percentage of the employees at the Fleet facility have been
drawn from the Iola plant.
In contrast, District Operations Manager Scott McKee stated
that the training provided to the regular full-time building op-
erators “was very thorough,” even though he did not know how
many days of training were provided and who was present for
the training. (Tr. 56.) Despite his obvious lack of personal
knowledge of specifics of the training that was provided, he
opined that it was “several days of intense training.” Eventually
McKee conceded on cross-examination that the building opera-
tors had operated the Fleet equipment without any training from
November 2003 through April 2004. McKee’s testimony con-
cerning training was unconvincing, contradicted by Pursati and
Steinfeldt, and otherwise unspecific and vague. (Tr. 60–61.) I
therefore do not credit this aspect of his testimony. Instead, I
credit the credible testimonies of Pursati and Steinfeldt, who
actually participated in the training, and whose testimonies are
independently consistent. Their respective testimonies reflect
that the training was minimal at best and that effectively there
was no job skills change for the class I stationary engineers
who relocated to the Fleet facility as building operators.
The lack of evidence reflecting a change of job skills is not
surprising in light the testimony of the regular full-time build-
ing operators comparing their respective duties at the Iola plant
and the Fleet facility. Building Operator Anthony Pursati ex-
plained the duties that he performed at the Iola plant prior to
November 13, 2003, which he continued to perform after he
was relocated to the Fleet facility. (Tr. 66–72.) Asked if he was
responsible for the same job duties at the Fleet facility, he re-
sponded, “They’re similar, the testing and treatment that we’re
doing now.” (Tr. 72–73.) He later elaborated that he operated
boilers at the Iola plant and now operates boilers at the Fleet
facility. He operated pumps at Iola and operates pumps at Fleet.
He operated fans at Iola and does the same at Fleet, but not to
the same degree. (Tr. 79.)
Building Operator Daniel Steinfeldt described his typical day
at the Iola plant on November 1, 2003. He stated that he “was
responsible for starting the boilers and stopping them and mak-
ing sure that they got blown down, and a lot of it was just sit-
ting by a computer and monitoring the conditions throughout
the building.” (Emphasis added.) (Tr. 88.) He testified that coal
burning had ceased by then and that regulating the gas burning
boiler at Iola was easy because it was run by computer. (Tr. 88–
89.) When asked to elaborate about monitoring conditions by
computer at the Iola plant, Steinfeldt stated, “[W]e watched the
amount of steam that was being produced and sent over to dif-
ferent customers. And if it was like on a Monday morning
when the chillers were starting fat the hospital or the Social
Services Building, you would have to make sure you had a
second boiler fired and ready to go for the extra load.” (Tr. 89–
90.) Many of the adjustments had to be done manually, but
some adjustments could be done by using the computer control,
like increasing the firing load of the boiler. (Tr. 90–91.)
Steinfeldt went on to explain that his duties at the Fleet facil-
ity were very similar to the duties he performed at the Iola
plant. (Tr. 93–94.) When asked specifically “[w]hat, if any-
thing, is different at the Fleet Cogeneration Plant that you
didn’t do at the IOLA? Steinfeldt responded, “[a]t this time
there isn’t a lot that’s different.” (Tr. 94.) Questioned further he
testified as follows:
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD58
Q. Is there anything that’s different?
A. It’s different equipment, the boilers are smaller, but
they operate the way boilers operate and they produce
steam.
Q. What about the computers?
A. Computers are a lot more advanced and there’s a lot
more graphics on them. They have alarms for, many
alarms for temperatures, pressures that go out of, if the
boiler goes down and stop codes that would register and
let you know exactly what the problem is with the boiler.
And we have a sheet that, for recommending troubleshoot-
ing, if something like that does happen, to follow. [Tr. 94–
95.]
Q. Anything else that was different?
A. I forgot the question now.
Q. The question is what is different?
A. What is different? The computer, like I said, it has a
lot more graphics on it and there’s stuff that we haven’t
gotten to yet with power monitors when the generators are
running. We’re going to have further training on that. [Tr.
95.]
Class II stationary engineer James Muhs testified that up un-
til May 2004 he remained assigned to the Iola plant, but worked
at both the Iola plant and the Fleet facility. (Tr. 98–99.) At the
Iola plant he continued to check and monitor the boilers making
sure that the plant was operational in the event that extra steam
was needed, as was the case in January and February 2004. (Tr.
115–116.) At the Fleet facility, he performed general mainte-
nance up until about 2 weeks prior to the hearing, when regular
full-time building operators Ciminelli and Steinfeldt began
informally training him on to operate the Fleet facility equip-
ment and how to access information on the Fleet computer. (Tr.
117.) Muhs testified that during in this 2-week period, he occa-
sionally worked alone at Fleet checking water levels and water
temperatures, even though he received no formal training what-
soever. (Tr. 101, 118, 121.)
Although the Iola plant and the Fleet facility both have com-
puter control rooms, Muhs testified that the Fleet control was
different because everything at the Fleet facility is controlled by
the computer. (Tr. 118.) Instead of having to manually make
adjustments by turning valves somewhere in the plant, Muhs
could make the adjustment at a computer terminal inside the
computer control room. While the evidence shows that the
computer equipment at the Fleet facility is more sophisticated
than the computer equipment at the Iola plant, there is no evi-
dence showing that any of the building operators received or
required computer training, formal or informal, other than
maybe a half day at the end of March 2004. Indeed, the credible
evidence shows that Muhs, a class II stationary engineer, was
trained on the computer by building operators, Ciminelli and
Steinfeldt, and that in less than 2 weeks he was independently
operating the computer system.
The Respondent nevertheless argues that the Fleet facility is
a very modern, automated facility, that produces steam and
electricity and that the jobs and tasks performed at Fleet are
very different from the Iola plant. In support of its position, it
asserts at page 19 of its posthearing brief that in Siemens I,
Judge Linsky found that “‘the new cogeneration facility . . .
would [emphasis added] require employees who operated the
new facility to have different expertise than the expertise re-
quired to run the Iola Power Plant” and that the “job duties’ at
the two facilities ‘would [emphasis added] differ.’ Siemens I
GC Exh. 3 at 2, 4.” The evidence in Siemens I that the Respon-
dent specifically cites to support this assertion is the testimony
of Mckee that:
The existing power plant, the boilers there are an old
style coal-powered boiler system that are manually oper-
ated, where people have to rake coals and pull ashes out
and monitor the coal bed, everything is very manual.
The new facility is automated, very modern, does not
have any coal burning, therefore it’s not very manually
operated. It’s an automated process that is not only pro-
ducing steam, but producing electricity as well, which is
not produced in the existing plant.
The jobs are very different. The operation of the Iola
Power Plant facility, as I mentioned, is more of a manual
operation in that they are monitoring and controlling the
steam generation boilers.
At the new facility the tasks are completely different,
where they’re monitoring reciprocating engines which are
producing power by driving a generator. They are moni-
toring oil levels and water samples, and things that are not
Presently monitored at the existing power plant. [Siemens
I, GC Exh. 2; Tr. 152–153.]
The Respondent’s argument is unconvincing for several rea-
sons. First, at the time of the hearing in the present case, the
Fleet facility still was not generating electricity and there is no
evidence indicating when that might occur. An argument based
on what has yet to occur and how it may impact the work force
is speculative.
Second, McKee’s assertions, past and present, that the job
skills and tasks of the building operators are very different are
contradicted by the testimony of the employees with firsthand
knowledge of the operations and job duties at both facilities,
i.e., Pursati, Steinfeldt, and Muhs. That, coupled with the fact
that McKee is not a stationary engineer and lacks their exper-
tise, further undercuts his credibility.
In addition, the McKee’s characterization of the Iola plant as
an “old style coal-powered plant” is somewhat disingenuous.
The undisputed evidence shows that coal was being phased out
even before the Respondent took over the Iola plant and it had
ceased being used before the Fleet facility began operating. For
the first 10 months of 2003, oil and natural gas were used to
fire the Iola plant boilers, except during peak periods when coal
was used to meet increased demand for steam. By October
2003, which was 1 month before the Fleet facility was brought
online, coal burning had completely ceased, but the Iola boilers
were kept operating into 2004 by burning oil and natural gas.
Thus, contrary to the Respondent’s attempt to foster the im-
pression that the Iola plant primary relied on coal to produce
steam, the credible evidence shows otherwise.
Further, and contrary to the Respondent’s assertions, Judge
Linsky did not make any factual findings regarding the job
skills, duties, and training of the building operators at the Fleet
SIEMENS BUILDING TECHNOLOGIES 59
facility as compared to the Iola plant. That issue was not even
before him. His decisional comments at best can be described
as obiter dicta because at the time of his hearing (October 6, 7,
and 8, 2003), the Fleet facility had not even opened.
For all the reasons above, I find that the operations at the
Fleet facility are substantially the same as those at the Iola plant
and therefore the Respondent was obligated to recognize and
bargain in good faith with the Union. Accordingly, I find that
on December 18, 2003, the Respondent violated Section 8(a)(5)
of the Act by failing and refusing to recognize and bargain with
the Union.
E. The Supervisory Issue
At the hearing, counsel for the General Counsel asserted that
lead building operator Tim Berna should be excluded from the
unit because he is a supervisor within the meaning of the Act.12
The burden is on the General Counsel to show that the lead
building operator is a supervisor. Kentucky River Community
Care, Inc., 523 U.S. 706, 712 (2001). Section 2(11) of the Act
lists in the disjunctive the types of authority that give rise to
supervisory status. The exercise of any one of the types of au-
thority is sufficient to establish supervisory status.
The undisputed evidence shows that the Fleet building op-
erators report to Berna. He in turn reports to Scott McKee, the
Respondent’s district operations manager. Berna was the chief
stationary engineer at the Iola plant and all the stationary engi-
neers and firemen reported to him. The undisputed evidence
also shows that prior to the Respondent taking over the Iola
plant, the chief stationary engineer was included in the bargain-
ing unit and covered by the collective-bargaining agreement.
The undisputed evidence also shows that in the prior cases
before Judge Linsky, the General Counsel did not seek to ex-
clude Berna from the bargaining unit. (Tr. 165–166.) Thus,
historically the individual performing the functions and duties
of the what is now called the lead building operator has been
included in the bargaining unit.
There is no evidence that Berna has the authority to hire, fire,
transfer, suspend, layoff, recall, promote, discharge, reward or
discipline anyone, or effectively recommend the same. There is
no evidence that he schedules the employees or approves over-
time. The evidence shows that before disciplining anyone,
Berna must contact McKee, explain the situation, and get direc-
tion from McKee in order to carry out discipline. (Tr. 169.) The
evidence further shows that at both Iola and Fleet, Berna directs
employees and has the authority to grant timeoff. (Tr. 164–
165.) However, there is no evidence showing the extent, if any,
to which Berna uses independent judgment in exercising this
authority.
Based on the evidence viewed as a whole, the fact that the
chief stationary engineer historically has been included in the
bargaining unit, the fact that the General Counsel did not ad-
dress the supervisory issue in his posthearing brief, and the
dearth of evidence submitted to meet his evidentiary burden, I

12 Neither the General Counsel nor the Charging Party argued in
their posthearing briefs that Berna is or is not a supervisor within the
meaning of the Act. They did not address the issue.
find that the lead building operator is not a supervisory position
within the meaning of the Act.
F. The Appropriate Bargaining Unit
Paragraph VI(a) of the complaint alleges that the following
employees of the Respondent constitute an appropriate unit for
purpose of collective-bargaining within the meaning of the Act:
All full-time and regular part-time stationary employees,
building operators and firemen employed by Respondent at its
co-generation and IOLA power plant facilities located in
Rochester, New York; excluding office employees, guards,
managerial employees, and supervisors as defined in the Na-
tional Labor Relations Act, 1947, as amended.
In its answer, the Respondent denied the allegation in the
complaint, but did not describe a unit appropriate for bargain-
ing. At the hearing, it did not submit evidence concerning the
appropriateness of the unit nor did it address the issue in its
posthearing brief.13
At the outset, it should be specifically noted that the “co-
generation” facility referenced in the above-referenced unit
description is the Respondent’s Fleet cogeneration facility lo-
cated at 350 East Henrietta Road, Rochester, New York, some
500 feet from the Iola plant, as distinguished from the Monroe
Community College cogeneration facility located at 1000 East
Henrietta Road, Rochester, New York, which is approximately
one-half mile from the Iola plant. (Tr. 25.)
In addition, the undisputed evidence shows, that from No-
vember 13, 2003, to the date of the hearing (May 4–5, 2004),
both the Iola plant and the Fleet facility were operational, that
the Iola plant was used for backup steam in January and Febru-
ary 2004, and that Iola was not closed at the time of the hear-
ing. The undisputed evidence also shows that three class I
stationary engineers (Berna, Pursati, and Steinfeldt) and one
class II stationary engineer (Muhs) operated and monitored the
boilers and equipment at both facilities during this time. As of
the hearing date, Muhs was being trained to operate the boilers
and equipment at the Fleet facility, and had operated these boil-
ers and equipment alone on certain occasions.
There is no evidence that a fireman was employed at the Iola
plant after October 2003. The primary duty of a fireman was to
unload and operate equipment ancillary to the movement of
coal. The Respondent stopped using coal at Iola in October
2003. The fireman position was eliminated at the Fleet facility
because the Fleet boilers are not powered by coal.
Five full-time building operators with class I stationary engi-
neer licenses are located at the Fleet facility (Berna, Ciminelli,
Michael Healy, Pursati, and Steinfeldt).14 They are hourly em-
ployees, who work 4 days a week, 12-hour shifts, and their pay
and benefits are approximately the same. They all perform the
same job functions and duties in terms of operating and main-
taining the Fleet facility equipment.

13 At p. 9, fn. 1 of its posthearing brief, the Respondent generally as-
serts that lead building operator Timothy Berna is not a supervisor
within the meaning of the Act, but does not address the unit question.
14 Their job titles at Fleet were changed from “stationary engineer”
to “building operator.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD60
There are no part-time building operators employed at Fleet
or part-time stationary engineers at Iola. However, part-time
stationary engineers historically have been a part of the bar-
gaining unit. There is no evidence disclosing that part-time
building operators would not share a community of interest
with the full-time building operators at the Fleet facility.
Class III stationary engineer Henry Brown, who stated that
he was a building operator, later testified that he no longer
“steadily” works with the building operators. (Tr. 124, 128.)
Brown was a class III stationary engineer at Iola, who was not
relocated to Fleet. After November 13, 2003, he continued
working at the Iola plant mainly doing maintenance. He also
performed occasional general maintenance at the Fleet facility.
At the time of the hearing, Brown testified that he actually was
not assigned to any one facility, but had different job assign-
ments at different locations at different times of the day. (Tr.
125.)
Based on the evidence before me, I find that the appropriate
bargaining unit includes:
All full-time and regular part-time stationary engineers and
building operators, including the lead building operator, em-
ployed by the Respondent at the Fleet co-generation facility
located at 350 East Henrietta Road, Rochester, New York,
and the Iola power plant located in Rochester, New York; ex-
cluding office employees, guards, managerial employees, and
supervisors as defined in the Act.
CONCLUSIONS OF LAW
1. The Respondent, Siemens Building Technologies, Inc., is
an employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. The Union, International Union of Operating Engineers,
Local 832, is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. The following employees constitute a unit appropriate for
the purposes of collective bargaining within the meaning of
Section 9(b) of the Act:
All full-time and regular part-time stationary engineers and
building operators, including the lead building operator, em-
ployed by the Respondent at the Fleet co-generation facility
located at 350 East Henrietta Road, Rochester, New York,
and the Iola power plant located in Rochester, New York; ex-
cluding office employees, guards, managerial employees, and
supervisors as defined in the Act.
4. By failing and refusing to recognize and bargain collec-
tively and in good faith with the Union from December 18,
2003, to the present, the Respondent has engaged in and con-
tinues to engage in conduct which violates Section 8(a)(1) and
(5) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent violated Section 8(a)(1)
and (5) of the Act, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act. I shall recommend that the Respon-
dent be ordered to bargain collectively and in good faith with
the Union as the exclusive representative of the Respondent’s
unit employees.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended15
ORDER
The Respondent, Siemens Building Technologies, Inc.,
Rochester, New York, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain collectively
and in good faith with the Union as the exclusive bargaining
representative agent of its employees in the appropriate bar-
gaining unit consisting of all full-time and regular part-time
stationary engineers and building operators, including the lead
building operator, employed by the Respondent at the Fleet co-
generation facility located at 350 East Henrietta Road, Roches-
ter, New York, and the Iola power plant located in Rochester,
New York; excluding office employees, guards, managerial
employees, and supervisors as defined in the Act.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) On request, recognize and bargain collectively and in
good faith with the Union as the exclusive bargaining represen-
tative of employees in the above-described appropriate unit
and, if an understanding is reached, embody that understanding
in a signed agreement.
(b) Within 14 days after service by the Region, post at its
Iola plant and Fleet facilities in Rochester, New York, copies of
the attached notice marked “Appendix.”16 Copies of the notice,
on forms provided by the Regional Director for Region 3, after
being signed by the Respondent’s authorized representative,
shall be posted by the Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous places
including all places where notice to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or covered by
any other material. In the event that, during the pendency of
these proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Respon-
dent shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees em-
ployed by the Respondent at any time since December 18,
2003.

15 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them be deemed waived for
all purposes.
16 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
SIEMENS BUILDING TECHNOLOGIES 61
(c) Within 21 days after service by the Region, file with the
Regional Director sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT unlawfully fail and refuse to recognize and
bargain in good faith with the International Union of Operating
Engineers, Local 832, as your exclusive collective-bargaining
representative, in following appropriate bargaining unit:
All full-time and regular part-time stationary engineers and
building operators, including the lead building operator, em-
ployed by the Respondent at the Fleet cogeneration facility
located at 350 East Henrietta Road, Rochester, New York,
and the Iola power plant located in Rochester, New York; ex-
cluding office employees, guards, managerial employees, and
supervisors as defined in the Act.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Federal law.
WE WILL recognize the International Union of Operating En-
gineers, Local 832, as your exclusive collective-bargaining
representative and on request bargain with the Union in good
faith concerning wages, hours, benefits, and other terms and
conditions of employment.
SIEMENS BUILDING TECHNOLOGIES, INC.