UNITED STATES OF AMERICABEFORE THE NATIONAL LABOR RELATIONS BOARD

THIRD REGION

NOBLE ENVIRONMENTAL POWER, LLC

Employer

and Case 3-RC-11856

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 1249,AFL-CIO

Petitioner

DECISION AND DIRECTION OF ELECTION

Upon a petition duly filed under Section 9(c) of the National Labor Relations Act,

as amended, a hearing was held before a hearing officer of the National Labor Relations

Board, hereinafter referred to as the Board.

Pursuant to Section 3(b) of the Act, the Board has delegated its authority in this

proceeding to the undersigned.

Upon the entire record in this proceeding, I find:

1. The hearing officer's rulings made at the hearing are free from prejudicial

error and are hereby affirmed.

2. The parties stipulated that Noble Environmental Power, LLC, herein

referred to as the Employer, with an office and principal place of business located in

Essex, Connecticut, and offices located in Churubusco, New York and Arcade, New

York, is engaged in the sale of wind-generated electricity. During the past 12 months, in

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conducting its business operations, the Employer derived gross revenues in excess of

$250,000, and purchased goods and services valued in excess of $50,000 directly from

points outside the State of New York.

Based on the parties' stipulation and the record as a whole, I find that the

Employer is engaged in commerce within the meaning of Section 2(2), (6), and (7) of the

Act and that it will effectuate the purposes of the Act to assert jurisdiction herein.

3. The parties stipulated, and I find, that International Brotherhood of

Electrical Workers, Local 1249, AFL-CIO, herein referred to as the Petitioner, is a labor

organization within the meaning of Section 2(5) of the Act.

4. The parties stipulated that there is no collective-bargaining agreement that

would bar a representation election in the petitioned-for unit.

5. A question affecting commerce exists concerning the representation of

certain employees of the Employer within the meaning of Section 9(c)(1) and Section

2(6) and (7) of the Act.

The petition seeks a unit of all full-time wind technicians employed by the

Employer at the Chateauguay wind farm location. At the hearing, the Petitioner stated

that it seeks to represent all wind turbine technicians who work at the Employer’s North

Country wind farms, excluding lead technicians.

The Employer contends that the petitioned-for unit is inappropriate because it

does not include wind turbine technicians employed by the Employer at its Western New

York wind farms, and because it does not seek to include lead technicians who work at

any of the Employer’s wind farms in the State of New York.

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The parties stipulated that the appropriate unit should include all full-time and

regular part-time wind turbine technicians. The parties further stipulated that the

appropriate unit should exclude all plant leaders, monitoring technicians, inventory

technicians, administrative assistants, guards, and all professional employees and

supervisors as defined in the Act.

The Petitioner contends that the lead technicians are not eligible for inclusion in

the unit because they are statutory supervisors within the meaning of Section 2(11) of the

Act, and that they exercise all twelve indicia of supervisory authority.

The Petitioner has agreed to proceed to an election in any unit found appropriate.

Based on the record herein, I find that the Petitioner has failed to meet its burden

in demonstrating that the lead technicians are statutory supervisors. Accordingly, I shall

include them in the unit found appropriate herein.

I further find, based on the record evidence, that the lead technicians and wind

turbine technicians at the Employer’s North Country wind farms comprise a distinct

administrative and geographic grouping and constitute an appropriate unit for purposes of

collective-bargaining, and I shall direct an election in that unit.

FACTS

The Employer is an independent power producer and produces electricity by the

use of wind power generators. The Employer sells this electricity to independent system

operators throughout the country. Daniel Mandli is the senior vice-president of

operations for the Employer, and Tim McNeil is the director of production. The

Employer currently operates wind parks in Northern New York, herein called the North

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Country, Western New York and Texas.1 Although the Employer operates all wind

parks, each wind park is a separate limited liability company with its own profit and loss

center and separate contracts for the sale of the electricity produced at each site.2

The wind parks at all locations are located on land leased by the Employer from

multiple land owners. The Employer leases approximately one acre of land per wind

turbine at all wind parks in order to accommodate the turbines and the necessary access

roads. The Employer currently operates four wind parks in the North Country: Clinton,

Ellenburg, Chateauguay and Altona; and two wind parks in Western New York: Bliss

and Wethersfield.3 Plans for five additional wind parks, two in the North Country and

three in Western New York, are currently in the development stage. The office for the

North Country employees is located in Churubusco, New York, and the office for the

Western New York employees is located in Arcade, New York.

The North Country Chateauguay, Clinton and Ellenburg wind farms are located

on contiguous properties, with Chateauguay being furthest west, and Ellenburg further

east. The North Country Altona wind farm is located approximately 18 to 20 miles

southeast of Ellenburg. The record demonstrates that the Bliss and Wethersfield wind

farms in Western New York are located next to each other, but it is unclear whether they

are contiguous. The Churubusco office for North Country employees is located

approximately 322 miles from the Arcade office for Western New York employees.

1 No party contends that employees who work at the Employer’s Texas wind farms should be included in the unit found appropriate.2 The record does not disclose who negotiates and signs these individual contracts. 3 The Clinton, Ellenburg and Bliss wind parks are currently producing electricity; the Chateauguay, Altona and Wethersfield wind parks are scheduled to go online in November or December 2008.

5

The Employer’s corporate offices are located in Essex, Connecticut, herein called

Essex. Senior vice-president Mandli is located in Essex. Mandli travels to the North

Country approximately three times a month, and to Western New York approximately

once a month. Human resource functions are centralized in Essex, and all personnel files

are maintained in Essex.4 The Essex human resources office handles the payroll and

administers benefits for the entire company. All hourly employees are paid weekly and

all salaried employees are paid bi-weekly. Payroll is calculated by the human resources

office and paychecks are issued by ADP, a payroll processing company. Pay rates for all

wind turbine technicians at all locations are determined by the human resource

department in conjunction with director of production Tim McNeil and senior vice-

president Daniel Mandli. Pay rates range from $16 per hour to $24 per hour. The record

demonstrates that the wind turbine technicians average wages closer to $16 per hour,

while the lead technicians earn wages closer to $24 per hour.5

All wind turbine technicians in New York have the same job description, which

states that they are supervised by the lead technician or the plant leader.6 All wind

turbine technicians in New York are eligible for the same benefits, which include health

insurance, 401(k), dental and vision plans, and a health savings account. During new

employee orientation, human resources personnel communicate with every employee by

telephone, answer employment questions, and assist in benefit enrollment. All

employees are provided with a copy of the same employment manual.

4 Unofficial personnel files are maintained in the North Country Churubusco and the Western New York Arcade offices for the plant leaders’ respective reference. 5 The record does not disclose specific pay rates, with the exception of wind turbine technician James Kibbe, who testified that he is paid $16.50 per hour. 6 The job descriptions for the plant leaders and lead technicians are not in the record. A staffing plan in the record identifies the duties of the wind turbine technicians and the plant leaders, but does not reference lead technicians.

6

Applicants for employment can apply directly to the Churubusco or Arcade

offices, or can submit applications and resumes through the Employer’s corporate

website. The Essex human resources office conducts background investigations on all

applicants, and all job offers are issued by the human resource department. The Essex

human resources office participates in disciplinary issues, although the record is unclear

about the extent of that participation.

In addition to its Essex, Connecticut corporate office, the Employer has an

operations center located in Plattsburgh, New York. The operations center monitors the

turbines 24 hours a day, 365 days a year. The center collects data on every wind turbine

in operation in the Employer’s fleet, monitors the weather, and sends messages out to the

sites regarding possible storm activity. Director of production Tim McNeil is located at

the Plattsburgh operations center along with the monitoring technicians, inventory control

clerk, and production assurance engineers.7

The majority of the Employer’s workforce consists of wind turbine technicians,

who are primarily responsible for the maintenance and repair of the wind turbines. There

are currently approximately 17 wind turbine technicians employed in the North Country

and 8 wind turbine technicians employed in Western New York. Wind turbine

technicians at all sites perform the same duties. Approximately 90 to 95 percent of the

work performed by wind turbine technicians consists of scheduled maintenance,

troubleshooting, and repairs of wind turbines. Wind turbine technicians spend the

remainder of their work time performing ancillary work at the substation, or repairing

equipment.

7 No party asserts that any of the individuals employed in these job classifications should be included in the bargaining unit.

7

Most of the wind turbine technicians’ duties are prescribed by General Electric’s

service manual.8 This manual sets forth the scheduled maintenance services that must be

performed on each turbine in order to maintain the warranty. The maintenance schedule

is dictated by time, similar to the scheduled maintenance on an automobile.

All wind turbine technicians have the same basic skills and use the same tools and

protective gear. The job requirements for all wind turbine technicians are the same at all

of the Employer’s sites. All wind turbine technicians are trained in CPR and first aid,

OSHA requirements, lockout/tagout procedures and clearance procedures.9 Vice-

president of operations Mandli testified that all wind turbine technicians will be trained

through General Electric’s wind turbine training programs, and that all wind turbine

technicians will be measured by the same matrix of training. According to Mandli, the

goal is to train wind turbine technicians so that they can perform any job on any site

efficiently. However, director of production McNeil testified that the Employer’s goal is

to create different levels of technicians at each site, with varying levels of expertise.

Director of production McNeil is responsible for production at all of the

Employer’s wind farms. He is involved in personnel decisions at every site. He reports

directly to vice-president Mandli. Kip Young is the plant leader for the North Country

Churubusco office, and Brad Knab is the plant leader for the Western New York Arcade

office. Both Young and Knab report directly to McNeil. Plant leaders are salaried

employees, and receive no overtime pay. Plant leaders do not perform work on

windmills and are not eligible for the optional uniform benefit that is available to lead

technicians and wind turbine technicians at the Employer’s expense.

8 General Electric manufactures the wind turbines used by the Employer.9 The record does not disclose what lockout/tagout procedures or clearance procedures entail.

8

Plant leaders are directed and mandated to follow specific metrics that measure

how well each park is operating. McNeil testified that plant leaders remove impediments

to allow technicians to perform their jobs more efficiently. Plant leaders purchase

consumable parts, make sure the parts are onsite, ensure that technicians are working on a

daily basis, and line up personnel, including third-party contractors, for major repair

work. Depending on the amount of money at issue, plant leaders may or may not have to

get approval from McNeil.

McNeil evaluates plant leaders, but the record contains no evidence regarding any

evaluations given to plant leaders, or any positive or negative consequences as a result of

an evaluation.10 Plant leader Young handles the day-to-day operations at the wind parks

located in the North Country. McNeil testified that he told Young that he is accountable

for the job performance of lead technicians and wind turbine technicians, and if there is

an injury or repair that is done incorrectly because of poor performance, he would go

directly to Young.

In addition to the plant leaders, there are two lead technicians, James Pedriani

and Lloyd Silver, at the North Country Churubusco office, and two lead technicians,

Chad Woodruff and Dan Fore, at the Western New York Arcade office. Lead technicians

at both offices are hourly employees and they perform the same duties. Lead technicians

receive the same benefits as wind turbine technicians and are eligible to participate in the

same uniform benefit as the wind turbine technicians. Pedriani and Silver report to plant

leader Young in the North Country Churubusco office, and Woodruff and Fore report to

10 McNeil testified that, to date, there have been no performance problems, and that plant leader Young has been meeting the performance standards at all North Country sites.

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plant leader Knab in the Western New York Arcade office. The record does not disclose

whether there is a separate job evaluation for lead technicians.

North Country wind turbine technician James Kibbe testified that the lead

technicians do substantially more paperwork than the wind turbine technicians.

According to Kibbe, the lead technicians review policies and procedures, keep track of

certain items, and are responsible for reports such as the live progress reports, which

outline the work that has been completed in the wind parks and what needs to be done.

Kibbe stated that the lead technicians monitor production in the wind parks.

North Country technicians report to the Churubusco office each workday, while

the Western New York technicians report to the Arcade, New York office. The

Churubusco office consists of two trailers: a main trailer and an overflow trailer.11 Plant

leader Young has an enclosed office with a desk in the main trailer at the Churubusco

office. The lead technicians have a space in the overflow trailer.12 North Country wind

turbine technician James Kibbe testified that this space is used by all the technicians, but

it is understood that it is primarily for the lead technicians.

North Country wind turbine technicians receive their schedules each day on a dry

erase board located in the Churubusco main trailer. The lead technicians fill in the wind

turbine technicians’ assignments on this board. Director of production McNeil testified

that the lead technicians and plant leader Young meet at the end of each workday and

determine the assignments.13 Approximately five or six teams are dispatched each day

out of the Churubusco office to perform maintenance on the wind turbines.

11 The record contains no details about the physical composition of the Arcade office. 12 It is unclear from the record whether this space constitutes an office or a desk. 13 The record does not disclose how assignments are determined at these meetings.

10

Director of production McNeil testified that, when making the initial team

assignments, the Employer put together two-man teams based on resumes and previous

experience.14 According to McNeil, teams stay together for one to three weeks, and then

are rotated by taking one technician off that job, and moving another technician onto that

job. The purpose of the rotation is to expand the knowledge base of all of the wind

turbine technicians. North Country wind turbine technician James Kibbe testified that,

when making these assignments, the lead technicians consider the experience of the

technicians by pairing a more-experienced technician with a less-experienced technician,

and they also consider how well technicians get along and work together.

Director of production McNeil testified that when troubleshooting issues arise,

plant leader Young and the lead technicians meet and determine how many wind turbine

technicians will be needed to handle the job. According to McNeil, the lead technicians

give Young a report on the skill set of the technicians, and Young then determines which

wind turbine technicians will be used for troubleshooting based on this input from the

lead technicians. McNeil testified that the “ultimate decision” as to which technicians

will perform troubleshooting lies with Young, although McNeil may sometimes get

involved.15 According to McNeil, when a troubleshooting issue arises, a two-man

maintenance team is split up, and one inexperienced troubleshooting technician is teamed

with an experienced troubleshooter for training purposes. There are currently eight

technicians in the North Country who have performed troubleshooting assignments.16

14 The record does not disclose who made these decisions.15 The record does not disclose either the circumstances or the percentage of time McNeil becomes involved in troubleshooting assignments. 16 Although it appears from vice president of operations Mandli that the Employer intends to train all wind turbine technicians to perform all duties, it is unclear from the record how the Employer decides the order in which technicians will be rotated to perform troubleshooting duties for training purposes.

11

Wind turbine technicians also perform initial installation procedures (IIP) which

are inspections of wind turbines that generate a list similar to a punch list generated on a

newly constructed house. During the IIP, the wind turbine technician and a

representative from General Electric inspect the tower, based on a detailed list of items

generated by General Electric. McNeil testified that Young determines the percentage of

wind turbine technicians that need to be involved in the IIP process, and informs the lead

technicians that he needs technicians to perform IIP inspections. According to McNeil,

the lead technicians then assign a wind turbine technician to perform the IIP inspection.

The record is silent as to how the lead technicians determine which wind turbine

technicians will perform IIPs.

Maintenance tasks are tracked in a computer maintenance program called Main

Saver that tracks scheduled maintenance, corrective maintenance and repairs performed

on each turbine.17 Senior vice-president Mandli, director of production McNeil, plant

leaders, lead technicians and wind turbine technicians have access to input data into the

system.18

Director of production McNeil testified that the wind turbine technicians access

Main Saver, where a work order has been generated for them. The record does not

disclose how work orders are generated, i.e., whether by information entered into the

system by an individual or automatically. Wind turbine technicians access Main Saver

and complete a computerized record of the work completed. The plant leader then

reviews the computerized record for accuracy and closes the work order.

17 It is unclear from the record whether both the Churubusco and Arcade offices use Main Saver. It is also unclear whether all employees have access to all work orders, or only to those work orders specific to their home office.18 The record does not disclose whether all employees have the same level of access to the system, or whether certain individuals are authorized to access and input data not available to other individuals.

12

The record demonstrates that wind turbine technicians from the North Country

have little interaction with wind turbine technicians from Western New York. Wind

turbine technicians from Western New York do not attend meetings with wind turbine

technicians from the North Country and North Country technicians do not have contact

with the Western New York technicians either by telephone or radio. North Country

technicians communicate regularly with each other by radio. In January 2008, the

Employer sent by e-mail to all employees two separate newsletters: one for its North

Country operations and one for its Western New York operations.

The record contains little evidence of interchange or interaction between the

North Country and Western New York technicians. North Country wind turbine

technician Collin Williams traveled to Western New York on one occasion in 2008 to

revise the policy on lockout/tagout procedures. He did not perform work on wind

turbines while in Western New York. Williams also attended training in March or April

2008 in Schenectady, New York, that was also attended by technicians from Western

New York.19 North Country wind turbine technician Robbie LaBombard testified that he

also attended a four-day training session in Schenectady, New York. However, the

record does not disclose when he went for this training, and whether he attended the

training with LaBombard.

In 2007, North Country wind turbine technicians Gregg Keator and Robbie

LaBombard both attended one-week training sessions in Western New York. Williams

testified that, other than training and the time spent in Western New York revising the

lockout/tagout policy, he has had no interaction with any employees from Western New

19 The record does not disclose the duration of this training.

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York. LaBombard testified that, other than training, he has had no contact with any

employees in Western New York.

The record demonstrates that Western New York wind turbine technicians Dan

Fore and Brendan Mullholland performed work in the North Country in 2006 and 2007,

prior to the commencement of operation of any of the North Country wind parks.20 Fore

worked in the North Country for six days in December 2006, and in 2007, Fore worked in

the North Country on approximately nine occasions for periods ranging from two days to

approximately one week. In 2007, Mullholland worked in the North Country on three

occasions for periods ranging from three to five days. The record demonstrates that Fore

and Mullholland performed services in connection with the maintenance and storage of

wind turbines.21 North Country technician Greg Keator traveled to Western New York

twice in 2007: one week for training and the other week to work on the setup of a new

substation.

The only evidence of interchange during 2008 is North Country technician

Williams’ trip to Western New York to work on the lockout/tagout policy, described

above, and the Western New York technicians who traveled to the North Country to fill

in for the North Country technicians who were unable to work because they attended the

hearing in the instant matter.22 Director of production McNeil testified that the lack of

interchange between the North Country and Western New York in 2008 was because the

Ellenburg and Clinton wind parks in the North Country became operational within a few

weeks of the Bliss wind park in Western New York; that the Employer was hiring and

20 Fore was recently promoted to lead technician in Western New York.21Prior to constructing and erecting turbines, the Employer stores them on the ground in various locations in the Northeast. Maintenance must be performed on the stored turbines in order to maintain the warranty. 22 The record does not disclose how many Western New York technicians filled in for the North Country technicians who attended the hearing.

14

training wind turbine technicians for these sites during this time; and that it made no

sense to transfer employees back and forth.

The record demonstrates that the job description for the wind turbine technicians

dictates that technicians must be willing to travel to other sites as needed. Director of

production McNeil testified that he expects that when a full complement of technicians is

hired and trained, the wind turbine technicians will travel to other sites approximately one

month out of the year to perform work or assist in the start-up of new wind parks as they

are developed. North Country wind turbine technician Jamie St. Mary testified that he is

willing to travel to other sites, but he has only been sent to sites located in the North

Country. To date, no employees have permanently transferred from the North Country

to Western New York, or from Western New York to the North Country. The record

contains no evidence of any temporary transfers between the North Country and Western

New York sites for purposes of performing routine maintenance, troubleshooting, or IIP

inspections on wind turbines.

Wind turbine technicians fill out time sheets on Mondays for the prior week.

Young approves time sheets for the North Country wind turbine technicians and lead

technicians.23 If there are issues with payroll, plant leader Young consults with director

of production McNeil. With the exception of one occasion, Young has not had to seek

input from McNeil in approving the payroll.24

23 Although the evidence demonstrates that plant leaders at both locations perform the same duties, the record does not disclose whether plant leader Knab approves the payroll for the Western New York wind turbine technicians and lead technicians.24 McNeil recently became involved in a payroll issue involving the hearing. Certain technicians mistakenly believed that they would be paid for attending the hearing and input their time under the category “jury duty.” Young brought the issue to McNeil for resolution.

15

The record contains no detailed evidence of the manner in which hiring decisions

are made. Director of production McNeil testified that all applicants for employment are

interviewed by the plant leaders at the offices in which the applicant is seeking

employment. Lead technicians and technicians might participate in interviews as well.

According to McNeil, once the plant leader becomes aware of the potential candidate,

either through the candidate or through McNeil, the plant leader contacts and interviews

the candidate. According to McNeil, plant leader Young has interviewed all lead

technicians and technicians hired in the North Country. The record demonstrates that

McNeil has participated in interviews with Young, but the record does not disclose the

percentage of interviews in which McNeil has participated. McNeil stated that hiring

decisions are made among the plant leader and McNeil and human resources, as opposed

to the lead technicians, who have no involvement in hiring decisions. Once it is

determined that an applicant will be hired, the plant leader sends an e-mail to human

resources containing information about the individual and the details of his prospective

employment, such as pay rate, benefits, vacation time, and proposed start date. This e-

mail initiates the background check performed on each applicant for a wind turbine

technician position.

Plant leader Young prepares performance evaluations for North Country lead

technicians and wind turbine technicians. Director of production McNeil testified that he

reviews those recommendations. The record does not disclose whether McNeil has ever

made changes to an evaluation prepared by Young. North Country wind turbine

technician Robert LaBombard testified that he received an evaluation from Young.

According to LaBombard, he completed a self-evaluation on the computer. Young also

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completed LaBombard’s evaluation on the computer, and then reviewed the evaluation

with LaBombard. LaBombard testified that there were no consequences, either positive

or negative, resulting from his evaluation.

Wind turbine technicians who started in 2007 received cost-of-living increases.25

Six or seven North Country technicians also received increases for expedited learning.

Plant leader Young made the recommendations for these individuals, and director of

production McNeil approved the recommendations with the exception of one individual.

The record contains no details regarding the rejected recommendation.

The vast majority of wage increases are cost-of-living increases. There are also

annual incentive pay increases, which are based on how well each individual performs

and are also based on the profitability of the cost centers, including those cost centers

outside of an employee’s working area. The record does not disclose, however, whether

any wind turbine technicians or lead technicians have received annual incentive pay.

The record demonstrates that plant leader Young issued a verbal reprimand to a

wind turbine technician after advising director of production McNeil that he was going to

do so. McNeil testified that Young checked with him both for permission and to keep

him informed. On another occasion, Young recommended that a lead technician be

terminated. McNeil overruled Young’s decision because of lack of documentation and

lack of precedent. According to McNeil, he advised Young to counsel the employee

instead of immediately terminating him. McNeil testified that Young later recommended

that the individual be given a written warning and subsequently recommended that the

individual be terminated. McNeil concurred in both of those recommendations.

25 It is unclear from the record whether all wind turbine technicians who started in 2007 received cost of living increases.

17

North Country wind turbine technician Kibbe testified that plant leader Young

once instructed him to contact the company that handles the Employer’s radio equipment

to repair a radio, and that Young verbally counseled Kibbe regarding the incident.

According to Kibbe, Young told him to make sure it did not happen again.26

The record demonstrates that plant leader Young has recommended individuals

for promotion. North Country lead technicians Pedriani and Silver, and Western New

York lead technicians Woodruff and Fore were formerly wind turbine technicians.

Director of production McNeil testified the plant leaders made the recommendations to

promote these individuals to lead technicians. According to McNeil, when the plant

leaders make a recommendation for promotion, he is comfortable with the capabilities of

the individuals, based on those recommendations. McNeil testified that he has never

rejected Young’s recommendations for promotion.

The record also demonstrates that Young made the decision to switch summer

working hours from 7:00 a.m. to 3:30 p.m., to 6:00 a.m. to 2:30 p.m., and McNeil

concurred in that decision when Young sought his approval.

North Country Wind turbine technician Paul Richards testified that he needed

time off on one occasion and that plant leader Young approved the request. The record

does not disclose whether Young approved the request immediately. Director of

production McNeil testified that the plant leaders have the authority to approve time off

requests, but that McNeil might get involved if a conflict arises.27

26 According to Kibbe, he mistakenly believed that the radio company was going to look at the equipment as a courtesy but was counseled after the Employer received a bill for $385.00. 27 McNeil testified, for example, that when the Employer learned that approximately 75 percent of the technicians wanted to take off of work for the first day of hunting season, plant leader Young contacted McNeil for assistance in handling the issue.

18

Lead technicians are responsible for directing the daily activities of the wind

turbine technicians. Lead technicians spend from 20 to 50 percent of their time

performing work on wind turbines. As part of their duties, North Country lead

technicians conduct weekly safety meetings with the wind turbine technicians. Plant

leader Young also attends the meetings. North Country wind turbine technician Collin

Williams testified that on one occasion, he was scheduled to attend a training and that

North Country lead technician Pedriani told him that he could not go, and that the

Employer decided to send someone else. The record does not disclose who made this

decision. On another occasion, Pedriani told the technicians that they could not report to

work at 6:00 a.m. if they intended to hang around the office. Williams testified that it

appeared that this directive came from plant leader Young.

The record contains no evidence that lead technicians have the authority to send

employees home or to grant time off requests. Rather, employees submit time off

requests through the corporate website, and then write the approved dates on a board in

the office after receiving approval as a courtesy to the lead technicians.

Director of production McNeil testified that the lead technicians participate in job

interviews, and that technicians also sometimes participate in job interviews. McNeil

stated that the role of the lead technicians or technicians in job interviews is to introduce

the applicant to the Employer, show the applicant how they do business, and see whether

the applicant will fit in or not. According to McNeil, lead technicians and technicians

can recommend that applicants be hired, but do not make hiring decisions. The record

contains no evidence as to the percentage of time the recommendations of the lead

technicians are accepted by the Employer when making hiring decisions.

19

North Country wind turbine technician John Stanzione testified that he applied for

work with the Employer multiple times over a two-year period, and was ultimately

interviewed by North Country lead technicians Pedriani and Silver when he was hired.

According to Stanzione, they told him during the interview that he met the criteria for

hire, and that they would give plant leader Young their recommendation. Stanzione

stated that when he called back to speak to Young, Young told him he was hired. McNeil

testified, however, that Young interviews every applicant in the North Country.

While the wind turbine technicians testified that North Country wind turbine

technicians Pedriani and Lloyd can approve overtime, McNeil testified that there are very

few restrictions on overtime due to the volume of work to be performed. North Country

wind turbine technician Kibbe testified that he informs Pedriani and Lloyd that he wants

to work overtime. According to Kibbe, the technicians work Saturdays on a voluntary,

rotating schedule and can decide among themselves to work an overtime shift for another

technician without approval from a lead technician or plant leader. Wind turbine

technician Paul Richards testified that he requests overtime from the lead technicians, and

stated that all technicians were denied overtime the week before the hearing.28

McNeil testified that lead technicians have no authority to issue discipline. North

Country wind turbine technician Collin Williams testified that North Country lead

technician Pedriani once pulled him off a job and had a three-hour conversation with him

about his attitude. Pedriani never told Williams that it was discipline, and Williams never

received anything in writing. Williams testified that he understood it to be a warning

because Pedriani stated that he did not want it to go any further. There is no evidence in

the record that lead technicians have ever recommended discipline.

28 The record contains no evidence regarding who made the decision that there would be no overtime.

20

North Country wind turbine technician Kibbe testified that lead technician

Pedriani had issued several e-mails to the North Country technicians about the time

sheets, a meeting and tools.29 The record contains no evidence regarding the impetus for

the e-mail regarding time sheets. According to director of production McNeil, the

remaining e-mails were issued pursuant to McNeil’s instructions to Young.

The record contains no evidence that the lead technicians make effective

recommendations regarding promotions, or that they have any input in personnel

evaluations. McNeil testified that lead technicians are not held accountable for the work

performed by the wind turbine technicians.

ANALYSIS

The Employer argues that the petitioned-for unit is not an appropriate unit.

Specifically, the Employer contends that the petitioned-for unit is not appropriate because

it is based on the extent of organizing, and seeks to exclude employees who share a

community of interest with those employees in the unit sought in the petition. The

Employer contends that the appropriate unit consists of the wind turbine technicians and

lead technicians employed in both the North Country and Western New York.

The Petitioner argues that the appropriate unit includes only the approximately 17

wind turbine technicians who work at the Employer’s North Country wind farms,

excluding the 2 lead technicians based on their status as Section 2(11) supervisors.

Contrary to the Employer, I find that the wind turbine technicians who work at the

Employer’s North Country wind farms constitute an appropriate unit for the purposes of

29 The e-mail about time sheets instructed the technicians to be certain to get two copies of their time sheets to plant leader Young by the end of the day on Mondays. The e-mail about a meeting instructed employees that there was a mandatory meeting with senior vice president of operations Mandli. The e-mail regarding tools was a survey.

21

collective bargaining. In this regard, I find no evidence that the petition seeks to

arbitrarily group together certain employees for purposes of collective bargaining.

Rather, I find that the Petitioner seeks to represent employees who both geographically

and administratively comprise a separate and appropriate unit for purposes of collective

bargaining.

I further find, contrary to the Petitioner, that the appropriate unit also includes the

two lead technicians who work at the Employer’s North Country wind farms. In this

regard, I find that the Petitioner has failed to present sufficient evidence that the North

Country lead technicians are statutory supervisors.

Unit Scope

The Act only requires the petitioned-for unit to be an appropriate unit; it does not

require the unit be the only appropriate or even the most appropriate unit. The Boeing

Company, 337 NLRB 152 (2001); Overnite Transportation Company, 322 NLRB 723

(1996). The Board’s procedure for determining an appropriate unit under the Act is to

first evaluate the petitioned-for unit. If the unit is found appropriate, thereby ensuring

employees the fullest freedom in exercising their rights under the Act to select a

representative of their own choosing, then the inquiry into the appropriateness of the unit

ends.

In making the determination as to whether the petitioned-for unit is appropriate,

the Board considers whether the petitioned-for employees share a community of interest

that sets them apart from other employees. See, e.g., Boeing Company, 337 NLRB 152,

153 (2001). In Kalamazoo Paper Box Corp., 136 NLRB 134, 137 (1962), the Board

22

enumerated factors to be assessed in determining whether a community of interest sets a

group of employees apart from other employees:

[A] difference in method of wages or compensation; different hours of work; different employment benefits; separate supervision; the degree of dissimilar qualifications, training and skills; differences in job functions and amount of working time spent away from the employment or plant situs…; the infrequency or lack of contact with other employees; lack of integration with the work functions of other employees or interchange with them; and the history of bargaining.

While the record demonstrates that the North Country and Western New York

lead technicians and wind turbine technicians enjoy the same wages and benefits, and

have similar levels of qualifications, training and skills, and that they perform the same

job functions using the same tools and equipment, I find that these factors are outweighed

by evidence in the record demonstrating limited contact between the North Country and

Western New York employees, the lack of integration between the two groups of

employees, and the separate supervision in the North Country Churubusco and Western

New York Arcade offices.

Contact and Interchange

The record demonstrates little contact between the North Country wind turbine

technicians and the Western New York technicians. All of the North Country employee

witnesses testified that they have never worked with a Western New York technician and

that they do not contact the Western New York technicians by telephone, radio or e-mail.

I find that the isolated incidents relied on by the Employer involving training or work on

a lockout/tagout policy fail to demonstrate substantial contact between the two groups of

employees and this finding militates in favor of a unit consisting solely of North Country

23

employees. See AIL, 214 NLRB 203 (1974) (the Board found, contrary to the regional

director, that logistic analysts did not share a community of interest with other petitioned-

for employees based on their infrequent and insubstantial contact with other employees).

I further note the record demonstrates that the North Country wind turbine

technicians have a great deal of contact with each other on a daily basis. All of the

technicians have the same start time and report to the Churubusco office each morning.

The record demonstrates that the technicians always work in pairs of two, and that they

are in radio communication with each other throughout the day. E-mails in the record

appear to be limited to North Country employees who report to the Churubusco office.

I find that the record fails to establish that there is substantial interchange between

the North Country and Western New York technicians. Although the Employer argues in

its post-hearing brief that it has demonstrated at least 15 examples of interchange, I find

this evidence does not constitute substantial interchange over a nearly three year period

of time. In Cargill, Inc., 336 NLRB 1114 (2001), the Board found that 13 to 14 examples

of interchange in a bargaining unit of 27 people over an eight-month period was not

substantial interchange.

I further note that all of the interchange relied on by the Employer occurred in

2006 and 2007. There is no evidence of any employee interchange for purposes of

performing wind turbine technicians’ work in 2008.30 The Employer argues that the

incidents of interchange are significant because they were related to projects or

assignments. While the Board has found evidence of temporary transfers to be

30The one North Country technician, Collin Williams, who traveled to Western New York in 2008, worked on a lockout/tagout procedure for the Employer, which does not appear to be part of the regular duties of wind turbine technicians. I further note that Williams volunteered to travel to Western New York to participate in the policy revision. Evidence of interchange that is voluntary is accorded less weight than other instances of interchange. New Britain Transportation Company, 330 NLRB 397 (1999).

24

significant, I do not find that the examples relied on by the Employer constitute evidence

of interchange.31 Rather, the occurrences relied on by the Employer, namely Western

New York wind turbine technicians Fore’s and Mullholland’s services in connection with

the maintenance and storage of wind turbines, and North Country Keator’s work on the

setup of a new substation, appear to be associated solely with the start-up of the wind

farms in the North Country. As such, I do not find that these examples constitute

examples of temporary interchange. In General Instrument Corp., 262 NLRB 1178

(1982), in a decision adopted by the Board, the administrative law judge found that

evidence that employees who worked only temporarily at new facilities in order to make

sure that newly-installed machinery worked properly was not evidence of interchange.

Even assuming the incidents relied on by the Employer are evidence of temporary

interchange, the Board has declined to find the sporadic temporary transfer of employees

to be significant. In Mercy General Hospital, 344 NLRB 790 (2005), the Board found no

substantial interchange where there was no evidence of steady temporary interchange and

the record demonstrated that temporary transfers were the exception and not the norm.

Id. at 791-792. See also AVI Foodsystems, Inc., 328 NLRB 426 (1999) (no substantial

interchange in the absence of evidence that there was substantial employee interchange

on a regular basis).

The Employer argues that the lack of recent interchange is due to the fact that the

wind parks became operational in May 2008, and that it expects interchange to increase

as more wind parks become operational. I find this argument unpersuasive in light of the

record, which demonstrates that all evidence of interchange between the North Country

31 Novato Disposal Services, Inc., 330 NLRB 632, fn. 3 (2000) (evidence of temporary transfers is more significant in determining interchange than permanent transfers).

25

and Western New York locations, with one exception, related only to the start-up of wind

parks. I further note that the alleged interchange has ceased since the wind parks became

operational.

The Employer argues that it anticipates that it will temporarily transfer

technicians with certain skills to other sites to perform work, such as gear box

replacement, that is currently contracted out. I find this evidence is speculative. In this

regard, I note that the record demonstrates that the Employer plans to have a certain

number of technicians at various skill levels working at each location. While the

Employer anticipates that it will need to temporarily transfer technicians among locations

to perform certain duties and to set up new wind farms, it is also likely that the Employer

may have a sufficient number of skilled technicians at each location to perform the work

without the need to transfer employees between the North Country and Western New

York locations, which are 322 miles apart. Thus, I find that the evidence regarding

future interchange is speculative.32

Accordingly, I find this testimony fails to demonstrate substantial interchange

between the North Country and Western New York technicians. See, e.g., Textprint,

Incorporated, 253 NLRB 1101, fn. 5 (1981), in which the Board refused to rely on the

employer’s speculative testimony that it intended in the future to purchase a separate

facility in which to conduct its operations; Avis Rent-A-Car System, 280 NLRB 580

(1986)(the Board accords little weight to speculative testimony).

Thus, I find that the record fails to establish that there is substantial interchange

32 In attempting to establish interchange, the Employer relies on testimony that the Employer plans to increase its workforce from the present complement of 27 technicians to 75 to 100 technicians. Notwithstanding this contention, the Employer specifically stated that it was not seeking dismissal of the petition based on the premise that it is prematurely filed.

26

between the technicians located in the North Country and those located in Western New

York.

Local autonomy

I find, based upon the supervisory authority exercised by the plant leaders, that

the North Country facilities operate autonomously. Contrary to the Employer’s

assertions, the record demonstrates that plant leader Young, who is located at the North

Country Churubusco office, is a statutory supervisor who supervises the lead technicians

and wind turbine technicians located in the North Country.

Section 2(11) of the Act defines a statutory supervisor as any individual with the

authority to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward or

discipline other employees, or responsibly to direct them, or to adjust their grievances, or

effectively to recommend such action, if in connection with the foregoing the exercise of

such authority is not of a merely routine or clerical nature, but requires the use of

independent judgment. It is not necessary that the individual possess all of the specified

powers; rather, possession of any one is sufficient to confer supervisory status. Chicago

Metallic Corp., 273 NLRB 1677, 1689 (1985).

It is well settled that the possession of any one of the indicia of supervisory

authority specified in Section 2(11) of the Act is sufficient to confer supervisory status

upon an employee. See Opelika Foundry, 281 NLRB 897, 899 (1986); Arlington

Masonry Supply, 339 NLRB 817, 818 (2003); DST Industries, Inc., 310 NLRB 957, 958

(1993). In the instant case, I find that the record demonstrates that plant leader Young

has the authority to effectively recommend individuals for promotion.

27

The record demonstrates that plant leader Young recommended that former wind

turbine technicians Pedriani and Silver be promoted to the position of lead technician,

and that director of production McNeil has uniformly accepted these recommendations.

According to McNeil, when either North Country plant leader Young or Western New

York plant leader Knab make a recommendation to promote an individual to lead

technician, he is comfortable with the capabilities of the employees, based on those

recommendations.

The Board has found that the power to effectively recommend action is sufficient

to confer supervisory status, where such recommendation is made utilizing independent

judgment. The Board has found that to exercise “independent judgment,” a person must

at a minimum act, or effectively recommend action, “free of the control of others,” and

“form an opinion or evaluation by discerning and comparing data.” PPG Aerospace

Industries, Inc., 353 NLRB No. 23 (September 30, 2008). The judgment must have a

“degree of discretion that rises above the ‘routine or clerical.’” Oakwood Healthcare, 348

NLRB 686, 691 (2006).

I find that plant leader Young exercises independent judgment in effectively

recommending technicians for promotion. In so finding, I note that the instant case

differs from situations in which purported supervisors report to management on the skills

and capabilities of employees who then may or may not be promoted. Rather, the record

herein demonstrates that Young recommends individuals for promotion based on his own

evaluation of their qualifications, and McNeil has uniformly relied on Young’s

recommendations in promoting wind turbine technicians to lead technicians. Thus, I find

that Young exercises the requisite independent judgment in recommending promotions.

28

In addition to effectively recommending employees for promotion, plant leader

Young has recommended that six or seven technicians receive pay increases for

expedited learning, and director of production McNeil accepted all but one of those

recommendations. I find that Young exercises supervisory indicia based on his authority

to effectively recommend individuals for pay increases. See, e.g. Pillsbury Chemical Co.,

317 NLRB 261, fn. 1 (1995)(supervisory status established by evidence that individual

had the power to effectively recommend pay increases). The Board has found

recommendations to be effective even where the recommendations are not uniformly

followed. Venture Industries, 327 NLRB 918, 919 (1999) (finding supervisory authority

to discipline where employer followed such recommendations 75 percent time). See also

Progressive Transportation Services, 340 NLRB 1044, 1047 (2003); Detroit College of

Business, 296 NLRB 318, 319 (1989).

I find that the record demonstrates that plant leader Young effectively

recommends the hiring of employees, based on his participation in the hiring process.

Director of production McNeil testified that Young can select candidates for interviews,

that he participates in the interview of all technicians hired in the North Country, and that

hiring decisions are made by McNeil, corporate human resources personnel and Young.

The Board has found that joint participation in the hiring process does not negate the

authority to effectively recommend, nor does it indicate a lack of independent judgment

in exercising such authority. See Engineered Steel Concepts, Inc., 352 NLRB No. 73,

slip op. at 14 (May 30, 2008); Detroit College of Business, 296 NLRB at 318-319 (Board

found that an employee could participate in a “joint decision” to hire, and still be

considered to be exercising hiring authority); Queen Mary, 317 NLRB 1303, 1303 fn. 4,

29

1311 (1995) (the involvement of the supervisor in charge of the power plant in the hiring

process did not impact the finding that the chief engineer effectively recommended

hiring). In concluding that Young effectively recommends candidates for hire, I find

compelling director of production McNeil’s testimony that plant leaders participate in

hiring decisions, as opposed to lead technicians, who merely participate in the interview

process.

While the record contains insufficient evidence to make a determination whether

plant leader Young exercises other supervisory indicia, I find, as further indication of the

autonomy of the North Country operations, that plant leader Young plays a substantial

role in discipline. Young has verbally reprimanded employees, recommended and

administered discipline to a technician, and effectively recommended the termination of a

technician.

Plant leader Young also plays a substantial role in assigning work to the lead

technicians and technicians. Young meets with the lead technicians at the end of each

workday, and makes the “ultimate decision” regarding assignments. Further, Young

approves the time sheets for the North Country technicians and lead technicians, grants

time off requests, prepares and gives technicians and lead technicians performance

appraisals, and temporarily changed the summer hours for the lead technicians and

technicians in the North Country. Further, Young is held accountable for the job

performance of the lead technicians and wind turbine technicians, for incorrect repair

work, or for any job injuries employees may suffer.

Secondary indicia further bolster the evidence that Young exercises substantial

oversight of the North Country employees. In this regard, Young is a salaried employee

30

who does not perform the same work as the other petitioned-for employees. He has an

office, wears street clothes, and is the highest-ranking individual in the Churubusco office

approximately 80 percent of the time.

Thus, I find that the record demonstrates that Young is a statutory supervisor

based on his ability to effectively recommend employees for promotion, reward (through

pay increases) and for employment. Even assuming arguendo that he is not a supervisor

within the meaning of Section 2(11) of the Act, I find, as noted by the Employer, that

Young does engage in supervisor-like functions.33 The record demonstrates that Young

is responsible for the day-to-day operation of the North Country wind parks. The Board

has found that where the evidence shows that there is an individual in charge of the

immediate day-to-day supervision of employees at the site, such day-to-day site-specific

supervision shows significant local autonomy even in the absence of supervisory status.

First Security Services Corp., 329 NLRB 235, 237 (1999), citing Esco Corp., 298 NLRB

837 (1990) (finding significant local autonomy even though the employee overseeing

day-to-day operations was not a statutory supervisor).

Although the evidence demonstrates that the human resource functions are highly

centralized and that the wind turbine technicians share similar benefits, skills, tools, and

working conditions, I find that these factors are outweighed by the lack of contact and

interchange between the North Country and Western New York technicians, the

substantial local autonomy enjoyed by the North Country technicians, as well as the

geographic distance of over 300 miles between the Churubusco and Arcade offices and

the lack of any bargaining history. See Cargill, Inc., 336 NLRB 1114 (2001) (separate

33 According to the Employer, plant leaders “do engage in supervisor functions and they may come close to the law in terms of what the Board considers a statutory supervisor.”

31

local autonomy, geographic separation, and the lack of substantial interchange

outweighed common terms and conditions of employment, common support staff,

division-wide policies, and a single profit center); Kroger Limited Partnership, 348

NLRB No. 82 (September 30, 2006)(similarity of employee skills and working

conditions, centralized personnel and labor relations policies, and limited functional

integration among the seven facilities, is outweighed by significant local autonomy, lack

of substantial interchange or functional integration; geographic separation, and absence

of bargaining history).

I find the facts in the instant case to be similar to those relied on by the Board in

Oklahoma Blood Institute, 265 NLRB 1524 (1982). In that case, the Board found,

contrary to the acting regional director, that the appropriate unit did not include all of the

employer’s facilities, notwithstanding evidence of product integration among all five

facilities. In reversing the decision of the acting regional director, the Board noted:

Although employees at all facilities share common wages, benefits, and training, the record shows that actual daily interaction between employees of either Enid or Lawton and employees of the Oklahoma City area facilities is minimal. Permanent transfers between Enid or Lawton and the Oklahoma City area facilities are very rare, averaging only one a year. Temporary interfacility transfers are more frequent, but the limited record evidence indicates that they do not occur on a daily, or even a weekly, basis, but more often than not only monthly. As mentioned above, Enid and Lawton each has its own director exercising considerable autonomy over daily operations. In addition, there is a substantial distance between the Enid and Lawton facilities (170 miles) and between either facility and Oklahoma City (85 miles). Acknowledging the significance of common working conditions and product integration among all five facilities, the factors of permanent interchange, autonomous local supervision, and geographic separation weigh heavily against finding that the Enid and Lawton employees must be included in a unit with employees at the other locations. Accordingly, we conclude that the record does not support the Acting Regional Director's finding that a unit consisting of all five of the Employer's facilities is the only appropriate unit.

32

Id. at 1525.

Like the Board in Oklahoma Blood Institute, I am unable to conclude, based on

the substantial local autonomy of the North Country operations, the very limited contact

and/or interchange between the North Country and Western New York employees, and

the geographic separation of the North Country and Western New York wind farms, that

the only appropriate unit must include the lead technicians and technicians from Western

New York. Rather, the record demonstrates that the Western New York lead technicians

and wind turbine technicians do not share such a community of interest with the North

Country employees as to mandate their inclusion in an appropriate bargaining unit.

In considering the Employer’s contention that only a system-wide unit is

appropriate, I note that the Employer is not a public utility within the meaning of Board

law, and thus no presumption for a system-wide unit applies. I do note, however, that

even in cases involving public utilities, the Board has found less than system-wide units

appropriate where there is no opposing bargaining history, the proposed unit constitutes a

well-defined administrative segment of the company's organization, and the unit can be

established without undue disturbance to the company's ability to perform its necessary

functions. PECO Energy Co., 322 NLRB 1074, 1079 (1997), citing Baltimore Gas &

Electric, 206 NLRB 199, 201 (1973). See also Tidewater Telephone Co., 181 NLRB 867

(1970) (the Board found less than multi-departmental units appropriate, particularly

where no other labor organization sought to represent a more comprehensive unit).

The Employer relies on Bashas, Inc., 337 NLRB 710 (2002), in support of its

position that only a system-wide unit is appropriate. In reversing the decision of the

33

regional director in Bashas, the Board noted that the petition in that case sought a unit of

stores that were arbitrarily grouped:

The unit does not conform to any administrative function or grouping. The stores share no common supervision. There is no substantial functional integration or significant interchange among the 17 stores. And the stores are not a geographically coherent group in light of the exclusion of the nearby Casa Grande store.

Id. at 712.

Unlike the petitioned-for unit at issue in Bashas, the record herein demonstrates that the

Employer’s North Country wind farms constitute a well-defined administrative and

geographic segment of the Employer’s operation, based on evidence that all of the North

Country technicians report to the Churubuso office and all are supervised by plant leader

Kip Young. Moreover, there is substantial interchange and contact among all of the

North Country technicians, while there is minimal interchange or contact between the

North Country technicians and technicians employed in Western New York.

Further, the petitioned-for unit encompasses a well-defined geographic area

including all wind farms in Northern New York. Unlike in Bashas, there is no wind farm

facility nearby that is arbitrarily excluded from the unit. Finally, there is no evidence that

collective bargaining in the smaller unit will hinder the Employer’s operations. See, e.g.,

Deposit Telephone Company, Inc., 328 NLRB 1029, fn. 3 (1999), citing Baltimore Gas

& Electric, 206 NLRB at 201 (“smaller than systemwide units are appropriate where the

Board determines that they are a ‘feasible undertaking’”).

The Employer also relies on Macy’s West, Inc., 327 NLRB 1222 (1999), where

the Board found the petitioned-for unit inappropriate. However, in that case, the Board

relied heavily on the absence of any distinct supervision between the employees of the

34

various stores, as well as evidence of substantial and regular interchange, which is

missing from the instant case. The Employer relies on Aleyska Pipeline Service Co., 348

NLRB No. 44 (September 29, 2006), where the Board found a single-unit facility to be

inappropriate notwithstanding long distances between the facilities. However, in

Aleyska, the Board applied the public-utility presumption, a presumption not applicable

in the instant case, based on the fact that the employer was the sole source of supply for

public utilities, and a work stoppage in one location could disrupt the provision of

essential services. In the instant case, the public utility presumption does not apply, as

the record contains no evidence that a work stoppage in the North Country would disrupt

the provision of electricity, which is available through other sources. In Verizon

Wireless, 341 NLRB 483 (2004), the Board found that the public-utility presumption

favoring system-wide units did not apply, and accordingly found the petitioned-for unit to

be appropriate, noting “the minimal risk of harm to the public does not justify the

restrictions on employees' rights to organize imposed by the systemwide presumption.”

Id. at 485.

Based on the record, I find that the Employer has failed to present sufficient

evidence demonstrating that a unit consisting of employees who work at the Employer’s

North Country wind farms is an inappropriate unit for purposes of collective bargaining.

Rather, the record demonstrates that the Employer’s North Country operation constitutes

a distinct geographic and administrative unit and is an appropriate unit for purposes of

collective bargaining.

35

Supervisory Status of the Lead Technicians

As noted above herein, Section 2(11) of the Act defines a statutory supervisor as

any individual with the authority to hire, transfer, suspend, lay off, recall, promote,

discharge, assign, reward or discipline other employees, or responsibly to direct them, or

to adjust their grievances, or effectively to recommend such action, if in connection with

the foregoing the exercise of such authority is not of a merely routine or clerical nature,

but requires the use of independent judgment. It is not necessary that the individual

possess all of the specified powers; rather, possession of any one is sufficient to confer

supervisory status. Chicago Metallic Corp., 273 NLRB 1677, 1689 (1985).

The party that asserts an individual has supervisory authority has the burden of

proof. Dean & Deluca New York, Inc., 338 NLRB 1046 (2003); NLRB v. Kentucky

River Community Care, Inc., 532 U.S. 706, 713 (2001). Purely conclusory evidence is

not sufficient to establish supervisory status; rather, the party must present evidence that

the employee actually possesses the Section 2(11) authority at issue. Golden Crest

Healthcare Center, 348 NLRB No. 39 (September 29, 2006). A “paper showing” or

testimony merely asserting generally that individuals exercised certain supervisory duties

is not sufficient to meet the burden of proof. Rather, the testimony must include specific

details or circumstances demonstrating the existence of supervisory authority. Avante at

Wilson, Inc., 348 NLRB No. 71 (October 31, 2006).

Individuals are statutory supervisors if they hold the authority to engage in any

one of the twelve supervisory functions (e.g. assign or responsibly direct); their exercise

of such authority is not of a merely routine or clerical nature but requires the use of

independent judgment; and their authority is in the interest of the employer. NLRB v.

36

Kentucky River Community Care, Inc., 532 U.S. 706, 713 (2001). In Oakwood

Healthcare, 348 NLRB No. 37 (September 29, 2006), the Board clarified the criteria for

finding that a purported supervisor “assigns” and “responsibly directs” the work of

others, and uses “independent judgment” in doing so. The Board held that the authority

to assign refers to “the act of designating an employee to a place (such as a location,

department, or wing), appointing an employee to a time (such as a shift or overtime

period), or giving significant overall duties, i.e., tasks, to an employee. Id., slip op. at 4.

The Board further noted that for direction to be responsible, the person

performing the oversight must be held accountable for the actions of others. “Thus, to

establish accountability for purposes of responsible direction, it must be shown that the

employer delegated to the putative supervisor the authority to direct the work and the

authority to take corrective action, if necessary. . . . and a prospect of adverse

consequences for the putative supervisor if he/she does not take these steps.” Id., slip op.

at 7.

Finally, the Board stated that in order to exercise independent judgment, the

direction “must be independent [free of the control of others], it must involve a judgment

[forming an opinion or evaluation by discerning and comparing data], and the judgment

must involve a degree of discretion that rises above the ‘routine or clerical.’” Id., slip op.

at 8.

The Petitioner asserts that the lead technicians possess all 12 indicia of

supervisory authority. As an initial matter, I note that the Petitioner proffered no

evidence regarding the authority of lead technicians to transfer, suspend, lay off, recall,

promote, discharge, or reward wind turbine technicians. Thus, the issues before me are

37

whether the lead technicians have the supervisory authority to hire, assign and

responsibly direct, discipline, or adjust the grievances of the wind turbine technicians. I

find that the Petitioner has failed to meet its burden in demonstrating that the lead

technicians possess any of the supervisory indicia as set forth in Section 2(11) of the Act.

With respect to hiring, the Petitioner argues that lead technicians make effective

recommendations regarding hiring as evidenced by their participation in job interviews.

The record exhibits that lead technicians and sometimes technicians participate in job

interviews. McNeil testified that the role of the lead technicians and technicians in the

interviews is to introduce the applicant to the Employer, show the applicant how they do

business, and see whether the applicant will fit in. While lead technicians can make

recommendations regarding the hiring of an applicant, the record contains no evidence as

to the percentage of time that the Employer relies on those recommendations in making

its hiring decisions, and it is clear that lead technicians do not make hiring decisions.

The Board has found that the power to effectively recommend means that the

recommended action is taken without an independent investigation of the relevant

circumstances by superiors. Children’s Farm Home, 324 NLRB 61 (1997). In the

absence of concrete evidence that the Employer relies on the recommendation of the lead

technicians, without further review, when making hiring decisions, I do not conclude that

the lead technicians make recommendations during these interviews that dictate the

hiring of applicants. See, e.g., Alstyle Apparel, 351 NLRB No. 92, slip op. at 17

(December 28, 2007) (the testimony relied upon must include specific details or

particularized circumstances demonstrating the existence of supervisory authority).

38

A person exercises independent judgment in recommending employees for hire if

the person assesses the applicants’ experience, ability, attitude and character references.

Oakwood Healthcare, Inc., 348 NLRB 686, 693 (2006). Hiring recommendations based

upon a putative supervisor’s own assessment of the candidate’s necessary skills, or

qualifications for a position involves the use of independent judgment. Fred Meyer

Alaska, Inc., 334 NLRB 646 (2001). Recommendations made by employees regarding

the hiring of people they will be working with for the purposes of ensuring a harmonious

working relationship are principally in the self-interest of the employee, and do not

confer supervisory status. The Tiberti Fence Company, 326 NLRB 1043 (1998), citing

Willis Shaw Frozen Food Express, 173 NLRB 487, 488 (1968).

Concerning the one instance in the record in which lead technicians interviewed a

job applicant, the record demonstrates that wind turbine technician Stanzione was

interviewed by lead technicians Pedriani and Silver, who told him that he met the criteria,

and that they would make a recommendation to plant leader Young. I note, however, that

based on the evidence in the record, it cannot be determined whether the role of the lead

technicians in meeting with Stanzione was to assess his qualifications and skills and

make a recommendation to upper management, or to give Stanzione an introduction to

the Employer’s operations to determine whether he would fit into the organization.34 The

record demonstrates that Stanzione applied for employment multiple times over a two-

year period, and the record contains no evidence as to the impetus behind the Employer’s

decision to contact Stanzione for an interview. I further note the lack of any evidence as

to whether Stanzione had spoken to anyone other than the lead technicians about

34 The latter possibility is consistent with director of production McNeil’s testimony that the role of lead technicians and technicians in interviews is to show the applicant around the operation, and to determine whether the applicant would fit in.

39

employment during that two-year period. Thus, I am unable to conclude, based on the

record evidence, that the lead technicians effectively recommended Stanzione for hire.35

The Petitioner also asserts that the lead technicians are supervisors because they

assign work to the wind turbine technicians. I find that the evidence fails to demonstrate

that the lead technicians exercise independent judgment in doing so.

The Board has held that an assignment is not made with independent judgment if

it involves one obvious and self-evident choice, or if it is based on equalizing workloads

or seniority, thereby making it routine or clerical in nature. Oakwood, 348 NLRB No.

37, at 693-694, 696-698; Golden Crest, 348 NLRB 727, 729-730 n. 9; Loyalhanna Care

Center, 352 NLRB No. 105, slip op. at 7 (June 30, 2008). An employee engages in

independent judgment in assignments when discretion in assigning specific jobs is not

limited or circumscribed by the employer. Mays Electric Co., 343 NLRB 121, 124

(2004). Assigning work to employees on the basis of their known job or craft skills does

not require the use of independent judgment. Shaw, Inc., 350 NLRB no. 37, fn.13

(2007); Volair Contractors, Inc., 341 NLRB 673, 675 fn. 10 (2004).

The undisputed evidence in the record regarding assignments reflects that the

North Country wind turbine technicians are sent out in teams of two each day to perform

routine maintenance, troubleshooting and IIP inspections, and that plant leader Young is

ultimately responsible for deciding which technicians will perform each duty. While

North Country lead technicians Pedriani and Silver fill in assignments for the North

Country wind turbine technicians on a board located in the Churubusco main trailer, the

35 Even assuming arguendo that the lead technicians effectively recommended Stanzione for hire, the record demonstrates that this is the only occasion where lead technicians interviewed an applicant without a member of higher management present. This single instance does not render them supervisors within the meaning of the Act. See, e.g., Chicago Metallic Corp., 273 NLRB 1677, 1689 (1985) (the sporadic exercise of supervisory authority does not render an individual a statutory supervisor).

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record contains no evidence regarding how or if lead technicians make decisions

regarding assignments.36 In this regard, I note that although wind turbine technician

Kibbe testified that the lead technicians rely on experience and compatibility, the record

is silent as to how lead technicians make decisions regarding assigning work tasks to

equally-skilled technicians.

I find that the Petitioner has failed to present evidence demonstrating that the lead

technicians exercise independent judgment in assigning technicians to perform work.

The record demonstrates that technician teams are rotated periodically, and that the work

performed by the wind turbine technicians performing maintenance is predominantly

routine and dictated by the General Electric service manual. The Board has stated that

the assignment of routine tasks that require little supervision does not establish the

exercise of independent judgment. Millard Refrigerated Services, Inc., 326 NLRB 1437,

1438 (1998).

To the extent that the lead technicians may give troubleshooting assignments to

the technicians, the record contains insufficient evidence that they exercise independent

judgment in doing so. In this regard, I note that the record contains evidence that

troubleshooting tasks are assigned to one of the eight technicians trained to perform

troubleshooting duties, and to another technician not trained in troubleshooting. Thus, it

appears that troubleshooting teams are created based on the relative skill of the

technicians available to perform the task. Such assignment does not constitute the use of

independent judgment. See, e.g., Shaw, Inc., 350 NLRB 354, 356 n.13 (assigning work

to employees on the basis of their known job or craft skills does not require the use of

36 The record does not disclose whether the lead technicians actually make decisions regarding assignments, or whether they merely fill in assignments on the board that are made and/or approved by plant leader Young.

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independent judgment). The record contains no evidence as to how lead technicians

assign wind turbine technicians to perform IIP inspections.

Even assuming arguendo that the lead technicians form teams of technicians to

perform maintenance and troubleshooting duties based on the known skill levels of the

technicians and their ability to work together, I find this evidence insufficient to establish

that the lead technicians are Section 2(11) supervisors. In Armstrong Machine Company,

Inc., 343 NLRB 1149 (2004), the Board considered whether a lead foreman was a

statutory supervisor where he made assignments to production employees from a priority

list of work to be completed, based on the skill and experience of the individual

employees with respect to a particular task, and their ability to work together. As noted

by the Board, “such evidence, without more, does not establish that the assignments were

anything other than routine.” Id. at 1155, citing Williamette Industries, Inc., 336 NLRB

743, 744 (2001); Chrome Deposit Corp., 323 NLRB 961, 963-964 (1997). The Board

further noted that considering employee compatibility when assigning work does not

demonstrate the exercise of independent judgment as envisioned by Section 2(11) of the

Act. See, e.g., Brown & Root, Inc., 314 NLRB 19, 21 (1994).

Finally, I note that, as the party asserting that the lead technicians are Section

2(11) supervisors, the burden is on the Petitioner to present evidence that they exercise

independent judgment in assigning work to the wind turbine technicians.37 Because the

Petitioner has failed to do so, I am unable to find that the lead technicians are supervisors

37 The Petitioner argues in its post-hearing brief that the Board refused to enforce its subpoenas of the lead technicians. I note that the record reflects that the Petitioner never sought enforcement of its subpoenas. Rather, the record demonstrates that the hearing officer advised the Petitioner that it had the burden of establishing supervisory status, and asked if the Petitioner intended to call any of the disputed individuals to testify. Petitioner responded, “We’re satisfied with the record as it exists now.” (Tr. 504). Thus, I give no credence to Petitioner’s contention that it did not have the opportunity to sustain its burden with respect to the lead technicians.

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based on the assignment of work. See PPG Aerospace Industries, Inc., 353 NLRB No.

23, slip op. at 2 (September 28, 2008) (the Board declined to find leads 2(11) supervisors,

and noted that the union, as the party alleging supervisory status, did not establish that the

leads use independent judgment when they change or prioritize work assignments).

Regarding the authority of the lead technicians to assign overtime, the record

demonstrates that wind turbine technicians can work overtime without prior approval in

order to complete a task in progress, and that weekend overtime is voluntary and is

scheduled by rotation. The record contains no evidence that lead technicians can

mandate technicians to work overtime. A party seeking to establish supervisory authority

must show that the putative supervisor has the ability to require that a certain action be

taken, rather than the authority merely to request that a certain action be taken. Golden

Crest, 348 NLRB at 729, citing Heritage Hall, E.P.I. Corp., 333 NLRB 458, 459 (2001).

Finally, to the extent that the Petitioner argues that the lead technicians are

supervisors based on e-mails instructing the technicians to report back on tools, to attend

a meeting, and lead technician Pedriani’s directive advising technicians that they could

not hang around the office, the record demonstrates that the lead technicians were merely

following the instructions of higher management. Employees acting as conduits of

higher management are not exercising supervisory authority when doing so. Hausner-

Hard-Chrome of KY, Inc., 326 NLRB 426 (1998). See also Fleming Companies, Inc.,

330 NLRB 277 (1999); Chicago Metallic Corp., 273 NLRB 1677, 1693 (1985).

Thus, I find that the record fails to demonstrate that the lead technicians assign

work utilizing independent judgment within the meaning of Section 2(11) of the Act.

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The Petitioner also asserts that the lead technicians are statutory supervisors

because they responsibly direct the work of the wind turbine technicians. Although the

Petitioner asserts that the lead technicians can direct the technicians to perform certain

tasks, the record contains no detailed examples of the lead technicians having done so.

Purely conclusory evidence without specific detailed examples is not sufficient, and lack

of evidence is construed against the party asserting it. Avante at Wilson, Inc., 348 NLRB

1056, 1057 (2006); Williamette Industries, Inc., 336 NLRB 743 (2001).

Even assuming that the record contained evidence that the lead technicians direct

the work of the technicians, I find that the record contains no evidence that the lead

technicians responsibly direct the work of the wind turbine technicians. The Board has

held that for direction to be responsible, the person performing the oversight must be held

accountable for the performance of the task by the other, through the prospect of

discipline. Oakwood Healthcare, 348 NLRB at 694; Talmadge, 352 NLRB No. 90 (June

26, 2008), slip op. at 2.

To establish accountability, it must be shown that “the employer delegated to the

putative supervisor the authority to direct the work and the authority to take corrective

action, if necessary . . . [and] that there is a prospect of adverse consequences for the

putative supervisor if he/she does not take these steps.” Oakwood, 348 NLRB at 695.

There must be evidence of actual accountability (actual or prospective consequences)

showing that the putative supervisor experienced material consequences to terms and

conditions of employment as a result of directing other employees, or that the putative

supervisor was informed of such material consequences. Golden Crest Healthcare

Center, 348 NLRB 727, 731 (2006).

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The record in the instant case contains no evidence that the lead technicians have

the authority to direct the work of the technicians, or to take corrective action if

necessary. To that end, the record contains no evidence that the lead technicians have the

authority to discipline technicians; nor does the record demonstrate that the lead

technicians can affect the technicians’ terms and conditions of employment through

performance evaluations. Further, the record reveals no evidence that the lead

technicians are held accountable for the performance of the technicians. Cf. Croft

Metals, 348 NLRB No. 39, slip op. at 2-3, 6 (finding that lead persons responsibly

directed the work of their crew members based on instances where the lead persons were

disciplined for the poor performance of their crew members). In the instant case, the lack

of any evidence of accountability in the record militates against a finding of supervisory

status. Michigan Masonic Home, 332 NLRB 1409 (2000) (lack of evidence is construed

against the party seeking supervisory status).

The Petitioner also asserts that the lead technicians are supervisors based on their

ability to discipline the technicians. I find that the record fails to demonstrate that the

lead technicians have the authority to, or that they have ever issued, discipline to

employees. The evidence shows that on one occasion, a lead technician had an extended

conversation with a wind turbine technician about his attitude. However, the record

demonstrates that the lead technician did not tell the technician that the conversation

constituted discipline, and there is no evidence that this conversation was documented,

that it constituted discipline, or that it could lead to discipline. I also note that the record

contains no evidence that this conversation had any impact on the technician’s terms and

conditions of employment. See, e.g., Azusa Ranch Market, 321 NLRB 811 (1996)(lack

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of evidence that warning issued by putative supervisor had any impact on employee’s

terms and conditions of employment militated against finding of supervisory status).

The record contains no other asserted examples of discipline.38 Further, the

record contains no evidence that the lead technicians were advised by the Employer that

they have the authority to discipline, and director of production McNeil testified that the

lead technicians do not have the authority to issue discipline. Lead technicians have not

recommended discipline of any wind turbine technician.

Finally, I find no evidence that the lead technicians have the authority to adjust

grievances. Although the Petitioner asserts that the technicians take work-related issues

to the lead technicians, the record contains no instances in which a wind turbine

technician has resolved a work-related issue.

Although not dispositive, I note that, like the wind turbine technicians, lead

technicians are hourly employees, have the same dress code requirements and are eligible

to participate in the uniform benefit, share the same employee benefits, and spend from

20 to 50 percent of their time performing the same work as the technicians. I further note

that the record contains no evidence that the lead technicians have a separate job

description. The absence of any secondary indicia of supervisory status is further support

for my finding that the lead technicians are not statutory supervisors. See New York

University Medical Center, 324 NLRB 887, 907 (1997) (the Board looks to well-

established secondary indicia, such as the individual's job title and whether the individual

possesses a status separate and apart from that of rank-and-file employees, in determining

38 Even assuming arguendo that this single incident constituted discipline, it is well established that “isolated and infrequent incidents of supervision do not elevate a rank-and-file employee to supervisory level.” Bay Area-Los Angeles Express, Inc., 275 NLRB 1063 (1985). See also Byers Engineering Corp., 324 NLRB 740, 741, citing Bowne of Houston, 280 NLRB 1222, 1223 (1986).

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supervisory status). NLRB v. Chicago Metallic Corp., 794 F.2d 527, 531 (9th Cir. 1986);

Monarch Federal Savings & Loan, 237 NLRB 844 (1978).

Thus, I find that the Petitioner has not met its burden of demonstrating that the

lead technicians are supervisors within the meaning of Section 2(11) of the Act.

Accordingly, I shall include the lead technicians in the bargaining unit found appropriate

herein.

CONCLUSION

I find that 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 lead technicians and wind turbine technicians employed by the Employer at its Churubusco, New York office, excluding plant leaders, monitoring technicians, inventory technicians, administrative assistants, guards, and all professional employees and supervisors as defined in the Act.

There are approximately 19 employees in the bargaining unit found appropriate.

DIRECTION OF ELECTION

The National Labor Relations Board will conduct a secret ballot election among

the employees in the unit found appropriate above. The employees will vote whether or

not they wish to be represented for purposes of collective bargaining by International

Brotherhood of Electrical Workers, Local 1249, AFL-CIO. The date, time, and place

of the election will be specified in the notice of election.

A. Voting Eligibility

Eligible to vote in the election are those in the unit who were employed during the

payroll period ending immediately before the date of this Decision, including employees

who did not work during that period because they were ill, on vacation, or temporarily

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laid off. Employees engaged in any economic strike, who have retained their status as

strikers and who have not been permanently replaced are also eligible to vote. In

addition, in an economic strike which commenced less than 12 months before the election

date, employees engaged in such strike who have retained their status as strikers but who

have been permanently replaced, as well as their replacements are eligible to vote. Unit

employees in the military services of the United States may vote if they appear in person

at the polls.

Ineligible to vote are (1) employees who have quit or been discharged for cause

since the designated payroll period; (2) striking employees who have been discharged for

cause since the strike began and who have not been rehired or reinstated before the

election date; and (3) employees who are engaged in an economic strike that began more

than 12 months before the election date and who have been permanently replaced.

B. Employer to Submit List of Eligible Voters

To ensure that all eligible voters may have the opportunity to be informed of the

issues in the exercise of their statutory right to vote, all parties to the election should have

access to a list of voters and their addresses, which may be used to communicate with

them. Excelsior Underwear, Inc., 156 NLRB 1236 (1966); NLRB v. Wyman-Gordon

Company, 394 U.S. 759 (1969).

Accordingly, it is hereby directed that within 7 days of the date of this Decision,

the Employer must submit to the Regional Office an election eligibility list, containing

the full names and addresses of all the eligible voters. North Macon Health Care Facility,

315 NLRB 359, 361 (1994). The list must be of sufficiently large type to be clearly

legible. To speed both preliminary checking and the voting process, the names on the list

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should be alphabetized (overall or by department, etc.). This list may initially be used by

me to assist in determining an adequate showing of interest. I shall, in turn, make the list

available to all parties to the election.

To be timely filed, the list must be received in the Regional Office on or before

November 26, 2008. No extension of time to file this list will be granted except in

extraordinary circumstances, nor will the filing of a request for review affect the

requirement to file this list. Failure to comply with this requirement will be grounds for

setting aside the election whenever proper objections are filed. The list may be submitted

to the Regional Office by electronic filing through the Agency’s website

www.nlrb.gov,39 by mail, by hand or courier delivery, or by facsimile transmission at

(716) 551-4972. The burden of establishing the timely filing and receipt of the list will

continue to be placed on the sending party.

Since the list will be made available to all parties to the election, please furnish a

total of three copies of the list, unless the list is submitted by facsimile or e-mail, in

which case no copies need be submitted. If you have any questions, please contact the

Regional Office.

C. Notice of Posting Obligations

According to Section 103.20 of the Board’s Rules and Regulations, the Employer

must post the Notices to Election provided by the Board in areas conspicuous to potential

39 To file the eligibility list electronically, go to www.nlrb.gov and select the E-Gov tab. Then click on the E-Filing link on the menu. When the E-File page opens, go to the heading Regional, Subregional and Resident Offices and click on the “File Documents” button under that heading. A page then appears describing the E-Filing terms. At the bottom of this page, check the box next to the statement indicating that the user has read and accepts the E-Filing terms and click the “Accept” button. Then complete the filing form with information such as the case name and number, attach the document containing the eligibility list, and click the Submit Form button. Guidance for E-filing is contained in the attachment supplied with the Regional Office's initial correspondence on this matter and is also located under "E-Gov" on the Board’s web site, www.nlrb.gov.

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voters for at least 3 working days prior to 12:01 a.m. of the day of the election. Failure to

follow the posting requirement may result in additional litigation if proper objections to

the election are filed. Section 103.20(c) requires an employer to notify the Board at least

5 full working days prior to 12:01 a.m. of the day of the election if it has not received

copies of the election notice. Club Demonstration Services, 317 NLRB 349 (1995).

Failure to do so estops employers from filing objections based on non-posting of the

election notice.

RIGHT TO REQUEST REVIEW

Under the provisions of Section 102.67 of the Board's Rules and Regulations, a

request for review of this Decision may be filed with the National Labor Relations Board,

addressed to the Executive Secretary, 1099 14th Street, N.W., Washington, DC 20570-

0001. This request must be received by the Board in Washington, DC by 5 p.m. EDT

December 3, 2008. The request may be filed electronically through the Agency’s web

site, www.nlrb.gov,40 but may not be filed by facsimile.

40 To file the request for review electronically, go to www.nlrb.gov and select the E-Gov tab. Then click on the E-Filing link on the menu. When the E-File page opens, go to the heading Board/Office of the Executive Secretary and click on the “File Documents” button under that heading. A page then appears describing the E-Filing terms. At the bottom of this page, check the box next to the statement indicating that the user has read and accepts the E-Filing terms and click the “Accept” button. Then complete the filing form with information such as the case name and number, attach the document containing the request for review, and click the Submit Form button. Guidance for E-filing is contained in the attachment supplied with the Regional Office's initial correspondence on this matter and is also located under "E-Gov" on the Board’s web site, www.nlrb.gov.

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DATED at Buffalo, New York this 19th day of November, 2008.

______________________________HELEN E. MARSHRegional DirectorNational Labor Relations Board, Region 3Niagara Center Building – Suite 630130 S. Elmwood AvenueBuffalo, NY 14202