Bosart Co.

National Labor Relations Board - Board Decisions

Jul 8, 1994

314 N.L.R.B. 245 (N.L.R.B. 1994)

245
314 NLRB No. 45
BOSART CO.
1 The pertinent part of the hearing officer’s report is attached as
an appendix to this decision.
2 The Employer has excepted to some of the hearing officer’s
credibility findings. The Board’s established policy is not to overrule
a hearing officer’s credibility resolutions unless a clear preponder-
ance of all relevant evidence convinces us that they are incorrect.
Stretch-Tex Co., 118 NLRB 1359, 1361 (1957). We have carefully
examined the record and find no basis for reversing the findings.
3 In the absence of exceptions, we adopt pro forma the hearing of-
ficer’s recommendation to overrule the Petitioner’s Objection 1 and
to approve the withdrawal of its Objections 2 and 4.
4 In our view, the problem in the instant case raised by the Peti-
tioner’s Objection 7 can be avoided in the future if the Board agent
conducting the election informs the parties that the use of a super-
visor as an observer may result in setting aside the election.
Member Cohen finds that the Union did not knowingly acquiesce
to the Employer’s use of a supervisor as an observer. Accordingly,
he does not pass on the issue of whether an election should be set
aside if a union knowingly acquiesces to the employer’s use of a su-
pervisor as an observer.
5 Although this objection specifically refers to more than one ob-
server, the record evidence indicates that the objection refers to the
status of one of the observers, Helen Bostick.
6 The Petitioner’s witnesses were all hired during 1989 and 1990.
7 There is no indication in the record about whether Bostick spent
any amount of time speaking to the foremen as she took Martin to
the departments.
8 Although Bostick initially referred to this position as processor,
she later referred to it as assistant and secretary.
Bosart Co. and United Food and Commercial
Workers Union, Local No. 1099, AFL–CIO.
Case 9–RC–15926
July 8, 1994
DECISION AND DIRECTION OF SECOND
ELECTION
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
The National Labor Relations Board, by a three-
member panel, has considered objections to an election
held September 18, 1991, and the hearing officer’s re-
port recommending disposition of them.1 The election
was conducted pursuant to a Stipulated Election
Agreement. The revised tally of ballots shows 72 for
and 75 against the Petitioner, with 3 challenged ballots
and 1 sustained challenge, an insufficient number to
affect the results.
The Board has reviewed the record in light of the
exceptions and briefs, has adopted the hearing officer’s
findings2 and recommendations,3 and finds that the
election must be set aside and a new election held.4
[Direction of Second Election omitted from publica-
tion.]
APPENDIX
HEARING OFFICER’S REPORT
Objection 7
In this objection, the Petitioner contends that the Employ-
er’s observers were supervisory or closely identified with the
Employer’s management.5 In support of this objection, the
Petitioner presented employees Linda Ray, Kathleen Rey-
nolds, Sharon Daniels, Joyce Martin, and petitioner rep-
resentatives, Paula Hall and James Dudley. Inasmuch as the
testimony of the employees, generally, regard similar inci-
dents, I shall summarize it, except in relevant or pertinent
part. The employees testified that in or around their dates of
hire,6 they placed employment applications with the Em-
ployer and were eventually telephoned by Helen Bostick, the
Employer’s human resource coordinator, for an interview, or
in the instance of Reynolds, was interviewed immediately
after submitting the application. Daniels indicates that her
employment interview resulted from calls initiated by her.
According to these witnesses, the interviews each lasted ap-
proximately 30 to 45 minutes and resulted in employment of-
fers being made by Bostick at the conclusion of three of the
interviews. Concerning Daniels, at the conclusion of the
interview, Bostick told her that her references would have to
be checked and that she would call her later. A few hours
later Bostick called and offered her employment. Two em-
ployees, Reynolds and Ray, testified that employment offers
were made by Bostick without her having contact with any
other individual before making the offer. Reynolds testified
that she, without contradiction, was introduced to a foreman,
but after the offer of employment had been made by Bostick.
Martin testified that Bostick introduced her to the foremen of
various departments before an employment offer was made
by Bostick and that Martin’s contact with the foremen was
limited to an introduction.7 Reynolds also testified that fore-
man, Cheryl Coey, had told her that Bostick was one of the
individuals who reviewed employee evaluations in deter-
mining whether employees are granted a wage increase.
The Petitioner’s representatives, Hall and Dudley, essen-
tially, testified that the Petitioner did not raise objection to
Bostick serving as an observer during the preelection con-
ference or between the two election sessions. However, both
Hall and Dudley testified, without contradiction, that the Pe-
titioner did not become aware of Bostick’s status until after
the election had concluded.
The Employer takes the position that Bostick is not a su-
pervisor as defined in the National Labor Relations Act (the
Act), and that in the alternative, in the event that she is
found to be a supervisor, the Petitioner’s objection to her
serving as an observer is untimely. The Employer did not
take a position concerning Bostick’s alleged alliance with
management. To support its position, the Employer presented
Bostick, Human Resource Manager Boulton, Warehouse Op-
erations Manager Douglas James, and Training Development
Manager Steve Bundy. Bostick testified that she was the
human resource coordinator and had held that position for
the past 6 years. She reports to Boulton and has one subordi-
nate, her secretary,8 Becky Burke. Regarding Bostick’s role
in the hiring process, Bostick testified that as a need arises
for a position to be filled, she is informed of this by the de-
partment manager of the department in which the need has
occurred. Bostick initially testified that Burke, who has pre-
viously filed the employment applications, screens those ap-
plications and schedules interviews. Bostick later conceded
that Burke performed this function according to Bostick’s in-
246 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 It should be remembered that Bostick had initially testified that
Burke screened the applications prior to the interviews, but later con-
ceded that this was done according to Bostick’s instructions.
10 Bostick claimed not to recall the color of the badge worn by
her secretary among the four colors assigned to the identification
badges of the Employer’s employees, but she miraculously recalled
that it was not the same color as her badge. The record also reveals
that not only do badge colors differentiate between salary and hourly
employees, but also another criteria that the Employer’s witnesses
who testified in this regard claim not to recall.
11 Although it has been suggested that this determination is routine
in nature and based on whether the applicant can meet the shift
schedule, the record evidence demonstrates that Bostick’s emphasis
of an applicant’s work record led to the hire of the applicant.
structions. Bostick related that she generally spends approxi-
mately one-half hour with each applicant and then takes the
applicant to the department manager, who ‘‘on occasion’’
conducts a second interview. However, moments later,
Bostick testified that during the 4 or 5 months prior to the
hearing, second interviews were ‘‘always’’ conducted by the
department manager, particularly for the warehouse. Bostick
claimed that she has no authority to offer employment to job
applicants and that she had never made the decision regard-
ing the hire of any applicant. Later during the hearing,
Bostick admitted that during 1989 there were some ‘‘on the
spot’’ hirings of some applicants but that she had no author-
ization to have done so. She averred that concerning the
warehouse employees, the warehouse manager has always
made the determination to hire any particular individual.
Bostick stated that during the 1991 calendar year (to the date
of the hearing), among 1700 applicants, her assistant, Burke,
has screened out approximately 1440 applicants9 and that
among the remainder who were interviewed approximately
136 were hired. Bostick also testified that only an approxi-
mate 20 applicants had been rejected by department man-
agers during 1991. Concerning the hire of Reynolds, Bostick
maintained that ‘‘someone’’ whom she did not recall at the
time of the hearing had told her of Reynold’s good work per-
formance as a temporary employee and that if she ever ap-
plied for employment she should be hired. Regarding Ray,
Bostic related that when she presented the warehouse man-
ager with Ray’s good and strong work history, he gave
Bostick prior authorization to hire her. Bostick did not recall
the details involving Martin’s hire, but contended that they
were similar to those involving Ray and Reynolds, as testi-
fied to by Bostick. Bostick denied exercising any independ-
ent judgment in her role in the hiring process, but conceded
that she determines what questions to ask the applicants dur-
ing the interviewing process and that she made the deter-
minations concerning which applicants best met the quali-
fications, needs, or requirements of the job. Boulton, in sum-
mation, testified that Bostick must consult with a department
manager before advising an applicant of his/her hire and that
the consultation between Bostick and the department man-
ager occurred in the form of person-to-person communication
or telephone communication. Warehouse Operations Manager
Douglas James testified that Bostick screens the applicants
and gives him recommendations by sending him the applica-
tions of the applicants. He stated that since June or July
1991, he had been interviewing all the applicants who have
been referred to him. Training and Development Manager
Steve Bundy testified that he took over the screening and
interviewing of applicants when Bostick vacationed and that
he, in essence, did the same things that she testified to doing.
Regarding Bostick’s other duties and responsibilities, the
record reflects that she assists employees in their under-
standing and claims of the benefits such as medical insur-
ance, life insurance, disability insurance, and retirement ben-
efits. She ensures that all merit reviews which are used for
determining wage increases are conducted and that the rec-
ommended increases are in accordance with the compensa-
tion policies of the Employer’s parent company. Bostick is
responsible for assisting in the Employer’s understanding and
compliance with the Immigration Reform and Control Act.
She is responsible for ensuring that the Employer complies
with its payroll procedures and for assisting the Employer in
its preparation of a legal defense in cases before the Equal
Employment Opportunity Commission (EEOC) and the wage
and hour division of the United States Department of Labor
(DOL). Bostick testified that since the hire of Boulton, in
1989, she no longer participates in any policymaking proce-
dures or functions. The record also reflects that under the
title ‘‘Harassment’’ in the employee handbook, employees
are told to direct their complaints of harassment to the
human resource coordinator, who will in turn, report the
complaint to the president. The handbook states that a
prompt investigation will be conducted thereafter. Although
Bostick initially testified that she did not recall that she had
ever received a complaint about sexual harassment, she later
admitted that an incident had been reported to her by a tem-
porary employment agency, investigated by her and resulted
in the discharge of an employee. Bostick’s office is accessed
from the same hallway as the office of the Employer’s presi-
dent, human resource manager, and safety and security man-
ager. Those offices are separated from the warehouse oper-
ations by a locked security door. Bostick is a salaried em-
ployee, as opposed to the warehouse employees who are
hourly, and she wears an orange identification badge which
is the same color as those worn by salaried employees (fore-
men and up). By contrast, the bargaining unit employees
wear white badges, the commissary employees wear blue
badges, and the driver employees were yellow badges.10
Bostick admits that she attends management meetings. And
she admitted that concerning her assistant, she has the au-
thority to assign work, grant time off, evaluate, and dis-
cipline her. Bostick contended that she does not have author-
ity to exercise supervisory indicia regarding the warehouse
employees.
The merits of this objection obviously turn on the neces-
sity to resolve the issue regarding Bostick’s supervisory sta-
tus and/or alliance with the Employer’s management. Re-
garding the latter, although testimony regarding Bostick’s
role in the Employer’s interviewing and hiring process of ap-
plicants for bargaining unit positions was guarded or what
may be more appropriately described as shrouded, the record
evidence supports the conclusion that she has a significant
role in the hire of the bargaining unit employees. In this re-
gard, I note that by Bostick’s own admission, she initially
determines which applicants will be considered beyond the
application stage of the hiring process.11 Further, the record
evidence, including the admissions by Bostick and James,
supports the conclusion that it is Bostick who makes rec-
ommendations for hire, or the very least consideration for
247BOSART CO.
12 Bostick testified that among applicants who were interviewed,
136 were hired and that only approximately 20 were rejected by the
department managers.
13 See generally discussion in Bell Aerospace Co., 196 NLRB 827
(1972).
14 Although testimony was elicited from Bostick by the Employer
to show that she had never complained to a supervisor that the rec-
ommended merit increases were too high or too low, I find that this
testimony is not dispositive of the fact that she reviews the merit
recommendations for the designed purpose of carrying out the Em-
ployer’s policies in this regard. Moreover, that Bostick may never
have confronted a supervisor regarding the amount of the rec-
ommended merit increase does not establish that she does not con-
sult anyone or that her role in the review process is menial. If such
were true, there would be no need for her review and initialing of
the documents that recommend the merit increases.
15 It is of no moment that the complaint was made through or by
a temporary employment agency. The fact remains that Bostick has
been designated by the Employer as its agent to receive employee
(temporary or otherwise) complaints.
16 I am not persuaded by the veiled testimony and convenient lapse
of memory of the Employer’s witnesses who testified in this regard
that the color on the badge worn by Bostick distinguishes her only
as a salaried employee.
17 Sears, Roebuck & Co., 193 NLRB 330 (1971); B-P Custom
Building Products, 251 NLRB 1337 (1980); and Mid-Continent
Spring Co., 273 NLRB 884 (1985).
The cases relied on by the Employer to support its position that
Bostick is not a supervisor are distinguishable from the instant mat-
ter. In John N. Hansen Co., 293 NLRB 63 (1989), unlike the instant
matter, the alleged supervisor had a miniscule role in the Employer’s
interviewing and hiring process regarding employees and there was
no evidence that the employee exercised any supervisory indicia that
was not of a routine nature. In Maremont Corp., 251 NLRB 1617
(1980), there was no evidence that the alleged supervisor had exer-
cised any supervisory indicia, as in the instant matter. In California
Beverage Co., 283 NLRB 328 (1987), the alleged supervisor was not
involved in the screening or weeding out of applicants prior to the
interviewing stage, as in this case, and did not exercise supervisory
indicia. In Bowne of Houston, 280 NLRB 1222 (1986), contrary to
the authority possessed by Bostick, the alleged supervisor exercised
supervisory authority on an irregular or sporadic basis which is in-
sufficient to establish supervisory status.
18 Howard Cooper Corp., 121 NLRB 950 (1958); Montomery
Ward & Co., 228 NLRB 750 (1977); and Northern Telecom Merid-
ian Systems, 297 NLRB 256 (1989).
19 Worth Food Markets, 103 NLRB 259 (1953); Westinghouse
Electric Corp., 118 NLRB 1625 (1958); and Mid-Continent Spring
Co., supra.
hire, among the applicants who survive the initial screening
process. Concerning the effectiveness of these recommenda-
tions, a conclusion may also (see the previous footnote) be
made in the example of the number of individuals rejected
for hire during 1991 by the Employer’s department man-
agers, whom the Employer contends have the authority to
make decisions regarding the hire of applicants. At the time
of the hearing, an approximately 86 percent were hired from
among the applications/recommendations sent to the ware-
house operations manager by Bostick,12 notwithstanding that
second interviews may have been conducted as the Employer
would have it believed. In any event, the record evidence es-
tablishes that Bostick effectively recommends the hire of the
bargaining unit employees, a responsibility that not only
lends itself to supervisory indicia, but also comports with a
conclusion that she is in a position of potential conflict with
bargaining unit employees, which is a factor that often distin-
guishes managerial status from rank-and-file status.13 In con-
sideration of Bostick’s other duties, the record reflects that
she ensures that merit reviews are conducted and comport
with the Employer’s compensation policies.14 Thus, it ap-
pears from the record evidence that Bostick effectuates the
Employer’s compensation policies regarding merit review
recommendations as well as regarding the Employer’s pay-
roll activities. The record also established that Bostick is re-
sponsible for providing assistance to the Employer in prepa-
ration for legal defense in EEOC and Wage and Hour, DOL
cases. This duty alone gives credence to the conclusion that
Bostick’s interests are in direct conflict with those of bar-
gaining unit employees and are more aligned with those of
the Employer’s management. Additionally, Bostick has been
held out to the employees by the Employer to be the receiver
of employee complaints (grievances) regarding harassment
and thus, a part of the mechanism through which such com-
plaints may be redressed. Indeed, the record evidence sup-
ports that complaints of harassment (sexual in this case) may
effectively be redressed, as exampled by the discharge of an
employee as a result of a sexual harassment complaint.15
Other record evidence, while alone is not dispositive but
combined with the aforementioned evidence, lends itself to
the conclusion that Bostick is closely identified with the em-
ployer management is that she attends management meetings,
has an office which is located in an area with other admitted
managerial personnel, and wears identification paraphernalia
that not only distinguishes her from rank-and-file employees,
but also identifies her with the upper echelon of the Employ-
er’s organization.16 Moreover, the undisputed record evi-
dence establishes, that Bostick exercises supervisory indicia
regarding her secretary.
In view of the foregoing, I find that Bostick is, as the Peti-
tioner contends, a supervisor and an employee who is closely
identified with the Employer’s management.17
Turning to the issue of whether the Petitioner timely raised
the objection, to Bostick serving as the Employer’s observer,
the record evidence is unrefuted that the Petitioner did not
become aware of Bostick’s status until after the election.
And, there is no record evidence to indicate that prior to the
election, the parties were aware of the individuals who were
to serve as observers for the respective parties. Therefore, the
first opportunity the Petitioner had to object to this issue was
at the objection stage and it did so. The facts in this case
stand in contrast to those set forth in the cases relied on by
the Employer.18 The most prominent distinguishing factor is
that the Petitioner was not aware of Bostick’s status at any
time prior to or during the election periods. Therefore,
Bostick’s presence during the election period must be consid-
ered in that light. As the Board has consistently held, the
presence of a supervisor or one who is closely allied with
management as an observer is inherently coercive as their
presence at the polls may unduly influence employees.19 Ac-
cordingly, I recommend that this objection be sustained and
that the election be set aside.