DirecTV U.S. DirecTV Holdings LLC

National Labor Relations Board - Board DecisionsDec 22, 2011

357 N.L.R.B. 1747 (N.L.R.B. 2011)

DIRECTV 357 NLRB No. 149 1747 DIRECTV U.S. DIRECTV Holdings LLC and Inter- national Association of Machinists and Aero- space Workers, AFL–CIO, District Lodge 947, Petitioner. Case 21–RC–021191 December 22, 2011 DECISION AND CERTIFICATION OF REPRESENTATIVE BY CHAIRMAN PEARCE AND MEMBERS BECKER AND HAYES The National Labor Relations Board has considered objections to an election held on April 16, 2010, and the hearing officer’s report recommending disposition of them. The election was conducted pursuant to a Stipu- lated Election Agreement. The tally of ballots shows 85 ballots cast for, and 80 ballots cast against, the Petitioner, with 2 challenged ballots, a number insufficient to affect the outcome of the election. The Board has reviewed the record in light of the ex- ceptions and briefs, and has decided to adopt the hearing officer’s findings and recommendations1 only to the ex- tent consistent with this decision. The Board conducted the election in the stipulated unit of technicians, warehouse employees, dispatchers, and quality control employees at the Employer’s Rancho Dominguez, California facility. A majority of the em- ployees voted for representation by the Petitioner. At issue here is the Employer’s objection alleging that its field supervisors are supervisors within the meaning of the Act, and that the field supervisors’ prounion activities during the preelection period interfered with the employ- ees’ free choice in the election.2 The hearing officer rec- ommended sustaining the Employer’s objection. First, the hearing officer found that, based on their authority to effectively recommend discipline, the field supervisors are statutory supervisors. Second, the hearing officer found that, pursuant to Harborside Healthcare, Inc., 343 NLRB 906 (2004), the field supervisors’ prounion activi- ty constituted objectionable conduct warranting a new election. 1 In the absence of exceptions, we adopt pro forma the hearing of- ficer’s recommendations to overrule Objections 2 and 3. 2 The Employer filed two objections alleging that the field supervi- sors engaged in improper prounion activity. Objection 1—which is the sole objection before the Board for consideration—alleges that the field supervisors engaged in improper prepetition prounion activity; Objec- tion 2 alleges that the field supervisors engaged in improper postpeti- tion prounion activity. The hearing officer recommended overruling Objection 2, on the ground that the Employer failed to present any evidence that the field supervisors actually engaged in any postpetition prounion activity. We have adopted that recommendation in the ab- sence of exceptions. For the reasons set forth below, we find, contrary to the hearing officer, that the field supervisors do not pos- sess supervisory authority.3 Accordingly, we find that the field supervisors’ prounion activity did not constitute objectionable conduct, and we conclude that a certifica- tion of representative should be issued. I. FACTS The Employer provides digital television services to residential and commercial customers. At its Rancho Dominguez facility, the Employer employs approximate- ly 215 employees in the following classifications: field technicians, warehouse employees, and dispatchers. The vast majority of these employees are field technicians, who install or repair digital equipment at customers’ lo- cations. In addition, the Employer employs a site man- ager, 3 operations managers, and 22 field supervisors. Of the 22 field supervisors, 13 are designated “field su- pervisors with a team” [hereinafter referred to as “field supervisors”], and 9 are designated “field supervisors without a team.” Each field supervisor oversees a team of approximately 10 to 15 field technicians. In contrast, “field supervisors without a team” do not oversee any- one; rather, they primarily perform installation and repair work on complex jobs or jobs for important customers. Field supervisors respond to their team members’ tele- phone calls seeking answers to technical questions, re- questing additional equipment, or reporting problems with particular job assignments (e.g., a customer is una- vailable or a site is inaccessible). In addition, field su- pervisors monitor the productivity of the field techni- cians on their team, examine their work, and inspect their vehicles. Field supervisors have the authority to give verbal warnings to technicians for performance issues or for tardiness, such as being late to a team meeting. Such verbal counselings are documented by field supervisors in “manager notes,” which are not reviewed by manage- ment and not retained in employees’ personnel files. If a field supervisor determines that a technician’s per- formance or infraction warrants more than a verbal coun- seling, he has the authority to initiate the disciplinary process associated with an employee consultation form (ECF).4 Field supervisors do not have the authority to prepare and issue ECFs directly to technicians; rather, 3 We note that our conclusion in this regard provides an additional basis upon which to overrule Objection 2. See fn. 2 above. 4 The format and content of the ECF are described in detail at pp. 11–12 of the hearing officer’s report. In brief, the ECF requires the initiator to identify the employee involved, the date, the supervisor, and the category of offense; to describe the incident for which discipline is being imposed; to provide information regarding expectations for the future and the possibility of future discipline; and to identify an appro- priate level of discipline. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1748 ECFs are subject to management review. More specifi- cally, after a field supervisor prepares a draft ECF, the ECF is reviewed, first, by the operations manager to whom the field supervisor reports; next, by the site man- ager;5 and, finally, by the human resources department.6 At each stage of review, the reviewer may alter the lan- guage of the ECF, change the proposed level of disci- pline, or decide that the ECF should not be issued.7 Fol- lowing that review, the field supervisor meets with the technician to present and explain the ECF. The field supervisor thereafter affords the technician the oppor- tunity to set forth his version of events, or add other comments, on the ECF form. Finally, the field supervi- sor asks the technician to sign the ECF form and then signs it himself, after which the ECF is placed in the em- ployee’s personnel file.8 II. HEARING OFFICER’S REPORT The hearing officer concluded that the Employer’s field supervisors are supervisors within the meaning of Section 2(11) of the Act. Although the hearing officer rejected the Employer’s contentions that the field super- visors possess authority to assign, discipline, suspend, or discharge the technicians, or to adjust their grievances,9 5 Site Manager Mike Schultz testified that, in deciding whether to approve an ECF, he reviews—possibly in consultation with the opera- tions manager and/or the field supervisor—the employee’s past perfor- mance and any prior corrective measures. Additionally, Schultz indi- cated that he might look at the employee’s file or ask questions about the employee. 6 With respect to recommendations for discharge, however, the field supervisor typically consults with his operations manager before he prepares the draft ECF. In this regard, Field Supervisor Juan Flores testified that a discharge recommendation has “to go through [the oper- ations manager] first.” Also with respect to discharge recommenda- tions, management and human resources review and consider a techni- cian’s overall performance in deciding whether to approve the recom- mendation. Although the record is not free from ambiguity, testimony from Field Supervisor Flores suggests that the review process when an ECF recommends suspension is identical to the above-described process for discharge recommendations. 7 Site Manager Schultz testified that, per week, the Employer issues 15 to 20 ECFs and rejects 3 to 5 ECFs initiated by field supervisors. Field Supervisor Flores testified that management rarely declines to issue ECFs that he initiates (i.e., only about 1 percent of the time); more commonly, management modifies his ECFs to correct errors or make stylistic changes. 8 The Employer submitted into evidence 16 ECFs, all but 2 of which were designated “verbal warnings.” The two ECFs that were designat- ed “written warnings” do not specify whether or how many verbal warnings preceded them. With the exception of one ECF that reflects a safety (driving) violation, all of the ECFs in evidence relate to attend- ance or productivity. Each of the eight productivity-based ECFs in evidence states, using identical boilerplate language, that the designated employee failed to satisfy the Employer’s minimum standard of productivity (an average of four jobs per day). 9 No party excepted to the hearing officer’s findings that the field supervisors lack these indicia of supervisory authority. he found that they possess authority to effectively rec- ommend discipline, up to and including discharge, by virtue of their initiation and ultimate issuance of ECFs. The hearing officer found that field supervisors exercise discretion in exercising this authority, by deciding whether to initiate an ECF and by making recommenda- tions regarding the appropriate level of discipline. The hearing officer further found that, although various levels of management review the ECFs initiated by field super- visors, they do not conduct an independent investigation. Rather, he found that management reviewers accept the field supervisors’ version of events at face value and do not afford the technicians an opportunity to provide input or comments until after the ECF is issued. The hearing officer also determined that various sec- ondary indicia of supervisory status support the conclu- sion that field supervisors are statutory supervisors: the ratio of supervisors to nonsupervisory employees would be unusually high if the field supervisors were not deemed to be supervisors; field supervisors are held out to the technicians as their supervisors; field supervisors hold weekly meetings with their teams, during which they convey information on behalf of the Employer; and field supervisors attend management meetings with the site manager and operations managers.10 III. DISCUSSION Section 2(11) of the Act defines a “supervisor” as any individual having authority, in the interest of the employer, 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 ac- tion, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical na- ture, but requires the use of independent judgment. It is well established that the burden to prove supervisory authority rests with the party asserting it. Oakwood Healthcare, Inc., 348 NLRB 686, 687 (2006) (citing NLRB v. Kentucky River Community Care, 532 U.S. 706, 713 (2001)). Here, as set forth above, the hearing officer con- cluded that the Employer satisfied that burden by establish- ing that field supervisors possess one indicium of superviso- ry status—the authority to effectively recommend disci- pline. The authority to “effectively recommend” an action “generally means that the recommended action is taken 10 The hearing officer rejected the Employer’s contention that the “field supervisors without a team” are also statutory supervisors. In the absence of exceptions, we adopt the hearing officer’s findings in this regard. DIRECTV 1749 without independent investigation by superiors, not simply that the recommendation is ultimately followed.” Children’s Farm Home, 324 NLRB 61, 61 (1997). Con- trary to the hearing officer, we conclude that the evi- dence in this case fails to demonstrate that the field su- pervisors’ authority to recommend discipline satisfies that standard. Although Field Supervisor Flores testified that man- agement declined to issue only about 1 percent of the ECFs that he initiated, and Site Manager Schultz testified that, in an average week, the operations managers reject 3 to 5 of the 15 to 20 ECFs recommended by field super- visors, the record does not establish what weight, if any, the various managers accord field supervisors’ recom- mendations or the extent to which their approvals are based on their own independent analyses. Accordingly, this evidence demonstrates, at most, that the supervisors’ recommendations are “ultimately followed” in the major- ity of instances, not that the recommended action is taken without independent investigation by the managers. Indeed, it is undisputed that all of the ECFs that are in- itiated by the field supervisors are subject to three levels of review: by the operations manager, the site manager, and the human resources department. Further, the evi- dence establishes that, at the site manager level, ECFs are subject to independent investigation. Site Manager Schultz testified that, in deciding whether to approve an ECF, he reviews—possibly in consultation with the ap- propriate operations manager and/or the field supervi- sor—the employee’s past performance and any prior corrective measures issued to the employee. He also indicated that he might look at the employee’s file or ask questions about the employee. This evidence concerning the nature of review at the site manager level is uncon- tradicted. Even if we were to assume that Schultz’ review of the ECFs does not constitute an “independent investigation,” it is merely one step in a three-level review process. The Employer adduced no evidence regarding the extent, or the components, of the review processes utilized by the operations managers or the human resources department. In the absence of any such evidence, we cannot find that the field supervisors effectively recommend discipline.11 11 Contrary to our dissenting colleague’s contention, we do not sug- gest that the mere fact that the field supervisors’ ECFs are subjected to a three-level review process necessarily forecloses a finding of effec- tive recommendation of discipline. Rather, we merely emphasize that, as discussed above, the absence of evidence that the managers at each level of review accept the field supervisors’ recommendations without conducting an independent investigation warrants a conclusion that the field supervisors do not effectively recommend discipline. Indeed, regardless of how frequently field supervisors’ recommendations have been followed, under our prior precedent such evidence alone would be See Elmhurst Extended Care Facilities, 329 NLRB 535, 536 fn. 8 (1999) (any lack of evidence in the record is to be construed against the party asserting supervisory sta- tus).12 Equally important, there is no evidence whatsoever re- garding the impact of field supervisors’ ECFs on the technicians’ job status or tenure. As the Board has con- sistently held: [T]he issuance of written warnings that do not alone af- fect job status or tenure do not constitute supervisory authority. . . . . [F]or the issuance of reprimands or warnings to consti- tute supervisory authority, the warning must not only initiate, or be considered in determining future discipli- nary action, but also it must be the basis of later per- sonnel action without independent investigation or re- view by other supervisors. Phelps Community Medical Center, 295 NLRB 486, 490 (1989) (quoting Passavant Health Center, 284 NLRB 887, 889–890 (1987)) (quotation marks omitted) (ellipsis in orig- inal); accord: Jochims v. NLRB, 480 F.3d 1161, 1170 (D.C. Cir. 2007). Here, the Employer did not introduce evidence establishing the existence of a progressive disciplinary sys- tem or otherwise explain how the verbal or written warnings contained in ECFs in the record were linked to future disci- plinary action.13 Moreover, the Employer has presented no insufficient to establish the authority to effectively recommend within the meaning of Sec. 2(11). See Brown & Root, Inc., 314 NLRB 19, 23 (1994); Hawaiian Telephone Co., 186 NLRB 1, 2 (1970). 12 Mountaineer Park, Inc., 343 NLRB 1473 (2004), cited by the hearing officer, is not to the contrary. Although the Board majority in that case concluded that a manager did not conduct an independent investigation of a purported supervisor’s disciplinary recommendation in circumstances in which the record was silent regarding the scope of the manager’s “review,” the majority’s finding of effective recommen- dation rested heavily on the manager’s testimony that he routinely “signed off on” the purported supervisor’s recommendations, as well as evidence that the manager had approved all of the alleged supervisor’s recommendations during the prior year. No comparable evidence exists in this case. 13 In Progressive Transportation Services, 340 NLRB 1044 (2003), the Board cited disciplinary notices that are similar to the ECFs in this case as evidence in support of its finding that the employer maintained a progressive discipline policy. In that case, however, the Board addi- tionally relied on the fact that suspension notices issued to employees by the alleged supervisor expressly referenced prior, lesser disciplinary sanctions meted out to those same employees by the supervisor. There is no similar evidence here. Indeed, the highest level of discipline reflected by the ECFs submitted into evidence is a “written warning”; neither of the two “written warnings” in the record refers to any prior infraction by the recipient. Moreover, the documentary evidence re- veals that, although one employee received two ECFs for the same DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1750 documentary evidence of suspensions or discharges issued or recommended by field supervisors. Neither Site Manag- er Schultz’ testimony that there have been terminations based on the recommendation of field supervisors, nor Field Supervisor Flores’ testimony that he has initiated ECFs for suspensions and discharges, is sufficient to demonstrate that field supervisors possess the authority to make effective recommendations, for there is no evidence that management has suspended or discharged any technicians without an independent investigation.14 For all the foregoing reasons, we find that the Employer’s field supervisors do not possess the authority to effectively recommend discipline. In sum, the Employer has failed to establish that the field supervisors possess any statutory indicia of supervi- sory authority. In the absence of such evidence, the sec- ondary indicia of supervisory authority on which the hearing officer relied are immaterial. See Ken-Crest Services, 335 NLRB 777, 779 (2001) (secondary indicia are insufficient by themselves to establish supervisory status). For all these reasons, we find that the field su- pervisors are not supervisors within the meaning of Sec- tion 2(11) of the Act. In light of that finding, Harborside Healthcare, Inc., 343 NLRB 906 (2004), is inapplicable here,15 and we conclude that the field supervisors’ prounion activity did not constitute objectionable conduct. Accordingly, we reverse the hearing officer and overrule the Employer’s objection. CERTIFICATION OF REPRESENTATIVE IT IS CERTIFIED that a majority of the valid ballots have been cast for the International Association of Machinists and Aerospace Workers, AFL–CIO, District Lodge 947, and that it is the exclusive collective-bargaining repre- sentative of the employees in the following appropriate unit: All full-time production installation technicians, field technicians, service technicians, piece work technicians, who service and install satellite dishes, warehouse employees, dispatchers, and quality con- trol employees, employed by the Employer at, or out of its facility located at 19335 South Laurel Park Road, Rancho Dominguez, California; excluding all other employees, administrative clerical employees, infraction (attendance violations), the employee received two verbal warnings, the latter of which made no reference to the first. 14 Indeed, Field Supervisor Flores’ testimony that he must first speak to his operations manager before even preparing a draft ECF recom- mending termination (or, apparently, suspension) suggests that the field supervisors cannot even recommend those levels of discipline without the prior review and approval of a manager. 15 We therefore find it unnecessary to consider the Petitioner’s ex- ceptions urging the Board to overrule Harborside. confidential employees, managerial employees, guards, and supervisors as defined in the Act. MEMBER HAYES, dissenting. I would affirm the hearing officer’s findings that the field supervisors are statutory supervisors and that their prepetition prounion conduct was objectionable under Harborside Health Care, Inc., 343 NLRB 906 (2004). In particular, I disagree with my colleagues that the Em- ployer has failed to meet its burden of proving that the prounion field supervisors in dispute have statutory su- pervisory authority to use independent judgment in effec- tively recommending discipline. As recounted by the hearing officer in the appended report, the record clearly establishes that the field super- visors have the independent discretionary authority to issue ECFs to field technicians for a variety of work in- fractions. Merely because an ECF initiated by a field supervisor is subject to a three-level review process does not negate that the field supervisor “effectively recom- mends” discipline and does not reflect a lack of Section 2(11) authority. Mountaineer Park, Inc., 343 NLRB 1473, 1476 (2004) (putative supervisor effectively rec- ommended discipline even though reviewed by manager before issuance to employee).1 Accord: Caremore, Inc. v. 1 The majority contends that in Mountaineer Park, Inc. the majori- ty’s finding of effective recommendation “rested heavily” on the man- ager’s testimony that he routinely signed off on the purported supervi- sor’s recommendations. The evidence here, as in Mountaineer Park, Inc., shows that the review of the disciplinary recommendations by higher authorities is not an independent investigation. Further, the finding of “effective recommendation” in Mountaineer Park, Inc. turned, not on the manager’s testimony, but on his “weighty” reliance on the supervisor’s recommendation as the record showed the manager consistently followed them. Mountaineer Park, Inc., supra at 1476. Similarly here, the evidence shows that the field supervisors’ discipli- nary recommendations are routinely followed by the Employer 70 percent or more of the time. Venture Industries, 327 NLRB 918, 919 (1999) (finding supervisory authority to discipline where employer followed such recommendations 75 percent of time). The cases cited by my colleagues, Brown & Root, Inc., 314 NLRB 19 (1994), and Hawaiian Telephone Co., 186 NLRB 1 (1970), are inapposite. In neither case was there evidence that the employers fol- lowed the safety inspectors’ written citations (Brown & Root) or the traffic supervisors’ initial warnings (Hawaiian Telephone). Instead the evidence showed that the citations and warnings simply reported inci- dents or problems to higher-level supervisors who independently con- ducted an investigation and then decided whether to take disciplinary action. Here, there is no evidence of any independent investigation as part of the three-level review. Furthermore, inasmuch as the vast ma- jority of the time the discipline issued after review follows the field supervisor’s recommendation, the recommendation is plainly “effec- tive.” Even if the recommendation was subject to investigation, that would not detract from the field supervisor having effectively recom- mended discipline using independent judgment. See, e.g., Eastern Greyhound Lines v. NLRB, 337 F.2d 84, 89 (6th Cir. 1964) (dispatchers effectively recommended discipline using independent judgment de- DIRECTV 1751 NLRB, 129 F.3d 365, 369–370 (6th Cir. 1997) (rejecting the Board’s argument that LPN charge nurses did not effectively recommend discipline because their recom- mendations were subject to review by a higher authori- ty). Indeed, multiple levels of review are a virtual neces- sity to assure procedural compliance of proposed disci- plinary actions with myriad Federal and State employ- ment law regulations. The existence of such a review process certainly does not preclude finding that a front- line supervisor who initiates the process does not effec- tively recommend discipline, particularly where, as here, the ECFs include specific recommendations for discipli- nary action that have ultimately been followed in all but a few instances. I also disagree with my colleagues that there is a lack of evidence that ECFs affect a field technician’s job sta- tus or tenure. The record establishes that different levels of discipline are listed on the ECF, up to and including spite recommendations being subject to independent investigation before final action). discharge. The field supervisor initiating the ECF pro- cess recommends a level of discipline on this form. The hearing officer credited uncontradicted testimony that field supervisors’ ECF disciplinary recommendations, up to and including discharge, have been approved and im- plemented. With respect to lesser degrees of discipline, it is undisputed that at the end of the review process, the field supervisor explains the discipline to the technician and a copy is placed in the personnel file, where it may be used as the basis for future disciplinary action. In sum, the hearing officer correctly found that the field supervisors have supervisory authority within the meaning of Section 2(11) of the Act. He also correctly found that authorization card solicitation and other prepetition prounion activity by certain field supervisors materially affected the outcome of an election decided by a 5-vote margin. Accordingly, I dissent from my col- leagues’ failure to adopt the recommendation to sustain the Employer’s Objection 1, set aside the election results, and direct a second election.