International Center For Integrative Studies/The Door

National Labor Relations Board - Board DecisionsJan 31, 1990

297 N.L.R.B. 601 (N.L.R.B. 1990)

THE DOOR 601 International Center for Integrative Studies/The Door and Local 1199, Drug, Hospital and Health Care Employees Union, AFL-CIO, Peti- tioner. Case 2-RC-20562 January 31, 1990 DECISION, DIRECTION, AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY The National Labor Relations Board, by a three- member panel, has considered determinative chal- lenges in an election held November 16 and 17, 1988, and the hearing officer's report recommend- ing disposition of them The election was conduct- ed pursuant to a Stipulated Election Agreement The tally of ballots shows 37 for and 35 against the Petitioner, with 2 void ballots and 8 challenged ballots, a sufficient number to affect the results 1 The Board has reviewed the record 2 in light of the exceptions and briefs, and adopts the hearing officer's findings s and recommendations, as modi- fied The hearing officer recommended sustaining the challenge to the ballot of Dr Jane Ililfer, a medi- cal doctor and the Employer's laboratory director, because she had the authority to effectively recom- mend the hire and discipline of employees and was therefore a supervisor within the meaning of Sec- tion 2(11) of the Act We find merit in the Employ- er's exception to the hearing officer's recommenda- tion Section 2(11) of the Act lists in the disjunctive the types of authority that are evidence of supervi- sory status 4 The exercise of any one of these is 'The parties stipulated at the hearing that Donna Vecchione and John Postyn were ineligible to vote and that their ballots should be neither opened nor counted and that Robert Penotti and Minnie Schorr were eli- gible to vote and that their ballots should be opened and counted Fur- ther, the hearing officer recommended that the challenge to the ballot of Jay Fischer be overruled and that his ballot be opened and counted and that the Petitioner's first objection be sustained, the tally of ballots re- vised, and the disputed ballot counted as a vote for the Petitioner In the absence of exceptions, we adopt pro forma these recommendations of the hearing officer 2 The Employer's motion to reopen the record is denied 3 In finding that employee Honkamp was not a confidential employee, the hearing officer Incorrectly stated the standard that the Board uses to determine such status as set forth in Associated Day Care Services, 269 NLRB 178 (l984) In that case, the Board held that It would not find an employee typing documents relating to labor relations matters to have confidential status 'unless It can be shown that the employee has played some role in creating the document or in making the substantive decision being recorded, or that the employee regularly has access to labor rela- tions policy information before it becomes known to the union or em- ployees concerned" (Emphasis added ) Id at 181 Applying the correct standard, however, we agree with the hearing officer that Honkamp is not a confidential employee Although we agree with the hearing officer that the challenge to Weissberg's ballot should be sustained, we disavow his reliance on evi- dence of postelection conduct in finding that she did not intend to return to work as of the date of the election 4 Sec 2(1) of the Act defines a "supervisor as sufficient to confer supervisory status Phelps Com- munity Medical Center, 295 NLRB 486, 489 (1989) Such authority, however, must be exercised "with independent judgment on behalf of management and not in a routine or sporadic manner" Somerset Welding & Steel, 291 NLRB 913 (1988), and Phelps Community Medical Center, supra Based on our analysis of the evidence below, we find that the Petitioner has not carned its burden of proving that Hiller exercises independent judgment in effec- tively recommending the hire, discipline, or dis- charge of employees 5 In finding that Hilfer possessed authority to ef- fectively recommend the hire of employees, the hearing officer accorded much weight to Hiller's testimony regarding her possession of such author- ity The hearing officer, in finding that Hilfer pos- sessed authority to effectively recommend the hire of employees, relied on Hilfer's statement that she interviewed applicant Jalbuena and recommended that he be hired, and that he was, in fact, hired In addition, the hearing officer emphasized Hilfer's "uncontradicted" statement that if she had recom- mended that Jalbuena not be hired, he would not have been Finally, the hearing officer found it sig- nificant that Hilfer screened applicants' resumes and on the basis of this review recommended that certain applicants not be given an interview (a pre- requisite for hire), and that her recommendations in that respect were followed An examination of her testimony reveals, howev- er, that Hiller's recommendations regarding the hire of employees were limited to the applicants' technical ability For example, Hilfer testified that she was only one of several individuals who inter- viewed Jalbuena and that she asked Jalbuena "questions about his experience in the laboratories and what he had done in terms of the technical as- pects of the lab, what he was capable of doing and that was about it" Thus, it appears that Hiller's recommendation was limited to whether a candi- [A]ny individual having authority, in the interest of the employer, to lure, 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 au- thority is not of a merely routine or clerical nature, but requires the use of Independent judgment 5 A party seeking to exclude an individual from voting in an election for a collective-bargaining representative has the burden of establishing that the voter is ineligible to vote Ohio Masonic Home, 295 NLRB 390, 393 (1989) Thus, "whenever the evidence is in conflict or otherwise in- conclusive on particular anthem of supervisory authority, we will find that supervisory status has not been established, at least on the basis of those indicts" Phelps Community Medical Center, supra at 490 In the ab- sence of other testimony and other evidence regarding Hilfer's authority to effectively recommend the hire and discipline of employees, our analy- sis of whether she possessed such authority is limited to an examination of her testimony in this regard 297 NLRB No 87 602 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD date had the technical ability to perform the work of a lab technician There is no evidence that Jal- buena was hired as a direct consequence of Hilfer's recommendation or that Hilfer's recommendation regarding a specific candidate carried greater weight than that of other interviewers or, indeed, any weight at all As to Hiller's "uncontradicted" statement that if she had recommended that Jal- buena not be hired he would not have been, we note that Hiner also testified that even if she had recommended that Jalbuena not be hired, "[H]e still may have been and given a trial, probationary period" Finally, although we agree with the hear- ing officer that Hilfer reviewed applications and recommended that the certain applicants not be interviewed, we do not find that the ability to screen resumes and to make such recommenda- tions, even if followed, is sufficient to establish the authonty to effectively recommend the hire of em- ployees Hines testimony in response to hypothetical questions also failed to establish that she had the authority to effectively recommend the hire of em- ployees For example, when asked whether her recommendation not to hire an applicant would be followed if the applicant "did not possess any mini- mum level, the necessary skill, knowledge and abil- ity" to do the job, Hilfer replied that she "assume[d]" her recommendation would be fol- lowed and that she "hope[d] so it should be" We find that such equivocal testimony does not demonstrate that Hilfer had the authority to effec- tively recommend the hire of employees We reach the same conclusion regarding the issue of Hilfer's authority to effectively recommend the discipline and discharge of employees We note first that Hilfer had only limited contact with lab technicians because she worked at the facility only one or two evenings a month for from 1 to 4 hours and that her review of technicians' work was limit- ed to a review of the technicians' "bench work" in the form of "quality control" Thus, Hilfer's testi- mony regarding her authority to effectively recom- mend the discipline and discharge of employees was limited to situations in which she counseled lab technicians about following proper lab procedures Regarding such counseling, Hilfer testified that she talked to employees about once a year about keep- ing accurate records, but that the problem had been quality control, not "an employee per se," and that she has never reported such meetings to the appropriate administrators No evidence was presented at the hearing that would indicate that Hilfer had the authority to effectively recommend the discipline or discharge of an employee if that employee failed to follow lab procedures or meet quality control standards 6 Accordingly, we find that the record, at most, establishes that Hilfer is engaged in the routine direction of employees and that there is insufficient evidence to establish that she has the authority to effectively recommend the discipline or discharge of employees under her di- rection In light of all the above, we conclude that }Infer does not possess or exercise any of the indicia of supervisory status enunciated in Section 2(11) Thus, contrary to the hearing officer, we conclude that Hilfer is not a supervisor under the Act and that the challenge to her ballot should be overruled and her ballot opened and counted 7 DIRECTION IT IS DIRECTED that the Regional Director, within 10 days of the date of this decision, open and count the ballots of Jane Hiller, Jay Fischer, Robert Penotti, Minnie Schorr, and Helen Hon- kamp, count the disputed ballot at issue in the Peti- tioner's Objection 1 as a vote for the Petitioner, prepare and serve on the parties a revised tally of ballots, and issue the appropnate certification pur- suant to the Board's Rules and Regulations ORDER It is ordered that the matter is referred to the Regional Director for Region 2 for further process- ing . . 6 }Lifer testified that she had never recommended that an employee be fired since '[lit has never come up When asked whether her recom- mendations regarding discipline and discharge would most likely be fol- lowed, Hilfer testified, 'I guess so, yes I would hope so anyway" When pressed as to whether her recommendation would be followed, Hiller re- sponded, "Well, I hope so I mean these are hypothetical situations, I would expect It We find that such equivocal statements do not establish that Hiller has the authonty to effectively recommend the discipline or discharge of employees 7 In other contexts we have also found that the routine direction of employees based on a higher level of skill or experience is not evidence of supervisory status See, e g, Extendico-Professional Care, 272 NLRB 599 (1984), enfd mem 767 F 2d 926 (7th Cif 1985), and Beverly Manor Convalescent Centers, 264 NLRB 966 (1982) (nurses), Sears Roebuck & Co, 292 NLRB 753 (1989) (lead receiver in automotive center), and Som- erset Welding & Steel, supra (leadmen)