Helena Cable T.V.

542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD249 NLRB NO. 85 Community Tele-Communications, Inc., d/b/a Helena Cable T.V. and Patricia A. Boerner, Pe- titioner and International Brotherhood of Elec- trical Workers, Local No 185, AFL-CIO. Case 19-UD-236 May 15, 1980 DECISION ON REVIEW, ORDER, AND DIRECTION OF ELECTION BY CHAIRMAN FANNING AND MEMBERS JENKINS ANI) PENEIAI.O On November 6, 1979, the Regional Director for Region 19 of the National Labor Relations Board issued a Decision and Order in the above-entitled proceeding finding that Patricia A. Boerner, the Petitioner, is a supervisor and ineligible to file a union-security deauthorization petition under Sec- tion 9(e)(1) of the National Labor Relations Act, as amended, and accordingly dismissed the petition herein. Thereafter, in accordance with Section 102.67 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Petitioner filed a timely request for review of the Regional Director's decision. By telegraphic order dated December 18, 1979, the Board granted the Petitioner's request for review. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the entire record in this case with respect to the issues under review and finds that there is insufficient evidence to es- tablish that Patricia A. Boerner is a supervisor. Hence, we find that the Regional Director erred in dismissing the petition. The Employer is a Nevada corporation engaged in the installation and servicing of cable television systems, with a facility at Helena, Montana. The Union has represented a unit of office employees at the Helena, Montana, facility since 1971. The Em- ployer and the Union have negotiated several col- lective-bargaining agreements covering the office employees. The most recent agreement became ef- fective on July 1, 1978, and is due to expire on June 30, 1980. Included, inter alia, in the current agreement is a union-security clause requiring all employees in the unit to become and remain mem- bers of the Union as a condition of employment during the term of the agreement. On September 21, 1979, the Petitioner filed a pe- tition herein seeking a withdrawal of union-shop authority under Section 9(e)(1) of the Act. Follow- ing a hearing on October 12, 1979, the Regional Director issued his Decision and Order herein find- ing that Boerner is a supervisor based on evidence that she has the authority to conduct hiring inter- views and to make effective recommendations on hiring. The record shows that, in the Employer's Helena, Montana, office, there are four office em- ployees. Boerner, who has worked for the Employ- er for approximately 10 years, is the most senior employee. The other three employees had worked for the Employer for 12, 10, and 6 months, respec- tively, as of the date of the hearing herein. In filing the petition, Boerner identified herself as the "office manager." The record fails to establish, however, that this title carries any authority. In- stead, the record shows that the office work is fairly routine, that each employee is assigned cer- tain functions such as mail, bookkeeping, or wait- ing on customers, and that they help each other when one of the employees gets bogged down. With regard to Boerner's involvement in the hiring of the other three clericals, the record shows that Shirley Nichols was hired in October 1978 by the marketing administrator without any input by Boerner. A second employee, Cynthia Coonis, was hired in December 1978 at a time when the Em- ployer desparately needed another employee. Coonis, the only applicant, was interviewed by Office Manager Poore. Boerner responded to an inquiry by Poore about Coonis by commenting that "she sounds allright." Finally, Lynn Lucas was employed in April 1979 as a part-time employee. Again Poore first inter- viewed her. Thereafter, Boerner reviewed her ap- plication, talked to her for a few minutes, and con- tacted one of the references Lucas gave on her ap- plication. Later, Boerner and Poore discussed Lucas' qualifications. Although Boerner thinks Poore probably asked her for a recommendation, Boerner testified that it was "more or less informal- ly decided that she was the one we'd hire." Contrary to the Regional Director, we find that the record fails to establish that Boerner has au- thority effectively to recommend hire. Any support for such finding based on Boerner's conversation with Poore concerning Lucas' capabilities is under- cut by the minor role Boerner played in hiring Coonis and the absence of any role in hiring Ni- chols. Nor is there evidence that Boerner has au- thority responsibly to direct employees, or that she has exercised other supervisory functions defined in Section 2(11) of the Act. Rather, it is clear from the routine nature of the work performed by the office employees that Boerner's authority, at most, is that of a leadman based on her experience and familiarity with the Employer's operation. Thus, HELENA CABLE T.V. 543 we find that Boerner is not a supervisor within the meaning of Section 2(11) of the Act, that she is an employee in the bargaining unit,2 and that she is eligible to file a petition under Section 9(e)(1) of the Act. Hence, we find that the Regional Director erred in dismissing her petition. Having dismissed the petition, the Regional Di- rector found it unnecessary to pass on the Union's contention that the appropriate unit should include both office employees and installers and techni- cians. Thus, the Union contends that, although the two units were separately certified, the pattern of bargaining has been to include both groups under one contract. We find no merit in the Union's unit contention. The record shows that the pattern of bargaining has been for the Employer and representatives from Local Unions 44, 185, and 532 (IBEW), rep- resenting the Employer's installers and technicians at the Employer's Butte, Helena, and Billings, Montana, facilities, respectively, to meet and nego- tiate the terms of a new contract for the installers and technicians. Upon completion of the installers and technicians negotiations, the representatives of Locals 44 and 532 leave,3 and the Employer and Local 185 negotiate the wages and other terms and i See The Capitol Times Company, 234 NLRB 174 (1978). 2 At the hearing, testimony was taken on the question as to whether Boerner was a confidential employee and, as such, ineligible to file a peti- tion under Sec. 9(eXI) of the Act. Since the record clearly shows that Boerner is not a confidential employee, we express no opinion with regard to the eligibility of a confidential employee to file a petition under Sec. 9(eXI) of the Act. s No evidence was presented that Local 44 or Local 532 represents office employees at their respective locations, or that either has partici- pated in bargaining for the office employees in Helena conditions of employment for the office employees unit at Helena. W. H. Sexton, the Employer's dis- trict manager, testified without contradiction that in recent years, for convenience and to avoid the cost and time of drafting and executing separate documents, a separate supplement to the master agreement covering wage rates and other specific terms and conditions of employment for the office employees has been executed. Sexton also testified that there was no intention to merge the two units into a single bargaining unit. In addition, we note that article 1, section 5, of the supplement states: "This agreement covers all employees in unit 2 and their functions as described in National Labor Re- lations Board case 19-RC-5949"; and article VI, section 1, states in part: "Overtime provisions same as in Technicians Agreement, Unit 1." On the record here, we find that the technicians unit and the office employees unit have not been merged into a single overall unit. Accordingly, we find that the appropriate unit for an election is the office employees unit, as described in article 1, sec- tion 5, of the supplemental agreement referred to above. Having determined that Boerner is an em- ployee eligible to file the petition, and that the office employees unit is the appropriate unit for the election, we shall reinstate the petition and direct an election. ORDER It is hereby ordered that the petition herein be, and it hereby is, reinstated. [Direction of Election and Excelsior footnote omitted from publication.] HELENA CABLE TV. 543..