Oak Hill Hospital, Inc.

612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Oak Hill Hospital, Inc. and National Union of Hospital & Nursing Home Employees , AFL-CIO, Retail, Wholesale & Department Store Union, Local 1199, West Virginia, Petitioner. Case 9-RC-8818 July 31, 1972 DECISION ON REVIEW AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On January 4, 1971, the Regional Director for Region 9 issued a Decision and Direction of Election in the above matter. On February 17, 1971, an election by secret ballot was conducted in the unit found appropriate for collective-bargaining purpos- es. The tally of ballots showed that, of the 89 ballots cast, 44 were cast for and 41 against the Petitioner, and 4 were challenged. The challenged ballots were sufficient in number to affect the results of the election. In accordance with the National Labor Relations Board Rules and Regulations, the Regional Director issued a Supplemental Decision in which he sus- tained the challenge to the ballot of Griffin and directed a hearing to resolve the issues relating to the challenged ballots of Thompson, Bennett, and Wimmer. Pursuant to notice, a hearing on said challenges was held on April 28 and 29 and May 20, 1971, before Hearing Officer Francis A. Keenan. On February 4, 1972, the Hearing Officer issued his report recommending that the challenges to the ballots of Thompson and Bennett be overruled and that the challenge to the ballot of Wimmer be sustained on grounds that he was a managerial representative. Thereafter, both the Petitioner and the Employer filed timely exceptions to the Hearing Officer's Report and the Employer filed a brief in support of its exceptions. On March 9, 1972, the Regional Director issued his Second Supplemental Decision and Certification of Representative, adopting the Hearing Officer's find- ings, conclusions, and recommendations. Thereafter, in accordance with Section 102.67 of the National Labor Relations Board Rules and Regulations, the Employer filed a timely request for review of the Regional Director's Second Supple- mental Decision, contending that sustaining the challenge to Wimmer's ballot was erroneous. The Board by telegraphic order dated April 19, 1972, directed the Regional Director to open and count the ballots of Thompson and Bennett and to issue a revised tally of ballots pending consideration ' In view of our finding with respect to the challenged ballot in dispute, we find it unnecessary to rule on other issues raised in the request for of the Employer's request for review. On April 21, 1972, the Regional Director opened and counted the two ballots as to which no request for review was filed and issued a revised tally of ballots which reflected 44 ballots cast for the Petitioner, 43 against, and 1 unresolved challenged ballot. On April 24, 1972, the Board by telegraphic order granted the Employer's request for review. The Petitioner there- after filed a brief upon review. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Having duly considered the entire record in this proceeding, including the transcript, the request for review, and brief, the Board has considered the entire record with respect to the eligibility of Wimmer 1 and makes the following findings. Wimmer was hired October 1, 1970, and, because of his prior work experience, he was to be given consideration as a potential successor to the dietary department supervisor, Mrs. Burdette, who was approaching retirement. This fact was made known to Wimmer as well as to the employees in the department. However, within the month the Employ- er decided that he was too aggressive and would not work out as a successor to the dietary department supervisor. This change was never communicated to the other employees. Nevertheless, as the Employer considered him to be a good worker, he was retained to perform general kitchen work. The record clearly shows that he was not given authority to hire, discharge, or discipline or to recommend such action. There are 15 full-time and part-time employees who work in the kitchen which operates 7 days a week on a 2-shift basis. The normal staffing consists of four employees on the morning shift and five on the evening shift with supervisor Burdette working a split shift. The record also indicates that most of the employees have been working at their job for several years and are familiar with the work and what is required of them. All, including Wimmer, are paid only the legal minimum wage rate. Unlike the other employees, Wimmer was not given a specific assign- ment but rather was to help out wherever needed. Thus, his varied duties included cleaning the dining room and kitchen, peeling vegetables, preparing food, cooking, washing pots and pans, bagging silverware, working in the stockroom, checking and initialing for receipt of groceries delivered from the store, accompanying the supervisor to the grocery review. 198 NLRB No. 89 OAK HILL HOSPITAL, INC. 613 store, and helping in the purchase of groceries. He also, on occasion, made entries in the "menu book," 2 a function which is normally performed by the supervisor; however, the record shows that other dietary department employees have on occasion also made such entries. On the basis of testimony credited by the Hearing Officer, he found (1) that Burdette told the kitchen employees that Wimmer was their "boss" and they have "to abide by what he had to say" and that when Burdette was off, Wimmer would be in charge and the employees should discuss matters with him; (2) that Wimmer called the kitchen employees together and told them that he was going to make some rules which he wanted them to obey; (3) that Wimmer threatened to send employee Brooks to Mr. Fitzger- ald, the hospital administrator, if she did not do as he requested; and (4) that in a conversation with Fitzgerald regarding certain instructions by Wimmer, the kitchen employees, who knew that the Employer had listed Wimmer to be an eligible employee, asked Fitzgerald how Wimmer "stood in the kitchen" and were told that the latter was no longer Burdette's assistant and/or a supervisor "until after the elec- tion." On the basis of the foregoing, the Hearing Officer summarily concluded that "the dietary department employees with just cause regarded Wimmer as a `boss' or managerial employee" and thus, even if it is assumed that he is not a statutory supervisor, he was "at least a managerial representative and therefore outside the appropriate unit." We disagree. In our opinion, the Hearing Officer and the Regional Director failed to give due weight to countervailing testimony of various credited witness- es, not set forth in the Hearing Officer's report, who testified that (1) the employees looked upon Wimmer merely as an "enthusiastic new employee" who was trying to show off but did not "change a thing"; (2) the employees knew their jobs and disregarded his direction; (3) Wimmer in fact did not establish any rules; (4) with respect to the occasion when Wimmer threatened to report an employee to Fitzgerald, the employee just walked off which ended the incident; (5) with respect to the employees' discussion with Fitzgerald regarding Wimmer's status, Fitzgerald said that this discussion was unnecessary as at the conference at Fayetteville it was stated that "he was no more than we were in the kitchen, he was just an employee like we were" and also said that Wimmer was still on probation; and (6) when Burdette was in the hospital, employee Scarbro was in charge of the kitchen. Also relevant to the issue is the fact that Wimmer did not have the power to hire, discharge, or discipline any employees or to effectively recom- mend such action; that any instruction which he may have attempted to give was of a routine nature; and that he, like the other employees, was paid the legal minimum wage rate and worked in the kitchen performing in part such rank-and-file tasks as peeling potatoes and scrubbing pots and pans. On the basis of the record as a whole, we find that Wimmer was not a supervisor within the meaning of the Act and that, contrary to the Hearing Officer and the Regional Director, he was not a representative of management. Accordingly, we find Wimmer to be an eligible voter and hereby overrule the challenge to his ballot. ORDER It is hereby ordered that the case be, and it hereby is, remanded to the Regional Director who shall open and count the ballot cast by Wimmer, prepare and serve on the parties a revised tally of ballots, and issue the appropriate certification. 2 The "menu book" is maintained in the kitchen to show the cooks what meals are to be prepared