Helena Laboratories Corp.

686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Helena Laboratories Corporation and Communica- dons Workers of America, AFL-CIO Local 12139, Beaumont, Texas, Petitioner. Case 23-RC-4151 July 29, 1975 DECISION AND DIRECTION By MEMBERS JENKINS, KENNEDY, AND PENELLO Pursuant to authority granted it by the National Labor Relations Board under Section 3(b) of the Na- tional Labor Relations Act, as amended, a three- member panel has considered objections and deter- minative challenges in an election held on November 14, 1974,' and the Hearing Officer's report recom- mending disposition of same. The Board has re- viewed the record 2 in light of the exceptions and briefs, and hereby adopts the Hearing Officer's find- ings and recommendations except as herein modi- fied. Challenged Ballots The Hearing Officer overruled the challenge to Ward's' ballot and sustained the challenges to the ballots cast by Champagne, Kotz, Mayes, Simpson, Thames, Thorne, and Whitney. We agree with the Hearing Officer's findings and recommendations concerning the challenged ballots , except with regard to the ballots cast by Champagne, Simpson, and Mayes. Steve Champagne The Hearing Officer found Champagne was in charge of the quality analysis department; directed the work of two employees in that department; had the authority to effectively make recommendations regarding pay, discharges, discipline, and transfers; and made periodic evaluations of employees. A re- view of the record, however, reveals that these find- ' The election was conducted pursuant to a Stipulation for Certification Upon Consent Election . The tally was 40 for, and 39 against, the Petitioner; there were 9 challenged ballots 2 Petitioner filed timely objections to the election , and on December 27, 1974. after an administrative investigation , the Acting Regional Director issued his report on objections and challenged ballots The Acting Regional Director recommended that the challenge to the ballot of Gem Bordage be sustained and a hearing be directed to resolve the substantial and material factual issues raised by the objections and the remaining eight challenged ballots. No exceptions were filed to the Acting Regional Directors report, and thereafter the Board adopted the Acting Regional Directors recom- mendations and sustained the challenge to the ballot of Gem Bordage and directed a hearing to resolve the issues pertaining to the objections and the remaining challenged ballots of Steve Champagne , Margie Kotz, Mildred Mayes, Douglas Simpson, Gregory Thames, Angie Thorne, Carolyn Ward. and Earlene Whitney. 3 In the absence of exceptions thereto, the Board adopts the Hearing Officer's recommendation regarding Ward's ballot. ings are only supported by the hearsay testimony of two witnesses called by Petitioner. One witness testi- fied that the two employees who worked with Cham- pagne claimed that he was their supervisor, directed their work, conducted their employee evaluations, recommended pay increases, and could effectively recommend discharges. The other witness related that one of the employees working with Champagne claimed he was her supervisor and had on occasions commented about the employee's attendance prob- lem. This witness further testified that Champagne shared an office with an acknowledged supervisor and a sign over the office read "Supervisors." In opposition to the challenge to Champagne's bal- lot, company president and chief operating officer, Tipton Golias, explicitly refuted the above hearsay testimony. He further testified that at no time prior to the election was Champagne delegated or permit- ted to exercise any supervisory authority. With re- gard to Champagne sharing an office with an ac- knowledged supervisor, Golias explained that since the election Champagne had been promoted to a su- pervisory position and had moved into a supervisor's office. Champagne's subsequent promotion, howev- er, is not relevant to his eligibility as it is clear that eligibility to vote in a Board election depends on the voter's status during the critical period prior to the election. Based on the record evidence, we find an insuffi- cient showing to establish Champagne's supervisory status. Uncorroborated hearsay testimony that is ex- plicitly denied by direct evidence does not comprise sufficient affirmative probative evidence to support the challenge to Chapagne's ballot.4 Accordingly, the challenge to Champagne's ballot is overruled. Douglas Simpson The Hearing Officer found that Simpson was a re- search biochemist, that he had a "degree," and that his work required a "certain degree of independent thinking." In reliance on the above, the Hearing Offi- cer found Simpson to be a professional employee and sustained the challenge to his ballot. The record, however, reveals that Simpson is classified as a labo- ratory technician and works in the immunology de- partment with four other employees under the direct supervision of Karen McJunkin. Two of the other 4See Bostitch, Division of Textron, Inc, 210 NLRB 83 (1974); OSI of California d/b/a Court Casuals, 217 NLRB No. 150 (1975). In a like manner, one employee's testimony that Champagne rated the quality of his work and that the employee "felt" Champagne could recom- mend his discharge if the quality of his work did not improve is not proba- tive. The very function of Champagne's department was to inspect and rate the quality of production work, and an employee's subjective feelings as to another 's authority, without any corroborative evidence, is insufficient to establish supervisory authority 219 NLRB No. 140 HELENA LABORATORIES CORP. 687 employees are full time and only one of these em- ployees has a degree. The other two employees are students employed on a part-time basis. All of these employees do the same type of work and, although the job position requires a certain amount of inde- pendent thinking, it does not require a degree and is not considered a "hard job." In that Simpson's position does not require a de- gree, nor does it require a consistent exercise of dis- cretion and judgment, we find insufficient evidence to establish Simpson's status as a professional em- ployee within the meaning of the Acts Further, Simpson performs the same job functions as do the other employees in the immunology department, and no issue was raised as to their eligibility. According- ly, we shall overrule the challenge to Simpson's bal- lot. ness who claims the two employees designated to work with Mayes said "she could hire and fire." Company President Golias explicitly denied Mayes possessed or exercised such authority. As indicated earlier, we find uncorroborated hearsay testimony that is explicitly refuted by direct evidence to be in- sufficient probative evidence to support the finding of Mayes' supervisory status. Accordingly, we shall overrule the challenge to Mayes' ballot. The Hearing Officer found that Petitioner's Objec- tions 1 and 4 are without merit and recommended that they be overruled. The Hearing Officer further found that Petitioner's Objections 2, 3, 5, and 6 have merit and were sufficient to set aside the election if the revised tally of ballots shows the Petitioner- to have lost the election. We agree with these findings and recommendations. Mildred Mayes The Hearing Officer found that Mayes, who works in the shipping department, was able to secure the services of other employees in another department when she needed additional help and that she had the authority to "hire or fire." On these grounds, the Hearing Officer found Mayes to be a supervisor and recommended that the challenge to her ballot be sus- tained. The record, however, reveals that Mayes does not have such authority and cannot secure the serv- ices of other employees on her own initiative. Mayes, who is the only employee in the shipping department, has standing instructions to seek the assistance of two previously designated employees during peak work periods; she has no authority to secure any other help. As to Mayes' authority to hire or fire, the only evidence reflecting such an authority is derived from the uncorroborated hearsay testimony of a wit- 5 See Sec. 2(12) of the Act. DIRECTION It is hereby directed that the Regional Director for Region 23 shall, pursuant to the Board's Rules and Regulations, within 10 days from the date of this De- cision and Direction open and count the ballots cast by Carolyn Ward, Steve Champagne, Douglas Simp- son, and Mildred Mayes, and thereafter cause to be served on the parties a revised tally of ballots, includ- ing therein the count of those four ballots. If the re- vised tally of ballots discloses that a majority of the votes have been cast for Petitioner, the Regional Di- rector shall issue an appropriate Certification of Rep- resentative. IT IS FURTHER DIRECTED that if the revised tally of ballots discloses that a majority of votes have been cast against Petitioner, the Regional Director for Re- gion 23 shall set aside the election and conduct a new election in conformance with the following Direction of Second Election. [Direction of Second Election and Excelsior foot- note omitted from publication.]