Georgetown Development and Management Corp.

GEORGETOWN DEVELOPMENT AND MANAGEMENT ' CORP. Georgetown Development and Management Corpora- tion andLocal 227, Service Employees Internation- al Union, AFL-CIO, Petitioner. Case 3-RC-6474 December 17, 1976 DECISION AND CERTIFICATION OF REPRESENTATIVE BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS Pursuant to a Stipulation for Certification Upon Consent Election approved by the Acting Regional Director for Region 3 on November 19_1975, an election by secret ballot was conducted in the above- entitled matter on December 5, 1975, under the direction and supervision of the Regional Director, among the employees in the following appropriate collective bargaining unit: All painters, maintenance people, landscapers and cleaning people employed by the Employer, excluding all office clerical employees, profession- al employees, other employees, guards, and super- visors as defined in the Act. The tally of ballots showed that, of approximately 22 eligible voters, 22 cast ballots, of which 1 I were for the_ Petitioner, 10 were against the Petitioner, and 1 ballot was challenged. The challenged ballot was sufficient to affect the results of the election. Thereaf- ter, the Petitioner and the Employer filed timely objections to conduct affecting the results of the election. On January 9, 1976, following an investigation, the Regional Director issued a Report on Objections and Challenged Ballot and Order Directing Hearing on challenged Ballot, in which he recommended that the Petitioner's and the Employer's -objections be over- ruled and recommended that a hearing be held to resolve the eligibility of Robert Niederhofer, the challenged voter, to vote in the election. Thereafter, the Employer filed timely exceptions to the report. On August 26, 1976, the National Labor Relations Board issued a Decision and Order adopting the Regional Director's recommendation that the objec- tions be overruled and directing that a hearing be held before a duly designated Hearing Officer to resolve the issues raised with respect to the challenge to the ballot of Robert Niederhofer. On June 2, 3, 10, and 11, 1976, pursuant to the Board's Order, a hearing was held in Buffalo, New York, before Hearing Officer Richard L. Friend, in which all parties participated, including a representa- tive for the Regional Director. All parties were afforded full opportunity to be heard, to examine and 227 NLRB No. 12 381 cross-examine witnesses, and to introduce evidence hearing on the issues herein. On July 19, 1976, the Hearing Officer issued his report in which he found that Neiderhofer was a supervisor as defined in the Act and recommended that the challenge to his ballot be sustained and a certification of representative issue. Thereafter, the Employer filed timely exceptions and a supporting brief. 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. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this case, including the exceptions and brief, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act, and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The' labor organization involved claims to represent certain employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of certain employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. The only matter in dispute is the challenge to the ballot of Robert Neiderhofer, who the Petitioner claims is a supervisor. The Employer services three residential projects in Amherst, New York, with 22 maintenance, employees, including painters, cleaning personnel, landscapers, and general maintenance personnel, who. are responsible for maintaining these properties and the Employer's office building, also in Amherst. Mary Louise Nugent,is the Employer's residential property manager; she also manages eight projects in western New York and two facilities in Michigan, not involved in this proceeding. She alone has the supervisory authority to hire and discipline the maintenance employees. In addition to Mrs. Nugent, there is a resident manager for each of the three projects. The resident managers routinely prepare and post daily service request forms listing mainte- nance work to be performed at their projects. Neiderhofer and the maintenance crews select from the list whatever jobs fall within their particular skills. The three resident managers appear to exercise little or no meaningful direction over the daily operations of the Employer's maintenance staff. Niederhofer has been employed by various entities of Caldwell Development Corporation, the Employ- er's parent, for 10 or 11 years. For a brief period in 1970 he supervised and was responsible for the Employer's maintenance employees at its facility in 382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Utica, New York, and at facilities in western- New York. At other times, Niederhofer was engaged in maintenance and carpentry work for the Employer and its affiliated companies. From 1971 through January 1976, Niederhofer has been paid monthly on a salary basis. In October 1975, following a 15-month period of medical disability, he returned to the Employer s employ at his old annual salary of $12,500. At the time of the election, he was the only salaried worker on the election eligibility list and received nearly , twice 'as much pay as any other member of the maintenance crew . Hourly employees, unlike Niederhofer, received time and a half for work beyond 40 hours a week. The record indicates that Niederhofer possesses several attributes of supervisory authority. For in- stance," he participates in the Employer's hiring process,,as,evidenced by-the fact that on one occasion he substituted for Mrs., Nugent on a visit to Erie Community College to interview job applicants and in the course of the interviews quizzed the applicants on their experience with tools, informed them of the nature of the Employer's jobs, and advised them when they . might expect notification of their hire. On Niederhofer's, return, Nugent sought his recommen- dations. Nugent testified she felt his favorable recom- mendation on one of two applicants who were hired had some influence on her decision . Pursuant to Mrs. Nugent's request, Niederhofer called the applicants to tell them they had; been hired , and, when they arrived, introduced 'them and told them where and with whom they would be working . Niederhofer trained one of the new employees,'on the assumption that it was part of his duties. On other 'occasions, Niederhofer on his own initiative obtained overtime help and granted- early leaves. A painter testified that when he started in the Employer's employNiederhof- er assigned and directed him in his work. Employee Raymond Jedrysik, in charge of and responsible for painters and cleaners , testified that he considered Niederhofer his boss, and several employ- ees under him testified that whenever they sought supervisory permission from Jedrysik he told them he would have to consult with , or obtain permission from, Niederhofer before he could grant' their re- quests. - The Hearing Officer concluded that Niederhofer exercised supervisory authority requiring the use of independent judgment . He noted- that Niederhofer independently authorized overtime, was involved in the hiring process, trained new employees, permitted employees to leave work before their usual quitting time, made work assignments , and directed the work of other employees . He-appears to have been the only individual with authority to supervise the mainte- nance workers on a daily basis in view of Mrs. Nugent's overall management responsibilities which involved projects in other - geographical areas, in addition to those involved herein. We agree.i Accordingly, we find that Robert Niederhofer was a supervisor, as defined in the Act, at the time of the election and sustain the challenge to his ballot. As the Petitioner has received a majority of the valid ballots cast in the election, we shall issue a certification of representative in its behalf.- _ CERTIFICATION OF REPRESENTATIVE It is hereby certified that a majority of the valid ballots have been cast for Local 227, Service Employ- ees International Union, AFL-CIO, and that, pursu- ant to Section 9(a) of the National Labor Relations Act, as amended, the said labor organization is the exclusive representative of all the employees in the unit found appropriate herein for the purposes, of collective bargaining in respect to rates of pay , wages, hours of employment, or other conditions of employ- ment. I Sky Wolf Sales d/b/a Pacific Industries of San Jose, 189 NLRB 933 (1971).