Harbor City Volunteer Ambulance Squad

764 318 NLRB No. 93 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 We therefore find it unnecessary to pass on the Employer’s con- tentions that they are supervisors because of their authority to dis- cipline or terminate employees, hire employees, assign overtime, di- rect work and set hours, and substitute for shift supervisors. Harbor City Volunteer Ambulance Squad, Inc. and International Association of EMT’s and Para- medics, a division of National Association of Government Employees, S.E.I.U., AFL–CIO, Petitioner. Case 12–RC–7790 August 25, 1995 DECISION ON REVIEW AND ORDER BY CHAIRMAN GOULD AND MEMBERS STEPHENS AND COHEN On November 18, 1994, the Regional Director for Region 12 issued a Decision and Direction of Election in the above-entitled matter, in which she found three assistant shift supervisors, two assistant NEMT super- visors, and three field training officers (FTOs) not to be statutory supervisors. The Employer filed a timely request for review of the Regional Director’s decision. The election was held on December 15 and 16, 1994, and the ballots were impounded. By Order dated Janu- ary 5, 1995, the Board (Chairman Gould dissenting) granted the Employer’s request for review. Having carefully considered the entire record, the Board has, for the reasons set forth below, decided to affirm the Regional Director’s finding as to the FTOs and to re- verse the Regional Director’s finding as to the assistant shift supervisors and assistant NEMT supervisors. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Contrary to the Regional Director, we find that the assistant shift supervisors and assistant NEMT super- visors (assistant supervisors) are supervisors under Section 2(11) of the Act because of their role in evalu- ating employees. Thus, assistant supervisors, together with the shift supervisors, prepare annual evaluations of the employees, rating employees on a scale from one to five. Employees are evaluated on both work and personal characteristics, e.g., work quality, communica- tion, appearance, and punctuality. The total number of points is compiled and then the assistant supervisor calculates the final percentage according to a particular formula. This percentage automatically becomes the percentage of the merit increase that the paramedic re- ceives. The evaluations are effective and have never been changed by upper management. The Employer’s director of operations testified that the assistant supervisors perform the annual evalua- tions because they are the ones who primarily work with the paramedics. The evidence establishes that preparation of the evaluations is a collaborative effort between the assistant and the shift supervisors. The as- sistant supervisors and the shift supervisors prepare the evaluations together, e.g., each prepares an evaluation in pencil and they get together to discuss it and come up with a final percentage. We disagree with our dis- senting colleague that such a collaborative effort in this case amounts to an effective review and approval of the evaluations by the shift supervisors. In fact, if there are any differences in opinion, they discuss it and then formulate the overall percentage together. There is no evidence that the shift supervisors ever unilaterally change a rating, or that the shift supervisor retains ulti- mate authority in this area. Thus, it appears that the as- sistant supervisors play at least an equal role, if not a primary role, in the evaluation process. Further, it is undisputed that these evaluations lead to an automatic wage increase for the evaluated em- ployees. Consequently, based on the significant role played by the assistant supervisors with respect to an- nual evaluations, we conclude, contrary to the Re- gional Director, that the assistant supervisors possess and exercise statutory supervisory authority.1 See Bayou Manor Health Center, 311 NLRB 955 (1993), in which the Board found that the employer’s licensed practical nurses were statutory supervisors solely be- cause the evaluations they completed affected the sala- ries of the employer’s nursing aides, as there was a di- rect correlation between the evaluations and the merit increases or bonuses awarded. See also Health Care & Retirement Corp., 310 NLRB 1002, 1006–1007 (1993). The Employer claims that FTOs are also statutory supervisors because they, as do assistant shift super- visors, evaluate new paramedics and make rec- ommendations regarding whether the paramedic is to be retained for further training, advanced to solo status, or terminated, although there have been no actual rec- ommendations for termination made. It is undisputed that these recommendations are followed by the shift supervisors and the director of operations. The ability to evaluate employees however, without more, is insuf- ficient to establish statutory supervisory authority. Passavant Health Center, 284 NLRB 887 (1987). Here, there is no evidence that the recommendations to advance the paramedics to solo status signal the end of their probationary status; there is no evidence that ad- vancing to solo status necessarily leads to permanent employment or a change in pay status; and there is no evidence establishing what, if any, impact a rec- ommendation for further training has on the employ- ees’ job status. Thus, although these recommendations made by FTOs and assistant supervisors are effective, the ability to make recommendations for extended training or advancement to solo status, absent any evi- dence of the impact on the employees’ job status, does not constitute the kind of personnel decision that estab- lishes statutory supervisory authority. Cf. Burns Inter- national Security Services, 278 NLRB 565 (1986), in 765 HARBOR CITY VOLUNTEER AMBULANCE SQUAD 1 311 NLRB 955 (1993). 2 310 NLRB 1002, 1006–1007 (1993). which the Board found sergeants to be supervisors be- cause they were responsible for the training and eval- uation of probationary guards and could remove proba- tionary guards from their posts for retraining without consulting senior supervisors; if a guard refused, he or she would ultimately be suspended. Consequently, we affirm the Regional Director’s finding that the FTOs are not 2(11) supervisors. Accordingly, in view of the above, we affirm the Regional Director’s decision with respect to the FTOs, and reverse her decision with respect to the assistant shift supervisors and assistant NEMT supervisors. We therefore find that the assistant shift supervisors and assistant NEMT supervisors are excluded from the unit. This case is remanded to the Regional Director for the purpose of opening and counting the ballots and for further appropriate action. CHAIRMAN GOULD, dissenting in part. I agree with the majority’s conclusion that FTOs are not statutory supervisors. I disagree, however, with my colleagues’ finding that assistant supervisors possess and exercise Section 2(11) supervisory authority be- cause of their collaboration with shift supervisors (stip- ulated by the parties to be statutory supervisors) in the preparation of employee evaluations. There is no evidence that the assistant supervisors independently determine employee ratings or that they effectively recommend such ratings. Instead, the final ratings are a joint effort between the assistant super- visors and the shift supervisors who, together, decide the employees’ percentage figure. As a consequence, all employee ratings have been reviewed by, and have the approval of, the shift supervisors. Moreover, there is no record evidence that these ratings are based on the recommendations of the assistant supervisors or that the assistant supervisors’ opinions are the deter- mining factor. Consequently, although the employees’ rating automatically determines the employees’ merit increase, the cases cited by the majority, Bayou Manor Health Center1 and Valley View Nursing Home2 are distinguishable as the LPNs and unit supervisors in those cases did not discuss or work with a statutory su- pervisor in filling out the evaluation form, but instead independently determined employee evaluations. Accordingly, I would affirm the Regional Director’s finding that FTOs and assistant supervisors are not su- pervisors under Section 2(11) of the Act.