Bowne Of Houston, Inc.

1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bowne of Houston, Inc. and Houston Typographical Union No. 87, International Typographical Union, AFL-CIO. Case 23-RC-5256 21 July 1986 DECISION AND DIRECTION By CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND STEPHENS The National Labor Relations Board, by a three- member panel, has considered determinative chal- lenges in an election held 26 April 1985 and the hearing officer's report recommending disposition of them. The election was conducted pursuant to a Stipulated Election Agreement. The tally of the ballots shows 12 for and 11 against the Petitioner, with 3 challenged ballots.' The Board has reviewed the record in light of the exceptions and briefs and has adopted the hear- ing officer's findings and recommendations only to the extent consistent with this Decision and Direc- tion. The hearing officer found that Doyle Womack is a supervisor within the meaning of Section 2(11) of the Act, and recommended that the challenge to Womack's ballot be sustained. The Employer ex- cepts, contending that Womack neither exercises independent judgment nor has the authority to ex- ercise independent judgment in connection with his duties, and that Womack possesses none of the in- dicia of supervisory status as enumerated in Section 2(11) of the Act. We find merit in the Employer's exceptions, and conclude that the Petitioner has not met its burden of establishing that Womack is a supervisor. The Employer, Bowne of Houston, is in the busi- ness of legal and financial printing. The Company underwent a recent transition in its operations within the composing room where the type is set and put into configuration for the final printing. The Company previously set all print from hot metal, using Line-A-Type machines. However, the transition, which took place over a year, involved phasing out the hot metal operation and changing over to computer typesetting, also referred to as cold type. The cold type operation is located in the computer composing room. During the transition period, both the hot metal and cold type processes ' The Regional Director issued a Supplemental Decision and Order Directing Hearing on 31 May 1985, recommending that the challenges to the ballots of William J. Casey and Rene Gonzales be sustained, that the portion of the challenge to the ballot of Doyle Womack relating to his late arrival at the polls be overruled, and that a hearing be held for the purpose of resolving the issue raised by the challenge to Womack's ballot based on his alleged supervisory status. have been in operation.2 Hot metal employees who qualified have been receiving training in the cold type operation. Employee Doyle Womack is an assistant fore- man in the composing department. He works in cold type on the 4 p.m. to midnight shift. Womack was promoted to the assistant foreman position in November 1984, at which time he received a wage increase of 25 cents per hour. On 30 January 1985 Womack received a wage increase of $1.75 per hour over scale, which was identified in personnel records as "supervisor's pay." On 30 January 1985 a memorandum from the vice president of operations, Robert Baechtold, was addressed to the composing department employees indicating a division in duties pertaining to the composing department. The memorandum stated that, effective immediately, General Foreman Dick Nevitt would be in charge of hot metal and Womack would be in charge of cold type. The memorandum further indicated that the hot metal and cold type operation would be considered as two separate departments and that the employees were to report to the supervisor in the department in which they worked. Prior to the announcement, hot metal and cold type were considered as one department, and all decisions, requests, and the like went through Nevitt.3 After the announcement, it was no longer necessary for employees in cold type to go through Nevitt. They were to report to Womack, who, in turn, relayed all information and requests to the shift manager, Tony Pepe, in the front office. Since the announcement of the division of duties in hot metal and cold type, Womack has reported directly to Pepe. The jobs to be processed in cold type are deter- mined by the front office. Womack generally re- ceives the copy for the work to be done from Pepe or one of his assistants in the front office. Womack receives oral and written instructions from the front office on how a job is to be set, deadline, style format, type size, measure, page depth, type face, and job priority. Each job usually involves a different procedure, set of instructions, and way to be set. Womack has no authority to change the in- structions without first discussing it with the shift manager. Womack then divides the work and 2 As of the date of the hearing, on 9 July 1985, the computer, or cold type operation, was still in the startup mode 2 The following description of the operations of the cold type depart- ment is based on the testimony of Womack and Baechtold . The hearing officer made no reference to the testimony. Neither did he undertake a general description of work in the cold type department. However, as discussed more fully below, the testimony concerning the operations of the cold type department is not in conflict with any of the testimony credited and relied on by the hearing officer. 280 NLRB No. 132 BOWNE OF HOUSTON marks the copy. Marking the copy is production work and involves indicating indentations, page breaks, the type sizes, style, and how the type is to be set. After marking the copy, Womack puts it in a copy box from which the operators pick up the copy, page for page. If Womack determines that there is a problem page or a page in which a spe- cific operator has more expertise, then he may assign the particular page to that operator. Womack follows the job through the computer typesetting system, to the proof room, and back to his desk. He spends much of his time troubleshoot- ing jobs by helping operators who have trouble with their formatting, programming, and setting the copy on their machines. In so doing, Womack may answer employee questions, explain how equipment or procedures work, determine why an operator's program will not work, or rearrange the program formats to make them work better on the system. Womack also spends a lot of time going back and forth between the cold type composing room and the front office relaying problems, taking in- structions, and relaying the instructions from the front office to the operators. If there is a problem setting a page, Womack takes the copy to the front office for instructions on how to set it. The hearing officer credited the testimony of the Petitioner's witnesses Bobby Potter and Orvill Brown concerning Womack's duties in finding that Womack granted time off and excused overtime, gave instructions to employees and answered job- related questions, gave specific job assignments, transferred employees, established job priorities, as- signed overtime, interviewed prospective employ- ees, and notified an employee that he had been fired. The hearing officer concluded that Womack was a supervisor within the meaning of Section 2(11) of the Act. The hearing officer further found Womack's testimony that he had authority to trans- fer employees and the documentary evidence refer- ring to Womack as a "supervisor" overwhelming in concluding that Womack is a supervisor. We dis- agree for the reasons set forth below. It is well established that the possession of any one of the indicia specified in Section 2(11) of the Act is sufficient to confer supervisory status on an employee,4 provided that authority is exercised with independent judgment on behalf of manage- ment and not in a routine manner .5 Thus, the exer- 4 See George C. Foss Co., 270 NLRB 232 (1984); NLRB v. Edward G. Budd Mfg. Co, 169 F.2d 571 (6th Cu. 1948), cert denied 335 U.S. 908 (1949) 6 See Hydro Conduit Corp ., 254 NLRB 433, 437 (1981). 1223 cise of some "supervisory authority" in a merely routine, clerical, perfunctory, or sporadic manner does not confer supervisory status on an employee. See Chicago Metallic Corp., 273 NLRB 1677 (1985); Advanced Mining Group, 260 NLRB 486, 507 (1982). Contrary to the hearing officer, we conclude that although Womack exercised some authority in carrying out his duties, the Petitioner has failed to meet its burden of establishing that Womack used independent judgment in exercising authority. The burden of proving supervisory status rests on the party asserting that such status exists . Soil Engineer- ing Co., 269 NLRB 55 (1984); Tucson Gas & Elec- tric Co., 241 NLRB 181 . (1979). In this case, the burden rests upon the Petitioner, who alleges that Womack was a supervisor at all times during the period from 25 February 1985, the date of the peti- tion, through 26 April 1985, the date of the elec- tion. Although the hearing officer credited the Pe- titioner's witnesses in finding that Womack was a supervisor, Potter and Brown acknowledged that they had no personal knowledge of whether Womack was taking independent action or merely following orders in carrying out his duties. Under these circumstances, we find that the testimony of Potter and Brown, even though credited, does not establish use of independent judgment. Further- more, it is not in conflict with evidence presented by the Employer. With respect to granting time off, Womack testi- fied that although he may sign a written request for time off, it is the shift manager, Pepe, who gives final approval or disapproval for any request. No request for time off is considered to be approved without Pepe's signature. Indeed, requests for time off have been denied by Pepe even though Womack signed the request form. Ordinarily, when a request for time off is refused, Pepe informs the employee that it has not been approved. Pepe then informs Womack that the employee will not be off on the day requested. Employee Potter, on whose testimony the hearing officer principally relied, did not contradict this. For although Potter stated that Womack had granted him time off on one occa- sion, Potter also testified that he was aware that the request form must be signed by the shift man- ager before it is approved. Therefore, we do not find that Womack independently grants time off. Instead, we find that Womack performs the essen- tially routine and clerical function of reviewing and signing the request forms and submitting them to Shift Manager Pepe, who then independently eval- uates them. Concerning granting overtime, Brown testified that Womack called him to come in early to work 1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD overtime. However, Brown stated that he had no way of knowing whether Womack made the deci- sion to grant overtime or whether Womack simply communicated instructions from the shift manager. The only other testimony on this issue indicates that overtime is authorized by the shift manager. Womack testified that he frequently confers with the front office concerning staffing , that working hours are determined by the front office , and that the front office, specifically Shift Manager Pepe, always makes the decisions about the need for overtime and the number of employees needed to work overtime. When overtime is authorized, em- ployees inform Womack at the end of the shift whether they want to work overtime. Womack then uses an overtime list to make a decision con- cerning who will work. The employees are select- ed on an automatic rotation basis from the over- time list supplied by the timekeeper. Based on the number of employees authorized for the job, the top employees on the list are selected . Womack testified that he does not ever recall asking an em- ployee to work overtime without the authorization of the shift manager . In these circumstan ces, we cannot conclude that Womack independently grants overtime. Although we do not disturb the hearing officer's crediting of Brown's testimony that Womack called him in to work overtime, we do not find that Brown's testimony is sufficient to establish that Womack independently grants over- time. Brown simply did not know, and had no basis for knowing, whether Womack alone made the de- cision to call him or whether Womack was merely following instructions from the shift manager. With respect to excusing overtime , employee Potter stated that on one occasion he asked Womack to be excused from working overtime, and Womack immediately excused him. Womack testified, without contradiction, that an employee has the right to refuse to work overtime . There is, therefore, no indication that Womack used inde- pendent judgment in excusing Potter. Although employee Potter testified that Womack gives work instructions to employees and answers job-related questions, we are not persuaded that this is indicative of supervisory status. Womack tes- tified that answering job-related questions is an in- herent part of his job, given his knowledge of the cold type operation. Further, answering job-related questions, alone, is not sufficient to establish super- visory status absent evidence of the use of inde- pendent judgment or discretion in connection with such conduct.6 Thus, there is no evidence that See Chicago Metallic Corp., supra Womack used independent judgment. Womack also testified that work instructions are given to him by the front office and that he relays these instructions to the employees. In addition , the evidence indi- cates that Womack is constantly in touch with the front office and reports any major problems to the front office. Potter's testimony does not contradict this. Potter testified that he had no knowledge of whether the instructions given to employees were given independently by Womack or whether they were merely relayed from the front office. In these circumstances, we cannot find that Womack's con- duct in giving instructions and answering questions constitutes a responsible direction of employees using independent judgment. To the contrary, it appears that such duties are routine and that Womack merely serves as a conduit for manage- ment instructions. According to the testimony of Womack and em- ployee Bobby Potter, Womack has temporarily as- signed Potter and other employees to work in hot metal when that department was in need of help. Potter testified that Womack also told the employ- ees when they were to return to cold type. Potter further testified that on one occasion an employee told Womack that they could use some help in hot metal, and Womack said that he would send help. On another occasion, Womack told a cold type employee, who happened to be in the hot metal area, to stay and give some assistance in hot metal. Womack stated that he has no authority to transfer or assign employees from one job to another except for short periods of time, under circum- stances when there is a shortage of employees in the hot metal or when it is necessary to speed up a job. He further testified that he generally made temporary transfers of employees to hot metal after being informed by the front office of a need for employees in hot metal . When such a need existed, Shift Manager Pepe told Womack to send a certain number of operators to hot metal , and Pepe some- times designated the names of the employees to be transferred. If the employees were not designated by name, Womack usually sent whomever was available and not busy. There is no indication that Womack has authority to transfer or reassign em- ployees from one job to another under any other circumstances. Nor is there an indication that such temporary transfers occur on a regular basis. Further, employee Potter, who testified to Wo- mack's movement of cold type employees to hot type, stated that he had no way of knowing wheth- er Womack made the decision to temporarily assign cold type employees to hot type or whether Womack simply relayed instructions given by Shift Manager Pepe. In these circumstances, we cannot BOWNE OF HOUSTON find that Womack's assignment of employees is based on the use of independent judgment. Rather, such temporary assignments by Womack appear to be limited to circumstances of urgency and direct- ed by Shift Manager Pepe. Thus, although the hearing officer credited the testimony of employee Potter that Womack temporarily assigned cold type employees to work in hot type, we find that the Petitioner has failed to establish that the assign- ments were based on Womack's use of independent judgment or discretion. Concerning job priorities, Brown testified that Womack "would give" job priorities to him. Based on this testimony, the hearing officer found that Womack established job priorities. We cannot, however, conclude that Brown's testimony demon- strates that Womack established these priorities himself. Indeed, Brown also testified that he had no way of knowing whether Womack established the job priorities or whether he was communicating in- structions given to him by Shift Manager Pepe. Further, the testimony of Potter and Vice Presi- dent of Operations Baechtold clearly indicates that job priorities are established in the front office by management.? Thus, even in light of the hearing officer's crediting of Brown's testimony, the evi- dence is insufficient to establish that Womack used independent judgment in connection with the es- tablishment of job priorities. Womack, Baechtold, Potter, and Brown stated that Womack has interviewed prospective employ- ees for cold type positions. Brown testified that Womack informed one employee, Bob Carter, that he had been hired. However, according to the tes- timony of both Womack and Baechtold, Womack did not participate in the hiring decision. He simply advised Baechtold or Pepe of the applicant's print- ing experience based on the interview. The final hiring authority was vested in Baechtold, who tes- tified that he also interviewed all applicants during all times relevant to this case. Brown and Potter both testified that they had no way of knowing whether the employees interviewed by Womack were subject to a subsequent interview by higher management authority, nor were they aware who made the hiring decision. Thus, we find that, al- though Womack interviewed employees, the evi- dence is insufficient to establish that he either made the hiring decisions or made effective recommenda- tions to hire these employees. Finally, regarding the documentary evidence re- ferring to Womack as a supervisor and the empha- 7 Potter testified that job priorities are established by the customer service people in the front office. Baechtold further testified that the jobs are made out by the front office, which designates the type size, measure, page depth, type face, and priority of the job. 1225 sis placed on this evidence by the hearing officer in reaching his decision, it is well established that the Board will not consider titles alone to be determi- native of supervisory status. The proper consider- ation is whether the functions, duties, and authority of an individual, regardless of title, meet any of the criteria for supervisory status defined in Section 2(11) of the Act. Marukyo U.S.A., Inc., 268 NLRB 1102 (1984); Golden West Broadcasters-KTLA, 215 NLRB 760 (1974). Accordingly, although the record reveals a memorandum addressed to the composing room employees on 30 January 1985 in- dicating a division in "supervisory duties" between Womack and Nevitt, and an increase in wages re- ceived by Womack on 18 March 1985 identified as "supervisor's pay," neither is determinative of Wo- mack's supervisory status. There must be some other evidence that Womack possessed or exer- cised one of the indicia of supervisory status enu- merated in Section 2(11) of the Act. We find there is insufficient evidence to support a finding of su- pervisory status. For the above reasons and without disturbing the hearing officer's credibility resolutions, we con- clude that the Petitioner has not met its burden of establishing that Womack is a supervisor as defined by the Act. In analyzing the various incidents of al- leged exercise of supervisory authority, we find that in each instance the evidence fails to establish that the authority exercised was anything more than strictly routine, not involving use of independ- ent judgment, nor was independently reviewed by higher authority. The exercise of such authority is insufficient to confer supervisory status.8 At most, the evidence that Womack occasionally exercised some supervisory authority, as in the transfer of employees, shows that it was exercised on an irreg- ular or sporadic basis, and that such conduct is in- sufficient to establish supervisory status under the Act.9 We therefore do not adopt the hearing offi- cer's recommendation regarding Womack's super- visory status, and we conclude that the challenge to his ballot be overruled. Accordingly, as the challenge to the ballot of Womack is overruled, and as this ballot is sufficient in number to affect the results of the election, we shall direct the Regional Director to open and count the ballot, to prepare a revised tally of bal- lots, and to issue the appropriate certification. s See Chicago Metallic Corp., supra; Advanced Mining Group, supra Y See Vanport Sand & Grovel, 267 NLRB 150 (1983); Chicago Metallic Corp., supra 1226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DIRECTION and count the ballot cast by Doyle Womack and IT Is DIRBCTBD that the Regional Director, prepare and cause to be served on the parties a re- within 10 days from the date of this decision, open vised tally of ballots. Thereafter, the Regional Di- rector shall issue the appropriate certification.