California Beverage Co.

328 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Coors Distributing Company of San Jose, Inc., d/b/a `California Beverage Company and Pro- fessional & Clerical Employees Division Team- sters Local Union #856, affiliated with Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Peti- tioner. Case 20-RC-15989 25 March 1987 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 21 March 1986 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 3 for and 0 against the Petitioner, with 4 challenged ballots. The Board has reviewed the record in light of the exceptions and briefs, and has adopted the hearing` officer's findings and recommendations, only to the extent consistent with this Decision and Direction. I The hearing officer found that Stephanie Sung is a supervisor within the meaning of Section 2(11) of the Act and recommended that the challenge to Sung's ballot be sustained. The Employer excepts, contending that Sung neither exercises independent judgment in connection with her duties nor pos- sesses any of the indicia of supervisory status as enumerated in Section 2(11) of the Act. We find merit in the Employer's exceptions. It is well settled that the possession of any one of the indicia of supervisory authority specified in Section 2(11)2 of the Act, provided that such au- thority is exercised with independent judgment on behalf of management, is sufficient to confer super- visory status on an employee. Commercial Fleet Wash, 190 NLRB 326 (1971); Indiana Refrigerator Lines, 157 NLRB 539, 550 (1966). However, isolat- ed or sporadic exercise of this authority is insuffi- cient to predicate a supervisory fording. See George C. Foss Co., 270 NLRB 232 (1984); Teamsters Local 574, 259 NLRB 344 (1981). Further, employees i In the absence of exceptions, we adopt pro forma the hearing offi- cer's'findmg that Anna'Cardinale is a confidential employee We need not pass, therefore, on the Employer's contention in its exceptions that Cardinale is also a managerial employee. 2 Sec 2(11) of the Act states: The term "supervisor" means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effective- ly to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. who are merely conduits for relaying management information to other employees are not true super- visors. George C. Foss Co., supra; Bowne of Houston, Inc., 280 NLRB 1222 (1986); Hydro Conduit Corp., 254 NLRB 433 (1981). The burden of proving supervisory status rests on the party alleging that such status exists. Tucson Gas & Electric Co., 241 NLRB 181 (1979); St. Al- phonsus Hospital, 261 NLRB 620, 624 (1982); Hydro Conduit Corp., supra. As shown below, we find that the Petitioner has not met that burden. The Employer is a wholesale beer, distributor with offices in San Francisco and San Jose, Cali- fornia. The San Francisco office employs various sales, warehouse, and delivery persons, along with seven office clerical employees, six of whom work in the front office. The Employer's president and general manager, Edward Derry, and its sales man- ager, Peter Marino, are located at this office. Con- troller Mark Blair has his office at the San Jose fa- cility. Sung is the most experienced employee, having worked for the Employer for 14 years, and in 1985 Sung was given the title of office manager. In finding that Stephanie Sung is a supervisor, the hearing officer relied mainly on the testimony of clerical employee Janet Davis, the only clerical employee who has been hired since Sung became office manager. Davis testified that she had two interviews, both with Sung. In the first interview, Sung asked about Davis' general employment his- tory and background. In the second interview, Sung and Sharon Horn showed Davis what type of work she would be doing. Within a week of the second interview Sung called Davis and told her she was hired.3 From this testimony, which he characterized as "pivotal and persuasive," the hear- ing officer concluded that Sung had hired Davis or effectively recommended that Blair hire her. In addition, the hearing officer also found that because Sung talks with Blair daily, and "lets him know how the office is running," she has become his "eyes, ears, and mind in the San Francisco office." In making these reports to Blair, the hear- ing officer reasoned that Sung was using independ- ent judgment. The hearing officer also pointed to Sung's title4 and higher salary5 as further indicia of her supervi- sory status. While he accepted the Employer's ex- planation that both are merely functions of her years with the Company, he stated that through ' Davis was hired on 30 July 1985 4 The hearing officer noted that other persons outside of the office clerical unit who have used the title of "Manager" on their business cards were allegedly supervisors 5 Sung receives several hundred dollars per month more than any of the other office clericals 283 NLRB No. 52 CALIFORNIA BEVERAGE CO. 329 her tenure she also has accumulated "authority" and is increasingly relied on "to keep the front office operating smoothly." The hearing officer's analysis is critically flawed. The hearing officer in his report failed to recount and completely ignored the testimony of the Em- ployer's witnesses, much of which was corroborat- ed and uncontradicted. This testimony, as we show below, refutes that relied on by the hearing officer to establish Sung's supervisory status. Stephanie Sung testified as follows about her duties in the hiring process. In an initial meeting Sung reviews the written application and gathers more information orally from the applicant. Sung or Sharon Hom may also show the prospective em- ployee around the office. Sung then calls Blair and relays the information to him and asks whether he wants to schedule an interview. Ultimately, Blair makes the decision whether or not to hire the ap- plicant and then has Sung inform the person of the decision.6 Mark Blair's recounting of the hiring process confirmed Sung's description. Blair testified he never relies solely on Sung's review of an appli- cant, but makes a decision only after he conducts his own independent investigation. Blair and Sung testified that this procedure was followed when Janet Roberts was hired,' and there is no reason to believe that this was not also the case when Janet Davis was hired. In this regard, we note that Davis' testimony does not contradict that of Blair and Sung. Davis testified that Sung conducted the interviews and informed her that she was hired, not that Sung made the decision to hire her. The hearing officer failed to recognize that Davis lacked any personal knowledge of who made the decision to hire her. In regard to Sung using independent judgment in making her reports to Blair about employee per- formance, the hearing officer again ignored Blair's and Sung's uncontroverted testimony. ' They both testified that Blair's usual practice when a new em- ployee is hired is to call several office clericals and talk about the employee's performance. He often received such reports from Sharon Hom, Viola Hom, and Janet Roberts, all three of whom voted in the election and admittedly are not supervisors. As to the hearing officer's reliance on Sung's title, the hearing officer ignored the fact that three of the six front office employees, including Sung, have some managerial title. Sharon Hom has the title of computer supervisor and Janet Roberts has the title of credit manager. Both of these women voted in the election and admittedly are not super- visors. In addition, as noted by the hearing officer, the uncontradicted testimony of the Employer's witnesses shows that Sung received the title of office manager because of her long service to the Employer. Further uncontradicted testimony reveals that Sung possessed none of the indicia of supervisory status. The six front office employees perform rou- tine office work, which includes typing, phone work, filing, invoicing, and computer input. The work is repetitive and, as Derry testified, very little supervision is needed. Sung performs the same work as the other office employees and has only two unique duties: keeping track of employee ab- sences and gathering and maintaining payroll records. Her duties in this regard are clerical; she simply records the information given to her by an employee, and she has no authority to change the information. Also, Sung is on the same pay scale and receives the same benefits as the other clerical employees. Both Edward Derry, and Mark Blair testified that the office manager has' no authority to hire, fire, discipline, suspend, lay off, recall, pro- mote, evaluate an employee for a change in com- pensation, approve overtime, or grant vacation time or time off. Blair further testified that he alone makes all the office clericals' work assignments and reassignments. As to hiring, Sung and Sharon Hom have con- ducted some second interviews with Blair. Howev- er, as Blair testified, they did so only at his request and only to answer questions about the office duties. Although' Sung has voiced an opinion on whether an applicant should be hired, Blair testi- fied that he never relies solely on her opinion in making a decision. Also, other employees have made' recommendations or voiced an opinion re garding an applicant. Peter Marino testified that Janet Roberts has recommended two applicants, in-, cluding Pam Howe, and Laurie Romero has also recommended an applicant. Neither Roberts nor Romero are supervisors. In the event of a discharge, Blair testified that he conducts an investigation. He talks with the office clericals and may observe the employee himself before making a decision. According to his uncon- tradicted testimony, this procedure was followed in the discharge of Pam Howe. Blair talked to Janet Roberts," Viola Hom, and Sung about Howe's per- 6 During the hearing the Petitioner's counsel asked Sung to define the word "hire " Sung replied that "hire" means that she is to inform the ap- By Peter Marino's uncontradicted account , Roberts has also recom- plicant that they have a job, after Blair has told her to do so. mended that a sales employee be discharged . She was receiving com- 7 Sales Manager Marino testified that Blair, before deciding to hire plaints from customers about the salesperson and went to Marino to sug- Roberts, called her former employer. gest that the person be fired. 330 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD formance. In order to correct the problem, he had Sung -explain to her what the correct procedure was. When Howe's performance did not improve, he had Sung tell her she was fired. There is no evi- dence that Sung was anything other than a conduit for Blair's instructions. With regard to evaluating employees' perform- ance, both Blair and Sung testified that Sung has done only one evaluation. When Janet Roberts complained about the delay in getting her evalua- tion and raise, Blair directed Sung to give Roberts a 3-month evaluation. They had discussed which boxes Sung should fill in on the form, and Sung followed Blair's instructions. Sung was not the office manager at this time. According to uncontroverted statements by Derry and Blair, Sung cannot grant a wage, in- crease. A request for a raise must be approved by Derry or a higher company official.9 In Janet Rob- erts' case it was Derry who authorized her raise. Both Derry and Sung testified that Sung has no authority to -grant time off, 10 but merely acts as a conduit relaying information. Because of the small number, of employees, the front office is "close- knit," and management allows the office employees to schedule their own vacations and time off. The employees merely report to Sung when they are going to take time off. She in turn reports to Derry, who routinely signs off on the absence form. The record is devoid of any evidence that Sung has authority to grant overtime. The record is also devoid of any any evidence that Sung has any author- ity to .discipline workers. Rather, the power to dis- cipline is vested in Derry, Marino, and Blair. Ac- cording to the uncontradicted testimony of Derry and Peter Marino, Roberts has twice been,repri- manded for tardiness, once by Derry and once by Marino. With respect to the handling of employees' grievances, there is no evidence that Sung has an- ,9 Roberts testified that it was her understanding that Sung has the au- thority to grant her a' raise This "understanding" was based on a state- ment made by Sung during Roberts' evaluation, i e., that Sung would give Roberts $50 more. However, Roberts later admitted that she was unaware of who actually granted her the raise Furthermore, in her initial attempt to secure a raise she went to Peter Marino and not Sung, who was not the office manager at that time. When she complained about the delay in getting her evaluation and raise, Viola Hom, who was , then office manager, told her to contact Blair in order to remedy the situation. '° According to'Janet Davis' own testimony, when she was selected for jury duty, it was Davis herself who, decided whether or not she would attend and, after the decision was made, Davis told Sung how she intended to change her work hours thority to adjust or correct grievances. Blair testi- fied that he generally - handles- all grievances through his constant contact with the San Francis- co employees, either by phone or in person. For the above reasons, we conclude that the Pe- titioner has not met its burden of establishing that Sung is a supervisor as defined by the Act. In ana- lyzing the various incidents of alleged, exercise of supervisory authority, we find that in each instance the evidence fails to establish that the -authority ex- ercised was anything more than of strictly, routine nature, not involving the use of independent judg- ment. - With regard to hiring, firing, evaluating employ- ee performance, granting time off, and adjusting grievances, the evidence shows that Sung merely receives and relays information to and from Blair and thus acts only as a conduit and not a true su- pervisor. See Hydro Conduit Corp., 254 NLRB 433 (1981); Chicago Metallic, 273 NLRB 1677,- 1688- 1694 (1985). With regard to the remaining indicia of supervisory status, the record is devoid of any evidence to establish that Sung was a supervisor. See Bo,wne of Houston, Inc., 280 NLRB 1222 (1986). The record is clear that Sung's responsibilities did not confer on her supervisory status; rather, the record establishes that she performs the same work, receives the same benefits, and is on the same pay scale as the other office clerical employees. Fur- ther, neither Sung's, title nor her ability "to keep things running smoothly" is sufficient to confer on her supervisory status. Marukyo U.S.A., Inc., 268 NLRB 1102 (1984); Hydro Conduit Corp., supra at 438. We therefore find, contrary to the hearing offi- cer's recommendation, that Sung is not a supervi- sor within the meaning of the Act, and we over- rule the challenge to her ballot. Accordingly, as this ballot is sufficient in number to affect the re- sults of the election, we shall direct the Regional Director to open and count her ballot, to prepare a revised tally of ballots, and to issue the appropriate certification. DIRECTION IT IS DIRECTED that the Regional Director, within 10 days from the date of this decision, open and count the ballot cast by Stephanie Sung and prepare and cause to be served on the parties a re- vised tally of ballots. Thereafter, the Regional Di- rector shall issue the appropriate certification.