Auto West Toyota, Employer-Petitioner

AUTO WEST TOYOTA 659 Tr-City Motor Company, Inc. d/b/a Auto West Toyota, Employer-Petitioner and East Bay Automotive Council, for and on behalf of East Bay Automotive Machinists Lodge No. 1546, a/w Machinists Automotive Trades District Lodge No. 190 of Northern California; Auto, Marine and Specialty Painters Union, Local No. 1176; and Teamsters Automotive Employees Union, Local No. 78. Case 32-RM-452 30 June 1987 DECISION AND DIRECTION BY MEMBERS JOHANSEN, BABSON, AND STEPHENS The National Labor Relations Board, by a three- member panel, has considered determinative chal- lenges in an election held 2 May 1986 1 and the hearing officer's report recommending disposition of them. The election was conducted pursuant to a Stipulated Election Agreement. The tally of ballots shows 11 for and 8 against the Joint Union Repre- sentative (the Union), with 3 challenged ballots.2 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 Mark Goularte was a supervisor within the meaning of Section 2(11) of the Act and recommended that the Union's challenge to Goularte's ballot be sustained. The Employer excepts, contending that Goularte possessed none of the indicia of supervisory status enumerated in Section 2(11) of the Act. We find merit in the Employer's exceptions and conclude that the Union has not met its burden of establish- ing that Goularte was a supervisor. The Employer operates an automobile dealer- ship, which includes a service department and a parts department. 3 Mark Goularte had been the parts manager for the dealership's previous owner, King Arthur Toyota, and the Employer retained him as parts manager when it purchased the dealer- ship in September 1985. Goularte continued in this position until he quit in approximately June 1986. In addition to Goularte, there were five other em- ployees in the Employer's parts department, all of whom had worked for King Arthur Toyota and All dates are 1986 unless stated otherwise During the hearing the Employer and the Union withdrew their re- spective objections to the election. The Union further withdrew its chal- lenges to two of the three challenged ballots. The hearing officer, in view of his recommendation that the challenge to the remaining ballot be sus- tained, found that the above two challenged ballots were no longer deter- minative and they should not be opened and counted. 'The Employer is one of several automobile dealerships operated by a parent company; TASHA Corporation had at least 5 years' experience. Three of these em- ployees worked exclusively as partsmen, one worked as a parts delivery driver, and one, Randy Johnson, divided his time between working as a partsman and engaging in off-premises sales of parts to various businesses. Goularte spent 65 to 70 percent of his time performing the same duties as other parts department employees; the remainder of his time was spent maintaining and ordering an adequate supply of parts and conducting the de- partment's inventory. During Goularte's tenure with the Employer, there were no hirings, firings, significant discipline, or evaluations of the parts department employees. Moreover, there is no evidence that Goularte had the authority to hire, fire, discipline, or evaluate employees while with the Employer. When the Employer began operations, it did not consult Goularte regarding its decision to hire the other former King Arthur parts employees, even though Goularte was the ostensible supervisor of those em- ployees while at King Arthur. Approximately 1 month after the Employer com- menced its business, Goularte was told by Don Carvalho, 4 the Employer's parts and service coor- dinator, that if Goularte or other parts department employees wanted time off or to leave work early, Goularte would have to seek approval from Car- valho prior to granting such requests. This was a change from the way Goularte operated as parts manager at King Arthur Toyota because at King Arthur Goularte could leave work when he wanted and could grant time off to the parts em- ployees. Subsequently, on the occasions when Gou- larte left work early while employed by the Em- ployer, Carvalho reminded Goularte that he was not to do that. Goularte later discussed Carvalho's remarks with Bob Charles, the Employer's part owner and general manager, who reaffirmed that the service coordinator was "in charge" of the service and parts departments. doularte understood "in charge" to mean that the service coordinator was the immediate supervisor of those departments. Carvalho was replaced by Farrell (Corky) Morrow5 as service coordinator about 1 March. Sometime after 1 March, but before the 2 May election, Morrow reiterated to Goularte that, as service coordinator, Morrow was in control of the parts department and would handle all personnel matters. 6 When a parts employee asked Goularte 4 The hearing officer inadvertently referred to Carvalho as "Carvello." 5 The hearing officer inadvertently referred to Morrow as "Morro." The parts and service coordinator had an office in the Employer's facility but shared a desk in the parts department with Al Goularte, the assistant parts manager. 284 NLRB No. 77 660 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD for 2 days off, Goularte told him that he had to check and see if it was allowable. Goularte advised Morrow of the request, and Morrow said the em- ployee could take the days off. There is no evi- dence that Goularte independently granted time off to employees while he was working for the Em- ployer. Furthermore, Goularte did not request em- ployees to work overtime; rather, it was Morrow who made such requests. As the Employer's parts department manager, Goularte was paid a salary and received no over- time pay. The hearing officer found that all the parts department employees were paid on an hourly basis and received overtime. The record in- dicates, however, that employee Randy Johnson was paid a salary and also received overtime. Moreover, all department employees, including Goularte, were eligible for a "bonus" payment that was based on the department's net profit. The man- ager was paid 4 percent of the department's entire net profits, while the other employees received from 2 to 3 percent of the department's net profits over $15,000. 7 The hearing officer found that there was a substantial difference, averaging approxi- mately $700 per month, between these two plans The Employer contends, however, that there was no credible basis for the hearing officer to find an average monthly difference of $700 because Gou- larte testified that his bonus varied between a low of $350 to $400 to a high of $800 to $900. We fmd merit in the Employer's exception, as it appears that the hearing officer's finding is based on the testimony of Al Goularte, who became parts man- ager after Mark Goularte quit. Although Al Gou- larte testified that the average bonus for partsrnen was $200 per month and that the average bonus for parts managers was $900 per month, there is no evidence that Mark Goularte averaged a $900 bonus per month. The hearing officer found further differences in the terms and conditions of employment between Goularte and the other parts employees. Thus, he found that Goularte, unlike the other employees, did not have to fill out a timecard, and that Gou- larte had the use of a demonstrator vehicle. The record shows, however, that although only Gou- larte appeared to have regular use of the parts van or truck, the other parts employees were allowed to take home the van or truck when they needed it for personal use. Approximately 4 to 6 weeks after the Employer began operations, it instituted a new schedule 7 The hearing officer incorrectly found that the parts manager re- ceived 4-1/2 percent of the department's net profits, and that the other department employees were paid a percentage of the department's net profits over $20,000. whereby the parts employees other than Goularte and the parts delivery driver worked 4 hours over- time on Saturday mornings. The hearing officer found that while an uncomplicated and regular ro- tation of Saturday assignments was quickly de- vised, Goularte was responsible for that schedul- ing.s Sometime before 1 February, Goularte suggested to the Employer that the compensation package for the parts employees be improved. The record shows that Goularte informed TASHA Corpora- tion Parts and Service Coordinator Charles Andre- sen that because the Employer's sales were lower than those of King Arthur, the employees were not receiving bonuses under the current bonus plan. Andresen requested some documentation, and Gou- larte gave him some financial statements from King Arthur. Andresen then formulated a new compen- sation package without any input or recommenda- tions from Goularte. The new compensation pack- age, effective 1 February, was reduced to writing and distributed to the parts employees over the sig- nature of Goularte and another individual. s Either Andresen or Carvalho asked Goularte to sign the new plan and distribute it to employees, which Goularte did. Furthermore, in September 1985 Goularte and Andresen signed a separate compen- sation package for employee Johnson.1° Goularte attended two management meetings which were held at the TASHA Corporation's fa- cility and were attended by parts and service man- agers for various TASHA dealerships, as well as by Charles Andresen. The topics discussed at both meetings were past sales, sales trends, sales train- ing, and customer service. Goularte testified that these meetings were like a "pep talk." Prior to the union election scheduled for 17 March," Goularte met with Bob Charles, the Em- ployer's part owner and general manager, and Morrow. At this meeting, Charles asked Goularte about the probable votes of each of the parts de- partment employees. Also discussed at this meeting was whether the parts employees were aware of the purported benefits of the Employer's "flat rate" compensation system compared to a traditional 8 We note that in so finding, the hearing officer relied m part on events which occurred after Goularte was no longer employed by the Employ- er Such events do not affect our assessment of the authority, if any, exer- cised by Goularte while he was the Employer's parts manager. 9 When shown the compensation package at the hearing, Goularte tes- tified that the other signature might be that of Don Carvalho, the parts and service coordinator. The other signature is illegible and we find that the identity of this other signer has not been established. 1° Goularte's signature was over the title "Dept Mgr.", Andresen's signature was over the phrase "TASHA approval" " An election was held 17 March Subsequently, pursunt to stipula- tions on objections and challenges executed by the Employer and the Union, the rerun election at issue here was held 2 May. AUTO WEST TOYOTA 661 hourly wage system. Similarly, prior to the 2 May election, Goularte was again asked by Charles about the probable votes of the parts employees. The hearing officer found that Goularte was a supervisor within the meaning of Section 2(11) be- cause he had the responsibility for managing the operation of the parts department, as evidenced by his attendance at management meetings conducted by TASHA Corporation, as well as his responsibil- ity for overseeing the day-to-day operation of the department. In this latter regard, the hearing offi- cer noted that Goularte was responsible for main- taining and ordering an adequate supply of parts and for conducting the department's inventory. To the extent that Goularte's responsibility regarding personnel matters was reduced by the Employer's parts and service coordinators, the hearing officer stated that such a reduction was never communi- cated directly to the employees and did not involve nonpersonnel matters. Further, the hearing officer found that Goularte was responsible for scheduling the parts employees for Saturday morning overtime work. The hearing officer also noted that Gou- larte's supervisor, the parts and service coordina- tor, did not have an office in the parts department and did not routinely engage in direct supervision of the parts department operation. The hearing of- ficer further found that Goularte's supervisory status was evidenced by Goularte's successfully recommending that the parts employees' compensa- tion package be improved, by the Employer's asking Goularte how each parts employee would probably vote in the upcoming Board elections, and by Goularte's superior compensation relative to the other parts department employees. The hear- ing officer also noted that Goularte's vested inter- est in running' a profitable, arts department indicat- 1 ed that his interests were learly aligned with those of the Employer. The Employer contends, to the contrary, that Goularte possessed none of the su- pervisory indicia specified in Section 2(11). We agree with the Employer 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, 12 provided that authority is exercised with independent judgment on behalf of manage- ment and not in a routine manner. 13 Thus, the ex- ercise of some "supervisory authority" in a merely routine, clerical, perfunctory, or sporadic manner 12 See George C. Ross Co. 270 NLRB 232 (1984), NLRB v. Edward G. Budd Mfg. Co., 169 F.2d 571 (6th Cir. 1948), cert. dented 335 US 908 (1949). 13 See Hydro Conduit Coq', 254 NLRB 433, 437 (1981) does not confer supervisory status on an employ- ee. 1 4 Contrary to the hearing officer, we conclude that Goularte possessed none of the supervisory in- dicia enumerated in Section 2(11). Regarding Gou- larte's attendance at meetings conducted by TASHA Corporation, we agree with the Employer that the hearing officer erred in relying on Gou- larte's attendance as evidence of supervisory status. At the two management meetings that Goularte at- tended, all that was discussed were past sales, sales trends, sales training, and customer service. Gou- larte testified that these meetings were like a "pep talk." There is no evidence that personnel matters or other issues relating to supervising a department were discussed. Thus, we find that Goularte's at- tendance at these meetings does not indicate that he possessed supervisory authority. Similarly, Goularte's responsibility for maintain- ing and ordering an adequate supply of parts and conducting the department's inventory is not evi- dence of his supervisory status, as such activities are not included among the supervisory indicia of Section 2(11). Further, the taking of inventory was a routine matter and Goularte exercised no signifi- cant independent judgment regarding it. He could decide when to take inventory, but only within the timeframe set by the Employer. Thus, the invento- ry requests were initiated by Morrow or Charles and they told Goolarte the ultimate date by which the inventory had to be completed. Regarding the hearing officer's finding that Gou- larte was responsible for scheduling employees for Saturday overtime work, the record shows that Goularte suggested to the employees that they rotate the Saturday work unless one employee wanted to work more than the others, and then Goularte asked for volunteers to start working on Saturdays. The employees volunteered which Sat- urday they would begin working, and a rotation system was devised which Goularte wrote on a calendar. The employees later switched their Satur- day assignments among themselves without clear- ing such changes with Goularte. Thus, there is no evidence that Goularte himself determined which employees would work on which Saturday. Rather, Goularte simply suggested to the employ- ees that they rotate the work and the employees adopted this suggestion, and Goularte then wrote the rotation system on a calendar. Such actions by Goularte do not indicate that he had the authority to "assign" the Saturday work; rather, his actions 14 See Chicago Metallic Corp, 273 NLRB 1677 (1985); Advanced Mining Group, 260 NLRB 486, 507 (1982), 662 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD were routine and ministerial, and thus did not dem- onstrate supervisory authority. Regarding Goularte's role in recommending that the parts employees' compensation package be im- proved, we find, contrary to the hearing officer, that Goularte's actions in this respect do not estab- lish supervisory status. Goularte's only role in the formulation of the new package was to bring the problem of employees not receiving bonuses to An- dresen's attention, provide some data, sign the package at the Employer's request, and distribute the package. Goularte did not successfully recom- mend how the old package was to be changed, and his signing the package was simply a ministerial act. To the extent that his initial suggestion to An- dresen caused the change, we do not find that fact in itself sufficient to show supervisory status and we note that Goularte's suggestion was not part of a regular review of the employee's compensation. Further, there is no evidence that Goularte had any role in formulating the separate compensation package for employee Johnson, even though both Goularte and Andresen signed the package. Gou- larte testified that Andresen had asked him to sign the plan and he did so, and that apparently was the extent of Goularte's involvement. The hearing officer also considered significant the fact that the Employer asked Goularte at least twice how each parts employee would probably vote in the upcoming union elections. Contrary to the hearing officer, we find that the Employer's asking Goularte such questions does not demon- strate Goularte's supervisory status. Although this incident may well indicate that the Employer trust- ed Goularte, it is not probative of whether or not Goularte possessed the supervisory indicia of Sec- tion 2(11). Further, we do not agree with the hear- ing officer's reliance on his finding that Goularte had an "obvious vested interest" in running a prof- itable parts department (presumably based on the bonus system discussed above) as support for a conclusion that Goularte's interests were "clearly aligned with those of the Employer" and that he therefore was a statutory supervisor. In this regard, we note that based on the bonus system all parts department employees had an interest in the profit- ability of the department. Moreover, the hearing officer placed undue reliance on Goularte's "supe- rior compensation" as compared to the other parts employees. Although an individual's compensation is a factor considered by the Board in assessing su- pervisory status, it is a "secondary indicium" of su- pervisory status and not determinative of the issue. Finally, the hearing officer noted that the parts and service coordinator's office was not located in the parts department and found that the coordina- tor did not routinely engage in direct supervision of the parts employees. Thus, the hearing officer concluded that there was no day-to-day supervision of the parts employees by the Employer's admitted managers. Goularte testified, however, that the parts and service coordinator would come into the parts department every morning to "say hello," and occasionally would give Goularte ideas to "try to help things along." Goularte also testified that in terms of the parts employees knowing what work they were to do, they "pretty much . . . knew what to do." Because each of the parts employees had at least 5 years of experience, and in view of the routine nature of the parts department jobs, we find merit in the Employer's position that little su- pervision of the employees was required. More- over, to the extent that actual supervision was needed, such as for granting time off and assigning overtime, the parts and service coordinator was sufficiently close to perform such supervisory func- tions and, as noted above, in fact exercised the au- thority to grant time off and to assign overtime. In summary, the factors relied on by the hearing officer, when reviewed in light of the record, are insufficient to establish that Goularte possessed or exercised any of the indicia of supervisory status enumerated in Section 2(11). Therefore, contrary to the hearing officer, we shall overrule the chal- lenge to Goularte's ballot. Accordingly, we shall direct that Goularte's ballot and the ballots of the two remaining employees, the challenges to which have been withdrawn, be opened and counted. DIRECTION It is directed that the Regional Director, within 10 days from the date of this decision, open and count the ballots cast by Mark Goularte, Randy Johnson, and John Blakely and prepare and cause to be served on the parties a revised tally of bal- lots. Thereafter, the Regional Director shall issue the appropriate certification.