Sears, Roeburck And Co.

SEARS ROEBUCK & CO Sears, Roebuck and Company and Building Material Teamsters Local 282, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, AFL-CIO Case 2-RC- 20461 January 31, 1989 DECISION, DIRECTION, AND ORDER BY MEMBERS JOHANSEN, CRACRAFr, AND HIGGINS The National Labor Relations Board, by a three- member panel, has considered determinative chal- lenges to an election held April 7, 1988, and the heanng officer's report recommending disposition of them The election was conducted pursuant to a Stipulated Election Agreement The tally of ballots shows 30 for and 29 against the Petitioner, with 2 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 as modified 2 The hearing officer found that lead receiver Ace Johnson is a supervisor within the meaning of Sec tion 2(11) of the Act and recommended that the ' The Employer has excepted to some of the hearing officer s credibil ity findings The Board s established policy is not to overrule a hearing officers credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Stretch Tex Co 118 NLRB 1359 1361 (1957) We find no basis for reversing the findings 2 We correct the following inadvertent errors by the hearing officer (1) p 4 is corrected to reflect that the lead mechanics and lead receiver report respectively to the back shop manager and auto center manager (2) p 4 is corrected to reflect that the auto center is located 300 feet from the Employers main facility (3) on p 14 the statement that John son previously headed receiving at another Sears location is corrected to reflect that Johnson previously headed receiving at the main Bronx store (4) on p 18 the statement that Bolton s testimony corroborated that of Kuntzman Sahler and Semedo regarding Rutledge s ability to direct em ployees is corrected to reflect that Kuntzman did not testify about Rut ledge (5) the first word on p 20 should read Johnson rather than Rutledge (6) p 27 is corrected to reflect that Alexander testified that Strazzeli supervises receiving parts battery room and stock employees (7) p 29 is corrected to reflect that Alexander testified that Rutledge was offered the backroom manager position after his promotion to lead me chanic (8) on p 30 March 1 is corrected to May 1 (9) p 36 is cor rected to reflect that Alexander testified that he based his estimate of Johnson s work duties on his knowledge of operations in other locations as well as on his observations of Johnson in the auto center (10) on p 36 the statement that If no stock persons are present or available to per form this work Kuntzman will contact Johnson Johnson either performs said work or will direct a stock person to perform the labor is correct ed to reflect Kuntzman s testimony that if the stock men aren t there or they are doing something else than [sic] the driver will go in the back and see [Johnson] and [Johnson] can do that or any of the stock men can do that (11) on p 37 the statement Alexander stated he failed to clas sify Johnson as a supervisor on the above mentioned document when Johnson held the position of receiving manager is corrected to reflect Alexander s testimony that according to company records Johnson was neither a receiving supervisor in the main store nor in the auto center (12) p 57 is corrected to reflect that the auto center managers office is located in the auto center rather than in the main store (13) on p 60 L 2 Torres should read Pena Except as discussed infra these errors do not affect the outcome of this case 753 Petitioner's challenge to Johnson's ballot be sus- tained Although acknowledging that Johnson cannot hire, fire, transfer, or suspend employees, layoff, recall, evaluate, promote, or reward em- ployees, or adjust grievances, the hearing officer nonetheless found that Johnson is a statutory super- visor based on his ability to responsibly direct em- ployees Specifically, the hearing officer deter- mined that Johnson has overall responsibility for receiving work in the auto center and that he trains employees in receiving duties, instructs them to unload trucks, evaluates employee skill when as- signing work, orally reprimands employees, and au- thorizes part-time receiving employee Caceres' ab- sences from work The hearing officer further found that if Johnson were not a supervisor, re- ceiving work would be unsupervised because Auto Center Manager Joe Strazzeli's office is located in the main store, and that the ratio of supervisors to unit employees would be extremely low The Employer excepts, contending that Johnson lacks the traditional indicia of supervisory status, that he is listed on its records as nonsupervisory, does not attend management meetings, and has wages significantly less than some acknowledged unit employees, and that he recently received an award not available to supervisors Although the Employer admits that Johnson trains new employ- ees in receiving, it maintains that unit employees also train and that training , alone, is not a supervi- sory function The Employer further asserts that Johnson cannot responsibly direct employees, ap- prove absences, evaluate employee skill, or orally reprimand employees For the reasons below, we find merit in the Employer's exceptions Johnson did not testify at the hearing and the Employer's sole witness, Store Manager Sam Alex- ander, primarily sought to refute the Union s claim of supervisory status rather than to detail Johnson's duties and responsibilities Therefore, the record on which the hearing officer relied consisted primarily of the fragmented testimony of employees and other individuals claiming familiarity with John- son's work Although we accept the hearing offs cer's credibility findings for the purposes of this de- cision, we nonetheless find that the testimony of credited witnesses, taken in its entirety, coupled with Alexander's testimony to the extent it was not discredited, fails to establish that Johnson is a su- pervisor within the meaning of Section 2(11) of the Act The Employer operates an automotive center in Bronx, New York, where it is engaged in the sale and installation of automotive parts There are ap- proximately 67 employees in the auto center and 3 admitted supervisors Auto Center Manager Straz- 292 NLRB No 77 754 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD zeli, Sales Supervisor Melvin Torrain, and Back Shop Manager Claudio Ferdinand. According to the Employer, Strazzeli oversees the entire auto center operation and directly supervises 10 employ- ees including lead receiver Johnson, part-time re- ceiver Caceres, and parts employees, battery room employees, and a stockman. Johnson, a 22-year em- ployee, is one of only two employees in receiving and has been lead receiver for approximately 7 years.3 Previously, he was receiving supervisor in the main store, located 300 feet from the auto center. The hearing officer found, and we agree, that Johnson trains employees in receiving work. Ca- ceres testified that, on his hire, Store Manager Strazzeli informed him that Johnson would train him and that Caceres should follow Johnson's in- structions. Caceres, who speaks little English, learned receiving work by observing Johnson. Stock employee Pena also testified that Johnson trained him to unload trucks. And Kurt Kuntzman, who makes regular deliveries to the auto center, testified that he has seen Johnson train new em- ployees to unload trucks. Although the testimony clearly demonstrates that Johnson trains employees in receiving work, there is no evidence that, in so doing, Johnson evaluates employees' performance, makes recom- mendations to the Employer, or otherwise exer- cises independent judgment. Instead, it appears that Johnson is merely a senior, experienced employee who instructs new workers in receiving work. Such training, alone, does not establish supervisory status. See, e.g., Heck's Inc., 277 NLRB 916, 919 (1985); Judy Hornby Designs, 279 NLRB 1271, 1273 fn. 1 (1986). The hearing officer further found that Johnson "responsibly directs" employees within the mean- ing of Section 2(11) of the Act, as Johnson has overall responsibility for the receiving department, for directing and assigning receiving work, for evaluating employee skills, and, as discussed infra, for reprimanding employees. We disagree. Receiving work in the Employer's auto center consists of receiving and unloading automotive sup- plies from trucks, counting and storing the deliv- ered goods, delivering tires to installers, and depos- iting used tires on a truck outside the auto center. The receiving duties are routine and require little supervision. Caceres testified that, on his hire, he worked an entirely different shift from Johnson, 8 Although we adopt the hearing officer's conclusion that the listing of job titles in the unit description does not amount to a Norris- Thermador list, we note that the unit description here did include "lead receivers" and that Ace Johnson is the only lead receiver at the Employer's prem- ises. (See Norris-Thermador Corp., 117 NLRB 1340 (1957).) performing the same receiving work. Pena stated that he learned to unload trucks after only 1 day's instruction from Johnson. And Kuntzman testified that after Johnson trained employees to unload trucks for I day, the employees would work inde- pendently. Moreover, receiving work in the Employer's auto center frequently is accomplished through co- operative efforts, rather than by Johnson's direct assignments. Caceres testified that if a truck arrives when only he or Johnson is working, each will unload the truck alone. When both Caceres and Johnson are working, Caceres states that he will notify Johnson if he spots an arriving truck and they typically will unload it together.4 If Johnson first notices an arriving shipment, he tells Caceres, "The truck is here. Let's go out." Caceres finishes the work he is performing and then joins Johnson to unload the truck. Where there is a large ship- ment, Caceres says other employees volunteer their help. There are instances, however, when Johnson does assign receiving work. Caceres testified that when he worked a different shift from Johnson's, Johnson would stay late to give him work assign- ments . Caceres also stated that when he worked the same hours as Johnson, and a large shipment arrived, Johnson sometimes instructed him to stop work and unload the truck. Kuntzman, Sahler, and Moore also testified that they have seen Johnson instruct receiving, porter, and stock employees to help unload trucks. And Pena stated that Johnson has directed him and another stock employee, Lawrence, to unload a truck. Pena testified that when he and Lawrence performed this receiving work, Johnson usually assigned Lawrence the fork- lift work on the basis that: Well, Lawrence at that time was more experi- enced in that than I did [sic]. So he used to mostly tell Lawrence, Lester Lawrence to drive the forklift. That time [sic] I didn't know how to maneuver it that well. Contrary to the hearing officer, we do not view these assignments of work as "responsible direc- tion" within the meaning of Section 2(11). Thus, because receiving work in the Employer's auto center is repetitive, easily learned, and requires little direct supervision, Johnson's assignments are routine in nature.5 These work assignments do not require the exercise of independent judgment, a prerequisite for finding supervisory status.6 Under 4 Caceres testified that approximately once each week Johnson unloads a truck alone. Twice weekly Johnson unloads a truck with other employ- ees. 6 See, e.g., House of Mosaics, 215 NLRB 704, 710 (1974). Gem Urethane Corp., 284 NLRB 1349 (1987). SEARS ROEBUCK & CO comparable facts in Chicago Metallic Corp, 273 NLRB 1677 (1985), enf denied in relevant part 794 F 2d 527 (9th Cir 1986), we held that a shift lead- man was not a statutory supervisor because his as- signment and direction of production employees was routine and more clerical than supervisory Similarly, in Williamson Pggly Wiggly, 280 NLRB 1160, 1166-1169 (1986), enfd 827 F 2d 1098 (6th Cir 1987), a produce manager was found not to be a supervisor where the work in his department was routine and where the employees required little, if any, direction in completing their tasks Nor does the fact that Johnson selected Law- rence over Pena for forklift driving reflect John- son's ability to responsibly direct employees As in Machine Tool & Gear, 237 NLRB 1109 (1978), enfd 652 F 2d 596 (6th Cir 1980), Johnson is merely an experienced employee who knows which employee can better operate certain equip- ment Johnson's use of this information when as signing receiving work does not support a finding of supervisory status Nor do we agree with the hearing officer that Johnson reprimands employees Store Manager Al- exander testified, without contradiction, that John- son is not authorized to discipline employees and that discipline is recorded on deficiency memos that Johnson did not and could not prepare The hearing officer nonetheless found that Johnson orally reprimanded employees Caceres and Pena Caceres, who had been employed by the Employer for 5 months when he testified, stated that he once went to lunch without realizing that Johnson was still on break Johnson called the incident to his at- tention, told him not to do it, and informed Ca- ceres that someone always had to be on the job Pena testified that while Johnson was training him in receiving work, Pena improperly broke the seal on a truck without first matching the seal to the shipping receipt Johnson informed Pena that this was an error and instructed him, in the future, to await his instructions before opening trucks' Contrary to the hearing officer, we do not view the Caceres and Pena incidents, the only two cited during Johnson's 7 years as lead receiver, as evi- dence of Johnson's supervisory status Even assum ing that Johnson's verbal admonishments properly can be termed "oral reprimands," such minor inci- dents do not establish supervisory status 8 Thus, there was no evidence that these incidents had any 7 We do not view Johnson s instruction that Pena await his approval before opening a truck as evidence of supervisory status Pena testified that in Johnson s absence he was directed to secure approval from a nonsupervisory unit employee before opening a truck 8 Dickinson Iron Agency 283 NLRB 1029 (1987) 755 effect on the job status of either employees Nor did Johnson's statements reflect the type of discre- tion indicative of supervisory status 10 Instead, Johnson's admonishments were more in the nature of corrections offered by a senior employee to newer hires, and are not sufficient to establish su- pervisory authority Gem Urethane Corp, 284 NLRB 1349, 1350 (1987) The record also does not support the hearing of- ficer's finding that Johnson exercised independent judgment by authorizing Caceres' absences from work Store Manager Alexander testified, without contradiction, that new employees are instructed during indoctrination to contact personnel when they miss work Personnel will then notify the ap- propriate department of the employee's absence Caceres testified that although he received a tele- phone number to contact in the case of absences, he instead telephoned Johnson or a manager when he was absent On those occasions when he con- tacted Johnson, the lead receiver would say "Okay " Relying on Caceres' testimony, discussed supra, the hearing officer found that Johnson exercised in dependent judgment in authorizing Caceres' ab sences However, based on the record as a whole, we disagree First, Caceres testified that the Em- ployer and Johnson never informed him that John- son was his supervisor Neither did Caceres state that Johnson instructed him to report absences to Johnson Instead, Caceres apparently decided on his own to notify Johnson when he missed work Yes-he was told-he was given a phone number to call if he had to be out but to be more correct he would call the person that did his schedule [Johnson] 11 The evidence also does not show what use Johnson made of Caceres' leave information Caceres testi- fied that Johnson merely said, "Okay" when noti fled of the absence, Johnson never discussed leave with him Significantly, the only individual to dis- cuss leave with Caceres was Auto Center Manager Strazzeli who told him "not to be out " In sum, the record evidence fails to establish that Johnson exer- cised independent judgment in authorizing Caceres' absences 12 9 John Cuneo of Oklahoma, Inc 238 NLRB 1438 1439 (1978) enfd 106 LRRM 3077 (10th Cir 1980) i0 Chicago Metallic Corp supra, 273 NLRB at 1693 ' i Caceres testimony is in the third person because he testified through a translator 12 Cf Wilco Business Forms 280 NLRB 1336 (1986) In Wilco supervi sory status was found where inter aha the supervisor informed em ployees who telephoned in their absences that he would handle it The employees were never told that the supervisor lacked authority to grant Continued 756 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Finally, we do not agree with the hearing officer that Johnson must be a supervisor, lest the receiv- ing work be unsupervised, and in order to prevent a sharply imbalanced supervisor employee ratio As to the lack of supervision, the hearing officer noted that the auto center manager's office was located in the main building, and that Strazzeli could not view the unloading of trucks in the Employer's parking lot from his office Unless Johnson were a supervisor, the hearing officer concluded, receiving employees would entirely lack supervision We dis agree The receiving work, as discussed supra, is routine, repetitive, and requires little direct supervi- sion Moreover, Auto Center Manager Strazzeli's office is located in the car center, rather than in the main building, and Store Manager Alexander, who testified that he maintains exclusive responsibility for operation of the auto center, can observe the auto center from his office And, according to Ca- ceres, Alexander visits the auto center daily Ac- cordingly, supervision is available as needed Nor would finding Johnson a supervisor correct any imbalance in the ratio of supervisors to em- ployees Inasmuch as the Petitioner asserts, and the hearing officer finds, that Johnson only supervises part time employee Caceres on a regular basis, and other employees only as needed to perform receiv ing work, the supervisory ratio would remain es- leave or that he was required to check with management Here however there is no evidence that Johnson instructed Caceres to notify him when he would miss work and significantly Caceres admitted that the Em ployer had instructed him to follow another procedure for reporting his absences sentially unchanged even if Johnson were a super visor In sum, the factors relied on by the hearing offi- cer, 13 considered separately and cumulatively, and when reviewed in light of the record, are insuffi cient to establish that Johnson possessed or exer- cised any of the indicia of supervisory status enu merated in Section 2(11) Therefore, contrary to the hearing officer, we shall overrule the challenge to Johnson s ballot, and direct that it be opened and counted DIRECTION IT IS DIRECTED that the Regional Director shall, within 10 days from the date of this Decision and Direction, open and count the ballot of Ace John son and prepare and serve on the parties a revised tally of ballots Thereafter, the Regional Director shall issue the appropriate certification ORDER It is ordered that the proceeding is remanded to the Regional Director 13 In her report the hearing officer summarizes the testimony of Alex ander Caceres and Pena to the effect that Johnson schedules Caceres hours of work However the hearing officer does not analyze this tests mony when discussing Johnson s status as a 2(11) supervisor We have reviewed this testimony and find that it does not establish that Johnson is a statutory supervisor Alexander whose testimony on this point is unrefuted and not discred ited stated that the auto center manager informs Johnson how many hours are budgeted for receiving work Johnson a full time employee who works a regular schedule then merely determines which remaining budgeted hours Caceres will work We do not view such scheduling as an indicium of supervisory status