Rockspring Development, Inc.

ROCKSPRING DEVELOPMENT, INC. 353 NLRB No. 105 1041 Rockspring Development, Inc. and United Mine Workers of America, Petitioner. Case 9–RC– 17844 February 27, 2009 SUPPLEMENTAL DECISION, DIRECTION, AND ORDER BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER The National Labor Relations Board has considered determinative challenges in an election held November 13, 2003, and the hearing officer’s supplemental report recommending disposition of them.1 The election was conducted pursuant to a Stipulated Election Agreement. The revised tally of ballots shows 110 for and 108 against the Petitioner, with 4 determinative challenged ballots.2 The Board has reviewed the record in light of the ex- ceptions and briefs and has decided to adopt the hearing officer’s supplemental rulings, findings, and recommen- dations as modified below. I. As noted, the remaining issues in this case concern the determinative challenged ballots of chief electricians Charles Stollings, Andrew Jackson Sharp, and Bobby Lee Stowers, and safety coordinator Ernest Bartram. The hearing officer in his supplemental report recommended overruling the Petitioner’s challenges to the ballots of Stollings, Sharp, and Stowers, finding them not to be supervisors under Section 2(11) of the Act, as interpreted in Oakwood Healthcare, supra. We agree with those findings for the reasons set forth in the hearing officer’s 1 Effective midnight December 28, 2007, Members Liebman, Schaumber, Kirsanow, and Walsh delegated to Members Liebman, Schaumber, and Kirsanow, as a three-member group, all of the Board’s powers in anticipation of the expiration of the terms of Members Kir- sanow and Walsh. Pursuant to this delegation, Chairman Liebman and Member Schaumber constitute a quorum of the three-member group. As a quorum, they have the authority to issue decisions and orders in unfair labor practice and representation cases. See Sec. 3(b) of the Act. 2 The initial tally of ballots showed 110 for and 103 against the Peti- tioner with 9 determinative challenged ballots. The hearing officer issued his initial report on February 3, 2004. On September 29, 2006, the Board issued a Decision, Direction, and Order adopting the hearing officer’s recommendations in certain respects, and directing the Re- gional Director to open and count certain ballots and to prepare a re- vised tally of ballots. That revised tally, issued on October 11, 2006, showed 110 for and 108 against the Petitioner, with 4 determinative challenged ballots: those of Chief Electricians Charles Stollings, An- drew Jackson Sharp, Bobby Lee Stowers, and safety coordinator Ernest Bartram. On October 12, 2006, the Regional Director transferred this proceeding to the Board for further consideration. On November 15, 2006, the Board remanded the case to the hearing officer to resolve the supervisory status of Stollings, Sharp, Stowers, and Bartram under Oakwood Healthcare, 348 NLRB 686 (2006). The hearing officer issued his supplemental report on April 4, 2007. supplemental report. We therefore shall direct that the ballots of Stollings, Sharp, and Stowers be opened and counted. The hearing officer further recommended sustaining the Petitioner’s challenge to the ballot of Ernest Bartram, finding him to be a 2(11) supervisor and a managerial employee. For the following reasons, we find Bartram to be neither a supervisor nor a managerial employee. We shall accordingly direct that his ballot be opened and counted. II. Ernest Bartram is the Employer’s safety coordinator and serves as the assistant to the Employer’s manager of safety. The safety manager is responsible for the safety of the entire mine, including training the mine rescue team, assisting with the implementation of the roof con- trol plans, conducting safety audits, and setting up safety and HAZMAT training. Bartram serves in a subordinate role. He assists the mine engineer in preparing ventila- tion plans for the mine and directs employees where to position devices to ensure proper ventilation. He per- forms underground safety inspections, and prepares safety talks that are given weekly by foremen to employ- ees. During production meetings, Bartram reviews the Employer’s accident and safety statistics. He verifies that emergency breathing devices and other safety equipment worn by miners are operating properly. Bar- tram also maintains first aid equipment, helps conduct annual safety retraining, assists with employee drug test- ing, and prepares basic job safety analyses and submits them to the Employer’s main office. Bartram is also responsible for traveling the mine with Federal and State mine safety inspectors. Those inspec- tors may issue citations for safety violations, and Bar- tram is authorized to receive them on behalf of the Em- ployer. He may also designate an employee to accom- pany inspectors. Bartram has the discretion to take steps to mollify inspectors to avoid citations and fines being levied on the Employer or individual employees.3 Those methods include shutting down sections of the mine, directing employees to move equipment so inspectors will not see it, and appearing to threaten employees with discipline in front of the inspectors. Regarding that last method, Bartram admitted that he does not have discipli- nary authority, although he intends for employees to as- sume that he does. 3 Inspectors may issue citations to employees individually as well as the Employer. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1042 A. The Supervisory Issue The burden of proving supervisory status rests on the party—here the Petitioner—asserting that such status exists. See NLRB v. Kentucky River Community Care, 532 U.S. 706, 711–712 (2001). The hearing officer con- cluded that Bartram is a supervisor under Section 2(11) of the Act, finding that the Petitioner established that Bartram responsibly directs employees in certain safety matters and assigns them significant overall duties using independent judgment. The record does not support those findings. 1. Responsible direction In Oakwood Healthcare, supra, the Board interpreted the 2(11) language “responsibly to direct” as follows: “If a person on the shop floor has men under him, and if that person decides what job shall be undertaken next or who shall do it, that person is a supervisor, provided that the direction is both responsible . . . and carried out with independent judgment.” 348 NLRB at 691 (internal quo- tations omitted). The Board further held that, for direc- tion to be responsible under Section 2(11), the person directing the performance of a task must be accountable for its performance. Id. at 691–692. Contrary to the hearing officer, we find that the Petitioner has not estab- lished the requisite accountability here.4 To establish accountability for purposes of responsible direction, “it must be shown that the employer delegated to the putative supervisor the authority to direct the work and the authority to take corrective action, if necessary. It also must be shown that there is a prospect of adverse consequences for the putative supervisor if he/she does not take these steps.” Id. at 692. Evidence of actual ac- countability must be presented to prove responsible di- rection. See Alstyle Apparel, 351 NLRB 1287, 1287 (2007); Golden Crest Healthcare Center, 348 NLRB at 731. The Petitioner has not carried its burden of establish- ing that Bartram is accountable for his actions in direct- ing employees in safety matters. Bartram testified that, in the event the Employer or individual employees re- ceived a citation or fine from the mine safety inspectors, it “would reflect poorly” on Bartram and he was sure he would “hear about it.” The hearing officer relied on this testimony to find the accountability requirement satis- fied. That testimony, however, is too vague to establish that there is an actual prospect of adverse consequences for Bartram. There is no evidence, moreover, that Bar- tram has ever suffered, or been informed by the Em- 4 As a result, we need not pass on the hearing officer’s finding that Bartram “directs” employees within the meaning of Sec. 2(11). See Golden Crest Healthcare Center, 348 NLRB 727, 730 fn. 11 (2006). ployer of the prospect of, such consequences. We are thus left with Bartram’s assumption that he is account- able. That assumption does not constitute the requisite evidence of actual accountability. See Loyalhanna Care Center, 352 NLRB 863 fn. 3 (2008) (accountability must be shown by record evidence). 2. Assignment The hearing officer found that Bartram’s designation of an employee to accompany a mine safety inspector constitutes assignment of employees with independent judgment sufficient to establish supervisory status. We disagree with that finding, as well. In Oakwood Healthcare, supra, the Board held that “assign,” for purposes of Section 2(11), means the “des- ignation of significant overall tasks to an employee, not . . . ad hoc instruction that the employee perform a dis- crete task.” 348 NLRB at 689. To establish the author- ity to assign, moreover, it must be shown “that the puta- tive supervisor has the ability to require that a certain action be taken; supervisory authority is not established where the putative supervisor has the authority merely to request that a certain action be taken.” Golden Crest Healthcare Center, 348 NLRB at 729 (emphasis in original). Applying this standard, the Petitioner has not met its burden of establishing the requisite authority to assign. Bartram testified, and the hearing officer found, that Bar- tram does not, in fact, know if he has the authority to order someone to accompany a mine inspector. Bartram further testified that he puts the matter in terms of a re- quest, although he does not specifically advise the em- ployee that accompanying an inspector is optional. In those circumstances, we find that the Petitioner has not presented sufficient evidence that Bartram has the au- thority to require that an employee accompany an inspec- tor. Consequently, the Petitioner has not established that Bartram “actually possesses the Section 2(11) authority at issue.” Golden Crest Healthcare Center, supra, 348 NLRB at 731. But, even assuming that Bartram does have such au- thority, the Petitioner has not shown that Bartram’s des- ignation of an employee to accompany a safety inspector requires the use of independent judgment. See Oakwood Healthcare, supra, 348 NLRB at 687. Bartram’s own testimony shows, in essence, that he simply selects an employee who works in the area that is being inspected. Such a selection method does not involve a degree of discretion that rises above the routine or clerical, contrary to the hearing officer’s finding. Id. at 693; see also Net- work Dynamics Cabling, 351 NLRB 1423, 1425 (2007) (no independent judgment proved absent evidence that ROCKSPRING DEVELOPMENET, INC. 1043 putative supervisor assessed the relative skills of em- ployees in shifting them from one crew to another). For those reasons, we find that the Petitioner has not established that Bartram is a supervisor within the mean- ing of Section 2(11) of the Act. B. The Managerial Employee Issue The hearing officer also found that Bartram is a mana- gerial employee, and thus ineligible to vote in the elec- tion, based primarily on Bartram’s interaction with mine safety inspectors. Specifically, the hearing officer relied on Bartram’s discretion to devise tactics to mollify in- spectors to prevent the issuance of citations or fines. Here, too, we disagree with the hearing officer’s finding. Employees properly classified as “managerial” are ex- cluded from the protections of the Act. NLRB v. Bell Aerospace Co., 416 U.S. 267, 275 (1974). The Board, with Supreme Court approval, defines managerial em- ployees as those “who formulate and effectuate manage- ment policies by expressing and making operative the decisions of their employer, and those who have discre- tion in the performance of their jobs independent of their employer’s established policy.” Solartec, Inc., 352 NLRB 331, 333 (2008), quoting General Dynamics Corp., 213 NLRB 851, 857 (1974). Accord: NLRB v. Yeshiva University, 444 U.S. 672, 682 (1980). The party seeking to exclude an individual as a managerial em- ployee has the burden of establishing that exclusion. See Montefiore Hospital & Medical Center, 261 NLRB 569, 572 fn. 17 (1982). Contrary to the hearing officer’s finding, the Petitioner has not established that Bartram formulates the Em- ployer’s safety policy or exercises discretion in the per- formance of his job independent of that established pol- icy. There is no evidence that Bartram formulated the Employer’s policy of trying to mollify safety inspectors to avoid fines. Although Bartram may devise his tactics to achieve that immediate goal under the particular cir- cumstances that confront him, there is no evidence that he may act independently of that policy. For example, he does not have the authority to enter into agreements with inspectors or their agencies binding the Employer to take remedial action. Cf. NLRB v. Bell Aerospace Co., supra, 416 U.S. at 285–287 (finding managerial employee status where individuals were authorized to make bind- ing financial commitments on the employer’s behalf). The Petitioner therefore has failed to establish that Bar- tram’s interactions with mine inspectors suffice to make him a managerial employee. Nor do Bartram’s other job duties establish managerial employee status. When Bartram prepares safety talks to be given by foremen, he merely uses materials suggested to him by inspectors or taken from Federal or State safety agencies’ websites. He does not independently compose materials for those talks. Similarly, there is no evidence that Bartram exercises any independent discretion in de- veloping ventilation plans: he merely assists the mine engineer. Finally, Bartram’s preparation of basic job safety analyses for the Employer’s consideration is a routine part of his safety responsibilities and does not show the exercise of managerial discretion. See So- lartec, Inc., supra at 336–337. For all of the foregoing reasons, we find that the Peti- tioner has not shown that Bartram is a managerial em- ployee ineligible to vote in the election. We shall ac- cordingly direct that his ballot be opened and counted. DIRECTION IT IS DIRECTED that the Regional Director for Region 9 shall, within 14 days from the date of this supplemental decision, open and count the ballots of Charles Stollings, Andrew Jackson Sharp, Bobby Lee Stowers, and Ernest Bartram. The Regional Director shall then prepare and serve upon the parties a second revised tally of ballots, and issue the appropriate certification. ORDER It is ordered that this proceeding is remanded to the Regional Director for further processing.