Woodman's Food Market, Inc.

1016 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 359 NLRB No. 114 Woodman’s Food Market, Inc. and United Food and Commercial Workers Union, Local 1473. Case 30–CA–078663 April 30, 2013 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS GRIFFIN AND BLOCK On October 5, 2012, Administrative Law Judge Jeffrey D. Wedekind issued the attached decision. The Re- spondent filed exceptions and a supporting brief. The Acting General Counsel filed an answering brief, and the Respondent filed a reply. The National Labor Relations Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, find- ings,1 and conclusions2 and to adopt the recommended Order as modified and set forth in full below.3 1 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an adminis- trative law judge’s credibility resolutions unless the clear preponder- ance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. 2 We adopt the judge’s conclusions that the Respondent violated the Act as alleged because we agree that its employee, Robert Wydeven, was acting as an agent of the Respondent under Sec. 2(13) of the Act when he circulated the decertification petition. In so finding, we note particularly that the Respondent’s policy manual required employees to go to Wydeven for answers to their work-related questions, and that testimony established that employees did so. We additionally note that Wydeven served as a conduit not only for the transfer of information from management to employees in his department, but also for the transfer of information about those employees to management. There- fore, we find that a reasonable employee would conclude that the Re- spondent had authorized Wydeven to communicate to employees about their terms and conditions of employment, and that a reasonable em- ployee would conclude that Wydeven was acting as the Respondent’s agent when he circulated the decertification petition. See SKC Electric, Inc., 350 NLRB 857, 862 (2007). We find it unnecessary to pass on the judge’s findings regarding Wydeven’s supervisory status under Sec. 2(11) of the Act. 3 We have modified the judge's recommended Order in accordance with our recent decision in Latino Express, Inc., 359 NLRB 518 (2012). We have also substituted a new notice to conform to the Order as modi- fied. The Respondent excepts to the judge’s conclusion that it violated Sec. 8(a)(5) by withdrawing recognition from the Union and thereafter refusing to bargain, but it does not specifically except to the judge’s recommended affirmative bargaining order. We therefore find it un- necessary to address whether a specific justification for that remedy is warranted. See SKC Electric, supra, 350 NLRB at 862 fn. 15; Heritage Container, Inc., 334 NLRB 455, 455 fn. 4 (2001); see also Scepter v. NLRB, 280 F.3d 1053, 1057 (D.C. Cir. 2002) (stating that in the ab- sence of a particularized exception, a party has not preserved for appeal the imposition of an affirmative bargaining order). Neither does the Respondent except to the judge’s notice-reading order. ORDER The National Labor Relations Board orders that the Respondent, Woodman’s Food Market, Inc., Appleton, Wisconsin, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Soliciting employees to withdraw their support from United Food and Commercial Workers Union, Lo- cal 1473. (b) Withdrawing recognition from the Union and fail- ing and refusing to bargain with the Union as the exclu- sive collective-bargaining representative of unit employ- ees. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, bargain with the Union as the exclusive collective-bargaining representative of the employees in the following appropriate unit concerning terms and con- ditions of employment and, if an understanding is reached, embody the understanding in a signed agree- ment: All employees of present and future stores located in Outagamie County in the State of Wisconsin, including all employees in said stores who are actively engaged in the handling of merchandise, excluding employees working as stock auditors, 3rd Shift Maintenance and Store Manager, in the event the Employer establishes a Pharmacy within the store and to the extent the Em- ployer retains interest and/or ownership in the Pharma- cy, the employees thereof shall be covered by the terms and conditions of this Agreement excluding the Phar- macists, specialty men and demonstrators employed by vendors. Also excluded: Assistant Store Manager, Front End Supervisor, Second and Third Shift In- Charges, and Department Heads, including the Auto Center Department Head. The Respondent contends that the Board lacks a quorum because the President’s recess appointments are constitutionally invalid. We reject this argument. We recognize that the United States Court of Appeals for the District of Columbia Circuit has concluded that the President’s recess appointments were not valid. See Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013). However, as the court itself acknowledged, its decision is in conflict with at least three other courts of appeals. See Evans v. Stephens, 387 F.3d 1220 (11th Cir. 2004), cert. denied 544 U.S. 942 (2005); U.S. v. Woodley, 751 F.2d 1008 (9th Cir. 1985); U.S. v. Allocco, 305 F.2d 704 (2d Cir. 1962). This question remains in litigation, and until such time as it is ultimately resolved, the Board is charged to fulfill its responsibilities under the Act. See Belgrove Post Acute Care Center, 359 NLRB 621, 621 fn. 1 (2013). WOODMAN’S FOOD MARKET 1017 (b) Promptly notify the Union, in writing, of any changes in the unit employees’ terms or conditions of employment that have been implemented since April 10, 2012. (c) On request by the Union, rescind any changes in the unit employees’ terms or conditions of employment that have been implemented since April 10, 2012. (d) Make the unit employees whole for any loss of earnings or benefits suffered as a result of any changes in their terms or conditions of employment since April 10, 2012. (e) Reimburse unit employees an amount equal to the difference in taxes owed upon receipt of a lump-sum backpay payment and taxes that would have been owed had the Respondent not unlawfully changed the unit em- ployees terms or conditions of employment. (f) Submit the appropriate documentation to the Social Security Administration so that when backpay is paid to unit employees, it will be allocated to the appropriate periods. (g) Within 14 days after service by the Region, post at its Appleton, Wisconsin facility copies of the attached notice marked “Appendix.”4 Copies of the notice, on forms provided by the Regional Director for Region 30, after being signed by the Respondent's authorized repre- sentative, shall be posted by the Respondent and main- tained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent custom- arily communicates with its employees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or cov- ered by any other material. If the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current em- ployees and former employees employed by the Re- spondent at any time since April 10, 2012. (h) Within 14 days after service by the Region, hold a meeting or meetings, scheduled to ensure the widest pos- sible attendance, at which the attached notice is to be read to the employees by Vice President Clint Woodman or Vice President John Adams or, at the Respondent's option, by a Board agent in the presence of either or both 4 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” of the foregoing company officials, with translation available for any non-English-speaking employees. (i) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT solicit employees to withdraw their sup- port from United Food and Commercial Workers Union, Local 1473. WE WILL NOT fail and refuse to recognize and bargain with the Union as the exclusive collective-bargaining representative of our employees in the bargaining unit. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL, on request, bargain with the Union as the exclusive collective-bargaining representative of our employees in the following appropriate unit concerning terms and conditions of employment and, if an under- standing is reached, embody the understanding in a signed agreement: All employees of present and future stores located in Outagamie County in the State of Wisconsin, including all employees in said stores who are actively engaged in the handling of merchandise, excluding employees working as stock auditors, 3rd Shift Maintenance and Store Manager, in the event the Employer establishes a Pharmacy within the store and to the extent the Em- ployer retains interest and/or ownership in the Pharma- cy, the employees thereof shall be covered by the terms and conditions of this Agreement excluding the Phar- macists, specialty men and demonstrators employed by 1018 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD vendors. Also excluded: Assistant Store Manager, Front End Supervisor, Second and Third Shift In- Charges, and Department Heads, including the Auto Center Department Head. WE WILL promptly notify the Union, in writing, of any changes in the unit employees’ terms or conditions of employment that we have implemented since April 10, 2012. WE WILL, on request by the Union, rescind any chang- es in the unit employees’ terms or conditions of em- ployment since April 10, 2012. WE WILL make the unit employees whole for any loss of earnings or benefits suffered as a result of any changes in their terms or conditions of employment since April 10, 2012, with interest. WE WILL reimburse unit employees an amount equal to the difference in taxes owed upon receipt of a lump-sum backpay payment and taxes that would have been owed absent the changes to the employees’ terms or conditions of employment. WE WILL submit appropriate documentation to the So- cial Security Administration so that when backpay is paid to unit employees, it will be allocated to the appro- priate periods. WOODMAN’S FOOD MARKET, INC. Andrew S. Gollin, Esq., for the General Counsel. Fred B. Grubb, Esq. (Fred B. Grubb & Associates, LLC), for the Respondent. John M. Loomis, Esq. (Sweet & Associates, LLC), for the Charging Party. DECISION STATEMENT OF THE CASE JEFFREY D. WEDEKIND, Administrative Law Judge. Wood- man’s Food Market, the Respondent Company in this case, operates a grocery store and auto center in Appleton, Wiscon- sin. For at least the last 20 years, the United Food and Com- mercial Workers Union, Local 1473 has been the exclusive bargaining representative for the employees at the facility. However, on April 10, 2012, shortly after the most recent col- lective-bargaining agreement expired, the Company withdrew recognition from the Union based on a petition that was circu- lated by the manager/department head of the auto center (Wydeven).1 The sole issue in dispute in this proceeding is whether Wydeven is a supervisor and/or agent of the Company within the meaning of the Act. If he is, as alleged by the General Counsel, the Company concedes that both the circulation of the petition and the withdrawal of recognition were unlawful. See, e.g., SFO Good-Nite Inn, LLC, 357 NLRB 79 (2011) (employer 1 The Union filed the underlying charge and amended charge on April 12 and July 19, 2012, respectively, and the General Counsel issued the complaint on July 26, 2012. violates Sec. 8(a)(1) and (5) of the Act by soliciting employees to sign a decertification petition and by thereafter withdrawing recognition from the union based on the tainted petition). Following a prehearing conference, the case was tried before me on August 21, 2012, in Neenah, Wisconsin.2 Thereafter, on September 18, the General Counsel and the Company filed posthearing briefs. Having carefully considered the briefs and the entire record,3 for the reasons set forth below I find that Wydeven is both a supervisor and an agent of the Company, and that the Company therefore violated Section 8(a)(1) and (5) of the Act as alleged.4 FINDINGS OF FACT As indicated above, the subject facility consists of both a grocery store and an auto center. The auto center is located away from and in front of the store, closer to the street. It in- cludes a gas station, which also sells food and drinks, and a “lube center” with three attached bays where cars drive in to have the oil changed, etc. Approximately six to eight employ- ees work in the auto center, four full time. All are expected to perform both the lube-center and gas station work. (Tr. 18, 27, 87, 110–112.) When employees begin working in the auto center, they are given a 44-page document entitled “Lube Station Policies.” It contains a detailed description of various lube procedures, in- cluding guiding vehicles into the bay, releasing the hood, re- placing the oil filter, checking, filling, and changing oil, check- ing oil plugs and zerks, checking and filling transmission and brake fluids and engine coolant, and changing air filters and wiper blades. (Tr. 107; GC Exh. 21; R. Exh. 19.) However, there is no evidence of any similar policy manual with respect to gas station procedures. Wydeven, the current “auto center manager,” has worked at the facility for about 10 years, since May 2002. Like the other auto center employees, he initially started in the grocery store. He later applied for and was transferred to work as a lube tech- nician in the auto center. He performed this job for about 5–6 years, until June 19, 2011, when he was promoted to his current full-time position. (Tr. 16, 39; GC Exh. 20.) There is apparently no formal job description for the “auto center manager” position. However, the job posting, which Wydeven and eight other employees signed to apply for the position in May and June 2011, stated that “responsibilities will include directing the workforce and maintaining customer ser- vice” (GC Exh. 2). In addition, Wydeven’s change-of-status form stated that he would be “in charge of the auto center” (for which he would receive premium pay and sales points) (GC Exh. 3). And his February 2012 periodic evaluation rated him on such factors as “ability to handle customers/employees,” “ability to direct workforce,” “ability to control inventory,” “buying and/or ordering of product,” and “training of backup to 2 Wydeven was the sole witness. In the absence of any objection, p. 103 of the transcript is corrected as follows: L. 24 is correct to read “Cross Examination Resumed”; and L. 25 is corrected to read “By Mr. Grubb.” 3 Factual findings are based on the record as a whole, including but not limited to the transcript pages and exhibits specifically cited. 4 Jurisdiction is undisputed and well established. WOODMAN’S FOOD MARKET 1019 cover absence.” Frederick, the store manager and his immedi- ate supervisor, also praised him in the evaluation for being “very much a Woodman’s backer,” for “mak[ing] his people accountable,” and for “keep[ing] me informed of what is hap- pening out there.” (GC Exh. 11; Tr. 17.) Various other employment records indicate that the auto cen- ter manager is also considered to be a “department head” (GC Exhs. 11, 13, 20). Accordingly, like other department heads (liquor store, meat, produce, dairy, frozen, bakery, and non- foods) and certain specified managers and supervisors, the auto center manager is excluded from the bargaining unit. These exclusions are specifically set forth in an April 2009 letter of understanding between the Company and the Union, which was incorporated into the most recent, April 2009–March 2012 collective-bargaining agreement. (Jt. Exh. 1, p. 33; Tr. 120– 121.) Aside from Wydeven, there is no one else in the auto center who is “in charge” of the operation. Store Manager Frederick works from an office in the grocery store, does not know how to perform lube work, and visits the auto center only once or twice a week, usually just to report what the gas prices are (Tr. 30–31). Although one of the auto center employees, Keesey, has been appointed the “fill-in supervisor” to cover for Wydeven in his absence (for which he receives a small premi- um), Keesey remains in the bargaining unit and has been spe- cifically told by Frederick that he is not “second in charge.” See the April 2009 letter of understanding discussed above (Jt. Exh. 1, p. 33) (specifically including fill-in supervisors in the unit); and Frederick’s December 13, 2011 evaluation of Keesey (GC Exh. 10) (reminding him, among other things, to “[w]ork together as a team. All are equal in the lube station excluding Wydeven who is the lube manager. We do not have a second in charge.”).5 In practice, Wydeven spends most of his time doing the same work as the lube center employees: changing oil, handling cus- tomers, and working the cash register (Tr. 27). However, he also makes sure the employees follow correct procedures and assists them with questions or problems that arise in doing the work or dealing with a customer. See Wydeven’s February 2012 evaluation (GC Exh. 11) (quoted above); the “Lube Sta- tion Policies” manual (GC Exh. 21) (instructing employees to “see,” “ask,” “inform,” or “notify” the “lube manager or store manager,” “manager,” or “supervisor” before doing certain tasks or if they have problems working on any vehicle); and Wydeven’s testimony (Tr. 37–38) (the employees come to him with their questions or issues, unless he is not there, in which case they go to Store Manager Frederick). If the question or issue relates to performing the work, he will handle it himself. If it is more complicated, such a customer complaint about the quality of the work that cannot be easily rectified, he will con- sult Frederick about how the Company wants to handle it. (Tr. 31–34.) 5 But see the June 15, 2011 job posting for the fill-in position, which stated that “responsibilities will include directing the workforce and maintaining customer service on days when the manager and 2nd I/C are off.” (GC Exh. 4.) As indicated by his February 2012 evaluation, Wydeven is also responsible for keeping the auto center properly stocked. He usually orders the supplies for the lube center (bulk oil, filters, wipers, plugs, etc.) himself, which he does once every 1–2 weeks. However, Keesey and another employee have also ordered supplies when he is not there. And another employee orders supplies for the gas station. (Tr. 31–32, 84–86, 109.) Wydeven also completes “performance evaluations” of new- ly assigned employees near the end of their initial probationary period. (Employees do not receive periodic evaluations after their probationary period. Tr. 65, 67–68.) He assigns the em- ployee a rating (exceeds requirements, meets requirements, needs improvement, or not acceptable) on each of the following “job factors”: (1) work quality, (2) job knowledge, (3) work quantity, (4) follows instructions, (5) cooperates with others, (6) dependability, (7) safety, (8) respect for property, (9) cour- tesy towards customers, (10) appearance, and (11) attendance and punctuality. He also completes, in his own handwriting, the designated sections for “comments,” “strengths,” and “areas for improvement,” typically to explain why he assigned either the highest or the lowest rating (e.g., “great customer service,” or needs improvement in “problem solving,” the “order of do- ing things in [the] lube center,” or “working the gas station”). He does so based on his own observations and judgment, alt- hough he also sometimes considers comments from other em- ployees. After completing the above sections, Wydeven takes the evaluation to Store Manager Frederick. He discusses the eval- uation with her and recommends whether the employee should be retained in the auto center or have the probationary period extended. Frederick, who as indicated above spends very little time in the auto center, normally follows his recommendation. However, on one occasion, in November 2011, Frederick de- clined to do so. Wydeven had reported in his evaluation that the employee was unable to perform certain tasks in the lube center. Nevertheless, he recommended retaining the employee beyond the initial probationary period because of her strong customer service and ability to perform the gas station work, where she spent most of her time. Frederick, however, decided to transfer the employee back to the grocery store because the auto center employees had to be capable of performing both the gas station and the lube-center work. Once Frederick has made her decision (by checking a box on the evaluation),6 Wydeven typically signs the evaluation on the line for “Manager or Supervisor’s Signature” and presents the evaluation to the employee (who then signs it as well). How- ever, in one of the six probationary evaluations since June 2011, Frederick signed the evaluation and she and Wydeven jointly presented it to the employee. And in another instance, both Wydeven and Assistant Store Manager Anderson (who, like Frederick, is an admitted supervisor) signed the evaluation, and it is unclear who presented the form to the employee (Wydeven could not recall). (Tr. 43–54, 69–70, 86–87, 91–92, 109, 112; GC Exhs. 5 [both evaluations], 6, 7, 8, 15.) 6 The three options listed on the form are: “Passing Probation,” “Not Passing Probation,” or “Extend Probation.” 1020 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Wydeven (who as noted above was the sole witness in the proceeding) testified repeatedly that Frederick also talks to other employees about how their coworkers are performing in the auto center before making her decision. (Tr. 47, 50, 111.) However, I do not credit this uncorroborated testimony, at least not to the extent it suggests that Frederick conducts an inde- pendent investigation. First, it is clear from Frederick’s Febru- ary 2012 evaluation of Wydeven and the record as a whole that she relies heavily on him. Second, although Wydeven testified that he had “seen” Frederick “ask people how they are doing when she comes out to talk,” he could not recall where she did so (“outside or inside I don’t really know”) or any particular employees that she had talked to (Tr. 47, 92). Third, as Freder- ick performs periodic evaluations of both Wydeven and Keesey, his “fill-in supervisor,” it is entirely possible that she talked to employees about one or both of them, rather than about other employees. (See GC Exhs. 10, 11, and 14.)7 Fourth, the record indicates that the Company has a formal procedure for obtaining input from other employees in writing when it wishes to do so. And the procedure appears to be used relatively infrequently. Indeed, the Company presented only one example where it was used, in August 2010, well before Wydeven became the auto center manager. See the three “Evaluation Work Papers” attached to the probationary evalua- tion of employee Madison (R. Exh. 2); and (Tr. 98–100).8 Moreover, Wydeven did not impress me as a credible wit- ness generally. Thus, despite claiming that he did not know what the hearing was about (Tr. 116, 119), he frequently volun- teered or modified his testimony to minimize his authority. In addition to his above-cited testimony, see, e.g., Tr. 28–29 (ini- tially testifying that Keesey covers for him when he is not there, but subsequently testifying that he was “unaware” that Keesey is the official “fill-in supervisor”―even though the job was likewise posted in June 2011, Wydeven’s evaluation indi- cates that he trained Keesey to be his backup, and Wydeven completed, signed, and presented a probationary evaluation to Keesey within 30 days after he was appointed to the fill-in posi- tion―and that “pretty much anyone” fills in for him in his ab- sence). Further, his testimony at times seemed rehearsed, and he became noticeably nervous when asked about certain sub- jects, including his discussions with Frederick. Of course, nei- ther necessarily indicates prevarication. However, after care- fully considering my initial observations and the entire record, I am convinced that his testimony in this respect (and other re- spects discussed below) was neither entirely truthful nor entire- ly true. See generally 300 Exhibit Services & Events, Inc., 356 NLRB 415, 415 fn. 2 (2010), and cases cited there (uncontra- 7 Although Wydeven performed the initial probationary evaluation of Keesey (GC Exh. 6), he testified (Tr. 59) that he had no involvement whatsoever in Keesey’s subsequent December 2011 periodic evaluation (GC Exh. 10). 8 The “work papers” list five factors (customer service, effort, job performance, cooperation, and appearance). The three employees (Wydeven and two other employees) separately rated Madison on each factor as “poor,” “average,” or “good.” They also then dated and signed the forms on the line for “Supervisor.” As discussed infra, Wydeven also signed the final probationary evaluation that was given to Madison the next day. dicted testimony need not be accepted as true if it contains im- probabilities or there are other reasonable grounds for believing it is false, including the demeanor of the witness). See also EEOC v. G-K-G, Inc., 39 F.3d 740, 746 (7th Cir. 1994). In December 2011, Wydeven also completed and signed, on the line for “Management Signature,” what appears to be a “verbal” disciplinary warning or admonishment issued to Keesey. The notice, which is entitled “Notice of Failure to Follow Work & Safety Rules,” cited Keesey for: Failure to follow procedure on oil change. Did not tighten fil- ter causing leaking on vehicle. You must finish the job you are on before moving on to the next one. The notice additionally cited Keesey for “lack of communi- cation.” (GC Exh. 9; Tr. 55–56, 115–116.) As with the probationary evaluations, Wydeven minimized his involvement with this notice, testifying that Frederick told him to fill it out based on a customer’s complaint she had re- ceived; that he did not know or recall why he signed the notice; and that Frederick presented the notice to Keesey. In essence, Wydeven testified that he was simply Frederick’s scribe. How- ever, it makes little sense that Frederick would have involved Wydeven with the notice if he had no significant role in it. It is also inconsistent with the usual practice. Compare the initial probationary evaluations, discussed above. Compare also Frederick’s subsequent periodic evaluation of Keesey, which she alone completed, signed, and presented to Keesey several days later (GC Exh. 10; Tr. 56–59). (The record also includes another periodic evaluation of Keesey 2 months later, which Wydeven filled out. However, Frederick signed it and the rec- ord does not reveal who presented it to Keesey. GC Exh. 14; Tr. 59–61.) And see Frederick’s subsequent February 2012 evaluation of Wydeven, discussed above, which praised him for “mak[ing] his people accountable” (GC Exh. 11). Further, as noted above Wydeven was not a credible witness generally, and his testimony in this respect was not corroborated by Frederick or Keesey (neither of whom, as indicated above, were called to testify). Accordingly, I find that Wydeven likely had a significantly greater role in the notice than he admitted to at the hearing. Specifically, it is likely that, at the very least, Wydeven partici- pated in the investigation of the customer’s complaint, reported his findings, conclusions, and recommendations to Frederick, and completed and signed the notice pursuant to his duties and responsibilities as the auto center manager. Since becoming the auto center manager, Wydeven has also attended a meeting where one of his workers (Gosz) was termi- nated. Gosz had failed to put any oil in a vehicle, causing the motor to seize up, and also subsequently failed a drug test.9 Frederick and another grocery supervisor attended the meeting as well. Again, Wydeven minimized his role in the meeting, testify- ing that he “asked to attend” because: 9 The foregoing is based solely on Wydeven’s testimony. There is no documentation in the record about Gosz’ termination or the reasons therefor. WOODMAN’S FOOD MARKET 1021 I was really good friends with [Gosz], I actually lived with him for a couple of years, and I felt really bad for him, with the situation. We were really good friends and I didn’t want to see him go, so I kind of wanted to be there as support for him. However, I do not credit this uncorroborated testimony to the extent it suggests that Wydeven attended the Gosz termination meeting solely as a friend. It is inherently unlikely, and I do not believe on this record, that the Company would have per- mitted Wydeven to attend Gosz’ termination meeting absent his role as the auto center manager.10 Although Wydeven testified that he did not attend a termination meeting for another em- ployee, Wydeven admitted that it occurred shortly after he be- came manager and he was not familiar with that employee’s offense or situation. (Tr. 61–62, 113–114.) Analysis As indicated above, the General Counsel contends that Wydeven is a supervisor and/or agent of the Company within the meaning of Section 2(11) and (13) of the Act. 1. Whether Wydeven is a supervisor Under Section 2(11) of the Act,11 an individual is not consid- ered a supervisor, even if the employer calls him/her one, un- less the individual possesses, in the interest of the employer, at least one of the types of authority listed therein. In addition, the exercise of that authority cannot be merely routine or cleri- cal, but must require independent judgment. This means that the authority requires making a judgment, which involves “a degree of discretion that rises above the ‘routine or clerical’,” and is not “dictated or controlled by detailed instructions, whether set forth in company policies or rules, the verbal in- structions of a higher authority, or in the provisions of a collec- tive bargaining agreement.” Oakwood Healthcare, Inc., 348 NLRB 686, 687, 693 (2006). Further, the party asserting su- pervisory status has the burden of proving that these require- ments are met by a preponderance of the evidence. Id. at 687, 694 (citing NLRB v. Kentucky River Community Care, 532 U.S. 706, 711–712 (2001); and Dean & Deluca New York, Inc., 338 NLRB 1046, 1047 (2003)). Here, the General Counsel contends that Wydeven possesses two such types of authority: (1) the authority to effectively recommend whether employees will be retained in the auto center following their initial probationary period; and (2) the authority to responsibly direct the auto center employees. The 10 Wydeven also testified, when asked by Company counsel whether he had recommended Gosz be terminated, “if it was up to me, he wouldn’t have been terminated.” (Tr. 88.) However, Wydeven never directly answered counsel’s question whether he actually made a rec- ommendation to Frederick. 11 See 29 U.S.C. §152(11) (“The term ‘supervisor’ means any indi- vidual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or disci- pline other employees, or responsibly to direct them, or to adjust their grievances, or effectively 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 judg- ment.”). General Counsel also contends that Wydeven’s supervisory status is supported by several secondary indicia. (1) Authority to effectively recommend whether to retain probationary employees The authority to recommend is considered “effective” under Section 2(11) if the recommendations usually are or would be followed by the deciding official without conducting an inde- pendent investigation. See, e.g., DirectTV, 357 NLRB 1747, 1749 (2011), citing Children’s Farm Home, 324 NLRB 61 (1997); and Sheraton Universal Hotel, 350 NLRB 1114, 1115– 1118 (2007). Compare also Pine Manor Nursing Center, 270 NLRB 1008 (1984) (charge nurses effectively recommended termination or retention of probationary employees where di- rector of nursing reviewed but did not independently investi- gate the basis of the recommendation), with Consolidated Ser- vices, Inc., 321 NLRB 845 (1996) (senior cooks did not effec- tively recommend promotion of cook-trainees where the facility manager did not follow their recommendations without con- ducting an independent investigation). Here, as discussed above, the credible evidence establishes that Frederick follows Wydeven’s recommendations whether to retain probationary employees in the auto center based solely on his evaluations and without conducting an independent in- vestigation. Indeed, even in the one instance (out of six) that Frederick disagreed with Wydeven’s recommendation, and transferred the employee back to the grocery store, it was based on Wydeven’s conclusion that the employee was unable to perform lube work. Accordingly, I find that Wydeven’s author- ity to recommend is “effective.” See Pine Manor, above. See also Venture Industries, 327 NLRB 918, 919–920 (1999) (de- partment and line supervisors effectively recommended selec- tion of applicants where the department managers followed the recommendations 80–90 percent of the time). As for whether Wydeven’s recommendations require “inde- pendent judgment,” the evidence shows that Wydeven evalu- ates probationary employees on a number of factors before making his recommendations. As indicated above, some of these factors relate to the actual physical work, much of which (with respect to the lube center) is described in the “Lube Sta- tion Policies” manual that is provided to every employee. However, several are more subjective, requiring Wydeven to evaluate such things as “respect for property,” “cooperat[ion] with others,” and “courtesy towards customers.”12 Further, Wydeven testified that, except for ordering supplies, he has never been given any specific instructions on how to perform his duties as auto center manager, and that he completes the probationary evaluations using his own “judgment,” based on his and others’ observations of the employee, without discuss- ing them with anyone beforehand. (Tr. 26, 31–32, 80–84.) 12 While the manual addresses this last factor, it simply urges em- ployees to be “courteous, professional, and friendly with the customer,” and to “greet them when they exit the vehicle and ask if they have any questions.” (GC Exh. 21, pp. 7, 43.) It does not otherwise state what kinds of conduct are or are not considered by the Company to be “cour- teous,” “professional,” and “friendly.” 1022 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD I find that the foregoing evidence is sufficient to meet the General Counsel’s burden under Oakwood, above. In arguing to the contrary, the Company cites two previous probationary evaluations that Wydeven signed in August and November 2010, well before he became auto center manager. (See R. Exh. 1) (Beyer evaluation), and (R. Exh. 2) (the Madison eval- uation previously discussed above). The Company argues that these two evaluations show that “it is the clerical practice of the Employer to have unit employees partially fill out and sign [probationary evaluations] and it has been so practiced since well before Mr. Wydeven took on his current responsibilities” (Br. at 13). However, there are several problems with this argument. First, Wydeven testified that he was unsure whether he did the ratings on the Madison evaluation. Moreover, he acknowl- edged that someone else handwrote the comments on both evaluations. (The handwriting is obviously different that the handwriting on the evaluations he has completed since June 2011.) With respect to the November 2010 Beyer evaluation, Wydeven testified that he “probably” asked “one of the girls” in the gas station to write the comments for him because he was “embarrassed” by his “very sloppy” handwriting at the time. However, he was never asked who specifically wrote the com- ments on the Madison evaluation. (Tr. 101–102.) Second, even assuming Wydeven did fill out both evalua- tions (or had someone else fill them out for him at his direc- tion), two evaluations are hardly sufficient to establish a “prac- tice,” clerical or otherwise.13 On the contrary, the fact that the Company, which has been in business for many years, prof- fered only two evaluations, both signed around the same time period in 2010 by the same individual, suggests that the two evaluations are an aberration rather than the norm. Third, it is unclear whether the circumstances in 2010 were the same or similar to those in 2011–2012. Indeed, it is not even clear whether there was an active, full-time auto center manager at the time Wydeven signed the 2010 evaluations. Although the previously described letter of understanding indi- cates that another individual, Cortazzo, was the manager in April 2009, and Wydeven testified that he replaced Cortazzo (Tr. 19), Cortazzo’s name does not appear anywhere on the two evaluations. In fact, the Madison evaluation indicates that an entirely different individual, Champeau, presented the evalua- tion. (Wydeven testified that he presented the Beyer evalua- tion.) And, despite Cortazzo’s previous service as the auto center manager in 2009, he was one of several employees who applied to be the “fill-in supervisor” on June 16, 2011 (GC Exh. 4), before Wydeven was formally appointed the new manager effective June 19, 2011. 13 To conclude that the 2010 evaluations show a “clerical” practice of using unit employees to evaluate each other requires an assumption that Wydeven was not a statutory supervisor in 2010. However, while Wydeven had not yet been designated the “auto center manager” in 2010, as indicated above supervisory status under 2(11) is not deter- mined by job title. See also Jochims v. NLRB, 480 F.3d 1161, 1168, 1173 (D.C. Cir. 2007). The Company never presented any evidence to explain the foregoing circumstances.14 Wydeven himself testified (Tr. 100) that he did not know why he signed the 2010 Madison evalua- tion (he was never asked why he signed the 2010 Beyer evalua- tion), and Champeau’s position or title was never identified. Further, the Company never called Frederick to testify, even though she was present throughout the hearing. (Frederick was the Company’s designated representative and was therefore exempt from the sequestration order.) Although the General Counsel has the burden of proof, the Company introduced the 2010 evaluations, which came from its own personnel rec- ords.15 Thus, the Company bears the burden of persuading that the evidence is relevant, material, and significant, i.e., that the two previous 2010 evaluations signed by Wydeven support an inference that the 2011–2012 evaluations and other evidence presented by the General Counsel in support of Wydeven’s supervisory status during the relevant period are insufficient to carry the burden of proof.16 The Company has failed to do so. As presented, the two evaluations are little more than a histori- cal curiosity.17 (2) Authority to responsibly direct the auto center employees In order to establish that an individual possesses the authori- ty to responsibly direct employees, it must be shown that the individual has the authority to “direct” employees in the interest of the employer; that the direction is “responsible”; and that it 14 The Company’s posthearing brief states (without citing any record evidence) that Cortazzo “was demoted by the Employer into a non- supervisory position” (Br. 2, fn. 3). However, the Company does not reveal when this occurred (and, again, there is no record evidence when it occurred). The Company also submitted into evidence a form that employee Madison signed in July 2010 acknowledging receipt of the company lube center policy manual, which Wydeven cosigned on the line for “Training Supervisor” (R. Exh. 19; Tr. 108). However, the Company never offered any evidence to explain this either. 15 The 2010 evaluations had not previously been disclosed to the General Counsel. There is no pretrial discovery in Board proceedings and the General Counsel’s hearing subpoena only required the Compa- ny to produce personnel records since January 2011, 6 months before Wydeven became the auto center manager (Tr. 120). 16 This is not a situation, such as in Dean & Deluca, supra, where there are critical gaps in the General Counsel’s evidence with respect to the subject 2(11) indicia during the relevant period. 17 As indicated by the General Counsel, the Company’s failure to call Frederick―who as store manager would likely be disposed to testify in the Company’s favor (and thus was not “equally available” as a General Counsel or Union witness)―actually supports the opposite inference, i.e. an inference that her testimony on this and other factual issues within her knowledge would not have supported the Company’s position. See, e.g., International Automated Machines, 285 NLRB 1122, 1123 (1987), enfd. mem. 861 F.2d 720 (6th Cir. 1988). See also Chicago College of Osteopathic Medicine v. George A. Fuller Co., 719 F.2d 1335, 1353 (7th Cir. 1983). But see Advocate South Suburban Hospital v. NLRB, 468 F.3d 1038, 1049 (7th Cir. 2006) (General Coun- sel’s failure to call a union organizer to corroborate an employee’s testimony did not warrant an adverse inference, as the respondent em- ployer itself could have subpoenaed the union organizer to testify and the General Counsel did not have a strong incentive to present the testimony, as it would have been “essentially cumulative and of little value”). However, I need not rely on such an adverse inference, as I would reach the same conclusions without it. WOODMAN’S FOOD MARKET 1023 requires “independent judgment.” Oakwood, 348 NLRB at 687. See also the Board’s companion decisions in Golden Crest Healthcare, 348 NLRB 727, 730 (2006); and Croft Metals, Inc., 348 NLRB 717 (2006). Here, there is little doubt that Wydeven has the authority to “direct” employees. As discussed above, the employees are required by the lube center policy manual to contact Wydeven or Frederick before doing certain tasks or if they have problems working on any vehicle. Further, Wydeven testified that the employees do, in fact, come to him with their questions or is- sues when he is there, and that Frederick does not even know how to perform the lube work. Moreover, Wydeven’s February 2012 evaluation specifically rated his ability to handle employ- ees and direct the workforce and praised him for “mak[ing] his people accountable.” Considered together, these facts are suf- ficient to establish the authority to direct. Cf. Golden Crest, above. A preponderance of the record evidence also indicates that Wydeven’s authority to direct employees is “responsible” di- rection. Direction is “responsible” if the individual directing the task is accountable for its performance. This means that the directing individual has the authority to take action, if neces- sary, to ensure that the task is performed correctly by the em- ployee, and that there is a real prospect of material consequenc- es to the directing individual’s terms and conditions of em- ployment, either positive (e.g., a merit increase or bonus) or negative (e.g. a demotion or termination), if the task is or is not performed correctly by the employee. Golden Crest, 348 NLRB at 731 and fn. 13.18 Here, as found above, Wydeven had a significant role in the disciplinary warning that was issued to Keesey in December 2011 for failing to follow lube procedures and poor communi- cation. Further, approximately 2 months later, in February 2012, Frederick specifically evaluated Wydeven’s ability to handle employees and direct the workforce (he was rated “meets requirements” on both these and all other factors) and praised him for “mak[ing] his people accountable.”19 And 18 Although Oakwood states that there must be a prospect of adverse consequences for failing, the Board’s companion decision in Golden Crest makes clear that a prospect of positive consequences for succeed- ing is also sufficient to establish accountability. See also Alternate Concepts, Inc., 358 NLRB 292, 294 fn. 12 (2012). Indeed, this seems self-evident; if there is a prospect of a merit increase or bonus for suc- ceeding, it follows that there is a prospect of a merit increase or bonus being denied for failing. 19 As reflected by the Board’s own definition of “accountable,” this language indicates that Wydeven possesses the authority to take correc- tive action (and has actually exercised that authority). It also indicates that Wydeven’s corrective action had “some force behind it or place[d] ‘some small burden on the employee’” (Rochelle Waste Disposal, LLC v. NLRB, 673 F.3d 587, 595 (7th Cir. 2012), quoting Loparex LLC v. NLRB, 591 F.3d 540, 551 (7th Cir. 2009)). Although no specific ex- amples are discussed, the evaluation was completed by Frederick, an admitted supervisor of the Company, the party currently opposing Wydeven’s supervisory status, before the facts relevant to the instant litigation occurred, when there was no apparent reason for concern about his status. The evaluation is therefore more reliable evidence of Wydeven’s authority than post-hoc conclusory testimony offered by the party alleging supervisory status. Cf. G4S Regulated Security Solu- approximately 7 weeks thereafter, effective April 8, 2012, the Company awarded Wydeven his first and only base-rate pay raise since he became the auto center manager in June 2011 (GC Exh. 20, p. 2).20 While there is no record evidence that the Company awarded Wydeven the raise solely because of his performance in directing employees and holding them account- able, such evidence is not required to establish that his perfor- mance on that factor may have an affect on his terms and con- ditions of employment. Ibid. Finally, a preponderance of the evidence likewise indicates that Wydeven’s direction of employees requires “independent judgment.” As discussed above, although the lube center poli- cy manual provides a detailed description of the various ser- vices and procedures performed in the lube center, it repeatedly instructs employees to contact their manager or supervisor be- fore doing certain tasks or if they have questions or problems. Further, there is no policy manual whatsoever for the gas sta- tion. Thus, while many of the tasks in the auto center may be repetitive and “dictated or controlled by detailed instructions” (Oakwood, above), many are not. Moreover, as discussed above, except for ordering supplies in the lube center, Wydeven has never been given any specific instructions on how to per- form his duties as auto center manager. Thus, like his proba- tionary evaluations and recommendations, it is clear that his direction of employees involves discretion that is beyond “rou- tine or clerical.” 1. Secondary indicia of supervisory status As indicated by the General Counsel, the conclusion that Wydeven is a 2(11) supervisor based on the foregoing factors (either of which alone is sufficient to establish such status) is fully consistent with how he has been treated and held out by the Company. As discussed above, the Company describes Wydeven as a “manager” and “department head” and he is excluded from the bargaining unit by agreement along with other managers and department heads (including Assistant Store Manager Anderson, an admitted statutory supervisor). Further, Store Manager Frederick specifically advised unit employee Keesey in December 2011 that he and the other auto center employees are not “equal” to Wydeven and that there is no “second in charge” in the auto center. In addition, Wydeven has signed and presented probationary evaluations to employ- ees, also signed a disciplinary warning to an employee, and attended the termination meeting for another employee. Cf. Sheraton Universal Hotel, 350 NLRB at 1118 (listing several similar “secondary indicia” as corroborating evidence of 2(11) tions, 358 NLRB 1701 (2012) (“rote and conclusory testimony” of respondent’s project manager in response to leading questions by coun- sel was insufficient to satisfy respondent’s burden of establishing su- pervisory status). 20 Although there is no direct evidence that the pay raise was based on the evaluation, the satisfactory ratings and positive comments in the evaluation, coupled with the timing of the pay raise (10 months after starting and just 7 weeks after the evaluation) and the absence of any prior or subsequent raises, is sufficient circumstantial record evidence (which the Company never rebutted) to satisfy the General Counsel’s burden of proof that there is a prospect of positive or negative conse- quences as a result of the evaluation. 1024 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD supervisory status). See also E & L Transport Co. v. NLRB, 85 F.2d 1258, 1270 (7th Cir. 1996) (“Although not determinative on their own, where one of the enumerated indicia in Sec. 2(11) is present, secondary indicia support a finding of statutory su- pervisor”). Accordingly, for all the foregoing reasons, I find that Wydeven is a supervisor within the meaning of Section 2(11), and that the Company therefore violated the Act as alleged. 2. Whether Wydeven is an agent As indicated above, the General Counsel additionally or al- ternatively contends that Wydeven is an agent of the Company under Section 2(13) of the Act.21 Although there is no evidence that he was specifically directed or authorized by the Company to circulate the antiunion petition, the General Counsel asserts that Wydeven was acting as an agent of the Company under the doctrine of apparent authority. As stated in Hausner Hard-Chrome of Kentucky, 326 NLRB 426, 428 (1998): “Apparent authority results from a manifestation by the prin- cipal to a third party that creates a reasonable basis for the lat- ter to believe that the principal had authorized the alleged agent to perform the acts in question.” Southern Bag Corp., 315 NLRB 725 (1994), and cases there cited. See also Alli- ance Rubber Co., 286 NLRB 645, 646 (1987). The test is whether, under all the circumstances, employees “would rea- sonably believe that the employee in question [the alleged agent] was reflecting company policy and speaking and acting for management.” Waterbed World, 286 NLRB 425, 426–427 (1987). Under Board precedent, an employer may have an employee’s statements attributed to it if the employee is “held out as a conduit for transmitting information [from manage- ment] to other employees.” Debber Electric, 313 NLRB 1094, 1095 fn. 6 (1994). As with supervisory status, the burden is on the party asserting the agency relationship with respect to specific conduct to prove it. Pan-Oston Co., 336 NLRB 305 (2001). Here, as discussed above, the Company holds out Wydeven as a member of management and utilizes him as a “conduit” for transmitting information to employees about whether they will be retained following their probationary period. Moreover, as Wydeven is excluded from the bargaining unit along with other managers and department heads, it cannot be concluded that the unit employees would likely view his antiunion actions as taken in furtherance of his own or their interests, rather than the Company’s interests. Cf. Comau, Inc., 358 NLRB 593 (2012) (reaching the opposite conclusion where the individuals who circulated the disaffection petition were included in the unit and had previously served as union officials). Although there is no 21 See 29 U.S.C. §. 152(13) (“In determining whether any person is acting as an ‘agent’ of another person so as to make such other person responsible for his acts, the question of whether the specific acts per- formed were actually authorized or subsequently ratified shall not be controlling.”). record evidence that Wydeven’s statements or actions were consistent with the Company’s statements or actions, this is not dispositive. Pan-Oston, 336 NLRB at 306. Accordingly, I find that the General Counsel has adequately established that Wydeven was an agent of the Company when he circulated the petition, and that the Company therefore vio- lated the Act on this basis as well. CONCLUSIONS OF LAW 1. By soliciting employees, through its supervisor and agent Wydeven, to withdraw their support for the Union in March and April 2012, the Company has engaged in unfair labor prac- tices affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act. 2. By withdrawing recognition from the Union on April 10, 2012, and thereafter refusing to bargain with the Union as the exclusive collective-bargaining representative of the unit em- ployees, the Company has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. REMEDY To remedy the foregoing violations, the complaint requests that the Company be ordered to recognize and, on request, bar- gain with the Union over the unit employees’ terms and condi- tions of employment; to promptly notify the Union of any changes in the unit employees’ terms and conditions of em- ployment that have been implemented since April 10, 2012; to rescind, at the Union’s request, such changes; and to make the unit employees whole for any loss of earnings or benefits suf- fered as a result of the changes, with interest compounded dai- ly. In addition, the complaint requests that the Company be ordered to read the remedial notice to employees during work- ing time. The Company has not contested the appropriateness of any of these requested remedies and they are supported by Board precedent. See Specialty Hospital of Washington- Hadley, LLC, 357 NLRB 814 (2011); and Vincent/Metro Trucking, LLC, 355 NLRB 289 (2010). The remedies are therefore granted.22 The complaint also requests that the Company be ordered to reimburse employees for any excess Federal and State income taxes they may owe from receiving lump-sum backpay, and to submit appropriate documentation to the Social Security Ad- ministration so that their backpay will be allocated to the proper periods. However, the appropriateness of such remedies is currently being considered by the Board. See Latino Express, Inc., 358 NLRB 823 (2012). These additional remedies are therefore denied. [Recommended Order omitted from publication.] 22 One of the two management officials who notified the employees on April 12, 2012, that the Company had withdrawn recognition from the Union based on the petition will be ordered to read the remedial notice to the employees. See Jt. Exh. 3 (also notifying employees that the Company would be granting them a wage increase that it had previ- ously proposed during contract negotiations with the Union).