Aardvark Post

National Labor Relations Board - Board Decisions

Jun 13, 2000

331 N.L.R.B. 320 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 320
GRB Entertainment, Inc. d/b/a Aardvark Post and In-
ternational Alliance of Theatrical Stage Employ-
ees, Moving Picture Technicians, Artists and Al-
lied Crafts of the U.S. and Canada, AFL–CIO,
CLC, Petitioner. Case 31–RC–7551
June 13, 2000
DECISION AND DIRECTION
BY MEMBERS FOX, LIEBMAN, AND BRAME
The National Labor Relations Board, by a three-member
panel, has considered determinative challenges to an elec-
tion held October 28, 1997, and the hearing officer’s report
recommending disposition of them. The election was con-
ducted pursuant to a Stipulated Election Agreement. The
tally of ballots shows 11 for and 7 against the Petitioner,
with 15 challenged ballots.
The Board has reviewed the record in light of the excep-
tions and briefs, and has adopted the hearing officer’s find-
ings1 and recommendations2 only to the extent consistent
with this Decision and Direction.
The hearing officer found that Senior Staff Editor Roger
Bartlett was a supervisor within the meaning of Section
2(11) of the Act and therefore recommended that the chal-
lenge to his ballot be sustained. The basis for the hearing
officer’s finding was her conclusion that Bartlett effectively
recommended applicants to the director of post production,
Jeff Kimes, for hire without Kimes’ further independent
review. The Employer excepts, contending that Kimes re-
tained hiring authority and that Bartlett’s role in the hiring
process was merely to screen applicants to determine their
technical skill because Kimes did not have the technical
knowledge of the editing equipment. We find merit in the
Employer’s exception.
The Employer’s business involves audio and visual post
production editing work for programming shown on cable
television. The Employer employs dubbers, editors, assis-
tant editors, audio editors, and tape librarians. The record
reflects that during the period at issue, when there was a
need to increase the number of assistant editors, first assis-
tant editor Wendy Quick collected available resumes for
Bartlett to screen in order to determine who would be inter-
viewed, and scheduled interviews for applicants Bartlett
selected. Bartlett then interviewed the applicants, some-
times with Quick and sometimes alone, and gave them a test
on the editing machine. Kimes then interviewed the appli-
cants referred to him by Bartlett, sometimes with Quick and
sometimes alone.

1 The Employer has excepted to some of the hearing officer’s credibility
findings. The Board’s established policy is not to overrule a hearing offi-
cer’s credibility resolutions unless the clear preponderance of all the rele-
vant evidence convinces us that they are incorrect. Stretch-Tex Co., 118
NLRB 1359, 1361 (1957). We find no basis for reversing the findings.
We adopt the hearing officer’s recommendation to sustain the challenge
of Li Po Ching’s ballot. In doing so, we rely solely on the finding that
Ching was briefly employed before the election as a temporary substitute
for a vacationing individual. Thus, we sustain the challenge to Ching’s
ballot solely on the ground that he was a temporary employee. We find it
unnecessary to pass on the hearing officer’s finding that Ching was a su-
pervisor.
2 In absence of exceptions, we adopt pro forma the hearing officer’s
recommendation to sustain the challenges to the ballots of Julian Gomez
and Howard Lamden and to overrule the challenges to the ballots of Dan
Luna, Greg Schiff, Ryan Gold, and Paul Vincent. Further because the
challenges to the ballots of Rodney Conner, Mark Teixreira, Steve Bock,
and Greg Byers were withdrawn, we adopt the hearing officer’s recom-
mendation that their ballots be opened and counted.
Kevin Ham, who was employed by the Employer from
March to December 1997, testified that while being inter-
viewed by Bartlett, he was tested on the editing machine,
asked about his background, and told how much money he
would be paid and what hours he would work. Ham also
testified that he was subsequently interviewed by Kimes,
who again asked him about his background. Kimes then
asked him when he could begin, and how long he could
work for the Employer. Michael Karlman, who was em-
ployed by the Employer from April to approximately De-
cember 1997, testified that when he went to interview with
Bartlett, he was taken straight to the editing bays. Bartlett
did not ask him any questions, but asked Karlman to per-
form certain tasks on the editing machine to ensure that he
knew how to use it. Karlman then interviewed with Kimes.
Kimes briefly asked Karlman about his background, de-
scribed the position, and stated what the Employer was
looking for in an assistant editor. Kimes then told Karlman
that he had better be comfortable working the graveyard
shift because that was the shift for which he was going to be
hired.
Kimes testified that Bartlett’s function was basically to
let him know if the applicants were technically able to
handle the position. Kimes testified that after Bartlett
tested and interviewed an applicant Bartlett would meet
with him and verbally transmit Bartlett’s evaluation of the
applicant’s abilities. Kimes testified that Bartlett never
recommended an applicant for hire or recommended
against hiring an applicant. Kimes testified that at least
one assistant editor, Wendy Quick, was hired without
Bartlett either interviewing her or evaluating whether she
was capable of handling the job. Specifically, Kimes testi-
fied that Bartlett’s part of the job was strictly to determine
if the applicants were knowledgeable on the technical side
and Kimes’ part was to determine if they would “fit into”
the Employer’s operation. Finally, while Kimes testified
that he had never in the past hired a person that Bartlett
said did not have the technical skills, he did not discount
the possibility of hiring someone without demonstrated
technical skills in the future. Kimes also testified that he
had the final say. This was confirmed by first assistant
editor Wendy Quick’s testimony that Kimes gave the final
“stamp of approval” to the applicants who were tested and
interviewed by Bartlett.
Based on the above, we disagree with the hearing officer
that Bartlett effectively recommended applicants for hire. It
is undisputed that Bartlett never made a recommendation to
Kimes that an applicant be hired or rejected. Rather, his
role in the hiring process was limited to testing each appli-
331 NLRB No. 41
AARDVARK POST 321
cant’s technical skills by conducting editing tests and report-
ing those results to Kimes.
The Board has consistently found that such an assessment
of an applicant’s technical ability to perform the required
work does not constitute an effective recommendation to
hire. Hogan Mfg., Inc. 305 NLRB 806 (1991); The Door,
297 NLRB 601 (1990); Plumbers Local 195 (Jefferson
Chemical Co.), 237 NLRB 1099, 1102 (1978). As these
cases make clear, the fact that Kimes accepted and relied on
Bartlett’s technical assessment of applicants represents a
deference to Bartlett’s technical expertise, which Kimes
acknowledged that he lacked, rather than a delegation of
statutory supervisory authority.3 Accordingly, we find that
the Petitioner has failed to meet its burden of establishing
that Bartlett has the authority to effectively recommend
applicants for hire.
Finally, there is no other basis for finding that Bartlett is a
supervisor. There is no evidence that Bartlett has the au-
thority to transfer, suspend, lay off, recall, promote, dis-
charge, reward employees, or adjust their grievances. The
facts noted by the hearing officer that Bartlett attended man-
agement meetings and that others perceived him to be a
supervisor are secondary indicia of supervisory status and,
because we have not found any primary indicia of supervi-
sory status, cannot be dispositive to finding that Bartlett is a
Section 2(11) supervisor. General Security Services Corp.,
326 NLRB 312 (1998); and Billows Electric Supply, 311
NLRB 878 fn. 2 (1993).
In sum, we find that the evidence fails to establish that
Bartlett is a supervisor, and thus the challenge to his ballot
should be overruled. Accordingly, we shall remand this
matter to the Regional Director pursuant to this Decision
and the following Direction.
DIRECTION
IT IS DIRECTED that the Regional Director for Re-
gion 31, within 14 days from the date of the decision,
shall open and count the ballots of Roger Bartlett, Dan
Luna, Greg Schiff, Ryan Gold, Paul Vincent, Rodney
Conner, Mark Teixreira, Steve Bock, and Greg Byers.
The Regional Director shall then serve on the parties a
revised tally of ballots. If based on the tally, the Peti-
tioner has received a majority of the votes cast, the Re-
gional Director shall issue a certification of representa-
tive. If the Petitioner has not received a majority of the
votes cast, then the Regional Director will issue a notice
of hearing on objections.

MEMBER BRAME, dissenting in part.
I agree with the majority’s adoption of the hearing offi-
cer’s recommendation that the challenges to the ballots of
the post production employees be sustained. I further agree

3 We find RB Associates, 324 NLRB 874, 879 (1997), relied on by our
dissenting colleague, to be distinguishable. In that case, the employer not
only delegated to the disputed supervisor the responsibility to assess appli-
cants’ qualifications but also the responsibility to make the final selection
from which the qualified applicants should be hired.
with the majority’s adoption of the hearing officer’s rec-
ommendation that the challenge to Li Po Ching’s ballot be
sustained; however, I would rely on both grounds given by
the hearing officer for her decision, i.e., that Ching was both
a temporary employee and a supervisor. Finally, I disagree
with the majority’s conclusion that the record evidence does
not support a finding that Roger Bartlett is a supervisor
within the meaning of Section 2(11) of the Act. The term
supervisor means any individual having authority, in the
interest of the employer, to hire, transfer, suspend, lay off,
recall, promote, discharge, assign, reward, or discipline
other employees, or responsibly to direct them, or to adjust
their grievances, or effectively to recommend such action, if
in connection with the foregoing the exercise of such au-
thority is not of a merely routine or clerical in nature, but
requires the use of independent judgment. I agree with the
hearing officer that Bartlett should be found to be a supervi-
sor because he effectively recommends applicants for hire to
Director of Post Production Jeff Kimes.
The record evidence reflects Bartlett’s involvement in all
aspects of the Employer’s hiring of assistant editors. Bartlett
selected the individuals to interview for the assistant editor
openings from resumes gathered by first assistant editor
Quick. He then interviewed, tested, and questioned those he
selected to determine their technical skill levels. Kimes testi-
fied that he never hired an individual that Bartlett first did not
approve. His testimony was corroborated by Quick who
testified specifically that during interviews Kimes gave his
“stamp of approval” to Bartlett’s recommendations.
Contrary to the majority’s finding, I find that Bartlett did
more than just test applicants and report the test results to
Kimes. Former employee Kevin Ham testified that during
his interview with Bartlett, Bartlett asked him about his
background, told him how much that he would be paid, and
the number of hours that he would work. Ham further testi-
fied that Kimes, during Ham’s second interview, did not
provide further information concerning the terms and condi-
tions that Bartlett discussed. Bartlett thus conducted a thor-
ough interview of this applicant and referred him to Kimes
for his “stamp of approval.” Further, Kimes himself con-
ceded that he had never hired anyone that Barlett had not
recommended as technically capable of performing the job.1
I find this testimony to establish effective recommendation,
despite testimony that Kimes retained final approval author-
ity.
In my view, where an employee selects candidates from
the available resumes, interviews candidates, tells them the
terms and conditions of their employment, decides which of
the candidates interviewed have the requisite skill qualifica-
tions, and selects candidates for hire without independent
technical review, that individual possesses the authority to
make effective recommendation in hiring. See RB Associ-
ates, 324 NLRB 874, 879 (1997). The facts that Kimes
1 In my view, the fact that Kimes speculates he might in the future
hire someone that Bartlett has not recommended is irrelevant.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 322
may wish to make his own inquiry into an applicant’s back-
ground, assess “fit,” or describe to an applicant terms and
conditions of employment upon hire, does not negate his
reliance on Bartlett’s hiring recommendations, or render
Bartlett’s recommendations ineffective. Therefore, I find, in
agreement with the hearing officer, that Bartlett is a supervi-
sor under Section 2(11) of the Act and that the challenge to
his ballot should be sustained.