Bowne Of Houston, Inc.

National Labor Relations Board - Board Decisions

Jul 21, 1986

280 N.L.R.B. 1222 (N.L.R.B. 1986)

1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bowne of Houston , Inc. and Houston Typographical
Union No. 87, International Typographical
Union, AFL-CIO. Case 23-RC-5256
21 July 1986
DECISION AND DIRECTION
By CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHENS
The National Labor Relations Board, by a three-
member panel, has considered determinative chal-
lenges in an election held 26 April 1985 and the
hearing officer's report recommending disposition
of them. The election was conducted pursuant to a
Stipulated Election Agreement. The tally of the
ballots shows 12 for and 11 against the Petitioner,
with 3 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 only to
the extent consistent with this Decision and Direc-
tion.
The hearing officer found that Doyle Womack is
a supervisor within the meaning of Section 2(11) of
the Act, and recommended that the challenge to
Womack's ballot be sustained . The Employer ex-
cepts, contending that Womack neither exercises
independent judgment nor has the authority to ex-
ercise independent judgment in connection with his
duties, and that Womack possesses none of the in-
dicia of supervisory status as enumerated in Section
2(11) of the Act. We find merit in the Employer's
exceptions , and conclude that the Petitioner has
not met its burden of establishing that Womack is a
supervisor.
The Employer, Bowne of Houston, is in the busi-
ness of legal and financial printing. The Company
underwent a recent transition in its operations
within the composing room where the type is set
and put into configuration for the final printing.
The Company previously set all print from hot
metal , using Line-A-Type machines. However, the
transition, which took place over a year, involved
phasing out the hot metal operation and changing
over to computer typesetting, also referred to as
cold type. The cold type operation is located in the
computer composing room. During the transition
period, both the hot metal and cold type processes
' The Regional Director issued a Supplemental Decision and Order
Directing Hearing on 31 May 1985, recommending that the challenges to
the ballots of William J. Casey and Rene Gonzales be sustained , that the
portion of the challenge to the ballot of Doyle Womack relating to his
late arrival at the polls be overruled, and that a hearing be held for the
purpose of resolving the issue raised by the challenge to Womack's ballot
based on his alleged supervisory status.
have been in operation.2 Hot metal employees who
qualified have been receiving training in the cold
type operation.
Employee Doyle Womack is an assistant fore-
man in the composing department. He works in
cold type on the 4 p.m. to midnight shift. Womack
was promoted to the assistant foreman position in
November 1984, at which time he received a wage
increase of 25 cents per hour. On 30 January 1985
Womack received a wage increase of $1.75 per
hour over scale, which was identified in personnel
records as "supervisor's pay."
On 30 January 1985 a memorandum from the
vice president of operations, Robert Baechtold, was
addressed to the composing department employees
indicating a division in duties pertaining to the
composing department. The memorandum stated
that, effective immediately, General Foreman Dick
Nevitt would be in charge of hot metal and
Womack would be in charge of cold type. The
memorandum further indicated that the hot metal
and cold type operation would be considered as
two separate departments and that the employees
were to report to the supervisor in the department
in which they worked.
Prior to the announcement, hot metal and cold
type were considered as one department, and all
decisions, requests, and the like went through
Nevitt.3 After the announcement, it was no longer
necessary for employees in cold type to go through
Nevitt. They were to report to Womack, who, in
turn, relayed all information and requests to the
shift manager, Tony Pepe, in the front office. Since
the announcement of the division of duties in hot
metal and cold type, Womack has reported directly
to Pepe.
The jobs to be processed in cold type are deter-
mined by the front office. Womack generally re-
ceives the copy for the work to be done from Pepe
or one of his assistants in the front office. Womack
receives oral and written instructions from the
front office on how a job is to be set, deadline,
style format, type size, measure, page depth, type
face, and job priority. Each job usually involves a
different procedure, set of instructions, and way to
be set. Womack has no authority to change the in-
structions without first discussing it with the shift
manager . Womack then divides the work and
2 As of the date of the hearing , on 9 July 1985, the computer , or cold
type operation, was still in the startup mode
2 The following description of the operations of the cold type depart-
ment is based on the testimony of Womack and Baechtold . The hearing
officer made no reference to the testimony. Neither did he undertake a
general description of work in the cold type department. However, as
discussed more fully below, the testimony concerning the operations of
the cold type department is not in conflict with any of the testimony
credited and relied on by the hearing officer.
280 NLRB No. 132
BOWNE OF HOUSTON
marks the copy. Marking the copy is production
work and involves indicating indentations, page
breaks, the type sizes, style, and how the type is to
be set. After marking the copy, Womack puts it in
a copy box from which the operators pick up the
copy, page for page. If Womack determines that
there is a problem page or a page in which a spe-
cific operator has more expertise, then he may
assign the particular page to that operator.
Womack follows the job through the computer
typesetting system, to the proof room, and back to
his desk. He spends much of his time troubleshoot-
ing jobs by helping operators who have trouble
with their formatting, programming, and setting
the copy on their machines. In so doing, Womack
may answer employee questions, explain how
equipment or procedures work, determine why an
operator's program will not work, or rearrange the
program formats to make them work better on the
system.
Womack also spends a lot of time going back
and forth between the cold type composing room
and the front office relaying problems, taking in-
structions, and relaying the instructions from the
front office to the operators. If there is a problem
setting a page, Womack takes the copy to the front
office for instructions on how to set it.
The hearing officer credited the testimony of the
Petitioner's witnesses Bobby Potter and Orvill
Brown concerning Womack's duties in finding that
Womack granted time off and excused overtime,
gave instructions to employees and answered job-
related questions, gave specific job assignments,
transferred employees, established job priorities, as-
signed overtime, interviewed prospective employ-
ees, and notified an employee that he had been
fired. The hearing officer concluded that Womack
was a supervisor within the meaning of Section
2(11) of the Act. The hearing officer further found
Womack's testimony that he had authority to trans-
fer employees and the documentary evidence refer-
ring to Womack as a "supervisor" overwhelming
in concluding that Womack is a supervisor. We dis-
agree for the reasons set forth below.
It is well established that the possession of any
one of the indicia specified in Section 2(11) of the
Act is sufficient to confer supervisory status on an
employee,4 provided that authority is exercised
with independent judgment on behalf of manage-
ment and not in a routine manner .5 Thus, the exer-
4 See George C. Foss Co., 270 NLRB 232 (1984); NLRB v. Edward G.
Budd Mfg. Co, 169 F.2d 571 (6th Cu. 1948), cert denied 335 U.S. 908
(1949)
6 See Hydro Conduit Corp ., 254 NLRB 433, 437 (1981).
1223
cise of some "supervisory authority" in a merely
routine , clerical , perfunctory , or sporadic manner
does not confer supervisory status on an employee.
See Chicago Metallic Corp., 273 NLRB 1677 (1985);
Advanced Mining Group, 260 NLRB 486, 507
(1982).
Contrary to the hearing officer, we conclude
that although Womack exercised some authority in
carrying out his duties, the Petitioner has failed to
meet its burden of establishing that Womack used
independent judgment in exercising authority. The
burden of proving supervisory status rests on the
party asserting that such status exists . Soil Engineer-
ing Co., 269 NLRB 55 (1984); Tucson Gas & Elec-
tric Co., 241 NLRB 181 . (1979). In this case, the
burden rests upon the Petitioner, who alleges that
Womack was a supervisor at all times during the
period from 25 February 1985, the date of the peti-
tion, through 26 April 1985, the date of the elec-
tion. Although the hearing officer credited the Pe-
titioner's witnesses in finding that Womack was a
supervisor, Potter and Brown acknowledged that
they had no personal knowledge of whether
Womack was taking independent action or merely
following orders in carrying out his duties. Under
these circumstances, we find that the testimony of
Potter and Brown, even though credited, does not
establish use of independent judgment . Further-
more, it is not in conflict with evidence presented
by the Employer.
With respect to granting time off, Womack testi-
fied that although he may sign a written request for
time off, it is the shift manager, Pepe , who gives
final approval or disapproval for any request. No
request for time off is considered to be approved
without Pepe's signature . Indeed , requests for time
off have been denied by Pepe even though
Womack signed the request form. Ordinarily, when
a request for time off is refused, Pepe informs the
employee that it has not been approved. Pepe then
informs Womack that the employee will not be off
on the day requested. Employee Potter, on whose
testimony the hearing officer principally relied, did
not contradict this. For although Potter stated that
Womack had granted him time off on one occa-
sion, Potter also testified that he was aware that
the request form must be signed by the shift man-
ager before it is approved. Therefore, we do not
find that Womack independently grants time off.
Instead, we find that Womack performs the essen-
tially routine and clerical function of reviewing and
signing the request forms and submitting them to
Shift Manager Pepe, who then independently eval-
uates them.
Concerning granting overtime, Brown testified
that Womack called him to come in early to work
1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
overtime . However , Brown stated that he had no
way of knowing whether Womack made the deci-
sion to grant overtime or whether Womack simply
communicated instructions from the shift manager.
The only other testimony on this issue indicates
that overtime is authorized by the shift manager.
Womack testified that he frequently confers with
the front office concerning staffing , that working
hours are determined by the front office , and that
the front office, specifically Shift Manager Pepe,
always makes the decisions about the need for
overtime and the number of employees needed to
work overtime . When overtime is authorized, em-
ployees inform Womack at the end of the shift
whether they want to work overtime. Womack
then uses an overtime list to make a decision con-
cerning who will work . The employees are select-
ed on an automatic rotation basis from the over-
time list supplied by the timekeeper . Based on the
number of employees authorized for the job, the
top employees on the list are selected . Womack
testified that he does not ever recall asking an em-
ployee to work overtime without the authorization
of the shift manager . In these circumstan ces, we
cannot conclude that Womack independently
grants overtime. Although we do not disturb the
hearing officer's crediting of Brown's testimony
that Womack called him in to work overtime, we
do not find that Brown's testimony is sufficient to
establish that Womack independently grants over-
time . Brown simply did not know , and had no basis
for knowing , whether Womack alone made the de-
cision to call him or whether Womack was merely
following instructions from the shift manager.
With respect to excusing overtime , employee
Potter stated that on one occasion he asked
Womack to be excused from working overtime,
and Womack immediately excused him. Womack
testified, without contradiction, that an employee
has the right to refuse to work overtime . There is,
therefore, no indication that Womack used inde-
pendent judgment in excusing Potter.
Although employee Potter testified that Womack
gives work instructions to employees and answers
job-related questions, we are not persuaded that
this is indicative of supervisory status . Womack tes-
tified that answering job-related questions is an in-
herent part of his job , given his knowledge of the
cold type operation . Further, answering job-related
questions, alone, is not sufficient to establish super-
visory status absent evidence of the use of inde-
pendent judgment or discretion in connection with
such conduct .6 Thus, there is no evidence that
See Chicago Metallic Corp., supra
Womack used independent judgment. Womack also
testified that work instructions are given to him by
the front office and that he relays these instructions
to the employees. In addition , the evidence indi-
cates that Womack is constantly in touch with the
front office and reports any major problems to the
front office. Potter's testimony does not contradict
this. Potter testified that he had no knowledge of
whether the instructions given to employees were
given independently by Womack or whether they
were merely relayed from the front office. In these
circumstances, we cannot find that Womack's con-
duct in giving instructions and answering questions
constitutes a responsible direction of employees
using independent judgment. To the contrary, it
appears that such duties are routine and that
Womack merely serves as a conduit for manage-
ment instructions.
According to the testimony of Womack and em-
ployee Bobby Potter, Womack has temporarily as-
signed Potter and other employees to work in hot
metal when that department was in need of help.
Potter testified that Womack also told the employ-
ees when they were to return to cold type. Potter
further testified that on one occasion an employee
told Womack that they could use some help in hot
metal, and Womack said that he would send help.
On another occasion, Womack told a cold type
employee, who happened to be in the hot metal
area, to stay and give some assistance in hot metal.
Womack stated that he has no authority to transfer
or assign employees from one job to another
except for short periods of time, under circum-
stances when there is a shortage of employees in
the hot metal or when it is necessary to speed up a
job. He further testified that he generally made
temporary transfers of employees to hot metal after
being informed by the front office of a need for
employees in hot metal . When such a need existed,
Shift Manager Pepe told Womack to send a certain
number of operators to hot metal , and Pepe some-
times designated the names of the employees to be
transferred. If the employees were not designated
by name, Womack usually sent whomever was
available and not busy . There is no indication that
Womack has authority to transfer or reassign em-
ployees from one job to another under any other
circumstances . Nor is there an indication that such
temporary transfers occur on a regular basis.
Further, employee Potter, who testified to Wo-
mack's movement of cold type employees to hot
type , stated that he had no way of knowing wheth-
er Womack made the decision to temporarily
assign cold type employees to hot type or whether
Womack simply relayed instructions given by Shift
Manager Pepe. In these circumstances, we cannot
BOWNE OF HOUSTON
find that Womack's assignment of employees is
based on the use of independent judgment . Rather,
such temporary assignments by Womack appear to
be limited to circumstances of urgency and direct-
ed by Shift Manager Pepe. Thus, although the
hearing officer credited the testimony of employee
Potter that Womack temporarily assigned cold
type employees to work in hot type, we find that
the Petitioner has failed to establish that the assign-
ments were based on Womack's use of independent
judgment or discretion.
Concerning job priorities, Brown testified that
Womack "would give" job priorities to him. Based
on this testimony, the hearing officer found that
Womack established job priorities. We cannot,
however, conclude that Brown's testimony demon-
strates that Womack established these priorities
himself. Indeed, Brown also testified that he had no
way of knowing whether Womack established the
job priorities or whether he was communicating in-
structions given to him by Shift Manager Pepe.
Further, the testimony of Potter and Vice Presi-
dent of Operations Baechtold clearly indicates that
job priorities are established in the front office by
management.? Thus, even in light of the hearing
officer's crediting of Brown's testimony, the evi-
dence is insufficient to establish that Womack used
independent judgment in connection with the es-
tablishment of job priorities.
Womack, Baechtold, Potter, and Brown stated
that Womack has interviewed prospective employ-
ees for cold type positions. Brown testified that
Womack informed one employee, Bob Carter, that
he had been hired. However, according to the tes-
timony of both Womack and Baechtold, Womack
did not participate in the hiring decision. He simply
advised Baechtold or Pepe of the applicant's print-
ing experience based on the interview. The final
hiring authority was vested in Baechtold, who tes-
tified that he also interviewed all applicants during
all times relevant to this case. Brown and Potter
both testified that they had no way of knowing
whether the employees interviewed by Womack
were subject to a subsequent interview by higher
management authority, nor were they aware who
made the hiring decision. Thus, we find that, al-
though Womack interviewed employees, the evi-
dence is insufficient to establish that he either made
the hiring decisions or made effective recommenda-
tions to hire these employees.
Finally, regarding the documentary evidence re-
ferring to Womack as a supervisor and the empha-
7 Potter testified that job priorities are established by the customer
service people in the front office . Baechtold further testified that the jobs
are made out by the front office, which designates the type size, measure,
page depth, type face , and priority of the job.
1225
sis placed on this evidence by the hearing officer in
reaching his decision, it is well established that the
Board will not consider titles alone to be determi-
native of supervisory status. The proper consider-
ation is whether the functions, duties, and authority
of an individual, regardless of title, meet any of the
criteria for supervisory status defined in Section
2(11) of the Act. Marukyo U.S.A., Inc., 268 NLRB
1102 (1984); Golden West Broadcasters-KTLA, 215
NLRB 760 (1974). Accordingly, although the
record reveals a memorandum addressed to the
composing room employees on 30 January 1985 in-
dicating a division in "supervisory duties" between
Womack and Nevitt, and an increase in wages re-
ceived by Womack on 18 March 1985 identified as
"supervisor's pay," neither is determinative of Wo-
mack's supervisory status . There must be some
other evidence that Womack possessed or exer-
cised one of the indicia of supervisory status enu-
merated in Section 2(11) of the Act. We find there
is insufficient evidence to support a finding of su-
pervisory status.
For the above reasons and without disturbing the
hearing officer's credibility resolutions, we con-
clude that the Petitioner has not met its burden of
establishing that Womack is a supervisor as defined
by the Act. In analyzing the various incidents of al-
leged exercise of supervisory authority, we find
that in each instance the evidence fails to establish
that the authority exercised was anything more
than strictly routine, not involving use of independ-
ent judgment, nor was independently reviewed by
higher authority. The exercise of such authority is
insufficient to confer supervisory status.8 At most,
the evidence that Womack occasionally exercised
some supervisory authority, as in the transfer of
employees, shows that it was exercised on an irreg-
ular or sporadic basis, and that such conduct is in-
sufficient to establish supervisory status under the
Act.9 We therefore do not adopt the hearing offi-
cer's recommendation regarding Womack's super-
visory status, and we conclude that the challenge
to his ballot be overruled.
Accordingly, as the challenge to the ballot of
Womack is overruled, and as this ballot is sufficient
in number to affect the results of the election, we
shall direct the Regional Director to open and
count the ballot, to prepare a revised tally of bal-
lots, and to issue the appropriate certification.
s See Chicago Metallic Corp., supra; Advanced Mining Group, supra
Y See Vanport Sand & Grovel, 267 NLRB 150 (1983); Chicago Metallic
Corp., supra
1226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DIRECTION and count the ballot cast by Doyle Womack and
IT Is DIRBCTBD that the Regional Director, prepare and cause to be served on the parties a re-
within 10 days from the date of this decision, open vised tally of ballots. Thereafter, the Regional Di-rector shall issue the appropriate certification.