California Beverage Co.

National Labor Relations Board - Board Decisions

Mar 25, 1987

283 N.L.R.B. 328 (N.L.R.B. 1987)

328 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Coors Distributing Company of San Jose, Inc.,
d/b/a `California Beverage Company and Pro-
fessional & Clerical Employees Division Team-
sters Local Union #856, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Peti-
tioner . Case 20-RC-15989
25 March 1987
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 21 March 1986 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 3 for and 0 against the Petitioner,
with 4 challenged ballots.
The Board has reviewed the record in light of
the exceptions and briefs, and has adopted the
hearing` officer's findings and recommendations,
only to the extent consistent with this Decision and
Direction. I
The hearing officer found that Stephanie Sung is
a supervisor within the meaning of Section 2(11) of
the Act and recommended that the challenge to
Sung's ballot be sustained. The Employer excepts,
contending that Sung neither exercises independent
judgment in connection with her duties nor pos-
sesses any of the indicia of supervisory status as
enumerated in Section 2(11) of the Act. We find
merit in the Employer's exceptions.
It is well settled that the possession of any one of
the indicia of supervisory authority specified in
Section 2(11)2 of the Act, provided that such au-
thority is exercised with independent judgment on
behalf of management, is sufficient to confer super-
visory status on an employee. Commercial Fleet
Wash, 190 NLRB 326 (1971); Indiana Refrigerator
Lines, 157 NLRB 539, 550 (1966). However, isolat-
ed or sporadic exercise of this authority is insuffi-
cient to predicate a supervisory fording. See George
C. Foss Co., 270 NLRB 232 (1984); Teamsters Local
574, 259 NLRB 344 (1981). Further, employees
i In the absence of exceptions, we adopt pro forma the hearing offi-
cer's'findmg that Anna'Cardinale is a confidential employee We need
not pass, therefore, on the Employer's contention in its exceptions that
Cardinale is also a managerial employee.
2 Sec 2(11) of the Act states:
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 effective-
ly 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 judgment.
who are merely conduits for relaying management
information to other employees are not true super-
visors. George C. Foss Co., supra; Bowne of Houston,
Inc., 280 NLRB 1222 (1986); Hydro Conduit Corp.,
254 NLRB 433 (1981).
The burden of proving supervisory status rests
on the party alleging that such status exists. Tucson
Gas & Electric Co., 241 NLRB 181 (1979); St. Al-
phonsus Hospital, 261 NLRB 620, 624 (1982); Hydro
Conduit Corp., supra. As shown below, we find
that the Petitioner has not met that burden.
The Employer is a wholesale beer, distributor
with offices in San Francisco and San Jose, Cali-
fornia . The San Francisco office employs various
sales, warehouse, and delivery persons, along with
seven office clerical employees, six of whom work
in the front office. The Employer's president and
general manager, Edward Derry, and its sales man-
ager, Peter Marino, are located at this office. Con-
troller Mark Blair has his office at the San Jose fa-
cility. Sung is the most experienced employee,
having worked for the Employer for 14 years, and
in 1985 Sung was given the title of office manager.
In finding that Stephanie Sung is a supervisor,
the hearing officer relied mainly on the testimony
of clerical employee Janet Davis, the only clerical
employee who has been hired since Sung became
office manager. Davis testified that she had two
interviews, both with Sung. In the first interview,
Sung asked about Davis' general employment his-
tory and background. In the second interview,
Sung and Sharon Horn showed Davis what type of
work she would be doing. Within a week of the
second interview Sung called Davis and told her
she was hired.3 From this testimony, which he
characterized as "pivotal and persuasive," the hear-
ing officer concluded that Sung had hired Davis or
effectively recommended that Blair hire her.
In addition, the hearing officer also found that
because Sung talks with Blair daily, and "lets him
know how the office is running," she has become
his "eyes, ears, and mind in the San Francisco
office." In making these reports to Blair, the hear-
ing officer reasoned that Sung was using independ-
ent judgment.
The hearing officer also pointed to Sung's title4
and higher salary5 as further indicia of her supervi-
sory status. While he accepted the Employer's ex-
planation that both are merely functions of her
years with the Company, he stated that through
' Davis was hired on 30 July 1985
4 The hearing officer noted that other persons outside of the office
clerical unit who have used the title of "Manager" on their business cards
were allegedly supervisors
5 Sung receives several hundred dollars per month more than any of
the other office clericals
283 NLRB No. 52
CALIFORNIA BEVERAGE CO. 329
her tenure she also has accumulated "authority"
and is increasingly relied on "to keep the front
office operating smoothly."
The hearing officer's analysis is critically flawed.
The hearing officer in his report failed to recount
and completely ignored the testimony of the Em-
ployer's witnesses, much of which was corroborat-
ed and uncontradicted. This testimony, as we show
below, refutes that relied on by the hearing officer
to establish Sung's supervisory status.
Stephanie Sung testified as follows about her
duties in the hiring process. In an initial meeting
Sung reviews the written application and gathers
more information orally from the applicant. Sung
or Sharon Hom may also show the prospective em-
ployee around the office. Sung then calls Blair and
relays the information to him and asks whether he
wants to schedule an interview. Ultimately, Blair
makes the decision whether or not to hire the ap-
plicant and then has Sung inform the person of the
decision.6
Mark Blair's recounting of the hiring process
confirmed Sung's description. Blair testified he
never relies solely on Sung 's review of an appli-
cant, but makes a decision only after he conducts
his own independent investigation.
Blair and Sung testified that this procedure was
followed when Janet Roberts was hired,' and there
is no reason to believe that this was not also the
case when Janet Davis was hired. In this regard,
we note that Davis' testimony does not contradict
that of Blair and Sung. Davis testified that Sung
conducted the interviews and informed her that she
was hired, not that Sung made the decision to hire
her. The hearing officer failed to recognize that
Davis lacked any personal knowledge of who
made the decision to hire her.
In regard to Sung using independent judgment in
making her reports to Blair about employee per-
formance, the hearing officer again ignored Blair's
and Sung's uncontroverted testimony. ' They both
testified that Blair's usual practice when a new em-
ployee is hired is to call several office clericals and
talk about the employee's performance. He often
received such reports from Sharon Hom, Viola
Hom, and Janet Roberts, all three of whom voted
in the election and admittedly are not supervisors.
As to the hearing officer's reliance on Sung's
title, the hearing officer ignored the fact that three
of the six front office employees, including Sung,
have some managerial title. Sharon Hom has the
title of computer supervisor and Janet Roberts has
the title of credit manager. Both of these women
voted in the election and admittedly are not super-
visors. In addition, as noted by the hearing officer,
the uncontradicted testimony of the Employer's
witnesses shows that Sung received the title of
office manager because of her long service to the
Employer.
Further uncontradicted testimony reveals that
Sung possessed none of the indicia of supervisory
status. The six front office employees perform rou-
tine office work, which includes typing, phone
work, filing, invoicing, and computer input. The
work is repetitive and, as Derry testified, very little
supervision is needed. Sung performs the same
work as the other office employees and has only
two unique duties: keeping track of employee ab-
sences and gathering and maintaining payroll
records. Her duties in this regard are clerical; she
simply records the information given to her by an
employee, and she has no authority to change the
information. Also, Sung is on the same pay scale
and receives the same benefits as the other clerical
employees. Both Edward Derry, and Mark Blair
testified that the office manager has' no authority to
hire, fire, discipline, suspend, lay off, recall, pro-
mote, evaluate an employee for a change in com-
pensation, approve overtime, or grant vacation
time or time off. Blair further testified that he alone
makes all the office clericals' work assignments and
reassignments.
As to hiring, Sung and Sharon Hom have con-
ducted some second interviews with Blair . Howev-
er, as Blair testified, they did so only at his request
and only to answer questions about the office
duties. Although' Sung has voiced an opinion on
whether an applicant should be hired, Blair testi-
fied that he never relies solely on her opinion in
making a decision. Also, other employees have
made' recommendations or voiced an opinion re
garding an applicant. Peter Marino testified that
Janet Roberts has recommended two applicants, in-,
cluding Pam Howe, and Laurie Romero has also
recommended an applicant. Neither Roberts nor
Romero are supervisors.
In the event of a discharge, Blair testified that he
conducts an investigation. He talks with the office
clericals and may observe the employee himself
before making a decision. According to his uncon-
tradicted testimony, this procedure was followed in
the discharge of Pam Howe. Blair talked to Janet
Roberts," Viola Hom, and Sung about Howe's per-
6 During the hearing the Petitioner 's counsel asked Sung to define the
word "hire " Sung replied that "hire" means that she is to inform the ap- By Peter Marino's uncontradicted account , Roberts has also recom-
plicant that they have a job, after Blair has told her to do so . mended that a sales employee be discharged . She was receiving com-
7 Sales Manager Marino testified that Blair, before deciding to hire plaints from customers about the salesperson and went to Marino to sug-
Roberts, called her former employer. gest that the person be fired.
330 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
formance. In order to correct the problem, he had
Sung -explain to her what the correct procedure
was. When Howe's performance did not improve,
he had Sung tell her she was fired. There is no evi-
dence that Sung was anything other than a conduit
for Blair's instructions.
With regard to evaluating employees' perform-
ance, both Blair and Sung testified that Sung has
done only one evaluation. When Janet Roberts
complained about the delay in getting her evalua-
tion and raise, Blair directed Sung to give Roberts
a 3-month evaluation. They had discussed which
boxes Sung should fill in on the form, and Sung
followed Blair's instructions. Sung was not the
office manager at this time.
According to uncontroverted statements by
Derry and Blair, Sung cannot grant a wage, in-
crease. A request for a raise must be approved by
Derry or a higher company official.9 In Janet Rob-
erts' case it was Derry who authorized her raise.
Both Derry and Sung testified that Sung has no
authority to -grant time off, 10 but merely acts as a
conduit relaying information. Because of the small
number, of employees, the front office is "close-
knit," and management allows the office employees
to schedule their own vacations and time off. The
employees merely report to Sung when they are
going to take time off. She in turn reports to
Derry, who routinely signs off on the absence
form.
The record is devoid of any evidence that Sung
has authority to grant overtime. The record is also
devoid of any evidence that Sung has any author-
ity to .discipline workers. Rather, the power to dis-
cipline is vested in Derry, Marino, and Blair. Ac-
cording to the uncontradicted testimony of Derry
and Peter Marino, Roberts has twice been,repri-
manded for tardiness, once by Derry and once by
Marino.
With respect to the handling of employees'
grievances, there is no evidence that Sung has an-
,9 Roberts testified that it was her understanding that Sung has the au-
thority to grant her a' raise This "understanding" was based on a state-
ment made by Sung during Roberts' evaluation , i e., that Sung would
give Roberts $50 more. However, Roberts later admitted that she was
unaware of who actually granted her the raise Furthermore, in her initial
attempt to secure a raise she went to Peter Marino and not Sung, who
was not the office manager at that time . When she complained about the
delay in getting her evaluation and raise, Viola Hom, who was , then
office manager, told her to contact Blair in order to remedy the situation.
'° According to'Janet Davis' own testimony , when she was selected
for jury duty, it was Davis herself who, decided whether or not she
would attend and, after the decision was made, Davis told Sung how she
intended to change her work hours
thority to adjust or correct grievances. Blair testi-
fied that he generally - handles- all grievances
through his constant contact with the San Francis-
co employees, either by phone or in person.
For the above reasons, we conclude that the Pe-
titioner has not met its burden of establishing that
Sung is a supervisor as defined by the Act. In ana-
lyzing the various incidents of alleged, exercise of
supervisory authority, we find that in each instance
the evidence fails to establish that the -authority ex-
ercised was anything more than of strictly, routine
nature, not involving the use of independent judg-
ment. -
With regard to hiring, firing, evaluating employ-
ee performance, granting time off, and adjusting
grievances, the evidence shows that Sung merely
receives and relays information to and from Blair
and thus acts only as a conduit and not a true su-
pervisor. See Hydro Conduit Corp., 254 NLRB 433
(1981); Chicago Metallic, 273 NLRB 1677,- 1688-
1694 (1985). With regard to the remaining indicia
of supervisory status, the record is devoid of any
evidence to establish that Sung was a supervisor.
See Bo,wne of Houston, Inc., 280 NLRB 1222 (1986).
The record is clear that Sung 's responsibilities
did not confer on her supervisory status; rather, the
record establishes that she performs the same work,
receives the same benefits, and is on the same pay
scale as the other office clerical employees. Fur-
ther, neither Sung's, title nor her ability "to keep
things running smoothly" is sufficient to confer on
her supervisory status. Marukyo U.S.A., Inc., 268
NLRB 1102 (1984); Hydro Conduit Corp., supra at
438.
We therefore find, contrary to the hearing offi-
cer's recommendation, that Sung is not a supervi-
sor within the meaning of the Act, and we over-
rule the challenge to her ballot. Accordingly, as
this ballot is sufficient in number to affect the re-
sults of the election, we shall direct the Regional
Director to open and count her ballot, to prepare a
revised tally of ballots, and to issue the appropriate
certification.
DIRECTION
IT IS DIRECTED that the Regional Director,
within 10 days from the date of this decision, open
and count the ballot cast by Stephanie Sung and
prepare and cause to be served on the parties a re-
vised tally of ballots. Thereafter, the Regional Di-
rector shall issue the appropriate certification.