Center for Economic Progress

National Labor Relations Board - Administrative Judge Opinions

Sep 13, 2007

13-CA-043610 (N.L.R.B. Sep. 13, 2007)

JD(ATL)—26—07
Chicago, IL
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE
CENTER FOR ECONOMIC PROGRESS
and CASE 13-CA-43610
CHICAGO NEWSPAPER GUILD
LOCAL 34071, TNG/CWA
J. Edward Castillo, Esq.,
for the General Counsel.
Craig M. Rosenbaum, Esq.,
for the Charging Party.
Steve A. Miller, Esq. and
Nadine C. Abrahams, Esq.
(Fisher & Phillips, LLP),
for the Respondent.
DECISION
Keltner W. Locke, Administrative Law Judge: Undisputed evidence establishes that Respondent
discharged an individual because he would not abandon his support for a union. Because Respondent has
failed to prove that this person was a statutory supervisor outside the Act's protection, I conclude that
Respondent violated Section 8(a)(3) and (1) of the Act.
Procedural History
This case began on September 19, 2006, when Chicago Newspaper Guild Local 34071,
TNG/CWA (the "Union" or "Charging Party") filed an unfair labor practice charge against the Center for
Economic Progress (the "Respondent"). The Chicago Regional Office of the National Labor Relations
Board docketed the charge as Case 13-CA-43610-1. The Union amended the charge on December 28,
2006.
After an investigation, the Board's Regional Director for Region 13 issued a Complaint and
Notice of Hearing (the "Complaint") on January 8, 2007. In doing so, the Regional Director acted for,
and with authority delegated by, the Board's General Counsel (the "General Counsel" or the
"government"). Respondent filed a timely Answer.
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An unfair labor practice hearing opened before me on June 26, 2007 in Chicago. The parties
presented evidence on June 26, 27 and 28, 2007. After all parties had rested, I recessed the hearing until
July 26, 2007, to give counsel time to receive and review the transcripts of the proceedings. On July 26,
2007, the hearing resumed by conference call and counsel for all parties presented oral argument.
Admitted Allegations
Based on admissions in Respondent's Answer, I find that the Union is a labor organization within
the meaning of Section 2(5) of the Act, as alleged in Complaint paragraph III, and that it filed and served
the charge and amended charge as alleged in Complaint paragraphs I(a) and I(b).
Respondent also has admitted, and I find, that at all material times it has been an employer
engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act. Further, based upon
Respondent's Answer, which admits the allegations raised by Complaint paragraphs II(a), II(b), II(c) and
II(d), I conclude that Respondent satisfies the Board's discretionary standards for the exercise of its
jurisdiction.
Respondent has admitted, and I find, that at all material times the following individuals were its
supervisors within the meaning of Section 2(11) of the Act and its agents within the meaning of Section
2(13) of the Act: Executive Director David Marzahl, Director of Administrative Operations Gregory D.
Fields, Senior Director of Programs Mary Ruth Herbers, and Director of Financial and Community
Education O. S. Owen.
Facts
Respondent, a not-for-profit corporation, serves low-income workers in a number of ways.
During tax season, it arranges for volunteers to help these wage earners fill out their income tax returns.
It also conducts educational workshops about credit and money management.
Additionally, Respondent has administered pilot programs involving innovative financial services
for the working poor. One such program addressed a special need of workers who are due income tax
refunds but who have no bank accounts into which the money could be deposited. Banks participating in
the program established special accounts to receive the tax refunds, and provided debit cards allowing the
recipients to spend the money.
Grants from government and private sources fund Respondent. In addition to its paid staff,
Respondent also relies on volunteers and interns it does not pay. Many of these volunteers come from the
federal AmeriCorps/VISTA program. Although they receive stipends from AmeriCorps/VISTA, they do
not receive pay or benefits from Respondent.
The AmeriCorps/VISTA volunteers serve for one-year terms. Respondent has hired a number of
them after they completed their volunteer service. For example, Steve Neumann came to Respondent as
an AmeriCorps/VISTA volunteer in November 2003. When his volunteer service ended in November
2004, Respondent offered him a job with the title "financial programs manager." Neumann accepted.
On about September 30, 2005, Respondent changed Neumann's job title from financial program
manager to "assistant director of financial and community education" and increased his annual salary by
$2,200. Respondent made the title change and salary increase retroactive to July 11, 2005.
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Neumann retained the job duties of financial programs manager and continued to report to O. S.
Owen, the director of financial and community education. Neumann also took on some additional
responsibilities, including maintaining a list of the projects underway in the community and financial
education department supervised by Owen. Because Owen often was out of the office, Neumann advised
Owen regarding the status of those projects.
Neumann's new duties included meeting with the department's staff once a week or, sometimes,
once every two weeks. During these meetings, staff members discussed their projects. Neumann
answered questions and made suggestions, and other staff members sometimes made suggestions
concerning Neumann's projects. Staff members did not have to follow Neumann's suggestions and
suffered no adverse consequences if they did not.
When Respondent changed Neumann's title to "assistant director of financial and community
education," it enlisted him to write a job description for his new position. According to the job
description, the person holding this position "supervises assigned staff." However, the parties vigorously
dispute Neumann's actual authority. That issue will be examined later in this decision.
During the office holiday party on December 20, 2005, some of the staff began discussing
forming a union to represent them. In mid-January 2006, about 5 or 6 of Respondent's employees met
with officials of the Newspaper Guild at the Union's offices. Neumann attended this meeting, as well as
subsequent ones. He also solicited employees to sign Union authorization cards.
By February 17, 2006 letter, the Union informed Respondent's executive director that "a strong
majority of the bargaining unit eligible staff" had chosen the Union to represent it. The letter requested
recognition and bargaining.
About February 22 or 23, 2006, Neumann began wearing a Union button to work. It stated "I'm
Guild and I'm Proud." Neumann wore the button in the presence of two individuals whom Respondent
has admitted to be its supervisors and agents: Executive Director David Marzahl and Senior Director of
Programs Mary Ruth Herbers. Neither commented on the button.
Sometime in January or early February 2006, Respondent had announced a new compensation
system which, according to Neumann, linked an employee's pay to performance. Neumann asked to
discuss it with Marzahl and, on February 27, 2006, the two of them met at a restaurant near the office.
Neumann told Marzahl that he thought the announced compensation system would cause problems.
Neumann suggested that Marzahl talk with a Union official about the contemplated change, but Marzahl
did not indicate whether or not he would do so.
On March 15, 2006, Respondent sent an email to its staff members, including Neumann. The
email informed them that Respondent's board of directors "met yesterday to review and discuss their
position on the union organizing effort by some staff." It said that the board of directors had considered
the Union's request for recognition but had decided not to grant it. The email continued as follows:
The employees who want to continue the process of hiring the Newspaper Guild to
represent them for the purpose of collective bargaining can go to the National Labor
Relations Board (NLRB) to petition for a secret ballot election. The NLRB has the legal
authority to decide if an election should be held and who would be eligible to vote in
such an election. So that you are aware, supervisors are not eligible to vote in an
election. The law also prohibits supervisors from encouraging employees to join a union.
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Thus, all supervisory staff are prohibited from attempting to convince employees to
support the union or from convincing employees to sign union authorization cards.
On March 23, 2006, Neumann met with Marzahl in the latter's office. Although Neumann's description of
this meeting differs in some particulars from Marzahl's, both agree that Marzahl told Neumann that
Respondent considered him to be a supervisor. Marzahl testified "I made it very clear."
According to Neumann, Marzahl said that when Neumann was promoted to assistant director of
financial and community education, management was not "thinking in terms of what a supervisor was."
However, now that a union had requested recognition, management was "looking at people's job
descriptions" and at the National Labor Relations Act to determine who was a supervisor.
Marzahl described the definition of "supervisor" found in the Act, and then went through
Neumann's job description. Neumann quoted Marzahl as saying that if Neumann reviewed his job
description, he would grasp that Neumann had supervisory authority. Neumann credibly testified that
Marzahl then told him "this means you are excluded from the protections of the National Labor Relations
Act. You are not eligible to vote in the union election. You are not covered by any contract. You are not
allowed to go to union meetings. You are not allowed to ask employees if they support the union or not,
et cetera."
During the March 23, 2006 meeting, Marzahl referred to an outline and, he testified, did not
deviate from the material on it. The next day, he emailed Neumann a copy of it. The outline stated as
follows:
Let me clarify what a supervisor is: a supervisor is any individual with authority to hire,
suspend, promote, assign work, discharge, reward or discipline employees, or
responsibility to deal with issues of discipline.
A supervisor also can also [sic] effectively recommend any of the above, even if you do
not carry it out for yourself.
All you need to be a supervisor is for one of the above criteria to apply to you.
If you review your job description, you will grasp that you have supervisory authority.
This means that you are excluded from the protections of the National Labor Relations
Act.
You are not eligible to vote in the union election.
You are not covered by any contract.
You are not allowed to go to union meetings.
You are not allowed to ask employees if they support the union or not.
As a supervisor, and a member of management, I expect you to be loyal to the Center.
You are entitled to your personal beliefs, but you must act consistent with the Center's
goals and philosophy.
JD(ATL)—26—07
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If the union organizing drive proceeds further, I will inform and educate you and other
employees about unions and our perspective on why a union is not needed at the Center.
If you have previously demonstrated support for the Union, your role is to not say
anything more about the Union.
I want to ensure that you fully support the Center and can fulfill your obligations as a
supervisor. If you cannot do so, come see me privately, later.
Based on Marzahl's credited testimony that he read this statement verbatim and did not deviate from it, I
find that he did not communicate to Neumann the additional statutory elements necessary for a finding of
supervisory status. (These elements will be discussed below.)
Significantly, although Marzahl's definition omitted requirements essential to a finding of
supervisory status, it nonetheless purported to be complete. Thus, it stated: "All you need to be a
supervisor is for one of the above criteria to apply to you."
On March 29, 2007, Neumann attended a managers' meeting. Respondent's executive director
introduced an attorney, Andrew Goldberg, and said that the meeting was going to be a training session.
According to Neumann, Goldberg spent about two hours describing things, such as surveillance of
employees, which management would not do during the organizing campaign. Goldberg also made some
comments about the Union's efforts to organize Respondent.
Neumann wore a Union button to this meeting. During the question-and-answer period,
Neumann called attention to the button and disagreed with Goldberg's characterization of the Union as an
outside party. "I said the staff is the union," Neumann testified, "the staff have been making the
decisions."
Goldberg asked Neumann about his background. Neumann replied that he had been trained as an
industrial engineer, had worked for a consulting firm for 5 years, had come to Respondent as a VISTA
volunteer, and had been employed by Respondent ever since his year of volunteer service had ended.
Neumann then asked why Goldberg had wanted to know about his background.
According to Neumann, Goldberg said "in my experience, the way you've been acting, you would
have been fired for insubordination a long time ago. Clearly you're not on board with everything that we
have agreed upon here today."
Although Goldberg did not testify, Respondent's executive director did describe the meeting.
Marzahl's testimony includes the following:
Q. BY MR. MILLER: During the meeting, did Andy Goldberg comment
that he would have terminated Mr. Neumann.
A. I don't recall that comment being made.
Respondent's counsel also asked Marzahl if any of the people attending the meeting had complained to
him "that they felt their employment had been threatened if they supported the Union." Marzahl answered
"At no point." Marzahl also testified that Neumann did not bring such a complaint to his attention.
JD(ATL)—26—07
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For two reasons, I conclude that Marzahl's testimony does not contradict Neumann's. First,
Marzahl did not deny that Goldberg made a particular comment, but only said he did not recall.
Second, even if Marzahl clearly had denied that Goldberg said that he would have terminated
Neumann, such a denial does not rule out the words which Neumann attributed to Goldberg. Neumann
did not testify that Goldberg said that he, Goldberg, would have terminated Neumann. Rather, Neumann
imputed to Goldberg the statement that in his, Goldberg's, experience, Neumann would have been
terminated. Marzahl neither was asked whether Goldberg made such a statement nor denied that
Goldberg said these words.
Although other managers besides Marzahl testified, none denied that Goldberg made the
statement quoted by Neumann. Accordingly, I conclude that Goldberg did say that in his experience,
Neumann would have been terminated.
The next day, Marzahl met with Neumann in the office of Neumann's immediate supervisor, O. S.
Owen, who also was present. Based on Neumann's testimony, which I credit, I find that Marzahl said that
he needed Neumann to make a statement to the staff to "clarify" his position his position on the Union.
Neumann replied that he certainly would be willing to make a statement that he supported the mission of
the organization, but that he needed to know exactly what they (management) wanted him to say.
Marzahl suggested that they meet the next day to discuss the content of Neumann's statement.
However, that meeting did not take place.
On Monday, April 3, 2006, Neumann took a vacation day to help a relative in Wisconsin who
was moving. Respondent's senior director of programs, Mary Ruth Herbers, reached him by cell phone.
Based on Neumann's credited testimony, I find that Herbers asked Neumann to make a statement to the
Respondent's staff at a meeting that day. Neumann replied that he didn't feel comfortable making a
statement over the telephone, particularly when he didn't know what they wanted him to say. He then
asked to speak to Marzahl.
According to Neumann, whose testimony I credit, Marzahl said "we really need you to make the
statement" to the staff and asked if Neumann could do it. Neumann again expressed his discomfort about
making a statement before he knew what it should contain. Marzahl replied that although he, Marzahl,
would be out of the office the next day, Neumann should meet with Herbers and Owen "to come up with
the content of the statement." Marzahl also said that Neumann would need to "send it out," presumably
by email to the staff, because Neumann was going to miss the staff meeting that day.
The next day, April 4, 2006, Neumann met with Herbers and Owen. At the beginning of that
meeting, Herbers handed Neumann a memo indicating that it would not be sufficient for Neumann to
send an email to other staff members. Herbers' memo states, in its entirety, as follows:
Steve.
This memorandum is a follow-up to your conversation with David [Marzahl] yesterday
around 1:45 pm. In that conversation, he conveyed that you should send an e-mail to
staff supporting the management position of the agency concerning the unionization
drive.
Subsequent to that conversation, he made the decision that it was not sufficient for you to
send an e-mail to the staff. He asked me to inform you that it will be required, as was
JD(ATL)—26—07
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decided in a meeting between you, David and O. S. [Owen] on Thursday, March 30, that
you make a public statement of your support for the management position of the agency
on this matter.
Your first opportunity to do so will be in today's FCE department meeting at 3:30. Here
is what you need to do:
You will explain your role as a member of the management team at the Center.
Specifically you will state that you do not support having a union at the Center. You will
state that you are sorry for any involvement that you had or contributions that you made
to the union cause. You will state that you did it with good intentions but that you were
wrong about the facts and the law. You will state that you are in support of charting a
new course that allows all staff to work together to solve our shared problems and to
openly discuss matters affecting the Center.
Finally, we need you to say verbatim, "I now firmly support a non-union resolution to our
issues. Please join me in working together as a team to make the Center a great place for
all of us to work."
You are free to put the points in the fourth paragraph in your own words. However, you
will need to run them by me for approval prior to today's 3:30 department meeting. As I
will be in a meeting from 2:00-3:30, this may require us to delay the 3:30 department
meeting by a few minutes to accommodate an approval process of your sstatement.
Thank you, Steve. I look forward with you on moving the agency forward.
After giving Neumann the memo, Herbers went over it in detail. She told Neumann that "this is a
requirement of the job." Based on Neumann's credited testimony, I find that she told him he would have
to say, verbatim, "I now firmly support a non-union resolution to our issues. Please join me in working
together as a team to make the Center a great place for all of us to work."
Neumann testified that he told Herbers "honestly, I can't say this, this isn't true." Referring to the
fourth paragraph of Herbers' memo, which directed Neumann to tell the staff he was sorry for his
involvement with the Union and that he had been wrong about the facts and the law, Neumann told
Herbers "I'm not sorry for any involvement I had in the organizing campaign. I don't know that I'm
wrong about the, you know, the facts and the law. And I said I can't say I now firmly support a non-union
resolution to our issues because I do support the union."
Herbers replied that she wanted Neumann "to consider this very carefully because this is a
requirement of the job." According to Neumann's testimony, which I credit, Herbers then said, "if you
can't make the statement, this really calls into question your ability to continue working here."
When Neumann asked what the consequences would be (for refusing to make the statement
described in Herbers' memo), Herbers replied that she didn't know the consequences because "we haven't
decided." But, she added, "this is a very grave situation, you do understand this is a grave situation,
Steve, don't you?"
Herbers mentioned that the Respondent's board had made it clear that Respondent was not going
to recognize the Union voluntarily, and told Neumann "you need to be very careful. You need to
understand that this is a requirement of the job that you make the statement." Neumann replied that he
JD(ATL)—26—07
8
would be happy to discuss a compromise. Herbers said that there wasn't going to be a compromise, that
"[t]his is a requirement of the job, and if you can't do this, then O.S. and I are going to have to talk about
next steps." At that point, the meeting ended.
It may be noted that Herbers testified after Neumann, but did not contradict his account of the
April 4, 2006 meeting. Likewise, Owen's testimony does not contradict Neumann. Moreover, Herbers'
memo to Neumann, set forth in its entirety above, is consistent with Neumann's account of the meeting.
Therefore, crediting Neumann's testimony, I find that Herbers did make the statements attributed to her by
Neumann, and quoted above.
On April 5, 2006, Herbers came to Neumann's office. She mentioned that during their discussion
the previous day, he had offered to compromise, and asked him what he was willing to say to the staff.
Neumann replied that he certainly could say that he supported the mission of the organization and its
management and staff. He then said he would like to write out the things he could say and email that list
to her. Herbers agreed. She also told him that based on their meeting the previous day, "the wheels are in
motion."
Pm April 6, 2006, Neumann sent Herbers an email. Neumann's memo began as follows:
This message is a follow up to our conversation April 5, where we agreed that I would
attempt to document language that I would be comfortable stating in one or more staff
meetings concerning the current organizing drive. This language is intended as a
compromise, but I understand that some of these points are not entirely consistent with
the language asked of me in the memo dated April 4. I must be clear that I cannot and
will not make statements that are entirely consistent with the language asked of me in that
memo. I'm certainly open to explaining my reasons for this position, or to discuss any
other compromise that can be reached. I prefer to continue to always have OS or some
other third party present for these discussions.
The memo continued with a list of things that Neumann was willing to say, such as "I fully support our
management and staff in their efforts to work together to solve our current problems, heal our wounds and
create a better agency." However, it did not mention the Union or the organizing drive, and did not
indicate that Neumann would be willing to disavow his support for the Union.
The next day, Neumann received a memo from Respondent's director of administrative
operations, Gregory Fields. The memo stated, in its entirety, as follows:
Effective today, April 7, 2006, your employment with the Center for Economic Progress
is terminated. This action is necessary due to your continued disloyalty to the Center's
management.
You will be provided four (4) weeks of severance pay and will also receive payment for
all unused and accrued, vacation and personal days. Those payments will be provided to
you on your next scheduled pay date of April 14, 2006.
The circumstance of your termination is considered confidential and the Center for
Economic Progress will not share this information with anyone and we strongly
recommend that you do not either.
Fields gave the following testimony concerning this memo:
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Q. Could you tell me what you meant by continued disloyalty to the Center's
management?
A. Well, in this particular case it, it was felt that Steve had demonstrated
disloyalty to the company by, as a supervisor by supporting, actively
supporting the union, wearing a button, supporting the union and
refusing to make a statement as requested by the executive director.
Q. Is this statement pertaining to the union?
A. Disavowing his involvement with the union.
Q. I see, was there any other ground for discharge besides what you just
said?
A. No. There was, it was just based on that. Disloyalty as I described.
Respondent has admitted that Fields is its supervisor and agent. Based on his April 7, 2006
memo discharging Neumann and his testimony concerning that memo, I find that Respondent discharged
Neumann because he actively supported the Union, wore a button manifesting that support, and refused to
disavow his support for the Union when Respondent told him to do so.
Neumann's Supervisory Status
This case turns on whether Neumann was Respondent's supervisor within the meaning of Section
2(11) of the Act. Therefore, the relevant evidence will be examined in detail.
At the outset, it should be noted that the definition of "supervisor" which Respondent's executive
director provided to Neumann, and quoted above, errs both in what it does say and in what it omits.
Respondent's divergence from the statutory definition becomes apparent upon reading 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 authority is not of a merely routine or clerical nature, but requires the use of
independent judgment.
This statutory language establishes three requirements, all of which must be satisfied to warrant a finding
of supervisory status: (1) the individual must have authority to take one of the specific actions listed in
Section 2(11) or to effectively recommend such action; (2) the individual must exercise this authority in
the interest of the employer; and (3) the exercise of this authority must not be of a merely routine or
clerical nature, but instead requires the use of independent judgment.
The party claiming that an individual is a supervisor - in this instance, the Respondent - bears the
burden of proving all of these three requirements by a preponderance of the evidence. Croft Metals, Inc.,
348 NLRB No. 38 (September 29, 2006); Dynasteel Corp., 346 NLRB No. 12 (December 19, 2005);
Riverboat Services of Indiana, Inc., 345 NLRB No. 116 (November 30, 2005); Benchmark Mechanical
Contractors, Inc., 327 NLRB 829 (1999); Alois Box Co., Inc., 326 NLRB 1177 (1998); Youville Health
Care Center, Inc., 326 NLRB 495, 496 (1998).
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Respondent's Assertions
Respondent asserts that while Neumann was assistant director of the financial and community
education ("FCE") department, from 4 to 7 employees worked under him. More specifically, according to
Respondent, the following individuals worked under Neumann at various times during his service as
assistant director: Financial Education Assistant (and Princeton 55 Fellow) Judy Hughes; FCE Assistant
(VISTA) Luisa Rollins; FAFSA Specialist Olethea Williams; Stored Value Card Specialist Reynonda
McFarland; Emerson Hunger Fellow Shijuade Kadree; and VISTA volunteer Josh Harriman. Respondent
also argues that Training Coordinator Eddie Lopez "was expected to take any questions to Mr. Neumann
when FCE Director Owen was out of the office." (It appears that another individual, Outreach Manager
Regi Ratliff, also worked in the financial and community education department, but Respondent hasn't
claimed that Neumann supervised Ratliff.)
Respondent also argues that the work of the department's director, R. S. Owen, frequently took
him out of the office, resulting in Neumann being effectively in charge of the department. Additionally,
Respondent contends that Neumann had to exercise supervisory authority because the financial and
community education department's offices were on a different floor from Respondent's other offices.
During oral argument, Respondent's counsel stated, in part, as follows:
As the Assistant Director, Mr. Neumann's supervisory duties included, among other
things, actively participating in the hiring process for new FCE Department staff which
he did on multiple occasions, assigning work to staff in the FCE Department, directing
the work of FCE Department staff, having the authority to discipline employees, and
rewarding staff for their efforts, all on behalf of the Center. The Center authorized and
expected Mr. Neumann to perform such supervisory duties in his position as Assistant
Director and repeatedly advised him of his expectations.
To carry its burden of proof, Respondent must support its arguments with credible evidence.
Therefore, it is appropriate to begin by discussing the credibility of the witnesses.
Credibility of Witnesses
Based on my observations of the witnesses, I conclude that Neumann's testimony is most reliable.
To the extent that it may conflict with that of other witnesses, I resolve the conflict by crediting Neumann.
It may be noted that another witness, O. S. Owen, also impressed me as striving to give accurate
testimony. However, the reliability of testimony depends not only on a witness's intent to tell the truth
but also on his memory and perceptions. Owen did not recall an instance in which Neumann expressed
some concerns about an applicant, Luisa Rollins, being interviewed for a VISTA position. Also, at times
Owen's testimony seemed a bit confusing, although Owen's responses on cross-examination did provide
some clarification.
Although I rely on Owen's testimony in some instances, Neumann had a better grasp of details.
Accordingly, to the extent conflicts arise between the testimony of Owen and Neumann, I resolve them by
crediting Neumann.
Analysis
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To prove that Neumann is a supervisor, Respondent must satisfy three distinct criteria. First, a
preponderance of the evidence must establish that Neumann possessed authority to perform at least one of
the following functions listed in Section 2(11) of the Act:
- hire employees
- transfer employees
- suspend employees
- lay off employees
- recall employees
- promote employees
- discharge employees
- assign employees
- reward employees
- discipline employees
- responsibly direct employees
- adjust employees' grievances, or
- effectively recommend any of the above actions.
If the evidence does not establish that Neumann possessed authority to take at least one of these actions,
then the inquiry stops with the conclusion that he was not a statutory supervisor. However, if a
preponderance of the evidence proves that Neumann possessed such authority, the analysis proceeds to
the next step, determining whether Neumann exercised such authority in the interest of Respondent.
Should the evidence satisfy this second requirement, the analysis may proceed to the third step,
determining whether Neumann's exercise of such authority was not of a merely routine or clerical nature
but required the use of independent judgment.
Respondent has not asserted that Neumann possessed the authority to perform all of the various
functions listed above and, of course, to meet the first requirement, it need only show Neumann had the
authority to do at least one of them. The analysis below concerns those areas in which, according to
Respondent, Neumann did possess some authority.
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a. Putative authority to hire
Respondent argues that Neumann's "supervisory duties included, among other things, actively
participating in the hiring process for new FCE Department staff which he did on multiple occasions,"
However, Respondent cannot carry its burden of proof merely by showing that Neumann "participated" in
some way in the hiring of employees. To satisfy the Section 2(11) criterion, such "participation" must
amount to hiring an employee or effectively recommending the hire of an employee.
One instance in which Neumann participated in the hiring process concerned filling a newly-
created position in the FCE Department. Respondent had decided to do a pilot program to help
individuals applying for federal student aid. The pilot program required Respondent to hire someone to
be a "FAFSA specialist." The acronym "FAFSA" stands for "Federal Application For Student Aid."
In arguing that Neumann was a supervisor, Respondent accurately notes that he drafted the job
description for the FAFSA position. Respondent further argues that Neumann prepared the "employee
requisition form" used to initiate the hiring process and participated in interviewing the applicant, Olethea
Williams, selected for the job.
Neumann and Owen interviewed Williams. After the interview, Neumann placed information
about Williams on a "Candidate Selection Approval Form." Under the heading "Comments/Concerns,"
Neumann wrote the following:
Excellent candidate Requires little or no training due to experience. Very personable.
Has worked with Center.
Owen testified that, at the time of the interview, he already knew Williams and was concerned
that he "might have certain biases," presumably in her favor. He wanted Neumann to be present during
the interview, Owen explained, so that Neumann would get a "good sense and feel" for Williams;. Owen
further testified:
Q. Why did you want Mr. Neumann to have a good feel for Aleathia?
A. Because ultimately he was going to manage and supervise her.
This testimony leads to the conclusion that Owen already had made up his mind to hire Williams. or, at
least, was going to hire her unless Neumann objected.
In these circumstances, Neumann's favorable recommendation made no difference. It would be
difficult to consider Neumann's recommendation an "effective" one if the outcome had been determined
before he made it.
Owen further testified that he would never hire anyone "without [Neumann's] input or without his
feeling good about it because ultimately, if he's got to work with these people, he needs to be able to feel
comfortable and know that he has the authority to make decisions."
As discussed above, I have concluded that Owen sincerely was trying to tell the truth, but I
considered portions of his testimony a bit confusing and also had some reservations about Owen's ability
to recall exact details. However, when Owen explained that he would not have hired someone without
Neumann's “feeling good about it,” that statement was not confusing and it did not involve the
JD(ATL)—26—07
13
recollection of a small detail. Rather, it concerned Owen's own intentions. Owen is uniquely qualified to
testify about his own intentions. Accordingly, I credit that testimony.
In essence, Owen had given Neumann the authority to veto his decision to hire Williams. The
question then arises as to whether such authority to veto is equivalent to authority effectively to
recommend hire. Following the literal statutory language, I conclude that it is not. Section 2(11) does not
define a supervisor as someone possessing the authority to prevent hire. Although it might be argued that
authority to prevent hire is the same as authority to discharge at a very, very early stage, that logic seems
somewhat strained. In the absence of specific statutory language, I will not assume that possessing the
authority to prevent hire satisfies the first Section 2(11) requirement.
Neumann did make favorable comments about Williams on the evaluation form he completed
after the interview. However, in view of Owen's intention to hire Williams, I do not conclude that
Neumann's favorable comments constituted an effective recommendation to hire. Owen already had
made up his mind and consulted Neumann simply to determine if there was a reason not to hire her.
Moreover, the record does not establish that Owen possessed authority to make the hiring
decision. Rather, Owen possessed the authority to make effective hiring recommendations to
Respondent's director of administrative operations, Gregory Fields, who functioned as Respondent's
human resources director. Although Fields presumably could reject the applicant recommended by Owen
and instead hire someone else, the record does not establish that Fields did so. As a practical matter, it
appears that the applicant Owen picked got the job.
In sum, I conclude that Neumann did not effectively recommend that Respondent hire Williams.
He simply agreed with Owen that Williams was a good candidate, and then Owen made the
recommendation that Williams be hired.
Respondent also asserts that Neumann "interviewed, evaluated and recommended Reynonda
McFarland for the Stored Value Card Specialist position." (A "stored value card" provides a way for a
wage earner without a bank account to receive a tax refund. After the government deposited the wage
earner's refund into a special account, the wage earner could use the "stored value card" to spend the
money in the same way that a debit card is used to withdraw funds from a regular checking account.)
Other evidence establishes that, in addition to participating in McFarland's job interview,
Neumann prepared the first draft of a job description for the position. Neumann also filled in some of the
blanks on a "Candidate Selection Approval Form" concerning McFarland. However, nothing on this form
indicates that Neumann was assessing McFarland's abilities or recommending her hire.
The credited evidence does not establish that Neumann, exercising independent judgment,
effectively recommended that Respondent hire McFarland. Therefore, I find that he did not.
Respondent also argues that Neumann "participated in and recommended the hire of Judy
Hughes." Although the General Counsel disputes that Hughes was even an employee, I will assume for
the sake of analysis that she meets the statutory definition set forth in Section 2(3) of the Act. Hughes
worked as a "Princeton 55 Volunteer," which was a kind of internship. Respondent paid Hughes a
monthly stipend and provided her with health insurance.
However, even assuming that Hughes was an employee, the credited evidence does not support
Respondent's assertion that Neumann "participated in" and recommended her hire. Based on Neumann's
testimony, which I credit, I find that Neumann was walking by the office of a senior management official,
JD(ATL)—26—07
14
Mary Ruth Herbers, while Herbers was interviewing Hughes. Herbers asked Neumann to sit in on the
interview. Neumann did not know Hughes.
According to Herbers, after the interview Neumann said that Hughes would be "a good fit with
the program." She also testified that if Neumann had said the opposite, that Hughes was not "a good fit,"
she would have taken that comment seriously. However, even assuming that Neumann expressed the
opinion that Hughes would be "a good fit," that casual remark does not rise to the level of an effective
recommendation.
After Respondent's director of administrative operations sent Neumann an email indicating that
Hughes had been hired, Neumann replied "Thanks Greg - this all looks great." Needless to say, a
favorable remark after the hiring decision does not constitute a recommendation to hire. In sum, the
record does not establish that Neumann recommended that Respondent hire Hughes.
Respondent also argues that Neumann recommended the hire of Luisa Rollins. The General
Counsel disputes that Rollins even was an "employee," within the meaning of the Act, rather than simply
a volunteer. However, even assuming for the sake of analysis that Rollins was an employee, credited
evidence does not establish that Neumann effectively recommended that she be hired.
Neumann had some reservations about hiring Rollins, and expressed them to Owen in an October
7, 2005 email. Neumann suggested that Owen check one or more of Rollins' references, or talk with her,
or both. Owen then did further work, satisfied himself that Rollins was acceptable, and recommended
that she be hired. The director of administrative operations, Gregory Fields, made the actual decision to
hire. In fact, Owen admitted on cross-examination that he, Owen, was the one who recommended that
individuals be hired:
Q. BY MR. ROSENBAUM: Isn't it true, Mr. Owen, that you were, in fact,
the person that made the recommendation in all the other positions that
were filled, where you and Steve sat in on interviews?
A. Yes.
* * *
Q. And Greg Fields is the one that had ultimate authority to hire or not hire
these individuals, based on your recommendation.
A. That's correct.
Q. He made the call.
A. That's correct.
In view of Owen's admission, that he made the recommendations to hire employees, and
considering Neumann's status as Owen's subordinate, I conclude that Respondent has failed to carry the
burden of proving that Neumann exercised independent judgment in recommending the hire of any
person.
JD(ATL)—26—07
15
b. Putative authority to discipline
Respondent also argues that Neumann possessed the authority to discipline employees.
Neumann's immediate superior, O. S. Owen, testified on direct examination as follows:
Q Did Mr. Neumann have the authority to discipline employees?
A. He did.
Q. Did you expect Mr. Neumann to recommend discipline?
A. I did.
Such purely conclusory testimony does not suffice to establish supervisory status. The Board requires
evidence that the putative supervisor actually possessed the authority at issue. Avante at Wilson, Inc., 348
NLRB No. 71 (October 31, 2006), citing Golden Crest Healthcare Center, above; Chevron Shipping Co.,
317 NLRB 379, 381 fn. 6 (1995), and Sears Roebuck & Co., 304 NLRB 193, 193 (1991).
The job description for Neumann's position lists among the principal job duties and
responsibilities recommending "salary, disciplinary and other personnel action. . ." However, the Board
long has held that job descriptions or other documents suggesting the presence of supervisory authority
are not given controlling weight. The Board insists on evidence supporting a finding of actual as opposed
to mere paper authority. Golden Crest Healthcare Center, 348 NLRB No. 39 (September 29, 2006),
citing Training School at Vineland, 332 NLRB 1412, 1416 (2000).
The Board's decisions do not prohibit giving the job description some weight, but simply state
that it should not receive controlling weight. The question therefore arises as to how much weight this
particular job description should be accorded.
Owen credibly testified that Neumann never disciplined an employee and never recommended
discipline. If Neumann had held his position for a long time, the fact that he had never taken or
recommended disciplinary action would suggest that the authority described in his job description was
illusory. However, Neumann had only served in the assistant director position for about 6 months at the
time of his discharge. In this short a period, an occasion for Neumann to exercise his putative authority
may not have arisen.
Moreover, discipline appears to have been uncommon. Some of the workers in the FCE
Department were VISTA volunteers who did not fall within Respondent's disciplinary system.
Additionally, Owen's testimony suggests that he ran his department in a relaxed fashion which did not
favor formal disciplinary action. Thus, Owen testified:
[Y]ou know, it wasn't like, you ain't doing your job, I'm going to tell mommy on you.
We didn't have that. . .We depend on you to be an adult, act as an adult and govern
yourselves accordingly. That's the kind of environment that we had up on the 11th floor.
So it wasn't a matter of, I've got my checklist here, you didn't sign in, you didn't call me,
I didn't know where you were.
In this environment, the formal imposition of discipline was a rarity. Therefore, I cannot
conclude that Neumann's failure to exercise the putative authority to discipline proves that he didn't really
possess it.
JD(ATL)—26—07
16
The record discloses one instance in which Neumann might have been expected to recommend
discipline but did not. This instance may offer a clue as to the amount of authority which Neumann
actually possessed.
The FCE Department conducted workshops and other events requiring employees to leave the
office. They were supposed to document their time by completing "sign in" sheets, which they submitted
to the training coordinator, Eddie Lopez. The record suggests that an employee, Regi Ratliff, was not
filling out the sign-in sheet completely before turning it in, thus causing Lopez extra work. supervisor.
On February 10, 2006, Neumann sent Ratliff an email captioned "Please ALWAYS fill out the entire sign
in sheet." The email stated, in its entirety, as follows:
Regi,
You're killing me on these sign in sheets. It's a waste of Eddie's time to have to chase
after you and ask for missing information. Please just take the time and fill in everything
on the sheet (including your name, time in, time out, etc.), even if nobody showed up. I
know the paperwork is annoying, but it's really not fair to Eddie for him to have to figure
out what happened at the time.
Thank you.
Later that same afternoon, Ratliff replied. Ratliff's email stated, in its entirety, as follows:
Steve,
First and foremost, I will take a closer look at the sign-in sheets and make sure to
complete it. Secondly, I don't know who you think you are talking to, but I take
exception to your tone. In the future, when you address me, I would prefer you show
some professional skills and address me with class at all times.
Your email is disrespectful, unprofessional and lacks taste. Do you address OS [Owen]
the same way? If not, you won't address me that way either. Eddie knows how to
address me if he has any issues with me. He doesn't need you to speak on his behalf. In
the meantime, I will talk to Eddie about any corrections that I need to make.
Regi
Neumann answered Ratliff's email about an hour and a half later. Neumann's reply stated:
Regi,
I understand your frustration with my tone, but am honestly surprised by your reaction. I
am sorry that you found my message offensive. Yes, I do speak to OS, Eddie, Judy,
Shiju and you in that tone. You are my colleagues, my team. I fell [sic] I am familiar
with all of you sufficiently to not always need formality.
The reason I wrote that message is because as Eddie's direct supervisor I am responsible
for helping him out when he is frustrated, and when I see that his time is being wasted
unnecessarily. That is part of my job. And I know that he has repeatedly asked you to be
more diligent in completing sign in sheets, but that it continues to be a problem.
JD(ATL)—26—07
17
Feel free to give me a call if you would like to discuss further, in the office or on my cell
[phone]. . .Again, I am sorry that you took exception with my tone.
Owen testified that after Neumann sent Ratliff the email, Ratliff '"blew up, went off the deep end."
However, he did not explain exactly what Ratliff did.
Owen and Neumann discussed the emails. Owen had received "cc" copies of the emails, and later
forwarded them to Gregory Fields, whom Owen described as Respondent's human resources director.
(Fields testified that his title was "director of administrative operations.)
Owen gave Ratliff a warning and placed him on probation. The record indicates that Neumann
was not involved in the decision to discipline Ratliff. When asked whether Neumann had accompanied
Owen to see the human resources director, Owen answered, "No, he didn't, I, at that point I took Steve out
of the loop, we had a lot going on and I didn't want him to be bogged down with that issue."
No evidence suggests that Neumann recommended that Ratliff receive discipline and I would not
simply assume that Neumann sought for Ratliff to be disciplined absent evidence to that effect. My
observations of Neumann as he testified lead me to believe he has an easygoing temperament and would
not become upset by Ratliff's email. Moreover, the tone of Neumann's response to Ratliff's email does
not indicate he took offense.
Owen's testimony rules out the possibility that Neumann recommended that Ratliff be disciplined.
Although, on direct examination, Owen testified that Neumann had authority to discipline employees, on
cross-examination, Owen acknowledged that Neumann had never disciplined an employee and had never
recommended that an employee receive discipline. Because Neumann never disciplined or recommended
the discipline of any employee, he could not have recommended the discipline of Ratliff.
In sum, I conclude that Neumann neither disciplined Ratliff nor recommended that he be
disciplined. To the contrary, Owen's testimony establishes that Neumann was "out of the loop." Thus, in
the one documented instance in which an FCE Department employee received discipline, the head of the
department made sure that Neumann was not involved in it.
During oral argument, Respondent hinted that Neumann possessed supervisory authority which
he deliberately failed to exercise. Thus, Respondent's counsel asserted that "Mr. Neumann cannot use his
intentional inaction and his non-problematic subordinates to negate his authority to counsel and discipline
employees." In advancing this argument, however, Respondent has one major hurdle to overcome: The
evidence.
It would be difficult, for example, for Respondent to claim that Neumann should have imposed or
recommended the imposition of discipline on Ratliff but neglected this responsibility because of
“intentional inaction.” Clearly, Neumann could not have acted, even had he so desired, because he was
not in the “loop.” Moreover, no witness suggested that Neumann shirked any responsibility. To the
contrary, Neumann's immediate supervisor lavished praise on Neumann's performance and no witness
testified that Neumann was deficient. Respondent's admitted reason for firing Neumann - his "disloyalty"
in supporting the Union and refusing to disavow it - does not suggest that Neumann neglected his job
duties in any way.
Accordingly, I reject Respondent's suggestion of "intentional inaction" on Neumann's part. No
testimony, not even that of Respondent's own witnesses, supports such a claim.
JD(ATL)—26—07
18
As quoted above, Respondent's argument also referred to Neumann's "non-problematic
subordinates." In other words, Respondent contends that Neumann possessed but did not have to exercise
the authority to recommend discipline because the people under him didn't cause any problems
warranting discipline. However, as discussed above, one individual in Neumann's department - Regi
Ratliff - did receive discipline, but Neumann took no part in the process and could not. Thus, on the one
occasion when an employee proved to be "problematic," Neumann was not intentionally inactive. Being
"out of the loop," he had no authority to act.
In sum, I conclude that Respondent has failed to carry its burden of proving that Neumann
possessed actual authority to recommend discipline, rather than mere paper authority. See, e.g., Training
School at Vineland, 332 NLRB 1412, 1416 (2000). Additionally, even should I assume for the sake of
analysis that Respondent had demonstrated that it had conferred actual authority on Neumann to
recommend that an employee be disciplined the record still falls short of demonstrating that it expected
Neumann to use independent judgment in making such recommendations.
c. Putative authority to reward employees
Respondent further contends that Neumann possessed authority to reward employees. During
oral argument, Respondent asserted that "Mr. Neumann exercised such authority by taking employees to
lunch and expensing the cost of the lunch back to the Center." To support this claim, Respondent cites
Neumann's testimony, specifically, that found at transcript page 164. However, Neumann's actual
testimony, recorded on that page, states as follows:
Q. You on occasion took a staff out to lunch to reward them for doing well
on projects, didn't you?
A. Not that I can recall. I certainly went to lunch with other people in my
department on occasion. And occasionally I may have paid.
Q. And do you recall receiving or requesting reimbursement from the
Center for such lunches?
A. I don't recall although it wouldn't surprise me if I did on one or two
occasions.
Q. And those lunches would be lunches with staff members within your
department?
A. Again, I don't recall so I can't really answer that.
This testimony hardly establishes what Respondent has claimed. No other credited evidence supports the
assertion that Neumann took employees to lunch to reward them for their work performance and I find
that he did not.
As will be discussed further below, Respondent had directed Neumann to prepare an employee's
performance appraisal but discharged him before he completed that task. The record does not establish
that such appraisals had any effect on employees' wages or other terms and conditions of employment.
Accordingly, I conclude that Respondent has failed to establish that Neumann rewarded employees in any
way.
d. Putative authority to assign and direct employees
JD(ATL)—26—07
19
Respondent argues that "Neumann's supervisory duties included, among other things. . .assigning
work to staff in the FCE Department [and] directing the work of FCE Department staff. . ."
The Board distinguishes the assignment of work from the direction of work. The Board construes
"assign" to refer "to the act of designating an employee to a place (such as a location, department, or
wing), appointing an employee to a time (such as a shift or overtime period), or giving significant overall
duties, i.e., tasks, to an employee." Oakwood Healthcare, Inc., 348 NLRB No. 37 (September 29, 2006).
In contrast, "direction" of an employee involves oversight of how the employee performs the various
functions necessary to accomplish the assigned task. In accordance with Oakwood Healthcare, this
decision will discuss the assignment and direction of work separately.
Respondent asserts that "the FCE Department did not run itself, and the credible testimony and
record evidence show that the Center expected Mr. Neumann to oversee the various projects within the
FCE Department, to assign work to its subordinates regarding those projects, and to train FCE
Department staff on the projects, and that Mr. Neumann performed these tasks in accordance with his
duties as the Assistant Director." To some extent, this argument may blur the distinction between
"assign" and "direct." It would appear that the appointment of a particular employee to work on a
specific project would constitute the "assignment" of work, as the Board has construed that term, but "to
assign work to. . .subordinates regarding those projects" would appear to fall within the category of
"direction."
The credited evidence does not establish that Neumann, exercising independent judgment,
appointed employees to work on specific projects. Indeed, as the job titles indicate, employees in the
FCE Department had very specialized functions. For example, Respondent hired one person specifically
to help clients apply for federal student aid, and Respondent hired another individual to work with banks
to set up "stored value card" accounts. When Respondent hired an employee for such a specialized
position, placement of the new employee in that position effectively constituted an "assignment" of work.
For the reasons discussed above, I have concluded that Neumann neither hired nor effectively
recommended the hire of the employees who filled these positions.
To the extent that other, less specialized employees, worked on more than one type of project,
credited evidence fails to establish that Neumann, exercising independent judgment, either assigned the
projects to such employees or effectively recommended the assignment. I conclude that he did not.
It is true that the list of duties in Neumann's job description included the following: "Supervises
assigned staff, including recruitment and selection; scheduling and day to day job assignment
(Administrative assistant, FCE VISTA volunteer, Emerson Hunger Fellow)." The phrase "day to day job
assignment" arguably might refer either to the appointment of employees to work on specific projects
("assignment" of work) or, perhaps more likely, the oversight of employees as they worked on the
projects ("direction" of work). For the reasons stated above, I have concluded that Neumann, exercising
independent judgment, neither assigned nor effectively recommended the assignment of employees. His
involvement in the "direction" of employees will be discussed below.
As the Board discussed in Oakwood Healthcare, the legislative history of Section 2(11) shows
that a senator added the phrase "responsibly to direct" employees to cover a supervisory function distinct
from those already listed in the draft statute. Because the word "direction" could mean a number of
things, there was a risk that its use could exclude too many people from the Act's protection. Therefore,
the senator took pains to restrict its application to "true supervisors" with "genuine management
prerogatives."
JD(ATL)—26—07
20
The interests of a true supervisor - an individual who meets the statutory definition - differ from
those of the supervised employees. Two factors plainly align such a supervisor's interests with higher
management.
First, the true supervisor is accountable to higher management for making sure that the supervised
employees carry out management's instructions and follow management's policies. The employees'
failure to perform the work as directed exposes the supervisor to the risk of adverse consequences.
Second, management has empowered the true supervisor with authority to require employees to
follow the supervisor's instructions. Such a delegation of authority avoids the anomaly of an individual
being responsible for the actions of others without having the means to affect those actions. More
fundamentally, from a labor relations perspective, the combination of authority delegated by the employer
and responsibility for using that authority to further the employer's policies identifies the supervisor with
management and separates the supervisor from the employees supervised.
These two factors become particularly relevant in examining whether an individual has authority
"responsibly to direct" employees, thereby meeting one of the criteria set forth in Section 2(11) of the
Act. The Board has held that, for the direction of employees to be "responsible" within the meaning of
"responsibly to direct," the putative supervisor must be "accountable for the performance of the task by
the [employee supervised], such that some adverse consequence may befall the one providing the
oversight if the tasks performed by the employee are not performed properly." Oakwood Healthcare,
Inc., above; accord, Croft Metals, Inc., 348 NLRB No. 38, slip op. at 5 (September 29, 2006); Lynwood
Manor, 350 NLRB No. 44 (July 31, 2007).
The Board requires evidence of actual accountability. As it stated in Golden Crest Healthcare
Center, 349 NLRB No. 39 (September 29, 2006):
This is not to say that there must be evidence that an asserted supervisor's terms and
conditions of employment have been actually affected by her performance in directing
subordinates. Accountability under Oakwood Healthcare requires only a prospect of
consequences. But there must be a more-than-merely-paper showing that such a prospect
exists.
348 NLRB No. 39, slip op. at 5 (italics in original). In Golden Crest Healthcare Center, the Board found
an absence of "actual or prospective consequences" and concluded that the employer had shown only
"paper accountability."
The party seeking to establish supervisory authority must show that the putative supervisor has
the ability to require that a certain action be taken; supervisory authority is not established where the
putative supervisor has the authority merely to request that a certain action be taken. Accordingly, in
determining whether Respondent had given Neumann authority "responsibly to direct" employees, I will
be considering whether Respondent had empowered Neumann to compel rather than merely to request,
and whether Neumann faced the prospect of an adverse consequence if employees failed to comply with
management's policies or failed to follow instructions.
The fact that Respondent told Neumann he was a "supervisor" does not create a presumption that
Respondent actually held Neumann accountable for the performance of others or empowered him to take
action against employees who failed to perform as directed. Standing alone, the words "you are a
supervisor," even if spoken in the absence of a union organizing campaign, do not indicate what authority,
JD(ATL)—26—07
21
if any, the "supervisor" possessed to require others to follow his direction. Similarly, these words do not
signify whether the "supervisor" would be held accountable for the performance of others.
Respondent's senior director of programs, Mary Ruth Herbers, occupies a high management
position. She directly supervises O. S. Owen, the director of the financial and community education
department. Herbers testified, in part, as follows:
Q. Did you hold Steve [Neumann] accountable for the projects that were
under his supervision?
A. Yes.
Q. In what way?
A. Every project had a set of expected outcomes. A set of expected
activities. And it would have been Steve's, it was Steve's responsibility
to ensure that the staff reporting to him were carrying out the activities
and duties of the various projects.
Such general testimony, unsupported by specific information, does not suffice. Lynwood Manor,
above. Herbers' testimony does not indicate that Respondent would have imposed any adverse
consequence on Neumann for the poor performance others. The testimony of Neumann's immediate
supervisor, O. S. Owen, also does not establish that poor performance by employees in his department
would have resulted in any adverse consequence for Neumann.
On direct examination, when Respondent's counsel asked Owen whether he held Neumann
accountable for the success of a pilot program, Owen replied, without elaboration, "Yes, I did." This
conclusory testimony does not address whether the performance of employees in Owen's department
would affect Neumann's terms and conditions of employment in any way.
On cross-examination, Owen conceded that the success of certain pilot programs did not result in
Neumann receiving any wage increase or other benefit. Later in Owen's testimony, when asked whether
he or Respondent held Neumann accountable for the performance of any employees, Owen answered,
"Well, we both would have been held accountable for the performance of individuals under the pilots."
(The word "pilots" refers to pilot programs.) This testimony also did not indicate whether Neumann
would suffer any adverse consequence if others performed poorly.
After Owen gave the testimony described above, I asked him "was Mr. Neumann held
accountable for the work of any particular employees and if so. . .who were those employees?" Owen
answered "Well, it would have been Mr. Neumann and myself." When asked if an adverse consequence
could result to Neumann for the failure of one of the people under him to do his job properly, Owen
answered, "And I have to say we never received any adverse effects."
Respondent has admitted that Owen was its supervisor and agent, and, in fact, Owen was
Neumann’s immediate supervisor. If Respondent actually had held Neumann accountable for the
performance of other employees, Owen should have been able to identify them. Similarly, if Neumann
actually had faced the prospect of adverse consequences for the poor work performance of others, Owen
certainly would have been able to describe the specific consequences. Owen’s inability to name either the
employees whose performance could cause Neumann consequences or to specify the prospective
consequences strongly persuades me that Respondent did not, in fact, hold Neumann accountable for the
performance of others.
JD(ATL)—26—07
22
Respondent's other witnesses also had the opportunity to describe how Respondent held
Neumann accountable for the performance of others. Their silence on this matter leads me to conclude
that Respondent did not hold Neumann accountable in any way which would expose him to an adverse
consequence for the poor performance of others. Respondent bears the burden of proving that it did hold
Neumann accountable in some way which could result in at least a prospect consequence for the poor
performance of subordinates. It has not carried that burden.
As already mentioned, the requirement of accountability does not exist by itself, but rather is
paired with another requirement: The putative supervisor also must have the authority to compel
employees to follow his or her instructions.
Owen's testimony indicates that Neumann did not have such authority. When asked if Neumann
had been "expected to take some sort of corrective action against employees who didn't do their jobs and
if so, what could happen to him if he didn't take that action?" Owen answered, "Was he expected to
handle it? Yes. Did he have to? No. We didn't have that problem." Owen added, "we never had to go
down that path."
This testimony leaves open the question of what authority, if any, Neumann actually possessed.
If problems did not arise, Neumann may have possessed authority but not had to exercise it. However,
the record does not establish that Respondent had conferred upon Neumann any specific authority.
As already noted, Respondent bears the burden of proof. Therefore, I will not assume
Respondent had conferred such authority on Neumann absent evidence. Testimony that Respondent told
Neumann he was a "supervisor," or that someone would "report to" him, does not establish that
management empowered him to take any specific action.
A putative supervisor's authority to require employees to follow his directions closely relates to
the putative supervisor's authority to impose or effectively recommend discipline. For reasons discussed
above, I have concluded that Neumann did not possess such authority.
Apart from imposing or effectively recommending discipline, a supervisor arguably might be able
to compel obedience to his directions by completing a performance appraisal for that employee, provided,
of course, that the appraisal could significantly affect the employee's terms and conditions of
employment. Obviously, an appraisal which had no effect on wages, hours, or working conditions would
be useless as either carrot or stick.
The record establishes that shortly before Neumann was discharged, Respondent directed him to
do a written performance appraisal for Eddie Lopez, an employee in the FCE Department. Neumann had
never before prepared such an appraisal and, while he was drafting it, Respondent fired him.
Stated another way, during a union organizing campaign, Respondent told a known union
supporter that he was a supervisor, instructed him to evaluate an employee, and then, while the union
supporter was drafting the appraisal, discharged him because he refused to disavow his support for the
Union. However, I will not assume that Respondent told Neumann to appraise an employee simply to
bolster Respondent's claim that he was a supervisor. Instead, I will assume that some legitimate business
reason, unaffected by antiunion animus, motivated Respondent to tell Neumann to do the appraisal.
All the same, Neumann's preparation of the appraisal does not bolster the claim that he was a
supervisor because the appraisal did not affect Lopez' employment. Credited evidence clearly establishes
that the appraisal did not alter his wages, and the record fails to establish that it had any other material
JD(ATL)—26—07
23
effect on Lopez' employment. Indeed, the credible evidence fails to establish that performance appraisals
materially affected any employee's terms and conditions of employment.
e. Other matters
During oral argument, Respondent claimed that Neumann "admitted that he trained Ms. Hughes
on the Doorway to Dreams project" and that Neumann "had to exercise his independent judgment in
providing Ms. Hughes with training or deciding how that training would be provided as there were no
prior training materials. . .to rely on." Actually, Neumann testified, in part, as follows:
Q. During the period when Judy Hughes first came on, you trained her on
how to do the D2D [Doorway-to-Dreams] didn't you?
A. I wouldn't say it that formally. Being a pilot program, there really wasn't
any training that was available. She sat in on the conference calls with
the D2D people with me. She asked me questions about the background;
certainly, you know, I knew about it.
On this point, the testimony of Mary Ruth Herbers, Senior Director of Programs, conflicts in
some respects with that of Neumann. Based upon my observations of the witnesses, I credit Neumann.
However, even assuming that Neumann trained Hughes and, as Respondent argues, used
independent judgment in providing that training, it would not establish that Neumann was a statutory
supervisor. Possessing the authority to train employees does not satisfy any of the requirements set forth
in Section 2(11) of the Act.
In other respects, the credited evidence fails to establish that Neumann met the statutory
definition of supervisor. I conclude that he was not a supervisor within the meaning of Section 2(11) of
the Act.
Contested Allegations
Complaint paragraphs V(b), V(c), V(d) and V(e) allege that Respondent violated Section 8(a)(1)
of the Act by making various statements to employees. As originally issued, the Complaint included a
paragraph V(a), which also alleged an 8(a)(1) violation. However, at hearing, the General Counsel
amended the Complaint to delete paragraph V(a).
Complaint Paragraph V(b)
Complaint paragraph V(b) alleges that about March 24, 2006, Respondent, by David Marzahl, in
a written statement, impliedly threatened employees and interfered with employee's Section 7 rights by
stating that now that the Union issue had come up they were reviewing job descriptions. Respondent
denies this allegation.
The written statement to which the Complaint refers is the outline of what Executive Director
Marzahl said, in Neumann's presence, on March 23, 2006. Marzahl emailed this outline to Neumann on
March 24, 2006. The text of the outline appears above under the heading "Facts." For the reasons
discussed above, I have concluded that Neumann was an employee and not a statutory supervisor.
Therefore, Marzahl's email was a communication to an employee.
After informing Neumann that he was a supervisor, the email told him:
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This means that you are excluded from the protections of the National Labor Relations
Act.
You are not eligible to vote in the union election.
You are not covered by any contract.
You are not allowed to go to union meetings.
You are not allowed to ask employees if they support the union or not.
Clearly, informing an employee that he was not allowed to attend union meetings, discuss the
Union with employees or vote in a representation election, and informing an employee that he was
"excluded from the protections of the National Labor Relations Act," interferes with, restrains and coerces
the employee in the exercise of rights guaranteed by Section 7 of the Act. Respondent thereby violated
Section 8(a)(1) of the Act. Wal-Mart Stores, 340 NLRB 220 (2003).
Complaint Paragraph V(c)
Complaint paragraph V(c) alleges that about March 29, 2006, Respondent, by Respondent's
agent, at Respondent's facility, threatened employees with discharge for engaging in union activity.
Respondent denies this allegation.
On March 29, 2006, Neumann attended a staff meeting at which Respondent's attorney, Andrew
Goldberg, spoke. Neumann wore a Union button to this meeting and disagreed with some of Goldberg's
comments about the Union.
Goldberg did not testify. Based on Neumann's testimony, which I credit, I find that Goldberg told
him that "in my experience, the way you've been acting, you would have been fired for insubordination a
long time ago. Clearly you're not on board with everything that we have agreed upon here today."
Through a careful parsing of Goldberg's words, it arguably is possible to interpret them in a way
which perhaps is not coercive. However, arriving at such an interpretation requires quite a bit of effort.
The Board, applying an objective standard, evaluates the effect which the statement reasonably
would have on a typical employee. Applying such a standard, and considering the total context, I
conclude that an employee reasonably would consider the statement to be a threat of discharge for
engaging in Union activities. Accordingly, I recommend that the Board find that the statement violated
Section 8(a)(1) of the Act.
Complaint Paragraph V(d)
Complaint paragraph V(d) alleges that about April 3, 2006, Respondent, by David Marzahl, at
Respondent's facility, interfered with employee's Section 7 rights by requesting that they disavow the
Union. Respondent denies this allegation.
As discussed more fully under the "Facts" heading, above, on April 3, 2006, Neumann took a
vacation day, but spoke by telephone with both Herbers and Marzahl. Both asked Neumann to make a
statement to employees. From subsequent events, I infer that the statement would have entailed Neumann
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disavowing his support for the Union. However, the record does not make clear exactly what Herbers and
Marzahl wanted Neumann to say. Indeed, at that point, Neumann did not know precisely what
management wanted him to say, and it appears that Marzahl also didn't know. Marzahl told Neumann to
meet the next day with Herbers "to come up with the content of the statement."
Accordingly, I cannot conclude that the government has proven the specific allegation raised by
Complaint paragraph V(d). However, uncontroverted evidence establishes that the next day, April 4,
2006, Respondent did tell Neumann to disavow the Union. Although the memo conveying this
instruction from Herbers to Neumann appears in its entirety above, under "Facts," some portions warrant
repeating here. In part, Respondent's memo told Neumann:
Specifically you will state that you do not support having a union at the Center. You will
state that you are sorry for any involvement that you had or contributions that you made
to the union cause. You will state that you did it with good intentions but that you were
wrong about the facts and the law. You will state that you are in support of charting a
new course that allows all staff to work together to solve our shared problems and to
openly discuss matters affecting the Center.
Finally, we need you to say verbatim, "I now firmly support a non-union resolution to our
issues. Please join me in working together as a team to make the Center a great place for
all of us to work."
You are free to put the points in the fourth paragraph in your own words. However, you
will need to run them by me for approval prior to today's 3:30 department meeting. As I
will be in a meeting from 2:00-3:30, this may require us to delay the 3:30 department
meeting by a few minutes to accommodate an approval process of your statement.
Complaint paragraph V(d) alleges that Respondent requested that employees disavow the Union but
Herbers' memo makes clear that this was not a request; it was an order. Moreover, in view of my
conclusion that Neumann was not a supervisor, I find that it was an order directed to an employee who
enjoyed the full protection of the Act.
Although the facts differ in some respects from the precise language of Complaint paragraph
V(d), I conclude that this paragraph sufficed to place Respondent on notice and allowed it to prepare a
defense. Even were I to conclude that the April 4, 2006 memo fell outside the allegations of the
Complaint, I still would conclude that this allegation had been fully and fairly litigated. Respondent's
defense - that Neumann was a statutory supervisor - would be the same whether management orally told
him to disavow the Union on April 3, 2006 or did so in writing the next day.
Respondent's instruction to Neumann, ordering him to disavow the Union, clearly interfered with,
restrained and coerced an employee in the exercise of Section 7 rights. I recommend that the Board find
that Respondent thereby violated Section 8(a)(1) of the Act.
Complaint Paragraph V(e)
Complaint paragraph V(e) alleges that about April 4, 2006, Respondent, by Mary Ruth Herbers,
at Respondent's facility, threatened employees with discharge for engaging in union activity. Respondent
denies this allegation.
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Herbers not only gave Neumann the memorandum quoted above, but went over it with him. She
told him that he would have to say, verbatim, "I now firmly support a non-union resolution to our issues.
Please join me in working together as a team to make the Center a great place for all of us to work."
As discussed under "Facts," above, Neumann told Herbers that he could not make that statement.
Herbers informed him that it was a requirement of his job, adding "if you can't make the statement, this
really calls into question your ability to continue working here."
Applying an objective standard, I conclude that a typical employee reasonably would interpret
Herbers' words to be a threat of discharge if he failed to disavow the Union in precisely the language
Respondent specified. Clearly, Herbers' statement interferes with, restrains and coerces employees in the
exercise of rights guaranteed by Section 7 of the Act. I recommend that the Board find that Respondent
thereby violated Section 8(a)(1) of the Act.
Complaint Paragraphs VI(a) and VI(b)
Complaint paragraph VI(a) alleges that about April 28, 2003 [sic] Respondent by Gregory D.
Fields, at Respondent's facility, discharged its employee Steve Neumann. Respondent admits that it
terminated Neumann's employment on April 28, 2006. I so find.
Complaint paragraph VI(b) alleges that it did so because Neumann attempted to organize the
Union and engaged in concerted activities and to discourage employees from engaging in these activities.
Respondent denies this alleged motivation.
Notwithstanding the denial, uncontroverted evidence establishes that Respondent discharged
Neumann for a single reason, his refusal to disavow the Union. The testimony of Respondent's director of
administrative operations, quoted above, admits that Respondent fired Neumann for "supporting the
union, wearing a button, supporting the union and refusing to make a statement as requested by the
executive director." The context makes clear that the button Neumann wore was a Union button.
Respondent clearly terminated Neumann’s employment for activity protected by the Act.
Accordingly, the legality of Respondent's action should not be evaluated under the framework set forth in
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982). Because I have found that Neumann was an employee, enjoying the Act’s protection, and
because Respondent discharged him for engaging in Section 7 activity, the appropriate inquiry concerns
whether Neumann did anything which would divest him of the protection of the Act. Beverly Health &
Rehabilitation Services, 346 NLRB No. 111 (May 8, 2006).
Respondent has not asserted that Neumann engaged in any misconduct which deprived him of the
Act's protection. The record does not suggest any such misconduct, and I find that none occurred.
As discussed above, Neumann was not a supervisor and therefore enjoyed the full protection of
the Act. Respondent committed an unfair labor practice when it discharged Neumann for conduct the Act
protects. I recommend that the Board find that Respondent thereby violated Section 8(a)(3) and (1) of the
Act.
Conclusions of Law
1. Respondent, Center for Economic Progress, is an employer engaged in commerce within the
meaning of Section 2(2), (6) and (7) of the Act.
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2. The Charging Party, Chicago Newspaper Guild Local 34071, TNG/CWA, is a labor organization
within the meaning of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by telling an employee that he could not engage in
activities protected by the Act, including attending union meetings, discussing the Union with other
employees, and voting in a representation election, and by telling the employee that the Act did not
protect him. Further, Respondent violated Section 8(a)(1) of the Act by threatening an employee with
discharge for engaging in Union activities and by ordering the employee to disavow his support for the
Union.
4. Respondent violated Section 8(a)(3) and (1) of the Act by discharging employee Steve Neumann
because he engaged in activities protected by the Act, including refusing to disavow his support for the
Union.
5. The unfair labor practices described in paragraphs 3 and 4 above affect commerce within the
meaning of Section 2(6) and (7) of the Act.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find that it must
be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of
the Act, including posting the notice to employees attached hereto as Appendix A.
Further, Respondent must offer Neumann immediate and full reinstatement to his former position
or, if his former position no longer exists, to a substantially equivalent position. It also must make
Neumann whole for all losses he suffered because of Respondent's unlawful conduct, with interest
computed in accordance with Florida Steel Corp., 231 NLRB 651 (1977) and New Horizons for the
Retarded, 283 NLRB 1173 (1987).
ORDER1
The Respondent, Center for Economic Progress, its officers, agents, successors, and assigns, shall
1. Cease and desist from:
(a) Telling any employee that he could not engage in activities protected by the Act,
including attending union meetings, discussing the Union with other employees, and voting in a
representation election, and telling any employee that the Act did not protect him.
(b) Threatening any employee with discharge for engaging in Union activities or other
concerted activities protected by the Act.
(c) Telling any employee to disavow his support for a labor organization.

1 If no exceptions are filed as provided by § 102.46 of the Board’s Rules and Regulations, the findings,
conclusions, and recommended Order shall, as provided in §102.48 of the Rules, be adopted by the Board and all
objections to them shall be deemed waived for all purposes.
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(d) Discharging or otherwise discriminating against any employee in regard to hire or tenure
of employment or any term or condition of employment because that employee refused to disavow his
support for a labor organization or engaged in other union or protected concerted activities.
(d) In any like or related manner interfering with, restraining, or coercing its employees in
the exercise of their rights to self-organization, to form, join, or assist any labor organization, to bargain
collectively through representatives of their own choosing, or to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such
activities.
2. Take the following affirmative action necessary to effectuate the policies of the Act:
(a) Offer Steve Neumann immediate and full reinstatement to his former position or, if his
former position no longer exists, to a substantially equivalent position, and make him whole, with interest,
for all losses suffered because of Respondent's unlawful actions against him.
(b) Within 14 days after service by the Region, post at its facilities in Chicago, Illinois,
copies of the attached notice marked “Appendix A.”2 Copies of the notice, on forms provided by the
Regional Director for Region 13, after being signed by the Respondent's authorized representative, shall
be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by
any other material. In the event that, during the pendency of these proceedings, 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 employees and former employees employed by
the Respondent at any time since March 24, 2006.
(c) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Regional Director attesting to the steps
that the Respondent has taken to comply.
Dated Washington, D.C., September 13, 2007.
________________________
Keltner W. Locke
Administrative Law Judge

2 If this Order is enforced by a judgment of the United States Court of Appeals, the words in the notice
reading “POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD” shall read “POSTED
PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN ORDER
OF THE NATIONAL LABOR RELATIONS BOARD.”
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APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
The National Labor Relations Board has found that we violated the National Labor Relations Act
and has ordered us to post and abide by 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 benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT interfere with, restrain or coerce our employees in the exercise of these rights,
guaranteed to them by Section 7 of the National Labor Relations Act.
WE WILL NOT tell any employee that he may not discuss the Union with other employees,
attend Union meetings, vote in a representation election, or engage in any other activities protected by the
National Labor Relations Act.
WE WILL NOT tell any employee that the National Labor Relations Act does not protect him.
WE WILL NOT threaten any employee with discharge for engaging in Union activities or other
activities protected by the National Labor Relations Act.
WE WILL NOT tell any employee to disavow his support for a labor organization or threaten to
discharge or discriminate against him if he refuses to disavow his support for a labor organization.
WE WILL NOT discharge or otherwise discriminate against any employee for refusing to
disavow his support for a labor organization or for engaging in any other activities protected by the
National Labor Relations Act.
WE WILL NOT, in any like or related manner interfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
WE WILL offer employee Steve Neumann immediate and full reinstatement to his former
position or to a substantially equivalent position if his former position no longer exists.
WE WILL make Steve Neumann whole, with interest, for all losses he suffered because of our
unlawful discrimination against him.
Center for Economic Progress
Respondent
By: _____________________________________ Date: ____________
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The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the
National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want
union representation and it investigates and remedies unfair labor practices by employers and unions. To
find out more about your rights under the Act and how to file a charge or election petition, you may speak
confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain
information from the Board’s website: www.nlrb.gov.
200 West Adams Street - Suite 800, Chicago, IL 60606-5208
(312) 886-3036, Hours: 8:30 a.m. to 5 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE.
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF
POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS
PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (312) 886-3036