Concourse Village, Inc.

National Labor Relations Board - Board Decisions

Aug 27, 1985

276 N.L.R.B. 12 (N.L.R.B. 1985)

12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Concourse Village , Inc and Service Employees
International Umon, Local 32E , AFT,-CIO
Cases 2-UC-324-1 and 2-UC-324-2
27 August 1985
DECISION ON REVIEW AND ORDER
BY CHAIRMAN DoTsoN AND MEMBERS
HUNTER AND DENNIS
Following a hearing conducted on 2, 5, 6, 14, 15,
and 16 March 1984,1 the Regional Director for
Region 2 on 30 March issued his Decision and
Order on the above enumerated petitions, dismiss
mg the first petition on the basis that the record
failed to establish that the assistant maintenance di
rector, superintendents, and handymen are supervi
sors as the Employer alleges, and with regard to
the second petition, clarifying lieutenants and ser
geants from an existing unit of security guards on
the basis of their supervisory status but refusing to
exclude from the existing unit the alleged supervi
sory position of captain Thereafter, the Employer
filed with the Board a request for review of the
Regional Director's decision with supporting brief,
and the Union filed a brief in opposition On 30
November the Board granted review
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three
member panel
The National Labor Relations Board has re
viewed the record in light of the exceptions and
briefs and has decided to dismiss as moot the Em
ployer's petition in Case 2-UC-324-2 regarding the
guard unit, 2 and to reverse the Regional Director's
' All dates refer to 1984 unless otherwise indicated
' In our telegraphic order granting review the Board sun sponte raised
the question whether our recent decision in Brinks Inc 272 NLRB 868
(1984) which denies the use of Board processes to unions that represent
both guards and nonguards would bar consideration of the petition per
taming to the guard unit The Employer indicated in its supplemental
brief that on 19 May it permanently laid off all of its security guards and
subcontracted out their work We have been advised administratively
that charges filed by the Union that the layoff violated the Act were dis-
missed by the Regional Director and that the General Counsel denied the
Union s appeal of the dismissal Accordingly we find it unnecessary to
pass on the application of Brinks in this case inasmuch as the nonexis
tence of the unit renders the questions moot and we shall dismiss the peti
tion in Case 2-UC-324-2 on that basis
Member Dennis does not agree that the present record supports the
finding that the questions raised in Case 2-UC-324-2 are moot Instead
Member Dennis finds that the Employer s assertion in its supplemental
brief that it no longer employs guards raises factual issues warranting a
reopening of the record Indeed the Employer argues that the case is not
moot and suggests that it may employ guards again in the future In these
circumstances Member Dennis would remand Case 2-UC-324-2 to the
Regional Director for further proceedings including a hearing if neces
sary concerning the Employer s allegation that it has permanently laid
off the security guards and subcontracted out the unit work
Contrary to our colleague in finding the issue raised in Case 2-UC-
3242 moot we note that the Employer s assertion that it no longer em
ploys guards is uncontroverted and further note that while the Employer
states its belief that the case is not moot it admits that it has no plans to
decision on the petition in Case 2-UC-324-1 and to
exclude the assistant maintenance director and the
superintendents from the unit of maintenance
workers 3
The record establishes that the Employer is a
six building 1872-unit cooperative apartment coin
plex whose maintenance employees have been rep
resented by the Umon since 1965 There are 62 em
ployees in the maintenance unit including 6 super
intendents, 9 handymen, and numerous porters who
are each assigned to particular buildings In addi-
tion to performing certain building repairs them
selves, the superintendents oversee and are respon-
sible for the work of the handymen and four por
ters who work in their respective buildings
Handymen regularly substitute for absent superm
tendents Porters in each building are permanently
assigned to either the lobby area (porter no 1),
floors 1 through 12 (porter no 2), floors 13
through 24 (porter no 3), or the compactor room
(porter no 4) All maintenance workers report to
the director of maintenance, the assistant director
of maintenanance, and the site manager
Superintendents spend 80 percent of their work
day performing repairs and servicing machines and
20 percent inspecting the work of handymen and
porters Superintendents must fill out and sign daily
inspection reports which detail the work of these
employees and the condition of the building They
can compel porters to carry out their regular duties
and to redo unsatisfactory work, but the porters'
work is largely predetermined and is a function of
the area in which they work Twice yearly when
floors are stripped, resealed, and waxed, the super
intendent may assign porters to work out of their
regular areas Further, when a superintendent sees
a spill in the hallway while making his inspection
rounds he may direct the first porter he sees to
clean it up or when an emergency such as pipes
bursting in an apartment arises, he may pull a
porter from an assigned area to do the necessary
work Regarding handymen, the record reveals
that they pick up work slips, i e , repair calls from
employ security guards Even if the Employer were to employ security
guards sometime in the future however we would still find the UC ques
tion as to the employees at issue here to be moot Guards employed in
the future will at least at the outset be unrepresented and a union wish
ing to be certified to represent them must meet the conditions of Sec
9(bX3) In the event the union meets those conditions , unit scope ques-
tions if any will be dealt with in the representation case
3 The Employer requests that the Board reopen the record and admit
into evidence an arbitrator's decision relating to a superintendent s re
sponsibihty for equipment that issued after the close of the hearing in this
case We grant the Employers request to reopen the record for this put
pose but in view of the basis for finding superintendents to be superviso-
ry as set forth below we find it unnecessary to consider the arbitrator s
decision
276 NLRB No 4
CONCOURSE VILLAGE, INC.
individual units and perform whatever work is re-
quired in the unit.
On the basis of the foregoing, the Regional Di-
rector concluded that superintendents do not
engage in any substantial assignment or direction of
work. We agree.4 The duties of porters and handy-
men are predetermined, performed daily, and rou-
tine. No significant direction of their work is either
required or undertaken.
The record also establishes that superintendents
issue disciplinary warnings to maintenance employ-
ees for such infractions as lateness , insubordination,
and failure to clean their areas . These warnings, al-
though sometimes issued at the directive of the di-
rector of maintenance and other management offi-
cials, have also been issued independently by super-
intendents. They are placed in the employee's per-
sonnel file. Site Manager Winnie Jennings, who is
responsible for the day-to-day operation of the
complex, testified that she implemented a rule
shortly after her hire in 1983 that three disciplinary
warnings would result in the employee's discharge.
This rule change occurred after superintendents
complained that the warnings they issued seemed
to have little effect on employees' behavior, and su-
perintendents were advised of the new rule.
The Regional Director found with respect to the
issuance of these written warnings that superin-
tendents were mere "conduits" and stated that the
record was "devoid" of evidence concerning the
impact the warning had on employees' tenure.
Contrary to the Regional Director, we find that
the superintendents' possession of authority to issue
such warnings on their own initiative is evidence of
their supervisory status. The indicia of supervisory
status listed in Section 2(11) of the Act are set
forth in the disjunctive, and it is well settled that
the existence of only one is necessary to support a
finding that an employee is a supervisor within the
meaning of the Act. The record discloses that su-
perintendents have exercised the authority to disci-
pline employees and particularly that the discipli-
nary warnings will have a definite and severe effect
on employment status. We find that, superintend-
ents are supervisors and we -shall exclude them
from the maintenance unit.
At the hearing the Employer raised the issue that
the classification of assistant maintenance director
4 We also agree with the Regional Director's findings that superintend-
ents do not have authority to hire, fire, transfer, promote , or reward
handymen and porters In view of the fact that their recommendations
regarding hiring and retention were not followed or did not form the
basis of employment decisions and in light of the site manager 's vague
testimony regarding the use of employee evaluations performed by super-
intendents , we also agree with the Regional Director 's finding that super-
intendents do not possess the authority effectively to recommend these
actions
13
should also be excluded from the unit.. As noted
above, the superintendents,report to the individual
who occupies this position or to two others whose
supervisory status is conceded. At the time of the
hearing, one of the superintendents was the acting
assistant maintenance director, and he testified- that
he maintains and inspects employee timecards and
work schedules. He also checks with superintend-
ents to determine whether employees have report-
ed for work and ascertains whether maintenance
employees are in full uniform with identification
before clocking in for duty.
Employees who breach these policies may be
disciplined by the assistant maintenance director
and the record indicates that at least one written
warning has been issued. As stated above with re-
spect to superintendents, these disciplinary warn-
ings, which according to the Employer's estab-
lished policy may result in discharge, are sufficient
basis for concluding that the classification of assist-
ant maintenance director is supervisory and we
shall likewise exclude this position from the mainte-
nance unit. b.
Handymen, as alluded to earlier, regularly substi-
tute for superintendents on the latters' days off,
sick and personal days, and when they are on vaca-
tion. While substituting, handymen perform their
normal duties ' of answering service calls, but also
attend management meetings in place of the super-
intendents and fill out the daily inspection reports
usually done by superintendents. Handymen re-
ceive a stipend for the hours they replace superin-
tendents. There is no evidence, however, that sub-
stituting handymen have authority to issue written
disciplinary warnings, and the record does not es-
tablish that they possess any other supervisory au-
thority. In view of these facts, we find that despite
any regularity with which handymen substitute for
superintendents, they do not assume any superviso-
ry authority during this time. Accordingly, we find
that handymen are employees within the meaning
of the Act and we shall not exclude them from .the
unit.
ORDER
It is ordered that the current collective -bargain-
ing unit described in Case 2-UC-324-1 be clarified
as follows:
All maintenance employees, including handy-
men, porters, utility porter, dispatcher, truck
driver, stock clerk, boilerman and touch-up
5 In finding these positions supervisory we note the inordinate supervi-
sor-to-employee ratio (2-to-60) that would result if superintendents and
the assistant director were found to be,employees within the meaning of
the Act. See Albany Medical Center, 273 NLRB 485 (1984)
14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
painter, and excluding Assistant Maintenance IT IS FURTHER ORDERED that the petition in Case
Director, superintendents and all other em 2-UC-324-2 is dismissed
ployees