Getronics USA, Inc.

National Labor Relations Board - Administrative Judge Opinions

Dec 30, 2008

22-RC-012925 (N.L.R.B. Dec. 30, 2008)

JD(NY)–47–08
East Hanover and
Florham Park, NJ and
Suffern, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
GETRONICS USA , INC.
Employer
Case 22-RC-12925
COMMUNICATION WORKERS OF
AMERICA LOCAL 1032
Petitioner
Ariella Feingold, Esq. and Laura Schneider, Esq.
(Wilmer Cutler Pickering Hale and Dorr) New York, NY
for the Employer
David Tango, Esq. and Ann Marie Pinarsk, Esq.
(Weissman & Mintz, LLP) Somerset, New Jersey
for the Petitioner
RECOMMENDED DECISION ON OBJECTIONS AND CHALLENGES
STATEMENT OF THE CASE
Steven Fish, Administrative Law Judge. Pursuant to a Petition filed by Communications
Workers of America, Local 1032, herein called Petitioner or the Union, on May 20, 2008, the
parties entered into a Stipulated Election Agreement on June 3, 2008, providing for an election
to be conducted on June 27, 2008, in a unit of employees in various positions employed by
Getronics USA, Inc. herein called Getronics or the Employer at its Florham Park and East
Hanover, New Jersey and Suffern, New York facilities.
Thereafter, the Region served a Tally of Ballots upon the parties showing the following:
Approximate number of eligible voters 30
Void ballots 0
Votes cast for Communication Workers of America,
Local 1032 14
Votes cast against participating labor organization 10
Valid votes counted 24
Challenged ballots 5
Valid votes counted plus challenged ballots 29
Challenges are sufficient in number to affect the results of the election. On July 7, 2008 the
Petitioner, filed timely objections to conduct affecting the results of the election.
On July 17th, 2008, the Director issued a Report on Challenged Ballots and Objections and
Notice of Hearing, in which he approved the Petitioner’s request to withdraw objection No. 6,
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and concluded that the remaining Objections filed by the Petitioner, as well as the Challenges
to the ballots of John Paynter, Robert Mikol, Thomas Skorka, Gustavo Gil and Charles Corby,
raised substantial and material issues which can best be resolved on the basis of record
testimony at a hearing. The Director ordered that a hearing be held to received testimony with
respect to the issues raised in the Report.
Accordingly, a hearing was held before me in Newark, New Jersey on August 18, 19 and 20
and September 26, 2008. Briefs have been filed and have been carefully considered. Based
upon the entire record, including my observation of the demeanor of the witnesses, I issue the
following:
FINDINGS OF FACT
1. BACKGROUND
Getronics is a worldwide information technology outsourcing company, with its main office in
the Netherlands. It employs approximately 10,000 employees all over the world. It is divided
into various regions, including Getronics North America, which in turn includes Getronics U.S.A.
which is the entity involved in this proceeding. Getronics North America employs approximately
3500 employees at numerous locations including 10-12 offices, which are leased facilities,
where employees work. Its main office is in Tewksbury, Massachusetts. Getronics USA’s CEO
is Gary Cawthorne.
The majority of employees of the Employer work at customer sites throughout the country.
The proceeding here involves the employees of the Employer who work at three sites of
Novartis, in East Hanover and Florham Park, New Jersey, and Suffern, New York. Getronics
USA employees between 150-200 employees who work at these three facilities, including the
30 employees eligible to vote in the election.
William Schultz is the Operations Manager of the Novartis locations, and is responsible for
ensuring that the Employers’ contract objectives with Novartis are met. Schultz reports to Carl
Stager, the Program Manager II at the East Hanover site, who in turn reports to Pat Llewellyn
the Program Director for the sites. Bruce Strow, Operations Manager I, reports to Schultz.
The majority of bargaining unit employees are classified as Technical Support Specialists,
(TSS). Getronics has four TSS levels, and employees are classified as TSS I, II, III, of IV,
depending on their technical skill experience and knowledge.1
2. THE CHALLENGES
A. FACTS
The Petitioner challenged the ballots of Paynter, Mikol, Gil, Skorka and Corby on the
grounds that they are supervisors. Four of the individuals challenged, are designated by the
Employer as Team Leads. (Mikol, Paynter, Skorka and Gil). Corby has not been so
designated.
There is conflicting testimony in the record as to how and when these individuals became
Team Leads. Thus Strow and Schultz testified that Schultz instituted the designation two and a

1 TSSI is the lowest ranking and TSS IV is the highest ranking.
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half years ago. Mikol and Paynter on the other hand testified that the designation occurred
between 3-4 years (Mikol) and 7 (Paynter) and that the position was “assumed” according to
Paynter, and was instituted by Llewelyn, according to Mikol.
I need not resolve this credibility dispute, since the issue of supervisory status is not
determined by titles, but by whether the alleged supervisors have the authority to or exercise
any of the indica of supervisory authority detailed in Section 2(11) of the Act. Here regardless of
when and how the individual became “Team Leaders”, the issue is what supervisory authority
they possessed or exercised. Notably, some of the evidence adduced concerning such issues,
particularly the involvement of the individuals in the Employer’s hiring process, took place before
they were designated as “Team Leads”, under any of the versions described above.
The Team Lead designation is not a job classification, and did not or does not result in any
increased compensation. The Team Leads are the most experienced employees, and their
function is primarily to be a contact point for other technicians to resolve technical issues and
work tickets, and to be a point of contact for Novartis employees in the event that work issues
arise, particularly when nether Schultz nor Strow are available.
Corby although not designated a Team Lead, is the most experienced TS IV, and so all
employees can come to him for technical assistance. Previous to the Team Lead designations,
all employees went to Corby for technical assistance. Thus the designation of the four Team
Leads, took some of that burden from Corby, and spread the work of assisting employees to
these other individuals.
The Employer’s internal organizational chart does not make any reference to Team Leads,
and divides the unit employees into two groups (including the Team Leads and Corby), some
reporting to Schultz and others to Strow.
However, the Employer did prepare and distribute another organizational chart to
employees and to Novartis. This chart places Schultz on top as the Operations Manager, and
then the next level includes six individuals on the same line, including Strow, listed as Manager
of Desk Side Support, and Mikol and Paynter as Team Leads. The next in line includes 7
individuals, including Skorka and Gil designated as Team Leads, Corby listed Technical
Support, and three individuals, who are clearly unit employees.2 This chart lists the employees
under each of the Team Leads, with their job function. Thus Mikol’s “Team” includes six other
employees,3 8 other individuals.4 Skorka’s “Team’ includes four technicians, Robert
Kwiatkowski, Joe Peters, Donald Nwobi, and Russell Callahan, and one contractor, Alfredo
Hernandez. Gil’s “Team” includes four individuals listed as technicians (Ulian Matveychuk, Elliot
Ottenstein, Evelyn Otero and Gritzko Cerdal), a Printer Support Technician (Michael Nah), and
a Suffern Support Technician (Vasilos Liakos).
As noted, none of the Team Leads received salary increases when they received the
designation. However, the Team Leads as well as Corby do receive substantially higher

2 Nicholas Battista, Derek Lamar and Manny Rosario.
3 Rosario is listed as Field Support Technician, Andy Albertsen, Field Support Build Center,
Oscar Olmedo, Inventory, Obbie Williams, Logistics Coordinator, and Mark Anderson and
William Napolitano, Build Center.
4 David Sullivan, David LaCorte, Network Support, Lamer, Network Projects, Anthony
Steriacci, and Eric Simpson. Moves, Justin Chung and Tyrone Pearson Deploy/Recover, and
Joe DiCarbo Engine 4 Project Contractor).
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salaries, than the other unit employees. Corby’s 2008 salary was $89, 450. Skorka’s salary as
of 2006 was $95, 975. The 2008 salaries for Paynter, Mikol and Gil, were $81,409, $80,132
and $78,009. The salaries of other unit employees ranged from $39, 469.00 for Andrew
Albertsen,5 to $63,860.00 for Donald Nwobi.6 Russell Callahan and Michael Nah, are TSS II’s,
and had salaries of $50, 801.00 and $50,900 respectively in 2008.
The primary evidence concerning the supervisory status of the challenged voters,
particularly Mikol and Paynter, consisted of their participation in the interviewing of employees.
In that regard the record establishes that the Employer’s practice, which was in existence prior
to the Team Lead designations, was to request that one or more of the five individuals in
question participate in the interview process.
In 1999 Russell Callahan was interviewed for employment by Getronics by Strow, Corby and
Gil. All three individuals present asked Callahan questions according to Callahan, about “what I
knew, what I did , and stuff like that”. A few days later Callahan called up and left a message on
Corby’s voice mail asking about the status of his application.7 Corby returned Callahan’s call a
day or two later, and informed Callahan that he was going to be offered the job, and would be
receiving an offer in the mail. Shortly thereafter, Callahan received an offer in the mail and was
hired by the Employer at that time. No evidence was presented as to what discussions if any,
Gil or Corby had with Strow after the interview concerning Callahan, nor any evidence that
either Gil or Corby made any recommendation to Strow or any other management official
concerning whether or not to hire Callahan.
Both Paynter and Mikol furnished extensive testimony concerning their roles in the interview
process, which also touched tangentially on the roles of Corby, Gil and Skorka on that process.
Their testimony which is in part mutually corroborative and credible reflects as follows.
Both Paynter and Mikol testified, corroborated by Strow and Schultz, that the Team Leads
and Corby are asked to participate in job interviews along with Strow and Schultz, primarily to
evaluate the applicants “Technical” abilities, and to determine if the applicants were honest
about the skills and experience listed on their resumes. As Mikol explained, they engage the
applicants “Technically… if they’re coming off, you know, being brash or whatever, that they
have a strong resume all these different… You know, we’ll challenge them in those particular
areas, technically, to make sure, you… you know, just as a check and balance point what you
put on your resume, we’ll expect you to know”.
After the interviews conclude with the applicants, either Schultz or Strow will ask the others
how the applicant handled him or herself, were their responses technically consistent with their
resume, and was there anything that they discovered technically. According to Mikol, he and or
the other Team Leads present at the interviews, will give their opinions to Strow or Schultz as to
their assessment of whether the applicant “fits the bill or doesn’t”.
Both Mikol and Paynter testified that where the applicant is applying for a position in the
area of responsibilities that they have, each of them will recommend whether or not the
Employer should hire or extend an offer to the particular applicant.

5 Albertsen was TSS 1.
6 Nwobi is a TSS III.
7 The record does not reflect why Callahan called Corby to inquire about his status.
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Paynter testified that when he interviews applicants, along with Strow and or Schultz and or
other Team Leads, he asks questions about the applicants technical knowledge, to determine “if
the could do the job that is going to be asked of them”, and “if they would be a good fit for what
the job is going to be required of them”. After the interview concludes, Paynter would tell Strow
or Schultz whether Paynter thinks that person would be a good fit for the job, whether that
person would be a good hire or a bad hire, and whether he (Paynter) believes that person
should be hired.
There is no dispute, but that either Strow or Schultz makes the final decision to hire the
applicants, and that after these interviews, if Getronics intends to hire the applicant either Strow
or Schultz will discuss salary, hours and other matters with the applicants before they are
actually hired by the Employer.
The record contains several specific examples, where Paynter and or Mikol made
recommendations to hire or not to hire, specific applicants for employment. Approximately
seven years ago,8 Paynter and Mikol participated in the interview process, wherein Mark
Andersen was hired by Getronics. Strow was the only management representative present at
the interview.9 At that time there were three applicants for the position that Andersen was hired
to fill. Paynter, Mikol, and Strow first interviewed an applicant. Paynter and Mikol asked the
applicant technical questions, and after the interview, both Mikol and Paynter recommended to
Strow that this applicant not be hired, because that applicant was very nervous during the
interview and they felt that he couldn’t take the pressure of the job,10 and because the applicant
did not have the technical skills for the job.
Strow was in agreement with the recommendations of Paynter and Mikol, and they
proceeded to interview the next applicant. The next applicant to be interviewed was George Le
Chek. After Paynter and Mikol questioned Le Chek, they concluded and recommended to
Strow that Le Chek did not have the technical skills for the position. Strow agreed with this
conclusion, and they proceeded to interview Andersen.
Mikol and Paynter asked Andersen technical questions, which Andersen answered.11
Although Paynter recalled that Andersen was “really nervous” during the interview, both he and
Mikol felt that Andersen’s responses to the technical questions were good enough, so that they
both recommended to Strow that he be hired. Strow agreed, and after Strow conducted a
phone interview with Andersen, Andersen was hired as an employee.
About five years ago, Mikol, Paynter and Strow interviewed Nicholas Battista for a position.12
Paynter and Mikol asked Battista questions about his experience, his ability and about his
technical competence. They also tested Battista’s knowledge of certain terms involved in the
computer field. After the interview concluded, both Paynter and Mikol informed Strow that in

8 I note that this incident occurred prior to either Mikol or Paynter being chosen as Team
Leads.
9 Paynter testified that “I think Charlie Corby was there. Gus Gil might have been there”.
Mikol did not testify whether anyone else was present during the interview other than himself
and Strow.
10 During the interview, the applicant was hot and sweaty, and started to take off his clothes
during the meeting, and appeared very nervous.
11 Strow asked Andersen non-technical questions, such as if Andersen could commute to
work.
12 By that time, according to Paynter, both he and Mikol were Team Leads.
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their view, Battista was “ a good fit”, and that Getronics should hire him for the position. Strow
said okay, and then conducted his own telephone interview with Battista, wherein he discussed
issues such as salary and benefits. Within a week, Battista was hired by the Employer.
Also approximately five years ago, Mikol and Paynter interviewed Andy Albertsen for a
position as an Inventory Coordinator.13 Paynter testified that the applicant didn’t really need
technical skill sets to do that job. He needed only the ability to understand part numbers, since
the position was inventory coordinator. Paynter and Mikol asked Albertsen some simple
questions, such as ”What a hard drive is”? After the interview with Albertsen ended, both Mikol
and Paynter recommended to Strow that Albertsen be hired for the position, since they thought
that Albertsen “could do the job”. Shortly thereafter, Albertsen was hired by Getronics.
David Sullivan was interviewed by Mikol, Paynter and Strow, approximately eight years
ago.14 During the interview, Paynter and Mikol asked Sullivan questions about technical
aspects of his experience and of the job. After Sullivan left the interview, Paynter and Mikol
recommended to Strow that Sullivan be hired. Strow agreed, and followed up with a phone
interview, and Sullivan was hired.
After working for Getronics at East Hanover for a few years, Sullivan transferred to another
Novartis worksite in Parsippany, New Jersey, but remained as an employee of Getronics. After
working at that jobsite for several years, an opening arose at East Hanover two years ago. At
that time, about eight years ago, Getronics announced that a position was available. Sullivan,
as well as two other Getronics employees, Evelyn Otero and Ross Rivera applied for this job. In
this instance the interviews were conducted by Paynter and Strow. Otero was first. Paynter
asked Otero questions about her experience at her present position, and ascertained that she
had no experience with switchers or routers, which was essential for the position. After Otero
left the interview, Paynter recommended to Strow that Otero not be selected for the position,
and Getronics should “keep looking”, since she did not have the relevant experience for the job.
Strow agreed.
Rivera was interviewed, and he too had no experience with switchers and routers. Again
Paynter recommended to Strow that Rivera not be selected because of his lack of experience,
and Strow agreed.
Sullivan was the last of the three applicants to be interviewed. Paynter asked Sullivan what
work he was doing at the Parsippany facility. Sullivan replied that he had set up switchers and
servers, which was similar to the work involved in the position. After the interview ended,
Paynter recommended to Strow that Sullivan be selected for the vacant position, because
Paynter had worked with Sullivan in the past and that Sullivan had the “skill set” to perform the
job. Strow said okay, and Sullivan was transferred to the East Hanover worksite.
Approximately one to two years ago, Schultz asked Paynter to interview several applicants
for positions as temporary employees. Paynter asked employee David La Corte to sit in with
him during these interviews, because La Corte had previously performed the job. (Deployment
and Recoveries). There were two positions available, for which Getronics had five applicants.
These applicants had been sent over to Getronics from an Agency for interviews. Schultz had
informed the Agency that the Employer needed two individuals for this particular type of work.
The Agency then sent over five individuals. These individuals are not and were not ever

13 Strow may or may not have been present at this interview.
14 Once again, Paynter testified that Gil and Corby “could have been there, I’m not sure.”
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employees of Getronics. The were employees of the Agency, and Getronics pays the Agency
for the services of the employees. Once on the site, however, these employees of the Agency,
perform the same work as Getronics employees, and are members of the ”Teams”, under the
Team Leads.
Paynter and La Corte interviewed five Agency employees to fill the two vacant positions as
temporary employees for Getronics.15 La Corte and Paynter explained to the five applicants
what they would be doing while employed at the Getronics worksite, and asked them questions
to determine if they had the ability to perform the work required.
Paynter testified that these positions required minimal skill sets, but that he and La Corte had
to determines if they had the aptitude to understand the position. They asked questions to see
if the applicants understood IP addresses, sub-nets and super-nets, among other questions, to
see if they could “troubleshoot”, if a PC does not work properly. After interviewing the five
individuals, La Corte and Paynter conferred and decided to recommend the hire of Tyrone
Pearson and Justin Chung for the two available positions as “Temps”. Paynter informed Schultz
of this recommendation. Schultz said okay, that’s fine. Schultz then called the Agency,
discussed monetary issues, and arranged for Chung and Pearson to be start work as Temps at
the East Hanover facility.
About six months ago, Getronics offered Pearson and Chung full time positions as
employees of Getronics. They both accepted and are still employed by the Employer. The
decision to convert these individuals from Temps to permanent employees was made by
Schultz. He did not ask Paynter or any Team Leader for their recommendation as to whether to
offer these individuals permanent employment. Schultz did however inquire of Paynter as to
how these Temps were doing. In that conversation, Schultz did inform Paynter that the time
period for retaining these individuals as “Temps” was expiring, and that Getronics needed to
make a decision to make them permanent.16 Paynter replied that Chung and Pearson were
both doing fine, and they were okay with their work. Paynter denied that he made a
recommendation to hire them as permanent employees, but conceded that “probably in a
manner of speaking. I don’t think those are my exact words”. According to Paynter, Schultz did
not inform him during this conversation, whether Getronics was going to make Pearson and
Chung permanent employees. Shortly thereafter, Paynter was informed by Schultz that
Getronics had made Pearson and Chung permanent employees.
Mikol interviewed approximately 18 applicants for employment with Getronics. He estimated
that of these 18, he recommended that Getronics hire 9 of these applicants, and Getronics
followed his recommendation and offered employment to the applicants that Mikol
recommended, approximately 7 or 8 times. Thus he was overruled 1 or 2 times out of his 9
positive recommendations.
Similarly, with respect to the approximately nine applicants where Mikol recommended that
the applicant not be extended an offer by Getronics, he estimated that he was overruled the
same number of times.

15 As noted above these individuals were not really temporary employees of Getronics,
since they were not employees of Getronics at all. However in the record they are referred to by
the witnesses as temporary employees. I shall refer to them as “Temps” in subsequent
discussion.
16 Both Chung and Pearson were members of Paynter’s Team.
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Mikol recalled specifically recommending the hire of Mark Andersen Isabelle Niven about
seven years ago, and Jennifer Mack, five years ago. These individuals were all hired by
Getronics.
The above findings with respect to the role of Paynter and Mikol in the hiring process is
based on the credible and mutually corroborative testimony of Mikol and Paynter. Neither
Schultz nor Strow denied any of the specific testimony of these individuals, although they did
testify conclusorily that neither of them had the authority to recommend hire or transfer. To the
extent that such testimony can be construed as a denial of Mikol and Paynter’s testimony, I do
not credit such denials. Both Strow and Schultz conceded that Team Leads as well as Corby,
sometimes are asked to sit in on interviews with applicants for employment, including Temps.
They assert that the Team Leads and Corby, are asked to participate, solely in order to assess
the applicants technical skills. The both concede that they would ask the Team Leads or Corby
for feedback as to whether the applicants had the technical ability to perform the job, but deny
that they ever asked any Team Lead for a recommendations as to whether or not to hire any
applicants.
Neither Schultz nor Strow denied that Team Leads in fact made recommendations to them to
hire or not to hire applicants for permanent or temporary employment. I note that initially when
asked, Strow testified if a Team Lead makes a recommendation to hire, that he Strow is not
enthusiastic about, their recommendation would not influence him.17
Strow was asked specifically about the testimony of Paynter and Mikol that they both had
made recommendations to hire various applicants. His response was simply that he did not
solicit such recommendations whether or not to hire any applicants. Finally upon further
pressing Strow conceded that Paynter and Mikol “probably did” inform Strow that applicants
were candidates that should be hired. Further Strow also admitted that he did take into account
the feedback of Paynter and Mikol (on technical matters) into account when he makes hiring
decisions.
Finally, Schultz’s testimony which is uncontradicted, establishes that Getronics has not hired
directly any permanent employees for the past two and a half years.18 Schultz also testified that
when Getronics has hired temporary employees, he does request that Team Leads interview
applicants, but asserts that he interviews them before and after the Team Lead’s interview the
candidates. Schultz further asserts that after the applicant leaves, he will have a discussion
with the Team Lead, and receive their input as to the technical abilities of the applicants.
Schultz also admitted that the Team Lead will inform him whether the applicant is good or met
the technical requirements for the job, and whether the applicant is a good or a bad candidate.
However, Schultz denied that he would ask the Team Leads which of a group of applicants
should be selected for particular spots. However, Schultz did not deny the detailed and
believable testimony of Paynter, which I credited above, that Paynter recommended to Schultz
that Getronics hire Pearson and Chung as Temps and that Getronics followed that
recommendation. Schultz further admitted that he would not hire any Temps where the Team
Leader says that they are not good candidates, and that Getronics would only hire those
individuals where the Team Lead has informed him that the applicants are good candidates,
since they are only temporary. Schultz adds that if the Temp does not work out, Getronics can

17 Strow provided no examples of that scenario ever occurring.
18 As related above Getronics has converted Temps to permanent employees, including
(Chung and Pearson), within that period.
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simply get rid of that individual.
Both Paynter and Mikol have also been involved in the process of employee evaluations.
These evaluations are referred to as Performance Management Process Approval Forms
(PMP’s), and are prepared annually for each employee. The PMP’s include a number of
categories measuring various areas of performance, and employees receive a numerical ratings
in each category. The PMP’s also include narrative comments by management. The PMP’s
and are prepared by Schultz and he discusses the PMP’s directly with employees.
Paynter was asked by Schultz to discuss with him PMP’s that Schultz had prepared for
employees,19 three years ago when Schultz began his tenure as Operations Manager. Schultz
was not that familiar with the employees at that time so he asked for Paynter’s input. Paynter
has continued to be involved in this process since that time, but Paynter was not certain that he
had been consulted for the last evaluations prepared by Schultz for the year ending December
31, 2007, since by then Schultz had become more familiar with the work of the employees
himself.
Schultz would normally ask Paynter for his opinion and input of the PMP’s that he prepared.
Paynter recommended changes in the PMP for Eric Simpson. Paynter felt that the number for
team leadership for Simpson should be higher and the score for communication should be
lower. Schultz agreed with these suggestions, and Simpson’s scores were adjusted
accordingly. Thus Simpson’s overall rating stayed the same, since the increase in Simpson’s
leadership score was balanced out by the decrease in his communication score.
Paynter discussed the PMP’s of all other members of the Network Team (Lamer, Sullivan
and La Corte), with Schultz, and recommended to Schultz that he add comments in the PMP’s
about recommendations for improvements because of the certification process, that employees
should strive for. Schultz added these comments as Paynter had suggested. Paynter also
reviewed and discussed with Schultz the scores for these employees, but Paynter agreed with
Schultz’s numbers for these employees, so no changes were recommended by Paynter or
made by Schultz.
Paynter also attended many, but all of the meetings between Schultz and the employees
when their PMP’s were discussed. The grades and comments in the PMP’s were discussed
with the employees, But the employees involved did not dispute or question any of the grades.
Thus no changes were requested or made during these meetings.
Mikol began becoming involved in the evaluation process about 5-6 years ago. He would
meet with Strow initially, and then when Schultz came on board three years ago, Mikol met with
Schultz prior to the evaluation being shown to the employees. At that time, since Schultz was
unfamiliar with the employees, he relied upon Mikol in preparing the scores for employees.
Subsequently, when Schultz became more familiar with the employees, he would prepare the
numbers himself, and Mikol would not see PMP’s until the meeting with the employees. At such
meetings, there would be discussions with the employees about the PMP’s. Mikol would offer
his opinion, either in support of the numbers or some instances, in support of the employees
position, where it differed from managements. Mikol could not recall any incident where Schultz
changed an employee’s score, based upon Mikol’s comments. It is undisputed that Schultz

19 For the first evaluations prepared by Schultz three years ago, Paynter helped Schultz put
in the numbers for the employees. In subsequent years, Schultz would prepare the PMP’s
himself, including putting in the numbers, and then ask Paynter for his input and opinion.
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makes the ultimate decision on what scores to include in the PMP’s.20
The record is unclear as to whether the PMP’s are used in computing raises for employees.
According to Mikol, he was told21 the PMP’s do not have a bearing on wage increases.
Strow testified that according to Human Resources of Getronics, the PMP’s are “technically”
not supposed to be used for wage increases, since they are “separate entities”. Thus the
PMP’s are supposed to be merely tools to give employees an idea as to how they are
performing. However, Strow admits that he and Schultz do review the PMP’s of employees,
before deciding on wage increases for employees, and that in his (Strow’s) mind, the PMP’s do
have “some bearing” on the wage increases recommended for employees.
Nonetheless, the record contains no evidence that any wage increase for any employee was
affected by any “changes” in the PMP scores recommended by Mikol, Paynter or any other
Team Lead.
Testimony was adduced concerning the role of Paynter and Mikol, and to some extent other
Team Leads in assigning and directing work. For the most part the record reveals that most
“assignments” of work are made by unit employees such as Mark Andersen or by Strow and
Hernandez an employee of a contractor, or by Deborah Esposito a Novartis employee. Further
much of the work is not actually assigned at all. Thus work is simply placed in the in boxes of
particular groups, and the employees themselves decide which job to perform.
Mikol does distribute work tickets to employees Albertsen and Rosario, who work as Field
Support employees in desk side support. Once the jobs comes into the inbox from the Houston
Help Desk, Mikol decides whether Rosario or Albertsen will perform the assignment. However,
Mikol makes that decision solely based on the workload of these two employees, and does
decide based on which employee is more capable of performing the particular job.
Paynter assigns work to employees Chung and Pearson, who are on the Deployment and
Recovery Team. Here again, the work tickets originate in the Houston Help Desk, and Paynter
will make the assignment based upon the particular building involved. Thus the employees are
assigned to serve particular buildings, and Paynter makes the assignment based on that
system. If there is an overload of work in particular buildings at a particular time, Paynter will
change the assignments to keep the work load of Pearson and Chung relatively even.
Mikol has at times instructed members of his Team to prioritize one job over another. For
example when a job such as an update to Cemote users is being performed, and if it goes
“South”,22 Mikol assigned one of his Field OPS, (Rosario or Albertsen) to help out in completing
that job, which had more priority than the jobs that Rosario or Albertsen were working on. Mikol
did not or would not consult Schultz or Strow when he made this decision, but would notify
Schultz and Strow of his action since they had already been informed by Novartis of the
problem, and that he (Mikol) was on top of the situation.

20 The above findings based on the mutually corroborative and credible testimony of Mikol
and Paynter.
21 Mikol did not testify, nor was he asked who told him that the PMP’s were not used in
assessing raises.
22 Meaning that there is a problem with completing this job.
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At times Mikol will notify Napolitano or other members of his team, that a “VIP” was here,
and that a particular job had to be “done now”.
At times Paynter has instructed Lamer or other members of his Team to stop a particular job
and perform a different task, such as a Network Printer or an LAN connection. Paynter will
decide to priortorize assignments, based on if a VIP or the Executive Committee of the CEO is
involved in a job. Paynter will instruct the employee to do this job first. According to Paynter
such a prioritorization is just “common sense”. Further, if a work ticket is outstanding for several
weeks, Paynter will also tell an employee that the job needs to be “done immediately”.
Similarly, if a VIP comes in and a job has to be done, Paynter will pull either Lamer or
Sullivan off the projects that they were working on, to help perform the project that needs to
“escalated” because of the VIP.
Paynter is also involved in the process of “backfilling”, which involves filling in for an
employee who is out of work, due to vacation, sick leave or a personal day. In such a case,
Paynter decides depending on the workload, if the job has to be done or it can wait until the
employee returns to work. If Paynter decides that the work must be done, he will perform the
job himself, or assign someone else from his Team to perform the work, or ask Schultz or Strow
to use an employee from another Team to do the particular job.
Both Paynter and Mikol consider themselves responsible for the work getting done by the
members of their Teams. In that regard, Schultz admits that all TS5 IV’s, including Mikol and
Paynter, have the responsibility that if he sees employees who are not doing their job, goofing
off, or coming in late, to speak to this employee about these problems, and to tell him or her that
he or she must do better in that particular area.
The record does contain some examples of this kind of activity by Mikol and Paynter.
About five years ago, Paynter noticed that an employee was sleeping at his desk, on more than
one occasion. Paynter criticized the employee for this behavior, and at one point, “screamed” at
the employee. Eventually Paynter brought the issue to higher management, and the employee
was eventually fired. There is no evidence that Paynter recommended that the employee be
disciplined or discharged. On other occasion, described by Paynter as “fairly recently”, he
noticed that an employee was not doing his job properly and taking shortcuts by setting up a
computer and failing to tuck away the wires, resulting in a power chord going across the lap of
employees. Paynter photographed this incident and showed it to the employee, and told the
employee that this wasn’t acceptable. Paynter did not escalate this conduct to higher
management. Paynter also criticized an employee for driving over the lawn. This employee
was reprimanded by Schultz as well, as this conduct had been reported by Novartis personnel.
Finally where employees on his Team have personality clashes and one complains to Paynter
about the issues, including one employee, not carrying his or her weight, Paynter will try to
resolve the problem himself. If he is not successful Paynter would escalate the problem to
Schultz.
Mikol received a complaint from a Novartis employee, that one of the members of his Team
was coming in late and leaving early. Mikol spoke to the employee in question, and informed
him that, “were all here doing the same job. You know, you’re coming in later and leaving
earlier, you’re cheating us as a Team. You know, we need to be a Team”. The employee
corrected this problem and Paynter did not address it again or escalate it to higher
management.
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Approximately three or four years ago, Mikol began to observe that employee Mario
Spelorosa, appeared to be distracted, and had in Mikol’s view lost interest in the job, causing
another employee to “pick up the slack”. Mikol spoke to Spelorosa about this problem, several
times, before escalating it to Pat Llewellyn. Mikol told Llewellyn that he had an employee who
wasn’t holding his share of the workload, was causing a strain on the other technician, and he
needed it addressed by management. Llewellyn spoke to the employee about the complaints
made by Mikol, but no disciplinary action was taken against him. Spelorosa eventually quit his
employment with Getronics.
About two years ago, employee Rosario was speaking to a client on the phone. While they
were speaking employee Napolitano used “inappropriate” language, and this language was
overheard by both the client and Rosario. Both the client and Rosario complained to Mikol
about Napolitano’s conduct. Mikol then took Napolitano into a private room, and told him that a
co-worker was on the phone when he used inappropriate language. Mikol explained to
Napolitano that employees need to be professional at work, and not to us such language. Mikol
did not report this incident to either Strow or Schultz. Napolitano received no discipline for this
incident. In fact neither Mikol nor Paynter ever issued any written warnings to any employees.
Nor did they ever recommend to higher management that any employee be suspended,
discharged, or otherwise disciplined.
Evidence was introduced that at times, when employees request vacation time, they will
send an E-mail to either Paynter or Mikol, requesting approval, as well as an E-mail to Strow,
who makes the final decision. Then either Paynter or Mikol will send an E-mail to Strow stating
their approval of the requests. However their approval is based solely on the availability of other
employees and whether or not another employee performing similar work has requested
vacation for the same period of time. When that happens, either Paynter or Mikol will tell the
employee that someone else has already been approved for vacation for the time requested. If
the employee cannot convince the employee, whose vacation was already approved, to change
their plans, the employee will not be permitted to take vacation at that time.
At times either Paynter or Mikol will decide based on the work load or people out on
vacation or personal days, that back filling, (i.e. obtaining employees from other Teams), was
necessary. In such cases they will discuss it with Strow, and Strow will decide if anyone can be
spared from other Teams. In some cases Paynter or Mikol will decide to perform the particular
work themselves.
Employees will also notify either Mikol, Paynter and or Strow that they will be out sick or
need a personal day. In such cases, approval is routinely granted by Paynter or Mikol, but the
ultimate decision on approval is made by Strow. In practice these requests are ordinarily
granted and approved without question.
The record reveals that both Paynter and Mikol spend a significant amount of their time
attending “meetings”. These meetings include meetings of Team Leads plus Strow and Schultz.
No other employees are present at these meetings. Strow and Schultz discuss with the Team
Leads upcoming changes and projects that Novartis is planning to implement.
Mikol and Paynter, as well as other Team Leads will give Schultz their input as to whether
the proposed changes will have a substantial impact on Getronics operations, so that Schultz
might have to go back to Novartis to re-evaluate how much money it will take to perform the
contract. No human resources or personnel issues are discussed at these meetings. After the
meetings conclude, Paynter and Mikol will disseminate the information that they receive at the
meetings to the members of their teams.
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Mikol and Paynter, as well as other Team Leads and Corby, attend “problem management”
meetings with Novartis representatives and Schultz and Strow. These meetings address
infrastructure issues related to specific to projects, complaints by Novartis or Getronics, as well
as discussions about upcoming projects. On occasion, other employees are invited to attend
these meetings with Novartis personnel, because of particular expertise of such employees.
Non Team Lead employees Andersen, Simpson and Olmedo have attended such meetings, but
not a regular basis, as do the Team Leads.
Additionally, Paynter attends Engineer meetings with Novartis personnel, where moves are
discussed. At these meetings, Paynter is the only Getronics employee present.
The Employer also conducts what Schultz and Strow consider “management” meetings.
These meetings with Schultz, Strow, Stager and Llewellyn, and other officials, consist of
discussions of such various issues such as salaries, subcontract prices, human resources, and
updates of the contract with Novartis. Neither Paynter, Mikol nor other Team Leads are present
at these meetings.
Further, every morning at 9:30 A.M., an operational meeting with Novartis employees and
the Team Leads, during which the participants review the daily watch list and Novartis informs
the Getronics” Team Leads of the “hot items” that Novartis wants to make sure that these tickets
“do not” fall through the cracks. Mark Andersen, regularly attends these daily meetings, as
Mikol’s “front load person” for the Build Center. On occasion, Mikol will ask Rosario to attend, if
there are “support” issues to be discussed.
The record is clear that Mikol and Paynter the large majority of their time monitoring and
directing their Team members, and spend very little of their time performing the work done by
their members. Paynter is the Team Lead for 3 work groups, Network Group, Moves Team, and
the Deployment and Recovery Team. Paynter testified that on a day to day basis, “I’m just
going around between each of these groups”. Paynter is capable of performing all of the tasks
performed by his Team members, but he will do so only when someone is out, or the workload
is heavy, or if a problem needs to be escalated. Paynter estimated that he spends 10-20% of
his time working the field, in such situations.
Mikol oversees four types of work: Field Support Operations, Inventory, Logistics and Builds.
Mikol, like Paynter is capable of performing all of the tasks of his Team members, but only does
so when someone is out on vacation, or sick, or it there is a substantial increase in volume of
work. Both Paynter and Mikol will make the decision whether they should fill in for an absent
employee, or the volume of work necessitates that they perform work usually performed by their
Team members.
Employees Lamer and Napolitano testified that they considered their Team Leads (Paynter
and Mikol respectively) to be their supervisors.
B. ANALYSIS
Section 2(11) of the Act, 29 U.S.C. § 152(11), defines the term “supervisor” as:
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 to responsibly direct their, or to adjust their grievances, or to
effectively 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
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the use of independent judgment.
An individual need only possess one of these indicia of supervisory authority as long as the
exercise of such authority is carried out in the interest of the employer, and requires the use of
independent judgment. Arlington Masonry Supply, Inc., 339 NLRB 817, 818 (2003).
Significantly, it is not required that the individual have exercised any of the powers enumerated
in the statute; rather, it is the existence of the power that determines whether the individual is a
supervisor. Id. Further, the burden of proving that an individual is a statutory supervisor rests
on the party alleging such status. NLRB v. Kentucky River Community Care, 532 U.S. 706, 712
(2001).
Applying these principles to the facts of this case, I conclude that the Petitioner has met its
burden of proving that Paynter and Mikol possess supervisory authority within the meaning of
Section 2(11) of the Act. Specifically, I find that Paynter and Mikol exercise independent
judgment in effectively recommending employee hire and transfer.
In that regard, the evidence demonstrates that Paynter and Mikol interview applicants for
permanent employment with Getronics, as well as for transfers, and make recommendations to
higher management, which are generally followed. These recommendations include
recommendations that particular applicants be hired, as well as that applicants not be hired. It
is well established that an effective recommendation by a purported supervisor not to hire an
applicant is considered indicative of the authority to effectively recommend hire under Section
2(11) of the Act. Sheraton Universal, 350 NLRB 1114, 1118 (2007); USF Reddaway, 349 NLRB
329, 340 (2007); Queen Mary, 317 NLRB 1303 (1995); HS Lordships, 274 NLRB 1167, 1173
(1985); Berger Transfer & Storage, 253 NLRB 5, 10 (1980); enfd. 678 F.2d 679 (7th Cir. 1982),
Supplemented by 281 NLRB 1157 (1986).
Here both Paynter and Mikol testified to numerous examples, where they participated in the
interview process for hiring employees, and made recommendations which were generally
followed by Getronics. Mikol interviewed approximately 18 applicants for employment, and
recommended that Getronics hire approximately nine of these applicants, and not to hire the
other nine. Getronics followed Mikol’s recommendations, 7 or 8 times out of each group of
recommendations. This constitutes an effective recommendation. Donaldson Bros.,341 NLRB
958, 959 (2004) (Finds supervisory recommendations effective where it is followed 75% of the
time, citing Venture Industries, 327 NLRB 918, 919 (1999).
Further the evidence discloses several specific examples of effective recommendations to
hire or not to hire made by Paynter and Mikol. Thus both Mikol and Paynter participated in the
interview process, wherein Mark Andersen was hired seven years ago. There were three
applicants interviewed. After questioning the first two applicants, Mikol and Paynter both
recommended to Strow that they not be hired. Strow agreed without interviewing these
applicants separately. After interviewing Andersen, Paynter and Mikol recommended that he be
hired, Strow agreed, and Andersen was subsequently hired.
Similarly, both Paynter and Mikol interviewed Nicholas Battista, Andy Albertsen, and Daniel
Sullivan at different times for employment. They recommended to Strow that these individuals
be hired. Once again, Strow agreed, and these three applicants were hired as permanent
employees of Getronics.
Finally, about two years, Getronics announced an opening at its East Hanover site. Three
Getronics employees applied for this position, including Sullivan, who had previously transferred
to another Getronics location in Parsippany, New Jersey. Paynter along with Strow, conducted
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the interviews. After questioning the first applicants, (Otero and Rivera), Paynter recommended
to Strow that these two individuals not be selected for the position, because they did not have
the experience for the job. Strow agreed with both of Paynter’s recommendations, and they
proceeded to interview Sullivan. Paynter recommended to Strow that Sullivan be selected for
the vacant position, because Paynter had worked with Sullivan in the past, and that Sullivan had
the “skill set” to perform the job. Strow said okay, and Sullivan was transferred to the East
Hanover worksite. I note that although the authority to recommend transfer is set forth as a
separate category from hiring, in the statute, the Board generally treats transfer as part of the
hiring process. Fred Meyer Alaska, 334 NLRB 646, 648 (2001); Venture Industries, 327 NLRB
918, 919-920 (1999); CTI Alaska, 326 NLRB 1121 (1998).23
The Petitioner also relies on the evidence of Paynter’s involvement in the hiring of temporary
employees Chung and Pearson, about two years ago. Petitioner asserts that the “Board does
not appear to draw any distinction between an individual’s recommendation to hire or not hire
permanent employees and his or her recommendation to hire or not hire temporary employees
when deciding an individual’s supervisory status”. Price Copper, 271 NLRB 323 (1984); RB
Associates, 324 NLRB 874, 879 (1997). While Petitioner is technically correct in this assertion,
and the cases cited support its position, Petitioner overlooks a significant issue. That is that the
individuals who Paynter interviewed for positions as “temporary employees”, were not at the
time being interviewed for positions as employees of Getronics. Rather, they were employees
of an outside contractor, and not employees of the Employer. In such circumstances, it is well
established that an individual must exercise supervisory authority over employees of the
employer at issue, and not employees of another employer, in order to qualify as a supervisor
under Section 2(11) of the Act. Franklin Hospital Medical Center, 337 NLRB 826, 827 (2002);
Crenulated Co., 308 NLRB 1216 (1992); Fleet Transport Co., 196 NLRB 436, 438 Fn. 6 (1972);
Eureka Newspapers Inc., 154 NLRB 1181, 1185 (1965); Textile Workers of America, 139 NLRB
800, 802 (1962); Great Lakes Sugar Co., 92 NLRB 1408, 1409, 1410 (1951).
Therefore, while Paynter recommended the hire of employees Pearson and Chung they
were employees of the Agency, (an outside contractor), and not employees of Getronics. Thus,
Paynter’s role in the “hiring” of these individuals does not support a finding of supervisory status.
Franklin Home Health, supra; Fleet Transport, supra.
Petitioner further argues that Paynter played a role in the transformation of Chung and
Pearson to being “hired” by Getronics as permanent employees. In that regard, before deciding
whether to offer Chung and Pearson positions as permanent employees, Schultz asked Paynter
how these individuals (who were members of Paynter’s team), how they were doing. Paynter
informed Schultz that they were “doing fine”, which Petitioner argues represents, Paynter
“essentially recommending that Chung and Pearson be hired as permanent employees”. I
disagree. The fact that Schultz asked Paynter for his opinion of how these individuals were
performing, falls short of establishing that Paynter’s responses, constitute an effective
recommendations affecting job status. Northeast Nursing Home, 313 NLRB 491, 497-8 507
(1993). Paynter’s conduct is at best, a reporting function, that is not supervisory under the
statute. Chevron Shipping, 317 NLRB 379, 381 (1995). Notably, Schultz never asked Paynter
for a recommendation whether or not Chung or Pearson should be offered positions as
permanent employees. Accordingly, I reject Petitioner’s reliance on this conduct of Paynter, and
I do not rely on it in concluding that Paynter possessed and exercised the authority to effectively

23 In any event whether the authority to recommend transfer of employees is considered
separately or as part of the hiring process, it is clearly indicative of § 2(11) supervisory authority.
I so find and rely on this incident.
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recommend hire of employees.
In connection with that issue, the Employer makes several arguments in support of its
contention that Paynter and Mikol (as well as the other challenged voters) do not effectively
recommend hiring under Section 2)(11) of the Act.
Getronics initially argues that the evidence of the involvement of Paynter and Mikol in the
hiring process is not current, and since no permanent employee has been hired in the past 2½
years, Paynter and Mikol cannot be said to possess the authority to effectively recommend hire.
I cannot agree.
With respect to supervisory status, the rule is clearly established in Board precedent that
possession of authority consistent with any of the indicia of Section 2(11), not that authority, is
the evidentiary touchstone. Allstate Insurance Co., 332 NLRB 759, 760 (2000), citing Pepsi
Cola Co., 327 NLRB 1062 (1999).
While the absence of the exercise of that authority for a sustained and lengthy period can
raise questions as to whether the alleged supervisor does in fact possess the statutory
supervisory authority, it is not conclusive, and is just one fact to consider in assessing the
determinative issue of “possession” of such authority. Allstate Insurance, supra.
Here the facts establish, as detailed above, that both Paynter and Mikol participated in the
hiring process for permanent employees on numerous occasions in the past, and made
recommendations to higher management, which were routinely followed. It is correct as
Getronics contends, that no permanent employees have been hired by the Employer,24 for 2½
years, and therefore neither Paynter no Mikol have exercised the authority to recommend hire
for this period of time. However there is no evidence that Getronics has made a permanent
decision to no longer hire employees directly from the outside, (as opposed to hiring temporary
employees from a general contractor and converting then to permanent status). Nor did
Getronics inform Paynter or Mikol that they no longer posses the authority to recommend hiring.
Enclosure Corp., 225 NLLRB 629, 630 (1976). (Purported supervisors had not been told that
there was a change in his authority). Furthermore, within the 2½ year period, about 2 years
ago, an opening developed for a job, which was filled by transfer. Paynter was involved in the
transfer interview process, similar how he and Mikol participated in the hiring process in prior
years. Thus Paynter effectively recommended to Strow that the first two applicants not be
selected, and that the third (Sullivan) be offered the position. Strow agreed and Sullivan was
transferred to East Hanover to fill the vacant job. Since the transfer of employees was treated
similar to the hiring, concerning the interview process, and transfer is akin to hiring, I find this
evidence highly suggestive that Paynter, as well as Mikol, possess the authority to recommend
hire, notwithstanding the absence of any exercise of that authority for at least 2½ years.
Enclosure Corp., supra; see also Starwood Hotels, 350 NLRB 1114, 1118 (2007) (Possession
of authority to recommend hire, even in absence of any evidence of exercise of that authority).
I conclude therefore, that in the absence of any evidence that Getronics revoked the
authority of Paynter or Mikol to recommend hiring, or that Getronics had made a permanent
decision not to hire any more employees directly from the outside, that Paynter and Mikol
retained their authority to recommend hire, and that if and when Getronics decided to hire
employees directly, Mikol and Paynter would likely be involved in the process as they had been

24 Other than converting temporary employees, who were actually employees of a
contractor, to permanent status.
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in the past. I therefore reject Getronics’ contention that they no longer possess the authority to
recommend hiring.
The Employer also contends that the recommendations made by Paynter and Mikol were
not effective, under the statute, because the final decision was made by higher management
after they conducted an independent investigation. Ryder Truck Rental, 326 NLRB 1386, 1387-
1288 (1998).
Here the evidence discloses that although if Getronics intends to hire the applicant, higher
management, (usually Strow) conducts a phone interview, to discuss salary and benefits, this
phone interview can hardly be construed as an independent investigation. In fact it appears that
these interviews are merely following up on a decision previously made during the interviews
with Strow, Paynter and Mikol, wherein Paynter and Mikol recommended hire, and Strow
agreed. While Strow and Schultz insisted correctly that they make the final decision, and that it
is within their right to reject an applicant previously recommended by Mikol or Paynter, neither
Strow or Schultz pointed to any instances where the recommendation of Paynter or Mikol to hire
or transfer employees, was rejected. See, Donaldson Bros., supra, 341 NLRB at 959.
(Respondent failed to refute purported possession of hiring and firing indicia by showing any
instance n which Employer overruled recommendations of purported supervisors).
On the contrary, the record discloses that Getronics routinely and consistently followed the
recommendations of Paynter and Mikol to hire and transfer employees. Venture Industries,
supra. (followed supervisors recommendation to hire 80–90% of the time), USF Reddaway Inc.,
349 NLRB 329, 340 (2007) (Following recommendation of purported supervisor or hire
employees, sufficient to establish supervisory status, not withstanding that higher official had
final say in selection). Accord Mountaineer’s Park, Inc., 343 NLRB 1473, 1475-1476 (2004)
(Higher management routinely approves recommendations. “Supervisory status turns on the
extent to which his decision relies on the recommendation, the record shows that such reliance
is indeed weighty”. Id. at 1476).
Moreover, here the record discloses that in several instances, such as the interviews where
Andersen was selected to be hired, and Sullivan was selected to be transferred, the interviews
were conducted by Mikol and Paynter and Strow, and Mikol and or Paynter recommended that
the first two applicants interviewed for the positions be rejected. Strow accepted these
recommendations immediately, without any phone interview or any further investigation, and
they went on to interview the next applicant. As detailed above, the authority to recommend
against hiring can establish supervisory status, Sheraton Universal, supra; Berger Transfer,
supra; see also, H.S. Lordships, 274 NLRB 1167, 1173 (1985) (Supervisory status found where
bar manager’s recommendations not to hire are followed). I therefore reject the Employer’s
contention that the recommendations to hire and transfer made by Mikol and Paynter were not
effective under Section 2(11) of the Act; due to the fact that higher management makes the final
decision.
Finally, and must strenuously, Getronics argues that the recommendations made by Paynter
and Mikol were not “effective” recommendations to hire, because such as their role in the hiring
process was limited to an “assessment of an applicant’s technical ability to perform the work”.
Aardvark Post, 331 NLRB 320, 321 (2000); Hogan Mfg. Co., 305 NLRB 806, 807 (1991); The
Door, 297 NLRB 601, 602 (1990); Plumbers Local 195 (Jefferson Chemical Co., 237 NLRB
1099, 1102 (1978).
Once again I do not agree with the Employer’s position. I find the cases cited above to be
factually distinguishable, and not dispositive. I further conclude that based on subsequent
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Board and Supreme Court cases,25 the continued viability of Aardvark Post, supra, and its
progeny,26 is open to question.
Initially, I must observe that I am somewhat puzzled by the Board’s rationale in these cases.
It appears to me to be saying that the purported supervisor is not exercising independent
judgment in making a recommendation based on “technical abilities”, since the
“recommendation” is akin to simply reporting the results of a test. Thus in Aardvark Post, as
well as in Hogan Mfg., and Jefferson Chemical, the purported supervisor merely reported the
results of a test that the purported supervisor gave to the applicants. Indeed, the Board
emphasized in its opinion in Aardvark Post, that it was undisputed that Bartlett (the purported
supervisor) never made a recommendation to Kimes (the higher level decision maker) that an
applicant be hired or rejected. Rather Bartlett’s role was limited to testing each applicants
technical ability and reporting the results to Kimes. Further the Board emphasized that it was
the job of Kimes to determine if the applicant would “fit into” the Employer’s operation.
Here, the evidence discloses that Paynter and Mikol did not give the applicants any kind of
test, and or merely report the results of the test to higher management unlike the purported
supervisors in Aardvark Post; Hogan and Jefferson Chemical, Paynter and Mikol did make
specific recommendations to Strow, whether or not to hire or transfer applicants, which
recommendations were generally followed.
Further, I find that these recommendations encompassed more than merely assessing
technical abilities of the applicants. (Clearly this was a significant aspect of the process, but not
the only factor considered by Mikol and Paynter). Indeed Mikol testified without contradiction
that he and other leads give their opinions to Strow or Schultz of whether the applicant “fits the
bill or doesn’t”, and Paynter determines and tells Strow or Schultz if the applicant would be “a
good fit for what the job is going to be required of them.”
Additionally, after Mikol, Paynter and Strow interviewed Battista, both Paynter and Mikol
informed Strow that Battista was a “good fit” and that Getronics should hire him. Strow said
okay, and Battista was hired within a week. These statements by Paynter and Mikol are nearly
identical to the function relied upon by the Board in Aardvark Post, attributed to the deciding
official. (Whether the applicant would “fit into” the Employer’s operation). Furthermore Mikol
explained that he will assess if the applicant was being “brash”, and both Paynter and Mikol
assess whether the applicant was being honest in their resumes. These are not “technical”
questions.
Also, when Mikol and Paynter (along with Strow) interviewed Andersen, the first applicant
interviewed was very nervous during the interview. After that applicant left, Paynter and Mikol
recommended to Strow that this applicant not be hired, in part because he was very nervous
during the interview, and they felt that he could not take the pressure of the job. This is certainly
not a “technical” assessment by Mikol or Paynter.
When Albertsen was hired as an Inventory Coordinator, Paynter and Mikol interviewed him,
without the presence of Strow. This position did not require technical skill, since it needed only
the ability to understand part numbers. They asked Albertsen simple questions such as what is
a “hard drive”?, and thereafter recommended to Strow that he be hired because they thought

25 Oakwood Healthcare, 348 NLRB 686, 692-693 (2006), applying NLRB v. Kentucky River
Community Care, 532 U.S. 706, 1215. Ct 1861 (2001).
26 The Door, supra; Hogan Mfg., supra and Jefferson Chemical, supra.
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Albertsen “could do the job”.
In The Door, supra, the purported supervisor did not give a test to the applicant, but instead
interviewed the applicant and asked “about his experience in the laboratories and what he had
done in terms of the technical aspects of the lab, what he was capable of doing and that was
about it”. The evidence disclosed that the purported supervisor did recommend that this
individual be hired, and he was in fact hired. The Board viewed the purported supervisor’s
recommendation as “limited to whether a candidate had the technical ability to perform the work
of a lab technician”. As I have detailed above, Mikol and Paynter’s recommendations were not
so limited, since they considered other factors such as whether the applicant would be “a good
fit”, whether the applicant could stand the pressure of the job, or whether the applicant could
answer simple questions, so that he could understand parts numbers, in a job that did not
require technical skills.
Moreover, in The Door, supra, the Board also emphasized that the purported supervisor
was only one of a number of several individuals who interviewed the applicant. The Board
observed that “there is no evidence that Jalbuena was hired as a direct consequence of Hilfer’s
recommendation or that Hilfer’s recommendation regarding a specific candidate carried greater
weight than that of other interviewers or, indeed any weight at all”.
That conclusion cannot be made herein. Here the evidence is clear, as outlined above, that
the recommendations of both Paynter and Mikol to hire or not to hire or to transfer employees,
were routinely followed by Getronics, and given not only “great weight”, but frequently
conclusive weight in the Employer’s hiring and transfer decisions.
Accordingly, I find the cases cited by Getronics to be distinguishable, and conclude, once
again that Mikol and Paynter effectively recommended hire and transfer of employees, using
independent judgment, and based on this factor alone, are supervisors under Section 2(11) of
the Act. Queen Mary, supra; USF Reedway, supra; see also, Fred Meyer Alaska, 334 NLRB
646, 648-649 (2001) (Meat and seafood managers made effective recommendations to hire
“based on their own assessments of what skills are needed and whether the individuals they are
considering hiring have the appropriate skills or qualifications”. Id. at 649.)27
Although I have concluded above, that the facts in Aardvark Post, and its progeny are
sufficiently distinguishable, from the facts herein, I also believe that in view of the analysis and
reasoning in Oakwood Health Care, supra, that the continued viability of these cases, is in
considerable doubt. In Oakwood Health Care, supra, the Board was responding to the
Supreme Court’s rejection in Kentucky River of the Board’s definition of independent judgment
involving assignment and direction of work. The Court rejected the Board’s prior decisions
wherein it excluded the exercise of ordinary professional and technical judgment in directing
less skilled employees to deliver services. The Board in Oakland Health Care, consistent with
Kentucky River, “adopted an interpretation of independent judgment, that applies irrespective of
the Section 2(11) supervisory function implicated, and without regard to whether the judgment is
exercised using professional or technical expertise”. Id. at 642. Thus, while Oakwood Health
Care, supra, dealt with assignment and direction of work, the reasoning applies to all functions
in Section 2(11) of the Act, including the effective recommendation to hire. Indeed the Board
discussed the issue of recommending or hiring employees, by way of example. The Board

27 I note that in Fred Meyer Alaska, supra, two of the individuals found by the Board to be
supervisors, gave a block/cut test to the applicant, and then made a recommendation, which
was followed, to higher management, based in part on whether the applicant passed this test.
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observed, “Thus a registered nurse, when exercising his/her authority to recommend a person
for hire, may be called upon to assess the applicant’s experience, ability attitude and character
references, among other factors. If so, the nurse’s recommendations likely involve the exercise
of independent judgment”. Id. at 693. This definition in my view, would clearly encompass a
recommendation based on “technical” abilities of the applicant. The Supreme Court’s decision
in Kentucky River, supra supports this view. As the Court observed, “what supervisory
judgment worth exercising, one must wonder, does not rest on professional or technical skill or
experience”. Id. 532 U.S. at 714, 121 5.Ct. at 861. Interestingly, the Supreme Court criticized
the Board for using a different standard for assessing independent judgment in cases of
responsibility directing employees. The Court observed that it was unable to discover any
opinion of the Board, where it held that a supervisor’s judgment in hiring, disciplining or
promoting an employee ceased to be “independent judgment because it depended upon the
supervisors professional or technical experience. When an employee exercises one of these
functions with a judgment that possess a sufficient degree of independence, the Board
invariably finds supervisory status”. Id. at 532 U.S 714-18, 121 5 Ct. at 1868-69. It seems that
the Supreme Court may have overlooked Aardvark Post, and its progeny, where the Board
appears to have created another exception, where a recommendation to hire is based on
technical expertise or experience. I recognize that Aardvark Post, supra talks about “effective
recommendation”, rather than independent judgment, in finding a lack of supervisory status.
However, in my view these two issues are essentially the same in this context. In The Door,
supra, the Board found that the Petitioner had not carried the burden of proving that Hilfer
exercises independent judgment in effectively recommending hire of employees. 297 NLRB at
601. I find the Board’s further assertion therein rather startling, and in my view, inconsistent
with Oakland Health Care and Kentucky River. That is the statement that “Hilfer’s
recommendation was limited to whether a candidate had the technical ability to perform the
work of a lab technician”. In my opinion, anytime a purported supervisor makes a
recommendation to hire (or not hire) an applicant, he is making an assessment of whether the
applicant has the technical ability to perform the particular job. I also find the Board’s further
observation in Aardvark Post to be strained and also inconsistent with Oakwood and Kentucky
River, supra. The Board, citing Hogan Mfg, The Door and Jefferson Chemical, stated that it
“has consistently found that such an assessment of an applicant’s technical ability to perform
the required work does not constitute an effective recommendation”, 331 NLRB at 321.
I therefore agree with the Petitioner, that these cases, as well as the Employer’s position, are
flawed, inasmuch as semantics cannot detract from or obfuscate the fact that Mikol and Paynter
have the authority to effectively make hiring recommendations, using independent judgment,
and are supervisors with the meaning of Section 2(11) of the Act.
The Petitioner contends that in addition to possessing the authority to effectively
recommend hiring, Paynter and Mikol also possess several other indicia of supervisory authority
under Section 2(11) of the Act. They include the alleged authority to responsibility direct
employees, their participation in the evaluation process, their authority to recommend the
approval of vacation and time off requests and their alleged adjustment of grievances. The
Employer asserts that none of the evidence presented concerning these areas, supports the
supervisory status of Paynter or Mikol. I agree with the position of the Employer with respect to
all of these issues.
Petitioner asserts that Paynter and Mikol responsibly direct the work of their subordinates,
due to the evidence that they change and “prioritize” the work assignments of the employees on
their teams. American River Transportation, 347 NLRB 925, 927 (2006). In this regard, the
record discloses that both Paynter and Mikol will at times reassign their team members to stop
working on their current assignment, and concentrate on another job, due to instructions from
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Novartis, the presence of a VIP, or their assessment that a particular job needs to be done
immediately, or to balance workload of the team members.
The evidence also discloses that both Paynter and Mikol consider themselves responsible
for the work getting done by their team members, and Schultz conceded that Mikol and Paynter
(as well as other TS IV’s), have the responsibility that if they see an employee who is not doing
their job, goofing off, or coming in late, to speak to the employee about these problems, and to
tell him or her that they must do better in that particular area. The record also contained several
examples of Paynter and Mikol speaking to team members about various deficiencies in their
performance, including lateness, sleeping at their desk, being distracted, and using
inappropriate language.
Both sides correctly cite Oakwood Health Care, supra for the appropriate standard for
assessing whether the alleged supervisors ”responsibility direct” employees under 2(11) of the
Act. Thus, if a person has “men under him, and if that person decides what job shall be
undertaken next or who shall do it, that person is a supervisor provided that the direction is both
responsible and carried with independent judgment”. Id. at 691. The Board defined
“responsible” direction, as where the “person directing and performing the oversight of the
employee must be accountable for the performance of the task by the other, such that some
adverse consequence may befall, the one providing the oversight if the tasks performed by the
employee are not performed properly”. Id. at 692. “Thus to establish accountability for the
purposes of responsible direction, it must be shown that the employer delegated to the putative
supervisor the authority to take corrective action, if necessary. It must also be shown that there
is a prospect of adverse consequences for the putative supervisor if he/she does not take these
steps”. Id.
In sum in order to establish supervisory status, the Petitioner must show that the alleged
supervisors direct their subordinates using independent judgment, have authority to take
corrective action, if necessary, “and” that there is a prospect of adverse consequences for the
putative supervisor if they do not take these steps. It is clear that the Petitioner must establish
the existence of all of these elements, in order to establish supervisory status. Lynwood Manor,
350 NLRB 489, 490 (2007).
Here, I need not and do not decide whether Petitioner has established that Paynter or Mikol
exercised independent judgment in directing or “prioritizing” work of their subordinates, or
whether they had the authority to take corrective action, if necessary, if their directives are not
followed,28 since I conclude that Petitioner has failed to establish the third and equally
necessary element of responsible direction, that there is a prospect of adverse consequences
for Mikol or Paynter, if they did not take these steps.

28 I note that is questionable whether or not Petitioner has met its burden of establishing
either that they exercised independent judgment in directing employees or that they had the
authority to take corrective action. Thus the “prioritizing” relied on by Petitioner consisted mainly
of Paynter and Mikol changing assignments, due to instructions from Novartis, presence of a
VIP or to equalize workload. These types of directions or assignments are generally considered
routine and not the exercise of independent judgment. Croft Metals, 348 NLRB 717, 7211-722;
Oakwood Health Care, supra at 693.
It is further questionable whether they have the authority to take “corrective action”, if their
subordinates did not comply with their directions. The fact that Paynter and Mikol criticize
employees for various deficiencies in their performance, is not necessarily sufficient to establish
authority to correct. Oakwood Health Care, supra at 695.
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In this regard, the evidence relied upon by Petitioner, that Paynter and Mikol consider
themselves “responsible” for the work getting done by their team members, or that Schultz
admitted that they have the responsibility to speak to an employee and to improve concerning
deficiencies in said employees performance, is insufficient to meet Petitioner’s burden of
proving that Mikol or Paynter are held accountable for the consequences if their team members,
do not perform their work properly. Such evidence is purely conclusory, and does not establish
that prospect of any adverse consequences for the putative supervisors, for the failure of other
team members to follow their directions, Golden Crest Health Care Center, 348 NLRB 727, 731
(2006). Petitioner has presented no specific evidence that Mikol, Paynter (or any Team Leads
for that matter), may be disciplined, receive a poor performance rating, or suffer any adverse
consequences with respect to their terms and conditions of employment due to a failure of their
team members to perform their jobs. Lynwood Manor, supra at 490-491; Oakwood Manor
Health Care, supra at 695; Golden Crest, supra, nor has Petitioner presented any evidence that
a Team Lead has ever been informed by management that any such material consequences
might result from their performance in directing their team members. Golden Crest, supra at
731.
Accordingly, based on the foregoing analysis I find that the Petitioner has not established
that Paynter, Mikol (or any Team Lead) possesses the authority to responsibility direct
employees.
Petitioner also relies on Paynter and Mikol’s role in the evaluation process. Petitioner cites
the testimony that Mikol and Paynter do provide some input into the Evaluations (PMP’s),
prepared by management, and that Strow conceded that in his mind, the “PMP’s” do have
“some bearing” on the wage increases recommended for employees. Petitioner argues that this
evidence establishes a direct correlation between the evaluations and wage increases granted
to employees, and the supervisory status of Mikol and Paynter. Bayou Manor Health Center,
311 NLLRB 955 (1993).
However, in order to establish supervisory status on this basis, Petitioner must show that the
PMP’s lead directly to wage increases for any employees. Norton Health Care, 350 NLRB 648,
663 (2007). Petitioner adduced no evidence that any specific employee’s wage increase was
affected by the limited role of Paynter and Mikol29 in the PMP’s in their particular evaluations.
Strow’s vague admission that generally PMP’s, in his mind, have “some bearing”, on his views
as to wage increases is insufficient to establish a direct connection between the role of Paynter
and Mikol in the process, and wage increases of any employees. I note that Schultz and Strow
collaboratively decide wage increases, with Schultz having the final say. There is no evidence
that Schultz considers the PMP scores in computing wage increases, and in fact the record
reveals that according to Human Resources, PMP’s are not supposed to be used for wage
increases.
Accordingly, Petitioner has failed to show a direct connection between the role of either
Paynter or Mikol in the wage increase for any employee, and therefore their conduct in
connection with PMP’s does not support a finding of supervisory status. Norton Health, supra;
Williamette Industries, 336 NLRB 743, 749 (2001); Training School at Vineland, 332 NLRB

29 I note that neither Mikol nor Paynter made any final decisions on scores for the
evaluations, and that they merely assisted Schultz or Strow in their preparation, and years ago
made specific recommendations for scores. Recently when Schultz became more familiar with
the employees, Schultz would prepare the scores himself, and not even ask for input of Mikol or
Paynter.
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1412, 1419 (2000); Vencor Hospital Los Angeles, 328 NLRB 1139, 1140 (9994), Elmhurst
Extended Care, 329 NLRB 535, 536 (1999).30
Another primary indicia of supervisory authority under Section 2(11) of the Act, is the
authority to adjust grievances. Petitioner contends that the evidence supports the conclusion
that Paynter and Mikol possessed and exercised such authority. H.S. Lordships, supra at 1174.
Petitioner relies on Paynter’s general testimony that when his subordinates have a non-
technical problem with a co-worker they address these concerns with him. Paynter would speak
to the employee complained about, as well as the person making the complaint. Paynter would
either resolve the issue, or forward the matter to Schultz or Strow. Examples of issues that
Paynter resolved himself were personality clashes, or instances where employees were arguing
with each other. Instances where Paynter escalated the matter to Schultz or Strow included a
situation where one employee was complaining about the other not finishing their work, or
missing work, resulting in the complaining employee having to finish performing the work.
The Union also relies on the evidence that Rosario informed Mikol that Napolitano had used
inappropriate language in the work area, while Rosario was talking with a client. The client also
complained to Mikol about Napolitano’s language. Mikol took Napolitano into a private room
and informed him that the language that he had used on the phone was inappropriate and
unprofessional. In another instance, Napolitano approached Mikol and complained that he
believed that a co-worker had put something on his computer. Napolitano asked Mikol to talk to
the individual about the matter. The record does not reflect whether or not Mikol did so, but
instead Napolitano was contacted by Human Resources about his complaint.
I agree with the Employer that none of these instances, singly or collectively establish that
Paynter or Mikol adjust grievances within the meaning of Section 2(11) of the Act. The
evidence discloses that the conduct of Mikol and Paynter described above, reveals at best, that
they resolved minor disputes among employees concerning workload, personality conflicts or
“squabbles” between employees, which are not considered to be the “adjustment of grievances”
under Section 2(11) of the Act. Ken-Crest Services, 335 NLRB 777, 779 (2001); Illinois
Veterans Home, 323 NLLRB 890, 891 (1997); St. Francis Medical Center, 323 NLRB 1046,
1048 (1997); Riverchase Care Center,304 NLRB 861, 865 (1991); Ohio Masonic Home, 295
NLRB 390, 394 (1989).
Further to the extent that in some situations, Paynter decided to escalate some issues to
higher management, such escalation merely represents a reporting function not constituting the
exercise of supervisory authority. Lincoln Park Nursing, 318 NLRB 1160, 1162 (1995); Beverly
Enterprises, 275 NLRB 943, 946 (1985). (“Problems that LPN’s are unable to resolve informally
are reported to Director of Nursing to take action. The LPN’s have no more than a minor
reportorial role in these procedures, not amounting to making effective recommendations. This
facet is insufficient to elevate them to supervisory status”).
Petitioner also contends that several secondary examples indicia of supervisory authority
have been established. They include the authority to recommended approval of requests for
vacation, time off and leaving early, higher pay, attendance at management meetings, spending
time not doing unit work, and being perceived by co-workers as supervisors. I note that

30 Bayou Manor, supra, cited by Petitioner is clearly inapposite. There a direct correlation
between the scores in evaluations, prepared solely by the purported supervisors, and the merit
increases received by employees, was established.
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Petitioner appears to contend that the authority to recommend approval of vacations and time
off, is a primary indicia of supervisory status. H.S. Lordships, supra; Conner’s Super Store, 266
NLRB 309, 311 (1983). I disagree. Section 2(11) of the Act makes no mention of these
functions. The cases cited by Petitioner merely conclude that such power is “Indicative of
supervisory authority”, without specifying whether this authority is considered to be primary or
secondary. I conclude that these functions are secondary indica. In any event whether they are
considered primary or secondary, in my view, the conduct engaged in by Mikol and Paynter with
respect to vacations and time off is not demonstrative or supportive of their supervisory status.
While both Paynter and Mikol will “approve” vacation requests of some team members, by so
stating in E-Mails, in fact this “approval” is merely a notification to Strow, that Paynter and Mikol
recommend approval. However, the recommendation to approve is made solely based on
availability and scheduling, and which employee requests vacation first. Thus where two
employees request the same dates, Paynter or Mikol will tell the second employee that he
cannot take vacation at the time requested, unless he can convince the employee who
previously had their vacation approved first, to change his plans, and agrees to another date.
While Strow does routinely approve the “recommendations” of Paynter or Mikol for
vacations, I find that they did not exercise independent judgment in these recommendations,
since they were based solely on availability of the dates, and are routine and clerical in nature.
North Shore Weeklies, 317 NLRB 1128, 1131 (1995); Los Angeles Water and Power
Association, 340 NLRB 1232, 1234 (2003); Fleming COS, 330 NLRB 277, 280 (1999); Dico Tire
Inc., 330 NLRB 1252, 1253 (2000).
The record also demonstrates that employees notify Mikol or Paynter that they will be out
sick or need a personal day. In such cases Paynter or Mikol will routinely grant these requests,
and they will ultimately be approved by Strow. This evidence established merely that the
employees are merely providing notification that they will not be in, and does not show that
Paynter or Mikol have the authority to grant or deny time off. Los Angeles Water, supra;
Fleming COS, supra at 280-281.
Petitioner also relies as noted on the evidence that Paynter and Mikol have substantially
higher salaries than their team members, are considered to be supervisors by their team
members, attend management meetings, and regularly perform different work from their
subordinates.
These secondary indicia of supervisory status can be relied on here, since I have found
above, that Paynter and Mikol possessed the authority to effectively recommend hire of
employees, one of the primary indicia of supervisory status. I find it appropriate, and I do rely
on these secondary indicia as described above, as supportive of my conclusions that they are
supervisors under Section 2(11) of the Act. Monotech of Mississippi v. NLRB, 876 F.2d 514,
517 (5th Cir. 1989); Mountaineer Park, 343 NLRB 1473, 1476 (204) (Higher wages); USF
Reddaway, supra, 349 NLRB 341 (Employees regarded Leads as supervisors); Sheraton
Universal, supra, 350 NLRB at 1115 (Higher pay and attendance at management meetings);
HS Lordships, supra, 274 NLRB at 1174 (Attended management meetings, higher salary,
employees believed individual to be supervisor, and he performed different work that other
employees); Berger Transfer, supra, 253 NLRB at 10 (Attendance at management meetings).
The Employer contends that the “management” meetings attended by Paynter and Mikol,
should not be construed as “management meetings” indicative of supervisory status. It argues
that these meetings involve operational issues only, and do not involve personnel issues, and
the only “management meetings” held are those involving Schultz, Strow, Llewellyn, Stager and
others, but do not include Paynter, Mikol or any Team Lead. I disagree.
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Here Paynter and Mikol attend production meetings, meetings with clients and Team Leads
meetings that for the most part are not attend by unit employees. They discuss production
issues, problems that the clients have, and changes in upcoming projects. Paynter and Mikol
will give management their input as to whether the proposed changes will have a substantial
impact on Getronics operations, so that the Employer might have to go back to Novartis to re-
evaluate how much money it will take to perform the contract. After the Team Lead meetings,
Paynter and Mikol will disseminate the information that they receive at the meetings to their
team members. I conclude that these meetings, attended by Paynter and Mikol are
“management meetings”, under Board precedent, and supportive of supervisory status.
McClatchy Newspapers, 307 NLRB 773, 778 (1992); Memphis Truck & Trailer, 284 NLRB 900,
910 fn. 15 (1987); Turnbill Cone & Baking Co., 271 NLRB 1320, 1353 (1984); Formco Inc., 245
NLRB 127, 128 (1979); Associated Hospitals of East Bay, 237 NLRB 1473 (1978).31
I therefore find it appropriate to consider the management meetings attended by Mikol and
Paynter, as indicative of their status as a supervisor under Section 2(11) of the act.
Having found that Paynter and Mikol are supervisors under Section 2(11) of the Act, I shall
recommend that the challenges to their ballots be sustained.
Petitioner also challenged the ballots of Skorka, Gil and Corby on the same grounds as that
of Paynter and Mikol. However the evidence presented concerning Gil, Skorka and Corby falls
far short of establishing their supervisory status. I note that unlike Paynter and Mikol, Petitioner
did not call Gil, Skorka or Corby as witnesses, and the evidence concerning their authority in the
record is minimal and conclusionary. Although Callahan was interviewed by Corby along with
Strow when Callahan was hired in 1999, and Corby days later notified Callahan that he was
being offered a job, that evidence hardly suffices to establish that Corby recommended,
effectively or otherwise, that Callahan be hired. Thus there is no evidence that Callahan made
any recommendation whatsoever to Strow concerning Callahan’s hire. The fact that Corby
informed Callahan that he was going to be offered a job, proves nothing more than Corby was
relaying a decision made by management.
While there is testimony from Paynter and Mikol, as well as from Strow and Schultz that Gil,
Skorka and Corby attend interviews and assess the “technical” ability of the applicants, but
unlike Paynter and Mikol, there is no probative evidence that Gil, Skorka or Corby ever made
specific recommendations to hire or not to hire any applicants. I also note that the evidence
does not establish that either Corby, Gil or Skorka were present during any of the specific
interviews testified to by Paynter and Mikol, where I found above that Paynter and Mikol made
effective recommendations to hire or not to hire applicants for employment with Getronics.32
Therefore there is insufficient evidence that Corby, Gil or Skorka effectively recommend hire
or transfer of employees, or that they possessed the authority to engage in any of the other
indica of supervisory authority in Section 2(11) of the Act.

31 Notably, the subject of prices for the contractor are discussed at both the Team Lead
meetings, as well as at the admitted “management meetings”, attended by high management
officials.
32 Applicants Mark Andersen, George Le Chek, Nicholas Battista, Andy Albertsen, Daniel
Sullivan (twice, once as an applicant for hire and once for an applicant for transfer), Evelyn
Otero, Ross Rivera, and Isabelle Niven.
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Although there is some record evidence that Corby, Gil and Skorka possessed some
secondary indicia of supervisory status such as higher pay, and attendance at management
meetings, such indicia cannot establish supervisory status, unless the disputed supervisor
posses at least one of the types of authority listed in Section 2(11) of the Act. American River
Transportation, supra, 347 NLRB at 949; Stanford New York, 344 NLRB 558, 563 (2005); Valair
Contractors, 341 NLRB 673, 674 fn.8 (2004); J.C. Brook Copy, 314 NLRB 157, 159 (1994).
Accordingly, I conclude that Petitioner has not established that Corby, Gil or Skorka are
supervisors under Section 2(11) of the Act and that the challenges to their ballots should be
overruled.
3. THE OBJECTIONS
The Objections filed by the Petitioner are set forth below.
1. Board Agent Bernard Mintz arrived forty-five (45) minutes late for the
election, thereby causing the election to start fifteen (15) minutes late at 1:15 and
potentially disenfranchising unit members. Local 1032 Staff Representative
Migdalia Santiago can provide direct testimony concerning Mr. Mintz’s tardiness.
2. On June 23, 2008, the employer committed objectionable conduct by
distributing a handout to all unit employees just four days before the election that
announced the sale of Getronics to CompuCom. The sale has been pending for
months, and is neither complete nor official as the finalization of the sale is still
contingent upon regulatory review and approval. The employer’s conduct has
coerced and interfered with the rights guaranteed to employees under Section 7
to freely choose a labor organization as their collective bargaining representative.
Russell Callahan can provide direct testimony on his receipt of the handout and
its contents.
3. On June 25, 2008, the employer committed objectionable conduct by
holding a joint meeting with representatives from CompuCom and all unit
employees discussing the perils of voting for Local 1032 in the election
scheduled just two days from a date of the meeting. The employer’s conduct has
threatened, coerced and interfered with the rights guaranteed to employees
under Section 7 to freely choose a labor organization as their collective
bargaining representative. Russell Callahan can provide direct testimony
concerning the specifics of the meeting and what was discussed.
4. Prior to or during this June 25, 2008 meeting, Charles Corby, who served
as the employer’s observer during the election, threatened unit employees that
he would disclose their support for Local 1032 to CompuCom, the company that
bought Getronics, and the new potential employer of the unit employees. The
employer’s conduct has threatened, coerced and interfered with the rights
guaranteed to employees under Section 7 to freely choose a labor organization
as their collective bargaining representative. Russell Callahan can provide direct
testimony on his receipt of this threat.
5. On June 27, 2008, the day of the election, the employer committed
objectionable conduct by providing certain employees with a pay raise. This pay
raise was unannounced, unexpected, and not received by all employees. The
employer’s conduct has coerced and interfered with the rights guaranteed to
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employees under Section 7 to freely choose a labor organization as their
collective bargaining representative. Robert Kwiatkowski can provide direct
testimony on his receipt of the pay raise on June 27, 2008.
6. On June 27, 2008. after the conclusion of the election, Charles Corby
reiterated his threat to unit employees that he would disclose their support for
Local 1032 to CompuCom. The employer’s conduct has threatened, coerced
and interfered with the rights guaranteed to employees under Section 7 to freely
choose a labor organization as their collective bargaining representative. Mark
Andersen and William Napolitano can provide direct testimony of their receipt of
this threat by Mr. Corby.33
7. By failing to post notices of the election prior to the date of the election,
the employer has committed objectionable conduct.
OBJECTION NO. 1
The election on June 27, 2008 was scheduled to be held from 1:00 PM to 3:00 PM. The
Board Agent, Bernard Mintz, arrived at the site at 1:15 PM, at which time, the election started.
The polls remained open until the scheduled 3:00 PM closing time.
The Excelsior list contained 30 names. Twenty nine of these employees voted. The one
employee who did not vote, Manny Rosario was on vacation, and in the Dominican Republic at
the time.
In order to find late opening of the polls to be objectionable, the Board requires a finding that
the late arrival of the Board agent caused or may have caused, eligible voters to be
disenfranchised. Jim Kraut Chevrolet, 240 NLRB 960 (1979); Grant’s Home Furnishing, 229
NLRB 1305, 1306 fn. 9 (1977).
Here the evidence establishes that all but one eligible voter voted in the election, and the
one eligible voter who did not vote, was out of the country, on vacation. In these circumstances,
Petitioner has not shown that the late opening of the polls, caused or may have caused the
disenfranchisement of any eligible voters. In fact to the contrary, the evidence demonstrates
that no eligible voter was disenfranchised, since the only voter who did not vote was out of the
country on the date of the election, and would not have voted, even if the polls were opened on
time.
Therefore this objection has no merit, and I shall recommend that it be dismissed. The
Smith Co., 192 NLRB 1098, 1102 (1971) (Election not set aside, where of the only two eligible
voters who did not vote, one was on leave of absence and the other was absent because of
illness); Jobbers Meat Packing Co., 252 NLRB 41 (1980); Jim Kraut Chevrolet, supra.
OBJECTIONS NOS. 2 AND 3
On June 23, 2008, Getronics distributed to all its employees in North America, including its
employees at the three locations involved in the election, a memorandum announcing that
Getronics has agreed to sell its North American operations to CompuCom, another IT
outsourcing company. The memo reflects that the sale will result in a “transition phase” to

33 As noted above the Director approved the Union’s request to withdraw Objection #6.
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explore the details of how the combined entities will operate, which was expected to take
approximately 60 days.
On June 25, 2008, all Getronics’ employees at the Novartis sites were invited to attend a
meeting to discuss the sale. Gary Cawthorne, Getronics’ President of the Americas, explained
that as a result of the partnership between CompuCom and Getronics, CompuCom would run
the North Americas. Cawthorne added that it was an exciting challenge, and that the
combination would result in the Number 3 IT company in the world.
There were several representatives from CompuCom present at the meeting, including its
Vice President of Sales and Vice President of Human Resources. These individuals talked
about what CompuCom does, what they were getting into by partnering with Getronics, and that
CompuCom was excited about the transaction.
Several questions were asked by employees, including what would happen with medical
benefits. The CompuCom representative answered that the medical benefits would be the
same, and that most areas would also be the same, but they would not know about any possible
changes until after the transition was completed, which was estimated to be the end of August.
Elliot Oxenstein, a bargaining unit employee, asked CompuCom’s HR representative if he
was aware of the fact that there was going to be a union election on Friday, June 27. The HR
representative replied that he was aware of it, and that was part of the reason why CompuCom
was at the meeting, to introduce itself to Getronics employees and let them know what
CompuCom is like, and how it treats its employees. Oxenstein asked the CompuCom
representative what his thoughts were about the election. The HR rep replied that “we don’t
have Unions at CompuCom, so I don’t know anything about it”. He added that CompuCom
doesn’t need Unions because their employees were happy.
Neither Cawthorne, nor any representative from Getronics made any comments about the
Union or the election at this meeting.
Wayne Ogg, Getronics’ Vice President of Human Resources testified concerning the details
of the sale and the timing of the announcement.
This testimony which is uncontradicted, and corroborated by documentary evidence
established the following: Negotiations between CompuCom and Getronics concerning the
proposed acquisition began in August of 2007. These discussions involved only a select
number of high level senior people from the two companies, and were highly confidential. No
manager at the Novartis site participated in these discussions, and no Getronics manager at the
Novartis site was made aware of the potential acquisition. According to the securities law in the
Netherlands,34 following the execution of a purchase and sale Agreement, Getronics was
required to announce the acquisition either after the close or before the opening of the
Netherlands Stock Exchange. On June 19, 2008, Getronics and CompuCom executed the
purchase and sale Agreement.
Beginning in April 2008, discussions began between representatives of CompuCom and
Getronics concerning how and when the public, customers and employees would be informed
about the acquisition. Various documents and drafts were prepared, circulated and revised,
resulting in a final decision documented in a communication plan and timeline, which was

34 The Netherlands as noted above, is the home of Getronics, Inc. parent company.
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implemented. This timeline was followed, and it included the memo sent to all North American
employees by Cawthorne on June 23, 2008. The plan also included notifying the top 10
customers on the day the agreement was signed (June 20), so to insure that they would not
cancel their contracts. The next available date, to announce the sale to the public, in
accordance with Netherlands’ Securities and Exchange rules was Monday, June 23, 2008,
which was the date selected.
Thus before the opening of the Netherlands stock exchange on June 23, 2008. Getronics
issued a global press release announcing the sale. Getronics’ CEO sent a letter via E-Mail to all
Getronics employees worldwide announcing the acquisition, and Cawthorne sent a similar letter
to all of Getronics’s North American employees.
Napolitano testified when he found out about the sale in the letter from Cawthorne, it made
him “curious” about CompuCom and whom he would be working for. After the meeting,
Napolitano further testified that the sale and the comments made at the meeting, made him
think about what he wanted to do as far as the election was concerned.
Petitioner argues that the announcement of the sale should be construed as a “benefit”, and
the standards of Star Inc., 337 NLRB 962 and Mercy Hospital, 338 NLRB 545 (2002) be
applied. Thus, both the granting of or timing of benefits are governed by the same standards.
“The Board will infer that an announcement or grant benefits during the critical period is a
coercive, but the employer may rebut the inference be establishing an explanation other than
the pending election for the timing or bestowal of the benefit”. Star, supra at 962; Mercy
Hospital, supra at 545.
Petitioner argues that in applying these principles to the instant case, that Getronics has not
met its burden of proof in this regard. Petitioner asserts that the timing of the announcement,
(just four days before the election), coupled with the “coercive” comments made by officials of
CompuCom at the June 25, 2008 meeting, just two days before the election, establish that the
employees “were forced to ponder what impact their vote for CWA would have on their job
status for their soon-to-be new employer. The addition of this new element to the employees
thought process mere days before the election was coercive”. Petitioner argues that its position
is supported by Napolitano’s testimony that the announcement of the sale, plus the comments
made at the meeting by CompuCom officials made him think about how he was going to vote in
the representation election. I do not agree.
Initially, I note that Petitioner’s reliance on Napolitano’s subjective reaction to the sale and or
the comments made at the meeting are misplaced. It is well settled that the subjective reactions
of employees is irrelevant in assessing objectionable conduct. Lamar Advertising, 340 NLRB
979, 981 fn.13 (2003); Taylor Wharton Division, 336 NLRB 157, 158 fn.7 (2001); Hopkins
Nursing Care Center, 309 NLRB 952 (1992); Emerson Electric, 247 NLRB 1365, 1370 (1980),
enfd. 649 F.2d 589 (8th Cir. (1981).
The appropriate standard for evaluating conduct of a party is whether it has a “reasonable
tendency to interfere with the employees freedom of choice”. Cambridge Tool, 316 NLRB 716
(1995). Where the alleged conduct is committed by a third party, an election will be set aside,
only if conduct is so aggravated that it creates a general atmosphere of fear and reprisal
rendering a free election impossible. Lamar Advertising, supra; Cal-West Periodicals, 330
NLRB 599, 600 (2000).
Here the comments were made by CompuCom representatives, who are third parties in this
proceeding. Therefore the comments made by the CompuCom representative that “we don’t
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have Unions, I don’t know anything about it”, and that CompuCom “does not need Unions
because their employees were happy”, must be evaluated under the more stringent third party
standard. Clearly, these comments are not so aggravated that they “create a general
atmosphere of fear and reprisal rendering a free election impossible”.
Further, even if one were to argue that the party standard should be applied here, since
CompuCom had announced that it had agreed to acquire Getronics, the statements made were
not coercive. “It is well settled that an employer is free to communicate to his employees any of
his general views about unionism or any of his specific views about a particular union, so long
as the communications do not contain a threat or reprisal or force or promise of benefit”.
Manhattan Crowne Plaza, 341 NLRB 619 (2004), citing NLRB v. Gissel Packing Co., 395 U.S.
575, 618 (1964). The comments made by the CompuCom representatives detailed above
cannot be construed as a threat of reprisal, and is therefore neither coercive nor objectionable.
As far as the timing of the announcement is concerned, I find the evidence submitted by the
Employer more than adequately explained its decision, and established that the timing was
based on legitimate business reasons, totally unrelated to the Union election. Onan Corp., 338
NLRB 913, 914-915 (2003); Adams Super Markets, 274 NLRB 1334, 1335 (1985); American
Sunroof Co, 248 NLRB 748 (1980) modified on other grounds 667 F.2d 20 (6th Cir. 1981).
The evidence established that CompuCom and Novartis negotiated their agreement over a
long period of time, which included a timeline and how and when to notify employees, clients
and the public. The parties complied with that timeline, which included complying with securities
laws of the Netherlands, the home office of Getronics’ parent company. This procedure resulted
in the notification to the employees on June 23, 2008. The fact that this date was four days
before the election is coincidental. The Getronics employees at the Novartis sites found out
about the acquisition in the exact same way and at the exact same time as did all other
Getronics employees. I agree with the Employer, that the fact that 30 employees, out of 3500
North American employees and 10,000 worldwide employees, would be voting in a Union
election had absolutely no bearing on the sale of a billion dollar company to another billion dollar
company or on the timing of the announcement of the sale.
Accordingly, I recommend that the Objections 2 and 3 be overruled.
OBJECTION NO. 4
On June 27, 2008 the election was held, and as noted above, began at 1:00 PM. In the
morning of that same day. Strow sent E-Mails to Russell Callahan, Michael Nah, Donald Nwobi,
Robert Kwiatowski, and Skorka, inviting them to meet with Strow. Skorka, Nah, Nwobi and
Kwiatowski accepted Strow’s invitation to meet with him that morning. At these meetings, which
all occurred before the election began, Strow notified the employees that they would be
receiving a pay raises or bonus, effective June 16, 2008, but it would appear in their paychecks
on June 30, 2008.35 Callahan who did not accept Strow’s invitation to meet with him on June
27, 2008, received his raise also on June 30, 2008, of $1,850.00. Thus Callahan was not aware
of his raise until after the election.
Strow furnished extensive testimony, in part corroborated by Ogg, concerning the
Employer’s process for granting wage increases and bonuses, and how the wage increases and

35 Skorka received a bonus of $1,500. Kwiatowski, Nah and Nwobi received wage
increases between $1,550 and $2,500.
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bonuses of June of 2008 were effectuated. This testimony establishes there is no policy of
automatic wage increases for employees. Rather the Employer grants merit increases to
employees at various “focal points” during the year. The practice has been that these focal
points are either three or four times a year. The focal points are June, September and
December, and sometimes March.
The procedure is in January or February, local management decides based on the budget,
and their assessment of its employees, what increases to recommend for the year’s focal
points. They consider various factors in their decision, including seniority, the last time the
employee received a raise, as well as the work performance of the employees. A
recommendation is then prepared by local management, and forwarded to the North American
main office in Massachusetts for approval. Generally after several months, the main office will
send its approval (or disapproval) to the local site. The approvals are generally sent piecemeal,
i.e. about a month prior to the focal point that the increases are to be effective. Local
management must then confirm its approval (or disapproval), and if it continues to approve, the
increases are effectuated, usually in the last payroll period of the month of the focal point. (i.e.
March, June, September or December).
In 2008, this policy was followed, and Strow and Schultz decided upon local management’s
recommendation for increases for 2008. On February 5, 2008, Cawthorne sent a memo, stating
that for 2008, the focal points would be June, September and December, for increases. Schultz
and Strow recommended the increases, eventually approved, for the five employees.
Although approval by the main office generally takes 2-3 months, in 2008 for reasons
unexplained in the record, it took longer. In fact Strow asked Schultz if he had heard anything
about the increases, and Schultz replied that he had not.
Finally, on May 28, 2008, Strow received E-Mails from Bill Walters at the main office,
informing him that the wage increases for Kwiatowski, Callahan, Nwobi and Nah had been
approved. The E-Mail asked Strow to send and E-Mail back, indicating his approval to move
forward with the increases, which would be effective June 16, 2008. The E-Mails to Strow
contain the following language. “If you have approved this transaction without deviating from
the information below you may communicate the increase to the employee”.
On June 3, 2008, Strow received an E-Mail from HR representative Renee Hemming,
approving the recommendation for a bonus to Skorka. This document also states that Strow
“may” communicate the bonus to Skorka, if Strow approved the transaction.
According to Strow, his practice during the six or seven years that he has been involved in
wage increases, has always been inform employees of their increases one or two days before
the employees would actually receive the raise in their pay.36 Strow further testified that he
followed this normal practice in 2008, sending E-Mails to all five employees requesting a
meeting the morning of June 27, 2008, (a Friday) which was one working day, prior to the day,
(June 30, 2008) where employees would receive their increases in their pay. As related above,
Callahan did not respond to the E-Mail and did not attend the meeting. Thus he was not
informed about his increase on June 27, 2008, and was unaware of it, until he received it on
June 30, 2008.

36 I note due to the Employer’s payroll system, this date would be two weeks after the
effective date of the increases.
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The record also reflects that on May 8, 2006, Ogg met with Getronics’ employees at the
Novartis sites, to address various concerns that they had with several issues, including health
insurance, and salary increases. Ogg sent a memo to Getronics employees at Novartis dated
May 31, 2006, summarizing what he had said at the meeting, as well as some information,
addressing the concerns expressed at the meeting. This memo reads as follows:
I wanted to touch base and update you on the actions the Company has taken to
address some of the concerns you shared with me at our meeting on May 8,
2006.
In our meeting, several employees expressed discontent about experiences they
had with Getronics’ health insurance vendors. In particular, it is my
understanding that some employees have had difficulties resulting from the
change in our medical insurance vendor from United Healthcare to Blue Cross
Blue Shield.
In order to address your specific issues, I dispatched Stephanie Fields of Human
Resources to the Novartis site to intake your concerns in a more private forum.
Ms Fields announced her visit to the Novartis office in advance and unfortunately
few employees availed themselves of the opportunity to meet with her. In
addition, Ms. Fields and Richard Hill of Human Resources are reaching out to
employees via telephone calls, in an effort to resolve any lingering issues you
may be experiencing. We are serious about resolving any remaining health care
issues you have. If you have not yet spoken with Ms. Fields or Mr. Hill, I
encourage you to contact them.
Getronics regrets that its employees have had problems with the transition from
United Healthcare to Blue Cross Blue Shield, and the current service provided by
Blue Cross Blue Shield (in particular, issues surrounding prescriptions). Please
know that Getronics is committed to taking steps to try to resolve your concerns
and to prevent future difficulties. To this end we have met with Blue Cross Blue
Shield about the kind of issues you discussed with me on May 8th. They have
undertaken to re-train the help desk analysts and they are reviewing the taped
call logs to determine other areas where further training or communication may
be required.
I would also like to take this opportunity to address the concerns you shared
regarding salary increases. As I previously explained to you, the 2006 salary
plan is in progress. I have reviewed the data and would like to share the
following with you.
In building the salary plan, Getronics’ goal is to compensate employees at or
close to market rates taking into account other factors, including what the
Company can afford, an employee’s individual job performance and the number
of months since the employee’s last salary increase.
Although Getronics is not allowed to make any promises to you while employees
are exercising their right to organize, we are permitted to continue programs and
practices that are consistent with “normal business course” and that were in
progress prior to our awareness of any organizing activities. As you were told
during my meeting with you on May 8, 2006, a salary plan process has been
underway since early March.
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Under the Company’s salary plan, employees hired prior to October 1, 2005 are
eligible to receive salary increase or a bonus payment. The salary budget is
dictated in large part by the revenue generated from Getronics’ service contract
with Novartis. And, as we have explained to you in the past, the price that our
clients are willing to pay for our services continues to decline. Although we must
work within the difficult economic constraints that are driven by existing market
conditions, it is important to the Company to reward employees financially, when
feasible, for exceptional work.
Whether an employee is eligible for a salary increase and the amount of any
increase depends upon an individual’s job performance and his/her contribution
to the business objectives of Getronics’ North American Operations. Each
employee’s job performance should be reviewed formally by the employee’s
manager on an annual basis on or near the employee’s anniversary date. During
this review process, employees should have the opportunity to discuss with their
manager their job performance over the prior 12-month period as well as goals
and areas for improvement for the upcoming year.
Salary increases for eligible employees go into effect on one of three focal point
dates throughout this year. The focal point dates in 2006 are in June, September
and December. The focal point date on which an eligible employee would
receive a salary increase is determined by the employee’s manager and is based
on the budget.
Managers will inform employees shortly if they are eligible to receive a salary
increase this year based upon their job performance and the focal point date on
which any such salary increase will take effect.
Finally, I would like to take this opportunity to remind you that all Getronics
employees are free to access the Getronics Virtual University (GVU). The GVU
is an extraordinary resource with training courses on a multitude of topics. It is
my understanding that approximately half of this group has taken advantage of
the GVU. I encourage all of you to discover this excellent resource.
Thank you and I look forward to continue working with you.
Ogg testified concerning his statement in the letter that “managers will inform employees
shortly if they are eligible to receive salary in arrears this year based upon their job performance
and the focal point date on which any such salary increases take effect”. Ogg does not know
whether Strow or local management complied with this statement of his in this letter. No
documentatary evidence was submitted by anyone as to precisely when increases were granted
in 2006, or when employees were so informed. Ogg testified that there is no company policy in
effect as to when or how local managers inform their employees about the increases. The
decision is left to local management. According to Ogg, some managers, as Strow testified is
his practice, will not notify employees until a day or two before the increase is received and
others will tell employees that the manager had recommended them for an increase at particular
focal points, and their receipt of this increase is dependent on the budget.
Strow, as noted insisted that he has never deviated from his practice of informing
employees of their increases, one or two days before they are to receive it. However, Strow
could not recall who received raises in December of 2007, or precisely when he notified them of
the December increases. However, Strow again was certain that he notified such employees at
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the end of the pay period when the raise was going to appear.
The record does disclose some prior E-Mails, sent on November 27, 2007 from Walters to
Schultz, concerning raises to be granted in the December 2007 focal point. These raises were
to be effective on December 10, 2007 or December 6, 2007. These documents reflected raises
for Andrew Albertsen, Corby, Gil, Mikol, and Paynter.
The proper analysis of this objection, is similar to the analysis of the prior objection,
concerning the announcement of the sale. Since the wage increases were granted on June 16,
2008, and announced to employees on June 27, 2008, all within the critical period, the Board
will infer that the grant and the timing of the benefit is coercive, but the employer may rebut the
inference by establishing an explanation other than the pending election for timing of the
announcement or bestowal of the benefits. Mercy Hospital, supra; Star Inc., supra.
I agree with the Employer that it has submitted sufficient credible evidence to rebut the
inference of illegality, and has established a credible explanation other than the pending election
for the timing of the announcement, as well as the bestowal of the benefits.
Petitioner makes no assertion that the grant of the benefits are unlawful, since it is clear that
they were granted pursuant to Getronics normal policy of increases at the end of various focal
points. I therefore find that the grant of the benefits was not objectionable.
Petitioner does contest however, the timing of the announcement, contending Getronics’
decision to notify employees of their raises and bonus, on the morning of the election, was
calculated to influence the results of the election, and was coercive. Petitioner argues that
Strow’s self serving testimony, unsupported by any documentary evidence, is insufficient to
meet the Employer’s burden of establishing a reason other than the pending election for the
timing of the announcement. Petitioner notes that Strow was unable to recall any specifics of
which employees received increases in 2007, or when he notified them of such increases, as
well as Ogg’s May 31, 2006 memo which states that managers will inform employees shortly if
they are eligible to receive increases, and the focal date on which any such salary increase will
take effect.
However, I found Strow’s testimony in this area to be credible, and at least partially
supported by the testimony of Ogg. I found Strow generally to be candid and believable in his
responses, and he impressed me as someone who was attempting to truthfully recount the facts
that as he recalls them, rather than tailoring his testimony to what he believed would be helpful
to the Employer’s position. I note his admission that the PMP’s have ”some bearing” in his mind
on his assessment of what wage increases to recommend for employees, even though that
admission was clearly and obviously contrary to the Employer’s position on that issue, as well
as on the supervisory status of Paynter, Mikol and the other team leaders.
Further, I do not find it significant that Strow was unable to recall which employees received
raises in 2007, or precisely when he spoke to them about their increases. Strow did insist,
credibly in my view, that he followed his normal practice of notifying employees one or two days
before their increases would appear in their paychecks.
I also place little reliance on Ogg’s May 31, 2006 memo. While that memo did state that
managers will (emphasis supplied) notify employees shortly of their increases, Ogg did not and
does not know whether that request by him was complied with by Strow. Further Ogg partially
corroborated Strow, by asserting that to his knowledge, there are other managers, at Getronics,
who as Strow testified do not notify their employees of wage increases until shortly before the
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date of receipt.
I also emphasize that Petitioner introduced no evidence contradicting Strow’s testimony of
his “normal practice”. Petitioner called several witnesses, and adduced no testimony or
evidence, that disputed Strow’s testimony in this regard. Notably, Petitioner called Paynter and
Mikol as witnesses, and the evidence discloses that they both received wage increases in 2007.
Yet Petitioner did not even ask these witnesses when or how they were notified on these
increases. Thus Strow’s testimony stands uncontradicted, and I believe it to be credible, and
sufficient to meet the Employer’s burden of rebutting the inference of coerciveness of the timing
of the announcement.
Finally, I find it likely, that if the Employer was motivated by an intent to influence the
election in the timing of the announcement, it would have made sure that Callahan received
notice of his raise prior to the election. I note that Callahan was the Union observer, so
Getronics would be most interested in being assured that he was notified of his raise prior to the
election. Yet, although Strow did invite Callahan to a meeting to notify Callahan about his raise,
on the morning of the election, Callahan did not comply and was not informed about his raise
until June 30, 2008, when he received it, after the election was over. In my view, if the
Employer was intent on influencing the election, it could have and would have made more of an
effort to notify Callahan of his raise. Thus, after Callahan did not attend the meeting scheduled
for him,37 Strow could have made efforts to find him, or send Callahan an E-Mail notifying him of
his raise. Strow’s failure to take either of these steps, demonstrates to me, that the pendency of
the election, had (as Strow testified) no bearing on his decision or to when and how to notify
Getronics’s employees of their increases.
Accordingly, based on the foregoing analysis, I conclude that Getronics has met its burden
of establishing that the grant and timing of its wage increases in June of 2008 was consistent
with past practice, and unrelated to the pendency of the election. Onan Corp., 338 NLRB 913,
914-915 (2003); American Sunroof, supra, 248 NLRB at 74, I therefore recommend that this
objection be overruled.
OBJECTION NO. 6
As related above, officials of CompuCom and Getronics met with employees on June 25,
2008 to discuss the sale of Getronics North America to CompuCom. During the course of this
meeting, Russell Callahan testified that he was sitting across from Charles Corby, and that he
overheard a comment by Corby to no one in particular. According to Callahan, Corby said
something to the effect that “I wonder who they are going to hire if I tell them who’s a Union or
Union advocate”.
Corby adamantly denied making such comments, or anything resembling these remarks.
Corby does concede that he may have said something about the Union or the election, or the
sale during the meeting, but he did not recall what he said about these issues. Corby also
denied that anyone from CompuCom ever asked him his opinion concerned which employees of
Getronics should remain, be terminated or laid off.
I need not resolve the credibility issues vis á vis Corby and Callahan, inasmuch as I have
found above that Petitioner has not established Corby’s supervisory status. Thus, Corby’s
comments, even if made testified to by Callahan, and even if considered coercive, are not

37 Callahan’s meeting was scheduled for 11:00AM.
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attributable to Getronics.
These alleged statements must be evaluated under the Board’s standard for third party
conduct. As I noted above the conduct, in order to be sufficient to set aside an election, must
be “so aggravated that it creates a general atmosphere of fear and reprisal rendering a free
election impossible”. Lamar Advertising, supra, 340 NLRB at 980. The alleged comments
made by Corby falls far short of meeting that stringent standard. Lamar Advertising, supra; Cal
West Periodicals, 330 NLRB 599, 600 (2000);NLRB v. Hood Furniture MFG., 941 F2d. 325, 330
(5th Cir. 1991); Nabisco v. NLRB, 738 F2d. 955, 957-958 (8th Cir. 1984).
Therefore I recommend that Objection No. 6 be overruled.
OBJECTION NO. 7
On June 19, 2008, counsel for Getronics telephoned Board Agent Frank Flores to inform
him that Novartis would not permit Getronics to post the Notice of Election on its property.38
Flores discussed with Getronics’s counsel an alternative means of providing bargaining unit
employees with copies of the Notice of Election, namely by scanning a copy of the Notice into
the computer and sending an E-mail to each bargaining unit employee attaching a PDF copy of
such Notice. After informing counsel for the Petitioner, of the situation and the need to provide
Notices to unit employees other than by posting on Novartis’ property, Flores notified Getronics
that it may E-Mail PDF copies of the Notice of Election to bargaining unit employees, and
Getronics did so. Petitioner made no objection to this procedure, until after the election, when it
filed its Objections.
Although Section 103.20 requires the Posting of Notices for 3 full working days prior to the
election, I find that in the circumstances here, there has been substantial compliance with the
rule.
Getronics was unable to post the Notices, because Novartis, the owner of the property,
would not allow it. Getronics promptly notified the Region, and worked out an alternative
method of notification with the Region, which consisted of E-Mailing PDF copies of the Notice to
employees. Flores notified the Union of this situation, and the Union did not object. Getronics
complied with this procedure.
Petitioner has not advanced any arguments as to what it expected Getronics to do in these
circumstances. I find that Getronics complied with the requirements of 103.20 as best that it
could, the Region agreed to the alternative procedure, and the Petitioner did not object.
Accordingly, I recommend that Objection No. 7 be overruled. Penske Dedicated Logistics,
320 NLRB 373 (1995); Madison Industries Inc., 311 NLRB 865 (1993); Sugar Food Inc.,298
NLRB 628 (1990).
CONCLUSION
I have recommended above that the Challenges to the ballots of Mikol and Paynter be
sustained, and the Challenges to the ballots of Gil, Corby and Skorka be overruled. That results

38 I note that Getronics’s employees worked on Novartis’s property, where the election was
held. While Novartis apparently agreed to holding the election on its premises, it did not agree
to permit the Notices of Election to be posted. Getronics had no right to post these notices on
Novartis’ property absent Novartis’ permission.
JD(NY)–47–08
5
10
15
20
25
30
35
40
45
50
37
in the following revised tally of Ballots. Fourteen votes for Petitioner, ten against, with three
Challenged ballots, that ordinarily would be opened and counted, (Gil, Skorka and Corby).
However, these Challenges are no longer determinative. It is therefore unnecessary to open
and count these ballots.
I shall therefore recommend that a Certification of Representatives be issued to the Union.
In the event that I am reversed as to my recommendations on the ballots of Paynter and
Mikol, and after their ballots, as well as the ballots of Skorka, Gil, and Corby are counted, a
majority of votes are not cast for Petitioner, then a Certification of Results should issue,
inasmuch as I have recommended that all of Petitioner’s Objections be overruled.
ORDER 39
A Certification of Representation should be issued to the Petitioner.
Dated: Washington, D.C. December 30, 2008
__________________________
Steven Fish
Administrative Law Judge

39 Under the provisions of Sec. 102.69 of the Board’s Rules and Regulations, Exceptions to
this Report may be filed with the Board in Washington, D.C., within 14 days from the date of
issuance of this Report and Recommendations. Exceptions must be received by the Board in
Washington by January 13, 2009. Immediately upon the filing of such exceptions, the party
filing same shall serve a copy thereof upon the other parties and shall file a copy with the
Regional Director. If no exceptions are filed thereto, the Board may adopt this recommended
decision.