Helena Cable T.V.

National Labor Relations Board - Board Decisions

May 15, 1980

249 N.L.R.B. 542 (N.L.R.B. 1980)

542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD249 NLRB NO. 85
Community Tele-Communications, Inc., d/b/a
Helena Cable T.V. and Patricia A. Boerner, Pe-
titioner and International Brotherhood of Elec-
trical Workers, Local No 185, AFL-CIO. Case
19-UD-236
May 15, 1980
DECISION ON REVIEW, ORDER, AND
DIRECTION OF ELECTION
BY CHAIRMAN FANNING AND MEMBERS
JENKINS ANI) PENEIAI.O
On November 6, 1979, the Regional Director for
Region 19 of the National Labor Relations Board
issued a Decision and Order in the above-entitled
proceeding finding that Patricia A. Boerner, the
Petitioner, is a supervisor and ineligible to file a
union-security deauthorization petition under Sec-
tion 9(e)(1) of the National Labor Relations Act, as
amended, and accordingly dismissed the petition
herein. Thereafter, in accordance with Section
102.67 of the National Labor Relations Board
Rules and Regulations, Series 8, as amended, the
Petitioner filed a timely request for review of the
Regional Director's decision.
By telegraphic order dated December 18, 1979,
the Board granted the Petitioner's request for
review.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the entire record in
this case with respect to the issues under review
and finds that there is insufficient evidence to es-
tablish that Patricia A. Boerner is a supervisor.
Hence, we find that the Regional Director erred in
dismissing the petition.
The Employer is a Nevada corporation engaged
in the installation and servicing of cable television
systems, with a facility at Helena, Montana. The
Union has represented a unit of office employees at
the Helena, Montana, facility since 1971. The Em-
ployer and the Union have negotiated several col-
lective-bargaining agreements covering the office
employees. The most recent agreement became ef-
fective on July 1, 1978, and is due to expire on
June 30, 1980. Included, inter alia, in the current
agreement is a union-security clause requiring all
employees in the unit to become and remain mem-
bers of the Union as a condition of employment
during the term of the agreement.
On September 21, 1979, the Petitioner filed a pe-
tition herein seeking a withdrawal of union-shop
authority under Section 9(e)(1) of the Act. Follow-
ing a hearing on October 12, 1979, the Regional
Director issued his Decision and Order herein find-
ing that Boerner is a supervisor based on evidence
that she has the authority to conduct hiring inter-
views and to make effective recommendations on
hiring.
The record shows that, in the Employer's
Helena, Montana, office, there are four office em-
ployees. Boerner, who has worked for the Employ-
er for approximately 10 years, is the most senior
employee. The other three employees had worked
for the Employer for 12, 10, and 6 months, respec-
tively, as of the date of the hearing herein. In filing
the petition, Boerner identified herself as the
"office manager." The record fails to establish,
however, that this title carries any authority. In-
stead, the record shows that the office work is
fairly routine, that each employee is assigned cer-
tain functions such as mail, bookkeeping, or wait-
ing on customers, and that they help each other
when one of the employees gets bogged down.
With regard to Boerner's involvement in the
hiring of the other three clericals, the record shows
that Shirley Nichols was hired in October 1978 by
the marketing administrator without any input by
Boerner. A second employee, Cynthia Coonis, was
hired in December 1978 at a time when the Em-
ployer desparately needed another employee.
Coonis, the only applicant, was interviewed by
Office Manager Poore.
Boerner responded to an inquiry by Poore about
Coonis by commenting that "she sounds allright."
Finally, Lynn Lucas was employed in April 1979
as a part-time employee. Again Poore first inter-
viewed her. Thereafter, Boerner reviewed her ap-
plication, talked to her for a few minutes, and con-
tacted one of the references Lucas gave on her ap-
plication. Later, Boerner and Poore discussed
Lucas' qualifications. Although Boerner thinks
Poore probably asked her for a recommendation,
Boerner testified that it was "more or less informal-
ly decided that she was the one we'd hire."
Contrary to the Regional Director, we find that
the record fails to establish that Boerner has au-
thority effectively to recommend hire. Any support
for such finding based on Boerner's conversation
with Poore concerning Lucas' capabilities is under-
cut by the minor role Boerner played in hiring
Coonis and the absence of any role in hiring Ni-
chols. Nor is there evidence that Boerner has au-
thority responsibly to direct employees, or that she
has exercised other supervisory functions defined in
Section 2(11) of the Act. Rather, it is clear from
the routine nature of the work performed by the
office employees that Boerner's authority, at most,
is that of a leadman based on her experience and
familiarity with the Employer's operation. Thus,
HELENA CABLE T.V. 543
we find that Boerner is not a supervisor within the
meaning of Section 2(11) of the Act, that she is an
employee in the bargaining unit,2 and that she is
eligible to file a petition under Section 9(e)(1) of
the Act. Hence, we find that the Regional Director
erred in dismissing her petition.
Having dismissed the petition, the Regional Di-
rector found it unnecessary to pass on the Union's
contention that the appropriate unit should include
both office employees and installers and techni-
cians. Thus, the Union contends that, although the
two units were separately certified, the pattern of
bargaining has been to include both groups under
one contract. We find no merit in the Union's unit
contention.
The record shows that the pattern of bargaining
has been for the Employer and representatives
from Local Unions 44, 185, and 532 (IBEW), rep-
resenting the Employer's installers and technicians
at the Employer's Butte, Helena, and Billings,
Montana, facilities, respectively, to meet and nego-
tiate the terms of a new contract for the installers
and technicians. Upon completion of the installers
and technicians negotiations, the representatives of
Locals 44 and 532 leave,3 and the Employer and
Local 185 negotiate the wages and other terms and
i See The Capitol Times Company, 234 NLRB 174 (1978).
2 At the hearing, testimony was taken on the question as to whether
Boerner was a confidential employee and, as such, ineligible to file a peti-
tion under Sec. 9(eXI) of the Act. Since the record clearly shows that
Boerner is not a confidential employee, we express no opinion with
regard to the eligibility of a confidential employee to file a petition under
Sec. 9(eXI) of the Act.
s No evidence was presented that Local 44 or Local 532 represents
office employees at their respective locations, or that either has partici-
pated in bargaining for the office employees in Helena
conditions of employment for the office employees
unit at Helena. W. H. Sexton, the Employer's dis-
trict manager, testified without contradiction that
in recent years, for convenience and to avoid the
cost and time of drafting and executing separate
documents, a separate supplement to the master
agreement covering wage rates and other specific
terms and conditions of employment for the office
employees has been executed. Sexton also testified
that there was no intention to merge the two units
into a single bargaining unit. In addition, we note
that article 1, section 5, of the supplement states:
"This agreement covers all employees in unit 2 and
their functions as described in National Labor Re-
lations Board case 19-RC-5949"; and article VI,
section 1, states in part: "Overtime provisions same
as in Technicians Agreement, Unit 1."
On the record here, we find that the technicians
unit and the office employees unit have not been
merged into a single overall unit. Accordingly, we
find that the appropriate unit for an election is the
office employees unit, as described in article 1, sec-
tion 5, of the supplemental agreement referred to
above. Having determined that Boerner is an em-
ployee eligible to file the petition, and that the
office employees unit is the appropriate unit for the
election, we shall reinstate the petition and direct
an election.
ORDER
It is hereby ordered that the petition herein be,
and it hereby is, reinstated.
[Direction of Election and Excelsior footnote
omitted from publication.]
HELENA CABLE TV. 43..