Helena Laboratories Corp.

National Labor Relations Board - Board Decisions

Jul 29, 1975

219 N.L.R.B. 686 (N.L.R.B. 1975)

686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Helena Laboratories Corporation and Communica-
dons Workers of America , AFL-CIO Local 12139,
Beaumont , Texas, Petitioner. Case 23-RC-4151
July 29, 1975
DECISION AND DIRECTION
By MEMBERS JENKINS , KENNEDY , AND PENELLO
Pursuant to authority granted it by the National
Labor Relations Board under Section 3(b) of the Na-
tional Labor Relations Act, as amended , a three-
member panel has considered objections and deter-
minative challenges in an election held on November
14, 1974,' and the Hearing Officer's report recom-
mending disposition of same. The Board has re-
viewed the record 2 in light of the exceptions and
briefs, and hereby adopts the Hearing Officer's find-
ings and recommendations except as herein modi-
fied.
Challenged Ballots
The Hearing Officer overruled the challenge to
Ward's' ballot and sustained the challenges to the
ballots cast by Champagne, Kotz, Mayes, Simpson,
Thames, Thorne, and Whitney. We agree with the
Hearing Officer 's findings and recommendations
concerning the challenged ballots , except with regard
to the ballots cast by Champagne, Simpson, and
Mayes.
Steve Champagne
The Hearing Officer found Champagne was in
charge of the quality analysis department; directed
the work of two employees in that department; had
the authority to effectively make recommendations
regarding pay, discharges, discipline, and transfers;
and made periodic evaluations of employees. A re-
view of the record, however, reveals that these find-
' The election was conducted pursuant to a Stipulation for Certification
Upon Consent Election . The tally was 40 for, and 39 against , the Petitioner;
there were 9 challenged ballots
2 Petitioner filed timely objections to the election , and on December 27,
1974. after an administrative investigation , the Acting Regional Director
issued his report on objections and challenged ballots The Acting Regional
Director recommended that the challenge to the ballot of Gem Bordage be
sustained and a hearing be directed to resolve the substantial and material
factual issues raised by the objections and the remaining eight challenged
ballots . No exceptions were filed to the Acting Regional Directors report,
and thereafter the Board adopted the Acting Regional Directors recom-
mendations and sustained the challenge to the ballot of Gem Bordage and
directed a hearing to resolve the issues pertaining to the objections and the
remaining challenged ballots of Steve Champagne , Margie Kotz, Mildred
Mayes , Douglas Simpson , Gregory Thames, Angie Thorne, Carolyn Ward.
and Earlene Whitney.
3 In the absence of exceptions thereto, the Board adopts the Hearing
Officer 's recommendation regarding Ward's ballot.
ings are only supported by the hearsay testimony of
two witnesses called by Petitioner. One witness testi-
fied that the two employees who worked with Cham-
pagne claimed that he was their supervisor, directed
their work, conducted their employee evaluations,
recommended pay increases, and could effectively
recommend discharges. The other witness related
that one of the employees working with Champagne
claimed he was her supervisor and had on occasions
commented about the employee's attendance prob-
lem. This witness further testified that Champagne
shared an office with an acknowledged supervisor
and a sign over the office read "Supervisors."
In opposition to the challenge to Champagne's bal-
lot, company president and chief operating officer,
Tipton Golias, explicitly refuted the above hearsay
testimony. He further testified that at no time prior
to the election was Champagne delegated or permit-
ted to exercise any supervisory authority. With re-
gard to Champagne sharing an office with an ac-
knowledged supervisor, Golias explained that since
the election Champagne had been promoted to a su-
pervisory position and had moved into a supervisor's
office. Champagne's subsequent promotion, howev-
er, is not relevant to his eligibility as it is clear that
eligibility to vote in a Board election depends on the
voter's status during the critical period prior to the
election.
Based on the record evidence, we find an insuffi-
cient showing to establish Champagne's supervisory
status . Uncorroborated hearsay testimony that is ex-
plicitly denied by direct evidence does not comprise
sufficient affirmative probative evidence to support
the challenge to Chapagne's ballot.4 Accordingly, the
challenge to Champagne's ballot is overruled.
Douglas Simpson
The Hearing Officer found that Simpson was a re-
search biochemist, that he had a "degree," and that
his work required a "certain degree of independent
thinking." In reliance on the above, the Hearing Offi-
cer found Simpson to be a professional employee
and sustained the challenge to his ballot. The record,
however, reveals that Simpson is classified as a labo-
ratory technician and works in the immunology de-
partment with four other employees under the direct
supervision of Karen McJunkin. Two of the other
4See Bostitch, Division of Textron, Inc, 210 NLRB 83 (1974); OSI of
California d/b/a Court Casuals, 217 NLRB No. 150 (1975).
In a like manner , one employee 's testimony that Champagne rated the
quality of his work and that the employee "felt" Champagne could recom-
mend his discharge if the quality of his work did not improve is not proba-
tive . The very function of Champagne 's department was to inspect and rate
the quality of production work , and an employee 's subjective feelings as to
another 's authority, without any corroborative evidence , is insufficient to
establish supervisory authority
219 NLRB No. 140
HELENA LABORATORIES CORP. 687
employees are full time and only one of these em-
ployees has a degree. The other two employees are
students employed on a part-time basis. All of these
employees do the same type of work and, although
the job position requires a certain amount of inde-
pendent thinking, it does not require a degree and is
not considered a "hard job."
In that Simpson's position does not require a de-
gree, nor does it require a consistent exercise of dis-
cretion and judgment, we find insufficient evidence
to establish Simpson's status as a professional em-
ployee within the meaning of the Acts Further,
Simpson performs the same job functions as do the
other employees in the immunology department, and
no issue was raised as to their eligibility. According-
ly, we shall overrule the challenge to Simpson's bal-
lot.
ness who claims the two employees designated to
work with Mayes said "she could hire and fire."
Company President Golias explicitly denied Mayes
possessed or exercised such authority. As indicated
earlier, we find uncorroborated hearsay testimony
that is explicitly refuted by direct evidence to be in-
sufficient probative evidence to support the finding
of Mayes' supervisory status. Accordingly, we shall
overrule the challenge to Mayes' ballot.
The Hearing Officer found that Petitioner's Objec-
tions 1 and 4 are without merit and recommended
that they be overruled. The Hearing Officer further
found that Petitioner's Objections 2, 3, 5, and 6 have
merit and were sufficient to set aside the election if
the revised tally of ballots shows the Petitioner- to
have lost the election. We agree with these findings
and recommendations.
Mildred Mayes
The Hearing Officer found that Mayes, who works
in the shipping department, was able to secure the
services of other employees in another department
when she needed additional help and that she had
the authority to "hire or fire." On these grounds, the
Hearing Officer found Mayes to be a supervisor and
recommended that the challenge to her ballot be sus-
tained. The record, however, reveals that Mayes does
not have such authority and cannot secure the serv-
ices of other employees on her own initiative. Mayes,
who is the only employee in the shipping department,
has standing instructions to seek the assistance of
two previously designated employees during peak
work periods; she has no authority to secure any
other help. As to Mayes' authority to hire or fire, the
only evidence reflecting such an authority is derived
from the uncorroborated hearsay testimony of a wit-
5 See Sec . 2(12) of the Act.
DIRECTION
It is hereby directed that the Regional Director for
Region 23 shall, pursuant to the Board's Rules and
Regulations, within 10 days from the date of this De-
cision and Direction open and count the ballots cast
by Carolyn Ward, Steve Champagne, Douglas Simp-
son, and Mildred Mayes, and thereafter cause to be
served on the parties a revised tally of ballots, includ-
ing therein the count of those four ballots. If the re-
vised tally of ballots discloses that a majority of the
votes have been cast for Petitioner, the Regional Di-
rector shall issue an appropriate Certification of Rep-
resentative.
IT IS FURTHER DIRECTED that if the revised tally of
ballots discloses that a majority of votes have been
cast against Petitioner, the Regional Director for Re-
gion 23 shall set aside the election and conduct a new
election in conformance with the following Direction
of Second Election.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]