J.C. Penney Coporation

National Labor Relations Board - Board Decisions

May 30, 2006

347 N.L.R.B. 127 (N.L.R.B. 2006)

JC PENNEY CORP.
347 NLRB No. 11
127
J.C. Penney Corporation, Inc. and Local 3, United
Storeworkers, Retail, Wholesale and Depart-
ment Store Union, United Food and Commercial
Workers Union. Case 29–RC–11193
May 30, 2006
DECISION AND DIRECTION
BY MEMBERS SCHAUMBER, KIRSANOW, AND WALSH
The National Labor Relations Board, by a three-
member panel, has considered determinative challenges
in an election held for a unit of employees at the Em-
ployer’s Queens Center Mall store on August 19 and 20,
2005, and the hearing officer’s report recommending
disposition of them. The election was conducted pursuant
to a Stipulated Election Agreement. The tally of ballots
shows 123 votes cast for and 117 against the Petitioner,
with 12 challenged ballots, a number sufficient to affect
the outcome of the election.
The Board has considered the record in light of the ex-
ceptions and brief and has decided to affirm the hearing
officer’s rulings, findings, and conclusions only to the
extent consistent with this Decision and Direction.
We reverse the hearing officer’s recommendation to
overrule the challenge to Magaly Ochoa’s ballot. We find
that Ochoa was ineligible to vote in the election; there-
fore the challenge to her ballot is sustained. We also re-
verse the hearing officer’s recommendation to sustain the
challenge to Betty Pawlak’s ballot; we therefore direct
that Pawlak’s ballot be opened and counted.1
The challenge to Magaly Ochoa’s ballot
I. FACTS
The Employer challenged the ballot of Magaly Ochoa
on the ground that her employment had been terminated
by the date of the election. The record shows that Ochoa
went on a leave of absence on August 11, 20042 for
“family issues” and was scheduled to return about 2
months later on October 7. She never returned to work.
The Employer presented one witness, Disability Plans
Manager Jim Cuva, to support its contention that Ochoa
was terminated.3 According to Cuva, the Employer al-
lows employees to request personal discretionary leaves

1 In the absence of exceptions, we adopt pro forma the hearing offi-
cer’s recommendations to sustain the challenge to the ballot of Melissa
Guerrero and to direct that the ballots of Shivaugn Frank, Francia Casti-
llo, Richard Leconte, Leonardo Mazzini, and Mario Montanez be
opened and counted, and that all remaining objections be withdrawn.
In the absence of exceptions, we also adopt pro forma the Regional
Director’s recommendations to sustain the challenge to the ballot of
Aracelis Rodas and to overrule the challenges to the ballots of Julieta
Henao, Benita Rios, and Karolin Abbadessa.
2 All dates are in 2004 unless otherwise noted.
3 Ochoa did not testify.
of absence of up to 12 months.4 The Employer’s com-
puter software automatically “terminates” an employee
who has been on a leave of absence for longer than 365
days if the employee does not return to active status.
Ochoa’s record indicates that she did not extend her
leave beyond the 2 months for which she was approved,
and that after 365 days—on August 12, 2005—she was
terminated. The Employer therefore considered her ter-
minated as of the August 19–20, 2005 election. Cuva
testified that there is no record that the Employer notified
Ochoa of her termination.
II. THE HEARING OFFICER’S REPORT
The hearing officer found that Ochoa’s leave of ab-
sence had been extended beyond October 7, and that the
circumstances surrounding the extension were unclear.
He found that the Employer failed to rebut the presump-
tion that Ochoa remained in employee status through the
election,5 noting that Cuva had not had any contact with
Ochoa and therefore did not know whether Ochoa had
requested an extension of her leave of absence directly
from the Queens Center Mall store, where she worked.
III. ANALYSIS
In order to be eligible to vote in an NLRB election, an
individual must be employed on both the eligibility date
and the date of the election. E.g., Agar Supply Co., 337
NLRB 1267, 1268 (2002). An employee on a leave of
absence is presumed to continue in leave status unless
the presumption is rebutted by an affirmative showing
that the employee has resigned or been discharged; nev-
ertheless, an “affirmative termination can be found even
in the absence of any formal or informal communication,
in instances where the surrounding circumstances make
clear that the employment relationship has ended.” Air
Liquide America Corp., 324 NLRB 661, 663–664 (1997)
(citing Cavert Acquisition Co. v. NLRB, 83 F.3d 598, 607
(3d Cir. 1996)).6

4 The Employer also provides a procedure for requesting an exten-
sion beyond the 12-month period.
5 The hearing officer inadvertently stated the date of the election as
August 12, 2005, which was the date of Ochoa’s termination. The
hearing officer also stated that Cuva testified that Ochoa’s name ap-
peared on the Excelsior list; Cuva did not testify to this, but only that
the Employer considered her employed up to August 12, 2005, when
she was terminated.
6 In Air Liquide, the Board found no termination of employment
where, after the collective-bargaining agreement expired, an employer
terminated an employee on leave for union business without notifying
the employee that he was terminated, despite the employee’s multiple
attempts to contact his employer and discuss his status. In contrast, the
Board upheld the challenge to an employee’s ballot where, after the
employee had been gone 4 months on medical leave, the employer
determined that the employee was unlikely to return and terminated her
in its records, yet failed to notify her of her termination. Harry Lun-
stead Designs, 270 NLRB 1163, 1164 (1984) (cited with approval in
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD128
Here, there is no showing that Ochoa had been notified
of her termination. Therefore, the question is whether the
surrounding circumstances make clear that Ochoa’s em-
ployment relationship with the Employer had ended by
the date of the election.7
At the outset, we note that nothing in the record sup-
ports the hearing officer’s finding that Ochoa’s leave was
extended beyond the 2 months for which it had been ap-
proved.8 Cuva testified that an extension would have
been in Ochoa’s record, which shows only the Em-
ployer’s approval of Ochoa’s original 2-month leave
request and her termination 1 year later. Moreover, under
the Employer’s policy, the employee has the burden of
informing the employer of any wish to extend a leave.
There is nothing in Ochoa’s database record to indicate
that she so informed the Employer or attempted to do so.
Had Ochoa communicated with her store directly, and
had this led to an extension of her leave or any other
change in her employment status, this change would ap-
pear in her record. It does not. In any event, even if the
leave had been extended as the hearing officer found,
there is no dispute that Ochoa was terminated in the Em-
ployer’s records on August 12, 2005, according to the
Employer’s established practice, and was thus ineligible
to vote in the August 19–20, 2005 election.
The challenge to Betty Pawlak’s ballot
I. FACTS
The Union challenged Betty Pawlak’s ballot on the
ground that she was a supervisor under Section 2(11) of
the Act, based on her alleged authority to hire new em-
ployees. Pawlak was a training supervisor at the time of
the election. Natalie Debuche, a training supervisor until
her termination on June 6, 2005, testified for the Union
as to the training supervisors’ duties during the time she
held that position. Pawlak became a training supervisor
shortly before Debuche’s termination; Debuche testified
that they worked together for about 2 months. Assistant

Cavert Acquisition, above, 83 F.3d at 607). See also Hercules, Inc., 225
NLRB 241, 242 (1976) (finding termination where an employee re-
mained on medical leave beyond the employer’s allowed time limits,
and where the employer notified its headquarters, but not the employee,
of the termination) (cited with approval in Air Liquide, above, 324
NLRB at 663 fn. 18, and Cavert Acquisition, above at 607).
The Board in Air Liquide cited and clarified the test in Red Arrow
Freight Lines, 278 NLRB 965 (1986). Member Schaumber notes that
no party has urged reconsideration of this precedent and he therefore
applies it here; nevertheless, he finds that Ochoa was ineligible to vote
under either Red Arrow or the “reasonable expectancy of reemploy-
ment” test, applied to employees laid off for economic reasons, as
discussed in Vanalco, Inc., 315 NLRB 618 (1994).
7 E.g., Air Liquide, 324 NLRB at 663–664.
8 The hearing officer may have inferred that Ochoa’s leave had been
extended because the Employer’s database retained her in employee
status after she failed to return as scheduled.
Store Manager Melissa Ioanna testified for the Employer
as to Pawlak’s duties. Pawlak did not testify.
The Employer has a human resources kiosk at the store
where job applicants complete computerized applica-
tions. As a training supervisor, Debuche was directed by
a manager to review applications on the computer and
then call applicants to come into the store to be inter-
viewed. In these interviews, Debuche checked the appli-
cants’ availability and experience and then sent them on
to the requesting manager to be interviewed. Debuche
testified that after the interview she decided whether to
hire the applicant. She testified that she had the sole re-
sponsibility to hire most new employees. Although she
testified that she made hiring decisions before applicants
met with managers, she explained that the managers
“never objected so it was always my decision.” Accord-
ing to Debuche’s testimony, after Ioanna started in Feb-
ruary, Ioanna told her that applicants should meet with
managers before they were placed in the department. In
contrast, Ioanna testified that she told both Debuche and
Pawlak that “they were not to hire; they process the hire,
they do the new hire orientation but . . . a manager in all
cases is supposed to interview the associate.” Ioanna
testified that after she gave that direction, managers in-
terviewed all applicants; Debuche conceded this during
cross-examination.
Debuche stated that Pawlak had hired people. When
asked for examples, however, her testimony was incon-
clusive as to what role, if any beyond ministerial, Pawlak
had in the hiring process. Specifically, Debuche testified
that she once returned from a few days off to find new
employees in the salon department, and that Pawlak’s
name was on their hiring paperwork. In later testimony,
Debuche conceded that the training supervisors did not
interview applicants for that department, only the man-
ager did. Debuche also testified that hiring had slowed
down at the store around the time Pawlak became a train-
ing supervisor, and that “from the time I left I don’t
know what’s going on at the store.”
Only Ioanna specifically described Pawlak’s duties.
According to Ioanna’s unrefuted testimony, Pawlak was
responsible for doing the paperwork when the store hired
a new associate, but was not responsible for making hir-
ing decisions. As to Pawlak’s role in calling in applicants
for interviews, Ioanna testified:
I’ll communicate to her, “We need a couple of people,
can we look for people that work Wednesday, Friday,
Saturday, Sunday nights?” Betty reviews the list of ap-
plicants, pulls some of those applicants out based on
their availability, what we’re looking for, make[s] sure
that availability is present and then she passes it off to
whomever needs to interview—do a full interview.
J.C. PENNEY CORP. 129
According to Ioanna, before passing the applicants on
to the appropriate manager, Pawlak spoke to them for 5
or 10 minutes to verify the information on their applica-
tions. Ioanna conceded that she was not aware of any
applicant Pawlak had recommended9 who was not then
hired by the Employer.
II. THE HEARING OFFICER’S REPORT
The hearing officer found that Pawlak, as a training
supervisor, was given authority by the Employer to
screen, interview, and independently hire employees on
behalf of management, “subject only to discussing with
managers of the department to which they will be as-
signed.” He thus concluded that Pawlak was a statutory
supervisor and that the challenge to her ballot should be
sustained.10
III. ANALYSIS
The burden of proving supervisory status rests with the
person asserting it. NLRB v. Kentucky River Community
Care, 532 U.S. 706, 711 (2001). Possession of any one
of the indicia specified in Section 2(11) of the Act11 is
sufficient to confer supervisory status on an employee,
provided that authority is exercised with independent
judgment on behalf of management and not in a routine
manner. E.g., Bowne of Houston, 280 NLRB 1222, 1223
(1986). The power to effectively recommend a hire, as
used in Section 2(11), contemplates more than the mere
screening of applications or other ministerial participa-
tion in the interview and hiring process. See id. at 1225
(assistant foreman who interviewed applicants and ad-
vised management of the experience of at least one of
them did not make hiring decisions or effective recom-
mendations to hire, as management also interviewed all
applicants and had final hiring authority); The Door, 297
NLRB 601, 601–602 (1990) (finding that an employee
lacked authority to effectively recommend hire where his
role in the hiring process was limited to screening re-
sumes, making recommendations with respect to techni-

9 The record did not establish the nature of Pawlak’s recommenda-
tions beyond verifying applicants’ information and passing the appli-
cants on to management to be interviewed.
10 The hearing officer generally found Natalie Debuche to be a
“credible and forthright” witness, although he found some of her testi-
mony about a separate issue to be “vague and conclusionary.” As to
Melissa Ioanna, he stated: “Although I found some of her answers
vague and evasive, I found Ioanna to generally be a credible witness.”
11 Sec. 2(11) of the Act defines a supervisor as:
. . . any individual having authority, in the interest of the em-
ployer, to hire, transfer, suspend, lay off, recall, promote, dis-
charge, assign, reward, or discipline other employees, or respon-
sibly to direct them, or to adjust their grievances, or effectively
to recommend such action, if in connection with the foregoing
the exercise of such authority is not of a merely routine or cleri-
cal nature, but requires the use of independent judgment.
cal qualifications, and participating, along with others, in
applicant interviews).
No testimony indicated that Pawlak herself made hir-
ing decisions. Ioanna’s credited testimony was that Paw-
lak lacked hiring authority and simply steered applicants
through the system and completed their hiring paper-
work. In contrast, Debuche’s testimony pertained primar-
ily to her own role and solely to the period before her
June 6, 2005 termination. No testimony indicated the
degree to which Debuche’s testimony about her own role
described Pawlak’s duties at the time of the election,
more than 2 months after Debuche’s employment ended,
although the hearing officer apparently inferred that Paw-
lak’s duties were the same as Debuche’s and based his
decision on that. Around the time Pawlak began as a
training supervisor, Ioanna instructed the training super-
visors that all applicants were to be interviewed by man-
agement, and both Debuche and Ioanna testified that this
instruction was followed. Moreover, the Employer reor-
ganized the store after Debuche left but before the elec-
tion, and Debuche conceded that she did not know what
the situation was at the store after she left. Debuche’s
testimony included the conclusory assertion that Pawlak
had hired people; but the only specific testimony as to
Pawlak’s duties—including, in addition to Ioanna’s tes-
timony, Debuche’s testimony concerning Pawlak’s role
in the hiring of salon department employees—indicated
that she exercised a ministerial role with respect to hiring
and had no authority to make hiring decisions. All appli-
cants Pawlak “recommended” were subsequently inter-
viewed by department managers, who, along with store
management, were the sole individuals vested with hiring
authority.
In sum, the Union has not provided clear testimony
that Pawlak exercised hiring authority, nor has it estab-
lished the relevance of Debuche’s testimony to Pawlak’s
duties at the time of the election. Moreover, Debuche, the
Union’s sole witness on this matter, did not refute Io-
anna’s credible testimony that Pawlak lacked hiring au-
thority. Finally, the testimony did not establish that Paw-
lak effectively recommended hiring decisions. We there-
fore find that the Union did not meet its burden of estab-
lishing Pawlak’s supervisory status and overrule the
challenge to Pawlak’s ballot.
DIRECTION
It is directed that the Regional Director for Region 29
shall, within 14 days from the date of this Decision and
Direction, open and count the ballots of Shivaugn Frank,
Francia Castillo, Richard Leconte, Leonardo Mazzini,
Mario Montanez, Julieta Henao, Benita Rios, Karolin
Abbadessa, and Betty Pawlak. The Regional Director
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD130
shall then serve on the parties a revised tally of ballots and issue the appropriate certification.