Sears, Roebuck & Co.

National Labor Relations Board - Board Decisions

Aug 22, 1991

304 N.L.R.B. 193 (N.L.R.B. 1991)

193
304 NLRB No. 36
SEARS, ROEBUCK & CO.
1 The Petitioner has excepted to some of the hearing officer’s credibility
findings. The Board’s established policy is not to overrule a hearing officer’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Stretch-Tex Co., 118 NLRB 1359,
1361 (1957). We find no basis for reversing the findings.
2 In the absence of exceptions, we adopt, pro forma, the hearing officer’s
recommendation that the challenges to the ballots cast by employees Harrison
McKoy, Melissa Payran, and Susan Waters be overruled.
Member Cracraft notes that the Petitioner has excepted to the hearing offi-
cer’s recommendation that the challenge to Mary Beth Fine’s ballot be over-
ruled in accordance with the parties’ stipulation that she was employed prior
to the eligibility cutoff date and was eligible to vote. In its answering brief,
the Employer states that the parties also stipulated that Melissa Payran is an
eligible voter and that her ballot must be treated the same as Fine’s. Member
Cracraft observes that the parties’ stipulation with respect to Fine is inconsist-
ent with the facts in the record and that the Employer alleges that the facts
with respect to Payran are essentially identical. In Member Cracraft’s view,
whether to accept the parties’ stipulation in these circumstances raises a dif-
ficult issue. Compare Red Lion, 301 NLRB 33 (1991) (Board affirms hearing
officer’s rejection of parties stipulation that lacks factual basis). Accordingly,
Member Cracraft would not rule at this time on the challenges to the ballots
of Mary Beth Fine and Melissa Payran and would direct the Regional Director
to transfer this case back to the Board for a ruling on these challenges if, after
the remaining challenged ballots which have been overruled are opened and
counted, these two challenged ballots remain determinative.
3 The Employer operates a department store in Mays Landing, New Jersey,
headed by General Manager Robert Flippen. Reporting to Flippen are approxi-
mately 20 checklist managers, each of whom is responsible for the manage-
ment of individual departments. The parties stipulated that the checklist man-
agers are supervisors within the meaning of the Act.
4 As noted above, we have adopted those findings for the reasons set forth
by the hearing officer.
5 Manager Dempsey is also in charge of the shoe department.
Sears, Roebuck & Co. and Local 32, Office & Pro-
fessional Employees’ International Union,
AFL–CIO, Petitioner. Case 4–RC–17114
August 22, 1991
DECISION, DIRECTION, AND ORDER
BY MEMBERS CRACRAFT, DEVANEY, AND OVIATT
The National Labor Relations Board, by a three-
member panel, has considered determinative challenges
to an election held November 10, 1989, and the hear-
ing officer’s report recommending disposition of them.
The election was conducted pursuant to a Stipulated
Election Agreement. The tally of ballots shows 153 for
and 140 against the Petitioner, with 27 challenged bal-
lots.
The Board has reviewed the record in light of the
exceptions and briefs and has adopted the hearing offi-
cer’s findings1 and recommendations only to the extent
consistent with this Decision, Direction, and Order.
We adopt, for the reasons stated by the hearing offi-
cer in his report, the hearing officer’s recommendation
that the ballots cast by employees Marianne Clark,
James Donaldson Jr., James Donaldson III, Annette
Dunleavy, Mary Beth Fine, Boyd Keele, Cheryl
Knowles, Jeffrey Lake, Sue Mark, Sharon Pratt,
Margurite ‘‘Peggy’’ Regal, Linda Vasquez, Mary Lou
Watkins, Augustus ‘‘Gus’’ Weaver, and Susan Wil-
liams be overruled and that the challenge to the ballot
cast by employee Robert Ketsheck be sustained.2 For
the reasons stated below, we find merit in the Employ-
er’s exceptions to the hearing officer’s findings that
Paul Blankenship, Alice Brown, George Maul, Rose
Maul, Susan McGowan, William Weaver, Bernie
Welcz, and Karen Wimberg are supervisors within the
meaning of Section 2(11) of the Act and accordingly
find that the challenges to their ballots should be over-
ruled.
Initially, we note that the eight individuals whose
ballots were challenged by the Petitioner and found to
be supervisors by the hearing officer did not testify at
the hearing. Thus, the record on which the hearing of-
ficer relied consisted primarily of the fragmented testi-
mony of employees and other individuals claiming fa-
miliarity with the job duties of the eight individuals.
Although we accept the hearing officer’s credibility
findings for individuals are supervisors within the
meaning of Section 2(11) of the Act. See Sears, Roe-
buck & Co., 292 NLRB 753 (1989). We note in this
regard that conclusionary statements made by wit-
nesses in their testimony, without supporting evidence,
does not establish supervisory authority. See American
Radiator Corp., 119 NLRB 1715, 1718 (1958).
We further note that the hearing officer acknowl-
edged that none of the eight individuals had the au-
thority to hire, fire, transfer, suspend, lay off, or recall
employees, to evaluate, promote or reward employees,
or to adjust grievances. Finally, we note that these
eight individuals filled positions in the hierarchical
structure of the Employer3 similar to other challenged
voters who the hearing officer found not to be super-
visors.4 We now turn to an examination of the status
of each of these individuals.
1. The status of Paul Blankenship
Paul Blankenship is a sales leader in the men’s de-
partment under the direction of Checklist Manager
John Dempsey. Blankenship is an hourly paid, part-
time employee and earns $5.82 an hour, a wage less
than that earned by two employees in his department.
He is not eligible for commissions. Most of
Blankenship’s worktime is spent in connection with
the presentation of merchandise, covering the sales
floor, approving merchandise returns, and completing
the paperwork related to merchandise markdowns.
Blankenship also writes up and signs schedules for the
men’s and shoe departments.5
Based on Blankenship’s scheduling of employees
and on employee Joanne Yost’s testimony that he
could approve schedule changes, grant days off, and
permit employees to report to work late, the hearing
officer found Blankenship to be a supervisor. We dis-
agree.
As to the scheduling of employees, the hearing offi-
cer found that Dempsey determined the number of
194 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Yost testified as follows:
Q. If you ever had to change your schedule or come in late or leave
early or take a day off, who would you ask about these things?
A. You would ask [Blankenship].
Q. And would he say yes or no?
A. Paul was pretty easy. He would just like, you know do it for you.
7 Yost testified that if she needed to leave work early and if a supervisor
was not available, she would report to the personnel department.
sales employees to cover the selling floor daily and the
number of hours a week each employee would work,
and gave these instructions to Blankenship, who then
prepared the weekly schedule. The hearing officer con-
cluded that because the Employer’s budgeting for de-
partments changes monthly, affecting the number of
sales employees scheduled to work, that because the
availability of employees also changes, and that be-
cause there was no indication in the record that
Blankenship presented the finished schedule for
Dempsey’s review and approval, Blankenship’s sched-
uling of employees involved the nonroutine assignment
of work.
We find that the hearing officer’s conclusion de-
pends on assumptions for which there is no support in
the record. Most significantly, there is no record evi-
dence that employee availability is a major factor in
the scheduling of employees or that Blankenship inde-
pendently resolves questions regarding the scheduling
of employees. In this regard, there was no testimony
that employees’ work schedules or availability changed
significantly from week to week or that in writing out
the schedule, Blankenship regularly had to resolve con-
flicts or problems concerning the availability of em-
ployees. Contrary to the hearing officer, we do not find
Yost’s testimony that she requested a reduction of
hours on her return to work from maternity leave evi-
dence of a pattern of weekly changes in employees’
availability to work. Further, Yost’s testimony under-
cuts the hearing officer’s finding that Blankenship
independently resolves scheduling problems that arise.
Yost testified that she made her request for reduced
hours to Dempsey, and thus Blankenship apparently
scheduled Yost’s hours pursuant to Dempsey’s deci-
sion.
As to the hearing officer’s finding that Blankenship
could approve schedule changes, grant days off, and
permit employees to report to work late, the hearing
officer relied exclusively on the conclusionary testi-
mony of Yost,6 which he characterized as lacking in
details and specifics, making it ‘‘difficult’’ to make a
finding in regard to what Blankenship did in practice
approve.
The hearing officer disregarded Yost’s testimony,
noted above, that she asked Dempsey, not
Blankenship, to reduce her hours and that if she had
to miss a day of work, she would leave a message
with the personnel department.7 Given this testimony,
and in the absence of any specific evidence showing
that Blankenship approved schedule changes, granted
time off, and permitted employees to report to work
late, we find that the record fails to support the hearing
officer’s findings in this regard.
For these reasons, we find, contrary to the hearing
officer, that Blankenship neither possessed nor exer-
cised any indicia of supervisory status. See Mack’s Su-
permarkets, 288 NLRB 1082, 1086–1087 (1988). Ac-
cordingly, we overrule the challenge to his ballot.
2. The status of Alice Brown
Alice Brown is the lead audit clerk in the Auditing
Department. She is a full-time employee and earns
$10.71 an hour, a higher wage than any other auditing
department employee. Brown works under Carol
Feneli, the Store’s retail general office (RGO) man-
ager, who is also in charge of the personnel depart-
ment, the RGO secretaries, and the store’s switchboard
employees. Feneli has assigned each auditing depart-
ment employee a specific function; however, each em-
ployee is cross-trained and can fill in if another em-
ployee is out of the office. Brown is assigned local
purchases, end-of-the-month reports, internal audit
sheets, sales employees’ commission corrections, quar-
terly cash room reconciliations, and charges from other
Sears units. Brown has the longest service of the audit-
ing department employees. She is considered to be the
most versatile of the department employees and is the
one to whom the other employees turn if they have
questions. Brown is also involved in writing the sched-
ule for the auditing department employees. As is the
procedure in other departments, General Manager Rob-
ert Flippen and Feneli agree as to the budget for the
departments in Feneli’s charge, and Feneli decides
coverage and the number of hours each employee will
work. Thereafter, Brown prepares the schedule in ac-
cord with Feneli’s determination and the individual
employee’s day and hour preferences. The hearing re-
lied solely on Brown’s role in the scheduling process
in finding that Brown was a supervisor within the
meaning of Section 2(11) of the Act.
The hearing officer acknowledged that because some
of the auditing department employees worked full time
and because all the employees started work between 7
and 8 a.m. and left in the early afternoon, scheduling
‘‘is not all that difficult.’’ However, noting that em-
ployees have varying starting times, quitting times, and
days off, the hearing officer found that Brown’s prepa-
ration of the schedule involved an ‘‘element of discre-
tion here that requires independent judgment to bal-
ance the needs of the Auditing Department with the
scheduling requests of employees.’’ In this regard the
hearing officer noted that there was nothing in the
record to suggest that Brown did not have the authority
to determine if a part-time employee would work 4
195SEARS, ROEBUCK & CO.
8 The ‘‘4C’’ Department includes catalogue, cashiering, credit, and customer
services.
9 The parties stipulated that Haywood is a supervisor within the meaning of
the Act.
10 The hearing officer incorrectly stated that Maul earned $8.80 and hour.
11 Irene Carlin earns $9.48 an hour; Nancy Lacy, $8.52 an hour; Gloria
Zaccarelli, $8.30 an hour; and Patty Muggleberg, $8.07 an hour.
12 Smith and Haywood also work one out of seven Sundays.
13 Maul is a longtime 4C department employee and is familiar with many
aspects of its operations.
14 Van Horn is a part-time employee assigned to ‘‘special accounts.’’
15 ROR (record of return) refers to items which require store pickup because
they are too heavy for the customer to return.
16 Piason testified that on one occasion he had called Smith about a cus-
tomer complaint involving the delivery of a damaged refrigerator. In response,
Smith told Piason that he was busy with five other calls and that Maul could
handle the problem. Piason asked whether Maul had authority to handle the
customer complaint, and Smith replied, ‘‘[h]e has the same authority as I do
in that office.’’ In his report, the hearing office noted that although Smith had
attended almost the entire hearing, the Employer chose not to call him to rebut
Piason’s testimony with respect to Maul’s assignment authority. In light of the
Employer’s failure to have Smith rebut Piason’s testimony, the hearing officer
drew the inference that had Smith been called, he would not have contradicted
Piason’s testimony.
We find that Piason’s testimony, standing alone, is insufficient to establish
that Maul exercised independent judgment in resolving this or other customer
complaints or that Maul’s authority was in any way greater than that of the
other employees who resolved such complaints.
days a week or 5 days a week or that Feneli approved
the work schedule after Brown prepared it.
Contrary to the hearing officer, we find that the
record does not support a finding that Brown’s role in
scheduling the auditing department employees involves
the exercise of independent judgment. Feneli, not
Brown, decides how many hours each week each em-
ployee will work, and as is true in other departments,
described above, there is no evidence to suggest that
employee availability changes from week to week. To
the contrary, the one schedule introduced into evidence
suggests that scheduling of these employees is routine.
Thus, the schedule indicates that all full-time employ-
ees start work at 7 a.m. and quit work at 3:30 p.m.,
all part-time employees start work between 7:30 and
8:30 a.m., and that except for two employees, all em-
ployees work Monday through Friday. There is no evi-
dence that any changes to the weekly schedule are re-
solved by Brown rather than Feneli. As we have noted
supra, the hearing officer’s findings to the contrary are
based on supposition without supporting evidence. In
sum, we find the record insufficient to establish that
Brown exercises independent judgment in the schedul-
ing of employees, and we accordingly overrule the
challenge to her ballot.
3. The status of George Maul
George Maul is lead customer service clerk in the
‘‘4C’’ department8 under Checklist Manager George
R. Smith Sr. and Nancy Haywood as his ‘‘backup.’’9
Maul is a full-time employee and earns $8.0610 an
hour, less than that earned by several other department
employees.11 He usually works 40 hours a week which
includes two nights and one out of seven Sundays.12
Neither Smith nor Haywood works those nights and
Sundays when Maul is at the store. Maul spends ap-
proximately 80 percent of his worktime on the delivery
desk and is responsible for resolving disputes involv-
ing shipment of big-ticket items to the store’s cus-
tomers. Maul spends the remainder of his worktime as
needed in the Department.13 Irene Carlin, Dominick
DeFeo, and Gloria Zaccarelli, 4C department employ-
ees assigned to the delivery office, also resolve ship-
ping disputes, and have desks in the same area as
Maul. Smith, Maul, Haywood, Carlin, DeFeo,
Zaccarelli, and Romona Van Horn14 are the only em-
ployees besides Flippen permitted to call Sears’ King
of Prussia distribution center to check on deliveries.
The hearing officer found that Maul assigns work to
clerks in the 4C department and that these assignments
involve making decisions requiring the exercise of
independent judgment, i.e., Maul makes on-the-spot
decisions on his own which require balancing the cus-
tomers’ needs with the abilities of the 4C employees.
The hearing officer further found that not only did the
Employer arrange Maul’s work schedule so that he
would ‘‘have the watch’’ when neither Smith nor Hay-
wood was at work, but that Smith delegated assign-
ments to Maul to investigate and resolve even when
Smith was present.
Contrary to the hearing officer, we find the record
insufficient to establish that Maul exercises independ-
ent judgment in the assignment of work. Flippen testi-
fied that there are seven subdivisions within the 4C de-
partment: catalogue, front cashiers, input and editing,
credit, delivery, ROR15 and returns, and cashier room.
It is undisputed that the work of each of the subdivi-
sions is specialized and Smith makes the job assign-
ments of particular employees to particular subdivi-
sions. As stated above, the great bulk of Maul’s work
involves resolving delivery problems, and there is no
record evidence providing specific incidents where
Maul exercised independent judgment in resolving
these problems. We also note that 4C employees Car-
lin, DeFeo, and Zacarrelli also resolve delivery prob-
lems, and there is no evidence in the record that
Maul’s work in this regard involves a greater degree
of discretion than the other employees. Indeed, em-
ployee Piason testified that he normally sees Carlin
about delivery problems.16 Further, given the assign-
ment by Smith of employees to particular specialties
within the 4C department, the record does not support
a finding that the assignments Maul makes to other
employees are more than routine referrals to special-
ized employees or that other employees do not make
comparable assignments, even when neither Smith nor
Haywood is present. We find therefore that the record
does not establish that Maul’s assignment of work in-
196 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 The cashier operation is included in the 4C department under Checklist
Manager Smith and Supervisor Haywood. The cashier operation includes the
counter where customers settle their accounts and the cash room where the
store’s safe is located.
18 There are four desks in the personnel department. McGowan, Ford, and
Reahm work at assigned desks and one desk remains unassigned.
19 The only evidence introduced pertaining to this issue was one weekly
schedule which was signed by McGowan.
volves the exercise of independent judgment and, ac-
cordingly, we overrule the challenge to his ballot.
4. The status of Rose Maul
Rose Maul is lead cashier in the store’s cashier op-
eration.17 She is one of five part-time employees who
work in the cash room, counting money from the cash
register, preparing fund bags, bank deposits, and
checks for issuance, ordering change the store requires,
and tallying for the end-of-the month reports submitted
by the store’s various departments. Maul performs the
same work as the other cash room employees, except
that, with Flippen’s approval, she has the authority to
issue a check on the store’s behalf and prepare the
work schedule of the cash room employees. As with
the other departments, the preparation of the work
schedule involves Flippen’s determination of the budg-
et for employees’ wages and Smith’s determination of
the cash room coverage and the number of hours each
cash room employee will work. Maul then consults
with the employees to ascertain their availability and
prepares the work schedule in accord with Smith’s in-
structions.
In finding Maul to be a supervisor, the hearing offi-
cer relied solely on Maul’s role in scheduling employ-
ees. In the absence of evidence that Smith or Haywood
played an active role in resolving employee complaints
regarding scheduling, he found that Maul ‘‘effectively
determined the scheduled days and hours of work for
the cashroom employees.’’
We disagree. As we have noted in our discussion of
other departments, there is no evidence that employee
availability causes scheduling conflicts or that Maul in
fact resolves any conflicts that do arise. In the absence
of any evidence that Maul exercises independent judg-
ment in scheduling employees, we find that Maul is
not a supervisor within the meaning of the Act and we
overrule the challenge to her ballot.
5. The status of Susan McGowan
Susan McGowan is a personnel specialist in the per-
sonnel department, which is part of the RGO under
Feneli. She is a part-time employee and works Monday
through Friday during the day and occasionally on Sat-
urdays. In addition to McGowan, the other personnel
employees are Jean Ford, Jeff Reahm, and on occa-
sion, Sharon Pratt, Pam Terry, and Nancy Ellis. Each
of the personnel employees have specific duties.18
McGowan provides the Store employees with benefit
information and is responsible for alerting the employ-
ees to file the benefit forms in connection with the
Employer’s benefit programs, which she collects and
processes. She receives, reviews, and compiles the em-
ployee work schedules for the other store divisions and
is involved in the store’s recruiting program, receiving
the ‘‘need’’ sheets from divisions that have received
Flippen’s approval for hiring employees and arranging
for the placement of want ads in the newspapers.
Personnel procedures are uniform throughout the
store. When employees call the store to report that
they will be absent, they are connected to the Person-
nel Department. The call is usually directed to the
phone on McGowan’s desk; however, if McGowan is
not at her desk, it will be answered by Ford or Reahm.
Employees seeking permission to leave the store be-
fore the end of his or her scheduled shift notify the
personnel department, which records the request so
that in the event of an emergency, the Employer will
know which employees are in the store. Personnel em-
ployees Ellis, Ford, McGowan, or Reahm will question
the departing employee as to: (1) why the employee is
leaving the store; (2) if the employee has informed his
or her manager of the departure; (3) if there is cov-
erage in the employee’s department; and (4) if there is
no coverage in the employee’s department, if the em-
ployee is willing to stay in that department until cov-
erage is arranged. If there is a coverage problem, then
the personnel employee can resolve the problem by
moving an extra employee from one area of a depart-
ment to another. However, where it would be nec-
essary to move an employee from one department to
another, the personnel employee would first seek per-
mission of a checklist manager. Although the person-
nel employees do not have authority to prohibit an em-
ployee from leaving the store, it is not the Employer’s
practice to permit scheduled employees to leave work
early for just any reason. Where the personnel em-
ployee has determined that an employee wants to leave
early for frivolous reasons, the employee’s checklist
manager would be notified and would make the appro-
priate resolution.
The hearing officer found that McGowan exercised
independent judgment in the scheduling of the person-
nel employees and the PBX operators and in releasing
employees from the store. We disagree.
As to scheduling employees, we note that there is no
testimony in the record regarding the process by which
the scheduling of the personnel employees and PBX
operators is determined.19 As we have noted above, in
the absence of any specific evidence that McGowan in
fact exercised any independent judgment in preparing
the weekly schedule, the hearing officer’s ‘‘inference’’
that she does cannot be sustained.
Similarly, the hearing officer’s finding that
McGowan exercised independent judgment in releasing
197SEARS, ROEBUCK & CO.
20 The greeter/dispatcher questions the customer as to needed automobile re-
pairs and records this information on a card which is referred to the appro-
priate mechanic who will do the work.
21 Checklist Manager Olsen determines the specialty of each mechanic in the
back shop.
employees is unsupported by the record. McGowan,
like the other personnel department employees, fol-
lowed the store’s stated procedures and policies when-
ever she was notified by an employee that he or she
wanted to leave work early, and as the hearing officer
found, ‘‘routine excuses such as sickness and
McGowan’s own common sense likely go a long way
in narrowing the discretion exercised by McGowan.’’
Although the hearing officer found that a ‘‘gray area’’
existed in which McGowan ‘‘would make the call’’ on
whether an employee could leave, the record does not
suggest that McGowan’s assessment of the situation
was anything more than her application of the Employ-
er’s set procedures and policies, requiring no exercise
of independent judgment. Further, there is no evidence
to suggest that McGowan’s role in the releasing of em-
ployees was any different from that of other personnel
department employees, who voted in the election with-
out challenge.
Under these circumstances, we find insufficient evi-
dence to establish that McGowan was a supervisor
within the meaning of the Act, and we accordingly
overrule the challenge to her ballot.
6. The status of William Weaver
Weaver is classified as a lead mechanic and reports
to Checklist Manager Troy Olsen in charge of the auto
center’s back shop. Weaver is a full-time employee
and earns $13.39 an hour, less than mechanic Ray
Bartling, who earns $13.88 an hour, Julie Conrad, who
earns $13.82 an hour, and Skip Goller, who earns
$13.79 an hour. Weaver spends a substantial amount of
his time assisting mechanics with difficult mechanical
problems. He also works at the greeter/dispatcher
counter20 and works on customer vehicles.
The hearing officer found that work in the back
shop is usually assigned by the greeter/dispatcher to
mechanics based on the mechanics’ specialities,21 and
that therefore the assignment of particular jobs to me-
chanics is routine. However, noting that each mechanic
possesses varying numbers of specialties and that the
assignment of a particular mechanic also requires con-
sideration of what other service must be performed on
the car and when the car must be ready for return to
the customer, the hearing officer concluded that some
repair jobs presented assignment issues that required
independent judgment. Based on Weaver’s being ‘‘inti-
mately involved in the progress of the work in the
shop,’’ his work at the greeter/dispatcher counter, and
his role in recalling assignments and making reassign-
ments to the mechanics, the hearing officer found that
Weaver ‘‘exercises independent judgment in the as-
signment of work in the back shop.’’ The hearing offi-
cer further found that because Weaver worked 1 day
a week when Olsen was not present and 1 night a
week when Olsen and Auto Center Sales Manager
John Coyle were not present, and because he was ‘‘in
charge’’ of the auto center at least one Sunday in five,
Weaver ‘‘on a regular basis fills the role of assuring
the smooth flow of work in the back shop [—a] role
that . . . requires the exercise of independent judgment
in the assignment of work.’’
Contrary to the hearing officer, we find the record
evidence insufficient to establish that Weaver exercises
independent judgment in the assignment of work.
Initially, we note the hearing officer’s observation
that ‘‘[t]here was not an abundance of record testi-
mony as to the duties Weaver performs.’’ And at a
subsequent point in his report the hearing officer stated
that the record ‘‘does not include an abundance of
specificity as to the circumstance when W. Weaver
makes . . . reassignments.’’ As we have noted supra,
the hearing officer’s conclusions are not supported by
testimony providing specific incidents of Weaver’s al-
leged exercise of independent judgment in the assign-
ment of work. To the contrary, the hearing officer ac-
knowledged that the record reflects that ‘‘typically the
assignment of particular jobs to mechanics is often
routine’’ and that ‘‘Olsen, not Weaver, determines the
specialties of each mechanic, and the work is assigned
to the mechanics consistent with the [established] pro-
cedure. . . .’’ Under these circumstances, and in the
absence of specific supporting evidence, the hearing
officer’s conclusion that Weaver exercises independent
judgment in the assignment and reassignment of work
appears to be mere supposition. It is at least equally
plausible that the role Weaver plays in the assignment
and reassignment of work flows from his being an ex-
perienced, lead mechanic, which, without evidence of
the exercise of independent judgment, does not support
a finding of supervisory status. See Sears, Roebuck &
Co., 292 NLRB 753 (1989). Similarly, in the absence
of any specific evidence that Weaver exercised any
independent judgment in the assignment and reassign-
ment of work when Coyle or Olsen was absent, the
hearing officer’s finding in this regard is seriously un-
dermined, especially given his other findings that Wea-
ver’s actual regular substitution for Olsen is ‘‘some-
what limited,’’ and that Coyle ‘‘does appear to be only
a phone call away.’’
For these reasons, we find the record evidence insuf-
ficient to establish that Weaver exercises independent
judgment in the assignment of work, and we overrule
the challenge to his ballot.
7. The status of Bernie Welcz
Bernie Welcz is classified as a sales supervisor in
the store’s auto center, and works under Coyle. Welcz
198 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
22 Bob Donnell earns $16.81 an hour, Butch Hayes $13.64 an hour, Ed
Vezinho $l3.4l an hour, and Sam DeFilce $12.68 an hour.
23 The Auto Center consists of three principal parts: the selling floor; an
automobile service area known as the back shop; and a stockroom. Coyle and
Olsen, back shop manager, write the work schedules for the back shop and
the stockroom employees.
24 The word ‘‘lead’’ in her title refers to inquiries from customers about
home improvements.
is hourly paid, does not receive a commission, and
earns $11 an hour. Four employees in the auto center
earn more.22 The majority of Welcz’ time is spent on
merchandising functions, such as making sure the sale
signs are up, receiving and counting merchandise, en-
suring that there is merchandise on the center’s selling
floor, and stocking merchandise on the selling floor as
it is needed. The remainder of his time is spent cover-
ing for greeter/dispatchers who have gone to lunch or
have taken a break and dealing with customers’ prob-
lems. Welcz also writes out the work schedules for the
auto center sales employees and service advisers.
Following store procedure, after Flippen and Coyle
determine the auto center employee budget, Coyle allo-
cates the funding for each of the auto center areas,23
and determines the number of employees to be sched-
uled and the hours each of them will work. Welcz
schedules the sales employees and service advisers tak-
ing into consideration Coyle’s determinations and the
employees’ preferences and availability. The schedule
usually covers a 2-week period and employees are ex-
pected to submit requests to Welcz for days off on the
Monday before the beginning of the schedule. Employ-
ees will often arrange hours among themselves and
seek oral approval for changes first from Coyle, and
if he is absent, from Welcz. Welcz reviews the em-
ployees’ requests and attempts to write a schedule
which will accommodate the employees’ requests with
Coyle’s requirements. Welcz then submits the schedule
to Coyle for Coyle’s approval. Coyle resolves em-
ployee problems or complaints with the schedule.
The hearing officer found Welcz to be a supervisor,
relying solely on Welcz’ role in scheduling sales em-
ployees and service advisers. He found that Coyle as-
signed Welcz the task of receiving and keeping track
of employee requests for particular hours of work and
made him responsible for incorporating the employees’
varying requests into a satisfactory schedule. More-
over, the hearing officer found that Welcz had to ad-
just the schedule to conform to differing budget and
coverage decisions. Although the hearing officer ac-
knowledged that Coyle must approve the schedule be-
fore it becomes final, he found that there was no evi-
dence that Coyle independently investigated the appro-
priateness of Welcz’ recommended schedule before
granting approval. The hearing officer also acknowl-
edged that employees would go to Coyle with their
scheduling complaints and that Coyle was available to
overrule Welcz’ recommendations, but found that
Welcz made the decisions ‘‘as to who will work
when.’’
Contrary to the hearing officer, we find that Welcz’
scheduling of the auto center sales employees and
service advisers does not involve the exercise of inde-
pendent judgment. As in the case of other departments,
there is no evidence that the availability of employees
varied from week to week or that Welcz exercised
independent judgment in scheduling employees. In-
deed, employee Drena Garrett testified that her avail-
ability did not change from week to week and that if
a change was necessary, such as a day off, she would
find another employee with whom to switch. Further,
it appears from the record that employees would seek
Coyle’s approval for schedule changes and only if he
was not present would they check with Welcz. Under
these circumstances, and in light of the hearing offi-
cer’s findings that Coyle must approve Welcz’ pro-
posed schedule and determine if the schedule should
be amended, we find no record support for the hearing
officer’s finding that Welcz’ scheduling role required
the exercise of independent judgment. Accordingly, we
overrule the challenge to Welcz’ ballot.
8. The status of Karen Wimberg
Karen Wimberg is classified lead24 development co-
ordinator in the store’s home improvements department
(HIPS) under Sales Checklist Manager Russ Lindsay.
She is a full-time employee earning $7.02 an hour. Her
work includes compiling statistics on developing and
collecting leads and following up on how well the
sales employees handle the leads. She takes calls from
customers who are considering home improvements
and schedules sales employees to call on these cus-
tomers. Although Wimberg spends nearly all her time
in the HIPS office, she does at times visit the HIPS
booth located on the selling floor where she instructs
the booth employees as to how to answer customers’
questions effectively and use the Employer’s literature
relating to home improvements. In addition, Wimberg
drafts the schedule for the HIPS office, which includes
three employees in addition to herself, and also sched-
ules the three booth employees. Lindsay determines the
coverage, and Wimberg drafts the schedule consistent
with Lindsay’s determination. Wimberg also assists
Lindsay with the paperwork involving the sales em-
ployees.
The hearing officer found that Wimberg is a super-
visor within the meaning of Section 2(11). He found
that Lindsay did not actively supervise the clerical em-
ployees in the HIPS office and the coordinators in the
booth and that Wimberg directed the day-to-day activi-
ties of these employees, who perceived Wimberg as
their supervisor. Although the hearing officer acknowl-
edged that in referring leads to outside sales employ-
ees, all the employees in the HIPS office followed an
199SEARS, ROEBUCK & CO.
25 Contrary to the hearing officer, we do not find that the testimony of em-
ployee Mary Beth Fine supports a finding that Wimberg exercises independent
judgment in scheduling employees. Fine testified that at her hiring interview
Wimberg indicated that Fine would work 20 hours a week. Fine stated that
she only wanted to work about 10 hours a week. Wimberg agreed to try to
accommodate Fine’s request. There is no evidence in the record to suggest that
the subsequent decision to accommodate Fine’s request was made by Wimberg
rather than Lindsay.
Q. Now, let me direct your attention to the time of the election and
shortly before that could you describe what you know of Ms. Wimberg’s
duties during that time?
A. Yes she was a supervisor. She would make up the schedule. She
would decide if there was a vacation time off, if there would be anytime
that we would change from what days that we would like to have off.
objective procedure, he concluded that the work was
not routine and that Wimberg ‘‘necessarily exercises’’
independent judgment in instructing the clerical em-
ployees in this regard. The hearing officer also found
that although Wimberg received guidance from Lind-
say in preparing the schedules for the HIPS office and
booth employees, it was Wimberg who actually sched-
uled the employees. The hearing officer further found
that Wimberg received and acted on employees’ re-
quests as to changes in hours of work and that
Wimberg approved the vacations of HIPS office and
booth employees. Finally, the hearing officer noted
that Wimberg’s role in an employee’s hiring interview
and her recommended approval of a sales employee’s
travel reimbursement request indicated that Lindsay
typically delegated to Wimberg responsibility as to the
supervision of the unit employees.
We find, contrary to the hearing officer, that there
is insufficient evidence in the record to establish that
Wimberg is a supervisor. Although Wimberg directs
the day-to-day activities of the HIPS office employees
and booth coordinators, there is no evidence that she
exercises independent judgment. All the office employ-
ees and coordinators perform the same work and where
is an objective system for the office employees to fol-
low to determine which outside sales persons will be
referred a lead. As to the scheduling of the HIPS of-
fice employees and booth coordinators, Lindsay, like
the other checklist managers, determines the coverage
for the office and booth employees, and Wimberg
writes up the schedule in accord with Lindsay’s in-
structions. There is no evidence that availability of em-
ployees varies from week to week or that when
changes are necessary, Wimberg, and not Lindsay, re-
solves them.25 Further, with respect to the hearing offi-
cer’s finding that Wimberg approves the vacation re-
quests of the office and booth employees, the hearing
officer relied on the following portion of HIPS em-
ployee Natale Sellen’s testimony:
As we have noted supra, such conclusionary state-
ments, without supporting evidence, are not sufficient
to establish supervisory authority. We also note that
the hearing officer stated in a prior part of his report
that it was the practice in the store for checklist man-
agers to approve employees’ vacation requests. There
is nothing in the record to indicate that the HIPS de-
partment operated differently from the other depart-
ments with respect to scheduling vacations. Finally,
there is no evidence detailing Wimberg’s role in the
hiring of Fine or her approval of a sales employee’s
travel reimbursement. Without such evidence, we can-
not conclude that Wimberg exercised supervisory au-
thority. Accordingly, we find that Wimberg is not a su-
pervisor within the meaning of Section 2(11) of the
Act and overrule the challenge to her ballot.
DIRECTION
IT IS DIRECTED that the Regional Director shall,
within 10 days from the date of this Decision, Direc-
tion, and Order, open and count the ballots of Paul
Blankenship, Alice Brown, Marianne Clark, James
Donaldson Jr., James Donaldson III, Annette
Dunleavy, Mary Beth Fine, Boyd Keele, Cheryl
Knowles, Jeffrey Lake, Sue Mark, George Maul, Rose
Maul, Susan McGowan, Harrison McKoy, Melissa
Payran, Sharon Pratt, Margurite ‘‘Peggy’’ Regal, Linda
Vasquez, Mary Lou Watkins, Susan Waters, Augustus
‘‘Gus’’ Weaver, William Weaver, Bernie Welcz, Susan
Williams, and Karen Wimberg and prepare and serve
on the parties a revised tally of ballots. Thereafter, the
Regional Director shall issue the appropriate certifi-
cation.
ORDER
It is ordered that the proceeding is remanded to the
Regional Director.