Sears, Roeburck And Co.

National Labor Relations Board - Board Decisions

Jan 31, 1989

292 N.L.R.B. 753 (N.L.R.B. 1989)

SEARS ROEBUCK & CO
Sears, Roebuck and Company and Building Material
Teamsters Local 282, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, AFL-CIO Case 2-RC-
20461
January 31, 1989
DECISION, DIRECTION, AND ORDER
BY MEMBERS JOHANSEN, CRACRAFr, AND
HIGGINS
The National Labor Relations Board , by a three-
member panel, has considered determinative chal-
lenges to an election held April 7, 1988, and the
heanng officer's report recommending disposition
of them The election was conducted pursuant to a
Stipulated Election Agreement The tally of ballots
shows 30 for and 29 against the Petitioner, with 2
challenged ballots
The Board has reviewed the record in light of
the exceptions and briefs and has adopted the hear-
ing officer 's findings ' and recommendations as
modified 2
The hearing officer found that lead receiver Ace
Johnson is a supervisor within the meaning of Sec
tion 2(11) of the Act and recommended that the
' The Employer has excepted to some of the hearing officer s credibil
ity findings The Board s established policy is not to overrule a hearing
officers credibility resolutions unless the clear preponderance of all the
relevant evidence convinces us that they are incorrect Stretch Tex Co
118 NLRB 1359 1361 (1957) We find no basis for reversing the findings
2 We correct the following inadvertent errors by the hearing officer
(1) p 4 is corrected to reflect that the lead mechanics and lead receiver
report respectively to the back shop manager and auto center manager
(2) p 4 is corrected to reflect that the auto center is located 300 feet
from the Employers main facility (3) on p 14 the statement that John
son previously headed receiving at another Sears location is corrected to
reflect that Johnson previously headed receiving at the main Bronx store
(4) on p 18 the statement that Bolton s testimony corroborated that of
Kuntzman Sahler and Semedo regarding Rutledge s ability to direct em
ployees is corrected to reflect that Kuntzman did not testify about Rut
ledge (5) the first word on p 20 should read Johnson rather than
Rutledge (6) p 27 is corrected to reflect that Alexander testified that
Strazzeli supervises receiving parts battery room and stock employees
(7) p 29 is corrected to reflect that Alexander testified that Rutledge was
offered the backroom manager position after his promotion to lead me
chanic (8) on p 30 March 1 is corrected to May 1 (9) p 36 is cor
rected to reflect that Alexander testified that he based his estimate of
Johnson s work duties on his knowledge of operations in other locations
as well as on his observations of Johnson in the auto center (10) on p 36
the statement that If no stock persons are present or available to per
form this work Kuntzman will contact Johnson Johnson either performs
said work or will direct a stock person to perform the labor is correct
ed to reflect Kuntzman s testimony that if the stock men aren t there or
they are doing something else than [sic] the driver will go in the back
and see [Johnson] and [Johnson] can do that or any of the stock men can
do that (11) on p 37 the statement Alexander stated he failed to clas
sify Johnson as a supervisor on the above mentioned document when
Johnson held the position of receiving manager is corrected to reflect
Alexander s testimony that according to company records Johnson was
neither a receiving supervisor in the main store nor in the auto center
(12) p 57 is corrected to reflect that the auto center managers office is
located in the auto center rather than in the main store (13) on p 60 L
2 Torres should read Pena
Except as discussed infra these errors do not affect the outcome of
this case
753
Petitioner 's challenge to Johnson 's ballot be sus-
tained Although acknowledging that Johnson
cannot hire, fire, transfer, or suspend employees,
layoff, recall, evaluate, promote, or reward em-
ployees, or adjust grievances, the hearing officer
nonetheless found that Johnson is a statutory super-
visor based on his ability to responsibly direct em-
ployees Specifically, the hearing officer deter-
mined that Johnson has overall responsibility for
receiving work in the auto center and that he trains
employees in receiving duties, instructs them to
unload trucks , evaluates employee skill when as-
signing work , orally reprimands employees , and au-
thorizes part-time receiving employee Caceres' ab-
sences from work The hearing officer further
found that if Johnson were not a supervisor, re-
ceiving work would be unsupervised because Auto
Center Manager Joe Strazzeli's office is located in
the main store, and that the ratio of supervisors to
unit employees would be extremely low
The Employer excepts, contending that Johnson
lacks the traditional indicia of supervisory status,
that he is listed on its records as nonsupervisory,
does not attend management meetings, and has
wages significantly less than some acknowledged
unit employees, and that he recently received an
award not available to supervisors Although the
Employer admits that Johnson trains new employ-
ees in receiving, it maintains that unit employees
also train and that training , alone , is not a supervi-
sory function The Employer further asserts that
Johnson cannot responsibly direct employees, ap-
prove absences, evaluate employee skill, or orally
reprimand employees For the reasons below, we
find merit in the Employer's exceptions
Johnson did not testify at the hearing and the
Employer 's sole witness , Store Manager Sam Alex-
ander, primarily sought to refute the Union s claim
of supervisory status rather than to detail Johnson's
duties and responsibilities Therefore, the record on
which the hearing officer relied consisted primarily
of the fragmented testimony of employees and
other individuals claiming familiarity with John-
son's work Although we accept the hearing offs
cer's credibility findings for the purposes of this de-
cision, we nonetheless find that the testimony of
credited witnesses , taken in its entirety, coupled
with Alexander's testimony to the extent it was not
discredited, fails to establish that Johnson is a su-
pervisor within the meaning of Section 2(11) of the
Act
The Employer operates an automotive center in
Bronx, New York, where it is engaged in the sale
and installation of automotive parts There are ap-
proximately 67 employees in the auto center and 3
admitted supervisors Auto Center Manager Straz-
292 NLRB No 77
754 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
zeli, Sales Supervisor Melvin Torrain, and Back
Shop Manager Claudio Ferdinand. According to
the Employer, Strazzeli oversees the entire auto
center operation and directly supervises 10 employ-
ees including lead receiver Johnson, part-time re-
ceiver Caceres, and parts employees, battery room
employees, and a stockman. Johnson, a 22-year em-
ployee, is one of only two employees in receiving
and has been lead receiver for approximately 7
years.3 Previously, he was receiving supervisor in
the main store, located 300 feet from the auto
center.
The hearing officer found, and we agree, that
Johnson trains employees in receiving work. Ca-
ceres testified that, on his hire, Store Manager
Strazzeli informed him that Johnson would train
him and that Caceres should follow Johnson's in-
structions. Caceres, who speaks little English,
learned receiving work by observing Johnson.
Stock employee Pena also testified that Johnson
trained him to unload trucks. And Kurt Kuntzman,
who makes regular deliveries to the auto center,
testified that he has seen Johnson train new em-
ployees to unload trucks.
Although the testimony clearly demonstrates
that Johnson trains employees in receiving work,
there is no evidence that, in so doing, Johnson
evaluates employees' performance, makes recom-
mendations to the Employer, or otherwise exer-
cises independent judgment. Instead, it appears that
Johnson is merely a senior, experienced employee
who instructs new workers in receiving work.
Such training, alone, does not establish supervisory
status . See, e.g., Heck's Inc., 277 NLRB 916, 919
(1985); Judy Hornby Designs, 279 NLRB 1271, 1273
fn. 1 (1986).
The hearing officer further found that Johnson
"responsibly directs" employees within the mean-
ing of Section 2(11) of the Act, as Johnson has
overall responsibility for the receiving department,
for directing and assigning receiving work, for
evaluating employee skills, and, as discussed infra,
for reprimanding employees. We disagree.
Receiving work in the Employer's auto center
consists of receiving and unloading automotive sup-
plies from trucks, counting and storing the deliv-
ered goods, delivering tires to installers, and depos-
iting used tires on a truck outside the auto center.
The receiving duties are routine and require little
supervision. Caceres testified that, on his hire, he
worked an entirely different shift from Johnson,
8 Although we adopt the hearing officer 's conclusion that the listing of
job titles in the unit description does not amount to a Norris- Thermador
list, we note that the unit description here did include "lead receivers"
and that Ace Johnson is the only lead receiver at the Employer's prem-
ises . (See Norris-Thermador Corp., 117 NLRB 1340 (1957).)
performing the same receiving work. Pena stated
that he learned to unload trucks after only 1 day's
instruction from Johnson. And Kuntzman testified
that after Johnson trained employees to unload
trucks for I day, the employees would work inde-
pendently.
Moreover, receiving work in the Employer's
auto center frequently is accomplished through co-
operative efforts, rather than by Johnson's direct
assignments. Caceres testified that if a truck arrives
when only he or Johnson is working, each will
unload the truck alone . When both Caceres and
Johnson are working, Caceres states that he will
notify Johnson if he spots an arriving truck and
they typically will unload it together.4 If Johnson
first notices an arriving shipment, he tells Caceres,
"The truck is here. Let's go out." Caceres finishes
the work he is performing and then joins Johnson
to unload the truck. Where there is a large ship-
ment, Caceres says other employees volunteer their
help.
There are instances , however, when Johnson
does assign receiving work. Caceres testified that
when he worked a different shift from Johnson's,
Johnson would stay late to give him work assign-
ments . Caceres also stated that when he worked
the same hours as Johnson, and a large shipment
arrived, Johnson sometimes instructed him to stop
work and unload the truck. Kuntzman, Sahler, and
Moore also testified that they have seen Johnson
instruct receiving, porter, and stock employees to
help unload trucks. And Pena stated that Johnson
has directed him and another stock employee,
Lawrence, to unload a truck. Pena testified that
when he and Lawrence performed this receiving
work, Johnson usually assigned Lawrence the fork-
lift work on the basis that:
Well, Lawrence at that time was more experi-
enced in that than I did [sic]. So he used to
mostly tell Lawrence, Lester Lawrence to
drive the forklift. That time [sic] I didn't know
how to maneuver it that well.
Contrary to the hearing officer, we do not view
these assignments of work as "responsible direc-
tion" within the meaning of Section 2(11). Thus,
because receiving work in the Employer's auto
center is repetitive, easily learned, and requires
little direct supervision, Johnson's assignments are
routine in nature.5 These work assignments do not
require the exercise of independent judgment, a
prerequisite for finding supervisory status.6 Under
4 Caceres testified that approximately once each week Johnson unloads
a truck alone. Twice weekly Johnson unloads a truck with other employ-
ees.
6 See, e .g., House of Mosaics, 215 NLRB 704, 710 (1974).
Gem Urethane Corp., 284 NLRB 1349 (1987).
SEARS ROEBUCK & CO
comparable facts in Chicago Metallic Corp, 273
NLRB 1677 (1985), enf denied in relevant part 794
F 2d 527 (9th Cir 1986), we held that a shift lead-
man was not a statutory supervisor because his as-
signment and direction of production employees
was routine and more clerical than supervisory
Similarly, in Williamson Pggly Wiggly, 280 NLRB
1160, 1166-1169 (1986), enfd 827 F 2d 1098 (6th
Cir 1987), a produce manager was found not to be
a supervisor where the work in his department was
routine and where the employees required little, if
any, direction in completing their tasks
Nor does the fact that Johnson selected Law-
rence over Pena for forklift driving reflect John-
son's ability to responsibly direct employees As in
Machine Tool & Gear, 237 NLRB 1109 (1978),
enfd 652 F 2d 596 (6th Cir 1980), Johnson is
merely an experienced employee who knows
which employee can better operate certain equip-
ment Johnson's use of this information when as
signing receiving work does not support a finding
of supervisory status
Nor do we agree with the hearing officer that
Johnson reprimands employees Store Manager Al-
exander testified, without contradiction, that John-
son is not authorized to discipline employees and
that discipline is recorded on deficiency memos
that Johnson did not and could not prepare The
hearing officer nonetheless found that Johnson
orally reprimanded employees Caceres and Pena
Caceres, who had been employed by the Employer
for 5 months when he testified, stated that he once
went to lunch without realizing that Johnson was
still on break Johnson called the incident to his at-
tention, told him not to do it, and informed Ca-
ceres that someone always had to be on the job
Pena testified that while Johnson was training him
in receiving work, Pena improperly broke the seal
on a truck without first matching the seal to the
shipping receipt Johnson informed Pena that this
was an error and instructed him, in the future, to
await his instructions before opening trucks'
Contrary to the hearing officer, we do not view
the Caceres and Pena incidents, the only two cited
during Johnson's 7 years as lead receiver, as evi-
dence of Johnson's supervisory status Even assum
ing that Johnson's verbal admonishments properly
can be termed "oral reprimands," such minor inci-
dents do not establish supervisory status 8 Thus,
there was no evidence that these incidents had any
7 We do not view Johnson s instruction that Pena await his approval
before opening a truck as evidence of supervisory status Pena testified
that in Johnson s absence he was directed to secure approval from a
nonsupervisory unit employee before opening a truck
8 Dickinson Iron Agency 283 NLRB 1029 (1987)
755
effect on the job status of either employees Nor
did Johnson's statements reflect the type of discre-
tion indicative of supervisory status 10 Instead,
Johnson's admonishments were more in the nature
of corrections offered by a senior employee to
newer hires, and are not sufficient to establish su-
pervisory authority Gem Urethane Corp, 284
NLRB 1349, 1350 (1987)
The record also does not support the hearing of-
ficer's finding that Johnson exercised independent
judgment by authorizing Caceres' absences from
work Store Manager Alexander testified, without
contradiction, that new employees are instructed
during indoctrination to contact personnel when
they miss work Personnel will then notify the ap-
propriate department of the employee's absence
Caceres testified that although he received a tele-
phone number to contact in the case of absences,
he instead telephoned Johnson or a manager when
he was absent On those occasions when he con-
tacted Johnson, the lead receiver would say
"Okay "
Relying on Caceres' testimony, discussed supra,
the hearing officer found that Johnson exercised in
dependent judgment in authorizing Caceres' ab
sences However, based on the record as a whole,
we disagree First, Caceres testified that the Em-
ployer and Johnson never informed him that John-
son was his supervisor Neither did Caceres state
that Johnson instructed him to report absences to
Johnson Instead, Caceres apparently decided on
his own to notify Johnson when he missed work
Yes-he was told-he was given a phone
number to call if he had to be out but to be
more correct he would call the person that did
his schedule [Johnson] 11
The evidence also does not show what use Johnson
made of Caceres' leave information Caceres testi-
fied that Johnson merely said, "Okay" when noti
fled of the absence, Johnson never discussed leave
with him Significantly, the only individual to dis-
cuss leave with Caceres was Auto Center Manager
Strazzeli who told him "not to be out " In sum, the
record evidence fails to establish that Johnson exer-
cised independent judgment in authorizing Caceres'
absences 12
9 John Cuneo of Oklahoma, Inc 238 NLRB 1438 1439 (1978) enfd
106 LRRM 3077 (10th Cir 1980)
i0 Chicago Metallic Corp supra , 273 NLRB at 1693
' i Caceres testimony is in the third person because he testified
through a translator
12 Cf Wilco Business Forms 280 NLRB 1336 (1986) In Wilco supervi
sory status was found where inter aha the supervisor informed em
ployees who telephoned in their absences that he would handle it The
employees were never told that the supervisor lacked authority to grant
Continued
756 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Finally, we do not agree with the hearing officer
that Johnson must be a supervisor, lest the receiv-
ing work be unsupervised, and in order to prevent
a sharply imbalanced supervisor employee ratio As
to the lack of supervision, the hearing officer noted
that the auto center manager's office was located in
the main building, and that Strazzeli could not
view the unloading of trucks in the Employer's
parking lot from his office Unless Johnson were a
supervisor, the hearing officer concluded, receiving
employees would entirely lack supervision We dis
agree The receiving work, as discussed supra, is
routine, repetitive, and requires little direct supervi-
sion Moreover, Auto Center Manager Strazzeli's
office is located in the car center, rather than in the
main building, and Store Manager Alexander, who
testified that he maintains exclusive responsibility
for operation of the auto center, can observe the
auto center from his office And, according to Ca-
ceres, Alexander visits the auto center daily Ac-
cordingly, supervision is available as needed
Nor would finding Johnson a supervisor correct
any imbalance in the ratio of supervisors to em-
ployees Inasmuch as the Petitioner asserts , and the
hearing officer finds, that Johnson only supervises
part time employee Caceres on a regular basis, and
other employees only as needed to perform receiv
ing work, the supervisory ratio would remain es-
leave or that he was required to check with management Here however
there is no evidence that Johnson instructed Caceres to notify him when
he would miss work and significantly Caceres admitted that the Em
ployer had instructed him to follow another procedure for reporting his
absences
sentially unchanged even if Johnson were a super
visor
In sum , the factors relied on by the hearing offi-
cer, 13 considered separately and cumulatively, and
when reviewed in light of the record, are insuffi
cient to establish that Johnson possessed or exer-
cised any of the indicia of supervisory status enu
merated in Section 2(11) Therefore, contrary to
the hearing officer, we shall overrule the challenge
to Johnson s ballot, and direct that it be opened
and counted
DIRECTION
IT IS DIRECTED that the Regional Director shall,
within 10 days from the date of this Decision and
Direction, open and count the ballot of Ace John
son and prepare and serve on the parties a revised
tally of ballots Thereafter, the Regional Director
shall issue the appropriate certification
ORDER
It is ordered that the proceeding is remanded to
the Regional Director
13 In her report the hearing officer summarizes the testimony of Alex
ander Caceres and Pena to the effect that Johnson schedules Caceres
hours of work However the hearing officer does not analyze this tests
mony when discussing Johnson s status as a 2(11) supervisor We have
reviewed this testimony and find that it does not establish that Johnson is
a statutory supervisor
Alexander whose testimony on this point is unrefuted and not discred
ited stated that the auto center manager informs Johnson how many
hours are budgeted for receiving work Johnson a full time employee
who works a regular schedule then merely determines which remaining
budgeted hours Caceres will work We do not view such scheduling as
an indicium of supervisory status