The Detroit Edison Co.

National Labor Relations Board - Board Decisions

Jul 22, 1985

275 N.L.R.B. 1164 (N.L.R.B. 1985)

1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Detroit - Edison Company and ,- David M. Kus,
Petitioner and Local 223 , Utility Workers of
America, AFL-CIO. Case 7-RD-2117 - -
22 July 1985
DECISION AND DIRECTION
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
The National Labor Relations Board has consid-
ered challenges to an election on 11 July 1984 and
the hearing officer's report recommending disposi-
tion of them. i The election was conducted pursu-
ant- to a Stipulation for Certification Upon Consent
Election. The tally of ballots shows 13 for and 11
against the Union, with 2 challenged ballots which
are sufficient in number to affect the results.
The hearing officer issued his report on 11 Octo-
ber -1984 finding David Seever a supervisor and
therefore an ineligible voter, and recommending
that the challenge to his ballot be sustained. The
hearing officer concluded that the remaining chal-
lenged ballot of Dennis R. O'Donohue is no longer
determinative2 and .accordingly recommended cer-
tification of the Union as the unit employees' col-
lective-bargaining agent.
Thereafter the Employer filed timely exceptions
and a supporting brief to the hearing officer's
report, and the Union filed a brief in reply.
The Board has reviewed the record in light of
the exceptions and briefs and adopts the hearing of-
ficer's findings and recommendations only to the
extent consistent with this Decision and Direction.
We find, contrary to the hearing officer, that
Seever did not exercise the degree of authority
over bargaining - unit employees during his 19-
month occupation of supervisory positions to de-
stroy his voting eligibility or substantial interests as
a member of the bargaining unit.
The facts show that David Seever had been en-
gaged in meter-reading work for the Employer for
approximately 13 years prior to becoming the
group leader in its Ann Arbor meter-reading de-
partment in 1978. The meter-reading department is
part of the Employer's customer and marketing
services division. The meter-reading supervisor re-
ports to General Service Supervisor Hanselman-
who in turn reports to the director of customer and
marketing services, Shelton.
i The Board ordered a hearing on the Employer's Objections 1 and 2
,and the two challenged ballots However, prior to the opening of the
hearing the Acting Regional Director approved the Employer's with-
drawal of its objections Therefore there are no objections to the election
pending before us
2 O'Donohue's voting eligibility was stipulated by the parties at the
hearing and found by the hearing officer
275 NLRB No. 158
The Ann Arbor meter readers - report to the
office by 7:45 a.m. to pick up the day's route cards
and leave for their respective field assignments in
their own or company cars . About 4:30 p.m.-they
report in by telephone regarding completion of the
day's assignment and deliver the cards to the office
on the following morning . They -are required to
dress in company uniforms and safety shoes while
reading meters.
In 1978 Seever became a group leader under
Meter-Reading Supervisor James Vasher who held
that position for many years . As a group leader
Seever made route and car assignments by distrib-
uting prepackaged route cards and automobile keys
to the meter readers. He checked and correlated
the prior day's reading cards and forwarded them
to the company central billing office. In addition
Seever was responsible for -assuring that meter
readers observed company safety regulations and
for reporting reading discrepancies to manage-
ment.3 He was also expected to perform regular or
special meter .readings and to be dressed in uniform
while performing meter reading.
In accordance with the Employer ' s established
practice of stepping up individuals into supervisory
positions on a temporary basis in appropriate cir-
cumstances , Seever was asked to substitute tempo-
rarily for Meter -Reading Supervisor Vasher on 21
February 1983 while Vasher was participating in
the development of an incentive meter -reading pro-
gram for the Employer. On 14 March Seever was
assigned to replace Vasher in the special project
when Vasher was unable to continue because of
medical and other problems. Special meter reader
Forshee was stepped up temporarily to replace
Seever as meter-reading supervisor . Seever com-
pleted the project assignment on 18 April, but was
requested to resume the temporary meter-reading
supervisor position as a result of Vasher 's decision
to retire . Forshee was returned to his special
meter-reader duties.4
Shelton admonished Seever that he would be
stepped up only until the vacancy created by
Vasher's retirement was filled and that it would not
give Seever any preference in the Employer's se-
lection . of a permanent supervisor . The vacancy
was posted on 25 April 1983, and Seever was
3 A written discharge action in evidence shows that it was initiated by
then group leader Seever's detection and report to Supervisor Vasher
that a substantial number of readings by one meter reader were missing
Seever's report touched off an investigation which revealed that the
meter reader in question had intentionally destroyed the cards
° Subsequently, Forshee and Seever cast unchallenged ballots in a
Board-conducted representation election on 11 May 1983, which the
Union won Thereafter, Seever became a dues paying member of the
Union and retained his unit seniority in accordance with the provisions of
the collective-bargaining agreement negotiated between the Union and
the Employer
DETROIT EDISON 'CO 1165
among -the applicants for that position. Thereafter,
on 11 November,' Shelton 'informed Seever that
Doris Low from customer service had been select-
ed as the permanent supervisor. Shelton requested
that Seever continue in the role of temporary su-
pervisor because of his wealth-of knowledge con-
cerning the work of the meter-reading department
and Low's lack of knowledge or experience with
meter reading. On 5 March 1984 Shelton decided
to create a second permanent supervisor position
because of the - 26-to-1 , employees-to-supervisor
ratio in Ann Arbor compared with the 11- or 13-
to-1 ratio in the other company meter-reading de-
partments. Shelton again asked Seever to step up
temporarily to that position until - a permanent su-
pervisor could be selected. The job was posted on
24 May, but no selection had been made by the
time of the hearing on 27 September 1984.
Shelton testified that Seever performed essential-
ly the same duties as temporary meter-reading su-
pervisor as he had as group leader, i.e., planning,
directing, coordinating, and checking the work of
the meter readers.5 He was emphatic in his testi-
mony that he had instructed Seever not, to disci-
pline or deal with employee grievances or prob-
lems, but rather to refer them to Hanselman or
himself. Shelton explained that because Seever ob-
viously stood a very good chance of going back to
his permanent group leader job, "I didn't want to
jeopardize his [Seever's] relationship with his peer
group" by granting Seever such authority. Shelton
testified that he instructed Seever merely to check
with Hanselman or Shelton with respect to em-
ployee requests for vacation or emergency leave
and prior to sending any employee home. Shelton
further testified that' he requested Seever to sit in
on one or two Company-Union meetings - about
meter-reading issues-because of Seever's superior
knowledge and experience in that area, and that he
permitted Seever to attend in Hanselman's stead a
few meetings with supervisors from other company
locations for the purpose of carrying information to
the meeting and bringing information back to Ann
Arbor.
Meter reader Joyce Frierson testified that she re-
garded Seever as her boss, that he gave her an ap-
praisal which recommended no pay increase,6' and
5 The major difference, according to Shelton, was that as a supervisor
Seever was not permitted by the Union's contract to perform unit work
of reading meters
6 The appraisal form in evidence is signed by Seever and states
Joyce has only worked 16 days since May 1, 1983, I have no ap-
praisal at this time I recommend no pay increase at this time
This is the sole employee evaluation proffered into evidence We find
that the foregoing statement indicates only that the employee did not
work sufficiently long to be eligible for either an appraisal or an increase
in pay, rather than constituting an appraisal and recommendation on her
menu
that he scheduled her vacation leave.7 Frierson fur-
ther testified regarding a few incidents in -which
Seever had reprimanded her prior to taking her to
Hanselman's_ office, describing her conduct to Han-
selman, and remaining. while Hanselman questioned
Frierson regarding her version of the incidents.
Hanselman testified that, whenever Seever report-
ed safety infractions or employee misconduct to
him, Hanselman always conducted his own investi-
gation into the matter. He further testified that he
did not issue any written warnings to any employ-
ee based solely on what Seever reported to him.
Hanselman specifically testified that he did not
issue any discipline to ' Frierson based on reports
and factfinding discussions initiated by Seever with
respect to Frierson."
Union Representative Krukowski testified that
Seever advised Low on one occasion to send home
employees without pay, and that the matter was
the subject of a union grievance. Hanselman testi-
fied with respect to that incident as follows: On
Saturday, 21 January 1984, three individuals who
had volunteered to • work overtime arrived at, the
office individually and advised Supervisor Low
that they would not read meters that day-because
of the subzero weather. Low telephoned Hansel-
man without success, then reached Seever who ex-
plained that the company policy was to send the
employees home and he did not think that they
would be paid for showing up. On the following
Monday, Low reported the incident to Hanselman,
and he confirmed that her actions were correct.
Accordingly, the Employer denied- the Union's
grievance. On 18 April 1984 the Union filed a
grievance demanding that the Employer either re-
frain from hiring contract meter readers or return
Seever to, his group leader position.
The - hearing officer found from the record that
Seever's status was something more than a tempo-
rary supervisor and therefore he was not eligible to
vote on that basis.9 He noted that Seever lacked
' The vacation schedule in evidence is the unit seniority list with
blocks of time juxtaposed beside each employee's name It shows that Se-
ever's own 1983 and 1984 vacations were scheduled according to. unit se-
niority
8 The hearing officer erroneously found that in one instance Seever
"initiated disciplinary action that- resulted in an employee receiving a
written warning for failing to follow his instructions as her supervisor "
The only written warnings in evidence are as follows A Written Record
of Oral Warning on 29 March 1983 (while Forshee was temporary super-
visor) with respect to Frierson's failure to follow an unnamed supervi-
sor's warning about company regulations against jumping over custom-
ers' fences, A Written Record of Oral Warning dated 2 March 1984,
signed by Doris Low and pertaining to Fnerson's failure to follow Low's
instruction to report immediately for medical attention by the Company
to her complaint of frostbite -
A written warning in evidence dated 2 April 1984 and signed by Low
makes no reference to a failure to follow a supervisor 's instructions
9 E. I. du Pont & Co, 210 NLRB 395 (1974)
1166 DECISIONS ,OF NATIONAL LABOR RELATIONS BOARD
actual decison-making authority, but found that
evidence that he was the initiator of the discipli-
nary process and participated in factfinding sessions
leading to discipline elevated him to a level of au-
thority within the meter-reading department that
isolates him from the interests of the unit members
and establishes him. a supervisor within the mean-
ing of Section 2(11) of the Act. The hearing officer
bolstered his conclusion based on evidence show-
ing, inter alia, that Seever was the only meter-read-
ing supervisor fo' 8-months , that he "trained" a su-
pervisor (and advised her to send employees
home), that he made an employee appraisal and
recommended no increase , and triggered a written
warning to an employee for failing to obey his su-
pervision.
We find quite apart from the issue of Seever's
temporary status that the record does not establish
that Seever exercised independent judgment in
overseeing the work of the meter readers. On the
contrary , it is clear that Shelton severely limited
Seever's authority to exercise any significant super-
vision and that he performed primarily ministerial
duties. It.is plain from Hanselman's testimony that
Seever's report of employee misconduct fell, far
short . of effective recommendations for discipline,
and that all such reports were the subject of inde-
pendent investigation by Hanselman . We attach no
significance to the fact that Seever was the only.su-
pervisor for 8 months in view of the evidence
showing the availability and actual participation by
Hanselman (and Shelton) in the supervision of the
department. Nor do we find that Seever "trained"
permanent Supervisor Low in any supervisory as-
pects of her position. Rather, the record is clear
that he merely assisted and familiarized Low with
the procedures and necessary background informa-
tion for running the department . Likewise, we do
not read any supervisory direction into Seever's
suggestion to Low with respect to sending the em-
ployees home on 21 January, 1984 after they re-
fused to perform the overtime work. In sum, we do
not find evidentiary support for the hearing offi-
cer's conclusion as to Seever's exercise of true su-
pervisory authority. Furthermore, the record
shows that the Employer and the Union recog-
nized Seever 's continuing interest in his group
leader position. Thus, the Company retained him in
that position on its official records and applied the
collective -bargaining agreement to him as a unit
employee, as well as admonished Seever as to the
temporary nature of his assignments and decision
not to select him as a permanent supervisor. The
Union maintained Seever's place. on the unit senior-
ity list, accepted his dues, and even grieved only 3
months prior-to the decertification election for his
return to unit work.
We conclude from the foregoing that the record
evidence does not establish that Seever possessed
or exercised supervisory authority or achieved a
level of authority which distinguished his interests
from those of the other bargaining unit employees.
Accordingly, we find that he was at all times an el-
igible voter in this election. Furthermore,' as the
parties stipulated and the hearing officer found that
Dennis R. O'Donohue occupied a position in the
bargaining unit on the payroll eligibility date and
the date of the election and was an eligible voter,
we' shall order that the matter be remanded to the
Regional Director for the purpose of opening and
counting the two challenged ballots and issuing the
appropriate certification.
DIRECTION
The case is remanded to the Regional Director
for Region 7 who shall, within 10 days from the
date of this Decision and Direction, open and
count the ballots of David Seever and Dennis R.
O'Donohue and thereafter prepare a revised tally
of ballots, including therein, the count of such bal-
lots, and issue the appropriate certification