Twin County Grocers, Inc.

National Labor Relations Board - Board Decisions

Sep 12, 1979

244 N.L.R.B. 1028 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Twin County Grocers, Inc. and Nancy Hanks. Case
22-CA-8258
September 12, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
On May 21, 1979, Administrative Law Judge
Frank H. Itkin issued the attached Decision in this
proceeding. Thereafter, counsel for the General
Counsel filed exceptions and a supporting brief, and
Respondent filed a brief in opposition to the General
Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the complaint be, and it hereby is, dismissed
in its entirety.
DECISION
FRANK H. ITKIN, Administrative Law Judge. An unfair
labor practice charge was filed in this case on March 6, and
a complaint issued on May 8, 1978. The hearing was con-
ducted in Newark, New Jersey, on November 1 and 2,
1978. General Counsel alleges that Respondent Employer
violated Section 8(aXl1) and (3) of the National Labor Rela-
tions Act by instructing employees that they could not en-
gage in any discussions about union matters while at the
Employer's facility and by discharging employee Nancy
Hanks. Respondent denies that it violated the Act and, in
addition, alleges that Hanks was a supervisor beyond the
protection of Section 8(a)(1) and (3) of the Act. Upon the
entire record, including my observation of the witnesses and
after due consideration of the briefs of counsel, I make the
following findings of fact and conclusions of law:
FINDINGS OF FACT
Respondent Company maintains its principal office in
Edison, New Jersey, where it is engaged in the purchase,
sale, and distribution of groceries and related products. It is
undisputed and I find and conclude that Respondent Com-
pany is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act. It is also undis-
puted and I find and conclude that Local 863, International
Brotherhood of Teamsters, Chauffeurs. Warehousemen and
Helpers of America is a labor organization within the
meaning of Section 2(5) of the Act.
Nancy Hanks, the Charging Party, testified that she was
hired as a "mail clerk" by company Office Manager Marion
Gugliuzzi during February 1976. Some 7 months later,
about September 1976, Hanks was "promoted to supervisor
of the mailroom" by company Industrial Relations Director
William Henry. According to Hanks. Henry "asked me
would I like to become the supervisor of the mailroom":
"He said that Pam was not working out as the supervisor,
so they didn't want her to be supervisor any more ... "; "I
asked him what were they going to do if I didn't take it land
he] said they would probably hire somebody from outside";
and "so I said okay." There were about four persons "work-
ing in the mailroom." Hanks was then given a $15 weekly
pay increase. See Respondent Exhibit 2, the Employer's
"change-notice" form showing Hanks' promotion and raise.
There was no union activity at the Employer's Edison facil-
ity during this initial period.
flanks testified that her mailroom duties included receiv-
ing, sorting and distributing mail, running errands, making
copies on the Xerox machine, collating looseleaf price
booxks, and making minor repairs on the Xerox machine.
Hanks noted that she was not given any "training" when
promoted to "supervisor." Hanks claimed that all personnel
in the mailroom performed similar duties. However, certain
mailroom workers also performed specific additional tasks
such as "switchboard relief operator" and "typing bulle-
tins." Hanks also claimed that she did not interview, hire,
or fire employees in the mailroom. However, Hanks ac-
knowledged that she had been "asked her opinion a couple
of times" as to the advisability of hiring certain job appli-
cants. Hlanks was also "asked [her] opinion ... how the girls
were doing." In addition. Hanks admittedly filled out per-
formance evaluation forms for the mailroom personnel. See
General Counsel Exhibits 6 and 7. During June 1977 Hanks
evaluated employee Rita Richardson and recommended a
$25 weekly pay increase for the employee. Hanks also
evaluated employees Susan Duffy and Janet Gebel and rec-
ommended similar increases for them. Later, during No-
vember 1977, Hanks again evaluated employee Richardson
noting that this employee "is capable of taking over as a
mailroom supervisor" and recommending a $25 weekly pay
increase for her. Hanks also evaluated employee Susan Pre-
sutti about this same time and recommended a $20 weekly
pay increase for her. Hanks further evaluated employee
Tina Korfman and made a similar pay increase recommen-
dation for her. The specific amounts of the wage increases
which were recommended by Hanks were later reduced by
upper management.
Hanks further testified that if any person in the mailroom
"wanted to take a day off," he or she "would either speak to
[Hanks] or speak to" Office Manager Marion Gugliuzzi.
Hanks explained:
I always went to Marion [Gugliuzzi]. If I had told
somebody that they could take a day off and Marion
244 NLRB No. 168
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TWIN COLJNY GROCERS. INC.
had disapproved it. I don't think I would have been
able to.
flanks recalled that she was informed when employees
were being transferred from the mailroom to other sections
at the facility. On one occasion Hanks assertedly had rec-
ommended a particular employee for a transfer instead of
another worker, and Hanks' recommendation was not fiol-
lowed.
Hanks, at the time of her discharge in February 1978.
was the most senior person in the mailroom and was paid
$150 per week. The other mailroom workers were "making
about $115 to $120" per week. Hanks claimed that "work
assignments" in the mailroom "were really routine and ev-
erybody shared most of the work." However. Hanks ac-
knowledged that she "did consider it [her] responsibility to
make sure that the work was done and if there were any
problems in the way the work was done to try to do some-
thing about that." flanks also acknowledged that she
"wrote the procedures manual as to how the mailroom
work was to be handled." Hanks noted that if new mail-
room workers "had any questions as to how the work was
to be done ... they came [to her]" and she "did train them."
Moreover, Hanks recalled that "whenever special projects
came along which were assigned to the mailroom [Gugli-
uzzi] would ask [her] to train and instruct the other girls
with respect to the special project." Further, Hanks recalled
that she spoke to Office Manager Gugliuzzi about an em-
ployee's absenteeism and tardiness record.
Hanks attempted to serve as an observer for Teamsters
Local 863 in the Board-conducted representation election
on or about July 21, 1977. She also attempted to vote in this
election and in a second election on or about September 30,
1977. She was challenged by the Company as a supervisor
in both elections. In addition, as Hanks further testified:
I do recollect referring to myself as a supervisor once.
[it] was after the second election when I had some
problems in talking to the other clerks in the mailroom
and I remember saying, if you want me to be a super-
visor, I will be the supervisor, I will tell you what to do.
In addition, Hanks recalled that during the Union's organi-
zational campaign, Industrial Relations Director Henry
had warned her:
I [Hanks] was not protected under the Act in speaking
. . .about the Union, to encourage people to join the
Union. He said that to encourage people to join the
Union might- that I was a supervisor and that this
might influence the election.
Mailroom employee Rita Richardson testified that
Hanks was her "boss in the mailroom"; Hanks had
"trained [her] to do the work": and the mailroom employ-
ees "considered [Hanks] to be their supervisor in the mail-
room." Mailroom employee Susan Presutti testified that Of-
fice Manager Gugliuzzi "told" her when she, Presutti,
started her employment that Hanks was "the boss or the
supervisor in the mailroom": that she, Presutti, posed
"questions" or "problems" concerning her work to Hanks:
that she, Presutti, filled out a timecard each day and Hanks
later "put her initials on it" and sent it on "to payroll."
Presutti also testified that if she wanted a da' off:
I would go to Nancy and ask her and then Marion
would have to be informed of its also.
* * . . *
[U]sually, Marion left the decision up to Nancy
whether we [were] needed. whether there was going to
be enough people there to handle what was going on
for the day.
Industrial Relations Director Henry testified that:
Hanks performed the duties of a supervisor in that she
controlled three or four people continuously thereafter.
She was involved in their hire, she was involved in the
reporting on the performance of their duties. She was
involved in their training. She instructed them what to
do. She allocated the work to be done. She sat at the
one desk in the position of titular leadership so to
speak for the operation. She was in charge.
She gave them instructions as to what time they' were
to report to work and the duties they were to perform
during the day and the method in which they were to
perform them and determined which person would
perform what duties and gave them instruction
throughout the course of the day as to how they' would
be done.
Further, Henry noted that Gugliuzzi. as office manager, is
"responsible for the operation of the mailroom through a
mailroom supervisor." Henry added:
[Gugliuzzil is responsible for the telecommunications.
she is responsible for the messengers, she is responsible
for the employee benefits administration-which is the
primary activity which takes her time up. She does
recruiting of office personnel, screening, selecting, in-
terviewing of office personnel, in conjunction with the
respective managers or supervisors who are to receive
these new people.
Gugliuzzi. in turn, is responsible to Henry.'
Much of the testimony pertaining to the alleged supervi-
sory status of Hanks is not in dispute. However, insofar as
the testimony of Hanks differs with the testimonies of Hen-
ry, Gugliuzzi, Richardson, and Presutti as summarized and
quoted above, I credit the testimonies of Henry, Gugliuzzi,
Richardson, and Presutti as more accurate and reliable.
Hanks' testimony was, at times, unclear and confusing. And
I note in this respect that the above testimonies of Henry,.
Gugliuzzi, Richardson, and Presutti are in significant part
mutually corroborative and are in part substantiated by the
testimony of Hanks as well as by uncontroverted documen-
tarv evidence of record.
Discussion
Counsel for Respondent argues that Hanks was at all
times material to this case a supervisor beyond the protec-
tion of Section 8(a)( I) and (3) of the Act. A "supervisor" is
defined in Section 2(1 ) of the Act as:
I Office Manager Gugliuz2l's testimony substantiates in part the above
testimon o Henr
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any individual having authority, in the interest of the
employer, to hire, transfer, suspend, lay off, recall. pro-
mote, discharge, assign, reward or discipline other em-
ployees, or responsibly to direct them, or to adjust their
grievances. or effectively recommend such action, if in
connection with the foregoing the exercise of such au-
thority is not of a merely routine or clerical nature, but
requires the use of independent judgment.
Actual existence of true supervisory power is to be distin-
guished from abstract, theoretical or rule-book authority. It
is well settled that a rank-and-file employee cannot be
transformed into a supervisor merely by investing him or
her with a "title and theoretical power to perform one or
more of the enumerated functions." N.L.R.B. v. Southern
Bleachery & Print Works, Inc., 257 F.2d 235, 239 (4th Cir.
1958), cert. denied 359 U.S. 911 (1959). What is relevant is
the actual authority possessed and not the conclusory asser-
tions of a company's officials. And while the enumerated
powers listed in Section 2(11) of the Act are to be read in
the disjunctive 2 Section 2(11) also "states the requirement
of independence of judgment in the conjunctive with what
goes before." Poultry Enterprises, Inc. v. N.L.R.B, 216 F.2d
798, 802 (5th Cir. 1954). Thus, the individual must consis-
tently display true independent judgment in performing one
of the functions in Section 2(1 1) of the Act. The exercise of
some supervisory tasks in a merely "routine," "clerical,"
"perfunctory," or "sporadic" manner does not elevate a
rank-and-file employee into the supervisory ranks. N. L. R. B.
v. Security Guard Service, Inc., 384 F.2d 143, 146-149 (5th
Cir. 1967). Nor will the existence of independent judgment
alone suffice; for "the decisive question is whether [the indi-
vidual involved has] been found to possess authority to use
[his or her] independent judgment with respect to the exer-
cise (by him or her) of some one or more of the specific
authorities listed in Section 2(11) of the Act." See N.L.R.B
v. Brown & Sharpe Manufacturing Company, 169 F.2d 331,
334 (Ist Cir. 1948). In short, "some kinship to management,
some empathetic relationship between employer and em-
ployees, must exist before the latter becomes a supervisor
for the former." N.L.R.B. v. Security Guard Service, Inc.,
supra, 384 F.2d at 149.
Applying these principles to the credible evidence of rec-
ord here, I find and conclude that Charging Party Hanks
was at all times pertinent to this case a supervisor within
the meaning of Section 2(11) of the Act. Thus, as found
supra, Hanks was given the authority to direct the operation
of the Company's mailroom employees. She assigned duties
and instructed employees on work procedures. She trained
new employees, prepared a mailroom procedures manual,
made recommendations to upper management concerning
the hiring of new employees, evaluated the work perfor-
mances of employees, and recommended to upper manage-
ment wage increases for employees. I note that although
2
Cf. Wtes Penn Power Co. v. N.LR.B., 337 F.2d 993, 996 (3d Cir. 1964).
upper management did not grant employees the specific
wage increases which were recommended by Hanks, the
employees were in fact granted wage increases following
her recommendations. The employees in the mailroom were
told by upper management when they were hired that
Hanks was their boss and supervisor. They regarded Hanks
as their supervisor. They looked to her for advice and train-
ing. They went to her for time off and she set their hours.
She would initial their timecards and forward them to the
payroll section. Indeed, if Hanks were not a supervisor the
mailroom employees worked for the most part without any
supervision.
Further, Hanks was repeatedly apprised by upper man-
agement that she was a supervisor. She was paid more than
the rank-and-file workers. She had the only desk in the
mailroom. And she was restricted by upper management in
her attempt to engage in organizational and union activities
because she was a supervisor.
In sum, Hanks sufficiently possessed the authority to use
her independent judgment with respect to the exercise by
her of one or more of the specific authorities enumerated in
Section 2(11) of the Act. She responsibly directed the rank-
and-file mailroom workers and effectively recommended
action. The exercise of such authority by her was not of a
merely routine or clerical nature but required the use of her
independent judgment. She was therefore a supervisor at all
times pertinent to this case and beyond the protection of
Section 8(a)( I) and (3) of the Act.
It is unnecessary for me, under these circumstances, to
discuss further the evidence pertaining to the alleged Sec-
tion 8(a)(1) and (3) violations. These alleged violations and
related testimony pertain only to Hanks (see G.C. brief,
pages 11-16), and since she is beyond the protection of
these provisions the complaint must be dismissed in its en-
tirety.
CONCLUSIONS OF LAW
I. Respondent Company is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. Charging Party Union is a labor organization within
the meaning of Section 2(5) of the Act.
3. Respondent Company has not violated Section 8(aX1)
and (3) of the Act as alleged.
ORDER'
I recommend that the complaint herein be dismissed in
its entirety.
In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions. and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
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