NOTICE: This
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Starwood Hotels & Resorts Worldwide, Inc.,
d/b/a Sheraton Universal Hotel and
Unite Here Local 11. Case 21–CA–36429
August 31, 2007
DECISION AND ORDER
By Chairman Battista and Members Schaumber
and Walsh
On December 2, 2005, Administrative Law Judge Lana H. Parke issued the attached decision. The Respondent filed exceptions and a supporting brief, the General Counsel filed an answering brief, and the Respondent filed a reply brief.
The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.
The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,1 and conclusions only to the extent consistent with this Decision and Order.
This case concerns the discharge of Front Desk Supervisor Kevin Grace. It is undisputed that the Respondent, a hotel, discharged Grace for refusing to remove a union button from his shirt. The judge found that the discharge violated Section 8(a)(3) and (1) of the Act. The Respondent excepts to this finding, asserting that Grace was a supervisor under Section 2(11) and thus excluded from the coverage of the Act. Based on Grace’s authority to effectively recommend discipline and to effectively recommend against hiring applicants, as well as secondary indicia, we find that Grace was a supervisor; thus, the Respondent did not violate Section 8(a)(3) and (1) when it discharged him.
i. background
Overview
Grace worked as one of three front desk supervisors (FDSs) from October 2003 until his discharge on June 25, 2004.2 The FDSs were part of a department known as the front office. The front office encompassed guest registration, luggage assistance, concierge services, the switchboard, and guest complaint resolution.
The FDSs reported to Front Office Manager Anton Akopian, who in turn reported to Director of Rooms Tony Fernandez. The FDSs themselves oversaw two positions: (1) the guest service agents (GSAs), responsible for guest registration, and (2) the Sheraton service promise agents (SSPAs), responsible for resolving guest complaints.
As the FDS on duty, Grace was also designated the manager on duty, meaning that he was responsible for the general operations of the entire hotel. In his FDS role, Grace was in charge of the front office area, assisting GSAs with check-in and handling guest complaints that were not resolved by GSAs or SSPAs.
Disciplinary Authority
The Respondent utilized a “coach-and-counsel” approach to
respond to employee disciplinary problems.
Under that approach, according to Fernandez, whenever Grace decided that
employees had violated the Respondent’s policies, procedures, or standards, he
(Grace) had the responsibility to coach and counsel
them. Thus, he spoke with the employees
to identify their errors and provide instructions on correct procedures, and
when necessary he admonished them for inappropriate conduct. Grace also warned employees that they would
face discipline for a second similar offense.
Fernandez testified that, when circumstances merited it, Grace would “make
recommendations [] for more drastic measures.”
Grace and other FDSs documented all coach-and-counsel sessions through
e-mails to upper management. That
documentation was placed in the employee’s personnel file as a record of the
violation for consideration in the event of a future infraction. In this manner, the coach-and-counsel
documentation prepared by Grace initiated the disciplinary process. Grace also had the authority to decide
whether to send an offending employee home.
The Respondent used disciplinary forms titled “corrective action notices.” The notices included the following steps: verbal, written, final written, suspension, and separation. A “verbal” warning was triggered by documentation reflecting a second coach-and-counsel session about a particular type of infraction. Fernandez characterized the “verbal” warning as the “second major step” in the disciplinary process.
Grace conducted four coach-and-counsel sessions while working for Respondent. Two of the four instances involved the same employee, Tony Chacon.3 On January 31, Grace counseled Chacon for being rude to a guest on the telephone. Grace’s documentation of that counseling session indicates that he told Chacon that “I will not [accept] guests . . . telling me that one of my staff was rude or abrupt,” that Chacon needed to work on being friendly, accommodating, and helpful and that “this is the last time a guest should . . . tell me that he was not helpful, rude or abrupt.” On February 23, Grace counseled Chacon for two incidents in the same evening: first, Chacon was again rude to a guest on the telephone, and second, he argued with a guest at the front desk and then angrily punched the wall. Grace spoke to the guest and the two GSAs who witnessed the incident. After his investigation, Grace told Chacon that his behavior was “reprehensible” and that he should be prepared to give a statement to upper management and human resources. Although the GSAs told Grace that they thought Chacon should be sent home, Grace decided that such a measure was unnecessary because it was near the end of Chacon’s shift.
Grace documented both of the February 23 coach-and-counsel sessions he had with Chacon in one e-mail that evening. In the e-mail, Grace described how the events unfolded. He wrote:
I will speak to you tomorrow about Tony[’s] version. I also got a version from [the two GSAs] who told me that Tony should be sent home. . . . This was a very serious situation and I made Tony aware of how serious his behavior was, and I told him to be prepared to give a statement to Anton [Akopian], Tony [Fernandez], and possibly HR tomorrow.
As promised in his e-mail, Grace met with Fernandez the next day to further discuss Chacon’s misconduct. Grace recommended that Chacon receive the most severe discipline possible for his conduct. Fernandez testified that he accepted what Grace told him regarding the incident, because Grace was his front office supervisor and “what he says goes.” Consequently, Fernandez and Akopian issued Chacon a “written” warning for violation of hotel rules and regulations, poor service, and scaring two coworkers. At the top of the corrective action notice, Grace was listed as the supervisor, and Akopian and Fernandez as managers. The narrative under “Reason” was consistent with the information relayed in Grace’s coach-and-counsel e-mail:
Mr. Kesselman [guest] complained to FD Supervisor Kevin Grace, who verified with you that you did have an argument with the guest and then you hit a wall out of anger, but out of sight from everyone. Both GSAs on duty also verified that the event took place leading to this incident and gave statements to Kevin Grace. . . .
Hiring Authority
With respect to hiring, Grace reviewed applications and resumes, interviewed applicants, and made hiring recommendations. Fernandez testified that if Grace had recommended hiring an applicant, he would have accepted the recommendation, although he would still have personally interviewed the applicant because it was “part of the process.” Fernandez further testified that a recommendation from Grace not to hire an applicant “would have been fatal.
Secondary Indicia of Supervisory Status
Grace earned a higher rate of pay than the GSAs or SSPAs, attended management meetings, and received management memos. When Grace began his position as an FDS, he signed two documents that only managers and supervisors were required to sign. Like other managers and supervisors, but unlike nonmanagement employees, Grace had an e-mail account with the Respondent. Grace’s name tag included his first and last name, with the title “supervisor”; the name tags of front office employees, by contrast, stated their first names only.
ii. analysis
Section 2(11) of the Act defines “supervisor” as
any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing, the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.
An individual need possess only one of the enumerated
indicia of authority in order to be a statutory supervisor, so long as the
exercise of such authority is carried out in the interest of the employer and
requires the use of independent judgment.
Avante at Wilson, Inc., 348
NLRB No. 71 (2006), citing California
Beverage Co., 283 NLRB 328, 328 (1987).
The burden of proving supervisory status falls on the party asserting
it. NLRB v. Kentucky River Community
Care, 532
Effective Recommendation to Discipline
The record shows that when Grace recommended discipline of employee Chacon, upper management accordingly disciplined the employee. Fernandez credibly testified that he accepted what Grace told him regarding the incident with Chacon, stating “what he says goes.” Indeed, the record indicates that Fernandez followed Grace’s recommendation to accelerate the normal progression of discipline, because he issued Chacon a “written” warning rather than lesser discipline such as a “verbal” warning.
In Progressive
Transportation Services, 340 NLRB 1044 (2003), the Board found that a deck
lead supervisor possessed authority to effectively recommend discipline under
Section 2(11) because she initiated the disciplinary process. The deck lead supervisor brought disciplinary
issues to the attention of the director of housekeeping, who decided the level
of discipline based on the supervisor’s account and advised her about the
preparation of the disciplinary notice.
Similarly, in Mountaineer
Park, Inc., 343 NLRB 1473, 1474–1475 (2004), the Board found that
individuals classified as assistant supervisors were supervisors under Section
2(11) because they were authorized to write recommendations for disciplinary
action. Although those writeups were
reviewed by an upper manager, the manager had a policy of routinely “signing
off” on recommendations if they were justifiable, without conducting an
independent investigation.
Consistent with the above precedent, we find that Grace possessed the authority to effectively recommended discipline using independent judgment. Grace initiated disciplinary action against Chacon by conducting coach-and-counsel sessions with him on January 31, and February 23, concerning misconduct toward guests and documenting those sessions. Furthermore, he followed up on February 24, by discussing the matter with Fernandez and, determining that the circumstances warranted it, made a recommendation that harsh discipline be taken. Fernandez acted in accordance with Grace’s recommendation.4
Contrary to the judge’s speculation, nothing in the record suggests that upper management conducted an independent investigation before deciding to impose discipline on Chacon. Fernandez described the process that occurred before the issuance of discipline to Chacon, including his discussion of the matter with Grace and Grace’s recommendation. There is no evidence that Fernandez or Akopian spoke directly to the guest or anyone else concerning the incident. The judge simply assumed that such an investigation took place because, although the corrective action notice “generally tracks the information Mr. Grace provided in his February 23 e-mail, there are additional details and quotations that suggest Mr. Fernandez and/or Mr. Akopian conducted additional investigation.”5
We find that the additional details cited by the judge merely paraphrase Grace’s documented account and provide no basis for the judge’s inference. The record, including Fernandez’ testimony and the corrective action notice, makes clear that it was Grace who spoke with the guest and the two GSAs who had witnessed the incident. Moreover, the evidence shows that Grace’s e-mail to Fernandez was not the only communication between the two regarding this incident. Rather, they discussed the events in person the following day, at which time Grace recommended that Fernandez discipline Chacon severely.
Neither the corrective action notice nor any other evidence indicates that upper management did anything more than speak with Grace before issuing the warning to Chacon. On the contrary, the corrective action notice expressly cites Grace’s investigation. Fernandez also credibly testified that he accepted what Grace told him regarding the incident, stating, “what he says goes.” Thus, Fernandez relied on Grace’s judgment.
Our colleague asserts that the issue of whether Fernandez
or others conducted an independent investigation is a “close call,” and thus
the Respondent did not meet its burden of proof on the supervisory issue. In asserting that there is a “close call,”
our colleague notes only that the Respondent failed to ask witness Fernandez
whether he or others investigated the incident before imposing discipline. However, Fernandez credibly testified that he
accepted Grace’s recommendation because “what [Grace] says goes.” That is more than sufficient to establish
that Grace made an effective recommendation.
Citing Jochims v.
NLRB6 and
In Jochims, the individual at issue, a nurse, had
authority to document infractions affecting residential care at her discretion.
Supra at 1165. Those writeups would be placed in employees’
files for review by management, and management would then decide whether any
disciplinary action was warranted.
In Vencor Hospital–Los Angeles, the Board declined to find that the issuance of verbal warnings, which were subsequently reduced to writing and placed in the offending employee’s personnel file, established supervisory authority to effectively recommend discipline. In reaching that conclusion, the Board relied on several factors: the absence of evidence that the disputed individuals “make any recommendations as to discipline when making such reports,” much less specific recommendations as to discipline;8 the evidence indicating that upper management would not act on reported incidents without conducting an independent investigation; and the absence of evidence “as to what role these reports play in any discipline that may be imposed,” i.e., that they affect job tenure or status. Supra at 1139.
Neither of these cases controls our decision here. Initially, we note that Jochims is not on point. The
court’s holding made clear that its decision does not apply to the present
case. The court stated that “this case
is not about petitioner’s involvement in a ‘system’ of progressive discipline.”
Further, in Jochims,
the connection between the writeups prepared by the nurse and any disciplinary
action against an employee was attenuated.
Although the forms were retained in the employee’s personnel file, the
court found that they presented merely the possibility of discipline. No evidence demonstrated that they were a prerequisite
to discipline or routinely resulted in discipline.
Here, by contrast, the record shows that Grace’s coach-and-counsel sessions and documentation were a prerequisite to Chacon’s discipline. Fernandez indicated that these sessions and attendant documentation were the first step in the Respondent’s disciplinary process. During his conversation with Fernandez following up on that documentation, Grace recommended that Chacon be disciplined, and management followed his recommendation without further investigation.
Accordingly, we find that Grace possessed and exercised the authority to effectively recommend discipline of employees.
Authority to Effectively Recommend Against Hiring
The authority to effectively recommend against hiring a
candidate can establish supervisory authority.
See Berger Transfer & Storage,
253 NLRB 5, 10 (1980), enfd. 678 F.2d 679 (7th Cir. 1982), supplemented by 281
NLRB 1157 (1986) (supervisory status found where a salesman’s recommendation to
hire a candidate was followed by interviews with company officials, but his recommendation
against hiring a candidate was normally final); HS Lordships, 274 NLRB 1167, 1173 (1985) (supervisory status found
where a bar manager’s recommendations not to hire were followed).
Fernandez testified that hiring recommendations by FDSs were “very, very key,” and if Grace recommended that a candidate not be hired, that “would be fatal.” Although Fernandez did not discuss specific examples of Grace giving a negative hiring recommendation, Section 2(11) requires only possession of authority to carry out an enumerated supervisory function, not its actual exercise. See NLRB v. Southern Seating Co., 468 F.2d 1345, 1347 (4th Cir. 1972), citing Turner’s Express, Inc. v. NLRB, 456 F.2d 289, 292 (4th Cir. 1972). The evidence must be sufficient to show that such authority does exist. Avante at Wilson, Inc., 348 NLRB No. 71, slip op. at 2 (2006).
Here, Fernandez unequivocally testified that he would not hire an applicant if Grace recommended against it. According to Fernandez, if Grace said that he did not like a candidate, his recommendation would be fatal to the candidate’s further consideration for hire. Fernandez explained that “we would not have proceeded with a candidate that does not have the support of their eventual Manager.”9 The judge credited Fernandez, noting that he testified “consistently, forthrightly, and with clear recall.” We find that the evidence establishes that Grace possessed the authority to make effective recommendations with regard to hiring.
Secondary Indicia
Finally, there is evidence of secondary indicia to further support Grace’s supervisory status. Grace regularly served as manager on duty, his title was “front desk supervisor,” and his name tag said “supervisor.” Grace had an e-mail account with the Respondent, a privilege exclusive to members of management. Grace was paid more than the employees he supervised. He attended management meetings, received management memos, and signed documents when he began working as an FDS that were only given to members of management. Thus, the Respondent treated and held Grace out to others as a supervisor. Having found that Grace possesses supervisory authority with regard to discipline and hiring, we find that this evidence corroborates our determination of his 2(11) status.
Conclusion
We have found that Grace is a supervisor, based on his authority to make effective recommendations concerning discipline and hiring, as well as secondary indicia.10 Therefore, the Respondent’s discharge of Grace did not violate Section 8(a)(3) and (1). Accordingly, we dismiss the complaint in its entirety.
ORDER
The complaint is dismissed.
Dated,
______________________________________
Robert J. Battista, Chairman
______________________________________
Peter C. Schaumber, Member
(seal) National
Labor Relations Board
Contrary to my colleagues, I agree with the judge that Grace was not a supervisor within the meaning of Section 2(11) of the Act. At most, Grace was the sort of “minor supervisory employee” whom Congress intended to bring within the protections of the Act.1 Thus, I also agree with the judge that the Respondent’s discharge of Grace for refusing to remove a union button violated Section 8(a)(3) of the Act. To reach a contrary result, my colleagues in the majority do not give proper consideration to a strongly worded, on-point decision of the United States Court of Appeals for the District of Columbia Circuit. Jochims v. NLRB, 480 F.3d 1161 (2007), reversing Wilshire at Lakewood, 345 NLRB No. 80 (2005). Accordingly, I dissent.
i. background
Grace was a “front desk supervisor” (FDS) who spent most of his shift checking in guests alongside the employees he oversaw. He used a detailed checklist prepared daily by upper management to ensure that the GSAs and SSPAs completed their tasks.2 As a FDS, Grace was paid at a higher rate than the GSAs and SSPAs, but like them, he was paid hourly.
As part of his job, Grace was required to coach and counsel other front desk employees if they were not following proper procedures. In his testimony, Director of Rooms Fernandez described coach-and-counsel sessions as helping employees to correct “honest mistakes.”3 Grace conducted four coach-and-counsel sessions while working for the Respondent, only one of which resulted in discipline. Grace did not recommend discipline in any of the coach-and-counsel e-mails he sent to management, and he lacked the authority to issue written warnings on his own.
ii. analysis
Disciplinary Authority
The same reasoning used by the majority here to find that Grace possessed disciplinary authority sufficient to make him a supervisor was rejected by the Court in a very similar case, Jochims v. NLRB, supra.4 There, the court found that the Board had deviated from precedent when it found that a nurse who issued writeups, which were then reviewed by managers and occasionally resulted in discipline, possessed authority to initiate discipline. The court found that the Board had ignored the following well-established principles:
A long line of Board precedent . . . establishes that written reprimands do not, in and of themselves, constitute discipline or serve as evidence of supervisory authority.
For the issuance of reprimands or warnings to constitute statutory authority, the warning must not only initiate, or be considered in determining future disciplinary action, but also it must be the basis of later personnel action without independent investigation or review by other supervisors.
In the present case, the majority makes the same mistakes. Properly applying the foregoing principles to
the facts at hand, it is plain that Grace does not possess supervisory authority
to discipline or to effectively recommend it.
To
begin with, there can be no doubt that Grace did not exercise
supervisory authority when he performed his coach-and-counsel duties. As shown above, management regarded the
coach-and-counsel sessions as training, not discipline.5
Even after an employee received two coach-and-counsels for the same
mistake, it was upper management that met with the employee and decided what,
if any, discipline to impose. Nor did Grace perform any
supervisory action in sending e-mails to management documenting the coach-and-counsel
sessions. All of the coach-and-counsel
e-mails prepared by Grace were reviewed by upper management, and none contained disciplinary recommendations. Nor did they automatically result in disciplinary
action. Of the four coach-and-counsel sessions
Grace documented, only one resulted in discipline. See Jochims,
supra at 1165, 1169–1170 (nurse’s writeups contained no disciplinary recommendations,
and were reviewed by managers who would occasionally decide to impose
discipline; the Court deemed the nurse’s authority reportorial, not disciplinary). Accordingly, those e-mails do not establish supervisory
status.
The facts of this case are also similar to those of
Similarly, the one occasion when Grace orally recommended
to management that an employee be disciplined does not establish supervisory
authority. There was no showing that
management disciplined Chacon because
of Grace’s recommendation; it is just as likely that management would have
disciplined Chacon based on Grace’s e-mail informing it of the underlying incidents. It is also noteworthy that Grace did not recommend
any specific action, such as a written warning or suspension.
Furthermore, the Respondent, which bears the burden of proof with respect to supervisory status in this proceeding, failed to establish that it did not conduct an independent investigation of the underlying events. By comparing the corrective action notice given to Chacon with the coach-and-counsel e-mail sent by Grace, the judge found that upper management had conducted an independent investigation. The majority disagrees with that factual finding, and I acknowledge that it is a close call. But at the hearing, the Respondent failed to ask Fernandez if he or any other manager investigated the incident before imposing discipline. Any lack of evidence, or lack of clarity in the evidence, must be construed against the party bearing the burden of proof. See Armstrong Machine Co., 343 NLRB 1149, 1149 fn. 4 (2004), and cases cited.
Hiring Authority
The judge found, and I agree, that the evidence failed to
show that Grace possessed the authority to effectively recommend either that
applicants be hired or not be hired. Director of Rooms Fernandez testified that he
thought that Grace interviewed applicants and recommended them for hire, but he
was “not positive.” Even if Grace
recommended someone for hire, Fernandez would still interview the individual
and make the final decision. Respondent
failed to give even a single example of management’s giving significant weight
to a hiring recommendation from Grace or any other FDS. Compare Fred
Meyer Alaska, Inc., 334 NLRB 646, 649 (2001) (meat managers found to have
supervisory authority to hire or effectively recommend applicants for hire
where there was specific evidence that upper managers followed hiring recommendations
from meat managers, and that one employee was hired based on a meat manager’s
interview before upper management met the employee).
The judge also reasonably found that Fernandez’s additional
statement—that Grace’s recommendation not to hire someone would have been “fatal”—was
insufficient to prove the matter asserted.
The judge, who otherwise generally credited Fernandez’ testimony, observed
that “no evidence was presented of any applicant to whose employment a front
office supervisor objected. . . .” I
agree that Fernandez’ bare statement, without more, does not establish that the
FDSs had the ability to reject applicants for hire. See Jochims,
supra at 1168 (“[s]tatements by management purporting to confer authority do
not alone suffice”); see also
Other Indicia of Supervisory Status
It is well settled that secondary indicia, i.e., indicators of supervisory status not specifically enumerated in Section 2(11), are considered only if there are one or more 2(11) indicia present. See, e.g., Central Plumbing Specialties, 337 NLRB 973, 975 (2002). Here, because there is insufficient evidence of any of the 2(11) criteria, the evidence of secondary indicia is irrelevant. Moreover, the evidence of secondary indicia cited by the majority amounts to little more than that management denominated Grace a supervisor. That, of course, does not enable the Respondent to meet his burden. See, e.g., Jochims, supra at 1168 (“supervisory authority is not conferred on an employee merely by vesting her with a title”).
iii.
conclusion
There is insufficient evidence to establish that Grace possessed authority to discipline or effectively recommend discipline, or that Grace possessed authority to hire or recommend hiring. In addition, I am troubled by the majority’s cavalier treatment of the District of Columbia Circuit’s decision in Jochims, supra. Finally, “the [B]oard has a duty to employees to be alert not to construe supervisory status too broadly because the employee who is deemed a supervisor is denied employee rights which the [A]ct is intended to protect.” Westinghouse Elec. Corp. v. NLRB, 424 F.2d 1151 (7th Cir. 1970). That is precisely what has happened here. For all those reasons, I would adopt the judge’s findings and conclude that the Respondent violated Section 8(a)(3) by discharging employee Grace.
Dated,
______________________________________
Dennis P. Walsh, Member
National Labor Relations Board
Sonia Sanchez, Esq., for the General Counsel.
Matthew T. Wakefield and Jonathan P. Barker, Esqs. (Ballard, Rosenberg, Golper, &
Savitt, LLP), of
Jasleen Kohli, Esq., of
DECISION
i. statement of the case
Lana H. Parke,
Administrative Law Judge. This matter
was tried in Los Angeles, California, on
September 28 and 29, 2005,1 upon an
order consolidating cases, consolidated amended complaint and notice of hearing
(the complaint) issued July 29, 2005, by the Regional Director of Region 21 of
the National Labor Relations Board (the Board) based upon charges filed by
UNITE HERE Local 11, AFL–CIO (the Union).2 The complaint alleges Starwood Hotels &
Resorts Worldwide, Inc., d/b/a Sheraton Universal Hotel (Respondent) violated
Section 8(a)(1) and (3) of the National Labor Relations Act (the Act). Respondent essentially denied all allegations
of unlawful conduct.3
ii. issues
1. Whether Kevin Grace was, at relevant times, a
supervisor of Respondent within the meaning of Section 2(11) of the Act.
2. Whether Respondent violated Section 8(a)(3)
and (1) of the Act on June 25, 2004 by discharging Kevin Grace.
3. If so, whether Grace should be afforded the
remedies of backpay and reinstatement.
iii. jurisdiction
At all
relevant times, Respondent, a
iv. findings of fact
A. The Discharge of Kevin Grace
At all times
relevant hereto until the July merger that resulted in the formation of the
During the
relevant period, Respondent followed a “manager on duty” (MOD) system, in which
someone was designated to be responsible for the well being of the entire Hotel
and its operation at all times. The
front office supervisor on duty served as the MOD with an additional MOD
assigned to assist on weekends.7 Fernandez was available by telephone, even on
his days off, in case “anyone” needed him but was rarely contacted during his
off hours, as the front desk supervisors “handled the situation . . . [were]
very responsible . . . [knew] the policies and procedures . . . took initiative
. . . [and] did proper follow through . . . [Fernandez] learned of events upon
his return [to the Hotel]. . . .”
Respondent
employed Grace as a front desk supervisor from October 2003 until his date of
discharge, June 25. In May, Grace
contacted union representatives for the purpose of seeking union representation
for the front desk supervisor positions.
In June, Grace and Casanas signed union membership/authorization
cards. It is unnecessary to detail the
unsuccessful November attempts made by a union steward/employee delegation to
present the authorization cards to management. Counsel for the General Counsel
asserts that the conduct of Mathew T. Wakefield (
On June 25,
Grace wore a one-inch diameter button bearing the legend “Local 11, Hotel
Employees & Restaurant Employees Union.
B. The Duties and Authority of Kevin Grace
Three
witnesses testified concerning the duties of the front desk supervisors: Grace, Casanas, and Fernandez. After carefully considering the testimony of
all three witnesses, I have determined that the testimony of Fernandez, where it
conflicts with that of the other two witnesses, should be credited. Fernandez testified consistently, forthrightly,
and with clear recall. I note that, at
the time of his testimony, he was employed at the Long Beach Hilton hotel,
which has no business ties to Respondent; Fernandez may be regarded as an
unbiased witness.
In his
position as front desk supervisor, Grace was in charge of the front office
area, making sure the GSAs fulfilled their responsibilities. In doing so, Grace utilized detailed checklist
instructions prepared by upper management, entitled “front desk PM daily checklist
instructions,” which specified the steps required to accomplish such tasks as
checking new management memos, making sure employees understood the contents,
and monitoring guest arrivals and nonarrivals, departures, room moves, room
discrepancies, and various matters associated with room billings and
payments. Grace spent 70 percent of his
workday following the checklist and assisting GSAs with checking in
guests. Grace also handled such guest complaints
as the GSAs were unable to resolve. In
placating dissatisfied guests, Grace had authority to offer them jelly beans,
points toward a complimentary stay, late checkout, or bill reductions. If guest injuries, safety or cleanliness concerns,
or room-furnishings malfunctions occurred, Grace could direct security,
maintenance, or housekeeping to address the problems. Grace also directed employees to cover for or
assist other employees as needed. For
example, Grace might direct an employee to attend the bell desk in the
momentary absence of the bell person or assign an employee to assist on the
switchboard. When front office employees
had interpersonal conflicts that affected the work, Grace discussed the
problems with them and thereafter communicated the discussion to management personnel
with whom subsequent resolution rested.
The front desk
supervisors were encouraged to attract new business, which entailed, in part,
determining the appropriate room rate the GSAs could charge walk-in
customers. On a busy night with high
occupancy levels, Grace had discretion to decline to rent a room at a discounted
rate. Conversely, on a “dead” night, he
could extend the lowest rate available to walk-in customers. While Grace did not have to obtain management
approval before determining the room rate for a particular night, he reported
the rates to management because Respondent wanted “to stay in communication
with all the different shifts and managers.”
Although no specific evidence shows that Respondent had established occupancy/room
rate policies for Grace to follow, Fernandez’ testimony supports an inference
that such guidelines existed. Regarding
Grace’s authority to set room rates, Fernandez testified: “Mr. Grace might . .
. say . . . go ahead and take the
lowest rate available or . . . give that discount, or . . . the employee rate
is closed but . . . extend it to those folks. . . .”8
To “help
develop . . . and cross-train” the front office supervisors, Fernandez had them
work on different skill sets, such as scheduling and payroll, so that all of
them would have an opportunity to gain some experience in those areas. As did other front office supervisors, Grace
prepared front office schedules based on Hotel occupancy projections and
prescribed staffing levels. In doing so,
he took into account employee seniority established by the
collective-bargaining agreement9 and vacation
and special leave requests.10 Fernandez considered that Grace effectively
“move[d] staffing about and made adjustments, gave people time off as required
and also added people on when necessary,” balancing appropriate staffing with
the Hotel budget. According to Fernandez:
[T]he union
seniority list . . . makes the process a little bit more difficult because of
the fact that you have to specify which individuals can work, at what
particular times. But, however being a
hotel, you have a different flow of business going about. You have to be able to massage those staffing
hours and guidelines and you, also, have to . . . talk to the staff about it,
whether or not it would be all right, for them to work certain days but you
still have to . . . follow strict guidelines, as well as trying to balance what
is actually going to be required, for a particular day or week . . . Everyone
understands . . . that all schedules are based on occupancy.
Front desk
employees were required to submit written requests for days off (“time away”
requests) or for specific workdays to a front desk manager or supervisor;
during the relevant period, Grace signed a number of such request forms on the
line designated “manager approval.” With
regard to the written “time away” requests, Fernandez testified as follows:
A. [Fernandez] [request for time away forms] are requests for time off, for—if somebody wanted to take vacation time or some special requests. So, these would be filled out and then, whichever Front Office Supervisor was in charge of scheduling, at that time period, would approve or hopefully, move the dates about or disapprove it.
. . . .
Q. Whose decision would it be, to approve then the time off?
A. That would be the schedule maker or the Front Office Supervisor. If the Front Office Manager was also doing it, then it would be his approval but whoever is actually in charge of the schedule would be in charge of saying yes or no.
Q. Then, what would be the thought process that would go into whether or not one of these would be approved, by a Manager or Supervisor?
A. It really—it is based, on our occupancy. We want our—our Associates to have the time off, especially if they have not had one, to get some rest or getting their special requests, for an event that they have. However, we have to abide, by our scheduling based on business levels. So, if it cannot be done, then, again, we try to work with the staff, as best as we—could—but if it cannot be approved, it will not be approved. Now, they have a—they can elevate it. They can say, you know, can I talk to, you know, the Front Office Manager? Can I talk to Tony but, otherwise, [the front office supervisors] have the authority to say yes or no, on these vacation requests.
Grace also
signed on the “manager’s signature” line of various payroll/timeclock
adjustment forms. Grace called unscheduled
employees into work, utilizing the union seniority list, released employees
early, and authorized overtime as needed.11 The record does not contain specific information
as to what procedures or system Grace may have followed in handling staffing
needs. Fernandez testified as follows:
Q. [
A. [Fernandez]: Too many, yes, I have.
Q. Would Mr. Grace have had the authority, to send someone home, if there were too many employees working?
A. Yeah. He had to because, again, he is responsible for our manpower hours, for that time period. So, if, let us say, the count dropped or a group changed their plans or they all came in earlier, he is required to—first, he will do it diplomatically: Who wants to go home first? Then, if he does not get enough—enough volunteers, he goes by seniority or he goes by who came in last or first and then, he starts sending people home.
Q. Then, how about if there are not enough employees working? Let us say, somebody did not show up for work. Does he have the authority, to decide who to call in?
A. He could, if he thought it was necessary, to bring in additional staffing. He would have to probably think about whether or not with the staff that he has, whether to extend somebody that is already working there, maybe, extend them overtime, instead of having to call somebody, on their day off, or, maybe, it is a situation where he, himself, probably could just, you know, fill in, for the time period. But, if it is a situation, in which we are really busy, something of that nature, then he is going to have to call in help of [sic] else the night will go haywire or the shift will go haywire.
Q. Does he have to get any authority, before he made any of those decisions?
A. No.
Q. Did he have the authority, to approve time off, for someone?
A. Yes and say, if he was—looking at this—at the schedule, again, one of the things that they would do is, they would go through their file of special requests and vacations and based on that, they will be able to say, okay, this is good. We can do this or not or he can—In most situations, he can approach the staff member and say, you know—stating a case of, we are really busy, at this time. We need everybody, you know, all hands on deck. However, can we move it up a weekend or is there something we can work with, in that manner? So, he would approve or disapprove, in that—in that way.
Q. Now, he would approve or disapprove someone’s time off, did he have to go, to you, or any other Manager, to get their okay?
A. No. He would just—he would just say, you know, yes, we can do this or no and this is the reason why.
Grace reminded
employees of their break times, which were set by law and by union contract, and
covered for their absences if necessary.
Grace could use petty cash to purchase food from nonhotel eateries for
quick employee consumption when press of business prevented front office employees
from taking scheduled breaks,12 to
reward employees for extraordinary effort, or to celebrate a special occasion.
For
disciplinary notification to employees, Respondent utilized a form entitled
“corrective action notice.” Respondent’s
printed corrective action notice lists various categories of employee misconduct
with adjacent checkboxes, and, under the designation, “Type of Action:” (also with adjacent checkboxes) sets forth the
following disciplinary measures: verbal,13
written, final written, suspension, and separation. A section labeled “Reason:” provides space for written explanation. The front desk supervisors had no authority
to effectuate any of the discipline noted on the corrective action notice. Those disciplinary measures were the
Grace
documented what occurred in coach-and-counsels by e-mails to Akopian and
Fernandez.16 The following instances of employee
misconduct resulting in coach-and-counsel occurred during Grace’s tenure:
1. On January 20, Grace told front desk
employee, Keshana Miller, of the importance of working in full uniform, which
she assured him she would do in future.
2. On January 31, Grace investigated a guest
complaint about front desk employee, Tony Chacon (Chacon), informed Chacon that
he would “not [accept] guests [telling him] that one of [his] staff was rude or
abrupt.” Grace also told Chacon,
essentially, that he needed to work on being friendly, accommodating, and
helpful and that it was “the last time a guest should [tell Grace] that
[Chacon] was not helpful, [or was] rude or abrupt.”
3. On February 23, Grace held another coach-and-counsel
with Chacon regarding his attitude with a guest on the telephone. Two hours later, another incident occurred
between Chacon and a guest. Grace investigated
the matter, told Chacon his behavior had been reprehensible and that he should
be prepared to give a statement to Akopian, Fernandez, and possibly human
resources. Grace informed Akopian and Fernandez
of the incident in an e-mail dated February 23, stating that he had gotten “a
version from [GSAs, Leslie and Mohammed] who told me that Tony should be sent
home. I told them that it is near 11 pm
and he will be leaving shortly.”17 The February 23 e-mail contains no disciplinary
recommendation.
4. On June 13, Finister and Grace together told
front desk employee, Wanda Earl, to be more careful about assigning the correct
room numbers to guests. Finister
thereafter described the counseling in an e-mail to Fernandez.
At some point
after Grace’s February 23 coach-and-counsel described above, Grace recommended
to Fernandez that discipline for Chacon be elevated as much as possible. Akopian and Fernandez issued Chacon a
corrective action notice on February 24, for “[v]iolation of hotel rules and
regulations” and causing “fear and concern of co-workers. . . .” The action box marked was “written.” Although the written explanation in the “Reason” section, generally tracks the
information Grace provided in his February 23 e-mail, there are additional
details and quotations that suggest Fernandez and/or Akopian conducted
additional investigation. For example,
the corrective action notice gives the following information that is not contained
in the e-mail: “[Your conduct] was described by the guest to be ‘aggressive,
rude, and alarming’; . . . according to the guest, [he] felt that Mohammed
[another GSA] was appropriately meeting his needs;” “[Y]ou took it upon
yourself . . . to ‘take over’ Mohammed’s interaction with the guest.”
As for
employee discipline administered beyond the “coach-and-counsel” sessions
described above, Fernandez testified as follows:
Q. [
A. [Fernandez] Then, we would go, into verbal, verbal—I believe it is verbal documentation and then, we would go into written and then, termination, I believe, and then, for that Company that is—
Q. When you say, verbal, is it a documented verbal?
A. Yes. It would be an actual Form like this, in which we take the employee and say, I am officially speaking to you and we have spoken, in the past before. That is why those coach and counseling documentations were—were important because this is not the primary—or this is not the first time we spoke with this individual about it. So, it would generally be the first major step or the second, I guess, major step, into the disciplinary process.
Q. Who would normally take those higher steps, in the progressive discipline process?
A. The higher the disciplinary process went, the more involved I wanted to be in it. So, when it came to written and, obviously, suspensions, based on investigations, even—even then, the Director of Human Resources would have to be involved. I placed myself, in that process, because I have to put a sense of importance, on that particular Step because going down that path leads to more grievous, you know, disciplinary actions.
Q. So, I take it, from—from that, [Grace] did not have the authority, to fire an employee?
A. Oh, no. No—no.
Q. And he did not have the authority, to do a written warning, on his own?
A. No. I would—I would like to be involved in that.
As a front
office supervisor, Grace participated in Respondent’s front office employee
hiring process.18 The procedure Respondent followed in hiring
front office employees and Grace’s role therein was described by Fernandez:
Q. [
A. [Fernandez] Yes, he did.
Q. What was his role, in the hiring process?
A. He—he interviewed and, also, look[ed] over applications and resumes.
Q. Did he have the authority to make hiring decisions?
A. Solely, no. He could make recommendations, as he went through the interview process with us and speaking to the applicants and going over their resume[s]. Based on their background or their performance, in the interview, he can strongly suggest and—and we would hire, based on that.19
Q. Did he, in fact, interview or screen applicants?
A. Yes, he did.
Q. How is it you know that?
A. Because I required it. It is what we did together, as a management team. We would interview all the candidates, whether it is—we did it, as an informal group, or based on schedules that we had or based on the candidate’s schedule. They would make their own arrangement to—to speak and interview that candidate.
Q. If Mr. Grace said to you, I do not like this particular candidate, would that have had any effect, upon your decision?
A. Yeah. That would have been fatal. I mean, we would not—we would not have proceeded with a candidate that does not have the support of their eventual Manager.
Q. If Mr. Grace had said to you, I think this person should be hired, would you have relied solely, upon that recommendation to hire?
A. Yes. I mean, I would certainly interview because that is part of the process that we do but that recommendation is very, very key.
Fernandez
could not specifically recall any employee whom Grace interviewed. After reviewing Respondent’s employment
records, he testified as follows:
A. April, Wanda, Tony.
Q. What about those three?
A. Those are probably people that he helped with the hiring process because those are three least senior, newest people on board. I remember April. She is a very nice girl. I think he had helped us with her.
Q. When you said, help, what do you mean by that?
A. Help interview her, gave an approval, based on his conversations with her, based on her resume, at the time, and then, gave a recommendation of, yeah, . . . she is going to be great or no, we should not hire her.
Q. In the case of April, what was his recommendation?
A. Yes. Let us hire her. She is a wonderful girl, wonderful worker, good background.
v. discussion
There is no
dispute that Respondent discharged Grace for wearing a union button, and
Respondent has neither demonstrated nor argued that “special circumstances”
vitiate its employees’ right under
Section 7 of the Act to wear and display union insignia while at work. Absent “special circumstances,” the
promulgation or enforcement of a rule prohibiting the wearing of such insignia
violates Section 8(a)(1) of the Act and discharge of an employee for doing so
violates Section 8(a)(3) of the Act. Republic
Aviation Corp. v. NLRB, 324
Respondent
defends its discharge of Grace on the ground that the Act did not protect him
in wearing a union button because he was, at the time, a supervisor within the
meaning of Section 2(11) of the Act.
Respondent carries the burden of proving supervisory status. Kentucky River Community Care, Inc., 121
S.Ct. 1861, 1866–1867 (2001); Dean & Deluca New York, Inc., 338 NLRB
1046, 1047 (2003) (“The party asserting [supervisory] status must establish it
by a preponderance of the evidence [citations omitted]”). Thus, Respondent must establish that Grace had the authority to
exercise at least one of the powers enumerated in Section 2(11) of the Act and
that the use of that authority involved a degree of discretion that rises to
the level of “supervisory independent judgment.” Dean &
Deluca New York, Inc., supra, at 1247, citing Elmhurst
Extended Care Facilities, 329 NLRB 535, 536 fn. 8 (1999). The Board construes any lack of
specific evidence to support a finding of supervisory status against the party
asserting supervisory status and conclusionary evidence is insufficient to
establish supervisory status. Armstrong Machine Co., 343 NLRB 1149 fn. 4 (2004),
and cases cited therein; Dean & Deluca New York,
Inc., supra
at 1247.21
Section 2(11) of the Act defines a “supervisor” as any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. “The possession of even one of those attributes is enough to convey supervisory status, provided the authority is exercised with independent judgment, not in