NOTICE: This
opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive
Secretary, National Labor Relations Board,
Rockspring Development, Inc. and United Mine Workers of
February 27, 2009
SUPPLEMENTAL DECISION, DIRECTION,
AND ORDER
By Chairman Liebman and Member Schaumber
The National Labor Relations Board has considered determinative challenges in an election held November 13, 2003, and the hearing officer’s supplemental report recommending disposition of them.[1] The election was conducted pursuant to a Stipulated Election Agreement. The revised tally of ballots shows 110 for and 108 against the Petitioner, with 4 determinative challenged ballots.[2]
The Board has reviewed the record in light of the exceptions and briefs and has decided to adopt the hearing officer’s supplemental rulings, findings, and recommendations as modified below.
i.
As noted, the remaining issues in this case concern the determinative challenged ballots of chief electricians Charles Stollings, Andrew Jackson Sharp, and Bobby Lee Stowers, and safety coordinator Ernest Bartram. The hearing officer in his supplemental report recommended overruling the Petitioner’s challenges to the ballots of Stollings, Sharp, and Stowers, finding them not to be supervisors under Section 2(11) of the Act, as interpreted in Oakwood Healthcare, supra. We agree with those findings for the reasons set forth in the hearing officer’s supplemental report. We therefore shall direct that the ballots of Stollings, Sharp, and Stowers be opened and counted.
The hearing officer further recommended sustaining the Petitioner’s challenge to the ballot of Ernest Bartram, finding him to be a 2(11) supervisor and a managerial employee. For the following reasons, we find Bartram to be neither a supervisor nor a managerial employee. We shall accordingly direct that his ballot be opened and counted.
ii.
Ernest Bartram is the Employer’s safety coordinator and serves as the assistant to the Employer’s manager of safety. The safety manager is responsible for the safety of the entire mine, including training the mine rescue team, assisting with the implementation of the roof control plans, conducting safety audits, and setting up safety and HAZMAT training. Bartram serves in a subordinate role. He assists the mine engineer in preparing ventilation plans for the mine and directs employees where to position devices to ensure proper ventilation. He performs underground safety inspections, and prepares safety talks that are given weekly by foremen to employees. During production meetings, Bartram reviews the Employer’s accident and safety statistics. He verifies that emergency breathing devices and other safety equipment worn by miners are operating properly. Bartram also maintains first aid equipment, helps conduct annual safety retraining, assists with employee drug testing, and prepares basic job safety analyses and submits them to the Employer’s main office.
Bartram is also responsible for traveling the mine with Federal and State mine safety inspectors. Those inspectors may issue citations for safety violations, and Bartram is authorized to receive them on behalf of the Employer. He may also designate an employee to accompany inspectors. Bartram has the discretion to take steps to mollify inspectors to avoid citations and fines being levied on the Employer or individual employees.[3] Those methods include shutting down sections of the mine, directing employees to move equipment so inspectors will not see it, and appearing to threaten employees with discipline in front of the inspectors. Regarding that last method, Bartram admitted that he does not have disciplinary authority, although he intends for employees to assume that he does.
A. The Supervisory Issue
The burden of proving supervisory status rests on the
party—here the Petitioner—asserting that such status exists. See NLRB
v. Kentucky River Community Care, 532
1. Responsible direction
In Oakwood
Healthcare, supra, the Board interpreted the 2(11) language “responsibly to
direct” as follows: “If a person on the shop floor has men under him, and if
that person decides what job shall be undertaken next or who shall do it, that
person is a supervisor, provided that the direction is both responsible . . .
and carried out with independent judgment.”
348 NLRB at 691 (internal quotations omitted). The Board further held that, for direction to
be responsible under Section 2(11), the person directing the performance of a
task must be accountable for its performance.
To establish accountability for purposes of responsible
direction, “it must be shown that the employer delegated to the putative supervisor
the authority to direct the work and the authority to take corrective action,
if necessary. It also must be shown that
there is a prospect of adverse consequences for the putative supervisor if
he/she does not take these steps.”
The Petitioner has not carried its burden of establishing
that Bartram is accountable for his actions in directing employees in safety matters. Bartram testified that, in the event the
Employer or individual employees received a citation or fine from the mine
safety inspectors, it “would reflect poorly” on Bartram and he was sure he
would “hear about it.” The hearing
officer relied on this testimony to find the accountability requirement satisfied. That testimony, however, is too vague to
establish that there is an actual prospect of adverse consequences for
Bartram. There is no evidence, moreover,
that Bartram has ever suffered, or been informed by the Employer of the
prospect of, such consequences. We are
thus left with Bartram’s assumption that he is accountable. That assumption does not constitute the
requisite evidence of actual accountability.
2. Assignment
The hearing officer found that Bartram’s designation of an employee to accompany a mine safety inspector constitutes assignment of employees with independent judgment sufficient to establish supervisory status. We disagree with that finding, as well.
In Oakwood Healthcare, supra, the Board held that “assign,” for purposes of Section 2(11), means the “designation of significant overall tasks to an employee, not . . . ad hoc instruction that the employee perform a discrete task.” 348 NLRB at 689. To establish the authority to assign, moreover, it must be shown “that the putative supervisor has the ability to require that a certain action be taken; supervisory authority is not established where the putative supervisor has the authority merely to request that a certain action be taken.” Golden Crest Healthcare Center, 348 NLRB at 729 (emphasis in original).
Applying this standard, the Petitioner has not met its
burden of establishing the requisite authority to assign. Bartram testified, and the hearing officer
found, that Bartram does not, in fact, know if he has the authority to order
someone to accompany a mine inspector.
Bartram further testified that he puts the matter in terms of a request,
although he does not specifically advise the employee that accompanying an
inspector is optional. In those circumstances,
we find that the Petitioner has not presented sufficient evidence that Bartram
has the authority to require that an employee accompany an inspector. Consequently, the Petitioner has not
established that Bartram “actually possesses the Section 2(11) authority at
issue.”
But, even assuming that Bartram does have such authority,
the Petitioner has not shown that Bartram’s designation of an employee to accompany
a safety inspector requires the use of independent judgment. See Oakwood
Healthcare, supra, 348 NLRB at 687.
Bartram’s own testimony shows, in essence, that he simply selects an
employee who works in the area that is being inspected. Such a selection method does not involve a
degree of discretion that rises above the routine or clerical, contrary to the
hearing officer’s finding.
For those reasons, we find that the Petitioner has not
established that Bartram is a supervisor within the meaning of Section 2(11) of
the Act.
B. The Managerial Employee Issue
The hearing officer also found that Bartram is a managerial employee, and thus ineligible to vote in the election, based primarily on Bartram’s interaction with mine safety inspectors. Specifically, the hearing officer relied on Bartram’s discretion to devise tactics to mollify inspectors to prevent the issuance of citations or fines. Here, too, we disagree with the hearing officer’s finding.
Employees properly classified as “managerial” are excluded
from the protections of the Act. NLRB v. Bell Aerospace Co., 416
Contrary to the hearing officer’s finding, the Petitioner
has not established that Bartram formulates the Employer’s safety policy or exercises
discretion in the performance of his job independent of that established policy. There is no evidence that Bartram formulated
the Employer’s policy of trying to mollify safety inspectors to avoid
fines. Although Bartram may devise his
tactics to achieve that immediate goal under the particular circumstances that
confront him, there is no evidence that he may act independently of that policy. For example, he does not have the authority to
enter into agreements with inspectors or their agencies binding the Employer to
take remedial action. Cf. NLRB v. Bell Aerospace Co., supra, 416
Nor do Bartram’s other job duties establish managerial employee status. When Bartram prepares safety talks to be given by foremen, he merely uses materials suggested to him by inspectors or taken from Federal or State safety agencies’ websites. He does not independently compose materials for those talks. Similarly, there is no evidence that Bartram exercises any independent discretion in developing ventilation plans: he merely assists the mine engineer. Finally, Bartram’s preparation of basic job safety analyses for the Employer’s consideration is a routine part of his safety responsibilities and does not show the exercise of managerial discretion. See Solartec, Inc., supra at 336–337.
For all of the foregoing reasons, we find that the Petitioner has not shown that Bartram is a managerial employee ineligible to vote in the election. We shall accordingly direct that his ballot be opened and counted.
DIRECTION
It is directed that the Regional Director for Region 9 shall, within 14 days from the date of this supplemental decision, open and count the ballots of Charles Stollings, Andrew Jackson Sharp, Bobby Lee Stowers, and Ernest Bartram. The Regional Director shall then prepare and serve upon the parties a second revised tally of ballots, and issue the appropriate certification.
ORDER
It is ordered that this proceeding is remanded to the Regional Director for further processing.
Dated,
Wilma B. Liebman,
Chairman
Peter C. Schaumber, Member
(seal) National
Labor Relations Board