UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

REGION TWENTY-FIVE

 

 

                                                                                                                        Indianapolis, IN

 

AZTAR INDIANA GAMING COMPANY, LLC,

d/b/a CASINO AZTAR

                        Employer

 

            and                                                                                               Case 25-RC-10403

 

INTERNATIONAL UNION, UNITED

AUTOMOBILE, AEROSPACE AND

AGRICULTURAL IMPLEMENT

WORKERS OF AMERICA, UAW

                                    Petitioner

 

 

 

DECISION AND DIRECTION OF ELECTION

 

 

            Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing[1] was held September 4 through 6, 2007, before a hearing officer of the National Labor Relations Board, hereinafter referred to as the Board, to determine an appropriate unit for collective bargaining.[2]

 

 

 

 

I.  ISSUES

 

            International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW (the "Petitioner") seeks an election within a unit of full-time and regular part-time dealers[3] and employees employed as dual rate dealers/floor supervisors by Aztar Indiana Gaming Company, LLC, d/b/a Casino Aztar (the "Employer") at its Evansville, Indiana facility.  The Employer is in agreement with including the dealers, however, contends that the dual rate dealers/floor supervisors should be excluded from the unit because they exercise supervisory authority within the meaning of Section 2(11) of the Act.  Also, the Employer contends that the full-time floor supervisors should be excluded because of their status as 2(11) supervisors.  The Petitioner did not take a position as to the supervisory status of the full-time floor supervisors, but agreed that they should be excluded from the unit without giving a basis for their exclusion.[4]  There are approximately 38 dual rate dealers/floor supervisors and 7 full-time floor supervisors employed at the facility.  The parties have otherwise agreed upon the composition of the appropriate bargaining unit.

 

II.  DECISION

 

            The evidence produced at the hearing shows that the dual rate dealers/floor supervisors and the full-time floor supervisors do not assign, responsibly direct, discipline, or evaluate employees, nor do they effectively recommend such actions with the requisite degree of independent judgment to establish that they are supervisors within the meaning of Section 2(11) of the Act.  Therefore, it is concluded that the Employer's dual rate dealers/floor supervisors and full-time floor supervisors are not supervisors within the meaning of Section 2(11) of the Act.  Also, it is concluded that they share a community of interest with the dealers, and therefore, they are included in the appropriate unit for purposes of collective bargaining. 

 

            The following employees of the Employer constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act:

 

All full-time and regular part-time dealers, dual rate dealers/floor supervisors, and floor supervisors employed by the Employer at its Evansville, Indiana, facility; BUT EXCLUDING all office clerical employees, professional employees, managerial employees and all guards and supervisors as defined in the Act.

 

            The unit found appropriate herein consists of approximately 183 employees for whom no history of collective bargaining exists.

 

 

III.  STATEMENT OF FACTS

 

            A.  Overview of Operations

 

            Since 1995, the Employer has operated a riverboat casino and adjacent land-based customer accommodations such as hotels and restaurants in Evansville, Indiana.  The Employer employs about 1000 employees in operating these facilities.  The Employer’s operations are divided into the following departments:  table games, slot operations, cage operations, security, surveillance, hotel operations, and food and beverage operations.  The casino operates 24 hours per day on weekends and operates from 7:00 A.M. to 5:00 A.M. on weekdays. 

 

The table games are located on each of the three levels of the riverboat casino.  The areas in which the actual gaming tables are located are called pits.  There are four pits, the salon where the high stakes gaming tables are located, and the poker room in which there are exclusively poker tables.  The first level of the boat accessible to customers contains Pit C and the poker room.  The second level contains Pit B, Pit B-, and the salon.  The third floor contains Pit A.  Each pit and the salon holds six gaming tables and the poker room holds ten or twelve tables.  The gaming tables are arranged around the pit stand where the pit manager has access to a computer to input information and to a locked container that holds new decks of cards and dice for the games.  Also located in each pit are computers on which floor supervisors[5] enter information.  The gaming tables are under constant surveillance by video cameras.

 

All the operations of the casino are highly regulated by the Indiana Gaming Commission (“IGC”).  The IGC requires that very detailed rules be followed in the operation of the gaming tables.  See 68 I.A.C. § 1-1, et seq.  In order to be in compliance with IGC regulations, the Employer has developed extensive internal control manuals which have been approved by the IGC.  Each modification to the internal control manuals must be approved by the IGC and copies of the manuals applicable to table games are available at each of the pit stands, the salon, the poker room, the shift managers’ office and other locations on the riverboat and land-based administrative offices. 

 

The internal control manuals contain highly detailed directions for all aspects of running the table games.  For example, the internal controls give specific directions for handling cards when they are not being used, the delivery and removal of decks of cards to and from a table, the delivery and removal of chips (referred to as checks) used to denote monetary value to and from the table, the physical stance of the dealers[6] at the table, the proper position of the cards in the dealer’s hand, the manner in which dealers shuffle cards, the manner that cards are dealt to players, the manner in which a player is offered to “cut” a deck of cards, the manner in which bets are made and paid, etc.

 

The internal control manuals also provide for floor supervisors to supervise table games at all times in order to meet the IGC requirement that table games be monitored by a “supervisor” that is equivalent to a pit manager or higher management officials.  By the Employer’s own admission, pit managers and higher management officials have significantly more supervisory authority than dual rate dealers/floor supervisors and full-time floor supervisors, yet the use of dual rate dealer/floor supervisor and full-time floor supervisor positions has satisfied the IGC requirements to have the table games supervised.

 

            B.  The Table Games Department

 

The undisputed supervisory hierarchy for the table games department[7] is as follows:  Director of Table Games, Table Games Administrator, Table Games Scheduler/Trainer, approximately 3 shift managers, approximately 3 assistant shift managers (dual rate pit managers/shift managers), approximately 6 pit managers, and approximately 5 dual rate floor supervisors/pit managers.[8]  The record reflects that each of these positions has the direct authority to exercise at least one indicia of supervisory status outlined in Section 2(11).  All of these positions are salaried positions.

 

Working under the above supervisory hierarchy are 7 full-time floor supervisors, 38 dual rate dealers/floor supervisors and the 138 dealers.  In order to work in any position in the gaming table department, an employee is first hired as a dealer.  In order to qualify as a dealer an applicant must have attended dealer training classes.  There are separate classes for each of the different types of table games (i.e. blackjack, craps, poker, roulette, and variations thereof).  These classes are generally 16 hours per week for four to ten weeks depending upon the complexity of the game.  Dealers are often licensed to deal more than one type of game.  In addition, all employees working for the Employer are required to hold a license from the IGC.  Dealers, dual rate dealers/floor supervisors, and full-time floor supervisors all hold level 2 licenses.

 

All dual rate dealers/floor supervisors and full-time floor supervisors have been promoted to these positions from dealer positions.  Dual rate dealers/floor supervisors work as dealers on average almost 50% of the time and as floor supervisors a little more than 50% of the time.  The dual rate dealers/floor supervisors clock-in under one code when they are working as dealers and under another code when they are working as floor supervisors.  The Employer utilizes the dual rate dealers/floor supervisors position to have flexibility in its staffing of the casino in relation to customer demand and to fulfill IGC requirement that it have a “supervisor” overseeing the gaming tables at all times.

 

Dealers, dual rate dealers/floor supervisors and full-time floor supervisors are paid an hourly wage.  Dealers are paid an hourly rate of $4.25 to $6.75 and a share of the tips or tokes players give the dealers.  The dealers have elected a committee of dealers who have issued the Toke Committee By-laws which governs the distribution of players’ tips to the dealers.  Tips are aggregated for day shift employees who work between 7:00 A.M. and 7:00 P.M. and for night shift employees who work between 7:00 P.M. and 7:00 A.M. on weekend nights or 7:00 P.M. and 5:00 A.M. on week nights.  The tips are equally distributed among the dealers on each shift based upon the number of hours worked.  Dealers generally work four days on/three days off and work 9 or 10 hour shifts.  Dealers start and end times are staggered within the day and night shift to cover the full twelve-hour periods.

 

Similarly dual rate dealers/floor supervisors and full-time floor supervisors are scheduled four days on and three days off and work 9 or 10 hours on either the day or night shift.  Full-time floor supervisors are paid an hourly wage between $18.25 and $20.50.  Dual rate dealers/floor supervisors are paid as a dealer and share in the tips for the portion of time that they are clocked-in as a dealer and are paid on an hourly rate between $17.50 and $19.50 for the portion of time that they are clocked-in as floor supervisors.  Dealers, dual rate dealers/floor supervisors, and full-time floor supervisors are all eligible to receive the “crew member of the month” award which increases their pay by $0.25 per hour at what ever pay level they are at from that month forward.  Testimony from one witness indicates that depending on customer volume and tipping levels, dealers and dual rate dealers/floor supervisors can make as much or more than full-time floor supervisors when the tips are added to their hourly rate. 

 

The Table Games Scheduler/Trainer schedules employees days and hours of work.  The Table Games Scheduler/Trainer schedules enough dealers, dual rate dealers/floor supervisors, and full-time floor supervisors necessary to staff the casino on a day-by-day basis.  The daily schedules are usually posted at least a week in advance.  A dual rate dealer/floor supervisor may be scheduled to work as a dealer or as a floor supervisor for an entire shift or just part of a shift.  A dual rate dealer/floor supervisor scheduled to work as a dealer for an entire shift can be directed by the shift manager or pit manager to clock-out and clock-back-in as a floor supervisor and vice-versa. 

 

Dual rate dealers/floor supervisors are required to always be prepared to dress appropriately for either position regardless of how they are scheduled.  When working as dealers the dual rate dealers/floor supervisors follow all the work rules for dealers such as wearing the dealer uniform of black pants, black shoes and a uniform shirt/blouse.  When working as floor supervisors the dual rate dealers/floor supervisors follow all the work rules for floor supervisors such as the requirement to wear a shirt/blouse or mock turtle neck shirt with a sport or suit coat.  Lockers and locker rooms are available for all employees who work on the gaming floors because employees are not allowed to carry personal items such as purses onto the gaming floors. Dual rate dealers/floor supervisors use these locker rooms to change from dealer uniforms to the attire for floor supervisors and vice versa.

 

Dual rate dealers/floor supervisors and full-time floor supervisors are given a yearly evaluation on the same form as dealers.  They are given a numerical rating on various performance standards.  The total of these scores is the basis for which yearly increases are awarded until the individual hits the salary cap, and then after that, the overall score is used to determine yearly bonuses. 

 

           

            C.  Job Duties of the Dealers and Dual Rate Dealers/Floor Supervisors While Working as

     Dealers

 

            There is no dispute that dual rate dealers/floor supervisors act in the same capacity as dealers while they are working as dealers.  The “essential duties and responsibilities” for dealers as set forth in their job description are:

 

            Responsible for the operation and conduct of a particular table game.  Exchanges

currency for gaming chips and pays or collects bets according to house rules.  May

perform other duties as assigned.

 

The dealers’ sole purpose is to operate the game to which they are assigned according to the internal control manuals that are approved by the IGC.  As discussed above, there are extremely detailed internal control manuals for each table game.  The manuals provide step-by-step directions on virtually every aspect of the games including:  how to open and close the games; how decks of cards or dice are taken to and from the tables; how chips are counted and their amount recorded; how players’ money is exchanged for chips; how bets are made, collected and paid; how the dealer stands; how the dealer holds, shuffles and deals the cards; etc.  As long as players are available, dealers continuously operate the table games.

 

The dealers are not allowed to correct their own mistakes and must contact a floor supervisor when a correction needs to occur. Dealers do not settle disputes with players.  Again, the dealer has to request a floor supervisor or a pit manager handle the matter.  Dealers must have a floor supervisor and/or a pit manager oversee certain aspects of the games such as the opening and closing of a game, the exchange of cash for chips, and the “coloring up”[9] of chips.  Dealers deal for an hour and are “tapped out” by a relief dealer for a twenty-minute break. 

 

D.  Job Duties of the Full-time Floor Supervisors and Dual Rate Dealers/Floor

     Supervisors While Working as Floor Supervisors

 

            Similar to when dual rate dealers/floor supervisors act as dealers, there is no dispute that dual rate dealers/floor supervisors act in the same capacity as full-time floor supervisors while they are working as floor supervisors.  The “essential duties and responsibilities” for dual rate dealers/floor supervisors and full-time floor supervisors as set forth in their respective job descriptions are:

 

            Responsible for all table game’s integrity, player ratings, marker issues/collections.

            Promotes positive customer relations.  Supervises Dealers within assigned area.  May

perform other duties as assigned.

 

Both the dual rate dealers/floor supervisors and full-time floor supervisors job descriptions contain a section labeled “Supervisory Responsibilities” which are identical except for the number of employees that the different positions are to “manage.”  The “Supervisory Responsibilities” reads as follows:

 

Manages [4-10 for dual rate dealers/floor supervisors and 4-15 for full-time floor supervisors] employees in the Table Games Department.  Is responsible for the overall direction, coordination, and evaluation of this unit.  Carries out supervisory responsibilities in accordance with the organization’s policies and applicable laws.  Responsibilities include training employees; planning, assigning, and directing work; appraising performance; rewarding and correcting employee performance; addressing complaints and resolving problems.

 

The applicants for the dual rate dealers/floor supervisors positions are required to have

one year of higher education or six months related experience for dual rate dealers/floor supervisors and one year related experience for full-time floor supervisors.  Many of the dual rate dealers/floor supervisors and full-time floor supervisors fulfill these requirements with their previous experience as dealers.  Employees are promoted to the dual rate dealer/floor supervisor position and then to the full-time floor supervisor position.  In order to have more scheduling flexibility the Employer recently demoted several full-time floor supervisors back to the dual rate dealers/floor supervisors position.

 

In addition to the training that the employees received before becoming dealers, employees who are becoming dual rate dealers/floor supervisors receive a one-time training of approximately four hours on how to be floor supervisors.  This training consists of Currency Transaction Reporting, information on how to complete chip tracking forms, and a discussion of how to interact with dealers and players.  The Currency Transaction Reporting is required by the federal government under Title 31 of the Bank Secrecy Act.  The purpose of this act is to track cash purchases accumulating $10,000 or more to prevent organized crime from laundering money through casinos.  The forms completed by floor supervisors include:  table inventory slips, which tracks the dollar amount of the chips on a table at its opening and close; fill slips, which are requests for more chips to be delivered to the table by security; and credit slips, which are requests to have security remove chips from a table.  Finally, the training includes a discussion about how to interact with dealers and customers.  This training is a general discussion on how to be courteous and effective when asking others to comply with requests. 

 

            The Employer contends that the supervisory responsibilities set forth in the job descriptions are carried out by the dual rate dealers/floor supervisors and the full-time floor supervisors in such a fashion that they should properly be excluded from the unit as supervisors within the meaning of Section 2(11) of the Act.  As discussed more thoroughly below, the Employer contends that the dual rate dealers/floor supervisors and full-time floor supervisors meet the indicia of Section 2(11) by their authority to use independent judgment to assign and responsibly direct dealers, and make effective recommendations concerning discipline and evaluation of dealers, and by evidence of secondary indicia of supervisory status.

 

1.                  Assignment of Work    

 

The Table Games Scheduler/Trainer schedules the days and hours of work for the

dealers, dual rate dealers/floor supervisors, and full-time floor supervisors.  These schedules are made on a day-to-day basis in response to the projected staffing needs for each position on a specific day.  The schedules are posted approximately a week in advance.  Although that schedule tentatively assigns employees to specific positions, the employees report to the pit manager in Pit B or in the absence of a pit manager to the shift manager for their specific assignment for that shift and clock-in accordingly.[10]  The dual rate dealers/floor supervisors and full-time floor supervisors are assigned to work one of the pits, the salon, the box on a craps table, or to work as a relief floor supervisor.  Apparently, because a craps table requires three dealers at all times to operate the table, a floor supervisor is assigned to “sit box” and monitor that individual game.  The dealers are assigned to a specific table game or to work as a relief dealer for specific tables by the pit or shift manager.  The dual rate dealers/floor supervisors and full-time floor supervisors have no authority to reassign themselves to a different pit or box, nor do they have the authority to reassign a dealer from one table to another.  If any situation arises where a dealer needs to leave an assigned table, the floor supervisor has to contact the pit manager to report the situation and the pit manager determines how to handle the situation.  There is no evidence in the record that the dual rate dealers/floor supervisors or the full-time floor supervisors actually assign or reassign employees to work a particular table.

 

            The operation of the poker room is somewhat different than the operation of the pits.  The Table Games Scheduler/Trainer specifically schedules dealers, full-time floor supervisors, and dual rate dealers/floor supervisors to that room as projected needs indicate.  Two full-time floor supervisors are exclusively assigned and another two full-time floor supervisors are regularly assigned to the poker room because of their experience with the poker room.  Other full-time floor supervisors and dual rate dealers/floor supervisors are assigned to the poker room as needed to cover the shifts.  The employees assigned to the poker room clock-in and report to the poker room without necessarily checking with the pit manager first. 


As customer demand requires, poker tables are opened and closed by the floor

supervisor.  Dealers are assigned by the Table Games Scheduler/Trainer to start their shifts at staggered times.  The first scheduled dealer works with the floor supervisor to open the first table.  More tables are opened as required by customer demand and the arrival of scheduled dealers.  Depending on demand, a string of two to four tables develops and are labeled on a board in the order that they open.  The actual type of poker being played at each table is controlled by customer demand.  By pre-established procedures, the dealers work thirty minutes on each table in the string of tables and then moves to the next table.  Once a dealer works the last table in the string, the dealer receives a thirty-minute break.  If five or more tables are open in the poker room, the floor supervisor establishes two strings and notes such on the board.  A dealer works one string, takes a break, works the other string, takes another break and then rotates back to the original string until the shift ends.  Because all dealers rotate through the tables, the floor supervisor is not actually assigning the dealers to any particular table or game.

 

If there is more customer demand than available dealers, the floor supervisor can contact the pit manager and request an additional poker dealer.  The pit manager determines whether or not to honor the request and which dealer to send.  Similarly, if the poker room is slow, the floor supervisor can contact the pit manager and recommend that a dealer be used elsewhere.  Although the floor supervisor in the poker room reportedly has this authority, there is no evidence of a specific incident where this has occurred.  In fact, the one witness who regularly worked in the poker room reported that he had never seen this occur.  The record does not indicate how the floor supervisor determines which dealer to send to the pit manager or if the floor supervisor contacts the pit manager who makes the actual decision.  Furthermore, there is no evidence that dealers referred out of the poker room are not reassigned to deal at another table instead of being sent home short of a whole shift of work.  Finally, although no specific examples were given, situations have apparently occurred where customers have been so upset with a dealer that the floor supervisor sent the dealer to the pit manager to be replaced.  Again, the testimony was inconclusive as to how the exchange of dealers in the poker room actually occurred and who made each actual decision involved.    

           

2.                  The Direction of Work

 

The floor supervisor oversees the operations of up to six table games in a pit.  Most

table games operate with one dealer and as many as six players.  The floor supervisor is specifically assigned duties by the internal control manuals for all aspects of operating the table games.  Most of these duties involve tracking the chips/money on the table and customer information and gambling activity.  Floor supervisors can be assigned to oversee up to six tables and dealers in the pits and more in the poker room.  If the pit contains a craps table which has three dealers operating it at all times, an extra floor supervisor is assigned to “sit box” and specifically oversee the operation of that table which consists of three dealers, and a relief dealer.  The record is unclear as to the number of players allowed at a craps table, but it is apparently higher than six.

 

The internal control manuals set forth specific directions for each aspect of how the games should be operated and the floor supervisors’ oversight of the games.  For example, there are elaborate procedures for opening and closing a table game.  If a table is closed, the pit manager will bring the necessary keys, dice, and/or cards to open the game.  A detailed process is followed in opening the table, including specific procedures for inspecting the dice and/or cards and counting the chips on the table.  The dealer does the actual count of the chips in the presence of the floor supervisor and the pit manager.  The floor supervisor records the number of each colored chip on a table inventory sheet (TIS).  The floor supervisor enters the numbers from the TIS into a computer via a monitor in the pit, which computes total dollar amounts based upon the number of chips entered.  Those numbers are recorded on the TIS and the dealer, floor supervisor and the pit manager sign the TIS sheet.  One copy of the TIS goes in the cash drop box on the table and the other copies are taken by the pit manager for use in the cage area of the casino where the accounting of money and chips occur. 

 

Once a game is operational, a significant portion of the floor supervisors’ work time involves entering customer and chip/money tracking information into the Employer’s computer system.  Therefore, the dealers must get the floor supervisors’ attention when doing buy-in transactions for players who are first starting to play at a table and “color-up”[11] transactions when players are leaving the table so that the floor manager can verify the accuracy of the currency transaction.  The floor supervisor must enter into the computer the amount of chips with which each player “buys-into” a game and the amount with which the player leaves the game.  If the customer has a casino issued rewards/identification card, the floor supervisor swipes it into the computer and tries to greet the customer by name.  If the customer does not have a rewards card, the floor supervisor enters a brief physical description of the customer.  Often the floor supervisors will know the customer by name and they are supposed to greet each customer by name if possible.  The floor supervisor “sitting box” on a craps table has access to a computer and enters the customer and chip/money information into the computer for the craps players. 

 

In order for the Employer to be in compliance with Title 31 of the Bank Secrecy Act The floor supervisor has to keep track of whether a player has bought-in more than $1,000, $3,000 or $10,000 in a game or receives these levels of payouts and enters the information into the computer.  Once a player has accumulated more than $3,000 in buy-ins or pay-outs, the floor supervisor must contact the pit manager and report this information so that the pit manager can have surveillance take the player’s picture.  Once the $10,000 level is reached, the floor manager must again contact the pit manager and the pit manager directs surveillance to take another picture of the player.  Also, the floor supervisor is required to get identifying information such as address and social security number from the player. 

 

If there are too few chips in the rack on the table for effective play to continue, the floor supervisor must complete a “fill slip” requesting additional chips from the cage.  The fill slip is approved by the pit manager and taken to the cage, then security brings the chips to the table where they are counted by the dealer in the floor supervisor’s presence.  At each stage of the process, the individuals involved sign the fill slip to verify that the correct amount requested was delivered to the table.  A similar process occurs when there are too many chips on a table and the floor supervisor completes a “credit slip” to have chips removed.  The procedures for completing these transactions are specifically laid out in the internal control manuals.

           

When not performing customer and chip/money duties, the floor supervisors watch the actions of the dealers to make sure that they are complying with the internal control manuals. One floor supervisor testified that after performing the other necessary duties of his job, about 15% of his work time was left for him to watch that the dealers are using proper procedures.  For example, if a dealer is leaning on the table, not holding the cards correctly, not dealing in the correct order or making some other procedural error, the floor supervisor might make a hand gesture or some short comment to remind the dealer of the proper procedure.  Similarly, if a dealer is having a hard time with a customer, the floor supervisor might make reference to the Employer’s five star program on how to deal with customers.  If some small comment or gesture cannot correct the conduct, the floor supervisor will wait until the dealer goes on break and discuss it more thoroughly at that time.  The record is unclear as to how frequently this occurs.  The floor supervisor has no authority to change the procedures set out in the internal control manuals and can only remind dealers to comply with those procedures.

 

If a dealer makes an error such as forgetting to deal a customer a card, the dealer must call for the floor supervisor to resolve the issue.  The floor supervisor follows set dealing procedures to handle this type of situation if possible or asks the customer to sit out that hand.  Anytime a situation cannot be amicably resolved with a player, the floor supervisor will request the assistance of the pit manager.  If a player disputes a dealer’s pay out, the dealer must ask the floor supervisor to resolve the situation.  If the floor supervisor cannot get agreement between the dealer and the customer as to the proper payout, the floor supervisor has the authority to make questionable payouts under $25[12] keeping in mind the motto that the customer is not always right but is still always the customer.  If the dispute is for more than that amount, the floor supervisor is required to contact the pit manager.  The pit manager then contacts surveillance to replay the events at that table to determine the proper payout and instructs the floor supervisor on how to handle the situation. 

 

There is no evidence in the record that floor supervisors are in any way held

accountable for errors made by dealers or dealers conduct.  As discussed above, the dual rate dealers/floor supervisors and full-time floor supervisors all receive yearly evaluations. Although management officials have made notations about the floor supervisors’ skills as a supervisor in the comment section of the evaluation form, none of the scored items concerns supervising other employees and there is no testimony that these comments were in anyway considered in the determination to issue raises or bonuses.  There is no indication that dual rate dealers/floor supervisors or full-time floor supervisors terms and conditions of employment are in any way conditioned on the performance of the dealers they oversee.

 

3.                  Floor Supervisors Role in Discipline

 

            The Employer contends that the floor supervisors’ role in completing incident reports constitutes independent judgment in recommending discipline.  All casino employees including dealers, dual rate dealers/floor supervisors, and full-time floor supervisors can complete incident reports.  The forms are available at the pit stands and shift managers’ office.  Once an incident report is completed it is submitted to the shift manager.

 

The form used by the Employer is titled Table Games Incident Report.  The forms themselves contain blanks for information regarding the name of the person completing the report, date of the report, the date and location of the incident, name of the person(s) involved in the incident, and a description of the events.  If a situation is brought to pit managers' or shift managers' attention, they often direct the employee to complete an incident report.  The shift manager may then seek out other employees that witnessed the situation to do the same.  The incident report form also contains a line for recommendations, however, there is no requirement that a recommendation be made by the person filling out the report.  Although there is evidence that on some occasions dual rate dealers/floor supervisors and full-time floor supervisors have written recommendations on the form, there is conflicting evidence concerning their actual authority to complete the recommendation section.  One dual rate dealer/floor supervisor testified that he was specifically instructed that he did not have the authority to complete that section.

 

Incident reports are often completed by table game employees to correct calculation or clerical errors on table inventory slips, fill slips and credit slips.  Because the copies of these slips are submitted to the pit manager and dropped into the locked cash box after the procedure for filling them out is complete, the dealers and floor supervisors do not have access to the forms to correct an error that they may later discover on those forms.  Therefore, the incident reports are used to notify other employees who process the forms that an error had occurred.  Often when incident reports are completed to correct these types of errors, the employee completing the report is notifying management of his or her own error.  Incident reports are also completed to document customer behavior.  Extreme customer behavior can result in a customer being removed from a table or from the casino. 

 

Floor supervisors do occasionally complete incident reports with regards to dealers’ conduct.  Full-time dealers also complete incident reports with regards to other dealers’ conduct.    The testimony indicates that a dual rate dealers/floor supervisors and full-time floor supervisors complete incident reports regarding dealers’ conduct on average less than once per year.  Often these reports are completed at the direction of the pit manager and shift manager after the floor supervisors mention to them that a dealer is not following proper procedures or is coming back late from breaks.  Floor supervisors are supposed to watch that proper dealer procedures are being followed including that dealers are properly relieving each other. 

 

The incident reports are given to the shift manager.  If the incident report contains information that might lead to re-training or discipline of a dealer or another employee, the shift manager, Table Games Administrator, and Director of Table Games perform an investigation which can include collecting incident reports from other witnesses and reviewing surveillance video.[13]  If warranted by the investigation, the Table Games Administrator completes a disciplinary action form and determines the proper discipline to be issued which can range from a documented verbal warning up to discharge.  The incident reports supporting the discipline are attached to the disciplinary action form.  There was no evidence that discipline has been issued based solely upon an incident report without an independent investigation occurring.

 

In more than one incident report, the floor supervisor indicated that a dealer needed to be retrained on a particular procedure and in some cases the floor supervisors completed the recommendation section indicating retraining was necessary.  In such cases, surveillance videos were reviewed to determine if the dealer was using improper procedure and the exact procedure for which the dealer needed to be retrained.  The Table Games Administrator and the Table Games Scheduler/Trainer conduct the retraining sessions during the dealers’ scheduled hours, and there is no indication that the dealers were denied their portion of the tips for that time period.  The record does not state whether the incident reports noting the need for retraining or any other document noting that retraining occurred are placed in the dealers’ personnel files.

 

4.                  Floor Supervisors Role in Evaluations and Rewards

 

The Employer contends that floor supervisors make effective recommendations that

influence the evaluation of dealers.  The shift managers complete and sign the evaluation form. The evaluations are also signed by pit managers and floor supervisors as contributing to the evaluations.  The Employer submitted numerous copies of evaluations for dealers on which dual rate dealers/floor supervisors and full-time floor supervisors had signed as contributing to the evaluation.  Even though the form states that these individuals had input into the evaluations, there is no direct evidence of this occurring in the record.  None of the shift managers who actually completed the evaluation forms testified and the Employer’s witnesses that testified about the process have never actually been present when evaluations were completed.  The dual rate dealers/floor supervisors that testified denied ever being asked for their input on anyone’s evaluation.  Two dual rate dealers/floor supervisors who had signed evaluations testified that they were directed to do so by their shift manager and followed the instructions without giving any input concerning the evaluation, or reading or discussing the document with the shift managers. 

 

The Employer contends that even if the shift manager did not have formal meetings with the floor supervisors to complete employee evaluations, that they based their scores for dealers on informal conversations with floor supervisors about the dealers.  There was no claim that these conversations were ever documented and no documentary evidence of these conversations was submitted into the record.  The dual rate dealers/floor supervisors who testified indicated that they seldom had such conversations with pit or shift managers except occasionally concerning new dealers.  Additionally, there was no evidence that the floor supervisors recommended any specific scores for the evaluations.  Furthermore, the floor supervisors are not privy to the numerical score necessary to receive a particular amount of wage increase.

 

            Dual rate dealers/floor supervisors and full-time floor supervisors can complete positive record of discussion forms for other employees but dealers cannot.  These forms are a way to make management aware of incidents when an employee goes beyond general expectations.  These forms are not considered when ranking employees on their yearly evaluations but may be reviewed when an employee is being considered for a promotion.  No witness testified about actually completing such a form and there was no evidence that the receipt of a positive record of discussion actually affected an employees’ wages, hours, or terms and conditions of employment. 

 

5.                  Independent Judgment

 

The Employer elicited testimony concerning dual rate dealers/floor supervisors and

full-time floor supervisors using independent judgment in performing their assigned duties.  Most of this evidence revolved around the operation of the games and not the oversight of dealers.  For example, the Employer presented evidence that floor supervisors make judgment calls as to when to request “fills” or “credits” for the tables.  The floor supervisor uses discretion in determining when to contact a pit manager about a customer’s conduct.  The floor supervisors in the poker room can issue complimentary coupons for a deli lunch to a certain number of players in the poker room each day.  Although these situations may call for some independent judgment, they do not relate to the terms and condition of employment for other employees.

 

            The Employer also presented evidence that dual rate dealers/floor supervisors and full-time floor supervisors use independent judgment in determining when to report dealer misconduct.  The record is clear that floor supervisors are expected to remind dealers of internal control manual procedures and the established procedure for breaks.  The floor supervisors use their discretion about how many times to remind the dealer of the procedures and policies before bringing the situation to the attention of the pit or shift manager either verbally or through an incident report.  It is undisputed that dealers can also submit incident reports about the conduct of other dealers on their own initiative.  The record is unclear but implies that dealers could also use discretion on when to decide to take such an action. 

 

            The Employer presented evidence that floor supervisors receive training on how to recognize cheating on behalf of dealers and customers.[14]  The floor supervisors must use their discretion to determine if a dealer’s or a customer’s conduct is suspicious enough to warrant an incident report.  Furthermore, dealers are also expected to use discretion and report any suspected cheating by another dealer, dual rate dealers/floor supervisors, full-time floor supervisors, or other employee.  The record is unclear as to how allegations of cheating are specifically handled, but because it could result in disciplinary action it is assumed that an investigation would be made by higher management officials as is discussed above concerning the issuance of discipline.

 

6.                  Secondary Indicia of Supervisory Status

 

Although the dual rate dealers/floor supervisors and full-time floor supervisors receive a higher hourly rate than dealers, there is insufficient evidence in the record to determine that this amount is significantly higher than what dealers receive after their tips are added to their hourly rate.  The dual rate dealers/floor supervisors and full-time floor supervisors are required to wear business attire with a suit or sport coat which distinguishes them from the dealers who wear uniforms consisting of black pants and shoes and a uniform shirt/blouse.  The floor supervisors have training in Currency Transaction Reporting and have access to the computer system used in tracking this information.  The dual rate dealers/floor supervisors and dealers attend the same training sessions concerning changes to policies and procedures.  Full-time floor supervisors attend the meeting with higher management.  The agenda and information presented in these meetings are identical.  Employees in the different job positions attend different meetings due to space issues in the meeting room. 

 

 

IV.  DISCUSSION 

 

            A.        The Law

 

To determine whether an individual is a supervisor within the meaning of Section 2(11) of the Act, the Board examines:  (1) whether the individual has the authority to engage in any 1 of the 12 enumerated powers listed in Section 2(11) of the Act; and (2) whether the exercise of such authority requires the use of independent judgment.  NLRB v. Health Care & Retirement Corp. of America, 511 U.S. 571, 573-574 (1994): NLRB v. Kentucky River Community Care, Inc., 121 S.Ct. 1861, sl.op. at 5 (May 29, 2001).  Section 2(11) of the Act defines the term 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. 

 

The Board recently revisited the issue of supervisory status in Oakwood Healthcare, Inc., 348 NLRB No. 37 (2006), in light of the Supreme Court’s findings in Kentucky River.  See also, Croft Metals, Inc., 348 NLRB No. 38 (September 29, 2006) and Goldencrest Healthcare Center, 348 NLRB No. 39 (September 29, 2006), issued at the same time as Oakwood.  In Oakwood, the Board adopted “definitions for the terms ‘independent judgment,’ ‘assign,’ and ‘responsibly to direct,’ as those terms are used in Section 2(11) of the Act.”  Oakwood, supra, slip op. at 3.

 

In Kentucky River, the Supreme Court rejected the Board’s interpretation of “independent judgment” to exclude the exercise of “ordinary professional or technical judgment in directing less skilled employees to deliver services.”  NLRB v. Kentucky River Medical Center, Inc., 532 U.S. at 713.  Therefore, in Oakwood, the Board adopted an interpretation of the term “independent judgment” that “applies irrespective of the Section 2(11) supervisory function implicated, and without regard to whether the judgment is exercised using professional or technical expertise . . . professional or technical judgments involving the use of independent judgment are supervisory if they involve one of the 12 supervisory functions of Section 2(11).”  Supra, slip op. at 7.  The Board stated that the term “independent judgment” must be interpreted in contrast with the statutory language “of a merely routine or clerical nature.”  Id. slip op. at 8.  The Board held that, “a judgment is not independent if it is dictated or controlled by detailed instructions, whether set forth in company policies or rules, the verbal instructions of a higher authority, or in the provisions of a collective-bargaining agreement.”  Id.  The Board clarified that, “. . . the mere existence of company policies does not eliminate independent judgment from decision-making if the policies allow for discretionary choices.”  Id. 

 

The interpretation of the term “independent judgment” as set forth in Oakwood applies to each of the twelve indicia of supervisory status.  The Boards’ holding in Oakwood concerning the definitions for “assign” and “responsibly direct” will be discussed in more detail below in the sections regarding each of these issues.

 

            B.         Burden of Proof and Employer’s Contentions

 

            In excluding individuals from a unit based upon supervisory status, the burden of proof rests upon the party alleging that an individual is a supervisor.  NLRB v. Kentucky River Community Care, 532 U.S. 706 (2001); Bennett Industries, 313 NLRB 1363 (1994).  A lack of evidence is construed against the party asserting supervisory status.  The Board is reluctant to confer supervisory status too broadly because an employee deemed to be a supervisor loses the protection of the Act.  See Vencor Hospital – Los Angeles, 328 NLRB 1136, 1138 (1999). 

 

The Employer contends that it is inappropriate to have the dual rate dealers/floor supervisors and full-time floor supervisors in the same unit with the dealers because the Employer uses those positions to satisfy the IGC requirement that certain processes performed by dealers be monitored by a “supervisor.”  The term supervisor is not defined by the IGC and there is no evidence that the IGC in anyway incorporated the meaning of supervisor contained in Section 2(11) of the Act in developing its regulations.  See 68 I.A.C. § 1-1, et seq.  The Employer emphasizes its and the government’s financial interest in preventing stealing and laundering of money through casinos and contends that the floor supervisor position is designed to prevent such crimes. 

 

The Board in El Dorado Inc. d/b/a El Dorado Club et. al., 151 NLRB 579, 579-584 (1965), made extensive comments on why state regulation of the gambling industry does not preclude the Board’s jurisdiction over the determination of appropriate units for bargaining.  In El Dorado, the Board discounted the employer’s concerns that the unionization of the positions at issue would deteriorate their effectiveness at combating stealing and organized crime.  Id.  Instead, the Board conducted the traditional inquiry into whether the positions at issue had the authority to exercise or effectively recommend any of the indicia of supervisory status as defined in Section 2(11) of the Act.  In that case numerous job titles at various casino locations were at issue, including the job titles of floormen and boxmen.[15]  The Board reviewed the evidence of the 2(11) supervisory authority of the floormen and boxmen at each of the casinos and based their exclusion from or inclusion in the unit on that evidence.  Id. at 585-590.  Applying the traditional analysis of 2(11) status, floormen/floor supervisors have been found not to possess supervisory authority in some cases and not in other cases.  See Flamingo Hilton-Laughlin, 324 NLRB 72, 103 (1997)(where floormen and boxmen where included in unit because they did not exercise supervisory authority); N & T Associates, Inc. d/b/a Aladdin Hotel, 270 NLRB 838 (1984)(full-time boxmen and floormen and dealers who substituted for them on a regular and substantial basis found to have supervisory authority because they responsibly directed employees with independent judgment and effectively recommended discipline).

 

            Since the Employer is the party asserting the supervisory status of the dual rate dealers/ floor supervisors and full-time floor supervisors in the present case, the Employer has the burden of proof.  The Employer has not asserted, nor has it provided any evidence that the dual rate dealers/floor supervisors or the full-time floor supervisors possess the authority to hire, transfer, suspend, lay off, recall, promote, or discharge employees, or adjust employee grievances, or effectively recommend such actions.  The Employer, however, does contend that the dual rate dealers/floor supervisors and full-time floor supervisors use independent judgment when they assign and responsibly direct employees.  In addition the Employer asserts that the dual rate dealers/floor supervisors and full-time floor supervisors discipline or effectively recommend such and also effectively recommend rewards through their involvement in dealers’ evaluations.  As discussed below, the Employer has failed to meet its burden of proof on all of these contentions.  Thus, it is determined that the dual rate dealers/floor supervisors and full-time floor supervisors are not supervisors within the meaning of Section 2(11) of the Act.

 

1.         Assignment of Work

 

            Based on the evidence presented at the hearing, there is insufficient evidence that dual rate dealers/floor supervisors or full-time floor supervisors assign dealers to work using independent judgment.  The Board, in Oakwood, construed the term “assign” “to refer to the act of designating an employee to a place (such as a location, department, or wing), appointing an employee to a time (such as a shift or overtime period), or giving significant overall duties, i.e., tasks, to an employee.”  Oakwood, slip op. at 4.  The Board reasoned that, “It follows that the decision or effective recommendation to affect one of these – place, time, or overall tasks – can be a supervisory function.”  Id.  The Board clarified that, “. . . choosing the order in which the employee will perform discrete tasks within those assignments (e.g., restocking toasters before coffeemakers) would not be indicative of exercising the authority to ‘assign.’”  Id.

 

In this case, there is insufficient evidence that dual rate dealers/floor supervisors or full-time floor supervisors assign dealers within the meaning of Section 2(11).  The assignments to place, time, and overall tasks are made by the Table Games Scheduler/Trainer and by the pit and shift managers.  There is no evidence that dual rate dealers/floor supervisors or full-time floor supervisors working in the pits or salon ever assign or reassign a dealer from one table to another.  There is evidence that the floor supervisors “sitting box” on a craps table can direct a dealer, who is in charge of the stick used to control the dice, to assist in the oversight of the table when the table is busy.  This does not result in any change to the place or time in which the dealer was working.  The change in overall tasks is minimal since the dealer is already charged with watching the action on the table and is only being asked to relay information to the floor supervisor.  There is no evidence that the dealer is being required to take over any of the floor supervisor’s functions such as entering information into the computer.  Such minor changes in job duties do not constitute a change in overall tasks as defined in Oakwood.

 

The assignment of dealers to the poker room is done by the Table Games Scheduler/ Trainer.  The testimony of the Employer’s witnesses indicated that the regularly scheduled full-time floor supervisors and the fill-in dual rate dealers/floor supervisors who are assigned to the poker room exercise independent judgment in assigning dealers to tables and in determining when to request additional dealers or by sending a dealer from the poker room to the pit manager to be reassigned.  This testimony is contradicted by a dealer who regularly works in the poker room.  The dealer’s testimony illustrated that customer demand determines how many tables are opened and what type of poker is being dealt at each table.  Dealers are not assigned to particular tables in the poker room but are required to work all the open tables by order in which they were opened in a pre-established pattern (i.e. string of tables).  There is no indication that the floor supervisors use independent judgment concerning the skills or experience of the dealers in making the determination as to how many or which types of poker tables to establish or which dealers to use at a particular table.  The floor supervisors simply open tables in response to the number of customers demanding a particular type of game.  Because dealers work all the open tables in the poker room, they are really assigned to those tables by the Table Games Scheduler/Trainer, not the floor supervisor in the poker room.  Once a dealer is assigned there by the Table Games Scheduler/Trainer the dealers work all the open tables in the order that the tables were opened regardless of the type of game being played.  As discussed above, the Board determined in Oakwood that establishing the order in which work is to be performed does not constitute the authority to assign work.  Therefore, the floor supervisors development of a string of open tables for the dealers to rotate among is not sufficient to vest them with supervisory status.  See Croft Metals, Inc., 348 NLRB No. 38, slip op. at 5 (September 29, 2006)(where Board held that rotating employees’ assignments on a production line to cover absent employees does not constitute assignment of employees under Section 2(11)); Solvay Iron Works, Inc., 341 NLRB 208 (2004).

 

Employer witnesses testified that floor supervisors in the poker room have the authority to request additional dealers from the pit manager and send extra dealers or a dealer who was having problems with customers back to the pit manager to be reassigned.  Although there are general statements that the floor supervisors have this authority, there is no direct evidence of a situation in which this occurred or how frequently it occurs.  The dealer who regularly works in the poker room testified that he has not seen it occur.  Nor is there evidence about the amount of discretion the floor supervisors have in this situation.  The evidence indicates that it is the pit manager who makes these changes.  The evidence, however, is inconclusive as to whether the pit manager acts solely pursuant to the floor supervisor’s recommendation or the pit manager makes the determination based on information solicited from the floor supervisor.  The record indicates that the pit manager makes the determination of where to assign a dealer that has left the poker room and makes the determination from where to pull a dealer to send to the poker room.  Ultimately, the record is unclear as to what role the floor supervisor has in the decision to change dealers in the poker room.   

 

The Board has found that the burden of proving a particular indicia of supervisory status is not met if the evidence is in conflict or otherwise inconclusive regarding that indicia.  Phelps Community Medical Center, 295 NLRB 486, 490 (1989).  Mere inferences or conclusionary statements without detailed, specific evidence of independent judgment are insufficient to establish supervisor authority.  Sears Roebuck & Co., 304 NLRB 193 (1991).  Without more direct evidence on the floor supervisor’s authority in assigning dealers in the poker room, it is impossible to determine that they have the authority to assign or effectively recommend such with the use of independent judgment.  

 

Based upon the record, there is insufficient evidence that floor supervisors assign or effectively recommend the reassignment of employees in any area of work including in the poker room.  Therefore, the Employer has failed to meet its burden of proving that dual rate dealers/ floor supervisors or full-time floor supervisors assign dealers within the meaning of Section 2(11) of the Act.

 

 

2.  Responsible Direction

 

In Oakwood, the Board sought to define the parameters of the term “responsibly to direct” by adopting the definition established by the Fifth Circuit in NLRB v. KDFW-TV, Inc., 790 F.2d 1273, 1278 (5th Cir. 1986):

 

         To be responsible is to be answerable for the discharge of a

         duty or obligation . . ..  In determining whether “direction” in

         any particular case is responsible, the focus is on whether

         the alleged supervisor is “held fully accountable and responsible

         for the performance and work product of the employees” he

         directs . . ..

 

Oakwood, slip op. at 6-7 (quoting NLRB v. KDFW-TV, Inc., 790 F.2d 1273, 1278 (5th Cir. 1986)).  The Board noted that in NLRB v. Adam [&] Eve Cosmetics, Inc., 567 F.2d 723, 727 (7th Cir. 1977), the court reversed a Board finding that an employee lacked supervisory status after finding that the employee had been reprimanded for the performance of others in his department.  Oakwood, slip op. at 7.  In agreeing with the circuit courts that have considered the issue, the Board found that “for direction to be ‘responsible,’ the person directing and performing the oversight of the employee must be accountable for the performance of the task by the other, such that some adverse consequence may befall the one providing the oversight if the tasks performed by the employees are not performed properly.”  Id.  In clarifying the accountability element for “responsibly to direct” the Board noted that, “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.”  Id.

 

            In the instant case, the evidence fails to establish that the floor supervisors responsibly direct with independent judgment.  First, there appears to be very little independent judgment on behalf of the floor supervisors directing the work of dealers.  Floor supervisors can only require the dealers to conduct their work in accordance with the very detailed internal control manuals and other well established procedures such as dress code or procedures for relieving on-duty dealers.  The record is clear that the floor supervisors have no discretion to change any of these procedures.  If a situation arose where such a change in procedure is necessary, such as the change in the relief rotation because a dealer is ill, the floor supervisor would have to call the pit manager to report the situation and wait for directions on how to handle the situation.

 

            What is even more devastating to the claim that the floor supervisors responsibly direct the dealers is the lack of evidence that they are responsible for the actions of the dealers that they oversee.  There is no evidence that the floor supervisors are ever disciplined for their failure to properly oversee dealers or for the inaccuracy or errors made by dealers.  The dual rate dealers/floor supervisors and the full-time floor supervisors are awarded raises and bonuses based upon numerical scores on a yearly evaluation.  No item for which they are scored covers their responsibilities to oversee dealers and there is no evidence that their skills in overseeing dealers are in any way factored into their overall numerical score, and therefore, the amount of raise or bonus they receive.

 

Thus, the record is devoid of any evidence that the floor supervisors are held accountable for the performance of the dealers in any way that effects their terms and conditions of employment.  Accordingly, the Employer has failed to meet its burden to prove that dual rate dealers/floor supervisors and full-time floor supervisors responsibly direct the work of the dealers within the meaning of Section 2(11) of the Act.

 

3.         Authority to Discipline or Effectively Recommend Discipline

 

The Employer contends that the dual rate dealers/floor supervisors and full-time floor

supervisors effectively recommend discipline by verbally counseling dealers on the work floor and by completing incident reports.  The Board has long held that the “authority to correct routine, ministerial errors is merely a clerical function that does not demonstrate supervisory status.” Quadrex Environmental Company, Inc., 308 NLRB 101, 102 (1992); Hydro Conduit Corp., 254 NLRB 433, 437 (1981); John Cuneo of Oklahoma, 238 NLRB 1438, 1439 (1978).  The floor supervisors are charged with reminding dealers to comply with the internal control manual procedures and other established company procedures.  The floor supervisors do this through brief oral reminders and hand gestures to dealers while they are working or through one-on-one discussions with dealers during their break times.  These directives to follow established procedures are not documented in any way.  If the floor supervisors encounter non-routine problems, they must report them to the pit or shift managers.  Under these circumstances, the act of merely reminding dealers of established Employer policies is not sufficient to confer supervisory status on the floor supervisors.  Quadrex, at 101.

 

            The Employer also contends that the incident reports completed by the floor supervisors initiate the discipline process, and therefore, constitutes effective recommendation of discipline.  Although, the floor supervisors do exercise some discretion as to when to inform managers of a dealers’ failure to follow the Employer’s procedure, the ramifications of completing the incident report is significantly different in this case than in the recent Board cases of Sheraton Universal Hotel, 350 NLRB No. 84 (August 31, 2007) and Oak Park Nursing Care Center, 351 NLRB No. 9 (September 26, 2007).  The incident reports that the floor supervisors may complete in the instant case are not the Employer’s disciplinary form.  Indeed, the record reflects that a fair percentage of the incident reports completed by dual rate dealers/floor supervisors and full-time floor supervisors did not result in a disciplinary form being completed by management and there is no evidence that the incident reports are maintained in individual employee’s files or result in any disciplinary action or any record in the employee’s file without an independent investigation by management.  Therefore, this case is distinguishable from both Sheraton Universal Hotel and Oak Park Nursing Care Center, Supra.  In Sheraton Universal Hotel, the Board found the hotel’s front desk supervisor to be a supervisor under Section 2(11) when the documentation of his “coach & counsels” with employees were placed in employees’ files and used in considering future disciplinary action, thus were the first step in the employer’s disciplinary process.  In addition, upper management typically followed the front desk supervisor’s recommendations on discipline of employees without conducting any independent investigation.  In Oak Park Nursing Center, the Board determined that LPNs who had the authority to fill out employee counseling forms were statutory supervisors by virtue of their authority to discipline, and effectively recommend discipline of, employees.  Under the employer’s personnel policies an employee counseling form is used regarding any offense which might result in discipline.  The Board found therefore, that the counseling forms were a form of discipline because they formed the basis for future discipline under the progressive discipline system.  Since the LPNs alone decided whether to initiate the progressive discipline system, by executing an employee counseling form, they were vested with the authority to exercise independent judgment.  The Board further found evidence that the recommendations of LPN’s regarding discipline to employees were followed without any independent investigation by upper management.

 

The applicable Board law to this situation can be found in Board cases where no indicia of supervisory status is established when incident reporting does not always result in discipline and when management conducts an independent investigation into the reported incident before issuing discipline.  See Franklin Home Health Agency, 331 NLRB 826, 830 (2002); Hausner Hard-Chrome of Ky., Inc., 326 NLRB 426, 427 (1998).  Here the Employer explicitly admits that no incident report ever results in a disciplinary action until management conducts an independent investigation into the incident.  Even if the floor supervisors have the authority to complete the recommendation section of the incident report, which is doubtful considering the evidence, the Employer’s witnesses testified that these recommendations were never effectuated without a separate investigation being completed by management.  The decision to discipline rests entirely with management.  Clearly, the floor supervisors are not effectively recommending discipline under these circumstances.

 

In addition, and perhaps most significantly, all employees can complete incident reports regarding other employees and customers.  To find that completing incident reports confers supervisory status on the Employer’s employees, would result in all of its employees being excluded from the unit as supervisors under the Act.  Such is an impractical result. 

 

            Accordingly, the evidence that dual rate dealers/floor supervisors and full-time supervisors verbally correct dealers and may complete incident reports regarding dealers is insufficient to meet the Employer’s burden that they have the authority to discipline, or effectively recommend discipline of, employees such that they are supervisors within the meaning of the Act.

 

 

 

4.         Authority to Reward and Role in Performance Evaluations