Mountaineer Park, Inc.

National Labor Relations Board - Board Decisions

Dec 16, 2004

343 N.L.R.B. 1473 (N.L.R.B. 2004)

MOUNTAINEER PARK, INC.
343 NLRB No. 135
1473
Mountaineer Park, Inc. and United Food and Com-
mercial Workers International Union, Local Un-
ion 23, AFL–CIO, CLC. Case 6–RC–12289
December 16, 2004
DECISION AND DIRECTION
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
The National Labor Relations Board, by a three-
member panel, has considered objections and determina-
tive challenges in an election held December 19, 2003,
and the hearing officer’s report recommending disposi-
tion of them. The election was conducted pursuant to a
Stipulated Election Agreement. The tally of ballots
shows 75 for and 70 against the Petitioner, with seven
challenged ballots, a number sufficient to affect the elec-
tion results.
The Board has reviewed the record in light of the ex-
ceptions1 and briefs and has adopted the hearing officer’s
findings2 and recommendations3 only to the extent con-
sistent with this Decision and Direction.
Introduction
The only remaining issue in this case is the Employer’s
challenges to the ballots of employees Evelyn Fullerton
and Cheryl Guzzo—both of whom are “assistant supervi-
sors” in the Employer’s housekeeping department—on
the grounds that these individuals are statutory supervi-
sors. Contrary to the hearing officer, we find that Fuller-
ton and Guzzo are supervisors within the meaning of
Section 2(11) of the Act, and that they are therefore ex-
cluded from the bargaining unit. Accordingly, we sus-
tain the challenges to their ballots.

1 In the absence of exceptions, we adopt pro forma the hearing offi-
cer’s recommendation to overrule the Petitioner’s Objections 1 and 3,
which allege, respectively, that the Employer improperly altered its
method of paycheck distribution prior to the election and that it pro-
vided the Petitioner with an Excelsior list containing incorrect ad-
dresses for certain bargaining unit employees. See Excelsior Under-
wear, 156 NLRB 1236 (1966). Further, in the absence of exceptions,
we adopt pro forma the hearing officer’s recommendation to overrule
the challenges to the ballots of employees Wanda Board, Dwayne Ed-
ward Franklin, Crystal D. Gajtka, Julie Lynne Krynicki, and Laura
Lynn Smith on the grounds that these individuals are not statutory
supervisors.
2 The Employer has excepted to some of the hearing officer’s credi-
bility findings. The Board’s established policy is not to overrule a
hearing officer’s credibility resolutions unless a clear preponderance of
all the relevant evidence convinces us that they are incorrect. Stretch-
Tex Co., 118 NLRB 1359 (1957). We have carefully examined the
record and find no basis for reversing the findings.
3 For the reasons stated in the hearing officer’s report, we adopt the
hearing officer’s recommendation to overrule Petitioner’s Objection 2,
which alleges that the Employer stationed a supervisor of guards out-
side of the entrance to the polling place, “thus creating a chilling and
intimidating effect on the free choice of voters.”
Facts
The Employer operates a racetrack and gaming resort
in Chester, West Virginia. The Petitioner seeks to repre-
sent a unit that includes, inter alia, the Employer’s
housekeeping employees at that facility.
The Employer’s housekeeping department is divided
into a “lodge” section and a “gaming” section. Ap-
proximately 25 to 35 housekeepers are employed in the
lodge section on a daily basis and about 20 are employed
in the gaming section. Director of Housekeeping David
Rellis oversees the operations of both sections. Each
section has its own supervisor: Debbie Kuykendal super-
vises the lodge section and Billy Jo Jenkins supervises
the gaming section.4 Both Kuykendal and Jenkins work
5 days per week. Rellis testified that when Kuykendal
and Jenkins are not on duty (i.e., 2 days per week each),
their supervisory duties are performed by “assistant su-
pervisors” Fullerton and Guzzo, respectively.5 He also
testified that Fullerton and Guzzo perform such duties
even when Kuykendal and Jenkins are on duty. In this
regard, Rellis testified that Fullerton and Guzzo typically
spend 50 percent of their workdays performing house-
keeping work and the remainder performing supervisory
duties. Apparently, this percentage varies according to
whether Kuykendal and/or Jenkins are on duty; when
they are on duty, Fullerton and Guzzo spend a greater
percentage of their time performing housekeeping work
and less time performing supervisory duties, and vice-
versa.6
Rellis credibly testified that, while Fullerton and
Guzzo are performing supervisory duties, they have the
authority, inter alia, to effectively recommend employee
discipline. In this respect, he testified that they have the
authority to decide on their own volition whether to initi-
ate discipline. They are authorized to write up recom-
mendations for disciplinary action, in which they suggest
a level of discipline that they deem appropriate according
to the seriousness of the infraction. Rellis testified that,
at that point, “[t]hey [the disciplinary write-ups] get
turned into me to review. It is routine, if it is justifiable,
I will sign off on it. Then it can be presented.”
[Q. Do you regard these recommendations as be-
ing effective?]
Yes.

4 The parties stipulated that these individuals are statutory supervi-
sors.
5 Fullerton and Guzzo did not testify at the hearing.
6 It is also important to note that assistant supervisors such as Fuller-
ton and Guzzo, like the stipulated statutory supervisors, wear uniforms
and are paid on an hourly basis. Assistant supervisors are paid about
$1.25 less than the stipulated supervisors, yet they are paid 50 cents to
$1 more than senior housekeepers.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1474
Our dissenting colleague reads Rellis’ testimony as in-
dicating that he will sign off on the recommended disci-
pline only when it is routine or justifiable. We read it
differently. Rellis is stating that, if the discipline is justi-
fiable, he routinely approves it. We view Rellis’ stated
standard of review (“justifiable”) as according significant
autonomy and discretion to the assistant supervisors.
Rellis testified that he has received between three to five
recommendations for disciplinary action from Fullerton
over the course of the past year, and he has approved all
of these recommendations. He has not received any such
recommendations from Guzzo.7
Based on Rellis’ testimony, the Employer contends
that Fullerton and Guzzo are statutory supervisors and
should therefore be excluded from the unit. The hearing
officer found that Fullerton and Guzzo are not supervi-
sors and recommended overruling the challenges to their
ballots. The Employer excepts to this finding, arguing,
in part, that Fullerton and Guzzo exercise independent
judgment in effectively recommending employee disci-
pline. For the reasons set forth below, we reverse the
hearing officer and sustain the challenges to the ballots
of Fullerton and Guzzo.
Analysis
Section 2(11) of the Act, 29 U.S.C. § 152(11), defines
the term “supervisor” as:
Any individual having authority, in the interest of
the employer, to hire, transfer, suspend, lay off, re-
call, promote, discharge, assign, reward, or disci-
pline other employees, or to responsibly direct them,
or to adjust their grievances, or to effectively rec-
ommend such action, if in connection with the fore-
going, the exercise of such authority is not of a
merely routine or clerical nature, but requires the use
of independent judgment.
An individual need only possess one of these indicia of
supervisory authority as long as the exercise of such au-
thority is carried out in the interest of the employer, and
requires the use of independent judgment. Arlington
Masonry Supply, Inc., 339 NLRB 817, 818 (2003). Sig-
nificantly, it is not required that the individual have exer-
cised any of the powers enumerated in the statute; rather,
it is the existence of the power that determines whether
the individual is a supervisor. Id. Further, the burden of
proving that an individual is a statutory supervisor rests
on the party alleging such status. NLRB v. Kentucky
River Community Care, 532 U.S. 706, 712 (2001).
Applying these principles to the facts of this case, we
find that the Employer has met its burden of proving that

7 The recommendations prepared by Fullerton are not in the record.
Evelyn Fullerton and Cheryl Guzzo possess supervisory
authority within the meaning of Section 2(11). Specifi-
cally, we find, contrary to the hearing officer, that Fuller-
ton and Guzzo exercise independent judgment in effec-
tively recommending employee discipline to Director of
Housekeeping Rellis.8
A. Authority to Effectively Recommend Discipline
In rejecting the Employer’s contention that Fullerton
and Guzzo effectively recommend discipline, the hearing
officer noted that, although Fullerton and Guzzo have the
authority to submit written disciplinary recommendations
to Rellis, Rellis makes an “independent determination”
as to whether discipline should be issued. Thus, the
hearing officer concluded that Fullerton’s and Guzzo’s
role in disciplining employees is limited to merely re-
porting potential disciplinary problems to Rellis and does
not involve the exercise of independent judgment.
We disagree. Rellis’ credited testimony demonstrates
that, even if Fullerton and Guzzo do not issue discipline
to employees entirely on their own, they use independent
judgment in effectively recommending discipline to Rel-
lis. In this regard, they have the authority to bring em-
ployee rule infractions and misconduct to Rellis’ atten-
tion, thereby initiating the disciplinary process; and, in
the process of doing so, they can write up recommenda-
tions for Rellis concerning what level of discipline they
consider to be appropriate relative to the infraction or
misconduct at issue. Further, and most significantly,
when they decide to bring disciplinary issues to Rellis’
attention, it appears that Rellis does not conduct an inde-

8 However, for the reasons set forth in the hearing officer’s report,
we agree with the hearing officer that there is no merit in the Em-
ployer’s argument that Fullerton and Guzzo are supervisors by virtue of
their stated authority to assign work and/or direct the work of employ-
ees.
Chairman Battista would find that Fullerton and Guzzo are supervi-
sors on the additional basis of their regular service as substitute super-
visors. It is undisputed that, on 2 full days per week, Fullerton and
Guzzo perform all the duties of their respective supervisors, Kuykendal
and Jenkins. Such a performance of supervisory duties is both regular
and substantial. See Aladdin Hotel, 270 NLRB 838, 840 (1984) (casino
dealers who have substituted for supervisors on the average of at least
two times per month over the past 3 months are supervisors); Honda of
San Diego, 254 NLRB 1248, 1249–1250 (1981) (employee who served
as supervisor 10 of 40 hours per week is excluded from unit as supervi-
sor).
Member Schaumber concurs that regular and substantial perform-
ance of supervisory duties as a substitute supervisor may establish
supervisory status within the meaning of Sec. 2(11). In his view, the
titular designation of “substitute supervisor” is not controlling; rather,
one must look to the duties actually performed while functioning in that
capacity. In the instant case, the record reflects that assistant supervi-
sors possessed the authority to effectively recommend discipline, as
evidenced by the uncontradicted testimony that they did so and that
such disciplinary recommendations were routinely followed by Direc-
tor of Housekeeping Rellis.
MOUNTAINEER PARK, INC. 1475
pendent investigation of the incident in question. Con-
trary to the hearing officer’s finding that Rellis makes an
“independent determination” as to whether discipline
should be issued, Rellis’ credited testimony establishes
that he has a policy of routinely “signing off” on the dis-
ciplinary recommendations made by Fullerton or Guzzo
if he believes that the recommendations are justifiable.
This is evidenced by the fact that Rellis has received
three to five such recommendations from Fullerton and,
without conducting any sort of investigation, he has fol-
lowed her recommendations in all cases.9 See
Donaldson Brothers Ready Mix, 341 NLRB 958, 963
finding supervisory status where Respondent failed to
show that individual’s hiring and firing recommendations
were overruled on any occasion); Venture Industries, 327
NLRB 918, 919 (1999) (finding supervisory authority to
discipline where employer followed such recommenda-
tions 75 percent time).
In a recent case, Progressive Transportation Services,
340 NLRB 1044 (2003), the Board found that an indi-
vidual who played a similar role to the roles Fullerton
and Guzzo play in the disciplinary process was a statu-
tory supervisor. In that case, the individual at issue,
Sandra Yozzo, was a “deck lead supervisor.” Id. at 1044.
As part of her duties in that position, Yozzo was respon-
sible for preparing and issuing disciplinary notices to the
employer’s dispatchers. Id. Yozzo first brought poten-
tial disciplinary issues to the attention of the operations
manager who, without conducting an independent inves-
tigation, would decide on an appropriate level of disci-
pline and determine how the disciplinary notice should
be written up; in doing so, the operations manager would
typically follow Yozzo’s recommendations.1 Id. at
1046–1047. Based on the operations manager’s determi-
nations, Yozzo drafted the disciplinary notices, signed
them as “supervisor,” and issued them to the offending
employees. Id. at 1047.
Given these facts, the Board found that Yozzo exer-
cised independent judgment in effectively recommending
discipline, and was therefore a statutory supervisor. In
so finding, the Board emphasized the fact that Yozzo had
the authority to decide on her own whether to initiate the

9 Although Rellis has apparently not received any disciplinary rec-
ommendations from Guzzo, Rellis testified that she, like Fullerton,
nonetheless has the authority to issue such recommendations. Thus, as
discussed above, the fact that she has not exercised this authority does
not preclude a finding that she possesses supervisory authority. See
Arlington Masonry, supra, at 818 (holding that it is the existence of
supervisory authority, not the exercise of that authority, that determines
whether or not an individual is a supervisor.).
1 The record included 33 disciplinary notices, which demonstrated
that the operations manager had followed Yozzo’s recommendations to
impose discipline.
disciplinary process by taking disciplinary issues to the
operations manager; that the manager did not conduct an
independent investigation of these issues, and he typi-
cally followed her recommendations regarding the impo-
sition of discipline; and that Yozzo prepared, signed, and
presented disciplinary notices to employees. Id. at 1046–
1048.
In the instant case, the facts surrounding Fullerton’s
and Guzzo’s role in the disciplinary process constitute an
even stronger basis for finding supervisory status than in
Progressive. Fullerton and Guzzo have the authority not
only to decide whether to trigger the disciplinary proc-
ess—as did employee Yozzo—but they also have the
authority to write up proposed disciplinary recommenda-
tions, in which they recommend a specific level of disci-
pline before passing these recommendations on to Rellis.
In contrast, in Progressive, supra, it was the operations
manager, not Yozzo, who decided on the appropriate
level of discipline for the infraction or misconduct at
issue; Yozzo wrote up the disciplinary notice only after
the manager had made this determination. In any event,
Rellis, like the manager in Progressive, supra, has a pol-
icy of approving the disciplinary recommendations made
by Fullerton and Guzzo without conducting a further
investigation; and, as evidenced by his disposition of the
recommendations he has received from Fullerton, he has
followed such recommendations 100 percent of the time.
Based on this evidence, it appears that, if Fullerton or
Guzzo decide on their own volition to bring a potential
disciplinary issue to Rellis’ attention, discipline ensues;
and, the level of discipline that Rellis imposes in these
situations is that which is recommended by Fullerton or
Guzzo. Accordingly, although Fullerton and Guzzo do
not have the authority to unilaterally impose employee
discipline, the evidence in the record reflects that they do
have the authority to effectively recommend discipline,
and that they exercise independent judgment in doing so.
In finding that Fullerton and Guzzo effectively rec-
ommend discipline, we disagree with our dissenting col-
league that there is “insufficient evidence” in the record
to support this finding. Specifically, our dissenting col-
league contends that there is insufficient evidence to
show that the disciplinary recommendations made by
Fullerton and Guzzo are approved by Rellis without his
conducting an independent investigation. In so contend-
ing, our dissenting colleague points to Rellis’ testimony
that these recommendations are sent to him “to review.”
Our dissenting colleague also notes that Rellis’ testimony
is silent as to how he “reviews” the recommendations—
i.e., what actions he takes between the time he receives
these recommendations and the time he reaches a final
decision concerning their disposition. Based on this as-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1476
serted “lack of evidence,” our dissenting colleague rea-
sons that Rellis’ testimony does not establish either ex-
plicitly or implicitly that Rellis does not conduct an in-
dependent investigation concerning these recommenda-
tions. Rather, he reasons that Rellis’ testimony estab-
lishes only that Rellis conducts some sort of “review” of
the recommendations. We disagree.
Our dissenting colleague has misstated our position.
He says that our position is that Rellis “rubber stamps”
the disciplinary recommendations from Fullerton and
Guzzo. That is not our view, i.e., we do not assert that
any “rubber stamping” occurs. However, it does not
follow that Rellis conducts an independent investigation.
Rather, as the record shows, he “reviews” the recom-
mendation, i.e., he considers it, and adds his own judg-
ment and insight. Based on both, he reaches a decision.
As noted above, Rellis credibly testified that, when he
receives these recommendations, and they are “justifi-
able,” he will “routine[ly]” sign off on them. The issue
of supervisory status turns on the extent to which his
decision relies on the recommendation. The record
shows that such reliance is indeed weighty. The record
evidence is that he follows the recommendation in all of
the cases that reach him. Based on this evidence, we
conclude that the recommendations are effective recom-
mendations.
Our dissenting colleague also contends that there is no
showing that the recommended discipline affected an
employee’s job status or formed the basis for further dis-
cipline. It is true that, in the instances where discipline
was imposed, there is no record evidence as to what that
discipline was. However, as discussed above, we are not
confined to instances of actual discipline. The authority
to recommend discipline can bestow supervisory status.
In this regard, Rellis testified that Fullerton and Guzzo
have the authority to recommend any level of discipline
they wish.
Finally, our dissenting colleague would find that Full-
erton’s and Guzzo’s authority in this regard is merely
reportorial and does not require the exercise of independ-
ent judgment because they can only bring disciplinary
issues to Rellis and they cannot issue discipline unilater-
ally. However, as noted above, Section 2(11) requires
only that an individual have the authority to “effectively
recommend” discipline—not that he or she have the final
authority to impose it.
B. Secondary Indicia of Supervisory Status
In addition to their authority to effectively recommend
discipline, Fullerton and Guzzo possess several secon-
dary indicia of supervisory authority. In this regard,
Fullerton and Guzzo receive an hourly wage that is 50
cents to $1 higher than that of senior housekeepers.
They also wear the same uniforms as stipulated statutory
Supervisors Kuykendal and Jenkins.
CONCLUSION
In sum, for all of the foregoing reasons, we find that
Fullerton and Guzzo are statutory supervisors within the
meaning of Section 2(11). Accordingly, we sustain the
challenges to their ballots.
DIRECTION
IT IS DIRECTED that the Regional Director shall, within
14 days from the date of this Decision and Direction,
open and count the ballots of Wanda Board, Dwayne
Edward Franklin, Crystal D. Gajtka, Julie Lynne
Krynicki, and Laura Lynn Smith, shall prepare and serve
on the parties a revised tally of ballots, and shall issue the
appropriate certification.
MEMBER WALSH, dissenting in part.
I join the majority in adopting the hearing officer’s
recommendation to overrule the Employer’s objections
in their entirety and in adopting the hearing officer’s rec-
ommendation to overrule the challenges to the ballots of
employees Wanda Board, Dwayne Edward Franklin,
Crystal D. Gatjtka, Julie Lynne Krynicki, and Laura
Lynne Smith on the grounds that these individuals are
not statutory supervisors.
However, I disagree with the majority’s finding that
the Employer has met its burden of proving that Evelyn
Fullerton and Cheryl Guzzo exercise independent judg-
ment in effectively recommending employee discipline.
Thus, contrary to the majority, I would adopt the hearing
officer’s finding that they are not statutory supervisors
and his recommendation to overrule the challenges to
their ballots.1
Stated briefly, the relevant facts are as follows. The
Employer operates a racetrack and gaming resort. The
housekeeping department at the Employer is divided into
a “lodge” section and a “gaming” section, both of which
are overseen by Director of Housekeeping David Rellis.
Rellis testified that Fullerton and Guzzo are “assistant
supervisors” in the lodge and gaming sections, respec-
tively; and, as such, they perform the duties of the stipu-
lated statutory supervisors when those supervisors are
not on duty.2 Rellis testified that, in the course of per-
forming these duties, Fullerton and Guzzo prepare disci-
plinary recommendations, in which they recommend a

1 I join the majority in adopting the hearing officer’s finding that
Fullerton and Guzzo are not, as the Employer argues, statutory supervi-
sors by virtue of their authority to assign work/and or direct the work of
employees.
2 Rellis also testified that Fullerton and Guzzo perform supervisory
duties as part of their overall duties even when the stipulated statutory
supervisors are on duty.
MOUNTAINEER PARK, INC. 1477
specific level of discipline relative to the degree of mis-
conduct or rule infraction at issue, and that these recom-
mendations “get turned in to [him] to review.” Rellis
also testified that, if the recommendations are “routine”
or “justifiable,” he will “sign off” on them. He further
testified that he has received between three to five such
recommendations from Fullerton, and he has approved
all of them. However, he has never received any disci-
plinary recommendations from Guzzo.
On this evidence, the hearing officer found that, even
though Fullerton and Guzzo have the authority to submit
disciplinary recommendations to Rellis, Rellis makes an
independent determination as to whether discipline
should be issued. Thus, the hearing officer concluded
that Fullerton’s and Guzzo’s role in disciplining employ-
ees is limited to merely reporting potential disciplinary
issues to Rellis and therefore does not involve the exer-
cise of independent judgment.
In reversing the hearing officer’s finding that Fullerton
and Guzzo are not statutory supervisors, the majority
concedes that Fullerton and Guzzo do not issue discipline
directly. They also concede that Fullerton and Guzzo
report rule infractions and other instances of misconduct
to Rellis, and that it is Rellis—not Fullerton and
Guzzo—who then decides whether to impose discipline.
Nonetheless, in the absence of record evidence, the ma-
jority finds that Fullerton and Guzzo exercise independ-
ent judgment in effectively recommending discipline. In
doing so, they rely entirely on Rellis’ testimony, as this is
the only relevant evidence the Employer has presented to
show that Fullerton and Guzzo effectively recommend
discipline. Based on this testimony, the majority hy-
pothesizes that Rellis has a policy of simply “rubber
stamping” the disciplinary recommendations he receives
from Fullerton and Guzzo without conducting an inde-
pendent investigation of the incidents that prompted the
recommendations, and that he approves these recom-
mendations “100% of the time.”3 On that basis, the ma-
jority finds that, when Fullerton or Guzzo recommend
discipline to Rellis, discipline ensues without an inde-
pendent investigation by Rellis. Thus, the majority ulti-
mately concludes that Fullerton and Guzzo have the au-
thority to effectively recommend discipline.
However, the majority’s conclusion is contrary to two
well-established principles that are relevant to the analy-

3 The majority contends that I have misstated their position by char-
acterizing their perception of Rellis’ treatment of the disciplinary rec-
ommendations as “rubber stamping.” However, given that the majority
is arguing that these recommendations are approved by Rellis in all
cases without his conducting an independent investigation—and his
having, at most, engaged in a perfunctory review—my characterization
of this process as “rubber stamping” is entirely accurate.
sis of supervisory issues. First, as the majority concedes,
the burden of proving that an individual is a supervisor is
on the party alleging such status. NLRB v. Kentucky
River Community Care, 532 U.S. 706, 712 (2001). Any
lack of evidence is held against the party asserting super-
visory status. See Elmhurst Extended Care Facilities,
329 NLRB 535 fn. 8 (1999). Thus, when the party as-
serting supervisory status has failed to make the required
showing, it is inappropriate for the Board to “fill in the
blanks.” Second, in order to confer supervisory status,
“the exercise of disciplinary authority must lead to per-
sonnel action, without the independent investigation or
review of other management personnel.” Franklin Home
Health Agency, 337 NLRB 826, 830 (2002). Applying
these principles to the facts of this case, there is simply
insufficient evidence in the record to support the major-
ity’s inference that the disciplinary recommendations that
Fullerton and Guzzo make lead to personnel action with-
out independent investigation by Rellis.
The record evidence does not support the majority’s
inference that Rellis does not conduct an independent
investigation when he receives disciplinary recommenda-
tions from Fullerton and Guzzo. Despite the majority’s
attempt to extract such an inference from Rellis’ testi-
mony, that testimony does not—either explicitly or im-
plicitly—establish that Rellis has a policy of refraining
from independent investigation when he receives these
recommendations. Rellis vaguely testified that discipli-
nary recommendations get turned into him “to review”
and that if the recommendations are “routine” or “justifi-
able,” he will sign off on them. However, his testimony
does not reveal exactly how he “reviews” these recom-
mendations before “signing off” on them. In other
words, Rellis’ testimony does not indicate what specific
steps he takes in reviewing the recommendations; the
extent to which he reviews them; or what factors he takes
into consideration in determining whether or not to fol-
low the recommendations. And, it does not establish
how Rellis determines whether the recommendations are
“routine” or “justifiable” or what he does if he deter-
mines that they are not. What Rellis’ testimony does
establish, if anything, is that it is reasonable to infer that
Rellis conducts some sort of “review” of the recommen-
dations, and that he does not simply “rubber stamp”
them, as the majority seems to suggest. It also suggests
that this review may be intensified if the recommenda-
tions at issue are not “routine” or “justifiable.” In any
case, the record is silent as to exactly what actions Rellis
takes between the time he receives these recommenda-
tions and the time he reaches a final decision concerning
their disposition.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1478
Nevertheless, the majority relies upon the lack of evi-
dence regarding how Rellis handles the disciplinary rec-
ommendations prepared by Fullerton and Guzzo to infer
by omission that he does nothing—that is, that he does
not conduct an independent investigation concerning
these recommendations. In doing so, the majority has
lost sight of the well-settled principle that it is incumbent
upon the Employer, as the party alleging that Fullerton
and Guzzo are supervisors, to affirmatively show that
their disciplinary recommendations essentially pass
through Rellis without his conducting an independent
investigation. It is not the responsibility of the opposing
party to make a contrary showing. See Kentucky River,
532 U.S. at 712. Accordingly, given the lack of evidence
in the record that Rellis does not conduct an independent
investigation in response to the disciplinary recommen-
dations he receives from Fullerton and Guzzo, the major-
ity’s unsupported attempt to “fill in the blanks” in order
to reach this finding is unavailing.4 See Elmhurst Ex-

4 In arguing that Rellis does not conduct an independent investiga-
tion concerning disciplinary recommendations he receives from Fuller-
ton and Guzzo, the majority postulates that any review Rellis under-
takes of these recommendations is limited to simply “considering”
them and “adding his own judgment and insight” before reaching a
final decision as to their disposition. However, as discussed above,
Rellis testified only that the recommendations come to him for review
and that he signs off on them if they are “routine” or “justifiable.”
There is no evidence indicating what actions Rellis takes between the
time he receives the recommendations and the time he signs off on
them—not even that he “considers” them or “adds his own judgment
and insight,” as the majority speculates. By the same token, there is no
evidence that he does not conduct an independent investigation con-
cerning these recommendations.
The majority further postulates that Rellis approves these discipli-
nary recommendations without conducting an independent investiga-
tion “in all cases that reach him”; the majority contends that this dem-
onstrates that Fullerton’s and Guzzo’s disciplinary recommendations
are effective. However, as noted above, Rellis’ testimony establishes
only that Rellis approves the recommendations if they are “routine” or
“justifiable.” Significantly, his testimony—and the record as a
whole—is silent as to how he handles recommendations that are not
“routine” or “justifiable.” Hence, the record fails to establish that Rel-
lis has a blanket policy of approving all disciplinary recommendations
that reach him without resort to an independent investigation. In fact, if
anything, Rellis’ testimony implies that it is just as likely that Rellis
will not do so when the recommendations are not routine or justifiable.
This, of course, undercuts the majority’s finding that Fullerton’s and
Guzzo’s disciplinary recommendations automatically lead to discipline
in all cases.
The majority also disputes my interpretation of Rellis’ testimony as
stating that he will sign off on disciplinary recommendations he re-
ceives from Fullerton and Guzzo when they are “routine” or “justifi-
able.” The majority, in contrast, interprets this portion of Rellis’ testi-
mony as stating that “when he receives these recommendations, and
they are ‘justifiable,’ he will ‘routine[ly]’ sign off on them.” Given that
Rellis’ testimony in general—and on this issue in particular—is am-
biguous, it should be construed against the Employer, the party assert-
ing supervisory status. See the discussion of the burden of proof in the
text above. However, even assuming arguendo that the majority’s
tended Care Facilities, 329 NLRB at 536 fn. 8 (any lack
of evidence is held against the party asserting supervi-
sory status.).
Further, contrary to the majority, the Employer has
failed to demonstrate that Fullerton and Guzzo recom-
mend the type of “discipline” needed to confer supervi-
sory status. According to the majority, the fact that Rel-
lis has received three to five disciplinary recommenda-
tions from Fullerton—and has approved all of them
without conducting an independent investigation—shows
that, when Fullerton and Guzzo recommend discipline,
“discipline ensues.” The recommendations on which the
majority relies in support of this proposition were not
even introduced into the record. Thus, in finding that
these recommendations constitute evidence of Fuller-
ton’s and Guzzo’s authority to effectively recommend
discipline, the majority relies solely on Rellis’ testimony
that he followed the disciplinary recommendations he
received from Fullerton. However, since Rellis testified
only that he followed the recommendations, Rellis’ tes-
timony does not indicate what level of discipline was
recommended or imposed in these instances. Even as-
suming that Rellis did not--as the majority contends—
conduct an independent investigation of any of the rec-
ommendations made by Fullerton before he approved
them, it is not known whether the recommendations he
approved even resulted in the type of personnel action
that the Board has deemed sufficient to confer supervi-
sory status. Significantly, the Board has recognized that
the authority to issue minor corrective actions, such as
verbal and written warnings, is too minor a disciplinary
function to confer supervisory status when there is no
evidence that the warnings form the basis for further dis-
cipline or otherwise affect job status. See Ohio Masonic
Home, Inc., 295 NLRB 390, 393–394 (1989); Passavant
Health Center, 284 NLRB 887, 889 (1987).
Because the level of discipline that was imposed based
on Fullerton’s recommendations to Rellis is unknown,
there is no evidence to support a conclusion that that dis-
cipline formed a basis for further discipline or otherwise
affected the job status of the employees involved. Even
assuming arguendo that there was evidence to this effect,

interpretation of Rellis’ testimony is the more reasonable one, it still
does not advance the majority’s theory that Rellis does not conduct an
independent investigation into the disciplinary recommendations he
receives from Fullerton and Guzzo and that their recommendations are
therefore “effective.” In this regard, even assuming that Rellis testified
that he “routinely” ends up approving all “justifiable” recommendations
from Fullerton and Guzzo, as the majority asserts, his testimony is still
silent as to what specific actions he takes before he “routinely” ap-
proves such recommendations. Further, under the majority’s interpreta-
tion of Rellis testimony, the question of how Rellis handles disciplinary
recommendations that are not “justifiable” is still left unanswered.
MOUNTAINEER PARK, INC. 1479
the fact that Rellis happened to approve a mere handful
of these recommendations is hardly sufficient to establish
that Rellis has an established practice of approving such
recommendations in all, or even most, instances. Ac-
cordingly, these few approved disciplinary recommenda-
tions fail to establish that Fullerton and Guzzo have the
authority to effectively recommend discipline.5
For these reasons, the majority’s reliance on Progres-
sive Transportation, 340 NLRB 1044 (2003), is mis-
placed. In Progressive, the Board found that an em-
ployee exercised independent judgment in effectively
recommending discipline, and was therefore a supervi-
sor, because, when she brought disciplinary issues to the
operations manager, the manager did not independently
investigate her recommendations to impose discipline,
and he normally followed these recommendations. Id. at
1045–1046. As noted by the majority, the Board, in
reaching this finding, emphasized, inter alia, that the em-
ployee had the power to decide on her own whether to
initiate the disciplinary process by taking disciplinary
issues to the operations manager, that the manager did
not conduct an independent investigation of these issues,
and that he typically followed her recommendations re-
garding the imposition of discipline, as evidenced by 33
approved disciplinary notices that were introduced into
the record. Id. at 1046.
The majority maintains that, because Fullerton and
Guzzo play “a similar role” in the disciplinary process to
the employee in Progressive, they should also be found
to be supervisors. However, as discussed above, unlike
the disciplinary process in Progressive, there is insuffi-
cient evidence in this case to support a conclusion that
Rellis does not conduct an independent investigation
when he receives disciplinary recommendations from
Fullerton and Guzzo. Also, there is insufficient evidence
to show that Rellis has an established practice of follow-
ing these recommendations, as was the case in Progres-
sive. As noted above, the employer in Progressive intro-
duced into the record 33 disciplinary notices, which re-
flected that the operations manager had followed the em-
ployee’s recommendations to impose discipline in all of
these cases; and, significantly, some of these notices

5 The majority argues that, even if the three to five approved disci-
plinary recommendations fail to show that Fullerton exercised the au-
thority to effectively recommend discipline in these instances, the re-
cord otherwise reflects that Fullerton and Guzzo have the authority to
do so. This argument is, of course, inconsistent with the majority’s
substantial reliance on these recommendations to support its finding
that Fullerton and Guzzo have such authority. In any event, contrary to
the majority, I do not suggest that these recommendations fail to show
that Fullerton exercised the authority to effectively recommend disci-
pline, but, rather, that—for the reasons discussed above—they fail to
show that Fullerton and Guzzo have this authority in the first place.
were referenced in later, more serious, personnel actions
taken against the same employees. Id. at 1046–1047. By
contrast, in the present case, Rellis testified that he has
received only between three and five disciplinary rec-
ommendations from Fullerton and that he has followed
all of them; and, as noted above, there is no evidence that
these recommendations led to the type of personnel ac-
tion that could serve as the basis for further discipline.6
In these circumstances, it cannot be said that Fullerton’s
and Guzzo’s role in the disciplinary process is akin to
that of the employee in Progressive.7
For all of the above reasons, there is insufficient evi-
dence in the record to support the majority’s conclusion
that the disciplinary recommendations made by Fullerton
and Guzzo lead to personnel action without resort to an
independent investigation by Rellis. In fact, the evidence
in the record establishes only that Fullerton and Guzzo
report disciplinary issues to Rellis and make recommen-
dations for discipline, but that it is Rellis who, after re-
viewing the recommendations, ultimately decides
whether to impose discipline. As the hearing officer
found, this type of reportorial authority does not establish
supervisory status. See, e.g., Millard Refrigerated Ser-
vices, 326 NLRB 1437, 1438 (1998) (holding that em-
ployees did not effectively recommend discipline be-
cause, when they submitted disciplinary forms to the
plant superintendent, the superintendent approved them
only after conducting an independent investigation; thus,
the employees’ act of submitting the forms was nothing
more than a reportorial function that was typical of a
“leadman” position and did not require the exercise of
independent judgment.).8

6 As noted above, these recommendations were not introduced into
the record.
7 The majority contends that the facts of this case provide an even
stronger basis for finding supervisory status than in Progressive, supra,
because, unlike the employee in Progressive, Fullerton and Guzzo—
when they bring potential disciplinary issues to Rellis’ attention—have
the authority to recommend a specific level of discipline. However,
absent evidence that Rellis does not conduct an independent investiga-
tion of these recommendations, the fact that Fullerton and Guzzo pos-
sess the authority to make the recommendations is insufficient to show
that they effectively recommend discipline and are therefore statutory
supervisors. See Franklin Home Health Agency, supra, at 830 (holding
that, in order to confer supervisory status, “the exercise of disciplinary
authority must lead to personnel action, without the independent inves-
tigation or review of other management personnel.”) (Emphasis added).
8 The members of the majority have also suggested—although on the
basis of slightly different rationales—that Fullerton and Guzzo are
supervisors based on their regular service as “substitute supervisors.”
However, the Board has long recognized that, regardless of how fre-
quently an employee substitutes for a supervisor, if he or she does not
exercise the supervisor’s statutory authority while acting as a substitute,
then he or she is not a statutory supervisor. See, e.g., Passavant Health
Center, 284 NLRB 887, 892 (1987); Boston Store, 221 NLRB 1126,
1127 (1975). In this case, because there is no evidence in the record
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1480
Thus, in view of the foregoing, the Employer has
failed to present sufficient evidence to show that Fuller-
ton and Guzzo exercise independent judgment in effec-
tively recommending employee discipline and that they
are statutory supervisors. Accordingly, the hearing offi-
cer’s recommendation to overrule the challenges to their
ballots should be adopted.
APPENDIX
HEARING OFFICER’S REPORT ON CHALLENGED
BALLOTS AND OBJECTIONS
I. STATEMENT OF THE CASE
Pursuant to a Stipulated Election Agreement approved by the
Regional Director on December 2, 2003, an election by secret
ballot was conducted on December 19, 2003, among employees
in the unit heretofore found appropriate.1 The results of the
election are set forth below:
1. Approximate number of eligible voters 174
2. Void ballots 1
3. Votes cast for Petitioner 75
4. Votes cast against participating labor organization
70
5. Valid votes counted 145
6. Challenged ballots 7
7. Valid votes counted plus challenged ballots 152
8. Challenges are sufficient in number to affect the re-
sults of the election.
On December 26, 2004, the Petitioner filed timely objections
to conduct affecting the results of the election, a copy of which
was duly served on the Employer.
The objections, as amended, allege as follows:
1. The Employer altered its method of paycheck dis-
tribution during the 24-hour period immediately preceding
the election. Specifically, the Employer included leaflets
in the employees’ December 19, 2003, paychecks urging
the employees to vote in the election so that fellow em-

that Fullerton and Guzzo possess any statutory supervisory authority
when they substitute for the regular supervisors, such substitution does
not confer supervisory status on Fullerton and Guzzo.
The majority further finds that Fullerton and Guzzo possess some
secondary indicia of supervisory authority. However, because the
Employer has failed to show that Fullerton and Guzzo possess any
primary indicia of supervisory authority, these secondary indicia are by
themselves insufficient to establish supervisory status. See, e.g., SDI
Operating Partners, L.P., 321 NLRB 111, 112 fn. 2 (1996) (“In the
absence of primary indicia as enumerated in Sec[tion] 2(11) . . . secon-
dary indicia are insufficient to establish supervisory status.”).
1 The unit agreed upon in the Stipulated Election Agreement in-
cluded all full-time and regular part-time hotel and trackside house-
keeping employees, front desk clerks, front desk reception-
ists/switchboard employees and night audit clerks employed by the
Employer at its Chester, West Virginia facility, excluding office cleri-
cal employees, trackside switchboard employees and guards, profes-
sional employees and supervisors as defined in the Act, and all other
employees.
ployees do not decide “your future and the future of your
family.”
2. The Employer stationed a supervisor of guards out-
side the entrance to the polling place, thus creating a chill-
ing and intimidating effect of the free choice of the voters.
3. The Excelsior list provided by the Employer to the
Union contained approximately 18 to 20 incorrect ad-
dresses, thus hindering the Union’s ability to communicate
with said employees.
At the election the Petitioner challenged the ballots of seven
individuals, Dwayne Edward Franklin, Cheryl Guzzo, Julie
Lynne Krynicki, Wanda Board, Evelyn Fullerton, Crystal D.
Gajtka, and Laura Lynn Smith on the ground that they are su-
pervisors within the meaning of the Act.
As noted, the election was conducted on Friday, December
19, 2003. On Monday, December 22, 2003, at 9:20 a.m., the
Regional Office received via facsimile, a letter from the Em-
ployer stating, in pertinent part, “Employer Mountaineer Park
hereby accepts the Union’s challenges to the ballots of Cheryl
Guzzo (Housekeeping-Gaming) and Evelyn Fullerton (House-
keeping-Lodge)”. On that same day, the Region, consistent
with longstanding Board policy, sent the parties a letter con-
firming the names of the individuals challenged in the election
and asking the parties to submit within 7 days their positions on
the eligibility of the challenged voters.
Thereafter, on December 23, 2003, the Petitioner submitted a
letter to the Region withdrawing its challenges to all seven
voters including Guzzo and Fullerton. On December 23, 2003,
the Regional Director issued an Order to Show Cause why the
withdrawal of the challenges should not be approved and the
ballots opened and counted.
On December 29, the Employer responded to the Order to
Show Cause and argued that its letter of December 22 consti-
tuted a resolution of the challenges as to Guzzo and Fullerton in
favor of the Petitioner’s challenges. Therefore, according to the
Employer, only the other five previously challenged voters
remained in question after that date and those were subse-
quently resolved by the Petitioner’s withdrawal of its chal-
lenges. In support of its position, the Employer asserts that
once the parties have resolved a contested matter, further action
by the Regional Office is not required to validate the disposi-
tion.
In accordance with Section l02.69 of the Board’s Rules and
Regulations an investigation of the objections and challenged
ballots was made during which the parties were afforded an
opportunity to submit evidence bearing on the issues. On Janu-
ary 23, 2004, the Regional Director issued an order directing
hearing on challenged ballots and objections and notice of hear-
ing.
Pursuant to the aforementioned order and notice of hearing
and pursuant to Section l02.69 of the Board’s Rules and Regu-
lations, a hearing was held before the undersigned in Pitts-
burgh, Pennsylvania, on January 28, 2004. All parties were
represented by counsel and were afforded full opportunity to be
heard, to call, examine and cross-examine witnesses, to intro-
duce relevant evidence, to argue orally, and to file briefs with
the undersigned after the close of the hearing.
MOUNTAINEER PARK, INC. 1481
Upon the entire record in this case and from my careful ob-
servation of the witnesses and their demeanor and an analysis
of their testimony, I make the following findings, conclusions
and recommendations with respect to the issues involved
herein.
II. FINDINGS OF FACT
Background
At the hearing the parties stipulated as to certain background
information regarding the Employer and its facility. Specifi-
cally, the parties stipulated and I find that the Employer, Moun-
taineer Racetrack and Gaming Resort, is located in Chester,
West Virginia. Its facility includes a racetrack, lodge, hotel,
fitness center, casino with video lottery terminals (slot ma-
chines), a number of restaurants, an entertainment center, and a
convention center. The Employer employees approximately
1700 employees. The unit sought herein includes employees of
the housekeeping department and the front desk, a total of ap-
proximately 174 employees. The election was held at the facil-
ity on December 19, 2003, from 7:30 to 8:30 a.m. and from
5:30 to 6:30 p.m. The room where the election took place was
a hotel room at the end of the first floor corridor in the conven-
tion center located approximately 200 feet from the front desk,
which is the nearest point in the lobby to the hotel room. A site
map submitted by the parties and admitted into evidence as a
joint exhibit indicates that an exit from the facility is located at
the end of the same hallway just past the voting room (Jt. Ext.
1).
The Challenged Ballots
At the hearing although both parties took the position that
four of the seven individuals challenged, Dwayne Edward
Franklin, Julie Lynn Krynicki, Crystal Gajtka, and Laura Lynn
Smith, were not supervisors within the meaning of the Act, the
Petitioner was unwilling to enter into a stipulation concerning
the aforementioned individuals supervisory status. Neither
party asserted at the hearing that Franklin, Krynicki, Gajtka,
and Smith were supervisors and neither party elicited any tes-
timony or presented any evidence to establish that these indi-
viduals were supervisors within the meaning of Section 2(11)
of the Act.
It is well established that the burden of establishing supervi-
sory status rests on the party asserting that status. NLRB v. Ken-
tucky River Community Care, 532 U.S. 706 (2001); Benchmark
Mechanical Contractors, 327 NLRB 829 (1999). Here, as
noted, no party at the hearing asserted or presented any evi-
dence to establish that Franklin, Krynicki, Gajtka, or Smith are
supervisors within the meaning of the Act. Accordingly, in
these circumstances, I recommend that the challenges to the
ballots of Franklin, Krynicki, Gajtka, and Smith be overruled in
their entirety.
There remains for consideration the supervisory status of
Wanda Board,2 Cheryl Guzzo, and Evelyn Fullerton. As noted

2 The parties also initially took the position that Wanda Board, a
challenged voter, was not a supervisor within the meaning of the Act.
The Petitioner subsequently amended its position to claim that Board
shared the same or similar duties as Cheryl Guzzo and that if Guzzo
was found to be a supervisor Board should be found to be one as well.
above, on the day following the election, the Employer submit-
ted a letter to the Region stating that it “accepts the Union’s
challenges” to the ballots of Guzzo and Fullerton. Almost si-
multaneously, the Petitioner sent a letter to the Regional Office
withdrawing its challenges to all of the ballots. The Employer
contends that its letter accepting the challenges resolves the
matter and removes from the Board the power to determine the
eligibility of these employees. In support of this position the
Employer cites several cases for the proposition that once con-
tested matters have been resolved, those matters are no longer
before the Region. None of the cases cited3 involves a situation
in which the parties have reversed their positions following an
election. Rather, the only case cited which involves the resolu-
tion of matters prior to a hearing does not involve the with-
drawal of challenged ballots. In Precision Products, supra, an
objection that had previously been withdrawn by the objecting
party and approved by the Regional Director was found not to
be properly before the hearing officer. In the present case, the
Regional Director did not approve either the Employer’s offer
to resolve the challenge ballots or the Petitioner’s attempted
withdrawal of those same challenges.4 Thus is clear that the
parties have not resolved their dispute as to the eligibility of
Guzzo and Fullerton; rather they have switched positions on the
matter. The Employer did not inform the Petitioner of its
agreement to accept the Union’s challenges to these ballots, nor
was a stipulation signed by the parties resolving these matters.
Thus, it is necessary to resolve the issue by determining
whether Fullerton and Guzzo are statutory supervisors excluded
from voting.
Inasmuch as I have found that the Board retains jurisdiction
over the eligibility of Guzzo and Fullerton it is necessary to
determine the eligibility status of those individuals. The Em-
ployer asserts that Guzzo and Fullerton, who are employed in
the Employer’s housekeeping department, are statutory super-
visors within the meaning of the Act and are therefore ineligi-
ble to vote in the election. The director of housekeeping is
David Rellis, who has held this position for 4 years. Rellis
oversees the two sections of the housekeeping department:
lodge and gaming. The lodge housekeepers clean the approxi-
mately 360 guest rooms located in two buildings, the gaming
housekeepers are responsible for the public spaces covering
approximately 100,000 square feet of space. Each section has
its own stipulated supervisor. Debbie Kuykendal supervises the
lodge section and the gaming section is supervised by Billy Jo
Jenkins. The parties agreed that both Kuykendal and Jenkins
are supervisors within the meaning of the Act. About 25 to 35
housekeepers work each day in the lodge section, while about
20 work in the gaming section. Kuykendal and Jenkins each
work 5 days per week. According to Rellis, when Kuykendal

3 Precision Products Group, Inc., 319 NLRG 640, 641 (1995); Dyn-
corp/Dynair Services, 322 NLRB 602 (1996).
4 See, e.g., Mediplex of Connecticut, Inc., 319 NLRB 281, 299
(1995), where the Board retained jurisdiction over the eligibility of a
voter whose ballot was initially challenged by the Employer. Follow-
ing the election, the Employer sought to withdraw its challenge, how-
ever the Union contended that the employee did not meet the criteria
for eligibility. The Regional Director’s refusal to accept the withdrawal
was upheld by the Board.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1482
or Jenkins are not scheduled to work, their duties are performed
by Assistant Supervisors Evelyn Fullerton and Cheryl Guzzo,
respectively. Rellis stated that Fullerton and Guzzo spend
about 50 percent of their workday performing housekeeping
work. The amount depends upon whether Kuykendal or Jen-
kins are working. If they are, then the amount of housekeeping
work performed by Fullerton or Guzzo increases. The supervi-
sors and assistant supervisors all wear uniforms, and are paid
on an hourly basis. The assistant supervisors are paid $1.25—
$2 less than the supervisors, and 50 cents to $1 more than the
senior housekeepers.
With regard to the factors indicating supervisory status listed
in Section 2(11) of the Act, the assistant supervisors have no
authority to hire, transfer, suspend, lay off, recall, promote,
discharge, reward employees, or to adjust their grievances or to
effectively recommend such action. The evidence on the re-
maining factors is set forth infra.
. . . .
Discipline
Rellis testified that both Fullerton and Guzzo possess the au-
thority to discipline employees in their section. In doing so,
each may write a proposed discipline and submit it to Rellis. If
Rellis approves the discipline, he will sign off on it. In the past
year, Fullerton presented to him between three and five disci-
plinary writeups, all of which he reviewed and signed. The
Employer did not provide any instances in which Guzzo pre-
pared a disciplinary action. The Employer further did not pro-
vide a copy of its disciplinary policy or any copies of discipli-
nary actions prepared by either Fullerton or Guzzo. Neither
Fullerton nor Guzzo testified at the hearing.
Analysis
Section 2(11) of the Act defines a “supervisor” as:
[A]ny individual having authority, in the interest of the em-
ployer, to hire, transfer, suspend, lay off, recall, promote, dis-
charge, assign, reward, or discipline other employees, or re-
sponsibly to direct them, or to adjust their grievances, or ef-
fectively 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 types of supervisory authority are listed in the disjunc-
tive, thus possession of any one authority is sufficient to estab-
lish supervisory status upon the individual. The exercise of this
“authority must be in conjunction with independent judgment
in the employer’s interest.” Phelps Community Medical Cen-
ter, 295 NLRB 486, 489 (1989). The absence of a statutory
supervisor on site does not automatically confer 2(11) status on
the highest-ranking remaining employee. Training School at
Vineland, 332 NLRB 1412 (2000).
As noted previously, it is well established that “a party seek-
ing to exclude an individual from voting for a collective-
bargaining representative has the burden of establishing that the
individual is, in fact, ineligible to vote. Phelps Community, 295
NLRB at 490, citing Ohio Masonic Home, 295 NLRB 373
(1989); NLRB v. Kentucky River Community Care, Inc., supra.
Where the evidence is in conflict, or is inconclusive, the Board
“will find that supervisory status has not been established, at
least on the basis of those indicia.” Phelps Community, supra.
Any lack of evidence is held against the party asserting super-
visory status. “Independent judgment” is defined by the Board
as “judgment the use of which requires that it be exercised be-
yond that involved in regular or customary activities and which
is not controlled or significantly constrained by outside
sources.” Vineland, 332 NLRB at 1413. Moreover, “isolated
or sporadic exercise of authority is insufficient to establish
supervisory status.” Byers Engineering Corp., 324 NLRB 740,
741 (1997), citing Bowne of Houston, 280 NLRB 1222, 1223
(1986).
As noted previously, neither Fullerton nor Guzzo are in-
volved in hiring, transferring, suspending, laying off, recalling,
promoting, discharging, rewarding, or adjusting grievances.
The remaining issues are therefore whether they responsibly
assign and direct the work force and whether they have the
authority to discipline the workers in their departments, or to
effectively recommend such action. I conclude that they do
not.
. . . .
Discipline
The record also does not establish that either Fullerton or
Guzzo exercise the power to discipline employees or to effec-
tively recommend such action. The only evidence presented
regarding this issue was by Rellis who testified that Fullerton
and Guzzo may submit written disciplinary forms to Rellis who
may or may not determine that the action or inaction of the
employee warrants disciplinary action. Rellis’ testimony indi-
cates that only he determines whether to issue the disciplinary
action. In the past year Fullerton forwarded to Rellis between
three and five disciplinary write ups. The record does not indi-
cate that Guzzo recommended any disciplinary action. As Rel-
lis makes the independent determination whether to issue disci-
pline, it would appear that at best Fullerton and Guzzo are not
doing anything more than reporting potential disciplinary issues
to Rellis, which do not require the use of independent judg-
ment. Mallard, supra.
Based on the above and the record as a whole, I find and
conclude that Evelyn Fullerton and Cheryl Guzzo are not su-
pervisors within the meaning of the Act, and I recommend that
the challenges to their ballots be overruled. Furthermore, inas-
much as the only contention regarding the supervisory status of
Wanda Board was that the Petitioner claimed that since they
held similar duties, if Cheryl Guzzo was found to be a supervi-
sor then Wanda Board should also be found to be a supervisor,
I recommend that Wanda Board is not a supervisor within the
meaning of the Act, and I recommend that the challenge to her
ballot be overruled.
The Objections
Objection 1
As stated above, the Petitioner alleges that:
The Employer altered its method of paycheck distribu-
tion during the 24-hour period immediately preceding the
election. Specifically, the Employer included leaflets in
MOUNTAINEER PARK, INC. 1483
the employees’ December 19, 2003, paychecks urging the
employees to vote in the election so that fellow employees
do not decide “your future and the future of your family.”
The evidence is undisputed that on the day of the election, a
payday, a flyer was handed to employees along with their pay-
checks. The top half of the page consisted of two words,
“VOTE TODAY.” The bottom half of the page gave informa-
tion to employees regarding the election. Specifically the flyer
read:
This is very important. If you don’t care, if you don’t bother
to vote, the employee next to you will vote. He or she will
decide your future and the future of your family.
• The secret ballot vote is in Room 1049 in the New
Hotel Wing.
• The voting is 7:30–8:30 a.m. and 5:30 to 6:30 p.m.
• If you can’t vote off-shift, then tell your supervi-
sor, who will let you vote on-shift. [P. Exh. 1.]
The Petitioner did not provide any additional evidence re-
garding this issue, relying on the flyer as being in itself illegal.
Director of Housekeeping David W. Rellis testified that he
gave copies of the flyer to departmental supervisors to pass out
to employees along with their paychecks. Rellis testified that
flyers such as these are given to employees in virtually each
pay. When the flyer is department-specific, it is handed out to
employees. When the flyer is a corporate flyer, given out to all
employees, the flyer is stapled to the envelope containing the
employee’s paycheck. Director of Human Resources Joseph
Leja confirmed the testimony of Rellis, stating that his depart-
ment staples flyers to the paychecks about twice each month
but that the flyer handed out the day of the election, being a
departmental flyer, was not stapled to the paycheck.
The Board adopted, in Kalin Construction Co., 321 NLRB
649 (1996), “a strict rule against changes in the paycheck proc-
ess, for the purpose of influencing the employees’ vote in the
election, during a period beginning 24 hours before the sched-
uled opening of the polls and ending with the closing of the
polls.” Kalin, 321 NLRB at 650. This rule prohibits change to
four elements of the payroll process:
1. The paycheck itself.
2. The time of paycheck distribution.
3. The location of paycheck distribution.
4. The method of paycheck distribution.
Id. at 652. A change of any of the four above-described
elements would cause an election to be set aside. However, the
Board clearly limited the extent of this rule so that it would
have no effect on “the circulation of campaign literature at any
time prior to an election.” The burden is on the Union to show
that a change in the paycheck process occurred. Kalin, citing
Bufkor-Pelzner Division, 169 NLRB 998, 999 (1968).
In the present case the Petitioner does not allege any change
to the paycheck given to employees, the time the paycheck was
distributed to them, or the location of paycheck distribution.
Thus the remaining issue is whether giving the flyer to employ-
ees along with their paycheck altered the method of paycheck
distribution. This question is answered in the negative. The
sole witnesses to testify to the method by which paychecks are
distributed by the Employer, testified that management regu-
larly hands out flyers to employees along with their paychecks.
This occurs virtually every week. Thus the Petitioner has failed
to establish that a change was made in the process of providing
paychecks. Further, a reading of the plain language of the
flyer at issue makes clear that the flyer, which merely urges that
employees vote, was not even campaign propaganda. More-
over, it is well established that although an employer may not
hold captive audience speeches directed to employees 24 hours
prior to an election, that this prohibition does not prohibit the
circulation of campaign literature or any other legitimate cam-
paign propaganda or media. Peerless Plywood, 107 NLRB
427, 430 (1953). See also Virginia Concrete Corp., 338 NLRB
1182 (2003). Accordingly, I recommend that Petitioner’s Ob-
jection 1 be overruled in its entirety.
Objection 2
As stated above, the Petitioner alleges that:
The Employer stationed a supervisor of guards outside
the entrance to the polling place, thus creating a chilling
and intimidating effect of the free choice of the voters.
Most of the facts on this issue are not in dispute. The polling
area was located at the end of a main corridor in the last hotel
room. Past the room entrance is an exit door to an outside
parking lot. Following the preelection conference two union
organizers, Director of Organizing Lance Huber and Organizer
Matt Lewis, exited the building through that exit door. Robert
Parrish, a security supervisor escorted Huber and Lewis toward
their car. Huber and Lewis both testified that about midway
through the first session of the election5 they returned to the
parking lot in their car in order to drop off employee Jeff
Hutchison to vote. Hutchison did not testify at the hearing.
Huber and Lewis testified that they observed Parrish standing
outside the exit door, approximately 5 to 10 yards from the
door. Parrish was not alleged to be standing in front of the exit
door. When Huber and Lewis returned to the parking lot for at
the end of the first session, Parrish was standing in the same
area. In the late afternoon, Huber and Lewis returned for the
second session, Parrish met them at the exit door and followed
them inside the building for the second preelection conference.
After informing the Board agent of the supervisor’s presence,
the Board agent suggested to the Employer’s attorney that Par-
rish not be outside the polls. Huber and Lewis testified that
they did not see Parrish following the second pre-election con-
ference.
Parrish testified that he is a security supervisor. Operations
Manager Bill Tice assigned Parrish to escort nonemployee
union organizers following the preelection conference to make
sure that the organizers did not remain on the grounds of the
facility during the election period. At the end of the polling
period, Parrish was directed to return to the polling area. Par-
rish testified that after he confirmed that the organizers left the
parking lot, he performed his regular functions, patrolling the

5 The election consisted of two sessions, the first lasting from 7:30 to
8:30 a.m. and the second from 5:30 to 6:30 p.m.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1484
outer perimeter of the buildings in the parking lot. He denied
being near the voting area during the first polling period.
Huber and Lewis testified, and Parrish confirmed, that Par-
rish was present outside the exit door near the polling area
when the union agents arrived for the morning preelection con-
ference, and following the morning preelection conference.
Parrish was also present when the union agents arrived follow-
ing the close of the first session and when they returned for the
afternoon pre-election conference. Clearly Parrish, like Huber
and Lewis as union agents, were permitted outside the polling
area at those times. What is in dispute is whether Parrish was
present on one occasion when Huber and Lewis returned to the
parking lot with an employee coming to vote, and whether his
presence near the exit door at that time was objectionable.
Further, the Petitioner contends that Parrish’s presence at those
times indicates that Parrish was near the exit door throughout
the morning voting session.
The Board has found that “the continued presence of the
Employer’s president at a location where employees were re-
quired to pass in order to enter the polling place was improper
conduct” which led to a finding that such conduct “interfered
with the employees’ freedom of choice in the election.” Per-
formance Measurements Co., 148 NLRB 1657, 1659 (1964).
However, the mere presence of a supervisor near the polls
without more does not constitute election interference. Stan-
dard Products., 281 NLRB 141, 164 (1986). Cases such as
Performance and more recently ITT Automotive, 324 NLRB
609 (1997), hold that an employer engages in objectionable
conduct whenever there is more than a short-term presence of a
supervisor near the polling area where employees were required
to pass. In Performance, the company president sat a table 6
feet away from the entrance to the polling place and even en-
tered the polling place on two occasions during the election
period. In ITT Automotive, all employees were required to pass
by a “massed throng of supervisors” which was in place during
the entire 3-hour polling period.
In the present case, assuming the Petitioner witnesses are
credited, with the exception of the beginning and ending of the
polling periods when the Petitioner’s agents were leaving or
returning to the facility, Supervisor Parrish was seen on only
one occasion by one employee during the polling period in a
location near the polling place. There is no evidence that mul-
tiple employees passed by Parrish on their way to the polling
place from the parking lot. Further, the evidence does not indi-
cate that Parrish was able to observe employees inside the
building while he was standing outside the building or that
Parrish remained outside the hotel’s exit door for an extensive
period of time. Thus I cannot find that the Petitioner estab-
lished that there was a “continued presence” by Parrish near the
polling area or that “employees” were required to pass by him
in order to vote. Further, there was no evidence that Parrish
spoke to any employees, engaged in any electioneering with
them, or in any way interfered with the conduct of the election.
Standard Products, supra, 281 NLRB at 164. Accordingly, I
recommend that Petitioner’s Objection 2 be overruled in its
entirety.
Objection 3
As stated above, the Petitioner alleges that:
The Excelsior list provided by the Employer to the Union
contained approximately 18 to 20 incorrect addresses, thus
hindering the Union’s ability to communicate with said em-
ployees.
The relevant facts are not in dispute. The Employer pro-
vided an Excelsior list containing the names and addresses of
174 voters.6 During the period leading up to the election,
agents of the Petitioner attempted to meet with employees by
visiting them at the addresses provided to them. The parties
stipulated that when union organizers visited these addresses
they discovered that 24 of the individual employees did not live
at their listed addresses.7 Thus, the Employer provided incor-
rect addresses for 13.79 percent of the potential voters. The
Petitioner does not contend that any names or addresses of
potential voters were omitted from the list. Upon discovering
the inaccuracies, the Petitioner did not inform the Board or the
Employer of the errors prior to the election. The Employer
maintains that it obtained the addresses from its personnel files,
which are updated by employees by way of status change re-
ports. Employees are informed by management at orientation
that they are required to provide address changes to manage-
ment within 7 days of the change. The Petitioner does not con-
tend, and the evidence does not reveal that the Employer was
aware of the mistake at the time they prepared the Excelsior list
or that it intentionally or negligently misrepresented the ad-
dresses.
The eligibility list requirement set forth in Excelsior Under-
wear, 156 NLRB 1236 (1966), has two purposes: “(1) to insure
an informed electorate by affording all parties an equal oppor-
tunity to communicate with eligible voters, and (2) to expedite
the resolution of questions of representation by minimizing
challenges based solely on lack of knowledge as to the voter’s
identity.” Women in Crisis Counseling, 312 NLRB 589 (1993).
The Board does not apply the Excelsior rule mechanically. Id.
at 589, citing Program Aids Co., 163 NLRB 145, 146 (1967).
Among the considerations for determining whether an Em-
ployer has substantially complied with the Excelsior rule are
the percentage of incorrect addresses and whether the Employer
acted in a “grossly negligent manner.” Merchants Transfer
Co., 330 NLRB 1165 (2000). The Board has found gross neg-
ligence when the Employer was aware that many of the ad-
dresses were incorrect when it furnished the list to the Em-
ployer, Merchants Transfer, supra, or when it was made aware
of the mistakes and did little or nothing to correct them in a
timely manner, Laidlaw Medical Transportation, 326 NLRB
925 (1998).

6 The list originally also contained 13 additional names and ad-
dresses of employees who the parties, prior to the polling period,
agreed were ineligible to vote in the election.
7 The objection alleges that 18–20 of the addresses were inaccurate.
While the Petitioner does not account for this discrepancy, the Em-
ployer stipulated, along with the Petitioner, that the correct number of
incorrect addresses was 24.
MOUNTAINEER PARK, INC. 1485
In the present case, there is no allegation or evidence that the
Employer was aware that many of the addresses on the list were
inaccurate at the time that it furnished the list to the Petitioner.
Further, the evidence revealed that the Petitioner failed to no-
tify the Employer of these mistakes, thus giving the Employer
no opportunity to correct its error. Thus, it cannot be found that
the Employer acted in bad faith or with gross negligence.
Women in Crisis, supra.
Further it would not appear that the number of incorrect ad-
dresses is enough to show that the Employer failed to comply
with its Excelsior obligations. As discussed above, approxi-
mately 13.79 percent of the addresses were incorrect. The
Board has regularly found that, in the absence of gross negli-
gence, similar or greater percentages of inaccurate addresses
were not considered to be extensive enough to require setting
aside the election. See, e.g., Women in Crisis, supra (30-
percent mistake rate); West Coast Meat Packing Co., 195
NLRB 37 (1972) (22 percent inaccuracy and 4 percent omis-
sion); Lobster House, 186 NLRB 148 (1970) (16 percent).
The Board is much more apt to overturn an election when em-
ployee names are left off of a voter list, than if addresses are
incorrect, since the “potential harm from omissions is suffi-
ciently great to warrant an approach that encourages a consci-
entious effort by employers to comply with the Excelsior re-
quirements.” Woodman’s Food Markets, 332 NLRB 503
(2000). Thus, far lower omission rates have led to the rerun of
elections. See, e.g., Woodman’s, supra, (6.8 percent); Thrifty
Auto Parts, Inc., 295 NLRB 1118 (1989); Gamble Robinson
Co., 180 NLRB 532 (1970) (10 percent).
Inasmuch as the number of address inaccuracies was not
substantial enough to warrant setting aside the election, and the
inaccuracies were not the result of gross negligence or bad
faith, I recommend that Petitioner’s Objection 3 be overruled in
its entirety.
III. CONCLUSIONS AND RECOMMENDATIONS
Based on the above, and considering all of the evidence and
the credibility of the witnesses, I recommend that the chal-
lenges to the ballots of Evelyn Fullerton, Cheryl Guzzo, Wanda
Board, Dwayne Edward Franklin, Julie Lynne Krynicki, Crys-
tal D. Gajtka, and Laura Lynn Smith be overruled, that their
ballots be opened and counted and that a revised tally of ballots
and the appropriate certification be issued. Further, on the on
the basis of the above, and having considered all of the evi-
dence and the credibility of the witnesses, I recommend that the
Petitioner’s Objections 1, 2, and 3 be overruled in their entirety.
Under the provisions of Section 102.69 of the Board’s Rules
and Regulations and in accordance with the Regional Director’s
Order Directing Hearing on Challenged Ballots and Objections
and notice of hearing, any party may file with the Board in
Washington, D.C., an original and seven (7) copies of excep-
tions to this Report. Exceptions must be received by the Board
in Washington, D.C., by the close of business at 5 p.m. EST
(EDT), on March 25, 2004. Immediately upon the filing of
such exceptions, the party filing the same shall promptly serve
a copy upon the other parties and should file a copy with the
Regional Director for Region 6, Pittsburgh, Pennsylvania. If no
exceptions are filed to this report, the Board may adopt the
recommendations of the hearing officer.
.