The Republican Company

National Labor Relations Board - Board Decisions

Aug 7, 2014

361 N.L.R.B. 93 (N.L.R.B. 2014)

REPUBLICAN CO. 93
The Republican Company, Employer-Petitioner and
Springfield Newspaper Employees Association,
Inc., Petitioner. Case 01–UC–000838
August 7, 2014
DECISION ON REVIEW AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND HIROZAWA
The Employer-Petitioner (the Employer) publishes a
newspaper, The Republican, in Springfield, Massachu-
setts. For many years, the Employer and the Union
(Springfield Newspaper Employees Association, Inc.)
have been parties to a collective-bargaining agreement
that covers full-time employees in the editorial, advertis-
ing, circulation, maintenance, business, press-stereo, and
composing departments. On February 1, 2007, the Re-
gional Director for Region 1 issued a Decision, Clarifica-
tion of Bargaining Unit, and Order in this unit clarifica-
tion proceeding, in which the Employer sought to ex-
clude 22 positions from the bargaining unit on the
ground that they were supervisory, managerial, or confi-
dential. The Regional Director excluded three positions
from the unit as supervisory, but dismissed the petition
insofar as it sought to exclude the remaining positions.
The Employer and the Union each filed a request for
review. On July 20, 2007, the Board granted the Em-
ployer’s request for review of the Regional Director’s
finding that Editorial Page Editor Steve Smith is not a
managerial employee and the Regional Director’s find-
ings that Assistant Classified Manager Cecile Youmans
and Electrical Manager Paul Robitaille are not statutory
supervisors. On the supervisory issues, the Board grant-
ed review solely with respect to whether Youmans’ role
in hiring, and Robitaille’s role in hiring and discipline,
demonstrate supervisory status.
The Board has delegated its authority in this proceed-
ing to a three-member panel.
We have carefully considered the entire record in this
case, including the briefs on review, and have decided to
affirm the Regional Director’s findings that Assistant
Classified Manager Cecile Youmans and Electrical Man-
ager Paul Robitaille are not statutory supervisors.1 Con-
trary to the Regional Director, however, we find that
Editorial Page Editor Smith should be excluded from the
unit as a managerial employee.
1 For the reasons stated below in fn. 4, Member Miscimarra would
find that Robitaille is a statutory supervisor.
I. FACTS
A. Editorial Page Editor
The editorial department employs various editors and
reporters who write and edit the news stories reported in
the newspaper. The department is headed by Executive
Editor Wayne Phaneuf, who reports to the publisher,
Larry McDermott. Steve Smith, the editorial page editor
since October 1999, also reports directly to McDermott.
Two other editorial page editors report to Smith. Smith
is generally responsible for the content of the editorial
pages, which include unsigned editorials that express the
opinion of the newspaper, “op-ed” columns, letters to the
editor, and editorial cartoons.
Editorials: The newspaper runs three editorials a day,
7 days a week. Smith meets daily with the other two
editorial editors to discuss topics for the following day’s
editorials. Whoever “pitches” the idea writes the editori-
al. Smith has the authority to veto a topic at this stage if
he determines that it is “not worthy of an editorial.” Pub-
lisher McDermott also occasionally sends editorial ideas
to Smith.2
In his testimony, McDermott agreed with Smith that
the newspaper has “institutional” positions on important
topics. Smith testified that some institutional positions
predate McDermott’s time as publisher, and that he
(Smith) knows most of those positions. Even when
Smith or the other editorial page editors personally disa-
gree with them, their editorials must express the newspa-
per’s views. McDermott has the final say in reconsider-
ing the institutional opinions.3 With respect to noninsti-
tutional issues, Smith determines the paper’s published
stance, only occasionally consulting with McDermott. In
doing so, he is guided by the “general philosophy” of the
newspaper and by McDermott’s views, which he knows
well.
Smith sends McDermott a daily email notifying him of
the proposed editorial topics and stances for the follow-
ing day. However, McDermott rarely responds. Occa-
sionally, McDermott directs Smith to make certain
points; a few times a year, he rejects Smith’s proposed
editorials.
2 Sometimes, Smith disagrees with the topics proposed by McDer-
mott and he has persuaded McDermott not to run editorials. For exam-
ple, McDermott once suggested an editorial on a tent city of homeless
people occupying public property in the downtown area, but Smith
disagreed and the editorial was not run.
3 For example, McDermott recently changed the newspaper’s stance
on casino gambling notwithstanding Smith’s view that the newspaper
should stick with its prior position.
361 NLRB No. 15

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 94
Political endorsements: The paper publishes en-
dorsements of political candidates. McDermott decides
who the paper will endorse in major political races, with
input from Smith. In local elections, McDermott may
defer to Smith, particularly if McDermott is not familiar
with the candidates.
Editorial columns and cartoons: The editorial page
runs columns and editorial cartoons submitted both by
syndicates and by individuals. The Employer pays 4 to 6
syndicates representing 15 to 20 columnists and several
cartoonists to deliver a certain number of columns or
cartoons per week. The newspaper usually publishes
four columns and two political cartoons a day. Smith
selects from among the submissions, only occasionally
consulting McDermott, and makes an effort to offer a
range of political opinion. At one point, McDermott told
Smith that there were too many liberal columnists and
that the newspaper needed a better balance. After Smith
showed McDermott all of the conservative columns that
the paper had published in the prior month, McDermott
rescinded his directive.
Each week, the newspaper runs six to eight cartoons
about State and local issues drawn by a staff artist.
Smith shows the sketches to McDermott, who exercises
final authority over their selection, sometimes rejecting
all of the sketches.
“Viewpoint” column and letters to the editor: The edi-
torial page includes a daily “Viewpoint” column, in
which writers express their opinions on local matters.
Most “Viewpoint” columns are submitted, unsolicited,
by members of the community. Smith decides, without
input from McDermott, which columns to publish.
The editorial page also publishes 30 to 40 letters to the
editor on a daily basis. One of the other editorial editors
decides which letters to publish and shows them to
Smith, who approves them. McDermott does not review
Smith’s choices, although Smith occasionally asks for
McDermott’s opinion before publishing letters on sensi-
tive topics.
B. Assistant Classified Manager
Cecile Youmans has the title of assistant classified
manager in the classified department. She reports to
Classified Manager Maureen Thorpe, who, in turn, re-
ports to Advertising Director Joel Morse. Youmans
works with the staff of 17 advertising “takers,” who ac-
cept unsolicited classified ads over the telephone, and 8
or 9 full-time “inside advertising solicitors,” who solicit
potential advertisers.
Advertising Director Morse, the sole witness to testify
regarding Youmans’ role in hiring, acknowledged having
no firsthand knowledge of the procedure used to hire the
most recent employee in the classified department. Ac-
cording to Morse, the human resources department re-
cruits the candidates and conducts initial interviews.
Thereafter, Morse testified, Thorpe and Youmans inter-
view candidates, but he did not “think” that Thorpe’s
interviews were “thorough.” (Tr. 894.) Morse testified
that he “would say” that Youmans is the primary deci-
sion maker “who recommends” hiring, but he also testi-
fied that the human resources director simply consults
with Youmans, who advises her whether “she feels” that
applicants are qualified. (Tr. 894.) Morse “believes”
that Youmans made recommendations to human re-
sources because Youmans did not make any recommen-
dations to him (Tr. 895), and Morse claimed that he met
candidates only after hiring. (Tr. 930.) But Morse also
testified that “once they decide” on a candidate, he talks
to the candidate, and that he usually follows Youmans’
recommendation. (Tr. 896.)
C. Electrical Manager
1. Hiring
Paul Robitaille is the Employer’s “electrical manager.”
The electrical department maintains the HVAC, com-
pressed air, and electrical systems at the Employer’s
building. An assistant electrical manager and two elec-
tricians report to Robitaille. Robitaille reports to Produc-
tion Director James Foley, who is not an electrician.
The Employer’s human resources department screens
and refers applicants to the electrical department. Foley
testified that Robitaille assists him in interviewing each
candidate. In 1997, and then again in 2002, Foley and
Robitaille interviewed five candidates together. The
Employer hired two employees in 1997, and one in 2002.
According to Foley, he informed Robitaille that Robi-
taille was present at interviews because Foley “valued his
judgment in assessing the candidates . . . because of his
background and experience” (Tr. 205), and specifically
“value[d] his judgment in determining whether or not the
candidate[s] had the electrical qualifications.” (Tr. 207.)
Foley also testified that, after the candidates’ interviews,
he met with Robitaille to discuss their qualifications, and
that he had agreed with Robitaille’s recommendation to
hire certain candidates and reject others. According to
Foley, he placed a great deal of importance on Robi-
taille’s recommendations.
Human Resources Director Judith Fraser testified that
she interviewed all candidates referred by human re-
sources. Regarding the 2002 hire, she recalled having a
discussion with Foley and Robitaille in Foley’s office, in
which Robitaille made recommendations regarding the
candidates. She testified that Robitaille’s recommenda-
tions were followed because “he had the technical exper-
tise that [Foley] and I didn’t.” (Tr. 1537.) However, the
REPUBLICAN CO. 95
only recommendation Fraser recalls Robitaille making
was when he rejected one candidate because of his hand-
shake.
2. Discipline
According to Production Manager Foley, Robitaille
has the authority to informally counsel employees and to
issue verbal warnings to employees without consulting
him. Foley testified that if there is a second occurrence
on an issue, Robitaille “would” recommend a written
warning, and “consult[]” with him before issuing one.
(Tr. 210–211.) Foley further testified that, if the same
employee had subsequent problems, Robitaille would
recommend a suspension or termination.
The record contains two examples of disciplinary inci-
dents involving Robitaille. In 2002, he issued a verbal
warning to employee Jack Spear for entering an inappro-
priate comment about a coworker in the maintenance log.
In 2004, when Foley was away on vacation, Robitaille
orally reprimanded Spear for engaging in the same con-
duct and documented this incident in a handwritten note
that he gave to Spear. The note did not state that it was a
written warning. In it, Robitaille stated that after reading
a note that Spear had written to another employee in the
maintenance log, he confronted Spear and reminded him
that if he had problems with what someone was doing, he
was to bring it to Robitaille and not put it in the log.
Robitaille also wrote that he told Spear, “if this persists I
will have to take disciplinary action.” (Emp. Exh. 15.)
There is no evidence that a copy of the note was placed
in Spear’s personnel file or that Robitaille even men-
tioned the note to a supervisor or manager.
II. THE REGIONAL DIRECTOR’S FINDINGS
Finding that it is Publisher McDermott, rather than Ed-
itorial Page Editor Smith, who has ultimate authority to
approve the paper’s published stance, the Regional Di-
rector declined to exclude Smith from the bargaining unit
as a managerial employee. The Regional Director also
found that Assistant Classified Manager Youmans was
not a supervisor. He found that she does not effectively
recommend hiring, because Classified Manager Thorpe,
to whom Youmans reports, also interviews each candi-
date and therefore has independent knowledge of the
candidate’s qualifications and suitability. Similarly, the
Regional Director found that Electrical Manager Robi-
taille’s participation in the interview process does not
rise to the level of effectively recommending hiring, be-
cause Production Director Foley, to whom Robitaille
reports, interviews all candidates. The Regional Director
also found that Robitaille’s authority to issue verbal
warnings is too minor to establish supervisory status, and
that authority to recommend more serious discipline does
not establish supervisory status absent some evidence
that his recommendations are followed without inde-
pendent investigation. The Regional Director discounted
Robitaille’s issuance of a single written warning as an
isolated incident that occurred only because Production
Director Foley was on vacation.
III. THE PARTIES’ CONTENTIONS
A. Employer
The Employer contends that Smith is a managerial
employee by virtue of his role in proposing and writing
editorials and political endorsements, and his authority to
select which syndicated columns, political cartoons,
“Viewpoint” columns, and letters to the editor will be
published. In asserting that Youmans and Robitaille ef-
fectively recommend the hiring of employees, the Em-
ployer primarily contends that the Regional Director’s
decision is contrary to cases where the Board has found
supervisory status despite the involvement of upper man-
agement in hiring decisions. In asserting that Robitaille
has authority to effectively recommend discipline, the
Employer contends that the production department has a
progressive disciplinary system, and that verbal warnings
issued by Robitaille serve as the basis for subsequent
discipline. The Employer also asserts that Robitaille can
effectively recommend a suspension or termination under
its progressive disciplinary system.
B. Union
Regarding Smith, the Union asserts that the record
supports the Regional Director’s finding that decisions
involving the content of the editorial page ultimately rest
with Publisher McDermott. Regarding Youmans’ role in
hiring, the Union asserts that Advertising Director
Morse’s testimony regarding Youmans’ role was vague,
and that, even if credited, it fails to establish that she
effectively recommended hiring. The Union contends
that Robitaille’s role in hiring does not confer superviso-
ry status because it is limited to assessing a candidate’s
technical expertise. Finally, the Union contends that
Robitaille does not effectively recommend discipline
because he does not have permission to issue written
warnings and because the Employer does not have a pro-
gressive disciplinary policy.
IV. ANALYSIS
A. Managerial Status
1. Legal principles
Managerial employees are defined as those who for-
mulate and effectuate high-level employer policies or
“who have discretion in the performance of their jobs
independent of their employer’s established policy.”
General Dynamics Corp., 213 NLRB 851, 857 (1974);
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 96
see generally NLRB v. Yeshiva University, 444 U.S. 672,
682 (1980). Although the Board has no firm criteria for
determining managerial status, an employee will not or-
dinarily be excluded as managerial unless he represents
management interests by taking or recommending discre-
tionary actions that effectively control or implement em-
ployer policy. Allstate Insurance Co., 332 NLRB 759,
762 (2000). The party seeking to exclude an individual
as managerial bears the burden of proof. LeMoyne-Owen
College, 345 NLRB 1123, 1128 (2005); Waste Manage-
ment de Puerto Rico, 339 NLRB 262, 279 (2003).
2. Application
We find that Smith is a managerial employee in light
of his role in formulating, determining, and effectuating
the newspaper’s editorial policies and he is thus outside
the coverage of the Act. As discussed above, the Re-
gional Director declined to exclude Smith from the bar-
gaining unit as a managerial employee because he found
that McDermott had ultimate authority to approve the
Employer’s editorial views and policies. We find that
this conclusion cannot be reconciled with the Supreme
Court’s holdings in Yeshiva that final authority is not
required to show managerial status, and that “the relevant
consideration is effective recommendation or control.”
444 U.S. at 684 fn. 17.
As discussed above, Smith is responsible for the con-
tents of the editorial page, which includes unsigned edi-
torials that express the opinion of the newspaper. He
selects the editorial topics for the next day’s paper and
either assigns an editorial to one of two editorial writers
who report to him or writes it himself. Smith has the
authority to veto a topic at this stage. Late in the after-
noon, Smith emails Publisher McDermott the topics of
the planned editorials. Generally, McDermott does not
respond. On rare occasions, McDermott will ask that
certain points be made. Less often still, McDermott will
reject a proposed editorial: according to Smith, out of
over 1000 editorials published each year, McDermott
rejects only 2 or 3. The actual editorial copy is provided
to McDermott “at the end of the day,” but there is no
indication that McDermott has changed an editorial at
this point in the process.
Hence, at the very least, Smith effectively recommends
editorial topics and positions to McDermott, who ap-
proves those recommendations on all but rare occasions.
Cf. Mountaineer Park, Inc., 343 NLRB 1473, 1474–1475
(2004) (individuals effectively recommended discipline
where they initiated disciplinary process and submitted
proposed writeups to their superior, who routinely ap-
proved them without independent investigation if they
were “justifiable”). The fact that McDermott “holds a
rarely exercised veto” does not diminish Smith’s effec-
tive power in formulating and implementing the newspa-
per’s journalistic policies. Yeshiva, 444 U.S. at 684 fn.
17.
We agree with the Employer, moreover, that the cases
cited by the Regional Director in support of his finding
that Smith is not a managerial employee are distinguish-
able. In Suburban Newspaper Publications, Inc., 226
NLRB 154, 156–157 (1976), and Bulletin Co., 226
NLRB 345, 356–358 (1976), the putative managers had
less authority, and were subject to far greater oversight,
than Smith. In Suburban Newspaper, the editorials, par-
ticularly those containing political endorsements, were
“often” discussed with the executive editor before being
written, and the executive editor occasionally changed
them before publication without consulting with the edi-
tors. In Bulletin Co., the Board found that editorial writ-
ers were not managerial where the editorial page editor, a
stipulated supervisor, directed and oversaw preparation
of editorials on a daily basis, including generating most
topics, clearing topics with the publisher, editing the edi-
torial copy, and returning an approved copy before print-
ing. In contrast to these cases, Smith is responsible for
the content of the entire editorial page, including select-
ing editorial topics and positions, and he usually does so
without any affirmative approval from McDermott. Alt-
hough McDermott can veto Smith’s decisions, he has
rarely done so. Thus, in practical terms, Smith’s authori-
ty to determine the topic and content of editorials far
exceeds that of the putative managers in Suburban
Newspapers and Bulletin.
Finally, we reject the notion that Smith’s discretion is
so circumscribed by existing policy that his selection of
editorial topics and positions does not rise to the level of
true managerial authority. The record reveals that Smith
regularly writes and directs editorials on topics that re-
side outside of the paper’s institutional positions. Smith
testified that in determining what the paper’s published
stance should be on new issues, he is guided by the pa-
per’s “general philosophy.” However, applying a “gen-
eral philosophy” to determine the paper’s published
stance involves the exercise of sufficient independent
discretion, in our view, to confer managerial status.
Thus, while the existence of detailed policies may con-
strain an individual’s discretion below the threshold nec-
essary to show managerial status, managerials may in-
clude those who “exercise discretion within . . . estab-
lished employer policy.” Yeshiva, 444 U.S. at 683 (em-
phasis added).
REPUBLICAN CO. 97
B. Supervisory Status
1. Legal principles
Section 2(11) of the Act defines a “supervisor” as an
individual who has the authority, inter alia, to hire, disci-
pline, or effectively recommend such action, so long as
the individual uses independent judgment in doing so.
The authority to effectively recommend “generally
means that the recommended action is taken without in-
dependent investigation by superiors, not simply that the
recommendation is ultimately followed.” Children’s
Farm Home, 324 NLRB 61, 61 (1997). The burden to
prove supervisory authority rests with the party asserting
it. See Oakwood Healthcare, Inc., 348 NLRB 686, 694
(2006) (citing NLRB v. Kentucky River Community Care,
Inc., 532 U.S. 706, 711–712 (2001)). The party seeking
to prove supervisory status must establish it by a prepon-
derance of the evidence. Id. “Purely conclusionary evi-
dence” does not satisfy that burden. Lynwood Manor,
350 NLRB 489, 490 (2007). Supervisory status is not
proven where the record evidence “is in conflict or oth-
erwise inconclusive.” Phelps Community Medical Cen-
ter, 295 NLRB 486, 490 (1989).
Absent additional evidence, an individual does not ef-
fectively recommend hiring where acknowledged super-
visors also interview the candidates. See J. C. Penney
Corp., 347 NLRB 127, 128–129 (2006) (training super-
visor did not effectively recommend hiring where all
applicants “recommended” by the training supervisor
were subsequently interviewed by other managers, who
were the only individuals vested with hiring authority);
Ryder Truck Rental, Inc., 326 NLRB 1386, 1387 fn. 9,
1388 (1998) (technicians-in-charge who interviewed
candidates and offered “opinions or recommendations”
that were given “significant” weight did not have au-
thority to effectively recommend hiring where a higher-
level official also participated in the interview and hiring
process); Waverly-Cedar Falls Health Care, 297 NLRB
390, 392 (1989) (LPNs did not effectively recommend
hiring where no contention or finding that the director of
nursing relied solely on the LPNs’ recommendations
without further inquiries), enfd. 933 F.2d 626 (8th Cir.
1991).
To confer supervisory status based on authority to dis-
cipline, the exercise of disciplinary authority must lead to
personnel action without independent investigation by
upper management. See Sheraton Universal Hotel, 350
NLRB 1114, 1116 (2007) (“Contrary to the judge’s
speculation, nothing in the record suggests that upper
management conducted an independent investigation
before deciding to impose discipline . . .”); Beverly
Health & Rehabilitation Services, Inc., 335 NLRB 635,
669 (2001), enfd. in pertinent part 317 F.3d 316 (D.C.
Cir. 2003). Warnings that simply bring the employer’s
attention to substandard performance without recom-
mendations for future discipline serve a limited reporting
function, and do not establish that the disputed individual
is exercising disciplinary authority. See Williamette In-
dustries, 336 NLRB 743, 744 (2001). Similarly, authori-
ty to issue verbal reprimands is, without more, too minor
a disciplinary function to constitute supervisory authori-
ty. See Vencor Hospital-Los Angeles, 328 NLRB 1136,
1139 (1999); Ohio Masonic Home, 295 NLRB 390, 394
(1989).
2. Application
a. Assistant Classified Manager Cecile Youmans
We find, in agreement with the Regional Director, that
the evidence submitted by the Employer does not satisfy
its burden of proving that Assistant Classified Manager
Youmans hires or effectively recommends the hiring of
employees. Rather, as the Regional Director found,
Classified Manager Thorpe’s direct participation in the
hiring process supports a conclusion that Youmans did
not effectively recommend hiring. See J. C. Penney, 347
NLRB at 128–129; Ryder Truck Rental, 326 NLRB at
1387 fn. 9, 1388; Waverly-Cedar Falls Health Care, 297
NLRB at 392.
The Employer relies on Advertising Director Morse’s
testimony to establish Youmans’ hiring authority, but
Morse’s testimony was vague and contradictory, and we
deem it unhelpful. But even if we accept it at face value,
the record evidence regarding Youmans’ role in hiring is
slim. Neither Youmans nor Thorpe, her immediate su-
pervisor, testified at the hearing. And Morse, the only
witness called by the Employer regarding Youmans, ad-
mitted having no firsthand knowledge of the procedure
used to hire the most recent employee in the department,
and he was unable to offer any specific examples of
Youmans’ role in earlier hiring. Morse’s testimony also
failed to establish the absence of independent investiga-
tion by higher authority than Youmans. Rather, Morse
simply expressed his understanding, couched in general
terms, that Manager Thorpe did not “thorough[ly]” inter-
view candidates. (Tr. 894.) As Morse did not attend
those interviews and described them only in conclusory
terms, we decline to find on the basis of his testimony
that Thorpe’s role was so limited that Youmans effec-
tively recommended hiring. See Alternate Concepts,
Inc., 358 NLRB No. 38, slip op. at 4–8 (2012) (employer
failed to present specific evidence showing that crew
dispatchers and line controllers were statutory supervi-
sors); Avante at Wilson, Inc., 348 NLRB 1056, 1057
(2006) (employer failed to meet its burden of establish-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 98
ing supervisory authority where testimony was “utterly
lacking in specificity”).
b. Electrical Manager Paul Robitaille
(1) Hiring
We agree with the Regional Director that the Employ-
er failed to meet its burden of demonstrating that Electri-
cal Manager Robitaille effectively recommends hiring.
In particular, we agree that Production Director Foley’s
and Human Resources Director Fraser’s direct participa-
tion in the hiring process supports a conclusion that Ro-
bitaille did not effectively recommend hiring. See J. C.
Penney, 347 NLRB at 128–129; Ryder Truck Rental, 326
NLRB at 1387 fn. 9, 1388; Waverly-Cedar Falls Health
Care, 297 NLRB at 392.4
4 Member Miscimarra dissents from the majority’s finding that Elec-
trical Manager Paul Robitaille is a statutory employee. An individual is
a 2(11) supervisor if, among other things, he or she has the authority to
effectively recommend hiring and uses independent judgment in doing
so. Fred Meyer Alaska, Inc., 334 NLRB 646, 649 (2001). Sec. 2(11)
requires only possession of authority to carry out an enumerated super-
visory function, not its actual exercise. Sheraton Universal Hotel, 350
NLRB 1114, 1118 (2007).
Robitaille is the electrical manager in the electrical department. An
assistant electrical manager and two electricians report to him, and he
reports to Production Director Foley. Robitaille interviewed each of
the three electrical department candidates hired during his tenure, his
recommendations were always followed, and Foley testified that Robi-
taille’s recommendation “was the most important part of hiring.” Foley
told Robitaille that “the reason he [Robitaille] was there was because I
valued his judgment in assessing the candidates for the electrical posi-
tion because of his background and experience, and that I would use his
recommendation for the hiring.” Likewise, Human Resources Director
Fraser testified that Robitaille “definitely made recommendations and I
remember he rejected one of the candidates because of the guy’s hand-
shake,” and that his recommendations were followed. This testimony
cannot be reconciled with the majority’s view that Robitaille only as-
sessed technical skills. See Sheraton Universal Hotel, above (front-
desk supervisor effectively recommended hiring where he interviewed
candidates, his hiring recommendations were “very, very key,” and if
he recommended that a candidate not be hired that “would be fatal,”
even though a superior also personally interviewed the applicant as
“part of the process”); Detroit College of Business, 296 NLRB 318
(1989) (department coordinators had authority to effectively recom-
mend hiring where they participated in all interviews of part-time in-
structor candidates and offered a recommendation at the conclusion of
the interview on whether the candidate should be hired, where final
decision to hire was a “joint decision” and no instructor had ever been
hired without the consent of a department coordinator, whose recom-
mendations were followed in all but 2 of 12 hirings).
Member Miscimarra believes Robitaille’s supervisory status is not
undermined by the participation of two other statutory supervisors—
Production Director Foley and Human Resources Director Fraser—in
the hiring process. The Board reached a different conclusion in Shera-
ton, above, and Detroit College of Business, above, where the participa-
tion of admitted supervisors in the hiring process did not detract from
the supervisory status of the disputed individuals. Indeed, in Detroit
College of Business, department coordinators effectively recommended
hiring of instructors when they participated in interviews with an asso-
ciate dean, hiring decisions were made jointly, and no instructor had
The evidence establishes that, at most, Robitaille’s role
in hiring was limited to assessing the technical skills of
prospective candidates. It is undisputed that Robitaille
had technical experience that Fraser and Foley did not.
Not surprisingly, Foley “value[d]” Robitaille’s “judg-
ment” in determining whether or not candidates had the
requisite electrical qualifications. (Tr. 207.) But provid-
ing assessments of that nature does not amount to effec-
tively recommending hiring, and thus does not indicate
supervisory status. See Aardvark Post, 331 NLRB 320,
320–321 (2000) (editor was not a supervisor where his
function was to let superior know if applicants were
technically qualified, while superior determined if they
would “fit into” the employer’s operation); The Door,
297 NLRB 601, 601–602 (1990) (employee lacked au-
thority to effectively recommend hiring where his role in
the hiring process was limited to screening resumes,
making recommendations with respect to technical quali-
fications, and participating, along with higher-level offi-
cials, in applicant interviews). See also Kenosha News
Publishing Co., 264 NLRB 270, 271 (1982) (policy of
not hiring over subeditors’ objections did not confer su-
pervisory status on subeditors, where editor and subedi-
tor together mutually selected candidate from group, both
interviewed candidate, and editor invited subeditor to
express an opinion).5
Contrary to the Employer and our dissenting col-
league, this case is distinguishable from Detroit College
of Business, 296 NLRB 318. There, the Board found that
department coordinators effectively recommended hiring
where they participated in joint interviews with higher-
level officials and jointly made hiring recommendations,
and where no one was hired without the consent of the
coordinator. Here, the evidence fails to establish that
Robitaille has veto power over hires, and any recom-
mendation appears limited to confirming technical abil-
ity.6
ever been hired without the consent of a coordinator. Member Misci-
marra believes that holding cannot be meaningfully distinguished from
the facts presented here.
5 The evidence does not establish that Robitaille has veto power with
respect to hiring electricians. Foley initially asserted that Robitaille had
veto power if he did not want to hire an applicant. Union counsel ob-
jected that the testimony was speculative because Foley did not assert
that Robitaille had ever vetoed an applicant, and the Employer with-
drew the question.
6 Robitaille’s limited role of confirming a candidate’s technical abil-
ity also distinguishes this case from Sheraton Universal Hotel, 350
NLRB at 1115, 1118, where the Board found that the putative supervi-
sor effectively recommends hiring.
Our dissenting colleague contends that the record establishes that
Robitaille made actual hiring recommendations and did not merely pass
on the technical ability of candidates. However, the only specific rec-
ommendation Fraser or Foley could recall that was not based on an

REPUBLICAN CO. 99
(2) Discipline
We find, in agreement with the Regional Director, that
the Employer has failed to carry its burden of proving
that Robitaille disciplines employees, or effectively rec-
ommends their discipline, within the meaning of Section
2(11) of the Act. The Employer adduced evidence of
two instances in which Robitaille assertedly became in-
volved in the disciplinary process. In both instances,
however, Robitaille’s involvement was too minor to es-
tablish disciplinary authority.
In the first incident, Robitaille issued a verbal warning
to employee Jack Spear for entering an inappropriate
comment in the Employer’s maintenance log. But there
is no evidence that this warning had any effect on
Spear’s job status or tenure. See Hausner Hard-Chrome
of KY., Inc., 326 NLRB 426, 427 (1998) (reprimand not
disciplinary absent evidence that “job affecting discipline
(such as a suspension)” resulted). Accordingly, the
warning was merely a verbal reprimand, and verbal rep-
rimands without consequences do not bespeak superviso-
ry status. See Ohio Masonic Home, 295 NLRB 390, 394
(1989) (finding that “[t]he mere authority to issue verbal
reprimands . . . is too minor a disciplinary function to
constitute supervisory authority”); accord: Washington
Nursing Home, Inc., 321 NLRB 366, 371 (1996); Passa-
vant Health Centers, 284 NLRB 887, 889 (1987).
In the second incident, when Robitaille’s own supervi-
sor was away on vacation, he orally reprimanded Spear
for repeating his misconduct in regard to the maintenance
log, and he gave Spear a handwritten note describing the
misconduct and warning that Robitaille would have to
take unspecified “disciplinary action” if the misconduct
persisted. As with the earlier verbal warning, there is no
evidence that Robitaille’s oral reprimand and handwrit-
ten note had any effect on Spear’s job status or tenure.
Moreover, there is no evidence that Robitaille recom-
mended any discipline at that time. Notably, there is no
evidence that a copy of Robitaille’s note or mention of it
was placed in Spear’s personnel file. Although Robi-
taille’s note referred to the possibility of discipline for a
future infraction, it made no recommendation of disci-
pline based on the incident at hand.7 In these circum-
stances, we find that Robitaille’s note was at most a re-
applicant’s technical ability was Robitaille’s negative evaluation of one
candidate’s handshake.
7 This case is accordingly distinguishable from cases like Moun-
taineer Park, Inc., 343 NLRB 1473 (2004), and Progressive Transpor-
tation Services, 340 NLRB 1044 (2003), in which putative supervisors
made disciplinary recommendations. Cf. Frenchtown Acquisition Co.
v. NLRB, 683 F.3d 298, 309 (6th Cir. 2012) (affirming Board finding
that individuals lacked statutory authority to effectively recommend
discipline where “the record d[id] not contain even one written discipli-
nary recommendation” from them).
port of misconduct, and not actual discipline or recom-
mendation of discipline. As such, the note is plainly in-
sufficient to establish that Robitaille possesses the statu-
tory authority to discipline or effectively recommend
discipline. See Franklin Home Health Agency, 337
NLRB 826, 830 (2002) (collecting Board and court cases
holding that “[r]eporting on incidents of employee mis-
conduct is not supervisory if the reports do not always
lead to discipline, and do not contain disciplinary rec-
ommendations”); see also Ohio Masonic Home, 295
NLRB at 394 (finding that “the mere factual reporting of
oral reprimands and the issuing of written warnings that
do not automatically affect job status or tenure do not
constitute supervisory authority”).
The Employer nonetheless claims that Robitaille’s
seemingly minor warnings on the two occasions above
necessarily take on a disciplinary aspect when considered
in the context of the Employer’s purported progressive
disciplinary system. We find this claim unpersuasive. A
warning may qualify as disciplinary within the meaning
of Section 2(11) if it “automatically” or “routinely” leads
to job-affecting discipline, by operation of a defined pro-
gressive disciplinary system. See Oak Park Nursing
Care Center, 351 NLRB 27, 30 (2007) (finding employ-
ee counseling forms disciplinary, where each form corre-
sponded to a step in the employer’s progressive discipli-
nary process and “routinely result[ed] in actual disci-
pline” including suspension and termination); Ohio Ma-
sonic Home, 295 NLRB at 393–394 (finding warnings
not disciplinary, where employer had failed to establish
that it had a “defined progressive disciplinary scheme”
under which the warnings would “automatically affect
job status or tenure”). The Employer, however, bears the
burden of proving the existence of such a system, and the
role that warnings play within the system. The Employer
here has failed to produce the requisite evidence.
Although several of the Employer’s witnesses, includ-
ing Foley, testified that the Employer has a progressive
disciplinary system, the Employer offered no documen-
tary evidence setting forth the components of this assert-
ed system, let alone of its existence. Consequently, the
evidence fails to show how verbal reprimands and warn-
ings of the kind issued by Robitaille may relate to later,
actual discipline, much less that they automatically or
routinely result in it, as required for 2(11) supervisory
status.8 See Ken-Crest Services, 335 NLRB 777, 777–
8 Other testimonial evidence underscores the absence of any progres-
sive disciplinary system or of any fixed relationship between warnings
and more serious discipline. Employee William Zajac testified that the
Employer has suspended employees without any prior warning; Single
Copy/Alternate Delivery Manager Celeste DuPont and Assistant Circu-
lation Director Richard McGrath testified that the Employer has issued

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 100
778 (2001) (finding verbal warnings not disciplinary,
notwithstanding purported progressive disciplinary sys-
tem, because an employee could receive numerous coun-
selings and verbal warnings without further discipline);
Concourse Village, Inc., 276 NLRB 12, 13 (1985) (find-
ing written warnings disciplinary, where progressive
disciplinary policy expressly provided that receipt of
three written warnings would result in termination); see
also Ten Broeck Commons, 320 NLRB 806, 809 (1996)
(finding warnings not disciplinary, where there was no
showing of “predetermined discipline based solely on the
receipt of a certain, set number of warnings”).
In any event, even assuming that Robitaille’s two
warnings to employee Spear were disciplinary by virtue
of the Employer’s purported progressive disciplinary
system, the exercise of supervisory authority on two iso-
lated occasions, including one when Robitaille’s supervi-
sor was on vacation, does not transform an employee into
a statutory supervisor. See Shaw, Inc., 350 NLRB 354,
357 & fn. 21 (2007) (foreman’s participation in decision
to suspend two employees insufficient to establish super-
multiple verbal warnings to employees without any escalation of disci-
pline.
visory status); Franklin Home Health Agency, 337
NLRB at 829 (sporadic exercise of supervisory authority
does not confer supervisory status); Chevron U.S.A., 309
NLRB 59, 61 (1992) (noting that “isolated and infre-
quent incidents of supervision do not elevate a rank-and-
file employee to a supervisory level” and citing cases).
V. CONCLUSION
We find, for the reasons set forth by the Regional Di-
rector and as discussed above, that the Employer has not
satisfied its burden to establish that Youmans effectively
hires, or that Robitaille effectively hires or disciplines.
Accordingly, we affirm the Regional Director’s finding
that Youmans and Robitaille are not supervisors within
the meaning of Section 2(11) of the Act. We reverse, for
the reasons set forth above, the Regional Director’s find-
ing that Smith is not a managerial employee.
ORDER
The Regional Director’s Decision is affirmed in part
and reversed in part, and the collective-bargaining unit is
clarified to exclude the lead editorial page editor.