NOTICE: This
opinion is subject to formal revision before publication in the bound volumes
of NLRB decisions. Readers are requested
to notify the Executive Secretary, National Labor Relations Board,
American Directional Boring, Inc., d/b/a ADB
Utility Contractors, Inc. and Local
2, International Brotherhood of Electrical Workers, AFL–CIO. Cases
14–CA–27386, 14–CA–27570, and 14–CA–27677
September 30, 2008
SUPPLEMENTAL DECISION AND ORDER
By Chairman Schaumber and Member Liebman
On May 10, 2005, Administrative Law Judge Benjamin Schlesinger issued the attached decision. The Respondent filed exceptions and a supporting brief; the General Counsel and the Charging Party filed separate answering briefs; and the Respondent filed a reply brief. On September 30, 2006, the National Labor Relations Board remanded the case to the judge for further consideration in light of the Board’s decisions in Oakwood Healthcare, Inc., 348 NLRB 686 (2006), Croft Metals, Inc., 348 NLRB 717 (2006), and Golden Crest Healthcare Center, 348 NLRB 727 (2006).1
On August 23, 2007, Administrative Law Judge Paul Buxbaum issued the attached supplemental decision.2 The Respondent filed exceptions and a supporting brief, a motion to reopen the record, and a motion to dismiss part of the complaint for lack of jurisdiction.3 The General Counsel and the Charging Party filed separate answering briefs and separate briefs in opposition to the Respondent’s motion to reopen the record; the Charging Party also filed a brief in opposition to the Respondent’s motion to dismiss part of the complaint. The Respondent filed a reply brief in support of its exceptions and its motion to reopen the record.
The National Labor Relations Board has considered the decisions and the record in light of the exceptions,4 motions, and briefs and has decided to affirm the judges’ rulings, findings,5 and conclusions and to adopt the recommended Order.6
i. the 8(a)(3) allegations
For the reasons stated by Judge Schlesinger, we agree that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging employees Jeremy Farris, Nathan Schaffer, Edgar Schreit, Rodney Hanephin, Matt Sutton, Ryan Adams, Clarence Williams, Jason Lohman, Matt Bridges, Adam Williams, Steve Mack, John Shipp, and Wayne Schaffer.
Under Wright Line,7 the General Counsel must first show, by a preponderance of the evidence, that protected conduct was a motivating factor in the employer’s adverse action. Once the General Counsel makes that showing by demonstrating protected activity, employer knowledge of that activity, and animus against protected activity, the burden of persuasion shifts to the employer to show that it would have taken the same adverse action even in the absence of the protected activity. United Rentals, 350 NLRB 951 (2007) (citing Donaldson Bros. Ready Mix, Inc., 341 NLRB 958, 961 (2004)).8 If, however, the evidence establishes that the reasons given for the employer’s action are pretextual—that is, either false or not in fact relied upon—the employer fails by definition to show that it would have taken the same action for those reasons, and thus there is no need to perform the second part of the Wright Line analysis. United Rentals, supra at 951–952 (citing Golden State Foods Corp., 340 NLRB 382, 385 (2003); Limestone Apparel Corp., 255 NLRB 722 (1981), enfd. 705 F.2d 799 (6th Cir. 1982)).
We agree with Judge Schlesinger that the General Counsel carried his initial Wright Line burden and established that union activity was a motivating factor in the discharge of all 13 employees. We also agree that every one of the reasons proffered by the Respondent in defense of the discharges was pretextual. Accordingly, we affirm all of his findings with regard to the Respondent’s violations of Section 8(a)(3) and (1).
ii. the gissel bargaining order
We also agree with the judges that a bargaining order is necessary and warranted under NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), in light of the egregiousness and pervasiveness of the Respondent’s unlawful activity.9
Under Gissel,
the Board will issue a remedial bargaining order, absent an election, in two
categories of cases. Category I cases are “exceptional” cases, those marked by
unfair labor practices so “outrageous” and “pervasive” that traditional
remedies cannot erase the coercive effects, thus rendering a fair election
impossible.
In determining the propriety of a bargaining order, the Board examines the seriousness of the violations and the pervasive nature of the conduct, considering such factors as the number of employees directly affected by the violations, the size of the unit, the extent of the dissemination among employees, and the identity and position of the individuals committing the unfair labor practices. Garvey Marine, Inc., 328 NLRB 991, 993 (1999), enfd. 245 F.3d 819 (D.C. Cir. 2001). Accord: Holly Farms Corp., 311 NLRB 273, 281 (1993), enfd. 48 F.3d 1360 (4th Cir. 1995), cert. denied in pertinent part 516 U.S. 963 (1995).
We affirm Judge Buxbaum’s determination that the
violations here are sufficiently outrageous and pervasive that this case falls
within category I. The Respondent’s response to the
Eirvin also committed other serious nonhallmark violations of Section 8(a)(1) during his speech on April 15, by encouraging union supporters to seek employment with unionized drilling companies, repeatedly emphasizing that the Respondent would never recognize a union, impliedly threatening employees with discipline for wearing union pins, and creating an impression of surveillance. See Climatrol, Inc., 329 NLRB 946, 947–948 (1999) (bargaining order imposed where respondent held mandatory meeting of employees in which it threatened loss of work and jobs and that it would close the business before it would “go union”).
The Respondent committed additional hallmark and
nonhallmark violations in a April 18 letter signed by Eirvin, which was
distributed to all employees and read aloud to a significant number of
employees by Project Manager Rich Robinson. The letter threatened that some or
all of the Respondent’s employees would lose their jobs and that the Respondent
would subcontract more work if employees organized successfully. The letter
also stated that “[p]utting a union in our company may kill it” and that the
The Respondent’s discharge of 13 union supporters, many of whom were prominent leaders of the organizing campaign, decimated approximately 22 percent of the bargaining unit, and illustrated to employees that the Respondent’s oral and written threats were to be taken literally. “The discharge of employees because of union activity is one of the most flagrant means by which an employer can hope to dissuade employees from selecting a bargaining representative because no event can have more crippling consequences to the exercise of Section 7 rights than the loss of work.” Mid-East Consolidation Warehouse, 247 NLRB 552, 560 (1980). As discussed by the judges, the Respondent began firing union supporters within hours of Eirvin’s April 15 speech, when, using pretextual grounds, it discharged Jeremy Farris and Edgar Schreit, both of whom had assumed leadership roles during the Union’s initial meetings, and Nathan Schaffer. As Judge Schlesinger found, Eirvin had “complete knowledge of the union drive.”
“Obviously the discharge of a leading union advocate is a
most effective method of undermining a union organizational effort.” NLRB v. Longhorn Transfer Service, 346
F.2d 1003, 1006 (5th Cir. 1965). See also NLRB
v. Jamaica Towing, 632 F.2d 208, 212–213 (2d Cir. 1980) (concluding that an
employer’s discharge of an active union adherent would likely “have a lasting
inhibitive effect on a substantial percentage of the work force” and remain in
employees’ memories for a long period).
In all, the Respondent fired 9 of 11 employees who attended the first union
meeting on March 29, all 4 employees who sat at the head table during the union
meeting on April 7, and 13 of the 33 employees who signed authorization
cards. The succession of discharges
continued through November, striking at the core of the
Even the issuance of a complaint by the General Counsel did not thwart the Respondent’s antiunion campaign. See Climatrol, supra at 948. Indeed, the Respondent unlawfully discharged employees John Shipp and Wayne Schaffer after the unfair labor practice hearing had already commenced in August.
Finally, the Respondent’s proffer of fraudulent documentary evidence further supports a bargaining order. In an attempt to corroborate the testimony of its witnesses, particularly Eirvin, the Respondent proffered several fake disciplinary reports and photographs created to falsely charge union supporters with critical mistakes while on the job. See Parts Depot, Inc., 332 NLRB 670, 675 (2000), enfd. 24 Fed. Appx. 1 (D.C. Cir. 2001) (imposing bargaining order, in part, because the employer, “prepared and issued a fraudulent performance evaluation and used that evaluation to lay off the most prominent union supporter”). This conduct demonstrated to employees that all union supporters, even those with flawless work records, were vulnerable to the Respondent’s retaliatory actions.
The severity of the foregoing unlawful conduct is exacerbated by the involvement of General Manager Eirvin. M. J. Metal Products, 328 NLRB 1184, 1185 (1999). As the Board observed in Consec Security, 325 NLRB 453, 455 (1998), enfd. 185 F.3d 862 (3d Cir. 1999), “[w]hen the antiunion message is so clearly communicated by the words and deeds of the highest levels of management, it is highly coercive and unlikely to be forgotten.”
In light of the Respondent’s numerous, widely communicated threats of plant closure and job loss, its unlawful discharge of 22 percent of the bargaining unit, its fabrication of evidence against union supporters, the involvement of the Respondent’s general manager, and its pervasive wrongdoing in violation of Section 8(a)(1), we find that “the Respondent’s conduct places it in the realm of those exceptional cases warranting a bargaining order under category I of the Gissel standard, such that traditional remedies cannot erase the coercive effects of the conduct, making the holding of a fair election impossible.” Allied General Services, 329 NLRB 568, 570 (1999). See also National Steel Supply, supra at 977; Climatrol, supra at 947–948; U.S.A. Polymer Corp., 328 NLRB 1242, 1243 (1999), enfd. 272 F.3d 289 (5th Cir. 2001).
The Respondent asserts that a bargaining order would be inappropriate due to turnover in management and the bargaining unit since the close of the hearing, and seeks to reopen the record for the purpose of presenting evidence on this point.13 The Respondent also argues that a bargaining order is no longer a viable remedy based on the passage of time since the violations were committed.
We reject these contentions. As Judge Buxbaum explained,
the Board’s established practice is to evaluate the appropriateness of a Gissel bargaining order as of the time
that the unfair labor practices occurred; changed circumstances following the
commission of the violations generally are not considered. See Garvey Marine, supra at 995–996.14
Although we adhere to that policy,15
nevertheless, in light of the criticism the Board has received from some
courts, particularly the District of Columbia Circuit, we have considered the
factors urged by the Respondent and, in agreement with the judges, we conclude
that a bargaining order is still warranted.
As Judge Buxbaum more fully describes, the management and employee turnover argued by the Respondent does not render a bargaining order inappropriate. Regarding management turnover, both judges acknowledged that General Manager Eirvin, the management official that spearheaded the antiunion campaign, is no longer in the Respondent’s employ, having departed from the company by “mutual agreement” sometime during the course of the trial in this matter.
Eirvin’s apparently voluntary departure does not dissipate the effects of the Respondent’s unfair labor practices. As found by Judge Buxbaum, “while Eirvin was the most visible official in the employer’s antiunion effort, his behavior was entirely consistent with the desires and attitudes of the owner, [Rusty] Keeley.” During the period at issue, Keeley and Eirvin were the top two officials at the Company. The judge found, and we agree, that the Respondent’s antiunion campaign was in accordance with Keeley’s antiunion sentiment. Keeley remains the owner of the company and there is no evidence that by word or deed he ever repudiated the unlawful activities detailed herein.16 See Consec Security, supra at 455.
On the issue of management turnover, we also note that in
its brief the Respondent concedes that three of the eight individuals who
participated in the unfair labor practices remain in its employ.
We also find that employee turnover since the Respondent’s commission of the unfair labor practices does not militate against a bargaining order. As an initial matter, a substantial percentage of the turnover is attributable to the Respondent’s unlawful discharge of 11 union supporters, excluding Ryan Adams and Clarence Williams, all of whom are entitled to reinstatement pursuant to the terms of our Order herein. For all current employees, the Respondent’s unfair labor practices are the type that will “live on in the lore of the shop and continue to repress employee sentiment long after most, or even all, original participants have departed.” Bandag, Inc. v. NLRB, 583 F.2d 765, 772 (5th Cir. 1978).
We also find that the passage of time—not quite 5 years since the Respondent’s last unfair labor practice, a little over 5 years since most of the unfair labor practices occurred—will not dissipate the coercive effects of the Respondent’s unlawful coercive conduct. Rather, the detrimental effects of the unfair practices—including the Respondent’s widespread threats of closing and job loss, interrogations, impression of surveillance, and the like, combined with its discharge of 13 employees, including prominent union supporters—will persist over time. Indeed, the violations committed by the Respondent “are precisely the types of unfair labor practices that endure in the memories of those employed at the time and are most likely to be described in cautionary tales to later hires.” Garvey Marine, supra at 996.
The Board has repeatedly found, with court approval, that comparable administrative delay, particularly where consistent with the normal course of litigation, is not inconsistent with a valid Gissel order in cases involving egregious and pervasive conduct of the sort at issue here.
Thus, in Power, Inc.,
311 NLRB 599, 600 (1993), enfd. 40 F.3d 409 (D.C. Cir. 1994), responding to an
organizing campaign, the employer repeatedly threatened plant closure and
unlawfully laid off 13 employees, or about 18 percent of the bargaining unit.
311 NLRB at 600. The respondent’s threats were made by numerous management
officials to nearly all unit employees.
Similarly, in Intersweet, Inc., 321 NLRB 1 (1996), enfd. 125 F.3d 1064, 1068 (7th Cir. 1997), the Board imposed a Gissel order where the employer had responded to a union organizing campaign by abruptly terminating the entire bargaining unit and refusing to recall most of the union supporters. The Seventh Circuit enforced the Board’s order even though just over 3 years had elapsed between the unfair labor practices and the imposition of the order. The court accepted the Board’s determination that the passage of time would not have erased the residual effect of the violations at the plant and found that the delay in that case, where the Board issued its decision 1 year after the ALJ had done so, was “more consistent” with the “ordinary course” of litigation than cases involving considerably longer delays. NLRB v. Intersweet, Inc. supra at 1068.
And in Evergreen America Corp., 348 NLRB 178 (2006), enfd. 531 F.3d 321 (4th Cir. 2008), the Board issued a category II Gissel order where the employer had committed a host of serious 8(a)(1) and (3) violations, including threats of plant closing and job loss, as well as grants of wage increases and promotions, affecting most or all members of the bargaining unit. The Fourth Circuit enforced the Board’s order although 4 years had passed since the commission of Evergreen’s unfair labor practices, and more than 1 year had passed since the date of the judge’s decision. In doing so, the court deferred to the Board’s conclusion that the passage of time did not make the Gissel order unacceptable. Evergreen America Corp. v. NLRB, 531 F.3d 321, 332–333 (4th Cir. 2008).18
Here, although almost 5 years have elapsed since the commission of the last of the Respondent’s unfair labor practices, the length of time the case has been with the Board is consistent with the ordinary course of litigation.
In its exceptions to Judge Schlesinger’s May 2005 decision, the Respondent vigorously argued that 8 of the 13 discriminatees were statutory supervisors. The Board’s Oakwood trilogy, issued in September 2006, “refine[d] the analysis to be applied in assessing supervisory status” following the Supreme Court’s decision in NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706 (2001). Oakwood Healthcare, supra at 686 (majority opinion). The Board’s September 2006 remand, therefore, afforded the Respondent an opportunity to justify its claims of supervisory status in accordance with the governing standard. On remand, Judge Buxbaum was required to review the lengthy record in its entirety and issue a detailed supplemental decision evaluating the evidence under the Oakwood standard. Despite the length and complexity of the case, Judge Buxbaum issued his decision in August 2007, less than a year after the remand. The parties were then afforded a second opportunity to file exceptions and briefs. The Respondent initially filed new exceptions and a supporting brief in October 2007, and both parties continued to file briefs well into December 2007. Accordingly, the case was not fully briefed to the Board until late last year.
Moreover, the Respondent is at least partially responsible for the delay in this case. The Respondent’s posture on the supervisory issue at the unfair labor practice hearing—i.e., that its crew leaders were supervisors—was a complete turnaround from its position during the near-contemporaneous representation hearing, where it argued that its crew leaders were not supervisors. Consequently, a substantial amount of time was spent litigating these supervisory issues during the unfair labor practice hearing. Even more significantly, but for the Respondent’s abrupt reversal, the Board’s subsequent remand order, for further consideration of the supervisory issue, would have been unnecessary and this decision could have issued 2 years earlier.
In these circumstances, and in view of the authorities cited above, we do not consider the passage of time since the Respondent’s violations unacceptable for Gissel purposes in this Gissel category I case. See Evergreen America Corp., supra at 182.
ORDER
The National Labor Relations Board adopts the recommended
Order of the administrative law judges and orders that the Respondent, American
Directional Boring, Inc., d/b/a ADB Utility Contractors, Inc.,
Dated,
______________________________________
Peter C. Schaumber, Chairman
______________________________________
Wilma B. Liebman, Member
(seal) National Labor Relations Board
Paula B. Givens, Esq., for the General Counsel.
Christopher N. Grant, Esq. (Schuchat, Cook
& Werner), of
DECISION
Findings of Fact
and Conclusions of Law
Benjamin Schlesinger,
Administrative Law Judge. This is a Gissel1
case involving, among other alleged unfair labor practices, the discharges of
13 persons, many of whom were leaders in the attempts to organize on behalf of
Local 2, International Brotherhood of Electrical Workers, AFL–CIO (Union), the
employees of Respondent ADB Utility Contractors, Inc. Respondent denies that it
violated the Act in any manner and particularly contends that of the 13 persons
discharged, 8 were supervisors within the meaning of NLRB v. Kentucky River
Community Care, 532 U.S. 706 (2001).2
Respondent, a
The
In the morning
of the day that the next union meeting was to be held, Chris Eirvin,
Respondent’s general manager, held a meeting of all his employees and delivered
the following speech, which was, unknown to him, tape recorded:
Good morning guys. You have to bear with me, gotta little bit of a head cold. It must sound like I’m havin’ a hard go here. I’m gonna keep this real short and sweet. I’m gettin pretty good at this one—this is my fifth attempt at the same subject. There’s been some talk about some of the folks in here have been wantin’ go union—either Local 1 or Local 2. I wanna say a couple of comments on that—and make sure everybody’s on the same page with us. First off, I want everybody in here to understand that this place is not gonna go union and I’m gonna tell you why.
First off is, our biggest customer, that’s involved with the electric here in Missouri, is not gonna tolerate them being put over a barrel again on having this issue of crossing picket lines because a union will respect a picket and will not cross the line. They did this once with Sachs Electric, and they got theirselves in a hell of a jam, and since then, we’ve had the damn thing ever since and they won’t get in that same position again.
Item number 2—if we go union, the union agreements with Ameren UE state that, and I’m sure that for those that’ve been in a couple of meetings, uh that the union have had, the union hasn’t brought this up. The agreements that Ameren UE had with the union is that if the work is to be subcontracted out, and the contractor is a union contractor, according to the contract, guess who gets first shot at the work? Anybody wanna take a stab at this? The Ameren UE union employee. Does anybody in here believe that they would bypass the union gentleman who paid his dues for 20 years, and hand it to a union sub-contractor first? Does anybody in here believe that? I’m here to tell you, it ain’t gonna happen. They’re not gonna put theirself out there and get the shit sued out of them by, by bypassing over union people to give you guys the work. Flat out if this shop votes union, the Ameren UE work goes away. We don’t have a choice in the matter—it’s that simple really gentlemen.
But I can tell you because some of you all aren’t up for this, when it comes to vote, I wanna share some wisdom [two words inaudible] you feel a little bit at ease. We’re not gonna become union. Those of us that don’t want to [be]come union are not gonna be out of a job—alright. I’m not gonna get creative and let the cat out of the bag, but the bottom line is, legislation is passed to keep the unions from ruining guys like us. We’re gonna keep going—if this union is voted in—yes we will shut the doors. We’ll be, we’ll be done—no—we’re gonna keep going—we’re not gonna have some internal big friction thing going on between the union and non-union guys. I don’t want nobody harassing anybody. I’m not up for that—I’ve got a lot of good guys in here that for some reason—you know what—hell all of us went to church once in a while —this is sorta the same kinda deal . . . you give me a lot of shit for so long I start buying it . . . reality is gentlemen, I don’t bullshit anybody, but I don’t want each other and you guys getting into it—givin’ each other a hard time—that ain’t what it’s about. This place is not gonna go union. I bullshit none of you. We’re not gonna single people out here that are sized up to the program, but it’s not gonna be voted through either. I want everybody in here to know, we are not even gonna recognize any union attempts at all.
So for those that think they got this effort figured out, we’re not even gonna recognize it. Have the union attorneys figure that one out. For those of you guys that are just so adamant about being union—that’s your right, absolutely, I’ve got a few arguments for you guys—so don’t no animosity towards anybody. There’s two companies that do this work—take you and your abilities over to Sachs or Perkins. They’re both looking for qualified individuals, especially on a directional drilling rig. These guys are union shops. They’ll give you a real good taste of what it’s all about on the other side. Uh, one more thing—Mike—there ya are, I need this documented that we’re having this meeting as soon as we’re done here give me an e-mail as well.
One more thing gentlemen, uh, I want everybody to understand, that according to the ADB employee handbook, there’s a protocol for the ADB uniform if you will, with the ADB shirts. If anybody decides to pull any shit with any pin or anything else, I’m gonna help you understand what that handbook stands for, okay? So feel free to do what you need to with that.
Bottom line is we’re not gonna go union, guys. The first quarter kicked us right in the ass—I really don’t look forward to dedicating a lot of my time to this cause—I look forward to making the next quarter back on track. It’s gonna be a good year for all of us, you know, regardless. Any questions? [Exhale] High winds today gentlemen, be careful, have a good day. [Emphasis supplied.]
That speech
was important to this proceeding in a variety of ways. First, it unquestionably demonstrates
Respondent’s animus regarding the union activities of its employees. Second, Eirvin’s testimonial description of
his speech, before being confronted with the fact that the speech was recorded,
demonstrates that he has no regard for the truth. Although much will be written below about his
fabrications—and I add to this that he was frequently evasive and
argumentative—I found particularly outrageous his denial of any knowledge that
the employees had attended two union meetings, particularly when his speech
referred to “a couple of meetings . . . that the union . . . had.” His attempt to explain that his speech
resulted from “[l]ittle group gatherings” and the facts that some employees
were talking about the
In addition,
Eirvin, who was called to testify by the counsel for the General Counsel as her
first witness, stated that he had almost no knowledge of any union adherents,
despite the fact that Respondent was presented with a demand for recognition on
April 16, and a list of union supporters on April 23 and despite the fact that
Williams read the names on the list aloud in the hallway on April 23, well
within the range of Eirvin’s hearing.
Both Project Managers Ernie Nanney and Rich Robinson denied seeing the
list, despite the fact that copies of the list were left in conspicuous
places. Nanney and Robinson were aware
of Eirvin’s feelings about the
Rather, many
of Respondent’s actions against the organizers were purposely fabricated in
order to rid Respondent of the union threat.
The prime example involved Jason Lohman, who was ultimately discharged
as a result of alleged complaints by Ameren UE, a
Perhaps
Eirvin’s most outrageous misstatement of fact occurred on the fourth day of the
hearing. The counsel for the General
Counsel had subpoenaed Pour to testify that day. At the beginning of that hearing,
Respondent’s counsel represented that Eirvin had told him the day before that
he wished to correct the testimony he gave on the first day of the hearing that
Pour’s complaint about employee Rodney Hanephin’s putting a 90-degree bend on
the wrong side of an electrical pole, not directly under the transformer,
caused Eirvin to terminate Hanephin.
Instead, Eirvin wanted to amend that testimony to make clear that
Respondent had found the mistake itself.
Counsel’s offer to enter into a stipulation was rejected by the counsel
for the General Counsel, and Eirvin was then recalled to testify about his new
recollection.
Witnesses can
make mistakes, and I could certainly excuse Eirvin’s error; but his new
testimony resulted from the fact that he learned from a conversation that he
had with Pour earlier that morning that Pour was going to testify that
day. He must have suspected that Pour
was being called to testify about something that was unfavorable to
Respondent’s cause. So Eirvin attempted
to conceal that he had spoken to Pour that morning and denied under oath that
he had. Pour, who had no reason to fabricate,
testified that Eirvin had indeed called him on his Nextel radio; and they had
spoken, and Pour told Eirvin that he was going to testify that morning.
Not only did
Eirvin blatantly lie about this fact: his memorandum supporting the discharge
of Hanephin, containing the lie about Pour calling him to inform of Hanephin’s
error and dated before Hanephin’s discharge—“on 4/24 Ray Pour called me
complaining of a 90% bend” put on the wrong side of a utility pole—was a
document that Eirvin fabricated, undoubtedly for this proceeding. Similarly, Eirvin’s testimony on the first
day of the hearing—that it was Pour who called, that it was Pour who was irate,
that Pour “was pissed because they [Ameren UE] had sent a crew out there and
they couldn’t energize it because it was on the wrong side of the pole,” that
the photographs that Respondent took had to be dated correctly (April 24) and,
as a result, that Pour had called him on April 23—all of this was false, a
carefully fabricated, fictitious scenario to support the sinful, treasonous conduct
of Hanephin and justify Respondent’s reaction (discharge) to it. Eirvin’s testimony was no mistake or inadvertent
error. It was deliberate, calculated
lying, which Robinson joined in by corroborating Eirvin’s initial fabricated
testimony that Respondent was notified of Hanephin’s alleged mistake by Pour.
Even after
Eirvin had supposedly corrected the record, he lied. He placed the date of his memo as a week
after Hanephin’s discharge, which could not possibly be accurate, because the
memo states: “it’s a very serious issue and I believe we will have to release
him.” The difficulty with that is that
Hanephin had already been discharged.
Eirvin also testified that Nanney first told Pour of the alleged
mistake, while Pour testified he first learned of Hanephin’s alleged mistake
from Eirvin while at Respondent’s facility.
In either event, Eirvin could not have had a telephone conversation with
Pour remotely similar to the one about which he originally testified. Therefore, the much-testified-about telephone
conversation never happened. Eirvin
further compounded his lies by claiming that, when he spoke to Pour on the
telephone about Hanephin’s alleged mistake, Pour said he had already spoken to
Nanney. This testimony is also
false. Pour denied speaking to anyone at
Respondent about this issue before Eirvin showed him the pictures at Respondent’s
facility, and he specifically denied speaking to Nanney about the matter. Most importantly, Nanney, contrary to Eirvin,
denied speaking to Pour about Hanephin’s mistake and denied telling Eirvin of
such a discussion. The result is that I
do not credit Eirvin at all, about anything, unless corroborated by an
impartial, credible witness. Robinson is
complicit in attempting to mislead me, and I do not trust him either. As to both Robinson and Nanney, I found them
beholden to Eirvin, who appeared to dominate their testimony; and I trust
neither of them.
Turning to the
alleged unfair labor practices, I conclude that Eirvin’s April 15 speech
contains numerous violations of Section 8(a)(1). Eirvin created an impression among its
employees that their union activities were under surveillance by telling them
of the two union meetings that were held.
Electro-Voice, Inc., 320 NLRB 1094, 1094–1095 (1996). He threatened the employees with termination
if they selected the Union as their bargaining representative by telling them
that if they voted in the
On
April 18, Respondent mailed and gave the following letter and agenda (emphasis
in the original) to the employees with their checks; and Robinson read both
documents to the employees who were engaged in work for Ameren UE:
To the Employees and
Families of ADB,
IBEW Local 2 is once again attempting to unionize the company. I’m writing this letter to clarify the company position on the union issue for all of us.
As most of you know, ADB went through some tough times
over the last two years because of the
problems in the telecom and
broadband industries. We have successfully
survived by implementing many cost saving measures and securing other customers
while
keeping us employed thanks to our status as a non‑union company.
Many of our utility customers employ the services of ADB
only because we are a nonunion company.
They firmly believe we can do the job more efficiently and economically
than their own union workers because of our flexible multi-functional
crews. We will lose our edge in a very
competitive market and our ability to generate new customers by
unionizing. The bottom line is many or all
of us will very likely be looking for work elsewhere due to a decreased volume of
work by eliminating our competitive edge in electing to unionize the company.
We all are painfully aware that the current job market is poor at best. I find it amazing that any of our employees would want to take a chance on jeopardizing the security of their well paying jobs, superior insurance, and a matching retirement plan by voting to unionize. The employees of our FEW union competitors have been sitting in union halls across the country for sometime without weekly paychecks. The truth is that IBEW Local 2 is interested in organizing ADB in order to make ADB less competitive with those companies already represented by the IBEW. In other words, ADB would secure less work, the other union companies would keep a little more, AND THE REAL REWARD WOULD GO TO OUR NON UNION COMPETITION. Local 2 is interested in large numbers of members and currently represents employees of very large companies. ADB’s St. Louis—Jacksonville—Kansas City employee base is relatively small, do you think the IBEW is interested in your welfare or will you become just another number? The union is trying to protect their large membership by taking the non-union competitive edge away from ADB.
ADB has been successful because of our ability to work
flexibly with small multi-functional crews in an extremely competitive
market. Our competitors are non-union,
and we must remain non-union in order to compete equally with them. Many of our competitors have not survived in
this economy, and we must do everything we can to keep this company
healthy. Putting a union in our company
may kill it.
ADB will fight all attempts to bring a union into our company even if it takes years. The cable, telephone and many other industries we serve have proven many times that unions don’t fit their construction needs.
LOCAL 2 COULD DESTROY ADB
AND OUR JOBS!!
HELP US KEEP ADB
Sincerely,
(sgd.) Chris Eirvin, General Manager
AGENDA
ADB will never unionize!
—you can vote
—you can strike
—we will replace
Bottom Line: we will NEVER recognize a
Industry is non union
—our markets are non union
—look at our competition . . . nationwide it is non union
—these individuals will ruin it for 200 people and their family livelihoods
Rough Economy and Job Market
—I project to spend $100K+ to fight
—This is part of your bonus money
—ADB pays above industry standards
—The Best insurance and retirement plans + year end bonus
—How many non rain days can you afford to miss because of a picket?
—How many of your friends are out of work?
—How many people are sitting at the hall
—12 months vs 15 hours per week. . . .
—Will you be a number or part of a team and a company to be proud of
—Talk to people who have been union . . . there are many at ADB
—if your [sic] convinced you want
Bottom Line: Leave on your own terms you will lose and so will innocent others
Data
—42% of votes win . . . ours won’t with regional offices
—16% get a contract . . . 84% fail
—7% actually bargain for better packages than existing . . . 93% don’t
——not good percentages
—Are you willing to risk this . . . how about your family?
—If you strike will you be replaced or have a job?
Lastly
ADB
will subcontract more work
ADB
will fill positions for strikers
ADB
will never recognize a union
ADB
and Their Families will prosper
Do
you want to be a part of the
best utility company?
The complaint
alleges that these two documents contain a multitude of unfair labor practices
in violation of Section 8(a)(1) of the Act.
I agree. They threatened the
employees that they would lose their jobs by selecting the
By telling
employees that it would fight all attempts to bring in a union, even if it took
years, and that it would never unionize and would never recognize a union, Respondent
unlawfully threatened its employees that it would be futile for them to select
the
Finally,
on April 23,
2003, the day that many employees distributed lists of the union supporters at
Respondent’s facility, Eirvin stopped Lohman in the hallway and asked if his
name was on that list. Lohman said that
it was, and Eirvin said that that was all he needed to know. In the context of the many other unfair labor
practices that Respondent was committing, including the threats of closure and
the advice that union supporters should move elsewhere, and the fact that the
question was asked by Respondent’s highest ranking official, this constitutes
illegal, coercive interrogation. Medicare
Associates, Inc., 330 NLRB 935, 939–940 (2000); Rossmore House, 269 NLRB 1176 (1984), enfd. sub nom. Hotel & Restaurant Employees Local 11 v.
NLRB, 760 F.2d 1006 (9th Cir. 1985).
The remainder
of the complaint alleges that Respondent violated Section 8(a)(3) by discharging
or unlawfully transferring employees, but Respondent contends that the
following “crew leaders” are not employees but are supervisors within the meaning
of Section 2(11) of the Act: Williams, Bridges, Farris, Lohman, Hanephin,
Nathan Schaffer, John Shipp, and Matt Sutton.
Section 2(11) provides:
The term
“supervisor” means any individual having authority, in the interest of the
employer, to hire, transfer, suspend, lay off, recall, promote, discharge,
assign, reward, or discipline other employees, or responsibly to direct them,
or to adjust their grievances, or effectively to recommend such action, if in
connection with the foregoing the exercise of such authority is not of a merely
routine or clerical nature, but requires the use of independent judgment.
In Kentucky
River, 532 U.S. 706 (2001), the Supreme Court found erroneous the Board’s
rejection of a nursing home’s proof of supervisory status of nurses with
respect to directing patient care. It
stated, 532
Employees are
statutory supervisors if (1) they hold the authority to engage in any 1 of the
12 listed supervisory functions, (2) their “exercise of such authority is not
of a merely routine or clerical nature, but requires the use of independent
judgment,” and (3) their authority is held “in the interest of the employer.”
Where the
Board went astray, held the Court, was the Board’s interpretation of the second
part of the test, “that employees do not use ‘independent judgment’ when they
exercise ‘ordinary professional or technical judgment in directing less-skilled
employees to deliver services in accordance with employer-specified
standards.’” 532
Although
Respondent made much of its Kentucky River defense at the hearing,
insisting that various employees were supervisors under
The
supervisory issue here concerns, except for Lohman and Sutton, crew leaders
among the laborers, machine operators, and locators who are engaged in
underground work, either boring through the ground with a boring machine or
digging trenches in the ground with a backhoe or similar equipment to insert
pipes or conduits from one location to another and pulling wire or cable
through the pipes. That is accomplished
by boring or drilling the conduit underneath the ground, performed by the
boring crew, typically comprised of an operator of a boring machine, a locator
for that operator, and perhaps a laborer, or by digging a trench and laying the
conduit into it, performed by the backhoe crew, comprised of the backhoe operator,
who is the crew leader, and a laborer, sometimes two. In a boring crew, the
locator is the crew leader. I do not
credit Eirvin’s testimony that the operator would be the crew leader if he had
more experience. Robinson knew of no
operator on a boring crew who was designated a crew leader and testified,
although the transcript is somewhat garbled, that on a boring crew, the
locators were always the crew leaders, not the operators.
The actual
performance of the job begins each morning when the project manager gives to
the crew leader blueprints for or otherwise explains the jobs that are to be
performed that day. The blueprints are
of neighborhoods or streets or townships and show basically which pole or
electric pad one is going from to which pole or pad the dig is going to. It indicates the address of the dig, the locations
of the poles and pads, and the materials that are needed to perform the
job. When the employees arrive at the
job, they will see paint on the ground (locates), placed there by an outside
company, indicating the location of utilities (telephone, gas, electric) which
are to be avoided during the digging or drilling operation. The first thing that the crew does upon
arriving is to dig the locates. Everyone,
the locator, the operator, and the laborer (if there is one) finds a locate and
digs, normally 1-foot holes, up to 3-feet deep, or at least the depth needed to
find the utility. However, frequently,
the locates are not accurate, and the hole must be widened by 2 feet, until the
utility is found.
When the crew
completes the locates, if a boring crew, the crew sets up the boring machine,
which is a drill, and decides on the initial location of the bore. The boring machine operator inserts a drill
rod as much as 3 feet under the ground.
At the end of the rod is a drill head which contains a transmitter or
beacon that sends a signal back to the locator box, held by the locator. The operator steers the rod, adding rods as
required, to its target, and being guided by the locator, who stands in front
of the boring machine with a locator box which shows the depth of the boring
head and its pitch. The locator reads
the box and tells the operator by hand signals or over a radio transmission to
dive deeper or to change directions. The
result is that the operator and the locator work together in guiding the rods
through the locate holes that they have dug so they can miss the
utilities. When the operator gets to the
end of the bore or if he runs out of rods, he will pitch the head up and it
will pop the rod out of the ground. The
head is then removed and a puller is put on.
Then the operator pulls the rods back one at a time and pulls their
conduit off of a reel at the same time down into the ground and all the way
back to where he started. At that point,
he is done with that portion of the bore, and the crew will then dig the
tie-ins, bringing together or splicing two runs of conduit. If the operator is not through with the bore,
he will start a new bore at the end point and proceed, as above, until he
reaches a point where there will be a new tie-in or the end of the bore.
The work of
the backhoe or open cut crews is not appreciably different from the work of the
boring crews, except that they use different equipment, such as a backhoe, and
sometimes a trencher, supplemented by digging by hand, to dig because the soil
is too hard or rocky for the boring crews to bore or there are too many
utilities or a ditch which interfere with an unobstructed underground path for
the borer. Backhoes are also used to set
hand holes in the ground, install conduit in the ground, tie conduit already in
the ground, place plastic bends into the ground (at a 90- or 45-degree angle),
and to dig near electrical pads. When
the backhoe crew leader arrives at a job, he first walks the job to make sure
all the locates are marked, then he unloads the backhoe, and then he and the
laborer or, more rarely, laborers, dig locates by hand. Because it is the job of the laborer to dig
locates, he always carries a shovel and does not need to be told to dig. When the backhoe operator begins his work
with his machines, he cannot see the ground, or at least much of it, where he
is digging; and so the job of the laborer is to watch the backhoe bucket to
ensure it does not hit unmarked utilities (swamping). If the laborer sees something in the hole, he
directs the crew leader to stop, climbs in the hole, and digs with a shovel
until he either exposes the suspected utility or satisfies himself there is no
utility there. Similarly, when the crew
leader feels something in the hole, he asks the laborer to check the hole. If the crew is doing a tie-in, both the crew
leader and laborer get the materials and get into the hole to do the work; and
they both will backfill the hole. When
the drilling or digging reaches the target destination, the cable or wire is
then inserted into the opening of the conduit and pulled back.
Most of these
crew leaders agreed that they were responsible for production and for getting
the job done. In the instance of a drill
operator, he cannot see. The crew
leader, in that instance, the locator, is the operator’s eyes, and the drill
operator depends on the locator’s skills to keep drilling and can go no faster
than the locator can advise him. On the
other hand, a backhoe operator can see, but not all that much, and he is the
one, with the assistance of the laborer, who is watching for utilities, who
ultimately determines how much he will produce.
So, in both instances, how much they get done is dependent on how good
the crew leader is, which, of course, is impacted by the type of ground they
are digging or drilling through, how rocky or not, how many utilities they
encounter, and, initially, how many locates must be dug and the accuracy of and
the difficulty of digging the locates.
But many of
the work conditions of the crew were dictated not by any individual,
particularly the crew leader, but by the job.
Thus, overtime was limited in part by Respondent’s cap on the number of
hours that could be worked on an Ameren UE job, 50, but equally important by
the consensual decision by all as to whether they wanted to continue to
work. Often, the progress on the job,
that is, whether they could finish during the daylight, dictated whether the
employees would stay to finish.
Similarly, lunch was a communal decision; and some employees continued
to work through lunch, even though they were not being paid. The issue of rain was subject to some conflicting
testimony. Williams testified that he
made the decisions that the inclement weather was sufficiently serious to call
off work and that the rain had let up sufficiently so that work could be
resumed. Edgar Schreit (a crew leader
whom Respondent does not claim to be a supervisor), however, insisted that he
would have to call his project manager.
Bridges testified that he left the decision up to his laborer, Wayne
Schaffer, because Bridges was riding in the cab of the backhoe and Schaffer,
the laborer, was the one who was getting wet.
In addition, Bridges testified that Robinson would always call to see
what the weather was, how hard it was raining, and whether Bridges was able to
get anything done and that Bridges always called Robinson before leaving because
of weather. Robinson did not deny this
testimony.
Nanney
essentially admitted that the job of the boring crew is routine. Arriving at a job and observing that there
are locates, the boring crew knows that the first thing they have to do before
they can bore is to dig the locates. It
does not matter what order they dig their locates, but typically the boring
crews dig their locates from the start of the bore to the end. The duties that they perform, they do day in
and day out. The boring crew uses a
machine to bore through the ground, an operator operates the machine, and the
locater locates. The crew also dig
locates. It is routine for them to
arrive at a job and communally decide that they are going to start at a certain
place, so they would dig the first locate.
The digging of the locates is also routine; the crew leader and the
operator would dig down until they found and exposed the located utility. If there is more than one locate, they would
move on to the next one, on down the line; and after digging their locates, and
before they start operating, they have to set up the machine and have to decide
where, the options being at one end or the other or, in some cases, the middle. Typically, what determined that was where
space was available, such as public or private property, and where the equipment
would do the least damage. (And there
was credible evidence that the location was determined by the operator and the
locator, jointly.) Once the machine is
set up, they would start boring, and the routine, as Nanney affirmed, would be
that they would bore and it goes fine and they leave. Regularly a boring crew will set up and bore
all day long and nothing happens, and they leave and go back the next day. On occasion, however, there are problems,
such as they would encounter unlocated utilities or a rock they cannot bore
through. For the former, they would call
Locate Supervisor Josh Martychenko for a locate. For the latter, they would call Nanney, and
normally he would send a bigger drill.
The crew leader does not call out a bigger drill without going to Nanney
first.
The backhoe
work is similarly repetitive and routine.
The laborer knows that digging locates and swamping is his job and does
not have to be told how or when to do so by the crew leader. On the few occasions when a crew leader is
assigned two laborers, one will swamp, while the other will dig locates; but,
because both tasks are so routine and repetitive, it does not matter which
laborer does which job. When Williams
and Bridges, both backhoe operators, had two laborers, Williams told them which
laborer would swamp and which would dig locates; but Bridges let them decide
between themselves what they wanted to do.
Picking between two equally qualified employees to perform a routine and
repetitive task is not the type of “assignment” or “responsible direction”
contemplated by Section 2(11). Injected
Rubber Products Corp., 258 NLRB 687, 689 (1981). On the rare occasion when something unusual
happened, such as hitting an unlocated utility, equipment problems, or an
absence of locate paint on the job, the crew leaders called their superintendent
or project manager. There were also
times that the project manager would actually meet the employees on the job to
show them what to do, if the crew was unsure.
In short, what
the crew does is basically understood by the crew members: the locates had to
be dug, and then the conduit had to be laid and the cable or wire pulled back
through it. While some of the crew
leaders testified that they were responsible for the productivity and efficiency
of their crews, there was in fact no power that Respondent vested in them to do
anything to ensure either productivity or efficiency. Furthermore, until the unfair labor practices
at issue herein, Respondent presented no evidence that it ever held even one crew
leader responsible for the productivity and efficiency of his crew or lack
thereof. Rather, whatever decisions that
crew leaders make, such as ensuring that the work had been completed, did not
result in their directing anyone to do anything and, assuming that they did,
were not more than routine and repetitive and not supervisory decisions made
“in the interest of the employer.”
“It is well
settled that the burden of establishing supervisory status rests on the party
asserting it.” Armstrong Machine Co.,
343 NLRB 1149, 1149 fn. 4 (2004). “[A]ny
lack of evidence in the record is construed against the party asserting supervisory
status.” Elmhurst Extended Care
Facilities, 329 NLRB 535, 536 fn. 8 (1999), quoted with approval in Armstrong
Machine, supra, slip op. at 1 fn. 4.
By the very nature of the routine, repetitive work performed by the
crews, the crew leaders do not responsibly direct the work of anybody. “‘[R]esponsible direction’ . . . depends ‘on
whether the alleged supervisor is held fully accountable and responsible for
the performance and work product of the employees he directs.’” Franklin Home Health Agency, 337 NLRB
826, 831 (2002), quoting Schnurmacher Nursing Home, 214 F.3d 260, 267
(2d Cir. 2000). No crew leader ever was.
The most evidence
that Respondent presented was conclusionary statements by various crew leaders
about their being “bosses” and their responsibility for the productivity of
their crews and to
see that their job got done. However, conclusionary statements, without supporting
evidence, are insufficient to establish supervisory status and authority. Armstrong Machine, supra, slip op. at
1 fn. 4, citing Chevron Shipping Co., 317 NLRB 379, 381 fn. 6 (1995),
which in turn cited Sears, Roebuck & Co., 304 NLRB 193, 199 (1991). What Respondent omitted from the presentation
of its case were the crew leaders’ “particular acts and judgments that make up
their direction of work.” Armstrong
Machine Co., supra, slip op. at 1 fn. 4, quoting from North Shores
Weeklies, Inc., 317 NLRB 1128 (1995).
Finally, because the “Board has a duty not to construe supervisory
status broadly because ‘the employee who is deemed a supervisor is denied
employee rights which the Act is intended to protect,’” Armstrong Machine Co., supra, slip op.
at 1 fn. 4, quoting from Chicago Metallic Corp., 273 NLRB 1677, 1689
(1985), enfd. in relevant part 794 F.2d 527 (9th Cir. 1986), the Board has
found that only individuals with “genuine management prerogatives” should be
considered supervisors, as opposed to “straw bosses, leadmen . . . and other
minor supervisory employees,” Armstrong Machine Co., supra, slip op. at
1 fn. 4, quoting from Chicago Metallic Corp., 273 NLRB at 1688. I reject Respondent’s generalized contention
that crew leaders exercise supervisory functions by being in charge of
production and getting the work done.
Each of the
crew leaders, except Lohman, testified affirmatively that he had never been
given the authority, in those words, to exercise any of the 12 supervisory functions
set forth in the statute. Respondent
offered no proof that any of its officers or supervisors specifically authorized
the crew leaders to exercise any of those functions. The most that can be said is that, perhaps on
occasion, the crew leaders may have told a particular laborer to dig a
particular locate. That is, at best, in
the circumstances of the facts in this proceeding, routine and not a supervisory,
independent judgment. Hexacomb Corp.,
313 NLRB 983, 984 (1994).
Respondent,
however, cites in its brief certain testimony of the crew leaders to support
its contention that they are supervisors.
I now consider that testimony of each of the crew leaders. Williams
testified that Nanney asked
him how a new laborer, Grant Gresham, was working out, and Williams told Nanney
that he was not. There was no evidence
that Nanney took any action on Williams’ reply; and this demonstrates only that
an admitted supervisor asked an employee about his opinion of another employee,
and not that Williams was a supervisor.
In addition, Williams once recommended that Respondent “replace [
Respondent
contends that Williams relayed to Nanney the complaint of laborer Steve Mack
about having to get into a deep hole that had no shoring. There was no evidence, however, that
Respondent authorized or directed Williams to do so or that that was part of
Williams’ responsibilities. Rather, Williams merely acted
as a conduit to relay that complaint, which Williams denied was a “grievance”;
and thus this instance does not prove that he had any authority to adjust the
grievances of Respondent’s employees.
Respondent
contends that, when Bridges
was on a job, higher supervision relied upon him to see that the job he was
working on got done. There is nothing in
the record to support this proposition, except Bridges’ assumption that
that was so. In any event, even if the contention is accurate, the mere fact
that higher supervision relies on an employee to see that he is doing his job
does not prove that the employee is a supervisor. Rather, Bridges had to get the work done, and
he knew, as did the member or members of his crew, what each job entailed because
it was so routine and repetitive.
Respondent also relies on Bridges’ testimony that, when he arrived on a
job, he would figure out how the job would be done. That was a reference to a job Bridges had
worked with Williams and a laborer, Steve Mack.
It is unclear who, Williams or Bridges, was acting at that time as a
crew leader; but Bridges’ testimony made clear that any decision was a joint one
and appears to be based on making the most routine of decisions, such as which
end of the job to start on or which locate an employee should dig.
Regarding
Respondent’s contention that Bridges was responsible to see that all of the
proper equipment, tools, and supplies were on the jobsite, the evidence
demonstrates that the blueprints that Bridges received each day provided this
information. Besides, the fact that an employee
ensures that he has the right tools and equipment is not a supervisory function
within the plain language of Section 2(11).
Finally, Respondent claims that Bridges made the decision that his crew
would work 9 hours a day. That is
accurate, at least to the point that Bridges stated that he wanted to work 9
hours per day, and not more.
Conspicuously absent is proof that he set 9 hours as the workday, or
directed employees to work 9 hours, when they wanted to work less, or refused
to permit employees from working more time.
In fact, Bridges’ laborer, Wayne Schaffer, had no problem working an
hour of overtime each day. In sum, even
if I credited Respondent’s contentions, I would still find no proof that
Bridges was a supervisor; and I conclude that he was not.
Respondent’s
contention that Hanephin motivated lazy crew members is inaccurate. Clearly, he never gave orders to anyone to
move faster or otherwise directed their work.
That he may have trained a new worker is not an indicia of being a
supervisor. He had no authority to give
breaks. His desire to work 50 hours a
week was apparently joined in by members of his crew. He did not order them to work overtime, and
he acceded to the wishes of some of his crew to return to the shop at a
particular hour. Whether Hanephin
considers that he was the boss of a worksite is of no consequence. The question is whether he exercised
supervisory authority. As he testified:
I guess I was just told that I was in charge on the job site. If there was a question about anything, that I made the decisions, but there isn’t a whole lot to it. I mean where to dig or where to start digging. I mean there isn’t—I don’t ever remember being told anything other than, you know, just you are a crew leader and I’ve been a laborer for years, so I knew basically. Nobody specifically told me anything. It was just play it by ear and that was about it.
Q. Were you ever told what kind of decisions you had the authority to make?
A. No.
The record
reveals that he is not a 2(11) supervisor.
Lohman was the
crew leader of the restoration crew,6
normally consisting of one laborer, whose responsibility was to fill in the
holes and trenches dug by the boring and backhoe crews; rake, tamp, and level
the soil; lay down sod or, more frequently, plant new grass seed; and cover the
seed with straw. Although within the
first week of his employment in early April 1999, Nanney told him that he had
the authority to fire employees, it subsequently turned out that he did
not. He wanted to fire employee Damian,
but Nanney told him that he could not, because Nanney was the supervisor. When Lohman recommended that Nanney needed to
do something about Damian, because he was sleeping on the job, sleeping on the
truck, and was not doing anything, Nanney said that he could not fire him. Although Nanney also told Lohman in April 1999 that, in
addition to having the authority to fire employees, he had the right to suspend
employees, it is most likely that Lohman did not have that authority. In more than 4 years, he never exercised it;
Nanney admitted that crew leaders were not involved at all in the termination
process; no other crew leader had the authority that Lohman thought he had;
and, had he exercised what he thought was his authority to suspend employees,
it is probable that Nanney would have told him, just as he did when Lohman wanted
to fire someone, that he could not, because Nanney was the supervisor.
Respondent
contends that Lohman asked that two employees be removed from his crew for poor
performance and succeeded in that request.
However, one was Damian, and Lohman did not succeed. Respondent also cites the example Vince Vulsteki;
but Lohman asked Nanney to take Vulsteki off his crew because he could not get
along with him (“He just liked to argue with everybody. It didn’t matter who he was with.”), and not
because of poor performance (“he was a good worker”). Nanney moved him several weeks to a month
later. I find that this was not a recommendation for a transfer, exercised with
“independent judgment,” but only a personality conflict between two employees,
and not a reflection of a supervisory function.
Indeed, Nanney testified that he tried “to get everybody that gets
along, that does a good job and works well with each other, on the same
crew.” Respondent next contends that
Lohman recommended raises for two employees.
However, Respondent did not give a raise to laborer Garret Jones,
despite Lohman’s kind words. Another
laborer, Gabe Creswell, who had been employed for 6 or 8 months, told Lohman
that he wanted a raise. Lohman relayed
that request, telling Nanney “that Gabe doesn’t need any supervision on any of
the jobs. He knows exactly what to
do. He can be a crew leader if he wants,
if he’ll let him do it. He needs a
raise.” Creswell was “promoted” 2 weeks
later. Lohman was never told that he
supervised anyone and believed that the supervisor supervised the
laborers. His function, he believed, was
just to relay a message from the supervisor to them. His recommendation in this one instance,
unsolicited by Nanney and not part of Lohman’s normal duties and responsibilities,
does not constitute an effective recommendation of a raise. Brown & Root, Inc., 314 NLRB 19,
21 (1994).
Lohman
testified that he told his crewmembers that, when they came to work with him, he had been told to get as
much done as he could in a day, which was as long as one could work. He acknowledged that as crew leader he had
overall responsibility for the performance, effectiveness, and productivity of
his crew. He further acknowledged that a
crew leader was responsible for the on-the-job training and instruction of all
crew members regarding their job functions and work policies. Finally, he conceded that the crew leader was
expected to lead by example and make every effort to help crewmembers achieve
productivity as often as possible, while thoroughly completing every job safely
and professionally. None of these admissions establish Lohman’s
supervisory status where Respondent never, until the day that it finally
trumped up evidence in an attempt to justify his discharge, held him accountable
for the actions of anybody on his crew.
Equally important, Respondent never offered any evidence, other than the
evidence that I have rejected, about the authority Lohman actually exercised,
nor any evidence on his independent judgment.
Instead,
Lohman’s job appears rather routine and repetitive. His laborer normally decided what he wanted
to do and performed it without checking by Lohman, unless the laborer was
inexperienced. He and the laborer worked
until the job was finished, it was too dark, or he and his crew were too tired
to work anymore. When it rained, Lohman
called Nanney. If the laborer did not want to work overtime, Lohman called
Nanney. Every night, before leaving the
jobsite, Lohman called Nanney. I conclude
that Lohman is not a 2(11) supervisor.
Employed
for 2-1/2 months, Matt Sutton spent only some of his time as a crew leader on a
pulling crew on the cable/telecommunications
side of Respondent’s business, installing fiber optic cable into pipe already
in the ground. Eighty
percent of Sutton’s latter portion of his employment was spent working on one
particular job, a World Com/MCI job, supervised by Project Manager Sellers, who
was at that jobsite daily, from 8 or 9 a.m. until the employees left in the
evening. There was nothing on that job
that was not supervised by Sellers, with whom Sutton met each morning, who told
Sutton what equipment to use; assigned other employees to work with Sutton,
without input from Sutton; determined the priority of work; told Sutton where
to start each day; shuffled employees around during the day; and determined
when employees went home. In addition,
Sutton worked about 80 percent of his time on this World Com/MCI job and other
jobs with John Langford, a backhoe operator, who was the crew leader. So, for that portion of his work, Sutton was
not even a crew leader.
For the other
relatively minor portion of his employment, at which Sellers was not present
and Langford was not the crew leader, Sutton mostly “proofed duct,” which is
the process of checking the plastic piping for obstructions and installing a
pull wire, accomplished by using an air compressor to blow rope, to which a
heavy object, called a rocket, is attached, through the pipe from one hole in
the pipe to the next, where a laborer is stationed and radios Sutton to stop
the compressor when he sees the rocket.
The laborer pulls the rocket out of the hole and wraps the rope around
an assist wheel which is used later when the wire is pulled through the pipe. The crew then moves one hole down the pipe
and repeats the process, hole-by-hole, each time the crew proofs duct. Sutton’s
decisions as a crew leader are to decide where to set up the reel of rope and
to tell the laborer which hole to go to.
There is no independent judgment required in telling a laborer which
hole to go to where the rope is always blown to the next hole down. Lunch was taken at a good stopping point in
the work. Sellers decided whether to
send employees home when it was raining, and Sutton never left work for the day
before calling Sellers, whom he also called if anything unusual happened, such
as an obstruction in the pipe.
In sum, the
vast majority of Sutton’s time was spent on a crew on which he was not the crew
leader. During the much smaller period
that he was, he was closely supervised by Sellers and, in any event, engaged in
the most routine and repetitive work that required no independent
judgment. There is no evidence that
Sutton had any authority to exercise independent judgment in directing the work
of anybody. I conclude that Sutton was
not a 2(11) supervisor.
Respondent
contends that Farris had the authority to recommend effectively the removal of
one of his crew members from his crew.
The facts are that Farris was dissatisfied with operator Jason Politte and
complained to Robinson that Politte was lazy.
Farris asked for a different operator, to which Robinson replied, “Not
at the moment,” adding, “That’s what everybody says about Jason.” About 2 weeks later, Politte was taken off
his crew. Farris’s complaint was based
on the fact that, when he was digging locates, Politte did not like to work
when he was with a group of people; he would rather talk, leaving Farris to do
the digging. Farris complained
“[b]ecause he wasn’t being a team player.”
Because Robinson
did not testify, it is impossible to gauge whether he removed Politte from
Farris’s crew because he agreed with Farris’s recommendation, or whether
Robinson already knew of Politte’s proclivity to slack off from work, as
evidenced by his acknowledgement that others had complained about Politte, or
whether Robinson moved him for a reason entirely unrelated to Farris’s
complaint. Thus, it is unclear whether
Farris’ comment was an effective recommendation. In order to confer supervisory status, “the
exercise of disciplinary authority must lead to personnel action, without the
independent investigation or review of other management personnel.” Franklin Home Health Agency, 337 NLRB
826, 830 (2002). Besides, Robinson
agreed that he wanted crews to get along with one another, and this was not
discipline that was being recommended but a shift of one person because of a personality
conflict. Finally, this was merely a
complaint by one employee about another, dealing with the compatibility of employees
who worked together. Complaints about
compatibility do not prove supervisory status.
Armstrong Machine Co., 343 NLRB 1149, 1150; Brown & Root,
Inc., supra at 21.
Respondent
contends that Shipp had the authority and exercised it to request that Politte,
then a member of his crew, be removed and that Nanney removed him. What Shipp actually complained about to
Nanney was that he had told another laborer to “to put the carrot [phonetic]
inside the pipe, and pull the pipe out that we needed for that job.” Politte told that laborer not to do it,
because Shipp did not have that authority; Politte was there longer. Shipp told Nanney: “I can’t deal with him
anymore.” This statement was merely a
complaint and not a recommendation of anything.
Assuming, however, that it could be construed as a recommendation,
Nanney did not testify about this incident; and thus the record is barren of
proof that he understood what Shipp was stating and that he adopted Shipp’s
recommendation, without independent investigation, in removing Politte from
Shipp’s crew. Respondent’s only specific
contention about Nathan Schaffer was that: “He was aware of his authority as he
testified to the fact that another crew leader had a laborer taken off his crew
for failing to follow directions.” Although
Schaffer recalled that the laborer’s name was Puhl, it is likely that it was
Politte. In any event, once again,
Nanney did not testify; and Schaffer’s hearsay recollection is
meaningless. I conclude that neither
Shipp nor Schaffer are 2(11) supervisors.
Having found
that all the persons who were discharged by Respondent are employees and not
supervisors, I turn now to the discharges, each of which are alleged to have
violated Section 8(a)(3). On Monday,
March 31, 2 days after the first union meeting, Eirvin held a meeting of crew
leaders to whom he stated that all boring crews should drill 1000 feet per week
and threatened that, if they did not, he would start “getting rid of them”
after a month. In the first few days of
April, Mike Stankewitz, one of Respondent’s project managers, asked Eirvin’s
brother, Ed, another project manager, if he had heard that Respondent was going
to discharge a couple of employees that had started “that union shit in St.
Louis.” Ed denied hearing that; he had
not talked to his brother. On April 14,
Nanney threatened Hanephin that, if things kept going the way they were, there
was going to be a bunch of people gone from the Ameren UE side in the next few
weeks.
Respondent did
not wait as long as Nanney threatened and as Robinson suspected, when he warned
Farris just after Eirvin’s April 15 speech: “Just watch your ass, and don’t
give Mr. Happy [Eirvin’s nickname] a reason.”
On the afternoon of April 15, within hours of delivering his diatribe
against the Union and only 2 weeks after threatening to discharge crew leaders
a month later, Respondent terminated for poor production Farris and Schaffer, two
locators, and Edgar Schreit, a boring machine
operator, all of whom had attended the Union’s first meeting on March 29. At the second union meeting, on April 8,
Farris and Schreit sat at the head table, Farris helping employees complete
authorization cards and collecting completed cards, Schreit taking attendance
and answering questions of employees. As
noted above, Eirvin had knowledge of exactly what was happening at that meeting
and had to have knowledge of who had attended and what each did. In fact, in his earlier speech, he
specifically directed his remarks to “those of you guys that are just so
adamant about being union.” Although
Eirvin’s own words evidence his complete knowledge of the union drive, the
General Counsel also relies on the “small plant doctrine,” which permits the
inference of knowledge of union activity from the fact that there are 59
employees in this unit. I agree. Breuer Electric Mfg. Co., 184 NLRB
190, 194 (1970); NLRB v. Joseph Antell, Inc., 358 F.2d 880, 882 (1st
Cir. 1966), enforcing Malone Knitting Co., 152 NLRB 643 (1965). Many employees, including Schreit and Farris,
were talking with their fellow employees in an effort to get more of them to
attend the union meetings. While
Schaffer may not have actively engaged in soliciting employee support, he nonetheless
attended union meetings before April 15 and signed a union authorization card.
Although
Respondent made much of the fact that various locators were responsible for
production and thus were supervisors, Respondent discharged Schreit for lack of
production, in spite of the fact that he was a boring operator and not responsible
for his crew’s production. Indeed, I
have found above, in partial agreement with Respondent, that the bore could go
no faster than the locator was able to locate, and in that sense the locator
was responsible for the production of the crew.
Respondent offered no explanation for its discharge of Schreit, other
than Eirvin’s testimony that poor production is the crew leader’s
responsibility “unless it is the operator’s fault,” an explanation which is so
general as to be meaningless.
What makes
Respondent’s defense worse is Eirvin’s claim, on examination by the counsel for
the General Counsel, that Schreit was one of the “three individuals we’d change
people around on to give them the better people to see if they’d come up to
par.” Eirvin claimed that Respondent swapped
Schreit “around with several other people and he wasn’t getting it.” Very simply, that was not so. Even Robinson did not agree with Eirvin,
denying that he obtained any help for Schreit or even considered doing so (“He
had time—they had time, as crews, to get their production up.”) Rather, Respondent assigned Schaffer, whom it
subsequently discharged for poor production, when Schaffer was promoted from
operator to locator on about February 10; and, as a new locator, Schaffer’s
regular operator was Schreit, except for 1 day, when Schreit was the operator
for Shipp, who had even worse production that Schaffer and was also fired later
for low production. Finally, although Robinson
wrote on Schreit’s personnel appraisal the word “production,” he never discussed
that with Schreit, whom he otherwise graded as a good operator, an opinion that
he confirmed in his testimony.
Having found
that Respondent’s explanation for this one of three discharges on April 15 was
false and concocted, I turn to the other two discharges, which I find to be
pretextual. First, I rely on their
timing, the same day as Eirvin’s antiunion tirade. Second, I rely on my earlier credibility
findings and refuse to believe Eirvin and Respondent’s supervisors. In fact,
regarding Schaffer, Eirvin supplied the same kind of lies that he did in
attempting to justify the discharge of Schreit, claiming that he attempted to
help Schaffer, a brand new locator, by placing weekly as many as two or three
of the best operators “to try to bring him back up to speed . . . and he still
didn’t cut it.” Eirvin named his better
operators as David Farris, Clifford Krause, Steve Gordon, and Jerry Benetatos;
yet none of them, including Krause, whom he specifically named after having
worked with Schaffer, spent a full week or any time with Schaffer sometime
after Eirvin decided that Schaffer was not producing. Robinson, in addition to failing to
corroborate much of Eirvin’s testimony, knew of no plan to help Schaffer locate
better and offered Schaffer no help to improve his production.
Similarly,
Eirvin’s claim that he put Farris “with several different people [a]nd it never
did click” was false. It is true that
Farris worked with Krause, but he did so very early in his employment, before
Farris’ “production problem” allegedly came to Respondent’s attention. But later, from about the middle of February,
Farris was assigned Politte, who was a legitimate problem employee, and Bartle,
neither of whom were among Respondent’s best operators. Thus, Robinson’s claim that “[w]e tried to
move people around and get [Farris’] production up” cannot be sustained.
The General
Counsel’s final argument to demonstrate Respondent’s discrimination against
Farris and Schaffer rests on disparity, that Respondent retained Shipp, another
locator, whose union activities were not as significant as Farris’ and
Schaffer’s. His production was lower,
averaging 138 feet per day, against the average of 158 feet for Schaffer and
151 feet for Farris. Under Wright Line, 251 NLRB 1083 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982); approved in NLRB v. Transportation Management Corp.,
462 U.S. 393 (1983), the General Counsel has presented a prima facie case of
8(a)(3) discrimination. Respondent knew
of the union activities of all three employees, it was intensely opposed to the
Under Wright Line; Naomi Knitting Plant, 328 NLRB 1279, 1281 (1999); and Manno Electric, 321 NLRB 278, 280 fn. 12
(1996), Respondent may overcome the General Counsel’s prima facie case by
demonstrating that it would have taken the same action, even in the absence of
the union activities of the three discharged employees. It did not do so. I note particularly Eirvin’s lack of any
credible reason that he discharged Farris and Schaffer, rather than Shipp. Furthermore, Respondent’s explanation of the
process of terminating the three employees was unpersuasive. Although testifying that he met with Eirvin
to discuss the terminations, Robinson could not recall how many months of
production sheets they had at this meeting, how long the conversation lasted,
or if time and material work, for which Respondent credits employees with three
times their footage for boring in rock or hand-trenching, was part of the
discussion. Eirvin and Robinson could
not agree on when they noticed that Farris’ production became so poor, and, although
the evaluations of many of the employees noted problems with production, the
problem never became so important that it was ever actually discussed with
Farris and Schaffer, no less a warning that they risked termination. Indeed, at one point, when Robinson was asked
the reason that he did not reassign Farris to be an operator, Robinson said:
“He was let go for low production. If he
had a bad attitude about something, he would have a bad attitude anywhere he
was at.” That inadvertent switch from
“low production” to “bad attitude” revealed Robinson’s real concern about
Farris’ union activities. James
Julian Inc. of
The lack of
clarity of Robinson’s testimony, together with the credibility problems
previously discussed, persuades me that this testimony was a fiction and that a
cogent discussion of the work failures of these three employees never
occurred. Respondent had no history of
terminating operators or locators for poor production, and Eirvin’s claim that
“multiple” locators had been fired for poor production was false. Even Nanney and Robinson disagreed with
Eirvin, and Respondent produced no documents to support Eirvin’s testimony
about “multiple” locators. In addition,
Eirvin admitted that Respondent has reassigned poorly performing locators to
other positions rather than terminating them, but failed to justify his refusal
to treat Schaffer and Farris similarly.
I conclude that Respondent’s discharge of these three employees violated
Section 8(a)(3) and (1) of the Act.7 D & F Industries, 339 NLRB 618,
622 (2003).
Hanephin
attended the
Whether Eirvin
“assumed” or knew, and I find that he knew, on April 25, Hanephin gave him the
perfect excuse to get rid of him. As I
have found above, Eirvin seized on the fact that Hanephin brought conduit out
of the ground on the nontransformer side of a utility pole, fabricated a
document to support Hanephin’s discharge, and repeatedly testified falsely at
the hearing. That is a classic case of a
pretextual discharge and needs nothing more to prove a violation of Section
8(a)(3) and (1) of the Act. In addition,
Eirvin, knowing, according to his own admission, of Hanephin’s “attitude,”
assumed that no one of his employees would commit the kind of mistake that
Hanephin did, unless he did it as a result of “treason.” That kind of mindset is the epitome of
antiunion bias and prejudice.
The General
Counsel makes a number of other arguments to support the finding of a
violation. Hanephin, a 2-1/2-year employee
with an impeccable reputation (according to his February 14 evaluation: “Rodney
Works Hard Every Day Finds A Way To Get The Job Done Right The 1st Time &
In A Timely Manner. He Makes Good
Decisions Without Being Prompted.”), testified that he had placed conduit bends
near a telephone pole 100–150 times and, when Nanney was his supervisor, he sometimes
told him that he wanted the bend on a specific side of the pole and, other
times, there would be paint clearly indicating where the bend was to be
placed. In this instance, Hanephin
believed that the red paint on the other side of the pole from where he put the
bend signified an existing electrical utility, which he erroneously thought was
a little bit off on their mark. He
explained that there was no other locate mark near that pole so he figured that
was for the electric wire running up the pole.
Respondent
issued no written document detailing the place for the wire on a pole and never
told its employees at meetings or otherwise that they always had to run the
wire on the transformer side of the pole.
Lohman testified that there was no industry standard as to the meaning
of red paint on a utility pole, and no one was called by Respondent to refute
that testimony. Hanephin testified that
he placed the conduit to save time and money and less hand digging, because the
wire was left by the boring crew sticking out of the ground about 4 feet from
that side of the pole (the opposite side of the pole from the paint and
transformer above), and denied that he had made this mistake purposefully, as
an act of sabotage. I believe that his
denial was truthful and sincere. All the
credible evidence (and that excludes Eirvin’s, the only testimony to the
contrary) indicates that Hanephin was never told that the conduit was to be
brought out of the ground and up the pole on the transformer side of the
telephone pole.
Despite
Eirvin’s claim that Hanephin was the only employee to have brought a 90-degree
bend out of the ground on the wrong side of a pole, Nanney admitted having done
so and not being terminated. Pour
testified that Hanephin’s mistake was not the first time one of Respondent’s
employees had put a bend on the wrong side of the pole. Lohman testified he put a 90-degree bend on
what turned out to be the wrong side of a pole at least 5 times without
discipline; and, at least 10 times, he also moved conduit that had been put on
the wrong side of the pole by others. On
other occasions, employees placed the conduit too close or too far away from
the pole or bored them too deep or too shallow, all of which had to be corrected;
and no employee was disciplined. Nor
were employees discharged for jack hammering through a parking garage, tearing
the awning off a McDonald’s restaurant, damaging a golf course, or committing
mistakes that cost Respondent thousands of dollars.
The General
Counsel made a more than ample prima facie case under Wright Line, and
Respondent made no credible case that, but for Hanephin’s union activities, it
would have treated his mistake in any manner different from the mistakes of its
other employees, whom it did not discipline.
The day before Hanephin was fired, he was called into Eirvin’s office,
where he explained what he had done.
Eirvin said that this was the first time he had ever had him in the
office so he did not want to fire him, but noted “just consider yourself lucky
you are not fired with these buttons and bumper stickers and a magic list floating
around.” Eirvin felt that Hanephin had a
bad attitude because of “all this union activity,” so that Eirvin turned Hanephin’s
mistake into an act of “sabotage,” showing how deeply affected Eirvin was by
the union organizing drive. I infer from
the falsity of Eirvin’s testimony about Hanephin’s discharge that there is
another unlawful reason for the discharge, the source of Hanephin’s “bad attitude,”
union activities. Shattuck Denn
Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th
Cir. 1966). I conclude that Respondent
violated Section 8(a)(3) and (1) of the Act by discharging Hanephin.
On the same day that Eirvin fired
Hanephin, Friday, April 25, Sellers and Respondent’s Safety Director Mike
McElligott met with pulling crew leader, Sutton, and his crew, Ryan Adams,
Clarence Williams, Rocky Lucas, and John Langford. Sellers said that the work in
The three who
were terminated supported the
At the end of
his employment, Sutton worked primarily on a large MCI job and was aware that
the job was about to end. On April 17 or
18, he asked Sellers what he would do when the MCI job ended. Sellers said that the crew was to go to
The General
Counsel has proved a prima facie case under Wright Line. The three who were terminated were union adherents:
the two who were not terminated were not union supporters. Sutton attended all the Union’s meetings; he
talked to the employees on his crew about the Union; he signed an authorization
card; he wore a “Union Yes” pin on his hat at work in the presence of Eirvin,
Nanney, Robinson, and Sellers; and his name was on the list of union supporters
and request for recognition that various employees delivered to
Respondent. On April 23, 2 days before
his discharge, Sutton gave Sellers a copy of the Union’s request for
recognition, which Sellers refused to accept and which Sutton left face-up on
Sellers’ desk. A promise had been made
to Sutton that he would not be transferred but would continue to be employed by
Respondent at the same place. Sellers
had committed that the two other union adherents would be transferred to
another job in
Respondent did
not overcome the General Counsel’s prima facie case. In particular, Sellers never testified about
any lack of work for Sutton or the reason that he did not find work for him, as
he had promised earlier. There still
remained cleanup and restoration work on the MCI job. There was no testimony that Clarence Williams
and Adams, both laborers, were not qualified to do the concrete work. I do not believe Eirvin’s testimony to the
contrary, because a laborer hired on April 24 had absolutely no concrete
experience. Besides, the evidence was
overwhelming that, of all the employees for whom Respondent had need, it
constantly needed good laborers. In fact, Respondent rehired Williams and Adams on May 27 and June 2, respectively. I conclude that these three discharges violated
Section 8(a)(3) and (1) of the Act.
I have previously
discussed Respondent’s blatant and unconscionable fabrications of customer
complaints to support the discharge of Lohman, a known union adherent, on April
28.9 Those fabrications came specifically from Martychenko and Robinson, who must have been following Eirvin’s
orders. The customers whom the latter
two identified as having made complaints denied that they had done so. They, unlike Respondent’s representatives,
were not biased and prejudiced and had no reason to lie. I credit them. Even Respondent’s alleged documentation was
faulty: it tried to blame Lohman for jobs that he had not completed or had no
part in the alleged faulty restoration work.
Added to that is Robinson’s questionable claim that Respondent had been
receiving customer complaints about Lohman’s restoration work for 6 months, the
number and dates of which he was unsure and the written record of which was
absent. Indicative of the falseness of
his testimony was the fact that his February 14 evaluation of Lohman not only
omitted mention of all these complaints but also praised Lohman for his work
(he “takes pride in completed jobs”).
Lohman testified that no one had discussed any customer complaints with
him, which is consistent with Respondent’s lack of customer complaints (other
than fabricated); and I believe him.
The General
Counsel’s prima facie case under Wright Line was overwhelming. To the contrary, Respondent made no showing
that it would have terminated Lohman absent his union activities. Before April, Respondent had always permitted
Lohman to repair whatever the customer had complained about.10
Robinson could testify only that he did not know the reason that Lohman
was not permitted to make the new repairs, as well, which, as found above, were
no more than Respondent’s contrivances.
Eirvin’s insistence that Respondent had a history of terminating
employees for poor restoration was false. Both Robinson and Nanney contradicted
him, and Respondent, despite having an opportunity to do so, introduced no
documentary proof to support Eirvin.
Another employee, Doug Kutter, left his job in much worse condition than
Lohman was accused of, albeit falsely, and was only warned. For all these reasons, I conclude that Respondent
violated Section 8(a)(3) and (1) of the Act.
From early
December, Adam Williams had been the crew leader of a two-man crew, the other
member being laborer Steve Mack, performing open cut work. After April 15, somewhere about April 17–24,
Bridges was put on the crew. On
Thursday, May 8, Robinson and McElligott met with the three employees.11
Robinson told them that the open cut work in St. Louis had dried up and
gave them the choice of going to work, starting Monday, in Florida, which would
be a temporary assignment on which they would hand dig, or being laid off,
which, in light of all the facts, meant “terminated.” The employees would have to find their own
means of transportation (when transferring to Florida, Ed White’s crew had been
permitted to drive a company truck); motel expenses would be paid; the
employees would be paid an extra dollar per hour, as was usual for out-of-town
work; but they would not be paid for their time driving to Florida, which was
not Respondent’s usual practice. Bridges
declined the assignment and was terminated on May 13.
Mack and
Williams agreed to go and were given the telephone number of the project
manager in
Respondent
knew that Bridges, Williams, and Mack were union supporters. Eirvin so admitted; except for Mack, Robinson
did, too. Employee Harold Armstrong was
interrogated by Eirvin on about April 15 and identified both Bridges and Williams
as being at the April 7 union meeting.
On April 16, Bridges presented the employees’ request for union
recognition to Eirvin, which he rejected, stating that he had told the employees
the day before that he would not recognize the
The reason for
their layoff is suspect. First, I find
it difficult to believe that open cut work simply disappeared, as Respondent
told the employees. The employees were
in the middle of their job, with just a bit more work to finish (it began to
rain midday, so they could not continue to work), on the very day that they
were given the transfer option. Other
employees had to be sent back to that job to finish it, which the three employees
could have finished. Furthermore, they
had been working regular overtime; and, within several weeks prior to their
transfer option, Respondent had contracted out a substantial amount of open cut
work. It is undisputed that the soil in
So there was
open cut work in
Second,
Respondent’s offer was suspect. Bridges
was first employed by Respondent on January 13, and expressly told Nanney
during his interview that he had been traveling for 6 years and would not be
willing to travel outside of Missouri.
Nanney represented to him that Respondent had “a vast amount of open cut
work” and that Respondent had enough work in
Third, even
Respondent admitted that Mack was one of its best laborers. He was a better performing employee than some
(for example, Ryan Lamb) who were retained.
Respondent traditionally had trouble retaining its laborers, who had a
substantial turnover. There is no reason
that Respondent would have wanted to rid itself of one of the few laborers who
performed his work well and diligently and for whom Respondent had a high
regard. In fact, during his interview in
November 2002, Mack was told not to expect any lay offs unless it was raining
or snowing. Furthermore, even if the
open cut work had dried up, as Robinson told the employees, Mack was experienced
in digging locates and performing restoration and concrete work; and because
Respondent had a practice of switching employees from one side of its business
to another to fill its needs, Mack, but for his union activities, was certainly
in demand. For example, Respondent had
an opening for a laborer on a concrete crew on May 8 and could have retained
Mack in that position. In addition,
after Mack was terminated, Respondent hired numerous laborers, but failed to
rehire Mack or call him back.
Fourth, there
are documents that reveal that something in this transfer-discharge was
amiss. For example, in the three employees’
personnel folders was a termination memo, dated May 7, that McElligott wrote
regarding the meeting that day, captioned “Termination due to refusal to
relocate and due to lack of work.” It
stated: “All employees were undecided for relocation at this time. So a decision was made as of [sic] for lack
of work in the
Fifth,
Respondent had never laid off an employee on the Ameren UE side of the
business. Respondent had never forced
transfers to
The burden
then shifts to Respondent to show that it would have transferred these three
employees even in the absence of their union activities. Respondent did not meet that burden.
Respondent did not demonstrate the necessity of transferring these employees to
In so
concluding, I reject Respondent’s contention that the three employees conspired
to give false testimony in this proceeding, that their testimony should be disregarded,
and that they should be disqualified from being granted any remedy. The counsel for the General Counsel asked
Mack whether he had ever talked to Bridges and Williams about making up some
reason to give at the hearing in this proceeding that he or they did not go to
Respondent
discharged Shipp on September 16 for low production. There is no question that his production was
low at the time of the discharges of Farris, Schreit, and Schaffer; and I have
already used his low production, which was lower than Farris’ and Schaffer’s,
to support my finding that Respondent violated Section 8(a)(3) when it
discharged the two higher-producing employees.
My finding that he had low production prior to April 15 does not mean
that he, anymore than Farris and Schaffer, should have been discharged. It means only that Respondent’s justification
for those discharges was false. The
issue now becomes, as of September 16, whether Respondent was again motivated
by Shipp’s work performance, rather than his union activities.
If Respondent
had not known of Shipp’s union activities on April 15, it certainly learned of
them, despite Eirvin’s incredible denial that he heard Shipp’s name mentioned,
during the first 2 weeks of the hearing in this proceeding in August and the
first week of September. Shipp began to
wear a “Union Yes” pin at work only on April 16, the day after the first three
discharges; and an argument could be made, as the General Counsel impliedly
does, that Respondent discharged Shipp to justify the discharge of Farris,
Schreit, and Schaffer, knowing that the General Counsel was relying on its
failure to discharge Shipp. In any
event, there is more than ample evidence of Respondent’s knowledge of Shipp’s
union activities by September 16, as well as its union animus.
I turn then to
Respondent’s motivation. McElligott, the
safety director, was the one who actually fired Shipp. He told Shipp that he was told by upper
management to release him that day for poor production and bad work
habits. McElligott apparently knew
nothing more of Shipp’s work. He did not
testify about Shipp, at all. Nanney,
Shipp’s supervisor, said that he was not the one who made the decision to fire
Shipp. Eirvin testified that he
terminated Shipp because of “low production and being real low in production
and not doing any better and not improving.”
That is essentially the same explanation that he used in justifying the
discharges of Farris and Schaffer, which I have discredited; and I do not
believe the current one, either, on the basis of Eirvin’s general lack of
credibility. I, therefore, conclude that
his reason was false and that there was an unlawful reason that Eirvin was
trying to conceal. That conclusion is
consistent with well-settled law that, when the asserted reason for an action
fails to withstand scrutiny, the Board may infer that there is another
reason—an unlawful one which the employer seeks to conceal—for the
discipline. Shattuck Denn Mining Corp., 362 F.2d 466, 470 (9th Cir. 1966); Painting Co., 330 NLRB 1000, 1001 fn. 8
(2000).
My conclusion
is independently supported here by Eirvin’s untruthful testimony, as shown by
the lack of consistency between his testimony and that of Nanney and Martychenko,
as well as the lack of credible corroboration of his testimony. The “not doing any better and not improving”
rationale for the discharge got Eirvin into trouble. As he did in justifying the discharges of
Farris and Schaffer, his thesis was that, once he was told by Nanney and Martychenko
in July of Shipp’s need to improve his “super low” production (conversations
that neither Nanney nor Martychenko corroborated), he told them, “Bring him up
to speed, and put some people with him.”
Contrary to Eirvin’s testimony that Shipp was assigned laborers to help
with the digs and speed them up, Respondent’s records reveal that a laborer was
assigned for only 2 days, September 3 and 4.
Contrary to Eirvin’s testimony that Shipp was given three quality
operators to improve his production, he could recall none but Benetatos, whom
Eirvin had earlier identified as one of his better operators and who started
with Shipp on July 24. What Eirvin did
not say was that, when Benetatos started with Shipp, he, according to Nanney,
whose objectivity is suspect, may have had only a few days’ experience
operating the Vermeer 1620 boring machine, which was being used on Shipp’s assignments. Shipp had to teach Benetatos how to operate
his machine.
When asked the
reason that a more experienced operator had not been assigned to Shipp, Nanney
answered that he assigned Benetatos more to motivate Shipp, rather than to give
him an operator of more experience, and that he talked with Shipp about how
Benetatos was doing, and Shipp replied that he was doing fine, so he did not
think that there was “a big issue.” One
would have thought that, instead of asking Shipp, the allegedly poor producer,
about how the fine operator was doing, Nanney would have asked Benetatos, the
“better” operator, whether Shipp was more motivated. Singularly curious about Respondent’s whole
story is the fact that Robinson evaluated Shipp in February and found him
“[m]otivated,” that he “tries hard,” and that he was a “Good Accurate
Locator.” While the evaluation also
indicated that Shipp needed to improve his production, Robinson appeared to
write that on many of his evaluations and otherwise did not discuss production
with the employees, particularly Shipp, during his evaluations.
In fact,
Respondent never warned Shipp about his production or told him that Benetatos
had been assigned to him to improve his production. Nanney testified that he knew 2 weeks before
Shipp’s termination that Shipp was not improving, but he never gave Shipp any
kind of warning. Not only that: he did
not go even then to Eirvin to recommend Shipp’s discharge. Instead, he
waited. “I think I am pretty fair, and I
was just trying to hang in there with him.”
But, at some point, according to Nanney, he either went to Eirvin’s
office, or Eirvin called him into the office, and Eirvin “had all of the
numbers there, and it was right there on the paper. It was low.”
When asked what the documents were, Nanney quickly retracted, testifying
that he did not know that he had any.
“[W]e were just discussing the low production.” Eirvin, however, originally claimed that he
did not speak to anybody before deciding to terminate Shipp; later, he
testified that he did. In addition,
Eirvin originally testified that he reviewed Shipp’s weekly production reports
and a spreadsheet that Martychenko had created; then he denied doing so.
Even as to
Shipp’s low production, Respondent’s case was unconvincing; and it seemed to me
that Eirvin was making it up as he testified.
Respondent keeps records of the footage that each crew produces
daily. But not all footage is equal, and
certainly not for billing purposes. For
example, Respondent charges a per-foot price for
boring based on the thickness of the conduit and the type of soil. Respondent has a minimum requirement of 150
feet bored and on jobs less than 150 feet charges the customer the
difference. Where a boring crew bores
through rock, Respondent charges three times the normal boring price and
credits its employees with three times their footage for boring in rock or
hand-trenching. Respondent also charges
a flat high hourly rate for time and material work, which is crew work other
than boring and which, Eirvin testified, “is also a factor of production.” Yet, Eirvin’s testimony made it unclear that
he considered Shipp’s time and material work, or his days off work for
personal reasons, or his assignment to
restoration work.
The lying, the
change of testimony, and the lack of credible corroboration persuade me that
the General Counsel has proved a prima facie case. Respondent did not overcome it by showing
that it would have terminated Shipp but for his union activities. Respondent has not shown that it ever
discharged a locator for poor production other than the discriminatees in this
proceeding. In addition, Eirvin
testified that, if Shipp had bored 570 feet per week, he would not have been
terminated. However, the counsel for the
General Counsel’s brief contended that Shipp averaged 570 gross feet per week
during the 7 weeks before he was fired.
Respondent did not contest those figures. I conclude that Respondent violated Section
8(a)(3) and (1) of the Act by discharging Shipp.
The final
discharge occurred on November 26.
Eirvin terminated Wayne Schaffer (
Termination
Due to Racial Harassment; Amplified & Displayed on Rear of Personal Vehicle
in St. Louis Parking Area; Having To Subject others to view same as above
mentioned. Does Not Constitute Freedom Of Speech Act. [Photos available.]
Respondent
stipulated that
But somebody
may have made a complaint about a bumper sticker at some time.12
Courtney West, a boring machine operator, had a “Heritage Not Hate” bumper
sticker on his car that included a Confederate flag since he was first hired on
June 15. He was neither discharged nor
threatened with discipline. Instead, 6
months later, Ray Door, a project manager, called his son, Jeff, another boring
machine operator, about mid-November, and asked if West had any bumper stickers
on his car, specifically a Confederate bumper sticker. Jeff answered that he had; and Ray said that
Eirvin had told him that someone was complaining about that bumper sticker and
that Eirvin said that West needed to take it off his car.
That evening,
Jeff told Wayne and West that Eirvin wanted West to remove the Confederate
bumper sticker; and the three were upset with what Eirvin had said,
Yet, only
Wayne, who attended all the union meetings, including the very first, was
discharged. The other two were not even
reprimanded and removed their Confederate bumper stickers only after Schaffer
was terminated. What distinguishes
The disparate
treatment of
Respondent
failed to demonstrate, as it had to do under Wright Line, that it would
have discharged
The Request for a
Bargaining Order
As noted above, the General Counsel
requests a bargaining order, which requires an examination of the
Centralized
control of some labor relations policies and procedures is not inconsistent
with a finding that there exists sufficient local autonomy to support the
single location presumption. D &
L Transportation, 324 NLRB 160, 161 (1997).
While the record reflects that Eirvin had overall responsibility for
Respondent’s three offices, that McElligott traveled among the facilities, and
that Respondent’s handbook applied to all employees (albeit it was not distributed
to all employees), there is also evidence of local autonomy. Among the facts that demonstrate that there
is “sufficient local autonomy to support the single location presumption,” New
Britain Transportation Co., 330 NLRB 397, 398 (1999); Rental Uniform
Service, 330 NLRB 334, 335 (1999); local management at each facility is in
charge of hiring, overtime, vacations, and leaves; job vacancies are not posted
at other facilities; employees do not travel to other facilities for training;
and the project managers at the three facilities do not participate in
management meetings with each other. In
addition, the locations of the
The parties
stipulated at the hearing that, if the unit limited only to
All employees
employed by ADB Utility Contractors, Inc. at its
Because I have
found the
The General Counsel and Respondent’s counsel also stipulated that on April
15, the Union obtained valid signed authorization cards from a majority of
employees in the above-described unit authorizing the
Having found
that the
Under Gissel, the Board will issue a
bargaining order, absent an election, in two categories of cases. The first category involves “exceptional
cases” marked by unfair labor practices so “outrageous” and “pervasive” that traditional
remedies cannot erase their coercive effects, thus rendering a fair election
impossible. The second category involves
“less extraordinary cases marked by less pervasive practices which nonetheless
[ ] have a tendency to undermine majority strength and impede the election
processes.” In this second category of
cases, “the possibility of erasing the effects of past practices and of
ensuring a fair election . . . by the use of traditional remedies, though
present, is slight and . . . employee sentiments once expressed [by
authorization] cards would, on balance, be better protected by a bargaining
order.” [Gissel, 395
Within 2-1/2
weeks of the Union’s first meeting on March 29, Eirvin delivered his April 15
speech filled with antiunion rhetoric, and, more critically, unlawful threats
of termination of employees and closure of the facility and of the futility of
selecting the Union as the collective-bargaining representative. He unlawfully solicited employees who supported
the Union to quit and threatened the employees with discipline if they should
wear pins showing their support of the
Eirvin’s
speech also created the impression of surveillance, an impression that was
entirely accurate. His subsequent discharge
of 9 of the 11 employees who attended the March 29 meeting was no
accident. He knew exactly who was there.
Three employees, two of whom were leaders in the organizing efforts, were fired
later on the same day that he gave his speech, threatening the employees with
termination. “The discharge of union adherents
has long been considered by the Board and the courts to be a ‘hallmark’
violation of the Act because of its lasting effect on election
conditions.” Center State Beef &
Veal Co., 330 NLRB 41, 43 (1999);
NLRB v.
Respondent’s
8(a)(1) threats, spoken and written by Eirvin, were made to all the
bargaining-unit employees. The discharges,
all of which had little or no justification and some of which were concocted
with lies and fake documents, continued throughout the year. They directly affected not only the 13 union
adherents in a unit of 59 employees, 22 percent of the bargaining unit, who
were discharged, but the remainder of the unit, which had to be aware that
those who continued to favor the Union were destined to lose their jobs, no
matter that they did nothing else but engage in activity protected by the
Act. That high percentage warrants a
bargaining order, because the possibility of holding a fair election is
minimal.
In fact, word
of the first three discharges was widely disseminated, and Eirvin obtained the
result that he sought. At the April 15
union meeting, after Respondent discharged Farris, Schaffer, and Schreit,
employees expressed concern that they, too, might be terminated; employees
expressed fear that Respondent would close; and two employees were afraid that
they would be fired and refused to sign the request for recognition that many
employees signed that night. That the
threats were made by Eirvin, Respondent’s highest-ranking official, heightened
the significance and impact of Respondent’s message. Aldworth Co., 338 NLRB 137, 149
(2002), enfd. sub nom. Dunkin’ Donuts Mid-Atlantic Distribution Center v.
NLRB, 363 F.3d 437 (D.C. Cir. 2004);
That Shipp and
Wayne Schaffer were discharged during the course of the hearing demonstrates
that the unfair labor practices have continued and not diminished and warrant
the finding that a fair election is not possible. Eirvin wanted all employees
to think that they would lose their jobs if they voted for the
Remedy
Having found
that Respondent has engaged in certain unfair labor practices, I find that it
must be ordered to cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act.
In addition to bargaining with the Union, Respondent, having discriminatorily
discharged employees, must offer them reinstatement, except for Ryan Adams and
Clarence Williams, who have previously been recalled, and make all of the
discharged employees whole for any loss of earnings and other benefits,
computed on a quarterly basis from date of discharge to date of proper offer of
reinstatement, less any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950),
plus interest as computed in New Horizons
for the Retarded, 283 NLRB 1173 (1987).
Because of Respondent’s egregious misconduct, demonstrating a general
disregard for the employees’ fundamental rights, I find it necessary to issue a
broad Order requiring it to cease and desist from infringing in any other
manner on rights guaranteed employees by Section 7 of the Act. Hickmott
Foods, 242 NLRB 1357 (1979).
On these
findings of fact and conclusions of law and on the entire record,14 including my observation of the witnesses
as they testified and my consideration of the briefs and reply briefs filed by
the parties,15 I issue the following
recommended16
ORDER
Respondent ADB Utility Contractors, Inc.,
1. Cease and desist from
(a) Creating
the impression among its employees that their union activities are under
surveillance.
(b) Impliedly
threatening its employees with termination if they select Local 2,
International Brotherhood of Electrical Workers, AFL–CIO (
(c)
Threatening its employees that it is futile to select the
(d)
Threatening or impliedly threatening its employees with closure of its
(e) Soliciting
its employees who support the
(f) Impliedly
threatening its employees with discipline for wearing pins demonstrating
support for the
(g) Impliedly
threatening its employees that selecting the
(h)
Threatening its employees that selecting the
(i)
Threatening to subcontract more work if its employees select the
(j)
Interrogating its employees about their union activities and threatening its
employees with unspecified reprisals because of their union activities.
(k)
Discharging its employees because of their union activities or sympathies and
in order to discourage their membership in the
(l) Refusing
to recognize and bargain with the
(m) In any
other manner interfering with, restraining, or coercing its employees in the
exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action
necessary to effectuate the policies of the Act.
(a) On
request, bargain with the Union as the exclusive representative of its
employees in the following appropriate unit concerning terms and conditions of
employment and, if an understanding is reached, embody the understanding in a
signed agreement:
All employees
employed by ADB Utility Contractors, Inc. at its
(b) Within 14
days from the date of the Board’s Order, offer Jeremy Farris, Edgar Schreit,
Nathan Schaffer, Rodney Hanephin, Matt Sutton, Jason Lohman, Adam Williams, Matt Bridges, Steve Mack,
John Shipp, and Wayne Schaffer full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privileges previously enjoyed.
(c)
Make Jeremy Farris, Edgar Schreit, Nathan Schaffer, Rodney Hanephin, Matt
Sutton, Ryan Adams, Clarence Williams, Jason Lohman, Adam Williams, Matt
Bridges, Steve Mack, John Shipp, and Wayne Schaffer whole for any loss of
earnings and other benefits suffered as a result of the discrimination against
them, in the manner set forth in the remedy section of the Decision.
(d) Within 14
days from the date of the Board’s Order, remove from its files any reference to
the unlawful discharges of Jeremy Farris, Edgar Schreit, Nathan Schaffer,
Rodney Hanephin, Matt Sutton, Ryan Adams, Clarence Williams, Jason Lohman, Adam
Williams, Matt Bridges, Steve Mack, John Shipp, and Wayne Schaffer, and within
3 days thereafter notify these employees in writing that this has been done and
that the discharges will not be used against them in any way.
(e) Preserve
and, within 14 days of a request, or such additional time as the Regional Director
may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records,
timecards, personnel records and reports, and all other records, including an
electronic copy of such records if stored in electronic form, necessary to
analyze the amount of backpay due under the terms of this Order.
(f) Within 14
days after service by the Region, post at its facility in
(g) Within 21
days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region
attesting to the steps that Respondent has taken to comply.
It is further ordered
that the portions of the record that were placed under seal will continue to be
maintained under seal.
Dated,
APPENDIX
Notice To
Employees
Posted
by Order of the
National
Labor Relations Board
An Agency of the
The National Labor Relations
Board has found that we violated Federal labor law and has ordered us to post
and obey this notice.
federal law gives you
the right to
Form, join, or assist a
union
Choose representatives to
bargain with us on your behalf
Act together with other
employees for your benefit and protection
Choose not to engage in any
of these protected activities.
We will not create the impression among our employees
that their union activities are under surveillance.
We will not impliedly threaten our employees with
termination if they select Local 2, International Brotherhood of Electrical
Workers, AFL‑CIO (
We will not threaten our employees that it is futile
to select the
We will not threaten or impliedly threaten our
employees with closure of our
We will not solicit our employees who support the
We will not impliedly threaten our employees with
discipline for wearing pins demonstrating support for the
We will not impliedly threaten our employees that selecting
the
We will not threaten our employees that selecting
the
We will not threaten to subcontract more work if our
employees select the
We will not interrogate our employees about their
union activities and threatening our employees with unspecified reprisals
because of their union activities.
We will not discharge our employees because of their
union activities or sympathies and in order to discourage their membership in
the
We will not refuse to recognize and bargain with the
We will not in any other manner interfere with, restrain,
or coerce our employees in the exercise of the rights guaranteed them by Section
7 of the Act.
We will on request, bargain with the Union as the
exclusive representative of our employees in the following appropriate unit
concerning terms and conditions of employment and, if an understanding is
reached, embody the understanding in a signed agreement:
All employees
employed by ADB Utility Contractors, Inc. at its
We will within 14 days from the date of the
Board’s Order, offer Jeremy Farris, Edgar Schreit, Nathan Schaffer, Rodney
Hanephin, Matt Sutton, Jason Lohman, Adam Williams, Matt Bridges, Steve Mack, John Shipp, and Wayne Schaffer
full reinstatement to their former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.
We will make Jeremy
Farris, Edgar Schreit, Nathan Schaffer, Rodney Hanephin, Matt Sutton, Ryan
Adams, Clarence Williams, Jason Lohman, Adam Williams, Matt Bridges, Steve
Mack, John Shipp, and Wayne Schaffer whole for any loss of earnings and other
benefits suffered as a result of the discrimination against them, with
interest.
We will within 14 days from the date of the
Board’s Order, remove from our files any reference to the unlawful discharges
of Jeremy Farris, Edgar Schreit, Nathan Schaffer, Rodney Hanephin, Matt Sutton,
Ryan Adams, Clarence Williams, Jason Lohman, Adam Williams, Matt Bridges, Steve
Mack, John Shipp, and Wayne Schaffer, and within 3 days thereafter notify these
employees in writing that this has been done and that the discharges will not
be used against them in any way.
ADB Utility
Contractors, Inc.
Paula B. Givens, Esq., for the General Counsel.[1]
Michael
E. Kaemmerer, Esq. and Bryan M.
Kaemmerer, Esq., of
Christopher
N. Grant, Esq., of
SUPPLEMENTAL DECISION
Statement of the Case
Paul Buxbaum, Administrative Law Judge. This case was tried before
Administrative Law Judge Benjamin Schlesinger in
The issues in
this case arose from the Company’s response to an organizing campaign conducted
by the Union at the corporate facility in
The Company
denied the material allegations of the complaint. As the litigation evolved, the Company
eventually asserted that a key aspect of its defense to the charge of unlawfully
discharging employees was a contention that eight of those employees,
characterized as leaders of various work crews, fell within the National Labor
Relations Act’s (the Act) exclusion of coverage based on their supervisory
status. The eight were: Boring Crew Leaders Jeremy Farris, Nathan
Schaffer, and John Shipp; Backhoe Crew Leaders Matt Bridges and Adam Williams;
Restoration Crew Leader Jason Lohman; Cable Crew Leader Matt Sutton; and
Underground Crew Leader Rodney Hanephin.
On May 10, 2005,
Judge Schlesinger issued his decision finding that the Company had engaged in
the unlawful conduct alleged in the various complaints. Based on his conclusion that the misconduct
had been egregious, he recommended issuance of a broad cease-and-desist
order. He also recommended a make-whole
remedy for each of the individuals who had been discharged by the Company. Finally, his order included a requirement
that, on request, the Company bargain with the Union as the exclusive
representative of a unit of employees at the
The Company
filed exceptions to a number of the judge’s findings and conclusions,
particularly his determination that the crew leaders were not excluded from the
Act’s coverage because of supervisory status.
On September 30, 2006, the Board issued an order remanding this
proceeding to permit an assessment of the impact of the Board’s recent trilogy
of decisions addressing a number of issues relating to the statutory definition
of supervisory status.[4] Specifically, the remand order directed
“further consideration in light of Oakwood
Healthcare, Croft Metals, and Golden
Crest” regarding “the meaning of ‘assign,’ ‘responsibly to direct,’ and
‘independent judgment,’ as those terms are used in Section 2(11) of the
Act.” Infra at 895.
The Board’s
remand order contained several other provisions. It granted the parties the opportunity to
file briefs regarding the issues presented in the remand. By contrast, it instructed the judge on
remand to determine whether a reopening of the record to obtain additional
evidence was “warranted.” 348 NLRB at 895. Finally, the Board took note that Judge
Schlesinger had retired. As a result, in
the event he was unavailable, it ordered that the case be reassigned to another
judge.
Pursuant to the
remand order, Deputy Chief Administrative Law Judge C. Richard Miserendino
issued a show cause order directing the parties to submit their positions on
the question of any reopening of the evidentiary record. Once these were received, I was assigned the
case on February 26, 2007.[5]
i. the state of the
evidentiary record
In the show
cause order, Judge Miserendino noted that counsel for the General Counsel and
counsel for the
The parties have
responded to these requirements. In particular,
on December 22, 2006, the Company filed suggestions in support of a reopening
of the record.[6] In its suggestions, it begins by contending
broadly that, prior to the decisions in the Oakwood
trilogy, the labor law community lacked “sufficient and workable guidance” as
to the meaning of the terms, “assign,” “responsibility to direct,” and
“independent judgment.” (Suggestions, p.
1.) As a result, it is claimed that,
Respondent did
not present sufficient evidence on these issues in the prior proceedings
because it did not, and could not, have known what evidence was appropriate to
present regarding these ambiguous terms given the lack of sufficient guidelines
from the Board. [Underlining in the
original.] [Suggestions, p. 1.]
Although counsel
began his argument by making this broad claim, he then proceeded to cite only
one specific area in which he contended that the record was insufficiently developed. While noting that the record contained
evidence as to the crew leaders’ authority to designate employees to specific
jobsites and shifts, he asserted that “there is a gap in the record regarding
whether the crew leaders assigned overall duties to the employee(s) whom they
supervised.” (Suggestions, p. 4.) This is the only alleged specific gap in the
record cited by counsel for the Company.
Beyond this,
counsel for the Company made a generalized equitable argument in support of
reopening of the record, noting that the “slight inconvenience” to the parties
was outweighed by potential prejudice to the Company. (Suggestions, p. 4.) He concluded by observing that, “[i]t is
fundamentally unfair to the Parties for the Board to decide a much-heralded,
long-anticipated decision and not allow those whose cases are pending
before the Board the opportunity to address the same.” (Underlining in the original.) (Suggestions, p. 5.)
Based on these
arguments, counsel for the Company sought reopening for what he characterized
as a limited purpose. He described the
scope of the proposed reopening as,
generally consist[ing] of the testimony
of the eight Crew Leaders, the Operator(s) and Laborer(s) whom they supervised,
and the Superintendent(s) or Project Manager(s) to whom the Crew Leaders reported.
[Suggestions, p. 3.]
In his reply to
the Company’s suggestions, counsel for the
[a]ccordingly, any lack of notice or
guidance stemming from any prior ambiguity, and any guidance the Oakwood decisions now provide, cannot in
itself warrant re-opening the record.
Respondent must show something more.
ADB fails to do this.
(Union’s Reply, p. 3.) Counsel for the
Counsel for the
General Counsel also noted the significance of the Board’s directive that the
record be reopened only if warranted, pointing out that the Board chose not to
reopen the record in any of the three actual Oakwood trilogy cases. In
addition, she made similar arguments to those presented by the
Respondent fails to explain, however, the
specific evidence that such testimony would adduce and why such evidence was
not submitted in the prior proceeding.
[GC Opposition to Reopening, p. 35.]
Having
considered these submissions and having carefully reviewed the extensive record
of proceedings thus far in this litigation, including the transcripts,
documentary exhibits, and numerous briefs filed by the parties, I issued an
order denying the request for reopening.
I indicated that, to minimize further delay in this lengthy case, I
would defer an explanation of my reasoning until the issuance of this
decision. I will now provide that
rationale.
At the outset,
it is important to place this matter in the broad context of labor law. Whether in unfair labor practice proceedings
or representation cases, nothing is more routine in this field of the law than
litigation of the issue of supervisory status.
Years ago, the Board observed that supervisory status “is one of the
most common issues” it faces. As a
result,
the Board’s decisions are replete with
findings of supervisory and nonsupervisory status. A number of factors, principally those set
forth in the definition of supervisor in Section 2(11) of the Act, are
relevant. The difficulty lies in the
assessment of the facts and circumstances in each case in light of the relevant
factors. There are few, if any, hard and
fast rules. Rather, the Board must
decide in each case whether a preponderance of the evidence shows that an
employer has in fact delegated supervisory authority to each employee claimed
to be a supervisor.
McCullough Environmental
Services, 306 NLRB 565
(1992).[7]
The message to practitioners was unmistakable. When litigating supervisory status, whatever
the current state of the precedents, the parties must strive to present a
detailed and comprehensive “assessment of the facts and circumstances in each
case.” Infra at 565.
This analytical
methodology requiring detailed factual exploration existed at the time of the
trial of this case in 2003. Indeed, it
was perhaps more vital during the trial of this case that at any comparable
period of the Board’s history because, shortly before the commencement of this
trial, the Board gave notice to the labor law community that it was planning to
examine this area of jurisprudence.[8] In its conclusory section of Oakwood, the Board took pains to
underscore the continuity of this principle of analysis. It observed that its holdings in the Oakwood cases did not represent any “sea
change in the law,” and reminded the labor law community that it would
“continue to assess each case on its individual merits.” Oakwood
Healthcare, supra at 699.
In my view, it
is has always been clear that the obligation of a proponent of supervisory
status consists in presenting any and all competent evidence that sheds light
on the totality of the functions, duties, and responsibilities of the jobs at
issue. Nothing in Oakwood supports counsel for the Company’s contention that the
Company was unable to ascertain what evidence to present at trial, “because it
did not, and could not, have known what evidence was appropriate to
present.” (Suggestions, p. 1.) To the contrary, the Board has always made it
clear to the labor law community that the requirements of a fact-specific determination
meant that the parties should present a thorough and complete picture of the
job whose status was in contention.[9]
Not only did the
parties in 2003 know that they were charged with presenting any and all
relevant evidence about the actual duties and conditions of employment for the
crew leaders, they proceeded to meet this obligation in a complete and thorough
manner. Each of the crew leaders whose
status was in contention testified in detail about the scope and nature of
their jobs. They were subject to wide-ranging
examination by counsel for all of the parties.
In addition, various company officials, including the Company’s founder
and general manager, Chris Eirvin, Project Manager Rich Robinson, and Project
Manager Ernest Nanney, also provided information and opinions regarding the
crew leaders’ status and functions.[10]
The trial judge
took pains to ensure that the record on this key issue was fully
developed. For example, at one point during
the testimony, counsel for the Company objected to counsel for the General
Counsel’s detailed inquiry regarding Crew Leader Sutton’s work processes. Judge Schlesinger responded by telling
counsel that,
I’ll overrule it. That’s the reason why we’re going to go on
for days. We’ve got to know what the—for
the purposes of the record, we’ve got to know what all these people do.
(Tr. 1564–1565.) I conclude that the record compiled by the
parties and the trial judge does present a clear and comprehensive picture of
the full scope and extent of the crew leaders’ functions, duties, and
responsibilities. As a result, the
record is entirely adequate to permit analysis and determination of their
status under the Act, including application of the teachings contained in the Oakwood cases.[11]
In addition to
examining the state of the existing record, I have considered the equitable
issues raised by counsel for the Company.
He contends that there would be only slight inconvenience to the parties
if the record were to be reopened to permit testimony from all of the crew
leaders, their superiors, and the members of their crews. In fact, what counsel proposes is essentially
the relitigation of the entire matter.
The original trial extended over a 16-day period and clearly represented
a very substantial effort and expense to the private litigants and the General
Counsel. The proposal to recall the
numerous crew leaders and produce yet additional witnesses would greatly
increase the effort and expense of this litigation. I agree with counsel for the
Finally, counsel
for the Company argues that it would be “fundamentally unfair” for the Board to
decide supervisory status issues after Oakwood
without allowing “those whose cases are pending before the Board the opportunity
to address the same.” (Suggestions, p.
5.) There are two difficulties with this
argument. First, “[t]he Board’s usual
practice is to apply new policies and standards retroactively to all pending
cases in whatever stage.” [Internal
quotation marks and citations omitted.] SNE Enterprises, 344 NLRB 673
(2005). The wisdom of that policy is
well illustrated by consideration of the consequences of any alternative. An excellent example of those perils has
arisen in another Oakwood situation, Jackson Hospital Corp., 2007 WL 601570
(Div. of Judges, Feb. 22, 2007). This is
a compliance proceeding involving the determination of the amount of backpay
arising from a 2003 Board Order imposing a make-whole remedy for unlawful activity. In her decision awarding backpay, the administrative
law judge, citing SNE Enterprises,
denied the respondent’s motion to reopen the proceedings to examine the
supervisory status of a discriminatee due to the alleged impact of the Oakwood cases.[14] Liberal grant of such procedural relief would
open a Pandora’s Box of litigation with inequitable consequences for the
affected parties.
Beyond this,
counsel for the Company’s argument fails for the simple reason that the Board
is not proposing to decide the supervisory status issue in this case without
allowing the parties’ to address the impact of Oakwood. To the contrary,
the Board’s remand specifically authorizes the filing of briefs designed to give
it an opportunity to consider the parties’ views as to the impact of Oakwood.
In my opinion, this is the appropriate response to the question of
procedural fairness presented here.
While the standards for creation of an evidentiary record on the issue
of supervisory status have not changed, the analytical criteria have been
refined. Thus, the parties have been afforded
an opportunity to explain how those refinements should be applied to the record
in this case. There is simply nothing
unfair or inequitable about the use of these procedures.
Finally, I have
considered counsel for the General Counsel’s argument that the issue of
reopening of the record must be adjudicated by reference to the Board’s general
procedural rule governing motions to reopen.
That rule, Section 102.48(d)(1), provides that, in extraordinary
circumstances, after the issuance of a Board decision or order, a party may
move to reopen the record. In applying
this rule, the Board has employed relatively stringent criteria. For example, in APL Logistics, Inc., 341 NLRB 994 (2004), it denied reopening where
the issue of agency status “was fully litigated at the hearing, and the Respondent
has not shown why it could not have developed the same facts at that time.”
It is not clear
to me that Section 102.48 applies to this case.
The Board did not cite the rule while directing that the judge on remand
determine whether reopening is warranted.
In deciding this issue, I will not directly apply the rule. Nevertheless, its provisions, and the Board’s
commentaries about those provisions, are illustrative of the considerations
that I should bear in mind. In that
regard, I agree with counsel for the General Counsel that the Board’s
statements in Lockheed Martin Astronautics,
332 NLRB 416 at fn. 2 (2000), are instructive.
In that case, the respondent sought to reopen the proceeding to produce
the testimony of Buehler, the person who had decided to discharge the alleged
discriminatee. In denying the request,
the Board observed:
The Respondent does not specify what
testimony Buehler would give (it says only that he would describe the Respondent’s
practices for dealing with employees who make threats), and it does not claim
that his testimony would require a different result. Nor does the Respondent have any satisfactory
explanation for Buehler’s failure to testify at the hearing; indeed, it admits
that he was available to testify at that time.
The Respondent does not contend—nor could it—that Buehler’s evidence is
newly discovered or has become available only since the close of the
hearing. The Respondent’s contention
that Buehler’s testimony became relevant only after the remand is entirely
meritless. That testimony, through which
the Respondent apparently would attempt to establish the validity of [the]
discharge, was every bit as relevant at the time of the hearing as it would
have been on remand. [Citation omitted.]
By the same token, the testimony being proffered
in support of reopening this case would have been entirely relevant on the
issue of the crew leaders’ authority to make assignments to members of their
crews during the original trial. The
Company chose not to present it then.
There are no reasons in law or equity that would support granting its
belated request to provide it now. For
these reasons, I have denied the request to reopen the record.
ii. evaluation of the evidence
Before
proceeding to the merits of this case, I must address certain remaining
preliminary considerations. It its
remand order, the Board specifically directed that “the administrative law
judge shall prepare a supplemental decision setting forth credibility
resolutions.” ADB Utility Contractors, Inc., supra at 895.
Although recognizing that the original judge may have become
unavailable, the remand order is silent as to the manner in which the successor
judge may determine credibility.
It is
noteworthy, however, that this was the second instance in 2006 when the Board remanded
a group of cases for issuance of supplemental decisions. The earlier set of remands arose from the
Board’s concern with the manner in which the original judge had prepared his
decisions. As a result, the remand order
mandated reassignment of each case to another judge. The Board directed that, “[t]he new judge may
rely on [the former judge’s] demeanor-based credibility determinations unless
they are inconsistent with the weight of the evidence.” CMC Electrical
Construction & Maintenance, Inc., 347 NLRB 273, 297 fn. 4 (2006).[15] Given that the judge on remand was authorized
to adopt the original judge’s demeanor-based credibility resolutions in
circumstances where that judge’s conduct was under scrutiny, I conclude that
the same procedure should certainly apply to this remand where the trial
judge’s conduct is not in question. I will,
therefore, examine the evidentiary record and ascertain whether Judge
Schlesinger’s demeanor-based credibility findings are consistent with the
weight of the evidence. If I find that
they are consistent with that evidence, I will accord them appropriate consideration.
Beyond this, I
recognize that the Board has endorsed the use of a variety of effective tools
and methods to determine credibility in the absence of an opportunity to gauge
the demeanor of the witnesses. In Northridge Knitting Mills, Inc., 223
NLRB 230 (1976), the trial judge’s illness forced his retirement before he
could issue a decision. The Board proceeded
to decide the case, observing that,
we are mindful of our initial
responsibility to determine credibility because of the several sharp conflicts
in the testimony on this record. As the
parties recognize, our task is made more difficult in this respect because we
do not have the opportunity to make our credibility findings on the demeanor of
the witnesses. Nonetheless, it is abundantly
clear that the ultimate choice between conflicting testimony also rests on the
weight of the evidence, established or admitted facts, inherent probabilities,
reasonable inferences drawn from the record, and, in sum, all of the other
variant factors which the trier of fact must consider in resolving
credibility. [Citation omitted.]
Supra at 235. See also Panelrama
Centers, 296 NLRB 711 at fn. 1 (1989).
I will now
proceed to examine the record in this case applying all of the timeworn and
proven methods authorized by the Board.
My purpose will be twofold: to
determine whether Judge Schlesinger’s demeanor-based credibility resolutions
comport with the weight of the evidence and to decide which evidence is
entitled to credence based on the other traditional methods of analysis.
My inquiry must
naturally begin with Judge Schlesinger’s decision itself. Upon first reading that decision prior to examining
any of the evidence in the case, I was struck by how emphatic my colleague was
on the subject of the credibility of the testimony of the Company’s management
officials. To begin with, he dealt at
length with the reliability of the testimony of the Company’s original founder
and general manager during the events at issue, Chris Eirvin. He concluded that Eirvin, “has no regard for
the truth,” engaged in “fabrications,” told “blatant” falsehoods, was
“untruthful,” and “was making it up as he testified.” ADB
Utility Contractors, Inc., supra at 897 and 911. In addition, he characterized Eirvin as
“evasive and argumentative,” and found portions of his testimony to be “particularly
outrageous,” “utterly improbable,” and “carefully fabricated.” ADB
Utility Contractors, Inc., supra at 897 and 898. He also concluded that Eirvin had manufactured
documents in an attempt to justify his unlawful decisions to discharge
supporters of the
Eirvin’s testimony was no mistake or inadvertent
error. It was deliberate, calculated lying
. . . I do not credit Eirvin at all, about anything, unless corroborated by an
impartial, credible witness. [Infra, p.
4.]
Judge
Schlesinger reached similar conclusions about the testimony of the other
important management officials who participated in the trial. Of particular significance were his findings
with regard to the credibility of Project Managers Robinson and Nanney. These men, admitted supervisors,[16]
were officials to whom the crew leaders in this case reported. The judge found that Robinson “joined in”
Eirvin’s “deliberate, calculated lying.”
Infra, p. 4. He found a “lack of
clarity” in Robinson’s testimony which, together with other factors, convinced
him that Robinson’s testimony “was a fiction.”
Infra, p. 12. Overall, he
concluded that, “Robinson is complicit in attempting to mislead me, and I do
not trust him.” Infra, p. 4. He reached the same conclusion regarding
Nanney, determining that his testimony was also “utterly improbable.” Infra, p. 3.
He observed that, “[a]s to both Robinson and Nanney, I found them
beholden to Eirvin, who appeared to dominate their testimony; and I trust
neither of them.” Infra, p. 4. Put as plainly as it could possibly be, he
concluded that the project managers “were not telling the truth.”[17] Infra, p. 3.
Judge
Schlesinger’s ultimate credibility conclusion was that the Company’s witnesses,
“purposely fabricated” evidence to rid the Company of union supporters and
thwart the organizational effort. Having
now studied the voluminous record in this matter, I readily conclude that my
colleague’s demeanor-based credibility resolutions regarding the Company’s
management witnesses are entirely consistent with the great weight of the
evidence. As a result, I will factor
them into my decisionmaking process.
Beyond that, apart from any demeanor-based credibility resolutions, I
conclude that the management witnesses were not credible and that their
testimony cannot be relied upon.
To begin with, I
have considered what the evidence demonstrates regarding the motives of those
management witnesses. That evidence was
overwhelming in showing the lengths that the Company was prepared to go to in
order to achieve its unlawful objectives.
In his testimony, Eirvin admitted that he told the employees, “that the
Company would shut the doors . . . . Repeatedly, I said, ‘This
place will not be
Beyond the stark
and powerful nature of the evidence regarding motivation, I also find that the
specific testimony regarding supervisory status provided by the Company’s officials
was completely unpersuasive. A number of
examples illustrate this point. Project Manager
Nanney reported that he would consult his crew leaders before deciding whether
to fire a member of their crews. Upon
further questioning, he had to admit that he had not consulted Crew Leaders
Hanephin or Lohman prior to discharging members of their crews. Ultimately, the examination continued as
follows:
Counsel: So today you cannot think of a single crew leader whose opinion you have asked about whether or not you should fire a laborer, right?
Nanney: That is correct.
Counsel: In fact, the crew leaders aren’t involved in the termination process at all; correct?
Nanney: That is correct.
(Tr. 1180–1181.) Similarly, he was asked if crew leaders were
invited to meetings at which employee terminations were discussed. He replied that, “[m]ost of the time they
are.” (Tr. 1181.) Just a few moments later, he was forced to
retreat when asked if it was standard practice to invite the crew leaders. He responded, “I would say no.” (Tr. 1182.)
Project Manager
Robinson demonstrated a similar level of imprecision in his description of the
duties and responsibilities of the crew leaders. Counsel asked him if backhoe crew leaders
were supervisors. He responded:
Robinson: To be supervisors, I don’t know if I would call it a supervisor. They do supervise—they do look over the job, as what I call a crew leader, but, yes, they decide who the job—how the safety goes on the job and how the job gets done, yes.
Counsel: And does ADB consider all of its backhoe operators to be supervisors?
Robinson: I don’t know.
(Tr. 1101.) Given the fact that the crew leaders report directly
to the project managers, Robinson’s testimony is absolutely breathtaking in its
imprecision.
General Manager
Eirvin was no clearer in his testimony about supervisory authority. He was examined regarding the Company’s
position on the issue of supervisory status for crew leaders at the
representation hearing held just a few months earlier. Since he was a key participant and witness
during that proceeding, one would have expected him to have no difficulty in
articulating the Company’s position.
Despite this, when counsel asked him if, “it was ADB’s position at that
[representation] hearing in May, that its Crew Leaders were not supervisors and
managers,” his reply was, “I don’t recall exactly how we classified everybody .
. . It kind of got confusing.” (Tr.
2682.)
The probative
value of Eirvin’s testimony was illustrated by another episode during the
trial. He was asked if boring crew
leaders prepared written evaluations of the members on their crews. He responded with an unequivocal affirmation
that they did so. Counsel for the
General Counsel then showed Eirvin evaluations of boring crew members that did
not contain anything from their crew leaders.
He conceded this point, but repeatedly claimed that other evaluations
prepared by the crew leaders would be produced later during the trial. As he put it, “I can provide all of
them.” (Tr. 55.) Although the trial continued over the course
of many months, no such evaluations were ever presented.
In addition to
the vague, inaccurate, and contradictory nature of the managers’ testimony
about the supervisory status issue, I have also considered the Company’s
overall representations to the Board on this question. While the Company has vigorously asserted in
this unfair labor practice proceeding that the crew leaders are statutory
supervisors, this represents a radical departure from its position in the
representation case, a virtually contemporaneous proceeding. In that case, not only did the Company deny
that crew leaders were supervisors, it went so far as to argue that the project
managers to whom the crew leaders reported also lacked supervisory status. In the Company’s brief to the Regional
Director, former counsel asserted that, “the Project Managers do not
demonstrate the degree of independent control normally associated with supervisors.” (GC Exh. 65, p. 13.)
I concur with
counsel for the
[w]hat is most offensive about this
situation is that Respondent makes no effort to explain its change in
position. Apparently, on May 6, 2003
(the date of the representation hearing) the discriminatees were employees;
but, on surrounding dates—April 15, April 25, April 28, and May 8, 2003 (the
dates of the first 11 discharges)—they were supervisors. Respondent offers no evidence to explain how
this is possible. All one can surmise is
that Respondent needed a defense to the unfair labor practice charges, so
changed its position despite its earlier assertions. [U.
Consideration of
the entire record, including the striking lack of clarity in the testimony of
the management officials, the potent evidence of malicious intent and behavior,
and the lack of consistency about matters that one would expect to be
straightforward, persuades me that the testimony of the managers is incredible
and totally unreliable. Without in any
way meaning to be facetious, I will illustrate my conclusion by noting that, if
one of the Company’s managers were to have testified that the city of
An additional
facet of credibility resolution remains to be addressed, a determination as to
the reliability of the testimony of the crew leaders themselves. I begin by noting that, to a substantial
extent, the Company has not challenged the credibility of those employees. To the contrary, in its exceptions to Judge
Schlesinger’s decision, former counsel for the Company noted that, “Respondent
does not rely on the testimony of Eirvin but rather relies on the testimony of
the affected employees.”[19] (R. Brief in Support of Exceptions, fn. 2.)
While I
generally credit the testimony of the former crew leaders, I have drawn a clear
distinction between two differing aspects of their accounts. They were asked two types of questions about
their former jobs. Most of the questions
posed by all counsel were designed to elicit information about the specific
duties, functions, and responsibilities of the crew leader role. Such questions concerned whether the crew
leaders had ever exercised management authority of the types outlined in the
statutory definition or simply called for the witnesses’ recollections about
the daily routine events of their employment.
In their detailed responses to this type of questioning, I found the
crew leaders to have provided logical, consistent, and credible information. I conclude that their accounts of their actual
duties and activities are reliable.
In addition to
the careful elicitation of the details of the daily work of the crew leaders,
all counsel occasionally indulged in questions designed to solicit the opinions
of the witnesses regarding some of the ultimate issues in this case. For example, counsel for the Company asked
Crew Leader Farris if he had ultimate responsibility for the production of the
crew. He responded, “Yes, because of the
title.” (Tr. 2143.) He added that he “assumed” this was the case,
although nobody ever told him so. (Tr.
2144.) Similarly, Crew Leader Shipp also
testified that he “assumed” that he was responsible for production, although he
was never told this by management. (Tr.
2599.) Crew Leader Lohman opined that
the proverbial “buck” stopped with him.
(Tr. 1919.) When asked whether
anybody had told him this or was it simply his assumption, he replied that, “I
assumed it.” (Tr. 1926.)
In rejecting the
Company’s argument that the crew leaders were statutory supervisors, Judge
Schlesinger noted that:
The most evidence that Respondent
presented was conclusory statements by various crew leaders about their being
“bosses” and their responsibility for the productivity of their crews and to
see that their job got done. However,
conclusory statements, without supporting evidence, are insufficient to establish
supervisory status and authority.
ADB Utility Contractors,
Inc., supra at 902. The judge cited a line of Board precedents in
support of his refusal to give weight to such conclusory remarks. In particular, he referenced Armstrong Machine Co., 343 NLRB 1149 at
fn. 4 (2004) (“Conclusory evidence is insufficient to prove supervisory
status.”); Chevron Shipping Co., 317
NLRB 379 at fn. 6 (1995) (statement that individual “oversees” others does not
establish supervisory status absent specific proof that such power was exercised
with independent judgment); and Sears,
Roebuck & Co., 304 NLRB 193, 199 (1991) (“conclusory statements,
without supporting evidence, are not sufficient to establish supervisory
authority”).
Interestingly,
the Board has now addressed this issue in the post-Oakwood context. In Avante at Wilson, Inc., 348 NLRB 1056
(2006), the issue was whether certain staff nurses exercised supervisory
authority over nursing assistants. One
staff nurse testified that she believed she had authority to send an
insubordinate assistant home. Relying on
two of the same precedents cited by Judge Schlesinger, the Board held that this
evidence was insufficient to prove supervisory status. In particular, the Board refused to accord
weight to this opinion because, “the testimony is utterly lacking in
specificity.” Supra at 1057. The key consideration was that the witness,
failed to particularize her testimony in
any way, such as by specifying when any such incident took place, who was involved,
what the alleged insubordination consisted of, whether higher-level managers
had been consulted, or whether the situation was anything more than a one-time
occurrence.
Supra at 1057. Additionally, the Board rejected the testimony
of another staff nurse who indicated that she believed she had authority to
send an assistant home for misbehavior.
Once again, the Board placed emphasis on the absence of testimony to,
explain the basis of her belief (for example,
that she had been told she had that authority by one of her superiors) or
provide any examples of situations or details of circumstances where she or any
other staff nurse actually ordered a CNA to leave the facility. Supra at 1057.
Given the
Board’s consistent pre and post-Oakwood
insistence on analysis of specific details about the job being evaluated, I
will not accord significant probative value to the conclusory opinions elicited
from the crew leaders during the trial.
Instead, I will rely on their detailed descriptions of their actual
activities. Those descriptions were
convincingly consistent with each other and the overall evidence of record and
with the application of a common sense appreciation to the significance of the
daily routines of the Company’s work crews.
Finally, I
recognize that the evaluation of supervisory status may also involve
consideration of documentary evidence.
Typically such evidence will include an employer’s handbook or job
descriptions. In this case, that
evidence took the form of job descriptions set forth in the Company’s handbook
dated August 2001. (GC Exh. 6.)
The handbook
purports to describe the duties of several types of employees whose functions
are highly relevant to the issues before me.
It describes the jobs performed by employees in the positions of crew
leader, locator, operator, and laborer.
It was undisputed throughout the trial testimony that a boring crew
always included an operator and a locator.
Sometimes the crew would include a laborer. No witness ever reported that a boring crew
would also contain a crew leader, an individual who was separate from the
locator. There was virtually universal
agreement that the locator always functioned as the crew leader.[20]
This background
is significant because the Company’s handbook paints a completely different picture
of the composition of a boring crew. It
clearly states that the crew leader is an employee entirely distinct from the
locator. In fact, it notes that, “[t]he
Locator is also a member of the crew taking instructions from the Crew
Leader.” (GC Exh. 6, handbook at p.
15.) This is underscored at the point
that the handbook describes the operator’s function. It provides that, “[t]he Operator follows the
lead of the locator and the instructions of the Crew Leader while helping all
crew members perform efficiently and effectively.” (GC Exh. 6, handbook at p. 16.) Any lingering doubt that the handbook
visualizes the crew leader as a person separate from the locator is dispelled
by examining the description of the laborer’s role. At that point, the handbook indicates that
the laborer, “[t]ake[s] direction from Crew Leader while serving the needs of
the Locator and Operator.” (GC Exh. 6,
handbook at p. 17.) Thus, the handbook
presents a picture of a boring crew as composed of a crew leader, locator,
operator, and laborer.
It is evident
that the vision of the crew leader function contained in the handbook does not
represent the reality on (or in) the ground.
While there was no testimony regarding the manner which the job roles
had evolved since the handbook was written, it appears that the duties of the
crew leader and locator were merged.
There is no question that, during the period at issue in this case,
there was no crew leader position separate and apart from the locator job. The two roles were always combined in the
same individual.
Interestingly, a
disparity between a handbook’s written job description and the day-to-day
reality of the work itself is a subject that the Board has twice addressed in
the post-Oakwood context. In Golden
Crest Healthcare Center, 348 NLRB 717, 721 (2006), one of the Oakwood trilogy, the Board cautioned
against basing a finding of supervisory status on evidence of “paper
accountability.” Citing existing precedent,
it held that,
[j]ob descriptions or other documents suggesting
the presence of supervisory authority are not given controlling weight. The Board insists on evidence supporting a
finding of actual as opposed to mere paper authority.
Infra. at 721, citing Training School at Vineland, 332 NLRB
1412, 1416 (2000). The point was
reiterated in the post-Oakwood case
of Avante at Wilson, Inc., supra. In that case, the written job descriptions
stated that the nurses supervised the nursing assistants. However, at trial the employer stipulated
that the nursing and assistant jobs were identical. As a result, the Board found that this
“[c]lear evidence of a significant inaccuracy renders the reliability of the .
. . job descriptions suspect.” Avante at Wilson, Inc., supra at 1058.
In this case,
the Company’s written description of the crew leader position plainly
visualizes that job as being separate and distinct from the locator. The reality is to the contrary. There exists precisely the sort of
significant inaccuracy that undermines the probative value of the job
descriptions. As a result, I have relied
on the descriptions in the handbook only when they are supported by credible
evidence regarding the actual duties and functions of the various occupations.
iii. the nature of the crew
leaders’ jobs
In his decision,
Judge Schlesinger concluded that the Company’s management fired eight crew
leaders due to their support for the
Although the
eight discharged employees were all crew leaders, they performed this role on a
number of different types of work crews.
The most common position was that of crew leader for a boring crew. Employees Farris, Schaffer, and Shipp were
boring crew leaders at the time they were terminated. In addition to these three boring crew
leaders, two backhoe crew leaders, Bridges and Williams, were also fired. The remaining three discharged crew leaders
were assigned to different types of work crews.
Sutton was crew leader on a cable crew.
Hanephin was assigned to an underground crew. Finally, Lohman was the restoration crew
leader. As one would expect, crew
leaders shared many common characteristics irrespective of the type of work
being performed by their crews. In addition,
there were some slight variations in the nature of their functions that
depended on the particularities of the work being performed by each sort of
crew.
Since the
Company’s primary function is to perform directional boring, it is not surprising
that the boring crews were central to its operation. Such crews invariably contain a locator and
an operator. These employees utilize the
boring machines that accomplish the task of drilling an underground passage
that can accommodate the various types of lines that are being installed. The operator runs the actual drilling machine. The locator uses a device to detect the position
of the drilling rods and guide the operator in the safe performance of the
boring operation. While this requires
some degree of experience and skill, it is not particularly sophisticated. As Project Manager Robinson put it when asked
how long it should take a new locator to function as well as an experienced
one, “I would say, in a couple of weeks.”[21] (Tr. 947.)
Indeed, Schaffer reported that he had served as an operator for
approximately a year. He was then assigned
to the locator job. He had never done
this job before and received no instruction manual or formal training. Instead, he was trained by another locator
and it took “[a] week or two.” (Tr.
2429.) In addition to operating the
locating device, the locator also serves as the crew leader. Sometimes the crew contains a laborer whose
function is to assist the two equipment operators by performing certain types
of manual labor.
The boring
crews’ workday begins at the employer’s facility. The crew leader picks up the blueprints that
both describe the jobs to be performed that day and detail the equipment
needed. The crew then proceeds to the
first jobsite. There is no particular
discretion involved in determining the order that the crew performs its
tasks. Once the crew arrives at the site,
the locator and operator walk the job to plan the route for the bore. There is nothing complex about this
planning. Typically, it involves
selection of the closest distance between two points.
At this
juncture, the real work of the crew begins.
Before any boring can be undertaken, the crew must find all of the
buried utility lines along the projected path of the drill. In the business, the task of uncovering the
buried utilities is called, “digging locates.”
This involves the classic example of unskilled manual labor, digging a
hole in the ground with a shovel.[22] In order to understand the job of the crew
leader, it is vital to note that it involves a very substantial amount of digging
locates. As Supervisor Robinson
described the boring crew,
[T]hey work together as a—they are a
crew. They did their locates together .
. . . It takes more time to dig your locates and everything else than it does
to actually operate the [boring] machine.
(Tr. 950.) Indeed, numerous witnesses, including Robinson,
testified that often a boring crew leader, operator, and laborer will spend an
entire day digging locates together.
Once all of the
underground utilities are located and exposed, the actual boring operation can
commence. The crew sets up the machinery
and connects it to a water source. They
then bore the required path. The operator
runs the machine while the locator directs the course to be taken. The evidence was overwhelming in establishing
that this was routine and repetitive. As
operator Schreit said, “Pretty much it was the same thing, hand dig and
bore.” (Tr. 1271.) Crew Leader Flores agreed, noting that,
“[i]t’s routine every day. It’s the same
thing, you’re just at a different place.”
(Tr. 2350.) Crew Leader Schaffer
confirmed that, “one bore is the same as the next.”[23] (Tr. 2440.)
As one would
anticipate in a job that involves almost exclusively field work, sometimes
something unusual does happen. Once
again, the testimony was overwhelming that, in such rare cases, the crew leader
contacted the project manager to obtain instructions. For example, since the crews often performed
their work on private property, there would be homeowner complaints about the
disturbance of the land. Schreit
testified that customers would make such complaints to either the crew leader
or the operator. When this happened,
“[w]e always then call [Project Manager] Rich Robinson.” (Tr. 1314.)
By the same token, weather issues would arise. In the event of such occurrences, the crew
contacted their project manager for instructions. Similarly, if the crew arrived at a job and
found that the utility companies had failed to paint lines on the property to
show the approximate sites for the digging of locates, the crew contacted their
project manager. The same procedure was
followed when the crew discovered that the ground conditions necessitated use
of different types of machinery. Schreit
summarized the situation when asked why a crew leader would call his project
manager. He reported,
Well, it wasn’t [the crew leader’s] call
to go ahead and do it by himself . . . . You know, if it was hard dirt or if it
started raining, you know, to see if [the project manager] wanted us to stay
out or come in. If anybody had a complaint.
. . . Like one of the customers. [Tr.
1263.]
Having described
the work process, it is now important to consider the nature of the relationship
between the crew leader and the other members of the boring crew. To begin with, the testimony established that
crew leaders had no input into who was going to serve on their crews. Beyond this, there was no credible evidence
that crew leaders could force crew members to perform their work. Crew Leader Farris testified that he was
never told that he could compel his operator to do things and he never
attempted to do so. For example, Farris
reported that he had asked his operator to wear safety equipment, but “[i]f he
didn’t want to put it on, it is his choice.”
(Tr. 2146–2147.) Similarly, Crew Leader Shipp described a situation
where he disagreed with his operator as to the correct place to set up the
machine. He was asked, “because you were
a Crew Leader, you made him move it, right?”
(Tr. 2608.) He testified that he
did not do so, adding that, “I just tried to bore where he put it.” (Tr. 2608.)
He also indicated that, although he was dissatisfied with one of his
operator’s refusal to dig locates, he lacked authority to order him to do
so. Another boring crew leader whose
status was not at issue in this case, Eric Flores, testified that, when faced
with a crew member who was slacking off, “I’d just talk to my supervisor about
it.”[24] (Tr. 2337.)
Consistently
with the evidence regarding lack of authority to direct the performance of
duties, the crew leaders were not involved in either discipline or evaluation
of members of the crews. Thus, Project
Manager Nanney conceded that it was “correct” that crew leaders did not
participate at all in the evaluation process for employees. (Tr. 1173.)
When asked if he could recall any instance when a crew leader had made
any kind of decision that affected the employment of a crew member, he was unable
to recall such an example.
There was great
consistency in the testimony regarding the crew leaders’ lack of authority to
regulate the work hours and attendance of crew members. For instance, the decision whether to work
overtime was made with the participation of all crew members. As laborer Steve Mack testified, “[w]e would
decide together, when we were tired, or when we were ready to go.” (Tr. 2244.)
By the same token, operator Schreit reported that decisions about when
to eat lunch or work overtime were made jointly by the crew. He noted that, “[i]f [Project Manager
Robinson] didn’t tell us we had to work overtime, it was all three of us
discussed it, decide[d] when to go in.”
(Tr. 1305.) Finally, the evidence
was clear regarding employee requests for time off or sick leave. As Farris described, if operators wanted to
be absent or leave early, they would call Project Manager Robinson. Project Manager Nanney confirmed that it was
company policy that crew leaders lacked authority to approve time off.
As I have
already indicated, witnesses were also examined about more general aspects of
the crew leaders’ authority. For example,
there was some conclusory testimony that the crew leader set the pace for production. In this regard, it is crucial to understand
why this was so. It did not arise from
the exercise of supervisory authority to punish or reward the crew
members. Instead, the testimony was clear
that it was the direct result of the nature of the boring crew’s work
process. It fell to the crew leader, in
his function as the locator, to guide the boring machine through the
earth. To the extent that a locator was
more efficient in performing this function, the pace of production would be
affected. Nevertheless, this was only
true to a very limited degree. As
operator Schreit explained, the pace of production really, “depend[ed] on the
ground condition. You know, if you’re in
rock or you’re in dirt.” (Tr.
1268.) He summarized that, “99% of the
time, it’s on your ground condition of how fast the bore can do.” (Tr. 1269.)
Just as crew
leaders had little ability to affect the pace of production, they were not held
accountable for problems that their crews experienced. Crew Leader Schaffer testified that he never
observed a crew leader being held accountable for the actions of an
operator. One of Schaffer’s operators,
Schreit, confirmed this by citing an example involving both men. While Schreit was operating, he pushed the
bore into a gas line. He testified that
this was his error, and Schaffer was not held responsible for his mistake. Farris corroborated this, testifying that he
never heard of a crew leader being held responsible for the performance of an
operator or laborer. Even Eirvin conceded
the point. He testified that a crew
leader would be held responsible for poor production, “[u]nless it is the operator’s
fault.” (Tr. 246.)
In assessing the
supervisory status of the boring crew leaders, I have also taken note of the
secondary indicia. These were
well-developed in the record. Crew
leaders were paid an extra dollar per hour.
They did not attend management meetings.
They were not issued offices or company vehicles. While the Company offered production bonuses,
these were shared equally among the crew members. In common with the other crew members,
leaders punched the timeclock. Crew
leaders did have minor paperwork responsibilities, but these chores took only a
few minutes at the end of each workday.
In addition to
the three boring crew leaders, the status of two backhoe crew leaders, Bridges
and Williams, is contested. A backhoe
crew is used to dig trenches in circumstances where the soil conditions
preclude use of the boring machine to prepare for the installation of
cable. That crew consists of a backhoe
operator and laborer. Sometimes the crew
is assigned a second laborer. Of course,
the operator runs the backhoe. He also
digs locates and serves as crew leader.
The laborers have only two duties, to dig locates and to “swamp.” Swamping is the process of observing the
backhoe operator’s excavation to ensure that no utilities are inadvertently
damaged during the trenching process. If
the laborer who is swamping observes something suspicious in the trench, he
signals the operator to stop excavating.
The laborer then uses a shovel to expose the suspicious item to ascertain
whether it is a utility line.
As with the
boring crews, the backhoe crew begins the day by obtaining the necessary
blueprints. As Williams explained,
“[t]he markings on the blueprints dictate what needs to be done.” (Tr. 741.)
He could not recall a situation where the blueprints failed to provide
the complete information. Once the crew
arrives at a worksite, they use the print to plan the job. This is a simple process because, as Williams
observed, “I mean, you’re going to take the shortest route possible to get from
Point A to Point B.” (Tr. 759.) All members of the crew, including the
leader, then use their shovels to dig the required locates.
In the event
that a backhoe crew was assigned two laborers, it became necessary to divide
their tasks. One laborer would focus on
digging locates ahead of the excavating machine’s route and perform ancillary
tasks such as directing traffic around the project area. The remaining laborer would swamp for the
machine. Crew Leader Bridges was asked
how these tasks were assigned. He
testified that it was accomplished, “[b]etween the laborers. If one wanted to swamp or one wanted to
direct traffic, they’d just, you know, they’d worked it out.” (Tr. 1993.)
In contrast, Crew Leader Williams testified that he always made the
assignments for the laborers. As to the
criteria he employed to make these decisions, he was asked if he took into
consideration the “knowledge, skill, and experience” of the individual
laborers. He replied in the negative, explaining
that the laborer’s job was not difficult.
As he put it, “[y]ou know, it’s not brain surgery. It’s pretty simple, a pretty simple thing to
learn . . . . I’d say it’s a little harder than tying your shoes, but not a
whole lot.” (Tr. 2000.) Citing an actual example, Williams indicated
that he based the assignments on the personalities of the laborers. Because he had a low opinion of Laborer
Gresham’s work ethic, he assigned him to dig locates while the other laborer
swamped for the backhoe. Williams also emphasized
the limited scope of his authority to make assignments. He was asked what would happen if a laborer
refused an assignment. He replied, “I
couldn’t force him to get in the hole.
All I could do is call the Project Manager and say this guy refuses to
do his job.” (Tr. 794.)
The backhoe crew
leader possessed very limited control over the working conditions of the
crew. Williams was asked if he had the
power to determine the length of the crew’s work schedule. He replied in the negative, observing that,
“I think that is a crew decision actually.
I don’t think a crew leader can force his guys to work if they don’t
want to work.” (Tr. 688.) This was thoroughly explored during
cross-examination. Williams again
testified that, “I didn’t make anybody do anything they didn’t want to do,
period.” (Tr. 789.) He added:
At no time did I ever shut my machine
down and say we’re done for the day. It
was always a group decision of what happened, of who went home, or who needed
to go home unless a Project Manager otherwise told me that we were shutting
down.
(Tr. 790.) He also indicated that the crew “didn’t have
to ask me to take lunch.” (Tr. 670,
692.)
Bridges provided
similar testimony, explaining that if his laborer wished to quit due to bad
weather, “I would call [Project Manager Robinson] and let him make the
decision.” (Tr. 1994.) Laborer Mack also confirmed this information,
noting that he and Bridges “would both decide” whether to work overtime. (Tr. 2380.)
He also reported that he would make requests for time off directly to
Project Manager Sellers.
The backhoe crew
leaders were asked general questions about their responsibility for the
quantity of production. Williams readily
agreed that he was responsible for setting the pace and pushing for
productivity. Importantly, he also explained
why this was the case, noting that “everything revolves around the machinery
that is working. So the person on the
machinery, which typically is a crew leader, is responsible for the production.” (Tr. 724.)
In other words, the rate of work depended on the crew leader’s skill as
a backhoe operator, not on his prowess as a motivator of personnel. He reiterated that he was in charge of
production because he “operated the machinery that did the work.”[25] (Tr. 749.)
When asked if he possessed the authority to direct a laborer to fix a
mistake, he reported that,
I don’t have that authority. I’m not [the laborer’s] boss. I’m just part a of a crew just like [the
laborer] is. We’re there just to get the
job done period. [Tr. 750.]
Consistently
with this view of the crew leader’s role, Williams also testified that he was
never told that he was accountable for the behavior of the crew members. When asked who would be held responsible if a
mistake were made, he explained:
It depends on how the job is screwed
up. I mean if it is something I did,
then I would be in trouble. If it’s
something [the laborer] did, he would be in trouble.
(Tr. 765.) Again, Bridges verified this, indicating that
he was never held accountable for the performance or output of his
laborers. He spelled this out very
clearly:
I’m not a supervisor. I’m a backhoe operator . . . . What I’m
responsible for is running that tractor.
I’m not responsible to stand over Wayne or any other laborer and harp on
them and tell them, you know—that’s not my responsibility. Tell them they’re not going fast enough or
what-not, that’s—that’s not my responsibility.
(Tr. 2001–2002.) Put another way, Bridges opined that, “[i]f
there’s a problem, [the project manager] needs to get out there and figure out
what the problem is. He’s the one making
the big bucks.” (Tr. 2041.)
Consistent with
this lack of supervisory control, the backhoe crew leaders did not have any
duty to evaluate their crew members or make recommendations, either positively
or negatively. Indeed, Williams reported
that, while he did ask Project Manager Nanney to replace Laborer Gresham due to
his laziness, this was not done. Eirvin
confirmed that Williams never prepared an employee evaluation. Bridges also indicated that he never
evaluated his laborers.
In assessing
issues of supervisory status for the backhoe crew leaders, it is also important
to consider the complexity of the decisions they were required to make. The key point was that the crew leaders
obtained direction from the project managers whenever an unusual issue
arose. Williams indicated that he could
not recall a single instance of something unusual that did not result in a call
to his project manager. Bridges was
asked, “Now, what about your job as an open cut operator is routine, if
anything, or repetitive?” He responded,
“[e]very-thing.” (Tr. 1991.) He could only recall one unusual occurrence,
a time when the boom on his machine broke.
He called the project manager.
Similarly, Williams recounted that a drunk driver once ran into his
backhoe. When asked how he responded, he
stated, “I called the Project Manager.”
(Tr. 664.) Bridges acknowledged
that the crew leaders did have responsibility to prepare certain simple daily
production reports. This paperwork took
only “a couple of minutes” each day.
(Tr. 1989.)
Regarding the
secondary indicia of supervisory status, the most striking one involves the
rate of pay for the two backhoe crew leaders.
Project Manager Robinson testified that neither Bridges nor Williams
were paid anything additional for performing the crew leader job. They were required to punch the same
timeclock as their laborers. They were
hourly employees and were not issued company vehicles. They did not attend management meetings. Their timesheets did not contain the computer
code that was used to designate supervisors.
At one point
during his testimony, Bridges provided a very clear vision of the nature of the
backhoe crew leader’s role for the Company.
He was asked what the difference was between the crew leader and the laborer. He replied, “[w]ell, the only thing I can
figure, I knew how to run the backhoe and [the laborer] didn’t.” (Tr. 2040.)
Counsel persisted, asking if “[i]t’s just having the additional
skills? There’s no other reason they
made you a crew leader?” Bridges
answered, “That’s the only reason I could see.”
(Tr. 2040.) Bridges’ response is
entirely consistent with the great weight of the evidence regarding the
functions, duties, and responsibilities of the backhoe crew leaders.
Three more crew
leader positions remain to be assessed.
These are the jobs held by Cable Crew Leader Sutton, Underground Crew
Leader Hanephin, and Restoration Crew Leader Lohman.[26] In the broad outline, their roles as crew
leaders mirrored the information presented regarding the backhoe and boring
crew leaders. I will now address the
more specific aspects of these three crew leader jobs.
Sutton testified
that he was the leader of a pulling crew that placed fiber optic cable in the
ground. He reported to Project Manager
Sellers. The crew would consist of the
crew leader and one or more laborers.
While Sutton testified at length about the nature of the work process,
this description was aptly summarized by former counsel for the Company who explained,
they blow this rocket through the
conduit. At various places, the conduit
is not connected. At that point, the
rocket comes out. They either pull the
cable—they pull the cable through. And
they go back and they go onto the next area . . . . That’s as simple as it
is. [Tr. 1565.]
Unlike other
types of production crews, the pulling crew did not utilize blueprints. They were given their daily assignments by
Project Manager Sellers. The crew leader
had no input into this process.
Similarly, the composition of the crew was decided by the project manager
without input from Sutton. Indeed,
Sutton reported that sometimes the laborers were shuffled around from one crew
to another during the course of the workday.
This was done by Sellers without consultation with Sutton.
As to the
assignment of specific duties during the workday, Sutton testified that Sellers
made some of these decisions directly.
He reported that, “[w]hoever he would send out with me, he’d assign the
laborer that was supposed to go out and catch the rocket.” (Tr. 1556.)
Otherwise, the crew leader could direct the laborers as to the hole at
which they would be stationed. He noted
that it did not matter which laborer was placed at any particular hole and that
the laborers did not have any preference as to which hole they were assigned. He noted that, “[i]t was all the same. It is monotony. I mean, once you do it once, it is the same
at every hole.” (Tr. 1625.)
As with the
other crew leaders, Sutton testified that he did not have authority to authorize
a laborer to leave early or take a day off.
The project manager decided how long the pulling crew would work each
day based on the volume of work that needed to be performed. If there were problems with the weather, the
project manager decided whether to stop the work. In general, Sutton explained that, “[a]ny
problems [the laborers] had, or questions, they’d go straight to [Project Manager
Sellers].” (Tr. 1614.)
Sutton’s
testimony regarding his accountability as a crew leader was entirely consistent
with the overall picture of the job already discussed. Thus, he reported that he was never held
accountable for anything done by one of his laborers. He added that he would protect an errant
laborer the first time they made a mistake, but after that initial coverage,
they were on their own regarding any “butt chewing” for mistakes. (Tr. 1574.)
He also indicated that he did not need to motivate his crew members
because they were all “self motivated.”
(Tr. 1608.)
Similarly,
Sutton’s picture of the routine nature of the job was identical to that of the
other crew leaders. He reported that he
almost never ran into unusual circumstances.
The one occasion when this happened, a cable became stuck in a conduit. In response, he called Sellers. The job was summarized when counsel for the
General Counsel asked Sutton what differences existed between the pulling crew
leader and the pulling crew laborers. He
replied:
None whatsoever. I did basically the same thing. The only difference would be I would tell them what hole they needed to go set their unit up. That would be the only variant difference
. . . Otherwise, I did the exact same work they did. [Tr. 1568.]
Like Sutton,
Crew Leader Hanephin was assigned to a crew whose function was to “pull”
cable. He sometimes worked with a
laborer or two. On other occasions, he
would work by himself. The workday began
with the project manager’s assignment of the jobs and issuance of the
blueprints. If there were time
pressures, the managers would prioritize the jobs. Otherwise, Hanephin could do them in the
order he chose. As to how to perform the
jobs, Hanephin explained that, “[e]verything is pretty much on the print.” (Tr. 1396.)
Once the crew
arrived at a worksite, Hanephin described how matters proceeded. He would address the laborers as follows:
Well, we’ve got to dig here, here, here,
and here. I guess we’ll start up by the
pole. Do you guys want to dig by the
pole or do you want to dig by the meter base[?]
(Tr. 1458.) While he could direct the laborers to dig particular
holes, he noted that there was not much to the decisionmaking process because,
“[y]ou just start at one end and work toward the other.” (Tr. 1386.)
Regarding the
remainder of the work process and the respective duties of the leader and the
laborers, Hanephin reported that, “very rarely did I stand over them and watch
them and tell them what to do.” (Tr.
1380.) He added that:
About the only time I wasn’t physically
working is when I was sitting on . . . a small tractor or a mini escalator or
something. The rest of the time if we
couldn’t use, you know, small machinery, then I would be using a shovel to dig
or pulling wire by hand or sometimes we would use a pulling machine. But I did just as much labor as my laborers.
(Tr. 1380.) During the pulling process, Hanephin reported
that he did not generally make specific assignments for the laborers. Instead, he usually asked them, “[w]hat do
you want to do, push or pull?” (Tr.
1403.)
Once again,
Hanephin’s testimony about his degree of supervisory control was fully consistent
with that of the other types of crew leaders.
If a laborer sought to leave early or take a day off, he told them to
“talk to the supervisor, Rich or Ernie, and let him know what was going on and
get permission from him.” (Tr.
1390.) The crew made decisions about overtime
work by discussion among everyone.
Hanephin reported that he was never told he had authority to require
overtime. Similarly, he testified that
he was not involved in issues of evaluation and discipline of the laborers. Indeed, he reported that he never told a
laborer to work faster. He was never consulted
about promotions and did not prepare evaluations. As to discipline, not only was he uninvolved,
but he expressed irritation about the failure to communicate such decisions to
him. He reported that on two occasions
his laborer was fired and he was not given advance notice. As to one of those, he complained that, “I
was expecting to go work with him and five minutes later he was gone.” (Tr. 1394.)
In one respect,
Hanephin’s testimony painted a different picture than that described by all of
the other crew leaders. He viewed
himself as the boss at the worksite with the power to determine lunch breaks
and with the responsibility for any mistakes made by the laborers. Critically, however, when counsel for the
General Counsel asked him if he had ever actually been held accountable for any
laborer mistakes, he replied that he had not.
In my view, Hanephin’s conclusory statements in this regard reflect a
perfectly understandable human tendency to view oneself as important, perhaps
more important than one actually is. In
fact, in his musings about this subject, Hanephin made essentially the same
point, describing his role as follows:
I guess I was just told that I was in
charge on the job site. If there was a
question about anything, that I made the decisions, but there isn’t a whole lot
to it. I mean where to dig or where to
start digging.
(Tr. 1476.) I conclude that Hanephin’s more expansive
statements about the role of the crew leader are not entitled to significant
weight because they vary from the consistent accounts of the other crew leaders
and, more importantly, they differ from his testimony as to the actual duties,
functions, and responsibilities of his work.
The remaining
position under examination is perhaps the simplest of the crew leader
jobs. Jason Lohman was the lead for the
restoration crew. This crew would
perform its work after the cable had been installed. Their function was to place the affected land
in safe and clean condition. The work involved
such routine tasks as breaking up topsoil, spreading that soil, scattering
grass seed, placing straw, and general cleanup and landscape work. Occasionally,
the crew would repair a retaining wall or install sod. The crew generally consisted of Lohman and a
laborer. They worked under the supervision
of Project Manager Robinson.
Consistently
with the nature of the tasks involved, Lohman reported that all of the work was
routine and the great majority was repetitive as well. He opined that he spent 95 percent of his
workday engaged in the same physical labor as his crewmate. His remaining duties involved the preparation
of simple paperwork and interaction with the property owners. In this regard, his authority was very limited. He testified that if a property holder wished
to have sod installed instead of seed, he was required to obtain authorization
from his superiors. Indeed, he supplied
great detail in his testimony regarding the requirement that he consult and
obtain instructions from his supervisors whenever anything out of the ordinary
occurred. As he described it,
I’d have to call the supervisor to let
them know what was going on. If there
was—pretty much any time there was any problem, in general, on job sites,
either with your laborers on the job, anything.
[Tr. 1906–1907.]
Lohman testified
that he received all of his job assignments from Robinson. His description of how the work was divided
among the members of the restoration crew was telling. He reported that he always asked his laborers
what chores they wanted to perform. As
he described it, “[w]ell, I ask them, what do you want to do. Would you rather go down here? Would you rather go down there? What do you want to do?” (Tr. 1746.)
Unsurprisingly, Lohman reported that the laborers would usually select
the easier tasks for themselves. When
counsel asked him why he did not simply instruct the laborers as to their
assignments, Lohman responded that, “it isn’t my choice to make anybody do anything.” (Tr. 1775.)
Beyond the issue
of assignment authority, Lohman reported that he had very little control over
the working conditions of the laborers.
For example, when a laborer reported that his wife was having a baby,
Lohman called Robinson to obtain authorization for the man to leave work
early. He also obtained instructions
from his supervisor in the event of bad weather. Similarly, he had no authority to require
overtime work. Indeed, he reported that
a laborer complained about overtime. In
response, Lohman called Nanney. Nanney
instructed him to send the laborer home.
Regarding
Lohman’s accountability for the performance of the restoration crew, his testimony
followed the same general contours as other crew leaders. When asked in broad terms about his
responsibility, Lohman agreed that in a “[r]oundabout” way, he was responsible
for the overall performance of the crew.
(Tr. 1760.) He reported that he
believed the figurative “buck” stopped with him. When probed, he conceded that he was never
told this, but simply “assumed it.” (Tr.
1926.) When the questioning got down to
specifics, he reported that he had never been held accountable for anything
that a laborer had done. Thus, although
Lohman indicated that he had been assigned a number of poorly performing
laborers, he had never been held responsible for their unsatisfactory performance. This was clearly illustrated by his response
to a question asking him what his function in the work life of the laborers
was. He said that it was, “[j]ust to
relay a message from the supervisor to them.”
(Tr. 1752.)
Lohman’s
testimony regarding his restricted role was supported by the fact that he was
never vested with disciplinary authority of any kind. In a very good illustration of the dissonance
between his belief as to his responsibility and the reality of his place in the
corporate hierarchy, Lohman testified that he did attempt to fire a laborer
named Damian. Nanney informed him, “You
can’t do that. I’m the supervisor. You’re not—you can’t fire him.” (Tr. 1718.)
As a result, Damian remained employed and continued to serve on Lohman’s
crew until he was injured some weeks later.
Lohman did testify that he told another employee, Garrett Jones, that he
was discharged. He noted that it was Robinson’s
decision to discharge Jones and Lohman was simply acting on his instructions.
Finally, Lohman
provided further insight into the variance between his subjective beliefs and
the objective reality of his status when discussing the subject of accountability
for the work of his crew. He opined that
it was his duty to make certain that the laborers did their work properly. Yet, he readily reported that he never
evaluated any crew members, nor was he ever held accountable for their performance. Similarly, he was never given any bonus based
on the productivity of the crew. A realistic
appraisal of Lohman’s position, taking care to separate inflated subjective
notions from actual facts on the ground, demonstrates that he lacked any
meaningful degree of supervision and control of the other crew members.
iv. application of the oakwood analysis
Having outlined
the nature of the crew leaders’ duties, functions, and responsibilities, I will
now apply the Board’s newly refined analytical standards. Naturally, I will turn most of my attention
to an assessment of the particular aspects of supervisory authority highlighted
by current counsel for the Company in his brief on remand. In conformity with the Board’s remand order,
I will also address the other aspects of the refined Oakwood analysis.
In the Oakwood trilogy, the Board clarified the
definitions of three key concepts involved in the adjudication of supervisory
status. It first addressed the meaning
of the power to assign as a primary indicia of such supervisory status. It held that the term encompassed three
distinct types of authority: the power to designate an employee to work in a
specific place, the power to give an employee significant overall duties,[27]
and the power to appoint an employee to a specific work period. Possession of any of these powers can be a
primary indicia of supervisory status. Oakwood Healthcare, Inc., supra at
689–690.
The Board also
provided a detailed articulation of the standards for assessment of the
statute’s primary indicia of supervisory status involving the power
“responsibly to direct” other employees.
This expansion of the definition includes three separate analytical
factors. To qualify under the Act, this
type of supervisory authority must include a grant by the employer of the power
to direct other employees, the authority to take corrective action against
those employees if needed, and “a prospect of adverse consequences for the putative
supervisor if he/she does not take these steps.” Oakwood
Healthcare, Inc., supra at 692.
Significantly, the Board directed adjudicators to apply these factors
within the context of the overall Congressional purpose underlying the
exclusion of supervisors from the Act’s protections. Thus, it is vitally important that a
distinction be drawn between those employees who direct others “simply” for the
purpose of completing a certain task and those whose purpose in issuing
directives is to carry out “the interests of management.”[28] Oakwood
Healthcare, Inc., supra at 692. As
the Board noted, it is the “fundamental alignment” of the supervisor with
management that forms the “heart” of the purpose behind the statutory
exclusion. Infra at 692.
Lastly, the
Board described key principles involved in the determination of whether a
putative supervisor’s possession of any primary indicia of authority also meets
the requirement that it involve the exercise of independent judgment. Possession of this degree of authority to
make decisions requires that the putative supervisor must act in a manner free
from the control of others. Among the constraints
that may reduce the nature of the authority below the statutory threshold are detailed
written rules or policies of the employer, verbal instructions from higher
ranking managers, or contractual provisions that govern the result. Oakwood
Healthcare, Inc., supra at 692–694.
Qualitatively,
independent judgment also requires that the person form an opinion through the
process of analyzing data and that the analytical process be of a degree that
rises above “the merely routine, clerical, perfunctory, or sporadic.” Oakwood
Healthcare, Inc., supra at 693, citing Browne
of Houston, 280 NLRB 1222, 1223 (1986).
The Board provided an example of merely routine decisionmaking that does
not qualify under the Act. An individual
who decides how best to deploy his or her coworkers, even when acting free from
the influence of others and analyzing data and reaching a reasoned conclusion
from that data, nevertheless fails to exercise independent judgment if the sole
purpose of the reasoning process is to equalize workloads among employees. See Oakwood
Healthcare, Inc., supra at 694.
With these
fundamental principles in mind, I will now turn to the analysis of the crew
leader positions at issue.
A. The Boring Crew Leaders
The largest
category of employees whose status is in contention in this case involves the
position of crew leader for the boring crews.
Specifically, Crew Leaders Farris, Schaffer, and Shipp were assigned to
crews consisting of a boring machine operator and a laborer. There is no doubt that these crew leaders, in
common with all of the Company’s crew leaders, exercise some degree of control
over the members of the crews. This does
not conclude the inquiry but merely represents the starting point. As the Board has cautioned:
In enacting Section 2(11), Congress emphasized its intention that only supervisory personnel vested with genuine management prerogatives should be considered supervisors, and not straw bosses, leadmen, setup men and other minor supervisory employees. The Board has long recognized there are highly skilled employees whose primary function is physical participation in the production or operating processes of their employer’s plants and who incidentally direct the movements and operations of less skilled subordinate employees, who nevertheless are not supervisors within the meaning of the Act, since their authority is based on their working skills and experience. [Quotation marks and numerous citations omitted.]
Dynamic Science, Inc., 334 NLRB 391, 392 (2001).[29]
Counsel for the
Company argues that the three boring crew leaders possess a variant of the
power to assign within the meaning of the Oakwood
trilogy. In particular, he contends
that Crew Leader Farris exercised this power by effectively recommending that
Jason Politte be transferred out of his boring crew. He also asserts that Crew Leader Schaffer effectively
recommended the assignment of operators to his crew and the removal of operators
from his crew. Finally, he claims that
Crew Leader Shipp effectively recommended the reassignment of Politte from his
crew to another one.
At the outset, I
note that counsel does not contend that any of the boring crew leaders
possessed the actual power to assign.
The evidence would not support such a contention. Boring crew leaders cannot designate an
employee to work in a particular place (i.e., on a particular crew). Project Manager Nanney was clear as to this
point. He testified as follows:
Nanney: Normally we have crews set up.
Counsel: And you set those crews up.
Nanney: That is correct.
(Tr. 1176.) There was absolutely no testimony from any witness
indicating that a crew leader ever possessed the authority to tell an operator
or laborer which crew they would work on.
As indicated by Nanney, that power was held by the project
managers. Similarly, there was not an
iota of evidence suggesting that any crew leader ever assigned an employee to a
particular job classification such as operator or laborer. Finally, crew leaders did not appoint crew
members to any particular work period or shift.
All employees worked the same shift.
The most that could be said is that crew leaders could request that crew
members agree to work some overtime. In
Counsel for the
Company is correct in contending that the power to effectively recommend
assignments is the functional equivalent of the power to make such assignments
directly. The Supreme Court has noted
that, “[t]he statutory definition of ‘supervisor’ expressly contemplates that those
employees who ‘effectively . . . recommend’ the enumerated actions are to be
excluded as supervisory.” NLRB v.
The first
difficulty with counsel’s claim that the boring crew leaders effectively
recommended assignments is that this power was specifically denied by Shipp and
Farris. Shipp testified that he never
assigned or transferred any employee. He
was then asked:
Counsel: Did you ever recommend any of those things?
Shipp: No.
(Tr. 2601.) Similarly, Farris was asked if he ever recommended
the transfer or assignment of any employee.
His concise response was, “[n]o.” (Tr. 2142.)
Even more clearly, the issue was explored with Farris as follows:
Counsel: And what influence did you have on the assignment of operators to your crew?
Farris: None.
Counsel: Did [Project Manager] Rich Robinson ask for your input?
Farris: No. [Tr. 2139.]
Despite this
uncontroverted testimony, counsel relies on two examples of what he views as an
effective recommendation to remove Jason Politte from both Shipp and Farris’
crews. Farris testified that he
complained to Robinson that Politte was too lazy. He requested that he be assigned a different
operator. Robinson responded, “[n]ot at
the moment. . . . That’s what everybody says about Jason.” (Tr. 2173.)
Farris reported that “[a] couple of weeks” later, a new crew was formed
and Politte was transferred to that crew.
(Tr. 2175.)
In contending
that this evidence demonstrates that Farris possessed effective power to
recommend Politte’s transfer, counsel indulges in a venerable logical fallacy
known as post hoc, ergo propter hoc (“after this, therefore because of this”).[31] While there is no doubt that Farris’ request
preceded Politte’s reassignment, there is no evidence that it caused that
action.[32] Indeed, the testimony suggests that the
reason for the transfer was the formation of a new crew. It will be recalled that Robinson essentially
dismissed Farris’ request, noting that everyone complained about Politte’s work
ethic. The two-week interval between the
request and the reassignment is also not suggestive of a power to make an
effective recommendation.
The same general
pattern occurred when Shipp requested that Nanney remove Politte from his crew
due to his laziness. Shipp testified
that there was no result from this request.
Politte remained on his crew until “[h]e ended up getting hurt.” (Tr. 2597.)
Shipp added that Politte’s injury was “the only reason that he was off
my crew.” (Tr. 2597.) This testimony clearly belies any claim of an
effective recommendation.
Any lingering
doubt about a supposed power to make effective assignment recommendations was
dispelled by the testimony of Project Manager Nanney:
Counsel: So simply because some guy comes and says, I want him off my crew, that does not get a laborer off the crew, does it?
Nanney: That is correct.
(Tr. 1177.) The evidence will not support a contention
that boring crew leaders possessed the power to effectively recommend assignments.
Although not
relied on by counsel for the Company, I will examine the question of whether
the boring crew leaders held the authority to responsibly direct their crew
members within the meaning of the Act.
The first step is to determine whether crew leaders directed their crew
members to perform particular tasks.
Actually, there was some variation among the various witnesses on this
point. Some witnesses took the viewpoint
that the roles of the crew members were well defined and there was no need to
direct them to perform the duties that they knew were theirs. For example, Farris testified that the
process of setting up the boring machine was so routine that it “[be]comes
automatic.” (Tr. 2158.) Williams noted that, “[a] laborer walks
around with a shovel in their hand all the time . . . . You don’t have to tell
them to dig locates.” (Tr. 722.) On the other hand, Shipp agreed with counsel’s
contention that he “ran” the crew. (Tr.
2659.) On balance, I conclude that
boring crew leaders did direct their crew members to perform some specific
tasks.
The next step in
the analysis is to determine whether boring crew leaders possessed the
authority to enforce their directives.
The consistent testimony revealed that they did not. Farris noted that he asked his operator to
put on safety equipment. However, “[i]f
he didn’t want to put it on, it is his choice.”
(Tr. 2146–2147.) Schaffer
confirmed that he was never given the authority to force a crew member to do
something. Shipp provided a very clear
and specific example, noting an occasion when he and operator Politte disagreed
about the placement of the machine.
Counsel observed that, “because you were a Crew Leader, you made him
move it, right?” (Tr. 2608.) Shipp responded in the negative and added
that, “I just tried to bore where he put it.”
(Tr. 2608.) There is simply no
evidence that boring crew leaders possessed the authority to require that their
crew members comply with their directions.
Finally, the
evidence also firmly establishes that crew leaders lacked what is perhaps the
hallmark criterion for possession of the power to responsibly direct
others. In Oakwood Healthcare, Inc., supra at 692, the Board reiterated the
requirement that responsible direction is only present when,
the person directing and performing the
oversight of the employee must be accountable for the performance of the task
by the other, such that some adverse consequence may befall the one providing
the oversight if the tasks performed by the employee are not performed
properly.
In this case, the employer presented no
evidence indicating that any crew leader had ever suffered such an adverse consequence
from the failure of a crew to perform its tasks.[33]
Thus, Farris both testified that he was never told he would be accountable
for the performance of his operator and reported that, “[a]ctually, both the operator
and crew leader are responsible for production.” (Tr. 2142.)
Schaffer also confirmed that he was never held accountable for the
actions of his crew members. Indeed, he
noted that he never observed any crew leader being held responsible for a
problem on a crew. Shipp appeared less
certain on this point. Although he
seemed to feel that crew leaders were held responsible, when asked to be specific
he could only report that, “[t]hey would just say that we needed to get our
footage up.” (Tr. 2663.) This type of exhortation to improve production
does not constitute the type of concrete adverse consequence required by the
Board.
I have concluded
that the boring crew leaders did not possess any authority to assign,
responsibly direct, or effectively recommend assignments or directions. The remaining Oakwood issue is a qualitative evaluation of the type of judgments
performed by the crew leaders. I will
perform this analysis in a separate section of this decision that will apply
the test to all of the crew leaders in general.
B. The Backhoe Crew Leaders
Two of the
employees whose status is in dispute are
Turning first to
the question of responsible direction of crew members, I note that counsel for
the Company does not contend that Bridges or Williams possessed this type of
authority within the meaning of the Oakwood
trilogy. The record demonstrates that
the backhoe crew leaders did not have this indicator of supervisory
status. It will be recalled that the
only job classifications assigned to a backhoe crew were the leader and one or
two laborers. The leader actually
operated the backhoe. Laborers had only
two duties, digging locates and swamping while the backhoe was in
operation. These duties were virtually
identical since they both involved digging in the ground with a shovel for the
purpose of exposing buried utility lines.
Williams did testify that he would select which laborer would perform
each task.[34] Even assuming that this rose to the level of
a direction, the evidence was clear in revealing that the crew leaders
possessed no authority to take corrective action in the event of a problem. Williams reported that, “I couldn’t force
[the laborer] to get in the hole. All I
could do is call the Project Manager and say this guy refuses to do his
job.” (Tr. 794.) Indeed, when asked what he would do if he was
paired with a lazy laborer, he replied that, “[m]ost of the time I would get in
the hole and do it myself.” (Tr. 665.)
In addition to
the absence of any power to take corrective action, the backhoe crew leaders
were not held accountable for the performance of their laborers. Bridges testified that he was never held accountable
for the efficiency of his crew. While
Williams was not as specific on this point, he noted that he was not his
laborer’s “boss,” and could not require the laborer to correct any errors that
he made. Instead, he testified that,
“I’m just part of a crew just like [the laborer] is. We’re there just to get the job done
period.” (Tr. 750.) I readily infer that Williams was not subject
to any adverse consequence for a failure to properly supervise his laborer
under such circumstances.
Regarding the
backhoe operators’ purported power to make assignments, the starting point for
evaluation is General Manager Eirvin’s testimony concurring in counsel’s assertion
that the project managers handle “day-to-day assignments, granting of overtime,
reassigning, granting vacation, leave of absence.” (Tr. 57.)
This was confirmed by Bridges, who reported that he never had authority
to assign or recommend assignments. He
noted that Project Manager Robinson assigned the laborer to his crew and never
sought Bridges’ input into these decisions.
Williams provided identical testimony, reporting that he never picked
the laborers to be assigned to his crew and was never asked his opinion about
this question.
Despite this
overwhelming evidence on the issue of authority to make assignments, counsel
for the Company contends that Bridges possessed the power to assign “his
laborers’ hours of work,” and that Williams “assigned tasks to his laborers.” (R. Remand Br., pp. 13, 14.) The evidence will not support this attempt to
show some degree of statutory supervisory status.
Bridges
testified that the laborers assigned to his backhoe crew would seek approval to
miss a day of work or leave work early from Project Manager Robinson. Laborer Mack agreed that, when he worked with
Bridges, if he needed time off, he would call the project manager. Furthermore, Bridges reported that if the
laborer wanted to quit work due to bad weather, “I would call [Project Manager
Robinson] and let him make the decision.”
(Tr. 1994.) Nevertheless, counsel
for the Company contends that Bridges exercised the authority to assign since,
“he would not stay on a job later than 4:30 simply because his operator wanted
to work additional overtime.” (R. Remand
Br., p. 13.) Counsel cites no authority
for such an expansive reading of the meaning of the power to assign. I hardly think that a refusal to agree to
work overtime so as to enable a coworker to earn additional pay constitutes a
primary indicator of supervisory status under the Act.
Beyond this, the
evidence does not support counsel’s contention that Bridges unilaterally
determined the length of the crew’s workday.
The Company placed a maximum limit on overtime at no more than 2 hours
per day. Bridges testified that he had a
long commute and chose not to work more than 1 hour of overtime. Counsel asked him if this was “your decision,
right?” He replied, “That was both of
ours.” (Tr. 2031.) He went on to agree that if “something had to
be done” and the laborer was willing to put in two hours of overtime, they
would do so. However, if there was no
pressing reason for the extra work, he would not agree to stay simply to please
the laborer. Taken as a whole, this testimony
simply demonstrates that the decision whether to work overtime was made by both
crew members jointly.[35] This was explicitly confirmed in the testimony
of Laborer Mack who was asked who decided on working overtime and replied,
“[w]e would both decide.” (Tr.
2380.) It was also confirmed by fellow
Backhoe Crew Leader Williams who flatly testified that, as to overtime work, “I
think that is a crew decision actually.
I don’t think a crew leader can force his guys to work if they don’t
want to work.” (Tr. 688.) I find that Bridges did not possess the power
to assign, including any supposed power to determine his laborers’ hours of
work.
Although Bridges
and Williams held the same job as backhoe crew leader, counsel for the Company
relies on a different justification for the contention that Williams possessed
the power to assign. He contends that
Williams assigned the tasks of digging locates and swamping between his
laborers. This certainly contrasts with
Bridges’ report that he never made these decisions because the laborers on his
crew divided these chores between themselves.
This strongly suggests that Williams’ decisionmaking was simply a
personal response to the need to divide the chores rather than the exercise of
any corporate grant of authority. The
fact remains that Williams did tell one laborer to dig locates and the other
one to swamp. I simply cannot find this
to be a legally significant exercise of supervisory authority. Both tasks are fundamentally identical, involving
nothing more than digging in the earth with a shovel and spotting buried
utility wires. As a result, this
situation is analogous to that described by the Board when considering the
status of lead persons in one of the Oakwood
cases. In Croft Metals, Inc., 348 NLRB 717, 722 (2006), the Board held that,
the occasional switching of tasks by the
lead persons here does not implicate the authority to “assign” as that term is
described in Oakwood Healthcare
because the activity does not constitute the “designation of significant
overall duties . . . to an employee.” This
sporadic rotation of different tasks by the lead persons more closely resembles
an “ad hoc instruction that the employee perform a discrete task” during the
shift and as such is insufficient to confer supervisory status on the lead
persons pursuant to Section 2(11) under Oakwood
Healthcare. [Citations omitted.]
Counsel for the
Company contends that digging locates and swamping represent the sort of “plum”
and “bum” assignments that impose a significant impact on an employee’s work
life. See Oakwood Healthcare, Inc., supra at 689. He does not explain why one of these tasks is
better or worse than the other. I cannot
perceive of any reason why digging one set of holes would be more or less desirable
than digging another set of holes. As
counsel does concede, “[e]ach of these jobs is directed toward the same
goal—avoiding severing an underground utility.”
(R. Remand Br. at p. 14.) From
either the employees’ viewpoint or management’s perspective, there is no
meaningful distinction here. The record
does not demonstrate that Williams exercised any aspect of the assignment power
within the meaning of the Act.[36]
C. The Cable Crew Leader
Crew Leader
Sutton worked on a cable crew, sometimes referred to as a pulling crew. The crew inserted wire into underground
conduit by means of a device that blew a so-called “rocket” through the
conduit. The crew leader operated this
machine while the laborer would wait in the hole to catch the rocket. Once again, counsel for the Company does not
contend that Sutton possessed the power to assign. The evidence confirms that he did not possess
this power. He testified that Project
Manager Sellers selected the crew’s laborers without seeking any input from
Sutton. Indeed, Sellers would sometimes
shuffle the composition of the crews as the work shift progressed. As with other crew leaders, Sutton lacked authority
to approve time off or vacations.
Sellers determined the length of the workday and the impact of bad
weather.
Counsel for the
Company submits that Sutton possessed the authority to responsibly direct the
laborers. Once again, it is necessary to
examine the Oakwood factors. Initially, I agree that Sutton was vested
with some authority to direct his laborers to perform tasks.[37] He would “tell them what hole they needed to
go set their unit up at.” (Tr.
1568.) As to the second analytical
factor, there was no evidence that Sutton was vested with any authority to
enforce his decisions by taking corrective action against an errant
laborer. Indeed, he agreed with counsel’s
characterization that he was never told by management that he possessed “any
authority to do anything that would impact the employment of the
laborers.” (Tr. 1542.)
The Company
argues that Sutton was held accountable for the performance of the pulling
crew. He bases this on Sutton’s
explanation that, the first time a laborer would make a mistake, he would take
a “butt chewing” for it. (Tr.
1574.) He said he did this in order to
gain the respect of the laborers.
However, he was very clear in adding that, if a laborer made additional
errors, he would not take the blame. In
my view, all this testimony establishes is that Sutton took upon himself the
burden of shielding a new laborer from the consequences of an initial
mistake. His refusal to do so for a more
experienced laborer shows that accountability for the laborer’s performance was
not a component of his job.
Significantly, Sutton provided uncontroverted testimony on the issue of
his responsibility for the crew members:
Counsel: Did [Project Manager] Kevin Sellers ever hold you accountable or responsible in any way for anything done by any of the laborers on your crew?
Sutton: No, ma’am.
(Tr. 1543.) I conclude that the evidence will not support
any contention that Sellers was vested with authority to responsibly direct his
laborers within the meaning of the Oakwood
analysis.
D. The Underground Crew Leader
Like Sutton,
Underground Crew Leader Hanephin was assigned to a crew that pulled cable
through pipes that had previously been installed underground. The crew also performed tie-ins, connecting
underground wire to the electrical pad.
Counsel for the Company contends that Hanephin possessed supervisory
status because he “had the responsibility to direct his laborers.” (R. Remand Br. p. 6.) He does not argue that Hanephin possessed the
assignment power.[38]
Turning first to
the assignment power, I agree with the conclusion that Hanephin did not possess
this attribute of supervisory status. He
testified that he was never given the authority to assign or transfer
employees. In common with the procedures
used by other crews, underground crew members were required to obtain approval
from the project manager if they wished to leave early or take a day off. Overtime was either ordered by the project
manager or agreed upon by the entire crew.
Hanephin flatly explained that, “I was never told that I could force
them to work overtime.” (Tr. 1392.) There is no evidence that Hanephin possessed
the assignment power within the meaning of the Oakwood standards.
In contrast,
Hanephin did issue directions to crew members.
He reported that, “I could tell them where to dig and which order things
should be done in, but that’s about it.”
(Tr. 1385.) Similarly, he could
determine whether the laborer would do the pushing or pulling of wire through
the pipe. On the other hand, Hanephin
testified as to the very limited extent of his power to direct the
laborers. For example, he noted, “I
usually ask my laborer what they wanted to do.
What do you want to do, push or pull?”
(Tr. 1403.) Indeed, he described
his role as follows,
very rarely did I stand over them and
watch them and tell them what to do . . . . About the only time I wasn’t
physically working is when I was sitting on . . . a small tractor or a mini
escalator or something. The rest of the
time if we couldn’t use, you know, small machinery, then I would be using a
shovel to dig or pulling wire by hand or sometimes we would use a pulling
machine. But I did as much labor as my
laborers. [Tr. 1380.]
While Hanephin
possessed some power to issue directions to the laborers, there is no evidence
that he was authorized to take corrective action in the event that his
directions were not obeyed. There was no
testimony to this effect. On the contrary,
Hanephin reported that his project managers never told him that he supervised
the members of his crew. Indeed, he
expressed irritation that two of his laborers had been terminated without any
consultation or even notification to him.
As to the key
concept of accountability, Hanephin accepted counsel’s formulation that he
would “take the heat” for anything that went wrong on his crew, including
mistakes made by the laborers. (Tr.
1456–1457.) However, on redirect examination,
he testified that he was never held accountable for any mistakes made by a
laborer. The evidence on this point
raises a classic problem in the analysis of supervisory status. Counsel for the Company makes the thoughtful
point that the mere fact that a putative supervisor has never exercised an indicator
of supervisory authority does not preclude a finding of statutory supervisory
status provided that the authority was granted to that supervisor by the
employer. This is correct. As the Board has stated, “[I]t is not
required that the individual have exercised any of the powers enumerated in the
statute; rather, it is the existence
of the power that determines whether the individual is a supervisor.” Mountaineer
Park, Inc., 343 NLRB 1473, 1474 (2004).
(Italics in the original.)
Recognizing the
validity of counsel’s argument, I nevertheless find that the employer has
failed to demonstrate that it actually imposed an accountability requirement on
the underground crew leader. The
evaluative standard was discussed at length in one of the Oakwood cases as follows:
[I]n determining whether accountability
has been shown, we shall similarly require evidence of actual
accountability. This is not to say that
there must be evidence that an asserted supervisor’s terms and conditions of
employment have been actually affected by her performance in directing
subordinates. Accountability under Oakwood Healthcare requires only a prospect of consequences. But there must be a more-than-merely-paper
showing that such a prospect exists.
That is, where accountability is predicated on employee evaluations,
there must be evidence that a putative supervisor’s rating for direction of
subordinates may have, either by itself or in combination with other
performance factors, an effect on that person’s terms and conditions of employment.
The evidence of
potential accountability in Golden Crest
was far stronger than in this case. The
putative supervisors in Golden Crest
were actually subject to written evaluation based on their performance of a job
duty that required them to direct the nursing assistants. Despite this, the Board declined to find
supervisory authority because there was no evidence that there would be an
actual consequence for any deficiency in performing that job function. Responsible direction is not established
“simply because the job evaluation forms suggest that such accountability
exists.” Infra at 731. In the case of Hanephin, the evidence is much
thinner. Apart from his subjective belief
that he was accountable, there is nothing from the employer to indicate that
this was, in fact, the case. As a
result, the evidence fails to establish that Hanephin was actually accountable
for the quality or effectiveness of his direction of the crew members. The employer has failed to establish that Hanephin
possessed any of the primary indicia required for a finding of supervisory
status.
E. The Restoration Crew Leader
The remaining
employee whose status must be assessed is Restoration Crew Leader Lohman. I have already noted that the work of this
crew was perhaps the least skilled of any production crew. It consisted of landscaping, seeding, placing
sod, repairing retaining walls, and cleaning up land that had been disturbed in
the process of laying cable. The restoration
crew consisted of the leader and one or more laborers. Lohman testified that “95 percent of the
time” he performed physical labor along with his laborers. (Tr. 1746.)
The remainder of his time was spent completing paperwork and interacting
with the landowners. When asked how much
time he spent “standing over the laborer and directing their work,” he responded,
“[n]one.” (Tr. 1715.)
Counsel for the
Company contends that “Lohman effectively recommended the assignment of his laborers.” (R. Remand Br. p. 10.) Before assessing this claim, I note that the
record establishes that Lohman did not actually assign laborers or responsibly
direct them. He testified that Project
Manager Robinson assigned the laborers to his crew. As crew leader, he had no authority to assign
or transfer employees or to require them to work overtime. In common with the other crew leaders, Lohman
lacked authority to authorize vacation or sick leave. This was vividly illustrated by his report
that a laborer sought to leave work early because his wife was in the process
of delivering their baby. Lohman was
unable to make even this obvious decision, but telephoned Robinson in order to
seek his approval.
It is also clear
that Lohman did not responsibly direct the laborers on the restoration
crew. In dividing up the work chores,
Lohman always asked the laborers what tasks they wanted to do. In what I suspect was a bit of wistful
testimony, Lohman noted that the laborers would usually pick the easier assignments. He also lacked any sort of authority to
correct misbehavior by the crew members.
For example, he testified that he could not require that the laborers
wear their hardhats and safety vests.
Furthermore, the evidence was rather detailed in establishing that
Lohman was not accountable for the performance of his laborers. He reported that he had at least three poorly
performing laborers and was never held responsible for their deficient
performance. He also had laborers who
were sometimes late for work. He was
never held accountable for their tardiness.
It is evident that Lohman did not possess the supervisory indicia of
assignment or responsible direction.
Despite this, I
readily understand why counsel for the Company contends that Lohman possessed
the indicator of supervisory status concerning the effective recommendation of
laborers’ assignments. I agree that the
record is replete with testimony by Lohman establishing that he made numerous
recommendations to the project manager regarding personnel matters affecting
his crew. He complained about laborers
who performed poorly, seeking their transfer or discipline. He also recommended raises and promotions.
The difficulty
with counsel’s argument is that the Act requires that a putative supervisor’s
recommendations be effective. In two
relatively recent cases, Progressive
Transportation Services, 340 NLRB 1044 (2003), and Mountaineer Park, Inc., 343 NLRB 1473 (2004), the Board has refined
the standards for analysis of this question.[39] A finding of the power to make effective
recommendations requires that there be an absence of independent investigation
by the superior authorities to whom the recommendation is made and evidence
establishing that the recommendations are adopted on a regular basis.[40] Neither prong of this test is met in the case
of Lohman’s recommendations.
The most
formidable hurdle regarding the need for an absence of independent
investigation is the testimony of Project Manager Nanney, who informed counsel
that it was “correct” that, “simply because some guy comes and says, I want him
off my crew, that does not get a laborer off the crew, does it?” (Tr. 1177.)
Beyond this, Lohman’s recommendations regarding the laborers met with a
very mixed fate. In fact, on two
occasions they were met with derision.
Lohman testified that he recommended that laborer Garrett Jones receive
a raise. He reported that this
recommendation met with the following response:
“Ernie Nanney told me to tell Garrett to take his raise and stick it up
his a-s-s.”[41] (Tr. 1753.)
On another occasion, Lohman reported that he attempted to fire a laborer
named Damian. Nanney overruled him,
observing that, “[y]ou can’t do that.
I’m the supervisor. You’re
not—you can’t fire him.” (Tr.
1718.) Damian remained employed with the
Company and continued to serve on Lohman’s crew until he was injured weeks
later. Only after that injury was he
transferred to a warehouse job.
Lohman made
additional recommendations. He recommended
a raise for an employee named Brian. Brian
did not get the raise. Lohman complained
about an employee named Stringer. He
testified that, “I pretty much complained to Ernie [Nanney] about him every
day.” (Tr. 1831.) Asked what happened, Lohman reported that,
“Ernie finally fired him.” (Tr. 1831.) Apart from any evidence of causative effect,
the frequency of the complaints and the lack of immediate result strongly
suggest that Lohman’s recommendations did not meet the standard of
effectiveness. Similarly, Lohman complained
about a personality conflict involving employee Vitulski, asking that Vitulski
be transferred. While Vitulski was
transferred, this did not take place until weeks later.[42] The lack of testimony regarding causality and
the length of time between complaint and response indicate a failure of proof
of effectiveness.
The record was
well developed regarding Lohman’s personnel recommendations and their fate at
the hands of higher authority. Applying
the Board’s standards for assessment of the potency and effectiveness of those
recommendations, I readily conclude that they failed to establish Lohman’s
possession of the statutory authority to make effective recommendations.
F. The Issue of Independent Judgment
The remaining
task that I must perform under the terms of the Board’s remand order is to
assess whether, within the meaning of the Oakwood
refinements, the crew leaders exercised independent judgment when they made
decisions affecting the crew members. As
previously described in detail in this decision, the record demonstrates that
all of these crew leaders made similar types of decisions involving similar
types of personnel assigned to their crews and similar work processes.[43] As a result, I will undertake the qualitative
analysis of the exercise of judgment for all of the crew leaders together. I so doing, I will examine the context, apply
the Oakwood tests, and consider the
cases decided since Oakwood.
In my view, it
is important to keep in mind the nature of the position being examined in this
remand. As is explicit in their job
titles, the Company’s crew leaders are not managers, but simply lower-level
lead persons. As such, they spend the
vast majority of their day engaged in the actual work processes, including
demanding manual labor such as digging holes in the ground with a shovel. It was clear from the evidence that they
spent very little time directing or overseeing the work of the crew members.[44] Furthermore, there was an overwhelming
consensus among the witnesses that the work of the crew leaders was routine and
repetitive. Perhaps Crew Leader Sutton
provided the best description, testifying that, “[i]t was all the same. It is monotony. I mean, once you do it once, it is the same
at every hole.” (Tr. 1625.)
Turning now to
the legal context for analysis of the degree of judgment possessed by lead
persons, I will briefly examine the Board’s precedents in the years leading up
to Oakwood. In late 2003, the Board declined to find any
exercise of independent judgment where a lead clerical employee engaged in
routine shifting around of employees in order to complete work projects.
Nothing in the record supports a finding
that [the foreman’s] employee placements are based on anything other than the
common knowledge, present in any small workplace, of which employees have certain
skills and which employees do not work well together. In other words, the record fails to evince
that [the foreman’s] assignment of work was anything other than routine. [Footnote omitted.]
Armstrong Machine Co., 343 NLRB 1149, 1150 (2004). Indeed, the Board cited precedent establishing
that this degree of supervisory capacity did not involve independent judgment
since, “he assigned work in the manner of a skilled leadman.” Supra at 1150.
It was in this
context that the Board addressed the issue of independent judgment in the Oakwood trilogy. In Oakwood,
the Board explained that independent judgment involved decisionmaking that was
free from the control of others and required the formulation of an opinion or
evaluation through a process of discerning and comparing data. Beyond this, the Board emphasized, in
pertinent part, that,
[i]t may happen that an individual’s
assignment or responsible direction of another will be based on independent
judgment within the dictionary definitions of those terms, but still not rise
above the merely routine or clerical . . . . [W]e find that a judgment is not
independent if it is dictated or controlled by detailed instructions, whether
set forth in company policies or rules, the verbal instructions of a higher
authority, or in the provisions of a collective-bargaining agreement . . . .
[I]f the assignment is made solely on the basis of equalizing workloads, then
the assignment is routine or clerical in nature and does not implicate
independent judgment, even if it is made free of the control of others and
involves forming an opinion or evaluation by discerning and comparing
data. [Footnote omitted.]
Oakwood Healthcare, Inc., 348 NLRB 686, 693–694 (2006). The Board then proceeded to assess the qualitative
nature of the judgments being made by the charge nurses in Oakwood. Interestingly, in
determining that those charge nurses possessed both the power to assign and the
duty to exercise independent judgment in making their assignment decisions, the
Board noted that their decisionmaking process “involves a degree of discretion
markedly different than the assignment decisions exercised by most leadmen.”[45]
Infra at 696.
Two of the Oakwood cases involved the supervisory
status of nursing personnel. It is the
third case that is of the utmost importance to the analysis required here.[46] In Croft
Metals, Inc., 348 NLRB 717 (2006), the job under consideration was the
position of lead person in a rather large factory that produced doors and windows. The leads spent “a great deal of their time
actually performing hands-on work of the type performed by undisputed unit
employees.” Croft Metals, Inc., supra at 717–718. [Footnote omitted.] They occasionally directed the production
employees to switch tasks and perform functions designed to ensure that
projects were completed on schedule. As
the Board described, the leads “have the authority to make decisions about the
order in which the work is to be performed and to determine who on the crew is
to do which tasks.” Infra at 718. In their testimony, several of the lead persons
described both the work of their crews and their own directions to those crews
as routine in nature. In fact, the Board
noted that the evidence established that the production employees “generally
perform the same job or repetitive tasks on a regular basis and, once trained
in their positions, require minimal guidance.”
Infra at 722. Based on the nature
of the lead persons’ duties and the quality of their decisionmaking processes,
the Board concluded that their exercise of judgment did not rise above the
routine or clerical level. As a result,
they were not found to possess statutory supervisory status.
Six months after
deciding the Oakwood trilogy, the
Board had occasion to evaluate the status of another team leader. That individual made task assignments to
ensure that the work kept flowing. Once
an employee had completed an assigned task, the team leader was responsible to
direct the employee to perform another chore.
These assignments and directives were always made subject to the
oversight of the team leader’s supervisor.
The team leader spent 90 percent of his day, “working with his
tools.” Austal USA, L.L.C., 349 NLRB 561, 575 (2007), [administrative law
judge’s decision]. Citing Croft Metals, the Board affirmed the
judge’s conclusion that the team leader’s decisionmaking did not rise above the
routine or clerical.
Finally, in Shaw, Inc., 350 NLRB 354 (2007), the
Board has just provided a very detailed analysis of the supervisory status of
foremen on construction pipeline crews.
The crews varied in size from 2 to 20 members, consisting of operators,
welders, and laborers. Foremen were
charged with “ensuring the performance and completion” of jobs in the
field. Infra at 354. The Board held that they did not exercise
independent judgment in performing their duties and responsibilities. In language that speaks directly to the
situation in the case before me, the Board observed that,
a foreman’s designation of which
crewmembers will perform particular functions is often based on an employee’s
trade or known skills, and is, thus, essentially self-evident. For example, if an operator is part of a
crew, he will operate the heavy equipment, a fuser will fuse plastic pipe, and
a welder will handle metal pipe. Such
assignments do not involve the exercise of independent judgment.
Other assignments are based on an employee’s readiness to carry out one of the less skilled tasks that compose the bulk of the Respondents’ workload. As the Respondents’ business involves an abundance of unskilled, laborer-type work, there are often multiple laborers on a crew. Because their duties tend to be somewhat repetitive and are often physically demanding, foremen routinely rotate laborers among those tasks to vary their work and equalize their burdens . . . Rotating essentially unskilled and routine duties among available crewmembers in this fashion does not involve the use of independent judgment and is not, therefore, indicative of supervisory authority. [Footnotes omitted.] [Supra at 356.]
Of the cases
remanded by the Board for application of the Oakwood analysis, four of those already decided by administrative
law judges have involved settings outside the health care professions. In Talmadge
Park, Inc., 2007 WL 174480 (Div. of Judges, January 19, 2007), the issue concerned
the status of a laundry employee who had some authority to direct her coworker. In finding her to lack supervisory status
within the meaning of Croft Metals,
the judge noted that the laundry work was simple and repetitive and that the
forms of decisionmaking required did not rise above the level of the routine or
clerical. In GFC Crane Consultants, Inc., 2007 WL 486711 (Div. of Judges,
February 9, 2007), the employees at issue were port engineers who led work
crews responsible for maintaining equipment.
They were provided with lists that determined the work to be
performed. The work itself was routine
and repetitive. In the event a problem
arose, the port engineers were to contact their supervisors for
instructions. Citing Croft Metals, the administrative law
judge determined that the port engineers did not exercise independent judgment
within the meaning of Oakwood. CGLM,
Inc., 2007 WL 633122 (Div. of Judges, February 27, 2007), concerned the
status of a warehouse manager. The
manager set up the delivery routes based on his geographical knowledge and understanding
of the time needed to complete the trips.
The loading of the trucks was performed in a set pattern. Again citing to Croft Metals, the judge concluded that the manager’s judgment did
not rise above the routine or clerical.
Finally, in A & G, Inc., 2007
WL 1879534 (Div. of Judges, June 26, 2007), the judge found that a shift leader
in a knitting department failed to exercise independent judgment when he
directed the machine assignments for employees engaged in repetitive industrial
tasks.
Based on this
guidance, I have no difficulty in finding that the Company’s crew leaders did
not exercise that degree of judgment sufficient to rise above the routine or
clerical. In particular, the evidence
was strikingly consistent on the question of whether the crew leaders’ work was
routine and repetitive. The Company’s
witness, Crew Leader Flores, observed that, “[i]t’s routine every day. It’s the same thing, you’re just in a
different place.” (Tr. 2350.) When asked if his crew leader job was routine
and repetitive, Shipp unhesitatingly replied in the affirmative. When asked if there was anything routine
about setting up his boring machine, Farris replied that “[e]verything” was
routine. (Tr. 2157.) Bridges gave the identical answer when asked
what was routine and repetitive about his job as backhoe crew leader. (Tr. 1991.)
When asked if the backhoe job involved the same thing day in and day
out, Williams agreed, adding that, “[y]ou are digging trenches all the
time.” (Tr. 736.) Lohman testified that all of his duties as restoration
crew leader were either routine or repetitive or both. Put the opposite way, Schaffer was asked if
there was anything about his crew leader job that was not routine and
repetitive. He responded, “No, one bore
is the same as the next.” (Tr. 2440.)
In addition to
the stunning congruity of the evidence as to the nature of the work, the record
also clearly demonstrates that the crew leaders operated within a tightly constrained
framework consisting of comprehensive blueprints, detailed verbal instructions
from their project managers, or both.
Once on the job, the assignments given to crew members by the lead
persons involved the simple switching of routine chores to facilitate completion
of the work. Crew leaders made these
routine decisions by using nothing more sophisticated than the assessment of
crewmembers’ personality styles and job preferences.[47] It was universally acknowledged that on the
rare occasions when something unusual might transpire, the crew leaders were required
to make immediate contact with their project managers for instructions. The evidence fails to establish that the crew
leaders exercised any degree of judgment or discretion that would rise above
the routine and clerical within the meaning of those concepts as defined in Oakwood Healthcare and Croft Metals.
G. Some Final Considerations
In his brief on
remand, counsel for the Company raises two other issues that merit
consideration. Quite understandably, in
making his arguments, counsel refers to my own Oakwood remand case, RCC
Fabricators, Inc., 348 NLRB 920 (2006), on remand at 2007 WL 313431 (Div.
of Judges, January 30, 2007). I will begin
with a brief discussion of that case. In
particular, I will assess counsel’s two contentions, that the crew leaders
possess supervisory powers of effective recommendation similar to the shop
foremen in RCC Fabricators and that
the crew leaders share a fundamental alignment with management in the same manner
as those shop foremen.
The company
involved in RCC Fabricators
manufactured specialized equipment for the railroad and structural steel industries. It employed two shop foremen, each assigned
to run one of these respective industrial operations. Unlike the crew leaders, these foremen spent
a great deal of time directing their employees.
In assigning work tasks to their staff, the foremen were required to
address what I termed “critical issues of competence and safety” because the
employees’ assignments “ran the gamut from simple to complex, and even
dangerous, duties.” As a result, “the
foremen applied a sophisticated analytical process to match skills and
abilities with work tasks and safety considerations.” (Supplemental Decision, at pp. 14, 24, and
27.) I also noted that both foremen possessed
“meaningful and powerful disciplinary authority.” (Supp. Decision, at p. 19.) Because I determined that the shop foremen
possessed the statutory powers to assign, effectively recommend assignment,
discipline (including power to suspend, layoff, and discharge), and effectively
recommend discipline, and exercised those powers through application of
independent judgment, I found that they were excluded from the Act’s coverage
due to their supervisory status.
All of this
stands in sharp contrast to the evidence regarding the very circumscribed
authority possessed by the crew leaders in this case. For example, I stressed the important role
that safety considerations played in the assignment decisions faced by the shop
foremen. Crew leaders had no supervisory
involvement in safety issues. The
consensus of the testimony established that they lacked even the power to
require the crew members to wear hard hats and safety vests. Crew Leader Williams provided a telling
example of the manner in which safety issues were handled by the Company. He reported that a member of his crew
complained to him about the lack of shoring in his excavations. Since the crew member responsible for
swamping for the backhoe was required to climb into the excavations in order to
dig for hidden utilities, this posed a potential risk of injury. Williams testified that he merely reported
the problem to the project manager who told him, “we don’t have time to do
that. Just dig the hole and be careful.” (Tr. 733–734.)
The situation
regarding effective recommendations is similar.
I have already assessed the absence of evidence demonstrating that crew
leaders could make recommendations that were effective within the meaning of
the Board’s precedents. On the other
hand, in RCC Fabricators, I noted
that the shop foremen had “obvious” powers in this regard, citing an instance
where a foreman and a misbehaving employee reported to their superintendent. The foreman told the superintendent that he
was sick of the employee’s bad attitude. The employee testified that, immediately
thereafter, the superintendent “looked at me and said they no longer needed my
services.” (Sup. Decision, at p.
30.) This is a far cry from the
hit-or-miss results of crew leader complaints about their crew members. In sum, while I fully recognize my duty to
apply consistent standards of analysis in the cases that I am called on to
adjudicate, this has lead to widely different outcomes here because of the
large and crucial factual dissimilarities.
Finally, in RCC Fabricators, I e