N.L.R.B. v. McCullough Environmental Services, Inc.N.L.R.B. v. McCullough Environmental Services, Inc.
Before REAVLEY, SMITH, and EMILIO M. GARZA, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
We review two decisions of the National Labor Relations Board (“NLRB“): In number 92-4459, the NLRB petitions for enforcement of its order, 306 NLRB No. 71, which found that McCullough Environmental Services, Inc. (“McCullough“) engaged in various unfair labor practices in violation of the National Labor Relations Act,
I
No. 92-4459
McCullough operates the Jackson, Mississippi wastewater treatment facility under a contract with the city of Jackson. The International Brotherhood of Teamsters, Local 891, AFL-CIO (“the union“) began a campaign to organize employees at the Jackson facility in
The NLRB issued an order requiring McCullough to cease and desist from the unfair labor practices. The order also required McCullough to offer reinstatement to three discharged employees and reimburse them for any losses they suffered. Additionally, the order directed McCullough to rescind the reprimands issued to Harris, Collins, Spann, and Varnado, rescind the discriminatory rule changes regarding solicitation and the signing of reprimands, and inform its employees of such.
A
In reviewing the NLRB‘s factual findings, we must determine whether they are supported by substantial evidence on the record considered as a whole. NLRB v. Delta Gas, Inc., 840 F.2d 309, 311 (5th Cir.1988). We must consider the totality of the evidence, including “that which fairly detracts from the Board‘s decision.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951). While we may not reject the “Board‘s choice between two fairly conflicting views [of the evidence],” Id. at 488-91, 71 S.Ct. at 465-66, we are “not left to the sheer acceptance of the Board‘s conclusions.” NLRB v. Mini-Togs, Inc., 980 F.2d 1027, 1032 (5th Cir.1993). We will enforce the NLRB‘s order only if “we are able conscientiously to conclude that the evidence supporting the Board‘s determination is substantial.” Id.
1
The NLRB found that McCullough committed unfair labor practices under
Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection....
The NLRB concluded that McCullough supervisor Robert Bunyard interrogated two employees, Tommy Wash and L.C. Spann, about their union activities, in violation of
- the history of the employer‘s attitude toward its employees;
- the nature of the information sought;
- the rank of the questioner in the employer‘s hierarchy;
- the place and manner of the conversation;
- the truthfulness of the employee‘s reply;
- whether the employer had a valid purpose for obtaining the information sought about the union;
- whether a valid purpose, if existent, was communicated to the employee; and
- whether the employer assured the employee that no reprisals should be forthcoming should he or she support the union.
Brookwood, 701 F.2d at 460-61. However, “coercive interrogation may still be found to have occurred even if all the above enumerated factors operate in the employer‘s favor.” Id. at 461. Where the NLRB‘s finding that an employer engaged in coercive interrogation is supported by substantial evidence, we will not disturb it. Id. at 461.1
Wash testified that about a month before the union election, he attended an employee meeting conducted by Robert Maines, the plant manager. At this meeting, Maines informed the employees that McCullough opposed the union. As Wash left the meeting, Bunyard yelled to him, “Hey, union man.
Although Bunyard‘s remarks to Wash and Spann were not couched as questions, the NLRB properly found that the remarks were calculated to elicit responses from Wash and Spann about their union affiliations or sentiments, thus constituting interrogation. See NLRB v. Laredo Coca Cola Bottling Co., 613 F.2d 1338, 1342 (5th Cir.) (finding that invitations to employees to disclose their union activities and sympathies constitute interrogation), cert. denied, 449 U.S. 889, 101 S.Ct. 246, 66 L.Ed.2d 1115 (1980). We must now determine whether the remarks were coercive.
Considering the Bourne factors enumerated above, we note that both Bunyard and Maines, the plant manager, had expressed their anti-union views to employees; Bunyard‘s remarks were calculated to seek the identity of those employees who favored the union and of union leaders; Bunyard was Spann‘s immediate supervisor, although he was one of McCullough‘s newest and lowest ranking supervisors; the Wash incident occurred immediately after a meeting at which Maines expressed the company‘s anti-union sentiments, and the Spann conversation took place in Bunyard‘s office with no other employees present; Wash did not reply to Bunyard‘s comments, and Spann either disclaimed knowledge of union activities or did not reply in his conversations with Bunyard;4 Bunyard had no valid purpose for seeking such information about the union, or at least did not communicate one to the employees; and Bunyard failed to assure Spann or Wash that no reprisals would be forthcoming should they support the union. Furthermore, Bunyard‘s statement to Spann that he believed Harris was the organizer of the union campaign created the impression that he was engaged in the surveillance of the employees’ union activity. This statement not only exacerbated the coerciveness of Spann‘s interrogation but, as the NLRB properly found, constituted an independent violation of
2
The NLRB found that McCullough threatened its employees with various economic reprisals for supporting the union, including reduced work hours and more onerous working conditions, in violation of
Substantial evidence supports the NLRB‘s findings that McCullough violated
McCullough contends that the ALJ should have credited the testimony of its supervisors, rather than the testimony of the employees. The ALJ‘s credibility determinations are not “inherently unreasonable or self-contradictory.” NLRB v. National Fixtures, Inc., 574 F.2d 1305, 1306 (5th Cir.1978). Crediting the employees’ accounts of their conversations with McCullough‘s supervisors, we find that substantial evidence supports the conclusion that McCullough threatened its employees with economic reprisals for their union activities.
3
On July 10, one day before the representation election was held, Project Manager Maines issued employee Bernard Bennett a written reprimand, stating:
At 7:05 a.m., you approached Utilityman, Ken Thomas and solicited his support for the Teamsters Union. This occurred during normal working hours for both yourself and Mr. Thomas. You were not only negligent toward your own duties, but you also obstructed Mr. Thomas in the performance of his duties. As the person in charge of your shift, you are looked upon and expected to set an example for other employees in the performance of your work. You have been negligent toward your work responsibilities by taking the time to wait around for an opportunity to solicit this individual; whereas, you were supposed to be monitoring the facility and performance of those workers under your direct supervision. This will not be tolerated in the future. You are instructed to cease conversation with personnel other than in the performance of your job. As well, you should be informed, soliciting is not allowed on the premises of the work project.
(Emphasis added). Bennett testified that he told other employees of his reprimand and his inability to solicit for the union on McCullough‘s premises.
The NLRB found that McCullough, through the letter of reprimand, discriminatorily imposed a “no solicitation and no talking” rule during the union campaign. McCullough argues that it promulgated no
“Reasonable restrictions upon solicitation are not per se invalid because imposed during an organizational campaign. The Act does not require an employer to anticipate all problems and provide for them by written rule.” Roney Plaza, 597 F.2d at 1049. “A new rule or tightened enforcement policy will, however, be invalid if imposed with discriminatory intent.” Id. The NLRB may find that a no-solicitation rule exists even where the rule is announced only informally. NLRB v. WKRG-TV, Inc., 470 F.2d 1302, 1308 (5th Cir.1973). “Initial promulgation of a no-solicitation policy upon the commencement of a union organizational campaign is strong evidence of discriminatory intent.” Roney Plaza, 597 F.2d at 1049. “The employer may, of course, demonstrate that imposition of the restrictions was justified because the union campaign brought about substantial work disruption in a plant for the first time.” Id.
There is no evidence that McCullough had a clearly discernible rule or policy prohibiting solicitation prior to the issuance of the reprimand letter. In fact, several employees testified that McCullough did not have any type of a solicitation rule before July 10. Additionally, these employees testified that they often engaged in solicitation during non-break times and frequently talked while working about non-work related subjects without being reprimanded.7 See Marathon LeTourneau Co. v. NLRB, 699 F.2d 248, 256 (5th Cir.1983) (holding that a no solicitation rule “applied unevenly” violates the Act). Moreover, McCullough imposed the no-solicitation restriction one day before the representation election. McCullough also failed to demonstrate that the reprimand to Bennett was issued because of a substantial work disruption.8 Consequently, we find that substantial evidence supports the NLRB‘s finding that McCullough promulgated an unlawful no-solicitation rule.9
B
The NLRB found that McCullough violated
1
Approximately two weeks before the certification election, employee Richard Harris refused to sign a reprimand McCullough gave him for failing to secure an off-site sewage pumping station. After Bunyard and Maines informed Harris that he would be terminated for insubordination if he did not sign the reprimand, Harris signed it. The next day, McCullough‘s president, Jerry Mitchell, wrote the following letter:
It has come to my attention that some employees have recently refused to sign the written statements concerning reprimands and/or disciplinary actions. It is a requirement that the employee sign these statements “acknowledging” he read the statement. Note, that as always, the employee may write any qualifications he so desires but he must acknowledge by signature that he read the statement. Any employee refusing to sign the statement thereby acknowledging he read the statement is to be discharged for insubordination.
Mitchell, from his office at company headquarters in Tennessee, distributed this letter to all McCullough facilities. Soon after receiving Mitchell‘s letter, Maines reiterated the policy in a letter to all supervisors at the Jackson facility.
The NLRB found that Mitchell‘s letter adopted for the first time a policy requiring that supervisors discharge any employee who refuses to sign written reprimands.10 The NLRB then concluded that McCullough violated
“Before an employer can be said to have discriminated against its employees for their protected activity, the Board must show that the supervisor responsible for the alleged discriminatory action knew about the protected activity, and that the employees’ protected activity was a motivating factor in the employer‘s decision.” NLRB v. McEver Eng‘g, Inc., 784 F.2d 634, 640 (5th Cir.1986). “In establishing the knowledge element, the Board may not simply ‘impute’ the knowledge of a lower-level supervisor to the decision-making supervisor.” Pioneer Natural Gas Co. v. NLRB, 662 F.2d 408, 412 (5th Cir.1981) (citation omitted); see also Delchamps, Inc. v. NLRB, 585 F.2d 91, 94 (5th Cir.1978) (same).
We find that substantial evidence does not support the NLRB‘s finding that McCullough adopted the sign-or-be-discharged policy for discriminatory reasons. “Neither the ALJ nor the Board found that [Mitchell] was aware of the reprimandees’ union activities, or that [another supervisor] communicated his knowledge to [Mitchell]. Thus, it is clear that the ALJ performed the ‘mechanical imputation’ of knowledge rejected in Delchamps, 585 F.2d at 94.” Pioneer, 662 F.2d at 412 (footnote omitted). The record is barren as to Mitchell‘s knowledge, if any, of Harris‘s union activity, and it was Mitchell who instituted the sign-or-be-discharged policy in his June 28 letter. “Nor is this a case in which the Board has relied on
2
It is undisputed that on July 11, the day of the certification election, employees Richard Harris, L.C. Spann, and Lonnie Collins violated McCullough‘s lunch break policy11 by using company vehicles in an unauthorized manner—driving to a restaurant located several miles away from their work stations—and taking excessively long lunch breaks.12 Supervisor Bunyard spotted the three employees on their unauthorized lunch treks and notified his supervisor, Jerry Eckels. Bunyard and Eckels then met with each employee later in the day and suspended all three for violating company policies. McCullough formally terminated Collins on July 12, Harris on July 13, and Spann on July 28. The NLRB found that McCullough, motivated by anti-union animus, discharged them in violation of
“The [NLRB] makes a prima facie showing of a section 8(a)(3) violation by demonstrating that anti-union animus was a motivating factor in an employer‘s decision to terminate ... an employee.” Mini-Togs, 980 F.2d at 1032-33. Upon such a showing, “the burden shifts to the employer to establish [by a preponderance of the evidence] that it would have taken the same action even in the absence of the employee‘s protected activity.” Id. at 1033; see also NLRB v. Transportation Management Corp., 462 U.S. 393, 400-03, 103 S.Ct. 2469, 2474-75, 76 L.Ed.2d 667 (1983). We determine if substantial evidence supports the NLRB‘s findings that McCullough discharged the three employees out of anti-union animus and that McCullough would not have discharged them in the absence of their union activity.
(i)
We initially examine the ALJ‘s conclusion that Bunyard reprimanded Spann and Collins for the July 11 incident solely because of McCullough‘s concern that failure to punish them would undermine its case against Harris. The ALJ based this conclusion on testimony from Spann and Collins, whom he found to be credible witnesses. Spann testified that
[Bunyard] said, “You and Collins got caught up in the wrong thing at the wrong time. This wasn‘t meant for you all.”
But, hey, he said something about Bob Maines had followed Richard Harris to [the restaurant], and he had saw me.... [Bunyard] said, hey, we just got caught up at the wrong place, wrong time.
Collins testified Bunyard told him that “they had been following Richard all day long” and that Bunyard had to reprimand him because Bunyard had reprimanded Harris.
The ALJ did not explain the inconsistency in crediting Spann‘s and Collins‘s testimony in this regard while refusing to credit their explanations of why they violated McCullough‘s lunch policies in the first place. See supra note 12 and infra note 14. This omission is fatal to the ALJ‘s determination. See Motorola, 991 F.2d at 282 (stating that we
(ii)
We next examine the evidence pertaining to the discharge of Harris. Substantial evidence supports the ALJ‘s conclusion that anti-union animus was a motivating factor in the discharge of Harris. The ALJ further found that McCullough terminated Harris on the day of the election, not two days later, and that McCullough would not have discharged him in the absence of its anti-union animus. The ALJ based this determination on Harris‘s testimony that Don Dixon, McCullough‘s observer at the election, challenged his vote because he had been terminated as of noon on July 11. Dixon did not testify. It is undisputed, however, that only Maines had the power to discharge employees at the Jackson facility. Maines testified that he discharged Harris on July 13. Moreover, Bunyard‘s report to Maines regarding the lunch incident and Harris‘s other policy violations, dated July 12, recommended that Harris be discharged. This recommendation would be unnecessary if Harris had been discharged on July 11. Based on this evidence, we disagree with the NLRB‘s finding that McCullough would not have discharged Harris in the absence of his protected activity. Assuming, however, the correctness of the ALJ‘s findings, our conclusion, based upon the totality of the circumstances surrounding Harris‘s discharge, would not change. See NLRB v. Brookshire Grocery Co., 919 F.2d 359, 363-64 (5th Cir.1990) (noting that the NLRB should look “beyond the company‘s asserted reasons to evaluate all circumstances involved in the firing“).
The record demonstrates, and the NLRB found, that Harris, Spann, and Collins engaged in a considerable amount of “goofing off” during the work day, including playing basketball, pitching quarters, and shooting dice on company time, and Bunyard upon becoming supervisor made clear his intent to rectify these poor work practices. Additionally, Harris, who worked around dangerous equipment, admitted that he drank alcohol during lunch and at least “one or twice” during work time.15 Moreover, Harris, during the four months preceding his discharge, received two written reprimands regarding the performance of his duties, including one for a “major” violation of McCullough‘s safety policies. Finally, the record indicates that Harris was untruthful both during McCullough‘s investigation of the July 11 lunch incident and at the hearing before the ALJ.16
Accordingly, we find that substantial evidence does not support the NLRB‘s conclusion that McCullough would not have discharged Harris in the absence of his protected activity. Cf. Brookshire Grocery, 919 F.2d at 364-65 (holding that an employee forfeited his remedial rights under the Act
(iii)
We now examine the evidence pertaining to the discharge of Spann. Spann received a reprimand, which he signed pursuant to McCullough‘s valid sign-or-be-discharged policy, see part III.A. supra, and a suspension for violating McCullough‘s lunch policies on July 11. Spann returned to work on July 18, and problems began anew. On July 24, Bunyard determined that Spann failed to properly secure a pumping station, a “major” violation of company policy. On July 25, Bunyard found Spann again violating McCullough‘s lunch policy. On July 26, McCullough again suspended Spann. When Spann returned to work on July 28, Bunyard presented him with two reprimand letters, one for the July 24th incident and one for the July 25th incident. Spann, despite knowing about the sign-or-be-discharged policy, refused to sign the reprimands. Bunyard then left Spann alone so that Spann could think about his decision. When Bunyard returned, Spann asked for more time to contemplate his options, which Bunyard granted. Spann ultimately chose not to sign the reprimands and then refused to return the reprimands to Bunyard. After Bunyard ordered him to return the reprimands, Spann testified he told Bunyard “that he could take them if he really wanted them” and then left the premises.
The NLRB‘s conclusion that McCullough would not have discharged Spann in the absence of his protected activity is not supported by substantial evidence. It is undisputed that Spann refused to sign the written reprimands, despite being given every opportunity to do so and his knowledge of the sign-or-be-discharged policy. “In the vernacular of the workplace, ‘[Spann] fired [him]self’ when []he refused [McCullough‘s] reasonable conditions for continued employment.” Mini-Togs, 980 F.2d at 1034. Consequently, we will not enforce the NLRB‘s order regarding Spann.
(iv)
We finally examine the evidence pertaining to the discharge of Collins. Upon Collins‘s return to the facility after lunch, Bunyard called Collins into his office to discuss the lunch incident and gave Collins a written reprimand for violating company policies. Collins refused to sign the reprimand, even after Bunyard gave him an opportunity to reconsider his decision. McCullough discharged Collins for insubordination the next day. We have previously found McCullough‘s sign-or-be-discharged policy to be lawful, see part III.A. supra, and Collins admitted he knew that he would be discharged if he did not sign the reprimand. Collins also admitted he knew that by signing the reprimand, he merely was acknowledging its receipt and not that he agreed with what the reprimand said. Thus, we hold that McCullough terminated Collins for a legitimate reason and not for his protected activity. Like Spann, Collins “fired himself” by refusing to sign the reprimand.
3
The NLRB found that McCullough took disciplinary actions against James Varnado on two occasions, in violation of
On August 8, 1989, the union filed unfair labor practice charges alleging that McCullough unlawfully retaliated against Varnado because of his support for the union.17 In March 1990, Peters, the laboratory supervisor, showed Varnado and Chester Hicks, both laboratory technicians, a “counseling memorandum” regarding a test that they failed to perform. Varnado, confused as to whether the memorandum was a reprimand, asked Peters “for a copy of the reprimand or memo, or whatever it was.” Varnado testified that Peters became angry and accused Varnado of trying to manipulate him, to
In April 1990, Varnado testified before the ALJ in this case. Approximately one month later, Peters placed a second disciplinary report in Varnado‘s file regarding another test that Varnado failed to conduct.18 Varnado argues that Peters told him to conduct two other tests on the sample, but not the test referenced in the report. Peters testified, and McCullough argues, that Varnado should have known, without any explicit instructions, to run the omitted test because he was the senior lab technician, had eleven years experience, and had run such a test in November 1989.
The NLRB found that Peters issued both the disciplinary reports to Varnado in retaliation for Varnado‘s participation in protected activities. Substantial evidence supports the NLRB‘s finding that the reasons for the disciplinary reports were pretextual, and that McCullough failed to show that Varnado would have been reprimanded absent his union involvement. Regarding the first report, the evidence indicates that Peters overreacted to a simple request for a copy of the first memorandum because of his own anti-union animus, the knowledge that Varnado was a union supporter, and the unfair labor practice charge filed on behalf of Varnado. With regard to the second memorandum, by expecting Varnado to remember what tests he ran a similar sample six months previously, Peters held Varnado to an unreasonable standard, one to which no other employee had ever been held. Moreover, in light of the findings of unfair labor practices discussed in parts I.A.1, 2, and 3, supra, it is reasonable to infer that McCullough‘s anti-union animus played a role in the treatment of Varnado.19 Roney Plaza, 597 F.2d at 1050 n. 6 (stating that unfair labor practices “may be considered along with other evidence tending to show discrimination“). The timing of the disciplinary notices also supports the conclusion that they were unlawfully issued. Brookwood, 701 F.2d at 467 (noting that the NLRB can consider the timing of an employer‘s actions as evidence of a violation).
McCullough points out that it did not reprimand other employees who were known union supporters and who testified against McCullough at NLRB hearings. However, the fact that McCullough did not reprimand all pro-union employees does not necessarily undermine the NLRB‘s finding of unlawful motivation. Delta Gas, 840 F.2d at 312. McCullough further contends that Peters lawfully reprimanded Varnado for insubordination and negligence in performing his duties, not for his union activity. We acknowledge that here, as in many cases, the record contains evidence of both a lawful and an unlawful motive underlying the disciplinary actions taken by McCullough. Nevertheless, “[w]hile the record does permit a competing, perhaps even equal, inference of a legitimate basis for discipline, the Board could reasonably infer an improper motivation given the timing of the discipline and the circumstances of the employer‘s anti-union campaign.” Brookwood, 701 F.2d at 467; see also Merchants Truck Line, Inc. v. NLRB, 577 F.2d 1011, 1016 (5th Cir.1978). We find sufficient evidence to support the NLRB‘s findings that McCullough considered Varnado‘s protected activities in reprimanding him and that McCullough failed to show that it would not have reprimanded Varnado in the absence of his protected activity. Therefore, McCullough issued the two reprimands in violation of
II
No. 92-4460
The NLRB seeks enforcement of its cease and desist order directing McCullough to
The union won the election by a vote of twenty-two to five. McCullough filed objections to the election, contending that the NLRB improperly included supervisors in the bargaining unit. The Regional Director overruled McCullough‘s objection. The NLRB again affirmed the Regional Director‘s decision and certified the union as the unit‘s collective bargaining representative. The union demanded that McCullough begin negotiations, but McCullough refused. The union then filed an unfair labor practice charge with the NLRB, alleging that McCullough had unlawfully refused to bargain. McCullough responded that the underlying certification was invalid because the bargaining unit impermissibly included individuals employed as supervisors.
General Counsel for the NLRB moved for summary judgment on the complaint, which the NLRB granted. The NLRB found that McCullough was raising issues that were or could have been litigated at the representation hearing and did not offer any newly discovered or previously undiscoverable evidence. Consequently, the NLRB issued its order requiring McCullough to bargain with the union. The NLRB now petitions us to enforce that order.
A
The Jackson treatment facility is worth approximately $50 million dollars, is one of the largest sewage treatment facilities in the United States, and operates continuously year-round. McCullough‘s operations department oversees the process by which raw sewage is transformed into an effluent that can be safely discharged into receiving streams. The department is staffed by a chief operator, four lead operators, four relief operators, and four shift operators. Project Manager Robert Maines, who is in charge of the entire facility, and Chief Operator Andrew Hawthorne, who heads the operations department, work from approximately 7:00 a.m. to 5:00 p.m., Monday through Friday.20 The lead, relief, and shift operators work rotating shifts Monday through Friday of 8:00 a.m. to 4:00 p.m., 4:00 p.m. to midnight, and midnight to 8:00 a.m. On Saturdays and Sundays, they work 12 hour shifts. Thus, the lead operator is the highest ranking official on duty at the facility for approximately seventy percent of its operating hours.
The lead operators work out of the “control room” at the facility. From this room, they utilize a number of instruments to monitor the status of entire sewage treatment process. The lead operators continuously maintain a log based on this data and record all significant events that occur during each shift, including any adjustments they make to equipment. At the end of each shift, the log is given to the oncoming lead operator. Should any problems develop during a shift, instruments in the control room inform the lead operator. Depending on the situation, the lead operator can adjust either the equipment or the mix of chemicals used to treat the sewage so as to maintain compliance with state and federal laws and company policies. While many adjustments can be made from the control room, in some circumstances the lead operator directs the relief or shift operators, who work in other areas of the facility, to make the adjustment. Other duties of the lead operators include utilizing plant equipment in ways that minimize costs for McCullough, making rounds of the facility every two hours to ensure that equipment is operating properly and that other employees are doing their jobs, and examining checklists prepared each shift by the relief and shift operators to ensure that they have completed their required tasks.
The ultimate issue in this appeal is whether we should enforce the NLRB‘s order compelling McCullough to bargain with the union. To determine that issue, we must decide whether the voting unit as defined by the NLRB impermissibly includes supervisory personnel in violation of
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.
We will uphold the NLRB‘s conclusions where they are supported by substantial evidence on the record as a whole. Universal Camera Corp., 340 U.S. at 477, 71 S.Ct. at 459.
In assessing the Board‘s application of a statutory provision such as
Monotech, 876 F.2d at 517 (citations omitted).22 Nevertheless, we find the NLRB‘s conclusion that lead operators are not statutory supervisors unsupported by substantial evidence.23
In Dale Service Corp., 269 NLRB 924, 1984 WL 36272 (1984), the NLRB found that “senior operators” at a sewage treatment facility were statutory supervisors. Dale operated its facility twenty-four hours a day, 365 days a year, and employed an operations manager, assistant general manager, four senior operators, three operators, and five maintenance employees. The managers, who the parties stipulated to be supervisors, worked from 7:30 a.m. to 5:30 p.m., Mondays through Fridays. Night and weekend shifts consisted of one senior operator and one operator. Thus, the senior operators were the highest ranking personnel for a majority of the plant‘s hours of operation. Although senior operators and operators performed many of the same tasks, senior operators had
the authority to assign operators to specific tasks, based in part on the senior operators’ assessment of the employees’ abilities and the expertise required. Senior operators [had] the authority to evaluate the workload, and, consequently, to assign overtime work to operators; to send operators home in the absence of work; and to call both operators and maintenance employees in to work, all without the managers’ prior approval. In the course of their duties, senior operators must make operational decisions regarding the adjustment of equipment. These decisions are based on knowledge and experience, and require the exercise of discretion. Finally, the [company‘s] assistant general manager testified that senior operators, when managers are not present, are directly responsible for the operation of the plant and the direction of the work force. This authority was acknowledged by senior operators, who testified that their duties included, “mak[ing] sure everything is running all right” and “basically run[ning] the plant.”
269 NLRB at 924-25. “Based on all these factors, [the NLRB found] that senior operators responsibly direct employees within the meaning of Section 2(11).” Id. at 925 (footnote omitted).
We consider Dale Service to be the controlling case on the issue of supervisory status in this case. Although the NLRB strenuously argues that Dale Service is factually distinguishable from the case sub judice, we find the NLRB‘s attempts to distinguish it unpersuasive. See Fiber Glass Sys., Inc. v. NLRB, 807 F.2d 461, 464 (5th Cir.1987) (stating that “a departure from past agency precedents requires at least a reasoned explanation of why this is done“); NLRB v. WKRG-TV, Inc., 470 F.2d 1302, 1311 (5th Cir.1973) (noting that the NLRB is obligated “to maintain a consistent approach in [its] unit determinations“).
It is undisputed that McCullough‘s facility, like that in Dale Service, runs continuously year-round. As a result, the lead operators, like the senior operators in Dale Service, are the highest ranking employees present during night and weekend shifts, which constitute the majority of the facility‘s operating hours.24 During these shifts, McCullough‘s lead operators supervise two employees while the senior operators in Dale Service supervised only one employee. Lead operators also have the authority to assign employees to specific tasks, send employees home if they are ill, and make operational decisions based on their knowledge and experience regarding the adjustment of plant equipment.25 Moreover, lead operators are directly responsible for the operation of the plant and the direction of the other operators when Maines and Hawthorne are not present. Lead operator Robert Polk testified that he was solely “responsible for the operation of the plant during an eight hour shift
The NLRB contends that the senior operators in Dale Service possessed a substantially greater degree of independent authority than McCullough‘s lead operators. The NLRB highlights its determination in Dale Service that the senior operators had the authority to assign operators to specific tasks, based in part on their assessment of the employees’ abilities and the expertise required, and to resolve problems arising during the night and weekend shifts without input from higher management. 269 NLRB at 924. By contrast, the NLRB argues McCullough‘s lead operators do not choose where employees work because the employees simply rotate stations on a daily basis; lead operators do not use independent judgment in directing employees because employees merely follow extensive checklists or instructions prepared by management; and lead operators do not resolve problems by themselves, but only refer problems to Maines or Hawthorne. After an exhaustive review of the record, we find no support for these asserted distinctions.27
The NLRB‘s opinion in Dale Service indicates that the senior operators there held supervisory powers virtually identical to those held by the lead operators here. In Dale Service, the NLRB found that senior operators had the authority to assign employees to specific tasks even though “[a]n operations manual outlines tasks to be performed at specific times, and work varies little day to day.” 269 NLRB at 924 & n. 7. This appears to be no different than the authority exercised by McCullough‘s lead operators. Although checklists and instructions from Hawthorne outline the day-to-day tasks of employees, the lead operator decides which employee performs a specific task. See also Maine Yankee Atomic Power Co., 624 F.2d at 362 (finding workers to be supervisors even though their tasks and responsibilities were governed “to a great extent” by federal guidelines and company policies). Additionally, Maines and lead operator Polk testified that lead operators have the authority to, and actually do, reassign employees during shifts. Cf. NLRB v. Ajax Tool Works, Inc., 713 F.2d 1307, 1312 (7th Cir.1983) (“Although the reassignments may not have called for the exercise of sophisticated judgment, it appears that the decisions involved the exercise of some independent judgment.“). Michael Ward, a shift operator testifying on behalf of the union, stated that the lead operator on his shift “tells me what to do around the plant” and “checks up on you from time to time to see that the job ... is done.” If the workers fail to complete their assigned tasks, the lead operator instructs them to do so. This also demonstrates that lead operators exercise independent judgment and responsibly direct other employees. See id. (noting that ordering an employee to correct a mistake requires an exercise of independent judgment).
McCullough buttresses its argument that lead operators are supervisors by pointing out that if they are not supervisors, its facility is without supervision during the night and weekend shifts.28 The NLRB argues
Neither McCullough‘s guidelines requiring lead operators to contact a superior in the event of an emergency nor the infrequency of emergencies is sufficient to deprive the lead operators of their supervisory status. Southern Indiana Gas, 657 F.2d at 886; Maine Yankee, 624 F.2d at 364. The mere fact that someone higher in the chain of command must be consulted when a emergency or atypical problem arises does not necessarily deprive lead operators of their supervisory status. Instead, the record contains undisputed testimony that lead operators often dealt with problems without input from either Maines or Hawthorne.30 Furthermore, the decision whether to notify Maines or Hawthorne of a specific problem involves, to a certain extent, the exercise of independent judgment.
In making its determination that lead operators are not supervisors, the NLRB failed to give any weight to McCullough‘s own determination of the lead operator‘s status,31 documents authored by lead operators indicating that they thought of themselves as supervisors,32 the beliefs of other employees who thought that lead operators were supervisors,33 and the higher wages of lead operators
Based on the record and NLRB precedent, we disagree with the NLRB‘s conclusion that lead operators do not responsibly direct employees within the meaning of
D
The NLRB maintains that the evidence supports its finding that lead operators do not discipline, or effectively recommend discipline for, other operators. The record indicates, however, that on at least two occasions, a lead operator gave an employee a written reprimand and the employee was later fired. While the record is unclear regarding whether the lead operators recommended termination on each occasion, that they have the authority to issue such reprimands and that McCullough acts on them indicates that they effectively participate in McCullough‘s disciplinary process.38 See NLRB v. Southern Airways Co., 290 F.2d 519, 524 (5th Cir.1961). But see Dickerson-Chapman, 964 F.2d at 499 (holding that incidental and extraordinary instances of discipline by an employee does not confer supervisory status). Moreover, lead operators give oral reprimands to employees without issuing written reprimands. This also indicates the exercise of independent judgment because the lead operators decide whether to deal with a problem employee themselves or to bring the situation to the attention of upper management through the formal disciplinary process. Lead operators, therefore, not only exercise independent judgment in responsibly directing other employees, but they also effectively recommend discipline for other workers.
III
Accordingly, in number 92-4459 we hold that the NLRB‘s findings regarding Harris, Collins, Spann, and McCullough‘s disciplinary policy are not supported by substantial
In number 92-4460, we disagree with the NLRB‘s penultimate conclusion that McCullough‘s lead operators are not supervisors within the meaning of
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Notes
(Emphasis added). We believe the purported inconsistencies do not exist. See Pioneer, 662 F.2d at 413 n. 9 (reviewing an ALJ‘s determination that a witness‘s testimony was inconsistent). Bunyard‘s first statements pertain to his belief that the union would not affect his job as a supervisor in any substantial fashion. SeeQ: Were you concerned as to whether the union was going to get into the plant?
A: Not so.
No, sir. I was not over-concerned of the union.
Q: You were not concerned that the union might win?
A: No, sir. I work there to do a job, and I can adapt as it may be.
Q: So it didn‘t matter to you one way or the other.
A: Well, yes, sir; it mattered. It mattered by the fact that the company wished—wanted us to do what—you know, what we—what they wanted us to do. I am a Company man; I follow Company rules. I abide by the Company‘s wishes and what they want me to do.
Q: And what did they want you to do?
A: They want me to do my job to the best of my ability.
Q: But with regard to the union, what did the Company want you to do?
A: They didn‘t want me to do anything. They never asked me to do one thing or another.
Q: Now, how many discussions before you ... became supervisor on June 5, 1989, did you have conversations with either Harris, Collins or Spann concerning the pros and cons of the union?
A: Two that I know of.
Q: And what was your position as to what you thought as to the fact that the union might come in?
A: What do you mean what was my position?
Q: Were you for it or against it?
A: I definitely wasn‘t for it. I had just left a job, been laid off from a job in Texas that was union-affiliated, but I had heard nothing from the union stating what their grounds were. I had no basis to base—to give a knowledgeable explanation of how I felt on it. There was no basis; I didn‘t hear anything about it.