ADB Utility Contractors

National Labor Relations Board - Board Decisions

Sep 30, 2008

353 N.L.R.B. 166 (N.L.R.B. 2008)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
353 NLRB No. 21
166
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 Benja-
min Schlesinger issued the attached decision. The Re-
spondent 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 consid-
eration 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 Health-
care 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 Gen-
eral Counsel and the Charging Party filed separate an-
swering 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 mo-
tion 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’

1 348 NLRB 895 (2006).
2 Prior to the Board’s remand, Judge Schlesinger retired. The case
was reassigned to Judge Buxbaum on February 26, 2007.
3 The Respondent has also requested oral argument. The request is
denied as the record, exceptions, and briefs adequately present the
issues and the positions of the parties.
4 The Respondent did not except to the findings that in opposition to
the Union’s organizing campaign it committed multiple violations of
Sec. 8(a)(1), which included impliedly threatening employees with job
loss, futility, and closure, soliciting union supporters to quit their em-
ployment, impliedly threatening discipline for wearing union pins,
impliedly threatening reduction or loss of their bonus, threatening loss
of insurance and retirement plan, threatening to subcontract more work,
interrogating employees about their union activities and threatening
unspecified reprisals because of their union activities, and creating an
impression of surveillance.
rulings, findings,5 and conclusions and to adopt the rec-
ommended 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 ad-
verse 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.

5 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
We find no merit in the Respondent’s exceptions to the judges’ find-
ings that Jeremy Farris, John Shipp, Nathan Schaffer, Adam Williams,
Matt Bridges, Matt Sutton, Rodney Hanephin, and Jason Lohman are
not statutory supervisors.
The Respondent’s contention that Nathan Schaffer was a supervisor
rests on Schaffer’s testimony that on “a few” occasions “when his usual
operator was absent” he informed his supervisor, Project Manager Rich
Robinson, that he wanted a “specific operator” to replace him and there
was “only a single occasion” in which he was not assigned the operator
he requested. We reject this argument. Robinson did not testify and
thus there is no evidence to establish that Schaffer’s input constituted
an effective recommendation. Additionally, the Respondent did not
prove that in any instance in which Schaffer requested a “specific op-
erator” he was exercising independent judgment. The Respondent
states only that Schaffer typically requests operators that he had worked
with before, without explaining why he sought a particular operator on
any occasion.
6 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the National
Labor Relations Board’s powers in anticipation of the expiration of the
terms of Members Kirsanow and Walsh on December 31, 2007. Pursu-
ant to this delegation, Chairman Schaumber and Member Liebman
constitute a quorum of the three-member group. As a quorum, they
have the authority to issue decisions and orders in unfair labor practice
and representation cases. See Sec. 3(b) of the Act.
7 251 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, 399–403 (1983).
ADB UTILITY CONTRACTORS 167
Ready Mix, Inc., 341 NLRB 958, 961 (2004)).8 If, how-
ever, 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 defini-
tion 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 estab-
lished 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 de-
fense 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 Pack-
ing Co., 395 U.S. 575 (1969), in light of the egregious-
ness and pervasiveness of the Respondent’s unlawful
activity.9
Under Gissel, the Board will issue a remedial bargain-
ing 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 ef-
fects, thus rendering a fair election impossible. Id. at
613–614. Category II cases are “less extraordinary cases
marked by less pervasive practices which nonetheless
still have the tendency to undermine majority strength
and impede the election processes.” Id. at 614. In the
latter category of cases, the Board will issue a bargaining
order if it finds “that 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

8 Chairman Schaumber notes that the Board and the circuit courts of
appeals have variously described the evidentiary elements of the Gen-
eral Counsel’s initial burden of proof under Wright Line, sometimes
adding as an independent fourth element the necessity for there to be a
causal nexus between the union animus and the adverse employment
action. See, e.g., American Gardens Management Co., 338 NLRB 644,
645 (2002). As stated in Shearer’s Foods, 340 NLRB 1093, 1094 fn. 4
(2003), since Wright Line is a causation standard, Chairman Schaumber
agrees with this addition to the formulation. In this case, he finds a
causal nexus between the Respondent’s union animus and the dis-
charges of the discriminatees.
9 As Judge Schlesinger found, the record shows that the Union had
the support of the majority of the bargaining unit. As of April 15, 2003,
the Union had obtained signed authorization cards from approximately
33 of the 59 employees in the unit. The Respondent has not excepted to
this finding.
that employee sentiment once expressed through [au-
thorization] cards would, on balance, be better protected
by a bargaining order[.]” Id. at 614–615.
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 vio-
lations, the size of the unit, the extent of the dissemina-
tion 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 Union’s campaign was swift and severe,
beginning only days after the initial organizational meet-
ings on March 29 and April 7, 2003.10 On April 15,
Chris Eirvin, the Respondent’s general manager, deliv-
ered a plantwide speech in which he committed several
serious unfair labor practices. Eirvin stated that the Re-
spondent would lose its “biggest customer”11 and de-
clared that the Company would “shut [its] doors” if the
Union was successful in its organizing effort. Threats of
job loss constitute “hallmark” violations of the Act,
“which are highly coercive because of their potentially
long-lasting impact.” National Steel Supply, Inc., 344
NLRB 973, 976 (2005), enfd. 207 Fed. Appx. 9 (2d Cir.
2006). Threats of plant closure are also “hallmark” vio-
lations of the Act. Intermet Stevensville, 350 NLRB
1350, 1360–1361 (2007); Indiana Cal-Pro, Inc. v. NLRB,
863 F.2d 1292, 1296–1297 (6th Cir. 1988).
Eirvin also committed other serious nonhallmark vio-
lations of Section 8(a)(1) during his speech on April 15,
by encouraging union supporters to seek employment
with unionized drilling companies, repeatedly emphasiz-
ing that the Respondent would never recognize a union,
impliedly threatening employees with discipline for
wearing union pins, and creating an impression of sur-
veillance. See Climatrol, Inc., 329 NLRB 946, 947–948
(1999) (bargaining order imposed where respondent held
mandatory meeting of employees in which it threatened

10 All dates are in 2003, unless otherwise indicated.
11 The Respondent did not except to Judge Schlesinger’s finding that
there was “no factual basis” for Eirvin’s comment that its work with
Ameren UE, which constituted approximately 40 percent of its busi-
ness, “would disappear” if the Union successfully organized its work
force. NLRB v. Gissel Packing Co., 395 U.S. at 618–620.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD168
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 Eir-
vin, 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 Union “could destroy ADB and our jobs!!”
In context, such statements would convey to employees
that the Company would go out of business as a result of
organization, a contention for which there is no support.
As discussed by Judge Schlesinger, Eirvin’s letter also
violated Section 8(a)(1) by unlawfully soliciting the res-
ignation of union supporters, repeatedly stating that un-
ionization would be futile, and warning that money spent
by the Respondent in resisting the Union would be de-
ducted from employees’ bonus payments. See Evergreen
America Corp., 348 NLRB 178, 180 (2006), enfd. 531
F.3d 321 (4th Cir. 2008) (imposing a bargaining order
where employer’s letter to all employees included unlaw-
ful threats). Overall, the Respondent committed ap-
proximately 15 serious violations of Section 8(a)(1) dur-
ing the month of April, nearly all of which were directed
against the entire unit. See NLRB v. General Fabrica-
tions Corp., 222 F.3d 218, 233 (6th Cir. 2000) (enforcing
bargaining order where the employer committed “viola-
tions that affected the entire workforce”).
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 Ed-
gar 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 or-
ganizational 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 authori-
zation cards. The succession of discharges continued
through November, striking at the core of the Union’s
organizing efforts and spreading fear among those who
remained employed.12 “[M]ass discharges leave no
doubt as to the response that the employees will reasona-
bly fear from their employer if, after reinstatement, they
persist in their support for a union.” National Steel Sup-
ply, 344 NLRB at 977 (citations omitted). See also Gen-
eral Fabrications Corp., 328 NLRB 1114, 1115 (1999)
(finding, in case falling at least within Gissel category II,
that unlawful discharge, layoff, or suspension of 7 of 31
unit employees “goes to the very heart of the Act and is
not likely to be forgotten,” as it reinforces employees’
fear that they will lose employment if they persist in un-
ion activity) (citations omitted).
Even the issuance of a complaint by the General Coun-
sel 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 al-
ready commenced in August.
Finally, the Respondent’s proffer of fraudulent docu-
mentary 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, “pre-
pared and issued a fraudulent performance evaluation
and used that evaluation to lay off the most prominent
union supporter”). This conduct demonstrated to em-
ployees that all union supporters, even those with flaw-
less work records, were vulnerable to the Respondent’s
retaliatory actions.
The severity of the foregoing unlawful conduct is ex-
acerbated by the involvement of General Manager Eir-

12 Eleven of the 13 unlawful discharges occurred by the end of May
2003.
ADB UTILITY CONTRACTORS 169
vin. 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 com-
municated 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 com-
municated threats of plant closure and job loss, its unlaw-
ful discharge of 22 percent of the bargaining unit, its
fabrication of evidence against union supporters, the in-
volvement 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 tradi-
tional remedies cannot erase the coercive effects of the
conduct, making the holding of a fair election impossi-
ble.” 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 evi-
dence 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 ex-
plained, 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 viola-
tions generally are not considered. See Garvey Marine,
supra at 995–996.14 Although we adhere to that policy,15

13 We reject the Respondent’s motion to dismiss, for lack of jurisdic-
tion, the part of the complaint requesting a Gissel bargaining order.
Contrary to the Respondent, a pending representation petition is not a
necessary predicate for a Gissel order. See NLRB v. Gissel Packing Co.,
supra at 580 (observing that the union at Gissel did not seek an election,
but instead filed unfair labor practice charges against the employer).
14 Accordingly, we deny the Respondent’s second motion to reopen
the record. In any event, the Respondent’s second motion to reopen the
record is procedurally invalid. Judge Buxbaum denied the Respon-
dent’s first motion to reopen the record in his supplemental decision.
The Respondent has not specifically excepted to Judge Buxbaum’s
ruling; instead it has filed a second motion to reopen the record before
the Board. See Sec. 102.46(b)(2) of the Board’s Rules and Regulations
(“Any exception to a ruling . . . which is not specifically urged shall be
deemed to have been waived.”). Furthermore, its second motion before
the Board includes only a bare recitation of its argument, neglecting
even to mention the nature of the evidence being offered. Sec.
102.48(d)(1) of the Board’s Rules provides that a motion to reopen the
nevertheless, in light of the criticism the Board has re-
ceived from some courts, particularly the District of Co-
lumbia 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 manage-
ment and employee turnover argued by the Respondent
does not render a bargaining order inappropriate. Re-
garding management turnover, both judges acknowl-
edged 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 dissi-
pate the effects of the Respondent’s unfair labor prac-
tices. As found by Judge Buxbaum, “while Eirvin was
the most visible official in the employer’s antiunion ef-
fort, 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 offi-
cials at the Company. The judge found, and we agree,
that the Respondent’s antiunion campaign was in accor-
dance with Keeley’s antiunion sentiment. Keeley re-
mains the owner of the Company and there is no evi-
dence that by word or deed he ever repudiated the unlaw-
ful activities detailed herein.16 See Consec Security, su-
pra 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. Cf. Audubon Regional
Medical Center, 331 NLRB 374, 377 (2000) (declining
to issue bargaining order due, in part, to 100-percent
turnover in management).
We also find that employee turnover since the Re-
spondent’s commission of the unfair labor practices does
not militate against a bargaining order. As an initial mat-

record must state “the additional evidence sought to be adduced [and]
why it was not presented previously.” As the Respondent’s motion does
not fulfill either of these requirements, we conclude that the Respon-
dent’s motion does not comply with the Board’s Rules, and we reject it
for that reason as well.
15 Chairman Schaumber does so for institutional reasons.
16 The Respondent argues that its recall of two of the discriminatees,
Ryan Adams and Clarence Williams, shows that it “has made pro-
gress.” We disagree. In its brief, the Respondent asserts that “we can
assume” that Adams and Williams “were union supporters.” The Re-
spondent, however, does not argue they were ever leaders in the orga-
nizing campaign and the judges made no such finding. Their recall
thus stands in stark contrast to the Respondent’s failure to recall any
other discriminatee, including the four employees who sat at the head
table during the union meeting on April 7—Schreit, Bridges, Farris,
and Adam Williams.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD170
ter, a substantial percentage of the turnover is attributable
to the Respondent’s unlawful discharge of 11 union sup-
porters, 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. In-
deed, 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. Id. In
light of the employer’s extensive record of unlawful ac-
tivity, the Board imposed a category I Gissel bargaining
order. Rejecting the employer’s argument that a Gissel
order was no longer appropriate based on the passage of
time (over 4 years had passed since the respondent’s
most serious violations), the Board found that “the [em-
ployer’s] misconduct involves the type of severe and
pervasive coercion that has lingering effects and that is
not readily dispelled by time.” Id. The Board further
observed that “[p]assage of time, by itself, does not nec-
essarily erase the lingering effects of such egregious and
widespread unfair labor practices.” Id. The court en-
forced the Board’s Gissel order. Power, Inc. v. NLRB,
supra, 40 F.3d at 423 (“When the unfair labor practice
rises to [the] prominence [of a Gissel category I case],
the only additional element needed to rationally support a
bargaining order is a finding that the detrimental effects
of the unfair practices will persist over time, so as to con-
tinue the need for a bargaining order even after months
or years have elapsed.”).17
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 re-
sponded 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 Cir-
cuit 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 at 332–333.18

17 The court of appeals also emphasized that “[t]he NLRB, with its
special expertise in these matters, is entitled to a high degree of defer-
ence when it makes the threshold determination that a pattern of such
egregious violations falls into Category I[.]” Power, Inc. v. NLRB,
supra at 422–423. The court further held that, in a category I case, the
Board “need not make detailed findings of the type required for Cate-
gory II cases, but instead must only make ‘minimal findings’ of the
lasting effect of unfair labor practices to support a bargaining order.” 40
F.3d at 422.
18 The District of Columbia Circuit has enforced Gissel orders in
cases involving similar violations, despite delays of more than 4 years
between the unlawful conduct and the issuance of the Board’s orders.
See, e.g., Aldworth Corp., 338 NLRB 137, (2002), enfd. sub nom.
Dunkin Donuts Mid-Atlantic v. NLRB, 363 F.3d 437 (D.C. Cir. 2004),
and Garvey Marine, Inc., supra.
The Respondent’s brief relies heavily on Cogburn Healthcare Cen-
ter v. NLRB, 437 F.3d 1266 (D.C. Cir. 2006), in which the court refused
to enforce the Board’s Gissel order following a 5-year interval between
the unfair labor practices and the Board’s decision. That case, however,
involved a category II bargaining order and the employer’s 8(a)(3)
ADB UTILITY CONTRACTORS 171
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 de-
cision, 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. Ken-
tucky 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 de-
tailed supplemental decision evaluating the evidence
under the Oakwood standard. Despite the length and
complexity of the case, Judge Buxbaum issued his deci-
sion 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 De-
cember 2007. Accordingly, the case was not fully briefed
to the Board until late last year.
Moreover, the Respondent is at least partially respon-
sible for the delay in this case. The Respondent’s posture
on the supervisory issue at the unfair labor practice hear-
ing—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 hear-
ing. 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 is-
sued 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 pur-
poses in this Gissel category I case. See Evergreen Amer-
ica Corp., supra at 182.

misconduct, though serious, was less pervasive than the Respondent’s.
In addition, the court found that the Board failed to thoroughly consider
the respondent’s changed circumstances evidence, as the court requires
in category II Gissel cases. See Power, Inc. v. NLRB, supra at 424.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judges and
orders that the Respondent, American Directional Bor-
ing, Inc., d/b/a ADB Utility Contractors, Inc., St. Louis,
Missouri, its officers, agents, successors, and assigns,
shall take the action set forth in the Order.
Paula B. Givens, Esq., for the General Counsel.
Lawrence P. Kaplan, Esq. and Joshua M. Avigad, Esq. (Kaplan
Associates, LLC), of St. Louis, Missouri, for the Respon-
dent.
Christopher N. Grant, Esq. (Schuchat, Cook & Werner), of St.
Louis, Missouri, for the Charging Party.
DECISION
FINDINGS OF FACT AND CONCLUSIONS OF LAW
BENJAMIN SCHLESINGER, Administrative Law Judge. This is
a Gissel1 case involving, among other alleged unfair labor prac-
tices, 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 (the Union), the
employees of Respondent ADB Utility Contractors, Inc. Re-
spondent denies that it violated the Act in any manner and par-
ticularly 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 Missouri corporation, has its principal office
and a place of business in St. Louis, Missouri, and other facili-
ties located in Jacksonville, Florida, and Kansas City, Missouri,
where it has been engaged in aerial and underground installa-
tion and maintenance of cable and fiber optics. During the 12-
month period ending November 30, 2003, Respondent pur-
chased and received at its St. Louis facility goods valued in
excess of $50,000 directly from points outside the State of Mis-
souri. I conclude, as Respondent admits, that it is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act. I also conclude, as Respondent also admits,
that the Union has been a labor organization within the mean-
ing of Section 2(5) of the Act.
The Union unsuccessfully attempted to organize Respondent
in 2001, and engaged in a prevailing wage protest against Re-
spondent at its Parkton subdivision job commencing in August
2002. It ceased picketing in November 2002, but its business
agent, John Atchison, continued to speak to Respondent’s em-
ployees at Parkton and nearby jobsites until about Christmas
2002; and the Union referred several out-of-work employees to
Respondent, including alleged discriminatees Ed Schreit and
Matt Bridges, with the object of organizing Respondent from

1 NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).
2 The relevant docket entries are as follows: The Union filed its
unfair labor practice charge in Case 14–CA–27386 on April 16, 2003,
and amended it on June 19, 2003. It filed its charge in Cases 14–CA–
27570 and 14–CA–27677 on September 16 and December 2, 2003,
respectively. Complaints issued on June 26, October 9, and December
9, 2003; and hearings were held in St. Louis, Missouri, on 16 days
between August 4, 2003, and February 5, 2004.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD172
the inside. On March 29, 2003,3 the Union held its first meet-
ing with 11 of Respondent’s employees; and at the end of that
meeting, the employees agreed to talk to their fellow employ-
ees, with the hopes of obtaining greater interest, and to meet
again on April 7, when 30 attended. Schreit, Bridges, Jeremy
Farris, and Adam Williams (all of them were subsequently
fired) sat at the head table at this meeting, helped employees to
complete authorization cards, collected authorization cards (all
of the employees signed), took notes, and answered employees’
questions. The Union gave employees American flag pins at
this meeting to see if Respondent would make them take them
off, with the plan to later wear union pins. Once again, the
employees agreed to talk to other employees in an effort to gain
even more support, and to meet again on April 15.
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 be-
ing 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 agree-
ments that Ameren UE had with the union is that if the
work is to be subcontracted out, and the contractor is a un-
ion 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.

3 All dates are in 2003, unless otherwise indicated.
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 un-
ions 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 go-
ing 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 un-
ion. I bullshit none of you. We’re not gonna single peo-
ple 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 at-
tempts at all.
So for those that think they got this effort figured out,
we’re not even gonna recognize it. Have the union attor-
neys figure that one out. For those of you guys that are
just so adamant about being union—that’s your right, ab-
solutely, 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 indi-
viduals, 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 hand-
book, 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 under-
stand 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, regard-
less. Any questions? [Exhale] High winds today gentle-
men, 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 ani-
mus regarding the union activities of its employees. Second,
Eirvin’s testimonial description of his speech, before being
ADB UTILITY CONTRACTORS 173
confronted with the fact that the speech was recorded, demon-
strates 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 particu-
larly outrageous his denial of any knowledge that the employ-
ees 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 Union and that a few employees had
conducted “little meetings” at the Parkton subdivision was
utterly improbable. There is a sense of urgency in Eirvin’s
speech. It was not caused by something that occurred in No-
vember, 5 months before. There was something recent that
caused him to spew forth his threats of closure; and his denial
of knowledge of the union meetings is particularly belied by his
own acknowledgement of the “couple of meetings,” two, being
exactly the number of union meetings held, not picketing at
Parkton. His reference to the employees’ wearing of pins was
particularly telling. He had seen the American flag pins, but
that is not what he was referring to. He was referring to the
union pins that were to follow—“If anybody decides to pull any
shit with any pin”—which he could have known about only if
someone told him what had transpired at the April 8 Union
meeting. Furthermore, his threats came at a particularly appro-
priate time, the morning of the Union’s next intended meeting.
Finally, the fact that Respondent fired the 4 employees who sat
at the head table during the April 8 meeting and 9 of the 11
employees who attended the first meeting on March 29 was no
mere coincidence. Eirvin knew exactly who headed the union
drive, and his testimony about his lack of knowledge of the
union meetings was patently false.
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 de-
spite the fact that Williams read the names on the list aloud in
the hallway on April 23, well within the range of Eirvin’s hear-
ing. 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 Union, yet neither, nor
Eirvin, according to their testimony, was at all interested in the
names of the employees who were organizing, a threat to Re-
spondent’s existence. Even without the fact that so many Un-
ion activists and adherents were fired or transferred, I find that
improbable and do not believe any of them.
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 St. Louis area electric company that provides
Respondent with approximately 40 percent of its business, and
various homeowners. The various customers, all of whom
testified that they did not make the complaints that would have
caused Respondent to investigate, and take copious photo-
graphs of, Lohman’s malfeasance, as well as the testimony of
Ray Pour, Ameren UE’s construction supervisor, who denied
having complained of Lohman’s work, persuade me that Re-
spondent was out to get Lohman. There is nothing that Loh-
man did that would so infuriate Respondent, other than his
union activities, knowledge of which Respondent’s representa-
tives refused to admit. They were not telling the truth when
they testified that they had no knowledge. They were similarly
not telling the truth when they refused to admit seeing any of
the union pins worn by their employees. Strangely, they admit-
ted seeing their employees wearing smaller American flag pins.
But anything to do with the Union, which Eirvin so abhorred
that he threatened that he would close Respondent rather than
deal with the Union, was somehow purposefully ignored and
paid no attention to, which is utterly improbable, because Re-
spondent fired or transferred only those who attempted to sup-
port the Union.
Perhaps Eirvin’s most outrageous misstatement of fact oc-
curred 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 repre-
sented 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 Han-
ephin. 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 memo-
randum 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, undoubt-
edly 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 ener-
gize 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 sce-
nario to support the sinful, treasonous conduct of Hanephin and
justify Respondent’s reaction (discharge) to it. Eirvin’s testi-
mony was no mistake or inadvertent error. It was deliberate,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD174
calculated lying, which Robinson joined in by corroborating
Eirvin’s initial fabricated testimony that Respondent was noti-
fied 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 Han-
ephin’s discharge, which could not possibly be accurate, be-
cause the memo states: “[I]t’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 re-
motely similar to the one about which he originally testified.
Therefore, the much-testified-about telephone conversation
never happened. Eirvin further compounded his lies by claim-
ing that, when he spoke to Pour on the telephone about Han-
ephin’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 discus-
sion. The result is that I do not credit Eirvin at all, about any-
thing, 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 testi-
mony; 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 Sec-
tion 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 Union, the Ameren UE work, which constituted approxi-
mately 40 percent of Respondent’s business, would disappear.
There was no factual basis for that comment. NLRB v. Gissel
Packing Co., 395 U.S. at 618–620. By repeatedly telling the
employees that Respondent was not going to be a union facility,
Eirvin threatened the employees that it would be futile to select
the Union. Eirvin also unlawfully threatened employees with
the closure of its facility if employees selected the Union as
their bargaining representative. He unlawfully solicited em-
ployees who supported the Union to quit and to obtain em-
ployment with two union facilities, Sachs and Perkins. By
April 15, some employees were already wearing American flag
pins, with the eye toward wearing union pins later. Eirvin’s
speech was directed toward banning the wearing of pins, par-
ticularly in light of the ongoing union organization, and impli-
edly threatened the employees with discipline for wearing pins
demonstrating support for the Union. Notwithstanding his
reliance on Respondent’s handbook, there is nothing in the
handbook regarding pins. Accordingly, his threat served no
legitimate business concern and was made solely to hamper
union organization. Meijer, Inc., 318 NLRB 50 (1995).
On April 18, Respondent mailed and gave the following let-
ter and agenda (emphasis in the original) to the employees with
their checks; and Robinson read both documents to the employ-
ees 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 success-
fully survived by implementing many cost saving meas-
ures and securing other customers while keeping us em-
ployed 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 eco-
nomically 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 competi-
tive 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 match-
ing 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 pay-
checks. The truth is that IBEW Local 2 is interested in or-
ganizing 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 an-
other 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 ex-
tremely 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 sur-
vived 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
ADB UTILITY CONTRACTORS 175
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 UNION FREE
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 UNION at
ADB
Industry is non union
—our markets are non union
—look at our competition . . . nationwide it is non un-
ion
—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 be-
cause of a picket?
—How many of your friends are out of work?
Union does nothing . . . and can’t make promises happen
—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 com-
pany to be proud of
—Talk to people who have been union . . . there are
many at ADB
—if your [sic] convinced you want UNION I will
setup an interview at Gerstner
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 of-
fices
—16% get a contract . . . 84% fail
—7% actually bargain for better packages than exist-
ing . . . 93% don’t
——not good percentages
—Are you willing to risk this . . . how about your fam-
ily?
—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 Union as their bar-
gaining representative, because they owed their employment to
the fact that Respondent was nonunion. Somehow, but not
explained by objective fact, if that status should change, Re-
spondent would lose its competitive edge, and that would result
in the loss of employment. Indeed, putting a union in Respon-
dent might kill it, according to Eirvin, resulting in loss of not
only employment but also insurance and Respondent’s retire-
ment plan and Respondent’s “destruction.” Those are unlawful
threats. NLRB v. Gissel Packing Co., 395 U.S. at 618–620.
By telling employees that it would fight all attempts to bring
in a union, even if it took years, and that it would never union-
ize and would never recognize a union, Respondent unlawfully
threatened its employees that it would be futile for them to
select the Union as their bargaining representative. Respondent
unlawfully invited its employees to resign their employment
and promised to arrange for an appointment at a union com-
pany. It unlawfully threatened to “subcontract more work” if
its employees selected the Union as their bargaining representa-
tive. It unlawfully threatened the employees with the loss or
reduction of their year end bonus money, because it would
spend that money on fighting the Union. Yet another unfair
labor practice related to the letter and agenda occurred when
Project Manager Kevin Sellers read them to his employees,
adding that, no matter what the employees might do, Respon-
dent would never go union. That is similarly an unlawful threat
of futility.
Finally, on April 23, 2003, the day that many employees dis-
tributed 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 sup-
porters should move elsewhere, and the fact that the question
was asked by Respondent’s highest ranking official, this consti-
tutes 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 vio-
lated 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 mean-
ing 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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD176
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 author-
ity 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 U.S. at 712–713, that Section 2(11)
of the Act sets forth a three-part test for determining supervi-
sory status:
Employees are statutory supervisors if (1) they hold the au-
thority to engage in any 1 of the 12 listed supervisory func-
tions, (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 em-
ployees do not use ‘independent judgment’ when they exercise
‘ordinary professional or technical judgment in directing less-
skilled employees to deliver services in accordance with em-
ployer-specified standards.’” 532 U.S. at 713. The Court re-
jected that interpretation, noting that, in analyzing the statutory
term “independent judgment,” while the Board was free to
examine, within reason, the degree of discretion required for
supervisory status, and that that discretion “may be reduced
below the statutory threshold by detailed orders and regulations
issued by the employer,” 532 U.S. at 713–714, the Board could
not categorically exclude without statutory basis certain kinds
of judgments. The Board’s categorical exclusion “turns on
factors that have nothing to do with the degree of discretion an
employee exercises,” the Court held, 532 U.S. at 714, and rea-
soned that there was no supervisory judgment worth exercising
that does not rest on professional or technical skills or experi-
ence. Furthermore, the Board’s attempt to limit “its categorical
exclusion” to professional judgment applied “‘in directing less-
skilled employees to deliver services’” (532 U.S. at 715) failed
because it was “directly contrary to the text of the statute.” Id.
Every supervisory function must require the use of independent
judgment before supervisory status will obtain; yet, the Board
would limit “independent judgment” to only 1 of the 12 listed
functions: “responsibly to direct.” 532 U.S. at 715–716.
Although Respondent made much of its Kentucky River de-
fense at the hearing, insisting that various employees were su-
pervisors under Kentucky River, it wrote very little in its brief.
Indeed, Respondent relies more on a traditional claim of super-
visory status, as is shown by one of the only two decisions it
cites,4 and not a claim, which parenthetically is not urged by the

4 In Arlington Masonry Supply, 339 NLRB 817 (2003), the em-
ployee prioritized jobs, assigned employees to work on specific trucks,
decided what type of maintenance work needed to be done, inspected
all work, approved time off, and recommended suspension. He was
held to be a supervisor. In Sheet Metal Workers Locals 102 & 105
(Comfort Conditioning Co.), 340 NLRB 1240 (2003), although the
administrative law judge found that Jack Dresser was a supervisor, that
General Counsel or the Union, that the crew leaders have such
professional or technical backgrounds or are so experienced
that their decisions or their direction to less experienced em-
ployees would not be supervisory. And thus Kentucky River is
not particularly relevant to the disposition of whether the crew
leaders are supervisors within the meaning of the Act, at least
as of the moment of the issuance of this Decision.5
Kentucky River is helpful, however, in setting forth some
guidelines to determine this issue. First, Respondent, by claim-
ing that certain employees are supervisors, bears the burden of
proving the challenged employees’ supervisory status. 532
U.S. at 711, approving Masterform Tool Co., 327 NLRB 1071,
1071–1072 (1999). Second, the Board maintains the reason-
able discretion to resolve the question of the degree of judg-
ment which alleged supervisors exercise by focusing on the
“clerical” or “routine” nature of the judgment. 532 U.S. at 714.
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 bor-
ing 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 pull-
ing 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 la-
borer, 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 opera-
tors.
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

was not the crux of that 8(b)(1)(B) case. The issue was whether he was
“an employer representative” within the meaning of that section. The
Board affirmed that he was not.
5 Almost 2 years ago, on July 25, 2003, the Board issued a “Notice
and Invitation To File Briefs” in three cases involving supervisors to
consider issues raised by Kentucky River. Two of the three involve
nurses: Oakwood Healthcare, Inc., Case 7–RC–22414 (348 NLRB 686
(2006)); Golden Crest Healthcare Center, Case 18–RC–16415–6 (348
NLRB 727 (2006)); and the third, perhaps critical to the issue in this
proceeding, involves leadmen at a manufacturing plant, Croft Metals,
Inc., Case 15–RC–8393 (348 NLRB 717 (2006)). I have delayed the
issuance of this Decision in the hope that the Board would have dis-
posed at an earlier date of these Kentucky River issues, which may
impact my resolution of Respondent’s contentions, particularly because
so many of the alleged discriminatees are alleged to be supervisors and
a finding that four of them are supervisors would destroy the Union’s
claim of majority support for the purpose of its requested bargaining
order. Due to personal commitments, I can delay no longer.
ADB UTILITY CONTRACTORS 177
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 lo-
cates 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 apprecia-
bly 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 de-
pends 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 pro-
gress 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 employ-
ees continued to work through lunch, even though they were
not being paid. The issue of rain was subject to some conflict-
ing 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 Rob-
inson 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 lo-
cates, 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 du-
ties that they perform, they do day in and day out. The boring
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD178
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 com-
munally 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 af-
firmed, 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 em-
ployees 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 prob-
lems, 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 employ-
ees 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 respon-
sible 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. Further-
more, until the unfair labor practices at issue herein, Respon-
dent 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 com-
pleted, 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. By the very nature of the routine, repetitive work per-
formed 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 em-
ployees 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 conclu-
sionary 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, conclusion-
ary statements, without supporting evidence, are insufficient to
establish supervisory status and authority. Armstrong Machine,
supra, 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 presenta-
tion of its case were the crew leaders’ “particular acts and
judgments that make up their direction of work.” Armstrong
Machine Co., supra, 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 Ma-
chine Co., supra, slip op. at 1 fn. 4, quoting from Chicago Me-
tallic 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,” Arm-
strong Machine Co., supra, 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 affirma-
tively 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 offi-
cers 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 supervi-
ADB UTILITY CONTRACTORS 179
sors. 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 “re-
place [Gresham] when he hurt his wrist.” Nanney, however,
did not do so; and Gresham eventually quit about a month later.
So, Williams did not effectively recommend that Gresham be
discharged. That, however, is not even the test. The authority
to effectively recommend generally means that the recom-
mended action is taken without independent investigation by
superiors, and not simply that the recommendation is ultimately
followed. Children’s Farm Home, 324 NLRB 61, 61 (1997).
Neither Nanney nor the other project managers testified about
whether they did, or did not, independently investigate these
“recommendations.”
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, how-
ever, that Respondent authorized or directed Williams to do so
or that that was part of Williams’ responsibilities. Rather, Wil-
liams 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. Pine Brook Care Center, 322 NLRB
740, 748 (1996). I conclude that Williams was not a supervisor
within the meaning of Section 2(11) of the Act.
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 respon-
sible to see that all of the proper equipment, tools, and supplies
were on the jobsite, the evidence demonstrates that the blue-
prints 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 work-
day, 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 supervi-
sor. 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 nor-
mally 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 em-
ployee 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 sus-
pend 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 termi-
nation process; no other crew leader had the authority that Loh-
man 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

6 In addition, Lohman performed some open cut work using a small
backhoe, ran a small excavator, dug into electrical pads and poles,
pulled electrical wire, and spliced conduit.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD180
fire someone, that he could not, because Nanney was the super-
visor.
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 Vul-
steki; but Lohman asked Nanney to take Vulsteki off his crew
because he could not get along with him (“He just liked to ar-
gue 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 be-
tween two employees, and not a reflection of a supervisory
function. Indeed, Nanney testified that he tried “to get every-
body 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 “pro-
moted” 2 weeks later. Lohman was never told that he super-
vised 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 nor-
mal 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 produc-
tivity 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 Re-
spondent 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, Re-
spondent never offered any evidence, other than the evidence
that I have rejected, about the authority Lohman actually exer-
cised, 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 per-
formed 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 ca-
ble/telecommunications side of Respondent’s business, install-
ing 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, super-
vised 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 equip-
ment 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 por-
tion 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 evi-
dence 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 recom-
mend effectively the removal of one of his crew members from
his crew. The facts are that Farris was dissatisfied with opera-
tor 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
ADB UTILITY CONTRACTORS 181
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 independ-
ent 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 exer-
cised 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 la-
borer to “to put the carrot [phonetic] inside the pipe, and pull
the pipe out that we needed for that job.” Politte told that la-
borer 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 tes-
tify 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 spe-
cific 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 recollec-
tion 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 Sec-
tion 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 Eir-
vin’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 produc-
tion 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 com-
pleted cards, Schreit taking attendance and answering questions
of employees. As noted above, Eirvin had knowledge of ex-
actly 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.” Al-
though 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 knowl-
edge 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), enfg. 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 ac-
tively 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 lo-
cators were responsible for production and thus were supervi-
sors, Respondent discharged Schreit for lack of production, in
spite of the fact that he was a boring operator and not responsi-
ble 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. Re-
spondent 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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD182
crews, to get their production up.”) Rather, Respondent as-
signed Schaffer, whom it subsequently discharged for poor
production, when Schaffer was promoted from operator to loca-
tor 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 con-
firmed 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. Robin-
son, in addition to failing to corroborate much of Eirvin’s tes-
timony, knew of no plan to help Schaffer locate better and of-
fered Schaffer no help to improve his production.
Similarly, Eirvin’s claim that he put Farris “with several dif-
ferent 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 em-
ployment, 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 Re-
spondent’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 Union, it had no cause at all to discharge Schreit, and its
reason for discharging Schaffer and Farris was suspect, because
Respondent had never previously discharged crew leaders for
lack of production. Their production was used by Eirvin as a
pretext, and his discharge of them was disparate, in light of the
General Counsel’s showing that Shipp’s production was even
worse.
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 particu-
larly Eirvin’s lack of any credible reason that he discharged
Farris and Schaffer, rather than Shipp. Furthermore, Respon-
dent’s explanation of the process of terminating the three em-
ployees 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 meet-
ing, 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, al-
though the evaluations of many of the employees noted prob-
lems 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 inad-
vertent switch from “low production” to “bad attitude” revealed
Robinson’s real concern about Farris’ union activities. James
Julian Inc. of Delaware, 325 NLRB 1109 (1998); Armstrong
Machine Co., 343 NLRB 1149, 1149 fn. 4 (2004).
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” loca-
tors. In addition, Eirvin admitted that Respondent has reas-
signed 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 Union’s first and most of the other
meetings, talked to other employees to drum up union support,
and wore a “Union Yes” pin on his shirt everyday at work for a
week or two before his termination. His name was on the list
of union supporters and the Union’s request for recognition.

7 Strangely, both Schaffer’s and Schreit’s personnel files contain
employee warning reports that indicate that they were discharged for
hitting a located gas line. However, the reports were dated March 17,
and both employees were actually discharged on April 15. Respondent
did not rely on the incident in defending its action; and I reject the
General Counsel’s contention that Respondent’s defense shifted or was
inconsistent and that I should conclude, for this reason, that no legiti-
mate reason existed for the discharges.
ADB UTILITY CONTRACTORS 183
He was the one whom Nanney told that there was going to be a
bunch of people gone from the Ameren UE side of Respon-
dent’s business in a couple of weeks; and, when Nanney told
him on April 24 or 25 that he wanted a great big bumper sticker
and a “Union Yes” pin, Hanephin replied that he knew where
he could get them. Despite Nanney’s awareness of Hanephin’s
feelings about the Union, Eirvin did not admit that he had
knowledge that Hanephin was a union supporter. Instead, he
testified: “I did not know for sure Rodney was a union sup-
porter. I assumed . . . by his attitude.”
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 Han-
ephin brought conduit out of the ground on the nontransformer
side of a utility pole, fabricated a document to support Han-
ephin’s discharge, and repeatedly testified falsely at the hear-
ing. 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 mind-
set 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 em-
ployee with an impeccable reputation (according to his Febru-
ary 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 su-
pervisor, 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 trans-
former 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 testi-
mony. 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) indi-
cates 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 awn-
ing 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 Han-
ephin’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 Ad-
ams, Clarence Williams, Rocky Lucas, and John Langford.
Sellers said that the work in St. Louis had run out and that he
needed three employees to go to Jacksonville, Florida. The
move was permanent, the employees would not be given a raise
or relocation fee, and they needed to be in Florida in 3 days, on
Monday. He called on each of them, and each declined. He
then told Langford and Lucas to go back to what they had been
doing the day before and told Sutton, Williams, and Adams that
they were laid off. An internal memorandum and Respondent’s
termination report (“Matt was offered a position in Florida but
declined. Matt was terminated due to his decision.”) indicate,
however, that they were terminated.
The three who were terminated supported the Union. Lang-
ford and Lucas were the only employees on this crew who did
not engage in any union activities.8 When Sutton was being
interviewed for his job (he started 2-1/2 months before, on Feb-

8 That they may have had more seniority than the other three em-
ployees is irrelevant. No one testified that Respondent followed senior-
ity when it transferred or laid off its employees.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD184
ruary 10), Sellers said that there would be no lay offs; that the
previous year he kept employees working 40 hours; and that, if
things did slow down, he would find work around the yard for
Sutton to do, but he expected things to pick up. Sutton in-
formed Sellers that he could not travel because his wife worked
Monday and Friday nights and he had trouble getting babysit-
ters for his child. Sellers said that Respondent could work with
that and that Sutton’s inability to travel would not be a prob-
lem; he would be able to keep Sutton working around the shop.
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 Blue
Springs, Missouri next. Sutton asked what Sellers was going to
do with him because he could not travel with his wife working
nights and not having a babysitter. Sellers said he would find
him work with another crew so that he could stay busy. De-
spite Sellers’ commitment and assurances, Sutton was termi-
nated.
The General Counsel has proved a prima facie case under
Wright Line. The three who were terminated were union ad-
herents: the two who were not terminated were not union sup-
porters. Sutton attended all the Union’s meetings; he talked to
the employees on his crew about the Union; he signed an au-
thorization 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 re-
fused to accept and which Sutton left face-up on Sellers’ desk.
A promise had been made to Sutton that he would not be trans-
ferred 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 Missouri.
There is no credible evidence that Respondent terminated em-
ployees for refusing to accept permanent transfers to Florida.
There is evidence that Respondent was hiring three laborers on
a concrete crew, work that Adams and Clarence Williams could
have done or trained to do.
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 Re-
spondent 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 un-
ion 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 Respon-
dent’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 documen-
tary 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, some-
where 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 as-

9 The General Counsel contends that Respondent presented a shifting
or inconsistent defense when it opposed Lohman’s application for
unemployment benefits on the ground that “he was offered work in
Florida and chose not to go.” I find that that opposition, prepared by
one of Respondent’s clerical employees, was an inadvertent mistake.
10 By this finding, I do not imply that Lohman did his work poorly.
Sometimes, for example, despite throwing down sufficient grass seed,
the planting is disturbed by a violent storm, which washes away the
seed.
11 The testimony of the employees differed in numerous respects.
The narration of these discharges is based on the probabilities of what
actually happened, and when, and not on any particular employee’s
recollections.
ADB UTILITY CONTRACTORS 185
signment on which they would hand dig, or being laid off,
which, in light of all the facts, meant “terminated.” The em-
ployees would have to find their own means of transportation
(when transferring to Florida, Ed White’s crew had been per-
mitted 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 tele-
phone number of the project manager in Florida, Mike
Stankewitz, who said, in the first telephone call that Williams
made, that he had no work for them until May 18 and, in the
second, that he would not be ready for them on May 18. That
prompted Williams to speak to Eirvin, who denied Williams’
accusation that they were being transferred because of the Un-
ion and said that they would be in Florida until work in St.
Louis picked up and that, if they did not go to Florida, they
would not be called back and would be fired. Williams threat-
ened that, if he went to Florida, he would try to organize the
facility there. Williams and Mack never went to Florida. On
the day that they were supposed to leave for Florida, sometime
about May 18, Mack backed out, because he feared being laid
off in Florida because of his union activities. Williams then
decided that he would not go, because he could not afford to
take the trip alone.
Respondent knew that Bridges, Williams, and Mack were
union supporters. Eirvin so admitted; except for Mack, Robin-
son did, too. Employee Harold Armstrong was interrogated by
Eirvin on about April 15 and identified both Bridges and Wil-
liams 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 em-
ployees the day before that he would not recognize the Union.
It was only after that event that Bridges was first assigned to
work with Williams and Mack.
The reason for their layoff is suspect. First, I find it difficult
to believe that open cut work simply disappeared, as Respon-
dent 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 employ-
ees could have finished. Furthermore, they had been working
regular overtime; and, within several weeks prior to their trans-
fer option, Respondent had contracted out a substantial amount
of open cut work. It is undisputed that the soil in Missouri is
filled with rocks, and the rocks prohibit the use of equipment
other than the trenchers and backhoes that Bridges and Wil-
liams operated. Nanney conceded that Respondent had no idea
which of the 10 or 20 jobs given to it by Ameren UE, on any
given day, week, or month, would hit rock and need to be open
cut. After Bridges and Williams were discharged, Respondent
had new open cut work and, just 1 day after it issued its termi-
nation letter to Williams, hired Jeremy Warden, another back-
hoe operator, and John Carrigan to do the same open cut work
that Bridges and Williams had previously performed. Respon-
dent shifted Krause from a boring machine to a backhoe. In
June it received bills for open cut work that it subcontracted to
CSG Utilities (the bills do not show when the work was per-
formed). By July, Respondent transferred Lucas from the tele-
communications to the Ameren UE side and had so much addi-
tional open cut work that it had to bring to St. Louis Florida
Project Superintendent Jay Searles to perform that work.
So there was open cut work in St. Louis that Respondent
could reliably predict would be available for these two very
experienced operators. Williams could operate a bulldozer,
backhoe, track hoe, plow, trencher, cement cutter, and excava-
tor; Bridges, with 8 years of underground utility experience,
could operate a backhoe, boring machine, trencher, and plow,
and he could also locate. Even had there not been work avail-
able at the instant that they were offered their choice of Florida
or discharge, work in some craft was available to tide them
over, certainly the laborers’ work of hand digging that they
were offered in Florida. Nanney rated Williams as a “[v]ery
good operator of anything we have. He will get the product in.
Will try anything and succeed UE, water, etc. Does anything
we ask him to do.” Robinson rated Bridges “very professional”
and a “good operator.” In sum, I find that there was work
available for these employees.
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 St.
Louis that he would not have to travel further than Knob Noster
or Kansas City, Missouri. By offering Bridges a transfer to a
location that Respondent knew Bridges would not accept, Re-
spondent discharged him. Indeed, Respondent offered no rea-
son that it needed Bridges, a trained and experienced operator
and, for that matter, the other two employees, to hand dig in
Florida and could not hire manual laborers in Florida, instead,
and no proof was supplied by Respondent to show that its Flor-
ida operation could not hire persons there.
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 sub-
stantial turnover. There is no reason that Respondent would
have wanted to rid itself of one of the few laborers who per-
formed 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 ex-
perienced 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 la-
borer 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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD186
Fourth, there are documents that reveal that something in this
transfer-discharge was amiss. For example, in the three em-
ployees’ personnel folders was a termination memo, dated May
7, that McElligott wrote regarding the meeting that day, cap-
tioned “Termination due to refusal to relocate and due to lack
of work.” It stated: “All employees were undecided for reloca-
tion at this time. So a decision was made as of [sic] for lack of
work in the St. Louis area, the employee would unfortunately
be terminated at this time with no time frame of re-hire.” Ob-
viously, Respondent expected that the very offer of a transfer to
Florida would be so unappealing that the employees would
reject the transfer, even though only Bridges did immediately.
Also included in Williams’ personnel file is a memo written by
Ed Eirvin the day after the meeting, May 8, about receiving a
customer complaint regarding a job Williams performed in
2002. Respondent gave no explanation about this complaint
regarding an event that occurred at least 5 months before, and I
infer that Respondent was trying to strengthen its case to justify
its discharge of Williams.
Fifth, Respondent had never laid off an employee on the
Ameren UE side of the business. Respondent had never forced
transfers to Florida, under penalty of termination. Its experi-
ence was exactly the opposite. When work slowed down, Re-
spondent moved its employees to another part of its business.
Respondent’s policy was to avoid layoffs. However, according
to Respondent’s treasurer, David Fischer, it has laid off em-
ployees from other portions of its business for lack of work;
but, when there is additional work, it has recalled them. That
was not Respondent’s offer here. Its intent was, as Williams’
testimony shows that he understood, to terminate the three em-
ployees, upon their refusal of a transfer. Considering Respon-
dent’s union animus and knowledge of the union activities of
the three employees, I conclude that the General Counsel has
presented a prima facie case of 8(a)(3) discrimination.
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 Florida, a transfer it knew Bridges would
not accept. Nor did Respondent produce evidence to show,
assuming that work was not available, the reason that it did not
offer the employees a layoff and wait for work to pick up, as it
assuredly did. Finally, Respondent did not even prove that it
had no work. Eirvin testified that Respondent probably had
documents to demonstrate that the open cut work dried up and
that Nanney should have sheets that showed the open cut jobs
that were left. However, Respondent produced nothing. Nan-
ney did not testify about the issue, nor did Robinson, who, Eir-
vin alleged, told him that “the open cut work was all done.”
Thus, Respondent never proved that it had any need to transfer
the three employees to Florida or to lay them off. It did not
meet its burden of proof under Wright Line, and I conclude that
it violated Section 8(a)(3) and (1) of the Act.
In so concluding, I reject Respondent’s contention that the
three employees conspired to give false testimony in this pro-
ceeding, 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 Florida. Mack’s answer, on which Respondent
relies, was that he wanted to say “yes” but could not recall.
That is certainly not a definitive answer, as Respondent sug-
gests. With their different recollections and different reasons
for rejecting Respondent’s offer, all of which make at least
some sense, I find the notion of perjury in these circumstances
quite impossible. Finally, the three employees are not on trial.
Although Respondent may question the reasons that Mack and
Williams gave for not going to Florida, that is not the point.
The issue is why Respondent tried to transfer them there in the
first place.
Respondent discharged Shipp on September 16 for low pro-
duction. 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 incredi-
ble 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 Re-
spondent’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 ap-
parently knew nothing more of Shipp’s work. He did not tes-
tify 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. Shat-
ADB UTILITY CONTRACTORS 187
tuck 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 be-
tween 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 dis-
charge got Eirvin into trouble. As he did in justifying the dis-
charges 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 qual-
ity 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 as-
signments. 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 Respon-
dent’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, par-
ticularly 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 Nan-
ney, 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 proceed-
ing. 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 termi-
nated Wayne Schaffer (Wayne), until then a highly rated la-
borer (“Wayne is A Very Hard Worker[.] Crew Leaders Want
Him on their Crew. He Gets Along with others & Does His Job
To the Best of His Ability[.] He Cares & I[s] A Very Good
Employee For ADB.”), according to Respondent’s termination
report, for the following reasons:
Termination Due to Racial Harassment; Amplified & Dis-
played 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 avail-
able.]
Respondent stipulated that Wayne was a known union sup-
porter. He was referred to repeatedly in the earlier sessions of
this proceeding, was at the time of his discharge one of only
three employees still employed who attended the Union’s first
meeting, and was cited by Eirvin on the second day of the hear-
ing as “part of the union problem” at Respondent. Thus,
knowledge of Wayne’s union activities and Eirvin’s union ani-
mus is clear. Regarding motivation, McElligott testified in
great detail that employee Tony Williams, an African-
American, had complained that he found a bumper sticker or
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD188
stickers with the Confederate flag on Wayne’s car “very offen-
sive.” McElligott did not tell the truth. Williams, called as a
witness by the counsel for the General Counsel, denied that he
said any such thing to McElligott. Rather, he testified that he
had never seen Schaffer’s bumper stickers and, therefore, never
told McElligott that he had found them offensive. This current
employee had no reason to fabricate; and McElligott, one of
Respondent’s supervisors and agents, had ample reason.
But somebody may have made a complaint about a bumper
sticker at some time.12 Courtney West, a boring machine op-
erator, 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. In-
stead, 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, Wayne believing that
Eirvin violated West’s First Amendment right of freedom of
speech. So, on Saturday, November 22, to demonstrate support
for West, Jeff and Wayne purchased their own Confederate
stickers and placed them on their cars.13 The following week,
beginning November 24, Jeff drove his car directly to his job-
site, where it was in clear view of Robinson. In fact, Respon-
dent had photographs of Jeff’s vehicle with those bumper stick-
ers. Thus, Respondent was fully aware that the three had the
very same sticker or similar “offensive” stickers.
Yet, only Wayne, who attended all the union meetings, in-
cluding 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
Wayne was his active union partisanship, whereas West and
Jeff were both hired well after the union activity in April. West
never revealed his union sympathies, or lack thereof, to Re-
spondent, and until November 21, Jeff never wore a union pin
or told anyone about his feelings about the Union. On that day,
he put two union bumper stickers on his car. On that day or the
day after, Wayne also put a union bumper sticker on his car.
On Friday, November 28, Ray warned Jeff that, if he and West
[still] had any Confederate-flag stickers on their cars, they
should remove them because a guy was just fired for it and they
could get fired, too, because Respondent considered it racist.

12 A second person who was alleged to be irate was Tony Ausley,
then one of Respondent’s project managers, who wrote an e-mail, dated
November 26, but did not testify. Another African American, a new
secretary named Toni, also allegedly complained, according to McElli-
gott, but she also did not testify and did not corroborate McElligott’s
testimony.
13 Wayne’s were the same “Heritage Not Hate” sticker that West had
and “Never Apologize for Being White.” Jeff’s were: “Hey dumb ass,
it’s lack of parenting not guns!,” “Confederate American,” and the
word “Rebel,” the latter two having the Confederate flag or written to
resemble that flag.
Ray also told Jeff that he should get the union stickers off his
car because it was not appreciated, that he could be put under a
spotlight because of his involvement with the Union, and that
there was the possibility that he could get fired for some other
reason, that Respondent would find a reason to fire him, but it
would lead back to his involvement with the Union. Jeff and
West removed all the Confederate-flag stickers that day; and
Jeff removed the union stickers on Monday, December 1.
The disparate treatment of Wayne is evident. Eirvin knew
that West had the “offensive” bumper sticker on his car. He
told Ray, a supervisor, who then told Jeff to tell West to take it
off. Eirvin did not fire West or, later, Jeff. He fired Wayne,
and an arguable reason that he did so was Wayne’s earlier un-
ion activities. The General Counsel has proved a prima facie
case. McElligott’s lie about Tony Williams’ complaint permits
an inference that there was another unlawful reason for
Wayne’s discharge. Shattuck Denn, supra.
Respondent failed to demonstrate, as it had to do under
Wright Line, that it would have discharged Wayne absent his
union activities. Eirvin, no longer employed by Respondent on
February 5, 2004, the day of the hearing of Case 14–CA–
27677, the case dealing solely with Wayne’s discharge, did not
testify to his motivation. Respondent offered no excuse that
Eirvin was unavailable to testify, and the testimony of Respon-
dent’s owner, Rusty Keeley, shows that Respondent knew
where Eirvin was. Accordingly, I cannot find that he had a
lawful motivation. Without Eirvin, Respondent could not meet
its Wright Line burden.
The Request for a Bargaining Order
As noted above, the General Counsel requests a bargaining
order, which requires an examination of the Union’s majority
status and the nature of Respondent’s unfair labor practices.
But, first, I consider the question of the appropriate unit. Re-
spondent’s answer and its counsel at the trial contended that the
appropriate unit should consist of not only its St. Louis facility,
but also its two other offices in Kansas City, Missouri, and
Jacksonville, Florida. That opposition seems to have been
abandoned because no mention of it is made in Respondent’s
briefs. Had it been raised, the law is clear that a proposed sin-
gle facility unit is presumptively appropriate unless it has been
so effectively merged into a more comprehensive unit, or is so
functionally integrated with employees at another facility, that
it has lost its separate identity. To determine whether Respon-
dent has successfully rebutted the presumption, the Board ex-
amines such factors as: bargaining history; functional integra-
tion of operations; the similarity of skills, functions, and work-
ing conditions of employees; central control of daily operations
and labor relations; interchange or transfers of employees
among sites; and distance between sites. J & L Plate, Inc., 310
NLRB 429 (1993).
Centralized control of some labor relations policies and pro-
cedures is not inconsistent with a finding that there exists suffi-
cient local autonomy to support the single location presump-
tion. 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
ADB UTILITY CONTRACTORS 189
employees (albeit it was not distributed to all employees), there
is also evidence of local autonomy. Among the facts that dem-
onstrate 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 St. Louis, Kansas
City, and Jacksonville offices are sufficiently far apart to sug-
gest that the single St. Louis facility unit is appropriate. I so
conclude.
The parties stipulated at the hearing that, if the unit limited
only to St. Louis was found appropriate unit, the unit shall be
described as follows:
All employees employed by ADB Utility Contractors, Inc. at
its St. Louis, Missouri facility, EXCLUDING project manag-
ers, office clerical, managerial, professional employees, over-
the-road truck driver, guards and supervisors as defined in the
Act.
Because I have found the St. Louis unit appropriate, I conclude
that the above constitutes a unit which is appropriate for the
purposes of collective bargaining within the meaning of Section
9(b) of the Act. The General Counsel contends that, because
the parties’ stipulation also listed the employees who were ap-
propriately included in the unit, and they were all field employ-
ees, the appropriate unit, notwithstanding the stipulation,
should be described as including “all field employees.” I will
not do so, because there is no legal or factual basis in the record
for me to cancel or disregard the parties’ stipulation.
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 Union to represent them in
collective bargaining, but Respondent, albeit perhaps not in
haec verba, withdrew from that stipulation, when he claimed
that the crew leaders were supervisors. In any event, I am
satisfied that, as of April 15, there were 59 employees in the
unit and that 33 signed cards, giving the Union a majority.
Having found that the Union represented a majority of the
employees, I turn to the question of the need for a bargaining
order. The Board wrote in Center State Beef & Veal Co., 330
NLRB 41, 43 (1999), enfd. in part 227 F.3d 817 (7th Cir.
2000):
Under Gissel, the Board will issue a bargaining order, absent
an election, in two categories of cases. The first category in-
volves “exceptional cases” marked by unfair labor practices
so “outrageous” and “pervasive” that traditional remedies
cannot erase their coercive effects, thus rendering a fair elec-
tion impossible. The second category involves “less extraor-
dinary cases marked by less pervasive practices which none-
theless [ ] 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 senti-
ments once expressed [by authorization] cards would, on bal-
ance, be better protected by a bargaining order.” [Gissel, 395
U.S.] at 613–615.]
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 se-
lecting 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 Union. Those threats
were followed by correspondence to the employees, as well of
readings of the letters directly to the employees, containing
similar threats of loss of jobs and the futility of selecting the
Union and new threats of subcontracting the employees’ work
and reduction of their bonus money. Most of these unfair labor
practices are “hallmark violations,” having lasting effects on
bargaining-unit employees that cannot be underestimated.
Garvey Marine, Inc., 328 NLRB 991, 994 (1999), enfd. 245
F.3d 819 (D.C. Cir. 2001); General Fabrications Corp., 328
NLRB 1114 (1999), enfd. 222 F.3d 218 (6th Cir. 2000). His
threats have been recognized as an “insidious reminder to em-
ployees every time they come to work that any effort on their
part to improve their working conditions may be met with
complete destruction of their livelihood.” Electro-Voice, Inc.,
320 NLRB 1094, 1095 (1996).
Eirvin’s speech also created the impression of surveillance,
an impression that was entirely accurate. His subsequent dis-
charge 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 dis-
charge 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. Ja-
maica Towing, 632 F.2d 208, 212–213 (2d Cir. 1980).
Respondent’s 8(a)(1) threats, spoken and written by Eirvin,
were made to all the bargaining-unit employees. The dis-
charges, 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. Cogburn
Healthcare Center, 335 NLRB 1397, 1399 (2001); General
Fabrications Corp., 328 NLRB at 1115.
In fact, word of the first three discharges was widely dis-
seminated, 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,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD190
too, might be terminated; employees expressed fear that Re-
spondent 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, height-
ened 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); Cogburn Healthcare Center, 335
NLRB at 1400.
That Shipp and Wayne Schaffer were discharged during the
course of the hearing demonstrates that the unfair labor prac-
tices have continued and not diminished and warrant the find-
ing that a fair election is not possible. Eirvin wanted all em-
ployees to think that they would lose their jobs if they voted for
the Union and hoped that his speech would cause employees to
stop engaging in union activities. He got his wish. The Un-
ion’s organizing effort was gaining momentum before April 15;
after then, attendance at union meetings declined significantly,
the only ones ultimately attending being the ones who were
unlawfully discharged and two other mainstays. Others who
had supported the Union withdrew their support. The granting
of a normal cease-and-desist order will not erase the signifi-
cantly pervasive and lasting deleterious impact of Respondent’s
unfair labor practices. The possibility of holding of a fair elec-
tion is improbable. I will recommend that a Gissel bargaining
order issue.
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 Hori-
zons 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 neces-
sary 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

14 The counsel for the General Counsel moved to correct certain er-
rors in the official transcript. There being no opposition, the motion is
granted; and the official transcript is amended accordingly.
briefs filed by the parties,15 I issue the following recom-
mended16
ORDER
Respondent ADB Utility Contractors, Inc., St. Louis, Mis-
souri, its officers, agents, successors, and assigns, shall
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 (Union) as their collective-bargaining rep-
resentative.
(c) Threatening its employees that it is futile to select the Un-
ion as their collective-bargaining representative.
(d) Threatening or impliedly threatening its employees with
closure of its St. Louis facility if its employees select the Union
as their collective-bargaining representative.
(e) Soliciting its employees who support the Union to quit
their employment.
(f) Impliedly threatening its employees with discipline for
wearing pins demonstrating support for the Union.
(g) Impliedly threatening its employees that selecting the
Union as their collective-bargaining representative would result
in the reduction or loss of their bonus and loss of their em-
ployment.
(h) Threatening its employees that selecting the Union as
their collective-bargaining representative would result in the
loss of their employment, insurance, and retirement plan.
(i) Threatening to subcontract more work if its employees se-
lect the Union as their collective-bargaining representative.
(j) Interrogating its employees about their union activities
and threatening its employees with unspecified reprisals be-
cause of their union activities.
(k) Discharging its employees because of their union activi-
ties or sympathies and in order to discourage their membership
in the Union or any other labor organization.
(l) Refusing to recognize and bargain with the Union as the
exclusive collective-bargaining representative of its employees
in the unit set forth below.
(m) In any other manner interfering with, restraining, or co-
ercing its employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.

15 Much of the Union’s briefs is devoted to a discussion of Respon-
dent’s allegedly contrary position and testimony in an earlier represen-
tation proceeding. I have not considered that discussion. Although an
attempt was made to stipulate the record into evidence in this proceed-
ing, the counsel for the General Counsel would not join in the stipula-
tion; and the record was not received. Respondent’s brief was, and that
showed that Respondent did not contend that any of the crew leaders
were supervisors within the meaning of Sec. 2(11). That is interesting,
but not determinative.
16 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
ADB UTILITY CONTRACTORS 191
(a) On request, bargain with the Union as the exclusive rep-
resentative of its employees in the following appropriate unit
concerning terms and conditions of employment and, if an un-
derstanding is reached, embody the understanding in a signed
agreement:
All employees employed by ADB Utility Contractors, Inc. at
its St. Louis, Missouri facility, EXCLUDING project manag-
ers, office clerical, managerial, professional employees, over-
the-road truck driver, guards and supervisors as defined in the
Act.
(b) Within 14 days from the date of the Board’s Order, offer
Jeremy Farris, Edgar Schreit, Nathan Schaffer, Rodney Han-
ephin, 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 en-
joyed.
(c) Make Jeremy Farris, Edgar Schreit, Nathan Schaffer,
Rodney Hanephin, Matt Sutton, Ryan Adams, Clarence Wil-
liams, 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 discrimi-
nation against them, in the manner set forth in the remedy sec-
tion of the Decision.
(d) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to the unlawful discharges of
Jeremy Farris, Edgar Schreit, Nathan Schaffer, Rodney Han-
ephin, 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 addi-
tional 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 re-
cords, 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 fa-
cility in St. Louis, Missouri, copies of the attached Notice
marked “Appendix.”17 Copies of the notice, on forms provided
by the Regional Director for Region 14, after being signed by
Respondent’s authorized representative, shall be posted by
Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by
Respondent to ensure that the notices are not altered, defaced,
or covered by any other material. In the event that, during the

17 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
pendency of these proceedings, Respondent has gone out of
business or closed the facility involved in these proceedings,
Respondent shall duplicate and mail, at its own expense, a copy
of the notice to all current employees and former employees
employed by Respondent at any time since April 15, 2003.
(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.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
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 be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT create the impression among our employees
that their union activities are under surveillance.
WE WILL NOT impliedly threaten our employees with termina-
tion if they select Local 2, International Brotherhood of Electri-
cal Workers, AFL–CIO as their collective-bargaining represen-
tative.
WE WILL NOT threaten our employees that it is futile to select
the Union as their collective-bargaining representative.
WE WILL NOT threaten or impliedly threaten our employees
with closure of our St. Louis facility if our employees select the
Union as their collective-bargaining representative.
WE WILL NOT solicit our employees who support the Union to
quit their employment.
WE WILL NOT impliedly threaten our employees with disci-
pline for wearing pins demonstrating support for the Union.
WE WILL NOT impliedly threaten our employees that selecting
the Union as their collective-bargaining representative would
result in the reduction or loss of their bonus and loss of their
employment.
WE WILL NOT threaten our employees that selecting the Union
as their collective-bargaining representative would result in the
loss of their employment, insurance, and retirement plan.
WE WILL NOT threaten to subcontract more work if our em-
ployees select the Union as their collective-bargaining repre-
sentative.
WE WILL NOT interrogate our employees about their union ac-
tivities and threatening our employees with unspecified repri-
sals because of their union activities.
WE WILL NOT discharge our employees because of their union
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD192
activities or sympathies and in order to discourage their mem-
bership in the Union or any other labor organization.
WE WILL NOT refuse to recognize and bargain with the Union
as the exclusive collective-bargaining representative of our
employees in the unit set forth below.
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 St. Louis, Missouri facility, EXCLUDING project manag-
ers, office clerical, managerial, professional employees, over-
the-road truck driver, guards and supervisors as defined in the
Act.
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 en-
joyed.
WE WILL make Jeremy Farris, Edgar Schreit, Nathan
Schaffer, Rodney Hanephin, Matt Sutton, Ryan Adams, Cla-
rence 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 Han-
ephin, 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 Chesterfield, Missouri, for the Respondent.2
Christopher N. Grant, Esq., of Saint Louis, Missouri, for the
Charging Party.

1 Mary J. Tobey, Esq., was with P. Givens on the General Counsel’s
Opposition to Respondent’s Motion to Reopen the Record to Receive
Evidence of Changed Circumstances.
2 During the prior portions of this litigation, the Respondent was rep-
resented by Lawrence P. Kaplan, Esq. and Joshua M. Avigad, Esq., of
Saint Louis, Missouri.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
PAUL BUXBAUM, Administrative Law Judge. This case was
tried before Administrative Law Judge Benjamin Schlesinger in
Saint Louis, Missouri, during a 16-day proceeding held be-
tween August 4, 2003, and February 5, 2004. The original
charge was filed on April 16, 2003,3 and was amended on July
19. Additional charges were filed by the Union on September
16 and December 2. The first complaint was issued June 26.
Additional complaints were filed on October 9 and December
9. All of these complaints were eventually consolidated for
disposition.
The issues in this case arose from the Company’s response to
an organizing campaign conducted by the Union at the corpo-
rate facility in St. Louis. The General Counsel alleged that the
Company’s officials engaged in a variety of unlawful activities,
consisting of the utterance of numerous threats, creation of an
impression of surveillance of employees’ activities, solicitation
of union supporters to quit their employment, interrogation of
employees, and most importantly, the discharge of 13 employ-
ees because of their support for the Union. The General Coun-
sel sought a variety of remedial measures, notably including the
issuance of a bargaining order of the type authorized in NLRB
v. Gissel Packing Co., 395 U.S. 575 (1969).
The Company denied the material allegations of the com-
plaint. As the litigation evolved, the Company eventually as-
serted that a key aspect of its defense to the charge of unlaw-
fully 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 re-
quirement that, on request, the Company bargain with the Un-
ion as the exclusive representative of a unit of employees at the
Saint Louis facility. See ADB Utility Contractors, Inc., 348
NLRB 895 (2006).
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 be-
cause of supervisory status. On September 30, 2006, the Board
issued an order remanding this proceeding to permit an assess-
ment of the impact of the Board’s recent trilogy of decisions
addressing a number of issues relating to the statutory defini-

3 All dates are in 2003, unless otherwise indicated.
ADB UTILITY CONTRACTORS 193
tion of supervisory status.4 Specifically, the remand order di-
rected “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 provi-
sions. It granted the parties the opportunity to file briefs re-
garding the issues presented in the remand. By contrast, it in-
structed 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 un-
available, 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 re-
ceived, 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 coun-
sel for the General Counsel and counsel for the Union both
opined that “great care had been taken to develop a full and
complete record in the prior proceeding which is amply suffi-
cient.” (Show Cause Order, p. 1.) Counsel for the Company
disagreed, contending that there was a need to reopen the re-
cord to obtain additional evidence. In light of this disagree-
ment, the judge issued specific instructions to the parties re-
garding the manner in which this would be resolved. First, he
required the Company to provide a detailed explanation for its
position on reopening of the record, accompanied by the identi-
fication of the specific “gaps in the record that need to be sup-
plemented by additional evidence,” and an explanation of why
that evidence had not been submitted during the original trial.
(Show Cause Order, p. 1.) Once this was received, the oppos-
ing parties were directed to file detailed replies, including the
identification of those parts of the record that constituted a
sufficient basis for rendering a decision on remand.
The parties have responded to these requirements. In par-
ticular, 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, “as-
sign,” “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 regard-

4 The Oakwood trilogy consists of: Oakwood Healthcare, Inc., 348
NLRB 686 (2006); Croft Metals, Inc., 348 NLRB 717 (2006); and
Golden Crest Healthcare Center, 348 NLRB 727 (2006).
5 It had previously been determined that Judge Schlesinger was not
available. See, the show cause order of November 21, 2006.
6 Many months after this, on July 10, 2007, the Company filed a
second motion to reopen the record regarding a remedial issue. I will
address that motion much later in this decision.
ing these ambiguous terms given the lack of sufficient guide-
lines from the Board. [Underlining in the original.] [Sugges-
tions, 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 regard-
ing whether the crew leaders assigned overall duties to the em-
ployee(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, not-
ing that the “slight inconvenience” to the parties was out-
weighed 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 super-
vised, 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
Union noted that the Board had not provided for an automatic
grant of reopening and,
[a]ccordingly, any lack of notice or guidance stemming from
any prior ambiguity, and any guidance the Oakwood deci-
sions now provide, cannot in itself warrant re-opening the re-
cord. Respondent must show something more. ADB fails to
do this.
(Union’s Reply, p. 3.) Counsel for the Union took note that the
Company cited only one specific alleged gap in the evidence.
In response, he provided citations to the record regarding that
issue. (Union’s Reply, pp. 5–6.) Furthermore, the Union ar-
gued that any deficiency in the record regarding crew leaders’
power to make overall assignments would not be determinative
because the evidence revealed that crew leaders did not exer-
cise independent judgment in making such assignments.
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
Union, including the provision of numerous citations to the
transcript to demonstrate both that the issues had been ad-
dressed in the existing record and that prior counsel for the
Company had explored those issues through his examination of
the witnesses. (GC Opposition to Reopening, pp. 3 and 11–30.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD194
Finally, citing the requirements of the Board’s reopening rule,
Section 102.48(d)(1), she observed that,
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 proceed-
ings 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 rele-
vant factors. There are few, if any, hard and fast rules.
Rather, the Board must decide in each case whether a prepon-
derance 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 litigat-
ing supervisory status, whatever the current state of the prece-
dents, the parties must strive to present a detailed and compre-
hensive “assessment of the facts and circumstances in each
case.” Infra at 565.
This analytical methodology requiring detailed factual explo-
ration existed at the time of the trial of this case in 2003. In-
deed, 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 exam-
ine this area of jurisprudence.8 In its conclusory section of

7 Ironically, in this case where the Board took the opportunity to
stress the fact-specific nature of the inquiry and the possibility for rea-
sonable decision makers to come to differing conclusions, the court of
appeals denied enforcement of the Board’s decision. In so doing, it
underscored the point being made here, noting “the infinite and subtle
gradations of authority which determine who, as a practical matter, falls
within the statutory definition of supervisor.” NLRB v. McCullough
Environmental Services, 5 F.3d 923, 939 (5th Cir. 1993).
8 See the Board’s notice of July 25, 2003, inviting the labor law
community in general to file briefs in the Oakwood cases. The invita-
tion made particular reference to issues regarding the meaning of the
terms: assign, responsible direction, and independent judgment. The
complete text of the notice may be found at:
http://www.nlrb.gov/nlrb/press/releases/kyriver.pdf.
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 Health-
care, 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. Noth-
ing 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 deter-
mination 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 conten-
tion 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, in-
cluding the Company’s founder and general manager, Chris
Eirvin, Project Manager Rich Robinson, and Project Manager
Ernest Nanney, also provided information and opinions regard-
ing 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 dur-

9 Indeed, the Board has always considered evidence beyond that
which is directly related to the statute’s primary indicia of supervisory
status. Such probative secondary evidence includes anything that dis-
tinguishes the purported supervisor from other unit employees, such as
pay differentials, eligibility for bonuses, attendance at management
meetings, training opportunities, and access to supervisory office
spaces. McClatchy Newspapers, 307 NLRB 773 (1992). All of these
so-called secondary indicia were thoroughly explored during the trial of
this case.
10 In this regard, I reject counsel for the General Counsel’s conten-
tion in her brief on remand that the Company failed to call “a single
witness” regarding the status of the crew leaders. (GC Remand Br. at
p. 3.) Whether technically produced by the Company or the General
Counsel, the fact is that several important management officials were
examined by all parties on this issue. Furthermore, the Company spe-
cifically called Crew Leader Eric Flores as a witness on the status of his
fellow leaders. Given the quantum of testimony produced on the issue,
I also reject counsel for the General Counsel’s request that I draw an
adverse inference from the Company’s failure to call project managers
as witnesses on the issue of supervisory status. In theory, virtually
every employee of the Company, from the highest to the lowest rank-
ing, would have been able to provide relevant testimony on the issue.
The record was fully developed without the production of any addi-
tional testimony. I find nothing untoward in the Company’s failure to
produce any further testimony. There is a substantial likelihood that it
would have been merely cumulative. See Roosevelt Memorial Medical
Center, 348 NLRB 1016, 1022 (2006) (“A party has no obligation to
call every witness at its disposal to prove its case.”).
ADB UTILITY CONTRACTORS 195
ing 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 comprehen-
sive 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 incon-
venience 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 Union’s rather vivid characterization of the
breadth of the Company’s request for reopening. As counsel
phrased it, “ADB essentially asks for a do-over, a mulligan.”12
(U. Reply, p. 2.) Where the record is already sufficient, there is
simply no basis in law or equity to put the parties through the
expense, inconvenience, and delay that would be the inevitable
result of the reopening proposed by the Company.13
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

11 In fact, I agree with trial counsel for the Company’s opening sen-
tence of his brief to Judge Schlesinger, noting that “[t]he case before
the Administrative Law Judge, while extended, is not complicated.”
(R. Trial Br. p. 1.) Furthermore, I also agree with his conclusion in that
same brief that, “[t]he scope of the supervisory authority of crew lead-
ers at Respondent can be determined through the testimony of those
crew leaders that testified.” (R. Trial Br. p. 4.)
12 Merriam-Webster’s online dictionary defines “mulligan” as “a free
shot sometimes given a golfer in informal play when the previous shot
was poorly played.” See, www.c-w.com.
13 I have also taken note of the diminished probative value of testi-
mony provided this long after the events at issue. The status of the
crew leaders must be determined based on the nature of their jobs dur-
ing the period under consideration in 2003. Enough time has passed
that there is a significant risk that testimony from current managers and
employees regarding the crew leader position will be distorted by the
evolution of the work processes during this intervening period. In
addition, when the witnesses attempt to testify about matters as they
stood years ago, the quality of that testimony is eroded due to the ef-
fects of time on human memory. There is a substantial risk that the
complete and timely record compiled in 2003 will be degraded rather
than enhanced by additional testimony taken at this late juncture.
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 omit-
ted.] SNE Enterprises, 344 NLRB 673 (2005). The wisdom of
that policy is well illustrated by consideration of the conse-
quences of any alternative. An excellent example of those per-
ils 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 pro-
ceedings 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 par-
ties’ to address the impact of Oakwood. To the contrary, the
Board’s remand specifically authorizes the filing of briefs de-
signed to give it an opportunity to consider the parties’ views as
to the impact of Oakwood. In my opinion, this is the appropri-
ate 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 analyti-
cal criteria have been refined. Thus, the parties have been af-
forded 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 ad-
judicated 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 Re-
spondent 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 provi-
sions, are illustrative of the considerations that I should bear in

14 The Board has addressed this problem as well. In T. Steele Con-
struction, Inc., 348 NLRB 1173, 1173 fn. 1 (2006), it denied a similar
motion to amend an answer to a complaint in light of the Oakwood
decision in a case pending before it on respondent’s exceptions to an
administrative law judge’s decision. See also C & C Roofing Supply,
Inc., 349 NLRB 667 (2007) (Board grants summary judgment, rejecting
an attempt to raise an Oakwood issue in a refusal to bargain case).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD196
mind. In that regard, I agree with counsel for the General
Counsel that the Board’s statements in Lockheed Martin Astro-
nautics, 332 NLRB 416 at fn. 2 (2000), are instructive. In that
case, the respondent sought to reopen the proceeding to pro-
duce 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 Respon-
dent’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 satisfac-
tory 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 avail-
able only since the close of the hearing. The Respondent’s
contention that Buehler’s testimony became relevant only af-
ter 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. [Cita-
tion 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 Elec-
trical Construction & Maintenance, Inc., 347 NLRB 273, 297
fn. 4 (2006).15 Given that the judge on remand was authorized

15 This is simply one example from the group remand. All contained
the same instruction. I was assigned the remand in CMC Electrical. I
addressed the credibility issue under discussion in my supplemental
decision. See CMC Electrical Construction & Maintenance, Inc., 2006
WL 2927251 (Div. of Judges, Oct. 10, 2006), at fns. 3, 15, and 16.
to adopt the original judge’s demeanor-based credibility resolu-
tions 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 credi-
bility 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 credi-
bility 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 credi-
bility 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 op-
portunity to make our credibility findings on the demeanor of
the witnesses. Nonetheless, it is abundantly clear that the ul-
timate 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 apply-
ing 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 exam-
ining any of the evidence in the case, I was struck by how em-
phatic 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 ar-
gumentative,” and found portions of his testimony to be “par-
ticularly outrageous,” “utterly improbable,” and “carefully
fabricated.” ADB Utility Contractors, Inc., supra at 897 and
898. He also concluded that Eirvin had manufactured docu-
ments in an attempt to justify his unlawful decisions to dis-
charge supporters of the Union. He summarized his conclu-
sions as follows:
Eirvin’s testimony was no mistake or inadvertent error. It was
deliberate, calculated lying . . . I do not credit Eirvin at all,
ADB UTILITY CONTRACTORS 197
about anything, unless corroborated by an impartial, credible
witness. [Infra, p. 4.]
Judge Schlesinger reached similar conclusions about the tes-
timony of the other important management officials who par-
ticipated in the trial. Of particular significance were his find-
ings with regard to the credibility of Project Managers Robin-
son 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, con-
vinced him that Robinson’s testimony “was a fiction.” Infra, p.
12. Overall, he concluded that, “Robinson is complicit in at-
tempting 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 testi-
mony; 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 organiza-
tional 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 decisionmak-
ing process. Beyond that, apart from any demeanor-based
credibility resolutions, I conclude that the management wit-
nesses were not credible and that their testimony cannot be
relied upon.
To begin with, I have considered what the evidence demon-
strates 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 Union.’” (Tr.
90.) He admitted that he wanted to create the impression
among those employees that they would lose their jobs if the
Union’s organizational campaign succeeded. He went so far as
to tell the employees that the Company would reallocate
$100,000 of their bonus money to fight the Union. Indeed, the
record establishes that there was virtually nothing from which
the Company would shrink in its effort to destroy the organiz-
ing effort.18 In a most egregious example, the Company’s offi-

16 See the Company’s answer to the original complaint and its trial
stipulation to the same effect. (GC Exh. 1(f); Tr. 896.)
17 Judge Schlesinger made similar findings regarding the lack of
credibility of other management witnesses, including Josh Martychenko
and Michael McElligott. Infra at pp. 14 and 18.
18 In Eirvin’s tape-recorded speech on this topic given on April 15,
he provided a strong hint as to what was going to occur in the future.
He told the employees that, “[t]hose of us that don’t want to [be]come
union are not gonna be out of a job—alright.” (GC Exh. 37, p. 1.) This
cials fabricated customer complaints in order to justify the ille-
gal discharge of an employee, Jason Lohman. As Judge
Schlesinger put it, the use of such foul methods to destroy an
employee’s reputation and terminate his livelihood was “blatant
and unconscionable.” Infra, p. 14. The virulent and amoral
nature of management’s attitude in this case is strong proof of a
mindset that supports a finding that the evidence the Company
has offered in this trial is utterly unreliable.
Beyond the stark and powerful nature of the evidence regard-
ing 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 examina-
tion 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 dis-
cussed. 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 lead-
ers 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

raised an obvious inference regarding the fate of those employees who
did want to become union members. In essence, it was a prophecy that
management soon fulfilled.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD198
in articulating the Company’s position. Despite this, when
counsel asked him if, “it was ADB’s position at that [represen-
tation] hearing in May, that its Crew Leaders were not supervi-
sors 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 any-
thing from their crew leaders. He conceded this point, but re-
peatedly 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 depar-
ture from its position in the representation case, a virtually con-
temporaneous proceeding. In that case, not only did the Com-
pany 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 Union’s characterization of the
Company’s litigation strategy in this regard. He observed that,
[w]hat is most offensive about this situation is that Respon-
dent makes no effort to explain its change in position. Appar-
ently, 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. Re-
spondent 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 de-
spite its earlier assertions. [U. Br. to Judge Schlesinger, p.
20.]
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 manag-
ers is incredible and totally unreliable. Without in any way
meaning to be facetious, I will illustrate my conclusion by not-
ing that, if one of the Company’s managers were to have testi-
fied that the city of Saint Louis is located within the State of
Missouri, I would have felt an overpowering compulsion to
consult my road atlas for verification. In accord with Judge
Schlesinger, I place no probative value on any testimony from
the Company’s managers unless that testimony is clearly cor-
roborated by other credible evidence.
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 credibil-
ity 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 Eir-
vin but rather relies on the testimony of the affected employ-
ees.”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 ques-
tions about their former jobs. Most of the questions posed by
all counsel were designed to elicit information about the spe-
cific 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’ rec-
ollections 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 credi-
ble 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 re-
garding 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 re-
sponded, “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 state-
ments, without supporting evidence, are insufficient to estab-
lish supervisory status and authority.

19 Before the trial judge, citing one portion of a crew leader’s testi-
mony that both Judge Schlesinger and I conclude was simply based on
a misunderstanding of a question posed by one of the attorneys, the
Company contended that certain of the employees had conspired to
provide false testimony. In accord with Judge Schlesinger, based on
the evidence as a whole, I agree that “the notion of perjury in these
circumstances [is] quite impossible.” ADB Utility Contractors, Inc.,
supra at 910.
ADB UTILITY CONTRACTORS 199
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 Arm-
strong Machine Co., 343 NLRB 1149 at fn. 4 (2004) (“Conclu-
sory evidence is insufficient to prove supervisory status.”);
Chevron Shipping Co., 317 NLRB 379 at fn. 6 (1995) (state-
ment that individual “oversees” others does not establish super-
visory status absent specific proof that such power was exer-
cised 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 exer-
cised 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 par-
ticular, the Board refused to accord weight to this opinion be-
cause, “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 in-
volved, what the alleged insubordination consisted of,
whether higher-level managers had been consulted, or
whether the situation was anything more than a one-time oc-
currence.
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 insis-
tence on analysis of specific details about the job being evalu-
ated, I will not accord significant probative value to the conclu-
sory 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 agree-
ment that the locator always functioned as the crew leader.20
This background is significant because the Company’s hand-
book paints a completely different picture of the composition of
a boring crew. It clearly states that the crew leader is an em-
ployee 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 effec-
tively.” (GC Exh. 6, handbook at p. 16.) Any lingering doubt
that the handbook visualizes the crew leader as a person sepa-
rate 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 serv-
ing the needs of the Locator and Operator.” (GC Exh. 6, hand-
book at p. 17.) Thus, the handbook presents a picture of a bor-
ing crew as composed of a crew leader, locator, operator, and
laborer.
It is evident that the vision of the crew leader function con-
tained in the handbook does not represent the reality on (or in)
the ground. While there was no testimony regarding the man-
ner 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,

20 The relationship between the crew leader job and the locator job
provided a further example of the untrustworthy nature of Eirvin’s
testimony. Although he agreed that the locator was generally the crew
leader, he claimed that sometimes the operator would be designated the
crew leader. No other witness agreed with this contention and there
was no evidence showing that any boring machine operator had ever
served as a crew leader.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD200
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 in-
accuracy renders the reliability of the . . . job descriptions sus-
pect.” 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 under-
mines 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 Com-
pany’s management fired eight crew leaders due to their sup-
port for the Union’s organizing campaign. If those crew lead-
ers were not supervisory employees, their termination for this
reason is unlawful under the Act. Therefore, it is essential to
determine whether the eight crew leaders possessed the sort of
supervisory authority that would place them outside of the
Act’s protections. The starting point for this inquiry must be a
determination of the full nature, duties, and responsibilities of
their jobs.
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 termi-
nated. In addition to these three boring crew leaders, two back-
hoe crew leaders, Bridges and Williams, were also fired. The
remaining three discharged crew leaders were assigned to dif-
ferent types of work crews. Sutton was crew leader on a cable
crew. Hanephin was assigned to an underground crew. Fi-
nally, Lohman was the restoration crew leader. As one would
expect, crew leaders shared many common characteristics irre-
spective 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 direc-
tional 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 in-
stalled. 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 loca-
tor 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 de-
vice, 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 particu-
lar 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 un-
skilled 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 dig-
ging 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 [bor-
ing] 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 ex-
posed, 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

21 This was a far shorter description of the timeframe for becoming
fully qualified than that provided by Eirvin. Eirvin claimed that, for a
brand-new locator, “[t]wo months was long enough to get it” so as to
perform the job as well as an experienced hand. (Tr. 222.) Even this
claim, which I find to be an exaggeration, demonstrates that the job was
not highly skilled or sophisticated.
22 An objective description of the work of the boring crews requires
that I note the simple, unsophisticated nature of the work. As operator
Ed Schreit described it, the digging is “pretty hard” manual labor con-
sisting of “hand digging all day long.” (Tr. 1321 and 1297.) The holes,
which can be as deep as five feet, are dug in all kinds of ground includ-
ing dirt, clay, rock, mud, and sand. It is apparent that this is the epit-
ome of honest, hard work that accomplishes a task essential to modern
society’s need for critical infrastructure. It is not my intention to deni-
grate this work in any way.
ADB UTILITY CONTRACTORS 201
same thing, hand dig and bore.” (Tr. 1271.) Crew Leader Flo-
res 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 exclu-
sively 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 in-
structions. 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 fol-
lowed when the crew discovered that the ground conditions
necessitated use of different types of machinery. Schreit sum-
marized 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 au-
thority to order him to do so. Another boring crew leader
whose status was not at issue in this case, Eric Flores, testified

23 Having digested many pages of testimony describing this process,
I have become acutely aware that the word, “boring,” has more than
one definition in the English language.
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 mem-
ber, 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 over-
time were made jointly by the crew. He noted that, “[i]f [Pro-
ject 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 op-
erators wanted to be absent or leave early, they would call Pro-
ject 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 ma-
chine 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 pro-
duction 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 condi-
tion 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.

24 I place considerable weight on Flores’ testimony. He was called
as a witness by both the General Counsel on the issue of the Com-
pany’s antiunion campaign, and by the Company regarding the duties
and responsibilities of the crew leaders. Flores had been one of the
highest performing crew leaders and had voluntarily left the Com-
pany’s employ to take a position with a utility company. His testimony
struck me as particularly objective and unbiased.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD202
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 con-
ceded 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 lead-
ers, 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 pre-
pare for the installation of cable. That crew consists of a back-
hoe 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 experi-
ence” 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 lo-
cates while the other laborer swamped for the backhoe. Wil-
liams also emphasized the limited scope of his authority to
make assignments. He was asked what would happen if a la-
borer 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. Wil-
liams 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 la-
borer 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 over-
time. (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. Wil-
liams 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 produc-
tion.” (Tr. 724.) In other words, the rate of work depended on
the crew leader’s skill as a backhoe operator, not on his prow-
ess 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.]

25 Bridges was even more emphatic on this issue, contending that the
backhoe crew leader had no responsibility for the pace of production.
He opined that this was the role of the project manager.
ADB UTILITY CONTRACTORS 203
Consistently with this view of the crew leader’s role, Wil-
liams also testified that he was never told that he was account-
able for the behavior of the crew members. When asked who
would be held responsible if a mistake were made, he ex-
plained:
It depends on how the job is screwed up. I mean if it is some-
thing 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 mem-
bers or make recommendations, either positively or negatively.
Indeed, Williams reported that, while he did ask Project Man-
ager Nanney to replace Laborer Gresham due to his laziness,
this was not done. Eirvin confirmed that Williams never pre-
pared 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 man-
agers 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 occur-
rence, 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 responsi-
bility 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 per-
forming 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 la-
borer] 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 lead-
ers.
Three more crew leader positions remain to be assessed.
These are the jobs held by Cable Crew Leader Sutton, Under-
ground 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 as-
pects 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 ex-
plained,
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 de-
cided by the project manager without input from Sutton. In-
deed, 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 di-
rectly. 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 sta-
tioned. 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

26 Because their work involved the threading of cable, Cable Crew
Leader Sutton and Underground Crew Leader Hanephin were both
sometimes referred to as leaders of “pulling” crews.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD204
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 labor-
ers] 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 mem-
bers 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 occa-
sion 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 as-
signment 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 fol-
lows:
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 respec-
tive 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 some-
thing. 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 su-
pervisory 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. Simi-
larly, he testified that he was not involved in issues of evalua-
tion 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 disci-
pline, 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 pic-
ture 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 mis-
takes 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 deci-
sions, 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 state-
ments about the role of the crew leader are not entitled to sig-
nificant 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 re-
sponsibilities 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 in-
volved 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
ADB UTILITY CONTRACTORS 205
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 crew-
mate. 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. In-
deed, 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 go-
ing 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 authori-
zation for the man to leave work early. He also obtained in-
structions from his supervisor in the event of bad weather.
Similarly, he had no authority to require overtime work. In-
deed, 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 per-
formance of the crew. (Tr. 1760.) He reported that he believed
the figurative “buck” stopped with him. When probed, he con-
ceded that he was never told this, but simply “assumed it.” (Tr.
1926.) When the questioning got down to specifics, he re-
ported 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 per-
formance. 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 sup-
ported by the fact that he was never vested with disciplinary
authority of any kind. In a very good illustration of the disso-
nance 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 cer-
tain 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 supervi-
sion and control of the other crew members.
IV. APPLICATION OF THE OAKWOOD ANALYSIS
Having outlined the nature of the crew leaders’ duties, func-
tions, 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 supervi-
sory 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 Oak-
wood 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 stan-
dards for assessment of the statute’s primary indicia of supervi-

27 The Board further defined the meaning of “significant overall
tasks,” as involving more than simply giving instructions to perform
discrete chores. Oakwood Healthcare, Inc., supra at 689. Thus, telling
an employee to restock the shelves in a warehouse or to administer
medicines to a group of patients both qualify as assignments of signifi-
cant overall tasks. By contrast, instructing an employee to restock
toasters before coffeemakers or to give a sedative to one particular
patient does not represent the sort of designation that would qualify as
an assignment within the meaning of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD206
sory 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 Congres-
sional 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 su-
pervisor 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.” Oak-
wood Healthcare, Inc., supra at 693, citing Browne of Houston,
280 NLRB 1222, 1223 (1986). The Board provided an exam-
ple 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 conclu-
sion 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 Health-
care, 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 conten-
tion 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

28 In this connection, the Board cautioned against an overbroad vi-
sion of the importance of the ability to direct other workers. It noted
that the right to issue any simple instruction to a coworker does not
transform an individual into a supervisor. Instead, “[t]he de minimus
principle obviously applies.” Oakwood Healthcare, Inc., supra at fn.
28.
operator and a laborer. There is no doubt that these crew lead-
ers, in common with all of the Company’s crew leaders, exer-
cise 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 in-
tention that only supervisory personnel vested with genu-
ine management prerogatives should be considered super-
visors, and not straw bosses, leadmen, setup men and other
minor supervisory employees. The Board has long recog-
nized there are highly skilled employees whose primary
function is physical participation in the production or op-
erating processes of their employer’s plants and who inci-
dentally direct the movements and operations of less
skilled subordinate employees, who nevertheless are not
supervisors within the meaning of the Act, since their au-
thority 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 bor-
ing 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 par-
ticular place (i.e., on a particular crew). Project Manager Nan-
ney 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 wit-
ness 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 suggest-
ing that any crew leader ever assigned an employee to a par-
ticular 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 Golden
Crest Healthcare Center, 348 NLRB 727, 729 (2006), the
Board made clear that the power to request employees to work

29 Dynamic Science, Inc., was cited with approval in Oakwood
Healthcare, Inc., supra at fn. 41.
ADB UTILITY CONTRACTORS 207
overtime does not establish supervisory authority.30 Boring
crew leaders do not possess the power to assign within the
meaning of the Act.
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. Yeshiva University, 444
U.S. 672 at fn. 17 (1980). The Board has observed that it is
“well established that the authority effectively to recommend
generally means that the recommended action is taken with no
independent investigation by superiors, not simply that the
recommendation ultimately is followed.” ITT Lighting Fix-
tures, 265 NLRB 1480, 1481 (1982), enfd. denied 712 F.2d 40
(2d Cir. 1983), cert. denied 466 U.S. 978 (1984).
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 recom-
mended the transfer or assignment of any employee. His con-
cise 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 as-
signment 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

30 By the same token, there was much testimony, some of it contra-
dictory, about the power of crew leaders to determine the times for
lunch and breaks. None of this matters because the Board holds that
“determination of order of lunch and other breaks is essentially cleri-
cal.” Los Angeles Water & Power Employees’ Assn., 340 NLRB 1232,
1234 (2003), quoting NLRB v. Hilliard Development Corp., 187 F.3d
133, 146 (1st Cir. 1999).
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 Rob-
inson 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 effec-
tive assignment recommendations was dispelled by the testi-
mony 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 recom-
mend 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.

31 Perhaps the classic illustration of this fallacy is the conclusion
that, because the rooster crows shortly before dawn, he is responsible
for producing the sunrise.
32 In his brief on remand, counsel for the Company mischaracterizes
the record on this point. He contends that “Robinson explicitly testified
that he removed Mr. Politte from Mr. Farris’ crew ‘in order to get pro-
duction up.’” (R. Remand Br. at p. 4, citing Tr. 938.) The context
shows that the person whose production was under scrutiny at that
point was Farris, not Politte. Thus, Politte’s transfer was hardly based
on an effective recommendation from Farris. (See Tr. 937–938.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD208
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 pro-
vided 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 Health-
care, 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 em-
ployee 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 em-
ployee 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 mem-
bers. Indeed, he noted that he never observed any crew leader
being held responsible for a problem on a crew. Shipp ap-
peared less certain on this point. Although he seemed to feel
that crew leaders were held responsible, when asked to be spe-
cific he could only report that, “[t]hey would just say that we
needed to get our footage up.” (Tr. 2663.) This type of exhor-
tation 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 rec-
ommend assignments or directions. The remaining Oakwood
issue is a qualitative evaluation of the type of judgments per-
formed 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 Backhoe
Crew Leaders Bridges and Williams. I will examine the evi-
dence regarding their authority to assign or responsibly direct
the members of their crews.

33 In this connection, I have not considered any of the pretextual ex-
planations offered for the discharges of any crew leaders. As counsel
for the Union put it, any such argument would simply be “a tainted
extension of Respondent’s concocted and false excuses for firing union
supporters, and cannot support a showing of supervisory status.” (U.
Remand Br. at p. 18.)
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 classifi-
cations assigned to a backhoe crew were the leader and one or
two laborers. The leader actually operated the backhoe. La-
borers had only two duties, digging locates and swamping
while the backhoe was in operation. These duties were virtu-
ally 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 ac-
tion, 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 Wil-
liams 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 Man-
ager 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.

34 By contrast, Bridges testified that he did not make such directions.
Instead, he reported that, “[b]etween the laborers . . . they’d just, you
know, they’d worked it out.” (Tr. 1993.) This certainly suggests that
the crews handled this on an ad hoc basis without any specific authori-
zation from management.
ADB UTILITY CONTRACTORS 209
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 read-
ing 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 supervi-
sory status under the Act.
Beyond this, the evidence does not support counsel’s conten-
tion 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 testi-
mony of Laborer Mack who was asked who decided on work-
ing 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 back-
hoe 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 Wil-
liams’ decisionmaking was simply a personal response to the

35 Bridges’ fellow backhoe crew leader, Williams, was extremely
clear on this point. He testified that, “[i]t’s not a one guy makes the
decision deal. A crew works as a team and if we agree that we are at a
good stopping point, we would stop. I mean, it’s not a dictatorship so
to speak.” (Tr. 726.) On cross-examination about this same point, he
gave an even more precise vision of the corporate structure as to this
issue, testifying that, “[a]t 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.)
need to divide the chores rather than the exercise of any corpo-
rate 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 supervi-
sory authority. Both tasks are fundamentally identical, involv-
ing nothing more than digging in the earth with a shovel and
spotting buried utility wires. As a result, this situation is analo-
gous 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 de-
scribed 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 Health-
care. [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 ex-
plain 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 di-
rected toward the same goal—avoiding severing an under-
ground 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 re-
ferred to as a pulling crew. The crew inserted wire into under-
ground 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 con-
firms that he did not possess this power. He testified that Pro-
ject Manager Sellers selected the crew’s laborers without seek-
ing any input from Sutton. Indeed, Sellers would sometimes
shuffle the composition of the crews as the work shift pro-
gressed. As with other crew leaders, Sutton lacked authority to

36 By footnote, counsel for the Company argues that Williams “as-
signed work time” to the laborers by determining when they should
cease working due to bad weather. (R. Remand Br. fn. 3.) He is forced
to admit, however, that the “ultimate authority” on this issue resided
with the project manager. (R. Remand Br. fn. 3.) Williams testified
that, “[i]n bad rain, we would call somebody. In light rain, we would
probably keep going.” (Tr. 706.) This is consistent with Bridges’
testimony that the project manager always decided whether to have the
crew stop working due to adverse weather conditions.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD210
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 labor-
ers 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 coun-
sel’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 testi-
mony 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 uncon-
troverted 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 any-
thing 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 as-
signed to a crew that pulled cable through pipes that had previ-
ously 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

37 I note, however, that this was a strictly circumscribed authority.
Sutton reported that Project Manager Sellers exercised much direct
authority in this regard. As Sutton described it, “[l]ike for proofing
duct. Whoever [Sutton] would send out with me, he’d assign the la-
borer that was supposed to go out and catch the rocket.” (Tr. 1556.)
38 Counsel for the Company also asserts that Hanephin possessed a
secondary indicator of supervisory status, attendance at “weekly super-
visor meetings.” (R. Remand Br. p. 8.) This is incorrect. Hanephin
did attend crew leader meetings, but he specifically testified that he did
not attend management meetings. His testimony in this regard was
confirmed by Project Manager Nanney, who also testified that crew
leaders did not attend the monthly managerial meetings. In addition,
Turning first to the assignment power, I agree with the con-
clusion that Hanephin did not possess this attribute of supervi-
sory status. He testified that he was never given the authority
to assign or transfer employees. In common with the proce-
dures 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 labor-
ers. [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 con-
trary, 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 any-
thing that went wrong on his crew, including mistakes made by
the laborers. (Tr. 1456–1457.) However, on redirect examina-
tion, 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 exer-
cised any of the powers enumerated in the statute; rather, it is
the existence of the power that determines whether the individ-
ual is a supervisor.” Mountaineer Park, Inc., 343 NLRB 1473,
1474 (2004). (Italics in the original.)

former counsel for the Company stipulated that crew leaders did not
attend these meetings. See Tr. 1387.
ADB UTILITY CONTRACTORS 211
Recognizing the validity of counsel’s argument, I neverthe-
less find that the employer has failed to demonstrate that it
actually imposed an accountability requirement on the under-
ground 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 su-
pervisor’s terms and conditions of employment have been ac-
tually 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 com-
bination with other performance factors, an effect on that per-
son’s terms and conditions of employment.
Golden Crest Healthcare Center, 348 NLRB 727, 731 (2006).
(Italics in the original.)
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 perform-
ing 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 evi-
dence 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 pro-
duction 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 testi-
fied 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 land-
owners. 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 estab-
lishes that Lohman did not actually assign laborers or responsi-
bly 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, Loh-
man 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 deliver-
ing their baby. Lohman was unable to make even this obvious
decision, but telephoned Robinson in order to seek his ap-
proval.
It is also clear that Lohman did not responsibly direct the la-
borers 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 assign-
ments. He also lacked any sort of authority to correct misbe-
havior 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 perform-
ance 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 Com-
pany contends that Lohman possessed the indicator of supervi-
sory status concerning the effective recommendation of labor-
ers’ assignments. I agree that the record is replete with testi-
mony by Lohman establishing that he made numerous recom-
mendations to the project manager regarding personnel matters
affecting his crew. He complained about laborers who per-
formed poorly, seeking their transfer or discipline. He also
recommended raises and promotions.
The difficulty with counsel’s argument is that the Act re-
quires that a putative supervisor’s recommendations be effec-
tive. 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

39 In his brief, counsel for the Company relies on an earlier Board
precedent regarding effective recommendation, General Telephone Co.
of Michigan, 112 NLRB 46 (1955). I find that case to be clearly distin-
guishable. Those putative supervisors were required to prepare written
evaluations of the employees. The evaluations were placed in the per-
sonnel files and were always considered in making decisions regarding
promotions. In Williamette Industries, 336 NLRB 743 at fn. 5 (2001),
the Board noted that the central reality underlying the rationale in Gen-
eral Telephone was the fact that management actually relied on these
evaluations when making personnel decisions. In this case, there is no
evidence that management’s decisionmaking process was affected in
any way by the suggestions made by various crew leaders.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD212
recommendations are adopted on a regular basis.40 Neither
prong of this test is met in the case of Lohman’s recommenda-
tions.
The most formidable hurdle regarding the need for an ab-
sence 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 recom-
mended 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 recom-
mended 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 hap-
pened, Lohman reported that, “Ernie finally fired him.” (Tr.
1831.) Apart from any evidence of causative effect, the fre-
quency 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, ask-
ing that Vitulski be transferred. While Vitulski was transferred,
this did not take place until weeks later.42 The lack of testi-
mony regarding causality and the length of time between com-
plaint and response indicate a failure of proof of effectiveness.
The record was well developed regarding Lohman’s person-
nel recommendations and their fate at the hands of higher au-
thority. 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.

40 As to the required frequency of adoption, in Mountaineer Park,
supra at 1475, the Board cited two examples from its precedents, one
showing that every recommendation had been effectuated and the other
showing that the recommendations had been followed three-fourths of
the time.
41 At the same time, Lohman reported that he also recommended a
raise for laborer Cresswell. Cresswell did receive a raise. Apart from
the lack of proof that Lohman’s recommendation was a causal factor in
Cresswell’s good fortune, this would give Lohman a success rate of 50
percent. Such a random rate of response is far from the required proof
that effective recommendations be regularly adopted by higher author-
ity.
42 Lohman’s testimony as to the length of time it took before Vitul-
ski was transferred was inconsistent. He first reported that it took 2–3
weeks. Later he indicated that it took more than 1-1/2 months before
Vitulski was transferred.
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 mean-
ing 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 deci-
sion, the record demonstrates that all of these crew leaders
made similar types of decisions involving similar types of per-
sonnel 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 con-
sider 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 lead-
ers 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 pro-
jects. Los Angeles Water & Power Employees’ Assn., 340
NLRB 1232 (2003). Shortly thereafter, in Volair Contractors,
Inc., 341 NLRB 673 (2004), the Board addressed the status of a
foreman of a boiler assembly crew. The crew consisted of a
welder, crane operator, and helper. The Board noted that these
crew members’ “functions on the job were undoubtedly deter-
mined in large part by their craft skills.” Supra at fn. 10. While
the foreman was found to possess the authority to make as-
signments and give responsible direction to the crew, he was
not required to exercise the degree of independent judgment
necessary to establish supervisory status. Although he assigned
work tasks to the crew and laid out the jobs, he did so by fol-
lowing the instructions contained on blueprints and the verbal
orders of his superior. In such circumstances, the Board found
insufficient evidence of independent judgment. Finally, in a
third case, the Board addressed the same issue regarding a re-
pair foreman who worked alongside his crew but was responsi-
ble for making job assignments and ensuring that the other

43 As to the work processes, all involve the installation of under-
ground cable except the work of the restoration crew. The issues and
decisionmaking processes for the leader of that crew are simpler than
those involved in the work of the other crews.
44 For instance, Bridges noted that he spent “99.9 or 99.5%” of his
worktime physically performing work. (Tr. 1988.)
ADB UTILITY CONTRACTORS 213
employees were productive. In these circumstances, the Board
held:
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). In-
deed, 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 deci-
sionmaking that was free from the control of others and re-
quired 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 work-
loads, 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. In-
terestingly, 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 im-
portance to the analysis required here.46 In Croft Metals, Inc.,

45 It should be noted that, unlike the Board majority’s discussion of
assignment and responsible direction, the refinements in the definition
of independent judgment were approved by the dissenting members.
They agreed that those definitions were “reasonable,” although they
declined to endorse the specific examples offered by the majority
members. Oakwood Healthcare, Inc., supra at 708.
46 Indeed, Judge Schlesinger accurately predicted that the Oakwood
case involving lead persons at a manufacturing plant would “perhaps
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 pro-
duction employees to switch tasks and perform functions de-
signed to ensure that projects were completed on schedule. As
the Board described, the leads “have the authority to make de-
cisions 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 per-
form another chore. These assignments and directives were
always made subject to the oversight of the team leader’s su-
pervisor. The team leader spent 90 percent of his day, “work-
ing with his tools.” Austal USA, L.L.C., 349 NLRB 561, 575
(2007) [administrative law judge’s decision]. Citing Croft Met-
als, the Board affirmed the judge’s conclusion that the team
leader’s decisionmaking did not rise above the routine or cleri-
cal.
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 per-
formance and completion” of jobs in the field. Infra at 354.
The Board held that they did not exercise independent judg-
ment in performing their duties and responsibilities. In lan-
guage 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 exam-
ple, 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 exer-
cise of independent judgment.
Other assignments are based on an employee’s readi-
ness to carry out one of the less skilled tasks that compose
the bulk of the Respondents’ workload. As the Respon-

[be] critical to the issue in this proceeding.” ADB Utility Contractors,
Inc., 348 NLRB 895, 895 fn. 5 (2006).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD214
dents’ business involves an abundance of unskilled, la-
borer-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 ro-
tate 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 administra-
tive 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 co-
worker. 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 repeti-
tive. 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 man-
ager. The manager set up the delivery routes based on his geo-
graphical 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 en-
gaged 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 ques-
tion of whether the crew leaders’ work was routine and repeti-
tive. 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 iden-
tical 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, Wil-
liams agreed, adding that, “[y]ou are digging trenches all the
time.” (Tr. 736.) Lohman testified that all of his duties as res-
toration 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 instruc-
tions from their project managers, or both. Once on the job, the
assignments given to crew members by the lead persons in-
volved the simple switching of routine chores to facilitate com-
pletion 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 re-
quired 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 simi-
lar 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 in-
dustries. 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 com-
petence and safety” because the employees’ assignments “ran
the gamut from simple to complex, and even dangerous, du-
ties.” As a result, “the foremen applied a sophisticated analyti-
cal 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

47 Counsel for the Company argues that Williams chose the job du-
ties of his laborers based on their “relative abilities.” (R. Remand Br. at
p. 16.) In fact, as counsel acknowledges, Williams testified that his
only reason for making his choices was his assessment that one of the
laborers was lazy and the other was not. This is a decision based on
assessment of personality and temperament, not skill or aptitude.
ADB UTILITY CONTRACTORS 215
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 in-
volvement 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 Wil-
liams provided a telling example of the manner in which safety
issues were handled by the Company. He reported that a mem-
ber 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 exca-
vations 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 simi-
lar. I have already assessed the absence of evidence demon-
strating 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 testi-
fied that, immediately thereafter, the superintendent “looked at
me and said they no longer needed my services.” (Sup. Deci-
sion, 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 expressed the belief that it
was worthwhile to step back from the detailed factual inquiry to
ponder the most basic question involved in the analysis of su-
pervisory status. I noted that, in Oakwood Healthcare, supra at
692, the Board drew attention to the fact that the “heart” of the
rationale for the statutory exclusion of supervisors was to en-
sure that a collective-bargaining unit did not include employ-
ees, “whose fundamental alignment is with management.” In
considering this overarching question, I concluded that the shop
foremen’s powers and responsibilities required that they act
with undivided loyalty toward higher management. As a result,
they lacked the necessary community of interest with members
of the bargaining unit.
Counsel for the Company urges me to make a similar analy-
sis here. I agree that such an analysis remains appropriate. For
all the reasons I have discussed in detail in this decision, I con-
clude that the result of such an assessment must be to find that
these crew leaders are not aligned with management. Rather,
their interests lie with their fellow crew members. Long ago, in
Stop & Shop Cos. v. NLRB, 548 F.2d 17, 19 (1st Cir. 1977), an
appellate court observed that, apart from “looking mechanically
at the facts,” it was important “to have in mind the reason for
excluding supervisory employees from the bargaining process.”
The court went on to explain:
The reason for excluding supervisors is that they must
be representatives of their employer vis-à-vis other em-
ployees. An employee who can discharge other employ-
ees, or direct them in matters involving judgment, has a
duty to put his employer’s interest over the interests of
subordinates.
The mere fact that an employee may give some in-
structions to others, or that he may command their respect,
does not indicate that he must identify with the interests of
the employer rather than the employees. The test must be
the significance of his judgments and directions. It is pre-
cisely for this reason that the question of the effectiveness
of the alleged supervisor’s authority must normally be a
question of fact. To put the issue in homely terms, do the
other employees feel, assuming the alleged supervisor is
one who reasonably respects his duties, “Here comes that
so-and-so, get to work,” or is he, basically, but one of the
gang who merely gives routine instructions? [Citations
omitted.]
After digesting thousands of pages of testimony regarding
the day-to-day life of the leaders and members of the Com-
pany’s work crews, I am left with the firm conviction that crew
leaders are not vested with the type and degree of supervisory
authority that would deprive them of the Act’s protection. Ap-
plying the court’s “homely,” but nevertheless apt, methodol-
ogy, I find that a crew leader for this employer is merely one of
the gang, entitled to the right to bargain collectively with fellow
members of the crew.
CONCLUSION OF LAW
The Company’s crew leaders, Matt Bridges, Jeremy Farris,
Rodney Hanephin, Jason Lohman, Nathan Schaffer, John
Shipp, Matt Sutton, and Adam Williams, are not supervisors
within the meaning of Section 2(11) of the Act.
REMEDY
Judge Schlesinger, having found that the Company engaged
in unfair labor practices, recommended a variety of remedies,
including such traditional measures as a make-whole remedy
for the unlawfully discharged employees, reinstatement, and
expungement of their records.48 In addition, he recommended

48 The make-whole remedy includes reinstatement for all discharged
employees, except for Ryan Adams and Clarence Williams, who have
previously been recalled. It also provides that the remedy for any loss
of earnings and benefits shall be computed on a quarterly basis from the
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).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD216
imposition of two extraordinary remedies, a broad cease-and-
desist order and a Gissel bargaining order.
I note that the Board’s standards for assessment of the ap-
propriateness of the proposed extraordinary remedies have
continued to evolve since Judge Schlesinger’s decision. Inter-
estingly, recent cases demonstrate that the Board finds these
remedies to be particularly appropriate as relief for the harm
caused to employees’ rights under the Act through the commis-
sion of the types of unlawful conduct engaged in by this em-
ployer in its response to an organizing effort. For example, in
Five Star Mfg., 348 NLRB 1301 (2006), the Board amended the
judge’s proposed remedy by adding a broad order. In that case,
the company’s response to an organizing campaign began with
its president warning that the employees were “finding them-
selves a way out of there.” Supra at 1301. This was followed
by a number of unlawful measures, culminating in the dis-
charge of a union supporter. Although the company had no
prior history of violations, the Board held that a broad remedy
was required because “the serious and wide-ranging nature of
the Respondent’s violations . . . demonstrates a general disre-
gard for its employees’ Section 7 rights.” Supra at 1302. Ap-
plying this example, it is evident that a broad order remains an
appropriate response to the unlawful conduct committed in this
case.
With regard to the recommendation for a bargaining order, I
note that, on July 10, 2007, the Company filed a Motion to
Reopen the Record to Receive Evidence Regarding the Con-
tinuing Validity of the Bargaining Order in Light of the
Changed Circumstances. The General Counsel and the Union
have filed oppositions to this motion.
I must observe that, procedurally, this motion is both too
early and too late.49 It is tardy because it has been filed more
than 6 months after the deadline for such filings established in
this case. It will be recalled that Judge Miserendino issued a
show cause order dated November 21, 2006, addressing the
entire question of reopening of the record. He reported that the
Company “asserted that the record needed to be reopened to
obtain evidence,” and afforded the Company until December
22, 2006, to submit an explanation justifying reopening, includ-
ing the identification of any gaps in the record that needed sup-
plementation. (Show Cause Order, p. 1.) On December 22,
2006, the Company filed its Suggestions in Support of a Lim-
ited Re-Opening of the Record in Response to the Show Cause
Order. Nowhere in that document did counsel for the Company
raise any issue regarding the need for additional evidence on
the issue of the continuing propriety of Judge Schlesinger’s
recommended bargaining order.
In the Company’s second motion to reopen filed over 6
months later, the Company now contends that the record should

49 As a preliminary matter, both the General Counsel and the Union
contend that I lack authorization to consider this motion because it falls
outside the scope of the remand order. While it is true that the primary
intent of the remand was to consider the impact of the Oakwood deci-
sions, the Board’s Remand Order goes beyond this limited purpose. It
directs me to resolve credibility issues, make findings of fact, and most
significantly, issue a recommended order. As a result, I conclude that I
am authorized to address the issue raised in the Company’s second
motion to reopen the record.
be reopened to admit affidavits from management officials
addressing the turnover in employees and managers since Judge
Schlesinger’s original decision. Nowhere in the motion is any
explanation provided for the failure to raise this issue within the
time period provided in Judge Miserendino’s show cause order.
Review of the affidavits and the motion itself demonstrates that
the proffered new evidence was clearly available prior to De-
cember 22, 2006. Absent any explanation for the very tardy
submission of this new request, I conclude that it is untimely.50
In addition, counsel’s request for reconsideration of the pro-
posed bargaining order is premature. Counsel’s fundamental
premise underlying his request for reconsideration of the bar-
gaining order is his contention that there is “overwhelming
authority that the relevant time to consider the appropriateness
of a bargaining order is at the time the order is issued, as op-
posed to the time that the violation occurred.” [Italics in the
original. Citations omitted.] (R. Motion to Reopen, at p. 3.)
This formulation glosses over a very thorny area of contention
between the Board and many circuit courts. Left to its own
policy judgment, the Board’s position has been clear and con-
sistent. It was well summarized in Garvey Marine, Inc., 328
NLRB 991, 995 (1999), enfd. 245 F.3d 819 (D.C. Cir. 2001):
The Board traditionally does not consider turnover among
bargaining unit employees in determining whether a bargain-
ing order is appropriate, but rather assesses the appropriate-
ness of this remedy at the time the unfair labor practices were
committed. Otherwise, the employer that has committed un-
fair labor practices of sufficient gravity to warrant the issu-
ance of a bargaining order would be allowed to benefit from
the effects of its wrongdoing. These effects include the delays
inherent in the litigation process as well as employee turnover,
some of which may occur as a direct result of the unlawful
conduct. Thus, the employer would be rewarded for, or at a
minimum, relieved of the remedial consequences of, its statu-
tory violations. Such a result would permit employers, par-
ticularly in businesses like the Respondent’s that experience
significant turnover in normal circumstances, to disregard the
requirements of the Act with impunity, with little expectation
of incurring the legal consequences of their violations. In ad-
dition, the Board has noted that a bargaining order’s impact
on employee free choice is limited, because employees re-
main free to reject their bargaining representative after a rea-
sonable period of time. [Citations omitted.]
Numerous circuit courts, most notably the District of Co-
lumbia Circuit, have taken strong issue with this viewpoint.
See, for example, Cogburn Health Center v. NLRB, 437 F.3d
1266, 1273 (D.C. Cir. 2006) (“we have made it clear that the
Board must consider the appropriateness of a bargaining order
at the time the order is issued.”) (Italics in the original.) As a
result, in cases where the Board concludes that a bargaining
order would appear to be unenforceable in circuit court, it has
proceeded to direct an election so as to avoid litigation delays
arising from a remedial quest that would prove to be futile in

50 The Board adheres to strict standards regarding acceptance of un-
timely filed motions. See Elevator Constructors Local 2, 337 NLRB
426 (2002).
ADB UTILITY CONTRACTORS 217
any event. See, for example, Wallace International de Puerto
Rico, Inc., 328 NLRB 29 (1999); Cooper Industries, 328 NLRB
145 (1999), rev. denied sub. nom. Steelworkers v. NLRB., 8
Fed. Appx. 610 (9th Cir. 2001); and Audubon Regional Medi-
cal Center, 331 NLRB 374 (2000). However, the fact that the
Board bows to appellate authority does not demonstrate that it
has changed its views. To the contrary, recently the Board
quoted the lengthy passage from Garvey Marine cited above as
continuing to represent its position.51 See California Gas
Transport, Inc., 347 NLRB 1314, 1325 (2006).
This dispute between the Board and some appellate courts,
while generating instances of particularly heated judicial com-
mentary, is simply an aspect of a perennial issue in administra-
tive law.52 In Section 10(c) of the Act, Congress charged the
Board with the responsibility for the delineation of appropriate
remedial measures for unfair labor practices, including the
power to require “such affirmative action . . . as will effectuate
the policies of this Act.” The Supreme Court has observed that
it has, “repeatedly interpreted this statutory command as vest-
ing in the Board the primary responsibility and broad discretion
to devise remedies that effectuate the policies of the Act, sub-
ject to only limited judicial review.” [Citations omitted.] Sure-
Tan, Inc. v. NLRB, 467 U.S. 883, 897 (1984). The Board’s
nationwide responsibilities in this area make for an uneasy fit
with the appellate responsibilities of the various circuit courts
for oversight within their geographical and jurisdictional
boundaries.
There has been a tendency among some appellate judges to
misperceive the nature of the Board’s response to this inherent
institutional tension. For example, in Cogburn Health Center,
Inc. v. NLRB, 437 F.3d 1266, 1275 (D.C. Cir. 2006), the Board
is accused of having “flouted” the law of the circuit. This fol-
lowed an earlier decision accusing the Board of “inexplicably”
defying the law of the circuit. Douglas Foods v. NLRB, 251
F.3d 1056, 1067 (D.C. Cir. 2001). Frankly, it is puzzling that
these authorities fail to express any empathy for the Board’s
genuine jurisprudential dilemma presented by these differences
in geographical and jurisdictional scope. While appellate
judges may understandably be displeased by the Board’s course
of action, I do not see how they can find it inexplicable or con-
tumacious.
Respectfully, I think it worthwhile to consider a pertinent
hypothetical example. If an employer located in California

51 In his motion, counsel for the Company contends, citing Abram-
son, LLC, 345 NLRB 171 (2005), that Chairman Battista and Member
Schaumber have stated that they disagreed with the Board’s refusal to
consider the passage of time in determining whether to impose bargain-
ing orders. As to the Chairman, this is accurate. However, Member
Schaumber simply observed that the passage of time had rendered the
“enforceability,” of a bargaining order “problematical.” He did not
express any disagreement with the Board’s ongoing standard.
52 For example, see 20 C.F.R. § 404.985, a Social Security Admini-
stration regulation that sets forth the circumstances under which that
agency will acquiesce in a circuit court holding that differs from its
own interpretation of the statute. Interestingly, among the reasons cited
for a refusal to fully acquiesce is, “[s]ubsequent circuit court precedent
in other circuits [that] supports our interpretation of the Social Security
Act or regulations on the issue(s) in question.” 20 C.F.R. §
404.985(c)(1)(iii).
engages in egregious unfair labor practices to thwart a union
organizing effort, and the Board determines that a bargaining
order is appropriate, it must then decide whether to consider
any changed circumstances. Circuit law in California is very
clear on this issue. The Ninth Circuit has held that it will draw
a “wall of authority upholding the policy of deterring employ-
ers’ delay tactics” by finding changed circumstances to be ir-
relevant to the determination of whether to issue a bargaining
order. (Internal quotation marks omitted.) NLRB v. Bakers of
Paris, Inc., 929 F.2d 1427, 1438 (9th Cir. 1991).53 Thus, if the
Board were to ignore its own precedents and consider a claim
of changed circumstances, it would run afoul of the law of that
judicial circuit.
On the other hand, if the Board decided to honor its prece-
dents by refusing to consider a claim of changed circumstances,
it would run afoul of the holdings of the District of Columbia
Circuit. This is significant since my hypothetical litigants are
authorized to seek relief in either the Ninth or the District of
Columbia Circuits. See 29 U.S.C. § 160(f). Thus, the Board
would be aware that its ruling may be appealed by either party
in courts that have already expressed strong disagreement with
each other.54 In such circumstances, it strikes me that the only
responsible course is to do what the Board has done, enter an
order which it believes is fair, just, and consistent with its statu-
tory responsibilities for the formulation of the nation’s labor
law policies. Having taken such actions, it is, nevertheless,
clear that the Board has scrupulously complied with any result-
ing remand orders directing it to assess changed circumstances.
See, for example, Impact Industries, 293 NLRB 794, 795
(1989) (“we are bound by the court’s rationale”); and Research
Federal Credit Union, 327 NLRB 1051, 1052 (1999) (“we are
constrained to give substantial weight to the court’s criteria . . .
on remand”).
I recognize that I have digressed into an area that, in the par-
lance of the Government, is above my pay grade. Returning to
the case at hand, whatever the considerations affecting the
Board and the appellate courts, my duty is crystal clear. Thus,
the Board’s judges have been reminded that,
[i]t has been the Board’s consistent policy for itself to deter-
mine whether to acquiesce in the contrary views of a circuit
court of appeals or whether, with due deference to the court’s
opinion, to adhere to its previous holding until the Supreme
Court of the United States has ruled otherwise . . . [I]t remains
the [judge’s] duty to apply established Board precedent which
the Supreme Court has not reversed. Only by such recogni-
tion of the legal authority of Board precedent, will a uniform
and orderly administration of a national act, such as the Na-

53 The Ninth Circuit has just reiterated its position, noting that, “in
our court changed circumstances during intervals of adjudication have
been held irrelevant to the adjudication of enforcement proceedings.”
[Internal quotation marks and citations omitted.] East Bay Automotive
Council v. NLRB, 483 F.3d 628, 634 (9th Cir. 2007).
54 While I am speaking hypothetically, the situation is entirely real.
For an instance of a union appealing the Board’s decision to consider
changed circumstances due to concern that a bargaining order would be
otherwise unenforceable, see Steelworkers v. NLRB, 8 Fed. Appx. 610
(9th Cir. 2001).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD218
tional Labor Relations Act, be achieved. [Citations omitted.]
[Pathmark Stores, Inc., 342 NLRB 378 at fn. 1 (2004).]
Counsel for the Company’s motion seeks relief from the
proposed bargaining order based on changes in the composition
of the employer’s work force and management team since the
trial of this matter in 2003. The Board’s rule, based on consid-
eration of labor law policy concerns involving effective en-
forcement of the Act, is to decline to consider such changed
circumstances in determining whether to impose a bargaining
order. California Gas Transport, Inc., supra at 1325, citing
Garvey Marine, supra. As a result, I cannot grant the relief
being sought.
While I am precluded from considering the relief being
sought due to the tardiness of the request and my inability to
deviate from Board precedent, I am still mindful that the
Board’s remand order requires me to propose an appropriate
remedial order. As a result, I will apply the Board’s standards
for assessment of the propriety of a bargaining order in this
case. Those standards and their applicability to this case were
comprehensively discussed by Judge Schlesinger.55 I fully
agree with his analysis of the Union’s proof of majority status,
the outrageous and pervasive nature of the Company’s hallmark
violations of the Act, and the dramatic effect of the misconduct
on the bargaining unit with the resulting drastic diminution of
support for the Union. As Judge Schlesinger concluded:
The granting of a normal cease-and-desist order will not erase
the significantly pervasive and lasting deleterious impact of
Respondent’s unfair labor practices. The possibility of hold-

55 Judge Schlesinger did not explicitly state whether he concluded
that the employer’s conduct met the standards of the first category of
Gissel violations, those that involve outrageous and pervasive unfair
labor practices, or the second category consisting of less severe cases
that nevertheless have a tendency to undermine the electoral process.
NLRB v. Gissel Packing Co., 395 U.S. 575, 613–615 (1969). This is a
close question. While the employer did not fire the entire unit in re-
sponse to organizing activity, it certainly chose a course of action
marked by outrageous and pervasive misconduct. In particular, it went
beyond the run-of-the-mill discriminatory discharge of union support-
ers. By this I mean that this employer did not merely seize on some
actual employee misbehavior as a pretext designed to justify an unlaw-
ful discharge. Instead, the Company’s management chose to trump up
fictitious allegations of employee misconduct, bolster those fabrications
with phony paperwork inserted into the personnel files, and present this
toxic concoction to the Board as evidence in support of the termina-
tions. The impact of this depraved behavior on the Company’s work
force must have been, and must continue to be, enormous. No reason-
able person would run the risk of suffering consequences that poten-
tially include a falsified documentary record of work-related miscon-
duct that could certainly impact one’s efforts to find new employment
after having been wrongfully fired. While not identical to the circum-
stances in cases deemed to fall within the first category by the Board, I
find this case to lie within that range of severity. For comparison, see
Power, Inc., 311 NLRB 599 (1993), enfd. 40 F.3d 409 (D.C. Cir.
1994), and National Steel Supply, 344 NLRB 973 (2005), enfd. 207
Fed. Appx. 9 (2d Cir. 2006). If the Board deems this to be a so-called
category I case, there is no requirement for detailed additional analysis
of the need for a bargaining order. See the Board’s discussion of circuit
law on this point in National Steel Supply, infra at 977 fn. 15.
ing of a fair election is improbable. I will recommend that a
Gissel bargaining order issue.
ADB Utility Contractors, Inc., supra at 914. I join in this rec-
ommendation.
As I have previously noted, sometimes the Board considers
whether to forego a bargaining order because changed circum-
stances render such an order unenforceable in the circuit courts.
The relevant circuit courts in this case do require consideration
of changed circumstances. See the D.C. Circuit precedents
already discussed, and NLRB v. Cell Agricultural Mfg. Co., 41
F.3d 389 (8th Cir. 1994). Obviously, as in the motion it filed
before me, the Company will raise this argument, citing the
considerations of turnover in both the work force and manage-
ment ranks and the passage of time. If the Board should assess
this case as one where the issue should be addressed due to
circuit law, I recommend that a bargaining order be issued de-
spite any changed circumstances.
The record in this case does reflect that the primary man-
agement official responsible for many violations, Eirvin, left
the Company’s employ during the course of the trial of this
case. However, the evidence shows that his departure was not
reflective of any change in management’s labor relations poli-
cies. The Company’s owner, Keeley, testified that Eirvin left
the Company by “mutual agreement.” (Tr. 3089.) At the same
time, Eirvin purchased Keeley’s share of another company that
they both had owned. Most importantly, the evidence demon-
strates that, while Eirvin was the most visible official in the
employer’s antiunion effort, his behavior was entirely consis-
tent with the desires and attitudes of the owner, Keeley. Project
Manager Nanney testified regarding Keeley’s attitudes. He
reported that Keeley spoke at management meetings, advising
that he would “help” prounion employees to find work at other
companies. (Tr. 1160.) Counsel for the General Counsel
probed Nanney as to Keeley’s attitude:
COUNSEL: Okay, so the way Rusty [Keeley] feels
about the Union is, if you wanted the Union, work else-
where; correct?
NANNEY: Yes.
COUNSEL: So he doesn’t want anyone pro-Union
working at ADB; correct?
NANNEY: He has never came out and said it, but. . . .
COUNSEL: Is that what you thought he meant?
NANNEY: Yes.
(Tr. 1160.) Later, Nanney confirmed that Keeley and Eirvin
were the number one and number two persons in the Company.
Counsel then asserted that this meant that the number one and
two managers “did not want Union employees working at
ADB,” and Nanney responded that this was “[c]orrect.” (Tr.
1163.)
This case is different from cases where a complete change of
management has been found to be a material factor when con-
sidering a bargaining order. See Impact Industries, 293 NLRB
794 (1989) (“Respondent was under new management unre-
lated to the original owners”), and Audubon Regional Medical
Center, 331 NLRB 374, 377 (2000) (“none of the supervisory
or managerial employees who perpetrated the unfair labor prac-
tices is still employed by Audubon or is still associated with
ADB UTILITY CONTRACTORS 219
Audubon in any capacity”). The situation in this company is
the same as when it was assessed by trial counsel for the Com-
pany in this manner: “Mr. Keeley is the chief executive officer
of this company. So, as such, he is in charge of everything.
The buck stops with him.” (Tr. 3095.) As a result, any man-
agement turnover does not mitigate the likelihood of continuing
coercion of employees.56
It may well be that, as asserted by counsel for the Company,
there has been very substantial turnover in the work force. Of
course, this turnover will be reduced by virtue of the orders of
reinstatement for a substantial number of wrongfully dis-
charged employees. As the Board has observed, “Respondent’s
reliance on employee departures . . . is partially offset by our
remedial order directing the reinstatement of employees . . .
whom it had unlawfully terminated.” California Gas Trans-
port, Inc., supra at fn. 34. As the Board has also noted, such
reinstated employees “would not likely risk the recurrence of a
long period of unemployment by engaging in further attempts
to improve their working conditions, in the absence of a bar-
gaining order.” Cassis Management Corp., 323 NLRB 456,
460 (1997), enfd. 152 F.3d 917 (2d Cir. 1998), cert. denied 525
U.S. 983 (1998).
Beyond the ongoing impact on those employees who were
present during the course of unlawful conduct, the Company’s
behavior will resonate in other ways. As the Board has ex-
plained:
[N]ew employees may well be affected by the continuing in-
fluence of the Respondent’s past unfair labor practices. As
the Fifth Circuit has recognized, “Practices may live on in the
lore of the shop and continue to repress employee sentiment
long after most, or even all, original participants have de-
parted.” . . . [T]he Respondent’s violations 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. [Footnote omitted.] [Garvey
Marine, Inc., supra at 996.]
I cannot but imagine that any new employee who inquired of
a veteran coworker about union activity would be told the story
of Crew Leader Lohman’s victimization through use of phony
customer complaints and falsified documents. Furthermore,
one can readily visualize such a new employee being shown the
Company’s so-called “Agenda,” a document filled with expres-
sions of unlawful animus, including the promise that manage-
ment would spend $100,000 to fight the Union, adding that
“[t]his is part of your bonus money[.]” (GC Exh. 23, p. 2.) In
fact, the record reveals that the Company is well aware of the
coercive impact of its past attitudes and responses to union
activity. Eirvin began his speech to the work force regarding
the organizing campaign that is the subject of this case by not-
ing that, “I’m getting pretty good at this one—this is my fifth

56 In addition, I note that the Company does not argue that it has
taken steps to repudiate its unlawful activities. The Board has found
this to be a relevant consideration, holding that, where an employer
“has presented no evidence showing a new willingness to allow its
employees to freely exercise their rights,” a bargaining order remains
appropriate despite other evidence of changed circumstances. Califor-
nia Gas Transport, Inc., supra at 1326.
attempt at the same subject.” (GC Exh. 37, p. 1.) I conclude
that the persistent effects of the severe misconduct in this case
cannot be dissipated through turnover in the work force. As the
Board has colorfully explained, sometimes an employer’s con-
duct is “so pervasive as to have created a corporate culture of
lawlessness” that leads to “a legacy of hostility that will per-
vade the atmosphere” with a resulting impact that “may grow to
legendary proportions.” Aldworth Co., 338 NLRB 137, 151–
152 (2002), enfd. 363 F.3d 437 (D.C. Cir. 2004). This is such a
case.
Finally, I note that the passage of time, while regrettable, is
not extraordinary. Thus, the Seventh Circuit observed that
similar delay represented an “ordinary institutional time lapse
. . . inherent in the legal process.” NLRB v. Intersweet, Inc.,
125 F.3d 1064, 1068 (7th Cir. 1997). Citing this language, the
Board has held that a similar delay “does not approach the time
found to render the Gissel orders stale.” Garvey Marine, Inc.,
supra at 997. See also Evergreen America Corp., supra at 189
(Board notes that the courts have enforced bargaining orders
involving comparable time periods.) Beyond this, the effect of
the passage of time must be weighed against the seriousness of
the misconduct. In this case, that analysis indicates that much
more time must elapse before the work force can be freed from
the burden of oppression created by this employer’s behavior.57
The Company’s behavior in this case bears a strong resem-
blance to the course of unlawful conduct found to require a
bargaining order in California Gas Transport, Inc., supra. As
in this case, that employer began a pattern of violations as an
immediate response to an organizing campaign. This culmi-
nated in the commission of numerous hallmark violations of the
Act, including the unlawful discharge of 11 employees. Based
on the employer’s “calculated and systematic campaign to frus-
trate and suppress the Section 7 activities of its employees,” the
Board imposed a bargaining order. Supra at 1323. In this case,

57 It is this psychological burden that is the key rationale underlying
the bargaining order remedy. Counsel for the Company cites an elo-
quent denunciation of bargaining orders in a concurring opinion by
Judge Sentelle in Exxel/Atmos, Inc., 147 F.3d 972, 978–979 (D.C. Cir.
1998), cert. denied 525 U.S. 1067 (1999). The author contends that it is
undemocratic for an administrative agency to impose a result on a body
of voters simply because that agency believes that the voters have been
“deceived” due to “fraud” perpetrated by a party to that election. 147
F.3d at 979. The difficulty with this argument is that it misidentifies
the remedial problem that bargaining orders are designed to redress.
Based on my experience as a labor law judge, I certainly agree with
Judge Sentelle that the typical American worker is well capable of
deciding what is in his or her enlightened self-interest, both economic
and personal. However, it is not the misleading effects of deceit that
are the issue, it is coercion and intimidation. Employees who may
readily be able to determine what they perceive to be in their best inter-
est, nevertheless, cannot reasonably be expected to vote consistently
with that determination when faced with the threat of employer mis-
conduct of the scope and nature involved here. As the Supreme Court
noted in Gissel, representation elections are different from political
contests because of the “economic dependence of the employees on
their employers.” Gissel, supra at 617. The bargaining order is a
measured response to bullying and intimidation. By effectuating the
last uncoerced expression of the employees’ opinions, it addresses the
consequences of the employer’s misconduct without undue impact on
the Sec. 7 rights of the work force.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD220
the Company engaged in at least an equivalent degree of mis-
conduct, including discharges of union supporters using falsi-
fied evidence, threats of futility, threats of plant closure, threats
of reduction of bonus payments, threats of increased subcon-
tracting of work, threats of loss of benefits, unlawful interroga-
tions, and the creation of an unlawful impression of surveil-
lance of employees’ protected activities. These measures were
designed to intimidate and coerce employees in the free expres-
sion of their will regarding whether to organize collectively.
Finally, I note that the bargaining order remedy, while not an
ideal solution to the difficult problem presented, is the best
available measure to effectuate the Act’s objectives. It will
implement the collective will of the majority of the work force
as expressed in the only uncoerced manner available in this
case. I recognize that the desires of some portion of the work
force may be frustrated by this action. In the first instance, it
must be recognized that this is the virtually inevitable result of
any democratic process. Beyond that, it is important to ac-
knowledge the limited nature of the bargaining order. As the
Supreme Court observed in Gissel, supra at 613, “there is, after
all, nothing permanent in a bargaining order, and if, after the
effects of the employer’s acts have worn off, the employees
clearly desire to disavow the union, they can do so by filing a
decertification petition.” The Union’s status as bargaining
representative is only inviolate for a limited and specified pe-
riod of time.58 As is always the case with a newly-certified
union, the initiation of collective bargaining is very much of an
experiment and a great range of possible outcomes exists. Con-
tinuing to act in their own uncoerced best interests, the Com-
pany’s employees will determine the future role of the Union as
their representative.
In sum, I conclude that nothing in the Board’s evolving
precedents indicates any need to alter Judge Schlesinger’s find-
ings of fact, conclusions of law, or recommended remedial
measures. For ease of reference, I will copy his proposed order
and notice below.59 In so doing, I have amended them to re-
flect the Company’s correct corporate name and have added a
provision addressing the Company’s second motion to reopen
the record.

58 Indeed, the regulatory process involved in this area is one of the
most effective aspects of the bargaining order remedy for this case. If
the Company wishes to ensure that conditions exist that would permit
its employees the opportunity to revisit the question of union represen-
tation through the Board’s electoral processes, it must refrain from the
commission of unfair labor practices so as to enable the period of un-
contestable certification to run. This provides a powerful incentive for
the Company to conform its conduct to the requirements of the law.
See Lee Lumber & Building Material Corp., 322 NLRB 175, 177
(1996) (Lee Lumber II), enfd. in pertinent part and remanded in part
117 F.3d 1454 (D.C. Cir. 1997) (lawful withdrawal of recognition can
only occur in a context free of unfair labor practices likely to cause
employee disaffection with the union).
59 To the extent that my duplication of this order and notice language
may suggest that I endorse all of the findings and recommendations
made by Judge Schlesinger, I embrace that implication wholeheartedly.
I conclude that it is appropriate to note this since the Board’s Order
directed the judge on remand to set forth an appropriate recommended
order. ADB Utility Contractors, Inc., supra at 895. Judge Schlesinger’s
order remains the appropriate recommendation.
ORDER
The Respondent, American Directional Boring, Inc., d/b/a
ADB Utility Contractors, Inc., of St. Louis, Missouri, its offi-
cers, agents, successors, and assigns, shall
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 (the Union) as their collective-bargaining
representative.
(c) Threatening its employees that it is futile to select the Un-
ion as their collective-bargaining representative.
(d) Threatening or impliedly threatening its employees with
closure of its St. Louis facility if its employees select the Union
as their collective-bargaining representative.
(e) Soliciting its employees who support the Union to quit
their employment.
(f) Impliedly threatening its employees with discipline for
wearing pins demonstrating support for the Union.
(g) Impliedly threatening its employees that selecting the
Union as their collective-bargaining representative would result
in the reduction or loss of their bonus and loss of their em-
ployment.
(h) Threatening its employees that selecting the Union as
their collective-bargaining representative would result in the
loss of their employment, insurance, and retirement plan.
(i) Threatening to subcontract more work if its employees se-
lect the Union as their collective-bargaining representative.
(j) Interrogating its employees about their union activities
and threatening its employees with unspecified reprisals be-
cause of their union activities.
(k) Discharging its employees because of their union activi-
ties or sympathies and in order to discourage their membership
in the Union or any other labor organization.
(l) Refusing to recognize and bargain with the Union as the
exclusive collective-bargaining representative of its employees
in the unit set forth below.
(m) In any other manner interfering with, restraining, or co-
ercing its employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive rep-
resentative of its employees in the following appropriate unit
concerning terms and conditions of employment and, if an un-
derstanding is reached, embody the understanding in a signed
agreement:
All employees employed by American Directional Boring,
Inc., d/b/a ADB Utility Contractors, Inc., at its St. Louis, Mis-
souri facility, EXCLUDING project managers, office clerical,
managerial, professional employees, over-the-road truck
driver, guards and supervisors as defined in the Act.
(b) Within 14 days from the date of the Board’s Order, offer
Jeremy Farris, Edgar Schreit, Nathan Schaffer, Rodney Han-
ephin, Matt Sutton, Jason Lohman, Adam Williams, Matt
Bridges, Steve Mack, John Shipp, and Wayne Schaffer full
ADB UTILITY CONTRACTORS 221
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 enjoyed.
(c) Make Jeremy Farris, Edgar Schreit, Nathan Schaffer,
Rodney Hanephin, Matt Sutton, Ryan Adams, Clarence Wil-
liams, 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 discrimi-
nation against them, in the manner set forth in the remedy sec-
tion of the decision.
(d) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to the unlawful discharges of
Jeremy Farris, Edgar Schreit, Nathan Schaffer, Rodney Han-
ephin, 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 addi-
tional 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 re-
cords, 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 fa-
cility in St. Louis, Missouri, copies of the attached notice
marked “Appendix.”60 Copies of the notice, on forms provided
by the Regional Director for Region 14, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced,
or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since April 15,
2003.
(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 ALSO ORDERED that the portions of the record that were
placed under seal will continue to be maintained under seal.
IT IS FURTHER ORDERED that the Company’s Motion to Re-
open the Record to Receive Evidence Regarding the Continu-
ing Validity of the Bargaining Order in Light of the Changed
Circumstances, filed on July 10, 2007, is denied.

60 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
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 be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT create the impression among our employees
that their union activities are under surveillance.
WE WILL NOT impliedly threaten our employees with termi-
nation if they select Local 2, International Brotherhood of Elec-
trical Workers, AFL–CIO (the Union) as their collective-
bargaining representative.
WE WILL NOT threaten our employees that it is futile to select
the Union as their collective-bargaining representative.
WE WILL NOT threaten or impliedly threaten our employees
with closure of our St. Louis facility if our employees select the
Union as their collective-bargaining representative.
WE WILL NOT solicit our employees who support the Union
to quit their employment.
WE WILL NOT impliedly threaten our employees with disci-
pline for wearing pins demonstrating support for the Union.
WE WILL NOT impliedly threaten our employees that selecting
the Union as their collective-bargaining representative would
result in the reduction or loss of their bonus and loss of their
employment.
WE WILL NOT threaten our employees that selecting the Un-
ion as their collective-bargaining representative would result in
the loss of their employment, insurance, and retirement plan.
WE WILL NOT threaten to subcontract more work if our em-
ployees select the Union as their collective-bargaining repre-
sentative.
WE WILL NOT interrogate our employees about their union ac-
tivities and threaten our employees with unspecified reprisals
because of their union activities.
WE WILL NOT discharge our employees because of their un-
ion activities or sympathies and in order to discourage their
membership in the Union or any other labor organization.
WE WILL NOT refuse to recognize and bargain with the Union
as the exclusive collective-bargaining representative of our
employees in the unit set forth below.
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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD222
understanding is reached, embody the understanding in a signed
agreement:
All employees employed by American Directional Boring,
Inc., d/b/a ADB Utility Contractors, Inc., at its St. Louis, Mis-
souri facility, EXCLUDING project managers, office clerical,
managerial, professional employees, over-the-road truck
driver, guards and supervisors as defined in the Act.
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 en-
joyed.
WE WILL make Jeremy Farris, Edgar Schreit, Nathan
Schaffer, Rodney Hanephin, Matt Sutton, Ryan Adams, Cla-
rence 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 Han-
ephin, Matt Sutton, Ryan Adams, Clarence Williams, Jason
Lohman, Adam Williams, Matt Bridges, Steve Mack, John
Shipp, and Wayne Schaffer, and WE WILL, within 3 days there-
after notify these employees in writing that this has been done
and that the discharges will not be used against them in any
way.
AMERICAN DIRECTIONAL BORING, INC., D/B/A ADB
UTILITY CONTRACTORS, INC.