ADB Utility Contractors, Inc.

National Labor Relations Board - Administrative Judge Opinions

Aug 23, 2007

14-CA-027386 (N.L.R.B. Aug. 23, 2007)

JD-35-07
St. Louis, MO
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
AMERICAN DIRECTIONAL BORING, INC.,
d/b/a ADB UTILITY CONTRACTORS, INC.1
and Cases 14-CA-27386
14-CA-27570
14-CA-27677
LOCAL 2, INTERNATIONAL
BROTHERHOOD OF ELECTRICAL
WORKERS, AFL-CIO
Paula B. Givens, Esq., for the General Counsel.2
Michael E. Kaemmerer, Esq. and
Bryan M. Kaemmerer, Esq., of Chesterfield,
Missouri, for the Respondent.3
Christopher N. Grant, Esq., of Saint Louis,
Missouri, for the Charging Party.
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 between August 4, 2003 and February 5, 2004. The original charge was filed
on April 16, 2003,4 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 corporate 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,

1 The Company moved to correct its name as set forth above. (R. Suggestions in Support of
Reopening of the Record, at fn. 1.) As this motion was unopposed, I have previously granted it.
2 Mary J. Tobey, Esq., was with Ms. Givens on the General Counsel’s Opposition to
Respondent’s Motion to Reopen the Record to Receive Evidence of Changed Circumstances.
3 During the prior portions of this litigation, the Respondent was represented by Lawrence P.
Kaplan, Esq., and Joshua M. Avigad, Esq., of Saint Louis, Missouri.
4 All dates are in 2003, unless otherwise indicated.
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the discharge of 13 employees because of their support for the Union. The General Counsel
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 complaint. As the litigation evolved,
the Company eventually asserted that a key aspect of its defense to the charge of unlawfully
discharging employees was a contention that eight of those employees, characterized as
leaders of various work crews, fell within the National Labor Relations Act’s exclusion of
coverage based on their supervisory status. The eight were: Boring Crew Leaders Jeremy
Farris, Nathan Schaffer, and John Shipp; Backhoe Crew Leaders Matt Bridges and Adam
Williams; Restoration Crew Leader Jason Lohman; Cable Crew Leader Matt Sutton; and
Underground Crew Leader Rodney Hanephin.
On May 10, 2005, Judge Schlesinger issued his decision finding that the Company had
engaged in the unlawful conduct alleged in the various complaints. Based on his conclusion
that the misconduct had been egregious, he recommended issuance of a broad cease-and-
desist order. He also recommended a make-whole remedy for each of the individuals who had
been discharged by the Company. Finally, his order included a requirement that, on request,
the Company bargain with the Union as the exclusive representative of a unit of employees at
the Saint Louis facility. See ADB Utility Contractors, Inc., 348 NLRB No. 53 (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
because of supervisory status. On September 30, 2006, the Board issued an order remanding
this proceeding to permit an assessment of the impact of the Board’s recent trilogy of decisions
addressing a number of issues relating to the statutory definition of supervisory status.5
Specifically, the remand order directed “further consideration in light of Oakwood Healthcare,
Croft Metals, and Golden Crest” regarding “the meaning of ‘assign,’ ‘responsibly to direct,’ and
‘independent judgment,’ as those terms are used in Section 2(11) of the Act.” Infra, slip op. at 1.
The Board’s remand order contained several other provisions. It granted the parties the
opportunity to file briefs regarding the issues presented in the remand. By contrast, it instructed
the judge on remand to determine whether a reopening of the record to obtain additional
evidence was “warranted.” 348 NLRB No. 53, slip op. at 1. Finally, the Board took note that
Judge Schlesinger had retired. As a result, in the event he was unavailable, it ordered that the
case be reassigned to another judge.
Pursuant to the remand order, Deputy Chief Administrative Law Judge C. Richard
Miserendino issued a show cause order directing the parties to submit their positions on the
question of any reopening of the evidentiary record. Once these were received, I was assigned
the case on February 26, 2007.6
1. The state of the evidentiary record
In the show cause order, Judge Miserendino noted that counsel for the General Counsel

5 The Oakwood trilogy consists of: Oakwood Healthcare, 348 NLRB No. 37 (2006); Croft
Metals, 348 NLRB No. 38 (2006); and Golden Crest Healthcare Center, 348 NLRB No. 39
(2006).
6 It had previously been determined that Judge Schlesinger was not available. See, the
show cause order of November 21, 2006.
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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 sufficient.” (Show Cause Order, p. 1.)
Counsel for the Company disagreed, contending that there was a need to reopen the record to
obtain additional evidence. In light of this disagreement, the judge issued specific instructions to
the parties regarding 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 identification of the specific “gaps in the record that need to be
supplemented 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
opposing 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 particular, on December 22,
2006, the Company filed suggestions in support of a reopening of the record.7 In its
suggestions, it begins by contending broadly that, prior to the decisions in the Oakwood trilogy,
the labor law community lacked “sufficient and workable guidance” as to the meaning of the
terms, “assign,” “responsibility to direct,” and “independent judgment.” (Suggestions, p. 1.) As
a result, it is claimed that,
Respondent did not present sufficient evidence on these issues
in the prior proceedings because it did not, and could not, have
known what evidence was appropriate to present regarding these
ambiguous terms given the lack of sufficient guidelines from the
Board. [Underlining in the original.]
(Suggestions, p. 1.)
Although counsel began his argument by making this broad claim, he then proceeded to
cite only one specific area in which he contended that the record was insufficiently developed.
While noting that the record contained evidence as to the crew leaders’ authority to designate
employees to specific jobsites and shifts, he asserted that “there is a gap in the record regarding
whether the crew leaders assigned overall duties to the employee(s) whom they supervised.”
(Suggestions, p. 4.) This is the only alleged specific gap in the record cited by counsel for the
Company.
Beyond this, counsel for the Company made a generalized equitable argument in
support of reopening of the record, noting that the “slight inconvenience” to the parties was
outweighed by potential prejudice to the Company. (Suggestions, p. 4.) He concluded by
observing that, “[i]t is fundamentally unfair to the Parties for the Board to decide a much-
heralded, long-anticipated decision and not allow those whose cases are pending before the
Board the opportunity to address the same.” [Underlining in the original.] (Suggestions, p. 5.)
Based on these arguments, counsel for the Company sought reopening for what he
characterized as a limited purpose. He described the scope of the proposed reopening as,
generally consist[ing] of the testimony of the eight Crew
Leaders, the Operator(s) and Laborer(s) whom they
supervised, and the Superintendent(s) or Project Manager(s)

7 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.
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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 decisions
now provide, cannot in itself warrant re-opening the record.
Respondent must show something more. ADB fails to do this.
(Union’s Reply, p. 3.) Counsel for the 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 argued 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 exercise 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 addressed 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.) 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 proceedings or representation cases, nothing is more routine in
this field of the law than litigation of the issue of supervisory status. Years ago, the Board
observed that supervisory status “is one of the most common issues” it faces. As a result,
the Board’s decisions are replete with findings of supervisory and
nonsupervisory status. A number of factors, principally those set
forth in the definition of supervisor in Section 2(11) of the Act, are
relevant. The difficulty lies in the assessment of the facts and
circumstances in each case in light of the relevant factors. There
are few, if any, hard and fast rules. Rather, the Board must decide
in each case whether a preponderance of the evidence shows that
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an employer has in fact delegated supervisory authority to each
employee claimed to be a supervisor.
McCullough Environmental Services, 306 NLRB 565 (1992).8 The message to practitioners was
unmistakable. When litigating supervisory status, whatever the current state of the precedents,
the parties must strive to present a detailed and comprehensive “assessment of the facts and
circumstances in each case.” Infra at 565.
This analytical methodology requiring detailed factual exploration existed at the time of
the trial of this case in 2003. Indeed, it was perhaps more vital during the trial of this case that
at any comparable period of the Board’s history because, shortly before the commencement of
this trial, the Board gave notice to the labor law community that it was planning to examine this
area of jurisprudence.9 In its conclusory section of Oakwood, the Board took pains to
underscore the continuity of this principle of analysis. It observed that its holdings in the
Oakwood cases did not represent any “sea change in the law,” and reminded the labor law
community that it would “continue to assess each case on its individual merits.” Oakwood
Healthcare, supra, slip op. at 14.
In my view, it is has always been clear that the obligation of a proponent of supervisory
status consists in presenting any and all competent evidence that sheds light on the totality of
the functions, duties, and responsibilities of the jobs at issue. Nothing in Oakwood supports
counsel for the Company’s contention that the Company was unable to ascertain what evidence
to present at trial, “because it did not, and could not, have known what evidence was
appropriate to present.” (Suggestions, p. 1.) To the contrary, the Board has always made it
clear to the labor law community that the requirements of a fact-specific determination meant
that the parties should present a thorough and complete picture of the job whose status was in
contention.10
Not only did the parties in 2003 know that they were charged with presenting any and all
relevant evidence about the actual duties and conditions of employment for the crew leaders,
they proceeded to meet this obligation in a complete and thorough manner. Each of the crew
leaders whose status was in contention testified in detail about the scope and nature of their
jobs. They were subject to wide-ranging examination by counsel for all of the parties. In

8 Ironically, in this case where the Board took the opportunity to stress the fact-specific
nature of the inquiry and the possibility for reasonable 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).
9 See the Board’s notice of July 25, 2003, inviting the labor law community in general to file
briefs in the Oakwood cases. The invitation 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.
10 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 distinguishes 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, Inc., 307
NLRB 773 (1992). All of these so-called secondary indicia were thoroughly explored during the
trial of this case.
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addition, various Company officials, including the Company’s founder and general manager,
Chris Eirvin, Project Manager Rich Robinson, and Project Manager Ernest Nanney, also
provided information and opinions regarding the crew leaders’ status and functions.11
The trial judge took pains to ensure that the record on this key issue was fully
developed. For example, at one point during the testimony, counsel for the Company objected
to counsel for the General Counsel’s detailed inquiry regarding Crew Leader Sutton’s work
processes. Judge Schlesinger responded by telling counsel that,
I’ll overrule it. That’s the reason why we’re going to go
on for days. We’ve got to know what the—for the
purposes of the record, we’ve got to know what all these
people do.
(Tr. 1564—1565.) I conclude that the record compiled by the parties and the trial judge does
present a clear and comprehensive picture of the full scope and extent of the crew leaders’
functions, duties, and responsibilities. As a result, the record is entirely adequate to permit
analysis and determination of their status under the Act, including application of the teachings
contained in the Oakwood cases.12
In addition to examining the state of the existing record, I have considered the equitable
issues raised by counsel for the Company. He contends that there would be only slight
inconvenience to the parties if the record were to be reopened to permit testimony from all of the
crew leaders, their superiors, and the members of their crews. In fact, what counsel proposes is
essentially the relitigation of the entire matter. The original trial extended over a 16-day period
and clearly represented a very substantial effort and expense to the private litigants and the
General Counsel. The proposal to recall the numerous crew leaders and produce yet additional
witnesses would greatly increase the effort and expense of this litigation. I agree with counsel
for the 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.”13 (Union’s

11 In this regard, I reject counsel for the General Counsel’s contention 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 specifically 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 ranking, would
have been able to provide relevant testimony on the issue. The record was fully developed
without the production of any additional 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 No. 64, slip op.
at 7 (2006) (“A party has no obligation to call every witness at its disposal to prove its case.”).
12 In fact, I agree with trial counsel for the Company’s opening sentence 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 leaders at Respondent can be
determined through the testimony of those crew leaders that testified.” (R. Trial Br., p. 4.)
13 Merriam-Webster’s online dictionary defines “mulligan” as “a free shot sometimes given a
Continued
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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.14
Finally, counsel for the Company argues that it would be “fundamentally unfair” for the
Board to decide supervisory status issues after Oakwood without allowing “those whose cases
are pending before the Board the opportunity to address the same.” (Suggestions, p. 5.) There
are two difficulties with this argument. First, “[t]he Board’s usual practice is to apply new
policies and standards retroactively to all pending cases in whatever stage.” [Internal quotation
marks and citations omitted.] SNE Enterprises, Inc., 344 NLRB No. 81, slip op. at 1 (2005).
The wisdom of that policy is well illustrated by consideration of the consequences of any
alternative. An excellent example of those perils has arisen in another Oakwood situation,
Jackson Hospital Corp., 2007 WL 601570 (Div. of Judges, February 22, 2007). This is a
compliance proceeding involving the determination of the amount of backpay arising from a
2003 Board Order imposing a make-whole remedy for unlawful activity. In her decision
awarding backpay, the administrative law judge, citing SNE Enterprises, denied the
respondent’s motion to reopen the proceedings to examine the supervisory status of a
discriminatee due to the alleged impact of the Oakwood cases.15 Liberal grant of such
procedural relief would open a Pandora’s Box of litigation with inequitable consequences for the
affected parties.
Beyond this, counsel for the Company’s argument fails for the simple reason that the
Board is not proposing to decide the supervisory status issue in this case without allowing the
parties’ to address the impact of Oakwood. To the contrary, the Board’s remand specifically
authorizes the filing of briefs designed to give it an opportunity to consider the parties’ views as
to the impact of Oakwood. In my opinion, this is the appropriate response to the question of
procedural fairness presented here. While the standards for creation of an evidentiary record
on the issue of supervisory status have not changed, the analytical criteria have been refined.
Thus, the parties have been afforded an opportunity to explain how those refinements should be
applied to the record in this case. There is simply nothing unfair or inequitable about the use of
these procedures.
Finally, I have considered counsel for the General Counsel’s argument that the issue of
reopening of the record must be adjudicated by reference to the Board’s general procedural rule
_________________________
golfer in informal play when the previous shot was poorly played.” See, www.c-w.com.
14 I have also taken note of the diminished probative value of testimony provided this long
after the events at issue. The status of the crew leaders must be determined based on the
nature of their jobs during 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 effects 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.
15 The Board has addressed this problem as well. In T. Steele Construction, Inc., 348 NLRB
No. 79, slip o. at 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 No. 64
(2007) (Board grants summary judgment, rejecting an attempt to raise an Oakwood issue in a
refusal to bargain case).
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governing motions to reopen. That rule, Section 102.48(d)(1), provides that, in extraordinary
circumstances, after the issuance of a Board decision or order, a party may move to reopen the
record. In applying this rule, the Board has employed relatively stringent criteria. For example,
in APL Logistics, Inc., 341 NLRB 994 (2004), it denied reopening where the issue of agency
status “was fully litigated at the hearing, and the Respondent has not shown why it could not
have developed the same facts at that time.”
It is not clear to me that Section 102.48 applies to this case. The Board did not cite the
rule while directing that the judge on remand determine whether reopening is warranted. In
deciding this issue, I will not directly apply the rule. Nevertheless, its provisions, and the
Board’s commentaries about those provisions, are illustrative of the considerations that I should
bear in mind. In that regard, I agree with counsel for the General Counsel that the Board’s
statements in Lockheed Martin Astronautics, 332 NLRB 416 at fn. 2 (2000), are instructive. In
that case, the respondent sought to reopen the proceeding to produce the testimony of Buehler,
the person who had decided to discharge the alleged discriminatee. In denying the request, the
Board observed:
The Respondent does not specify what testimony Buehler would give
(it says only that he would describe the Respondent’s practices for
dealing with employees who make threats), and it does not claim that
his testimony would require a different result. Nor does the Respondent
have any satisfactory explanation for Buehler’s failure to testify at the
hearing; indeed, it admits that he was available to testify at that time. The
Respondent does not contend—nor could it—that Buehler’s evidence is
newly discovered or has become available only since the close of the
hearing. The Respondent’s contention that Buehler’s testimony became
relevant only after the remand is entirely meritless. That testimony,
through which the Respondent apparently would attempt to establish the
validity of [the] discharge, was every bit as relevant at the time of the
hearing as it would have been on remand. [Citation omitted.]
By the same token, the testimony being proferred 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.
2. 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, slip op. at 1. 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.”
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CMC Electrical Construction and Maintenance, Inc., 347 NLRB No. 25, slip op. at fn. 4 (2006).16
Given that the judge on remand was authorized to adopt the original judge’s demeanor-based
credibility resolutions in circumstances where that judge’s conduct was under scrutiny, I
conclude that the same procedure should certainly apply to this remand where the trial judge’s
conduct is not in question. I will, therefore, examine the evidentiary record and ascertain
whether Judge Schlesinger’s demeanor-based credibility findings are consistent with the weight
of the evidence. If I find that they are consistent with that evidence, I will accord them
appropriate consideration.
Beyond this, I recognize that the Board has endorsed the use of a variety of effective
tools and methods to determine credibility in the absence of an opportunity to gauge the
demeanor of the witnesses. In Northridge Knitting Mills, Inc., 223 NLRB 230 (1976), the trial
judge’s illness forced his retirement before he could issue a decision. The Board proceeded to
decide the case, observing that,
we are mindful of our initial responsibility to determine credibility
because of the several sharp conflicts in the testimony on this record.
As the parties recognize, our task is made more difficult in this
respect because we do not have the opportunity to make our credibility
findings on the demeanor of the witnesses. Nonetheless, it is abundantly
clear that the ultimate choice between conflicting testimony also rests on
the weight of the evidence, established or admitted facts, inherent
probabilities, reasonable inferences drawn from the record, and, in sum,
all of the other variant factors which the trier of fact must consider in
resolving credibility. [Citation omitted.]
Supra at 235. See also Panelrama Centers, 296 NLRB 711 at fn. 1 (1989).
I will now proceed to examine the record in this case applying all of the timeworn and
proven methods authorized by the Board. My purpose will be twofold: to determine whether
Judge Schlesinger’s demeanor-based credibility resolutions comport with the weight of the
evidence and to decide which evidence is entitled to credence based on the other traditional
methods of analysis.
My inquiry must naturally begin with Judge Schlesinger’s decision itself. Upon first
reading that decision prior to examining any of the evidence in the case, I was struck by how
emphatic my colleague was on the subject of the credibility of the testimony of the Company’s
management officials. To begin with, he dealt at length with the reliability of the testimony of the
Company’s original founder and general manager during the events at issue, Chris Eirvin. He
concluded that Eirvin, “has no regard for the truth,” engaged in “fabrications,” told “blatant”
falsehoods, was “untruthful,” and “was making it up as he testified.” ADB Utility Contractors,
Inc., supra at pp. 3 and 17. In addition, he characterized Eirvin as “evasive and argumentative,”
and found portions of his testimony to be “particularly outrageous,” “utterly improbable,” and
“carefully fabricated.” ADB Utility Contractors, Inc., supra at pp. 3 and 4. He also concluded
that Eirvin had manufactured documents in an attempt to justify his unlawful decisions to

16 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 and Maintenance, Inc., 2006
WL 2927251 (Div. of Judges, October 10, 2006), at fns. 3, 15, and 16.
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discharge supporters of the Union. He summarized his conclusions as follows:
Eirvin’s testimony was no mistake or inadvertent error.
It was deliberate, calculated lying . . . I do not credit
Eirvin at all, about anything, unless corroborated by an
impartial, credible witness.
Infra, p. 4.
Judge Schlesinger reached similar conclusions about the testimony of the other
important management officials who participated in the trial. Of particular significance were his
findings with regard to the credibility of Project Managers Robinson and Nanney. These men,
admitted supervisors,17 were officials to whom the crew leaders in this case reported. The
judge found that Robinson “joined in” Eirvin’s “deliberate, calculated lying.” Infra, p. 4. He found
a “lack of clarity” in Robinson’s testimony which, together with other factors, convinced him that
Robinson’s testimony “was a fiction.” Infra, p. 12. Overall, he concluded that, “Robinson is
complicit in attempting to mislead me, and I do not trust him.” Infra, p. 4. He reached the same
conclusion regarding Nanney, determining that his testimony was also “utterly improbable.”
Infra, p. 3. He observed that, “[a]s to both Robinson and Nanney, I found them beholden to
Eirvin, who appeared to dominate their testimony; and I trust neither of them.” Infra, p. 4. Put
as plainly as it could possibly be, he concluded that the project managers “were not telling the
truth.”18 Infra, p. 3.
Judge Schlesinger’s ultimate credibility conclusion was that the Company’s witnesses,
“purposely fabricated” evidence to rid the Company of union supporters and thwart the
organizational effort. Having now studied the voluminous record in this matter, I readily
conclude that my colleague’s demeanor-based credibility resolutions regarding the Company’s
management witnesses are entirely consistent with the great weight of the evidence. As a
result, I will factor them into my decisionmaking process. Beyond that, apart from any
demeanor-based credibility resolutions, I conclude that the management witnesses were not
credible and that their testimony cannot be relied upon.
To begin with, I have considered what the evidence demonstrates regarding the motives
of those management witnesses. That evidence was overwhelming in showing the lengths that
the Company was prepared to go to in order to achieve its unlawful objectives. In his testimony,
Eirvin admitted that he told the employees, “that the Company would shut the doors . . . .
Repeatedly, I said, ‘This place will not be 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 organizing effort.19 In a most egregious example, the Company’s officials fabricated

17 See the Company’s answer to the original complaint and its trial stipulation to the same
effect. (GC Exh. 1(f) and Tr. 896.)
18 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.
19 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 raised
Continued
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customer complaints in order to justify the illegal 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 regarding motivation, I also find
that the specific testimony regarding supervisory status provided by the Company’s officials was
completely unpersuasive. A number of examples illustrate this point. Project Manager Nanney
reported that he would consult his crew leaders before deciding whether to fire a member of
their crews. Upon further questioning, he had to admit that he had not consulted Crew Leaders
Hanephin or Lohman prior to discharging members of their crews. Ultimately, the examination
continued as follows:
COUNSEL: So today you cannot think of a single crew leader
whose opinion you have asked about whether or
not you should fire a laborer, right?
NANNEY: That is correct.
COUNSEL: In fact, the crew leaders aren’t involved in the
termination process at all; correct?
NANNEY: That is correct.
(Tr. 1180—1181.) Similarly, he was asked if crew leaders were invited to meetings at which
employee terminations were discussed. He replied that, “[m]ost of the time they are.” (Tr.
1181.) Just a few moments later, he was forced to retreat when asked if it was standard
practice to invite the crew leaders. He responded, “I would say no.” (Tr. 1182.)
Project Manager Robinson demonstrated a similar level of imprecision in his description
of the duties and responsibilities of the crew leaders. Counsel asked him if backhoe crew
leaders were supervisors. He responded:
ROBINSON: To be supervisors, I don’t know if I would call it
a supervisor. They do supervise—they do look
over the job, as what I call a crew leader, but, yes,
they decide who the job—how the safety goes on
the job and how the job gets done, yes.
COUNSEL: And does ADB consider all of its backhoe operators
to be supervisors?
ROBINSON: I don’t know.
(Tr. 1101.) Given the fact that the crew leaders report directly to the project managers,
Robinson’s testimony is absolutely breathtaking in its imprecision.
_________________________
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.
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General Manager Eirvin was no clearer in his testimony about supervisory authority. He
was examined regarding the Company’s position on the issue of supervisory status for crew
leaders at the representation hearing held just a few months earlier. Since he was a key
participant and witness during that proceeding, one would have expected him to have no
difficulty in articulating the Company’s position. Despite this, when counsel asked him if, “it was
ADB’s position at that [representation] hearing in May, that its Crew Leaders were not
supervisors and managers,” his reply was, “I don’t recall exactly how we classified everybody
. . . It kind of got confusing.” (Tr. 2682.)
The probative value of Eirvin’s testimony was illustrated by another episode during the
trial. He was asked if boring crew leaders prepared written evaluations of the members on their
crews. He responded with an unequivocal affirmation that they did so. Counsel for the General
Counsel then showed Eirvin evaluations of boring crew members that did not contain anything
from their crew leaders. He conceded this point, but repeatedly claimed that other evaluations
prepared by the crew leaders would be produced later during the trial. As he put it, “I can
provide all of them.” (Tr. 55.) Although the trial continued over the course of many months, no
such evaluations were ever presented.
In addition to the vague, inaccurate, and contradictory nature of the managers’ testimony
about the supervisory status issue, I have also considered the Company’s overall
representations to the Board on this question. While the Company has vigorously asserted in
this unfair labor practice proceeding that the crew leaders are statutory supervisors, this
represents a radical departure from its position in the representation case, a virtually
contemporaneous proceeding. In that case, not only did the Company deny that crew leaders
were supervisors, it went so far as to argue that the project managers to whom the crew leaders
reported also lacked supervisory status. In the Company’s brief to the Regional Director, former
counsel asserted that, “the Project Managers do not demonstrate the degree of independent
control normally associated with supervisors.” (GC Exh. 65, p. 13.)
I concur with counsel for the 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 Respondent makes
no effort to explain its change in position. Apparently, on May 6, 2003
(the date of the representation hearing) the discriminatees were
employees; but, on surrounding dates—April 15, April 25, April 28, and
May 8, 2003 (the dates of the first 11 discharges)—they were supervisors.
Respondent offers no evidence to explain how this is possible. All one can
surmise is that Respondent needed a defense to the unfair labor practice
charges, so changed its position despite its earlier assertions.
(Union’s 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 managers is incredible and totally unreliable. Without in any way meaning to
be facetious, I will illustrate my conclusion by noting that, if one of the company’s managers
were to have testified that the City of 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 corroborated by other credible evidence.
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An additional facet of credibility resolution remains to be addressed, a determination as
to the reliability of the testimony of the crew leaders themselves. I begin by noting that, to a
substantial extent, the Company has not challenged the credibility of those employees. To the
contrary, in its exceptions to Judge Schlesinger’s decision, former counsel for the Company
noted that, “Respondent does not rely on the testimony of Eirvin but rather relies on the
testimony of the affected employees.”20 (R. Brief in Support of Exceptions, fn. 2.)
While I generally credit the testimony of the former crew leaders, I have drawn a clear
distinction between two differing aspects of their accounts. They were asked two types of
questions about their former jobs. Most of the questions posed by all counsel were designed to
elicit information about the specific duties, functions, and responsibilities of the crew leader role.
Such questions concerned whether the crew leaders had ever exercised management authority
of the types outlined in the statutory definition or simply called for the witnesses’ recollections
about the daily routine events of their employment. In their detailed responses to this type of
questioning, I found the crew leaders to have provided logical, consistent, and credible
information. I conclude that their accounts of their actual duties and activities are reliable.
In addition to the careful elicitation of the details of the daily work of the crew leaders, all
counsel occasionally indulged in questions designed to solicit the opinions of the witnesses
regarding some of the ultimate issues in this case. For example, counsel for the Company
asked Crew Leader Farris if he had ultimate responsibility for the production of the crew. He
responded, “Yes, because of the title.” (Tr. 2143.) He added that he “assumed” this was the
case, although nobody ever told him so. (Tr. 2144.) Similarly, Crew Leader Shipp also testified
that he “assumed” that he was responsible for production, although he was never told this by
management. (Tr. 2599.) Crew Leader Lohman opined that the proverbial “buck” stopped with
him. (Tr. 1919.) When asked whether anybody had told him this or was it simply his
assumption, he replied that, “I assumed it.” (Tr. 1926.)
In rejecting the Company’s argument that the crew leaders were statutory supervisors,
Judge Schlesinger noted that:
The most evidence that Respondent presented was conclusory
statements by various crew leaders about their being “bosses”
and their responsibility for the productivity of their crews and to
see that their job got done. However, conclusory statements,
without supporting evidence, are insufficient to establish supervisory
status and authority.
ADB Utility Contractors, Inc., supra., slip op. at p. 8. The judge cited a line of Board precedents
in support of his refusal to give weight to such conclusory remarks. In particular, he referenced
Armstrong Machine Co., 343 NLRB 1149 at fn. 4 (2004) (“Conclusory evidence is insufficient to
prove supervisory status.”); Chevron Shipping Co., 317 NLRB 379 at fn. 6 (1995) (statement
that individual “oversees” others does not establish supervisory status absent specific proof that

20 Before the trial judge, citing one portion of a crew leader’s testimony 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 16.
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such power was exercised with independent judgment); and Sears, Roebuck & Co., 304 NLRB
193, 199 (1991) (“conclusory statements, without supporting evidence, are not sufficient to
establish supervisory authority.”).
Interestingly, the Board has now addressed this issue in the post-Oakwood context. In
Avante at Wilson, Inc., 348 NLRB No. 71 (2006), the issue was whether certain staff nurses
exercised supervisory authority over nursing assistants. One staff nurse testified that she
believed she had authority to send an insubordinate assistant home. Relying on two of the
same precedents cited by Judge Schlesinger, the Board held that this evidence was insufficient
to prove supervisory status. In particular, the Board refused to accord weight to this opinion
because, “the testimony is utterly lacking in specificity.” Supra, slip op. at 2. The key
consideration was that the witness,
failed to particularize her testimony in any way, such as
by specifying when any such incident took place, who was
involved, what the alleged insubordination consisted of,
whether higher-level managers had been consulted, or
whether the situation was anything more than a one-time
occurrence.
Supra, slip op. at 2. 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, slip op. at 2.
Given the Board’s consistent pre and post-Oakwood insistence on analysis of specific
details about the job being evaluated, I will not accord significant probative value to the
conclusory opinions elicited from the crew leaders during the trial. Instead, I will rely on their
detailed descriptions of their actual activities. Those descriptions were convincingly consistent
with each other and the overall evidence of record and with the application of a common sense
appreciation to the significance of the daily routines of the Company’s work crews.
Finally, I recognize that the evaluation of supervisory status may also involve
consideration of documentary evidence. Typically such evidence will include an employer’s
handbook or job descriptions. In this case, that evidence took the form of job descriptions set
forth in the Company’s handbook dated August 2001. (GC Exh. 6.)
The handbook purports to describe the duties of several types of employees whose
functions are highly relevant to the issues before me. It describes the jobs performed by
employees in the positions of crew leader, locator, operator, and laborer. It was undisputed
throughout the trial testimony that a boring crew always included an operator and a locator.
Sometimes the crew would include a laborer. No witness ever reported that a boring crew
would also contain a crew leader, an individual who was separate from the locator. There was
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virtually universal agreement that the locator always functioned as the crew leader.21
This background is significant because the Company’s handbook paints a completely
different picture of the composition of a boring crew. It clearly states that the crew leader is an
employee entirely distinct from the locator. In fact, it notes that, “[t]he Locator is also a member
of the crew taking instructions from the Crew Leader.” (GC Exh. 6, Handbook at p. 15.) This is
underscored at the point that the handbook describes the operator’s function. It provides that,
“[t]he Operator follows the lead of the locator and the instructions of the Crew Leader while
helping all crew members perform efficiently and effectively.” (GC Exh. 6, Handbook at p. 16.)
Any lingering doubt that the handbook visualizes the crew leader as a person separate from the
locator is dispelled by examining the description of the laborer’s role. At that point, the
handbook indicates that the laborer, “[t]ake[s] direction from Crew Leader while serving the
needs of the Locator and Operator.” (GC Exh. 6, Handbook at p. 17.) Thus, the handbook
presents a picture of a boring crew as composed of a crew leader, locator, operator, and
laborer.
It is evident that the vision of the crew leader function contained in the handbook does
not represent the reality on (or in) the ground. While there was no testimony regarding the
manner which the job roles had evolved since the handbook was written, it appears that the
duties of the crew leader and locator were merged. There is no question that, during the period
at issue in this case, there was no crew leader position separate and apart from the locator job.
The two roles were always combined in the same individual.
Interestingly, a disparity between a handbook’s written job description and the day-to-
day reality of the work itself is a subject that the Board has twice addressed in the post-
Oakwood context. In Golden Crest Healthcare Center, 348 NLRB No. 39, slip op. at 5 (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., slip op. at 5, citing Training School at Vineland, 332 NLRB 1412, 1416 (2000). The point
was reiterated in the post-Oakwood case of Avante at Wilson, Inc., supra. In that case, the
written job descriptions stated that the nurses supervised the nursing assistants. However, at
trial the employer stipulated that the nursing and assistant jobs were identical. As a result, the
Board found that this “[c]lear evidence of a significant inaccuracy renders the reliability of the . . .
job descriptions suspect.” Avante at Wilson, Inc., slip op. at 3.
In this case, the Company’s written description of the crew leader position plainly
visualizes that job as being separate and distinct from the locator. The reality is to the contrary.
There exists precisely the sort of significant inaccuracy that undermines the probative value of
the job descriptions. As a result, I have relied on the descriptions in the handbook only when

21 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.
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they are supported by credible evidence regarding the actual duties and functions of the various
occupations.
3. The nature of the crew leaders’ jobs
In his decision, Judge Schlesinger concluded that the Company’s management fired
eight crew leaders due to their support for the Union’s organizing campaign. If those crew
leaders 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 terminated. In addition to these three boring crew leaders, two backhoe
crew leaders, Bridges and Williams, were also fired. The remaining three discharged crew
leaders were assigned to different types of work crews. Sutton was crew leader on a cable
crew. Hanephin was assigned to an underground crew. Finally, Lohman was the restoration
crew leader. As one would expect, crew leaders shared many common characteristics
irrespective of the type of work being performed by their crews. In addition, there were some
slight variations in the nature of their functions that depended on the particularities of the work
being performed by each sort of crew.
Since the Company’s primary function is to perform directional boring, it is not surprising
that the boring crews were central to its operation. Such crews invariably contain a locator and
an operator. These employees utilize the boring machines that accomplish the task of drilling
an underground passage that can accommodate the various types of lines that are being
installed. The operator runs the actual drilling machine. The locator uses a device to detect the
position of the drilling rods and guide the operator in the safe performance of the boring
operation. While this requires some degree of experience and skill, it is not particularly
sophisticated. As Project Manager Robinson put it when asked how long it should take a new
locator to function as well as an experienced one, “I would say, in a couple of weeks.”22 (Tr.
947.) Indeed, Schaffer reported that he had served as an operator for approximately a year.
He was then assigned to the locator job. He had never done this job before and received no
instruction manual or formal training. Instead, he was trained by another locator and it took “[a]
week or two.” (Tr. 2429.) In addition to operating the locating device, the locator also serves as
the crew leader. Sometimes the crew contains a laborer whose function is to assist the two
equipment operators by performing certain types of manual labor.
The boring crews’ workday begins at the employer’s facility. The crew leader picks up
the blueprints that both describe the jobs to be performed that day and detail the equipment
needed. The crew then proceeds to the first jobsite. There is no particular discretion involved in
determining the order that the crew performs its tasks. Once the crew arrives at the site, the

22 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.
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locator and operator walk the job to plan the route for the bore. There is nothing complex about
this planning. Typically, it involves selection of the closest distance between two points.
At this juncture, the real work of the crew begins. Before any boring can be undertaken,
the crew must find all of the buried utility lines along the projected path of the drill. In the
business, the task of uncovering the buried utilities is called, “digging locates.” This involves the
classic example of unskilled manual labor, digging a hole in the ground with a shovel.23 In order
to understand the job of the crew leader, it is vital to note that it involves a very substantial
amount of digging locates. As Supervisor Robinson described the boring crew,
[T]hey work together as a—they are a crew. They did their
locates together . . . . It takes more time to dig your locates
and everything else than it does to actually operate the
[boring] machine.
(Tr. 950.) Indeed, numerous witnesses, including Robinson, testified that often a boring crew
leader, operator, and laborer will spend an entire day digging locates together.
Once all of the underground utilities are located and exposed, the actual boring
operation can commence. The crew sets up the machinery and connects it to a water source.
They then bore the required path. The operator runs the machine while the locator directs the
course to be taken. The evidence was overwhelming in establishing that this was routine and
repetitive. As Operator Schreit said, “Pretty much it was the same thing, hand dig and bore.”
(Tr. 1271.) Crew Leader Flores agreed, noting that, “[i]t’s routine every day. It’s the same thing,
you’re just at a different place.” (Tr. 2350.) Crew Leader Schaffer confirmed that, “one bore is
the same as the next.”24 (Tr. 2440.)
As one would anticipate in a job that involves almost exclusively field work, sometimes
something unusual does happen. Once again, the testimony was overwhelming that, in such
rare cases, the crew leader contacted the project manager to obtain instructions. For example,
since the crews often performed their work on private property, there would be homeowner
complaints about the disturbance of the land. Schreit testified that customers would make such
complaints to either the crew leader or the operator. When this happened, “[w]e always then
call [Project Manager] Rich Robinson.” (Tr. 1314.) By the same token, weather issues would
arise. In the event of such occurrences, the crew contacted their project manager for
instructions. Similarly, if the crew arrived at a job and found that the utility companies had failed
to paint lines on the property to show the approximate sites for the digging of locates, the crew
contacted their project manager. The same procedure was followed when the crew discovered
that the ground conditions necessitated use of different types of machinery. Schreit
summarized the situation when asked why a crew leader would call his project manager. He

23 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 consisting 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 including dirt, clay, rock, mud,
and sand. It is apparent that this is the epitome of honest, hard work that accomplishes a task
essential to modern society’s need for critical infrastructure. It is not my intention to denigrate
this work in any way.
24 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.
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reported,
Well, it wasn’t [the crew leader’s] call to go ahead and do it
by himself . . . . You know, if it was hard dirt or if it started
raining, you know, to see if [the project manager] wanted us
to stay out or come in. If anybody had a complaint . . . . Like
one of the customers.
(Tr. 1263.)
Having described the work process, it is now important to consider the nature of the
relationship between the crew leader and the other members of the boring crew. To begin with,
the testimony established that crew leaders had no input into who was going to serve on their
crews. Beyond this, there was no credible evidence that crew leaders could force crew
members to perform their work. Crew Leader Farris testified that he was never told that he
could compel his operator to do things and he never attempted to do so. For example, Farris
reported that he had asked his operator to wear safety equipment, but “[i]f he didn’t want to put
it on, it is his choice.” (Tr. 2146—2147.) Similarly, Crew Leader Shipp described a situation
where he disagreed with his operator as to the correct place to set up the machine. He was
asked, “because you were a Crew Leader, you made him move it, right?” (Tr. 2608.) He
testified that he did not do so, adding that, “I just tried to bore where he put it.” (Tr. 2608.) He
also indicated that, although he was dissatisfied with one of his operator’s refusal to dig locates,
he lacked authority to order him to do so. Another boring crew leader whose status was not at
issue in this case, Eric Flores, testified that, when faced with a crew member who was slacking
off, “I’d just talk to my supervisor about it.”25 (Tr. 2337.)
Consistently with the evidence regarding lack of authority to direct the performance of
duties, the crew leaders were not involved in either discipline or evaluation of members of the
crews. Thus, Project Manager Nanney conceded that it was “correct” that crew leaders did not
participate at all in the evaluation process for employees. (Tr. 1173.) When asked if he could
recall any instance when a crew leader had made any kind of decision that affected the
employment of a crew member, he was unable to recall such an example.
There was great consistency in the testimony regarding the crew leaders’ lack of
authority to regulate the work hours and attendance of crew members. For instance, the
decision whether to work overtime was made with the participation of all crew members. As
laborer Steve Mack testified, “[w]e would decide together, when we were tired, or when we were
ready to go.” (Tr. 2244.) By the same token, operator Schreit reported that decisions about
when to eat lunch or work overtime were made jointly by the crew. He noted that, “[i]f [Project
Manager Robinson] didn’t tell us we had to work overtime, it was all three of us discussed it,
decide[d] when to go in.” (Tr. 1305.) Finally, the evidence was clear regarding employee
requests for time off or sick leave. As Farris described, if operators wanted to be absent or
leave early, they would call Project Manager Robinson. Project Manager Nanney confirmed
that it was company policy that crew leaders lacked authority to approve time off.

25 I place considerable weight on Flores’ testimony. He was called as a witness by both the
General Counsel on the issue of the Company’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 Company’s employ to take a
position with a utility company. His testimony struck me as particularly objective and unbiased.
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As I have already indicated, witnesses were also examined about more general aspects
of the crew leaders’ authority. For example, there was some conclusory testimony that the crew
leader set the pace for production. In this regard, it is crucial to understand why this was so. It
did not arise from the exercise of supervisory authority to punish or reward the crew members.
Instead, the testimony was clear that it was the direct result of the nature of the boring crew’s
work process. It fell to the crew leader, in his function as the locator, to guide the boring
machine through the earth. To the extent that a locator was more efficient in performing this
function, the pace of production would be affected. Nevertheless, this was only true to a very
limited degree. As Operator Schreit explained, the pace of production really, “depend[ed] on the
ground condition. You know, if you’re in rock or you’re in dirt.” (Tr. 1268.) He summarized that,
“99% of the time, it’s on your ground condition of how fast the bore can do.” (Tr. 1269.)
Just as crew leaders had little ability to affect the pace of production, they were not held
accountable for problems that their crews experienced. Crew Leader Schaffer testified that he
never observed a crew leader being held accountable for the actions of an operator. One of
Schaffer’s operators, Schreit, confirmed this by citing an example involving both men. While
Schreit was operating, he pushed the bore into a gas line. He testified that this was his error,
and Schaffer was not held responsible for his mistake. Farris corroborated this, testifying that
he never heard of a crew leader being held responsible for the performance of an operator or
laborer. Even Eirvin conceded the point. He testified that a crew leader would be held
responsible for poor production, “[u]nless it is the operator’s fault.” (Tr. 246.)
In assessing the supervisory status of the boring crew leaders, I have also taken note of
the secondary indicia. These were well-developed in the record. Crew leaders were paid an
extra dollar per hour. They did not attend management meetings. They were not issued offices
or company vehicles. While the Company offered production bonuses, these were shared
equally among the crew members. In common with the other crew members, leaders punched
the timeclock. Crew leaders did have minor paperwork responsibilities, but these chores took
only a few minutes at the end of each workday.
In addition to the three boring crew leaders, the status of two backhoe crew leaders,
Bridges and Williams, is contested. A backhoe crew is used to dig trenches in circumstances
where the soil conditions preclude use of the boring machine to prepare for the installation of
cable. That crew consists of a backhoe operator and laborer. Sometimes the crew is assigned
a second laborer. Of course, the operator runs the backhoe. He also digs locates and serves
as crew leader. The laborers have only two duties, to dig locates and to “swamp.” Swamping is
the process of observing the backhoe operator’s excavation to ensure that no utilities are
inadvertently damaged during the trenching process. If the laborer who is swamping observes
something suspicious in the trench, he signals the operator to stop excavating. The laborer
then uses a shovel to expose the suspicious item to ascertain whether it is a utility line.
As with the boring crews, the backhoe crew begins the day by obtaining the necessary
blueprints. As Williams explained, “[t]he markings on the blueprints dictate what needs to be
done.” (Tr. 741.) He could not recall a situation where the blueprints failed to provide the
complete information. Once the crew arrives at a worksite, they use the print to plan the job.
This is a simple process because, as Williams observed, “I mean, you’re going to take the
shortest route possible to get from Point A to Point B.” (Tr. 759.) All members of the crew,
including the leader, then use their shovels to dig the required locates.
In the event that a backhoe crew was assigned two laborers, it became necessary to
divide their tasks. One laborer would focus on digging locates ahead of the excavating
machine’s route and perform ancillary tasks such as directing traffic around the project area.
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The remaining laborer would swamp for the machine. Crew Leader Bridges was asked how
these tasks were assigned. He testified that it was accomplished, “[b]etween the laborers. If
one wanted to swamp or one wanted to direct traffic, they’d just, you know, they’d worked it out.”
(Tr. 1993.) In contrast, Crew Leader Williams testified that he always made the assignments for
the laborers. As to the criteria he employed to make these decisions, he was asked if he took
into consideration the “knowledge, skill, and experience” of the individual laborers. He replied in
the negative, explaining that the laborer’s job was not difficult. As he put it, “[y]ou know, it’s not
brain surgery. It’s pretty simple, a pretty simple thing to learn . . . . I’d say it’s a little harder than
tying your shoes, but not a whole lot.” (Tr. 2000.) Citing an actual example, Williams indicated
that he based the assignments on the personalities of the laborers. Because he had a low
opinion of Laborer Gresham’s work ethic, he assigned him to dig locates while the other laborer
swamped for the backhoe. Williams also emphasized the limited scope of his authority to make
assignments. He was asked what would happen if a laborer refused an assignment. He
replied, “I couldn’t force him to get in the hole. All I could do is call the Project Manager and say
this guy refuses to do his job.” (Tr. 794.)
The backhoe crew leader possessed very limited control over the working conditions of
the crew. Williams was asked if he had the power to determine the length of the crew’s work
schedule. He replied in the negative, observing that, “I think that is a crew decision actually. I
don’t think a crew leader can force his guys to work if they don’t want to work.” (Tr. 688.) This
was thoroughly explored during cross-examination. Williams again testified that, “I didn’t make
anybody do anything they didn’t want to do, period.” (Tr. 789.) He added:
At no time did I ever shut my machine down and say we’re
done for the day. It was always a group decision of what
happened, of who went home, or who needed to go home
unless a Project Manager otherwise told me that we were
shutting down.
(Tr. 790.) He also indicated that the crew “didn’t have to ask me to take lunch.” (Tr. 670, 692.)
Bridges provided similar testimony, explaining that if his laborer wished to quit due to
bad weather, “I would call [Project Manager Robinson] and let him make the decision.” (Tr.
1994.) Laborer Mack also confirmed this information, noting that he and Bridges “would both
decide” whether to work overtime. (Tr. 2380.) He also reported that he would make requests
for time off directly to Project Manager Sellers.
The backhoe crew leaders were asked general questions about their responsibility for
the quantity of production. Williams readily agreed that he was responsible for setting the pace
and pushing for productivity. Importantly, he also explained why this was the case, noting that
“everything revolves around the machinery that is working. So the person on the machinery,
which typically is a crew leader, is responsible for the production.” (Tr. 724.) In other words, the
rate of work depended on the crew leader’s skill as a backhoe operator, not on his prowess as a
motivator of personnel. He reiterated that he was in charge of production because he “operated
the machinery that did the work.”26 (Tr. 749.) When asked if he possessed the authority to

26 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.
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direct a laborer to fix a mistake, he reported that,
I don’t have that authority. I’m not [the laborer’s]
boss. I’m just part a of a crew just like [the laborer]
is. We’re there just to get the job done period.
(Tr. 750.)
Consistently with this view of the crew leader’s role, Williams also testified that he was
never told that he was accountable for the behavior of the crew members. When asked who
would be held responsible if a mistake were made, he explained:
It depends on how the job is screwed up. I mean if
it is something I did, then I would be in trouble. If it’s
something [the laborer] did, he would be in trouble.
(Tr. 765.) Again, Bridges verified this, indicating that he was never held accountable for the
performance or output of his laborers. He spelled this out very clearly:
I’m not a supervisor. I’m a backhoe operator . . . . What
I’m responsible for is running that tractor. I’m not responsible
to stand over Wayne or any other laborer and harp on them
and tell them, you know—that’s not my responsibility. Tell them
they’re not going fast enough or what-not, that’s—that’s not my
responsibility.
(Tr. 2001—2002.) Put another way, Bridges opined that, “[i]f there’s a problem, [the project
manager] needs to get out there and figure out what the problem is. He’s the one making the
big bucks.” (Tr. 2041.)
Consistent with this lack of supervisory control, the backhoe crew leaders did not have
any duty to evaluate their crew members or make recommendations, either positively or
negatively. Indeed, Williams reported that, while he did ask Project Manager Nanney to replace
Laborer Gresham due to his laziness, this was not done. Eirvin confirmed that Williams never
prepared an employee evaluation. Bridges also indicated that he never evaluated his laborers.

In assessing issues of supervisory status for the backhoe crew leaders, it is also
important to consider the complexity of the decisions they were required to make. The key point
was that the crew leaders obtained direction from the project managers whenever an unusual
issue arose. Williams indicated that he could not recall a single instance of something unusual
that did not result in a call to his project manager. Bridges was asked, “Now, what about your
job as an open cut operator is routine, if anything, or repetitive?” He responded, “[e]verything.”
(Tr. 1991.) He could only recall one unusual occurrence, a time when the boom on his machine
broke. He called the project manager. Similarly, Williams recounted that a drunk driver once
ran into his backhoe. When asked how he responded, he stated, “I called the Project Manager.”
(Tr. 664.) Bridges acknowledged that the crew leaders did have responsibility to prepare certain
simple daily production reports. This paperwork took only “a couple of minutes” each day. (Tr.
1989.)
Regarding the secondary indicia of supervisory status, the most striking one involves the
rate of pay for the two backhoe crew leaders. Project Manager Robinson testified that neither
Bridges nor Williams were paid anything additional for performing the crew leader job. They
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were required to punch the same timeclock as their laborers. They were hourly employees and
were not issued company vehicles. They did not attend management meetings. Their
timesheets did not contain the computer code that was used to designate supervisors.
At one point during his testimony, Bridges provided a very clear vision of the nature of
the backhoe crew leader’s role for the Company. He was asked what the difference was
between the crew leader and the laborer. He replied, “[w]ell, the only thing I can figure, I knew
how to run the backhoe and [the laborer] didn’t.” (Tr. 2040.) Counsel persisted, asking if “[i]t’s
just having the additional skills? There’s no other reason they made you a crew leader?”
Bridges answered, “That’s the only reason I could see.” (Tr. 2040.) Bridges’ response is
entirely consistent with the great weight of the evidence regarding the functions, duties, and
responsibilities of the backhoe crew leaders.
Three more crew leader positions remain to be assessed. These are the jobs held by
Cable Crew Leader Sutton, Underground Crew Leader Hanephin, and Restoration Crew Leader
Lohman.27 In the broad outline, their roles as crew leaders mirrored the information presented
regarding the backhoe and boring crew leaders. I will now address the more specific aspects of
these three crew leader jobs.
Sutton testified that he was the leader of a pulling crew that placed fiber optic cable in
the ground. He reported to Project Manager Sellers. The crew would consist of the crew leader
and one or more laborers. While Sutton testified at length about the nature of the work process,
this description was aptly summarized by former counsel for the Company who explained,
they blow this rocket through the conduit. At various places, the
conduit is not connected. At that point, the rocket comes out.
They either pull the cable—they pull the cable through. And they
go back and they go onto the next area . . . . That’s as simple as it is.
(Tr. 1565.)
Unlike other types of production crews, the pulling crew did not utilize blueprints. They
were given their daily assignments by Project Manager Sellers. The crew leader had no input
into this process. Similarly, the composition of the crew was decided by the project manager
without input from Sutton. Indeed, Sutton reported that sometimes the laborers were shuffled
around from one crew to another during the course of the workday. This was done by Sellers
without consultation with Sutton.
As to the assignment of specific duties during the workday, Sutton testified that Sellers
made some of these decisions directly. He reported that, “[w]hoever he would send out with
me, he’d assign the laborer that was supposed to go out and catch the rocket.” (Tr. 1556.)
Otherwise, the crew leader could direct the laborers as to the hole at which they would be
stationed. He noted that it did not matter which laborer was placed at any particular hole and
that the laborers did not have any preference as to which hole they were assigned. He noted
that, “[i]t was all the same. It is monotony. I mean, once you do it once, it is the same at every
hole.” (Tr. 1625.)

27 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.
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As with the other crew leaders, Sutton testified that he did not have authority to authorize
a laborer to leave early or take a day off. The project manager decided how long the pulling
crew would work each day based on the volume of work that needed to be performed. If there
were problems with the weather, the project manager decided whether to stop the work. In
general, Sutton explained that, “[a]ny problems [the laborers] had, or questions, they’d go
straight to [Project Manager Sellers].” (Tr. 1614.)
Sutton’s testimony regarding his accountability as a crew leader was entirely consistent
with the overall picture of the job already discussed. Thus, he reported that he was never held
accountable for anything done by one of his laborers. He added that he would protect an errant
laborer the first time they made a mistake, but after that initial coverage, they were on their own
regarding any “butt chewing” for mistakes. (Tr. 1574.) He also indicated that he did not need to
motivate his crew members because they were all “self motivated.” (Tr. 1608.)
Similarly, Sutton’s picture of the routine nature of the job was identical to that of the other
crew leaders. He reported that he almost never ran into unusual circumstances. The one
occasion when this happened, a cable became stuck in a conduit. In response, he called
Sellers. The job was summarized when counsel for the General Counsel asked Sutton what
differences existed between the pulling crew leader and the pulling crew laborers. He replied:
None whatsoever. I did basically the same thing. The only
difference would be I would tell them what hole they needed
to go set their unit up. That would be the only variant difference
. . . . Otherwise, I did the exact same work they did.
(Tr. 1568.)
Like Sutton, Crew Leader Hanephin was assigned to a crew whose function was to “pull”
cable. He sometimes worked with a laborer or two. On other occasions, he would work by
himself. The work day began with the project manager’s assignment of the jobs and issuance
of the blueprints. If there were time pressures, the managers would prioritize the jobs.
Otherwise, Hanephin could do them in the order he chose. As to how to perform the jobs,
Hanephin explained that, “[e]verything is pretty much on the print.” (Tr. 1396.)
Once the crew arrived at a worksite, Hanephin described how matters proceeded. He
would address the laborers as follows:
Well, we’ve got to dig here, here, here, and here. I guess
we’ll start up by the pole. Do you guys want to dig by the
pole or do you want to dig by the meter base[?]
(Tr. 1458.) While he could direct the laborers to dig particular holes, he noted that there was not
much to the decision-making process because, “[y]ou just start at one end and work toward the
other.” (Tr. 1386.)
Regarding the remainder of the work process and the respective duties of the leader and
the laborers, Hanephin reported that, “very rarely did I stand over them and watch them and tell
them what to do.” (Tr. 1380.) He added that:
About the only time I wasn’t physically working is when I was
sitting on . . . a small tractor or a mini escalator or something.
The rest of the time if we couldn’t use, you know, small machinery,
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then I would be using a shovel to dig or pulling wire by hand or
sometimes we would use a pulling machine. But I did just as
much labor as my laborers.
(Tr. 1380.) During the pulling process, Hanephin reported that he did not generally make
specific assignments for the laborers. Instead, he usually asked them, “[w]hat do you want to
do, push or pull?” (Tr. 1403.)
Once again, Hanephin’s testimony about his degree of supervisory control was fully
consistent with that of the other types of crew leaders. If a laborer sought to leave early or take
a day off, he told them to “talk to the supervisor, Rich or Ernie, and let him know what was going
on and get permission from him.” (Tr. 1390.) The crew made decisions about overtime work by
discussion among everyone. Hanephin reported that he was never told he had authority to
require overtime. Similarly, he testified that he was not involved in issues of evaluation and
discipline of the laborers. Indeed, he reported that he never told a laborer to work faster. He
was never consulted about promotions and did not prepare evaluations. As to discipline, not
only was he uninvolved, but he expressed irritation about the failure to communicate such
decisions to him. He reported that on two occasions his laborer was fired and he was not given
advance notice. As to one of those, he complained that, “I was expecting to go work with him
and five minutes later he was gone.” (Tr. 1394.)
In one respect, Hanephin’s testimony painted a different picture than that described by
all of the other crew leaders. He viewed himself as the boss at the worksite with the power to
determine lunch breaks and with the responsibility for any mistakes made by the laborers.
Critically, however, when counsel for the General Counsel asked him if he had ever actually
been held accountable for any laborer mistakes, he replied that he had not. In my view,
Hanephin’s conclusory statements in this regard reflect a perfectly understandable human
tendency to view oneself as important, perhaps more important than one actually is. In fact, in
his musings about this subject, Hanephin made essentially the same point, describing his role
as follows:
I guess I was just told that I was in charge on the job site.
If there was a question about anything, that I made the
decisions, but there isn’t a whole lot to it. I mean where
to dig or where to start digging.
(Tr. 1476.) I conclude that Hanephin’s more expansive statements about the role of the crew
leader are not entitled to significant weight because they vary from the consistent accounts of
the other crew leaders and, more importantly, they differ from his testimony as to the actual
duties, functions, and responsibilities of his work.
The remaining position under examination is perhaps the simplest of the crew leader
jobs. Jason Lohman was the lead for the restoration crew. This crew would perform its work
after the cable had been installed. Their function was to place the affected land in safe and
clean condition. The work involved such routine tasks as breaking up topsoil, spreading that
soil, scattering grass seed, placing straw, and general cleanup and landscape work.
Occasionally, the crew would repair a retaining wall or install sod. The crew generally consisted
of Lohman and a laborer. They worked under the supervision of Project Manager Robinson.
Consistently with the nature of the tasks involved, Lohman reported that all of the work
was routine and the great majority was repetitive as well. He opined that he spent 95 percent of
his workday engaged in the same physical labor as his crewmate. His remaining duties
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involved the preparation of simple paperwork and interaction with the property owners. In this
regard, his authority was very limited. He testified that if a property holder wished to have sod
installed instead of seed, he was required to obtain authorization from his superiors. Indeed, he
supplied great detail in his testimony regarding the requirement that he consult and obtain
instructions from his supervisors whenever anything out of the ordinary occurred. As he
described it,
I’d have to call the supervisor to let them know what was
going on. If there was—pretty much any time there was
any problem, in general, on job sites, either with your
laborers on the job, anything.
(Tr. 1906—1907.)
Lohman testified that he received all of his job assignments from Robinson. His
description of how the work was divided among the members of the restoration crew was telling.
He reported that he always asked his laborers what chores they wanted to perform. As he
described it, “[w]ell, I ask them, what do you want to do. Would you rather go down here?
Would you rather go down there? What do you want to do?” (Tr. 1746.) Unsurprisingly,
Lohman reported that the laborers would usually select the easier tasks for themselves. When
counsel asked him why he did not simply instruct the laborers as to their assignments, Lohman
responded that, “it isn’t my choice to make anybody do anything.” (Tr. 1775.)
Beyond the issue of assignment authority, Lohman reported that he had very little control
over the working conditions of the laborers. For example, when a laborer reported that his wife
was having a baby, Lohman called Robinson to obtain authorization for the man to leave work
early. He also obtained instructions from his supervisor in the event of bad weather. Similarly,
he had no authority to require overtime work. Indeed, he reported that a laborer complained
about overtime. In response, Lohman called Nanney. Nanney instructed him to send the
laborer home.
Regarding Lohman’s accountability for the performance of the restoration crew, his
testimony followed the same general contours as other crew leaders. When asked in broad
terms about his responsibility, Lohman agreed that in a “[r]oundabout” way, he was responsible
for the overall performance of the crew. (Tr. 1760.) He reported that he believed the figurative
“buck” stopped with him. When probed, he conceded that he was never told this, but simply
“assumed it.” (Tr. 1926.) When the questioning got down to specifics, he reported that he had
never been held accountable for anything that a laborer had done. Thus, although Lohman
indicated that he had been assigned a number of poorly performing laborers, he had never been
held responsible for their unsatisfactory performance. This was clearly illustrated by his
response to a question asking him what his function in the work life of the laborers was. He said
that it was, “[j]ust to relay a message from the supervisor to them.” (Tr. 1752.)
Lohman’s testimony regarding his restricted role was supported by the fact that he was
never vested with disciplinary authority of any kind. In a very good illustration of the dissonance
between his belief as to his responsibility and the reality of his place in the corporate hierarchy,
Lohman testified that he did attempt to fire a laborer named Damian. Nanney informed him,
“You can’t do that. I’m the supervisor. You’re not—you can’t fire him.” (Tr. 1718.) As a result,
Damian remained employed and continued to serve on Lohman’s crew until he was injured
some weeks later. Lohman did testify that he told another employee, Garrett Jones, that he was
discharged. He noted that it was Robinson’s decision to discharge Jones and Lohman was
simply acting on his instructions.
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Finally, Lohman provided further insight into the variance between his subjective beliefs
and the objective reality of his status when discussing the subject of accountability for the work
of his crew. He opined that it was his duty to make certain that the laborers did their work
properly. Yet, he readily reported that he never evaluated any crew members, nor was he ever
held accountable for their performance. Similarly, he was never given any bonus based on the
productivity of the crew. A realistic appraisal of Lohman’s position, taking care to separate
inflated subjective notions from actual facts on the ground, demonstrates that he lacked any
meaningful degree of supervision and control of the other crew members.
4. Application of the Oakwood analysis
Having outlined the nature of the crew leaders’ duties, functions, and responsibilities, I
will now apply the Board’s newly refined analytical standards. Naturally, I will turn most of my
attention to an assessment of the particular aspects of supervisory authority highlighted by
current counsel for the Company in his brief on remand. In conformity with the Board’s remand
order, I will also address the other aspects of the refined Oakwood analysis.
In the Oakwood trilogy, the Board clarified the definitions of three key concepts involved
in the adjudication of supervisory status. It first addressed the meaning of the power to assign
as a primary indicia of such supervisory status. It held that the term encompassed three distinct
types of authority: the power to designate an employee to work in a specific place, the power to
give an employee significant overall duties,28 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, slip op. at 4—5.
The Board also provided a detailed articulation of the standards for assessment of the
statute’s primary indicia of supervisory status involving the power “responsibly to direct” other
employees. This expansion of the definition includes three separate analytical factors. To
qualify under the Act, this type of supervisory authority must include a grant by the employer of
the power to direct other employees, the authority to take corrective action against those
employees if needed, and “a prospect of adverse consequences for the putative supervisor if
he/she does not take these steps.” Oakwood Healthcare, Inc., supra, slip op. at 7. Significantly,
the Board directed adjudicators to apply these factors within the context of the overall
Congressional purpose underlying the exclusion of supervisors from the Act’s protections.
Thus, it is vitally important that a distinction be drawn between those employees who direct
others “simply” for the purpose of completing a certain task and those whose purpose in issuing
directives is to carry out “the interests of management.”29 Oakwood Healthcare, Inc., supra, slip
op. at 7. As the Board noted, it is the “fundamental alignment” of the supervisor with

28 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.,
slip op. at 4. 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 significant 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.
29 In this connection, the Board cautioned against an overbroad vision 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., slip op. at fn. 28.
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management that forms the “heart” of the purpose behind the statutory exclusion. Infra, slip op.
at 7.
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, slip op. at 7—9.
Qualitatively, independent judgment also requires that the person form an opinion
through the process of analyzing data and that the analytical process be of a degree that rises
above “the merely routine, clerical, perfunctory, or sporadic.” Oakwood Healthcare, Inc., supra,
slip op. at 8, citing Browne of Houston, 280 NLRB 1222, 1223 (1986). The Board provided an
example of merely routine decisionmaking that does not qualify under the Act. An individual
who decides how best to deploy his or her coworkers, even when acting free from the influence
of others and analyzing data and reaching a reasoned conclusion from that data, nevertheless
fails to exercise independent judgment if the sole purpose of the reasoning process is to
equalize workloads among employees. See Oakwood Healthcare, Inc., supra, slip op. at 9.
With these fundamental principles in mind, I will now turn to the analysis of the crew
leader positions at issue.
1. The Boring Crew Leaders
The largest category of employees whose status is in contention in this case involves the
position of crew leader for the boring crews. Specifically, Crew Leaders Farris, Schaffer, and
Shipp were assigned to crews consisting of a boring machine operator and a laborer. There is
no doubt that these crew leaders, in common with all of the Company’s crew leaders, exercise
some degree of control over the members of the crews. This does not conclude the inquiry but
merely represents the starting point. As the Board has cautioned:
In enacting Section 2(11), Congress emphasized its intention that only
supervisory personnel vested with genuine management prerogatives
should be considered supervisors, and not straw bosses, leadmen,
setup men and other minor supervisory employees. The Board has long
recognized there are highly skilled employees whose primary function is
physical participation in the production or operating processes of their
employer’s plants and who incidentally direct the movements and operations
of less skilled subordinate employees, who nevertheless are not supervisors
within the meaning of the Act, since their authority is based on their working
skills and experience. [Quotation marks and numerous citations omitted.]
Dynamic Science, Inc., 334 NLRB 391, 392 (2001).30
Counsel for the Company argues that the three boring crew leaders possess a variant of

30 Dynamic Science, Inc., was cited with approval in Oakwood Healthcare, Inc., supra at fn.
41.
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the power to assign within the meaning of the Oakwood trilogy. In particular, he contends that
Crew Leader Farris exercised this power by effectively recommending that Jason Politte be
transferred out of his boring crew. He also asserts that Crew Leader Schaffer effectively
recommended the assignment of operators to his crew and the removal of operators from his
crew. Finally, he claims that Crew Leader Shipp effectively recommended the reassignment of
Politte from his crew to another one.
At the outset, I note that counsel does not contend that any of the boring crew leaders
possessed the actual power to assign. The evidence would not support such a contention.
Boring crew leaders cannot designate an employee to work in a particular place (i.e., on a
particular crew). Project Manager Nanney was clear as to this point. He testified as follows:
NANNEY: Normally we have crews set up.
COUNSEL: And you set those crews up.
NANNEY: That is correct.
(Tr. 1176.) There was absolutely no testimony from any witness indicating that a crew leader
ever possessed the authority to tell an operator or laborer which crew they would work on. As
indicated by Nanney, that power was held by the project managers. Similarly, there was not an
iota of evidence suggesting that any crew leader ever assigned an employee to a particular job
classification such as operator or laborer. Finally, crew leaders did not appoint crew members
to any particular work period or shift. All employees worked the same shift. The most that could
be said is that crew leaders could request that crew members agree to work some overtime. In
Golden Crest Healthcare Center, 348 NLRB No. 39, slip op. at 3 (2006), the Board made clear
that the power to request employees to work overtime does not establish supervisory
authority.31 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 Fixtures, 265
NLRB 1480, 1481 (1982), enf. 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.

31 By the same token, there was much testimony, some of it contradictory, 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 clerical.” 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).
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Shipp testified that he never assigned or transferred any employee. He was then asked:
COUNSEL: Did you ever recommend any of those things?
SHIPP: No.
(Tr. 2601.) Similarly, Farris was asked if he ever recommended the transfer or assignment of
any employee. His concise response was, “[n]o.” (Tr. 2142.) Even more clearly, the issue was
explored with Farris as follows:
COUNSEL: And what influence did you have on the assignment
of operators to your crew?
FARRIS: None.
COUNSEL: Did [Project Manager] Rich Robinson ask for your input?
FARRIS: No.
(Tr. 2139.)
Despite this uncontroverted testimony, counsel relies on two examples of what he views
as an effective recommendation to remove Jason Politte from both Shipp and Farris’ crews.
Farris testified that he complained to Robinson that Politte was too lazy. He requested that he
be assigned a different operator. Robinson responded, “[n]ot at the moment . . . . That’s what
everybody says about Jason.” (Tr. 2173.) Farris reported that “[a] couple of weeks” later, a new
crew was formed and Politte was transferred to that crew. (Tr. 2175.)
In contending that this evidence demonstrates that Farris possessed effective power to
recommend Politte’s transfer, counsel indulges in a venerable logical fallacy known as post hoc,
ergo propter hoc (“after this, therefore because of this”).32 While there is no doubt that Farris’
request preceded Politte’s reassignment, there is no evidence that it caused that action.33
Indeed, the testimony suggests that the reason for the transfer was the formation of a new crew.
It will be recalled that Robinson essentially dismissed Farris’ request, noting that everyone
complained about Politte’s work ethic. The two-week interval between the request and the
reassignment is also not suggestive of a power to make an effective recommendation.
The same general pattern occurred when Shipp requested that Nanney remove Politte
from his crew due to his laziness. Shipp testified that there was no result from this request.
Politte remained on his crew until “[h]e ended up getting hurt.” (Tr. 2597.) Shipp added that
Politte’s injury was “the only reason that he was off my crew.” (Tr. 2597.) This testimony clearly
belies any claim of an effective recommendation.

32 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.
33 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 production 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.)
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Any lingering doubt about a supposed power to make effective assignment
recommendations was dispelled by the testimony of Project Manager Nanney:
COUNSEL: So simply because some guy comes and says,
I want him off my crew, that does not get a
laborer off the crew, does it?
NANNEY: That is correct.
(Tr. 1177.) The evidence will not support a contention that boring crew leaders possessed the
power to effectively recommend assignments.
Although not relied on by counsel for the Company, I will examine the question of
whether the boring crew leaders held the authority to responsibly direct their crew members
within the meaning of the Act. The first step is to determine whether crew leaders directed their
crew members to perform particular tasks. Actually, there was some variation among the
various witnesses on this point. Some witnesses took the viewpoint that the roles of the crew
members were well defined and there was no need to direct them to perform the duties that they
knew were theirs. For example, Farris testified that the process of setting up the boring
machine was so routine that it “[be]comes automatic.” (Tr. 2158.) Williams noted that, “[a]
laborer walks around with a shovel in their hand all the time . . . . You don’t have to tell them to
dig locates.” (Tr. 722.) On the other hand, Shipp agreed with counsel’s contention that he “ran”
the crew. (Tr. 2659.) On balance, I conclude that boring crew leaders did direct their crew
members to perform some specific tasks.
The next step in the analysis is to determine whether boring crew leaders possessed the
authority to enforce their directives. The consistent testimony revealed that they did not. Farris
noted that he asked his operator to put on safety equipment. However, “[i]f he didn’t want to put
it on, it is his choice.” (Tr. 2146—2147.) Schaffer confirmed that he was never given the
authority to force a crew member to do something. Shipp provided a very clear and specific
example, noting an occasion when he and Operator Politte disagreed about the placement of
the machine. Counsel observed that, “because you were a Crew Leader, you made him move
it, right?” (Tr. 2608.) Shipp responded in the negative and added that, “I just tried to bore
where he put it.” (Tr. 2608.) There is simply no evidence that boring crew leaders possessed
the authority to require that their crew members comply with their directions.
Finally, the evidence also firmly establishes that crew leaders lacked what is perhaps the
hallmark criterion for possession of the power to responsibly direct others. In Oakwood
Healthcare, Inc., supra, slip op. at 7, the Board reiterated the requirement that responsible
direction is only present when,
the person directing and performing the oversight of the employee
must be accountable for the performance of the task by the other,
such that some adverse consequence may befall the one providing
the oversight if the tasks performed by the employee are not performed
properly.
In this case, the employer presented no evidence indicating that any crew leader had ever
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suffered such an adverse consequence from the failure of a crew to perform its tasks.34 Thus,
Farris both testified that he was never told he would be accountable for the performance of his
operator and reported that, “[a]ctually, both the operator and crew leader are responsible for
production.” (Tr. 2142.) Schaffer also confirmed that he was never held accountable for the
actions of his crew members. Indeed, he noted that he never observed any crew leader being
held responsible for a problem on a crew. Shipp appeared less certain on this point. Although
he seemed to feel that crew leaders were held responsible, when asked to be specific he could
only report that, “[t]hey would just say that we needed to get our footage up.” (Tr. 2663.) This
type of exhortation to improve production does not constitute the type of concrete adverse
consequence required by the Board.
I have concluded that the boring crew leaders did not possess any authority to assign,
responsibly direct, or effectively recommend assignments or directions. The remaining
Oakwood issue is a qualitative evaluation of the type of judgments performed by the crew
leaders. I will perform this analysis in a separate section of this decision that will apply the test
to all of the crew leaders in general.
2. The Backhoe Crew Leaders
Two of the employees whose status is in dispute are Backhoe Crew Leaders Bridges
and Williams. I will examine the evidence regarding their authority to assign or responsibly
direct the members of their crews.
Turning first to the question of responsible direction of crew members, I note that
counsel for the Company does not contend that Bridges or Williams possessed this type of
authority within the meaning of the Oakwood trilogy. The record demonstrates that the backhoe
crew leaders did not have this indicator of supervisory status. It will be recalled that the only job
classifications assigned to a backhoe crew were the leader and one or two laborers. The leader
actually operated the backhoe. Laborers had only two duties, digging locates and swamping
while the backhoe was in operation. These duties were virtually identical since they both
involved digging in the ground with a shovel for the purpose of exposing buried utility lines.
Williams did testify that he would select which laborer would perform each task.35 Even
assuming that this rose to the level of a direction, the evidence was clear in revealing that the
crew leaders possessed no authority to take corrective action in the event of a problem.
Williams reported that, “I couldn’t force [the laborer] to get in the hole. All I could do is call the
Project Manager and say this guy refuses to do his job.” (Tr. 794.) Indeed, when asked what
he would do if he was paired with a lazy laborer, he replied that, “[m]ost of the time I would get
in the hole and do it myself.” (Tr. 665.)
In addition to the absence of any power to take corrective action, the backhoe crew
leaders were not held accountable for the performance of their laborers. Bridges testified that
he was never held accountable for the efficiency of his crew. While Williams was not as specific

34 In this connection, I have not considered any of the pretextual explanations 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.” (Union Remand Br., at p. 18.)
35 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
authorization from management.
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on this point, he noted that he was not his laborer’s “boss,” and could not require the laborer to
correct any errors that he made. Instead, he testified that, “I’m just part of a crew just like [the
laborer] is. We’re there just to get the job done period.” (Tr. 750.) I readily infer that Williams
was not subject to any adverse consequence for a failure to properly supervise his laborer
under such circumstances.
Regarding the backhoe operators’ purported power to make assignments, the starting
point for evaluation is General Manager Eirvin’s testimony concurring in counsel’s assertion that
the project managers handle “day-to-day assignments, granting of overtime, reassigning,
granting vacation, leave of absence.” (Tr. 57.) This was confirmed by Bridges, who reported
that he never had authority to assign or recommend assignments. He noted that Project
Manager Robinson assigned the laborer to his crew and never sought Bridges’ input into these
decisions. Williams provided identical testimony, reporting that he never picked the laborers to
be assigned to his crew and was never asked his opinion about this question.
Despite this overwhelming evidence on the issue of authority to make assignments,
counsel for the Company contends that Bridges possessed the power to assign “his laborers’
hours of work,” and that Williams “assigned tasks to his laborers.” (R. Remand Br., pp. 13, 14.)
The evidence will not support this attempt to show some degree of statutory supervisory status.
Bridges testified that the laborers assigned to his backhoe crew would seek approval to
miss a day of work or leave work early from Project Manager Robinson. Laborer Mack agreed
that, when he worked with Bridges, if he needed time off, he would call the project manager.
Furthermore, Bridges reported that if the laborer wanted to quit work due to bad weather, “I
would call [Project Manager Robinson] and let him make the decision.” (Tr. 1994.)
Nevertheless, counsel for the Company contends that Bridges exercised the authority to assign
since, “he would not stay on a job later than 4:30 simply because his operator wanted to work
additional overtime.” (R. Remand Br., p. 13.) Counsel cites no authority for such an expansive
reading of the meaning of the power to assign. I hardly think that a refusal to agree to work
overtime so as to enable a coworker to earn additional pay constitutes a primary indicator of
supervisory status under the Act.
Beyond this, the evidence does not support counsel’s contention that Bridges unilaterally
determined the length of the crew’s workday. The Company placed a maximum limit on
overtime at no more than two hours per day. Bridges testified that he had a long commute and
chose not to work more than one 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.36 This was
explicitly confirmed in the testimony of Laborer Mack who was asked who decided on working

36 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.)
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overtime and replied, “[w]e would both decide.” (Tr. 2380.) It was also confirmed by fellow
Backhoe Crew Leader Williams who flatly testified that, as to overtime work, “I think that is a
crew decision actually. I don’t think a crew leader can force his guys to work if they don’t want
to work.” (Tr. 688.) I find that Bridges did not possess the power to assign, including any
supposed power to determine his laborers’ hours of work.
Although Bridges and Williams held the same job as backhoe crew leader, counsel for
the Company relies on a different justification for the contention that Williams possessed the
power to assign. He contends that Williams assigned the tasks of digging locates and
swamping between his laborers. This certainly contrasts with Bridges’ report that he never
made these decisions because the laborers on his crew divided these chores between
themselves. This strongly suggests that Williams’ decisionmaking was simply a personal
response to the need to divide the chores rather than the exercise of any corporate grant of
authority. The fact remains that Williams did tell one laborer to dig locates and the other one to
swamp. I simply cannot find this to be a legally significant exercise of supervisory authority.
Both tasks are fundamentally identical, involving nothing more than digging in the earth with a
shovel and spotting buried utility wires. As a result, this situation is analogous to that described
by the Board when considering the status of lead persons in one of the Oakwood cases. In
Croft Metals, Inc., 348 NLRB No. 38, slip op. at 6 (2006), the Board held that,
the occasional switching of tasks by the lead persons here does not
implicate the authority to “assign” as that term is described in
Oakwood Healthcare because the activity does not constitute the
“designation of significant overall duties . . . to an employee.” This
sporadic rotation of different tasks by the lead persons more closely
resembles an “ad hoc instruction that the employee perform a discrete
task” during the shift and as such is insufficient to confer supervisory
status on the lead persons pursuant to Section 2(11) under Oakwood
Healthcare. [Citations omitted.]
Counsel for the Company contends that digging locates and swamping represent the
sort of “plum” and “bum” assignments that impose a significant impact on an employee’s work
life. See Oakwood Healthcare, Inc., supra, slip op. at 4. He does not explain why one of these
tasks is better or worse than the other. I cannot perceive of any reason why digging one set of
holes would be more or less desirable than digging another set of holes. As counsel does
concede, “[e]ach of these jobs is directed toward the same goal—avoiding severing an
underground utility.” (R. Remand Br., at p. 14.) From either the employees’ viewpoint or
management’s perspective, there is no meaningful distinction here. The record does not
demonstrate that Williams exercised any aspect of the assignment power within the meaning of
the Act.37

37 By footnote, counsel for the Company argues that Williams “assigned 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.
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3. The Cable Crew Leader
Crew Leader Sutton worked on a cable crew, sometimes referred to as a pulling crew.
The crew inserted wire into underground conduit by means of a device that blew a so-called
“rocket” through the conduit. The crew leader operated this machine while the laborer would
wait in the hole to catch the rocket. Once again, counsel for the Company does not contend
that Sutton possessed the power to assign. The evidence confirms that he did not possess this
power. He testified that Project Manager Sellers selected the crew’s laborers without seeking
any input from Sutton. Indeed, Sellers would sometimes shuffle the composition of the crews as
the work shift progressed. As with other crew leaders, Sutton lacked authority to approve time
off or vacations. Sellers determined the length of the workday and the impact of bad weather.
Counsel for the Company submits that Sutton possessed the authority to responsibly
direct the laborers. Once again, it is necessary to examine the Oakwood factors. Initially, I
agree that Sutton was vested with some authority to direct his laborers to perform tasks.38 He
would “tell them what hole they needed to go set their unit up at.” (Tr. 1568.) As to the second
analytical factor, there was no evidence that Sutton was vested with any authority to enforce his
decisions by taking corrective action against an errant laborer. Indeed, he agreed with
counsel’s characterization that he was never told by management that he possessed “any
authority to do anything that would impact the employment of the laborers.” (Tr. 1542.)
The Company argues that Sutton was held accountable for the performance of the
pulling crew. He bases this on Sutton’s explanation that, the first time a laborer would make a
mistake, he would take a “butt chewing” for it. (Tr. 1574.) He said he did this in order to gain
the respect of the laborers. However, he was very clear in adding that, if a laborer made
additional errors, he would not take the blame. In my view, all this testimony establishes is that
Sutton took upon himself the burden of shielding a new laborer from the consequences of an
initial mistake. His refusal to do so for a more experienced laborer shows that accountability for
the laborer’s performance was not a component of his job. Significantly, Sutton provided
uncontroverted testimony on the issue of his responsibility for the crew members:
COUNSEL: Did [Project Manager] Kevin Sellers ever hold you
accountable or responsible in any way for anything
done by any of the laborers on your crew?
SUTTON: No, ma’am.
(Tr. 1543.) I conclude that the evidence will not support any contention that Sellers was vested
with authority to responsibly direct his laborers within the meaning of the Oakwood analysis.
4. The Underground Crew Leader
Like Sutton, Underground Crew Leader Hanephin was assigned to a crew that pulled
cable through pipes that had previously been installed underground. The crew also performed
tie-ins, connecting underground wire to the electrical pad. Counsel for the Company contends
that Hanephin possessed supervisory status because he “had the responsibility to direct his

38 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 laborer that
was supposed to go out and catch the rocket.” (Tr. 1556.)
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laborers.” (R. Remand Br., p. 6.) He does not argue that Hanephin possessed the assignment
power.39
Turning first to the assignment power, I agree with the conclusion that Hanephin did not
possess this attribute of supervisory status. He testified that he was never given the authority to
assign or transfer employees. In common with the procedures used by other crews,
underground crew members were required to obtain approval from the project manager if they
wished to leave early or take a day off. Overtime was either ordered by the project manager or
agreed upon by the entire crew. Hanephin flatly explained that, “I was never told that I could
force them to work overtime.” (Tr. 1392.) There is no evidence that Hanephin possessed the
assignment power within the meaning of the Oakwood standards.
In contrast, Hanephin did issue directions to crew members. He reported that, “I could
tell them where to dig and which order things should be done in, but that’s about it.” (Tr. 1385.)
Similarly, he could determine whether the laborer would do the pushing or pulling of wire
through the pipe. On the other hand, Hanephin testified as to the very limited extent of his
power to direct the laborers. For example, he noted, “I usually ask my laborer what they wanted
to do. What do you want to do, push or pull?” (Tr. 1403.) Indeed, he described his role as
follows,
very rarely did I stand over them and watch them and tell them what
to do . . . . About the only time I wasn’t physically working is when I
was sitting on . . . a small tractor or a mini escalator or something. The
rest of the time if we couldn’t use, you know, small machinery, then I
would be using a shovel to dig or pulling wire by hand or sometimes
we would use a pulling machine. But I did as much labor as my laborers.
(Tr. 1380.)
While Hanephin possessed some power to issue directions to the laborers, there is no
evidence that he was authorized to take corrective action in the event that his directions were
not obeyed. There was no testimony to this effect. On the contrary, Hanephin reported that his
project managers never told him that he supervised the members of his crew. Indeed, he
expressed irritation that two of his laborers had been terminated without any consultation or
even notification to him.
As to the key concept of accountability, Hanephin accepted counsel’s formulation that he
would “take the heat” for anything that went wrong on his crew, including mistakes made by the
laborers. (Tr. 1456—1457.) However, on redirect examination, he testified that he was never
held accountable for any mistakes made by a laborer. The evidence on this point raises a
classic problem in the analysis of supervisory status. Counsel for the Company makes the
thoughtful point that the mere fact that a putative supervisor has never exercised an indicator of
supervisory authority does not preclude a finding of statutory supervisory status provided that

39 Counsel for the Company also asserts that Hanephin possessed a secondary indicator of
supervisory status, attendance at “weekly supervisor 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, former counsel for the Company stipulated that crew leaders did not attend these
meetings. See tr. 1387.
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the authority was granted to that supervisor by the employer. This is correct. As the Board has
stated, “it is not required that the individual have exercised any of the powers enumerated in the
statute; rather, it is the existence of the power that determines whether the individual is a
supervisor.” Mountaineer Park, Inc., 343 NLRB 1473, 1474 (2004). [Italics in the original.]
Recognizing the validity of counsel’s argument, I nevertheless find that the employer has
failed to demonstrate that it actually imposed an accountability requirement on the underground
crew leader. The evaluative standard was discussed at length in one of the Oakwood cases as
follows:
[I]n determining whether accountability has been shown, we shall
similarly require evidence of actual accountability. This is not to
say that there must be evidence that an asserted supervisor’s terms
and conditions of employment have been actually affected by her
performance in directing subordinates. Accountability under Oakwood
Healthcare requires only a prospect of consequences. But there must
be a more-than-merely-paper showing that such a prospect exists. That
is, where accountability is predicated on employee evaluations, there must
be evidence that a putative supervisor’s rating for direction of subordinates
may have, either by itself or in combination with other performance factors,
an effect on that person’s terms and conditions of employment.
Golden Crest Healthcare Center, 348 NLRB No. 39, slip op. at 5 (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 performing that job function.
Responsible direction is not established “simply because the job evaluation forms suggest that
such accountability exists.” Infra., slip op. at 5. In the case of Hanephin, the evidence is much
thinner. Apart from his subjective belief that he was accountable, there is nothing from the
employer to indicate that this was, in fact, the case. As a result, the evidence fails to establish
that Hanephin was actually accountable for the quality or effectiveness of his direction of the
crew members. The employer has failed to establish that Hanephin possessed any of the
primary indicia required for a finding of supervisory status.
5. The Restoration Crew Leader
The remaining employee whose status must be assessed is Restoration Crew Leader
Lohman. I have already noted that the work of this crew was perhaps the least skilled of any
production crew. It consisted of landscaping, seeding, placing sod, repairing retaining walls,
and cleaning up land that had been disturbed in the process of laying cable. The restoration
crew consisted of the leader and one or more laborers. Lohman testified that “95 percent of the
time” he performed physical labor along with his laborers. (Tr. 1746.) The remainder of his time
was spent completing paperwork and interacting with the landowners. When asked how much
time he spent “standing over the laborer and directing their work,” he responded, “[n]one.” (Tr.
1715.)
Counsel for the Company contends that “Lohman effectively recommended the
assignment of his laborers.” (R. Remand Br., p. 10.) Before assessing this claim, I note that the
record establishes that Lohman did not actually assign laborers or responsibly direct them. He
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testified that Project Manager Robinson assigned the laborers to his crew. As crew leader, he
had no authority to assign or transfer employees or to require them to work overtime. In
common with the other crew leaders, Lohman lacked authority to authorize vacation or sick
leave. This was vividly illustrated by his report that a laborer sought to leave work early
because his wife was in the process of delivering their baby. Lohman was unable to make even
this obvious decision, but telephoned Robinson in order to seek his approval.
It is also clear that Lohman did not responsibly direct the laborers on the restoration
crew. In dividing up the work chores, Lohman always asked the laborers what tasks they
wanted to do. In what I suspect was a bit of wistful testimony, Lohman noted that the laborers
would usually pick the easier assignments. He also lacked any sort of authority to correct
misbehavior by the crew members. For example, he testified that he could not require that the
laborers wear their hard hats and safety vests. Furthermore, the evidence was rather detailed
in establishing that Lohman was not accountable for the performance of his laborers. He
reported that he had at least three poorly performing laborers and was never held responsible
for their deficient performance. He also had laborers who were sometimes late for work. He
was never held accountable for their tardiness. It is evident that Lohman did not possess the
supervisory indicia of assignment or responsible direction.
Despite this, I readily understand why counsel for the Company contends that Lohman
possessed the indicator of supervisory status concerning the effective recommendation of
laborers’ assignments. I agree that the record is replete with testimony by Lohman establishing
that he made numerous recommendations to the project manager regarding personnel matters
affecting his crew. He complained about laborers who performed poorly, seeking their transfer
or discipline. He also recommended raises and promotions.
The difficulty with counsel’s argument is that the Act requires that a putative supervisor’s
recommendations be effective. In two relatively recent cases, Progressive Transportation
Services, 340 NLRB 1044 (2003), and Mountaineer Park, Inc., 343 NLRB 1473 (2004), the
Board has refined the standards for analysis of this question.40 A finding of the power to make
effective recommendations requires that there be an absence of independent investigation by
the superior authorities to whom the recommendation is made and evidence establishing that
the recommendations are adopted on a regular basis.41 Neither prong of this test is met in the
case of Lohman’s recommendations.
The most formidable hurdle regarding the need for an absence of independent

40 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 distinguishable. Those putative supervisors were required to prepare written
evaluations of the employees. The evaluations were placed in the personnel 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
General 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.
41 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.
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investigation is the testimony of Project Manager Nanney, who informed counsel that it was
“correct” that, “simply because some guy comes and says, I want him off my crew, that does not
get a laborer off the crew, does it?” (Tr. 1177.) Beyond this, Lohman’s recommendations
regarding the laborers met with a very mixed fate. In fact, on two occasions they were met with
derision. Lohman testified that he recommended that Laborer Garrett Jones receive a raise.
He reported that this recommendation met with the following response: “Ernie Nanney told me
to tell Garrett to take his raise and stick it up his a-s-s.”42 (Tr. 1753.) On another occasion,
Lohman reported that he attempted to fire a laborer named Damian. Nanney overruled him,
observing that, “[y]ou can’t do that. I’m the supervisor. You’re not—you can’t fire him.” (Tr.
1718.) Damian remained employed with the Company and continued to serve on Lohman’s
crew until he was injured weeks later. Only after that injury was he transferred to a warehouse
job.
Lohman made additional recommendations. He recommended a raise for an employee
named Brian. Brian did not get the raise. Lohman complained about an employee named
Stringer. He testified that, “I pretty much complained to Ernie [Nanney] about him every day.”
(Tr. 1831.) Asked what happened, Lohman reported that, “Ernie finally fired him.” (Tr. 1831.)
Apart from any evidence of causative effect, the frequency of the complaints and the lack of
immediate result strongly suggest that Lohman’s recommendations did not meet the standard of
effectiveness. Similarly, Lohman complained about a personality conflict involving employee
Vitulski, asking that Vitulski be transferred. While Vitulski was transferred, this did not take
place until weeks later.43 The lack of testimony regarding causality and the length of time
between complaint and response indicate a failure of proof of effectiveness.
The record was well developed regarding Lohman’s personnel recommendations and
their fate at the hands of higher authority. Applying the Board’s standards for assessment of the
potency and effectiveness of those recommendations, I readily conclude that they failed to
establish Lohman’s possession of the statutory authority to make effective recommendations.
6. The Issue of Independent Judgment
The remaining task that I must perform under the terms of the Board’s remand order is
to assess whether, within the meaning of the Oakwood refinements, the crew leaders exercised
independent judgment when they made decisions affecting the crew members. As previously
described in detail in this decision, the record demonstrates that all of these crew leaders made
similar types of decisions involving similar types of personnel assigned to their crews and similar
work processes.44 As a result, I will undertake the qualitative analysis of the exercise of
judgment for all of the crew leaders together. I so doing, I will examine the context, apply the
Oakwood tests, and consider the cases decided since Oakwood.

42 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 fifty percent. Such a random rate of response is far from the required proof that
effective recommendations be regularly adopted by higher authority.
43 Lohman’s testimony as to the length of time it took before Vitulski was transferred was
inconsistent. He first reported that it took 2—3 weeks. Later he indicated that it took more than
a month and a half before Vitulski was transferred.
44 As to the work processes, all involve the installation of underground 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.
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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.45 Furthermore, there was an overwhelming
consensus among the witnesses that the work of the crew leaders was routine and repetitive.
Perhaps Crew Leader Sutton provided the best description, testifying that, “[i]t was all the same.
It is monotony. I mean, once you do it once, it is the same at every hole.” (Tr. 1625.)
Turning now to the legal context for analysis of the degree of judgment possessed by
lead persons, I will briefly examine the Board’s precedents in the years leading up to Oakwood.
In late 2003, the Board declined to find any exercise of independent judgment where a lead
clerical employee engaged in routine shifting around of employees in order to complete work
projects. 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
determined in large part by their craft skills.” Supra at fn. 10. While the foreman was found to
possess the authority to make assignments 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
following 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 repair foreman who worked
alongside his crew but was responsible for making job assignments and ensuring that the other
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). Indeed, the Board cited precedent
establishing that this degree of supervisory capacity did not involve independent judgment
since, “he assigned work in the manner of a skilled leadman.” Supra at 1150.
It was in this context that the Board addressed the issue of independent judgment in the
Oakwood trilogy. In Oakwood, the Board explained that independent judgment involved
decisionmaking that was free from the control of others and required the formulation of an
opinion or evaluation through a process of discerning and comparing data. Beyond this, the
Board emphasized, in pertinent part, that,
[i]t may happen that an individual’s assignment or responsible direction
of another will be based on independent judgment within the dictionary

45 For instance, Bridges noted that he spent “99.9 or 99.5%” of his worktime physically
performing work. (Tr. 1988.)
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definitions of those terms, but still not rise above the merely routine or
clerical . . . . [W]e find that a judgment is not independent if it is dictated
or controlled by detailed instructions, whether set forth in company policies
or rules, the verbal instructions of a higher authority, or in the provisions of a
collective-bargaining agreement . . . . [I]f the assignment is made solely on
the basis of equalizing workloads, then the assignment is routine or clerical
in nature and does not implicate independent judgment, even if it is made
free of the control of others and involves forming an opinion or evaluation by
discerning and comparing data. [Footnote omitted.]
Oakwood Healthcare, Inc., 348 NLRB No. 37, slip op. at 8—9 (2006). The Board then
proceeded to assess the qualitative nature of the judgments being made by the charge nurses
in Oakwood. Interestingly, in determining that those charge nurses possessed both the power
to assign and the duty to exercise independent judgment in making their assignment decisions,
the Board noted that their decisionmaking process “involves a degree of discretion markedly
different than the assignment decisions exercised by most leadmen.”46 Infra, slip op. at 11.
Two of the Oakwood cases involved the supervisory status of nursing personnel. It is
the third case that is of the utmost importance to the analysis required here.47 In Croft Metals,
Inc., 348 NLRB No. 38 (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, slip op. at 1—2. [Footnote omitted.] They occasionally directed the
production employees to switch tasks and perform functions designed to ensure that projects
were completed on schedule. As the Board described, the leads “have the authority to make
decisions about the order in which the work is to be performed and to determine who on the
crew is to do which tasks.” Infra, slip op. at 2. 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, slip op. at 6. Based on the nature of the lead
persons’ duties and the quality of their decisionmaking processes, the Board concluded that
their exercise of judgment did not rise above the routine or clerical level. As a result, they were
not found to possess statutory supervisory status.
Six months after deciding the Oakwood trilogy, the Board had occasion to evaluate the
status of another team leader. That individual made task assignments to ensure that the work
kept flowing. Once an employee had completed an assigned task, the team leader was
responsible to direct the employee to perform another chore. These assignments and directives
were always made subject to the oversight of the team leader’s supervisor. The team leader
spent 90 percent of his day, “working with his tools.” Austal USA, L.L.C., 349 NLRB No. 51, slip
op. at 15 (2007), [administrative law judge’s decision]. Citing Croft Metals, the Board affirmed

46 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, slip op. at 23.
47 Indeed, Judge Schlesinger accurately predicted that the Oakwood case involving lead
persons at a manufacturing plant would “perhaps [be] critical to the issue in this proceeding.”
ADB Utility Contractors, Inc., 348 NLRB No. 53, slip op. at fn. 5 (2006).
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the judge’s conclusion that the team leader’s decisionmaking did not rise above the routine or
clerical.
Finally, in Shaw, Inc., 350 NLRB No. 37 (2007), the Board has just provided a very
detailed analysis of the supervisory status of foremen on construction pipeline crews. The
crews varied in size from 2 to 20 members, consisting of operators, welders, and laborers.
Foremen were charged with “ensuring the performance and completion” of jobs in the field.
Infra, slip op. at 1. The Board held that they did not exercise independent judgment in
performing their duties and responsibilities. In language that speaks directly to the situation in
the case before me, the Board observed that,
a foreman’s designation of which crewmembers will perform
particular functions is often based on an employee’s trade or
known skills, and is, thus, essentially self-evident. For example,
if an operator is part of a crew, he will operate the heavy
equipment, a fuser will fuse plastic pipe, and a welder will handle
metal pipe. Such assignments do not involve the exercise of
independent judgment.
Other assignments are based on an employee’s readiness to
carry out one of the less skilled tasks that compose the bulk of
the Respondents’ workload. As the Respondents’ business
involves an abundance of unskilled, laborer-type work, there are
often multiple laborers on a crew. Because their duties tend to
be somewhat repetitive and are often physically demanding,
foremen routinely rotate laborers among those tasks to vary their
work and equalize their burdens . . . Rotating essentially unskilled
and routine duties among available crewmembers in this fashion
does not involve the use of independent judgment and is not,
therefore, indicative of supervisory authority. [Footnotes omitted.]
Supra, slip op. at 3.
Of the cases remanded by the Board for application of the Oakwood analysis, four of
those already decided by administrative law judges have involved settings outside the health
care professions. In Talmadge Park, Inc., 2007 WL 174480 (Div. of Judges, January 19, 2007),
the issue concerned the status of a laundry employee who had some authority to direct her
coworker. In finding her to lack supervisory status within the meaning of Croft Metals, the judge
noted that the laundry work was simple and repetitive and that the forms of decisionmaking
required did not rise above the level of the routine or clerical. In GFC Crane Consultants, Inc.,
2007 WL 486711 (Div. of Judges, February 9, 2007), the employees at issue were port
engineers who led work crews responsible for maintaining equipment. They were provided with
lists that determined the work to be performed. The work itself was routine and repetitive. In
the event a problem arose, the port engineers were to contact their supervisors for instructions.
Citing Croft Metals, the administrative law judge determined that the port engineers did not
exercise independent judgment within the meaning of Oakwood. CGLM, Inc., 2007 WL 633122
(Div. of Judges, February 27, 2007), concerned the status of a warehouse manager. The
manager set up the delivery routes based on his geographical knowledge and understanding of
the time needed to complete the trips. The loading of the trucks was performed in a set pattern.
Again citing to Croft Metals, the judge concluded that the manager’s judgment did not rise
above the routine or clerical. Finally, in A & G, Inc., 2007 WL 1879534 (Div. of Judges, June 26,
2007), the judge found that a shift leader in a knitting department failed to exercise independent
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judgment when he directed the machine assignments for employees engaged in repetitive
industrial tasks.
Based on this guidance, I have no difficulty in finding that the Company’s crew leaders
did not exercise that degree of judgment sufficient to rise above the routine or clerical. In
particular, the evidence was strikingly consistent on the question of whether the crew leaders’
work was routine and repetitive. The Company’s witness, Crew Leader Flores, observed that,
“[i]t’s routine every day. It’s the same thing, you’re just in a different place.” (Tr. 2350.) When
asked if his crew leader job was routine and repetitive, Shipp unhesitatingly replied in the
affirmative. When asked if there was anything routine about setting up his boring machine,
Farris replied that “[e]verything” was routine. (Tr. 2157.) Bridges gave the identical answer
when asked what was routine and repetitive about his job as backhoe crew leader. (Tr. 1991.)
When asked if the backhoe job involved the same thing day in and day out, Williams agreed,
adding that, “[y]ou are digging trenches all the time.” (Tr. 736.) Lohman testified that all of his
duties as restoration crew leader were either routine or repetitive or both. Put the opposite way,
Schaffer was asked if there was anything about his crew leader job that was not routine and
repetitive. He responded, “No, one bore is the same as the next.” (Tr. 2440.)
In addition to the stunning congruity of the evidence as to the nature of the work, the
record also clearly demonstrates that the crew leaders operated within a tightly constrained
framework consisting of comprehensive blueprints, detailed verbal instructions from their project
managers, or both. Once on the job, the assignments given to crew members by the lead
persons involved the simple switching of routine chores to facilitate completion of the work.
Crew leaders made these routine decisions by using nothing more sophisticated than the
assessment of crewmembers’ personality styles and job preferences.48 It was universally
acknowledged that on the rare occasions when something unusual might transpire, the crew
leaders were required to make immediate contact with their project managers for instructions.
The evidence fails to establish that the crew leaders exercised any degree of judgment or
discretion that would rise above the routine and clerical within the meaning of those concepts as
defined in Oakwood Healthcare and Croft Metals.
7. 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 No. 56 (2006), on remand at 2007
WL 313431 (Div. of Judges, January 30, 2007). I will begin with a brief discussion of that case.
In particular, I will assess counsel’s two contentions, that the crew leaders possess supervisory
powers of effective recommendation similar to the shop foremen in RCC Fabricators and that
the crew leaders share a fundamental alignment with management in the same manner as
those shop foremen.
The company involved in RCC Fabricators manufactured specialized equipment for the
railroad and structural steel industries. It employed two shop foremen, each assigned to run
one of these respective industrial operations. Unlike the crew leaders, these foremen spent a

48 Counsel for the Company argues that Williams chose the job duties 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.
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great deal of time directing their employees. In assigning work tasks to their staff, the foremen
were required to address what I termed “critical issues of competence and safety” because the
employees’ assignments “ran the gamut from simple to complex, and even dangerous, duties.”
As a result, “the foremen applied a sophisticated analytical process to match skills and abilities
with work tasks and safety considerations.” (Supplemental Decision, at pp. 14, 24, and 27.) I
also noted that both foremen possessed “meaningful and powerful disciplinary authority.”
(Supp. Decision, at p. 19.) Because I determined that the shop foremen possessed the
statutory powers to assign, effectively recommend assignment, discipline (including power to
suspend, layoff, and discharge), and effectively recommend discipline, and exercised those
powers through application of independent judgment, I found that they were excluded from the
Act’s coverage due to their supervisory status.
All of this stands in sharp contrast to the evidence regarding the very circumscribed
authority possessed by the crew leaders in this case. For example, I stressed the important role
that safety considerations played in the assignment decisions faced by the shop foremen. Crew
leaders had no supervisory involvement in safety issues. The consensus of the testimony
established that they lacked even the power to require the crew members to wear hard hats and
safety vests. Crew Leader Williams provided a telling example of the manner in which safety
issues were handled by the Company. He reported that a member of his crew complained to
him about the lack of shoring in his excavations. Since the crew member responsible for
swamping for the backhoe was required to climb into the excavations in order to dig for hidden
utilities, this posed a potential risk of injury. Williams testified that he merely reported the
problem to the project manager who told him, “we don’t have time to do that. Just dig the hole
and be careful.” (Tr. 733—734.)
The situation regarding effective recommendations is similar. I have already assessed
the absence of evidence demonstrating that crew leaders could make recommendations that
were effective within the meaning of the Board’s precedents. On the other hand, in RCC
Fabricators, I noted that the shop foremen had “obvious” powers in this regard, citing an
instance where a foreman and a misbehaving employee reported to their superintendent. The
foreman told the superintendent that he was sick of the employee’s bad attitude. The employee
testified that, immediately thereafter, the superintendent “looked at me and said they no longer
needed my services.” (Supp. Decision, at p. 30.) This is a far cry from the hit-or-miss results of
crew leader complaints about their crew members. In sum, while I fully recognize my duty to
apply consistent standards of analysis in the cases that I am called on to adjudicate, this has
lead to widely different outcomes here because of the large and crucial factual dissimilarities.
Finally, in RCC Fabricators, I 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
supervisory status. I noted that, in Oakwood Healthcare, supra, slip op. at 7, the Board drew
attention to the fact that the “heart” of the rationale for the statutory exclusion of supervisors was
to ensure that a collective-bargaining unit did not include employees, “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 analysis here. I agree that such
an analysis remains appropriate. For all the reasons I have discussed in detail in this decision, I
conclude 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,
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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 employees.
An employee who can discharge other employees, 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 instructions 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 precisely 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 Company’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. Applying the Court’s “homely,” but nevertheless apt, methodology,
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.49 In addition, he recommended 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 appropriateness of the proposed
extraordinary remedies have continued to evolve since Judge Schlesinger’s decision.

49 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).
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Interestingly, 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
commission of the types of unlawful conduct engaged in by this employer in its response to an
organizing effort. For example, in Five Star Mfg., 348 NLRB No. 94 (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
themselves a way out of there.” Supra, slip op. at 1. This was followed by a number of unlawful
measures, culminating in the discharge 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
disregard for its employees’ Section 7 rights.” Supra, slip op. at 2. Applying 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
Continuing 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.50 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,
including the identification of any gaps in the record that needed supplementation. (Show
Cause Order, p. 1.) On December 22, 2006, the Company filed its Suggestions in Support of a
Limited 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 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 December 22, 2006. Absent any explanation for the very tardy submission of
this new request, I conclude that it is untimely.51

50 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
decisions, 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.
51 The Board adheres to strict standards regarding acceptance of untimely filed motions.
See Elevator Constructors, Local 2, 337 NLRB 426 (2002).
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In addition, counsel’s request for reconsideration of the proposed bargaining order is
premature. Counsel’s fundamental premise underlying his request for reconsideration of the
bargaining 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 opposed
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 consistent. It was well summarized in Garvey Marine, Inc., 328 NLRB 991, 995
(1999), enf. 245 F.3d 819 (DC Cir. 2001):
The Board traditionally does not consider turnover among
bargaining unit employees in determining whether a bargaining
order is appropriate, but rather assesses the appropriateness of
this remedy at the time the unfair labor practices were committed.
Otherwise, the employer that has committed unfair labor practices
of sufficient gravity to warrant the issuance 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 statutory
violations. Such a result would permit employers, particularly 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 addition, the Board has noted that a bargaining
order’s impact on employee free choice is limited, because employees
remain free to reject their bargaining representative after a reasonable
period of time. [Citations omitted.]
Numerous circuit courts, most notably the District of Columbia Circuit, have taken strong
issue with this viewpoint. See, for example, Cogburn Health Center, Inc. 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 any event. See, for
example, Wallace International de Puerto Rico, Inc., 328 NLRB 29 (1999), Cooper Industries,
328 NLRB 145 (1999), rev. denied 8 Fed. Appx. 610 (9th Cir. 2001), and Audubon Regional
Medical 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.52 See California Gas Transport, Inc., 347 NLRB No. 118, slip op. at 12 (2006).

52 In his motion, counsel for the Company contends, citing Abramson, LLC, 345 NLRB No.
8, slip op. at fn. 25 (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 bargaining 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.
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This dispute between the Board and some appellate courts, while generating instances
of particularly heated judicial commentary, is simply an aspect of a perennial issue in
administrative law.53 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 vesting in the Board the primary responsibility and broad discretion to devise
remedies that effectuate the policies of the Act, subject 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 followed 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 contumacious.
Respectfully, I think it worthwhile to consider a pertinent hypothetical example. If an
employer located in California 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 employers’ delay tactics” by finding changed circumstances to be irrelevant 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).54 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 precedents 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

53 For example, see 20 C.F.R. § 404.985, a Social Security Administration 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).
54 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).
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strong disagreement with each other.55 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 statutory 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 resulting 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 parlance 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 determine
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 recognition of the legal authority of Board
precedent, will a uniform and orderly administration of a national
act, such as the National 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 consideration of labor law policy
concerns involving effective enforcement of the Act, is to decline to consider such changed
circumstances in determining whether to impose a bargaining order. California Gas Transport,
Inc., supra, slip op. at 12, 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.56 I fully agree with his analysis of the Union’s proof of majority status, the

55 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 United Steelworkers of America v.
NLRB, 8 Fed. Appx. 610 (9th Cir. 2001).
56 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
Continued
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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 holding
of a fair election is improbable. I will recommend that a Gissel
bargaining order issue.
ADB Utility Contractors, Inc., supra, slip op. at 20. I join in this recommendation.
As I have previously noted, sometimes the Board considers whether to forego a
bargaining order because changed circumstances 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 management 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 despite any changed circumstances.
The record in this case does reflect that the primary management 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 policies. 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
demonstrates that, while Eirvin was the most visible official in the employer’s antiunion effort, his
behavior was entirely consistent with the desires and attitudes of the owner, 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
_________________________
employer did not fire the entire unit in response 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 supporters. By this I mean that this employer
did not merely seize on some actual employee misbehavior as a pretext designed to justify an
unlawful 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 terminations. The impact of this depraved behavior on the Company’s work force must have
been, and must continue to be, enormous. No reasonable person would run the risk of suffering
consequences that potentially include a falsified documentary record of work-related misconduct
that could certainly impact one’s efforts to find new employment after having been wrongfully
fired. While not identical to the circumstances 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), enf. 40 F.3d 409 (DC Cir. 1994), and National Steel Supply, 344
NLRB No. 121 (2005), enf. 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, slip op. at fn. 15.
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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 elsewhere; 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 considering a bargaining order. See Impact Industries, 293
NLRB 794 (1989) (“Respondent was under new management unrelated 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 practices is still employed by Audubon
or is still associated with Audubon in any capacity”). The situation in this company is the same
as when it was assessed by trial counsel for the Company 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 management turnover does not mitigate the
likelihood of continuing coercion of employees.57
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 discharged 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 Transport, Inc., supra, slip op. 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 bargaining order.” Cassis Management Corp., 323 NLRB 456, 460 (1997), enf.
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

57 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. California Gas Transport, Inc., supra, slip op. at 13.
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unlawful conduct, the Company’s behavior will resonate in other ways. As the Board has
explained:
[N]ew employees may well be affected by the continuing influence
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 departed.” . . . [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
expressions of unlawful animus, including the promise that management 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 noting that, “I’m getting pretty good at
this one—this is my fifth 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 conduct is “so
pervasive as to have created a corporate culture of lawlessness” that leads to “a legacy of
hostility that will pervade the atmosphere” with a resulting impact that “may grow to legendary
proportions.” Aldworth Co., 338 NLRB 137, 151—152 (2002), enf. 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., 348 NLRB No. 12 (2006) (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.58

58 It is this psychological burden that is the key rationale underlying the bargaining order
remedy. Counsel for the Company cites an eloquent 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
Continued
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The Company’s behavior in this case bears a strong resemblance 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 culminated 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 frustrate and suppress the Section 7 activities of its employees,”
the Board imposed a bargaining order. Supra, slip op. at 10. In this case, the Company
engaged in at least an equivalent degree of misconduct, including discharges of union
supporters using falsified evidence, threats of futility, threats of plant closure, threats of
reduction of bonus payments, threats of increased subcontracting of work, threats of loss of
benefits, unlawful interrogations, and the creation of an unlawful impression of surveillance of
employees’ protected activities. These measures were designed to intimidate and coerce
employees in the free expression 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
acknowledge 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 period of time.59 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. Continuing to act in their own
uncoerced best interests, the Company’s employees will determine the future role of the Union
_________________________
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 interest, nevertheless, cannot reasonably be expected to vote consistently with that
determination when faced with the threat of employer misconduct 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
Section 7 rights of the work force.
59 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
representation through the Board’s electoral processes, it must refrain from the commission of
unfair labor practices so as to enable the period of uncontestable 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),
enf. 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).
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as their representative.
In sum, I conclude that nothing in the Board’s evolving precedents indicates any need to
alter Judge Schlesinger’s findings of fact, conclusions of law, or recommended remedial
measures. For ease of reference, I will copy his proposed order and notice below.60 In so
doing, I have amended them to reflect the Company’s correct corporate name and have added
a provision addressing the Company’s second motion to reopen the record.
ORDER
Respondent, American Directional Boring, Inc., d/b/a ADB Utility Contractors, Inc., of St.
Louis, Missouri, 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
representative.
(c) Threatening its employees that it is futile to select the Union 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
employment.
(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 select the Union as their
collective-bargaining representative.
(j) Interrogating its employees about their union activities and threatening its employees

60 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, slip op. at 1. Judge Schlesinger’s order remains the appropriate
recommendation.
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with unspecified reprisals because of their union activities.
(k) Discharging its employees because of their union activities or sympathies and in
order to discourage their membership in the 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 coercing its employees in the
exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive representative of its employees
in the following appropriate unit concerning terms and conditions of employment and, if an
understanding is reached, embody the understanding in a signed agreement:
All employees employed by American Directional Boring, Inc.,
d/b/a ADB Utility Contractors, Inc., at its St. Louis, Missouri
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 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 enjoyed.
(c) Make Jeremy Farris, Edgar Schreit, Nathan Schaffer, Rodney Hanephin, Matt
Sutton, Ryan Adams, Clarence Williams, Jason Lohman, Adam Williams, Matt Bridges, Steve
Mack, John Shipp, and Wayne Schaffer whole for any loss of earnings and other benefits
suffered as a result of the discrimination against them, in the manner set forth in the remedy
section of the decision.
(d) Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful discharges of Jeremy Farris, Edgar Schreit, Nathan Schaffer, Rodney
Hanephin, Matt Sutton, Ryan Adams, Clarence Williams, Jason Lohman, Adam Williams, Matt
Bridges, Steve Mack, John Shipp, and Wayne Schaffer, and within 3 days thereafter notify
these employees in writing that this has been done and that the discharges will not be used
against them in any way.
(e) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay due under the terms of this
Order.
(f) Within 14 days after service by the Region, post at its facility in St. Louis, Missouri,
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copies of the attached notice marked “Appendix.”61 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
conspicuous 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 employees 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 Reopen the Record to
Receive Evidence Regarding the Continuing Validity of the Bargaining Order in Light of the
Changed Circumstances, filed on July 10, 2007, is hereby denied.
Dated, Washington, D.C., August 23, 2007.
____________________
Paul Buxbaum
Administrative Law Judge

61 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 National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
JD-35-07
St. Louis, MO
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 behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT create the impression among our employees that their union activities
are under surveillance.
WE WILL NOT impliedly threaten our employees with termination if they select Local 2,
International Brotherhood of Electrical Workers, AFL-CIO (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 discipline 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 employees select the Union as
their collective-bargaining representative.
WE WILL NOT interrogate our employees about their union activities and threaten our
employees with unspecified reprisals because of their union activities.
WE WILL NOT discharge our employees because of their union activities or sympathies
and in order to discourage their membership in the Union or any other labor organization.
JD-35-07
St. Louis, MO
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 American Directional Boring, Inc.,
d/b/a ADB Utility Contractors, Inc., at its St. Louis, Missouri
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 enjoyed.
WE WILL make Jeremy Farris, Edgar Schreit, Nathan Schaffer, Rodney Hanephin, Matt
Sutton, Ryan Adams, Clarence Williams, Jason Lohman, Adam Williams, Matt Bridges, Steve
Mack, John Shipp, and Wayne Schaffer whole for any loss of earnings and other benefits
suffered as a result of the discrimination against them, with interest.
WE WILL within 14 days from the date of the Board’s Order, remove from our files any
reference to the unlawful discharges of Jeremy Farris, Edgar Schreit, Nathan Schaffer, Rodney
Hanephin, Matt Sutton, Ryan Adams, Clarence Williams, Jason Lohman, Adam Williams, Matt
Bridges, Steve Mack, John Shipp, and Wayne Schaffer, and within 3 days thereafter notify
these employees in writing that this has been done and that the discharges will not be used
against them in any way.
AMERICAN DIRECTIONAL BORING, INC., d/b/a
ADB UTILITY CONTRACTORS, INC.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
1222 Spruce Street, Room 8.302
Saint Louis, Missouri 63103-2829
Hours: 8 a.m. to 4:30 p.m.
314-539-7770.
JD-35-07
St. Louis, MO
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 314-539-7780.