Atlantic Scaffolding Company

National Labor Relations Board - Administrative Judge Opinions

Oct 5, 2009

16-CA-026108 (N.L.R.B. Oct. 5, 2009)

JD(ATL)–25–09
La Porte, TX
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE
ATLANTIC SCAFFOLDING COMPANY
and CASE 16-CA-26108
UNITED BROTHERHOOD OF CARPENTERS
AND JOINERS OF AMERICA, LOCAL 502
Jamal M. Allen, Esq., for the General Counsel.
G. Mark Jodon, Esq. and Timothy A. Rybacki,
Esq., for the Respondent.
DECISION
Statement of the Case
MARGARET G. BRAKEBUSCH, Administrative Law Judge. This case was tried in
Beaumont, Texas, on May 26, 27, and 28, 2009. The charge in this case was filed on March
20, 2008, by the United Brotherhood of Carpenters and Joiners of America, Local 502
(Union). On August 29, 2008,1 the Regional Director for Region 16 of the National Labor
Relations Board (Board) issued a Complaint and Notice of Hearing based upon the
allegations contained in the underlying charge. The complaint alleges that Atlantic
Scaffolding Company (Respondent) violated Section 8(a)(1) of the National Labor Relations
Act (Act) by discharging 105 employees because the employees engaged in concerted
activities with other employees for the purposes of mutual aid and protection by engaging in
a work stoppage over a pay raise.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and the Respondent, I make the
following:
Findings of Fact
I. Jurisdiction
Respondent, a Delaware corporation, with an office and place of business in La
Porte, Texas, has been engaged in the business of a refinery maintenance subcontractor.
During the past fiscal year, Respondent, in conducting its business operations, has provided

1 All dates are 2008 unless otherwise indicated.
JD(ATL)–25–09
5
10
15
20
25
30
35
40
45
2
services valued in excess of $50,000 to ExxonMobil Oil Refining and Supply Corporation, an
enterprise directly engaged in interstate commerce. Respondent admits, and I find that it is
an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act
and that the Union is a labor organization within the meaning of Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
A. Background
ExxonMobil Refining and Supply Corporation (ExxonMobil) operates an oil refinery in
Beaumont, Texas, composed of 38 separate processing units. At regular intervals,
ExxonMobil schedules “turnarounds” in which individual refinery units are shut down to
undergo inspections and various maintenance procedures. Respondent is a refinery
maintenance contractor with offices in LaPorte, Texas. In the spring of 2008, ExxonMobil
contracted with Respondent to perform scaffolding work for a scheduled maintenance
“turnaround” at the Beaumont refinery. The turnaround required the shutdown of 13
processing units at the refinery. Respondent was responsible for performing the scaffolding
work on all units on the north side of the refinery, including the FCC unit. The FCC unit is
ExxonMobil’s third-largest gasoline production unit in the United States. The primary
purpose of the turnaround was to replace the FCC unit’s old reactor with a new one and
repair and modernize the regenerator. The turnaround also involved various capital projects,
including maintenance tasks on the refinery’s other process units.
B. Issues
General Counsel alleges that Respondent terminated approximately 105 employees
in retaliation for the employees’ engaging in a peaceful work stoppage and presenting a
concerted complaint letter regarding pay and benefits to management on March 17, 2008.
Respondent, however, submits that it did not discharge the employees in issue. Further,
Respondent asserts that even if the employees had been discharged, their work stoppage
was not protected activity.
While there is no dispute that Respondent’s general foremen are supervisors and
excluded from the protection of the Act, the parties do not agree as to the supervisory status
of the foremen; who are subordinate to the general foremen. General Counsel takes the
position that the foremen who engaged in the work stoppage were not statutory supervisors
and were protected by the Act. Respondent maintains that its foremen meet the
requirements for supervisory status under Section 2(11) of the Act. Over the course of the
hearing, the parties were also unable to reach an agreement as to whether Alfonso Garcia
held the status of general foreman or a foreman during the 2008, turnaround in issue.2
C. Supervisors and Management Officials for ExxonMobil and Respondent
Respondent’s primary supervisory and management officials involved in this case
were Site Manager Dylan Fulton, Site Superintendent Jeremy Chatagnier, Turnaround

2 Inasmuch as Alfonso Garcia was included in the group of employees who did not begin work
on the turnaround on the morning of March 17, 2008, neither the General Counsel nor Respondent
could rely upon work performed to establish his status during the turnaround.
JD(ATL)–25–09
5
10
15
20
25
30
35
40
45
3
Supervisor David Scotty Wall, Safety Manager Derek Harvey, and Regional Manager Chad
King. As Site Manager, Dylan Fulton (Fulton) was the highest-ranking official for Respondent
at the Beaumont, Texas facility. Jeremy Chatagnier (Chatagnier) reported to Fulton and
oversaw all field operations. David Scotty Wall (Wall) supervised the general foremen on the
job and Derek Harvey (Harvey) was responsible for the Respondent’s safety functions at the
facility. Although Chad King was present at the facility on March 17, 2008, he did not testify
and the record does not reflect his specific duties in relation to the Beaumont facility.
William Alan Swango (Swango) is ExxonMobil’s turnaround department head for the
Beaumont refinery. In that position, he is responsible for all the planning and execution of
ExxonMobil’s scheduled turnarounds. Dorothy Patterson was ExxonMobil’s turnaround
manager. Rick Goldin was head of security for ExxonMobil and Mike Lorenzen was
ExxonMobil’s director for security. There is no evidence that ExxonMobil and the
Respondent are joint employers and the General Counsel does not assert that these
employers functioned as joint employers during the turnaround period in issue.
D. The March 17, 2008 Work Stoppage
1. The turnaround operation
March 17, 2008, was the first day of the scheduled turnaround. Fulton testified that
when the units were operational, they generated millions of dollars in production. Because of
ExxonMobil’s revenue loss resulting from the shutdown, Respondent had only a small
window of time to perform its contractual function. Additionally, because the FCC unit was
ExxonMobil’s third largest gasoline-producing unit, ExxonMobil imposed a very strict
deadline for the turnaround. The turnaround actually lasted only 8 weeks and ended on May
10, 2008.
The turnaround operated around the clock, with employees working either day or
night shifts. Respondent employed approximately 240 to 250 employees for the turnaround.
This complement of employees included general foremen, foremen, lead carpenters,
carpenters, and helpers, in addition to a maintenance division of approximately 50
employees. In addition to Respondent’s employees, there were approximately 1,000
additional workers who were employed by the other contractors on the turnaround project.
During a turnaround procedure, ExxonMobil transports the contractors’ employees
into the facility from the parking lot by transportation buses. Under OSHA regulations,
ExxonMobil must account for everyone who is inside the refinery. To comply with the
regulations, ExxonMobil requires all contractor employees to have an identification badge for
entrance into the facility. All employees must swipe their badges upon entering and leaving
the facility. Contract employees are also required to carry with them a hydrogen sulfide
(H2S) monitor while working inside the refinery. If an employee comes into an area where
there is a certain level of hydrogen sulfide, the monitor will automatically emit an audible,
visual, and vibrational warning. The employees normally kept their identification badges and
H2S monitors until they complete their work on the job. Swango explained, however, that if a
contract employee leaves the employment of a contract company or if there is a safety
incident in the refinery, ExxonMobil collects the badges and monitors until the completion of
the investigation and a determination has been made as to whether an employee is allowed
to return to the property. Chatagnier also confirmed that badges and monitors are retrieved
JD(ATL)–25–09
5
10
15
20
25
30
35
40
45
4
from employees if ExxonMobil asks the employee to leave the facility for any safety reason.
During the turnaround procedure, each day began with a “turnover meeting,” in which
ExxonMobil met with the contractors’ supervisors at approximately 6:00 a.m. each day. The
meetings were held at the beginning of the shift to allow the transfer of work from the night
shift to the day shift. During the turnover meeting, ExxonMobil representatives discussed
occurrences during the night shift and updated the contractors as to the general status of the
turnaround. Respondent’s general foremen and Supervisor Wall attended the turnover
meeting and received the daily work assignments from ExxonMobil. Each contractor had an
ExxonMobil representative who distributed a written schedule of the work to be performed by
the contractor. At approximately 6:30 a.m. and following the meeting with supervisors,
ExxonMobil conducted a larger safety meeting involving all the contractors on the
turnaround. Because the safety meeting required the attendance of all employees working
for the various contractors, there were often as many as 600 employees attending the safety
meeting. The safety meetings lasted for approximately 15 to 30 minutes. Following the
larger safety meeting, Respondent’s employees attended “toolbox” safety meetings with their
foremen, general foremen, and various safety officials before they went to their respective
work areas. During the toolbox meetings, general foremen discussed safety issues and the
employees received their assignments for the day. These meetings normally lasted between
15 and 30 minutes. Wall testified that after attending the morning meetings and collecting
their tools, the employees were normally at their work assignments and working by 7:15 to
7:20 a.m. Each foreman worked with three-person crews consisting of a lead carpenter,
carpenter, and carpenter’s helper. There were usually no more than three crews assigned to
work with each foreman.
2. Employee compensation concerns
Victor Corral worked for Respondent for four years prior to March 17, 2008. He had
been a general foreman for only 3 to 4 months on March 17. Prior to the turnaround
beginning on March 17, rumors spread among all the employees working on the Beaumont
site that ExxonMobil planned to give raises to all of the turnaround contractors. Corral spoke
with Site Superintendent Chatagnier and Turnaround Supervisor Wall about whether
Respondent’s employees would receive raises. Chatagnier told him that Respondent
intended to give its employees incentive pay rather than a raise. Under the incentive
program that was to be in effect from March 13, 2008, until May 8, 2008, employees would
receive incremental raises if they complied with attendance and safety guidelines. Under the
terms of the program, employees could be disqualified for having more than one unexcused
absence for the week, leaving early, or arriving late more than once a week, or for having an
OSHA recordable injury. The eligibility for the $1.25 per hour incentive pay was payable
weekly. The remaining half of the incentive payment was paid as a completion bonus and
provided $1.25 for every hour worked from March 13, 2008, until May 8, 2008. When
Chatagnier told Corral about the proposed incentive pay, Corral responded that the
employees were not going to like the incentive pay in lieu of a raise.
Corral shared his dissatisfaction concerning the proposed incentive pay with other
employees. After his discussions with a number of his fellow employees, leadman Victor
Salazar prepared a letter to Respondent on his home computer on March 16, 2008. The
one-page letter was addressed “To whom it may concern,” and it is shown to be from “ASC
employees, at ExxonMobil Beaumont, TX.” The first paragraph of the letter contains:
JD(ATL)–25–09
5
10
15
20
25
30
35
40
45
5
In behalf of all Atlantic Scaffolding Company employees currently employed at
ExxonMobil Beaumont, TX, we demand a pay rate increase; per diem pay
increase, and a better br[e]ake down system for craftsman classification. We
ASC employees feel deserve the above because first of all our hard work,
followed by the professionalism we provide to this company and last, the high
level of risk involved at work.
The letter continues with an explanation of why the work is “hard work” and how the
employees demonstrate professionalism. Additionally, the letter describes the kind of work
that poses risks for employees. The letter ends by asking whether Respondent supported
the employees in this matter and expressing a desire to avoid an “escalade” of the matter
beyond Beaumont facilities. Attached to the letter is a list of employee concerns. The first of
the six listed concerns proposes that other contractors at the same site provide their
employees with the “right pay rate” and a “reasonable” amount of per diem.
When foreman Jose Rangel first saw the letter on Sunday, March 16, 2008, a
signature page was attached. At the time that he signed the letter, the attached page
contained approximately 30 to 40 signatures. When Victor Corral and foreman3 David Reyna
first saw the letter on March 16, 2008, there were approximately 100 signatures on the
attached pages. Although Reyna did not identify who had given him the letter and the list of
signatures, he recalled that “they” told him that “they” were going to speak with Respondent’s
supervisors about a pay increase on the following morning. Corral acknowledged that the
letter was a means by which to justify the employees’ receiving more money.
3. The employees present the letter to Wall
As noted above, Monday, March 17, 2008, was the first day of the scheduled
turnaround. Respondent’s employees attended the safety meeting that was held inside the
lunch tent for the FCC unit. At approximately 6:55 a.m., Supervisor Wall was standing
outside the lunch tent; in the area where the toolbox meetings are held. Foreman Eduardo
Salinas handed him a copy of Salazar’s letter. Victor Corral estimated that approximately
100 employees were gathered together at the time the letter was presented to Wall.
Although the night shift employees were typically released from work at 5:00 a.m., a number
of the night shift employees remained in the facility to demonstrate their support for the letter.
In recalling what Salinas said to him as he presented the letter, Wall testified: “He just told
me this is what they wanted before they would go back to work.” Wall went on to add that
Salinas told him that the employees wanted an increase of $5 an hour and $90 a day per
diem before they would return to work. Corral also confirmed that in speaking with Wall, the
employees demanded an increase of $5 an hour and an increase in per diem pay. Wall told
Salinas that he could not negotiate that kind of request and he would have to turn it over to
upper management. Wall testified that Salinas and Corral were the two employees who
spoke with him about the letter. Wall asked them if they would go to work until Respondent
could get the matter resolved. Wall testified that not only did he ask the foremen to begin
working; he specifically asked them to update the scaffold tags that required the foremen’s

3 Reyna was a foreman during the 2008 turnaround period. At the time of his testimony, he was
employed by Respondent as a leadman.
JD(ATL)–25–09
5
10
15
20
25
30
35
40
45
6
authorization before the other contractors could use the scaffolds.4 Wall asserted that
Salinas and Corral refused. Salinas did not testify and Corral did not rebut Wall’s testimony.
Wall also recalled that only General Foreman Jared LeJeune and a “couple” of the other
foremen helped him to update the scaffold tags.
4. Chatagnier’s initial involvement with the employees
After receiving and reading the letter, Wall contacted Site Superintendent Chatagnier
and asked him to come to the lunch tent area. After Chatagnier arrived and read the letter,
he spoke with the employees outside the tent. Chatagnier recalled that approximately 20 to
30 employees attempted to speak with him at one time. When he asked for one person to
speak with him from the group, Salinas came forward. Salinas told him that the employees
wanted a $5 an hour across-the-board raise and an increase in their per diem pay.
Chatagnier told Salinas that he was not in a position to make that call and those were
decisions that would have to be made by individuals above him. Chatagnier recalled that
Salinas told him that Respondent had until noon to come up with a decision. Chatagnier
testified that at that point, he assumed that the employees were going back to work while
they waited for the decision. Chatagnier then contacted Fulton and told him that the
employees had given Respondent until noon to reach a resolution. When Chatagnier
returned to the assembled employees, he told them that Fulton was on his way and that
Fulton would address with ExxonMobil what needed to be addressed. Chatagnier told the
employees that he needed them to return to work and Fulton would come down at noon and
let them know what could be resolved. Chatagnier testified: “Eduardo Salinas told me that I
misunderstood what he said. When he meant noon, that they were going to sit there and
wait till noon, but that they were not going to go back to work until a decision was made.”
Chatagnier further recalled that Salinas told him that whether they would stay or leave would
depend upon what the employees heard about their pay rates and the per diem. Chatagnier
also recalled that Salinas told him that if their demands were not met by noon, they were
going to request their pink slips and their tool passes to remove their tools.
Chatagnier testified that although he does not speak Spanish, he could tell by the
tone of their voices that the employees were frustrated. He recalled that one employee
yelled out to him: “Fuck you, white boy. Please hit me so I can sue you.” He also recalled
that a “couple of times” Salinas urged the employees to calm down.
5. ExxonMobil’s involvement with the employees
Swango recalled that following the morning safety meeting on March 17, he headed
back toward the turnaround trailer. Before reaching the trailer, however, he was notified that
Respondent’s scaffold builders had refused to go to work. When he returned to the FCC tent
area, he observed approximately 100 scaffold builders outside the east side of the tent.
Dorothy Patterson, ExxonMobil’s turnaround manager, as well as two other ExxonMobil
representatives, accompanied Swango. When Swango and the other ExxonMobil
representatives arrived at the tent, Chatagnier was speaking with the employees. Although
Swango did not overhear Chatagnier’s discussion with the employees, Chatagnier
subsequently reported the employees’ demands to him and the other ExxonMobil

4 Wall explained that “updating” the scaffold tags refers to checking the scaffolds to make sure
that they are still sound and ready to be used by the contractors on the turnaround.
JD(ATL)–25–09
5
10
15
20
25
30
35
40
45
7
representatives. When Patterson heard the demands, she opined that ExxonMobil “was not
real willing to meet those demands.”
Fulton arrived at the tent area just shortly after the ExxonMobil representatives.
Fulton also addressed the employees and asked them to return to work in order that the
situation could be resolved. Fulton also told the employees that under the current
circumstances, ExxonMobil was not willing to negotiate in that manner. Fulton recalled that
when he asked the employees to give him a day to negotiate with ExxonMobil, they
emphatically refused. When he asked them to return to work until he could give them an
answer by noon, the employees again refused. Employee Regina Williams testified that
employees refused to return to work after Fulton asked the employees to give him a day to
work out a resolution and then again when he asked if they would give him until noon. Fulton
testified that he pleaded with the employees, telling them that Respondent needed them, as
did ExxonMobil. Chatagnier recalled that the employees responded to Fulton as they had
responded to him by stating that they weren’t going to return to work until they knew whether
they were receiving a raise.
During the time that Chatagnier and Fulton spoke with the assembled employees,
Swango and the other ExxonMobil representatives remained inside the tent. Swango did not
personally overhear what the employees were saying. Swango testified, however, that
based upon his conversation with Chatagnier and Fulton, it was his understanding that if the
employees did not receive a bonus; they were not going to work.
Swango testified that as he waited inside the tent, it seemed to him that Chatagnier
and Fulton’s discussions with the employees lasted for a couple of hours, with “back-and-
forth” discussions. While the employees were assembled outside, Swango remained inside
the tent, pacing back and forth along the front of the tent. Swango testified that even though
he did not hear what the employees were saying, he observed that things were not going
well and that some of the individuals were becoming agitated. Swango testified that it was
his understanding that the employees were not going to work without getting an increase in
pay. Finally, Swango told Chatagnier and Fulton that they had to remove the employees
from the property and to deal with them outside the refinery. Chatagnier recalled that the
ExxonMobil representatives asked Chatagnier and Fulton to make one last request for the
employees to return to work. Fulton made the additional request. Fulton told the employees
that if they did not return to work, ExxonMobil was going to have them removed from the
facility. Fulton explained that the matter was out of Respondent’s hands and that the
employees either needed to return to work in order for the negotiations to occur or the buses
were going to pick them up to leave the facility.
Although Chatagnier noticed a small change in the employees’ attitudes once they
realized that ExxonMobil was going to call for the buses, the employees did not return to
work. Victor Corral also acknowledged that from the time that the employees presented the
letter to Wall until the time that the employees were bused from the facility, the employees
performed no work.
Swango confirmed that it was he, who instructed ExxonMobil personnel to call for the
transportation buses and to have ExxonMobil security to remove the employees from the
premises. Swango testified that ExxonMobil wanted the employees bused to the parking lot
because they were refusing to work inside the refinery and such action presented a safety
JD(ATL)–25–09
5
10
15
20
25
30
35
40
45
8
issue for ExxonMobil. Swango testified that while he did not speak Spanish, he concluded
that the employees refusing to work were becoming more agitated and that the situation was
deteriorating.
Chatagnier testified that the decision to remove the employees was made solely by
ExxonMobil and not by any representatives of Respondent. Chatagnier confirmed that
Swango ordered the buses and that ExxonMobil’s Security Director Mike Lorenzen initiated
the request that the employees be removed from the refinery. Lorenzen also orchestrated
the process for employees to board the buses. When ExxonMobil’s security personnel
arrived at the tent, they took command of the situation and ordered the employees to form a
single line and make their way from the east side of the tent to the west side of the tent
where the buses were waiting.
Employee Regina Williams recalled that approximately two minutes after she saw
Swango exit the tent, ExxonMobil security arrived. She recalled that ExxonMobil’s security
personnel told the employees that they needed to leave the yard because the number of
people posed a safety hazard. When employees asked were they were going, the security
personnel told them that they were going elsewhere to talk with their contractor because
there were too many people in the tent area. Swango recalled that after he called for the
buses, some of Respondent’s employees approached him and told him that they weren’t
refusing to work. He told them to get with their foremen and go to work.
In response to Swango’s direction, approximately five or six buses arrived to transport
the employees away from the tent area. ExxonMobil representatives asked Respondent to
provide two supervisors for each employee bus. Williams explained that she assumed that
they were going to be bused back to the trailer to have a meeting about the letter. The
buses, however, transported the employees to one of the refinery gates, which led to an
ExxonMobil parking lot. The first bus left the area outside the FCC tent at approximately
8:16 a.m. ExxonMobil’s gate log reflects that the employees began exiting the refinery at
approximately 8:19 a.m. When the employees exited the buses, they passed through the
gate in a single-file line. As the employees exited the facility through the security gate, both
Respondent officials and ExxonMobil officials were present. Fulton testified that
ExxonMobil’s security and turnaround management directed that the employees turn in their
badges, H2S monitors, and company radios when they exited the gate. Fulton testified that
he believed that Swango gave the direction for the ExxonMobil items to be collected from the
employees. Chatagnier testified that he specifically heard Swango give the direction for the
badges, monitors, and radios to be collected from the employees. Chatagnier also testified
that neither he nor Fulton protested the directive because it is ExxonMobil’s facility and they
were going to do what ExxonMobil asked them to do. There is no dispute that some of
Respondent’s managers assisted in collecting the badges, monitors, and radios. Although
Swango did not deny that the items were collected from the employees, he denied that he
personally told Respondent to collect the employees’ badges and monitors. Swango testified
that the employees were refusing to go to work and that is why ExxonMobil removed the
employees from the facility. Although Swango testified that he did not know who actually
requested that the employees turn in their badges and monitors, he acknowledged that the
direction could have come from ExxonMobil’s security subcontractor. Swango confirmed that
a refusal to work by subcontractors’ employees constitutes a reason for ExxonMobil to take
the employees’ badges and limit their access to the premises.
JD(ATL)–25–09
5
10
15
20
25
30
35
40
45
9
6. The employees in the parking lot
After exiting the buses, the employees proceeded through the gates to the
ExxonMobil parking area. The employees did not immediately leave, but, instead, remained
in the parking lot. Victor Salazar testified that the employees remained in the parking lot
because they were waiting for Respondent’s representatives to come and to speak with them
and to see what Respondent was going to do for them. During the time that the employees
remained in the parking lot, some of the employees told Exxon security personnel that they
wanted their work tools from the facility. The employees normally stored their tools outside
the FCC lunch tent in the area where the toolbox meetings were conducted. Swango
recalled that after the employees were bused from the facility, he was notified that some of
the employees requested their tools. Normally, a contract employee must have a gate pass
or authorization from ExxonMobil to remove tools from the refinery. Swango made the
necessary arrangements for the return of the tools and authorized Respondent to pick up the
employee tools and take them to the employees.
7. The employees’ contact with Respondent’s managers and supervisors
While the employees were gathered in the parking lot, the employees continued to
communicate with Respondent’s supervisors personally and telephonically. The record
reflects a wide disparity in the testimony concerning these conversations. The General
Counsel’s witnesses testified concerning conversations in which they either personally
participated or conversations which they overheard involving Wall, Safety Manager Derek
Harvey, Dylan Fulton, or Regional Manager Chad King while they were gathered in the
parking lot.
While he was in the parking lot, Corral had three or four cell phone conversations with
Wall. Corral asserted that in one of the conversations, he asked Wall why their badges had
been taken and “what was going on.” Corral asserted that Wall initially responded that he
didn’t know and he would have to get with Chatagnier and Fulton; who were meeting with
ExxonMobil. Corral acknowledged that during one of the conversations, Wall asked him
what the employees wanted. Corral asserted that he told Wall that the employees wanted a
straight raise of $2.50. Corral asserted that in a later conversation, Wall told him that
Chatagnier agreed and that buses were going to be sent to the parking lot to bring the
employees back into the facility. Corral testified that when the buses did not return, Wall told
him that Fulton would take back only 75 percent of the employees. Wall had allegedly
asserted that 25 percent of the employees had to stay out because ExxonMobil wanted
“somebody punished for what happened.” Corral admitted, however, that during the cell
phone conversation, Wall told him that Respondent wanted the employees to come back to
work.
Employee David Reyna testified that Derek Harvey; Respondent’s Safety Manager,
came to the parking lot while the employees were gathered there. Reyna testified that he
overheard Harvey talk with some employees about the incentive raise that Respondent had
planned to give employees. Reyna asserted that at some point Harvey stated that
employees were going to get a straight raise rather than the incentive pay and that buses
were going to be sent to take employees back into the facility. ExxonMobil’s Ins-and-Outs
Report for March 17, 2008 reflects, however, that Harvey entered the facility at 6:41 a.m. and
did not exit the refinery until 10:41 p.m. on March 17, 2008.
JD(ATL)–25–09
5
10
15
20
25
30
35
40
45
10
Victor Corral, Jose Rangel, and David Reyna all recalled that Regional Manager
Chad King came out to the parking lot while the employees were gathered there. Corral
asserted that King told Eduardo Salinas and him that the employees ought to take the offer
of 75 percent of the employees returning because he had 80 employees coming in to replace
them. Salinas did not testify. When Corral gave an affidavit during the investigation of the
initial charge, he mentioned that King came to the parking lot to talk with employees. He
admitted in his testimony at trial that he never mentioned anything in the affidavit about
King’s telling employees that only 75 percent of employees could return. Rangel and Reyna
did not overhear King’s conversation with any of the employees. Corral also testified that
when Fulton came to the parking lot to talk with employees, he mentioned that only 75
percent of the employees could return because 25 percent had to be punished. Regina
Williams is the only other employee who testified that she heard Fulton state that only 75
percent of the employees could return. She acknowledged, however, that she only heard
bits and pieces of Fulton’s comments to employees while he was in the parking lot. She
further admitted that when she gave a prior affidavit to the Board, she failed to mention
anything about Respondent saying that only 75 percent of the employees could return to
work. Victor Salazar testified that he did not hear any of Respondent’s supervisors or
managers mention anything about a 75/25 percent split for employees returning to work. He
testified that he only heard from fellow employees that only 75 percent of the employees
could return to work.
In addition to the day shift employees who had been bused out of the facility, there
were also a number of night shift employees in the parking lot. Because these employees
were grouped with the day shift employees on the buses, their badges were collected as
well. Swango confirmed that if any of the night shift employees who had not participated in
the work stoppage had turned in their badges, the badges were returned to them for them to
return to work. When David Reyna saw the badges returned to the night shift employees, he
asked Esther Sepulveda, an office employee with Respondent, if he could have his badge as
well. She told him that she could not give it to him until “they” told her to do so. Reyna
recalled that at that point, ExxonMobil security was telling employees that they had to leave
the parking lot because they were terminated. Reyna recalled that Respondent’s Safety
Manager Derek Harvey spoke up and told ExxonMobil security that the employees were
going back to work. ExxonMobil’s security personnel then told Harvey that it was their
understanding that the employees had been fired and they could not return to the facility.
Fulton testified that it was his understanding that the employees were required to
board the buses because ExxonMobil demanded that they leave the facility. He explained
that his plan had been to go to the parking lot to try to negotiate with the employees. He
recalled that when he went to the parking lot, he urged the employees to “please come back
to work.” He told employees that ExxonMobil had indicated that they would sit down and talk
with Respondent, however, they (ExxonMobil) would not simply allow the employees “not to
go to work.” Fulton believed that employees Eduardo Salinas and Juan Trevino were acting
as spokespersons for the employees in the parking lot. When he stated this request to
Salinas and Trevino, they continued with their original demand of the $5 an hour across-the-
board raise and doubling their per diem. Fulton recalled that the back-and-forth discussions
with the employees in the parking lot and with ExxonMobil continued for perhaps 2 to 3
hours. Fulton testified that he never told any employees in the parking lot that they were
fired or that only 75 percent of the employees could return. He also denied hearing King
JD(ATL)–25–09
5
10
15
20
25
30
35
40
45
11
make any statement to the employees that only 75 percent of the employees could return.
8. The employees leave the vacant lot
After the employees had been in the parking lot for over an hour, ExxonMobil security
told the employees that they had to leave ExxonMobil property. The group of employees
then moved to a vacant lot across the street from the refinery. In the process of the
employees moving to the vacant lot, approximately 20 to 30 employees left the group.
Chatagnier denied that Respondent had any involvement in having the employees removed
from the parking lot. At approximately 11:15 a.m., Wall received a call from Corral, asking
him to come outside the refinery to speak with the employees. Chatagnier was present when
Wall received the call and suggested that he accompany Wall to the vacant lot.
ExxonMobil’s In-and-Outs Report for March 17 reflects that Wall and Chatagnier exited the
facility at 11:38 a.m.
Chatagnier estimated that approximately 60 to 70 employees were gathered in the
vacant lot. When Chatagnier spoke to the employees in the group, he spoke with Eduardo
Salinas as their representative. He did so because Salinas was bilingual and he offered to
speak for the group. Chatagnier presumed that he was acting as spokesman for the group
because he translated Chatagnier’s comments to the other employees. The employees
asked Chatagnier about the status of their employment. He reminded them that they had
given Respondent a deadline of noon to “come up with a decision” on their raise and
ExxonMobil had bused them out of the property.
Corral testified that Chatagnier told the employees that he wanted 75 percent of them
to return to work. When asked if Chatagnier identified the employees who would be included
in the 25 percent who would not return, Corral identified Victor Salazar and Jacinto Chapa.
He contended that Chatagnier identified only these two employees as employees who could
not return to work. Corral acknowledged that during the meeting with Chatagnier and Wall,
he understood that he was welcome to return to work. David Reyna recalled that Chatagnier
and Wall told the employees that they could select the 75 percent who would return and it
didn’t matter who was selected. Reyna added that only 25 percent had to remain out in
order for ExxonMobil to see that someone had paid for what happened.
Chatagnier recalled that employees asked him whether ExxonMobil would globally
blackball them and whether ExxonMobil was only going to allow 75 percent of the employees
to return. Chatagnier testified that this was the first that he had heard anything about a 75/25
plan or about their being blackballed by ExxonMobil. Chatagnier testified that he did not tell
the employees that only 75 percent could return. He also added that during the time that
they were in the vacant lot, Wall tried to get the workers to return to work as a whole group.
When asked about ExxonMobil’s blackballing them, he told the employees that would be an
issue that they would have to discuss with ExxonMobil. He also testified that while they were
in the vacant lot with the employees, some of the employees asked if they were fired.
Chatagnier told them that as far as Respondent was concerned, they were not. Chatagnier
also recalled that employees told him that if they were not going to get the pay raise, they
would find other jobs. He specifically recalled that Victor Corral and Eduardo Salinas told
him that they had other jobs lined up.
Although Fulton and Chatagnier denied that they told any employees that only 75
JD(ATL)–25–09
5
10
15
20
25
30
35
40
45
12
percent of the employees could return, Wall acknowledged that he did so. Wall testified that
he told Corral and Salinas that only 75 percent of the employees could return to work
because of an earlier conversation that he had with Chatagnier. Wall did not indicate that he
made this statement to any other employees. He also testified that he did not tell any
employees that they were terminated. Victor Salazar testified that while Chatagnier and Wall
came to the vacant lot and spoke with the employees, he did not speak with them and was
not “directly” present when they spoke. He acknowledged that any information about the
alleged 75/25 return-to-work offer came only from his fellow employees. He did not hear
either Chatagnier or Wall talk about the offer. He testified that the employees did not go
back because the employees believed that 100 percent of the employees should be given
the opportunity to go back to work and not just 75 percent.
Wall and Chatagnier left the vacant lot and returned through the refinery gate at 12:07
p.m. After they left the vacant lot, Wall again telephoned Corral. He asked Corral if any of
the employees wanted to return to work and Corral told him that they did not. Corral did not
testify concerning this last conversation with Wall on March 17 and he did not rebut Wall’s
testimony concerning this conversation. He acknowledged, however, that even after March
17, 2008, he talked with Wall and Chatagnier about returning to work. He testified that he
had declined to return to work because the alleged 75/25 offer was still in place.
9. The employees are removed from the vacant lot
Corral estimated that after the employees remained in the vacant lot for 40 minutes to
an hour, ExxonMobil security and the Beaumont police asked the employees to leave the
vacant lot because the lot was ExxonMobil property. Chatagnier testified that Respondent
did not request the removal of the employees from either the parking lot or from the vacant
lot. After leaving the vacant lot, a number of the employees went to a public park that was
near the refinery. While the employees were in the park, they contacted Michael Doggett, a
representative of the Carpenters union. Doggett came to the park and met with the
employees. Corral recalled that Doggert collected their names and addresses and
suggested that he would help the employees to talk with Respondent and ExxonMobil.
Corral’s narrative description of the employees’ discussion with Doggert is somewhat
ambiguous. It is unclear as to whether the employees told Doggert they were fired or
whether Doggert opined that they were fired.
10. Respondent’s actions following the work stoppage
At 3:42 p.m., Fulton sent an e-mail to Swango with a list of the employees, identifying
them as the employees who walked out during the morning. Fulton explained in the e-mail
that the badges were being turned into ExxonMobil security for “Non Entry” classifications for
the ExxonMobil facilities. Fulton further explained in the e-mail that he had approximately
100 employees who were located at various sites along the Gulf Coast and who had
experience with Respondent. Fulton confirmed that he was in contact with ExxonMobil
security to coordinate expedited site specific training for replacement employees and he had
40 employees on schedule for ISTC training on the following Wednesday. ISTC training is
the training that is required to allow access to the refinery. Fulton assured Swango that
Respondent would over-hire to ensure that adequate manpower requirements were met.
Fulton also explained in the e-mail that Respondent had not been given the opportunity to
resolve the issues with the employees and that it appeared that a number of individuals
JD(ATL)–25–09
5
10
15
20
25
30
35
40
45
13
orchestrated the entire group. He also explained that a large majority of the employees had
been in favor of coming back in if the entire group was allowed. Fulton confirmed that
Respondent was firmly against allowing the organizers re-entry under any circumstances.
11. Employees return to work
Chatagnier recalled that a foreman whose name was Rodriguez did not participate in
the work stoppage and remained at the facility on March 17, 2008. At approximately 9:30
a.m. or 10:00 a.m., he contacted his crew that had been bused out of the facility. He told
them to stay behind in the parking lot. When everything cleared, the employees in his crew
went to the contractor’s entry gate to obtain re-entry to the facility. Chatagnier recalled that
he spoke with Fulton and then Fulton contacted Swango to get permission for their re-entry.
After Respondent obtained permission from ExxonMobil, the employees were given their
badges and allowed re-entry into the facility.
Fulton confirmed that all of the night shift employees returned for their next shift
following the work stoppage. On March 18, 2008, Chatagnier received a telephone call from
Respondent’s Nederland office concerning foreman Antonio Montelongo. Chatagnier was
informed that Montelongo and his crew appeared at the Nederland office, reporting that they
had not wanted to participate in the walkout. They reported that they had done so because
they felt intimidated and they wanted to return to work. ExxonMobil’s gate entry and exit
report (INs and OUTs Report for 3-18-08) reflects that Montelongo and his crew were given
access to the refinery during the afternoon of March 18, 2008.
Fulton testified that when the employees left the refinery on March 17, 2008, there
was no decision made as to their employment status. When the employees had not returned
to work by March 19, Respondent determined that they had abandoned their jobs. On March
19, 2008, Respondent sent separation notices to the employees who they believed to have
engaged in the work stoppage and had not returned to work. On March 19, 2008, Fulton
also sent an e-mail to Swango and other ExxonMobil representatives with a final list of the
employees and their employment status in connection with the March 17, 2008, work
stoppage. The March 19, 2008, list was an update to the original list sent by Fulton to
ExxonMobil on the afternoon of March 17 and referenced above. Chatagnier testified that
the list was prepared and given to ExxonMobil at the request of ExxonMobil. He explained
that ExxonMobil wanted a list of the employees that were not going to return in order that the
employees’ names could be put into their global database for restricted access to any
ExxonMobil facility. Swango also confirmed that he and other ExxonMobil representatives
made the decision that the employees would be placed on a denied-access list and that the
ExxonMobil security subcontractor placed these individuals’ names on the denied access list
for any ExxonMobil property.
Following March 17, 2008, Respondent telephoned many of the employees who had
participated in the work stoppage in an attempt to rehire the employees for the turnaround.
Corral acknowledged that on April 9, 2009, Chatagnier talked with him about coming back to
the job and also offered him an hourly raise. Chatagnier even told him that he would be
protected from layoff and he could work through the end of the turnaround. Corral also
admitted that Chatagnier additionally told him about other employees who had participated in
the work stoppage who was brought back to work during the turnaround.
JD(ATL)–25–09
5
10
15
20
25
30
35
40
45
14
E. Conclusions Concerning the Work Stoppage
Counsel for the General Counsel submits that the overall record proves that
Respondent discharged the workers in retaliation for their protected, concerted activity,
thereby violating Section 8(a)(1) of the Act. Respondent asserts that the General Counsel’s
allegations should be dismissed in their entirety for two reasons. Respondent submits that
first of all, General Counsel has not shown that Respondent terminated the employees in
retaliation for the March 17, 2008, work stoppage. Secondly, Respondent argues that the
work stoppage “was not protected activity because the timing and manner in which the
employees conducted it was abusive, indefensible, excessively disruptive of other workers,
and therefore, unprotected” by Section 7 of the Act.
1. Whether the work stoppage was protected by the Act
The law is well settled that employees may engage in protected work stoppages to
protest their terms and conditions of employment. In its landmark decision in NLRB v.
Washington Aluminum Co., 370 U.S. 9 (1962), the Court upheld the Board’s decision in
finding that an employer unlawfully discharged unrepresented employees for leaving their
work to protest their working conditions. It has become well established that employees who
concertedly refuse to work in protest over wages, hours, or other working conditions are
engaged in “concerted activities” for “mutual aid or protection” within the meaning of Section
7 of the Act. Odyssey Capital Group, L.P., 337 NLRB 1110, 1111 (2002); Jasper Seating
Co., 285 NLRB 550, 551 (1987).
In their post-hearing briefs, both the General Counsel and Respondent refer to the
Board’s ruling in Cambro Manufacturing Co., 312 NLRB 634, 636 (1993). In Cambro, the
Board noted that when an in-plant work stoppage is peaceful, is focused on a specific job-
related complaint, and causes little disruption of production by those employees who
continue to work, employees are entitled to persist in their in-plant protest for a reasonable
period of time. Ibid. Citing Benesight, Inc., f/k/a The TPA, Inc.,5 a 2001 Board decision that
follows Cambro, General Counsel asserts that the employees are protected by Section 7 of
the Act because they briefly engaged in a peaceful work stoppage when they presented their
concerted complaint letter to Respondent. General Counsel maintains that the work
stoppage caused minimal disruption to the other employees who desired to work and
occurred for a reasonable period of time.
Respondent, however, submits that there was extreme disruption caused by the work
stoppage at the refinery. Respondent asserts that the work stoppage impacted nearly 1,000
workers’ ability to accomplish their work that day, and idled hundreds of contractor
employees aside from those employed by Respondent. Fulton testified that because March
17, 2008, was the first day of the turnaround, it was critical for employees to get their tools
and begin work the first thing that morning. Fulton also explained that because millions of
dollars of production was affected by the multiple shut down of the FCC unit, Respondent
and other contractors had only a “small window” of time to accomplish the turnaround.
Respondent provided all the scaffolding for the turnaround. Without Respondent to update
the scaffolding according to OSHA regulations and ExxonMobil’s policies, no other craft

5 337 NLRB 282, 282 (2001).
JD(ATL)–25–09
5
10
15
20
25
30
35
40
45
15
employees or contractors could access any of the temporary work platforms used in the
turnaround. Swango verified that with 13 units out of operation, ExxonMobil lost millions of
dollars a day during the turnaround period. While Swango could not say with certainty that
ExxonMobil lost millions of dollars because of a delay of several hours, he estimated that the
loss was in “that range.” Victor Corral also admitted that the work stoppage was intended to
take place on the first day of the turnaround in order that it would have the maximum impact.
Corral further admitted that the employees knew that by staging the walkout at that time, it
would put Respondent in a “very uncomfortable position” with ExxonMobil and thereby would
result in some sort of wage or compensation increase.
In its argument that the employees only engaged in a brief work stoppage, General
Counsel cites two Board cases in which the work stoppage was found to have lasted a
reasonable time. In Benesight, Inc., f/k/a/ The TPA, Inc., 337 NLRB 282 (2001), a 20-minute
work stoppage was found to be protected and in HMY Roomstore, Inc., 344 NLRB 963
(2005) the protected work stoppage lasted for less than an hour. I am also mindful that in a
very recent decision,6 the Board found a concerted work stoppage to be protected when the
employer began suspending employees for their failure to return to work or go home after
only an hour. Relying upon the recall of employee witnesses,7 Counsel for the General
Counsel submits that the extent of the work stoppage in this instance was reasonable,
asserting that the work stoppage lasted for approximately only 30 minutes. Had the
employees presented their concerted complaint letter to the Respondent and only delayed
going to work for only a 30-minute period, such argument could be given greater weight.
This case is somewhat unique, however, in that there was a significant and independent
intervening occurrence. Prior to Respondent reaching a resolution of the matter with the
employees, ExxonMobil independently determined that the employees’ refusal to begin work
posed a safety threat to its operation and removed the employees from ExxonMobil property.
On their own initiative or in response to the requests of Wall, Chatagnier, or Fulton, the
employees had to specifically request to return to the work site after their removal by
ExxonMobil. As evidenced by what occurred with foremen Rodriguez and Montelongo,
employees requesting to return to the refinery were allowed to do so after Respondent
received the necessary authorization from ExxonMobil. The majority of the employees,
however, did not request to come back into the facility. Wall and Chatagnier left their final
meeting with the employees and returned to the refinery at 12:07 p.m. Wall testified without
dispute that following his departure from the vacant lot, he telephoned Corral one last time
that day to ask if any of the employees wanted to return to work. Corral rejected his request.
Thus, the record evidence reflects that the work stoppage on March 17, 2008, continued as
long as 5 hours after the employees presented their letter to Wall.
The facts of the Cambro case discussed above reflect that the alleged 11
discriminatees in that case ceased working between 2:30 a.m. and 3:00 a.m. on the day in
question. The employees declined to return to work until they spoke with the plant manager
or the owner. The employees were aware that neither official normally appeared at the plant
during that particular shift. The supervisor urged them to return to work, explaining that

6 Fortuna Enterprises, 354 NLRB No. 17 (April 30, 2009).
7 Employee witnesses gave various estimates of the length of time between the presenting of
the letter and their removal by ExxonMobil. ExxonMobil’s electronic exit log reflects that employees
began passing through the entry gate at 8:19 a.m., approximately an hour after they would normally
have begun their work.
JD(ATL)–25–09
5
10
15
20
25
30
35
40
45
16
either the plant manager or the owner would arrive early in the morning for a meeting with
them. The employees declined to do so. Although the employees were again encouraged to
either return to work or to clock out and return at 7:30 a.m. for a meeting with the plant
manger the employees continued their work stoppage. The plant manager arrived at the
plant at 6:00 a.m. and conferred with the supervisor and then with the employees. At the
conclusion of his meeting with the employees, he suspended them for failing to follow
instructions. In deciding the case, the Board noted that the work stoppage was peaceful,
focused on several specific job-related complaints, and caused little disruption of productive
for those employees who continued to work. The Board further noted that in such
circumstances, the employees were entitled to persist in their in-plant protest for a
reasonable period of time. The Board found, however, that the work stoppage exceeded a
reasonable period. Even though the employees were given assurances that the plant
manager would meet with them and they would be able to present their grievances, they
nevertheless continued their work stoppage. The Board found that the employees’ failure to
return to work or to leave the plant after the supervisor’s second directive resulted in the
forfeiture of the Act’s protection. Cambro at 636. In a more recent case8 in which the
majority relied upon Cambro, the Board found that an employer lawfully discharged 83
employees who refused to vacate its parking lot and who engaged in a peaceful work
stoppage to protest their terms and conditions of employment. The Board noted that there
were a number of factors that weighed in favor of the employees’ rights. These factors
included the fact that the employees engaged in a peaceful work stoppage at all times and
there was no evidence that they ever tried to block ingress or egress to the employer’s
facility. They did not disrupt the employer’s operation or prevent other employees from
performing their duties. The employees did not seek to deprive the employer of the use of its
property and they were at all times on the outside of the employer’s facility, rather than the
inside. The employees congregated together to present their work-related complaints the
employer in a concerted fashion and the employees were unrepresented without access to
any formalized grievance procedure. Notwithstanding the factors that weighed in the
employee’s favor, the Board nevertheless gave greater weight to the employer’s property
interests based upon the circumstances of the case.
In Waco, Inc., 273 NLRB 746, 746 (1984), the Board affirmed the judge in finding that
an employer lawfully discharged nine unrepresented employees who refused to begin their
work after arriving at the employer’s facility. The employer offered to meet with the
employees individually to address their grievances; however, he declined to participate in a
mass meeting. The employees did not begin their work and were terminated 3½ hours after
the employer offered to meet with them individually. In dismissing the allegation that the
discharge of these employees violated the Act, the Board noted: “Although employees who
are unrepresented and are working without an established grievance procedure have a right
to engage in spontaneous concerted protests concerning their working conditions, the
precise contours within which such activity is protected cannot be defined by hard-and-fast
rules. Instead, each case requires that many relevant factors be weighed.” Id. at 746. The
Board’s reasoning follows the Supreme Court in its earlier decision in Hudgens v. NLRB, 424
U.S. 507, 522 (1976), in which the Court noted that the “locus of the accommodation”
between Section 7 rights and private property rights “may fall at differing points along the
spectrum depending upon the nature and strength” of the respective rights in any given

8 Quietflex Manufacturing Co., 344 NLRB 1055 (2005).
JD(ATL)–25–09
5
10
15
20
25
30
35
40
45
17
context. Id. at 522.
2. Whether the employee’s were terminated on March 17, 2008
Counsel for the General Counsel asserts in his brief that the present circumstances
are distinguishable from those in Cambro above. Counsel for the General Counsel argues
that in the instant case, the employees did not refuse to leave the facility and did not refuse
to return to work. In asserting that employees did not refuse to go to work, General Counsel
relies upon the testimony of David Reyna and Victor Corral. Reyna testified that he did not
hear either Fulton or Chatagnier tell the employees to return to work while Respondent tried
to work out a solution with ExxonMobil. In explaining why he did not hear such a statement,
he added that there were a “whole bunch of crew people” assembled in the group. Corral
admitted that when Fulton spoke with the employees, he told them that he needed to talk
with ExxonMobil about the letter. Corral asserted, however, that Fulton never told the
employees to go to work while he spoke with ExxonMobil. During cross-examination, Corral
was asked why the employees were milling about outside the lunch tent instead of going to
their assigned work stations if they had not refused to go to work. In response Corral
contended that the employees could not go to their assigned work area because they had
not had their toolbox meeting. In contrast to Corral’s testimony, however, David Reyna,
Victor Salazar, and Regina Williams testified that the toolbox meeting did, in fact, occur on
the morning of March 17, 2008. Later in his testimony, however, Corral admitted that Fulton
asked the employees to return to work prior to ExxonMobil’s busing the employees from the
facility. Regina Williams also admitted that Fulton asked employees to go to work and he
told them that he would see what he could do in response to their letter. In her sworn
affidavit to the Board, Williams acknowledged that Respondent asked the employees to give
Respondent a day to work out a solution and the employees said “No.” She added that
Respondent then asked to have until noon to work out a solution and the employees also
replied “No.” Based upon the entire record, I find the testimony of Reyna, Salazar, and
Williams in this regard to be more credible than that of Corral with respect to whether
employees had participated in the toolbox meeting. As discussed more fully below, Corral’s
testimony was not only inconsistent, but the testimony appeared in parts to be somewhat
contrived.
Aside from the fact that both Corral and Williams admitted that Fulton asked
employees to return to work prior to ExxonMobil’s removing them from the property, it is
incredible that Fulton would not have done so. This entire scenario occurred on the first day
of a very large and costly turnaround for ExxonMobil. Respondent was given only a limited
time to construct and certify the readiness of scaffolding that was to be used for the
inspection and repair of 13 refinery units, including its third largest fuel-producing refinery unit
in the United States. In addition to Respondent’s employees, there were 1,000 additional
employees who were scheduled to work on the maintenance turnaround for the other
maintenance contractors. When faced with the fact that almost all of its day shift employees
were not reporting to their scheduled work assignments, it would have been inconceivable
that Respondent would not have asked the employees to go to work until Respondent could
work out a solution to the problem. With ExxonMobil representatives standing just inside the
tent waiting for their turnaround project to begin, it is unimaginable that Fulton or Chatagnier
would have spoken with the employees about anything else other than their returning to
work. Although Victor Salazar testified that he did not recall hearing Fulton ask the
employees to go back to work, he admitted that he heard from other employees that Fulton
JD(ATL)–25–09
5
10
15
20
25
30
35
40
45
18
had asked the employees to do so.
Additionally, there is no dispute that after the employees were bused to the parking
lot, Fulton went out to the parking lot and spoke with the employees. When ExxonMobil
removed the employees from the parking lot, Wall and Chatagnier went to the vacant lot to
talk with the employees. And finally, even after Wall and Chatagnier left the vacant lot, Wall
telephoned Corral again to talk about the employees’ returning to the facility. The undisputed
evidence of Respondent’s supervisors reaching out to the employees even after they left the
facility totally contradicts the employees’ assertions that they were never asked to return to
work. Additionally, I note that the credible record evidence reflects facts not that dissimilar
from those in Quietflex Manufacturing Company involving the lawful discharge of work
stoppage employees even though they were outside the employer’s facility.
3. Whether the record establishes a prima facie case of discriminatory discharge
Under its landmark decision in Wright Line, 251 NLRB 1083, (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied, 455 U.S. 989 (1982), the Board adopted a framework to
evaluate alleged 8(a)(3) violations when the case turns on the employer’s motive. In the
instant case, General Counsel alleges that the alleged discriminatees were discharged in
violation of Section 8(a)(1) of the Act and because of their having engaged in protected
concerted activity. In its decision in Phoenix Transit System, 337 NLRB 510, 510 (2002), the
Board explained that a Wright Line analysis is not required in cases where the it is
undisputed that the employer took an adverse action against an employee for his or her
engaging in protected concerted activity and the action is alleged as a violation of 8(a)(1) of
the Act. As discussed above, Respondent not only disputes that the employees engaged in
protected concerted activity, but also disputes that they were terminated for their actions.
Thus, inasmuch as the present discharge issue turns on motive, the Wright Line analysis
may nevertheless be used. Alton H. Piester, 353 NLRB No. 33, slip op. at 6 (2008).
To establish a violation under Wright Line, the General Counsel bears the burden of
showing by a preponderance of the evidence that the employees’ protected concerted
activity was a motivating or substantial factor in an adverse employment action. The usual
elements that are required to make such a showing are protected activity by the employee,
employer knowledge of that activity, animus on the part of the employer, as well as actual
adverse action toward the employee. Willamette Industries, Inc., 341 NLRB 560, 562 (2004).
Once the General Counsel has demonstrated such factors, the burden then shifts to the
employer to show that it would have taken the same action, even in the absence of the
employee’s protected activity. Manno Electric, 321 NLRB 278, fn. 12 (1996). In the instant
case, there is an issue with respect to all of the elements that are necessary to establish a
prima facie case. Respondent not only asserts that it did not terminate the employees in
response to their work stoppage, but Respondent also asserts that the employees were not
engaging in protected activity.
In light of the total record evidence, Respondent’s argument has merit. Arguably,
when the employees presented their letter to the Respondent on the morning of March 17,
2008, the employees were engaged in protected concerted activity that would otherwise be
protected by the Act. While the employees were described as frustrated and agitated, there
is no evidence that they engaged in any physical violence or overtly disruptive behavior that
would have initially forfeited the protection of the Act. Timekeeping Systems, Inc., 323 NLRB
JD(ATL)–25–09
5
10
15
20
25
30
35
40
45
19
244, 248 (1997).
Credible record evidence reflects, however, that Respondent took no adverse action
toward the employees in response to their engaging in the protected concerted activity.
There is no dispute that both Fulton and Chatagnier spoke with the assembled employees
and assured the employees that Respondent would speak with ExxonMobil in response to
the employees’ demands. There is also no dispute that, as the ExxonMobil official with
responsibility for the turnaround procedure, Swango made the decision that the employees
could no longer remain on ExxonMobil property as they posed a safety risk to the facility.
Furthermore, there is no evidence that Swango did so at Respondent’s urging or suggestion.
Respondent’s desire for the employees to return to their jobs is clearly demonstrated by the
fact that Fulton, Chatagnier, Wall, and King went out to talk with the employees after
ExxonMobil ejected the employees from the facility.
Although Respondent’s supervisors and managers assisted ExxonMobil security in
the orderly evacuation of the employees and the retrieval of badges and monitors, they did
so in compliance with ExxonMobil’s exit procedure for the employees. The fact that
Respondent’s supervisors assisted ExxonMobil with the employees’ exit does not support a
finding that in doing so, Respondent terminated the employees. Had the employees been
sent out of the refinery because they were terminated, there would have been no reason for
Fulton, Chatagnier, Wall, or King to go outside the refinery to meet with the employees.
Additionally, employee Reyna’s testimony contradicts the assertion that Respondent fired the
employees. Although ExxonMobil’s entry and exit log does not reflect that Safety Manager
Harvey ever left the facility during the morning of March 17, 2008, Reyna nevertheless
recalled that Harvey came to the parking lot. Reyna testified that when ExxonMobil security
told the employees that they were fired, Harvey contradicted security, asserting that they
were not fired. Although it appears that Reyna was mistaken as to who made this statement,
Reyna obviously associated the comment with Respondent’s management and may have
erroneously credited Harvey with the statement, rather than one of the other managers who
came to the parking lot.
Although there is no dispute that Respondent issued termination notices to
employees on March 19, 2008, Respondent did so because there was no indication that the
employees were going to return to work. General Counsel attributes much significance to
Fulton’s e-mail to Swango on March 17, 2008, after the work stoppage. Although Fulton
identified for Swango the employees who participated in the work stoppage, there is nothing
to indicate that Respondent had already terminated the employees or that they were
terminated for having participated in the work stoppage. Additionally, there is nothing to
indicate that Respondent was terminating 25 percent of the employees as asserted by some
of the employee witnesses.
The record also reflects that Victor Corral was one of the principal participants in the
work stoppage. The fact that an undisputed supervisor engaged in a work stoppage of this
magnitude might be sufficient, in itself, to provoke an employer’s animosity. Clearly, this did
not appear to be the situation in the instant case. Corral admitted that he understood that he
could return to work on March 17. He did not rebut Wall’s assertion that Wall called him after
12:07 p.m. to ask one last time if any of the employees wanted to return to work. Corral also
acknowledged that Respondent continued to maintain contact with him after he left the
facility on March 17, and even offered him a raise if he would return to work. Although I note
JD(ATL)–25–09
5
10
15
20
25
30
35
40
45
20
that the date of the job offer occurred after the filing of the charge, Respondent’s overall
interaction with Corral was not consistent with the kind of animus necessary to demonstrate
a discriminatory termination.
Thus, I do not find that the General Counsel has established by a preponderance of
the evidence that the employees’ work stoppage was a motivating factor in the employees’
discharge. The evidence reflects that ExxonMobil independently removed the employees
from the refinery with no direction from Respondent. There is no evidence that ExxonMobil
was a joint employer with Respondent or even acted as an agent of Respondent.
Despite the urging of Fulton, Chatagnier, and Wall, the employees did not attempt to
return to the facility. One of the more conflicting areas of testimony among all the witnesses
is the portion of testimony involving Respondent’s alleged statement that only 75percent of
the employees could return to work. Only Corral and Regina Williams testified that Fulton
told employees in the parking lot that only 75 percent of the employees would be allowed to
return to work. Employee David Reyna denied however, that Fulton ever came out to the
parking lot to talk with employees. Victor Salazar didn’t recall that any management officials
came out to talk with employees after their removal from the facility. He also recalled that
employees were gathered in various separate areas outside the facility.
Both Chatagnier and Fulton denied that they ever told employees that only 75 percent
of the employees could return to work. Swango also denied telling Fulton or Chatagnier that
ExxonMobil would only allow 75 percent of the employees to return to the facility. Wall is
Respondent’s only supervisor who admits talking with employees about the 75/25 ratio.
Although Wall asserts that he told Corral and Salinas that only 75 percent of the employees
would be allowed to return to their jobs, there is no evidence that Wall repeated this to any
other employees. Corral testified that Wall told him about the 75/25 ratio during a cell phone
conversation. Wall, however, denied that he told Corral about the ratio during the cell phone
conversation and asserts that the conversation occurred when he spoke with Corral in the
vacant lot.
Corral testified that when Chad King came out to the parking lot, he mentioned that
the employees should take the offer of 75 percent of the employees going back to work.
David Reyna, however, denied that Chad King made this statement to employees. Jose
Rangel did not hear King mention that only 75 percent of the employees could return.
Although David Reyna testified that Respondent’s Safety Manager Derek Harvey said that
only 75 percent of the employees could go back to work, ExxonMobil’s gate entry records
reflect that Harvey never left the facility during the entire day on March 17, 2008.
Based upon the entire record testimony, it is apparent that there were discussions
among employees concerning the alleged return of only 75 percent of the employees. The
fact remains, however, that this rumor originated with the lowest ranking supervisor who
spoke with the employees on March 17, 2008. There is no credible evidence that either
Fulton or Chatagnier ever presented this option to the employees. Of the five employees
who testified, only Corral and Williams attribute this statement to Fulton. Additionally, I note
that while Corral asserted that Chatagnier said that not everyone could return, he allegedly
only identified Victor Salazar and Jacinto Chapa as the two employees who would not be
allowed to return. Although David Reyna asserts that Fulton and Chatagnier said that only
75 percent could return, he contends that they told employees that they could select the 75
JD(ATL)–25–09
5
10
15
20
25
30
35
40
45
21
percent who would come back and the 25 percent who would not. The allegation that
Respondent would allow employees to choose who would be terminated is simply not
credible. Overall, the record reflects that while such a rumor may have initiated with a low
level supervisor, the credible record evidence does not support a finding that Respondent
terminated the employees on March 17, 2008, as alleged. I found both Fulton and
Chatagnier’s testimony to be consistent, plausible, and overall credible. Wall’s testimony
was contradictory in part. Although he alleges that he told two employees that he had heard
that only 75 percent of employees could return to work, he also testified repeatedly that he
urged Corral and others to return to work. The idea that Chatagnier and Fulton would simply
leave it up to the employees to determine who retained their jobs and who did not is not
plausible. While there was clearly some confusion among the employees with regard to their
employment status, the confusion appeared to have resulted from rumors and mis-
information circulating among the disorganized group of employees. The confusion was
further exacerbated by the fact that employees were gathered in separate groups and
conversing in more than one language. A number of the employees obviously depended
upon their fellow employees to not only communicate with, but also to speak on their behalf,
with Respondent’s non-Spanish speaking officials.
In contrast to the variation in testimony concerning the limitation of 75 percent of the
employees returning, the overall testimony confirms that employees were not told that they
were fired. Regina Williams testified that Fulton and Chatagnier never told employees that
they were fired. David Reyna also denied that Chatagnier told employees that they were
fired. Although employees may have acted on mis-information and rumor, there is
insufficient evidence to show that Fulton and Chatagnier told employees that they were fired
when they spoke with them on March 17, 2008. Based upon the total record evidence, I
credit the testimony of Fulton and Chatagnier. Additionally, Corral admitted that when
Fulton, Chatagnier, and Wall spoke with employees inside the facility, they never told
employees that they would be fired if they did not go to work. Corral also acknowledged that
even when Wall came to the vacant lot to speak with the employees, he did not tell them that
they were fired. Corral further admitted that when he talked with Wall by telephone from the
parking lot, Wall indicated that Respondent wanted the employees to return to work. Thus,
the total record evidence does not support a finding that Respondent terminated the
employees on March 17, 2008, as alleged.
Moreover, the record evidence also supports a finding that at some point in time and
prior to the employees’ termination on March 19, 2008, the work stoppage, which began as
protected, concerted activity, lost the protection of the Act. Accordingly, the evidence is not
sufficient to show that the employees’ participation in the work stoppage was a motivating
factor in the employees’ discharge and I find no merit to the allegation that these employees
were discriminatorily discharged under Section 8(a)(1) of the Act.
F. Supervisory Status of Respondent’s Foremen
1. The parties’ positions
The parties do not dispute that as general foremen, Victor Corral and Jared LaJeune
are excluded from the protection of the Act as supervisors. Respondent asserts, however,
that the foremen on the turnaround are also supervisors under Section 2(11) of the Act. The
General Counsel, however, submits that Alfonso Garcia is a foreman and not a general
JD(ATL)–25–09
5
10
15
20
25
30
35
40
45
22
foremen and that he, along with all the other foremen, are not supervisors and are fully
protected by the Act.
2. The prevailing case law
Under Section 2(11) of the Act, a supervisor “means any individual having authority,
in the interest of the employer, to hire, transfer, suspend, layoff, recall, promote, discharge,
assign, reward, or discipline other employees, or responsibly to direct them or to adjust their
grievances, or effectively to recommend such action, in connection with the foregoing the
exercise of such authority is not of a merely routine or clerical nature, but requires the use of
independent judgment.” The enumerated powers in Section 2(11) are to be read in the
disjunctive. Possession of one or more of the stated powers, however, does not convert an
employee into a 2(11) supervisor unless the exercise of such authority is not of a merely
routine or clerical nature, but requires the use of independent judgment. Adco Electric Inc.,
307 NLRB 1113, 1120 (1992). The Board does not construe supervisory authority too
broadly because the employee who is deemed a supervisor loses his protected right to
organize. The Board has long held that the burden of proving that an individual is a
supervisor is placed on the party alleging that supervisory status exists. Dean & Deluca New
York, Inc., 338 NLRB 1046, 1047 (2003); Masterform Tool Company, 327 NLRB 1071, 1071
(1999). In Oakwood Healthcare, Inc., 348 NLRB 686 (2006), and in accord with the
Supreme Court’s decision in NLRB v. Kentucky River Community Care, 532 U.S. 706 (2001),
the Board reiterated that the burden of proving supervisory status rests on the party asserting
it. Additionally, the party seeking supervisory status must establish it by a preponderance of
the evidence. Dean & Deluca, 338 NLRB at 1047; Bethany Medical Center, 328 NLRB 1094,
1103 (1999).
3. Respondent’s rationale and the record evidence
(a) Job description and organizational status
Respondent submits that as immediate supervisors for all members of the crews, the
foremen “shoulder the overall responsibility for erection of scaffolding at the job site.” In
asserting that the foremen’s responsibility equates to supervisory authority, Respondent
points to the foremen’s job description and to the fact that foremen are included as
supervisors on the Respondent’s organizational chart. Respondent’s job description for its
foremen specifies that the foremen are responsible for directing and supervising “lead
carpenters, carpenters, and carpenter helpers in the proper, timely, and safe installation of
scaffolding on the jobsite.” The job description also provides that the foremen will train and
instruct the crew members and know and enforce all company policies and procedures as
well as all safety regulations on the job.
Although the portions of the job description upon which Respondent relies may
describe duties that could support a finding of supervisory status, such description alone is
not dispositive of the exercise of such duties. A finding of supervisory status cannot be
based solely upon a job description. Like a job title, the job description is not determinative
of supervisory status. The issue is whether the individual actually possesses any of the
powers enumerated in Section 2(11) of the Act. The Western Union Telegraph Co., 242
NLRB 825, 826 (1979). Through the testimony of Fulton, Respondent offered into evidence
a copy of its organizational chart. Fulton testified that the document was prepared prior to
JD(ATL)–25–09
5
10
15
20
25
30
35
40
45
23
Respondent’s hiring its full complement of workers for the turnaround. The chart lists nine
individuals in the organizational “box” beneath Wall’s name and identifies those individuals
as foremen. Neither Victor Corral nor any other designated foreman on the chart is
designated as a “general foremen.” Additionally, there is a listing of five individuals identified
only as “yard crew” under the authority of the manager for QA/QC Inventory. Although
Fulton confirmed that the chart reflects the supervisory or management team for Respondent
at the Beaumont facility, the arrangement of the chart appears to place the foremen on the
same level as the “yard crew.” Additionally, I note that tables of organization and job
descriptions have not been found to be sufficient to vest supervisory powers. NLRB v.
Security Guard Service, Inc., 384 F.2d 143, 149 (5th Cir. 1967). As the Fourth Circuit Court
of Appeals pointed out in a very early decision, “It is equally clear that the employer cannot
make a supervisor out of a rank and file employee simply by giving him the title and
theoretical power to perform one or more of the enumerated supervisory functions. The
important thing is the possession and exercise of actual supervisory duties and authority and
not the formal title.” NLRB v. Southern Bleachery & Print Works, Inc., 257 F.2d 235 (4th Cir.
1958), cert. denied 359 U.S. 911 (1959). Accordingly, I do not find the job description for
foremen or the organizational chart to be dispositive of supervisory status.
(b) Authority to hire, fire, and discipline employees
While authority to hire and fire employees is not a requisite element of supervisory
status,9 the exercise of such authority is certainly determinative in establishing supervisory
status. The instant record contains no evidence that foremen either hire or fire other
employees and foremen David Reyna and Jose Rangel both testified that they did not have
the authority to hire employees or to discipline employees. Although Wall testified that
foremen have the authority to discipline employees for engaging in misconduct, he gave no
specific examples of their having done so. Foremen Reyna testified that if he saw a crew
member failing to ‘tie off” before getting on scaffolding, he could correct the worker to work
safely and he would tell the worker to tie off before getting on the scaffolding. Respondent
asserts that such authority supports a finding that foremen have the authority to discipline
crew members. I note, however, that while Reyna acknowledged that he could tell a crew
member that he needed to tie off without first getting the permission of the general foreman;
Reyna also testified that his doing so would involve only a minor safety violation that required
a reminder to the crew member to do the right thing before mounting the scaffold.
Foremen Rangel also testified that if he observed a crew member engaging in a very
serious safety violation, he had the right to go to the general foreman and report the violation.
Although Rangel asserted that he could recommend that the person be removed from the job
if the employee were “violating safety rules left and right,” there is no evidence that he has
done so or evidence to show whether a general foreman has acted on the recommendation
without independent investigation. Fulton also asserted that if a foreman observed a crew
member working in an unsafe manner, he had the authority to pull the crew member aside
and talk to him about his work. Fulton testified that a foreman could counsel a crew member
about their work habits or safety issues without getting advance permission from the general
foreman. Fulton further asserted that a foreman could give the employee a verbal warning or
a written reprimand. Respondent presented no documentary evidence, however, to

9 Angeli’s Super Valu, 197 NLRB 85 (1972).
JD(ATL)–25–09
5
10
15
20
25
30
35
40
45
24
demonstrate that foremen have issued verbal or written warnings to other employees.
(c) The daily toolbox meetings
Respondent asserts that foremen generally led the daily toolbox safety meetings, with
input from all crew members. Respondent presented a number of documents that were
identified as daily safety meeting sign-in sheets. The individual sheets identify the date, the
date of the week, and the shift. The sheets contain 30 separate lines for employees to list
their printed name, classification, signature, badge number, and the time at which they
signed the sheet. The name of the foreman is also completed at the top of the sheet. On the
individual sheets, the foreman identified at the top of the sheet is also included in the listing
of employees, along with signature, time of signing in, and other requisite information. Fulton
testified because the foremen identified on the sheet had the highest level classification, they
would have been the person who would have conducted the safety meetings. Fulton
asserted that if a general foreman conducted the meeting, he would have been required to
sign the sheet as well. Foreman Reyna, however, testified that he had never conducted a
safety meeting. He asserted that the forms were merely a means by which the general
foremen determined who was present that day and the forms were not used to document the
safety meeting. Reyna explained that each contractor held their own toolbox meetings and
that the meetings were conducted by the general foremen and never by the foremen.
Foremen Rangel additionally testified that the general foreman conducted the toolbox
meetings.
Despite Respondent’s assertions that the foreman led these meeting, Respondent
presented no evidence to show that the foremen independently selected the topics or
information to be discussed. There is, in fact, nothing to show that foremen conveyed any
information to employees that had not already been covered in the larger contractor-wide
meeting with ExxonMobil or that had not been received by the foreman from the general
foremen. A foreman’s simply passing along or communicating assignments or information
that has been directed by the general foreman or higher management does not reflect the
type of discretion indicative of supervisory status. Somerset Welding & Steel, Inc., 291
NLRB 913, 914 (1988). Thus, even if the foremen held the highest level classification during
these meetings, there is insufficient evidence to show that they exercised any independent
judgment in presenting assignments or safety information to the other employees.
(d) Recommendations and evaluations
In asserting that its foremen have the authority to recommend the advancement or
promotion of their crew members, Respondent relies upon Fulton’s testimony concerning
evaluations. Fulton testified that foremen have the authority to complete employee
evaluations and are required to do so every 90 days. Although Turnaround Supervisor Wall
testified that foremen have the authority to conduct employee evaluations, he could not give
any specific examples of their having done so. During direct examination, General Foreman
Victor Corral testified that Respondent’s foremen did not conduct employee evaluations.
During cross-examination, however, Corral confirmed that foremen prepare evaluations on
their crew members and the evaluations are used to move an employee into a higher pay
classification. During redirect examination, Corral testified that he was unaware of any of the
alleged foremen having prepared an evaluation of other employees. Both Reyna and Rangel
testified that they did not have the authority to conduct employee evaluations. Despite all of
JD(ATL)–25–09
5
10
15
20
25
30
35
40
45
25
the contrasting information with respect to foremen evaluations, Respondent submitted no
documentary evidence to support its assertion that foremen conduct employee evaluations.
Wall asserted that foremen have the authority to approve an employee leaving the
work site as an “early out.” Corral, however, testified that an employee’s request for an early
out must be reported to the general foreman; who in turn reports the request to Wall for a
final decision. On cross-examination, Corral explained that he would take into account the
foreman’s recommendation or information about whether the employee is dispensable to the
job and then he would formulate a recommendation to Wall based upon his general
knowledge of all of the work being performed on the job. On redirect examination, however,
Corral denied that he made any recommendation to Wall when he reported an employee’s
request for an early out.
Corral acknowledged that if a project is winding down and some of the employees
must be laid off, he would get feedback from the foremen about the employees’ skills in order
to recommend employees for layoff. Corral was not asked to provide any specific examples
of when he has done so and Respondent did not provide documentation to support such
recommendations. Fulton testified that if an employee has more skills than necessary for the
job for which he was hired, the foreman could go to the general foreman and superintendent
and recommend the employee for a higher classification. Although Fulton asserted that this
happens often during a turnaround, he provided no specific examples of when this has
occurred.
(e) Assignment and direction of work
Respondent asserts that the “foremen were responsible for assigning each crew
member to the particular duties they needed to perform to build, modify, or demolish a
particular scaffold.” Turnaround Supervisor Wall testified that the general foremen spend
their day rotating from foreman to foreman to review the progress of each crew. He further
asserted that the foremen are responsible for directing and assigning work to the individual
crews. General Foremen Victor Corral testified that once a general foreman approved any
modifications for particular scaffolding, the general foreman assigned the lead carpenter, the
carpenter, and the carpenter’s helper to their respective duties to accomplish those
modifications. Corral acknowledged that it was the foreman’s responsibility to oversee that
the modification was performed correctly. Regina Williams was hired as carpenter’s helper
for the 2008 turnaround. She testified that the foreman not only gave the work assignments
to the crew members, but also checked on the progress of the work.
Wall testified after receiving the work schedule from the general foremen, the foremen
then explain the daily work schedule to the three-man crews. Wall also asserted that in
carrying out the work schedule, the foreman could transfer employees from one crew under
his direction to another crew under his direction without getting permission from the general
foreman. The foreman is responsible for deciding the order of the work performed by each
crew. Wall also testified that if an ExxonMobil contractor or a representative of ExxonMobil
requested a modification in a scaffold directly from the foreman, the foreman could make the
modification without getting the approval of the general foreman. The foreman would then
instruct the crew as to how to effect the modification.
Respondent submits that the foreman’s supervisory responsibilities involve
JD(ATL)–25–09
5
10
15
20
25
30
35
40
45
26
completing daily activity reports (DAR’s.) The DAR’s record the hours worked by employees
on the crew and also all activities that the crew performs each day. Respondent asserts that
the DAR’s are “some of the most important documents that Atlantic maintains on a job site,
and, therefore, are entrusted only to supervisors at the foreman level and above to
complete.” The DAR’s submitted into evidence are captioned “Beaumont Refinery Daily
Activities Report.” The form contains the name of the contractor for ExxonMobil along with
the date of the activity. The form contains the names and signatures of employees, along
with the total number of hours worked by each employee for the specific date. There is also
a section of the form for a narrative description of the daily work completed, scope changes,
delays, and revisions. At the bottom of each form, there is a line for the signature of the
contract foreman and the ExxonMobil contract representative. General foreman Victor
Corral, along with foremen Reyna and Rangel, all testified that all of the entries listed under
“daily work completed” on the forms were based on work assignments give by the general
foremen to the foremen. Fulton also acknowledged that if the foremen needed approval of
the general foreman or if the work was completed at the general foreman’s direction, the
general foreman would not sign the DAR and there would be no indication on the form itself
that the general foreman approved or assigned the work. Wall also testified that a general
foreman, a foreman, or “anyone” could fill out the forms. He explained that he also
completes the forms on occasion. Accordingly, while a foreman’s name and signature may
appear on the form, the record is insufficient to show that the work described or the hours
worked by the listed employees was solely authorized or directed by the foremen whose
names appear on the form.
4. Conclusions concerning the supervisory status of foremen
There is no dispute that the individual crew members received their work assignments
from the foreman assigned to their crew. The evidence reflects that the foreman is the
conduit for instructions to employees from the general foreman as well as from ExxonMobil
and their other contractors. There is no evidence that employees receive assignments,
notice of necessary modifications, or even correction from individuals other than the foremen.
The issue, however, is the extent to which the foremen exercise the requisite independent
judgment in making assignments and directing the work of the individual crew members.
On September 29, 2006, the Board decided three cases which dealt specifically with
the issue of whether a purported supervisor either “assigns” or “responsibly directs” other
employees.10 Using the Board’s interpretation in Oakwood Healthcare, Inc., the authority
“responsibly to direct” exists when an individual decides “what job shall be undertaken next
or who shall do it … provided the direction is both ‘responsible’ … and carried out with
independent judgment.” Oakwood Healthcare at 691. In its interpretation of “responsible”
direction, the Board explained” the person performing the oversight must be accountable for
the performance of the task … such that some adverse consequence may befall the one
providing the oversight if the tasks performed are not performed properly.” Id at 692.
Accordingly, “to establish accountability for responsible direction, it must be shown that the
employer delegated to the putative supervisor the authority to direct the work and the
authority to take corrective action, if necessary. It also must be shown that there is a

10 Oakwood Healthcare, Inc., 348 NLRB 686 (2006); Croft Metals, Inc., 348 NLRB 717 (2006);
and Beverly Enterprises-Minnesota, Inc. d/b/a/ Golden Crest Healthcare Center, 348 NLRB 727
(2006).
JD(ATL)–25–09
5
10
15
20
25
30
35
40
45
27
prospect of adverse consequences for the putative supervisor if he/she does not take these
steps.” Id., at 692.
While the record may reflect that the foremen are responsible for organizing and
executing the work, Respondent has presented no evidence of “actual accountability” to
prove that the foremen “responsibly direct” the work of the crews. There is no documentary
evidence to show that any foremen has been disciplined, demoted, or in any way adversely
affected by his performance in directing the individual crew members. Golden Crest
Healthcare Center, Id at 731.
In its decision in Oakwood Healthcare, Inc., the Board also clarified that “independent
judgment” means that “an individual must at a minimum act, or effectively recommend action
free of the control of others and form an opinion or evaluation by discerning and comparing
data” provided that the act is “not of a merely routine or clerical nature.” 348 NLRB at 9. In
the instant case, the foremen direct the work of their crews based upon the pre-established
work schedule provided to them by the general foremen. There is no dispute that foremen
receive the daily work schedule directly from the general foremen. Wall testified that after
the morning safety meeting and toolbox meeting, it is the responsibility of the general
foreman to go into the field and to make sure that the foremen have placed their crews in the
right places. The general foremen then communicate with the contractors and supervisors to
determine if anything has changed in work scope for the day. If there are any changes that
cause a shift in work priority, the general foreman directs his foremen to move crew
members to address the priority. Thereafter, the general foremen rotate from foreman to
foreman to review the work progress.
Respondent asserts that determining the type of a scaffold to build, as well as the
proper job setup requires the foremen to use their independent discretion and judgment. In
its decision in Oakwood Healthcare Inc., the Board noted that for an individual to responsibly
direct with independent judgment, the individual needs to exercise “significant discretion and
judgment in directing others”, Oakwood Healthcare Inc. at fn. 38. As the Board has also
noted in its decision in Franklin Home Health Agency, 337 NLRB 826, 830 (2002), the
burden is on the party alleging supervisory status to establish that the putative supervisor
exercises independent judgment by submitting “concrete evidence showing how the
decisions are made. Ibid.
Respondent also submits that the foremen were responsible for assigning each crew
member to the particular duties they needed to perform to build, modify, or demolish a
particular scaffold. Although the Respondent acknowledges that the foremen receive the
daily work schedule from the general foremen, Respondent contends that the foremen are
permitted to deviate from that schedule and to identify and execute modifications that are
needed. In asserting this kind of independence in identifying and executing modifications,
Respondent relies upon the testimony of Swango, who did not supervise the work of
Respondent’s foremen. When asked if the foremen can modify the scaffolds without getting
authorization from the other contractors or from ExxonMobil, Swango simply confirmed that
the scaffolds belong to Respondent and Respondent can make those modifications without
approval of ExxonMobil. Swango also clarified that he did not know whether foremen
required the approval of the site superintendent or the general foremen before making those
modifications. General Foreman Corral acknowledged however, that the foremen assigned
the crew members the duties needed to accomplish a modification after receiving the
JD(ATL)–25–09
5
10
15
20
25
30
35
40
45
28
authorization from the general foreman.
In its decision in Oakwood Healthcare, Inc., 348 NLRB at 689, the Board also clarified
how it would analyze the authority to “assign” with respect to determining supervisory status
for an individual. The Board explained that it would construe the term “assign” to refer to the
“act of designating an employee to a place (such as location, department, or wing),
appointing an employee to a time (such as a shift or overtime period), or giving significant
overall duties, i.e. tasks, to an employee.” The Board went on to note, however, that simply
determining the order in which an employee will perform discrete tasks within those
assignments would not be indicative of exercising the authority to ‘assign’.” Id at 689.
With respect to the assignment of work in general, Regina Williams testified that the
foreman gives the work orders to the lead carpenter, the carpenter, and the helper. The
foreman also gives instructions and guidance as to whether to build the scaffold or whether
to dismantle the scaffold. She also explained that if the foreman was not on the job site with
the crew, the crew leader had the authority to send crew members to pick up materials and
supplies in the same way that a foreman would send employees for these items. Although
Wall and Chatagnier testified that the foremen have the authority to assign work to the crew
members, Respondent provided no testimony or documentary evidence to show how
foremen made the decisions to assign the respective crew members to the scaffold-building
duties. The Board has long recognized that purely conclusionary evidence, without specific
explanation that the purported supervisor in fact exercised independent judgment does not
establish supervisory authority. Voltaire Contractors, Inc., 341 NLRB 673, (2004); Dynamic
Science, Inc., 334 NLRB 391, 393 (2001); Sears, Roebuck & Co., 304 NLRB 193, 194
(1991).
Thus, the overall record demonstrates that the foremen communicate the work
assignments to the crews and are responsible for carrying out the assignments. There is
not, however, evidence to show that the foremen are disciplined for the work performed by
the crew members or documentation to show that foremen evaluate, discipline, or reward
crew members for the work performed. Overall, the record evidence does not establish that
any direction or assignment by foremen is based upon anything other than experience and
knowledge of the craft skills necessary to erect the scaffolding. North Shore Weeklies, Inc.,
317 NLRB 1128, 1995). The foremen’s assignments of different jobs to their respective
crews demonstrates nothing more than the knowledge expected of experienced persons
regarding which employees can best perform particular tasks. Quadrex Environmental Co.,
Inc., 308 NLRB 101 (1992).
Accordingly, the record does not support a finding that the foremen employed by
Respondent during the ExxonMobil turnaround project functioned as supervisors within the
meaning of Section 2(11) of the Act.
G. Alfonso Garcia’s Status
Respondent asserts that Alfonso Garcia is precluded from the protection of the Act
because he was a general foreman during the 2008 turnaround. Victor Corral testified,
however, that only he and Jared LeJuene were general foremen on the day shift. Foreman
David Reyna also confirmed that only Corral and LeJeune were general foremen. Corral,
Reyna and Salazar all identified Garcia as a foreman on the turnaround. Salazar, in fact,
JD(ATL)–25–09
5
10
15
20
25
30
35
40
45
29
testified that Garcia was his foreman on the job. Corral testified that Garcia was a foreman
who reported directly to him on the job and was assigned two to three crews. Respondent
submitted no evidence to support its contention that Garcia was a general foreman rather
than a foreman. Accordingly, based upon the total record evidence, I do not find that Alfonso
Garcia functioned as a general foreman during the 2008 turnaround in issue.
Conclusions of Law
1. Atlantic Scaffolding Company is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. Respondent did not engage in conduct violative of the Act as alleged in the
complaint.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended:11
ORDER
The complaint is dismissed.
Dated, Washington, D.C., October 5, 2009.
Margaret G. Brakebusch
Administrative Law Judge

11 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations,
the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed waived for all purposes.