Dickerson-Chapman, Inc.

National Labor Relations Board - Board Decisions

Mar 1, 1994

313 N.L.R.B. 907 (N.L.R.B. 1994)

907
313 NLRB No. 118
DICKERSON-CHAPMAN, INC.
1 The Respondent has excepted to the judge’s rulings at the trial
to exclude certain evidence which the Respondent claims is relevant
to the supervisory status of its foremen and crew leaders, and moves
to reopen the record so that it can be introduced. The proferred evi-
dence includes alleged ‘‘summaries’’ of payroll records which the
Respondent admits were prepared in preparation for trial based on
the memory of Vice President Bryan Wampler, and employee testi-
mony offered in the rebuttal stage, which the judge found to be out-
side the scope of the General Counsel’s direct examination. Based
on a careful review of the record and exceptions, we find no reason
to reverse the judge’s rulings and we deny the Respondent’s motion
to reopen the record.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
In sec. II,E,2,c,5,a, par. 3 of the decision, the judge inadvertently
omitted the name of discriminatee George Jones from the list of em-
ployees to whom the Respondent unlawfully issued job descriptions
on July 2, 1990.
3 In finding that the Respondent violated Sec. 8(a)(3) and (1) when
it promoted certain employees in November 1989, we do not rely
on the judge’s suggestion that the Respondent’s refusal to bargain
with the Union, at least until July 1992, when the court of appeals
enforced our bargaining order, constitutes evidence of animus.
In agreeing with the judge that the Respondent violated Sec.
8(a)(5) and (1) of the Act by laying off and severely reducing the
hours of unit employees without providing the Union notice and an
opportunity to bargain, Chairman Stephens finds it unnecessary to
rely on Specialized Living Center, 286 NLRB 511 (1987), enfd. 879
F.2d 1442 (7th Cir. 1989), a case in which he did not participate
and which he regards as factually distinguishable. In the Chairman’s
view, the Respondent did not satisfy its obligations under Sec.
8(a)(5) because it was willing to bargain on a piecemeal basis only,
i.e., it limited its offer to bargain to the question of who was to be
laid off and refused the Union’s request to discuss all other issues.
See the cases cited in fn. 83 of the judge’s decision.
1 The formal papers include (a) a charge assigned the docket num-
ber 15–CA–11052–1, and filed on November 9, 1989, which alleges,
inter alia, the unlawful discharge of Odess Jones; (b) a charge as-
signed the docket number 15–CA–11052–2, also filed on November
9, 1989, which alleges, inter alia, the unlawful discharge of Wycliff
McPherson; and (c) an amended charge, with the docket number 15–
CA–11052–1, and filed on February 26, 1990, which alleges, inter
alia, the unlawful discharge of Odess Jones and McPherson. The
subsequent formal papers do not include the docket number 15–CA–
11052–2.
2 William Burkes, J. D. Freeman, James Hicks, Linden Hill, Earl
Howard, Lee Field Johnson, Isaiah McDonald, Harvey Miner, Lee
Earl Moore, Tommy Obie, Jewel Owens, Elijah Pitchford, Joe L.
Smith, Clifford Stafford, Robert Taylor, and Vernon Wilson Jr.
Burkes is sometimes referred to in the record as Burks; his signature
is compatible with either spelling. The record contains various
spellings of Isaiah McDonald’s first name, which is illegible from
his signature, and sometimes spells his last name as MacDonald,
which differs from his signature.
Dickerson-Chapman, Inc. and International Union
of Operating Engineers, Local Union No. 624,
AFL–CIO. Cases 15–CA–11052-1, 15–CA–
11160, and 15–CA–11294–1
March 1, 1994
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND TRUESDALE
On May 21, 1993, Administrative Law Judge Nancy
M. Sherman issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and brief and has decided to affirm the judge’s rul-
ings,1 findings,2 and conclusions3 and to adopt the rec-
ommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Dickerson-Chapman, Inc.,
Jackson, Mississippi, its officers, agents, successors,
and assigns, shall take the action set forth in the Order.
Lyn R. Buckley, Esq., for the General Counsel.
R. Pepper Crutcher Jr. and Armin J. Moeller Jr., Esqs., both
of Jackson, Mississippi, for the Respondent.
John L. Maxey II, Esq. and John L. Quinn, Esq., both of
Jackson, Mississippi, for the Union.
DECISION
STATEMENT OF THE CASE
NANCY M. SHERMAN, Administrative Law Judge. These
consolidated cases were heard before me in Jackson, Mis-
sissippi, on 11 hearing days between July 23, 1990, and Feb-
ruary 8, 1991. The charge in Case 15–CA–11052–1 was filed
against Respondent Dickerson-Chapman, Inc. (the Company)
by International Union of Operating Engineers, AFL–CIO,
Local 624 (the Union) on November 9, 1989, and amended
on February 26, 1990; the complaint in that case was issued
on February 26, 1990.1 The charge in Case 15–CA–11160
was filed against the Company by the Union on March 1,
1990; the consolidated complaint in these two cases was
issued on April 20, 1990, and was amended on July 24,
1990. The charge in Case 15–CA–11294–1 was filed on July
25, 1990, and amended on August 9 and September 28,
1990; the complaint in that case was issued on October 15,
1990, and amended on January 7 and 10, 1991. All of these
cases were consolidated on November 28, 1990.
As amended, the April 1990 consolidated complaint al-
leges, in part, that about November 2, 1989, the Company
violated Section 8(a)(1) and (3) of the National Labor Rela-
tions Act (the Act) by granting pay raises to all employees,
and by ‘‘promoting’’ ‘‘employees’’ Benjamin Alford (who
quit in the spring of 1990), Kenneth Easterling (who died
about January 1990), Odess Jones, Wycliff McPherson,
James Spiller, and 16 others,2 all to discourage union activ-
ity. The April 1990 complaint further alleges that the Com-
pany violated Section 8(a)(1) and (3) of the Act by discharg-
ing, to discourage union activity, ‘‘employees’’ Odess Jones
and McPherson about November 3, 1989, and by discharging
‘‘employee’’ Spiller about February 29, 1990. In addition,
the April 1990 complaint alleges that the Company violated
Section 8(a)(1) of the Act by interrogating ‘‘employees’’ re-
908 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Likely, this representation case record was in any event part of
the instant record by virtue of Sec. 9(d) of the Act. The Company’s
exhibits in the representation case bear the same exhibit numbers in
the unfair labor practice record.
garding union activity. The October 1990 complaint, as
amended, alleges that as to the 16 ‘‘employees’’ named,
supra, footnote 2, plus ‘‘employees’’ Ronald Johnson,
George Jones, Tommie Lee Jones, Charles Luckett, James A.
Wade, and Otha Lee Wilson, the Company violated Section
8(a)(1), (3), and (5) of the Act about July 2, 1990, by grant-
ing them pay raises, and increasing their duties, to discour-
age union activity and without giving the Union prior notice
and an opportunity to bargain. The October 1990 complaint,
as amended, also alleges that the Company violated Section
(8)(5) and (1) of the Act by (1) between July 2 and 6, 1990,
changing the job descriptions of the 22 ‘‘employees’’ de-
scribed in the preceding sentence, implementing new safety
regulations, and issuing a new safety manual; and (2) about
August 1, 1990, laying off or severely cutting back the hours
of employees, all without giving the Union notice and an op-
portunity to bargain. The record in the representation pro-
ceeding which underlies the (8)(a)(5) allegations was re-
ceived in evidence before me.3
On the entire record, including the demeanor of the wit-
nesses who testified before me, and after due consideration
of the briefs filed by counsel for the General Counsel (the
General Counsel) and the Company, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Company is a Mississippi corporation with a facility
in Jackson, Mississippi, where it is engaged as a contractor
in the construction industry. During the 12-month periods
preceding January 31 and August 31, 1990, the Company
provided services in excess of $50,000 within Mississippi to
South Central Bell Telephone Company, a Division of Bell
South Corporation (South Central Bell), a Georgia corpora-
tion with an office and place of business in Jackson, Mis-
sissippi, which is a public utility and provides telephone
communication services in various States, including Mis-
sissippi and Louisiana. During the 12-month periods ending
on January 31 and August 31, 1990, South Central Bell de-
rived gross revenues in excess of $1 million. In the course
and conduct of its business operations, South Central Bell
annually purchased and received at its Jackson, Mississippi
facility products, goods, and materials valued in excess of
$50,000 directly from points outside Mississippi. I find that,
as the Company concedes, the Company is engaged in com-
merce within the meaning of the Act, and that exercise of
jurisdiction over its operations will effectuate the policies of
the Act.
The Union is a labor organization within the meaning of
the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Sequence of Events;
Procedural History
A union organizational campaign began among the Com-
pany’s employees about October 15, 1989. On October 31,
1989, the Union filed with the Board’s Regional Office in
New Orleans, Louisiana, a representation petition seeking
certification as the representative of the Company’s oper-
ational services personnel, including operators, laborers, and
truckdrivers. Laying to one side the Company’s contention
that all the workers named in both complaints have been stat-
utory supervisors at all relevant times, it appears to be undis-
puted that they were within the requested unit.
About 2 days after the Union filed its representation peti-
tion, the Company at least allegedly ‘‘promoted’’ all the 21
workers named supra at footnote 2 and attached text, and
gave wage increases to them and to most of the other work-
ers whom the Union wanted to include in the unit; the Gen-
eral Counsel contends that the foregoing actions violated
Section 8(a)(1) and (3) of the Act because, allegedly, the
‘‘promotions’’ were effected in an attempt to remove the af-
fected individuals from the bargaining unit, and the wage in-
creases were granted, allegedly, for the purpose of discourag-
ing union activity. About the following day, the Company
discharged two of the ‘‘promoted’’ individuals—Odess Jones
and McPherson—admittedly because of their union activity.
A hearing on the Union’s representation petition was held
between November 28 and 30, 1989. By letter to the Re-
gional Director dated December 1, 1989, company counsel
challenged the sufficiency of the Union’s showing of interest,
on the ground that Odess Jones and McPherson had engaged
in prounion solicitation and were allegedly supervisors. On
February 16, 1990, the Regional Director issued a Decision
and Direction of Election in which he included in the unit,
as employees, all of the individuals named supra at footnote
2 and attached text. Among these individuals was Spiller,
whom Respondent discharged on February 28, 1990, admit-
tedly for union activity.
Over date of March 1, 1990, the Company filed a request
for review of the Regional Director’s Decision and Direction
of Election. Attached to this request was, inter alia, an affi-
davit by Company Office Manager Bryan Wampler which
stated that after the close of the representation case hearing,
certain incidents had taken place which allegedly tended to
show that certain individuals whom the Regional Director
had found to be employees were in fact statutory supervisors;
these individuals included Earl Howard, Isaiah McDonald,
Tommy Obie, and Joe L. Smith. On March 13, 1990, the
Board issued an Order which reads, in part:
Employer’s Request for Review of the Regional Direc-
tor’s Decision and Director of Election raises a substan-
tial issue only with respect to the supervisory status of
conduit foreman Lee Earl Moore and cable foremen
James Spiller, Clifford Stafford, Jewel Owens, William
Burkes, and Linden Hill. The Board concludes, how-
ever, that this issue can best be resolved through the
challenge procedure. Accordingly, the Decision is
amended to permit the above-named individuals to vote
by challenged ballot, and the Request for Review is de-
nied in this and all other respects. With respect to the
factual assertions contained in the post-Decision dec-
laration of Bryan E. Wampler . . . the Board notes that
to the extent those assertions involve post-hearing
events, they may be raised through the challenge proce-
dure as changed circumstances.
909DICKERSON-CHAPMAN, INC.
4 See p. 2 of the Company’s September 28, 1990 request for re-
view of the Regional Director’s dismissal of a unit clarification peti-
tion filed after the Union’s certification.
5 Other portions of the letter are discussed, infra, part II,D,E,6.
6 Exclusion was sought, as supervisors, of all conduit foremen,
cable foremen, boring crew foremen, pole foremen, service wire
foremen, and crew leaders.
7 This complaint was based upon the same charge as the October
15, 1990 complaint before me.
8 Ben Alford, Kenneth Easterling, J. D. Freeman, James Hicks,
Earl Howard, Lee Field Johnson, Harvey Miner, Tommy Obie, Eli-
jah Pitchford, Joe L. Smith, Robert Taylor, James Wade, and Vernon
Wilson Jr. References to Vernon Wilson in Dickerson-Chapman I
are directed to Vernon Wilson Jr. The record also contains various
references to his father, the late Vernon Wilson Sr., who worked for
the Company before his retirement.
The election was held on March 14, 1990. The tally of
ballots showed 38 votes for the Union, 9 against the Union,
and 27 challenged ballots, which were insufficient in number
to affect the result; the Company avers that it challenged all
foreman and crew leader ballots.4 On May 9, 1990, the Act-
ing Regional Director overruled the Company’s objections to
the election, and certified the Union as the representative of
the employees in the voting unit which had previously been
found appropriate.
By letter dated May 14, 1990, the Union requested a meet-
ing with the Company’ ‘‘to discuss contract negotiations’’;
the Board found this letter to constitute a request to bargain.
Dickerson-Chapman, Inc., 301 NLRB 267, 268 (1991), enfd.
964 F.2d 493 (5th Cir. 1992) (Dickerson-Chapman I). By let-
ter dated May 22, 1990, the Company enclosed a copy of its
request for review of the Regional Director’s action, and de-
clined the Union’s ‘‘request for negotiations.’’ The October
1990 complaint alleges that about July 2, 1990, the Company
violated Section 8(a)(5) and (1) by unilaterally granting pay
raises to ‘‘employees,’’ increasing their duties, changing their
job descriptions, implementing new safety regulations, and
issuing a new safety manual; some of such action is also al-
leged to violate Section 8(a)(3). On July 17, 1990, the Board
denied review of the Acting Regional Director’s supple-
mental decision and certification of representatives. The
Board’s Order denying review stated, in part, that as to one
of these objections, ‘‘we deny review solely on the basis that
our prior order of 3/13/90 denied review of the [Regional Di-
rector’s] finding that Odess Jones and Wycliff McPherson
were not statutory supervisors’’; this objection had alleged
that Jones and McPherson had solicited the Union’s showing
of interest in support of its petition.
By letter dated and hand delivered on July 24, 1990, the
Union again requested a meeting with the Company ‘‘to dis-
cuss contract negotiations’’; the Board and the court of ap-
peals found this letter to constitute a request to bargain.
Dickerson-Chapman I, supra, 301 NLRB at 268, 964 F.2d at
495. By letter dated July 31, 1990, company counsel stated,
inter alia, that the Company ‘‘declines your request [for a
meeting to discuss contract negotiations], because it believes
that the National Labor Relations Board erroneously certified
your union . . . and, therefore, that it has no legal obligation
to bargain with your union. [The Company] also declines to
accept that obligation voluntarily.’’5 The Board and the court
of appeals found this letter to constitute a refusal to bargain.
Dickerson-Chapman I, supra, 301 NLRB at 268, 964 F.2d at
495. The October 1990 complaint alleges that about August
1, 1990, the Company violated Section 8(a)(5) and (1) of the
Act by laying off or substantially curtailing the hours of em-
ployees without giving the Union notice and an opportunity
to bargain.
Meanwhile, on July 27, 1990, the Company filed with the
Regional Office a petition (docketed as Case 15–AC–53) to
amend the Union’s certification, and another petition (dock-
eted as Case 15–UC–123) to clarify the certification. Both
petitions sought a determination that individuals to whom the
Company had assigned certain job classifications were super-
visors and, therefore, not included in the certified unit.6 On
September 20, 1990, the Regional Director dismissed both
petitions. He dismissed the petition to amend the certifi-
cation, on the ground that a unit clarification petition was the
most appropriate means by which to seek the determination
requested by the Company. He dismissed the petition to clar-
ify the certification, on the ground that the unit placement of
the individuals whom the petition alleged to be supervisors
involved disputed issues to be resolved in the complaints (in-
cluding a then forthcoming complaint) before me and in a
then forthcoming complaint in Case 15–CA–11294–2 (the
Board docket number of the case which resulted in the Janu-
ary 1991 bargaining order enforced by the Fifth Circuit on
July 1, 1992, in Dickerson-Chapman I, 301 NLRB 267, 964
F.2d 493). Requests dated September 28, 1990, to review
both dismissals were filed by the Company with the Board.
On October 15, 1990, the General Counsel issued a com-
plaint in Case 15–CA–11294–2, alleging that the Company’s
refusal to honor the Union’s certification violated Section
8(a)(5) and (1) of the Act.7 On December 28, 1990, the
Board issued an Order affirming the Regional Director’s dis-
missal of the petition to amend the certification, on the
ground that the Company’s request for review raised no sub-
stantial issue warranting reversal. On December 26, 1990, the
Board issued a similar Order with respect to the petition to
clarify the certification; the Order added, however, that
‘‘should the pending unfair labor practice proceedings fail to
resolve the issues raised by the instant petition, any party
may file a new unit clarification petition, if otherwise appro-
priate.’’
On January 22, 1991, the Board granted the General Coun-
sel’s Motion for Summary Judgment in Case 15–CA–11294–
2, and ordered the Company to bargain with the Union as
the representative of the certified unit. Dickerson-Chapman I,
supra. On July 1, 1992, the Order was enforced by the
United States Court of Appeals for the Fifth Circuit. NLRB
v. Dickerson-Chapman, Inc., 964 F.2d 493. Among other
things, the court approved the Board’s finding that Odess
Jones, McPherson, and the individuals listed in the margin
were statutory employees.8 In addition, after noting that the
Board had found a substantial question as to the status of
William Burkes, Linden Hill, Isaiah McDonald, Lee Earl
Moore, Jewel Owens, James Spiller, and Clifford Stafford,
the court stated (964 F.2d at 500, footnote omitted):
The Board did not abuse its discretion by postponing its
decision regarding the individual status of [these] seven
named foremen and allowing them to vote subject to
challenge . . . . Because [the Company] unlawfully re-
fused to bargain with an appropriate unit that was duly
910 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 By letter to me (with copies to company counsel) dated June 4,
1992, the General Counsel denied that during the oral argument
Board counsel made any such ‘‘stipulation.’’ Rule 34.7 of the Fifth
Circuit’s Local Rules states:
Oral arguments in all cases are tape recorded for the exclusive
use of the Court. Copies of the tapes or transcripts thereof can-
not be prepared and furnished to counsel or the parties nor will
counsel be permitted to listen to the tape. However, with the ad-
vance approval of the Court, counsel may arrange at their own
expense for a qualified court reporter to be present to record and
transcribe the oral argument.
On April 2, 1992, the court denied company counsel’s postargument
motion, dated March 24, 1992, for leave to permit transcription of
portions of the oral argument.
10 Although requiring the posting of ‘‘the attached notice marked
Appendix,’’ the Company’s proposed judgment in the Board’s for-
mal file includes no attached notice. I infer that the Judgment calls
for posting of the notice set forth in the Board’s Order, which notice
does not specifically name any of these individuals.
11 Also referred to in the record as Howard Berry and Arthur
Berry.
12 Ben Alford, cable foreman; William Burkes, cable foreman;
Kenneth Easterling, pole foreman; J. D. Freeman, service wire fore-
man; James Hicks, pole foreman; Linden Hill, cable foreman; Lee
Field Johnson, cable foreman, he refused to sign; Odess Jones, serv-
ice wire foreman, he refused to sign, see, infra, part II,B,2; Isaiah
McDonald, cable foreman; Wycliff McPherson, cable foreman, he at-
tempted to retract his signature, see, infra, part II,B,3; Harvey Miner,
service wire foreman; Lee Earl Moore, conduit foreman; Tommy
Obie, cable foreman; Jewel Owens, cable foreman; James Spiller,
cable foreman, he refused to sign, see, infra, part II,B,4; Clifford
Stafford, cable foreman; Robert Taylor, service wire foreman; and
Vernon Wilson Jr., conduit foreman, he refused to sign. Vernon Wil-
son Jr. refused to sign the job description for the stated reason that
Stewart and Wampler said they could not give him a copy; Wampler
testified at the representation case hearing that Wilson ‘‘would not
commit in any form’’ that the job description described his duties,
and testified before me that Wilson did not contest that these were
his job duties. Lee Field Johnson refused requests by Berry,
Ainsworth, and Wampler. There is no evidence that Johnson refused
to sign for the stated reason that the job description was inaccurate.
I find it unnecessary to determine whether he gave inability to un-
certified, we grant enforcement to the Board’s order. In
doing so, however, we hold that the seven unresolved
foremen are not included in the enforcement order be-
cause the Board did not make a determination that they
were not supervisors. That decision is left to another
day and to another forum.
In view of the court’s statements with respect to these
seven individuals, I deny the Company’s motion dated March
12, 1992, after the close of the hearing before me, to dismiss
the complaint as to them on the ground that during the oral
argument before the court on March 10, 1992, in Dickerson-
Chapman I, Board counsel allegedly ‘‘stipulated . . . that
these gentlemen are excluded from the certified unit, and that
[the Company] has had no duty to bargain with respect to
their terms and conditions of employment.’’9
On July 28, 1992, the court of appeals entered a judgment
in Dickerson-Chapman I as proposed by the Company. That
judgment read, in part:
The Court having held in its opinion that seven fore-
men [Lee Earl Moore, William Burkes, Isaiah Mac-
Donald, Linden Hill, Clifford Stafford, Jewel Owens,
and James Spiller] are not included in the unit de-
scribed in paragraph (a) [the unit as set forth in the
May 9, 1990, certification], this Judgment does not re-
quire Dickerson-Chapman, Inc. to bargain with [the
Union] concerning their terms and conditions of em-
ployment, or to refrain from, or to take, any other ac-
tion with respect to them.10
B. The Alleged Preelection Discrimination and
Unlawful Interrogation
1. The beginning of union activity; the drafting and
distribution of job descriptions; and the allegedly
unlawful November 1989 wage increases
On October 15, 1989, Wycliff McPherson, who at that
time worked for the Company, telephoned the Union and ar-
ranged a meeting among the Company’s workers on October
21. McPherson told about 40 other workers about it, and all
of them attended. After initially gathering in the Company’s
parking lot, these 40 workers proceeded to a nearby church-
yard and all signed a paper for organizing the Union. Among
those who attended this meeting were McPherson, Odess
Jones, and Spiller.
On October 29, 1989, at a second union meeting, the
workers present decided that they wanted the ‘‘union man’’
to represent them. The ‘‘union man’’ said that an organizing
committee was needed. McPherson, Odess Jones, and Obie
agreed to serve on this committee. The ‘‘union man’’ told
them to advise their supervisor the next day that they were
all on the committee. On the following day, October 30,
McPherson and Obie approached then field superintendent
Henry Berry,11 an admitted supervisor, and started to tell
him about the organizing committee. Berry thereupon called
out to Executive Vice President/General Manager James M.
(Bo) Stewart, an admitted supervisor who is the highest rank-
ing company official at the Jackson facility and whom Odess
Jones was telling about the organizing committee, ‘‘you need
to hear this’’; and brought over McPherson and Obie. After
Berry and Stewart had been told about these three workers’
membership on the organizing committee, Stewart said,
‘‘Okay.’’
Immediately after learning about the Union’s organizing
campaign, admitted Supervisor Bryan Wampler (whose title
is office manager but who is in charge of the Company’s
personnel matters) consulted an attorney for advice on how
to fight the Union and how to keep it out. Thereafter, Wam-
pler and this attorney drew up at least purported job descrip-
tions captioned ‘‘Cable Foreman,’’ ‘‘Service Wire Fore-
man,’’ ‘‘Conduit Foreman,’’ and ‘‘Pole Foreman,’’ on which
the Company has relied to support its contention that a num-
ber of workers—including McPherson, Odess Jones, and
Spiller—were statutory supervisors. Wampler had been work-
ing for the Company for about 10 years, the last 6 of them
in his present position. He testified that until these job de-
scriptions were drafted, he had never seen, or generated, any
job descriptions at the Company. On various dates between
October 31 and November 2, 1989, inclusive, Wampler or
Stewart presented one of these job descriptions, for the work-
er’s signature, to the 18 workers listed in the margin; the
April 1990 complaint alleges that the Company violated Sec-
tion 8(a)(3) and (1) by ‘‘promoting’’ these 18.12 The April
911DICKERSON-CHAPMAN, INC.
derstand the description, or any other reason, for his refusal. As to
the 7 workers whose names are underscored, the Board and the court
declined in Dickerson-Chapman I to determine whether they occu-
pied supervisory status; the remaining 11 were found to be employ-
ees.
13 My findings as to Jones’ termination interview are based on a
composite of credible parts of his and Wampler’s testimony.
1990 complaint also alleges that about the same date, the
Company unlawfully ‘‘promoted’’ three workers who were
not given written job descriptions for their signature, and all
of whom were found in the prior proceeding to occupy em-
ployee status—namely, Earl Howard, Elijah Pitchford, and
Joe L. Smith, all of whom are described by the Company as
crew leaders.
Wampler testified that ‘‘normally’’ the employees received
annual raises, and ‘‘Normally, they would be reviewed for a
raise in May to June area.’’ Such raises had been given in
late June 1985, in mid-July 1986, in late July 1987, and on
an undisclosed date in 1988. Wampler testified that the tim-
ing of the 1989 raises had nothing to do with the appearance
of union activity, and that in 1989 they had not been given
until November because, when renewing its insurance in
June 1989, the Company had received a ‘‘massive’’ increase,
the insurance company expected the Company to pay these
premiums as quickly as possible, and the Company had made
these payments in 4 monthly installments between July 1 and
October 1989. In the fall of 1989, at the last employee meet-
ing before the beginning of the union activity in mid-October
1989, Isaiah McDonald, who had received annual raises be-
ginning in at least June 1985, asked Company Vice President
Stewart when the workers would receive a raise. Stewart re-
plied that the workers had not earned a raise, that they were
not working hard enough, and that they should be glad to
have a job. Almost all the Company’s workers received pay
raises, reflected in the paychecks they received on November
3, 1989, and effective about October 21 or 22 (after the
union activity began), which varied between 10 cents and
$1.05 an hour. Raises given before 1989 were generally
much lower than those given in November 1989. Moreover,
unlike the raises given in 1985–1988, the 1989 raises in-
cluded about 32 of the approximately 38 workers hired with-
in the preceding year.
2. The allegedly unlawful interrogation and discharge
of Odess Jones
About November 2, 1989, Wampler and Stewart drove to
the jobsite where Odess Jones was then working. Stewart got
out of the car, and told Jones to get into the car with Wam-
pler. When Jones got into the car, Wampler gave him a two-
page document headed ‘‘Service Wire Foreman.’’ This docu-
ment began with the statement that a service wire foreman
‘‘directly supervises a laborer on service wire work orders’’;
states that ‘‘his duties include’’ 22 items, many of which are
(at least arguably) supervisory in nature; and calls for a sig-
nature over the words ‘‘Service Wire Foreman.’’ Wampler
said that Jones had to sign the paper, stated that management
‘‘haven’t got around to doing it till lately,’’ and described
the paper as ‘‘just a job clarification . . . just a job descrip-
tion of what you are doing.’’ After reading the paper, Jones
said that he could not sign it, because he did not in fact se-
lect laborers for his crew (item 1), terminate employees (item
12), or prepare evaluations (item 19). Wampler told him that
these had always been the responsibilities of a service wire
foreman.
On the following day, immediately after Jones had re-
ceived his regular paycheck, one of the Company’s super-
visors (perhaps Berry) told Jones that Vice President Stewart
wanted to see him in the back office. When Jones entered
the office, he found Stewart, Wampler, and Field Super-
intendent Robert Ainsworth, an admitted supervisor who was
Jones’ immediate superior. Stewart, who was at the desk,
told Jones to sit down. Then, Stewart asked Jones what he
knew about the Union, how he had got mixed up with it,
what organizers he had met, and how he had first met them;
the record fails to show Jones’ reply, if any. Stewart asked
what ‘‘you all’’ were going to do. Jones said that he did not
know yet; ‘‘We haven’t had another meeting.’’ Stewart asked
who had started the union organizing; Jones truthfully replied
that he did not know. Stewart asked how many people had
attended the first union meeting; Jones said, about 50. Stew-
art asked how many people had signed cards there; Jones
said that he did not know whether everyone present had
signed cards or not. Stewart asked when the next meeting
was to be held, and what the other organizing committee
members had done; the record fails to show Jones’ reply, if
any. Stewart said that Jones was a supervisor. Jones said that
he did not think he was a supervisor. He said that the Union
had said that it did not want any person who was a super-
visor to attend meetings or to sign a card and he was not
a supervisor if he could not hire or fire. Stewart said that
Jones did indeed have the right to hire and fire. Jones said
that this was the first occasion anyone had told him this.
Wampler said, ‘‘Well, we have a conflict of interest, then.’’
Jones said that he did not know about any conflict of inter-
est. Wampler said, ‘‘Well, you signed some papers and you
are with the union, and that [gives] us a conflict of interest.’’
Jones said that he still did not know, because he was not a
supervisor who could hire and fire. Stewart said, ‘‘Well, you
are with the Union; therefore, you are terminated.’’ Jones
said, ‘‘Okay,’’ and got his final pay check.13
Wampler testified that Jones was fired because of his sup-
port for the Union. Company counsel stated at the outset of
the hearing before me that the Company discharged Jones for
his role in the union organizing; and that as to him, the only
issue is supervisory status.
3. The allegedly unlawful interrogation and discharge
of Wycliff McPherson
On November 2, 1989, Wampler came to the jobsite where
Wycliff McPherson was working, and said that Wampler had
a job description he would like McPherson to read for a 75-
cent pay raise. McPherson asked whether this was a simple
job description. Wampler said yes, gave him a two-page doc-
ument captioned ‘‘Cable Foreman,’’ and told him to read it
carefully and make sure he understood it. This document be-
gins with the statement that a cable foreman ‘‘directly super-
vises a crew of laborers,’’ and then lists 20 separate job
functions, some of which specify duties which are at least ar-
guably supervisory. The form ends with a space for a signa-
ture over the typewritten words, in capital letters, ‘‘CABLE
FOREMAN.’’ McPherson reads very slowly. He asked
912 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 My findings in this paragraph are based mostly on McPherson’s
testimony at both hearings. Wampler was not asked about
McPherson’s request that Wampler ‘‘destroy’’ the paper. To the ex-
tent that their versions of the earlier conversation differ, for de-
meanor reasons I credit McPherson.
15 My findings as to the discharge interview are based on a com-
posite of credible parts of the testimony of McPherson and Wampler.
Wampler was not asked to which questions he regarded McPherson
as having given ‘‘evasive’’ replies; I have attached this characteriza-
tion to all replies whose exact content is not otherwise shown by the
record.
16 My findings as to this conversation are based on Spiller’s testi-
mony before me; he did not testify at the representation case hear-
ing. As to this conversation, Wampler did not testify before me. At
the representation case hearing, Wampler testified that he went over
with Spiller the job duties specified on the form, that Spiller felt
these were his duties, that he had no dispute concerning his duties,
and that he asked no questions about what the duties meant. I accept
Spiller’s version of the conversation, largely because Wampler’s ver-
sion does not suggest any reason for Spiller’s refusal to sign the doc-
ument and Wampler gave the somewhat unlikely testimony that
Spiller ‘‘would not’’ give any reason for his refusal.
Wampler what the document was. Wampler said that it was
a job description, or job evaluation, for a 75-cent pay raise.
McPherson asked if it was just a typical job description.
Wampler said that was all it was. McPherson credibly testi-
fied that he ‘‘just glanced’’ at the document, that he looked
at the first page, and that he signed this document without
reading it. Later that day, Odess Jones and other workers
asked McPherson whether he had signed the paper. He said,
‘‘Yes, for evaluation for a job description—you know, that
is all it was, evaluation, 75-cent raise.’’ These workers told
him, ‘‘No it wasn’t for that. It was saying that [McPherson]
was a foreman.’’ McPherson thereupon went into the office
and asked Wampler to ‘‘destroy’’ the paper McPherson had
signed; Wampler said that he could not do that. However, at
McPherson’s request, Wampler made him a copy.14
On the following day, McPherson was called into Stew-
art’s office. Present in the office were Wampler, Stewart, and
Berry. Stewart asked McPherson whether he was responsible
for the Union. McPherson said yes. Stewart asked him how
he got mixed up with the Union, what nonemployee union
organizers he had met, where he first met that nonemployee
union organizer, how McPherson got in touch with them,
how he found out about the Union, and what he was going
to do about the Union. To these questions, McPherson gave
what Wampler testimonially characterized as ‘‘evasive’’ re-
plies. Stewart asked McPherson when the first meeting had
been held; McPherson again gave what Wampler
testimonially characterized as an ‘‘evasive’’ reply. Stewart
asked how many people had attended that meeting; McPher-
son replied, ‘‘About 50 or 60, approximately all the employ-
ees.’’ Stewart asked how many union cards had been signed
at that meeting and who had signed them; McPherson gave
what Wampler testimonially characterized as an ‘‘evasive’’
reply. Stewart asked McPherson when the next union meet-
ing was to be held, what organizer would be there, what
McPherson was going to do about it, and what the other or-
ganizing committee members had done; McPherson gave
what Wampler testimonially characterized as ‘‘evasive’’ re-
plies. Stewart told McPherson that what he had done had
hurt the Company because the Union was not in the Compa-
ny’s best interest. Stewart went on to say that in order to be
a foreman, McPherson had to be 100 percent for the Com-
pany; that if he was not 100 percent for the Company, Stew-
art no longer needed him; and that McPherson was fired.15
Wampler testified at the hearing before me that McPher-
son was fired because of his support for the Union. Company
counsel stated at the outset of that hearing that the Company
discharged McPherson for his role in the union organizing,
and that as to his discharge, the only issue is supervisory sta-
tus.
4. The allegedly unlawful interrogation and discharge
of James Spiller
James Spiller attended the first union meeting, on October
15, 1989. On an undisclosed date between then and Novem-
ber 2, 1989, Wampler asked Spiller what he thought ‘‘the
guys’’ were going to do, to which Spiller replied that he did
not know; at this time, Spiller had not identified himself to
any member of management as a union supporter. The com-
plaint does not allege that Wampler’s conduct on this occa-
sion violated the Act.
On November 2, 1989, Wampler called Spiller into the of-
fice and asked him to sign ‘‘this sheet.’’ The sheet in ques-
tion was an at least purported job description for the job of
cable foreman, and included certain functions at least argu-
ably of a supervisory nature; thus, the ‘‘sheet’’ stated that a
cable foreman (1) ‘‘directly supervises a crew of laborers on
cable-laying jobs’’; (2) ‘‘selects laborers for his crew when
new laborers are available’’; (3) assures adequate crew man-
ning when scheduled laborers fail to report for work; (4) de-
termines ‘‘laborers’ skill, diligence, and performance, and
recommends reassignment or discharge of deficient labor-
ers’’; and (5) ‘‘prepares evaluations of each employee under
his supervision.’’ Spiller cannot read very well, and was un-
able to read the document. He said, ‘‘No; I am not going to
sign because I wouldn’t know what I am signing.’’ Spiller
credibly testified:
I asked him afterward, could I take the sheet home and
look at it, because, see, I couldn’t read good. I would
let my daughter and my wife read it to me, and then
I could tell him the next morning whether I could sign
it or not, because I didn’t want to sign the wrong—the
sheet that would hurt the company or hurt me.
Wampler did not give Spiller a copy of the job description.
Spiller did not read it while he was in the office, and did
not sign it.16
As previously noted, on February 16, 1990, the Regional
Director issued a Decision and Direction of Election in
which, inter alia, he found that Spiller was a statutory em-
ployee, and included him in the appropriate unit. Spiller at-
tended a union meeting on February 27. On the following
day, when he drove a company truck from his jobsite back
to the Company’s facility at the end of the workday, Berry
told him to see Wampler in the office. When Spiller entered
the office, he saw Wampler and Ainsworth.
Wampler stated that he was going to ‘‘review’’ the duties
set forth in Spiller’s November 1989 job description (which
he had refused to sign), and then described these duties at
some length. Then, Wampler stated that Spiller had had ‘‘oc-
casions’’ where he had carried out these duties. Wampler
913DICKERSON-CHAPMAN, INC.
17 The quotations are from Wampler’s tape of his interview with
Spiller (see fn. 19 infra). Wampler testified to telling Spiller that
‘‘Brown was fired based on Mr. Spiller’s recommendation.’’ As to
the Johnny Ray Brown incident, see part II,E,2,b,(3),(f), infra.
18 The quotations are from Wampler’s tape of the interview (see
fn. 19 infra). Wampler testified that Spiller acknowledged holding
Wiley’s job open and hiring Richardson temporarily to take Wiley’s
place. Spiller testified that during this discharge conversation, Wam-
pler did not discuss how Spiller hired Richardson, Spiller did not
agree that he would hire Richardson, and there was no talk about
Spiller’s hiring Richardson or about Spiller’s holding Wylie’s job
open. As to the incidents involving Wiley and Richardson, see part
II,E,2,b,(3),(f), infra.
19 My findings as to the February 28 conference are based on a
tape which Wampler took of this conference, and on Wampler’s tes-
timonial description of Spiller’s conduct during the interview. On the
witness stand, Spiller evinced a habit of nodding in contexts where
he almost certainly intended to show that he was listening to or un-
Continued
stated, ‘‘I think you remember that time back last June when
Johnny Ray Brown . . . had a little problem with him. I
think I asked you about it cause I done forgot all the details
on it. That was done there on . . . where was he . . .
McFadden Road?’’ Spiller nodded. Wampler stated, ‘‘I
[think] that’s about it [and] I think you had a problem with
him which resulted in . . . he had to be fired.’’ Spiller
nodded.17 Wampler then said, ‘‘Let’s see . . . Charles Rich-
ardson, that boy that you . . . what was it with him? What
was it . . . did you hire him on when Clark went down? Is
that the man, Clark Wiley?’’ Spiller said, ‘‘Yea, yea, he was
working on his farm. He was here when Clark broke his fin-
ger.’’ Wampler said, ‘‘Yea, that’s right, the one you hired.
Charles the one you hired when Clark broke his finger,
wasn’t it?’’ Spiller nodded. Wampler said, ‘‘What was it,
you let, you told me that Clark . . . when Clark came back,
that you wanted to put him back on, wasn’t it.’’ Spiller
nodded. Wampler said, ‘‘That’s what I thought too . . . and
. . . that Clark . . . you wanted to put him on.’’18
Then, Wampler remarked that Spiller understood most of
his duties and responsibilities so far as needed for him to run
the crew. Spiller nodded. Wampler said, ‘‘OK . . . cause
most of ’em are pretty much supervisory duties . . . that’s
what you do every day . . . you’ve been doing for years and
years now.’’ Spiller said, ‘‘I got the first book when I came
to supervise at the house,’’ referring to the book where Spill-
er entered the time records for his crew.
Wampler said that part of being a supervisor was being
part of management; that the Company had decided when the
union activity began that the Company was going to fight the
Union; and that Spiller’s status as a foreman required him to
fight the Union alongside of ‘‘us.’’ Wampler went on to say
that at a laborers’ meeting that morning, after the playing of
a ‘‘tape’’ which asserted that unionization would probably
not improve wages or benefits but might cause the employ-
ees to wind up out of pocket because they had paid dues,
Spiller had remarked that the employees were going to lose
it one way or another anyhow. Spiller said that he had been
‘‘losing it for years’’ and was going to lose whether or not
the Union won. Wampler said that Spiller stood to lose a lot
more if the Union won, that Spiller’s remarks sounded as if
he was encouraging the employees to join the Union, and
that this was the last thing in the world he ought to be doing.
After stating that Wampler had told him time and again that
the Union was no good, Spiller asked ‘‘why are we fighting
so hard when we got it now?’’ Wampler said that one of the
reasons the Company was fighting the Union so hard was ‘‘I
hate to see some of these boys pulled into what might hap-
pen.’’ He went on to say that ‘‘those kinds of comments’’
had led ‘‘us’’ to believe that Spiller might be ‘‘pretty much
in’’ with the Union. Spiller gave a noncommittal reply.
Wampler said that the Company wanted Spiller to join its
fight against the Union and was giving him an opportunity
to ‘‘come clean.’’ Wampler went on to say that his first
question was whether Spiller had gone to the union meetings.
Spiller said, ‘‘I’ve been down there listening. I ain’t going
to lie to you.’’ Wampler asked why he had been down there.
Spiller said, ‘‘Listen to see what.’’ Wampler said, ‘‘Listen to
see what?’’ Spiller said, ‘‘Then I can afford to come in and
listen to this thing.’’ Wampler asked whether Spiller was
going to continue to go to those union meetings. Spiller said
that he wanted to listen to both sides. Wampler said that at
a recent foremen’s meeting he had told the foremen not to
go to the meetings, not to have anything to do with union
members or organizers, and not to say anything good about
the Union as far as trying to help them get in. Then, Wam-
pler asked whether Spiller would be able to stop going to
union meetings. Spiller said that if he did not go to union
meetings, he would not go to the Company’s meetings either;
that he was not saying whether or not he would continue
going to union meetings; that he would have to keep looking
at ‘‘both of them all the way’’; and that he was not going
to tell the workers not to join the Union or to join it. Wam-
pler said that a regular laborer had a ‘‘choice’’ about whether
to go to union meetings, but that Wampler was looking at
Spiller as a foreman and a supervisor; Wampler asked wheth-
er Spiller could change his position. Spiller said that he
could not answer Wampler yet. Wampler said that he needed
an answer ‘‘now’’; that he was asking for Spiller’s ‘‘one
hundred percent support’’; that Spiller was going to have to
‘‘get in the trenches . . . and fight this union just as hard
as I am . . . that’s what I’m telling [you] you’re going to
have to do . . . can you do that, yes or no?’’ Spiller said,
‘‘No comment . . . that way I can stand a better man.’’
Wampler said that Spiller would have to come down on
one side of the fence or the other, and could not straddle.
Spiller said that he was not going to straddle. Wampler said
that Spiller’s straddling the fence was the same as telling
Wampler Spiller was not going to support Wampler, and
‘‘that’s the way we look at it.’’ Spiller said that he was
going to think it over. Wampler said, ‘‘I can’t give you no
time to think it over because of thinking over time should
have been over the last three months . . . today’s the day
for an answer. You told me you was going to think over
signing this cable foreman’s report the day I gave it to you
and you never came back to me.’’ Spiller said, ‘‘Like I told
you, I wasn’t gonna sign to hurt me.’’ Wampler said that if
Spiller was not going to come down on Wampler’s side 100
percent he was going to have to let him go, although this
hurt Wampler a lot because they had been working together
for the Company for more than 12 years. Spiller remarked
that he had been working for the Company for 37 years, and
asked whether he could change Wampler’s mind. Wampler
said no, and told him to wait in the office for his final pay-
check.19
914 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
derstanding what was being said, without necessarily agreeing with
it; Wampler, who had worked with Spiller for 12 years, testified that
Spiller’s ‘‘usual nod . . . expresses he understood or was agreeing
with you.’’ Moreover, Spiller, a semiliterate black man who ap-
peared to be about 60 years old, evinced reluctance to engage in
avoidable on-the-job confrontations with his supervisors, all of
whom are white (except perhaps Berry, who did not testify). In as-
sessing Spiller’s credibility generally, I have taken into account his
testimony, which is refuted by the tape, that during his discharge
interview Wampler did not go over Spiller’s ‘‘duties as a cable fore-
man.’’
20 This definition was in effect no later than July 7, 1986; see 29
CFR § 1926.32(f); 44 Fed.Reg. 8577 (1979); 44 Fed.Reg. 20940
(1979); 51 Fed.Reg. 24526, 24528 (1986). It appears unchanged in
29 CFR § 1926.650.
21 OSHA regulations effective since at least July 1986 and until
February 1990 read, in part (29 CFR §§ 1926.650(i), 1926.651(d); 44
Fed.Reg. 8577 (1979); 44 Fed.Reg. 20940 (1979); 51 Fed.Reg. 2426,
2428 (1986):
Daily inspections of excavations shall be made by a competent
person. If evidence of possible cave-ins or slides is apparent, all
work in the excavation shall cease until the necessary pre-
cautions have been taken to safeguard the employees.
. . . .
Excavations shall be inspected by a competent person after
every rainstorm or other hazard-increasing occurrence, and the
protection against slides and cave-ins shall be increased if nec-
essary.
22 My findings in this paragraph are based mostly on Johnson’s
testimony. For demeanor reasons, I do not credit Wampler’s testi-
mony that Johnson was the first individual the inspector approached
on the jobsite because he wanted to talk to the foreman on the job.
Moore testified that he did not know why the inspector talked to
Johnson instead of somebody else.
After vainly waiting for a few minutes for his paycheck,
Spiller left the facility to pay his regular afternoon visit to
his mother, who was in a rest home following a stroke. On
the following morning, he returned to the Company’s facil-
ity. On seeing Berry and Stewart, Spiller said that he had
come back to see whether he had a job, that Wampler had
said Spiller was terminated. Stewart replied that Wampler
was the ‘‘superintendent,’’ and that Spiller was indeed termi-
nated. When asked by Spiller for his paycheck, Wampler re-
plied that Spiller’s check was in the mail, and that counsel
had told Wampler he could do it that way.
Wampler testified at the hearing before me that he dis-
charged Spiller because of his support for the Union, and be-
cause Wampler felt that there was no way to get a firm com-
mitment from Spiller that he completely supported the Com-
pany’s position. Company counsel stated at the outset of the
hearing before me that the Company discharged Spiller for
his role in the union organizing, and that as to his discharge,
the only issue is supervisory status.
C. Allegedly Unlawful Unilateral Action in July 1990
Since at least July 1986, the rules and regulations of the
Occupational Safety and Health Administration of the United
States Department of Labor (OSHA) have required, as to
jobsites with open excavations (including trenches), daily in-
spection by a ‘‘competent person,’’ defined as
one who is capable of identifying existing and predict-
able hazards in the surroundings, or working conditions
which are unsanitary, hazardous, or dangerous to em-
ployees, and who has authorization to take prompt cor-
rective measures to eliminate them.20
Effective March 5, 1990, the rules were amended to read
as follows (54 Fed.Reg. 45961 (1989), 54 Fed.Reg. 43055
(1989), and 29 CFR § 1926.651(k)):
(k) Inspections. (1) Daily inspections of excavations,
the adjacent areas, and protective systems shall be made
by a competent person for evidence of a situation that
could result in possible cave-ins, indications of failure
of protective systems, hazardous atmospheres, or other
hazardous conditions. An inspection shall be conducted
by the competent person prior to the start of work and
as needed throughout the shift. Inspections shall also be
made after every rainstorm or other hazard increasing
occurrence. These inspections are only required when
employee exposure can be reasonably anticipated.
(2) Where the competent person finds evidence of a
situation that could result in a possible cave-in, indica-
tions of failure of protective systems, hazardous
atmospheres, or other hazardous conditions, exposed
employees shall be removed from the hazardous area
until the necessary precautions have been taken to en-
sure their safety.21
On June 6, 1990, an OSHA inspector visited the Compa-
ny’s Robinson Road site, where a cable crew which included
Lee Field Johnson, and a conduit crew which included Lee
Earl Moore, were working. When the OSHA inspector
walked up, Johnson (found to be an employee in Dickerson-
Chapman I) was coming out of a hole. The inspector said
that the hole was too deep, and said that he wanted to talk
to the foreman on the job. Johnson pointed to Moore, whose
alleged supervisory status was left unresolved in Dickerson-
Chapman I. Moore called over Wampler, who was on the
jobsite, and Wampler called Stewart.22
Under a covering letter dated June 14, 1990, OSHA issued
a ‘‘Citation and Notice of Penalty’’ which asserted (1) that
the Company, in violation of 29 CFR § 1926.21(b)(2), had
failed to instruct each of its employees, who were working
in a trench, ‘‘on the recognition and avoidance of unsafe
conditions and the regulations applicable to his work envi-
ronment to control or eliminate any hazards or other expo-
sure to illness or injury,’’ and (2) that the Company had
failed to provide high visibility warning vests to employees
exposed to public vehicular traffic. OSHA’s covering letter
stated, in part, that as to uncontested violations, the Company
was required to notify OSHA by letter that the Company had
taken appropriate corrective action within the time set forth
on the citation (July 10, 1990). By letter to OSHA dated
June 30, 1990, Wampler noted, in part:
Effective July 2, we have begun a comprehensive pro-
gram for all competent personnel which will conclude
July 6, 1990. Additionally we have scheduled CPR
[cardiopulmonary resuscitation] classes with the Red
Cross at their earliest convenience, July 14 & 21, 1990.
All employees will be trained in the recognition and
avoidance of unsafe conditions as required.
In regards to the exposure to the public vehicular
traffic, all employees on said job site were immediately
915DICKERSON-CHAPMAN, INC.
provided with warning vests as per your requirements.
Dickerson-Chapman, Inc. is currently purchasing such
vests for all personnel and will mandate that such vests
be worn at all times. Additionally Dickerson-Chapman
will mandate that all personnel be properly suited in all
necessary safety garments required by the Occupational
Health and Safety Administration . . . .
We are currently adapting our management structure to
avoid such future [occurrences] . . . .
As previously noted, on May 9, 1990, the Acting Regional
Director certified the Union as the employees’ statutory rep-
resentative. The October 1990 complaint alleged that the
Union was certified on that date; the answer admitted this al-
legation, but denied that the certification had any legal force
or validity. Dickerson-Chapman I found that the company
violated Section 8(a)(5) and (1) of the Act about May 14,
1990, by rejecting the Union’s May 14 request for recogni-
tion. 301 NLRB at 268. As previously noted, during the pro-
ceedings which led to this certification, the Board had in-
cluded in the unit by name, among others, J. D. Freeman,
James Hicks, Earl Howard, Lee Field Johnson, Harvey
Miner, Tommy Obie, Elijah Pitchford, Joe L. Smith, Robert
Taylor, and Vernon Wilson Jr. In addition, the Board had
specifically included in the unit Kenneth Easterling, and
Wampler testified that after Easterling’s death, James Wade
took over Easterling’s job about March 1990.
Between July 2 and 6, 1990, while the Company’s request
for review of the certification was pending before the Board,
Wampler conducted a series of meetings, referred to in the
record as safety meetings, among workers who included
those (except Easterling) named in the preceding paragraph,
the other workers named supra at footnote 2, and Ronald
Johnson, George Jones, Tommie Lee Jones, Charles Luckett,
and Otha Lee Wilson. As to each group, Wampler conducted
a 3-hour training session in the foremen’s room. Among the
instructional materials used by Wampler were certain written
training materials, and transparencies which consisted of
largely verbatim copies of certain OSHA rules and regula-
tions. During the meetings, Wampler gave many, and per-
haps all, of those present a 63-page manual captioned
‘‘Dickerson-Chapman, Inc./Level One/Foreman, and Crew
Leader’s/Policy, Procedure, and Safety Manual,’’ with the in-
structions to keep it in their trucks. Most of this manual con-
sists of substantially verbatim copies of various OSHA regu-
lations. However, in the middle of the manual are a page,
and an attached form, directed to the Company’s ‘‘exca-
vation permit policy.’’ Under the heading ‘‘Rules,’’ the first
page forbids foremen and crew leaders to direct or permit
their crew to undertake any excavation (1) more than 4-feet
deep without the written permission of the ‘‘Excavation
Safety Officer’’ or (2) more than 20 feet unless the plan for
that excavation has been designed by a registered profes-
sional engineer. Under the heading ‘‘Exceptions,’’ this page
provides, in part, that in case of emergency excavations dur-
ing specified nonbusiness hours, for which the ‘‘Excavation
Safety Officer’’ is to assume direct responsibility, the fore-
man or crew leader ‘‘as soon as time permits’’ is to report
‘‘on the attached form’’ safety measures taken at the emer-
gency site. To this page is attached a form which is to be
filled out by the foreman or crew leader. The form calls for
entries in blanks following the words, among others, ‘‘Pro-
posed Maximum Depth,’’ ‘‘Anticipated Atmosphere Hazard-
ous?’’, ‘‘Anticipated Water Hazard?,’’ ‘‘Anticipated trench
length,’’ and ‘‘Other hazards and avoidance plans.’’ For rea-
sons discussed, infra, I infer that some of the foremen and
crew leaders were insufficiently literate to fill out these
forms. Wampler testified in February 1991, 6 months after
these meetings, that although he explained during these meet-
ings the role of the foreman or crew leader in connection
with the excavation permit process, the Company had not yet
been able to implement this policy but did anticipate begin-
ning to implement it ‘‘when time permits.’’ He further testi-
fied that OSHA ‘‘would very much like for you to have’’
an excavation safety officer, but that the Company had not
been able to hire one.
These safety meetings lasted until about the normal end of
the shift for the workers who attended. Toward the end of
each meeting, Wampler gave a written job description to
each of those present, and asked each worker to sign the job
description given to him and then return the document to
Wampler. All of the workers did so. No worker received a
copy to keep. One of the workers at the second meeting
asked for a copy. Wampler said he would ‘‘get them one’’;
the record fails to show whether anyone else at any of the
meetings asked for a copy, or whether such a copy was ever
provided. Wampler testified that he handed out these job de-
scriptions 30 to 40 minutes before quitting time. For de-
meanor reasons, I credit the testimony of Lee Field Johnson
that by the time the job descriptions were handed out at the
July 3 meeting, ‘‘it was quitting time.’’ Also for demeanor
reasons, I credit similar testimony as to the July 5 meeting
by Tommie Lee Jones, Joe L. Smith, and Vernon Wilson Jr.
I note that most of the workers at the July 5 meeting re-
ceived a job description for ‘‘crew leader,’’ a job for which
the Company had never previously distributed a job descrip-
tion.
Wampler testified that the ‘‘OSHA requirements’’ in these
1990 job descriptions were drawn up by company counsel,
who, as previously noted, had also drawn up the job descrip-
tions signed in November 1989; but that as to the remaining
portions of the 1990 job descriptions, it was Wampler alone
who redrafted them, they were ‘‘for the most part identical
to’’ the 1989 job descriptions, and the 1990 descriptions
‘‘covered no difference in area’’ (cf. infra, part II,E,5,a). He
further testified that the Federal law requirements about safe-
ty were the only reason why the Company changed the job
descriptions of foremen and crew leaders in July 1990.
The first meeting, on July 2, was attended by one worker
(Earl Howard), to whom Wampler gave the job description
of ‘‘crew leader,’’ and by two workers (George Jones and
Ronald Johnson) to whom Wampler gave the job description
of ‘‘bore foreman’’; no such job descriptions had been given
out in November 1989, a period when the Company does not
claim to have had any bore foremen. This July 2 meeting
was also attended by two workers (James Hicks and James
Wade) to whom Wampler gave the job description of ‘‘pole
foreman’’; and five workers (J. D. Freeman, Charles
Luckett, Harvey Miner, Homer Parker, and Robert Taylor),
to whom Wampler gave the job description of ‘‘service wire
916 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
23 As to all four meetings, my findings as to which meeting was
attended by which workers are based on the dates which they at-
tached to their signatures on the job descriptions.
24 Such testimony is not belied by Wampler’s testimony that none
of these workers had ever told him they could not read. This is a
deficiency which people frequently try to conceal from others, in-
cluding their employers.
25 Moreover, at the representation case hearing, Vernon Wilson Jr.
replied ‘‘I don’t quite understand what you are talking about’’ when
asked whether he had ever engaged in ‘‘Determining a laborer’s
skill, diligence, performance, and recommending the reassignment or
discharge of deficient laborers.’’ This language is included in the
November 1989 job description which he refused to sign. The July
1990 job description, which he did sign, states that the subject ‘‘is
expected to judge his laborers’ skill, diligence, and job performance
and to recommend reassignment or discharge of unsatisfactory crew
members.’’
foreman.’’23 The complaint alleges that the Company vio-
lated the Act by its July 1990 personnel action with respect
to all these workers except Parker, whom Dickerson-Chap-
man I found to be a supervisor. The second meeting, on July
3, was attended by one worker to whom Wampler gave the
job description of ‘‘conduit foreman’’ (Lee Earl Moore); and
eight workers to whom Wampler gave the job description of
‘‘cable foreman’’ (William Burkes, Clifton Hayman, Linden
Hill, Lee Field Johnson, Isaiah McDonald, Tommy Obie,
Jewel Owens, and Clifford Stafford). The complaint alleges
that the Company violated the Act by its July 1990 personnel
action with respect to all these workers except Hayman,
whom Dickerson-Chapman I found to be a supervisor. The
third meeting, on July 5, was attended by one worker to
whom Wampler gave the job description of ‘‘conduit fore-
man’’ (Vernon Wilson Jr.), and three workers to whom
Wampler gave the job description of ‘‘crew leader’’
(Tommie Lee Jones, Elijah Pitchford, and Joe L. Smith). The
complaint alleges that the Company violated the Act by its
July 1990 personnel action with respect to all of these work-
ers. The last meeting, on July 6, was attended by two work-
ers to whom Wampler gave the job description of conduit
foreman (Alva Abel and Otha Lee Wilson). The complaint
alleges that the Company violated the Act by its personnel
action with respect to Otha Lee Wilson but not as to Alva
Abel, whom Dickerson-Chapman I found to be a supervisor.
The job descriptions of service wire foreman, pole fore-
man, conduit foreman, and cable foreman issued in Novem-
ber 1989 were received in evidence in the representation case
hearing; as previously noted, the Board and the court of ap-
peals found to be statutory employees 11 workers who had
received 1 of these 4 job descriptions. Unlike the job de-
scriptions issued in November 1989, each of the job descrip-
tions issued in July 1990 contains a section captioned ‘‘Safe-
ty Responsibilities’’ which in some respects is substantially
the same in all of the job descriptions. The content of the
July 1990 job descriptions, and to some extent of the No-
vember 1989 job descriptions, is discussed, infra.
As to what the workers present understood in consequence
of what occurred at the July 2–6, 1990 meetings, what was
actually said during these meetings is significant in view of
the severe limitations on the ability of some of the workers
to read, the predictable inability of other workers to under-
stand significant parts of the rather sophisticated and/or tech-
nical vocabulary used in the written materials shown or given
out to the workers, and the Company’s failure to provide the
workers with copies of the job descriptions they were told
to sign. Thus, a number of the workers who attended these
meetings had initially been hired as laborers, of whom the
Company does not require any degree of literacy as a condi-
tion of hire. Moreover, as to workers promoted from the
ranks to be ‘‘foremen’’ or ‘‘crew leaders,’’ Wampler merely
testified that the Company ‘‘generally like[s]’’ them to have
‘‘some degree of literacy that [they are] able to read and
write, fill out applications, [read blue] prints, things of that
nature. . . . Obviously, if it [is] somebody that we are bring-
ing up through the ranks, it takes a great deal more time to
bring to that stage.’’ The record evidence (including credible
testimony from some of the workers themselves) affirma-
tively shows that several of the workers in attendance pos-
sessed at most an exceedingly low level of literacy.24
Further, the record affirmatively shows that the workers
who attended the safety meetings did not understand signifi-
cant parts of the material presented there. Thus, although the
Company contends that it conducted these meetings mostly
for the purpose of advising those present that the Company
was naming them as and giving them the duties of ‘‘com-
petent persons’’ within the meaning of the OSHA regula-
tions, and even though the regulations’ definition of ‘‘com-
petent person’’ was the first item in the transparencies and
in the accompanying written material, Supervisor Hayman
credibly testified that he did not know the meaning of the
term ‘‘competent person,’’ and George Jones defined it as ‘‘a
person that was able to make decisions.’’ In addition, the tes-
timony of some of the workers who testified that they read
these job descriptions before signing them shows that these
workers did not understand at least certain part of the de-
scriptions they signed. Thus, although all the job descriptions
require the subject worker ‘‘to assure that all surface encum-
brances adjacent to a trench or other excavation are located
so that they will not create a hazard to employees’’ (empha-
sis added), Freeman, Hayman, Lee Field Johnson, George
Jones, Tommie Lee Jones, Joe L. Smith, Otha Lee Wilson,
and Vernon Wilson Jr. all credibly testified that they did not
understand the meaning of the underscored words. Also, al-
though all the July 1990 job descriptions state that the sub-
ject ‘‘is expected to fulfill the role of ‘competent person’ on
each of his job sites,’’ the previously noted testimony of
Hayman and George Jones shows that they did not under-
stand this portion of the job descriptions. In addition, al-
though the job description signed by Hayman required him
to ‘‘follow the Company’s excavation permit policy,’’ when
asked what the ‘‘excavation permit policy’’ is he replied, ‘‘I
don’t believe I know what you are talking about.’’25 Further,
several workers who attended the safety meetings credibly
testified that they did not (and in some cases could not) read
the job descriptions before signing them and returning them
to the Company; I infer that at least as to those who could
read, their failure to read these documents may have been at
least partly due to the Company’s postponement of their dis-
tribution to a time shortly before the workers’ usual quitting
hour.
Wampler testified that at all four of these safety meetings,
management talked to the workers at great length on the re-
sponsibilities they had and the procedures they had to follow.
He went on to testify that management covered all of the
917DICKERSON-CHAPMAN, INC.
26 Supervisor Hayman testified that although he did not keep a gas
tester ‘‘on [his] crew at all times,’’ he could get one from the Com-
pany any time he needed one, and that by using a gas tester, he
would be able to ascertain whether an excavation had a concentra-
tion in excess of 20 percent of the lower flammable limit of a gas.
As previously noted, his testimony shows that he failed to com-
pletely understand what he was told at the safety meeting.
material embodied in the transparencies; such material in-
cluded the definition and duties of a ‘‘competent person,’’
which definition, as previously noted, was not understood by,
at least, George Jones and Hayman, who attended the first
and second meetings, respectively. J. D. Freeman, who at-
tended the first meeting, credibly testified that during this
meeting, management told those present that they were able
to hire and fire. Lee Field Johnson, who attended the second
meeting, credibly testified that during this meeting, Wampler
brought up and explained the regulation about the excavation
and trenching, said that the workers at that meeting had the
responsibility to stop other members of their crew from en-
gaging in unsafe practices, and told the workers at the meet-
ing that they were supervisors, had authority to hire and fire
employees, and were responsible for the men.
During each of these meetings, Wampler told those present
that the Company was going to adjust their job descriptions
to take their ‘‘competent person’’ duties into account, and
that it would not be right to require the workers to take on
these new responsibilities without compensating them for
what they were being asked to do. All the workers who at-
tended these meetings received 4- to 6-percent pay raises; to
the extent that the record reveals the amount of such in-
creases, the record shows that they varied between 25 cents
and $2 an hour, with an average of about 65 cents. The testi-
mony indicates that these increases were reflected in the pay-
checks received on Friday, July 6. Wampler testified that
union activity had nothing to do with these raises, that the
major reason therefor was the workers’ increased duties
under OSHA, but that some increases were also merit in-
creases.
All of the workers who attended these safety meetings
were thereafter sent to a course in cardiopulmonary resuscita-
tion conducted by the American Red Cross. Wampler testi-
fied in February 1991 that such a course had been taken by
all but one of the incumbents whom the Company had classi-
fied as foremen or crew leaders; the one exception had been
so classified for 2 weeks, and Wampler testified that the Red
Cross does not like to give such a course for only one stu-
dent.
All of the job descriptions issued at these safety meetings
stated, under the heading ‘‘Safety Responsibilities,’’ that the
individual ‘‘must assure that employees who will be exposed
to public vehicular traffic are provided with, and that they
wear, warning vests.’’ As of early January 1991, some of the
workers who attended these safety meetings had received
warning vests and ‘‘cones’’ (inferentially, small, and mov-
able pylons) for their respective crews, and some had not.
Wampler testified that the Company had tried to supply the
foremen and crew leaders with warning vests, and that it was
the foreman’s responsibility to see to it that the crew-
members wear warning vests. Wampler further testified that
OSHA required that pylons be put on the road, that the Com-
pany had tried to supply the foremen with the number of py-
lons needed, and that having them put out is the foreman’s
responsibility. In addition, Wampler testified in February
1991 (more than 7 months after the OSHA inspection) that
OSHA required the use of hard hats; that after some dif-
ficulty, the Company had received them; that after receiving
them, the Company had experienced difficulty in putting on
them ‘‘logos and things like that’’; that the Company would
start distributing them as soon as possible; and that seeing
to it that the employees wear them ‘‘is the foreman’s respon-
sibility.’’ The July 1990 job descriptions except that of pole
foreman state that where hazardous atmosphere conditions
are present in an excavation, the person in the described job
is to ‘‘assure continued testing, proper ventilation and other
counter measures, and the nearby availability of emergency
rescue equipment.’’ All of these job descriptions except those
of pole foreman and crew leader provide that when a person
in the described job
may reasonably expect oxygen deficiency in exca-
vations greater than four feet, . . . he shall assure test-
ing of the atmosphere conditions in the excavations be-
fore allowing employees to enter . . . . If testing re-
veals an atmospheric oxygen content of less than
19.5%, [he] shall not allow employees to enter without
respirators. [He] shall not allow employees to enter an
excavation in which the atmosphere contains a con-
centration of a flammable gas in excess of 20% of the
lower flammable limit of the gas.
Wampler testified that it is the foreman’s responsibility for
seeing to it that the equipment operator gives the appropriate
warning using his equipment. The Company has never pro-
vided any equipment for monitoring the percentage of oxy-
gen or flammable gas in excavations, or any respirators.26
Wampler testified that without consulting anyone else, he
decided to give the OSHA ‘‘competent-person’’ responsibil-
ities to the ‘‘foremen’’ and ‘‘crew leaders,’’ rather to some-
body else, because ‘‘there was no other possible person who
would qualify for that. Nobody else had that kind of author-
ity other than the foremen or the crew leaders.’’ All of the
Company’s action in early July 1990 with respect to the
‘‘foremen’’ and ‘‘crew leaders,’’ including the wage in-
creases they received, was taken without giving the Union
prior notice and an opportunity to bargain.
D. Alleged Unlawful Unilateral Action in Early
August 1990
As previously noted, on July 17, 1990, the Board denied
review of the Regional Director’s action in certifying the
Union on May 9, 1990. On an undisclosed date in July 1990,
South Central Bell advised the Company that the work which
South Central Bell gave the Company would be drastically
curtailed, effective immediately and for an indefinite period
of time. A hand-delivered letter to the Union dated July 31,
1990, from Company Attorney R. Pepper Crutcher Jr., stated
that the Company would not bargain with the Union as the
‘‘exclusive collective bargaining representative for certain of
[the Company’s] employees’’ because the Union had alleg-
edly been erroneously certified and (therefore) the Company
had no legal obligation to bargain with it (see part II,A
supra). That letter further said:
918 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
27 During this 10-week period, Carr received at least 40 hours’ pay
during each week except the weeks ending August 11 (26 hrs.), Au-
gust 18 (36 hrs.), September 8 (31.5 hrs.), and September 22 (34
hrs.). During this same 10-week period, Bell received at least 40
hours’ pay during each week except the week ending August 18 (32
hrs.); Bell was on vacation during the week ending August 11.
Our client is willing, however, to meet and confer with
you . . . in good faith, to record in writing any agree-
ment reached, and to abide by any such agreement re-
corded concerning the subject I discuss below, with the
understanding that the company does not recognize
your union as its employees’ collective bargaining rep-
resentative and that it reserves all rights to contest your
union’s certification.
Crutcher’s letter went on to say that a drastic decline in
work orders would make work unavailable (1) immediately
for 50 to 75 percent of the Company’s cable crews; and (2)
within the next 10 to 20 days, for the Company’s conduit
crews, ‘‘unless sufficient work orders are received for the
North State Street project. Boring, service wire, and pole
crews should also feel the impact of this work reduction.’’
The letter further stated that the Company
plans to follow its past practice in similar situations, in
three phases. For the present, it will dispatch crews to
available work, while paying those crews not dis-
patched for the hour during which they report for work
and are told that no work is available. The Company
plans to dispatch crews according to the pay rate of
crew foremen. . . . If the reduced workload persists
until October 1, 1990, the company plans to implement
phase two. The Company first will determine how
many crews are needed within each division . . . on a
regular basis. It then will offer operator, driver, or la-
borer positions to affected foremen and crew leaders
using pay rate and seniority as ranking criteria. For a
period of six months, the affected foreman and crew
leaders would retain their pay rates while working in
the lower rated job. The remaining workforce would be
reduced by seniority . . . .
If the situation persists beyond April 1, 1991, af-
fected foremen and crew leaders would be reduced to
rates paid to others in their positions.
The lists attached to this letter stated that Vernon Wilson
Jr. was the last ‘‘conduit foreman’’ on the basis of ‘‘pay rate,
then seniority.’’ Wilson worked a full day on Tuesday, July
31, 1990, the date on which company counsel’s July 31 letter
was hand delivered to the Union. Wilson reported to the
Company’s facility at 7 a.m. on Wednesday, August 1, 1990.
Field Superintendent Ainsworth told him that there was noth-
ing for him to do, and told him to ‘‘write [his] hour down
and go on back home.’’ Until September 10, 1990, when he
obtained a job elsewhere, Wilson continued to report to the
Company’s facility at 7 a.m. every weekday, and continued
to be told that there was nothing for him to do and to go
home with 1 hour’s pay. The Company had never before cut-
back Wilson’s hours for a reason unrelated to weather. When
he had showed up for work but had been sent home because
of the weather, he had been paid 1 hour’s showup pay. The
two other members of his crew—James Blackwell and Clark
Thompson—were also paid 1 hour’s showup pay a day until
August 10, 1990. Wampler testified that Blackwell was
‘‘surplussed’’ because he was assigned to a crew which had
no work and none of the other crews had expressed any in-
terest in him. Wampler further testified that ‘‘the other
crews’’ had ‘‘hired back as many as they wanted from the
surplussed employees. Some of the other crews . . . did pick
up what they needed.’’
A hand-delivered letter from company counsel to the
Union dated August 3, 1990, indicates on its face that the
parties had agreed to meet on Monday, August 6. This letter
‘‘amend[ed] and supplement[ed]’’ the July 31 letter by stat-
ing that
With the conditions and limitations expressed in that
letter, [the Company] offers to meet and confer in good
faith, to reduce any agreement reached to writing, and
to abide by any such agreement, concerning the effects,
if any, on its laborers, laborer/drivers, drivers, opera-
tors, and maintenance shop employees of the duties as-
signed to foremen and crew leaders in job descriptions
issued in the first week of July, 1990.
The conference between the Company and the Union was
scheduled for 10 a.m. on Monday, August 6. At 7 a.m. that
day, Lee Field Johnson reported to the Company’s facility.
Johnson had been named in company counsel’s July 31 letter
as the last ‘‘cable foreman’’ on the basis of ‘‘pay rate, then
seniority.’’ The Company did not assign him to work on Au-
gust 6, and gave him 1 hour’s ‘‘show-up’’ pay. He continued
to report to work from Monday through Friday at 7 a.m., and
to be sent home with 1 hour’s ‘‘show-up’’ pay, until Mon-
day, October 2, when he was assigned to work as a laborer
(at his previous pay rate, but admittedly as an employee) on
a crew led by Elijah Pitchford. The laborers on Johnson’s
crew just before he was put on his 1-hour ‘‘show-up pay’’
basis were Calvin Carr, Robert Bell, and Charlie Lee Wil-
liams. Carr and Bell were transferred to Joe L. Smith’s crew
and Howard’s crew, respectively, and continued to work on
a relatively full-time basis until at least the week ending Oc-
tober 13, 1990.27 Charlie Lee Williams was transferred to
Joe L. Smith’s crew, worked 44 hours during the week end-
ing August 11, and was laid off on August 14. Johnson re-
sumed working as a cable foreman during the second or third
week in January 1991, with two members of his former
crew, Bell and Carr.
During the August 6 conference, the Company’s spokes-
person was Attorney Crutcher and the Union’s spokesperson
was Business Representative Glen Crawford. Crutcher asked
whether the Union had any proposals to make concerning the
subjects of Crutcher’s July 31 letter concerning layoffs and
his August 1 letter concerning the effect on admitted em-
ployees of the job descriptions issued in early July 1990.
Crawford asked Crutcher if the Company was willing to rec-
ognize the Union as the employees’ collective-bargaining
representative and begin negotiating a collective-bargaining
agreement. Crutcher said that the only thing the Company
was willing to discuss was whom it was going to lay off,
that the Company did not recognize the Union as the bar-
gaining representative, and that the Company reserved the
right to contest the Union’s certification. The Union declined
to talk about the Company’s proposals under the terms con-
919DICKERSON-CHAPMAN, INC.
28 The Company’s unit employees had no insurance, and appar-
ently had no sick leave.
29 The Company’s records state that during the week ending Sep-
tember 8, Barber worked on crew 5800, which was Otha Lee Wil-
son’s crew. During that week, which included Labor Day, Wilson
was credited with 12 hours of work; inferentially, this consisted of
8 hours’ pay for Labor Day and 1 hour’s showup pay for each of
the remaining 4 days.
tained in Crutcher’s July 31 and August 1 letters, as to lay-
offs said that it wanted to talk about the ‘‘whole issue,’’ and
stated that these matters should be discussed only as part of
contract negotiations. The meeting lasted a total of about 10
minutes. Union business representative L. W. Smith, who at-
tended this conference, credibly testified that the Union
wanted to talk about more than just the layoff and the Com-
pany’s proposed system for a layoff because:
when you are talking about a reduction [in] work force,
there is several different issues involved such as senior-
ity right, whether an employee would have the right
and how long he would have that right for recall, and
if he would have a seniority right to bump lower se-
niority employees; vacation, whether that employee
would be entitled to receive what vacation pay he had
coming; wage increases, when that employee returned
to work whether he would be entitled to any wage in-
creases; insurance, whether if an employee was laid off
if the company would retain insurance on that em-
ployee for a certain length of time or if the employee
could self pay; sick leave, whether his sick leave days
would be frozen or whether the company would pay the
employee what sick leave days he might have.
The Union made no proposal in that meeting about how to
deal with seniority, how to accommodate bumping rights, re-
calls, vacation, insurance, sick leave, or how the Company
should deal with the at least alleged lack of work.28 Smith
testified that the Union did not really have a chance to make
a specific proposal because Crutcher indicated that the only
issue the Company was willing to discuss was who was to
be laid off.
Company counsel’s July 31 letter to the Union had listed
Otha Lee Wilson as the next-to-last ‘‘conduit foreman’’ on
the basis of ‘‘pay rate, then seniority.’’ On Thursday, August
8, Wampler told him and his crew (Michael Smith, Darren
Carter, and Ernest Barber) that they were being laid off for
lack of work. On the following day, when all four men came
in to pick up their checks, Wampler told them that if they
came in every day, they would be able to turn in a 1-hour
‘‘short time,’’ and if someone was needed to go out, they
could be picked to go out. Smith and Carter stopped report-
ing to the facility after August 13 and August 10, 1990, re-
spectively; General Counsel’s Exhibit 40 states that they vol-
untarily quit on August 27 and 24, 1990, respectively. Gen-
eral Counsel’s Exhibit 40 states that Barber voluntarily quit
on August 24, 1990, and was ‘‘reactivated’’ to crew 5200
(Wade’s crew) on August 30. Thereafter, and until the week
ending October 6, Barber worked almost a full week every
week.29 Between the week ending August 18 and the week
ending September 29, 1990, Wilson was entirely or almost
entirely paid ‘‘show-up pay’’ only (see supra at fn. 29).
Thereafter, Wilson worked on George Jones’ crew for 3 or
4 weeks, and then began to lead a service wire crew, which
job he was still performing when he testified before me in
January 1991. Throughout this period, his pay rate remained
the same.
Otha Lee Wilson was the last alleged supervisor to be put
on a 1-hour-per-day ‘‘show-up’’ basis. Various admitted em-
ployees are listed by General Counsel’s Exhibit 40 as having
been ‘‘surplussed’’ on various dates between August 9 and
23, inclusive. Three of them had been on the crew of admit-
ted Supervisor Abel, whose crew before the layoff had con-
sisted of six employees not including him; and two of them
had been on the crew of ‘‘cable foreman’’ Obie, whose crew
before the layoff had consisted of three employees not in-
cluding him. The remaining ‘‘surplussed’’ employees each
came from a different crew. Admitted Supervisor Hayman,
one of whose crewmembers (Willie Williams) was
‘‘surplussed’’ on August 13, testified that it was Hayman
who decided which laborer would leave Hayman’s crew, and
that it was Wampler or Stewart who assigned laborers to an-
other crew; Willie Williams was reassigned from Hayman’s
crew to George Jones’ crew on August 20 (according to G.C.
Exh. 40) or during the week ending September 15 (according
to the Company’s payroll records) and worked continuous
40-hour weeks from the week ending July 28 through the
week ending September 29, after which his name
unexplainedly disappeared from the Company’s payroll. Al-
leged Supervisor Lee Earl Moore testified for the Company,
on direct examination, that it was he who decided which la-
borers on his crew would be laid off. On cross-examination,
he testified that the two who left his crew were ‘‘Armstrong
and Montgomery’’; that they were thereupon put on another
crew, and that it was Wampler or Stewart who decided what
other crew they were to go to. The Company’s payroll
records include Roy Montgomery and Armstrong Montgom-
ery, who are brothers; state that Roy Montgomery remained
on Moore’s crew, and worked 40 hours a week, from the
week ending July 28 through the week ending October 13;
and further state that during this same period Armstrong
Montgomery worked at least 40 hours a week on Jewel
Owens’ crew. The Company’s brief cites only Hayman’s and
Lee Earl Moore’s testimony in support of its assertion that
the foremen played a role in choosing who would be laid off
(Br. 56–58).
Wampler testified before me that since about June 1978
the Company had had one layoff, in 1982 or 1983. At that
time, according to Wampler, ‘‘ the foremen reduced each
crew by one,’’ no foremen or crew leaders were laid off
‘‘because we knew it was a short-term thing as opposed to
an indefinite,’’ and the laid-off employees were ‘‘rehired
. . . a short time period later.’’ Odess Jones testified at the
November 1989 representation case hearing that the Com-
pany had had a layoff a year or two ago, when he was lead-
ing a service wire crew, and that ‘‘they’’ laid off a ‘‘pretty
good man working with me. . . . They didn’t give me no
choice about whether I wanted to keep the man or not.’’
By letter to Crutcher dated September 11, 1990, Union At-
torney John L. Quinn stated that on the Union’s behalf, ‘‘I
am writing to reaffirm our continuing request to bargain with
[the Company] concerning wages, hours, terms and condi-
tions of employment. Please advise whether [the Company]
will agree to meet and bargain or whether it will be nec-
essary to continue to seek recourse through the NLRB.’’
920 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
30 I accept the General Counsel’s statement that until receiving cer-
tain material from the Company in response to a subpoena, she had
been unaware that pay raises were granted to employees other than
the individuals named in the complaint.
31 Although the Company contends that these discharges were not
unlawful on the ground that the dischargees were allegedly super-
Crutcher’s reply letter dated September 14, 1990, stated, in
part:
If you ask whether [the Company] will meet at rea-
sonable times and places with [the Union’s] designated
representatives, confer with them in good faith, reduce
to writing any agreement reached, and abide by any
agreement reached, with respect to the outstanding dis-
putes, while reserving the company’s right to challenge
the union’s certification, then, . . . the answer has al-
ways been and continues to be yes.
The only obstacle to discussion of the outstanding
disputes (and I think their amicable resolution) is your
client’s insistence that my client waive its right to con-
test the union’s certification . . . as a prerequisite to
discussions. If [the Union] no longer insists on that
condition as a prerequisite to discussions, please let me
know when and where you would like to meet.
By letter to Crutcher dated September 26, 1990, Quinn
stated, in part:
We were somewhat surprised by [the Company’s] re-
cent expression of willingness to meet and bargain with
the union. As always we stand ready.
After suggesting three specific dates for meetings, Quinn’s
letter went on to say:
Our willingness to meet and bargain does not con-
stitute recognition of, or acquiescence in, your chal-
lenge to the union’s status as the certified bargaining
representative of [the Company’s] employees. We be-
lieve that [the Company] has attempted to impose un-
lawful conditions on the bargaining process and we
have every intention of pursuing our remedies before
the NLRB and before any other appropriate legal tribu-
nal.
By letter to Crawford (which enclosed copies of the
Crutcher-Quinn correspondence) dated November 12, 1990,
Crutcher stated, in part:
When we last met . . . on August 6, the union was
not willing to work toward resolution of [outstanding
disputes] except as part of contract negotiations, and
you indicated that you wanted [the Company] to drop
its contest before discussing our outstanding disputes. If
you want to meet and discuss the outstanding issues,
and will agree that we do so without waiving [the Com-
pany’s] contest of your union’s certification, then please
give me dates when you are available.
The parties eventually met in a settlement conference on De-
cember 18, 1990, but no settlement was reached.
E. Analysis and Conclusions
1. The allegedly unlawful pay raises in November 1989
a. Whether these pay raise allegations are barred by
Section 10(b) of the Act
As issued on February 26, 1990, the first complaint herein
alleged that the Company violated Section 8(a)(3) and (1) by
giving pay raises about November 2, 1989, to 21 named indi-
viduals, each of whom, the Company contends, was a statu-
tory supervisor. The Company has never contended that this
allegation is beyond the scope of the relevant underlying
charge, which was filed on February 26, 1990, and which al-
leges that as to these 21 individuals, the Company ‘‘On or
about November 2, 1989, granted wage increases . . . in
order to discourage membership in or affiliation with the
Union.’’ However, on July 24, 1990, the second day of the
11-day hearing before me and about 6 months before the
Company rested its case, the General Counsel moved for
leave to amend the complaint so as to allege that on or about
November 2, 1989, the Company violated Section 8(a)(3)
and (1) by giving pay raises to all employees.30 Over the
Company’s objection, I granted the motion.
The Company opposed the motion to amend, and in its
posthearing brief claims that I erred in granting the motion,
on the ground that as to the employees added by such allega-
tions they exceed the scope of the February 1990 charge,
were made more than 6 months after the grant of the alleg-
edly unlawful wage increases, and, therefore, were barred by
Section 10(b) of the Act. The amendment alleged that with
respect to employees not named in the charge, the Company
had engaged in the same conduct, on the same or about the
same date, by reason of the same union campaign, as the
Company had allegedly engaged in with respect to the indi-
viduals named in the charge. Accordingly, I adhere to the
ruling which I made at the hearing. See Telegrapher Workers
(A. H. Bull Steamship Co.) v. NLRB, 347 U.S. 17, 34 fn. 30
(1954); NLRB v. Central Power & Light Co., 425 F.2d 1318,
1320–1321 (5th Cir. 1970); Columbia Textile Services, 293
NLRB 1034, 1034–1037 (1989), enfd. 917 F.2d 62 (D.C.
Cir. 1990); Recycle America, 308 NLRB 50 (1992); Drug
Plastics & Glass Co., 309 NLRB 1306 fn. 2 (1992).
b. Whether the pay raises were unlawfully motivated
As the Company does not appear to question, the Novem-
ber 1989 pay raises violated Section 8(a)(1) and (3) if, as the
General Counsel contends, they were motivated by a desire
to discourage union activity. NLRB v. Exchange Parts Co.,
370 U.S. 405, 409–410 (1964); Kokomo Tube Co., 280
NLRB 357 (1986); A/Z Electric, 282 NLRB 356, 363–365
(1986). I agree with the General Counsel that the November
1989 pay raises were so motivated.
Thus, the evidence shows that the Company knew about
the union activity, retained attorneys to fight the Union, and
gave most of its employees pay raises reflected in the pay-
checks they received on November 3, 1989, 3 days after the
Union filed its representation petition. Further, that same day,
the Company by its own admission discharged Odess Jones
and McPherson for union activity; and on February 28, 1990,
the Company by its own admission discharged Spiller for the
same reason and because he failed to promise to campaign
against the Union in the future.31 During the discharge inter-
921DICKERSON-CHAPMAN, INC.
visors, the legality vel non of the discharges does not affect their
evidentiary value in showing the Company’s antiunion animus.
32 In 1988, when the most recent previous raises were given, most
of them were 25 cents an hour; some were 10 cents and some 50
cents; and only one $1 raise was given. In 1989, the employees ad-
mittedly in the unit received between 15 and 75 cents an hour; the
alleged supervisors received 50 cents to $1.05 an hour.
33 Ben Alford, Kenneth Easterling, J. D. Freeman, James Hicks,
Earl Howard, Lee Field Johnson, Odess Jones, Wycliff McPherson,
Harvey Miner, Tommy Obie, Elijah Pitchford, Joe L. Smith, Robert
Taylor, and Vernon Wilson Jr.
Dickerson-Chapman I also found James Wade to be an employee.
However, his ballot was challenged in the March 1990 representation
election and was never opened, the complaints do not allege any un-
lawful conduct as to him until July 1990 and his job classification
as of the November 1989 representation case hearing was changed
by mid-June 1990. Accordingly, Dickerson-Chapman I’s finding that
he was an employee is immaterial in the instant case.
34 Highland Superstores, 301 NLRB 199, 207 (1991); O’Hare-
Midway Limousine Service, 295 NLRB 463, 464 (1989), enfd. 924
F.2d 692 (7th Cir. 1991); Serv-U-Stores, 234 NLRB 1143, 1144
(1978); American Tempering, 296 NLRB 699, 707 (1989), enfd. 919
F.2d 731 (3d Cir. 1990). As printed in the cited portion of the
Board’s bound volume 295, the third sentence in the first full para-
graph of O’Hare-Midway, supra at 464, differs from the sentence as
it appeared in the slip opinion as issued. As signed by me and adopt-
ed by the Board, that sentence read (emphasis added, footnote omit-
ted):
With the exception noted in the margin, I perceive nothing in
the other portions of the unfair labor practice case record which
adds anything, one way or the other, to the evidence on which
the Regional Director based his finding that drivers of O’Hare-
Midway cars are statutory employees.
The printed report omits the emphasized words.
view with Spiller, Wampler stated that the Company had de-
cided when the union activity began that the Company was
going to fight the Union. Moreover, at the last employee
meeting of company personnel before the union activity
began, when Isaiah McDonald asked Company Vice Presi-
dent Stewart if he could tell them when they were going to
get a raise, Stewart replied that they had not earned a raise,
that they were not working hard enough, that they should be
glad to have a job, and that he would give them a raise when
he got ready. Furthermore, in the past raises had been given
in June or July rather than November; had been much lower
than those given in November 1989;32 and (unlike the No-
vember 1989 raises) had excluded all employees with less
than 1 year’s service. Wampler’s testimonial explanation for
why no raises were given until November 1989—namely,
unanticipated insurance premium increases which were paid
between July and October—was not given to the workers
when the subject of raises was brought to Vice President
Stewart’s attention in the fall of 1989 but before the union
activity began in mid-October. Accordingly, I do not credit
Wampler’s testimony that the timing of the November 1989
raises had nothing to do with the Union’s appearance. Rath-
er, I conclude that these raises were given in November 1989
for the purpose of discouraging support for the Union.
2. Whether certain individuals were statutory
supervisors before July 1990
a. Introduction and controlling legal principles; the
effect of Dickerson-Chapman I
Section 2(11) of the Act defines a supervisor as
any individual having authority, in the interest of the
employer, to hire, transfer, suspend, lay off, recall, pro-
mote, discharge, assign, reward, or discipline other em-
ployees, or responsibly to direct them, or to adjust their
grievances, or effectively to recommend such action, if
in connection with the foregoing the exercise of such
authority is not of a merely routine or clerical nature,
but requires the use of independent judgment.
Anyone who in the employer’s interest has the authority to
use independent judgment in the execution or recommenda-
tion of any of the functions listed is a supervisor. Dickerson-
Chapman I, supra, 964 F.2d at 497; Monotech of Mississippi
v. NLRB, 876 F.2d 514, 517 (5th Cir. 1989); Ohio River Co.,
303 NLRB 697 (1991); Bricklayers Local 6 (Key Water-
proofing), 268 NLRB 879, 883 (1984). However, the burden
of proving that an individual is a supervisor rests with the
party alleging that supervisory status exists. The Door, 297
NLRB 601 fn. 5 (1990); Rahco, Inc., 265 NLRB 235, 247
(1982); Aquatech, Inc., 297 NLRB 711, 717 (1990), enfd.
926 F.2d 538 (6th Cir. 1991); Pacific Dry Dock Co., 303
NLRB 569 (1991).
As previously noted, Dickerson-Chapman I found, on the
basis of the representation case record, that the 14 individ-
uals named in the margin occupied employee rather than su-
pervisory status on March 30, 1990, the date of the represen-
tation election.33 The complaints allege that the Company
violated Section 8(a)(3) and (1) of the Act by certain conduct
directed toward these individuals in November 1989 and to-
ward some of them in July 1990. No contention having been
raised that any of these 14 individuals acquired supervisory
status between March and July 1990, Dickerson-Chapman I’s
finding as to such individuals, although it does not constitute
res adjudicata with respect to these specified complaint alle-
gations, is entitled to persuasive relevance.34
Moreover, Dickerson-Chapman I also bears on the status
of the six individuals as to whom it declined to rule, and of
certain individuals who were allegedly hired as supervisors,
or who allegedly acquired supervisory status, after the rep-
resentation election. Thus, the company has contended since
at least its initial brief in the representation proceeding, and
continues to urge before me, that all of the individuals to
whom it has attached the classification of service wire fore-
man, pole foreman, conduit foreman, cable foreman, and
crew leader responsibly direct their crews, within the mean-
ing of Section 2(11). As to this contention, the evidence ad-
duced before me substantially tracks or is cumulative to the
evidence in the representation case. Moreover, as to this con-
tention, the evidence as to each particular kind of crew is
much the same. Accordingly, Dickerson-Chapman I’s finding
of nonsupervisory status with respect to four service wire
foremen (Freeman, Odess Jones, Miner, and Taylor), two
pole foremen (Easterling and Hicks), one conduit foreman
(Vernon Wilson Jr.), and two cable foremen (Alford and Lee
Field Johnson), strongly points to the conclusion that neither
is responsible direction performed by the other individuals
who allegedly supervise such crews and whose status was
not determined in Dickerson-Chapman I. Further, since at
least the November 28–30, 1989 representation case hearing,
922 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
35 Thus, the hourly rates of allegedly supervisory service wire fore-
men varied between $7 (Miner and Odess Jones) and $5 (Taylor);
the hourly rate of service wire foreman/admitted supervisor, Parker,
was $7. The hourly rates of allegedly supervisory cable foremen var-
ied between $8 (Owens and Spiller) and $5 (Alford). The two alleg-
edly supervisory conduit foremen received $9 an hour (Moore), and
$8 (Vernon Wilson Jr.). The two allegedly supervisory pole foremen
received $8 an hour (Easterling) and $7.50 (Hicks). The hourly rates
of crew leaders varied between $5.75 (Pitchford) and $4.60 (Joe L.
Smith).
36 Alleged Supervisor Joe L. Smith was paid $4.60 an hour; al-
leged Supervisors Taylor, Alford, and Obie were paid $5 an hour;
and employees allegedly supervised by Odess Jones or Stafford were
paid between $5 and $5.50 an hour.
as to the ‘‘foremen’’ the company has relied on the job de-
scriptions which it issued with respect to all of them in early
November 1989 and which would indicate supervisory power
if taken at face value. The little weight accorded to these job
descriptions in Dickerson-Chapman I (see especially 964
F.2d at 498 fn. 6) strongly points to according them similarly
little weight as to all the ‘‘foremen’’; indeed, the instant
record shows that these job descriptions were issued for the
very purpose of providing a paper basis for the company’s
effort to exclude all of them from the bargaining unit (see
infra, part II,E,3). Finally, Dickerson-Chapman I’s rejection
of the company’s contention that the same authority was
vested in all individuals to whom the company had attached
the same job title points to rejection of that same contention
in the instant case. Indeed, even disregarding the approach
taken in Dickerson-Chapman I (see especially 964 F.2d at
497–498), I do not accept the generalized testimony of Wam-
pler and other management witnesses that all the individuals
in each such classification had the same authority, in view
of credible specific testimony otherwise.
As to the company’s managerial structure and the duties
of the workers, Dickerson-Chapman I found as follows (964
F.2d at 495–496):
[The Company] is a ditch-digging contractor that
digs ditches, sets poles, and supplies maintenance crews
for South Central Bell. At the time of the hearing, there
were four persons clearly in management positions:
general manager J.M. Stewart, office manager Bryan
Wampler, and field superintendents Howard Berry and
Robert Ainsworth. The remaining employees were di-
vided into different construction crews: conduit, pole,
cable, boring, and service wire crews, each headed by
a foreman. Additionally, there were maintenance crews
headed by crew leaders.
With respect to the routine work day, the record es-
tablishes the following: All of the employees usually
report for work around 7:00 a.m. Each of the foremen
and crew leaders receive job descriptions or blue prints
from one of the managers. The crews then gather the
necessary tools and supplies and go [to] the various job
sites scattered across the area. For the most part, the la-
borers are supervised by their foreman or crew leader;
the managers do, however, go out to the job sites on
occasion. The services performed by the crews are
mostly routine and the laborers require little super-
vision. The foremen and crew leaders spend most of
their time operating machinery, but they also perform
manual labor alongside the crew members. They are
paid hourly wages, but are paid more than the rest of
the laborers. The foremen and crew leaders with senior-
ity receive more vacation.
b. Status before July 1990 of all alleged supervisors
(1) The supervisory status vel non of all the individuals
whose status is in dispute, the following evidence either
was not adduced or was incompletely adduced in
Dickerson-Chapman I but was adduced in the
unfair labor practice case
(a) Relative pay
Each of the alleged supervisors was paid more than any
of the employees whom he allegedly supervised. However,
the wages of the alleged supervisors varied within the classi-
fication which the Company has assigned to them.35 More-
over, some of the alleged supervisors were paid less than ad-
mitted employees on other crews.36
(b) Paid vacations
Both ‘‘foremen’’ and laborers are entitled to 1 week’s paid
vacation after 1 year’s continuous service. However, laborers
are required to take their paid vacation during the week of
Christmas or New Year’s Day, which days are paid holidays;
so far as the record shows, foremen can take their paid vaca-
tions at any time approved by the superintendent. Moreover,
after 5 years’ continuous service, foremen, but not laborers,
are entitled to 2 weeks’ paid vacation. Under this policy, Lee
Field Johnson, Odess Jones, McPherson, and Spiller each re-
ceived 2 weeks’ paid vacation; Wampler was not told by any
of them that he was receiving vacation benefits to which he
was not entitled.
(c) Responsibility for productivity
Beginning no later than September 1984, the Company
posted on a weekly basis in the foremen’s room a notice
which showed the relative productivity (labor costs as a per-
centage of sales) of each service wire, cable, maintenance,
pole, and conduit crew. Each crew was identified by the
name of the head of the crew; the notices included no job
titles, but named those individuals to whom the Company
has attached the job title of foreman or crew leader. Because
of Wampler’s time constraints, the Company stopped posting
these notices in April 1986, although the notice for the week
of April 19, 1986, was still on the bulletin board at least as
923DICKERSON-CHAPMAN, INC.
37 The 1986 lists in evidence include the name of Stafford, Burkes,
Spiller, McDonald, Odess Jones, Miner, Freeman, Easterling, Hicks,
McPherson, Pitchford, Owens, Wade (who then worked on a cable
crew), Lee Field Johnson, Otha Lee Wilson, and Moore.
38 He so testified after testifying that a particular truck, which was
listed as unmanned, had not been manned at the time the list was
prepared because of Easterling’s death, about January 1990.
39 Stewart, Berry, Wampler, Ainsworth, Parker, Hayman, and
Abel.
40 Speed, Woodson, and Willis.
41 Wade, Hicks, Taylor, Freeman, Miner, Joe L. Smith, and
Pitchford.
42 Lee Earl Moore and Owens.
late as February 1991.37 Wampler testified before me that
foremen had come to him with complaints that their wages
were too low in view of ‘‘the percentage that they were
showing,’’ and that this had continued to the present ‘‘for the
most part.’’ I do not credit his testimony in this latter re-
spect, in view of his testimony that the periodic posting of
weekly ‘‘percentages’’ had been discontinued almost 5 years
before he so testified, and in view of the credible testimony
of several of the alleged supervisors that they had never been
told to hold down labor costs.
(d) Assignment of radios
The Company’s opposition to the General Counsel’s Mo-
tion for Summary Judgment in Dickerson-Champan I con-
tends that a document received in evidence before me as Re-
spondent’s Exhibit 109 ‘‘shows that radios are assigned to
foremen, not crews.’’ Wampler testified before me in Janu-
ary 1991, as a witness for the General Counsel, that the
Company was trying to have all of the vehicles radio
equipped, and that the main function of the radios is commu-
nication between foremen and the clerks. He testified at the
November 1989 representation proceeding that the ‘‘two pole
crews do [have radios], because if we have an emergency,
we need to be able to get a hold of them on a moment’s
notice. That was the whole basis for putting in radios in the
first place.’’
In February 1991, Wampler testified before me on direct
examination that Respondent’s Exhibit 109 is a listing of
who was assigned to each of the Company’s various radio
units; that virtually all of the people listed thereon are either
foremen, crew leaders, or truck drivers; and that the docu-
ment had been posted ‘‘a minimum of three to five years’’—
that is, since at least February 1988. On cross-examination,
Wampler testified that this list ‘‘would have been made most
likely some time between January and April of 1990.’’38 The
document includes Elio Victorial as a ‘‘driver’’; Victorial
was hired about March 1988 as a laborer whose duties did
not include driving a truck, was a laborer during an undis-
closed period or periods which included October 1989, and
about 1989–1990 ‘‘worked as a foreman trainee as [the Com-
pany was] trying to train him to be a service wire foreman.’’
Turner, who is on this list, was a crew leader between about
the winter of 1989 and early 1990, was a laborer between
then and June or July 1990, and was a driver as of February
1991. Of the remaining 19 persons listed on this document,
about 7 are admitted supervisors,39 about 3 are drivers not
claimed to be supervisors,40 about 7 are workers found non-
supervisory in Dickerson-Chapman I,41 about 2 are workers
whose status Dickerson-Chapman I left unresolved,42 and 1
(Lightscy) occupies a status which is undetermined and is ir-
relevant to the issues here.
(e) Hiring
A majority of the Company’s personnel are uneducated
common laborers who perform backbreaking work described
by Wampler as ‘‘generally menial type.’’ The Company ex-
periences a 90- to 95-percent turnover on laborers each year;
75 to 80 of them leave annually, 80–90 percent by quitting.
When the Company needs new laborers, Wampler normally
telephones the Mississippi Employment Security Commission
(the MESC) and requests it to send out a specified number
of laborers. Inferentially, the MESC will send out persons
who appear capable of performing hard manual labor, and
who have either applied for unemployment compensation or
requested the MESC’s services in finding work. The MESC
gives each such person an introduction card which names
Wampler as a ‘‘contact person.’’ When such a person comes
to the Company’s facility, Wampler or (in his absence)
someone else in the personnel office gives that individual an
application form to fill out, takes that application, and in-
structs him to be out on the front steps of the Company’s
facility on the next working day at 6:45 a.m., 15 minutes be-
fore dispatch time.
Wampler testified before me that the foregoing actions
aside, he himself does not get involved with the hiring of
such applicants, and at least implied that such hiring is ef-
fected by the foremen alone. He testified that before October
1989, when the union drive began, the Company had fewer
applicants than vacancies, and Wampler would tell the fore-
man with the longest existing opening that he had ‘‘better
get’’ an applicant ‘‘because I have got four more right be-
hind you that would be glad to have him.’’ Wampler testi-
fied, in effect, that on occasion only one applicant appears
on the steps. Wampler further testified in early 1991 that
more recently, the foremen inspect the laborers on the steps
and hire ‘‘whatever laborers that they need,’’ normally on
the basis of whether a particular laborer appears capable of
doing hard physical labor, whether he is properly dressed for
the job, whether he has transportation, and whether he ap-
pears likely to come to work regularly and on time. Wampler
further testified that the foremen might ask the applicant a
few questions, but are ‘‘not usually worried too much about
the [written] application.’’
As to many of the alleged supervisors, there is no evi-
dence that they have ever had any connection with hiring
anyone sent over by the MESC. As to the alleged super-
visors, evidence of such connection is summarized under
their respective names.
A document posted in the foremen’s room in 1984 (a simi-
lar version having been posted in 1978) states, inter alia (em-
phasis in the original), ‘‘The Foreman is responsible for sign-
ing up any new men on his crew, for both payroll and insur-
924 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
43 His testimony indicates that ordinarily, he is not an observer
during the period when laborers sent over by the MESC first join
a crew being dispatched.
44 This portion of Respondent’s rejected Exh. 146, and a similar
and unlabeled portion of Respondent’s rejected Exh. 170, are headed
‘‘1990 surplused.’’ As whether the laborers under this heading were
in fact ‘‘surplused,’’ and the connection thereto of the listed ‘‘super-
visors,’’ see supra at part II,D.
45 Because these exhibits were rejected when offered, the General
Counsel has had no occasion to check against any allegedly support-
ing documents the accuracy of the entries on the rejected exhibits.
Accordingly, no finding as to their accuracy can be made by me.
However, I note that some of these entries are inconsistent with, or
at least arguably inconsistent with, the received evidence. Thus, the
received evidence does not contradict the following testimony: (1)
J. D. Freeman’s testimony that he did not hire or recommend the
hire of Leotis Moss; (2) Joe L. Smith’s testimony that he had never
hired anyone, or recommended that he be hired; (3) Vernon Wilson
Jr.’s testimony that he did not hire Luther Harville, Clark Thompson,
Henry Gray, or Ernest Barber; and (4) Otha Lee Wilson’s testimony
that he played no part in the hire of Darren Carter, John Gary, or
Ernest Barber. James Spiller’s connection with the hire of Charles
Richardson is described, infra, part II,E,2,b(3)(f). Some of the dis-
charges listed on the rejected exhibits are discussed in the following
subsequent portions of this decision:
ance. This must be done before the new man is allowed to
go out in the morning.’’ So far as the record shows, all of
the paperwork in question is handled by the Company’s cler-
ical staff, and there is almost no evidence that the ‘‘fore-
man’’ ever in practice checks into the matter (although see
part II,E,2,b(3)(b) infra).
The Company’s posthearing brief (pp. 65–66) requests me
to reconsider my action in rejecting Respondent’s Exhibits
117, 146, 169, and 170, all of which the Company’s brief
describes as ‘‘summaries of admissible, but more voluminous
information,’’ and which were offered as probative of the
truth of the contents. Rule 1006 of the Federal Rules of Evi-
dence provides, ‘‘The contents of voluminous writings [or]
recordings . . . which cannot conveniently be examined in
court may be presented in the form of a chart, summary, or
calculation.’’ To the extent that these rejected exhibits list as
to certain individuals on the Company’s payroll their names,
dates of hire, dates of discharge, and foremen on hiring, they
constitute summaries of company payroll records which, if
accurate, would be admissible under Rule 1006.
However, the remaining entries on these rejected exhibits,
without which entries the exhibits would not serve the pur-
pose for which the Company wants to use them, do not con-
stitute mere summaries of company records; rather, some of
these entries set forth legal conclusions, others turn on testi-
mony by Wampler as to events where he was not shown to
have been present and probably was not present (see infra,
fn. 43), and others turn on controverted portions of the testi-
mony of company witnesses (mostly Wampler). Thus, al-
though Respondent’s rejected Exhibit 146 contains lists of
names headed ‘‘Supervisors,’’ there is no evidence that any
of these individuals has the job title of ‘‘supervisor,’’ and
whether some of them were statutory supervisors is one of
the principal legal issues in this case. Further, although Re-
spondent’s rejected Exhibits 117 and 169 are both headed
‘‘Summary of Hires Recommended or Accomplished by
Foremen and Crew Leaders,’’ the Company does not claim
to have any records which show, even indirectly, rec-
ommendations for hire made by foremen and crew leaders;
the individual entries on these rejected exhibits do not pur-
port to distinguish between actual hiring and recommenda-
tions for hire; and whether particular conduct constitutes a
recommendation is frequently an issue less than clearcut.
Moreover, although Respondent’s rejected Exhibits 117 and
146 purport to state that certain named ‘‘foremen and crew
leaders’’ or ‘‘supervisors’’ hired certain named employees,
and the heading on Respondent’s rejected Exhibit 169 indi-
cates that it includes such information, the documents on
which the entries are admittedly based consist of the Compa-
ny’s records as to the crew the employee started work on,
although a number of the allegedly supervisory foremen and
crew leaders denied hiring such employees (see infra, fn. 45),
Wampler’s testimony that laborers are invariably hired by the
foreman or leader of the crew to which they are first as-
signed is by his own admission inaccurate as to certain peri-
ods, he probably was not present when most of the laborers
were hired,43 and these rejected exhibits state that certain in-
dividuals were hired by Stewart, Berry, or Wampler, al-
though none of them was a foreman or crew leader at any
material time and these entries were admittedly based en-
tirely on Wampler’s memory. Further, Wampler testified that
a list of individuals on Respondent’s rejected Exhibit 146,
which list bears no label on the face of the document, should
be designated as ‘‘the supervisor involved in whatever trans-
action took place . . . the supervisor who was carrying out
the activity’’; laying to one side Wampler’s ‘‘supervisor’’
designation, Wampler’s explanation makes it almost impos-
sible to determine what these entries are purportedly sum-
maries of.44
Accordingly, I adhere to my action at the hearing in reject-
ing these proposed exhibits as probative of the truth of their
contents. See Soden v. Freightliner Corp., 714 F.2d 498, 506
(5th Cir. 1983); U.S. v. Stephens, 779 F.2d 232, 238–240
(5th Cir. 1985); James v. Nico Energy Corp., 838 F.2d 1365,
1373 fn. 7 (5th Cir. 1988); see also White Industries v.
Cessna Aircraft Co., 611 F. S. 1049, 1069–1070 (Mo. 1985);
Gomez v. National Steel Corp., 803 F.2d 250, 257–258 (6th
Cir. 1986); In re Snider Farms, 83 B.R. 977, 983 (N.D. Ind.
1988). Even to the limited extent that such exhibits were re-
jected by reason of the misleading headings, no different re-
sult is called for by U.S. v. Smyth, 556 F.2d 1179, 1184–
1185 (5th Cir. 1977), rehearing denied 557 F.2d 823 (5th
Cir. 1977), cert. denied 434 U.S. 862 (1977). The Court there
stated that in resolving a fact issue during a bench trial, the
trial court ought to determine whether a summary would add
to or detract from the proper weight to be afforded the
source documents, and that ‘‘because summaries are elevated
under Rule 1006 to the position of evidence care must be
taken to omit argumentative matter in their preparation’’
(556 F.2d at 1184 fns. 11–12). The Company’s contention
that company records as to the identity of a laborer’s first
foreman or crew leader are regularly used by Wampler to
find out who hired the laborer apparently relies on his testi-
mony that he so uses them in order to ascertain what position
to take as to a laborer’s unemployment compensation claim,
for which purpose it is immaterial to determine who decided
to hire the laborer and whether this decision was made in the
exercise of independent judgment.45
925DICKERSON-CHAPMAN, INC.
Allegedly discharged
employee Discussion
Otis Brown part II,E,2,b(2)(a)
Claude Watson part II,E,2,b(2)(b)
Felton Martin part II,E,2,b(2)(f)
Joe Williams part II,E,2,b(2)(f)
Lavelle [Graves] parts II,E,2,b(2)(f), (4)(b)
Charles Williams part II,E,2,b(2)(i)
Henry Gray part II,E,2,b(2)(j)
Sedrick Gaines part II,E,2,b(3)(a)
Claude Bass part II,E,2,b(3)(b)
Eddie Coleman part II,E,2,b(3)(g)
Joe Broome part II,E,2,b(3)(g)
Tyrone Mitchell part II,E,2,b(4)(e)
46 Vernon Wilson Jr. credibly testified that he thus filled out a
timesheet every day when working with a conduit crew and when
he was ‘‘running a backhoe out there, pulling a backhoe from job
to job.’’
47 Wampler and Ainsworth testified that Lee Field Johnson attrib-
uted to vision difficulties his failure to fill out these and other forms.
Johnson testified to possessing only limited literacy.
However, in reliance on Upper Mississippi Towing Corp.,
246 NLRB 262, 271–272 (1979), I will receive Respondent’s
Exhibits 117 and 169, both of which were authenticated by
Wampler, solely in connection with the hire of Henry
Kincaid and solely for the purpose of impeaching Wampler’s
testimony before me that Kincaid was hired by Jewel Owens
(see, infra, part II,E,2,b(3)(e)). Respondent’s Exhibit 117
states that Kincaid was hired by Hill (who testified for the
Company and was not asked about this matter), and Re-
spondent’s Exhibit 169 identifies Hill as Kincaid’s foreman
on hiring, who (Wampler testified) is the foreman who hired
the worker in question. I note, moreover, that a ‘‘Declara-
tion’’ which was executed by Wampler on February 27,
1990, and was attached to the Company’s May 21, 1990 re-
quest for review of the Regional Director’s Supplemental De-
cision and certification of representative, likewise states that
Kincaid was hired by Hill.
(f) Filling out of forms
(i) Timesheets
The Company uses a form captioned ‘‘Daily Labor Re-
port’’ which contains a column calling for a list of ‘‘Employ-
ees’’; a set of columns grouped as ‘‘Distribution-Labor’’
with respective headings ‘‘Hourly Rate,’’ various ‘‘Job Num-
bers,’’ and ‘‘Total Hours’’; another set of columns grouped
as ‘‘Cost Distribution’’; and a blank calling for the ‘‘Fore-
man’’ and ‘‘Date.’’ Wampler testified that all the foremen
and crew leaders ‘‘normally’’ fill out this form on a daily
basis, to the extent that the foreman or crew leader lists the
names of each member of the crew (including his own),
states the number of hours each has worked, and signs his
name in a blank before the printed word ‘‘foreman.’’ Spiller
credibly testified that although he himself inserted the hours
on these timesheets, his wife or a daughter entered the names
of the crewmembers and, sometimes, Spiller’s purported sig-
nature. Employee Robert Lee Bell, who worked on Lee Field
Johnson’s crew, credibly testified that each worker on the
crew wrote his own name, although not his hours, on the
time sheet. Some of the other alleged supervisors credibly
testified that they themselves performed this timesheet func-
tion, and none of them denied performing it.46 Although
Wampler’s testimony at least implies that the foremen and
crew leaders use these forms to show how each individual’s
hours should be apportioned between jobs, no such appor-
tionment appears on any of the filled-in ‘‘Daily Labor Re-
ports’’ received in evidence; indeed, McPherson and Odess
Jones put their hours entries in the ‘‘hourly rate’’ column.
Spiller (with his female relatives’ assistance), Hill and the
Wilsons also made, but did not turn in to the office, a sepa-
rate time record for their respective crews, in order to facili-
tate resolution of any dispute between the Company and a
worker about the number of hours he was to be paid for.
(ii) Daily work reports ‘‘A’’
The disputed individuals to whom the Company gave the
job description of cable foreman are: Alford, Burkes, Hill,
Lee Field Johnson, McDonald, McPherson, Obie, Owens,
Spiller, and Stafford. Wampler testified that cable foremen
‘‘normally’’ fill out and turn in a form headed ‘‘Daily Work
Report/Misc. Exhibit ‘A’ Work,’’ and that it is their respon-
sibility to fill them out or provide the necessary information
to fill them out. The ‘‘Daily Work Report A’’ calls for en-
tries under ‘‘Authorized by,’’ ‘‘Location of Work,’’ ‘‘Foot-
age,’’ ‘‘Type & Pair,’’ ‘‘Reel Number,’’ ‘‘Junked,’’
‘‘Depth,’’ ‘‘Cable Readings’’ (‘‘Began With’’ and ‘‘Ended
With’’), ‘‘Asphalt—Gravel—Concrete—Sod—Removed and
Replaced,’’ and ‘‘Miscellaneous Items’’; a list of the amount
of cable used and left at each location; and a list of ‘‘Clo-
sures & Markers with Locations.’’ The printed word ‘‘Fore-
man’’ appears at the end of the form following a blank for
a signature. Wampler testified that the Company uses these
documents for billing purposes.
Wampler testified on direct examination that since a cata-
ract operation some time after June 1989, Lee Johnson had
been able to fill out company timesheets and other forms
very accurately and very well; on cross-examination, Wam-
pler corroborated Johnson’s testimony that he never filled out
these forms, but instead gave written notations and oral re-
ports to office personnel who in turn filled out these forms.47
However, Wampler testified at this point that all the other
‘‘cable foremen’’ filled out the actual forms. Immediately
thereafter, he testified that as to these ‘‘A’’ forms and the
‘‘Daily Work Report/Misc. Exhibit ‘B’ Work’’ forms, the
forms bearing Spiller’s name were filled out by Berry on the
basis of Spiller’s oral reports and notations on the blueprint.
Wampler testified that certain ‘‘A’’ forms bearing October
1989 dates (and also certain ‘‘B’’ forms) were partly written
by McPherson, and partly written by someone else (mostly
Berry) on the basis of information provided by McPherson.
McPherson testified that he did not fill out any of these
forms and that Field Superintendent Berry filled them out on
the basis of McPherson’s oral and informal written reports to
Wampler. All the handwriting on the forms attributed to
McPherson appears to be written by the same person, and re-
sembles the handwriting on the photocopied similar forms
(which bear Spiller’s name) received in evidence as Re-
spondent’s Exhibit 126, which Wampler testified were filled
in by Berry. Moreover, McPherson undisputedly inserted the
handwritten entries on the original documents of which pho-
tocopies were received into evidence as Respondent’s Exhibit
77; and although the photocopies are extraordinarily poor,
they do not appear to reflect handwriting by the same person
who wrote Respondent’s Exhibit 125 (see particularly the
926 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
48 Alford, Burkes, McDonald, and Owens did not testify in either
the representation or the unfair labor practice hearing. Obie testified
only at the representation hearing, a day or two after being told that
he had a new job of cable foreman.
49 This document is dated July 19, 1990, about 2 weeks after the
safety meeting. As of January 1991, Hill was a service wire fore-
man.
50 This document is dated July 19, 1990. After October 1990, Wil-
son was a service wire foreman.
51 Part of Wampler’s quoted testimony is directed to a document
marked for identification as R. Exh. 11-D but never offered into evi-
dence as such. The record shows that this document is the same as
G.C. Exh. 21-C.
52 The record also contains such a form turned in by Ronald John-
son, whom the Company classified as a bore foreman.
53 Wampler so testified when authenticating an undated note, in his
handwriting, which states, ‘‘Linda/We need 1990 attend record to
support J. D’s action concerning this employee.’’ Wampler testified
that he did not know whether ‘‘Linda’’ (inferentially, payroll clerk
Linda Shaw) ever received this information from Freeman. The back
of Brown’s attendance form contains a note in Wampler’s hand-
writing, either undated or with a date of April 25, 1990, which
states, ‘‘Linda/Note the final warning in Otis Brown’s file/per JD.’’
figure 8s). For these and demeanor reasons, I credit McPher-
son.
As to the remaining cable foremen, Wampler’s testimony
is uncontradicted, and his unreliability as to Lee Field John-
son and McPherson does not appear sufficient to warrant dis-
believing Wampler as to the other cable foremen.48
(iii) Daily work reports ‘‘B’’
Wampler testified that a form captioned ‘‘Daily Work
Report/Misc. Exhibit ‘B’ Work,’’ and variously identified in
the record as General Counsel’s Exhibit 21-B and Respond-
ent’s Exhibit 11-C, ‘‘is used by mainly the conduit crews
. . . it is mainly used by most of the foremen and crew lead-
ers.’’ Before me, he testified:
The foreman will normally put down the location of
work, what type of work he was doing, how many
hours of [himself] and his employees are involved, how
much equipment he has used, and any other necessary
information that we might need to be able to bill this
particular type of work.
At the November 1989 representation case hearing, Wampler
testified that foremen or crew leaders have been responsible
for filling out this form ‘‘for several years,’’ and that, inter
alia, they ‘‘allocate the number of hours that they had on this
job to the various categories of laborer . . . list what equip-
ment they have used and how long; and, optionally, they can
put down what employees they have used.’’ Wampler testi-
fied before me that under ordinary conditions, nobody but
foremen or crew leaders fills out this form, that it is ‘‘nor-
mally the foreman’s responsibility to either provide this or
provide the necessary information for it,’’ and that if it is not
filled out, the Company does not get paid for the work in-
volved.
Otha Lee Wilson, to whom the Company gave the job title
of conduit foreman in March 1990, credibly testified that he
did not fill out such forms until midsummer 1990, when
Wampler told him to start filling them out. Vernon Wilson
Jr., the only conduit foreman whom Dickerson-Chapman I
found nonsupervisory, testified that he had seen that form but
never used it. Because the Company failed to produce any
such documents filled out by Wilson, and for demeanor rea-
sons, I credit his testimony in this respect. The record in-
cludes copies of this kind of form filled out by Hill,49
McDonald, Obie, and Otha Lee Wilson.50 As previously
found, these forms were not filled out by Johnson, Spiller,
or McPherson (see part II,E,2,b(1)(f)(ii), supra).
(iv) Buried service wire forms—service wire foremen
Wampler testified that service wire foremen fill out certain
portions of a form captioned ‘‘Buried Service Wire’’ so as
to show what work order the crew is working on, what type
of work it has done on that particular order, and ‘‘any other
pertinent information that might be required.’’51 The docu-
ment calls for a signature by the ‘‘Foreman,’’ and the signed
approval of the ‘‘supervisor.’’ Of the alleged supervisors,
Freeman, Odess Jones, Luckett, Miner, Taylor, and Otha Lee
Wilson are classified by the Company as service wire fore-
men. As to Odess Jones, Wampler’s testimony about the bur-
ied service wire forms was corroborated by Jones at the rep-
resentation case hearing. Moreover, the record contains such
forms turned in, and probably filled out, by Luckett, Miner,
and Taylor.52 I accept Wampler’s testimony as to all such
‘‘service wire foremen’’ except Freeman. However, for de-
meanor reasons, I credit Freeman’s testimony (partly cor-
roborated by Odess Jones’ testimony at the representation
hearing), that as to Freeman’s crew, this type of form has al-
ways been filled out (including the blank for his purported
signature) by someone else on his crew or ‘‘They often let
one of the secretaries fill it out for me.’’
(2) The alleged supervisors found to be employees in
Dickerson-Chapman I, the following evidence was not
adduced in Dickerson-Chapman I but was adduced in
the instant unfair labor practice case
(a) J. D. Freeman
The Company contends that J. D. Freeman discharged or
effectively recommended the discharge of laborer Otis
Brown Jr. on June 6, 1990, after the Union’s certification.
The Company has a practice of entering personnel infor-
mation on the back of the employee’s attendance form. Ini-
tially, after being shown Brown’s attendance form, Wampler
testified on direct examination that Brown ‘‘was fired on
[Freeman’s] recommendations,’’ without any independent in-
vestigation to get Brown’s side of the story; and that Free-
man told Wampler that Freeman wanted him to fire Brown
because Freeman was having trouble with him on his attend-
ance. Later on direct examination, after being shown other
portions of Brown’s personnel records, Wampler testified
that Freeman fired Brown. Immediately after so testifying,
Wampler testified (emphasis added):
[T]hey went ahead and took action on [Brown]. I was
not personally, I don’t think, involved in the exact ac-
tions. And I had left [word] with our payroll clerk,
Linda [Shaw]. And she needed to get in touch with
[Freeman] and get . . . the attendance record informa-
tion from [Freeman] in order to support what actions
they had done.53
927DICKERSON-CHAPMAN, INC.
54 This entry appears after the printed entry ‘‘Week/Ending/April
21, 1990’’ and in a column headed ‘‘Memo.’’ The entries for that
week state that Brown was absent for unknown causes on Monday,
April 16, and Tuesday, April 17, and contain an asterisk in the
square for Wednesday, April 18. On a portion of the form which
does not call for any entries, Wampler’s memorandum (with the
April 25 date and his initials) is copied in a handwriting which is
not Wampler’s and appears to be the same as the handwriting of the
‘‘final warning’’ entry.
55 More specifically, the representation case record shows that on
November 2, Wampler read to Johnson the cable foreman job de-
scription, which states that he had such authority.
56 My findings in this paragraph are based on Johnson’s undis-
puted testimony at the representation case and unfair labor practice
case hearings. Johnson was the only individual with firsthand knowl-
edge of these events who testified about them. Ainsworth testified
for the Company before me, but was not asked about the ‘‘Snow
Continued
On the back of Brown’s attendance form is a note, in
Wampler’s handwriting and with his initials, which states,
‘‘J. D. Freeman informed me that he was giving his em-
ployee Otis Brown final warning [‘one last chance’] this
morning, for entry into his [personnel] record’’ (emphasis
added). Although this notation is dated April 25, 1990, an
entry on Brown’s attendance form states that he received a
‘‘final warning’’ during the week ending Saturday, April
21.54
In view of this unexplained discrepancy in Brown’s per-
sonnel records, in view of Wampler’s inconsistencies and
eventual failure of memory as to the circumstances of
Brown’s discharge, and for demeanor reasons, I credit Free-
man’s testimony that he did not fire Brown or recommend
that he be fired; that ‘‘some days he would taken off, and
they just told me one day he was going to have to let him
go’’; and that Freeman did not tell Wampler, as to Brown’s
attendance, ‘‘Well, I will give him one last chance.’’ I note
that Brown’s attendance would likely be of limited concern
to Freeman, in view of his testimony that his crew consists
of only two individuals including him, and when the other
man is absent Freeman goes to Wampler or Stewart ‘‘and [I]
tell them I need a man to go with me.’’
Freeman credibly testified that he had heard Company
Vice President Stewart, after he had got a new man for Free-
man’s crew, tell that man that Freeman was going to be his
‘‘boss.’’
(b) Earl Howard
In contending that Earl Howard was a supervisor, the
Company relies on his connection with the discharge of
Claude Watson on May 14, 1990, after the Union’s certifi-
cation. Wampler wrote on Watson’s attendance form that he
had been fired because of ‘‘Failure to come to work on regu-
lar [and] consistent basis.’’ The attendance form itself shows
that Watson had been absent, for unknown reasons, on two
occasions, including May 10, in about 2-1/2 months. A nota-
tion by Wampler on the back of Watson’s attendance form
and dated May 15, 1990, states that on May 11, 1990, Earl
Howard had advised Wampler that Howard intended to re-
place Watson because of his continuing tardiness and ab-
sence problem; and that Wampler ‘‘told Mr. Howard I con-
sidered his decision very appropriate, and advised him on the
proper procedure for carrying out his intentions. Mr. Howard
subsequently replaced Watson on the following Monday
5/14/90 and left Watson to be terminated.’’ Wampler testi-
fied to having little independent recollection of this incident,
and Howard did not testify. Wampler’s testimony that How-
ard fired Watson is inconsistent with Wampler’s memoran-
dum, which as to this matter I regard as more reliable than
his testimony. Wampler testified that Howard expressed con-
cern with Watson’s tardiness, as well as his attendance.
Wampler further testified that Howard said that ‘‘he wanted
to do something about the situation,’’ and that before Watson
was fired, no company official made any independent inves-
tigation or got the employee’s side of the story. I credit the
testimony of Wampler summarized in the two preceding sen-
tences. However, I do not regard Wampler’s memorandum as
probative regarding whether Howard played a role in select-
ing Watson’s replacement.
(c) Lee Field Johnson
Lee Field Johnson testified before me on January 7, 1991,
that he got in charge of a crew ‘‘four or five years, or less,
ago’’; at the representation case hearing, he testified that he
had been filling out for 10 or 12 years daily labor reports
which he signed in a blank which was followed by the print-
ed word ‘‘foreman.’’
Johnson testified before me that on November 2, 1989, he
had been told by Wampler that Johnson could hire or fire
people. This is shown, in effect, in the representation case
record which underlies the conclusion in Dickerson-Chapman
I that Johnson was not a supervisor.55 He further credibly
testified before me that he had been told by various super-
visors over the years, that if a man on his crew would not
work, ‘‘run him off.’’
The Company contends that Johnson discharged or effec-
tively recommended the discharge of laborer Ian Griffiths.
On October 6, 1986, Johnson and two other persons in the
Company’s employ were riding as passengers to a jobsite in
a company truck driven by Griffiths, referred to in the record
as ‘‘Snow White’’ because of his blond hair. After an argu-
ment with Johnson about whether, to reach the jobsite, Grif-
fiths should have turned at a particular intersection, Griffiths
grabbed Johnson around his neck a couple of times. Johnson
reached for his pocket, where he thought (mistakenly) he had
a knife, and told Griffiths to pull over so Johnson would not
kill him. Griffiths did slow down, whereupon Johnson got
out of the truck and told the other passengers to do the same
‘‘so they did not get killed.’’ Then, all three walked to a pay
phone, from which Johnson telephoned Field Superintendent
Ainsworth’s office and reached Ainsworth’s secretary. John-
son told her to tell Ainsworth that Johnson needed him out
there, and told her where the workers were waiting. When
Ainsworth arrived, Johnson told Ainsworth the location of
the job the crew was heading for and the route that Griffiths
wanted to take, and further said that Griffiths had ‘‘jumped
on’’ Johnson. Ainsworth asked where the truck was. Johnson
said that Griffiths ‘‘is running up and down the streets in it
is all I know.’’ At Ainsworth’s instructions, the three waited
at the telephone booth until another company worker,
‘‘Freddie,’’ arrived with another Company truck. ‘‘Freddie’’
drove the three workers back to the Company’s facility; they
never did reach the jobsite they had originally been dis-
patched to.56
928 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
White’’ incident. In describing this incident, the Decision and Direc-
tor of Election attributes Ainsworth’s conduct to Berry.
57 Johnson testified, in effect, that the crew’s destination was in a
direction opposite to the route taken by Griffiths.
The back of Griffiths’ attendance form contains an undated
notation by Wampler which states, in part, ‘‘Disobeyed in-
struction on route to job/went up I-55 instead of 220 a closer
route.57 Foreman tried to give directions. Employee reached
over to grab Foreman as a gesture of intended violence.’’
Griffiths’ application for unemployment compensation states
that he was discharged because of ‘‘Disagreement with fore-
man.’’ The Company’s response, filled in and signed by
Wampler, states that Griffiths had been terminated on Octo-
ber 6, 1986, for ‘‘Gross Misconduct in connection with
work. Employee physically [assaulted] his supervisor. Also
Insubordination, Absence without leave, misconduct in con-
nection with work in regards to carelessness and neg-
ligence.’’
At the representation case hearing, Wampler testified that
Johnson ‘‘had [Griffiths] brought in and fired, and we fired
him.’’ At the hearing before me, Wampler initially testified
that Johnson fired Griffiths and ‘‘after [Johnson] got rid of
the man, [Johnson] came in and basically told me the details
of what had happened.’’ Wampler then testified that after
leaving the truck being driven by Griffiths, Johnson ‘‘called
in and got ahold of Bob [Ainsworth] and myself and every-
body else to tell us what had happened and what needed to
be done. And in the meantime, the man had [come] into the
yard, and subsequently, he was fired’’; Ainsworth testified
for the Company but was not asked about this alleged con-
versation with Johnson. Wampler then testified that during
this telephone conversation, Johnson was ‘‘extremely angry’’
but did not specifically say that he wanted Griffiths fired. Fi-
nally, when company counsel asked Wampler, ‘‘Before you
fired him, did you make any independent investigation or get
[Griffiths’] side of the story?’’ Wampler merely said ‘‘No,’’
without indicating either that counsel was mistaken in assum-
ing that ‘‘you fired’’ Griffiths or that he was fired by John-
son before Johnson reported the incident to Wampler. In
view of these internal inconsistencies in Wampler’s testi-
mony, and in view of the demeanor of Wampler and Johnson
when they testified before me, I discredit Wampler’s testi-
mony that Johnson fired Griffiths, that Johnson rec-
ommended Griffiths’ discharge, and that Johnson reported
Griffiths’ conduct to Wampler. Rather, I credit Johnson’s tes-
timony that aside from his conversation with Ainsworth at
the telephone booth, Johnson did not discuss the Griffiths in-
cident with any of Johnson’s supervisors before he learned
that Griffiths had been discharged; that Johnson never dis-
cussed the incident with Wampler; that Johnson did not dis-
charge Griffiths or recommend his discharge; and that when
Johnson returned to the facility at the end of the day when
this incident occurred, he anticipated that Griffiths would be
back to work the next morning. Further, I credit Johnson’s
testimony that the morning after Griffiths’ discharge, ‘‘they’’
asked Johnson what had happened, to which Johnson replied,
‘‘I don’t know . . . I guess the guy went crazy.’’
The Company contends that Johnson effectively rec-
ommended the discharge of laborer James D. Wallace. Wal-
lace’s attendance form contains entries by Wampler stating
that on May 22, 1987, Wallace was discharged for ‘‘failure
to carry out assigned duties. Employee was directed to make
ice water for crew at the beginning of each work day by his
Foreman Lee Field Johnson . . . . Employee refused to
carry out duty even when directed by Supervisor [or, per-
haps, ‘Supervision’] R. B. Ainsworth.’’ Wampler credibly
testified that ‘‘They normally make ice water for the crews
at the beginning of the day.’’ He further testified that John-
son recommended Wallace’s discharge to Ainsworth, who
discharged Wallace. However, Ainsworth when testifying for
the Company was not asked about this incident, there is no
evidence that Wampler was present during either the Wallace
incident or the alleged Johnson-Ainsworth conversation, and
independent of Wampler’s entry in Wallace’s file, Wampler
had little or no recollection of these matters. Johnson was not
specifically asked about this incident, which occurred more
than 3 years before he testified, but testified generally that
he had never discharged anyone or recommended anyone’s
discharge. For demeanor reasons, I accept Wampler’s testi-
mony about this incident only to the extent that such testi-
mony is corroborated by his written entry.
As discussed, supra, part II,D, in August 1990 Lee Field
Johnson and two members of his crew (Calvin Carr and Rob-
ert Bell) were transferred to other crews, in connection with
a reduction in force occasioned by lack of work. Wampler
testified that when Johnson, who after his transfer had been
working as a laborer, was restored to his position as cable
foreman, he ‘‘called back’’ or ‘‘requested’’ two individual
crewmembers (Carr and Bell) who had previously worked on
Johnson’s crew, that Johnson’s request was honored by the
Company, and that this is the traditional practice. Johnson
testified that Wampler asked Johnson whether he wanted to
try new men on his crew; that Johnson said that he, Bell, and
Carr had been working together all the time; and that John-
son said that he would rather have them. As to the conversa-
tion involving Bell and Carr, for demeanor reasons I credit
Johnson.
Linden Hill, who has worked for the Company since about
January 1987, testified for the Company about two incidents,
allegedly involving Johnson, whose dates Hill was not asked
to give. Thus, Hill testified that employee Bobby Weaver
quit because Lee Field Johnson worked him so hard. Johnson
testified that Weaver had come to work late with a toothache
and a towel wrapped around his head; that ‘‘they’’ would not
let him go back on the truck; that Weaver was fired, that
Johnson had not known that ‘‘they’’ had fired Weaver until
Johnson returned to the facility that afternoon; and that John-
son did not recommend Weaver’s discharge or tell him that
he was discharged. Wampler testified at the November 1989
representation case hearing that Johnson’s men ‘‘always stay
with him or else they quit. And they like working for Lee
Field.’’ In view of Wampler’s testimony in this respect, be-
cause Weaver’s personnel records were not produced, and for
demeanor reasons, as to the Weaver matter I credit Johnson.
In addition, Hill testified that Johnson told employee Charlie
Hurst to get off Johnson’s truck, and get on another one the
next day, after ‘‘a rough argument’’ following Hurst’s action
in cutting a cable. Hill went on to testify that Hurst in fact
got off Johnson’s truck and got on another one. Johnson de-
nied making Hurst get off a job because he cut a cable, or
for any other reason. For demeanor reasons, I credit Johnson.
Ainsworth testified that Johnson had the authority to give
time off to laborers under him, and that from time to time
929DICKERSON-CHAPMAN, INC.
58 See also, infra, fn. 60.
he has reported to Ainsworth that Johnson had granted time
off to men. As to one such laborer, Charles Williams,
Ainsworth testified that Johnson would approach Ainsworth
and said that Johnson ‘‘is letting’’ Williams off, and that
thereafter Williams would approach Ainsworth and say that
Johnson had given Williams permission to take time off;
Williams so advised Ainsworth before taking the time off, if
Ainsworth ‘‘was around,’’ and afterwards if he was not.
Johnson denied going Williams time off without first check-
ing with Ainsworth. For demeanor reasons, I credit
Ainsworth. In addition, Ainsworth credibly testified that he
had heard Johnson called ‘‘boss man’’ by Company employ-
ees including laborer Charles Williams.
(d) Odess Jones
When signing a ‘‘showing of interest’’ form for the Union
on October 25, 1989, Odess Jones listed his job as ‘‘fore-
man.’’
(e) Wycliff McPherson
When signing a showing-of-interest form on October 25,
1989, Wycliff McPherson listed his job as ‘‘foreman.’’
(f) Elijah Pitchford
The Company contends that Elijah Pitchford effectively
recommended the discharge of Felton Martin and Joe Wil-
liams after the representation election.
Felton Martin’s attendance form states that he was dis-
charged on May 9, 1990, for ‘‘Failure to come . . . to work
on a regular [and] consistent basis.’’ On the back of his form
is a memorandum written by Wampler, and dated May 10,
1990, which states, in substance, that on several occasions
Wampler had spoken with Pitchford about Martin’s attend-
ance record, that on each such occasion Pitchford had said
he would talk to Martin and try to gain improvement, and
that Pitchford’s reason for tolerating Martin’s attendance was
his hard work at the jobsite. The memorandum goes on to
say that after Martin had been absent on two consecutive
days, ‘‘I think [Pitchford] just got tired of putting up with
Martin’s continued absences. When I asked [Pitchford] about
the situation he gave his approval to terminate. Martin was
subsequently terminated.’’ Wampler testified that Pitchford
‘‘grew tired’’ of Martin’s irregular attendance, that Pitchford
‘‘finally turned him [in] for termination,’’ and that the Com-
pany followed Pitchford’s recommendation without making
any independent investigation to get the employee’s side of
the story; Martin’s attendance record shows that of about 94-
workdays in 1990 before his discharge, he missed about 13
days because of unexcused absences or absences for un-
known causes. Pitchford did not testify. For demeanor rea-
sons, I regard Wampler’s memorandum as more reliable than
his testimony.
Wampler testimonially authenticated certain documents
from the personnel file of Joe Williams. These documents in-
clude his annual attendance record form, which states that he
was fired on August 22, 1990, for ‘‘Failure to carry out as-
signed duties [. See] attached report.’’ The report in question,
which is dated August 21, 1990, was written by Wampler,
and bears Elijah Pitchford’s at least purported signature,
states that ‘‘Williams would not work all day, stayed in truck
and slept . . . . Had driven stakes [at] Highway Patrol left
hammer at jobsite got back in truck [and] slept.’’ When au-
thenticating these documents, Wampler testified that
Pitchford had reported as to Williams an incident substan-
tially like the incident described in the written report, that
Williams was fired ‘‘for failure to carry out his assigned du-
ties . . . [Pitchford] had us fire him,’’ and that Williams was
fired without any independent investigation, and ‘‘just strictly
on [Pitchford’s] report.’’ When asked about this incident on
cross-examination, and without these documents in front of
him, Wampler testified that Pitchford had reported that on
the way to a ‘‘cable trouble’’ job (inferentially, an emer-
gency job which came up at the usual end of the workday),
Williams refused to go to the job but, instead, got off the
truck being driven by Pitchford and returned to the Compa-
ny’s facility in a truck being used by another crew. Wampler
testified that Pitchford ‘‘was rather angry . . . called in on
the radio and said what he wanted done . . . because he was
some kind of hot about it. He was on his way to cable trou-
ble, and that is something you don’t do.’’ Wampler went on
to testify that he did not talk to Williams; ‘‘We never talk
to laborers on things like that.’’ Because as to the Williams
discharge incident there is almost no resemblance between
Wampler’s direct testimony and his testimony on cross-ex-
amination, I regard such testimony as without probative
value. As to that incident, the only probative evidence is the
documents in Williams’ file, which documents fail to show
whether Pitchford made any recommendations as to Wil-
liams.58
(g) Joe L. Smith
The Company contends that Joe L. Smith and George
Jones effectively recommended the discharge of laborer
Lavelle Graves, and that Smith and Linden Hill effectively
recommended the discharge of laborer David Cottrell; both
of these discharges were effected after the close of the rep-
resentation case hearing.
As to the discharge of employee Lavelle Graves on May
28, 1990, Wampler was unable to testify until after reading
his notation on Graves’ attendance form. Read together,
Wampler’s notation and testimony are to the following ef-
fect: bore Foreman George Jones told Wampler that Jones
was dissatisfied with the work pace of Graves, who was then
on Jones’ crew, and suggested Graves’ transfer to another
crew. Wampler knew that Joe L. Smith had a vacancy on his
crew, and ‘‘offered’’ Graves to Smith, who agreed to give
Graves a try. About 5 minutes later, and before dispatch
time, Smith told Wampler that Graves had refused to go out
that day because it was raining, a condition which the Com-
pany does not regard as excusing a maintenance crew from
working, and that Smith ‘‘had no use for’’ Graves. At this
point, Wampler ‘‘turned him over for termination’’ without
making any independent investigation, and ‘‘strictly’’ on the
basis of what Smith and Jones had told Wampler.
Smith credibly testified that he did not remember Graves,
and that Smith did not hire him, fire him, or recommend that
he be fired. Jones testified for the Company, but was not
asked about this incident. Jones, a bore foreman with the
Company for a total of about 9 years, testified that ‘‘nor-
mally’’ men are fired after they have received two or three
different ‘‘chances’’ and have been brought in by two or
930 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
59 I credit this much of his testimony. However, I do not credit
his further testimony that he feels bound to follow a discharge rec-
ommendation by a foreman who has brought the employee in, in
view of Wampler’s further testimony that in order to limit its unem-
ployment compensation taxes the Company attempts to avoid dis-
charges for ‘‘marginal’’ reasons which would not amount to gross
misconduct under Mississippi law; ‘‘On a marginal thing . . . a lot
of time, they will circulate it around a little bit to make sure there
is plenty enough evidence to justify the termination.’’
60 At least one such form was also filled out by Pitchford on July
17, 1990.
three different foremen. Wampler testified that when a fore-
man brings a man in and expresses dissatisfaction with him,
in deciding what action to take Wampler regards the foreman
as having made a ‘‘serious statement.’’59
Before February 6, 1990, laborer David Cottrell was on
Hill’s crew. On that day, Hill told Wampler that Hill had
been having trouble with Cottrell’s attendance, and wanted
someone who would come to work more regularly, but that
Cottrell was a pretty good worker and Hill wanted to try to
give Cottrell another chance if the Company could put him
somewhere else where his poor attendance would not be ob-
jected to. Wampler described the problem with Cottrell to
Smith, who had a vacancy and said that he needed a man
badly enough to take a chance on Cottrell. Then, Smith told
Cottrell to get on the truck and get ready to go. By this time,
a light drizzle was falling. Cottrell told Smith that Cottrell
did not want to work in the rain, whereupon Smith told
Wampler that Cottrell was not going to work in the rain, and
‘‘they’’ gave Smith another man. Wampler wrote on
Cottrell’s attendance form that after Cottrell stated that he
did not want to work in the rain, Smith ‘‘refused to continue
acceptance of employee. No other crew willing to accept, de-
cision to terminate employee. . . . Employee fired 2–6–90
failure to work on a [regular] and consistent basis.’’ Wam-
pler testified that he did not make any independent investiga-
tion concerning Smith’s complaint that Cottrell would not
work, and ‘‘That was strictly based on what [Smith] told me.
He said he didn’t need that man, and I understood what he
wanted.’’
Smith also fills out portions of a form, otherwise filled out
by South Central Bell representatives, which authorizes an
amount of certain kinds of work, referred to in the record as
‘‘Exhibit B’’ work, for which South Central Bell will accept
billing. This form contains the Company’s only source of in-
formation on the work described on the form.60
(h) Robert Taylor
In contending that Robert Taylor is a supervisor, the Com-
pany relies on his alleged connection with the discharge of
Roderick Kyles after the Union’s certification. An entry by
Wampler on Kyles’ attendance form states that he was ‘‘fired
6–15–90 failure to come to work on a regular and consistent
basis by R. Taylor.’’ When authenticating this entry on direct
examination, Wampler testified that during a discussion with
Taylor about Kyles’ poor attendance, Taylor said that Kyles
was getting to be a problem; Wampler asked whether Taylor
wanted to put up with this any more, or to do something
about it; Taylor ‘‘made indications that he would rather have
somebody else’’; and ‘‘based on [Taylor’s] decision, we
went ahead and terminated him.’’ Wampler’s entry is written
at the bottom of Kyles’ attendance sheet, which shows that
during the approximately 42 working days between his hire
and his discharge, he had been absent on about eight occa-
sions—two of them because of sickness, and the rest for
‘‘unknown cause’’; Wampler testified that he made no inde-
pendent investigation to get the employee’s side of the story.
On cross-examination, Wampler testified that he could not
remember whose crew Kyles was on (‘‘I can’t remember
apart from the record’’) and that Wampler could remember
nothing about the incident other than the fact that Kyles was
terminated. Taylor did not testify. I conclude that the record
fails to contain any credible evidence that Taylor played a
part in the Company’s decision to terminate Kyles.
(i) James Wade
James Wade was classified by the Company as a
‘‘driver/foreman’’ as of November 4, 1989, but as a ‘‘pole
foreman’’ by June 19, 1990. On that day, Wade called Wam-
pler out to the jobsite. When Wampler arrived, Wade told
him that Wade had expressed to laborer Charles Williams
anger at his perceived poor work, thereby causing Williams
to hit Wade with a ‘‘sharpshooter’’ (a narrow-bladed shovel).
Wampler’s memorandum on the back of Williams’ attend-
ance record states that Williams was directed to bury some-
thing at greater depth or he ‘‘would be taken in to be fired,’’
the last three words having been inserted between that and
the next sentence after the first sentence had been completed
and the second sentence had been started; Wampler’s testi-
mony about this incident contains no such allegation. Wam-
pler testified that when he reached the job site, Wade said,
‘‘I want this man fired, get him off my jobsite’’; Wampler’s
memorandum contains no such allegation. Wampler’s memo-
randum states, ‘‘Foreman discharged employee 6/19/90.
Wages paid 6/20/90.’’ However, the front page of Williams’
attendance form states that he was discharged on June 20.
I credit Wampler’s testimony that he himself fired Wil-
liams, without making any independent investigation to get
Williams’ side of the story; Wampler’s testimony in this re-
spect is more consonant than is his written notation with the
discharge date on Williams’ attendance form and with Wam-
pler’s testimony about being called to the jobsite and told
about Williams’ conduct. Because the reference to the al-
leged discharge threat was written later than at least the first
part of the memorandum and was not referred to in Wam-
pler’s oral testimony, I do not find that such a threat was
made. Because the memorandum does not state that Wade
said he wanted Williams to be discharged, and for demeanor
reasons, I do not credit Wampler’s testimony that Wade said
this. However, I do credit Wampler’s testimony that Wade
said, ‘‘Get [Williams] off my jobsite.’’
(j) Vernon Wilson Jr.
On a ‘‘showing-of-interest’’ form signed for the Union on
October 25, 1989, Vernon Wilson Jr. listed his job as ‘‘fore-
man.’’ Wampler testified on November 30, 1989, at the rep-
resentation case hearing that he was not aware that Vernon
Wilson Jr. had ever hired or had the need to terminate any-
one. At the time of that hearing, Wilson was working as a
back-hoe operator. Although Wampler testified before me
that as of July 1990 Wilson Jr. had been a conduit foreman
‘‘probably three months or less,’’ Wampler testified at the
representation case hearing that the job description of conduit
931DICKERSON-CHAPMAN, INC.
foreman had been given to Wilson for his signature in No-
vember 1989, Wilson testified that before November 1989 he
had led a conduit crew, and his timebooks suggest that he
resumed leading a conduit crew about mid-February 1990.
The Company contends that Wilson discharged or effec-
tively recommended the discharge of Henry Lee Gray. On
February 6, 1991, at the hearing before me, Wampler authen-
ticated an entry by him on Gray’s attendance form, that Gray
had been ‘‘fired 4/24/90/refused to get in and dig/refused to
carry out assigned duties/General indolence/ decision to
terminate/V. Wilson, Jr.’’ Further, Wampler testified before
me that Wilson Jr. ‘‘turned [Gray] up for firing,’’ and that
Gray was fired without Wampler’s getting Gray’s side of the
story. Gray’s attendance form shows that he was absent, for
unknown causes, on Wednesday, March 28, on Tuesday and
Wednesday, April 14 and 15, and on Monday, April 23. Wil-
son testified that on each day when Gray was absent, Wilson
had gone to Field Superintendent Ainsworth, an admitted su-
pervisor who was Wilson’s immediate superior, and asked
for a man to fill in for Gray, and that on each such occasion,
Ainsworth asked where Gray was. Wilson went on to testify
that Ainsworth keeps up with who works and who does not;
that when Gray showed up for work, following a 1-day ab-
sence, Ainsworth asked Wilson what he wanted to do with
Gray; and that Wilson replied that Ainsworth should do
whatever he wanted to do with Gray. Because Ainsworth
was not asked about this incident, and for demeanor reasons,
I credit Wilson.
Wampler’s testimony and an entry by him on James
Blackwell’s attendance form state that when Blackwell (an
employee since April 1990) showed up for work on July 19,
1990, after a 4-day absence due to being in jail, Wampler
(according to his entry), or ‘‘we’’ (according to his testi-
mony) told Wilson that Blackwell had previously had a poor
attendance record, and that Wilson could either let him go
for poor attendance or give him another chance if Wilson be-
lieved Blackwell was good enough. Wampler’s testimony
and entry further state that Wilson said Blackwell was a pret-
ty good and pretty hard worker and that Wilson ‘‘would go
ahead and give him another chance and give him a try at it
[. Wilson] did agree to take him on back’’; Wampler testified
that this was Wilson’s decision to make and Wampler ac-
cepted it. Wilson testified that on Blackwell’s release from
jail, Ainsworth wanted to get rid of him, but agreed to keep
him after Wilson said he was a good worker and should be
given another chance. For demeanor reasons, and because
Ainsworth was not asked about this incident, I credit Wilson.
The Company contends that Wilson effectively rec-
ommended the hire of various laborers between March and
June 1990. Wilson credibly testified, in effect, that he had
nothing to do with the hire of laborers Luther Harville,
Henry Gray, Clark Thompson, or Ernest Barber; his testi-
mony in this respect is not contradicted by the received evi-
dence. As to the hiring of Lavone Biggs, Wilson testified
that when working for another employer, Wilson had seen
that Biggs was a good worker; that about the third week in
June 1990 Biggs had seen Wilson in the Company’s office
and asked him if work was available; that at that time Wil-
son’s crew was short a man; and that (without deciding be-
tween him and anyone else) Wilson asked Ainsworth to hire
him and assign him to Wilson. Ainsworth did so; as a wit-
ness for the Company he was not asked what weight, if any,
he attached to Wilson’s statement to him. Wilson credibly
testified before me that on an undisclosed number of occa-
sions—which he dated as after the union activity began in
mid-October 1989, and which probably took place after the
October 30, 1989—mid-February 1990 hiatus in his assign-
ment as conduit foreman—when he was short a man,
Ainsworth or Berry would tell him to pick a man from those
on the front steps and get him signed up (see, supra, part
II,E,2(b)(1)(e)). On a date not specifically shown by the re-
ceived evidence, but probably after February 1990, Field Su-
perintendent Ainsworth told Wilson to ‘‘go get a man . . .
with some transportation.’’ Wilson asked Redale Robinson,
who was standing on the front steps (see, supra, part
II,E,2,b(1)(e)), whether he had transportation. Robinson said,
‘‘Yes,’’ and was hired. Wilson’s testimony suggests that no-
body else was standing on the steps that day, and there is
no other testimony about this matter. On a date not specifi-
cally shown by the received evidence, but probably after
February 1990, Wilson, who needed a third man on his crew,
was told to pick out a man (inferentially, from those on the
front steps) and take him in the office to be signed up; Wil-
son took this action with respect to Steve Ranson, who (in-
ferentially) then joined Wilson’s crew.
(3) The supervisory status vel non of the individuals
whose status was litigated but not determined in
Dickerson-Chapman I, the representation case record
plus the unfair labor practice case record,
taken together
(a) William Burkes
William Burkes did not testify. Wampler testified at the
November 1989 representation case hearing that Burkes had
never to Wampler’s knowledge hired or fired anyone; and
that Burkes had transferred at least one, and probably two,
men with whom he had had ‘‘problems’’ probably involving
indolence, whose identity Wampler could not recall. Wam-
pler testified before me that he and Ainsworth gave Burkes
the cable foreman’s job description in November 1989 and
discussed it with him in detail, that Burkes agreed it was an
accurate description, and that he signed it.
The Company contends that after the Union’s certification,
Burkes effectively recommended the discharge of laborer
Sedrick Gaines. Wampler initially testified that he accepted
Burkes’ recommendation that Gaines be fired and fired him,
and subsequently testified that he himself ‘‘was not directly
involved in any of the termination process.’’ Gaines’ attend-
ance form contains an undated notation by Wampler, ‘‘Em-
ployee fired 7/19/90/Failure to come to work on a regular
and consistent basis. Turned over for termination by W.
Burkes.’’ Gaines’ attendance record shows that during the
approximately 30 working days between his hire and his dis-
charge, he was absent for unknown cause on at least 4 days
and had an unexcused absence the day before his discharge.
His personnel file also contains a note from Wampler dated
September 5, requesting ‘‘Linda’’ (inferentially, Linda Shaw)
to ‘‘Find the attendance record for Gaines. I think William
fired him for attendance but confirm.’’
(b) Linden Hill
Linden Hill received the job description of cable foreman
in both November 1989 and July 1990, but he testified be-
932 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
61 The ‘‘declaration’’ executed by Wampler on February 27, 1990,
and attached to the Company’s May 21, 1990, request for review of
the Regional Director’s Supplemental Decision and certification of
representative, avers, inter alia, that on November 10, 1989, Hill re-
ported ‘‘a problem’’ with Harper; and goes on to say that on No-
vember 29, Hill said he wanted Harper fired for showing up late and
Wampler fired him. Attached to this ‘‘declaration’’ is a copy of only
the first page of Harper’s attendance form, which does not on its
face suggest that any notations were made on the reverse side. 62 See 8 U.S.C. § 1324a (a)(5), 8 CFR § 274a.6(c)(4).
fore me, in January 1991, that he was then working as a
service wire foreman. As a company witness, Hill testified
that he has been a foreman since about the middle of 1987.
As a cable foreman, he had two others on his crew; as a
service wire foreman, he had one other.
Hill testified before me that as a cable foreman, he had
‘‘fired’’ about 30 men; if true, this would mean that more
than half the discharges during this period of time were ef-
fected by Hill. He further testified that he could recall the
names of 2 of such men, whom he testimonially identified
as W. C. Harper and (according to the transcript) ‘‘Sammy
Arvon [phonetic].’’
When shown the attendance form of ‘‘Sammie Demon
Armon,’’ Wampler testified before me in February 1991 that
this employee ‘‘voluntarily quit prior to any disciplinary ac-
tion as far as termination being necessary’’; this record states
that Armon voluntarily quit on December 18, 1989. Wampler
testified that he had entered a written notation on Armon’s
attendance form (a notation dated November 10 or 11, 1989,
and bearing Hill’s at least purported signature as well as
Wampler’s signature) that Armon had disobeyed an order (as
to the depth of a tunnel he was digging) which may have
been issued by Hill, because Hill ‘‘was anticipating possible
discipline problems on [Armon]. And [Hill] was beginning to
document problems that he was having with [Armon] in an-
ticipation of terminating him.’’ The representation case tran-
script for November 30, 1989, sets forth testimony by Wam-
pler that Hill had hired a ‘‘current man on his crew, Sammy
Armon’’ (sic). The attendance record of ‘‘Sammie Demon
Armon’’ states that he started work on October 31, 1989. I
infer that ‘‘Sammy Arvon,’’ ‘‘Sammy Armon,’’ and
‘‘Sammie Demon Armon’’ all refer to the same person. For
demeanor reasons, I do not accept Hill’s testimony that he
discharged this individual, but, rather, accept the Company’s
records showing that Armon voluntarily quit.
Wampler testified on November 30, 1989, during the rep-
resentation case hearing, that ‘‘yesterday’’ Hill had dis-
charged W.C. Harper ‘‘straight out,’’ without consulting
Hill’s immediate supervisor, Ainsworth. Harper’s attendance
form states on its face that he was in fact fired on November
29, 1989. The back of his attendance form contains an entry,
in Wampler’s handwriting, which reads in part, ‘‘11/29/89
. . . Foreman made determination [that Harper] should be
terminated.’’ However, neither Wampler nor Hill was asked
to explain the entry which follows the above-quoted nota-
tion—which entry, in Wampler’s handwriting except for
Hill’s at least purported signature, states, ‘‘BEW [Wampler’s
initials] per L. Hill /11/10/89/ Linden Hill.’’61 Moreover,
Harper’s attendance sheet states that except for September
21, he worked every working day between August 30 and
November 22.
In addition, Hill testified about one employee, whose name
Hill could not remember, who refused to help dig a water
line because he was wearing tennis shoes and did not want
to get his feet wet, ‘‘so I carried him in, and they wrote his
check out’’; Hill was not asked the date of this incident. Fur-
ther, he testified that as to some employees on his crew,
‘‘they will tell me they ain’t going to do nothing, and I will
carry them in, and let them write their checks out for them,
too. But I have had a lot of them tell me they just ain’t
going to do nothing.’’
As to employee Clark Bass, the Company’s payroll
records show that he was discharged on June 19, 1990. His
personnel file contains a note from Wampler to the Compa-
ny’s payroll clerk, stating, ‘‘You need to corner [Hill] and
get his statement on Bass. I believe it was attendance, but
confirm with [Hill]’’; the note is undated but is written on
a daily desk calendar sheet for June 27, 1990. Wampler testi-
fied that he was ‘‘rather detached from the process other than
knowing that [Bass] had been fired.’’ Wampler further testi-
fied that Hill fired Bass, and that neither Wampler nor any-
one else with the Company made an independent investiga-
tion as to the reasons why Bass was fired. Hill was not asked
about Bass, at least by name.
Hill’s connection with the discharge of David Cottrell is
discussed, supra, part II,E,2,b(2)(g).
On January 23, 1990, Leonard Biggs, a laborer on Hill’s
crew who had missed 4 of the 11 working days that month
and had been hired in early December 1989, drove up to the
Company’s front gate after the regular starting hour that
morning. As he reached the gate, his car got stuck in the
mud. He entered the Company’s facility and asked Hill to
use Hill’s company truck to pull him out. Hill said that he
would wait until after work and pull him out with Hill’s own
car; but Biggs said he had to get his car out right then, and
headed toward the gate. Hill said, ‘‘If you go out that gate,
there is no need of coming back in.’’ Wampler testified that
Biggs ‘‘went out the gate and kept going and hasn’t been
seen since.’’ Biggs’ attendance form states, in a handwriting
other than Wampler’s, that Biggs voluntarily quit.
My findings in the foregoing paragraph are based on a
composite of credible parts of Hill’s and Wampler’s testi-
mony. Because there is no evidence that Wampler overheard
the Hill-Biggs conversation and because neither Hill nor
Wampler so testified, I do not accept Wampler’s entry on
Biggs’ attendance form that during this conversation Hill re-
ferred to Biggs’ work and performance. In view of Wam-
pler’s quoted testimony, in the absence of corroboration by
Stewart or Wampler, and because Hill’s testimony suggests
that he himself did not overhear these alleged conversations
(although Hill’s testimony in this respect was not objected
to), I do not accept Hill’s testimony that Biggs ‘‘went in
fussing to . . . Bo Stewart . . . and Bo told [Wampler],
‘Well, whatever Hill thinks, that is what goes.’’’
Hill testified that when he needs a man, Wampler tells him
to hire whichever one he wants from among the applicants
on the front steps (see, supra, part II,E,2,b(1)(e)). Hill testi-
fied that he follows the practice of hiring the first man who
has two ‘‘I.D.’s.’’ His testimony is a bit questionable: the
MESC maintains the ‘‘I-9’’ forms of the applicants sent out
by it, and Wampler’s testimony indicates his awareness that
under such circumstances, the Company is not required to
obtain any ‘‘ID’s.’’62 However, Supervisor Hayman credibly
933DICKERSON-CHAPMAN, INC.
63 McDonald’s nickname is ‘‘Sonny.’’
testified that he had seen Hill pickup at least one man in this
manner.
(c) Isaiah McDonald
Isaiah McDonald, who did not testify, was given the job
description of cable foreman. Wampler testified at the No-
vember 1989 representation case hearing that McDonald
‘‘hired David Thomas, that is one man that is on his crew
now . . . when David came, [McDonald] had brought him
in and wanted to hire him . . . [McDonald] recommended
him, and he wanted him on his crew . . . . We hired him.’’
Wampler went on to testify that when McDonald brought in
Thomas, McDonald had already interviewed him; and, when
asked whether Ainsworth or Stewart had interviewed Thom-
as, Wampler replied,’’ No, there was no need to. [McDonald]
wanted him and had an opening.’’ Wampler further testified
that McDonald ‘‘has hired others . . . a lot of time he will
bring men . . . with him when he needed crew men, and he
will hire them.’’ Wampler testified that as to prospective la-
borers brought in by the Company’s laborers and driver oper-
ators, ‘‘As far as whether or not we hired them or not, their
recommendations are not very—are not based that strongly.
You know, if the man is a good man, we might feel like he
is a pretty reliable source. But as far as do we base it on
the laborer’s recommendations, no.’’
Wampler’s notation on the attendance sheet of David
Shields, who was discharged on January 9, 1990, states that
Isaiah McDonald had reported to Field Superintendent
Ainsworth that Shields had refused to get into a muddy
ditch; that McDonald had brought him to Ainsworth and told
him ‘‘to do what you want with [Shields], but I’m not work-
ing him’’; and that Ainsworth ‘‘turned man in to payroll for
termination. As per McDonald’s instruction.’’ At the end of
this notation Wampler put his initials and added the entry
‘‘Per So.63 McDonald’’; under this is the date ‘‘1–10–90’’
(the day after Shields’ discharge) in an unidentified hand;
and under this is McDonald’s purported signature. I do not
credit the bona fides of the entry ‘‘As per McDonald’s in-
struction,’’ which entry is inconsistent with the account of
the incident in earlier portions of the memorandum and in
Wampler’s testimony, and also with the statement in Wam-
pler’s February 1990 ‘‘declaration’’ (see supra at fn. 61) that
Wampler received from McDonald the message that ‘‘he
would no longer work with’’ Shields. Wampler credibly tes-
tified that neither he nor Ainsworth made any independent
investigation of the facts; ‘‘it was based strictly on what
[McDonald] told us.’’
(d) Lee Earl Moore
Lee Earl Moore was given the job description of conduit
foreman. He credibly testified before me in January 1991 to
having ‘‘picked out a man’’ from a group of prospective em-
ployees sent down by the MESC (see, supra, part
II,E,2,b(1)(e)). Supervisor Hayman credibly testified that he
had seen Moore pickup at least one man up at the front.
Wampler testified at the November 1989 representation case
hearing that about 1985 or 1986 ‘‘I believe’’ Moore had
hired two men (the Montgomery brothers) who were pres-
ently working on his crew, and that ‘‘I know’’ Moore had
hired their predecessors.
Moore’s testimony about his alleged connection with the
selection of laborers for layoff is summarized, supra at part
II,D. In view of the there discussed inconsistencies between
Moore’s testimony and company records, I regard his testi-
mony as valueless in connection with selections for layoff.
As of November 1989, Moore was paid at least $1 an hour
more than any other hourly paid individual in the Company’s
nonclerical work force, and at least twice as much as any
other member of his crew. When a member of his crew
wants to take time off, he asks Moore. On granting the re-
quest, as Moore has invariably done, he tells his ‘‘boss’’ that
a member of his crew needs to be off.
(e) Jewel Owens
Jewel Owens, who did not testify, received the job de-
scription of cable foreman. Wampler testified at the represen-
tation case hearing, ‘‘I have never known [Owens] to have
a need to [fire anyone]. If he has a man today that isn’t
working out, [Owens] turns the heat up so hot that . . . he
doesn’t have to worry about firing them.’’ Wampler further
testified at that hearing that Owens had hired two men who
subsequently quit—Wiley and Kincaid. Kincaid did not tes-
tify. At the hearing before me, Clark Wiley (the only individ-
ual referred to in the record with that surname) denied talk-
ing to Owens before Wiley reported to Owens’ crew, and
testified that up to that point, Wiley’s entire contact was with
Vice President Stewart. Because Wiley was a disinterested
witness and Stewart was not asked about this matter, and for
demeanor reasons, I credit Wiley. Further, for the reasons
stated, supra at part II,E,2,b(1)(e), and for demeanor reasons,
I do not credit Wampler’s testimony that Owens hired
Kincaid. See NLRB v. Walton Mfg. Co., 369 U.S. 404, 408
(1962).
The Company contends that Owens effectively rec-
ommended the discharge of laborer Milton Price. A compos-
ite of the Company’s records and Wampler’s testimony at
both hearings shows as follows: Price was hired as a laborer
about February 8, 1988. Probably at that time, but no later
than the end of the month, he was assigned to the crew of
Jewel Owens, who on an undisclosed date before the end of
the month reported to his supervisor that he could get no
work out of Price and recommended his transfer to a dif-
ferent crew. Owens’ supervisor then transferred Price to the
crew of admitted Supervisor Hayman, who about March 1,
1988, reported to his supervisor that Price was lazy and rec-
ommended his transfer to a different crew, but did not rec-
ommend his termination. Management then told Stafford
about Owens’ and Hayman’s past experience with Price, and
asked Stafford whether he would take Price. Stafford did so
and used him until March 3, 1988. About that date, largely
on the basis of the reports received by Stafford of Owens’
and Hayman’s experience with Price, Stafford said to his su-
pervisor that there was no point in trying Price any more.
Price was discharged on March 3, 1988. Wampler testified,
inferentially in connection with unemployment compensation
claims:
On a marginal thing like that, it is basically simple mis-
conduct. It is not what Mississippi law would consider
gross misconduct. On a marginal thing like that, a lot
934 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
64 The Company received a purported medical report that Berry
could not safely testify because of a heart condition. I draw no infer-
ence from his failure to testify.
65 The Company’s posthearing brief to me states (p. 47) that ‘‘Ver-
non Wilson Jr. was present when Johnny Ray Brown refused James
Spiller’s work instruction, yet General Counsel avoided examining
Wilson on this subject.’’ However, the record fails to show that Wil-
son, who operated a backhoe on the job, could overhear this Spiller-
Brown conversation.
of times, they will circulate it around a little bit to
make sure that there is plenty enough evidence to jus-
tify the termination.
(f) James Spiller
As noted, supra at part II,B,4, the Company asked James
Spiller to sign the job description of a cable foreman, but he
refused to do so without taking the document home so that
a member of his family could read it to him, and the Com-
pany refused to give him a copy.
The Company contends that Spiller effectively rec-
ommended the 1985 discharge of a member of his crew, la-
borer Charles Dear. Dear’s attendance form states that he
called in absent at 7:30 a.m. (a half hour after dispatch time)
on Monday, September 9, 1985, and was ‘‘warned.’’ Spiller
testified that Dear worked on Spiller’s crew until a day when
Dear was absent, only one other worker besides Spiller was
on the crew, and three men were needed to do the job that
day. Still according to Spiller, he asked for someone else
(but not by name) to fill in for Dear that day, and Berry put
someone else in Dear’s place. Spiller went on to testify that
Dear came back to work for the Company the following day,
but worked with someone else until Dear left a week or two
later. Dear’s attendance record shows that he was fired on
September 25, 1985, 12 working days after his September 9
absence; and includes the entry by Wampler: ‘‘Fired General
Indolence–Tried on two crews Spiller & Hannah w/no posi-
tive results; also inconsistent in attendance.’’ Wampler cor-
roborated Spiller’s testimony that Dear at one time worked
on Spiller’s crew but worked on another crew (identified by
Wampler as John Hannah’s crew) during the period imme-
diately before Dear left the Company’s employ. However,
Wampler testified that Dear was not a hard worker; ‘‘Spiller
had worked him first and didn’t want to fire him, but [Spill-
er] turned him over to us to see if maybe we could find
some other place that some other foreman might have him
and give him another chance’’; Hannah was willing to give
Dear another try, but Hannah ‘‘didn’t have any more luck
with him’’ than Spiller did and recommended Dear’s dis-
charge. Spiller was an intelligent witness who admittedly
knew that he would lose his discriminatory-discharge case if
found to be a supervisor, and was an evasive witness as to
whether he had been referred to as a ‘‘cable foreman’’ when
working for the Company; see also, supra at footnote 19.
However, Wampler gave internally inconsistent testimony as
to other matters (see, e.g., supra at parts II,E,2,b(1)(d)(f) and
(2)(a)(c), infra at part II,E,2,b(4)(e)). For demeanor reasons,
as to the Dear incident I credit Spiller.
The Company contends that Spiller discharged, or effec-
tively recommended the discharge of, laborer Johnny Ray
Brown on June 2, 1989. On that day, Spiller asked Brown
to use a ‘‘Joe blade’’ (a large cutting tool) to clear part of
the area where Spiller’s crew was laying cable. Brown said
that he was not going to use the blade. Spiller said, ‘‘Well,
Johnny, this is our job, man; we supposed to work together.’’
Brown said, ‘‘I don’t care . . . I ain’t going to do it . . .
Take me in.’’ Spiller said, ‘‘I don’t want to take you in . . .
I ain’t got the authority to tell you what all to do. . . . I
can’t fight you; I have to call Mr. Stewart or Mr. Berry; have
to call the office, man.’’ Brown said, ‘‘I don’t care; call
them and carry me in.’’ Spiller said, ‘‘If that is the way you
feel, well, okay.’’ Then, Spiller drove ‘‘a piece’’ in a com-
pany truck to reach a telephone, from which he reached ‘‘a
lady in the office.’’ Using a shortwave radio, she called
Stewart and Berry, who told her to tell Spiller to bring
Brown in. When she relayed this message to Spiller, he
drove back to the job site, picked up Brown, and then drove
to the Company’s office. On their arrival, they met with
Stewart and Berry. Stewart asked Spiller what had happened.
Spiller told him to talk to Brown, who said to Spiller, ‘‘You
can tell him.’’ Spiller then told Stewart that Brown had told
Spiller that Brown was not going to use the blade, and had
told Spiller to bring him in. Spiller said that he had called
Stewart because Brown had told Spiller to call Stewart and
bring Brown in. Stewart said, ‘‘Okay; I told you to bring him
in . . . . You can return and go back to the job.’’ Spiller
did so, leaving Brown with Stewart and Berry. Spiller did
not tell Stewart and Berry, nor was Spiller asked by them,
what ought to happen to Brown.
My findings in the preceding paragraph are based on
Spiller’s testimony. Stewart was called by the Company as
a witness, but was not asked about these events.64 Wampler
wrote on Brown’s attendance form that on June 2, 1989,
when Brown refused to carry out Spiller’s directions to clear
a row with a ‘‘Joe blade,’’ Spiller ‘‘brought Brown to the
office for payment of wages.’’ At the representation case
hearing, Wampler testified that Spiller ‘‘brought [Brown] in
and said [that] the man was being insubordinate and refusing
to carry out his assigned duties, and [Spiller] wanted him ter-
minated.’’ Wampler went on to testify that ‘‘I’’ terminated
Brown, and that ‘‘I’’ did not make any independent inves-
tigation of the facts before terminating him. At the hearing
before me, Wampler testified that ‘‘we’’ terminated Brown
because Spiller brought him in, and that Spiller ‘‘was having
some trouble with Johnny Ray Brown . . . . They was hav-
ing some troubles with his discipline, and they had finally
had enough of it to where he carried him in to have him ter-
minated.’’ In view of Stewart’s failure to testify about this
incident, the inconsistencies in Wampler’s testimony about
whether he alone terminated Brown, and for demeanor rea-
sons, as to this incident I credit Spiller.65
The Company contends that Spiller held open the job of
Clark Wiley during his absence from an off-the-job injury,
and in the exercise of independent judgment hired his tem-
porary replacement. On a date not wholly clear in the record,
but probably between December 30, 1989, and January 1,
1990, inclusive, Clark Wiley, who had been working on
Spiller’s crew, injured his hand in an off-the-job accident. On
the first working day following Wiley’s accident, he came to
the Company’s facility and told General Manager Stewart
that Wiley could not work because of his injury. Stewart told
Wiley to take off and come back when his hand got better,
but to bring a doctor’s statement when he returned. At that
935DICKERSON-CHAPMAN, INC.
66 My findings as to the Wiley–Stewart conversation are based on
the testimony of Wiley, a disinterested witness who voluntarily quit
the Company’s employ almost a year before he testified. For de-
meanor reasons, I do not credit Stewart’s denial. Spiller corroborated
Wiley’s testimony that he did not talk to Spiller at this time, and
there is no evidence contradicting Wiley’s testimony that he did not
talk to anyone else.
67 My finding as to the date of these events is based on the fact
that Spiller’s personal time records show that Richardson joined the
crew the Tuesday after the first week of Wiley’s absence with an
injury.
68 My findings as to the circumstances surrounding Richardson’s
hire are based on Spiller’s testimony during the General Counsel’s
case in chief and on rebuttal. Wampler was not asked to describe
just what happened when Richardson was hired. Spiller testified that
Wampler signed Richardson up and then told him to go with Spiller.
However, Spiller’s testimony indicates that after speaking that morn-
ing to the men on the steps, he remained outside the office.
69 Spiller’s records for his crew are consistently in error as to
dates; moreover, they unexplainedly fail to include any records be-
tween those purportedly for the week ending Monday, February 5,
1990, and the week ending Monday, February 19, 1990.
70 Laying to one side the payroll clerk’s memorandum, this ‘‘re-
placement record,’’ interpreted in accordance with the Company’s
ordinary recordkeeping practices, shows that Wiley in fact worked
on January 2, 1990.
time, Wiley had no conversation with anyone but Stewart.66
Spiller’s crew ordinarily consisted of four men including
him. The first morning that Wiley failed to report to work
because of his injury, Spiller reported to field superintendent
Berry that Spiller was short a man. Berry told him to work
one man short. A day or two later, Berry told Spiller that
Wiley had broken his finger and it would be a few days be-
fore he could come back. Spiller continued to work with a
short crew until January 8 or 15, 1990, when his crew re-
ceived a job assignment which could not be performed by a
short crew. Thus, Spiller went into the office and reminded
Berry and Wampler that Spiller’s crew was still one man
short. Wampler told him to tell one of the three men who
had been sent over by the MESC, and were waiting outside
on the sidewalk, to come into the office. Spiller thereupon
approached them and told them that Wampler wanted to see
one of them inside, and that ‘‘they are going to hire you.’’
All three thereupon went into the office. Then, Spiller went
over to his truck. After the crew made the necessary prepara-
tions to drive out to the jobsite, Spiller drove the truck, with
the other two crewmembers, to the front of the facility. At
this point, Charles Richardson, who had been one of the
three men on the sidewalk when Spiller approached them,
came out and said that he too was going with the crew.67
Spiller said, ‘‘Fine, we need you.’’ Richardson got into the
truck, which proceeded to the jobsite.68 A few days later,
Berry told Spiller that Wiley had broken his finger and it
would be a few days before he could come back. On Feb-
ruary 6, 1990, Wiley returned to the Company’s facility and
went to the office, where Wampler and Stewart were present.
Wiley said that he was now physically able to work, where-
upon Stewart put him back to work. Wampler brought Wiley
over to Spiller’s truck, and Richardson went back with Wam-
pler. Wiley worked with Spiller at all times thereafter until
Spiller’s discharge on February 28, 1990.
My findings as to the Wiley matter are based on a com-
posite of Wiley’s and Spiller’s testimony, the ‘‘replacement’’
attendance form for Wiley which was offered and received
into evidence (see, infra), and Spiller’s personal time records
for his crew.69 As previously noted, Wiley credibly testified
that his early January explanation for the injury which inca-
pacitated him until early February was given to Stewart and
not Wampler; and neither Wiley nor anyone else testified
that he had been present during any conversation with Spiller
(during Wiley’s incapacitation) when Spiller was told (con-
trary to his testimony) why Wiley was absent. Wampler testi-
fied without objection, but admittedly on the basis of a
memorandum on Wiley’s attendance record by the Compa-
ny’s payroll clerk, that the Company had assumed that
Wiley’s absence was due to his having quit (by failing to
show up) on January 2, 1990 (see, infra at fn. 70); that she
had initially made such an entry on an attendance record for
Wiley which was not produced at the hearing; and that on
February 6, 1990, she had prepared a ‘‘replacement record,’’
which was offered and received into evidence.70 The payroll
clerk also entered on the attendance sheet for Wiley which
was received into evidence the statement that the Company’s
conclusion that Wiley had quit on January 2 ‘‘was due to
employee’s foreman failing to inform personnel office of his
decision to hold employee’s job open while employee recov-
ered from an off-duty injury. First date employer was aware
of employee’s injury and recovery was 2–6–90 when fore-
man (James Spiller) reinstated the employee on his crew.’’
The payroll clerk did not testify. I accept the testimony of
Wiley (a disinterested witness) and Spiller rather than this
handwritten entry.
(g) Clifford Stafford
Clifford Stafford, whom the Company called as a witness
before me, received the job description of cable foreman. He
testified, without contradiction or direct corroboration, that
Stewart and Wampler had told him that he had the power to
hire and fire; and that Wampler had told Stafford that if he
was not satisfied with a man, Stafford could ‘‘bring him in.’’
Wampler testified at the representation case hearing that
Stafford had fired ‘‘several men . . . . He fired Joe Hart
. . . I don’t remember the [other] names right off the top of
my head.’’ Stafford was not asked about Hart.
The Company contends that Stafford, in the Company’s
interest, effectively recommended the discharge of Larry
Wilson. Wilson’s attendance sheet contains a notation by
Wampler that Wilson was fired on February 13, 1987, for:
Gross Misconduct. Attempted Physical [assault] upon
Foreman. Mr. Cliff Stafford reported that upon harshly
upbraiding the employee, the employee picked up a
[shovel] and threatened to strike the foreman. . . . Law
authorities called to site to remove laborer from, job-
site. Employee later transported from [illegible] by R.B.
Ainsworth.
Wampler testified at the representation case hearing that Wil-
son
was fired for gross misconduct. He attempted physical
assault upon his foreman. His foreman reported that he
was insubordinate and failing to carry out his assigned
duties. The foreman kicked him off the job and had
936 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
71 Between January 1, 1989, and Alford’s discharge on December
6, 1989, Alford missed about 2 days because of illness, 3 days be-
cause of unexcused absence, and 11 days for unknown reasons.
him transported to our yard for termination, which we
did.
Wampler went on to testify that Wilson was fired on the
basis of Stafford’s recommendation, and without any inde-
pendent investigation. At the unfair labor practice hearing be-
fore me, Wampler testified to having been advised that Staf-
ford called for Ainsworth ‘‘to remove [Wilson] from the job
site to where [Stafford] wouldn’t have to have any further
contact with him to carry him into the office.’’ Wampler fur-
ther testified that Ainsworth discharged Wilson because Staf-
ford ‘‘Throwed him off his jobsite,’’ that Wampler and
Ainsworth made no independent investigation to get Wil-
son’s side of the story before he was terminated, and that
Wampler based his personnel record entry on what
Ainsworth told him, with Stafford’s ‘‘confirmation.’’
Ainsworth and Stafford were not asked about this incident.
The Company contends that in August 1990, Stafford dis-
charged or effectively recommended the discharge of two
members of his crew—Eddie Coleman and Joe Broome.
Stafford testified that when Coleman and Broome reported to
the jobsite several hours late—according to Stafford’s infor-
mation, partly because they got lost and partly because they
had been sleeping in the Company truck—‘‘I fired them right
there.’’ Wampler testified that Stafford telephoned him and
‘‘said that he [wanted to] bring them straight on in and fire
them, and that is what he did’’; Wampler denied making any
independent investigation. At least partly on the basis of an
MESC hearing attended by Wampler, he testified that Staf-
ford discharged Coleman and Broome for ‘‘not getting to the
job site. Basically it boiled down to sleeping half the day in
a truck.’’ Wampler further testified that they were discharged
on August 3, 1990, a Friday. Wampler’s notations on their
attendance sheets are dated August 3 at the top and August
6 at the bottom, and state, in part, ‘‘Foreman fired crew
members immediately. [Employees claimed] that they were
not dispatched as originally stated. But foreman remained
firm in his decision.’’
Wampler testified before me that Stafford discharged la-
borer Francis Alford. Stafford testified before me that Alford
had cut some existing telephone cable, thereby cutting off
telephone service, and had ‘‘covered [the cut cable] up and
didn’t say anything about it. And I fired him.’’ Stafford went
on to testify that Alford told Stafford he could not fire
Alford, that Stafford told him to ‘‘go to the office,’’ that he
was fired; and that Alford did not come back ‘‘to me.’’ Staf-
ford testified in January 1991 that Alford was discharged
‘‘last summer’’ and about a month before the discharge of
Coleman and Broome; the Company’s personnel records
show that Alford was in fact discharged on December 6,
1989, and that Coleman and Broome were discharged in Au-
gust 1990. Stafford’s testimony does not advert to any other
incidents involving Alford. Alford’s personnel records con-
tain four separate notations by Wampler, dated between No-
vember 15 and December 6, 1989, the first three of which
are signed by Stafford as well as Wampler. The first of these
entries attributes to Alford the assertion to his fellow em-
ployees that Stafford was old and did not know what he was
doing. The second of these, dated November 20 at the top
and November 21 at the bottom, states that Alford had cut
a telephone cable and told a foreman trainee on the job that
they should cover it up and forget about it, thereby causing
a needless service outage. The third entry, dated December
6, states that Stafford had told Alford that Stafford had heard
about Alford’s talking about Stafford’s authority, that Alford
had cut the cable and covered it up, that Alford had failed
to call in when absent on December 5, and that Stafford
‘‘sent Alford to office to be paid off.’’ The fourth and last
entry, also dated December 6, states that when Alford was
informed of his termination, Alford stated that Stafford did
not have the authority to fire Alford, and that Wampler had
told Alford Stafford’s decision was final. That entry goes on
to state that Alford was being terminated because of his at-
tendance record,71 his ‘‘repeated attempts to undermine
[Stafford’s] authority,’’ and the damage to the telephone fa-
cilities ‘‘in a manner to show a disregard for reasonable
standards of behavior.’’ After ‘‘termination data’’ Wampler
wrote that Alford had been fired because of ‘‘(1) Failure to
come to work on a regular and consistent basis (2) Disregard
of standards of behavior which employer has a right to ex-
pect.’’ Wampler’s February 27, 1990, ‘‘declaration’’ attaches
the first page of Alford’s attendance sheet plus most of the
notations dated December 6 and states, ‘‘On December 6,
1989, foreman Cliff Stafford told employee Frances [sic]
Alford to go to the office to be paid off. Alford reported to
me and I recorded his termination, without independent in-
vestigation.’’
Stafford’s connection with the discharge of laborer Milton
Price is summarized, supra at part II,E,2,b(3)(e).
Stafford testified that if he needs someone for his crew,
he approaches the applicants sent over by the MESC (see,
supra at part II,E,2,b,1(e)); ‘‘I will talk to them, see what
their experience is. And if they want to work, you tell them
what the situation is, what our hours is and what to expect
. . . on our job.’’ He testified that he had picked out an ap-
plicant that very morning (January 10, 1991) and had hired
Robert Taylor as a laborer.
(4) The supervisory status vel non of individuals hired
for or transferred into allegedly supervisory jobs after
the March 1990 representation election
(a) Ronald Johnson
During the safety meeting on July 2, 1990, Ronald John-
son received, signed, and returned to the Company the job
description of bore foreman. Other than the material included
supra at footnote 52, the record contains no other evidence
which by name treats with his status.
(b) George Jones
George Jones’ most recent tour of duty with the Company
began in March 1990. He received the job description of
bore foreman, and testified that this was his title. He testified
for the Company, on direct examination, that he has authority
to fire, and that he had in fact fired some employees. There-
after, as to what he meant when he said he had fired employ-
ees, he credibly described an instance where, when a man on
his crew repeatedly ignored Jones’ request to relieve another
member of the crew, Jones drove him to the office and told
Stewart that Jones did not ‘‘need this man,’’ that he did not
937DICKERSON-CHAPMAN, INC.
72 For reasons not shown by the record, of the two laborers on
George Jones’ crew as of the week ending July 28, 1990, one did
not work for the Company after that week and the other did not
work for the Company after the week ending August 4.
work, and that he set a bad example to the other crew-
members; the man was fired. In addition, Jones credibly tes-
tified that if a man was not performing the job Jones asked
him to do, Jones would bring him in and advise Jones’ su-
pervisor of the situation; the employee was fired ‘‘in many
cases’’ and was put on another crew in some cases. Jones
further credibly testified that if men or his crew wanted time
off, they would usually come to him; that he had always
granted such requests and would always grant them if made
‘‘for a legitimate reason’’; and that he always reported such
action to his immediate supervisor, sometimes before the em-
ployee took the time off and sometimes afterward. Also,
Jones credibly testified that if he believed his crew should
work beyond the regular quitting hour, he would ask his im-
mediate supervisor, who usually permitted the crew to work
late but sometimes did not.
Effective Monday, September 17, 1990, Willie Williams
was transferred from Supervisor Hayman’s crew to George
Jones’ crew.72 Hayman testified that when his supervisor
started to ‘‘cut crews,’’ it was Hayman who decided which
laborers would leave his crew, and that it was Wampler or
Stewart who placed them on another crew (cf. supra at part
II,D).
Jones’ connection with the discharge of Lavelle Graves is
summarized, supra at part II,E,2,b(2)(g).
(c) Tommie Lee Jones
Before about June 1990, Tommie Lee Jones was a laborer
who drove a truck for a cable crew led by Burkes. About
June 1990, the driver for another crew (consisting of that
driver and laborer Bibbs) had a falling out with South Cen-
tral Bell Representatives Jean Gray and Barlow, who gave
that crew its work orders. Wampler told Jones to ‘‘swap
trucks’’ with the other driver and to see Barlow; Wampler
said nothing regarding Jones’ responsibilities as to Bibbs.
Thereafter Jones has received work orders from Barlow or
Gray, has driven himself and Bibbs to the job, and has
worked with Bibbs in performing the job; both of them dig
splice pits, put the cable up on the pedestal, and backfill the
pits, and Jones usually puts up and ties off wires. The se-
quence in which the various jobs are performed is deter-
mined by South Central Bell.
Laying to one side the safety meeting in July 1990, no
company representative has told Jones his responsibilities to-
ward Bibbs, or that Jones had the authority to hire, fire, dis-
cipline, reprimand, transfer, promote, reward, or lay off em-
ployees, or to recommend any such action. Jones has never
hired or decided to hire employees, recommended that an
employee be hired, interviewed an applicant for employment,
asked anyone to fill out an application, received an applica-
tion for employment, written an evaluation of an employee,
discharged or recommended the discharge of an employee, or
asked that anyone be transferred onto or off his crew. On
some occasions, Jones and Bibbs have returned to the facility
10 or 15 minutes after the usual quitting hour, without any
prior authorization to work overtime. With these exceptions,
these workers’ overtime has been authorized in advance by
Wampler. On July 5, 1990, the Company gave Jones the job
description headed crew leader. He signed and returned it,
but did not read it.
(d) Charles Luckett
Charles Luckett received, signed, and returned to the Com-
pany the job description of service wire foreman on July 2,
1990. Wampler testified that it accurately reflects Luckett’s
duties; for reasons set forth, infra at parts II,E,2,c(3) and
5(a), I do not credit Wampler’s testimony in this respect.
Wampler further testified that he reviewed this document
with Luckett before he signed it, that he had no questions
about it, and that he did not express any problems in connec-
tion with it. The record contains no other evidence which by
name treats with his status.
(e) Otha Lee Wilson
According to company counsel’s letter to the Union dated
July 31, 1990 (supra at part II,D), Otha Lee Wilson started
working for the Company in July 1976. No contention is
made that he was a supervisor at any material time before
March 1990. In mid-March of that year, Wampler told him
that Wampler wanted to give Wilson the job of cable fore-
man ‘‘over the crew.’’ Wilson replied that he would feel
more comfortable putting in conduit, because he knew more
about it than he did cable. He eventually accepted the job
of conduit foreman. In July 1990, Wampler gave him the
written job description of conduit foreman, and asked him to
sign it to show that Wampler had gone to the safety meeting
with the workers. Wilson signed it and returned it to Wam-
pler, but did not read it. Wilson was laid off about August
6, 1990. On his return on October 1, 1990, he was assigned
to a boring crew led by George Jones. About November 1,
1990, without receiving a raise, Wilson became the leader of
a service wire crew, in which capacity he was serving when
he testified before me in January 1991. After March 1990,
Wampler from time to time told laborers that Wilson was a
foreman.
At various times, Wilson’s crew included Tyrone Mitchell,
Larry Smith, Michael Smith, Darren Carter, Ernest Barber,
John Gary, and Smiley Stewart. Mitchell had been working
with Lee Earl Moore; Wilson credibly testified that when he
started putting in conduit, Moore ‘‘let [Mitchell] come with
me, because he had been working there awhile and [knew]
what to do. And [Moore] told me that [Mitchell] would be
a help to me.’’ Wilson credibly testified, without contradic-
tion in the received evidence, that he played no part in the
hiring of Darren Carter, Ernest Barber, John Gary, or Larry
Smith. As to Smiley Stewart, Wilson credibly testified that
Stewart was the only applicant present that day, that Wam-
pler told Wilson Stewart was a good man and could be put
with Wilson, that ‘‘they’’ hired him, and that Wampler put
him with Wilson. When Wilson’s conduit crew was a man
short, Wampler or vice president Stewart decided whether a
laborer was available or whether to work the crew ‘‘short’’;
Wilson was never asked whom he wanted to fill in.
Wilson credibly testified that on occasion, when he needed
a man, Ainsworth, Berry, or Wampler would tell him to pick
a man from those sent over by the MESC (see, supra at part
II,E,2,b(1)(e)), and that Wilson would thereupon ‘‘go get a
man and take him in there and get him signed up’’; the
938 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
73 Farther down on Mitchell’s attendance record, Wampler stated:
Wilson brought [Mitchell] to office for disciplinary action as
stated above. [Mitchell] was immediately terminated based upon
Wilson’s statement. Wilson had told Mr. Stewart about his deci-
sion prior to bringing [Mitchell] in. Mr. Stewart told Wilson,
‘‘[You’re] the boss, do what you need to do.’’
Stewart was not asked about this incident, and Wampler’s entries
quoted in this footnote do not agree very well with his earlier entries
quoted in the text.
74 Wilson was given the job description of ‘‘conduit foreman’’ in
November 1989 (although be refused to sign it) and in July 1990.
Although he worked as a backhoe operator, without leading a crew,
between October 30, 1989, and mid-February 1990, no contention is
record fails to show how many people were hired in this
fashion for Wilson’s crew. Laying these incidents to one
side, Wilson has never hired anyone or recommended that
anyone be hired. Wilson has never fired anyone, disciplined
anyone, laid off anyone, promoted anyone, recalled anyone,
issued a written warning to anyone, or recommended that
these things be done. Before the safety meeting, no super-
visor or manager ever told Wilson that he had the authority
to recommend firing or other discipline for the members on
his crew. Laying that meeting and the associated job descrip-
tion to one side, there is no evidence that any supervisor or
manager ever so advised Wilson.
On May 11, 1990, following a ‘‘misunderstanding’’ about
whether laborer Leon Lewis had told laborer Tyrone Mitchell
to pickup some pipe, Lewis told Wilson that Lewis did not
want to work with Mitchell. Wilson reported this incident by
telephone to Vice President Stewart, who told Wilson to
bring Mitchell in. Wilson thereupon drove Mitchell back to
the shop, where Wampler asked Wilson what he wanted to
do. Wilson said that Wampler could put Mitchell with an-
other crew, or ‘‘just whatever [Wampler] wanted to do with
him.’’ Wilson did not say that Mitchell should be fired, and
credibly testified to not knowing what happened to him. No
other openings were available, and Mitchell was terminated.
My findings in the preceding paragraph are based mostly
on Wilson’s testimony. Wampler testified that Mitchell was
fired for ‘‘failure to carry out assigned duties,’’ and that Wil-
son recommended Mitchell’s discharge. However, Wampler
wrote on the back of Mitchell’s attendance record that Wil-
son ‘‘said could put [Mitchell] on another crew but [Wilson]
didn’t want him on [Wilson’s] crew.’’73
c. Analysis and conclusions
(1) Individuals found to be employees in Dickerson-
Chapman I
After considering the additional evidence received in the
unfair labor practice case, I see nothing even worthy of dis-
cussion which adds anything significant to the evidence re-
ceived in Dickerson-Chapman I as to Ben Alford, Kenneth
Easterling, J. D. Freeman, James Hicks, Odess Jones,
Wycliff McPherson, Harvey Miner, Tommy Obie, and Rob-
ert Taylor, all of whom Dickerson-Chapman I found to be
statutory employees. Accordingly, I so find in the instant
case.
As to all the other individuals (except Earl Howard and
Vernon Wilson Jr.) whom Dickerson-Chapman I found non-
supervisory, I conclude that notwithstanding the credible evi-
dence in the unfair labor practice record but not included in
the record in Dickerson-Chapman I, the conclusions reached
there are entitled to acceptance here. Thus, I conclude that
Lee Field Johnson did not effectively recommend the kind of
personnel action specified in Section 2(11), in the exercise
of independent judgment in the Company’s interest, when,
on being restored to his position as cable foreman after
working as a laborer because of a reduction in force, he was
asked by management whether he wanted to try new men on
his crew, said that he would rather have his old crew mem-
bers because they had been working together all the time,
and had this request honored. Nor do I believe that Pitchford
effectively recommended employee Martin’s discharge when
Pitchford gave Wampler his ‘‘approval to terminate’’ Martin
in accordance with the recommendation of Wampler,
Pitchford’s immediate superior. Further, I do not think that
Joe L. Smith effectively recommended the discharge of em-
ployee Graves, in the Company’s interest and in the exercise
of independent judgment, when Smith told Wampler (a few
minutes after Jones had suggested Graves’ transfer from
Jones’ crew to another crew and Smith, in urgent need of a
man, had agreed to try Graves on his crew) that Graves had
refused to go out that day and Smith had no use for him.
Similarly, I do not think Smith effectively recommended the
discharge of laborer Cottrell when Smith asked for another
man after Cottrell, whose transfer to Smith’s crew had just
been accepted by Smith because he badly needed a man, said
that he did not want to work that morning because of the
rain.
Because the complaint does not allege that the Company
directed any unfair labor practices toward James Wade in
November 1989, at a time when the Company had assigned
to him the job title of ‘‘driver/foreman,’’ whether he was
then a statutory supervisor is immaterial to the instant case.
In any event, as to his status at that time I see nothing in
the unfair labor practice record which adds anything signifi-
cant to the evidence in Dickerson-Chapman I, when he was
found to be a statutory employee. In addition, I conclude that
Wade occupied employee status after he acquired the classi-
fication of ‘‘pole foreman’’ in March 1990. At that time,
Wade took over the job of Kenneth Easterling, whom
Dickerson-Chapman I found to be an employee. The only
evidence adduced before me, but not in Dickerson-Chapman
I in connection with Wade’s predecessor Easterling, is the
June 1990 incident where Wampler discharged laborer
Charles Williams upon Wade’s request that Williams be re-
moved from Wade’s jobsite because Williams had hit him
with a shovel. I conclude that Wade made this request in his
own interest in personal physical safety on the job, rather
than in the Company’s interest as required by Section 2(11).
However, I do find that in May 1990, after the representa-
tion election, Howard effectively recommended the discharge
of Watson because of his continuing tardiness and absence
problem, and that this recommendation was made in the
Company’s interest and in the exercise of independent judg-
ment. In addition, I find that Vernon Wilson Jr. on several
occasions after the close of the representation case hearing
selected laborers for hire from the group sent over by the
MESC, in the Company’s interest and in the exercise of
independent judgment. Because all parties agree that How-
ard’s and Wilson Jr.’s status did not change at any material
time before July 1990,74 I find that as of November 1989
939DICKERSON-CHAPMAN, INC.
made that his status before November 1989 differed from his status
after mid-February 1990.
75 Because the Company admittedly challenged any ballots which
may have been cast by Howard and Wilson Jr. (see, supra at part
II,A), my finding that they were not employees as found in
Dickerson-Chapman I does not affect the results of that election.
76 See p. 25 of the Regional Director’s Decision and Direction of
Election.
they were supervisors within the meaning of Section 2(11).
Accordingly, they will be excluded from the certified bar-
gaining unit. Serv-U-Stores, supra, 234 NLRB at 1144.75
(2) Individuals whose status was litigated but left
undetermined in Dickerson-Chapman I
I find that in June 1990 Burkes discharged or effectively
recommended the discharge of employee Gaines, in the
Company’s interest and in the exercise of independent judg-
ment; and, therefore, that Burkes was at all relevant times a
supervisor within the meaning of Section 2(11). I also so
find as to Hill, on the basis of his June 1990 discharge of
employee Bass and the evidence that Hill selects new labor-
ers from among the applicants on the front steps. On the
basis of similar selections for hire made by Lee Earl Moore,
I find that he too was a statutory supervisor. On the basis
of similar selections for hire made by Stafford, and because
in August 1990 he discharged employees Coleman and
Broome in the Company’s interest and in the exercise of
independent judgment, I further find that Stafford was a stat-
utory supervisor. Furthermore, I find that McDonald was a
statutory supervisor because he had authority effectively to
recommend the hire of laborers, in the Company’s interest
and in the exercise of independent judgment.
However, I find that Jewel Owens’ connection with la-
borer Price’s discharge—namely, recommending his transfer
to a different crew, from which he was transferred before
being discharged—was not sufficient to render Owens a stat-
utory supervisor, and that Owens was a statutory employee.
See Magnolia Manor Nursing Home, 260 NLRB 377, 385
(1982).
Remaining for consideration is the status of James Spiller.
About a month before discharging him for union activity,
and after Spiller’s crew had received a work assignment
which could only be performed with a full crew, Wampler
answered Spiller’s most recent reminder that the crew was
short by telling him to tell one of the three men who were
waiting on the front steps to come into the office. I accept
Spiller’s at least seeming inference that Wampler was asking
Spiller to select the man who would likely be hired for his
crew to fill in for the injured Wiley; in the event, Spiller dis-
associated himself from the hiring process, and the probative
evidence fails to show who else selected Richardson from the
men on the steps. I conclude that this incident is insufficient
to show that Spiller was a statutory supervisor. Although
Spiller led a cable crew for 12 years before his discharge,
this was the only occasion on which the Company even pur-
ported to give him any say as to which laborers were to be
added to his crew. See Lloyd’s Ornamental & Steel Fabrica-
tors, 197 NLRB 367, 372 (1972), enfd. 486 F.2d 1407 (8th
Cir. 1973). Dickerson-Chapman I found that a similar inci-
dent was insufficient to render McPherson a supervisor.76
Moreover, I question the bona fides of Wampler’s purported
effort to invest Spiller with hiring authority on this occasion.
In addition to the fact that this was the only such occasion
in 12 years, I note that the Company’s sole defense to its ac-
tion in discharging Spiller for union activity a month or so
later is his alleged supervisory status, and that Spiller had re-
fused to sign the kind of inaccurate document on which the
Company has relied to support its claim that a number of its
workers are not entitled to the protection of the statute—in-
cluding two workers (McPherson and Odess Jones) who
were discharged for union activity about 3 months before
Spiller.
(3) Individuals hired for or transferred into allegedly
supervisory jobs after the representation election
As found, infra, the job descriptions issued in July 1990
were in material part issued, not for the purpose of accu-
rately reflecting the recipients’ duties, but to create a paper
basis to support the Company’s contention that the recipients
were statutory supervisors; and were issued in violation of
Section 8(a)(1) and (3) of the Act. Accordingly, in determin-
ing the supervisory status vel non of those individuals who
were hired for or transferred into allegedly supervisory jobs
after the representation election, such job descriptions are en-
titled to no weight. Laying these documents to one side,
there is no credible evidence that Ronald Johnson, Tommie
Lee Jones, or Charles Luckett was a supervisor at any mate-
rial time. Further, I conclude that George Jones did not exer-
cise supervisory authority in reporting to management the
perceived deficiencies in the work performance of the labor-
ers on his crew, without (so far as the record shows) making
any recommendation about what should be done with them;
and that Jones was a statutory employee. See Magnolia
Manor, supra, 260 NLRB at 385.
However, I conclude that Otha Lee Wilson had the author-
ity to select laborers for hire, in the Company’s interest and
in the exercise of independent judgment; and that, therefore,
he is a supervisor within the meaning of Section 2(11) of the
Act.
3. Whether the Company violated Section 8(a)(1) and
(3) of the Act by ‘‘promoting’’ certain individuals
in November 1989
In support of the contention that the Company unlawfully
‘‘promoted’’ certain individuals in November 1989, the Gen-
eral Counsel solely alleges that the Company was unlawfully
motivated in issuing job descriptions. Because no job de-
scriptions were issued in November 1989 to Earl Howard,
Elijah Pitchford, and Joe L. Smith, and because Howard was
in any event a statutory supervisor, this portion of the com-
plaint will be dismissed as to them. This portion of the com-
plaint will also be dismissed as to Burkes, Hill, McDonald,
Stafford, and Vernon Wilson Jr. in view of my finding that
they occupied supervisory status.
As to the remaining portions of this complaint allegation,
the initial question is the Company’s motive in issuing the
job descriptions. I agree with the General Counsel that the
Company issued these job descriptions for the purpose of
providing a paper basis for the Company’s contention that
the recipients were statutory supervisors and, therefore,
would have to be excluded from any unit sought by the
Union. Thus, from the very outset of the union campaign the
Company has attempted to keep its personnel from being
940 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
77 Pilot Freight Carriers, 221 NLRB 1026, 1028–1029 (1975), enf.
denied on other grounds 558 F.2d 205 (4th Cir. 1977); Venture
Packaging, 294 NLRB 544, 552–553 (1989), enfd. 923 F.2d 855
(6th Cir. 1991); Regency Manor Nursing Home, 275 NLRB 1261,
1277 (1985).
78 At the representation case hearing, when asked the reason for
this omission, Wampler testified, ‘‘Probably because it just didn’t
occur to me at the time.’’ He further testified that he was not aware
of any situation in the past 12 years where crew leaders rec-
ommended discipline or discharge, and that the authority to dis-
cipline had not been ‘‘expressly’’ conveyed to the crew leaders,
‘‘But if they so chose to, we would very likely adhere to whatever
they expressed.’’
union represented. The Company discharged, admittedly for
union activity, three employees who had received such job
descriptions and were active in the union campaign, has
sought to defend such discharges on the ground that the dis-
chargees were supervisors, and has used these job descrip-
tions to support that contention. The Company sought to pre-
vent the Union’s May 1990 certification, and refused to bar-
gain with the Union until at least the court of appeals’ July
1992 enforcement of the Board’s bargaining order, on the
grounds that the recipients of these job descriptions (as well
as other individuals on the Company’s payroll) were statu-
tory supervisors. These job descriptions were drawn up partly
by the attorney whom the Company had consulted for advice
on how to fight the Union and how to keep it out. The Com-
pany had not drafted any job descriptions for the proceeding
10 years or (so far as the record shows) at any previous time,
and has never explained why it chose to draft them at this
particular time. The Company used these job descriptions in
the representation case hearing to support its contention that
the recipients should be excluded from the unit as super-
visors. When Spiller declined to sign a job description imme-
diately, on the ground that he was unable to read it, the
Company failed to comply with his request for a copy which
he could take home to have read to him by his family, and
fired him, admittedly for union activity, about 2-1/2 months
later. When McPherson tried to withdraw his signature,
which he had put on the document in the mistaken belief that
it was an evaluation form, the Company refused to let him
withdraw his signature and fired him the following day, ad-
mittedly for union activity. Finally, these job descriptions
made misstatements, as to the individuals’ real powers,
which if accepted would support the Company’s position that
these individuals were in fact supervisors; see Dickerson-
Chapman I, supra, 964 F.2d at 498 fn. 6. Accordingly, I find
that the Company violated Section 8(a)(1) and (3) of the Act
by issuing these job descriptions to employees Ben Alford,
Kenneth Easterling, J. D. Freeman, James Hicks, Lee Field
Johnson, Odess Jones, Wycliff McPherson, Harvey Miner,
Tommy Obie, Jewel Owens, James Spiller, and Robert Tay-
lor.77
4. Whether the Company violated Section 8(a)(1) and
(3) by interrogating and discharging employees
As previously noted, the Company admits that its dis-
charge of McPherson, Odess Jones, and Spiller for union ac-
tivity violated the Act if they were statutory employees. Hav-
ing found that they occupied that status, I find that by dis-
charging them, the Company violated Section 8(a)(1) and
(3).
In addition, I find that the Company violated Section
8(a)(1) of the Act by Vice President Stewart’s interrogation
of Odess Jones and McPherson about November 3, 1989, and
by Wampler’s interrogation of Spiller on February 16, 1990.
In finding that such interrogation about union activity vio-
lated Section 8(a)(1), I note that at the end of each such
interview, the employee was told that he was being dis-
charged for union activity; that each such interview took
place in the office customarily used by top management but
not by the interrogated employee, to which he had been sum-
moned for purposes of the interview; that Stewart was the
top ranking member of management who regularly worked at
the facility; that during the McPherson and Jones interviews,
two other top ranking members of management were also
present; that all three employees were asked about union
meetings, their attendance at such meetings, and their own
plans about whether to engage in union activity in the future;
that McPherson and Jones were asked to name other employ-
ees who were union activists; and that McPherson gave what
Wampler characterized as evasive replies. See NLRB v.
Brookwood Furniture, 701 F.2d 452, 460–463 (5th Cir.
1983); Whitewood Maintenance Co., 292 NLRB 1159, 1164
(1989), enfd. 928 F.2d 1426 (5th Cir. 1991); Midland Trans-
portation Co., 304 NLRB 4 (1991).
However, I see nothing in the record to support the allega-
tion in the amended April 1990 complaint that Stewart un-
lawfully interrogated an employee in March 1990. That alle-
gation will be dismissed.
5. Whether the Company’s unilateral conduct in July
1990 violated the Act
a. The 8(a)(3) and (1) allegations
As previously noted, in early July 1990, about 6 weeks
after the Union’s initial vain request to the Company to
honor the certification, the Company issued new job descrip-
tions to all of the individuals whom it classified as foremen
and crew leaders. The job descriptions issued to the crew
leaders, who had never previously received job descriptions,
stated, inter alia, that the crew leader had the authority to
hire laborers to fill vacancies on his crew; to recommend re-
assignment or discharge of unsatisfactory laborers; and to
discharge immediately any laborer on his crew for gross mis-
conduct or safety violations. None of this authority is re-
ferred to in a job description for crew leaders which Wam-
pler drew up in the fall of 1989, and which (Wampler testi-
fied in January 1991) shows ‘‘the crew leader’s basic duties
. . . as long as I have been with the Company.’’78 The job
descriptions issued in July 1990 to individuals whom the
Company classified as bore foremen, pole foremen, conduit
foremen, service wire foremen, and cable foremen all in-
cluded a section headed ‘‘Personnel Responsibilities’’ which
stated that the foreman had authority to hire laborers to fill
vacancies on his crew; was responsible to assure adequate
crew manning when laborers failed to report for work; was
expected to recommend reassignment or discharge of unsatis-
factory crewmembers; had the authority to determine to work
overtime, up to 2 hours, to complete a job; was responsible
for the morale and discipline of his crew; was expected to
recommend reassignment or discharge of unsatisfactory
crewmembers; had the authority to discharge immediately
941DICKERSON-CHAPMAN, INC.
79 Similarly, the General Counsel’s brief states (p. 73) that ‘‘job
duties did not change after the July [1990] job descriptions were
signed.’’
any member of his crew for gross misconduct or safety vio-
lations; and was expected to direct his crew’s work so as to
minimize labor costs as a percentage of job revenue. All of
these functions except the last two had been set forth in the
job descriptions given out in November 1989 with respect to
all such ‘‘foremen’’ except bore foremen, whom the Com-
pany did not then have in its employ.
I agree with the General Counsel that the issuance of the
July 1990 job descriptions did not have the effect of render-
ing statutory supervisors those individuals who had pre-
viously been employees, including those whom I have found
to be employees before July 1990 and most of whom were
found to be employees in Dickerson-Chapman I. Thus, the
Company’s brief to me states (p. 34) that laying the ‘‘com-
petent-person’’ functions to one side, the Company’s ‘‘fore-
men and crew leaders continued to exercise the same author-
ity . . . in the same way they had before.’’79 Moreover,
Wampler testified that as to the July 1990 job descriptions
of conduit foreman, pole foreman, and service wire foreman,
the OSHA responsibilities were the only additions to the No-
vember 1989 job descriptions, which Dickerson-Chapman I
found did not establish supervisory status. Further, after the
issuance of the July 1990 job descriptions, Wampler testified
that the crew foremen had had the same basic duties since
he had been with the Company. Moreover, I conclude that
the responsibilities set forth in the July 1990 job descriptions
under the heading ‘‘Safety Responsibilities’’ did not, even on
their face, constitute responsibilities which would create a
statutory supervisor. The ‘‘Safety Responsibilities’’ most ar-
guably of a supervisory nature are that the subject of the job
description ‘‘shall not permit any employee to remain under
a load handled by lifting or digging equipment’’; that em-
ployees are to be ‘‘required to stand away from any vehicle
being loaded or unloaded to avoid being struck by any spill-
age or falling materials’’; and that employees are not to be
‘‘allowed’’ to enter excavations ‘‘in which the atmosphere
contains a concentration of a flammable gas in excess of 20
percent of the lower flammable limit of the gas,’’ or to enter
without respirators excavations ‘‘with an atmospheric content
of less than 19.5 percent.’’ I do not think that the perform-
ance of these duties would require responsible direction in
the exercise of independent judgment even if the designated
‘‘competent persons’’ understood what they were supposed
to do and the Company had furnished respirators and atmos-
pheric testing devices, none of which it in fact provided.
Further indicating that July 1990 job descriptions did not
create supervisory status is the evidence from which I con-
clude, in agreement with the General Counsel, that the Com-
pany issued them for the purpose of causing the Board to
reach on the basis of creative paper the erroneous conclusion
that certain individuals, who were in fact statutory employ-
ees, were instead statutory supervisors who were not entitled
to the protection of the Act; and, therefore, that the issuance
of these portions of the job descriptions violated Section
8(a)(1) and (3) of the Act (see cases cited, supra at fn. 77).
I so find because the Company attempted over a period of
years to escape a bargaining obligation on the ground that
many of the persons on its payroll were statutory supervisors;
because the Company used these July 1990 job descriptions
in an effort to induce the Board to refrain from issuing a bar-
gaining order and the court of appeals from enforcing that
order; because as to a number of the employee recipients the
July 1990 job descriptions repeated misrepresentations in the
November 1989 job descriptions; because, although as to the
crew leaders the July 1990 job descriptions set forth respon-
sibilities which appear on their face to be supervisory in
character, such responsibilities were not set forth in the 1989
job descriptions never issued to the crew leaders and Wam-
pler testified that crew leaders’ basic responsibilities had
never changed; because the Company issued the July 1990
job descriptions to be signed by the foremen and crew lead-
ers (some of them at a very low level of literacy) under cir-
cumstances where some of them would be unlikely to read
them before signing them; and because in November 1989
the Company had issued job descriptions for the same unlaw-
ful purpose. Accordingly, I find that the Company violated
Section 8(a)(1) and (3) of the Act about July 2, 1990, by
issuing job descriptions to employees J. D. Freeman, James
Hicks, Lee Field Johnson, Ronald Johnson, Tommie Lee
Jones, Charles Luckett, Harvey Miner, Tommy Obie, Jewel
Owens, Elijah Pitchford, Joe L. Smith, Robert Taylor, and
James Wade. In view of my finding that William Burkes,
Linden Hill, Earl Howard, Isaiah McDonald, Lee Earl
Moore, Clifford Stafford, Otha Lee Wilson, and Vernon Wil-
son Jr. were statutory supervisors, this portion of the com-
plaint will be dismissed as to them.
However, I do not agree with the General Counsel that the
July 1990 wage increases to the employee recipients of the
July 1990 job descriptions were motivated by a desire to dis-
courage union activity. Wampler testified that these increases
were given mostly in order to compensate for the recipients’
new safety responsibilities. The General Counsel may be
contending that these increases violated Section 8(a)(3) be-
cause they either were an admitted consequence of safety re-
sponsibilities which were allegedly assigned for the purpose
of discouraging union activity, or were part of a plan to dis-
courage union activity by assigning safety responsibilities
and concomitant wage increases. I conclude that the evidence
fails preponderantly to support either theory. To be sure,
Wampler was at best inaccurate in testifying that the Com-
pany selected the foremen and crew leaders to act as ‘‘com-
petent persons’’ under OSHA regulations because they were
the only ones who had the requisite ‘‘authority’’; Wampler,
Stewart, Ainsworth, and Berry obviously possessed the req-
uisite ‘‘authority,’’ and Wampler’s use of that term evinces
his anxiety to show as much ‘‘authority’’ as possible by the
foremen and crew leaders. Moreover, the Company included
the new ‘‘Safety Responsibilities’’ in job descriptions whose
issuance violated Section 8(a)(1) and (3). Furthermore, I
infer that the Company must have known that the instruc-
tions given by Wampler as to the duties of a ‘‘competent
person’’ were incompletely understood by a significant num-
ber of the workers who underwent this instruction. Neverthe-
less, the Company’s top managers would likely have found
it difficult, if not impossible, to perform inspections of all
jobsites at the times called for by OSHA regulations. More-
over, the foremen and crew leaders were on the jobsite at all
relevant times, and the Company could at least reasonably
and honestly have believed that by virtue of experience, they
were likely the crew members best qualified to act as ‘‘com-
942 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
petent persons’’ and that their relative stability on the job
would limit the Company’s need to train new ‘‘competent
persons.’’ I am doubtful whether the General Counsel has
made out a prima facie Section 8(a)(3) case with respect to
the ‘‘competent-person’’ designations and related wage in-
creases; but assuming that she has done so, I find that the
record preponderantly shows that the Company would have
named the foremen and crew leaders as ‘‘competent per-
sons’’ even if a desire to make them appear to be supervisors
was a factor in the Company’s decision thus to name them.
b. The 8(a)(5) allegations
An employer violates Section 8(a)(5) of the Act by making
unilateral changes with respect to a mandatory subject of col-
lective bargaining without informing the employees’ statutory
bargaining representative of the employer’s proposed actions
under circumstances which afford a reasonable opportunity
for counter arguments or proposals. Gulf States Mfg. v.
NLRB, 704 F.2d 1390, 1397 (5th Cir. 1983), rehearing en
banc denied 715 F.2d 1020 (5th Cir. 1983); see also Litton
Business Systems v. NLRB, 111 S.Ct. 2215, 2221 (1991). Al-
though the Union was certified on May 9, 1990, and on May
22 asked the Company to bargain with it, the Company
failed to give the Union any prior notice (or, for that matter,
any notice until August 3 at the earliest) of the Company’s
July 1990 unilateral action in issuing new job descriptions
which included the performance of ‘‘competent-person’’
functions in response to OSHA regulations, giving wage in-
creases to these new ‘‘competent persons,’’ and issuing a
safety-manual rule which forbids unit employers to undertake
certain relatively deep excavations without the permission of
an ‘‘excavation safety officer’’ or a plan designed by a reg-
istered professional engineer. I find that all of these unilateral
actions were taken with respect to mandatory subjects of col-
lective bargaining.
It is true that longstanding OSHA regulations required the
designation of ‘‘competent persons’’ with certain capabilities
and authorizations. However, the identity of the individuals
who were to be assigned such duties was a mandatory sub-
ject of collective bargaining, because this assignment added
to the duties of certain unit employees and, moreover, the
safety conditions of the entire unit were affected by whether
the individuals who were designated ‘‘competent persons’’
really possessed the capabilities required by OSHA. See
Everbrite Electric Signs, 222 NLRB 679, 682–683, 685
(1976), enfd. 562 F.2d 405 (7th Cir. 1977); Woods Schools,
270 NLRB 171, 176 (1984); Christopher Street Owners
Corp., 294 NLRB 277, 281–282 (1989); NLRB v. Gulf
Power Co., 384 F.2d 822, 824–825 (5th Cir. 1967);
Northside Center for Child Development, 310 NLRB 105
(1993); North American Soccer League, 245 NLRB 1301,
1306–1307 (1979), and cases cited. While it is true that for
a number of years OSHA regulations had required the Com-
pany to designate ‘‘competent persons,’’ these regulations
did not excuse the Company from its duty to bargain as to
who would be so designated. J. P. Stevens & Co., 239
NLRB 738, 742–743 (1978), enfd. in relevant part 623 F.2d
322 (4th Cir. 1980), cert. denied 449 U.S. 1077 (1981); Ken-
dall College of Art, 292 NLRB 1065, 1066–1067 (1989);
Seiler Tank Truck Service, 307 NLRB 1090 (1992). In view
of the Company’s continuing contention that supervisory sta-
tus was possessed by all the individuals who were the subject
of these unlawful unilateral changes, the Company’s August
3 offer to bargain with respect to the effect of these changes
‘‘on employees’’ did not satisfy, even as to the mandatorily
bargainable matters which were the subject of the Company’s
July 1990 unilateral action, the bargaining opportunity to
which the Union was entitled. See Specialized Living Center,
286 NLRB 511 (1987), enfd. 879 F.2d 1442, 1455 (7th Cir.
1989).
6. Whether the Company’s unilateral conduct in August
1990 violated Section 8(a)(5) and (1) of the Act
As shown, supra at part II,D in August 1990 the Company
laid off or severely curtailed the hours of certain employees,
for the expressed reason that the Company was experiencing
a drastic decline in work orders. As the Company does not
appear to dispute, whether a layoff for such reasons should
be effected, whom to include in any such layoff, and what
if any benefits should be given to laid-off employees in con-
nection with any such layoff, are mandatory subjects of col-
lective bargaining. Adair Standish Corp. v. NLRB, 912 F.2d
854, 864–866 (6th Cir. 1990); NLRB v. Litton Business Sys-
tems, 893 F.2d 1128, 1133–1135 (9th Cir. 1990), cert. denied
so far as relevant here 111 S.Ct. 426 (1990), rev. in part as
to issues irrelevant here, 111 S.Ct. 2215 (1991); Stamping
Specialty Co., 294 NLRB 703 (1989); Paramount Poultry,
294 NLRB 867, 869 (1989); McCotter Motors Co., 291
NLRB 764 (1988); Lapeer Foundry & Machine, 289 NLRB
952 (1988). Accordingly, the Company could not lawfully
effect such action without informing the Union of the Com-
pany’s proposed actions under circumstances which afforded
a reasonable opportunity for counter arguments or proposals.
Gulf States, supra, 704 F.2d at 1397; NLRB v. Pinkston-
Hollar Construction Services, 954 F.2d 306, 311–312 (5th
Cir. 1982). No such timely notice was given by the Com-
pany. Rather, the Company laid off three individuals (two of
whom were admittedly employees) at 7 a.m. on the day after
the Company first advised the Union of its intention to effect
a layoff, and laid off four more individuals (three of whom
were admittedly employees) effective the very day that the
parties were scheduled to meet for a discussion about the
matter.
The Company’s contention that its action was not unlawful
because it accorded with prior practice is obviously irrelevant
to the Company’s failure to give the Union timely notice of
the decision to effect a layoff; Wampler testified that the
Company had previously effected only one layoff (for undis-
closed reasons) in the preceding 12 years, circumstances
hardly consistent with the existence of a recurring and essen-
tially identical problem which had regularly been resolved in
a recurring and identical fashion. Furthermore, the record
shows that any system which may have been used by the
Company in selecting which employees would be laid off
was not the system previously used by the Company. Thus,
according to Wampler, during the prior layoff no foremen or
crew leaders were laid off and the foremen reduced each
crew by one. However, during the 1990 layoff, three foremen
were laid off (two of whom the Board had already found to
be nonsupervisory), all the members of Vernon Wilson Jr.’s
crew were laid off, and the laid-off employees included three
from Abel’s crew and two from Obie’s crew. Moreover, ad-
mitted Supervisor Hayman’s testimony indicates that it was
Wampler or Stewart who decided whether particular laborers
943DICKERSON-CHAPMAN, INC.
80 Rather similarly, the Company’s posthearing brief to me states
(p. 58), ‘‘The crews were dispatched, or not, with their foremen. The
dispatch order was arranged by the most objective measure of the
value [the Company] placed on each foreman’s skills—his pay
rate.’’ I note, however, that the layoff included the Wilsons, who
were receiving $8.50 an hour, but not McDonald, Hill, Burkes, or
Obie, all of whom were paid between $7 and $8 an hour. Although
the Wilsons were classified as conduit foremen and the rest as cable
foremen, in March 1990 the Company had offered Otha Lee Wilson
a job as a cable foreman before acceding to his request to give him
a job as a conduit foreman instead.
81 In view of this variance between the system described in coun-
sel’s July 31 letter and what the Company in fact did, I am doubtful
whether the letter would have constituted adequate notice to the
Union even if the letter had otherwise been sufficient to meet the
Company’s statutory obligations.
82 See also NLRB v. Winn-Dixie Stores, 361 F.2d 512, 515–516
(5th Cir. 1966), cert. denied 385 U.S. 935 (1966); Sec. 3(b) of the
Act (‘‘a review [by the Board] shall not, unless specifically ordered
by the Board, operate as a stay of any action taken by the Regional
Director’’); Secs. 102.67(b) and 102.69(c)(4) of the Board’s Rules
and Regulations.
83 See also E. I. du Pont & Co., 304 NLRB 792 fn. 1 (1991); Sac-
ramento Union, 291 NLRB 552, 556 (1988). In Pinkston, supra, re-
lied on by the company, the employer did not display willingness
to bargain on a piecemeal basis only; see 954 F.2d at 307–308.
84 The Company’s brief to me was filed after the Board had issued
its bargaining order in Dickerson-Chapman I, but before the court’s
enforcement of that order.
85 The Company relies on Mike O’Connor Chevrolet-Buick-GMC
Co., 209 NLRB 701, 703 (1974), enf. denied on other grounds 512
F.2d 684 (8th Cir. 1985).
were to be transferred to other crews or to be laid off. Com-
pany counsel’s July 31 letter to the Union that the ‘‘past
practice in similar situations’’ had been to withhold dispatch
from selected crews as units80 cannot be squared with either
Wampler’s testimony, with company counsel’s statement be-
fore me that particularly good laborers were picked up by
other foremen and those that were not picked up were
surplussed, or with whatever system the Company did follow
in 1990. Only the members of the crew headed by Vernon
Wilson Jr. were all put on a continuous 1-hour-per-day
‘‘show-up’’ basis. Cable Foreman Lee Field Johnson was the
only member of his crew put on a continuous showup basis;
the other members continued to work on a relatively full-
time basis while Johnson was receiving 5 hours’ pay a week.
Moreover, while ‘‘service wire foreman’’ Otha Lee Wilson
was still on a showup basis, laborer Barber, who had been
on Wilson’s crew, was recalled and worked for 2 weeks be-
fore Wilson was recalled.81
I find unmeritorious the Company’s contention that its uni-
lateral conduct in connection with the ‘‘surplussing’’ was not
unlawful because the Company was at the time contesting (in
the event, unsuccessfully) the validity of the Union’s certifi-
cation and during the August 6 conference the Union de-
clined to discuss the layoff issue except as part of contract
negotiations. In refusing to honor the certification, the Com-
pany proceeded at its own risk. NLRB v. Laney & Duke Stor-
age Warehouse Co., 369 F.2d 859, 869 (5th Cir. 1966);
Unifirst Corp., 280 NLRB 75, 76 fn. 1 (1986).82 The Com-
pany having been unsuccessful in taking that risk, the certifi-
cation from the date of its issuance precluded the Company
from requiring the Union to choose between piecemeal bar-
gaining or none. Specialized Living, supra, 286 NLRB 511,
879 F.2d at 1455–1457.83 The Company’s contention that it
could not have bargained meaningfully about issues other
than the layoff, because the Board had failed to determine
whether 7 individuals were included in a bargaining unit
which otherwise consisted of about 47 employees, is incon-
sistent with the action of the court in Dickerson-Chapman I
in requiring the Company to ‘‘bargain with the Union on
terms and conditions of employment, and, if an understand-
ing is reached, embody the understanding is a signed agree-
ment [but] this Judgment does not require [the Company] to
bargain with [the Union] concerning [the] terms and condi-
tions of employment’’ of these seven individuals.
Particularly because the validity of the May 1990 certifi-
cation has been upheld at all stages of litigation,84 I fail to
understand why the Company’s brief regards as ‘‘useful’’ to
the Company a proposed analogy between the instant case
and the rule that an employer acts at its peril in making uni-
lateral changes in terms and conditions of employment dur-
ing the period that objections to an election are pending and
the final determination has yet been made.85
If the employer’s objections are rejected, its duty to
bargain relates back to the date of the election, and the
employer’s unilateral actions while objections were
pending are automatic violations of § 8(a)(5) . . . an
employer whose election objections are overruled must
bargain retroactively about all post-election changes,
thus restoring the duty-to-bargain status quo as of the
date of the election. [Dow Chemical Co. v. NLRB, 660
F.2d 637, 653–655 (5th Cir. 1981), and cases cited in
fn. 13; see also Specialized Living, supra, 879 F.2d at
1455–1457.]
In the case at bar, the Company’s unilateral conduct in con-
nection with the layoff occurred after the certification had
issued. The Company seems to be contending that the Mike
O’Connor rule was developed in order to discourage employ-
ers from postponing bargaining obligations by filing spurious
challenges to an election and prevent employers from boxing
the union in on future bargaining positions by implementing
changes of policy and practice during the certification con-
test; that neither of these policy considerations is present
here because ‘‘the Board’s decision on review of the Deci-
sion and Direction of Election conceded that the [Compa-
ny’s] arguments are serious and substantial [and the Com-
pany] attempted to negotiate its lay off plan with the
Union’’; that, therefore, in the instant case even Mike O’Con-
nor’s restrictions on unilateral action would have been inap-
plicable to the Company’s conduct in connection with the
layoff if it had occurred before the certification; and that,
therefore, these alleged exceptions to Mike O’Connor’s re-
strictions on precertification unilateral conduct also extend to
the Company’s postcertification conduct in connection with
the layoff. As to postcertification unilateral conduct, Special-
ized Living, supra, 879 F.2d at 1456, rejected the contention
that such unilateral conduct is privileged even by the ‘‘com-
pelling-economic-considerations’’ exception specifically ar-
ticulated in Mike O’Connor as to the precertification period.
Accordingly, I need not and do not determine whether, as to
precertification unilateral conduct, Mike O’Connor is subject
to the additional exceptions urged by the Company, or
whether the existence of such exceptions is shown by the in-
944 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
86 It would be impossible to determine from the instant record,
which was closed in February 1991, the extent (if any) to which the
Company’s unilateral August 1990 conduct in connection with the
layoff boxed in the Union with respect to the parties’ bargaining po-
sitions following the July 1992 judicial enforcement of the bargain-
ing order. I note, moreover, that after the Board’s July 1990 denial
of the Company’s request for review of the certification, the Com-
pany never thereafter reiterated its March 1990 objections to conduct
affecting the result of the election.
87 The employees there listed as having voluntarily quit are James
Blackwell; Clark Thompson; Charlie Williams; Darren Carter; Mi-
chael Smith; Jessie James; Alfred Willis; Nelse Ellington; Wesley
Martin; Emils Pollard; and Angelo Stamps.
stant record.86 I conclude that the Company violated Section
8(a)(5) and (1) of the Act about August 1, 1990, by laying
off or severely cutting back the hours of employees without
giving the Union prior notice and an opportunity to bargain.
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The Company has violated Section 8(a)(1) of the Act
about November 3, 1989, by interrogating employees Odess
Jones and Wycliff McPherson about union activity, and on
February 28, 1990, by interrogating employee James Spiller
about union activity.
4. The Company has violated Section 8(a)(1) and (3) of
the Act by the following conduct:
(a) Giving employees pay raises about November 1989.
(b) Issuing job descriptions about November 2, 1989, to
the following employees: Ben Alford, Kenneth Easterling,
J. D. Freeman, James Hicks, Lee Field Johnson, Odess
Jones, Wycliff McPherson, Harvey Miner, Tommy Obie,
Jewel Owens, James Spiller, and Robert Taylor.
(c) Discharging Odess Jones about November 3, 1989;
Wycliff McPherson about November 3, 1989; and James
Spiller on February 28, 1990.
(d) Issuing job descriptions about July 2, 1990, to the fol-
lowing employees: J. D. Freeman, James Hicks, Lee Field
Johnson, Ronald Johnson, George Jones, Tommie Lee Jones,
Charles Luckett, Harvey Miner, Tommy Obie, Jewel Owens,
Elijah Pitchford, Joe L. Smith, Robert Taylor, and James
Wade.
5. The following employees of the Company constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All full-time operational service personnel, including
operators, laborers, drivers, operator/drivers, crew lead-
ers (except Earl Howard), maintenance employees,
driver/foremen, foremen/trainee, service wire foremen
(except Otha Lee Wilson and Linden Hill), pole fore-
men, conduit foremen (except Lee Earl Moore and Ver-
non Wilson Jr.), cable foremen (including Jewel Owens
and James Spiller, but not including William Burkes,
Isaiah McDonald, and Clifford Stafford) employed by
the Company and working at its Jackson, Mississippi
facility; excluding office clerical employees, guards,
professional employees and supervisors as defined in
the Act.
6. At all times since May 9, 1990, the Union by virtue of
Section 9(a) of the Act has been, and is, the exclusive rep-
resentative of the unit described in Conclusion of Law 5 for
purposes of collective bargaining with respect to rates of pay,
wages, hours of employment, and other terms and conditions
of employment.
7. The Company has violated Section 8(a)(5) and (1) of
the Act in the following respects:
(a) About July 2, 1990, without giving the Union prior no-
tice and an opportunity to bargain, by unilaterally taking the
following action:
(1) Appointing personnel as, and giving them the duties
of, ‘‘competent persons.’’
(2) Issuing new job descriptions, and giving wage in-
creases, to the employees named in Conclusion of Law 4.
(3) Issuing new safety regulations with respect to unit em-
ployees.
(b) About August 1, 1990, by laying off or severely cut-
ting back the hours of unit employees.
8. The unfair labor practices set forth in Conclusions of
Law 3, 4, and 7 affect commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
9. The Company has not violated the Act by interrogating
an employee about March 13, 1990; by issuing job descrip-
tions about November 2, 1989, to William Burkes, Linden
Hill, Earl Howard, Isaiah McDonald, Lee Earl Moore, Elijah
Pitchford, Joe L. Smith, Clifford Stafford, and Vernon Wil-
son Jr.; or by issuing job descriptions and giving wage in-
creases about July 2, 1990, to William Burkes, Linden Hill,
Earl Howard, Isaiah McDonald, Lee Earl Moore, Clifford
Stafford, Otha Lee Wilson, and Vernon Wilson Jr.
10. The Company has not violated Section 8(a)(3) of the
Act by appointing ‘‘competent persons’’ and giving wage in-
creases in July 1990.
THE REMEDY
Having found that the Company has violated the Act in
certain respects, I shall recommend that the Company be re-
quired to cease and desist from the unfair labor practices
found, and from like or related conduct, and to take certain
affirmative action necessary to effectuate the policies of the
Act. Thus, the Company will be required to offer reinstate-
ment to the jobs of which they were unlawfully deprived—
or, if such jobs no longer exist, substantially equivalent
jobs—to Odess Jones, Wycliff McPherson, James Spiller,
and the employees whose layoffs became effective between
August 1 and 23, 1990, without prejudice to their seniority
or other rights and privileges they would have enjoyed if
they had not been discharged or laid off. This reinstatement
order does not extend to employees who have already been
offered reinstatement. However, the reinstatement order in-
cludes the laid-off employees who have not received rein-
statement offers but whom General Counsel’s Exhibit 40 lists
as having voluntarily quit.87 On the record before me, there
is no way of determining whether these resignations were
due to the economic position in which the Company’s unlaw-
ful layoff action had placed them; see Big Sky Sheet Metal
Co., 266 NLRB 21 (1983); C. K. Smith & Co., 227 NLRB
1061, 1075 (1977) (Wadowski). Under these circumstances,
whether they have voluntarily relinquished their right to a re-
945DICKERSON-CHAPMAN, INC.
88 Vernon Wilson Jr., the only witness thus listed as having volun-
tarily quit, testified that after being ‘‘surplussed’’ on August 1 he
reported to work every morning, and received 1 hour’s pay for each
day, until he obtained a job elsewhere; he received 19.5 hours’ pay
from the Company for the week ending August 4, 5 hours’ pay for
each week between the weeks ending August 11 and the week end-
ing September 1, 9 hours’ pay for the week ending September 8
(which included Labor Day), and nothing thereafter. This evidence
at least suggests that he may have ‘‘voluntarily quit’’ because his
income from the Company after he was ‘‘surplussed’’ was not
enough to live on.
89 The notice is phrased in the arguably esoteric language cus-
tomarily used by the Board. However, the employees are likely to
understand the posted notice better if it is also read to them.
90 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
instatement offer will be left to the compliance stage of these
proceedings.88 In addition, the Company will be required to
make such employees, and the employees whose hours were
curtailed in connection with that layoff, whole for any loss
of pay they may have suffered by reason of such discharge,
layoff, or curtailment of hours, to be computed in the manner
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest as called for in New Horizons for the Retarded,
283 NLRB 1173 (1987). Also, the Company will be required
to remove the November 1989 job descriptions from the files
of the following employees, and advise such employees (ex-
cept the deceased Kenneth Easterling) in writing that this has
been done: Ben Alford, Kenneth Easterling, J. D. Freeman,
James Hicks, Lee Field Johnson, Odess Jones, Wycliff
McPherson, Harvey Miner, Tommy Obie, Jewel Owens,
James Spiller, and Robert Taylor.
Furthermore, the Company will be required, on the
Union’s request, to take the following action:
(1) Remove from the files of the following employees the
job descriptions (except for the portions headed ‘‘Safety Re-
sponsibilities’’) issued on July 2, 1990, and advise such em-
ployees in writing that this has been done: J. D. Freeman,
James Hicks, Lee Field Johnson, Ronald Johnson, George
Jones, Tommie Lee Jones, Charles Luckett, Harvey Miner,
Tommy Obie, Jewel Owens, Elijah Pitchford, Joe L. Smith,
Robert Taylor, and James Wade.
(2) Cancel the wage increases given to such employees on
July 2, 1990; but nothing in this Order shall require the
Company to take such wage action without the Union’s re-
quest.
(3) Delete from the safety manuals issued on July 2, 1990,
the portion directed to the Company’s excavation permit pol-
icy.
Because OSHA regulations require the Company to em-
ploy designated ‘‘competent persons,’’ this Order will not re-
quire the Company to honor any request by the Union to
alter such designations or the associated provisions in the
designees’ job descriptions. However, the Company will be
required to bargain with the Union, on request, as to the
identity of such designees, and as to their training and duties
consistent with the requirements of OSHA regulations. Fur-
ther, the Company will be required to bargain with the
Union, on request, as to the matters encompassed by the
Company’s unlawful unilateral action in July 1990.
Although Dickerson-Chapman I led to the issuance of a
general bargaining order, the judgment issued by the court of
appeals does not require the Company to bargain with the
Union as to Jewel Owens and James Spiller, both of whom
have been found in the instant proceeding to be statutory em-
ployees. Accordingly, a general bargaining order including
them will be issued here. See Chicago Educational Tele-
vision Assn., 308 NLRB 102 fn. 1 (1992).
Also, the Company will be required to post appropriate
notices. Because a number of the Company’s employees are
virtually illiterate, it is appropriate to add the additional re-
quirement that the notice be read to the employees. The
Company can fulfil this requirement by permitting the notice
to be read by a Board agent or, after giving a Board agent
the opportunity to be present, by having a company agent or
permitting a union agent to read the notice.89
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended90
ORDER
The Respondent, Dickerson-Chapman, Inc., Jackson, Mis-
sissippi, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating employees about union activity in a man-
ner constituting interference, restraint, or coercion.
(b) Discouraging membership in International Union of
Operating Engineers, AFL–CIO, Local 624, AFL–CIO, by
increasing wages, by issuing job descriptions, by discharging
employees, or by otherwise discriminating in regard to hire
or tenure of employment or any term or condition of employ-
ment.
(c) Refusing to bargain with Local 624 as the exclusive-
bargaining representative of the employees in the bargaining
unit.
(d) Unilaterally appointing personnel as, and giving them
the duties of, ‘‘competent persons’’; issuing job descriptions
for unit employees; giving unit employees wage increases;
issuing new safety regulations with respect to unit employ-
ees; laying off or severely cutting back the hours of unit em-
ployees; or otherwise changing unit employees’ rates of pay,
wages, hours of employment, or other conditions of employ-
ment; without giving Local 624 prior notice and an oppor-
tunity to bargain.
(e) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of their rights
under the Act.
2. Take the following action necessary to effectuate the
policies of the Act.
(a) Offer reinstatement to the jobs of which they were un-
lawfully deprived or, if such jobs no longer exist, substan-
tially equivalent jobs, to Odess Jones, Wycliff McPherson,
James Spiller, and the employees whose layoffs became ef-
fective between August 1 and August 23, 1990, without prej-
udice to their seniority or other rights and privileges they
would have enjoyed if they had not been discharged or laid
off.
(b) Make such employees, and the employees whose hours
were curtailed in connection with that layoff, whole for any
loss of pay they may have suffered by reason of their unlaw-
946 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
91 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
ful discharge, layoff, or curtailment of hours, in the manner
set forth in that part of the remedy section of this decision.
(c) Remove the November 1989 job descriptions from the
files of the following employees, and advise such employees
(except the late Kenneth Easterling) that this has been done:
Ben Alford, Kenneth Easterling, J. D. Freeman, James
Hicks, Lee Field Johnson, Odess Jones, Wycliff McPherson,
Harvey Miner, Tommy Obie, Jewel Owens, James Spiller,
and Robert Taylor.
(d) On Local 624’s request, take the following action:
(1) Remove from the files of the following employees the
job descriptions (except for the portions headed ‘‘Safety Re-
sponsibilities’’) issued about July 2, 1990, and advise such
employees in writing that this has been done: J. D. Freeman,
James Hicks, Lee Field Johnson, Ronald Johnson, George
Jones, Tommie Lee Jones, Charles Luckett, Harvey Miner,
Tommy Obie, Jewel Owens, Elijah Pitchford, Joe L. Smith,
Robert Taylor, and James Wade.
(2) Cancel the wage increases given to such employees
about July 2, 1990; but nothing in this Order shall require
Respondent to take such wage action without Local 624’s re-
quest.
(3) Delete from the safety manuals issued on July 2, 1990,
the portion regarding the excavation permit policy.
(e) On request, bargain with Local 624 as the exclusive
representative of the employees in the following appropriate
unit on terms and conditions of employment and, if an un-
derstanding is reached, embody the understanding in a signed
agreement:
All full-time operational service personnel, including
operators, laborers, drivers, operator/drivers, crew lead-
ers (except Earl Howard), maintenance employees,
driver/foremen, foremen/trainee, service wire foremen
(except Otha Lee Wilson and Linden Hill), pole fore-
men, conduit foremen (except Lee Earl Moore and Ver-
non Wilson Jr.), cable foremen (including Jewel Owens
and James Spiller, but not including William Burkes,
Isaiah McDonald, and Clifford Stafford) employed by
the Company and working at its Jackson, Mississippi
facility; excluding office clerical employees, guards,
professional employees and supervisors as defined in
the Act.
(f) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(g) Post at its facilities in Jackson, Mississippi, copies of
the attached notice marked ‘‘Appendix.’’91 Copies of the no-
tice, on forms provided by the Regional Director for Region
15, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(h) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER RECOMMENDED that the complaints are dis-
missed to the extent they allege unfair labor practices not
previously found.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT interrogate you about union activity in a
manner constituting interference, restraint, or coercion.
WE WILL NOT discourage membership in International
Union of Operating Engineers, AFL–CIO, Local 624, by in-
creasing wages, by issuing job descriptions, by discharging
employees, or by otherwise discriminating in regard to hire
or tenure of employment or any term or condition of employ-
ment.
WE WILL NOT refuse to bargain with Local 624 as the ex-
clusive bargaining representative of the employees in the bar-
gaining unit.
WE WILL NOT unilaterally appoint personnel as and give
them the duties of ‘‘competent persons,’’ issue job descrip-
tions for unit employees, give unit employees wage in-
creases, issue new safety regulations with respect to unit em-
ployees, lay off or severely cut back the hours of unit em-
ployees, or otherwise change unit employees’ rates of pay,
wages, hours of employment, or other conditions of employ-
ment, without giving Local 624 prior notice and an oppor-
tunity to bargain.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of your rights under
the Act.
WE WILL offer reinstatement to the jobs of which they
were unlawfully deprived or, if such jobs no longer exist,
substantially equivalent jobs, to Odess Jones, Wycliff
McPherson, James Spiller, and the employees whose layoffs
became effective between August 1 and August 23, 1990,
without prejudice to their seniority or other rights and privi-
leges they would have enjoyed if they had not been dis-
charged or laid off.
WE WILL make these employees, and the employees whose
hours were curtailed in connection with that layoff, whole,
with interest, for any loss of pay they may have suffered by
reason of their unlawful discharge, layoff, or curtailment of
hours.
WE WILL remove the November 1989 job descriptions
from the files of the following employees: Ben Alford, Ken-
neth Easterling, J. D. Freeman, James Hicks, Lee Field John-
son, Odess Jones, Wycliff McPherson, Harvey Miner,
Tommy Obie, Jewel Owens, James Spiller, and Robert Tay-
lor.
On Local 624’s request, WE WILL:
947DICKERSON-CHAPMAN, INC.
1. Remove from the files of the following employees the
job descriptions (except for the portions headed ‘‘Safety Re-
sponsibilities’’) issued about July 2, 1990: J. D. Freeman,
James Hicks, Lee Field Johnson, Ronald Johnson, George
Jones, Tommie Lee Jones, Charles Luckett, Harvey Miner,
Tommy Obie, Jewel Owens, Elijah Pitchford, Joe L. Smith,
Robert Taylor, and James Wade.
2. Cancel the wage increases given to such employees
about July 2, 1990; but nothing in this Order requires us to
take such wage action without Local 624’s request.
3. Delete from our safety manuals issued on July 2, 1990,
the portion regarding the excavation permit policy.
WE WILL, on request, bargain with Local 624 in the fol-
lowing appropriate unit on terms and conditions of employ-
ment and, if an understanding is reached, embody the under-
standing in a signed agreement:
All full-time operational service personnel, including
operators, laborers, drivers, operator/drivers, crew lead-
ers, maintenance employees, driver/foremen, foremen-
trainee, service wire foremen, pole foremen, conduit
foremen, cable foremen employed by us and working at
our Jackson, Mississippi facility; excluding office cleri-
cal employees, guards, professional employees and su-
pervisors as defined in the Act.
DICKERSON-CHAPMAN, INC.