McCullough Environmental Services

National Labor Relations Board - Board Decisions

Feb 28, 1992

306 N.L.R.B. 565 (N.L.R.B. 1992)

565
306 NLRB No. 107
MCCULLOUGH ENVIRONMENTAL SERVICES
1 The name of the Charging Party has been changed to reflect the
new official name of the International Union.
2 297 NLRB 546.
3 The Board took official notice of the underlying representation
proceeding, Case 15–RC–7452.
4 Case 15–RC–7452, issued June 16, 1989. On July 11, 1989, the
Board denied the Respondent’s request for review. The Union won
the July 11, 1989 election by a vote of 22 to 5, with 1 nondeter-
minative challenged ballot. On August 1, 1989, the Regional Direc-
tor issued a supplemental decision and certification of representative
overruling the Respondent’s objections, which alleged supervisory
support of the Union by the lead operators and their participation in
the election campaign. The Regional Director certified the Union as
collective-bargaining representative of the unit employees. On Au-
gust 30, 1989, the Board denied the Respondent’s request for review.
The appropriate unit is:
All operators and shift operators, mechanics and mechanics/-
helpers, laborers and utility employees, laboratory technicians,
field inspectors, electricians, instrument men, lead operators and
lead relief operators employed by the Respondent and working
at the Jackson, Mississippi wastewater treatment plant; excluding
office clerical personnel, and guards, professional employees,
and supervisors as defined in the Act.
McCullough Environmental Services, Inc. and
Teamsters Local Union No. 891, affiliated with
the International Brotherhood of Teamsters,
AFL–CIO.1 Case 15–CA–10972
February 28, 1992
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On January 25, 1990, the National Labor Relations
Board issued its decision in this proceeding2 granting
the General Counsel’s Motion for Summary Judgment,
finding that the Respondent violated Section 8(a)(5)
and (1) of the Act by refusing to bargain with the
Union as the exclusive representative of employees in
the appropriate unit,3 and ordering the Respondent to
bargain on request with the Union.
On April 9, 1991, the United States Court of Ap-
peals for the Fifth Circuit remanded this case to the
Board for reconsideration in light of Dale Service
Corp., 269 NLRB 924 (1984), a case that the Re-
spondent had never cited to the Board when this case
was previously before it. On August 28, 1991, the
Board notified the parties that it had decided to accept
the court’s remand. The Respondent, the General
Counsel, and the Union each filed a statement of posi-
tion on remand.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
On reconsideration pursuant to the court’s remand
and in light of the entire record in this proceeding, in-
cluding the parties’ statements of position, the Board
reaffirms its prior Decision and Order.
The sole issue on remand involves the supervisory
status of the four lead operators at the Respondent’s
Savannah Street facility. In the underlying Decision
and Direction of Election (attached),4 the Regional Di-
rector, on the evidence presented at the hearing, found
that the lead operators were not supervisors. Lead op-
erators do not have any authority to hire, transfer, sus-
pend, lay off, recall, promote, discharge, or reward em-
ployees, or to adjust grievances. Specifically, the Re-
gional Director found that the evidence failed to show
that the lead operators’ role in the disciplinary process
or their assignment of work and direction of lead relief
operators and shift operators was other than routine.
We agree.
Dale Service Corp., supra, and this case both in-
volve the operation of wastewater treatment plants on
a 24-hour-per-day, 7-day-per-week basis, and both in-
volve the supervisory status of senior or lead operators
who are responsible for the operation of the plants
when managers are not present. Despite the superficial
similarities, we find that Dale Service is factually dis-
tinguishable.
Supervisory status is one of the most common issues
in representation proceedings; the Board’s decisions
are replete with findings of supervisory and non-
supervisory status. A number of factors, principally
those set forth in the definition of supervisor in Section
2(11) of the Act, are relevant. The difficulty lies in the
assessment of the facts and circumstances in each case
in light of the relevant factors. There are few, if any,
hard and fast rules. Rather, the Board must decide in
each case whether a preponderance of the evidence
shows that an employer has in fact delegated super-
visory authority to each employee claimed to be a su-
pervisor. Often the Board is called on to differentiate
between the exercise of independent judgment and the
routine communication of instructions. In Dale Service
the Board found on the evidence presented that the
senior operators exercised independent judgment. In
this case we affirm the Regional Director’s decision on
the evidence presented that the lead operators’ instruc-
tions are routine and do not involve the use of signifi-
cant discretion.
In Dale Service the Board found that the senior op-
erators assigned operators to specific tasks based on
their assessment of the operators’ abilities. In contrast,
McCullough’s lead operators’ assignment and direction
of work is only routine. Each lead operator works with
two operators—a lead relief operator and a shift oper-
ator. An operator works at one of two stations. Al-
though there is testimony that lead operators assign op-
erators to particular stations, it is undisputed that in
practice the operators rotate shifts on a daily basis.
While at their stations, operators work from an exten-
sive checklist prepared by management. Additional
tasks for each station are prepared by Chief Operator
Hawthorne. The lead operator merely relays these di-
566 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Lead operators may release an operator on the ground of illness.
They do not otherwise give employees time off. Also they do not
make the final decision regarding overtime and do not on their own
call employees into work.
6 See, e.g., Esco Corp., 298 NLRB 837 (1990), in which the Board
found that a warehouse ‘‘supervisor’’ was not a statutory supervisor
over the warehouse employees even though he was the highest offi-
cial who regularly worked at the warehouse.
rectives to the operators at the start of a shift. There
is no evidence that the lead operators may on their
own authority deviate from the checklists or directives.
Thus, lead operators assign tasks that are predeter-
mined by management on a rotating basis. This does
not require the exercise of independent judgment.
In Dale Service the senior operators were, as the
Board noted with emphasis, the highest ranking em-
ployees at the plant on nights and weekends and were
expected to resolve problems arising on those shifts.
Importantly, the senior operators had the authority to
evaluate the workload, assign overtime, send employ-
ees home for lack of work, and call operators and
maintenance employees into work, all without a man-
ager’s approval. Although McCullough’s lead operators
are the highest ranking employees present during
nights and weekends, they do not possess independent
authority to assign or direct the operators in their
work.5 Chief Operator Hawthorne is on call 24 hours
a day, 7 days a week. Although lead operators resolve
routine problems based on their experience, they will
call Hawthorne, or Plant Manager Maines, at home if
any other than a routine problem arises. If a lead oper-
ator believes an employee is needed to work overtime,
as, for example, when an operator fails to report for
work, he calls Hawthorne, who decides which oper-
ator, if any, will be held over.
The mere fact that the lead operators are at times the
highest authority at the plant does not itself establish
supervisory authority.6 What is determinative is the au-
thority that the lead operators possess, and it is the au-
thority over employees, not the control of equipment,
that is relevant. We also agree with the Regional Di-
rector’s determination that the record fails to establish
that the lead operators’ role in evaluations or discipline
requires the exercise of independent judgment. The
record fails to show that their limited role has an effect
on the Respondent’s disciplinary system or that the
Respondent relies on their reports instead of inde-
pendent investigations.
In conclusion, we agree with the Regional Director
that McCullough’s lead operators exercise little mean-
ingful control over the operators’ performance. Ac-
cordingly, we find that the lead operators are not su-
pervisors and shall reaffirm our original Decision and
Order in this case. Other cases cited by the Respondent
in its statement on remand are factually distinguish-
able. In Big Rivers Electric Corp., 266 NLRB 380
(1983), system supervisors at an electric utility person-
ally directed employees in complex switching oper-
ations during routine maintenance and emergencies. In
Southern Indiana Gas Co. v. NLRB, 657 F.2d 878 (7th
Cir. 1981), the court found that system supervisors at
an electric utility gave field employees step-by-step in-
structions during emergencies and directed them to re-
main where they were or to move to a different loca-
tion. In Maine Yankee Atomic Power Co. v. NLRB, 624
F.2d 347 (1st Cir. 1980), the court found that shift op-
erating supervisors had responsibilities to direct em-
ployees in response to nonroutine events, responsibil-
ities that went beyond supervising the use of sophisti-
cated equipment. In Colorflo Decorator Products, 228
NLRB 408 (1977), the leadwomen had independent
discretion to reassign work and transfer employees to
other plant areas. In each case there was evidence that
the leadmen exercised independent judgment in direct-
ing the work of employees.
ORDER
The National Labor Relations Board reaffirms the
Decision and Order reported at 297 NLRB 546 (1990),
and orders that the Respondent, McCullough Environ-
mental Services, Inc., Jackson, Mississippi, its officers,
agents, successors, and assigns, shall take the action
set forth in that Order.
APPENDIX
5. The Petitioner seeks to represent a unit consisting of all
operators and shift operators, mechanics and mechanics/-
helpers, laborers and utility employees, laboratory techni-
cians, field inspectors, electricians, instrument men, lead op-
erators, and lead relief operators employed by the Employer
and working at the Jackson, Mississippi waste water treat-
ment plant, herein called the Savannah Street facility; exclud-
ing office clerical employees, professional employees,
guards, and supervisors as defined in the Act. The parties are
in agreement with respect to the appropriateness of the unit,
except that the Employer, contrary to the Petitioner would
exclude the lead operators contending that they are super-
visors within the meaning of Section 2(11). There are twen-
ty-four (24) employees in the proposed unit, excluding the
lead operators. There is no history of collective-bargaining
concerning any of the employees involved herein.
The Employer, a Texas corporation, is engaged in the
business of operating, maintaining, and managing water and
sewerage treatment plants for various municipalities through-
out the United States. The Employer has a contract with the
City of Jackson, Mississippi for the operation and mainte-
nance of Jackson’s wastewater treatment facilities. The Em-
ployer’s operations involve seven (7) treatment plants and
eighty-two (82) pumping or lift stations. These pumping sta-
tions transfer sewerage from homes and businesses through-
out Hinds, Rankin, and Madison Counties to the appropriate
treatment facilities. Once the sewerage is at the appropriate
treatment facility, pollutants are biologically removed to meet
Environmental Protection Agency requirements before the
sewerage is discharged into receiving streams.
567MCCULLOUGH ENVIRONMENTAL SERVICES
3 Based on the parties stipulation and the record as a whole, I find
that Andrew Hawthorne is a supervisor within the meaning of Sec-
tion 2(11) of the Act. Accordingly, he is excluded from the unit
found appropriate herein.
The Savannah Street facility, the only facility involved in
this proceeding, is the central wastewater treatment plant in
the Jackson, Mississippi area. The facility occupies approxi-
mately 330 acres. The facility’s treats between 46 million
gallons and 120 million gallons per day. Thus far in 1988,
the Savannah Street facility jobsite has treated an average of
50 million gallons per day.
The Savannah Street facility is divided into five depart-
ments: Laboratory, Maintenance, Operations, Lift Stations,
and Field. Robert Maines, the Employer’s Project Manager
is responsible for the day-to-day operation of the Employer’s
business. Reporting to Maines are five (5) supervisors, each
of whom are assigned to one of the departments named
above. The Operations Department is the only department at
issue in this proceeding.
The Operations Department is responsible for the trans-
formation of raw sewerage into an effluent that can be dis-
charged safely into receiving streams; and for the proper col-
lection and disposition of the waste products and sludge in
accordance with Environmental Protection Agency require-
ments. The Operations Department is headed by Chief Oper-
ator Andrew Hawthorne who reports directly to Maines.3
Hawthorne directs the activities of Bernard Bennett, Donnie
Dix, Horace Henderson and Robert Polk, the four (4) lead
operators at issue herein. Also employed in this department
are four (4) lead relief operators and four (4) operators.
The Savannah Street facility operates twenty-four (24)
hours a day, three hundred sixty-five (365) days a year.
Hawthorne works the 7:00 a.m. to 4:00 p.m. shift, Monday
through Friday. The lead, lead relief, and shift operators
work on a rotating basis Monday through Friday rotating
weekly through the following shifts: 8:00 a.m. to 4:00 p.m.;
4:00 p.m. to 12:00 midnight; 12:00 midnight to 8 00 a.m. On
Saturdays and Sundays the lead operator, lead relief operator,
and shift operator work 8:00 a.m. to 8:00 p.m. on 12-hour
shifts. The operators go through this rotation every twenty-
eight (28) days, working all three shifts. Each shift consists
of a crew of a lead operator, a lead relief operator, and a
shift operator. Typically, at the start of a shift, the lead oper-
ator coming off duty or the chief operator will meet with the
lead operator going on duty. During these meetings, the on
coming lead operator is briefed about the events of the day
and receives any special instructions and directives from the
chief operator. Subsequently, the lead operator on the crew
relays this information to the lead relief and shift operator on
his crew, assigns them for the shift to either the raw sewer-
age station or to the return sewerage and chlorination station
and prepares a log reflecting the assignments made.
During a given shift, the operators work out of separate
stations. The lead operator works out of the lead operator’s
office which is located in the main administrative head-
quarters building between the chief operator’s office and the
project manager’s office. The lead relief and shift operators
work at desks that are located in the work area to which they
are assigned for the shift, either the raw sewerage station or
the return sewerage and chlorination station. All three opera-
tors on a given shift monitor equipment and gauges, com-
plete checklists, follow directives with regard to the flow of
sewerage in the plant, and perform minor maintenance of the
facility. The checklists at each station map out the duties to
be performed by each operator. Every two hours during the
shift, the lead operator checks with the other operators on the
shift. At the end of each shift, the checklists are completed
by the lead relief and shift operators and turned in to the lead
operator to verify that the lead relief and shift operators have
checked the duties on the checklists. After the lead operator
reviews the checklists, he places them in the chief operator’s
box, for his (chief operator’s) review. From the checklists,
the lead operator prepares reports and documents shift activi-
ties.
During the 4:00 p.m. to 12:00 midnight and 12:00 mid-
night to 8:00 8:00 a.m. shifts, there are only three employees
present at the plant per shift: the lead operator, the lead relief
operator, and the shift operator. The lead operators, who are
generally more experienced than the lead relief and shift op-
erators, are the highest ranking officials on duty and are re-
sponsible for the operation of the plant during these 8 hour
shifts. If the lead operator is absent or unavailable for work,
the lead relief operator will serve as the lead operator for the
shift. The lead operator prepares logs on everything, that
happens on these shifts. Any questions or problems that arise
are addressed to the lead operators. If the problems are of
a routine nature, the lead operator, as well as the lead relief
and shift operators, may resolve it. In the event of an ex-
traordinary problem, the lead operator must contact Chief
Operator Hawthorne, who is on call twenty-four (24) hours
a day, or Plant Manager Maines. It is not unusual for the
lead operators to telephone Hawthorne or Maines at their re-
spective homes. If an employee becomes ill, the lead oper-
ator may allow the operator to go home or he may contact
the chief operator, who will make the final decision as to
whether the employee can leave.
It is undisputed that the lead operator neither participate in
the hiring process nor do they make recommendations for
promotions, pay raises, or transfer employees from one shift
to another. The record indicates that Plant Manager Maines
is the only one with the authority to hire and fire. The chief
operator has the authority to recommend employees for hire,
fire, discharge, promotions, and pay raises. The chief oper-
ator also can transfer employees from one shift to another.
The lead operators neither attend supervisory meetings, ap-
prove requests for vacation time, handle employee griev-
ances, or approve employees requests for time off. If an op-
erator is required to work overtime, the lead operator must
contact the chief operator, who names the operator to be
‘‘held-over’’ and approves the overtime.
Lead operators have issued letters of reprimand to employ-
ees. About one year ago, lead operator Polk issued a letter
of reprimand to an employee who was subsequently fired by
Plant Manager Maines. The record does not indicate whether
Polk recommended that the employee be fired or whether
that decision was predicated on Polk’s recommendation or on
the independent determination by a higher authority. On a
separate occasion, at Maines’ request, lead operator Bennett
issued a written reprimand to an employee with whom Ben-
nett had a fight. The record establishes that Maines fired the
employee although the reprimand did not contain a rec-
ommendation of action from Bennett. Also, lead operators
have prepared evaluation reports on new employees at the di-
568 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
rection of the chief operator. However, the record is insuffi-
cient to establish whether these recommendations or evalua-
tions were relied upon or whether higher management inde-
pendently investigated and made independent decisions con-
cerning new employees.
The chief operator is the only employee in the Operations
Department who is salaried. All of her operators, including
lead operators, receive hourly wages. The range of pay at the
Savannah Street facility is wide. On the average, lead opera-
tors receives 97 cents more per hour than lead relief opera-
tors and $3.00 per hour more than shift operators. The record
establishes that an operator’s pay is not always commensu-
rate with an employee’s progression from shift operator to
relief operator to lead operator. Although shift operator is the
lowest classification the Operations Department, one shift op-
erator makes $10.32 per hour while lead operator Bennett
earns $10.73 per hour. There is no difference in the method
of pay, overtime compensation, overtime compensation and
benefits between the lead operators and other operator classi-
fications. Additionally, the lead persons in all three operator
positions wear the same uniform, which consists of blue
pants, a blue shirt, and a cap. The chief operator wears a
white shirt, blue pants and a cap. The record indicates that
supervisors in other departments also wear blue shirts, blue
pants, and a cap, similar to the lead operator .
It is well established that the possession of any one of the
supervisory indicia is sufficient to confer supervisory status
on an employee, provided that authority is exercised with
independent judgment on behalf of management and not in
a routine manner. Feralloy West Corporation, 277 NLRB
1083 (1985); George C. Foss Company, 270 NLRB 232
(1984). Some kinship to management, some empathetic rela-
tionship between employer and employee must exist before
the latter becomes a supervisor for the former. Chicago Me-
tallic Corporation, 273 NLRB 1677 (1985); Advanced Min-
ing Group, 260 NLRB 486 (1982). In the instant case, while
the evidence shows that the lead operators have authority to
assign employees to work stations, evaluate newly hired em-
ployees, and play a role in the disciplinary process, based on
the record as a whole, I conclude that the lead operators do
not possess any authority to act other than in a routine man-
ner and only as a conduit between employees and manage-
ment, and therefore they are not supervisors within the mean-
ing of the Act. Chicago Metallic Corporation, supra at 1690;
Hydro Conduit Corporation, 254 NLRB 433 (1981).
In this regard, the record is clear that the lead operators
have no authority to hire, transfer, suspend, layoff, recall,
promote, discharge, or reward any employees, or to adjust
employee grievances. While the lead operators assign the
lead relief operator and shift operator to their work stations
and arrange changes in the job assignments, the record indi-
cates that the shift and lead relief operators perform the same
or similar jobs and rotate jobs daily. The work to be per-
formed at these assigned stations is established by checklists
or from management directives which indicate what has to
be accomplished. There is no evidence that the lead operators
have authority to vary the information on the checklists or
the directives of management. They merely assign equally
skilled employees to the work stations to perform the same
or similar work. Such assignments require little or no skill
or judgment. All things considered, the lead operators role in
assigning operators is a routine one, more clerical in nature.
Hydro Conduit Corportion, supra at 436; Rich’s Precision
Foundry, Inc., 262 NLRB 678 (1982).
Moreover, with respect to the direction of other employ-
ees’ performance of duties, there is no showing that employ-
ees require close supervision in performing the duties to
which they are assigned. Since the work is dictated by the
checklists and directives issued by the chief operator or plant
manager, the record fails to establish any exercise of inde-
pendent judgment. John Cuneo of Oklahoma, Inc., 238
NLRB 1438 (1978); Medicine Bow Coal Company, 217
NLRB 931 (1975). Additionally, the fact that the employees
go to the lead operators whenever they have problems or
questions regarding their work assignments does not vitiate
this conclusion. Thus, the lead operators are more experi-
enced employees, and it is only natural that other employees
would seek their advice. However, their doing so does not
confer supervisory status on the lead operators. This appears
to be merely a situation whereby lesser skilled employees
seek advice or instruction from more experienced and knowl-
edgeable employees. Chicago Metallic Corporation, supra at
1692.
Implicit in the Employer’s assertion that the lead operators
are supervisors is that they are responsible for seeing that the
work is completed properly. The record indicates that the
lead operators check on the operators every two hours and
review the completed checklists at the end of the respective
shifts. However, this responsibility is not, in and of itself,
sufficient to confer supervisory status. Hydro Conduit Cor-
poration, supra at 438; Loffland Brothers Company, 243
NLRB 74 (1979); Chicago Metallic Corporation, supra at
1692. There is no indication in the record that the lead oper-
ators’ resolution of any problem concerning this responsi-
bility requires the exercise of independent judgment char-
acteristic of statutory supervisory status. There is no indica-
tion that the lead operators actions in resolving such routine
problems represent anything more than an exercise of work
judgment rather than that of delegated authority. Chicago
Metallic Corporation, supra at 1692; Hydro Conduit Cor-
poration, supra at 438, 439. The record indicates that, if the
lead operators encounter any problems which they cannot re-
solve in a routine manner, they are obligated to report them
to Chief Operator Hawthorne or Plant Manager Maines for
resolution. Even if the lead operators have the authority to
correct the work of employees, there is no evidence that they
can reprimand or otherwise discipline them to an extent
which might significantly affect the employees’ job status or
work to their detriment. Thus, the lead operators exercise lit-
tle meaningful control over their co-worker’s performance.
Chicago Metallic Corporation, supra at 1692; Ahrens Air-
craft, Inc., 259 NLRB 839 (1981).
The evidence shows that, on two occasions, the lead oper-
ators have issued written reprimands to employees. One rep-
rimand was issued because an employee was involved in a
fight with a lead operator and was issued only at the request
of Plant Manager Maines. No recommended cause of action
was placed on this written reprimand. The record does not
indicate the exact reason the second reprimand was issued.
The record fails to establish the effects of these reprimands
within the Employer’s disciplinary system or whether the
discipline administered with respect to these to incidents was
based on the Employer’s reliance on the reprimands or on an
independent determination of the matter by admitted super-
569MCCULLOUGH ENVIRONMENTAL SERVICES
visors. Consequently, the record fails to establish that the
lead operators’ role in the disciplinary process required the
exercise of independent judgment. Injected Rubber Products
Corp., 258 NLRB 687 (1981); Hydro Conduit Corporation,
supra at 437; Chicago Metallic Corporation, supra at 1693;
Commercial Movers, Inc., 240 NLRB 288 (1979).
While it is the lead operator who determines when an em-
ployee is needed to work overtime, it is Chief Operator Haw-
thorne who makes the determination as to whether overtime
is to be performed and which employees will work overtime.
There is no basis in the record for concluding that the lead
operators exercise independent judgment in selecting or in
effectively recommending the selection of employees who
are to be assigned to perform overtime work. The Employer
asserts that the lead operators have authority to grant em-
ployee requests to leave work early. However, the record in-
dicates that the lead operator normally allow a sick employee
to leave early after consulting Chief Operator Hawthorne.
Accordingly, the lead operators authority in this regard, if
any, is not supervisory.
Finally, it was noted that at least one shift operator re-
ceives more per hour than a lead operator; that the lead oper-
ator, the lead relief operator, and the shift operator are paid
on an hourly basis, receive the same benefits, punch a time
clock; and there is no record evidence that the lead operators
ever recommended changes in the methods or procedures
and/or cost reduction possibilities or that they had any input
in the planning and controlling of the Employer’s Oper-
ations’ Department. Chicago Metallic Corporation, supra at
1690.
Based on the foregoing and the record as a whole, I find
that the lead operators are not supervisors as defined in the
Act, and should therefore be included in the appropriate unit.
I find that the following employees of the Employer con-
stitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act:
All operators and shift operators, mechanics and
mechanics/helpers, laborers and utility employees, lab-
oratory technicians, field inspectors, electricians, instru-
ment men, lead operators and lead relief operators em-
ployed by the Employer and working at the Jackson,
Mississippi wastewater treatment plant; excluding office
clerical personnel, and guards, professional employees,
and supervisors as defined in the Act.