United States Court of Appeals,

Fifth Circuit.

No. 91–4533.

NATIONAL LABOR RELATIONS BOARD, Petitioner–Cross–Respondent,

v.

DICKERSON–CHAPMAN, INC., Respondent–Cross–Petitioner.

July 1, 1992.

Petition for Review and Cross–Petition for Enforcement of an Order of the National Labor Relations

Board.

Before WILLIAMS, JOLLY, and HIGGINBOTHAM, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

The National Labor Relations Boar d ("NLRB") petitions us to enforce its order directing

Dickerson–Chapman, Inc. ("DCI") to bargain with the Union. DCI argues that it is under no duty

to bargain. First, DCI contends that the Board's order is unenforceable because, in leaving the status

of seven foremen unresolved, the Board failed to make a determination of an appropriate bargaining

unit. DCI further argues that it has no duty to bargain for the additional reason that the certified unit

is inappropriate because it includes fifteen foremen and crew leaders who are supervisors.

We conclude that the Board did satisfy its duty to make a determination of an appropri ate

bargaining unit. Further, the Board did not abuse its discretion in failing to determine the status of

the seven foremen before conducting the election or certifying the unit. Finally, there is substantial

evidence in the record supporting the Board's determination that the fifteen foremen and crew leaders

were not supervisors. Therefore, we grant the Board's petition for enforcement. We hold, however,

that because the Board failed to determine that the seven foremen were not supervisors, they are, on

this record, not included in the unit, and thus are not included in this enforcement order.

I

T h e National Labor Relations Board seeks enforcement of its order against1 The Regional Director found the following employees to constitute an appropriate bargaining

unit:

All full-time operational service personnel, including operators, laborers, drivers,

operator/drivers, crew leaders, maintenance employees, driver/foremen,

foremen/trainees, service wire foremen, pole foremen, conduit foremen and cable

foremen employed by Jackson, Mississippi facility; excluding office clerical

personnel, professional employees and supervisors as defined by the Act.

2 These seven were conduit foreman Lee Earl Moore and cable foremen William Burkes, Isaiah

MacDonald, Linden Hill, Clifford Stafford, Jewel Owens, and James Spiller.

3 The fifteen employees were service wire foremen J.D. Freeman, Robert Taylor, Harvey Miner

and Odess Jones; pole foremen James Hicks and Kenneth Easterling; conduit foreman Vernon

Wilson; cable foremen Lee Field Johnson, Ben Alford, Tommy Obie, and Wycliff McPherson;

driver/foreman James Wade; and maintenance technician crew leaders Earl Howard, Elijah

Pitchford, and Joe Smith. Dickerson–Chapman, Inc. to bargain with the Union. DCI, who is in the business of digging ditches

for South Central Bell Telephone Company's lines, junction boxes, and cable conduits, employs

construction and maintenance field crews which, including the foremen and crew leaders, the Union

sought to represent. DCI argued that an appropriate unit must exclude crew foremen and crew

leaders because they are supervisors within the meaning of 29 U.S.C. § 152(11). After a hearing, the

Regional Director found that an appropriate bar gaining unit consisted of certain classifications of

employees, excluding any employee in that classification who is a supervisor. 1 The Regional Director

found that DCI's four administrati ve o fficers, J.M. Stewart, Bryan Wampler, Howard Berry, and

Robert Ainsworth, were supervisors. He also found that service wire foreman Homer Parker, cable

foreman Pete Hayman, and conduit foreman Alva Abel were supervisors. The Regional Director

found that the remain ing workers in the classifications were not supervisors and were therefore

eligible to be in the bargaining unit. The Board amended the Regional Director's decision, finding that

there was a substantial question as to the status of s even of the forem en. 2 It found the remaining

fifteen foremen and crew leaders at issue to be employees. 3

The Board allowed the seven foremen to vote subject to challenge by DCI following the vote.

The Union won the representation election by twenty-nine votes—the vote was 38 to 9. DCI filed

objections to the election on the grounds that the Board included supervisors in the voting unit. The4 DCI also filed a unit clarification petition, asking the NLRB to revisit the supervisory status of

the foremen and crew leaders. The Regional Director, affirmed by the NLRB, denied the petition

on the grounds that the supervisory status of those workers would be resolved in the unfair labor

practice hearings. Regional Director, affirmed by the Board, overruled the objections, holding that supervisory issues

could be resolved only in a challenge proceeding, which was unnecessary becaus e t he challenged

ballots were insufficient to affect the Union's majority. On May 9, 1990, the NLRB certified the

Union as the bargaining representative of an employee unit including foremen and crew leaders who

were not supervisors.

The Union demanded negotiations and DCI refused. The Union filed an unfair labor practice

charge alleging that DCI had unlawfully refused to bargain with the Union. DCI responded that the

underlying certification was invalid because the unit included foremen and crew leaders who were

supervisors. 4

General Counsel moved for summary judgment and the Board granted that motion. It found

that DCI was raising issues that could have been presented at the representation hearing and was not

offering any newly discovered eviden ce or evidence that was previously undiscoverable. Accordingly,

the Board issued a cease and desist order requiring DCI to bargain with the certified unit. The Board

now petitions us to enforce its order.

II

As we have stated, DCI 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 divided 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 wo rk day, the record establishes 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 the various job sites scattered across the area. For the most part, the laborers

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

supervision. 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 fo remen and crew leaders with seniority receive more

vacation.

III

DCI argue s t hat t he NLRB's decision is not supported by the record because the evidence

establishes that several of the foremen and crew leaders included in the b argaining unit exercised

supervisory authority. Furthermore, DCI contends that, in any event, all of the foremen and crew

leaders possessed the same authority and that, consequently, all are supervisors. Finally, DCI argues

that Board's order cannot be enforced because the Board failed to determine an appropri ate

bargaining unit because it left the status of seven foremen dangling.

On the other hand, the Board argues that it act ed wit hin its discretion in determining an

appropriate bargaining unit without resolving the status of the seven challenged voters, because their

vo tes did not affect the outcome of the election. The Board further argues that it is entit led t o

enforcement of its bargaining order because substantial evidence supports its determination that the

foremen and crew leaders included in the unit were not supervisors.

IV

First, we will address DCI's argument that the Board's order cannot be enforced because the5 Section 9(b) provides that the Board shall decide in each case the appropriate collective

bargaining unit. 29 U.S.C. § 159(b). Board failed to determine an appropriate bargaining un it as required by Section 9(b) of the Act. 5

"The Board does have broad discretion under Section 9(b) when making a unit determination. That

section's language, however, expressly requires that the Board make a determination "in each case.'

" N LRB v. Cardox Div. Of Chemetron Corp., 699 F.2d 148, 153 (3rd Cir.1983). DCI argues that

the Board failed to satisfy its statutory duty to determine an appropriate bargaining unit when it failed

to determine the eligibilit

y of seven contested unit members before conducting the election, requiring

the seven to vote a challenged ballot instead.

In making its argument, DCI relies on Cardox. In C ardox, because the company voluntarily

bargained with the unit, the Board did not make a determination of an appropriate bargaining unit.

The court held that the Board failed to satisfy its statutory duty. C ardox, however, is distinguishable

from DCI's case. In C

ardox, the Board made no determination whatsoever. Here, t he Regional

Director determined that the bargaining unit included certain classifications of employees, including

foremen and crew leaders. The Regional Director in his determination of the unit, however, excepted

three foremen from the unit because they exercised supervisory authority. Upon its review, the Board

determined that there was a substantial issue as to the supervisory status of seven additional foremen

who the Regional Director had included. Nevertheless, it affirmed the Regional Director's

determination of the appropriate bar gaining unit but questioned the inclusion of seven named

individuals, and concluded that those seven would vote in the election subject to challenge. Thus,

the Board satisfied its statutory duty to determine an appropriate bargaining unit. It simply postponed

a decision concerning whether named individuals were within the described unit—a unit which

included foremen and crew leaders, but which excluded supervisors.

Furthermore, the Board did not abuse its discretion in allowing the seven employees to vote

s ubject to challenge. The challenge procedure, a longstanding Board practice, N LRB v. Doct ors'Hospital of Modesto, Inc., 489 F.2d 772, 776 (9th Cir.1973), "enables the Boar d to conduct an

immediate election where

... it is undecided about t he eligibility of a relatively small number of

individuals whose votes may not affect the election." Medical Center at Bow ling Green v. NLRB,

712 F.2d 1091, 1 093 (6th Cir.1983). S ee also NLRB v. Klingler Elec. Corp., 656 F.2d 76 (5th

Cir.1981) (court enforced order in case in which eight workers, whose supervisory status was at

issue, were allowed to vote subject to challenge). In the instant case, the seven workers' votes did

not affect the outcome of the election; the union won by twenty-nine votes. Therefore, the Board

did not abuse its discretion in allowing the workers to vote subject to challenge.

V

Next, we will address the status of the fifteen foremen and supervisors who were included in

the bargaining unit. The Board argues that there is substantial evidence in the record which supports

its determination that the fifteen employees included in the unit were not supervisors. DCI contends,

however, that the evidence supports only the conclusion that all of the foremen and crew leaders were

supervisors.

Section 152(11) defines a supervisor as:

any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay

off, recall, prom ote, discharge, assign, reward, or discipline other employees, or responsibility

to direct them, or to adjust their grievances, or effectively to recommend such ac t io n, if in

connection with the foregoing the ex ercise o f such authority is not of a merely routine or

clerical nature, but requires the use of independent judgment.

28 U.S.C. § 152(11). "It is settled that anyone who has the authority to use independent judgment

in the execution or recommendation of any of the functions listed ... is a supervisor." M onotech of

Mississippi v. NLRB, 876 F.2d 514, 517 (5th Cir.1989).

This court, however, does not review the NLRB's determination of a worker's status de novo.

Instead, we "determine whether the NLRB's conclusions are supported by substantial evidence on therecord considered as a whole." GAF Corp. v. NLRB, 524 F.2d 492, 495 (5th Cir.1975).

In general, "a reviewing court should pay substantial deference to the Board's "special

function of applying the general provisions of the Act to the complexities of industrial life.'

" In assessing the Board's application of a statutory provision such as § 2(11), part icular

deference must be given to the Board's findings because of the " "infinit e and subtle'

gradations of authority which determine who, as a practical matter, falls within the statutory

definition of "supervisor.' " As a consequence, "this circuit has repeatedly declined merely

to second-guess the Board concerning an employee's status under section 2(11) of the Act."

Monotech, 876 F.2d at 514 (internal citations omitted).

DCI first argues that because the Board found that three of the individuals in the bargaining

unit classification of foreman were supervisors, all in the classification of foreman must be treated as

supervisors because all generally occupy the same hierarchial position in the organization. DCI has

not pers uaded us with any authority that this postulation represents the law on the subject. An

employee's specifi c jo b t itle and station in the organization are not automatically controlling. The

employee's actual authority and responsibility determine whether he is a supervisor. W alla W alla

Union Bulletin, Inc. v. NLRB, 631 F.2d 609, 612 (9th Cir.1980). We agree that ideally, and perhaps

even t ypically, the bargaining unit includes all employees in a certain classification, e.g., foreman or

crew leader. In this case, however, t he Bo ard found that some employees occupying these

classifications have supervisory authority based on their seniority and experience. Thus, we will look

to the record to determine whether the Board's determination that the fifteen foremen at issue were

employees—and not supervisors—is supported by substantial evidence in the record.

A

Service Wire Foremen

The Board found that service wire foremen J.D. Freeman, Robert Taylor, Harvey Miner, and

Odess Jones were not supervisors. Homer Parker, however, was found to be a supervisor. The

Board concluded that there was no evidence that Freeman, Taylor, Miner, or Jones had the authority

to hir e, fire, discipline, or promote employees. The service wire crew digs a pathway from the6 At the representation hearing, DCI submitted several signed job descriptions indicating that

the foremen and crew leaders had supervisory authority. Wampler also testified that the foremen

and crew leaders whose status was at issue had the same supervisory authority as the foremen that

the parties stipulated was a supervisor. The Regional Director—affirmed by the

Board—discredited this evidence. The job descriptions were issued two days prior to the trial.

Furthermore, job descriptions do not necessarily vest employees with supervisory power. NLRB

v. Security Guard Service, Inc., 384 F.2d 143, 147 (5th Cir.1967). The Board does not have to

defer to testimony that employees had the authority listed in the job descriptions when several of

the employees testified that they had no such authority and there was no other evidence indicating

that they had such authority. Central Freight Lines, Inc. v. NLRB, 653 F.2d 1023, 1025 (5th

Cir.1981).

DCI further argues that because the hearing officer at the representation hearing

stated that no credibility determinations would be made, the Board is estopped from

discrediting this evidence. We think DCI misunderstands the hearing officer's statements. terminal to the customer's house in order t o bury t he service wire. The record indicates that wire

service foremen spend a majority of their time operating the trenching machine which digs a pit. The

foremen, also, spend about a quarter of thei r t ime digging in the pit with the laborers. The Board

further found that the laborers did not require close supervision and that these four foremen did not

use any indep endent judgment in directing their crews. The Board found that Parker, however,

effectively recommended that employees be transferred and discharged.

In NLRB v. McEver Engineering, Inc., 784 F.2d 634 (5th Cir.1986), we held that the Board's

determination that a working foreman (or leadman) was not a supervisor was supported by substantial

evidence. There, the working foreman was paid by the hour and spent a majority o f his time

performing manual work alongside the crew members. He assigned duties to his crew members, but

the Board found this to be a routine matter not invo lving independent judgment. S ee also Highland

Superstores, Inc. v. NLRB, 927 F.2d 918 (6th Cir.1991) (court held th at there was substanti al

evidence in the record to support the Board's determination that six "leadme n," who allocated

manpower among various jobs, were not supervisors was supported by substantial evidence). There

is no evidence in the record that these four service wire foremen ever hired, fired, or transferred any

laborers. Nor is there any evidence to suggest that their supervision was anyt hing other than

perfunctory. Thus, we hold that substantial evidence supports the Board's determination that these

four service wire foremen were not supervisors. 6At one point, the hearing officer refused to exclude two employee witnesses, who were

testifying on behalf of the Union, from the courtroom. The two witnesses were involved

in discharge cases against DCI and the hearing officer stated that any credibility

determinations made from the transcript would not be binding in those discharge cases.

Thus, the hearing officer cannot be interpreted to mean that no credibility determinations

would be made in the representation case.

Later, the hearing officer repeated that no credibility determinations would be

made. DCI was attempting to introduce testimony of Alva Abel, a stipulated supervisor,

in order to show that other foremen had the same supervisory authority. The Hearing

Officer stated that no credibility determinations would be made regarding Abel's testimony

as opposed to Union's witnesses' testimony. Apparently, the hearing officer made this

statement because it was already stipulated that Abel was a supervisor and therefore there

was no need to make credibility determinations. The hearing officer then stated that he

would allow Abel's testimony to the extent that it regarded other foremen's authority.

Clearly, the hearing officer did not mean that no credibility determinations would be made

based on the transcript from the representation hearing. He only meant that in those two

particular circumstances, no credibility determinations would be made or that they would

not be binding on the discharge cases. Therefore, the Board is not estopped from making

credibility determinations relating to job descriptions. B

Pole Foremen

The Board found that pole foremen James Hicks and Kenne t h Easterling were not

supervisors. There is no evidence that either foreman had authority to fire or hire employees. The

pole crews are charged with the responsibility of erecting the utility poles. The pole foremen usually

operate an auger most of the day while the laborer works on the ground. There is evidence that their

supervision was routine and perfunctory; Easterling testified t hat after a few days on the job, a

laborer knows what to do and that supervision after that point is minimal. There was evidence that

Easterling effectively recommended that two laborers be transferred and that one laborer receive a

pay raise. The Board found that Easterling's limited exercise of authority arose from his position as

a skilled laborer rather than a supervisor. In N LRB v. Orr Iron, Inc., 508 F.2d 1305 (7th Cir.1975),

t he co urt held that despite the fact that a night foreman disciplined two employees, he was no t a

supervisor. "[T]hese were incidental and extraordinary exceptions to [the foreman's] regular practice,

and when looked against a total background do not in any way show that [he] had the authority to

discipline or recommend the discipline of employees as o ne of his regular functions." I d. at 1307.

Thus, because all other evidence unequivocally supports their non-supervisory status, we hold thatthe Board's finding that Hicks and Easterling were not supervisors is su pported by substanti al

evidence in the record.

C

Conduit Foremen

The parties stipulated that conduit foreman Alva Abel was a supervisor. He is an experienced

salaried conduit foreman who was hired several years ago by DCI and is assigned to the most

complex jobs. The Board found that there was a substantial issue as to the status of conduit foreman

Lee Earl Moore. He is also a very skilled foreman, normally assigned to emergency or sporadic jobs.

The Board found that conduit foreman Vernon Wilson was not a supervisor. Conduit crews are

responsible for laying conduit through which telephone cables can be run. The conduit foremen spend

the great majority of their time operating a backhoe. The foremen spend the remainder of their time

doing manual labor with the laborers in their crew. The Board found t hat t he crews performed

roughly the same tasks every day and that the laborers did not require close supervision. There is no

evidence that Wilson had the authority to hire, fire, transfer, or discipline employees. Thus, we hold

that the Board's determination that Wilson was not a supervisor is supported by substantial evidence

in the record.

D

Cable Foremen

The Board found that cable foreman Pete Hayman was a supervisor. Hayman had worked

for DCI for a long period and was very experienc ed. There was testimony that he had effectively

recommended that employees be hired and fired. The Board further found that there was a substantial

issue as to the status of cable foremen William Burkes, Isaiah MacDonald, Linden Hill, Clifford

Stafford, Jewel Owens, and James Spiller. The Board found that cable foremen Lee Field Johnson,

Wycliff McPherson, Ben Alford, and Tommy Obie were not supervisors. The Board found that there

was no evidence supporting the conclusion that these foremen possessed or exercised any supervisoryauthority warranting their classification as supervisors. Cable crews are assigned to bury telephone

cable underground. The cable foremen operate backhoes and trenchers but when no machinery is

needed, they assist the laborers with manual digging. The Board again found that the work was

repetitious, that the foremen did not really direct the crew members, and that close supervision was

unnecessary. Wampler testified that Lee Field Johnson had an employee fired because the employee

physically assaulted Johnson and failed to carry out his duties. Johnson, however, testified that he

did not recommend that the employee be fired. Johnson stated that he tol d Wam pl er what had

happened and that Wa mpler fired the employee. Johnson also testified that he did not have the

authority to hire, fire, transfer, or discipline employees. Thus, we hold that the Board's determination

that Johnson, McPherson, Alford, and Obie were not supervisors is supported by substantial evidence

in the record.

E

Maintenance Technician Crew Leaders

The Board found that maintenance technician crew leaders Earl Howard, Elijah Pitchford,

and Joe Smith were not supervisors. Maintenance technician crews, among other tasks, dig up

damaged cables and replace them. The foremen spend most of their time operating machinery but

do perform some manual labor with the crew members. Again, the Board found that the laborers did

not require close supervision, that most tasks are performed daily, and that there w as no evidence

supporting the conclusion that the crew leaders had the authority to hire, fire, transfer, or discipline

emplo yees. We hold that there is substantial evidence in the record supporting the Board's

determination that these foremen were not supervisors.

F

Driver/Foreman

The Board found that driver/foreman James Wade was not a supervisor. Wade's normal job

is to drive a truck. He substitutes as a foreman or crew leader about ten times a month. Wampler7 Usually, the question of whether these seven are eligible for the bargaining unit should be

resolved by the Board through the Board's unit clarification procedure. Medical Center, 712 F.2d

at 1093. DCI requested a unit clarification proceeding, but the Regional Director and the Board

denied the request on the grounds that the unfair labor practice proceedings would probably

determine the supervisory status of the twenty-two foremen and crew leaders. testified that at the time Wade was a full-t ime wire service foreman, he effectively recommended that

an employee be fired. The Board, ho wever, found that there is no evidence that Wade had

supervisory authority after he became a driver who only occasionally substituted as a foreman. We

hold that there is substantial evidence in the record supporting the Board's determination that Wade

was not a supervisor.

We therefore hold that there was substantial evidence supporting the Board's determination

that the fifteen foremen and crew leaders were not supervisors. Thus, these employees were properly

included in the bargaining unit and DCI must bargain with the Union ove r t he t erms of their

employment.

VI

In conclusion, we hold that the Board did determine an appropriate bargaining unit. The

Board did not abuse its discretion by postponing its decision regarding the individual status of seven

named foremen and allowing them to vote subject to chall enge. We further hol d the Board's

determination that t he fift een foremen and crew leaders were not supervisors is supported by

substantial evidence in the record. Therefore, these fifteen employees were properly included in the

bargaining unit. Because DCI unlawfully refused to bargain with an appropriate unit that was duly

certified, we grant enforcement of the Board's order. In doing so, however, we hold that the seven

unresolved foremen are no t included in the enforcement order because the Board did not make a

determination that they were not supervisors. 7 That decision is left to another day and to another

forum.

ENFORCEMENT GRANTED AS CLARIFIED.