United States Court of Appeals,

Fifth Circuit.

Nos. 92-4459, 92-4460.

NATIONAL LABOR RELATIONS BOARD, Petitioner,

v.

McCULLOUGH ENVIRONMENTAL SERVICES, INC., Respondent.

Nov. 2, 1993.

Application for Enforcement of an Order of the National Labor Relations Board.

Before REAVLEY, SMITH, and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

We review two decisions of the National Labor Relations Board ("NLRB"): In number 92-

4459, the NLRB petitions for enforcement of its order, 306 NLRB No. 71, whi ch found that

McCullough Environmental Services, Inc. ("McCullough") engaged in various unfair labor practices

in violation of the National Labor Relations Act, 29 U.S.C. §§ 151 et seq. (1988). In number 92-

4460, the NLRB petitions for enforcement of its order, 306 NLRB No. 107, which fo und t hat

McCullough violated the Act by refusing to bargain with the certif ied exclusive bargaining

representative of its employees. After reviewing the record, we enforce the order in part in number

92-4459 and decline to enforce the order in number 92-4460.

I

No. 92-4459

McCullough operates the Jackson, Mississippi wastewater treatment facilit y under a contract

with the city of Jackson. The International Brotherhood of Teamsters, Local 891, AFL-CIO ("the

union") began a campaign to organize employees at the Jackson facility in 1989. The union won a

representation election and became the exclusive bargaining representative for employe es at the

Jackson facilit y. Several months after winning the election, the union filed a complaint with the

NLRB, alleging that McCullough engaged in mult iple unfair labor practices. The NLRB, adopting

the majority of the conclusions of its ALJ, found that McCullough violated § 8(a)(1) of the Act by:(1) co erci

vely interrogating its employees concerning their union activities, (2) creating the impression

that the union activities of its employees were under sur veillance, (3) threatening employees who

supported the union with reduced work hours, more onerous working conditions, and other reprisals,

and (4) promulgating and enforcing an overly restrictive ban on union solicitation. The NLRB also

found that McCullough violated §§ 8(a)(1) and (3) by: (1) discriminatorily implementing a new work

rule regarding the signing of disciplinary warnings, and (2) reprimanding and discharging three

employees, Richard Harris, L.C. Spann, and Lonnie Collins, out of anti-union animus. The NLRB

finally found that McCullough violated §§ 8(a)(1), (3), and (4) by issuing retaliatory reprimands to

a fourth employee, James Varnado, because he supported the union and participated in the NLRB's

proceedings against McCullough.

The NLRB issued an order requiring McCullough to cease and desist from the unfair labor

practices. The order also required McCullough to offer reinstatement to three discharged employees

and reimburs e them for any losses they suffered. Additionally, the order directed McCullough to

rescind the reprimands issued to Harris, Collins, Spann, and Varnado, rescind the discriminatory rule

changes regarding solicitation and the signing of reprimands, and inform its employees of such.

A

In reviewing the NLRB's factual findings, we must determine whether they are supported by

substantial evidence on the record considered as a whole. N LRB v. Delta Gas, Inc., 840 F.2d 309,

311 (5th Cir.1988). We must consider t he totality of the evidence, including "that which fairly

detracts from the Board's decision." U niversal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct.

456, 464, 95 L.Ed. 456 (1951). While we may not reject the "Board's choice between two fairly

conflicting views [of the evidence]," Id. at 488-91, 71 S.Ct. at 465-66, we are "not left to the sheer

acceptance of the Board's conclusions." N LRB v. Mini-Togs, Inc., 980 F.2d 1027, 1032 (5th

Cir.1993). We will enforce the NLRB's order only if "we are able conscientiously to conclude that

the evidence supporting the Board's determination is substantial." Id.

When findings of fact rest upon credibility determinations, we defer to the NLRB's findings

and will overturn them only in rare circumstances. C entre Property Management v. NLRB, 807 F.2d1264, 1268 (5th Cir.1987). However, if a credibility determination is unreasonable, contradicts other

findings of fact, or is "based on an inadequat e reason, or no reason at all," we will not uphold it.

NLRB v. Moore Business Forms, Inc., 574 F.2d 835, 843 (5th Cir.1978); N LRB v. Laredo Packing

Co., 730 F.2d 405, 408 (5th Cir.1984). Where the NLRB fails to justify its credibility choices, we

are free to review the record and independently reach our own conclusions. N LRB v. Motorola, Inc.,

991 F.2d 278, 282 (5th Cir.1993).

1

The NLRB found that McCullough committed unfair labor practices under § 8(a)(1) of the

National Labor Relations Act. This section states t hat it shall be an unfair labor practice for an

employer "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed"

by § 7 of the Act. 29 U.S.C. § 158(a)(1) (1988). Section 7 provides:

Employees shall have the right to self-organization, to form, join, or assis t labor

organizations, to bargain collectively through representatives of their own choosing, and to

engage in other concerted activities for the purpose of collective bargaining or other mutual

ai d or protecti on....

29 U.S.C. § 157.

The NLRB concluded that McCullough supervisor Robert Buny ard i nterrogated two

employees, Tommy Wash and L.C. Spann, about their union activities, in violation of § 8(a)(1). In

addition, the NLRB found that Bunyard's remarks to Spann created the impression that McCullough

had engaged in the surveillance of employees' activities, a second and independent violation of §

8(a)(1). Questioning employees about union association or affiliation is unlawful under § 8(a)(1) only

if, considering the totality of the circumstances, "the interrogation tends to coerce employees in the

exercise of their Section 7 rights." N LRB v. Brookw ood Furniture, Div. of U.S. Indus., 701 F.2d 452,

460 (5th Cir.1983). If interrogation is coercive in nature, it makes no difference that employees are

not actually coerced. N

LRB v. Great Western Coca-Cola Bottling C o., 740 F.2d 398, 404 (5th

Cir.1984). We consider the following factors, first announced in B ourne v. NLRB, 332 F.2d 47, 48

(2d Cir.1964), in determining whether interrogation tends to be coercive:

1) the history of the employer's atti tude toward its empl oy ees; 2) the nature of the

information sought; 3) the rank of the questioner in the employer's hierarchy; 4) the place

and manner of the conversation; 5) the truthfulness of the employee's reply; 6) whether the1 McCullough correctly points out that the NLRB failed to explicitly apply the Bourne factors.

Once again, we "admonish the Board for refusing to comply with Fifth Circuit precedent by failing

to apply the Bourne factors." Cooper Tire & Rubber Co. v. NLRB, 957 F.2d 1245, 1256 (5th

Cir.) (citing cases), cert. denied, --- U.S. ----, 113 S.Ct. 492, 121 L.Ed.2d 430 (1992). Al though

the normal remedy for such an omission is to remand the case, the ALJ, and an extensive review

of the record, has supplied us with enough facts so that we may apply the requisite criteria. See

id.

2 Bunyard became a supervisor approximately one month before the representation election.

3 The ALJ credited the testimony of Wash and Spann over Bunyard because they demonstrated

good demeanor while Bunyard testified inconsistently and appeared evasive. While we disagree

with the ALJ's finding that Bunyard's testimony was inconsistent, see discussion infra part IV.B.1,

we cannot, on a cold record, say that the ALJ's determination as to demeanor was erroneous. employer had a valid purpose for obtaining the information sought about the union; 7)

whether a valid purpose, if existent, was communicated to the employee; and 8) whether the

employer assured the employee that no reprisals should be forthcoming should he or she

support the union.

Brookw ood, 701 F.2d at 460-61. However, "coercive interrogation may still be found to have

occurred even if all the above enumerated factors operate in the employer's favor." I d. at 461. Where

the NLRB's finding that an employer engaged in coercive interrogation is supported by substantial

evidence, we will not disturb it. Id. at 461. 1

Wash testified that about a month before the union election, he attended an employee meeting

conducted by Robert Maines, the plant manager. At this meeting, Maines informed the employees

that McCullough opposed the union. As Wash left the meeting, Bunyard yelled to him, "Hey, union

man. Hey, union man." At that time, Wash had not informed any supervisors that he supported the

union, and did not respond to Bunyard. Spann testified that he had several conversations wit h

Bunyard about the union. In a conversation occurring three weeks before the election, Bunyard told

Spann that he did not know if Spann "had anything to do with the union or not, but he was aware that

Richard Harris[, one of Spann's co-workers, previously] was employed by G.E., and they had a big

union over there, and he believed that Richard Harris was probably the big man." Bunyard, on the

other hand, testified that he never spoke to employees about the union after he became a supervisor. 2

The ALJ credited the testimony of Spann and Wash over that of Bunyard. Because the ALJ's

credibility determination is not unreasonable, we defer to it. 3 Centre Property, 807 F.2d at 1268.

Although Bunyard's remarks to Wash and Spann were not couched as questions, the NLRB4 See Brookw ood, 701 F.2d at 462 (noting that an employees's evasive answer or refusal to

answer a supervisor's questions about union activities "objectively indicates possible fear of

retaliation"). properly found that the remarks were calculated to elicit responses from Wash and Spann about their

union affiliat

ions or sentiments, thus constituting interrogation. S ee NLRB v. Laredo Coca Cola

Bottling Co., 613 F.2d 1338, 1342 (5th Cir.) (finding that invitations to employees to disclose their

union activities and sympathies constitute interrogation), cert. denied, 449 U.S. 889, 101 S.Ct. 246,

66 L.Ed.2d 1115 (1980). We must now determine whether the remarks were coercive.

Considering the Bourne factors enumerated above, we note that both Bunyard and Maines,

the plant manager, had expr essed their anti-union views to employees; Bunyard's remarks were

calculated to seek t he identity of those employees who favored the union and of union leaders;

Bunyard was Spann's immediate supervisor, although he was one of McCullough's newest and lowest

ranking supervisors; the Wash incident occurred immediately after a meeting at which Maines

expressed the company's anti-union sentiments, and the Spann conversation took place in Bunyard's

office with no other employees present; Wash did not reply to Bunyard's comments, and Spann either

disclaimed knowledge of union activities or did not reply in his conv ersat ions with Buny ard; 4

Bunyard had no valid purpose for seeking such informatio n about the uni on, or at l east di d not

communicate one to the employees; and Bunyard failed to assure Spann or Wash that no reprisals

would be forthcoming should they support the union. Furthermore, Bunyard's statement to Spann

that he believed Harris was the organizer of the union campaign created the impression that he was

engaged in the surveillance of the employees' union activity. This statement not only exacerbated the

coerciveness of Spann's interrogation but, as the NLRB properly found, constituted an independent

violation of § 8(a)(1). S ee Great Western, 740 F.2d at 405 (holding that a supervisor's statement to

employee that he knew employee's co-workers were union members created impression that company

was engaged in surveillance, exacerbated the coercive effect of the interrogation, and constituted an

independent violation of § 8(a)(1)). Accordingly, we conclude that the record as a whole supports

the NLRB's finding that McCullough engaged in coercive interrogation and surveillance, in violation

of § 8(a)(1).5 Eckels testified that he did not intend to threaten employees that working conditions would

become more onerous if the employees selected the union, and the ALJ determined that Eckels

testified truthfully. However, as the ALJ properly found, we examine what reasonable inferences

an employee could draw from the employer's statements, not the employer's intent. TRW-United,

637 F.2d at 418. 2

The NLRB found that McCullough threatened its employees with various economic reprisals

for supporting the union, including reduced work hours and more onerous working cond itions, i n

violation o f § 8(a)(1). "Section 8(a)(1) is violated if, under the totality of the circumstances, "the

employees could reasonably conclude that the employer is threatening economic reprisals if t hey

support the union.' " T

RW-United Greenfield

Div. v. NLRB, 637 F.2d 410, 418 (5th Cir.1981)

(quoting Hendr ix Mfg. Co. v. NLRB, 321 F.2d 100, 105 (5th Cir.1963)). Thus, "threats of plant

closure, job loss, and loss of promotion in the event of unionization are violative

... of the Act." I d.

An employer may express general views about unions or specific views about a particular union to

employees, however, if he makes no threats of reprisal for union activity. NLRB v. Gissel Packing

Co., 395 U.S. 575, 618, 89 S.Ct. 1918, 1942, 23 L.Ed.2d 547 (1969).

Substantial evidence supports the NLRB's findings that McCullough violated § 8(a)(1) by

threatening its employees with economic reprisals for t heir union activities. Spann testified that

Bunyard told him that if the union won the representation election, his work hours could be cut to

less than forty hours per week. Employee David Wells testified that supervisor William Eckels told

him that if the union won, "things were going to get a lot tougher around here

... [and] all privileges

would be cut out." 5 Supervisor Kelvin Peters told employee Chester Hicks that "McCullough would

look down on you and every other guy that went union" and berated Hicks for lying to him about the

extent of Hicks's involvement with t he union. Wash testified that prior to the election, supervisor

David Canizaro told him, "Y'all need to leave that union stuff alone," and after the election said, "I

told you that since this union stuff that there was going to be some changes.... I told you to leave that

union stuff alone." All these statements reasonably could be understood as threats of reprisal for the

union activities of the employees. S ee Brookw ood, 701 F.2d at 460; T RW-United, 637 F.2d at 419-

20.6 McCullough further argues that the reprimand letter misstated its policy regarding solicitation

in that solicitation is actually allowed during breaks, lunch hours, and after working hours. As the

NLRB points out, however, McCullough did not repudiate the policy stated in the letter or advise

its employees that the letter was inaccurate. Cf. NLRB v. Southw ire Co., 801 F.2d 1252, 1255

(11th Cir.1986) (stating that an unlawful ban on solicitation corrected shortly after imposition did

not amount to an unfair labor practice). McCullough contends that the ALJ should have credited the testimony of its supervisors,

rather than the testimony of the employees. The ALJ's credibility determinations are not "inherently

unreasonable or self-contradictory." N LRB v. National Fixtures, Inc., 574 F .2d 1305, 1306 (5th

Cir.1978). Crediting the employees' accounts of their conversations with McCullough's supervisors,

we find that substantial evidence supports the conclusion that McCullough threatened its employees

with economic reprisals for their union activities.

3

On July 10, one day before the representation election was held, Project Manager Maines

issued employee Bernard Bennett a written reprimand, stating:

At 7:0 5 a.m., you approached Utilityman, Ken Thomas and solicited his support for the

Teamsters Union. This occurred during no rmal working hours for both yourself and Mr.

Thomas. You were not only negligent toward your own duties, but you also obstructed Mr.

Tho mas in the performance of his duties. As the person in charge of your shift , yo u are

looked upon and expected to set an example for other employees in the performance of your

work. You have been negligent toward your work responsibilities by taking the time to wait

around for an opportuni ty to solicit this individual; whereas, y ou were supposed to be

monitoring the facilit

y and performance of those workers under your direct supervision. This

will not be tol erated in the future. You are instructed to cease conversation with personnel

other than in the performance of your job. As well, you should be informed, s oliciting is not

allow ed on the premises of the w ork project.

(Emphasis added). Bennett testified that he told other employees of his reprimand and his inability

to solicit for the union on McCullough's premises.

The NLRB found that McCullough, through the letter of reprimand, discriminatorily imposed

a "no solicitation

and no talking" rule during the union campaign. McCullough argues that it

promulgated no such rule, but simply reprimanded an employee for f ailing t o do his work and for

interrupting the work of other employees by soliciting. 6 "The ultimate question," however, "is

whether the employer's actions, whether or not cast into a rule , interfered with the organizational

rights of emplo y ees under the Act." N LRB v. Roney Plaza Apts., 597 F.2d 1046, 1048-49 (5th7 Employees and supervisors sold cookies, raffle tickets, baseball tickets, tickets to barbecues,

candy, and boots before July 10, 1989.

8 Moreover, the rule is overbroad in that it bars solicitation "on the premises of the work

project." See Cooper Tire, 957 F.2d at 1249 ("It is not within the province of an employer ... to

promulgate and enforce a rule prohibiting union solicitation by an employee outside of working

hours, although on company property.").

9 Because we find that the no-solicitation rule violates § 8(a)(1), we enforce that part of the

NLRB's order directing McCullough to remove the reprimand from Bennett's file. See Roney

Plaza, 597 F.2d at 1050-51 (stating that a disciplinary action cannot stand where the primary Cir.1979).

"Reasonable restrictions upon solicitation are not per se invalid because imposed during an

o rganizational campaign. The Act does not require an employer to anticipate all problems and

provide for them

by written rule." R oney Plaza, 597 F.2d at 1049. "A new rule or tightened

enforcement policy will, however, be invalid if imposed with discriminatory intent." I d. The NLRB

may find that a no-solicitation rule exists even where the rule is announced only informally. NLRB

v. WKRG-TV, Inc., 470 F.2d 1302, 1308 (5th Cir.1973). "Initial promulgation of a no-solicitation

policy upon the commencement of a union organizational campai gn is st rong evidence of

discriminatory intent." R oney Plaza, 597 F.2d at 1049. "The employer may, of course, demonstrate

that imposition of the restrictions was justified because the union campaign brought about substantial

work disruption in a plant for the first time." Id.

There is no evidence that McCullough had a cl early discernible rule or policy prohibiting

so licitation prior to the issuance of the reprimand letter. In fact, several employees testified that

McCullough did not have any type of a solicitation rule before July 10. Additionally, these employees

testified that they often engaged in solicitation during non-break times and frequently talked while

working about non-work related subjects without being reprimanded. 7 S ee Marathon LeTourneau

Co. v. NLRB, 699 F.2d 248, 256 (5th Cir.1983) (holding that a no solicitation rule "applied unevenly"

violates the Act). Moreover, McCullough imposed the no-solicitation restriction one day before the

representation election. McCullough also failed to demonstrate that the reprimand to Bennett was

issued because of a substantial work disruption. 8 Consequently, we find that substantial evidence

supports the NLRB's finding that McCullough promulgated an unlawful no-solicitation rule. 9justification for it is based on an unlawful rule). We thus need not review the NLRB's additional

finding that Bennett's reprimand was unlawful under § 8(a)(3) and should be removed from his file

for that reason. B

The NLRB found that McCullough violated §§ 8(a)(3) and 8(a)(4). "Section 8(a)(3)

prohibits an employer from retaliating against an employee for engaging in union or other protected

activity." D elta Gas, 840 F.2d at 311. "To prove a Section 8(a)(3) violation, the evidence must

support a rea so nable inference that the employer's adverse action was motivated by anti-union

animus." I

d. Section 8(a)(4) prohibits an employer from retaliating against an employee for filing

unfair labor practice charges or testifying at NLRB proceedings. I d. Where ant i-union animus is

shown to be a motivating factor in the employer' s decision to take adverse action against an

employee, "the employer will be found to have violated the Act unless the employer demonstrates,

as an affirmativ e defense, that it would have taken the same actions even in the absence of the

protected conduct." M ini-Togs, 980 F.2d at 1032. "Motive is a factual matter to be determined by

the Boa rd, and t he Board reasonably may infer motive from the circumstances surrounding the

employer's actions, as well as from direct evidence." I d. at 1032. "Our task is to determine whether

substantial evidence on the record as a whole supports the Board's findings that the employer violated

sections of the Act." Id.

1

Approximately two weeks before the certification election, employee Richard Harris refused

to sign a reprimand McCullough gave him for failing to secure an off-site sewage pumping station.

After Bunyard and Maines informed Harris that he would be terminated for insubordination if he did

not sign the reprimand, Harris signed it. The next day, McCullough's president, Jerry Mitchell, wrote

the following letter:

It has come to my attenti on that some employees have recently refu sed to si gn the wri tten

statements concerning re primands and/or disciplinary actions. It is a requirement that the

employee sign these statements "acknowledging' he read the statement. Note, that as always,

the employee may write any qualifications he so desires but he must acknowledge by signature

that he read the statement. Any employee refusing to sign the statement thereby

acknowledging he read the statement is to be discharged for insubordination.10 McCullough argues that the ALJ did not have jurisdiction to decide this issue because the

complaint alleged only that McCullough instituted a new rule requiring employees to sign

reprimands, and the ALJ found that McCullough did not change this policy. However, "[i]t is

settled that "a material issue which has been fairly tried by the parties should be decided by the

Board regardless of whether it has been specifically pleaded.' " NLRB v. International Union of

Operating Eng'rs Local 925, 460 F.2d 589, 601 n. 6 (5th Cir.1972) (quoting American Boiler

Mfrs. Ass'n v. NLRB, 366 F.2d 815, 821 (8th Cir.1966)). From our review of the record, it

appears that the parties fully and fairly litigated this issue. Mitchell, from his office at company headquarters in Tennessee, distribu ted thi s l etter to al l

McCullough facilit

ies. Soon after receiving Mitchell's letter, Maines reiterated the policy in a letter

to all supervisors at the Jackson facility.

The NLRB found that Mitchell's letter adopted fo r t he first time a policy requiring that

supervisors discharge any employee who refuses to sign written reprimands. 1 0 The NLRB then

concluded that McCullough violated §§ 8(a)(1) and (3) because the policy was motivated by

anti-union animus. The sole reason given by the NLRB for its conclusion is that McCullough "was

motivated to change its policy regarding signing written reprimands[ ] because of its suspicion that

Richard Harris was a strong Union supporter."

"Befor e an emplo yer can be said to have discriminated against its employees for their

protected activity, the Board must show that the supervisor responsible for the alleged discriminatory

action knew about the protected activity, and that the employees' protected activity was a motivating

factor in the employer's decision." N LRB v. McEver Eng'g, Inc., 784 F.2d 634, 640 (5th Cir.1986).

"In est ablishing the knowledge element, the Board may not simply "impute' the knowledge of a

lower-level supervisor to the decision-making supervisor." P ioneer Natural Gas Co. v. NLRB, 662

F.2d 408, 412 (5th Cir.1981) (citation omitted); see also Delchamps, Inc. v. NLRB, 585 F.2d 91,

94 (5th Cir.1978) (same).

We find that substantial evidence does not support the NLRB's finding that McCullough

adopted the sign-or-be-discharged policy for discriminatory reasons. "Neither the ALJ nor the Board

found that [Mitchell] was aware of the reprimandees' union ac t ivities, or that [another supervisor]

communicated his knowledge to [Mitchell]. Thus, it is clear that the ALJ performed the "mechanical

imputation' of knowledge rejected in Delchamps, 585 F.2d at 94." P ioneer, 662 F.2d at 41211 McCullough argues the NLRB erred in finding that the company changed its lunch break

policy. We need not address this contention, however, because the NLRB found that the policy

as changed was not an unfair labor practice.

12 The ALJ found that Harris, Spann, and Collins were "abusing their lunch periods by

frequently driving long distances to lunch, by frequently overstaying their lunch periods and by

taking lunch at other than specified times without advising their supervisors." Harris, in fact,

admitted that he violated McCullough's lunch policy on the day in question. (f ootnote omitted). The record is barren as to Mitchell's knowledge, if any, of Harris's union activity,

and it was Mitchell who instituted the sign-or-be-discharged policy in his June 28 letter. "Nor is this

a case in which the Board has relied on circumstantial evidence to infer that the knowledge of one

supervisor has been communicated to the supervisor responsible for the [ allegedly discriminatory

action].... The Board drew no such inference in this case." D elchamps, 585 F.2d at 95. Because the

NLRB simply imputed the "suspicion that Richard Harris was a strong Union supporter" to Mitchell

and unreasonably inferred that this suspicion undergirded McCullough's sign-or-be-discharged rule,

the NLRB's conclusion that the sign-or-be-discharged policy violates §§ 8(a)(1) and (3) cannot stand.

2

It is undisputed that on July 11, the day of the certification election, employees Richard

Harris, L.C. Spann, and Lonnie Co llins violated McCullough's lunch break policy 11 by using company

vehicles in an unauthorized manner—driving to a restaurant located several miles away from their

work stations—and taking excess ively long lunch breaks. 1 2 Supervisor Bunyard spotted the three

employees on their unauthorized lunch treks and notified his supervisor, Jerry Eckels. Bunyard and

Eckels then met with each employee later in the day and suspended all three for violating company

policies. McCullough formally terminated Collins on July 12, Harris on July 13, and Spann on July

28. The NLRB found that McCullough, motivated by anti-union animus, discharged them in violation

of §§ 8(a)(1) and (3). Additionally, the NLRB det ermined that McCullough would not have

discharged Harris, Spann, and Collins in the absence of their union activities.

"The [NLRB] makes a prima facie showing of a section 8(a)(3) violation by demonstrating

that anti-union animus was a motivating factor in an employe r's decision to terminate ... an

employ ee." Mini-Togs, 980 F.2d at 1032-33. Upon such a showing, "the burden shifts to theemployer to establish [by a preponderance of the evidence] that it would have taken the same action

even in the abse nce of the employee's protected activity." I d. at 1033; s ee also NLRB v.

Transportation Management Corp., 462 U.S. 393, 400-03, 103 S.Ct. 2469, 2474-75, 76 L.Ed.2d 667

(1983). We determine if substantial evidence supports the NLRB's findings that McCullough

discharged the three employees out of anti-uni o n animus and that McCullough would not have

discharged them in the absence of their union activity.

(i)

We init ially examine t

he ALJ's conclusion that Bunyard reprimanded Spann and Collins for

the July 11 incident solely because of Mc Cullough's concern that failure to punish them would

undermine its case against Harris. The ALJ based t his co nclusion on testimony from Spann and

Collins, whom he found to be credible witnesses. Spann testified that

[Bunyard] said, "You and Co llins got caught up in the wrong thing at the wrong time. This

wasn't meant for you all."

But, hey, he said something about Bob Maines had followed Richard Harris to [the

restaurant], and he had saw me.... [Bunyard] said, hey, we just got caught up at the wrong place, wrong time.

Co llins testified Bunyard told him that "they had been following Richard all day long" and t hat

Bunyard had to reprimand him because Bunyard had reprimanded Harris.

The ALJ did not explain the inconsistency in crediting Spann's and Collins's testimony in this

regard while refusing to credit their explanations of why they violated McCullough's lunch policies

in the first place. S ee supra note 12 and infra no t e 14. This omission is fatal to the ALJ's

d etermination. S ee Motorola, 991 F.2d at 282 (stating that we are free to review the reco rd and

reach our own conclusions when the NLRB fails to justify its credibility choice); Laredo Packing,

730 F.2d at 408 (stating that we may reject the NLRB's credibility determination where it is

unreasonable or is based on inadequate reasons). Several factors indicate that the ALJ erroneously

credited the testimony of the employees and over testimony given on behalf of McCullough. First,

Spann testified that Bunyard told him Maines had been following Harris all day. However, Bunyard,13 The ALJ discredited Bunyard's testimony because Bunyard appeared evasive and his

testimony was inconsistent. The only example of inconsistency cited by the ALJ was the

following exchange:

Q: Were you concerned as to whether the union was going to get into the plant?

A: Not so.

No, sir. I was not over-concerned of the union.

Q: You were not concerned that the union might win?

A: No, sir. I work there to do a job, and I can adapt as it may be.

Q: So it didn't matter to you one way or the other.

A: Well, yes, sir; it mattered. It mattered by the fact that the company

wished—wanted us to do what—you know, what we—what they wanted

us to do. I am a Company man; I follow Company rules. I abide by the

Company's wishes and what they want me to do.

Q: And what did they want you to do?

A: They want me to do my job to the best of my ability.

Q: But with regard to the union, what did the Company want you to do?

A: They didn't want me to do anything. They never asked me to do one thing or

another.

Q: Now, how many discussions before you ... became supervisor on June 5, 1989,

did you have conversations with either Harris, Collins or Spann concerning

the pros and cons of the union?

A: Two that I know of.

Q: And what was your position as to what you thought as to the fact that the

union might come in?

A: What do you mean what was my position?

Q: Were you for it or against it?

A: I definitely wasn't for it. I had just left a job, been laid off from a job in Texas

that was union-affiliated, but I had heard nothing from the union stating

what their grounds were. I had no basis to base—to give a knowledgeable

explanation of how I felt on it. There was no basis; I didn't hear anything

about it.

(Emphasis added). We believe the purported inconsistencies do not exist. See Pioneer,

662 F.2d at 413 n. 9 (reviewing an ALJ's determination that a witness's testimony was who se t estimony the ALJ did not find credible, 1 3 Maines, whose testimony the ALJ apparentl yinconsistent). Bunyard's first statements pertain to his belief that the union would not

affect his job as a supervisor in any substantial fashion. See 29 U.S.C. § 164(a) (excluding

supervisors from unions for collective bargaining purposes). Bunyard's later testimony

pertains to his position, stated before he became a supervisor, regarding his personal

experiences with unions. See Custom Recovery, Div. of Keystone Resources, Inc. v.

NLRB, 597 F.2d 1041, 1045-46 (5th Cir.1979) (rejecting an ALJ's finding of inconsistent

testimony when "the record reveals that [the witness] was testifying in different contexts").

"Second, and more importantly, we think that the ALJ's focus on a purported

inconsistency in [Bunyard's testimony] stands in striking contrast with his disregard for the

serious inconsistencies in [the employees'] story" concerning the July 11 lunch incident.

Pioneer, 662 F.2d at 413 n. 9. Despite the conflicts in their stories, the ALJ found the

testimony of the employees credible.

14 However, in reviewing the ALJ's conclusions, the NLRB specifically found that the field

crew—Harris, Spann, and Collins—"engaged in a considerable amount of "goofing off' during the

day." The ALJ found that "the field crew employees regularly abused the break and lunch times

before Bunyard became supervisor." Bunyard testified that when he was a member of the field

crew, Earl Medlock, the former supervisor, allowed the workers to play basketball, pitch quarters,

and shoot dice instead of working. Medlock corroborated Bunyard's testimony. Eckels testified

that the field crew was in "terrible shape" when Bunyard took over as supervisor. ignored, and Eckels, whom the ALJ found to be truthful, test ified that Bunyard spotted the three

employees violating the lunch policy only by happenstance. Second, Spann and Collins testified in

materially different ways regarding the route they took to the off-limit s restaurant. Third, both Spann

and Co llins testified that they had received nothing but compliments about their job performance until

the union campaign began, but the record is replete with evidence t hat Harris, Spann, and Collins

regularly neglected their duties. 14 Fourth, Harris denied that he went to the off-limits restaurant to

meet Spann and Collins, but also testified that he waited for ten minutes after arriving—until Spann

and Co llins arrived— befo re o rdering his lunch. "We cannot say that a decision which ignores a

porti on of the record is supported by substantial evidence." L ord & Taylor v. NLRB, 703 F.2d 163,

169 (5th Cir.1983). Accordingly, we disregard the ALJ's finding t hat McCullough reprimanded

Spann and Co llins merely to bolster its case against Harris because it is not supported by substantial

evidence.

(ii)

We next examine the evidence pertaining to the discharge of Harris. Substantial evidence

supports the ALJ's c o nclusion that anti-union animus was a motivating factor in the discharge of

Harris. The ALJ further found that McCullough terminated Harris on the day of the election, not two15 Harris may also have used drugs while on the job or during break times, although his

testimony in this regard is unclear.

16 For example, the record tends to show that Harris was not truthful in describing why he

decided to take an early, and extended, lunch break. Harris testified he discovered during his shift

that he did not have keys to several pumping stations at which he was supposed to work. Upon

radioing this information to Bunyard, Bunyard told him to pick up the keys at the facility after

lunch. Because he could do no further work without the keys, he decided to take an early lunch.

Bunyard, on the other hand, testified that Harris never contacted him to request additional keys. days later, and that McCullough would not have discharged him in the abs ence of its anti-union

animus. The ALJ based this determination on Harris's testimony that Don Dixon, McCullough's

observer at the election, challenged his vote because he had been terminated as of noon on July 11.

Dixo n did not testify. It is undisputed, however, that only Maines had the power to discharge

employees at the Jackson facilit y. Maines testified that he discharged Harris on July 13. Moreover,

Bunyard's report to Maines regarding the lunch incident and Harris's other policy violations, dated

July 12, recommended that Harris be disc harged. This recommendation would be unnecessary if

Harris had been discharged on July 11. Based on this evidence, we disagree with the NLRB's finding

that McCullough would not have discharged Harris in the absence of his protected activ it y.

Assuming, however, the correctness of the ALJ's findings, our conclusion, based upon the totality of

t he circumstances surrounding Harris's discharge, would not change. S ee NLRB v. Brookshi r e

Grocery Co., 919 F.2d 359, 363-64 (5th Cir.1990) (noting that the NLRB should look "beyond the

company's asserted reasons to evaluate all circumstances involved in the firing").

The record demonstrates, and the NLRB found, that Harris, Spann, and Collins engaged in

a considerable amount of "goofing off" during the work day, including playing basketball, pitching

quarters, and shooting dice on company time, and Bunyard upon becoming supervisor made clear his

intent to rectify these poor work practices. Additionally, Harris, who worked around dangerous

equipment, admitted that he drank alcohol during lunch and at least "one or twic e" during work

time. 15 Moreover, Harris, during the four months preceding his discharge, received two written

reprimands regarding the performance of his duties, including one for a "major" violation of

McCullough's safety policies. Finally, the record indicates that Harris was untruthful both during

McCullough's investigation of the July 11 lunch incident and at the hearing before the ALJ. 1 6Maines, who testified that the location of his office allows him to hear all radio conversations,

confirmed Bunyard's testimony. Bunyard also testified that when he confiscated Harris's key ring

on July 11, he found the "missing" keys on it. Moreover, Harris's own log reveals not only that he

had many tasks that could have been accomplished without the keys, but also that he actually had

worked at two of the stations he claimed he could not access. Finally, in his hearing for

unemployment compensation, Harris admitted "taking it upon himself" to take an early lunch. Accord ingly, we find that substantial evidence does not support the NLRB's conclusion that

McCullough would no t have discharged Harris in the absence of his protected activity. C f.

Brookshire Grocery, 919 F.2d at 364-65 (holding that an employee forfeited his remedial rights under

the Act by violating company policy and then lying under oath about the incident).

(iii)

We now examine the evidence pertaining to t he discharge of Spann. Spann received a

reprimand, which he signed pursuant to McCullough's valid sign-or-be-discharged policy, see part

III.A. supra, and a suspension for violating McCullough's lunch policies on July 11. Spann returned

to work on July 18, and problems began anew. On July 24, Bunyard determined that Spann failed

to properly secure a pumping station, a "major" violation of company policy. On July 25, Bunyard

found Spann again violating McCullough's lunch policy. On July 26, McCullough again suspended

Spann. When Spann returned to work on July 28, Bunyard presented him with two reprimand letters,

one for the July 24th incident and one for the July 25th incident. Spann, despite knowing about the

sign-or-be-discharged policy, refused to sign the reprimands. Bunyard then left Spann alone so that

Spann could think about his decision. When Bunyard returned, Spann asked for more time to

contemplate his options, which Bunyard granted. Spann ultimately chose not to sign the reprimands

and then refused to return the reprimands to Bunyard. After Bunyard ordered him to return the

reprimands, Spann testified he told Bunyard "that he could take them if he really wanted them" and

then left the premises.

The NLRB's conclusion that McCullough would not have discharged Spann in the absence

of his protected activity is not supported by substantial evidence. It is undisputed that Spann refused

to sign the written reprimands, despite being given every opportuni ty to do so and his knowledge of

the sign-or-be-discharged policy. "In the vernacular of the workplace, "[Spann] fired [him]self' when17 The union apparently dropped these charges.

[ ]he refused [McCullough's] reasonable conditions for continued employment." M ini-Togs, 980 F.2d

at 1034. Consequently, we will not enforce the NLRB's order regarding Spann.

(iv)

We finally examine the evidence pertaining to the discharge of Collins. Upon Collins's return

to the facilit

y after lunch, Bunyard called Co llins into his office to discuss the lunch incident and gave

Co llins a written reprimand for violating compa n y policies. Collins refused to sign the reprimand,

even after Bunyard gave him an o pportunity to reconsider his decision. McCullough discharged

Co llins for insubordination the next day. We have previo usly found McCullough's

sign-or-be-discharged policy to be lawful, see part III.A. supra, and Collins admitted he knew that

he would be disc harged if he did not sign the reprimand. Collins also admitted he knew that by

signing the reprimand, he merely was acknowledging its receipt and not that he agreed with what the

reprimand said. Thus, we hold that McCullough terminated Collins for a legitimate reason and not

for his protected activity. Like Spann, Collins "fired himself" by refusing to sign the reprimand.

3

The NLRB found that McCullough took disciplinary actions against James Varnado on two

occasions, in violation of §§ 8(a)(1), (3), and (4). Although McCullough advanced reasons for its

actions, the NLRB determined that these reasons merely were pretextual and t hat McCullough

actually reprimanded Varnado because he supported the union, testified in NLRB proceedings, and

filed an unfair labor practice charge with the NLRB.

On August 8, 1989, the union filed unfair la bo r practice charges alleging that McCullough

unlawfully retaliated against Varnado because of his support for the union. 17 In March 1990, Peters,

the la bo ratory supervisor, showed Varnado and Chester Hicks, both laboratory technicians, a

"counseling memo randum" regarding a test that they failed to perform. Varnado, confused as to

whether the memorandum was a reprimand, asked Peters "for a copy of the reprimand or memo, or

whatever it was." Varnado test ified that Peters became angry and accused Varnado of trying to

manipulate him, to which Varnado responded that he was not afraid of Peters. Peters, according to18 The record reflects that Varnado's normal duties, up until May 1990, did not include running

such tests.

19 McCullough does not dispute that it opposed the union and that it was aware of Varnado's

union activities. Varnado wore a Teamsters cap at work, displayed a Teamsters bumper sticker

on his car, and attended the post-election victory celebration, which was held in one of

McCullough's conference rooms. Varnado, replied that he was not going to tolerate such behavior and placed a disciplinary report in

Varnado's file recounting his version of the incident, which had Varnado instigating the confrontation

through his "belligerent tone." Peters confirmed his account of the incident in testimony before the

ALJ.

In April 1990, Varnado testified before the ALJ in this case. Approximately one month later,

Peters placed a second disciplinary report in Varnado's file regarding another test that Varnado failed

to conduct. 18 Varnado argues that Peters told him to conduct two other tests on the sample, but not

the test referenced in the report. Peters testified, and McCullough argues, that Varnado should have

known, with o ut any explicit instructions, to run the omitted test because he was the senior lab

technician, had eleven years experience, and had run such a test in November 1989.

The NLRB found that Peters issued both the disciplinary reports to Varnado in retaliation

for Varnado's participation in protected activities. Substantial evidence supports the NLRB's finding

that the reasons for the disciplinary reports were pretextual, and that McCullough failed to show that

Varnado would have been reprimanded absent his union involvement. Regarding the first report, the

evidence indicates that Peters overreacted to a simple request for a copy of the first memorandum

because of his own anti-union animus, the knowledge that Varnado was a union supporter, and the

unfair labor practice charge filed on behalf of Varnado. With regard to the second memorandum, by

expecting Varnado to remember what tests he ran a similar sample six months previously, Peters held

Varnado t o an unreasonable standard, one to which no other employee had ever been held.

Moreover, in light of the findings of unfair labor practices discussed in parts I.A.1, 2, and 3, supra,

it is reasonable to infer that McCullough's anti-union animus played a role in the treatment of

Varnad o. 1 9 R oney Plaza, 597 F.2d at 1050 n. 6 (stating that unfair labor practices "may be

considered along with other evidence tending to show discrimination"). The timing of the disciplinarynotices also supports the conclusion that they were unlawfully issued. B rookwood, 701 F.2d at 467

(noting that the NLRB can consider the t iming of an employer's actions as evidence of a violation).

McCullo ugh points out that it did not reprimand other employees who were known unio n

supporters and who testified against McCulloug h at NLRB hearings. However, the fact that

McCullough did not reprimand all pro-union employees does not necessarily undermine the NLRB's

finding o f unlawful motivation. D elta Gas, 840 F.2d at 312. McCullough further contends that

Peters lawfully reprimanded Varnado for insubordination and negligence in performing his duties, not

for his union activity. We acknowledge that here, as in many cases, the record contains evidence of

both a lawful and an unlawful motive unde rlying t he disciplinary actions taken by McCullough.

Nevertheless, "[w]hile the record does permit a co mpeting, perhaps even equal, inference of a

legitimate basis for discipline, the Board could reasonably infer an impro per motivation given the

t iming of the discipline and the circumstances of the employer's anti-union campaign." B rookwood,

701 F.2d at 467; s ee also Merchants Truck Line, Inc. v. NLRB, 577 F.2d 1011, 1016 (5th Cir.1978).

We find sufficient evidence to support the NLRB's findings that McCullough considered Varnado's

protected activities in reprimanding him and that McCullough failed to show that it would not have

reprimanded Varnado in the absence of his protected activity. Therefore, McCullough issued the two

reprimands in violation of § 8(a)(3).

II

No. 92-4460

The NLRB seeks enforcement of its cease and desist order directing McCullough to bargain

with the union. The NLRB defined t he appropriate bargaining unit to include four individuals

employed by McCullough as "lead operators." McCullough argued that lead operators should have

been excluded from the unit because they are supervisors within the meaning of § 2(11) of the Act.

After a hearing, the Regional Director found that the lead operators were not supervisors and were

properly included in the bargaining unit. The NLRB affirmed the Regional Director's decision and

ordered that a certification election take place.

The union won the election by a vote of twenty -two to five. McCullough filed objections to20 The parties stipulated that Maines and Hawthorne are statutory supervisors.

the election, contending that the NLRB improperly included supervisors in the bargaining unit. The

Regional Director overru led McCullough's objection. The NLRB again affirmed the Regional

Director's decision and certified the union as the unit's collective bargaining representative. The union

demand ed t hat McCullough begin negotiations, but McCullough refused. The union then filed an

un fair labor practice charge with the NLRB, alleging that McCullough had unlawfully refused to

bargain. McCullough responded that the underlying certification was invalid because the bargaining

unit impermissibly included individuals employed as supervisors.

General Counsel for the NLRB moved for summary judgment on the complaint, which the

NLRB granted. The NLRB found that McCullough was raising issues that were or could have been

litigated at the representation hearing and did not offer any ne wly discovered or previously

undiscoverable evidence. Consequently, the NLRB issued its order requiring McCullough to bargain

with the union. The NLRB now petitions us to enforce that order.

A

The Jackson treatment facilit y is worth approximately $50 millio n dollars, is one of the largest

sewage treatment facilit

ies in the United States, and operates continuously year-round. McCullough's

operations department oversees the process by which raw sewage is transformed into an effluent that

can be safely discharged into receiving streams. The department is staffed by a chief operator, four

lead operators, four relief operators, and four shift operators. Project Manager Robert Maines, who

is in charge of the entire facilit y, and Chief Operator Andrew Hawthorne, who heads the operations

department, work from approximately 7:00 a.m. to 5:00 p.m., Monday through Friday. 20 The lead,

relief, and shift operators work rotating shifts Monday through Friday of 8:00 a.m. to 4:00 p.m ., 4:00

p.m. to midnight, and midnight to 8:00 a.m. On Saturdays and Sundays, they work 12 hour shifts.

Thus, the lead operator is the highest ranking official on duty at the facilit y for approximately seventy

percent of its operating hours.

The lead operators work out of the "control room " at the facilit y. From this room, they utilize

a number of instruments to monitor the status of entire sewage treatment process. The lead operators21 Section 14(a) states that "no employer subject to [the Act] shall be compelled to deem

individuals defined herein as supervisors as employees for the purpose of any law ... relating to

collective bargaining." 29 U.S.C. § 164(a). continuously maintain a log based on this data and record all significant events that occur during each

shift, including any adjustments they make to equipment. At the end of each shift, the log is given

t o the oncoming lead operator. Should any problems develop during a shift, instrument s in t he

control room inform the lead operator. Depending on the situation, the lead operat or can adjust

either the equipment or the mix of chemicals used to treat the sewage so as to maintain compliance

with sta t e and federal laws and company policies. While many adjustments can be made from the

control room

, in some circumstances the lead operator directs the relief or shift operators, who work

in other areas of the facilit y, to make the adjus t ment . Other duties of the lead operators include

ut ilizing plant equipment in ways that minimize costs for McCullough, making rounds of the facilit y

every two hours to ensure that equipment is operating properly and that other employees are doing

their jobs, and examining checklists prepared each shift by the relief and shift operators to ensure that

they have completed their required tasks.

B

The ultimate issue in this appeal is whether we should enforce the NLRB's order compelling

McCullough to bargain with the union. To determine that issue, we must decide whether the voting

unit as defined by the NLRB impermissibly includes supervisory personnel in violation of § 14(a). 21

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, prom ote, discharge, assign, reward, or discipline other employees, or responsibly

to direct them, or to adjust their grievances, or effectively to recommend such action, if in

connection with the forego ing t he exercise of such authority is not of a merely routine or

clerical nature, but requires the use of independent judgment.

29 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." Monotech of

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

We will uphold the NLRB's conclusions where they are supported by substantial evidence

on the record as a whole. Universal Camera Corp., 340 U.S. at 477, 71 S.Ct. at 459.22 But see Schnuck Markets, Inc. v. NLRB, 961 F.2d 700, 704 (8th Cir.1992) (applying a "more

probing" review in a supervisory status case because the NLRB has "exhibited a pattern of

applying the statute inconsistently"); Children's Habilitation Ctr., Inc. v. NLRB, 887 F.2d 130,

132 (7th Cir.1989) (noting the NLRB's "well-attested manipulativeness in the interpretation of the

statutory test for "supervisor' "); NLRB v. St. Mary's Home, Inc., 690 F.2d 1062, 1067 (4th

Cir.1982) (noting the "inconsistency" in the NLRB's application of § 2(11)); Note, The NLRB

and Supervisory Status: An Explanation of Inconsistent Results, 94 Harv.L.Rev. 1713, 1713-14,

1721 (1981) (same).

23 The NLRB concluded that McCullough's lead operators are not statutory supervisors for a

variety of reasons. First, lead operators lack the authority to hire, promote, discharge, suspend,

transfer, lay off, or recall employees. See § 2(11). Second, l ead operators do not attend

supervisory meetings. See Monotech, 876 F.2d at 517 (whether workers attend management

meetings is a secondary indicator of supervisory status). Third, lead operators do not have

authority to approve overtime pay. See Dale Service, 269 NLRB 924, 924 (whether worker has

authority to assign overtime work is indicative of supervisory status). Fourth, although lead

operators prepare evaluation reports on new employees, the record did not establish whether

higher management relied on these reports. See Highland Superstores, Inc. v. NLRB, 927 F.2d

918, 920-22 (6th Cir.1991) (workers were not supervisors because, inter alia, they did not play a

major role in the evaluation process). Fifth, lead operators do not exercise independent judgment

in assigning duties to other employees, but merely serve as a conduit through which orders from

superiors are passed to workers. See id. at 921 (employees who merely pass on instructions from

superior to other employees not supervisors). Sixth, lead operators rarely undertake any

disciplinary activity, and McCullough adduced no evidence as to the actual role of the lead

operators in the disciplinary process. See NLRB v. Dickerson-Chapman, Inc., 964 F.2d 493, 500

(5th Cir.1992) (employee did not effectively recommend discipline where he merely reported facts

and management effected any discipline required). Finally, although the lead operators often are

in sole charge of the facility, the NLRB found no other evidence indicating that they possessed

any supervisory powers. See NLRB v. KDFW-TV, Inc., 790 F.2d 1273, 1279 (5th Cir.1986)

(supervisory status not conferred on employees merely because they are the highest ranking

employees on duty). Because we consider the NLRB bound by its ruling in Dale Service, 269

NLRB 924 (1984), on the issue of supervisory status, we find the lead operators are supervisors

under § 2(11) of the Act. See infra part II.C. In assessing t he Bo ard's application of a statutory provision such as § 2(11), particular

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 517 (citations omitted). 22 Nevertheless, we find the NLRB's conclusion that

lead operators are not statutory supervisors unsupported by substantial evidence. 23

C

In Dale Service Corp., 269 NLRB 924, 1984 WL 36272 (1984), the NLRB found that

"senior operators" at a sewage treatment facilit y were statutory supervisors. Dale operated its facility

twenty-four ho urs a day, 365 days a year, and employed an operations manager, assistant general

manager, four se nio r operators, three operators, and five maintenance employees. The managers,24 The NLRB emphasized this fact in Dale Service. See 269 NLRB at 925 n. 8; see also

Abilene Sheet Metal, Inc. v. NLRB, 619 F.2d 332, 344 (5th Cir.1980) (finding persuasive the

employer's argument that if the employee at issue was not a supervisor, "the workers would be

almost completely unsupervised"); NLRB v. Gary Aircraft Corp., 368 F.2d 223 (5th Cir.1966)

(noting that if the employees at issue were not supervisors, employees would be without

supervision 807 of the time), cert. denied, 387 U.S. 918, 87 S.Ct. 2032, 18 L.Ed.2d 971 (1967). who the parties stipulated to be supervisors, worked from 7:30 a.m. to 5:30 p.m., Mondays through

Fridays. Night and weekend shifts consisted of one senior operat o r and one operator. Thus, the

senior operators were the highest ranking personnel for a majority of the plant's hours of operation.

Although senior operators and operators performed many of the same tasks, senior operators had

the authority to assign operators t o specific t asks, based in part on the senior operators'

assessment of the employees' abilit ies and the expertise required. Senior operators [had] the

authority to evaluate the workload, and, consequently, to assign overtime work to operators;

to send operators home in the absence of work; and to call both operators and maintenance

employees in to work, all without the managers' prior approval. In the course of their duties,

senior operators must make operational decis io ns regarding the adjustment of equipment.

These deci sio ns are based on knowledge and experience, and require the exercise of

discretion. Finally, the [company's] assistant general manager testified that senior operators,

when managers are not present, are directly responsible for the operati on of the plant and the

direction of the work force. This authority was acknowledged by senior operators, who

testified that their duties included, "mak[ing] sure everything is running all right " and

"basically run[ning] the plant."

269 NLRB at 92 4-25. "Based on all these factors, [the NLRB found] that senior operators

responsibly direct employees within the meaning of Section 2(11)." Id. at 925 (footnote om itted).

We consider Dale Service to be the controlling case on the issue of supervisory status in this

case. Although the NLRB strenuously argues that D ale Service is factually distinguishable from the

case sub judice, we find the NLRB's attem pts to distinguish it unpersuasive. See Fiber Glass Sys.,

Inc. v. NLRB, 807 F.2d 461, 464 (5th Cir.1987) (stating that "a departure from past agency

precedents requires at least a reasoned explanation of why this is done"); N LRB v. WKRG-TV, Inc.,

470 F.2d 13 02, 1311 (5t h Cir.1973) (noting that the NLRB is obligated "to maintain a consistent

approach in [its] unit determinations").

It is undisputed that McCullough's facility, like that in D ale Service, runs continuously

year-round. As a result, the lead operators, like the senior operators in D ale Service, are the highest

ranking employees present durin g night and weekend shifts, which constitute the majority of the

fac ilit y's operating hours. 2 4 During these shifts, McCullough's lead operators supervise two25 All four lead operators employed by McCullough are certified at various levels by the state of

Mississippi, while some shift operators are not certified at any level.

26 Despite this explicit admission by a union witness, the NLRB contends there is "no evidence

that lead operators have ever been held accountable or responsible for the performance and work

product" of other employees. We also note that Maines testified similarly to Polk and that the

record contains memoranda written by McCullough management prior to any union activity at the

facility indicating that lead operators are held responsible for the actions of employees on their

shifts.

27 Finally, the NLRB argues that because the lead, relief, and shift operators perform similar

functions, lead operators should not be considered supervisors. The NLRB in Dale Service,

however, found that senior operators were supervisors even though "[i]n the course of their jobs,

senior operators and operators perform many of the same functions." 269 NLRB at 924; see also

Maine Yankee Atomic Pow er Co. v. NLRB, 624 F.2d 347, 362 (1st Cir.1980) (finding workers to

be supervisors even though they perform tasks similar to those assigned to other employees). employees while the senior operators in Dale Service supervised only one employee. Lead operators

also have the authority to assign employees to specific tasks, send employees home if they are ill, and

make operational decisions based on their knowledge and experience regarding the adj u stment of

plant equipment. 25 Moreover, lead operators are directly responsible for the operation of the plant

and the direction of the other operators when Maines and Hawthorne are not present. Lead operator

Robert Polk testified that he was so lely "responsible for the operation of the plant during an eight

hour shift ..., to see that the plant is operated the way it is supposed to." 26

The NLRB contends that the senior operators in Dale Service p ossessed a substantially

greater degree of independent authority than McCullough's lead operators. The NLRB highlights its

determination i n D ale Service that the senior operators had the authority to assign operators to

specific tasks, based in part on their assessment of the employees' abilit ies and the expertise required,

and to resolve problems arising during the night and weekend s hift s without input from higher

management. 269 NLRB at 924. By contrast, the NLRB argues McCullough's lead operators do

not choose where employees work because the employees simply rotate stations on a daily basis; lead

operators do not use independent judgment in directing employees because employees merely follow

extensive checklists or instructions prepared by management; and lead operators do not resolve

problems by themselves, but o nly refer problems to Maines or Hawthorne. After an exhaustive

review of the record, we find no support for these asserted distinctions. 2728 While the lack of supervision, by itself, is insufficient to confer supervisory status on the lead

operators, it is indicative of supervisory status. See Dale Service, 269 NLRB at 925 n. 8; see also St. Mary's Home, Inc., 690 F.2d at 1066 (noting that "whether the employee whose status is

in question is "the highest ranking employee' on the jobsite at the time to whom other employees

must look for direction" is "[p]erhaps the most significant factor" in determining whether that

employee is a supervisor). The NLRB's opinion in Dale Service indicates that the senior operators there held supervisory

powers virtually identical to those held by the lead operators here. In D ale Service, the NLRB found

that senior operators had the authority to assign employees to specific task s even though "[a]n

operations manual outlines tasks to be performed at specific times, and work varies little day to day."

269 NLRB at 924 & n. 7. This appears to be no different than the aut ho rity exercised by

McCullough's lead op e rators. Although checklists and instructions from Hawthorne outline the

day-to-day tasks of employees, the lead operator decides which employee performs a specific task.

S ee also Maine Yankee Atomic Pow er Co. v. NLRB, 624 F.2d 347, 362 (1st Cir.1980) (finding

workers to be supervisors even though their tasks and responsibilities were governed "to a g reat

extent" by federal guidelines and company policies). Additionally, Maines and lead o perator Polk

testified that lead operators have the authority to, and actually do, reassign employees during shifts.

Cf. NLRB v. Ajax Tool Works, Inc., 713 F.2d 1307, 1312 ( 7t h Cir.1983) ("Although the

reassignments may not have called for the exercise of sophisticated judgment, it appears t hat the

decisions involv ed t he exercise of some independent judgment."). Michael Ward, a shift operator

testifying on behalf of the union, stated that the lead operator on his shift "tells me what to do around

the plant" and "checks up on you from time to time to see that the job

... is done." If the workers fail

to complete their assigned tasks, the lead operator instructs them to do so. This also demonstrates

that lead operators exercise independent judgment and responsibly direct other employees. S ee id.

(noting that ordering an employee to correct a mistake requires an exercise of independent judgment).

McCullough buttresses its argument that lead operators are supervisors by pointing out that

if they are not supervisors, its facility is without supervision during the night and weekend shifts. 28

The NLRB argues that because Maines and Hawthorne are on call twenty-four hours a day and lead

operators contact them during the night and weekend shifts concerning some problems that arise, lead29 As one example of the lead operators' lack of authority to exercise independent judgment, the

NLRB argues that they cannot assign overtime work to employees without Hawthorne's approval.

See Dickerson-Chapman, 964 F.2d at 498 n. 6 (stating that the NLRB "does not have to defer to

testimony that employees had the authority listed in 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"). While it is true that lead operators Polk and Bernard Bennett

testified they are not authorized to approve overtime pay, project manager Maines testified

otherwise. Moreover, a memorandum written by Hawthorne prior to any union activity at the

facility states that lead operators have authority to request employees to work overtime. Thus,

this case is governed by the NLRB's opinion in Dale Service rather than our decision in

Dickerson-Chapman.

30 Relief and shift operators regularly seek out the lead operator to obtain assistance with

problems they encounter. The NLRB argues that this merely is indicative of relatively

inexperienced employees seeking out more experienced employees for aid in performing their

duties. Because other evidence in the record supports our conclusion that lead operators are

supervisors, we need not determine whether the NLRB's assertion is correct. We note, however, operators lack authority to exercise independent judgment. 29 The NLRB, however, ignores the nature

of McCullough's operations. In emergencies, such as when waste enters the system that could disrupt

the facilit y's operation, the lead operator must be knowledgeable enough to make decisions regarding

the treatment process by himself. There is no evidence in the record suggesting that lead operators

are not permitted to take immediate action in such an event. "The fact that they may consult with

superiors in emergencies if time permits, or that they may advise supervisors of actions taken, should

not obscure the fact that they can do virtually anything necessary to protect the system." Southern

Indiana Gas & Elec. Co. v. NLRB, 657 F.2d 878, 885 (7th Cir.1981); s ee also Maine Yankee, 624

F.2d at 358 ("One co uld imagine situations where to ... wait [for approval of upper management]

would be to permit a relatively simple problem [to] escalate into a real emergency.... No Company

regulation prescribes procrastination in such circumstances.").

Neither McCullough's guidelines requiring lead operators to contact a superior in the event

of an emergency nor the infrequency of emergencies is sufficient to deprive the lead operators of their

supervisory status. S outhern Indiana Gas, 657 F.2d at 886; Maine Yankee, 624 F.2d at 364. The

mere fact that someone higher in t he chain o f command must be consulted when a emergency or

atypical problem arises do es no t necessarily deprive lead operators of their supervisory status.

Instead, the record contains undisputed testimony that lead operators often dealt with problems

without inp ut from either Maines or Hawthorne. 3 0 Furthermore, the decision whether to notifythat one indicator of supervisory authority is whether other employees routinely seek out the

individuals alleged to be supervisors for assistance in performing their duties. See Monotech, 876

F.2d at 518.

31 The job description for "shift foreman," the title previously given by McCullough to the lead

operator position, states that the lead operator "[s]upervises operation of the plant," "[s]upervises,

instructs, and assigns specific duties to shift workers," and "[o]rders, supervises, or participates in

required adjustments or repairs."

32 Lead operators Polk and Donnie Dixon described their position on insurance forms as "shift

supervisor." Moreover, each stated on their employment applications that they sought a "shift

supervisor" position with McCullough.

33 Polk testified that other employees referred to him as their supervisor.

34 Lead operators received an average hourly wage 97 cents higher than that of relief operators

and $3.79 higher than that of shift operators.

35 See Dickerson-Chapman, 964 F.2d at 498 n. 6 (stating that "job descriptions do not

necessarily vest employees with supervisory power"); Monotech, 876 F.2d at 517 (stating that

the perceptions of co-workers and wage differentials merely are secondary indicia of supervisory

status).

36 We recognize that other factors weigh against the conclusion that lead operators are

statutory supervisors. For example, although Maines testified otherwise, the record contains

evidence that lead operators are not invited to management meetings. Additionally, lead

operators, like relief and shift operators, are paid hourly while Hawthorne is a salaried employee.

These factors, however, cannot deprive the lead operators of supervisory status because the

record as a whole indicates that they do responsibly direct other employees, one of the statutory

primary indicia of supervisory authority. See Monotech, 876 F.2d at 517 (indicating that the

"primary indicia" of supervisory authority are the functions listed in the statute while other factors

merely are secondary indicia). Maines or Hawthorne of a specific problem involves, to a certain extent, the exercise of independent

judgment.

In making its determination that lead operators are not supervisors, the NLRB failed to give

any weight to McCullough's own determination of the lead operator's status, 31 documents authored

by lead operators indicating that they thought o f themselves as supervisors, 3 2 the beliefs of other

employees who thought that lead operators were superviso rs, 3 3 and the higher wages of lead

operators compared to relief or shift operators. 34 While none of these factors alone suffices to confer

supervisory status, 35 the combination of these factors with the evidence cited above indicates that lead

operators have the authority "responsibly to direct" other employees in a mann er "not of a merely

routine or clerical nature, but requir[ing] the use of independent judgment." 29 U.S.C. § 152(11). 3 637 Additionally, the NLRB argues that evidence demonstrating that lead, relief, and shift

operators wear blue uniforms while Hawthorne wears a white one supports its finding that lead

operators are not supervisors. See NLRB v. Big Three Industrial Gas & Equipment Co., 579

F.2d 304, 309 (5th Cir.1978) (different color uniforms is a secondary indicator of supervisory

status), cert. denied, 440 U.S. 960, 99 S.Ct. 1501, 59 L.Ed.2d 773 (1979). In light of the ALJ's

finding that individuals in other departments whom the parties stipulated to be supervisors wear

blue uniforms, we find this contention without merit.

38 Lead operator Polk testified that he had given out both oral and written reprimands. Maines

testified that lead operators have the discretion to send workers home and make recommendations

as to suspending workers. Lead operator Horace Henderson testified that he had recommended

discipline for an employee on one occasion. Relief operator Thomas Green, who acts as lead

operator when one is not available, testified that lead operators can recommend suspensions or

reprimands of employees. The record also contains two memoranda to Maines and Hawthorne

from Polk recommending disciplinary action for one employee who failed to perform his duties

"without being directed to do so by me" and demonstrated a "lack of respect for supervision."

Shortly after Polk wrote the first memorandum, the employee in question was suspended. On the

day Polk wrote the second memorandum, the employee was fired. Based on the record and NLRB precedent, we disagree with the NLRB's conclusion that lead

operators do not responsibly direct employees within the meaning of § 2(11). 37

D

The NLRB mai nt ains that the evidence supports its finding that lead operators do not

discipline, or effectively recommend discipline for, other operators. The record indicates, however,

that on at least two occasions, a lead o perat o r gave an employee a written reprimand and the

employee was later fired. While the record is unclear regarding whether the lead operators

recommended termination on each occasion, that they have the authority to issue such reprimands

and that McCullough acts on them indicates that they eff ect ively participate in McCullough's

disciplinary process. 38 S ee NLRB v. Southern Airways Co., 290 F.2d 519, 524 (5th Cir.1961). But

see Dickerson-Chapman, 964 F.2d at 499 (holding that incidental and extraordinary instances of

discipline by an employee does not confer supervisory status). Moreover, lead operators give oral

reprimands t o emplo yees without issuing written reprimands. This also indicates the exercise of

independent judgment because the lead operators decide whether to deal with a problem employee

themselves o r t o bring the situation to the attention of upper management through the formal

disciplinary process. Lead operators, therefore, not only exercise independent judgment in

responsibly directing other employees, but they als o effect ively recommend discipline for otherworkers.

III

Accordingly, in number 92-4459 we hold that the NLRB's findings regarding Harris, Collins,

Spann, and McCullough's disciplinary policy are not supported by substantial evidence. As such we

de ny enforcement of these parts of the NLRB's order. We further hold that the NLRB's findings

regarding coercive interrogation, surveillance, threats of reprisal, and the reprimands given to Bennett

and Varnado are supported by substantial evidence, and therefore grant enforcement of these portions

of the NLRB's order.

In number 92-4460, we disagree with the NLRB's penultimate conclusion that McCullough's

lead operators are not supervisors within the me aning of § 2(11) based on the record and NLRB

precedent. Accordingly, because the certified bargaining unit improperly included statutory

supervisors, we deny the NLRB's application to enforce its order requiring McCullough to bargain

with the union.

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