CGLM, Inc.

National Labor Relations Board - Administrative Judge Opinions

Feb 27, 2007

15-CA-017889 (N.L.R.B. Feb. 27, 2007)

JD(ATL)–08–07
Jefferson, LA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE
CGLM, INC.
and
ALAN KANSAS, an Individual
Case 15–CA–17889
Charles R. Rogers, Esq., for the General Counsel.
Donald C. Douglas, Jr., Esq., for the Respondent.
Alan Kansas, Esq., for the Charging Party.
SUPPLEMENTAL DECISION
GEORGE CARSON II, Administrative Law Judge. I issued my Decision in this case on
August 28, 2006, finding, inter alia, that Warehouse Manager Bobbie Marshall, Jr., was not a
supervisor as defined in the Act. On December 15, 2006, the Board, in an unpublished Order
citing its decisions in Oakwood Healthcare, Inc., 348 NLRB No. 37 (2006), Croft Metals, Inc.,
348 NLRB No. 38 (2006), and Golden Crest Healthcare Center, 348 NLRB No. 39 (2006),
remanded this case to me “for further consideration in light of … [those decisions] including
allowing the parties to file briefs on the issue and, if warranted, reopening the record to obtain
evidence relevant to deciding the case under … [those decisions].” On December 22, 2006, I
conducted a conference call with all parties. All parties agreed that the record need not be
reopened, but that they did desire to file briefs. I have reviewed the record. Reopening the
record is not warranted.
On the entire record, the above cited Board decisions, and after considering the
briefs filed by all parties, I reaffirm my decision that Warehouse Manager Bobbie Marshall, Jr.,
was not a supervisor as defined in the Act.1
I. The Board’s Decisions
In Croft Metals, Inc., supra, the Board stated that, in Oakwood Healthcare, Inc., supra, it
had “refined the analysis to be applied in assessing supervisory status” and, with citation to the
applicable portions of the Oakwood Healthcare, Inc., decision, summarized the definitions for
the terms “assign,” “responsibly to direct,” and “independent judgment” as follows:
The authority to “assign” refers to “the act of designating an employee to a place (such
as a location, department, or wing), appointing an employee to a time (such as a shift or
overtime period), or giving significant over-all duties, i.e., tasks, to an employee. … In
sum, to ‘assign’ for purposes of Section 2(11) refers to the … designation of significant
overall duties to an employee, not to the … ad hoc instruction that the employee perform
a discrete task.” Id. slip op. at 4.

1 Donald C. Douglas, Jr., Esq., filed the brief herein and represents the Respondent. He is now
associated with a different law firm. My Order dated January 26, 2007, granting a motion to
substitute counsel of record is hereby vacated. Attorney Douglas remains counsel of record.
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The authority “responsibly to direct” is “not limited to department heads,” but instead
arises “[i]f a person on the shop floor has ‘men under him,’ and if that person decides
‘what job shall be undertaken next or who shall do it,’ … provided that the direction is
both ‘responsible’ … and carried out with independent judgment.” Id. slip op. at 6. “[F]or
direction to be ‘responsible,’ the person performing the oversight must be accountable
for the performance of the task by the other, such that some adverse consequence may
befall the one providing the oversight if the tasks performed are not performed properly.”
Id. slip op. at 7. “Thus, to establish accountability for purposes of responsible direction, it
must be shown that the employer delegated to the putative supervisor the authority to
direct the work and the authority to take corrective action, if necessary. It also must be
shown that there is a prospect of adverse consequences for the putative supervisor if
he/she does not take these steps.” Id. slip op. at 7.
“[T]o exercise ‘independent judgment,’ an individual must at minimum act, or effectively
recommend action, free of the control of others and form an opinion or evaluation by
discerning and comparing data.” Id. at 8. “[A] judgment is not independent if it is dictated
or controlled by detailed instructions, whether set forth in company policies or rules, the
verbal instructions of a higher authority, or in the provisions of a collective-bargaining
agreement.” Id. slip op. at 8. “On the other hand, the mere existence of company
policies does not eliminate independent judgment from decision-making if the policies
allow for discretionary choices.” Id. slip op. at 8 (citations omitted). Explaining the
definition of independent judgment in relation to the authority to assign, the Board stated
that “[t]he authority to effect an assignment … must be independent [free of the control
of others], it must involve a judgment [forming an opinion or evaluation by discerning
and comparing data], and the judgment must involve a degree of discretion that rises
above the ‘routine or clerical.’” Id. slip op. at 8 (citations omitted).
II. Facts and Analysis
My initial decision addresses the evidence relative to the definition of supervisory
authority set out in Section 2(11) of the Act. I found that there is no evidence that Marshall
possessed or exercised any authority to transfer, suspend, lay off, recall, promote, reward or
adjust the grievances of the warehouse employees. I found that the probative evidence failed to
establish that Marshall possessed or exercised the authority to hire, discharge, or discipline
employees.2 In addressing the authority to assign or responsibly to direct, I found no probative
evidence that Marshall exercised independent judgment in carrying out those duties.

2 Notwithstanding the scope of the Order of the Board remanding this case, the brief of the
Respondent seeks to revisit my determination that Marshall did not have the authority to hire or
discipline. I did not credit the testimony of either President Larry Marquez or employee Pierre
Jones in that regard. Although Marquez testified that Marshall had the authority to hire, “[h]e
produced no documentation in support of that testimony, and he named no employee
purportedly hired by Marshall.” Nor did I credit “the bare assertion of employee Pierre Jones
that Marshall hired him. His assertion was unaccompanied by any details, and he did not state
who informed him of his pay rate.” Although the Respondent revisits the issue of discipline,
there is no evidence that Marshal ever issued any discipline. As stated in my decision, although
the Respondent “purported to issue discipline in Marshall’s name … Marshall was unaware of
that fact and did not issue the discipline.” All discipline since 2003 was issued under the
signature of Service Manager Crystal Clouatre. “No discipline since 2003 has been issued in
Marshall’s name.”
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With regard to the authority to assign as set out in Oakwood Healthcare, Inc., supra,
there is no evidence that Marshall, other than in the context of an ad hoc assignment,
designated an employee to a place, appointed an employee to a time such as a shift or
overtime period, or gave significant overall duties. As the General Counsel points out, the only
assignment to different overall duties established in the record is the assignment, actually a
promotion, of employee Derrick Thornton from the position of driver helper to driver. President
Larry Marquez, not Marshall, made that assignment. There is no evidence that Marshall
assigned overtime. Drivers were required to finish their routes. If overtime was thereby incurred,
it was incurred by the requirement, not by assignment. As noted in my initial decision, Marshall
would fill in as necessary. He would direct that one employee assist another if assistance was
necessary. As the Charging Party points out in its brief, the factual context in which these
assignments occurred, dictated by circumstances, are “almost identical” to those discussed in
Croft Metals, Inc., supra, in which such actions were found not to constitute assignments under
the criteria of Oakwood Healthcare, Inc.
The Respondent, in its brief, argues that Marshall “set the schedule” of the employees.
The evidence does not support that argument. The only schedule change established in the
record is a period during which all deliveries on Thursday were made in the afternoon. Insofar
as it was immaterial to my decision, I simply noted that there was conflicting testimony
regarding when that schedule change occurred. Regardless of when that change occurred and
for how long it lasted, Marquez admitted that he made the change and employee Will Norton
testified that Marquez announced it at a meeting.
The Respondent cites the testimony of Marquez that Marshall could tell an employee not
to come in without his approval. I give that assertion no more credence that I do to the claim of
Marquez that Marshall had the authority to set starting times. As found in my initial decision,
Marshall did not have the authority to set starting times. If Marshall had that authority, Marquez
would have spoken with him on July 28, 2005, prior to discharging Marshall and the other
warehouse employees who did not report to work. The foregoing rationale applies equally to the
incredible contention that Marshall could tell an employee not to come in without his approval.
The Respondent, citing the testimony of employee Pierre Jones that Marshall would tell
him whether he was “off the next day or working the next day, depending on the amount of
deliveries, but it was always … [Marshall’s] call,” argues that Marshall “decided when the other
employees would and would not work.”3 Jones was in no position to know whether it was
Marshall’s “call” or whether he was simply relaying instructions. Driver helper Bobbie Marshall,
III, noted that, when work was slow, it was Marquez who would tell him whether to come in.
Marquez testified that the oversight of the delivery of furniture was the responsibility of Service
Manager Crystal Clouatre, that her job duties included “all aspects of customer service.” Asked
whether that included “the delivery of furniture,” Marquez answered “Yes, sir.” The foregoing is
confirmed by driver Derrick Thornton who was upset with Clouatre for going directly to Marquez
with customer complaints regarding drivers. As noted in my initial decision, Clouatre would
prepare the delivery tickets, and Marshall would simply pass them on to the drivers who had
preassigned routes, “[e]verybody has a certain area.”
Even if I were to have found that the decision as to whether an employee was not

3 In my initial decision, I incorrectly identify Jones as a former employee. Jones was a former
employee when the alleged discriminatees were discharged. Thereafter, he was rehired. He is
a current employee and was called as a witness by the Respondent.
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needed on a particular day was made by Marshall rather than Marquez or Clouatre, who did not
testify and who was responsible for all areas of customer service including “the delivery of
furniture,” that decision, predicated upon the “amount of deliveries,” was not shown to have
involved independent judgment. The Respondent adduced “no evidence regarding the factors
weighed or balanced” in making the decision. Croft Metals, Inc., supra slip op. at 6. It is
incumbent upon the party with the burden of proof to adduce “concrete evidence showing how
assignment decisions are made.” Franklin Home Health Agency, 337 NLRB 826, 830 (2002).
The Respondent, in its brief, revisits two incidents in which Marshall purportedly sent
employees home early. I addressed both of these in my initial decision. The one time
assignment in 2004 of driver Pierre Jones to sweep up, "do the trash,” in the warehouse before
leaving on his route was an ad hoc assignment. After performing it, Jones was to have left on
his route. Marshall did not send him home. On cross examination Jones admitted, “I chose to
go home.” Jones was not disciplined for not performing the job, and Marshall was not held
accountable. The incident regarding employee Will Norton related to one occasion when Norton
did not serve as a driver helper. As found in my initial decision, the testimony of Norton
establishes that, on that occasion, Marshall simply assigned him to work in the warehouse, and
Norton went home when his work was completed. The Respondent presented no evidence
regarding the circumstances surrounding this ad hoc assignment. As noted in my initial
decision, the record does not establish whether the driver whom Norton regularly assisted had
any deliveries to make that day or whether the deliveries required an assistant. As the Board
held in Croft Metals, Inc., sporadic temporary assignments dictated by circumstances “are
insufficient to confer supervisory status.” Id. slip op. at 6. There is no probative evidence that
Marshall assigned employees.
With regard to the authority responsibly to direct, the Board requires both direction and
accountability. In Golden Crest Healthcare Center, supra at fn. 11, the Board pointed out that a
finding of responsible direction requires both evidence of direction and accountability: “[W]hen
there is no showing of ‘direction,’ the Board need not reach the issue of ‘accountability,’ just as
when there is no showing of ‘accountability’ the Board need not reach the issue of ‘direction.’”
Direction requires that “it must be shown that the employer delegated to the putative
supervisor the authority to direct the work and the authority to take corrective action, if
necessary.” Direction is established by showing that the putative supervisor determines “what
job shall be undertaken next or who shall do it.” The authority to take corrective action obviously
falls below the threshold of formal discipline, since the authority to discipline, assuming
independent judgment in that regard, would, standing alone, establish supervisory authority.
The decision in Croft Metals, Inc., supra at fn. 13, suggest that “corrective action” would be
established by evidence of verbal warnings or by the lead person taking a recalcitrant employee
to the personnel office or to an acknowledged supervisor, actions that fall below the threshold
of formal discipline.
Marshall worked with the warehouse employees and oversaw the storage of items in the
warehouse and the loading of delivery trucks. Like the lead persons in Croft Metals, Inc., he
would “fill in to pick up the slack,” which could involve driving a delivery truck if a driver was
absent. If there were more deliveries than normal in a specific area, Marshall would alter the
route of a driver or send two trucks. Although the Board includes the authority to take corrective
action in its consideration of authority to direct, there is no probative evidence on this record
that Marshall possessed the authority to take corrective action. Nevertheless, insofar as
Marshall oversaw the work and who would do it, I find that the record establishes the initial
aspect of direction.
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With regard to accountability, the second requirement that is essential to a finding of
responsible direction, there is no evidence that Marshall was held accountable for the actions of
the employees that he purportedly supervised. No discipline was ever issued to Marshall either
for the actions of the employees that he purportedly supervised or for any other reason. Owner
Marquez intended to hold both purported supervisor Marshall and employee Reggie Austin
monetarily liable for throwing away a chair, stating that if he found out that “any one of you guys
threw that chair away, you all are going to pay for it.” Only Marshall and Austin were present.
Marquez was addressing Marshall in the same manner as he addressed Austin, as an
employee, not as a supervisor. After Service Manager Clouatre went directly to Marquez
regarding a customer complaint concerning driver Thornton, Thornton was questioned by
Marquez, not Marshall, regarding the complaint. Thus, as was the case in Golden Crest
Healthcare Center, there is no evidence that Marshall, the purported supervisor, “experienced
any material consequences to … [his] terms and conditions of employment, either positive or
negative, as a result of … [his] performance in directing … [employees].” Id. slip op. at 5.
With regard to independent judgment, even if I were to have found that Marshall
responsibly directed warehouse employees and drivers, he did not exercise independent
judgment when doing so. As set out in my initial decision, the routes of the delivery trucks were
prescribed by geographic area. As Marshall explained, “all the drivers know that you start from
wherever is closest to the warehouse … and just keep on going.” As already discussed, even if
I were to have found that Marshall decided whether an employee was not needed on a
particular day, the predicate for the determination, stated by driver Pierre Jones, was the
“amount of deliveries.” The further testimony of Jones that “we” would “refrain from sending two
trucks in the same area” unless “we had no choice but to run two trucks” confirms that these
were routine practices known to the drivers, practices based upon the objective factor of
delivery volume. The Respondent presented no evidence to the contrary. Thus, the undisputed
record evidence establishes that independent judgment was not required and was not exercised
with regard to these decisions. Similarly, Marshall’s showing an inexperienced driver how his
route should be set up was dependent upon the factors of time and distance which Marshall
knew from experience. The assignment of tasks in accordance with an Employer's set practice,
pattern or parameters, or based on such obvious factors as whether an employee's workload is
light, does not require a sufficient exercise of independent judgment to satisfy the statutory
definition.” Franklin Home Health Agency, supra, 830, citing Express Messenger Systems, 301
NLRB 651, 654 (1991) and Bay Area-Los Angeles Express, 275 NLRB 1063, 1075 (1985).
In Oakwood Healthcare, Inc., supra, the Board noted that “for an individual ‘responsibly
to direct’ … with ‘independent judgment,’ that individual would need to exercise ‘significant
discretion and judgment in directing' others.” Id. at fn. 38. The burden is upon the party alleging
supervisory status to establish that the putative supervisor exercises independent judgment by
submitting “concrete evidence showing how… decisions are made.” Franklin Home Health
Agency, supra at 830.
The evidence in this case does not establish that Marshall exercised independent
judgment. Marshall would set up routes based upon his “[g]eographic knowledge and time
frames,” how long it would take to get from point A to point B. Loading trucks was performed in
a set pattern, with the last deliveries loaded first and the first deliveries loaded last. As found in
Croft Metals Inc., supra, slip op at 6, any directions given in that regard would not rise above
the routine or clerical that the Act specifically states do not confer supervisory status. As
recognized by the Supreme Court in NLRB v. Kentucky River Community Care, Inc., 532 U.S.
706, 713 (2000). “[m]any nominally supervisory functions may be performed without the
‘exercis[e of] such a degree of … judgment or discretion … as would warrant a finding’ of
supervisory status under the Act. Weyerhaeuser Timber Co., 85 N.L.R.B. 1170, 1173 (1949).”
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The burden of establishing supervisory status is upon the party asserting that status.
The Respondent has not met that burden. The evidence in this case does not establish that
Warehouse Manager Marshall assigned, responsibly directed, or exercised independent
judgment.
III. Conclusions of Law
Having considered the record in view of the “refined … analysis to be applied in
assessing supervisory status” prescribed in Oakwood Healthcare, Inc., and the briefs filed by all
parties, I reaffirm my decision that the Respondent has failed to prove that Warehouse
Manager Bobbie Marshall, Jr., was a supervisor as defined in the Act. Accordingly, I issue the
following recommended.4
ORDER
The Respondent, CGLM, Inc., Jefferson, Louisiana, its officers, agents, successors, and
assigns, shall comply with the recommended Order set out in the Decision issued on August
28, 2006.
Dated, Washington, D.C. February 27, 2007
_____________________
George Carson II
Administrative Law Judge

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