CGLM, Inc.

National Labor Relations Board - Board Decisions

Aug 27, 2007

350 N.L.R.B. 974 (N.L.R.B. 2007)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
350 NLRB No. 77
974
CGLM, Inc. and Alan Kansas. Case 15–CA–17889
August 27, 2007
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS KIRSANOW
AND WALSH
On August 28, 2006, Administrative Law Judge George
Carson II issued the attached decision. The Respondent
filed exceptions and a supporting brief. The General
Counsel and the Charging Party filed separate answering
briefs.1 On December 15, 2006, the Board remanded the
case to the judge for further consideration in light of the
Board’s decisions in Oakwood Healthcare, Inc., 348
NLRB 686 (2006), Croft Metals, Inc., 348 NLRB 717
(2006), and Golden Crest Healthcare Center, 348 NLRB
727 (2006).
On February 27, 2007, Judge Carson issued the attached
supplemental decision. The Respondent filed exceptions
and a supporting brief. The General Counsel filed an an-
swering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decisions and the record
in light of the exceptions and the briefs and has decided to
affirm the judge’s rulings, findings, and conclusions2 and
to adopt the recommended Order.3

1 The General Counsel also filed a motion to strike the Respondent’s
exceptions, which was denied in the Board’s December 15, 2006 Order
remanding the proceeding to the judge.
2 In affirming the judge’s conclusion that the Respondent failed to
prove that Warehouse Manager Bobbie Marshall Jr., is an 2(11) super-
visor based on his having the authority to “assign” or “responsibly
direct” employees using “independent judgment,” we adopt the judge’s
analysis set forth in the supplemental decision rather than the analysis
set forth in the original decision.
In addition, in finding that the Respondent’s discharge of employees
Marshall Jr., Freddie Hughes, Derrick Thornton, Reginald Austin, and
Bobbie Marshall III violated Sec. 8(a)(1) of the Act, we do not rely on
the judge’s analysis under Wright Line, 251 NLRB 1083 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). The
Wright Line analysis is appropriately used in cases that turn on the
employer’s motive. As the judge himself noted, however, “the exis-
tence or lack of unlawful animus” is not material when “the very con-
duct for which employees are disciplined is itself protected concerted
activity.” Burnup & Sims, Inc., 256 NLRB 965, 976 (1981); accord:
Phoenix Transit System, 337 NLRB 510, 510 (2002) (finding Wright
Line inapplicable), enfd. mem. 63 Fed.Appx. 524 (D.C. Cir. 2003).
Moreover, there is no contention here that any of the discharged em-
ployees lost the Act’s protection. See Phoenix Transit System, supra;
Mast Advertising & Publishing, 304 NLRB 819 (1991). Accordingly,
because the Respondent dismissed the employees for their act of “going
on strike,” which constituted concerted protected activity, we find that
their discharge violated Sec. 8(a)(1).
3 We hereby adopt the judge’s Order that issued with the judge’s
August 28, 2006 decision. This is consistent with the judge’s February
27, 2007 supplemental decision, which ordered that the Respondent
comply with the Order set out in the August 28, 2006 decision.
ORDER
The National Labor Relations Board adopts the recom-
mended Order of the administrative law judge and orders
that the Respondent, CGLM, Inc., Jefferson, Louisiana, its
officers, agents, successors, and assigns, shall take the
actions set forth in the Order.
Charles R. Rogers, Esq., for the General Counsel.
Donald C. Douglas Jr., Esq., for the Respondent.
Alan Kansas, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
GEORGE CARSON II, Administrative Law Judge. This case was
tried in New Orleans, Louisiana, on June 26 and 27, 2006, pursu-
ant to a complaint that issued on February 23, 2006.1 The com-
plaint alleges the discharge of five employees for engaging in
protected concerted activity in violation of Section 8(a)(1) of the
National Labor Relations Act (the Act). The Respondent’s an-
swer denies any violation of the Act and pleads that one of the
discharged employees, Bobbie Marshall Jr., was a supervisor as
defined in the Act. I find that Bobbie Marshall Jr., was not a su-
pervisor and that the five employees were discharged for engag-
ing in protected concerted activity as alleged in the complaint.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed by
all parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, CGLM, Inc. (the Company), is a Louisiana
corporation with offices in Jefferson, Louisiana, where it is en-
gaged in the sale and delivery of furniture. The Company, in
conducting its business, annually purchases and receives at its
facility goods and materials valued in excess of $50,000 directly
from points located outside the State of Louisiana. The Respon-
dent admits, and I find and conclude, that it is an employer en-
gaged in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Company sells La-Z-Boy furniture. It has three show-
rooms in the New Orleans, Louisiana area, and a warehouse and
office in Jefferson, Louisiana. President and part Owner Larry
Marquez began selling La-Z-Boy furniture in 1989 at one show-
room. Two of his first employees were Bobbie Marshall Jr. and
Freddie Hughes. I shall, henceforth, refer to Bobbie Marshall Jr.,
as Marshall. The business expanded and, in 2005, consisted of
the three showrooms and the warehouse at which shipments of
furniture are received and from which deliveries are made to the
showrooms and to customers. Marshall, whose title was ware-
house manager, oversaw operations in the warehouse. Hughes,
designated as the service technician, repaired furniture and went

1 All dates are in 2005, unless otherwise indicated. The charge was
filed on December 5.
CGLM, INC. 975
to customers’ homes to correct any problems that customers
experienced with the furniture. Five other employees worked
from the warehouse including William (Will) Norton, Lionel
Robinson, and alleged discriminatees Derrick Thornton, Reginald
(Reggie) Austin, and Bobbie Marshall III, who is the son of
Warehouse Manager Marshall. All of the warehouse employees,
except for Norton, are African-American.
Derrick Thornton recalled that Crystal Clouatre was hired as
service manager in 2004. She worked in an office adjacent to the
warehouse floor. Marquez worked out of a private office upstairs.
Clouatre received calls from customers and the three showrooms
regarding their needs. She prepared and presented delivery tickets
to Marshall who passed them on to the drivers who had preas-
signed routes to fill the requests. Clouatre was assisted by em-
ployee Tiffany Meliet. The complaint alleges, the Respondent’s
answer admits, and documentary evidence establishes that
Clouatre is a supervisor. Marquez, Clouatre, and Meliet are
white.
The Company has three delivery trucks, but in the summer of
2005 only two were being operated. The drivers were Derrick
Thornton, assisted by helper Bobbie Marshall III, and Lionel
Richardson, assisted by Will Norton. Reggie Austin, who has a
vision problem, worked in the warehouse throughout the day. If
necessary, Warehouse Manager Marshall would drive.
The year 2004 was not profitable for the Company. Marquez
typically informed employees in May of any increase in pay that
they were to receive. In May 2005, he individually told each
warehouse employee that there would be no pay increase. Em-
ployees Austin and Marshall III, were upset by the absence of a
pay increase because both of them understood that a white ware-
house employee identified as “Scott,” who had begun working
after them but was no longer employed, had been hired at $8 an
hour. Austin had been hired at $6.50 an hour and Marshall III,
had been hired at $6 an hour. Neither was being paid $8 an hour.
Austin was also upset with what he considered to be favoritism
towards Norton who, he testified, would sit in the office talking
to Clouatre while the African-American employees were work-
ing. On one occasion when he and Norton were sitting down,
Clouatre came out with a service order, said nothing to Norton,
and asked Austin why he was sitting down. Austin replied that he
was taking a break and that Norton had just got to work. He
asked Clouatre, “Why didn’t you question him?” He reported the
foregoing incident to Marquez who said, “Reg, are you sure you
weren’t seeing things?” Austin answered, “[I]t wasn’t what I saw,
[i]t was what I heard.”
In the spring of 2005, Marquez informed service technician
Hughes that, henceforth, Service Manager Clouatre would order
the parts that he used to repair the furniture. Hughes did not pro-
test, testifying that “he’s the boss,” but pointed out the difficulty
caused by the change because Clouatre “didn’t know . . . the
parts.”
Thornton was upset with the fact that, before first speaking
with the driver regarding customer complaints, Clouatre “would
go straight to Larry [Marquez] and that when Marquez “thought
the warehouse employees were doing something wrong he was
ready to punish us . . . [but] [a]s soon as he found out it was Crys-
tal [Clouatre], everything was fine and dandy.”
On July 26, Clouatre directed Marshall to throw out a chair
that had been repaired but for which the customer had not called.
Marshall initially objected, but thereafter compiled. Shortly
thereafter, Marshall came looking for the chair because the cus-
tomer had called for it. Marshall explained that Clouatre had
directed that it be thrown out. Marquez said that he did not be-
lieve that, and, as he was leaving, stated 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. Later that
day, Marquez told Marshall that Clouatre admitted that she told
him to throw out the chair.
Marshall’s description of the foregoing encounter avoided any
racial implications. Employee Reggie Austin, who witnessed the
foregoing conversations, testified that he was concerned that
when Marquez thought that an African-American employee was
responsible for the throwing out of the chair, Marquez intended
to hold him financially responsible but after Service Manager
Clouatre admitted her responsibility, Marquez said nothing about
anyone having to pay.
The next day, July 27, Tiffany Meliet called Marshall regard-
ing a “pouch” that contained orders from one of the showrooms.
Marshall testified that he checked the trucks but did not find the
pouch, and reported his effort to Meliet and Clouatre. Austin
recalled that he and Marshall were putting up furniture and that
Marshall told Clouatre that he could not help look for the pouch,
that it was her responsibility. Regardless of whether Marshall did
or did not attempt to locate the pouch, Marquez heard Marshall
and Clouatre arguing and came to see about the problem. I credit
Austin’s recollection of the ensuing conversation that began with
Marquez asking Marshall what was “going on with your atti-
tude.” Marshall replied that he was trying to put up furniture.
More words were exchanged. Marshall stated that it “looks like
this Company is becoming one-sided.” Austin muttered, “Yes,
Bobbie, you’re right,” and Clouatre said, “Reggie, you shut up.”
Marquez asked Marshall what he meant, and Marshall referred to
the incident the previous day, stating that when Marquez
“thought it was one of us that threw the chair away, you were
ready to make one of us pay for it, [but] [w]hen you found out it
was Crystal [Clouatre], you immediately covered up for her . . .
[and] you weren’t man enough to apologize.”
Marshall confirmed that he made the “one-sided” comment
and recalled that Marquez then stated, “[W]e’ve got to work
together, but you need to start listening to them,” referring to
Clouatre and Meliet. Marshall mentioned a prior conversation in
which his seniority had been noted and argued that Marquez was
“telling me that I’ve go t to listen to them now.” More words
were exchanged, and Marshall stated that he was just going to do
what he had to do. Marquez asked, “What do you have to do?”
Marshall answered, “That’s my business.”
Marquez does not dispute the substance of the foregoing con-
versation. He recalls telling Marquez, “We got to work this thing
out,” and that Marshall replied that there was no working it out.
He stated that the Company could not have two managers that
were not going to talk to each other, and Marshall replied that he
knew “how to handle this.” He asked what Marshall meant, and
he replied, “Well, you’ll see.” He did not deny that Marshall
accused the Company of becoming “one-sided.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD976
The events critical to this proceeding occurred the following
day, July 28.
B. Supervisory Status
Before addressing the events of July 28, it is necessary to de-
termine the supervisory status of Warehouse Manager Marshall.
Marshall’s supervisory title and status as a salaried employee,
even though he continued to punch a timeclock, “are merely
secondary indicia of supervisory status.” John N. Hansen, Co.,
293 NLRB 63, 64 (1989). As found in that case, “such evidence
is insufficient to prove that he exercises independent judgment in
performing any of the functions set forth in Section 2(11) of the
Act.” Marshal’s oversight of warehouse operations involved
assuring that furniture received at the warehouse was properly
stored and that the furniture items from inventory were loaded
onto the delivery trucks that carried them to customers or show-
rooms. The delivery slips were prepared by Service Manager
Clouatre. Marshall physically moved furniture and, when neces-
sary, would drive a delivery truck.
Section 2(11) of the Act provides that a supervisor is “any in-
dividual having authority, in the interest of the employer, to hire,
transfer, suspend, lay off, recall, promote, discharge, assign, re-
ward 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 foregoing the exercise of such
authority is not of a routine or clerical nature, but requires the use
of independent judgment.” The burden of establishing that an
individual is a supervisor is upon the party asserting the supervi-
sory status of the individual in question.
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. Marquez
determined all issues relating to employee compensation. As
already noted, he individually informed the employees in May
that they would not be receiving a raise.
Despite Marshall’s absence of authority relating to compensa-
tion, Marquez testified that Marshall had the authority to hire. He
produced no documentation in support of that testimony, and he
named no employee purportedly hired by Marshall. I do not
credit that testimony. Although Marshall provided some appli-
cants with applications, the record establishes that all hiring deci-
sions were made by Marquez. Driver Derrick Thornton, after
receiving an application and speaking with Marshal, was inter-
viewed by Marquez who told him to start working as a driver
helper. When a driver was terminated for stealing fuel, Marquez
informed Thornton that he would become a driver. Driver helper
Will Norton was hired by Marquez. Reginald Austin sought work
at one of the showrooms and was referred directly to Marquez,
who interviewed and hired him. I do not credit the bare assertion
of former 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. Bobbie Marshall III, was in-
terviewed and hired by Marquez at $6 per hour. Thereafter, Mar-
shall III, learned that the employee identified as Scott was mak-
ing $8 an hour. When questioned as to whether he approached
Marquez about the disparity, Marshall III, explained that he did
not because Marquez “told us to not let anybody know how much
you were making, to keep it to yourself. So I didn’t want to go in
and get him [Scott] in trouble.” Marquez did not deny the forego-
ing testimony which confirms that, in addition to the hiring deci-
sion, Marquez set individual pay rates that differed among the
employees.
Although Marquez asserted that Marshall had the authority to
discharge employees, his testimony in that regard was uncon-
vincing, and he admitted that Marshall had never done so.
With regard to discipline, the Respondent introduced into evi-
dence two documents reflecting discipline issued to two employ-
ees that contain Marshall’s name. A typed memorandum to em-
ployee Charles Felton, dated March 21, 2003, although stating
that it is from Marshall, is written in the third person, stating that,
on March 20, 2003, Felton was absent and did not call or leave a
message for “Bobbie or Larry that you were not going to be
here.” The typed memorandum to employee Pierre Jones regard-
ing tardiness on September 20, 2003, purporting to be from
“Bobbie Marshall, Warehouse Manager and Larry Marquez,
Owner,” bears a handwritten correction in which the last name of
“Bobbie” has been stricken and the name “Marshall” has been
written in.
Marshall denied seeing either of the foregoing documents until
they were presented by the Company in the investigation of this
case, and he denied that he issued the foregoing discipline. Mar-
shall’s signature does not appear upon either document whereas
other documents in the record reflecting discipline bear the signa-
ture of the individual who issued it. I credit Marshall’s denial, but
I do not question the authenticity of the documents. Thus, it ap-
pears that the Company, in 2003, purported to issue discipline in
Marshall’s name although Marshall was unaware of that fact and
did not issue the discipline.
Marquez did not address the absence of Marshall’s signature
upon the two foregoing documents. With regard to discipline, he
reported that Marshall informed him that he had spoken to em-
ployee Austin about spending too much time on the telephone.
Documentary discipline to Austin for spending too much time on
a telephone is dated June 21 and was issued by Service Manager
Clouatre. No discipline since 2003 has been issued in Marshall’s
name.
Pierre Jones did not testify regarding the discipline reflected
upon the document dated September 20, 2003, that was purport-
edly issued by Marshall. Jones claimed that Marshall sent him
home and recounted an incident in 2004 upon which Marshall
had directed him to sweep up in the warehouse prior to leaving
on his route. Jones protested that doing so would cause him to
run late. An argument ensued. Although Jones initially testified
that Marshall sent him home, on cross examination he admitted,
“I chose to go home.” There is no evidence that Jones was disci-
plined for his failure to sweep or his leaving.
Employee Will Norton testified to an occasion upon which
Marshall purportedly sent him home early; however, his testi-
mony establishes that, on the occasion in question, Marshall sim-
ply assigned Norton to work in the warehouse and that he went
home when his work was completed. The record does not estab-
lish whether the driver who Norton regularly assisted had any
deliveries to make that day or whether the deliveries required an
assistant. The only discipline reflected in the record relating to
Norton is a warning on June 28 for being tardy. That discipline
CGLM, INC. 977
was issued by Service Manager Crystal Clouatre, not by Mar-
shall.
There is no evidence that Marshall ever issued any discipline
and there is no evidence that discipline was issued in his name
after 2003. Clouatre, who issued discipline to warehouse em-
ployees Austin and Norton in 2005, did not testify.
There is no credible evidence that Marshall possessed or exer-
cised the authority to hire, fire, or discipline employees.
Regarding the assignment and direction of employees,
Marquez described Marshall’s duties as supervising “the ware-
house in getting merchandise in, getting it racked, getting it
pulled for the delivery trucks, getting the delivery trucks routed.”
There is no probative evidence that Marshall exercised independ-
ent judgment in carrying out those duties. The routes of the deliv-
ery trucks were prescribed by geographic area. As Marshall ex-
plained, “all the drivers know that you start from wherever is
closest to the warehouse . . . and just keep on going.” Pierre Jones
testified that Marshall would inform the drivers whether they
would be “off the next day or that you’re working the next day,
depending upon the amount of deliveries.” He confirmed that the
routing was routine, that “we” would “refrain from sending two
trucks in the same area” unless “we had no choice but to run two
trucks” because of the volume of deliveries. “Proof of independ-
ent judgment in the assignment of employees entails the submis-
sion of concrete evidence showing how assignment decisions are
made. 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, 337
NLRB 826, 830 (2002), citing Express Messenger Systems, 301
NLRB 651, 654 (1991), and Bay Area-Los Angeles Express, 275
NLRB 1063, 1075 (1985).
When Marquez was questioned regarding Marshall’s respon-
sibility for routing, the only example he cited was his assisting an
inexperienced driver “by spreading out the sheets, getting the zip
codes,” and explaining that “this Metairie goes along with this
Metairie, and this Kenner goes behind this Metairie.” Marshall
would “put them in order because he had been doing it for so
long” based upon his “[g]eographic knowledge and time frames,”
how long it would take to get from point A to point B based upon
“17 years of experience.” The direction thus provided falls short
of the independent judgment contemplated by the Act. See Ex-
press Messenger Systems, supra. The Supreme Court, in NLRB v.
Kentucky River Community Care, Inc., 532 U.S. 706 (2000).
recognized that “[m]any nominally supervisory functions may be
performed without the “exercis[e of] such a degree of . . . judg-
ment or discretion . . . as would warrant a finding” of supervisory
status under the Act. Weyerhaeuser Timber Co., 85 1170, 1173
(1949), and, citing Providence Hospital, 320 717, 729 (1996),
that “supervisory authority does not include the authority of an
employee to direct another to perform discrete tasks stemming
from the directing employee’s experience, skills, training, or
position.” Id. at 713, 714–715 fn. 1. As pointed out in Unifirst
Corp., 335 NLRB 706, 713 (2001), “If any authority over some-
one else, no matter how insignificant or infrequent, made an
employee a supervisor, our industrial composite would be pre-
dominantly supervisory. Every order-giver is not a supervisor.
Even the traffic director tells the president of a company where to
park his car. NLRB v. Security Guard Service, 384 F.2d 143, 151
(5th Cir. 1967).”
I reject any argument that Marshall possessed genuine supervi-
sory authority. The fact that Marquez stated his intention to hold
this purported supervisor monetarily liable for the throwing out a
chair until he learned that the action had been directed by Service
Manager Clouatre further confirms that Marshall was not vested
with supervisory authority and did not exercise independent
judgment on behalf of the Company.
Marquez testified that Marshall had the authority to set the
starting time of warehouse employees. That assertion is belied by
his discharging Marshall as well as the other warehouse employ-
ees who did not report on the morning of July 28 without ever
speaking with Marshall to determine whether he had changed the
starting time. Marshall had no more authority to set reporting
times without the approval of Marquez than he did to throw out a
chair without being held financially responsible. I find and con-
clude the Respondent failed to prove that Marshall was a supervi-
sor as defined in the Act.
C. Facts
On the evening of July 27, following the encounter in which
Marshall informed Marquez that he was going “to do what I’ve
got to do,” Marshall contacted the warehouse employees and
requested that they meet with him behind the warehouse the fol-
lowing morning. All of the employees did so. Although there is
conflicting testimony regarding Thursday reporting times, docu-
mentary evidence establishes that all warehouse employees ex-
cept for Freddie Hughes had been reporting about 7:30 a.m. on
Thursdays for several weeks preceding July 28.
All of the warehouse employees met behind the warehouse on
the morning of July 28. Although the employees do not totally
agree regarding when each arrived or whether a particular em-
ployee arrived before or after another employee, there are no
significant inconsistencies. More significantly, there is no ques-
tion that Marquez was informed that “all of the employees” were
present “behind the warehouse” and “were going on strike.”
Marquez testified that he terminated all of the employees because
they did not call in and failed to report to work, the reasons stated
on the termination slips. I do not credit that testimony.
Although Marshall recalls asking the employees to meet at
7:30 a.m., employee Will Norton, who contends that he reported
to work on time, testified that Marshall requested he come at 7
a.m. Norton recalled that, when he arrived, only Marshall,
Freddie Hughes, and Reggie Austin were present. He asked Mar-
shall what was going on, and Marshall replied, “We’re going on
strike.” Norton stated that the employees were crazy, and Mar-
shall stated that they were “fed up with all this.” Hughes con-
curred. Norton made no further inquiry, repeated that the em-
ployees were crazy, stated that he had bills to pay, and left. As he
was leaving, Norton says that he asked Marshall whether he
should tell Marquez where the employees were and that Marshall
replied, “No, don’t let him know anything.”
Marshall recalls telling Norton, “[T]hat’s really up to you. It’s
not a problem.” Employee Derrick Thornton testified that he was
present when Norton was present and that Norton left to report to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD978
work at 7:50 or 8 a.m. The discrepancy regarding time is immate-
rial.
Norton denies having any conversation with Marquez regard-
ing the employees until after Service Manager Clouatre, who had
left the warehouse on an errand, spoke with Marquez.
After Norton left, Clouatre drove up and parked where she
could observe the employees. She called driver Derrick Thorn-
ton, who carried a two-way radio, and asked what he was doing.
Thornton replied that “we were sitting back here waiting to talk
to Larry.”
Marquez admits that, between 8:30 and 8:45 a.m., he received
a call from Clouatre in which she informed him that “the ware-
house employees . . . [were] behind the warehouse sitting in the
back of Bobbie’s [Marshall’s] truck.” Upon receiving that call,
Marquez told Norton what Clouatre had said, and Norton re-
ported that Marshall had called him the previous evening about
attending a meeting, that he had been at the meeting and “they
were all going on strike.” Norton stated that he wasn’t going on
strike, that “they were going on strike, but he wasn’t doing it.”
Norton confirms that he informed Marquez that the “guys had
called me into a meeting” and told him that they were “going on
strike and tried to get me to go on with them.” Marquez asked if
Norton knew why and, without waiting for a response, answered
his own question, stating that “it was probably about the fight that
Bobbie and Crystal had gotten into.”
Marquez testified that, notwithstanding his receipt of the fore-
going information at between 8:30 and 8:45 a.m., he continued
loading trucks for up to an hour. He was vague about the time,
estimating, “Could have been 30, 40, 50, 60 minutes.” He made
no attempt to contact purported supervisor Marshall, who had a
telephone so that he could be contacted at any time. About 9:45
a.m., “[s]omewhere around that time,” Marquez went to his of-
fice and wrote out termination slips for all of the warehouse em-
ployees except Norton.
Service Manager Crystal Clouatre did not testify.
Each termination slip, including the termination slip of pur-
ported Supervisor Marshall, states: “Did not call or show up for
work on 7–28–05.” The company employee handbook requires
employees to notify their supervisor by telephone at least one
hour before reporting time and that if an employee does not “re-
port as required for three (3) consecutive days” the employee will
be deemed to have resigned and “your employment will be ter-
minated.” The handbook also provides for immediate discharge
for “[f]ailure to return to work for over three (3) working days
without notifying the Company (considered as a resignation).”
Employees are subject to a progressive disciplinary system that
provides for a verbal counseling, written warning, and suspension
or termination. Employees had, prior to July 28, received disci-
pline for tardiness and unexcused absences without calling in.
Prior to July 28, no employee had ever been terminated for a
single instance of failure to call in or a single unexcused absence.
Service technician Freddie Hughes, who had been employed
for 17 years, credibly testified that he reported to work depending
upon the number of service calls that he had to make. Thus, he
had no set reporting time. He testified that on July 28, he was to
report at noon to perform afternoon service calls. Documentary
evidence establishes that, on the four Thursdays in May, Hughes
had reported to work after 10 a.m. twice, that on the five Thurs-
days in June he had been on vacation on one of the Thursdays
and reported after 10 a.m. on two of the remaining four Thurs-
days. Marquez, who prepared the termination slips about 9:45
a.m., admitted that he did not check with anyone to determine
when Hughes was “supposed to be in” on July 28 prior to dis-
charging him because he “[d]id not call or show up.”
After Clouatre spoke to Thornton, she returned to the ware-
house. The employees continued to discuss their concerns and
Marshall sought to get them organized so that when they talked
to Marquez, “we’d know what to say, not to get hostile or any-
thing like that.” He sought to assure that the employees would
present themselves correctly in order to “go in there and talk . . .
because basically some of them were really kind of teed off about
it.”
Employee Lionel Richardson, who was rehired, left the meet-
ing at some point after 10 a.m., and went to the warehouse office.
He spoke with Marquez who informed him that he was giving
him a pink slip and that the remaining warehouse employees had
also been terminated. Richardson returned to the group and in-
formed them that they had been terminated. Marshall and the
remaining employees came to the warehouse office and retrieved
their termination notices. Employees Derrick Thornton and Bob-
bie Marshall III, sought to speak with Marquez, but were denied
entry to his upstairs office by his secretary. Whether Marquez
was present and refused to meet or had left to make deliveries is
not established. It is undisputed that Marquez terminated the
warehouse employees without first speaking with any of them.
Employee Reginald Austin came to the warehouse to obtain
his final check and spoke with Marquez regarding the correctness
of the hours shown. Austin was, of course, not paid for any time
on July 28. As he and Marquez reviewed his time, Marquez re-
ferred to July 28 as the “day you all pulled that stunt.” Austin
replied, “Mr. Larry, you know that wasn’t a stunt. You knew we
were back there waiting to talk to you.” Marquez replied,
“[W]ell, that’s all irrelevant right now.” Marquez did not deny
the foregoing conversation.
D. Contentions of the Parties
The General Counsel argues that the Respondent was aware of
the employees’ activity based upon the reports of Clouatre and
Norton, that the testimony of the employees establishes that their
discussion, which included perceived favoritism, racism, and
wages, related to working conditions and was protected and con-
certed, and that the absence of a formal demand did not cause
them to lose the protection of the Act.
The Respondent, in its brief, argues that the predicate for the
failure of the employees to report to work on July 28 was
Marquez’s denial of a request by Marshall for a loan. The Re-
spondent’s answer pleads that Marshall “[i]n calling the meeting
. . . was improperly attempting to retaliate against Marquez” for
refusing Marshall’s request for a loan. Marshall admits request-
ing and being denied a loan in late June. I do not credit the testi-
mony of Marquez that the request was on Monday, July 25. Re-
gardless of the date, there is no evidence whatsoever that the
meeting of the employees related in any way to denial of a loan.
The Respondent argues that the activity in which the employ-
ees engaged was not protected in that the “overwhelming com-
plaint voiced by the charging parties was their dislike of Crystal
CGLM, INC. 979
Clouatre,” and there were no immediate safety, environmental, or
other such issues.
Contrary to the foregoing argument, the issue was not dislike
of Clouatre, it was inequitable treatment of the African-American
warehouse employees. As explained by Thornton, when Marquez
“thought the warehouse employees were doing something wrong
he was ready to punish us . . . [but] [a]s soon as he found out it
was Crystal [Clouatre], everything was fine and dandy.” Simi-
larly, when Austin complained that Clouatre was exhibiting fa-
voritism towards Norton, Marquez asked if he was not “seeing
things,” and Austin replied, “[I]t wasn’t what I saw, [i]t was what
I heard.” On July 27, Marshall accused the Company of becom-
ing “one-sided,” citing the threat of Marquez to have the respon-
sible warehouse employee pay for the chair, but not mentioning
payment when he learned that Clouatre had been responsible.
The Respondent’s brief does not cite or discuss case authority
that establishes that activity related to perceived favoritism or
racial discrimination is directly related to working conditions and
is protected activity. See Titanium Metals Corp., 340 NLRB 766,
773 (2003) and Dearborn Big Boy No. 3, Inc., 328 NLRB 705,
710 (1999).
The Respondent asserts that there is not “a scintilla of the nec-
essary evidence that the employer was aware of any protected
activity.” I disagree. Although the Respondent’s brief acknowl-
edges that Marquez was informed that the warehouse employees
were “behind the building,” it does not recite Norton’s report that
“they were all going on strike.” At no point does the brief ac-
knowledge that Marquez admitted being told that the employee
were on strike.
E. Analysis and Concluding Findings
The complaint alleges that, on July 28, the employees met for
their mutual aid and protection to discuss the absence of a wage
increase, perceived favoritism and racial prejudices, treatment by
supervision and other working conditions; that they ceased work
concertedly and engaged in a strike; that the Respondent believed
that they had ceased work concertedly and engaged in a strike;
and that it terminated them for that reason.
Employee activity is concerted when it is “engaged in with or
on the authority of other employees,” and a respondent violates
Section 8(a)(1) of the Act if, having knowledge of an employee’s
concerted activity, it takes adverse employment action that is
“motivated by the employee’s protected concerted activity.”
Meyers Industries (Meyers I), 268 NLRB 493, 497 (1984). All of
the warehouse employees met Marshall behind the warehouse on
the morning of July 28. Norton left. The remaining employees
discussed their various complaints regarding perceived favoritism
and discrimination and other working conditions and were coun-
seled by Marshall to present those complaints in a manner that
was not hostile.
Marquez admits that Norton informed him that the employees
“were going on strike, but he wasn’t doing it.” When Marquez
asked Norton whether he knew why, he answered his own ques-
tion stating that “it was probably about the fight that Bobbie and
Crystal had gotten into.” That argument concluded with the con-
frontational exchange in which Marshall accused the Company of
becoming “one-sided,” an assessment with which Austin agreed
only to be told by Clouatre to “shut up.” Marshall then cited the
chair incident, telling Marquez that, when he thought a ware-
house employee was responsible for throwing away the chair,
“you were ready to make one of us pay for it, [but] [w]hen you
found out it was Crystal [Clouatre], you immediately covered up
for her . . . [and] you weren’t man enough to apologize.” The
foregoing clearly expressed perceived inequity in the treatment
by management of the African-American warehouse employees.
A respondent’s belief that protected activity has occurred is
controlling. Henning and Cheadle, 212 NLRB 776, 777 (1974).
Marquez believed that the employees were on strike, as reported
by Norton. He informed Norton that he believed that the strike
related to the argument between Marshall and Clouatre the previ-
ous day that concluded with Marshall’s statements expressing
disgruntlement relating to the treatment of warehouse employees.
Although Marquez did not admit that Clouatre informed him that
employee Thornton had stated that the employees were waiting
to speak to him, he did not deny, as stated to him by employee
Austin, that he “knew we were back there waiting to talk to you.”
As counsel for the General Counsel correctly points out, “Re-
spondent cannot blind itself to the surrounding action and claim
that it did not know the walkout was based upon a protected ac-
tivity.” Virginia Mfg. Co., 310 NLRB 1261 (1993), citing Eaton
Warehousing Co., 297 NLRB 958, 961-962 (1990), enfd. mem.
919 F.2d 141 (6th Cir. 1990).
The concerns of the employees differed. Austin and Marshall
III, were concerned about pay. Austin was also concerned with
what he regarded as favoritism toward Norton, a concern he had
expressed to Marquez. Hughes was upset with the removal of his
responsibility for ordering the parts necessary for him to perform
his job. Thornton was concerned that Clouatre would take a
white person’s word over an African-American’s word. Marshall
was seeking to assure a presentation of the various grievances
that would not be hostile, which included his concern that the
Company was becoming “one-sided.” “The Act is concerned
with concerted activity, not concerted thought. Any contention
that a failure of all participants in a group activity to entertain
identical reasons for engaging in that activity renders the activity
individual rather than concerted is plainly without merit.” Ad-
vance Cleaning Service, 274 NLRB 942, 945 (1985).
The Respondent argues that Marquez expressed no animus and
discharged the employees because of their failure to report to
work and not calling in. As explained in Burnup & Sims, Inc.,
256 NLRB 965 (1981), “the existence of or lack of unlawful
animus” is not material when “the very conduct for which em-
ployees are disciplined is itself protected concerted activity.” Id.
at 975. “Calling a strike . . . an absence from work justifying
discharge is to write Section 13 out of the Act.” Anderson Cabi-
nets, 241 NLRB 513, 518, 519 (1979).
Section 13 of the Act provides that “[n]othing in this Act . . .
shall be construed so as either to interfere with or impede or di-
minish in any way the right to strike. . . .”
The fact that the employees gave no advance notice of their in-
tention is immaterial. The failure of the employees to report to
work was “a concerted action for mutual aid and protection.”
Lisanti Foods Inc., 227 NLRB 898, 902 (1977). See also Iowa
Packing Co., 338 NLRB 1140, 1144 (2003).
The Respondent argues that it had no knowledge of the reason
that the employees did not report to work. Marquez knew the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD980
employees were behind the warehouse, and he had been told that
they were going on strike. “[T]he employees’ failure to make any
specific demand or to notify the Respondent of their reasons for
their cessation of work does not render their conduct unpro-
tected.” Eaton Warehousing Co., supra at fn. 1. In this case,
Marquez “knew we [the employees] were back there waiting to
talk to you.” He correctly believed that the employees’ action
related to the argument the previous day. Marquez had intervened
in that argument and been told by Marshall that he was con-
cerned that the Company was “one-sided.” The fact that the em-
ployees never made a demand in support of their concerted action
is immaterial. As stated in South Central Timber Development,
Inc., 230 NLRB 468, 472 (1977):
It is well settled that a walkoff to protest working conditions is
a protected concerted activity. NLRB. v. Washington Aluminum
Co., 370 U.S. 9 (1962). It is protected even if the employer was
unaware of its purpose, for as the Court said at 14: “We cannot
agree that employees necessarily lose their right to engage in
concerted activities under §7 merely because they do not present
a specific demand upon their employer to remedy a condition
they find objectionable. The language of §7 is broad enough to
protect concerted activities whether they take place before, after,
or at the same time such a demand is made.” Thus, it is clear that,
even if the purpose of the walkoff is not clearly communicated to
the employer at the time, if from surrounding circumstances the
employer should reasonably see that improvement of working
conditions is behind the walkoff, it may not penalize the employ-
ees involved without running afoul of Section 8(a)(1).
In this case, the Respondent gave no opportunity to the em-
ployees to present a demand. Employee Richardson went to the
office and discovered that he and the others had already been
discharged. When Marshall and the other employees arrived,
Marquez either had already left or informed his secretary not to
let in the employees.
Marquez terminated Marshall and Hughes, as well as the other
three warehouse employees and Richardson, purportedly because
they “[d]id not call in or show up.” Marquez, although claiming
that Marshall had the authority to set the starting time for em-
ployees, did not seek to confirm with him whether he had given
the employees permission to report later than 7:30 a.m. Hughes
had no regular starting time and was to have reported at noon. He
committed no offense. Marquez discharged him without check-
ing with anyone to determine when Hughes was “supposed to be
in.” The Respondent’s brief does not address the discharge of
Hughes.
The General Counsel established that the protected concerted
activity in which the warehouse employees were engaged was the
motivating reason for their discharges. Any claim to the contrary
is refuted by the discharge of Hughes who committed no offense
but participated in the concerted activity and was discharged in
the same manner as the other participants.
The General Counsel presented a prima facie case. Pursuant to
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), the burden of going forward shifts to the Respondent
to demonstrate that it would have taken the same action in the
absence of the employees’ protected conduct. The Respondent
has not sustained that burden. The Respondent disregarded its
Employee Handbook, which provides for progressive discipline
and termination upon three consecutive unexcused absences.
Prior to July 28, discipline had been meted out in accord with the
Handbook. Prior to July 28, no employee had ever been termi-
nated for a single failure to call in or a single unexcused absence.
The Respondent has not established that it would have taken the
same action against these employees in the absence of their pro-
tected concerted activity.
I find that the Respondent discharged these employees because
it believed that they were engaged in a strike, which is protected
concerted activity. I find it particularly disheartening that
Marquez, having worked with Marshall and Hughes for over 17
years, terminated purported supervisor Marshall and service
technician Hughes, who was not late for work, without speaking
with either of them. Marquez’ termination of Marshall, who had
a telephone upon which he could be contacted 24 hours a day,
confirms that he was not vested with any genuine supervisory
authority and that Marquez did not consider him to be a supervi-
sor. The inclusion of these two employees in the Respondent’s
unprecedented terminations upon a first offense of failure to call
in or report to work constitutes irrefutable evidence that the em-
ployees were terminated for “going on strike.” The Respondent
retaliated against these employees because they engaged in pro-
tected concerted activity, and the Respondent has presented no
credible evidence that it would have taken the same action in the
absence of the protected concerted activity in which the employ-
ees engaged. I find the discharges of the employees violated Sec-
tion 8(a)(1) of the Act as alleged in the complaint.
CONCLUSION OF LAW
By discharging Bobbie Marshall Jr., Freddie Hughes, Derrick
Thornton, Reginald Austin, and Bobbie Marshall III, because
they engaged in protected concerted activities, the Respondent
has engaged in unfair labor practices affecting commerce within
the meaning of Section 8(a)(1) and Section 2(6) and (7) of the
Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectuate
the policies of the Act.
The Respondent having discriminatorily discharged Bobbie
Marshall Jr., Freddie Hughes, Derrick Thornton, Reginald Aus-
tin, and Bobbie Marshall III, it must offer them reinstatement and
must make them whole for any loss of earnings and other bene-
fits, and to make each employee whole for any loss of earnings
and other benefits. Abilities & Goodwill, Inc., 241 NLRB 27
(1979), enf. denied on other grounds 612 F.2d 6 (1st Cir. 1979).
Backpay shall be computed on a quarterly basis from July 28,
2005, to date of proper offer of reinstatement, less any net interim
earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
The Respondent will also be ordered to post an appropriate no-
tice.
CGLM, INC. 981
On these findings of fact and conclusions of law and on the en-
tire record, I issue the following recommended2
ORDER
The Respondent, CGLM, Inc., Jefferson, Louisiana, its offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from:
(a) Discharging employees for engaging in protected concerted
activities.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectu-
ate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Bobbie
Marshall Jr., Freddie Hughes, Derrick Thornton, Reginald Aus-
tin, and Bobbie Marshall III, full reinstatement to their former
jobs or, if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any other rights
or privileges previously enjoyed.
(b) Make Bobbie Marshall Jr., Freddie Hughes, Derrick
Thornton, Reginald Austin, and Bobbie Marshall III, whole for
any loss of earnings and other benefits suffered as a result of the
discrimination against them, in the manner set forth in the rem-
edy section of the decision.
(c) Within 14 days from the date of this Order, remove from its
files any reference to the unlawful discharges of Bobbie Marshall
Jr., Freddie Hughes, Derrick Thornton, Reginald Austin, and
Bobbie Marshall III, and within 3 days thereafter notify the em-
ployees in writing that this has been done and that the discharges
will not be used against them in any way.
(d) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board or
its agents, all payroll records, social security payment records,
timecards, personnel records and reports, and all other records,
including an electronic copy of such records if stored in elec-
tronic form, necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Within 14 days after service by the Region, post at its facil-
ity in Jefferson, Louisiana, copies of the attached notice marked
“Appendix.”3 Copies of the notice, on forms provided by the
Regional Director for Region 15, after being signed by the Re-
spondent’s authorized representative, shall be posted by the Re-
spondent and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the Respon-
dent to ensure that the notices are not altered, defaced, or covered

2 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 pur-
poses.
3 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
by any other material. In the event that, during the pendency of
these proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Respondent
shall duplicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed by the
Respondent at any time since July 28, 2005.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board had found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties
WE WILL NOT discharge any of you for engaging in protected
concerted activities.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed you
by Section 7 of the Act.
WE WILL, within 14 days of the Board’s Order, offer Bobbie
Marshall Jr., Freddie Hughes, Derrick Thornton, Reginald Aus-
tin, and Bobbie Marshall III, full reinstatement to their former
jobs or, if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any other rights
or privileges previously enjoyed.
WE WILL make Bobbie Marshall Jr., Freddie Hughes, Derrick
Thornton, Reginald Austin, and Bobbie Marshall III, whole for
any loss of earnings and other benefits suffered as a result of the
discrimination against them, in the manner set forth in the rem-
edy section of the decision.
WE WILL, within 14 days from the date of the Board’s Order,
remove from our files any reference to the unlawful discharges,
and within 3 days thereafter notify Bobbie Marshall Jr., Freddie
Hughes, Derrick Thornton, Reginald Austin, and Bobbie Mar-
shall III, in writing that this has been done and that the discharges
will not be used against them in any way.
CGLM, INC.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD982
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 un-
published Order citing its decisions in Oakwood Healthcare, Inc.,
348 NLRB 686 (2006), Croft Metals, Inc., 348 NLRB 717
(2006), and Golden Crest Healthcare Center, 348 NLRB 727
(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 supervi-
sor 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 applica-
ble portions of the Oakwood Healthcare, Inc. decision, summa-
rized the definitions for the terms “assign,” “responsibly to di-
rect,” 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 instruc-
tion that the employee perform a discrete task.” Id. slip op.
at 4.
The authority “responsibly to direct” is “not limited to de-
partment 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 car-
ried 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 es-

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 re-
cord.
tablish 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 puta-
tive 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 in-
structions, whether set forth in company policies or rules,
the verbal instructions of a higher authority, or in the provi-
sions 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 defi-
nition of supervisory authority set out in Section 2(11) of the Act.
I found that there is no evidence that Marshall possessed or exer-
cised 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 disci-
pline employees.2 In addressing the authority to assign or respon-
sibly to direct, I found no probative evidence that Marshall exer-
cised independent judgment in carrying out those duties.
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 em-
ployee to a place, appointed an employee to a time such as a shift

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.” Al-
though the Respondent revisits the issue of discipline, there is no evi-
dence 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 disci-
pline.” 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.”
CGLM, INC. 983
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 as-
signed overtime. Drivers were required to finish their routes. If
overtime was thereby incurred, it was incurred by the require-
ment, not by assignment. As noted in my initial decision, Mar-
shall would fill in as necessary. He would direct that one em-
ployee assist another if assistance was necessary. As the Charg-
ing 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 oc-
curred 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 deliver-
ies, 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 Mar-
shall’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 an-
swered, “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

3 In my initial decision, I incorrectly identify Jones as a former em-
ployee. 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.
in my initial decision, Clouatre would prepare the delivery tick-
ets, 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 needed on a particular day was made by Mar-
shall 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 inde-
pendent judgment. The Respondent adduced “no evidence re-
garding 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 occa-
sion, Marshall simply assigned him to work in the warehouse,
and Norton went home when his work was completed. The Re-
spondent presented no evidence regarding the circumstances
surrounding this ad hoc assignment. As noted in my initial deci-
sion, the record does not establish whether the driver whom Nor-
ton 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 as-
signed 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 direc-
tion and accountability: “[W]hen there is no showing of ‘direc-
tion,’ 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 disci-
pline, 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 ac-
tion” would be established by evidence of verbal warnings or by
the lead person taking a recalcitrant employee to the personnel
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD984
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 au-
thority 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.
With regard to accountability, the second requirement that is
essential to a finding of responsible direction, there is no evi-
dence 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 em-
ployee 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 pur-
ported 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 deliv-
ery trucks were prescribed by geographic area. As Marshall ex-
plained, “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 re-
cord 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 assign-
ment 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 suf-
ficient exercise of independent judgment to satisfy the statutory
definition.” Franklin Home Health Agency, supra at 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 judg-
ment,’ that individual would need to exercise ‘significant discre-
tion 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 submit-
ting “concrete evidence showing how . . . decisions are made.”
Franklin Home Health Agency, supra at 830.
The evidence in this case does not establish that Marshall ex-
ercised 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 super-
visory status under the Act. Weyerhaeuser Timber Co., 85
NLR.B 1170, 1173 (1949).”
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.
CONCLUSION 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 recom-
mended.4
ORDER
The Respondent, CGLM, Inc., Jefferson, Louisiana, its offi-
cers, agents, successors, and assigns, shall comply with the
recommended Order set out in the decision issued on August
28, 2006.

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 pur-
poses.