Dale Service Corp.

National Labor Relations Board - Board Decisions

Apr 10, 1984

269 N.L.R.B. 924 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dale Service Corp. and United Food & Commercial
Workers Union, Local 400, AFL-CIO. Case 5-
CA-14158
10 April 1984
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 31 August 1982 the'National Labor Relations
Board issued a Decision and Order in the above-
entitled proceeding 1 finding that the Respondent
had violated Section 8(a)(5) and (1) of the Act by
refusing, since on or about 3 March 1982, and at all
times thereafter, to bargain collectively with the
above-named labor organization as the exclusive
bargaining representative of the employees in a unit
found to be appropriate. 2 As a remedy for the
unfair labor practice found, the Board, in part, or-
dered the Respondent to bargain with the Union as
the exclusive representative of the employees in
that unit and, if an understanding was reached, to
embody such an understanding in a signed agree-
ment.
Thereafter the Board filed an application for en-
forcement of its Order with the United States
Court of Appeals for the Fourth Circuit. Subse-
quently, on 7 March 1983, the Board issued its De-
cision in Big Rivers Electric Corp3 . In that case the
Board overruled Maine Yankee Atomic Power Co., 4
upon which the Regional Director had relied in the
representation proceedings underlying the present
case. Thereafter, the Board decided to reconsider
its decision in this proceeding in light of its Deci-
sion in Big Rivers, supra. Accordingly, the Board
filed a motion for leave to withdraw, without prej-
udice, its application for enforcement and to with-
draw the record from the Fourth Circuit. On 30
June 1983 the court ordered that the application
for enforcement be dismissed and remanded the
case to the Board.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
Upon reconsideration of the entire record in this
proceeding, the Board has decided to vacate its
previous Decision and Order, and to deny Gener-
1 263 NLRB No. 114 (not published in Board volumes).
2 On 29 January 1982, following a Board election in Case 5-RC-11694,
the Union was certified as the exclusive bargaining representative for the
employees in the following unit:
All full time and regularly scheduled part time employees, includ-
ing senior operators, employed by the Respondent at its Wood-
bridge, Virginia, facility, excluding office clericals, guards and super-
visors as defined in the Act.
' 266 NLRB 380.
4 239 NLRB 1216 (1979).
269 NLRB No. 164
al's Motion for Summary Judgment. The Board has
further decided to reopen the record in Case 5-
RC-11694, and to remand this case to the Regional
Director for Region 5 to conduct a second elec-
tion.
As noted above, the Union was certified in a bar-
gaining unit that included senior operators. The
Regional Director for Region 5 found that senior
operators exercised none of the attributes set forth
in Section 2(11) of the Act and therefore conclud-
ed that they were employees within the meaning of
the Act. For the following reasons, we disagree.
The record in the representation case reveals
that the Respondent operates a sewage treatment
plant on a 24-hour-per-day, 7-day-per-week basis.
At its facility, the Respondent employs an oper-
ations manager and an assistant general manager
who are admitted supervisors, four senior opera-
tors,5 three operators, and five maintenance em-
ployees. A normal day crew consists of one senior
operator, one operator, and one to five mainte-
nance employees; a normal night crew consists of
one senior operator and one operator.6 The manag-
ers both work Mondays through Fridays, with
their combined work hours covering the periods
from 7:30 a.m. to 5 or 5:30 p.m. Thus, during the
weekday night shift and on weekends, senior oper-
ators are the highest ranking personnel at the Re-
spondent's facility.
In the course of their jobs, senior operators and
operators perform many of the same functions.
Both categories of employees perform laboratory
tests, inspect machinery, and operate or monitor a
flock press and a biological treatment unit. Senior
operators, however, have the following additional
responsibility, which we find confers supervisory
status: Senior operators have the authority to
assign operators to specific tasks,7 based in part on
the senior operators' assessment of the employees'
abilities and the expertise required. Senior opera-
tors have the authority to evaluate the workload,
and, consequently, to assign overtime work to op-
erators; to send operators home in the absence of
work; and to call both operators and maintenance
employees in to work, all without the managers'
5 The Union refers to the workers in the disputed classification as
senior operators, while the Respondent designates these individuals as
shift supervisors. Although we attach some significance to the Respond-
ent's conferred title, we will refer to these individuals as senior operators.
I Shifts differ for each class of employees. Maintenance personnel nor-
mally work only on the day shift. Operators work in 8-hour shifts cover-
ing 24 hours each day. Senior operators work in 10-hour shifts, from 5
a.m. to 3:30 p.m. and from 7 p.m. to 5:30 a.m.
I An operations manual outlines tasks to be performed at specific
times, and work varies little day to day. Within such confines, however,
the senior operator determines the particular duty an operator or senior
operator will perform. According to the testimony of the Respondent's
assistant general manager, the tasks vary considerably in desirability.
924
DALE SERVICE CORP.
prior approval. In the course of their duties, senior
operators must make operational decisions regard-
ing the adjustment of equipment. These decisions
are based on knowledge and experience, and re-
quire the exercise of discretion. Finally, the Re-
spondent's assistant general manager testified that
senior operators, when managers are not present,
are directly responsible for the operation of the
plant and the direction of the work force. This au-
thority was acknowledged by senior operators,
who testified that their duties included, "mak[ing]
sure everything is running all right" and "basically
run[ning] the plant." Based on all of these factors,
we find that senior operators responsibly direct em-
ployees within the meaning of Section 2(11).8
Accordingly, we shall vacate our previous Deci-
sion and Order which granted General Counsel's
· In making this finding, we note with emphasis that during the week-
day night shift and on the weekends, senior operators are the highest
ranking employees present at the Respondent's facility. Both the Board
and the circuit courts have noted that this factor is indicative of supervi-
sory status. See Big Rivers Electric Corp., supra; Colorflo Decorator Prod-
ucts, 228 NLRB 408 (1977); Southern Indiana Gas v. NLRB, 657 F.2d 878
(7th Cir. 1981).
Motion for Summary Judgment, and shall deny
that motion; reopen the record in Case 5-RC-
11694 and set aside the election conducted on 21
January 1982;9 and remand this proceeding to the
Regional Director for Region 5 to conduct a
second election in a unit consistent with this Deci-
sion.
ORDER
IT IS ORDERED that the Board's Decision and
Order reported at 263 NLRB No. 114 (Aug. 31,
1982) is vacated and that the General Counsel's
Motion for Summary Judgment is denied.
IT IS FURTHER ORDERED that the record in Case
5-RC-11694 is reopened, the election conducted
on 21 January 1982 is set aside, and this case is re-
manded to the Regional Director for Region 5 for
the purpose of directing a second election consist-
ent with this Decision.
D Although the results of that election showed a unanimous union vic-
tory, it was conducted in a unit in which almost 40 percent of the voters
are statutory supervisors. In such circumstances we cannot conclude that
the election was a fair gauge of the sentiments of the unit employees.
925