Asplundh Tree Expert Company

National Labor Relations Board - Board Decisions

Oct 2, 2014

07-RC-131249 (N.L.R.B. Oct. 2, 2014)

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UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
ASPLUNDH TREE EXPERT CO.
Employer
and Case 07-RC-131249
LOCAL No. 876, INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS (IBEW), AFL-CIO
Petitioner
ORDER
The Employer’s Request for Review of the Regional Director’s Decision and
Direction of Election is denied as it raises no substantial issues warranting review.1
MARK GASTON PEARCE, CHAIRMAN
NANCY SCHIFFER, MEMBER
Dated, Washington, D.C., October 2, 2014

1 We find it unnecessary to consider the Employer’s contention that the Regional Director
erred in finding that the crew forepersons are not held accountable for the work of the
crew members they direct as accountability is only relevant if, in directing their crew
members, the crew forepersons exercise independent judgment. We find that the
Employer has not satisfied the standard set forth in Sec. 102.67 (c) of the Board’s Rules
in contending that the Regional Director erred regarding the crew forepersons’ exercise
of independent judgment in directing the crew members. Specifically, the Employer
failed to provide sufficient evidence of this requisite element under Sec. 2(11), as it is
apparent that the forepersons’ authority to direct is constrained by the Employer’s
detailed work manifests, company policies, and the general foreman’s instructions. See,
e.g., Oakwood Healthcare, Inc., 348 NLRB 686, 693 (2006); Dynamic Science, Inc., 334
NLRB 391 (2001). Moreover, in disagreement with our colleague, we find that the
Employer’s proffered evidence that crew forepersons exercise discretion in this regard
consists of generalized testimony with insufficient detail to prove that their direction of
their crew is anything other than routine.
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MEMBER JOHNSON, dissenting.
I would grant review, on the issues of whether the Regional Director erred by
finding that crew forepersons are not supervisors under the Act because they do not
responsibly direct crew members with the requisite independent judgment under the
standard of Oakwood Healthcare, Inc., 348 NLRB 686 (2006). As expressed in Oakwood
Healthcare: “for direction to be ‘responsible,’ the person directing . . . 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 . . . are not performed
properly.” Id. at 691-692.2 And, in Croft Metals, Inc., 348 NLRB 717 (2006), the Board
found that lead persons were held accountable for the job performance of employees
assigned to them where the employer had issued warnings to the lead persons “because of
the failure of their crews to meet production goals or because of other shortcomings of
their crews.” Id. at 722. A panel majority in Entergy Mississippi, Inc., 357 NLRB No.
178 (2011) narrowly interpreted this standard to preclude a showing of accountability by
evidence that putative supervisors had been disciplined for their own work deficiencies.
The Entergy Board held that the proper evidentiary focus there should have been on
discipline of the supervisors for their supervisees’ deficiencies. Id. at slip op. at 5-7. In
my view, this is an inappropriately narrow interpretation of Oakwood Healthcare because
certain supervisory duties are inherently linked to the performance of subordinates. A
supervisor who is personally judged to be deficient in “management,” for example, is
being judged on how poorly his or her group happens to be doing. Thus, both the
Board’s decision in Croft Metals, above, and common sense dictate that when a putative
supervisor who directs other employees is responsible for the group’s performance, as
shown either by potential discipline or reward to the putative supervisor on the basis of
the performance of the group, or employees within the group, the putative supervisor is
“accountable” for the performance of the group and the employees in it. Cf. Entergy
Mississippi, Inc., 357 NLRB No. 178 (2011) above, slip op. at 9 (Member Hayes,
dissenting) (“accountability focuses on the supervisor’s own conduct and judgment in
exercising oversight and direction of employees in order to accomplish the work.”).
Moreover, the Employer’s evidence showed more than a few examples of the
putative supervisor actually being held accountable for another crew member’s actions or
omissions, or the whole crew’s performance. Even under what I view as the over
restrictive standard of Entergy Mississippi, this suffices as enough evidence of
responsible direction to warrant review.
Given that, my focus shifts to independent judgment and discretion. I think this is
a close case, but also warrants review. On the one hand, I see merit in the Employer’s
claims that the crew foreperson’s role entails inherent use of discretion, because the crew

2 The Board clarified in Golden Crest Healthcare Center, 348 NLRB 727 (2006), that
accountability may be also be shown by the prospect of a positive effect upon a putative
supervisor’s terms and conditions of employment. Id. at 731 and fn. 13. I believe that a
supervisor’s authority to responsibly direct can also be determined by reference to the
incentives, bonuses, and commendations that refer to team performance, although that
does not appear to be at issue in this case.
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foreperson is onsite directing what is basically the clearing of random patterns of organic
foliage, e.g., branches, limbs, trunks (some of which can be quite massive, with the
potential for severe damage) from equally random combinations of power lines,
transformers, conductors, etc. and must come up with a unique plan for such removal
each time. On the other hand, the Employer’s various manuals with their detailed
instructions could take all the judgment out of these tasks. See Oakwood Healthcare.,
348 NLRB at 693 (“[A] judgment is not independent if it is dictated or controlled by
detailed instructions, whether set forth in company policies or rules, [or] the verbal
instructions of a higher authority”). However, the Employer has satisfied me at this stage
that these two issues warrant a grant of review.
HARRY I. JOHNSON, III, MEMBER
Dated, Washington, D.C., October 2, 2014