Bredero Shaw

National Labor Relations Board - Board Decisions

Aug 27, 2005

345 N.L.R.B. 782 (N.L.R.B. 2005)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
345 NLRB No. 48
782
Bredero Shaw, A Division of Shawcor Ltd. and Local
653, International Union of Operating Engi-
neers, AFL–CIO, Petitioner. Case 15–RC–8356
August 27, 2005
DECISION AND DIRECTION
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
The National Labor Relations Board has considered an
objection to and determinative challenges in an election
held April 14, 2003, and the hearing officer’s report rec-
ommending disposition of them.1 The election was con-
ducted pursuant to a Stipulated Election Agreement. The
tally of ballots shows 58 for and 47 against the Peti-
tioner, with 16 challenged ballots.2
The Board has reviewed the record in light of the ex-
ceptions and briefs, has adopted the hearing officer’s
findings and recommendations as modified below.3
Introduction
The hearing officer recommended overruling the Peti-
tioner’s challenges to the ballots of Wesley Biggs and
Michael Flynn on the basis that they were not supervi-
sors under the Act, sustaining the Petitioner’s challenges
to the ballots of Joseph McDonald and William Wiley on
the basis that they were supervisors under the Act, and
sustaining the Petitioner’s challenge to the ballot of Scott
Ellzey on the basis that his position was not intended by

1 By order dated February 18, 2004, the Board adopted the Acting
Regional Director’s report overruling Objections 1–7, and 9.
2 The parties stipulated at the outset of the hearing that the ballot of
Charles McGee should be counted and that the ballots of Terrence
Summers and Albert Strickland should not be counted.
3 In adopting the hearing officer’s recommendation to overrule Em-
ployer’s Objection 8 concerning alleged threats made by Union Organ-
izer Samuel Ridgeway against Supervisor Scott Curtis, we note the
absence of any evidence that the alleged objectionable conduct affected
any of the voting employees. Further, we reject the Employer’s conten-
tion that it was prejudiced by the hearing officer’s refusal to allow the
introduction of additional evidence of Ridgeway’s allegedly objection-
able conduct, as the proffered evidence does not establish that the con-
duct affected employees who were eligible to vote in the election.
We also adopt, for the reasons given in the Report, the hearing offi-
cer’s recommendation to overrule the challenges to the ballots of Ryan
Noel and Sam O’Cain. The Employer contends that the election should
be set aside if we find that the ballots of O’Cain and Jordan should be
counted, asserting that other similarly-situated employees (i.e., those
whose precise job descriptions were not listed in the unit description)
might have been eligible to vote but did not know that fact. The Em-
ployer cites no evidence or case law in support of its contention, and we
find the contention to be without merit.
In the absence of exceptions, we adopt pro forma the hearing offi-
cer’s recommendation to overrule the challenges to the ballots of Alvin
White, Christopher Snyder, Ronald Robbins, and Richard Ardilla, and
to sustain the challenge to the ballot of Edward Rivers.
the parties to be part of the unit4 and that he lacked a
sufficient community of interest with the unit employees.
The hearing officer also overruled the Petitioner’s chal-
lenge to the ballot of Derrick Jordan, finding that, al-
though Jordan occupied a position not specifically enu-
merated in the unit description, and for which there was
no extrinsic evidence as to the parties’ intent, Jordan
shared a sufficient community of interest with unit em-
ployees to warrant his inclusion in the unit. For the rea-
sons expressed below, we adopt the hearing officer’s
recommendation to overrule the challenge to Jordan’s
ballot, but we reverse the hearing officer’s recommenda-
tions to overrule the challenges to the ballots of Biggs
and Flynn, and to sustain the challenge to the ballots of
McDonald, Wiley, and Ellzey.
I. WESLEY BIGGS
A. Facts
The hearing officer overruled the challenge to Wesley
Biggs’ ballot, finding that Biggs was not, as alleged by
the Petitioner, a supervisor under the Act. For the fol-
lowing reasons, we reverse the hearing officer’s finding.
Biggs was hired as a mechanic in June 2001. In No-
vember 2002, the Employer promoted Biggs to the posi-
tion of lead/charge hand. In this position, Biggs both
oversaw and worked with a crew of seven to eight em-
ployees. Biggs worked under the immediate supervision
of Crew Supervisor Tim Sonnier. Each morning, before
Sonnier’s arrival, Biggs met with the crew employees to
discuss the day’s work schedule and to make sure that
each employee knew what work needed to be done and
who would do it. At the time of Biggs’ promotion, Son-
nier told employees “Wesley [Biggs] was getting pro-
moted. You know what I’m saying? Whatever he tells
you all, I’m backing him up all the way.”
The record includes evidence of Biggs’ authority to
send employees home. Specifically, the credited testi-
mony of employee Sam O’Cain establishes that, on one
occasion, O’Cain “got smart” with Biggs verbally, and as
a result Biggs sent O’Cain home. Biggs did not consult
with anyone prior to sending O’Cain home. In addition,
M. Todd Davidson, who was Biggs’ predecessor in the
lead/charge hand position, credibly testified that while he
occupied that position prior to Biggs’ promotion, Super-
visor Sonnier told him that he (Davidson) had the author-
ity to send an employee home.

4 The appropriate unit, as set forth in the stipulated election agree-
ment is: “All crane operators, front end loader operators, forklift opera-
tors, mechanics and mechanics helpers, plant operators, plant mainte-
nance workers, oilers, backhoe operators, and motor grader operators
employed by the Employer at its Theodore, Alabama facility; excluding
office clerical employees, professional employees, temporary employ-
ees, guards and supervisors as defined in the Act.”
BREDERO SHAW 783
The hearing officer found that Wesley Biggs exer-
cised, at most, routine and sporadic supervisory author-
ity, and thus was not a supervisor under Section 2(11) of
the Act. We disagree with the hearing officer and reverse
his recommendation to overrule the challenge to Biggs’
ballot.
B. Analysis
The principal argument advanced by the Petitioner is
that Biggs exercised supervisory authority when he sent
O’Cain home for misconduct. Contrary to the hearing
officer, we agree with the Petitioner that this incident
demonstrates Biggs’ supervisory status.
It is well settled that the authority to send employees
home for engaging in misconduct is typically considered
evidence of supervisory authority. E.g., Silver Metal
Products, 244 NLRB 25, 28 (1979) (authority to send
employees home for “loafing” evinces supervisory
status). The Board has recognized an exception to this
rule where the authority to send home is limited to in-
stances of egregious employee misconduct. That author-
ity has not been found to require the exercise of inde-
pendent judgment, and thus has not been typically con-
sidered to constitute statutory supervisory authority.
Vencor Hospital-Los Angeles, 328 NLRB 1136, 1139
(1999); Washington Nursing Home, 321 NLRB 366 fn. 4
(1996).
Here, the record shows that Biggs’ exercised supervi-
sory authority in sending O’Cain home. The record
shows that O’Cain did not engage in egregious miscon-
duct. Rather, he got “smart” with Biggs and, offended
by the comment, Biggs exercised his discretion to disci-
pline O’Cain by sending him home. Biggs took this dis-
ciplinary action without consulting anyone. Clearly the
exercise of discretion in effectuating this disciplinary
action demonstrated the possession of supervisory au-
thority.
In contending that Biggs’ action does not demonstrate
the exercise of supervisory authority, our dissenting col-
league relies on Asuza Ranch Market, 321 NLRB 811
(1996), where the Board declined to find supervisory
status with respect to an individual where the evidence
indicated that the individual could grant employee re-
quests to leave early and decide on his own whether to
send an employee home for the day. That case is clearly
distinguishable. The authority there existed for the few
hours when the general manager was not present. Fur-
ther, there was no showing that the individual’s authority
was ever exercised at all, much less exercised in connec-
tion with a disciplinary matter resulting in a loss of pay.
Further, Biggs’ exercise of his discretion in sending
O’Cain home was reflective of the authority expressly
reposed in Biggs. As noted above, Supervisor Sonnier
told Biggs’ predecessor that he was authorized to send
employees home, and also told employees—at the time
of Biggs’ promotion—that they are to do whatever Biggs
tells them to do. These comments constitute corroborat-
ing evidence of Biggs’ supervisory status, and contradict
the hearing officer’s characterization of Biggs’ authority
as being nothing more than routine and sporadic.5
Accordingly, we find that the record establishes Biggs’
supervisory status, and we shall sustain the challenge to
his ballot.
II. MICHAEL FLYNN
A. Facts
The hearing officer found that Michael Flynn was not
a supervisor under the Act. For the following reasons, we
disagree and reverse that finding.
At the time of the election, Flynn was a lead/charge
hand in the Quad Rack area, under the supervision of
Kenneth McDonald. McDonald described Flynn’s duties
as being “my eyes and my ears on the ground,” and “to
hand out instruction and to make things safe and produc-
tive.” The record establishes that on one occasion,6
Flynn intervened in a dispute between two employees
involved in a heated argument. Flynn decided to send
both employees home. Flynn made his decision to send
the employees home without consulting anyone.
It is also uncontradicted that, on at least one occasion,
Flynn granted time off to employee Bronski Ray after
Ray requested it. As with the incident involving the ar-
guing employees, Flynn acted without consulting any-
one.7
The hearing officer recommended overruling the chal-
lenge to Flynn’s ballot, finding that—as with Biggs—any
authority Flynn exercised was routine and sporadic. We
disagree.
B. Analysis
Contrary to the hearing officer, we find that the above
evidence establishes that Flynn possessed statutory su-
pervisory authority.
As noted above, supervisory authority is demonstrated
by the exercise of discretion in sending employees home.
Silver Metal Products, supra. Here, the record shows
that, like Biggs, Flynn exercised supervisory authority in
this regard. Specifically, Flynn observed that two em-
ployees were arguing. As with the employee sent home
by Biggs, these employees were not engaged in egre-

5 We thus find no merit to the dissent’s contention that this corrobo-
rating evidence “sheds no light” on Biggs’ supervisory authority.
6 The record does not indicate precisely when this event occurred.
7 Ray testified without contradiction that, on at least one occasion,
Flynn granted Ray’s request for time off without consulting anyone
else.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD784
gious misconduct. They were simply having an argu-
ment. Acting alone, Flynn exercised discretion and in-
dependent judgment in deciding to send the two employ-
ees home, and these employees suffered a loss of work-
ing time and pay as a result of this action.8 Clearly,
Flynn’s decision in these circumstances constituted the
exercise of supervisory authority.
Our dissenting colleague contends that this incident
does not demonstrate Flynn’s exercise of supervisory
authority, because Supervisor Kenneth McDonald’s tes-
timony indicated that Flynn could discipline employees
only with McDonald’s express prior approval. We do
not read McDonald’s testimony so narrowly. McDonald
testified that Flynn’s duties entailed “independent think-
ing,” that Flynn could take disciplinary action “on my
authority,” and the uncontradicted evidence established
that Flynn did in fact send employees home for arguing
without consulting McDonald. Further, Flynn’s supervi-
sory authority is corroborated by evidence that, on at
least one occasion, Flynn granted an employee’s request
for time off. Indeed, the granting of time off is a well-
established secondary indicia of supervisory status. E.g.,
Property Markets Group, 339 NLRB 199, 210 (2003).
Here, Flynn granted the time off without consulting any-
one.
In characterizing the above incidents as routine and
sporadic, the hearing officer failed to adequately consider
the significance of Flynn’s actions in these incidents.
Specifically, the hearing officer failed to consider the
significance of Flynn’s exercise of discretion. In view of
this evidence, we find that the record amply demon-
strates that Flynn possesses Section 2(11) authority. Ac-
cordingly, we shall reverse the hearing officer and sus-
tain the challenge to Flynn’s ballot.
III. JOSEPH MCDONALD
A. Facts
The hearing officer found that Joseph McDonald was a
supervisor under the Act. We disagree, and for the fol-
lowing reasons overrule the challenge to the ballot.
At the time of the election, McDonald’s title was
“maintenance supervisor.”9 The record establishes that
McDonald spent all of his time welding, as did the rest of
the welding crew with whom he worked. Each morning,
there was a meeting among maintenance department em-
ployees during which McDonald informed the three

8 Supervisor Kenneth McDonald testified that sending employees
home early could be a form of discipline and would result in a loss of
pay.
9 Shortly after the election, McDonald received a raise and a promo-
tion to “Lead Hand” in the “Maintenance-Coating Site.” The Employer
does not dispute that, after this promotion, McDonald became a super-
visor within the meaning of the Act.
other employees what jobs they would perform that day.
McDonald based these instructions on a list he was given
by his supervisors, Tom Brown and Phil Hartley.
McDonald did not prioritize these tasks. According to
McDonald, he could give these instructions if Brown and
Hartley were not available, but there is no evidence in the
record that he actually did so.
McDonald testified that, after checking with Brown
and Hartley, he could send an employee to another job in
the plant. When doing so, McDonald might take into
account each welder’s particular abilities in determining
who should do a particular job. However, McDonald
testified that each welder was roughly the same in skill
level.
According to one employee, McDonald once gave an
employee permission to go home when the employee felt
sick.
Based on this evidence, the hearing officer found that
McDonald was a supervisor within the meaning of the
Act because he exercised independent judgment in as-
signing employees and directing their work. For the fol-
lowing reasons, we reverse.10
B. Analysis
Contrary to the hearing officer, we find that McDonald
did not use independent judgment in the assignment or
direction of employees.11 As set forth above, McDonald
testified that he told employees what to do each morning,
but that his instructions were based on a list compiled
and prioritized by Hartley. Thus, his instructions were
circumscribed and not indicative of independent judg-
ment. Dynamic Science, Inc., 334 NLRB 391 (2001)
(finding no supervisory status for crew leader whose au-
thority was “extremely limited and circumscribed by
detailed orders and regulations issued by the Employer”).
McDonald also admitted that prior to his promotion in
May 2003 (after the election in April 2003), he had to
check with Brown or Hartley before sending another
employee to work on a different job. Moreover, McDon-
ald also testified that the employees’ skills were more or
less equal. In these circumstances, the record does not
establish that McDonald’s assignment of work involved
the use of his discretion.
As to the incident of permitting an employee to go
home when he felt sick, there is no evidence that

10 Because we find that McDonald did not possess any primary indi-
cia of supervisory status, we find it unnecessary to address the hearing
officer’s findings concerning whether he possessed any secondary
indicia of supervisory status.
11 In agreement with the hearing officer, we find there is insufficient
evidence to establish that McDonald had the authority to hire, transfer,
suspend, lay off, recall, promote, discharge, reward, or adjust griev-
ances, or to effectively recommend such action.
BREDERO SHAW 785
McDonald exercised independent judgment in determin-
ing whether that employee should have been sent home.
Thus, the record does not support the hearing officer’s
finding that McDonald was a supervisor, and we overrule
the challenge to his ballot.
IV. WILLIAM WILEY
A. Facts
The hearing officer found that William Wiley was a
supervisor under the Act. We disagree for the following
reasons.
Wiley began work with the Employer in 2002 as an
“Electrician-lead.” During his job interview, Wiley was
told by Supervisor Fabrice Storck that Wiley would
eventually replace Storck as supervisor once construction
of the Quad Rack area of the Employer’s facility was
completed. Storck, however, never left and continued as
supervisor after the construction was completed.
In June 2002, Storck went on vacation and announced
that Wiley would supervise employees in his absence.
After returning from his vacation, and continuing
through November 2002, Storck spent much of his time
at a worksite about 6 miles away. During this period,
Wiley spent about half of his time assigning jobs to a
crew of five to seven employees and directing their work,
sometimes inspecting it. Wiley also made up the work
rotation schedule, although he testified that it was an
easily predictable schedule. The other half of his time
was spent performing the same electrician’s work as the
employees in the crew.
After November 2002, Supervisor Storck began spend-
ing more time at the facility, resulting in an apparent
change in Wiley’s status and duties. From this time on
Storck assigned electricians to different tasks, regardless
of whether Wiley wanted them to do a different job.
Wiley was also told at this time that Storck, not Wiley,
would be signing timecards. In light of these changes,
Wiley became concerned about his status and met with
Storck to discuss his concerns in January 2003. Storck
told Wiley that he was a “supervisor in training,” and
that his official classification was being changed from
“electrician” to “electrician/programmer.” Following this
meeting, Wiley’s assignment of jobs to employees en-
tailed telling them to do jobs Storck had identified, jobs
that were ongoing projects (e.g., preventive mainte-
nance), or jobs that other supervisors or operators had
told him about.
The hearing officer found that “there is sufficient evi-
dence to show that Wiley has engaged in the primary and
secondary indicia of supervisory status,” without further
elaboration. We disagree and overrule the challenge to
Wiley’s ballot.12
B. Analysis
The record does not support a finding that Wiley was a
statutory supervisor when the election was held in April
2003.13 Assuming arguendo that Wiley had exercised
independent judgment in assigning work and directing
employees from June through November 2002, the re-
cord indicates that he no longer did so after January
2003. After that time, Wiley’s direction of employees
consisted of making sure they performed the jobs that
Storck told them to do, or jobs that were always going
on, such as preventive maintenance. These types of as-
signments do not involve the use of discretion within the
meaning of Section 2(11). See Ferguson Electric Co.,
335 NLRB 142, 146 (2001) (finding foremen who only
follow direction from supervisors when assigning jobs
are not using independent judgment under Section
2(11)).
Furthermore, there is no evidence that Wiley’s prepa-
ration of the work schedule involved independent judg-
ment. Wiley testified that he could “pretty much predict”
what the schedule would be, and he “more or less for-
malized it on a calendar format.” This type of schedul-
ing, without more, fails to demonstrate that he used the
necessary independent judgment to constitute the Section
2(11) assignment of employees. See Bakersfield Califor-
nian, 316 NLRB 1211, 1222 (1995) (scheduling, where
work was regular, vacation requested in advance, con-
flicts resolved by seniority, and overtime routinely
granted, did not involve independent judgment). For
these reasons, we find that Wiley is not a supervisor
within the meaning of the Act, and we overrule the chal-
lenge to his ballot.
V. SCOTT ELLZEY
A. Facts
The hearing officer found that Scott Ellzey lacked a
community of interest with unit employees and recom-
mended that the challenge to his ballot be sustained. We
disagree and reverse the hearing officer’s findings for the
following reasons.
At the time of the election, Ellzey was a lead hand in
an area of the facility called the GSPU plant. From Janu-
ary 2003 onward, Ellzey spent half of his time perform-

12 Because we find that Wiley did not possess any primary indicia of
supervisory status, we find it unnecessary to pass on the hearing offi-
cer’s findings concerning Wiley’s possession of secondary indicia.
13 In agreement with the hearing officer, we find there is insufficient
evidence that Wiley had the authority to hire, transfer, suspend, layoff,
recall, promote, discharge, reward, or adjust grievances, or to effec-
tively recommend such action.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD786
ing quality control work, and the other half performing
production work alongside stipulated unit employees.
His supervisor in GSPU was Sandy Heineman, who also
supervised the other GSPU employees. Each employee
was qualified to do practically all the jobs in the GSPU
plant, as was Ellzey. The lone exception to this is that,
when the plant was in production, Ellzey performed
quality control work, which the other employees did not
do. However, when the plant was not in production, Ell-
zey performed the same tasks as the other employees.
Ellzey primarily worked the day shift, as did all of the
GSPU employees. The stipulated unit is silent as to the
inclusion or exclusion of quality control employees.
The hearing officer recommended that the challenge to
Ellzey’s ballot be sustained, finding that neither the
stipulation nor the record evidence evinced the parties’
intent to include Ellzey’s quality control position in the
unit, and that Ellzey lacked a sufficient community of
interest with the unit employees. We disagree.
B. Analysis
Contrary to the hearing officer, we overrule the chal-
lenge to Ellzey’s ballot because we find that he is a dual-
function employee who maintains a substantial interest in
the wages, hours, and other working conditions of unit
employees.
Ellzey clearly performs both production unit work and
work related to quality control. Under well-established
Board law, “[t]he test for determining whether a dual-
function employee should be included in a unit is
‘whether the employee [performs unit work] for suffi-
cient periods of time to demonstrate that he . . . has a
substantial interest in the unit’s wages, hours, and condi-
tions of employment.” Air Liquide America Corp., 324
NLRB 661, 662 (1997) (citing Berea Publishing Co.,
140 NLRB 516, 518–519 (1963)).14 The Board has no

14 In analyzing Ellzey’s eligibility, the hearing officer applied the
standard set forth in Caesars Tahoe, 337 NLRB 1096 (2002), which
concerned the resolution of challenged ballots in an election involving a
stipulated unit. Under that test, the Board will resolve a challenge con-
cerning a stipulated unit first on the express terms of the stipulation,
second, if the terms are ambiguous, on extrinsic evidence of the parties’
intent, and third, if the intent cannot be determined, on community-of-
interest principles. Id. at 1097. Although, as explained above, we apply
the standard articulated in Air Liquide, we would reach the same con-
clusion under the standard applied in Caesars Tahoe. First, the stipu-
lated unit description does not mention quality control employees, and
thus sheds no light on the parties’ intent to include or exclude Ellzey’s
position. Second, as the hearing officer noted, neither party provided
any extrinsic evidence revealing the parties’ intent to include or exclude
Ellzey’s position. Third, we find that Ellzey shared a sufficient com-
munity of interest with unit employees. As such, his position consists of
unit work half the time, shows substantial interchange with unit mem-
bers, shares common supervision, and earns a comparable wage to unit
members. See Harold J. Becker Co., 343 NLRB 51, 51 fn. 4 (2004)
bright line rule as to the amount of time required to be
spent performing unit work but rather makes this deter-
mination according to the facts of each case. Martin En-
terprises, 325 NLRB 714, 715 (1998). The Board has
found that dual-function employees have a substantial
interest with unit employees even when they perform
unit functions less than half the time. Wilson Engraving
Co., 252 NLRB 333, 334 (1980); see also Avco Corp.,
308 NLRB 1045 (1992).
In this case, Ellzey spends approximately half of his
time performing unit functions. Ellzey testified that from
January 2003 through the date of the election he worked
in the GSPU plant of the Employer. While there, he
spent half of his time performing production work. As
such, he worked with unit employees in operating cranes,
in driving a forklift, and in working with mechanics, op-
erators, and oilers. All of these positions are unit jobs.
Ellzey testified that when not in production, the plant
employees all performed the same tasks and were more
or less interchangeable; e.g., there were no set crane op-
erators or forklift operators. From this evidence, it is
clear that Ellzey has a substantial interest in the unit’s
wages, hours, and conditions of employment. Accord-
ingly, we overrule the challenge to his ballot.15
DIRECTION
IT IS DIRECTED that the Regional Director for Region
15 shall, within 14 days of this Decision and Direction,
open and count the ballots of Charles McGee, Ryan
Noel, Sam O’Cain, Alvin White, Christopher Snyder,
Ronald Robbins, Richard Ardilla, Derrick Jordan, Joseph
McDonald, William Wiley, and Scott Ellzey. The Re-
gional Director shall then serve on the parties a revised
tally of ballots and issue the appropriate certification.

(finding no conflict in that case between hearing officer’s application of
Caesars Tahoe and Board’s use of Air Liquide).
15 For similar reasons, we also adopt the hearing officer’s recom-
mendation to overrule the challenge to the ballot of Derrick Jordan.
Jordan, who for the 6 months prior to the election worked 12-hour
shifts, was clearly a dual-function employee with a substantial interest
in the wages, hours, and other conditions of employment of the unit
employees. Were we to apply the test from Caesars Tahoe, as the hear-
ing officer did, we would reach the same conclusion. Jordan’s position,
like Ellzey, does not appear in the stipulated unit description and thus
sheds no light on the parties’ intent to include or exclude it from the
unit. Also like Ellzey, the parties presented no extrinsic evidence con-
cerning their intent to include or exclude him. Finally, as noted above,
Jordan performed unit work as an operator alongside unit employees,
under common supervision as unit employees. Thus, we find he shared
a sufficient community of interest with the unit.
BREDERO SHAW 787
MEMBER LIEBMAN, dissenting in part.
The evidence here is insufficient to support the major-
ity’s finding that Wesley Biggs and Michael Flynn are
statutory supervisors based on their authority to disci-
pline employees.1
With regard to Biggs, the majority’s finding is based
on a single incident in which he sent an employee home
because the employee “got smart” with Biggs. Although
Biggs apparently did not consult with anyone prior to
sending the employee home, this by itself is insufficient
to establish that Biggs utilized the independent judgment
necessary to establish supervisory status. See, e.g., Azusa
Ranch Market, 321 NLRB 811 (1996) (employee not
found to be a supervisor despite his authority to “decide
on his own” to send an employee home for the day). The
majority also relies on the testimony of M. Todd David-
son, Biggs’ predecessor, that Supervisor Tim Sonnier
had told Davidson that he could send an employee home
if the employee “got out of line.” But Davidson’s testi-
mony does not establish that Sonnier ever made such a
statement to Biggs.2 Moreover, Davidson’s testimony

1 I join with the majority in adopting the hearing officer’s report, as
modified, with respect to all other issues presented here.
2 Contrary to the majority, I attach little significance to Sonnier’s
vague directive to employees that they are to do “whatever” Biggs tells
them.
sheds no light on whether Biggs exercised discretion in
sending the employee home. In the absence of specific
evidence that Biggs exercised independent judgment in
determining whether the employee should be sent home,
there is no basis for concluding that Biggs acted with
supervisory authority. See, e.g., Washington Nursing
Home, 321 NLRB 366 (1996) (no supervisory status
found where authority to send home employees who
were impaired by substance abuse was circumscribed and
did not involve the exercise of independent judgment).
Similarly, the majority’s finding that Flynn exercised
independent judgment in sending two employees home
for fighting is not supported by the evidence. As with
Biggs, the majority bases its finding on evidence that
Flynn acted without consulting anyone else. However,
there is no evidence to establish that Flynn acted with
independent judgment. Indeed, testimony by Supervisor
Kenneth McDonald indicates that Flynn could discipline
employees only after McDonald had authorized Flynn to
do so.
Only those individuals who possess “genuine man-
agement prerogatives” should be considered supervisors,
as opposed to “straw bosses, leadmen . . . and other mi-
nor supervisory employees.” Azusa Ranch Market, 321
NLRB at 812 (citation omitted). Wesley Biggs and Mi-
chael Flynn fall into the latter category.