CTI Alaska,Inc., 1121 (1998)

CTI Alaska, Inc. and Gene Smith. Case 19-CA-

243151

September 25, 1998

DECISION AND ORDER

BY MEMBERS FOX, LIEBMAN, AND BRAME

On January 28, 1997, Administrative Law Judge James

M. Kennedy issued the attached decision. The General Counsel filed exceptions and a supporting brief, and the Respondent filed an answering brief.

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,2 and conclusions3 and to adopt the recommended Order.

ORDER

The recommended Order of the administrative law judge is adopted and the complaint is dismissed.

George I. Hamano, Esq., for the General Counsel.

William F. Mede, Esq. and Patrick J. McCabe, Esq. (Owens &

Turner), of Anchorage, Alaska, for the Respondent.

DECISION

STATEMENT OF THE CASE

JAMES M. KENNEDY, Administrative Law Judge. This case was tried in Anchorage, Alaska, over 6 days between July 30 and September 25, 1996. The charge was filed January 23,

1996, by Gene Smith (Smith), an individual, and the Regional Director for Region 19 issued the complaint on April 18, 1996. The case was originally consolidated with Cases 19-CA- 24174, 19-CA-24251, and 19-CA-24342. However, on September 24, 1996, those cases, involving other individual charging parties, were settled by non-Board agreement. The unfair labor practice charges were withdrawn with my approval and the corresponding complaints dismissed on the record. The original caption has been amended to reflect those dismissals. As the matter currently stands, the complaint asserts that CTI Alaska (Respondent) violated Section 8(a)(3) of the National Labor Relations Act (the Act) on November 16, 1995,1 when it discharged Smith.

1 This case was originally consolidated with Cases 19-CA-24174, 19-CA-24251, and 19-CA-24342. On September 24, 1996, those cases, involving other individual charging parties, were settled by non-Board agreement, the unfair labor practice charges were withdrawn with the judge's approval, and the corresponding complaints were dismissed on the record.

2 We correct two factual errors in the judge's decision. In par. 17 of the section of his decision entitled "Gene Smith's Duties and Authority," the judge stated that Smith's counterpart, Bob Landers, disagreed with Smith regarding the layoff of employee Bob Clancy, that Landers said that he believed Clancy had not been properly trained, and that as a result Clancy was not selected for layoff. The record shows, however, that Clancy's name was on the layoff list at the end of the meeting, but that Clancy himself later appealed to Operations Manager Mike Thorne and the latter requested Field Supervisor Ray Fleming to re-evaluate Clancy. In par. 2 of his conclusions, the judge stated that Operations Manager Laura Barletta honored Smith's demand not to transfer Davis to his group; we note that it was Operations Manager Mike Thorne, rather than Barletta, who solicited Gene Smith's views on bringing Davis to the BP project and honored Smith's request not to do so. These errors do not affect the result in this case.

3 In affirming the judge's conclusion that Foreman Gene Smith was a statutory supervisor at the time he was discharged, we rely on the judge's finding that Smith had the authority to effectively recommend personnel actions, and we do not pass on the rest of the judge's rationale. Specifically, the record establishes, the judge found, and we agree that Smith effectively recommended the layoff of employee Duane Davis and the transfer of employee J. B. Cowell. We also observe that the absence of additional examples of Smith's exercise of supervisory authority may well be explained by the fact that he held the foreman's position for only 10-1/2 months.

Issue

The parties entered into a stipulation at the hearing that if I (or the Board) conclude that Smith is a supervisor within the meaning of the Section 2(11) of the Act that Respondent did not violate Section 8(a)(3), but that if I (or the Board) find that he is an employee within the meaning of Section 2(3) of the Act, the discharge did violate Section 8(a)(3) and an appropriate remedy may be issued. Accordingly, the only issue which needs to be decided is whether Smith was a 2(11) supervisor at the time he was discharged.

FINDINGS OF FACT

  1. JURISDICTION

    Respondent, an Alaska corporation, is headquartered in Anchorage. It is in the business of conducting nondestruct testing on pipes and vessels in the oil exploration and transmission industry. Its customers are oil exploration firms and crude oil pipeline operators. It admits that it meets the Board's nonretail standard for the assertion of jurisdiction and I find that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.

  2. THE ALLEGED UNFAIR LABOR PRACTICES

    A. Background

    Most of Respondent's operations are conducted on the North Slope of Alaska in the Prudhoe Bay area and environs, although it does perform work elsewhere in Alaska, including the Cook Inlet/Kenai area southwest of Anchorage. Smith's difficulties arose at the Prudhoe Bay operation. During 1995 and for several years before, Respondent, at Prudhoe Bay, was performing nondestruct testing for British Petroleum Exploration, Alaska (BP). That firm, for our purposes, may be termed the "owner" of the property on which much of the oil producing activity occurs. Throughout its oil field, BP has built a network of buildings and support facilities located at appropriate locations near the wells and drill sites. It has hired numerous subcontractors to do many of the functions which such an operation requires. These subcontractors range from drilling companies to construction companies to catering businesses to testing firms such as Respondent.

    In the course of its business, Respondent is obligated on a nearly year-round basis to send testing crews to locations designated by BP to perform various nondestruct tests on piping and other equipment to determine whether the item being tested needs replacement or repair. There are three principal testing

    1 All dates are 1995 unless otherwise indicated.

    methods which Respondent uses. These are X-ray (RT), ultrasonic (UT), and video X-ray, also known as real time radiography (RTR). The last of these techniques is not particularly germane to our inquiry. Smith was directly involved with crews assigned to perform RT and UT work. The RTR work was done on a summer-only basis by specialized crews, though such crews remained on the North Slope into October 1995. Smith does not appear to have been involved with them.

    The hierarchy in which Smith worked is as follows: Respondent's headquarters are located in Anchorage. Its president, George Haugen, and its vice president in charge of operations, Bill Webb, both work there, as do its human relations department personnel. The North Slope operations managers assigned to the Prudhoe area were Mike Thorne and Laura Barletta. These individuals, like nearly everyone who works at Prudhoe, work as "alternates" or "counterparts." In general, due to the remote nature of the oil field, individuals are stationed at the site for set periods, usually 2 weeks there and 2 weeks out. "Alternates" serve interchangeably with one another. Both Thorne and Barletta operated in that fashion. Similarly, so did their immediate subordinates, the field supervisors. During 1995 the counterparts holding that position were Ray Fleming and Ernie Bishop. Last in the line of putative managers were the two assistant field supervisors, Bob Landers and Smith. All of these individuals, when on duty, worked and lived at the Prudhoe facility, as did the technicians who performed the actual testing work. Landers and Smith were assigned a personal vehicle and they lived in unshared quarters in the work area known as the "Santa Fe" pad. They also attended the nightly management meetings held at 5 p.m.

    RT work involves taking X-ray equipment to a designated location, identifying the proper pipe, weld, fitting, or other object, and then setting up the X-ray shot and shooting the photographs. The UT work was similar: After locating the object to be tested, the technician was obligated to slide the equipment across the object to create an image which could be read by BP's experts.

    A common preliminary to the testing was to expose the object so the technicians could perform the test. Because the material to be tested was usually hidden by insulation or was otherwise inaccessible, Respondent's management was required to notify either BP or one of the construction contractors to perform the necessary removal work. Since 1992, to arrange for that type of preliminary work, it became the assistant field supervisor's task to create "job orders." Such work was usually carried out by a contractor in close conjunction with BP and Respondent. Accordingly, it was important to closely coordinate the scheduling of the work. Job orders are to be distinguished from "packages," the daily instructions for each technician. The "packages" were created by Respondent's layout people pursuant to general requests made by BP's plant inspectors. Each package contained instructions to the crew regarding the location of the item to be shot, its identification number, the type of test, and other pertinent information.

    The packages were usually delivered to the appropriate crew at the beginning of the shift, most often by the field supervisor, but sometimes by the assistant field supervisor (foreman by the witnesses). In addition, there were shots which had to be redone. These were usually given to the same crew, but if the crew had moved to a new location, redo's were assigned to a followup man or crew. Many, if not most, of the shots were of the "frequent" variety, meaning that they would be done on a

    scheduled basis, so histories could be...

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