Pac Tell Group, Inc. v. NLRB , 817 F.3d 85 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1111
PAC TELL GROUP, INC., d/b/a U.S. Fibers,
Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent,
UNITED STEEL, PAPER AND FORESTRY, RUBBER, MANUFACTURING,
ENERGY, ALLIED-INDUSTRIAL AND SERVICE WORKERS INTERNATIONAL
UNION, LOCAL 7898,
Intervenor.
No. 15-1186
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
v.
PAC TELL GROUP, INC., d/b/a U.S. Fibers,
Respondent.
On Petition for Review and Cross-Application for Enforcement of
an Order of the National Labor Relations Board. (10-CA-139779)
Argued: October 27, 2015 Decided: December 23, 2015
Before KEENAN, WYNN, and DIAZ, Circuit Judges.
Petition for review denied; cross-application for enforcement
granted by unpublished opinion. Judge Keenan wrote the opinion,
in which Judge Wynn and Judge Diaz joined.
ARGUED: Reyburn Williams Lominack, III, FISHER & PHILLIPS LLP,
Columbia, South Carolina, for Petitioner/Cross-Respondent.
Julie Brock Broido, NATIONAL LABOR RELATIONS BOARD, Washington,
D.C., for Respondent/Cross-Petitioner. Mariana Padias, UNITED
STEELWORKERS UNION, Pittsburgh, Pennsylvania, for Intervenor.
ON BRIEF: Michael D. Carrouth, Jonathan P. Pearson, FISHER &
PHILLIPS LLP, Columbia, South Carolina, for Petitioner/Cross-
Respondent. Richard F. Griffin, Jr., General Counsel, Jennifer
Abruzzo, Deputy General Counsel, John H. Ferguson, Associate
General Counsel, Linda Dreeben, Deputy Associate General
Counsel, Michael Randall Hickson, Attorney, NATIONAL LABOR
RELATIONS BOARD, Washington, D.C., for Respondent/Cross-
Petitioner.
Unpublished opinions are not binding precedent in this circuit.
2
BARBARA MILANO KEENAN, Circuit Judge:
In this appeal, we consider the National Labor Relation
Board’s (the Board) determination that four individuals employed
by U.S. Fibers, who were engaged in pro-union activity before a
union election, were not supervisors within the meaning of the
National Labor Relations Act, 29 U.S.C. § 152(11) (the Act).
Under our deferential standard of review, we conclude that the
Board’s decision is supported by substantial evidence. We also
agree with the Board’s conclusion that the four individuals did
not engage in objectionable conduct sufficient to set aside the
results of the election under the Board’s third-party misconduct
standard. For these reasons, we deny U.S. Fibers’ petition for
review of the Board’s final order, and grant the Board’s cross-
application for enforcement of its order.
I.
U.S. Fibers (the employer) recycles polyester fibers at a
plant located in Trenton, South Carolina. As relevant here, the
employer utilized a tiered management structure as follows: Ted
Oh served as vice president of operations, Kevin Corey as
director of manufacturing, Glenn Jang as production manager, and
Kyong Kang as production and quality assurance manager. These
positions indisputably qualify as managerial in nature. At
issue in this case is the alleged supervisory status under the
3
Act of four individuals, Jose Lal, David Martinez, Eduardo
Sanchez, and Adauco Torres, who were designated by management as
“supervisors” (the putative supervisors). The putative
supervisors each oversaw the daily work performed by between 22
and 40 hourly workers during each 12-hour shift. These groups
working each shift were subdivided into smaller teams of between
three and five persons. Each team was assigned a “team lead”
who was more skilled and experienced than the other members of
the team. The “team leads” reported to the putative
supervisors.
The United Steel, Paper and Forestry, Rubber,
Manufacturing, Energy, Allied-Industrial and Service Workers
International Union, Local 7898 (the union) filed an election
petition with the Board, seeking to represent certain employees
at the employer’s Trenton plant. The Board directed an election
over the employer’s objection that the putative supervisors
should not be included in the bargaining unit because of their
alleged supervisory status. See 29 U.S.C. § 152(3). The union
won the election by a twelve-vote margin, with four contested
ballots cast by the putative supervisors.
The employer filed objections to the results of the
election, arguing that the putative supervisors had engaged in
objectionable conduct and that the results of the election
should be set aside. The regional director of the Board
4
concluded that the employer had failed to establish that Lal,
Martinez, Sanchez, and Torres were supervisors as defined in the
Act. The Board adopted the regional director’s reasoning and
affirmed his decision. The Board also rejected the employer’s
alternative contention that the results of the election should
be set aside under the Board’s standard for third-party
objectionable conduct. The regional director therefore
certified the union as the employees’ exclusive collective
bargaining representative. 1
Following issuance of the certification order, the employer
refused to recognize or engage in collective bargaining with the
union. The employer maintained the view that the Board’s
certification of the union was improper, and that the results of
the election should be set aside. At the union’s request, the
Board filed a complaint against the employer, alleging that the
employer had engaged in unfair labor practices under 29 U.S.C. §
158(a)(1) and (5). The Board ultimately ordered the employer to
cease and desist its unfair practices and to recognize and
bargain with the union upon request (the final order).
1
The certification included “[a]ll full-time and regular
part-time production, janitorial, warehousemen, shipping and
maintenance employees, employed by the Employer at its Trenton,
South Carolina facility, excluding all other employees,
including office clerical employees, professional and
confidential employees, guards and supervisors as defined in the
Act.”
5
The employer filed a petition for review of the Board’s
final order in this Court. The Board filed a cross-application
for enforcement of the same order, and we granted the union’s
motion to intervene in support of the Board’s decision.
II.
We first set forth the general principles governing the
scope of our review of Board-supervised elections. We presume
that the results of such elections are valid, and we afford them
great deference. NLRB v. Media Gen. Operations, Inc., 360 F.3d
434, 440-41 (4th Cir. 2004). Accordingly, we will set aside the
results of an election only if the Board “has clearly abused its
discretion.” Id. at 441. We will affirm the Board’s factual
findings if they are supported by substantial evidence
considering the record as a whole. CSX Hotels, Inc. v. NLRB,
377 F.3d 394, 398 (4th Cir. 2004). Substantial evidence is
“such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion,” that is, more than a
scintilla of evidence, but less than a preponderance. Gestamp
South Carolina, L.L.C. v. NLRB, 769 F.3d 254, 263 (4th Cir.
2014) (citation omitted). We will defer to the Board’s factual
determinations even if we might have reached a different result
in the first instance. Id.6
A.
The employer first argues that the Board erred in
concluding that Lal, Martinez, Sanchez, and Torres are not
supervisors under the Act. 2 According to the employer, these
individuals engaged in certain supervisory functions enumerated
in the Act, namely, exercising the authority to assign, reward,
discipline, and responsibly direct employees. The employer
therefore contends that the election should be set aside because
of pro-union activity by these alleged supervisors. We disagree
with the employer’s argument. Although the putative supervisors
exercised some authority over other employees, we conclude that
the Board’s determination that the putative supervisors were not
“supervisors” under the Act is supported by substantial
evidence.
The Board may set aside an election if “conduct by
supervisors, be it pro[-]union or anti[-]union, . . . interferes
with the employees’ freedom of choice,” based on the reasoning
that “employees may be induced to support/oppose the union
because they fear future retaliation, or hope for preferential
treatment, by the supervisor.” Harborside Healthcare, Inc., 343
N.L.R.B. 906, 907 (2004). It is the burden of the party
2
Because the Board adopted the reasoning of the regional
director, our references to the Board’s findings include those
of the regional director.
7
asserting supervisory status to prove by a preponderance of the
evidence that particular persons qualify as supervisors under
the Act. Dean & Deluca N.Y., Inc., 338 N.L.R.B. 1046, 1047
(2003).
The Act defines “supervisor” as:
[A]ny individual having authority, in the interest of
the employer, to hire, transfer, suspend, lay off,
recall, promote, discharge, assign, reward, 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
merely routine or clerical nature, but requires the
use of independent judgment.
29 U.S.C. § 152(11) (emphasis added). Individuals therefore
qualify as supervisors only if they have the authority to engage
in any one of the twelve supervisory functions in Section
152(11), including the four functions at issue in this case.
NLRB v. Ky. River Cmty. Care, Inc., 532 U.S. 706, 713 (2001).
Additionally, putative supervisors’ “exercise of such authority
[cannot be of] a merely routine or clerical nature, but requires
the use of independent judgment,” and their authority must be
“held in the interest of the employer.” Id. (citation and
internal quotation marks omitted).
The Act’s definition of “supervisor” is intended to
distinguish “true supervisors vested with ‘genuine management
prerogatives,’ [from] employees such as ‘straw bosses, lead men,
and set-up men’ who are protected by the Act even though they
8
perform ‘minor supervisory duties.’” Oakwood Healthcare, Inc.,
348 N.L.R.B. 686, 688 (2006) (citation omitted). 3 Accordingly,
the exercise of “independent judgment” requires that a person
“act, or effectively recommend action, free of the control of
others and form an opinion or evaluation by discerning and
comparing data.” Id. at 692-93 (citation omitted). Judgment is
not independent under the Act if it is “dictated or controlled
by detailed instructions, whether set forth in company policies
or rules, the verbal instructions of a higher authority, or in
the provisions of a collective bargaining agreement.” Id. at
693. With these principles in mind, we turn to address each of
the employer’s four asserted bases for a finding of supervisory
status.
i.
We begin by considering the putative supervisors’ authority
to assign the work of employees. The Board has defined the term
“assign” in Section 152(11) as “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
3
The employer does not challenge the reasonableness of the
Board’s interpretation of the definition of “supervisor” set
forth in Oakwood. Accordingly, we need not resolve the parties’
dispute regarding whether this Court’s precedent pre-dating the
Supreme Court’s decision in Kentucky River and the Board’s
decision in Oakwood remains controlling. Given the facts of
this case, we can resolve the question of the putative
supervisors’ authority based on Oakwood and other recent cases.
9
period), or giving significant overall duties, i.e., tasks, to
an employee.” Oakwood, 348 N.L.R.B. at 689. “Assign” does not
refer to an “ad hoc instruction that the employee perform a
discrete task,” nor does it include assignments made “solely on
the basis of equalizing workloads.” Id. at 689, 693. In the
present case, the Board found that the putative supervisors’
roles in assigning work did not require the use of independent
judgment necessary to constitute supervisory authority under the
Act.
The record reveals that Lal’s and Sanchez’s
responsibilities included creating employee work schedules on a
form previously prepared by Jang, a manager, based on Jang’s
instructions regarding the number of employees required for each
shift. The evidence supports the conclusion that, when Lal
assigned employees to work groups based on the employees’
relative “experience,” he only did so within the team lead
structure imposed by management. The putative supervisors also
instructed employees whether to follow the plant’s “rule of
thumb” to clean their work areas when machines malfunctioned, or
instead to move to another work station.
We conclude that the Board reasonably found that none of
these “assignment” functions required the use of independent
judgment, because the decisions were made according to
10
parameters set by management or to equalize employee workloads. 4
We therefore hold that the Board’s decision regarding the
authority to assign is supported by substantial evidence.
ii.
We turn to consider whether the putative supervisors had
the authority to reward by evaluating employee performance for
the purpose of recommending raises. 5 A person satisfies the
“authority to reward” definition in Section 152(11) if he
“play[s] a significant role in affecting” such raises. Shaw,
Inc., 350 N.L.R.B. 354, 357 (2007). The Board found that
although Lal, Sanchez, and Martinez were involved in
recommending employee raises, the evidence was inconclusive
regarding the extent to which the putative supervisors’
recommendations affected the employer’s ultimate decision.
4 We disagree with the employer’s contention that the
putative supervisors necessarily exercised the authority to
assign because they were the highest-ranking employees at the
plant during certain shifts. Although this is one factor to
consider in our substantial evidence analysis, we cannot
conclude that this factor overrides the evidence that the
putative supervisors did not exercise independent judgment in
assigning work.
5 The employer also argues that the putative supervisors
possessed the authority to reward because they could grant
overtime hours to employees. Because the employer failed to
pursue this argument in the administrative proceedings, the
issue has been waived. See 29 U.S.C. § 160(e) (“No objection
that has not been urged before the Board, its member, agent, or
agency, shall be considered by the court, unless the failure or
neglect to urge such objection shall be excused because of
extraordinary circumstances.”).
11
The record demonstrates that the putative supervisors were
responsible for evaluating a list of designated employees on a
biannual basis to help determine which employees should receive
raises. The putative supervisors made recommendations to the
managers, in some cases proposing a specific amount of monetary
increase, without the benefit of written guidelines. After
receiving the recommendation of the putative supervisors, the
managers offered their input to Oh, who made the ultimate
decision. According to Jang, because his opinion about which
employees deserved raises sometimes differed from that of the
putative supervisors, he “combine[d]” his opinion together with
the putative supervisors’ opinions to determine the final
proposal to give to Oh. Jang testified that management agreed
with the putative supervisors’ recommendations 90 percent of the
time.
In our view, the Board could have concluded from this
evidence that the putative supervisors at least had the
authority “effectively to recommend” raises for employees. 29
U.S.C. § 152(11). Nevertheless, it also was reasonable for the
Board to view this evidence of authority to reward as ambiguous
with respect to the weight accorded to the putative supervisors’
opinions, and to hold that the employer had failed to meet its
burden of proving supervisory status. We therefore conclude
12
that the Board’s determination regarding the authority to reward
is supported by substantial evidence.
iii.
Next, we consider whether the putative supervisors were
given the authority to discipline employees within the meaning
of Section 152(11), because the putative supervisors were
responsible for issuing written warnings. The Board held that
the employer failed to prove that the putative supervisors
exercised independent judgment when they disciplined employees.
The record includes Lal’s testimony that the managers
provided blank warning forms to the putative supervisors,
advised them of possible infractions, and instructed them to
complete a form every time a worker disobeyed safety rules. All
warnings were subject to approval by management before issuance.
Cf. General Die Casters, 359 N.L.R.B. No. 7, at *81-82 (2012)
(concluding that a putative supervisor exercised independent
judgment in issuing discipline in part because there was “no
credible evidence of any other supervisor being involved in the
issuing of the[] warnings”). The putative supervisors issued
warnings at the explicit direction of a manager in certain
cases. In other instances, the putative supervisors simply
implemented in a routine fashion the requirement that they warn
employees who did not comply with certain workplace rules.
13
This evidence supports the Board’s conclusion that the
putative supervisors did not “act, or effectively recommend
action, free of the control of others” when they issued warnings
to employees. Oakwood, 348 N.L.R.B. at 692-93. 6 Accordingly, we
conclude that substantial evidence supports the Board’s finding
that the putative supervisors did not use independent judgment
in exercising this supervisory function.
Our conclusion with respect to disciplinary authority is
not altered by the employer’s reliance on Metro Transport LLC,
351 N.L.R.B. 657 (2007), in which a putative supervisor was
chastised by a manager for failing to exercise his discretionary
authority to discipline employees. Id. at 660. The Board found
that the putative supervisor possessed the authority to exercise
independent judgment in disciplinary decisions because (1) the
putative supervisor was not merely a conduit for management’s
disciplinary decisions, (2) management did not conduct an
independent investigation of such decisions made by the putative
supervisor, and (3) “the determination of what discipline to
6 The employer relies on Sanchez’s statement that he
disciplined an employee because the employee “disobeyed an order
of work” by failing to “check all of the product” properly.
Although this testimony could suggest that Sanchez used
independent judgment in evaluating the need for certain
discipline, it is unclear what “check[ing] all of the product”
entails. We therefore conclude that Sanchez’s unspecific
testimony does not erode the substantial evidence supporting the
Board’s conclusion that independent judgment was not used.
14
impose would necessarily depend on [the putative supervisor’s]
independent judgment of what the situation warranted.” Id. at
660-61.
In the present case, as in Metro Transport, management
admonished putative supervisors for failing to issue warnings to
employees who had committed safety violations. However, in
contrast to Metro Transport, the putative supervisors here did
not make an individualized assessment of the need for
discipline, but instead acted as conduits for management’s
directive to enforce particular safety protocols. See Shaw, 350
N.L.R.B. at 356-57 (concluding that a putative supervisor did
not exercise independent judgment in issuing discipline in part
because the putative supervisor did not have the “discretion to
decide which incidents to record” or to determine whether to
complete a “write-up” form at all). Any discretion the putative
supervisors had regarding the severity of appropriate discipline
was limited to determining whether a first or subsequent warning
was warranted given the employee’s prior disciplinary history.
For all these reasons, we hold that the record supports the
conclusion that the putative supervisors did not exercise
independent judgment in issuing discipline.
iv.
Finally, we consider whether the putative supervisors had
the authority responsibly to direct employees by instructing
15
them regarding the manner in which they were to perform their
duties. A putative supervisor “responsibly directs” another
employee if he “direct[s] and perform[s] the oversight of the
employee,” and is “accountable for the performance of the task”
by the employee “such that some adverse consequence may befall
the one providing the oversight if the tasks performed by the
employee are not performed properly.” Oakwood, 348 N.L.R.B. at
690-92. As with the “assignment” and “discipline” inquiries,
the Board concluded that the employer had not established that
the putative supervisors used independent judgment in
responsibly directing employees’ work. Additionally, the Board
concluded that the employer failed to show that the putative
supervisors were held accountable for employees’ work. Because
we find that substantial evidence supports the Board’s
independent-judgment determination, we have no need to consider
the question of the putative supervisors’ accountability for the
work of others.
When the work performed by employees “is routine and
repetitive” and does not require “more than minimal guidance,”
direction from a putative supervisor does not involve
independent judgment. Shaw, 350 N.L.R.B. at 356. Accordingly,
although Lal testified that he told the employees “what they are
going to do and how they are going to do it,” and employees
confirmed that they received direction from the putative
16
supervisors, this evidence is not dispositive of the responsible
direction inquiry. The record indicates that the work performed
by hourly employees at the plant was sufficiently routine that
the employees did not require extensive direction. The evidence
also shows that the managers gave the putative supervisors a
list of work orders to be completed by employees during each
shift, and that the managers communicated frequently with the
putative supervisors regarding the assigned work, again
indicating that the putative supervisors’ discretion in
directing employees was minimal. 7 Given the totality of the
evidence, we conclude that substantial evidence supports the
Board’s determination that the putative supervisors did not
exercise independent judgment in their direction of employees.
We acknowledge that there is some evidence in the record
supporting the employer’s view of the putative supervisors’
authority regarding each of the four asserted supervisory
functions. Nevertheless, we are not charged with evaluating the
evidence de novo. Applying the deferential standard of review
for substantial evidence, we conclude that the Board reasonably
determined that the employer did not meet its burden of
7 As with the authority to assign, we disagree with the
employer that the putative supervisors exercised responsible
direction merely because there were no managers present at the
plant at certain times. Although the putative supervisors
clearly directed employees’ work to some extent, we must also
analyze whether they did so with independent judgment.
17
establishing the supervisory status of Lal, Martinez, Sanchez,
or Torres under 29 U.S.C. § 152(11). Accordingly, we will not
set aside the results of the election on the basis of
objectionable conduct by statutory supervisors. Cf. generally
Harborside Healthcare, Inc., 343 N.L.R.B. 906 (2004) (explaining
grounds for setting aside elections based on supervisory
misconduct).
B.
The employer argues, nonetheless, that even if Lal,
Martinez, Sanchez, and Torres are not supervisors as defined in
the Act, the Board election still should be set aside under the
standard for objectionable conduct by third-party employees.
The employer contends that Lal and Martinez “threatened” other
employees that they could lose their jobs if the union did not
win the election. We disagree with the employer’s argument.
The Board may set aside an election based on employee,
rather than supervisory, misconduct if such conduct “was so
aggravated as to create a general atmosphere of fear and
reprisal rendering a free election impossible.” Westwood
Horizons Hotel, 270 N.L.R.B. 802, 803 (1984). To determine
whether third-party threats are sufficiently serious to
establish “a general atmosphere of fear and reprisal,” we look
to
18
the nature of the threat itself . . .[;] whether the
threat encompassed the entire bargaining unit; whether
reports of the threat were disseminated widely within
the unit; whether the person making the threat was
capable of carrying it out, and whether it is likely
that the employees acted in fear of his capability of
carrying out the threat; and whether the threat was
‘rejuvenated’ at or near the time of the election.
Id. However, “threats of job loss for not supporting the union,
made by one rank-and-file employee to another, are not
objectionable.” Duralam, Inc., 284 N.L.R.B. 1419, 1419 n.2
(1987); see also Accubuilt, Inc., 340 N.L.R.B. 1337, 1338 (2003)
(same).
We conclude that the challenged statements by Lal and
Martinez do not meet the rigorous standard for objectionable
third-party conduct. For example, Martinez told other employees
that “there could be a possibility of [the employer] letting
[employees] go” if workers supported the company, and Lal stated
that if the employees did not “sign the union form” it would be
“a lot easier for the Company to be able to let employees go.”
In our view, these statements merely constitute general comments
about potential future job loss made by some employees to fellow
employees. 8 Under the standards set forth in Duralam and
Westwood, we hold that the Board did not clearly abuse its
8
We similarly are unpersuaded by the employer’s brief
assertion that the putative supervisors’ attendance at union
meetings and solicitation of union authorization cards amounted
to a “general atmosphere of fear and reprisal rendering a free
election impossible.” Westwood, 270 N.L.R.B. at 803.
19
discretion in declining to invalidate the results of the
election on the basis of these challenged statements. See Media
Gen. Operations, Inc., 360 F.3d at 441.
III.
For these reasons, we deny the employer’s petition for
review of the Board’s order, and grant the Board’s cross-
application for enforcement.
PETITION FOR REVIEW DENIED;
CROSS-APPLICATION FOR
ENFORCEMENT GRANTED
20