Professional Documents
Culture Documents
Unpublished
Unpublished
No. 15-1111
No. 15-1186
Argued:
Decided:
We also
agree with the Boards conclusion that the four individuals did
not engage in objectionable conduct sufficient to set aside the
results of the election under the Boards third-party misconduct
standard.
review of the Boards final order, and grant the Boards crossapplication for enforcement of its order.
I.
U.S. Fibers (the employer) recycles polyester fibers at a
plant located in Trenton, South Carolina.
served
as
vice
president
of
operations,
Kevin
Corey
as
indisputably
qualify
as
managerial
in
nature.
These
At
Act
of
four
individuals,
Jose
Lal,
David
Martinez,
Eduardo
(the
putative
supervisors).
The
putative
These groups
who was more skilled and experienced than the other members of
the
team.
The
team
leads
reported
to
the
putative
Forestry,
Rubber,
supervisors.
The
United
Manufacturing,
Steel,
Energy,
Paper
and
Allied-Industrial
and
Service
Workers
the
employers
objection
the
putative
supervisors
The union
employer
filed
objections
to
the
results
of
the
be
set
conduct
aside.
and
that
The
the
results
regional
4
of
director
the
of
election
the
Board
set
aside
under
the
objectionable
conduct.
certified
union
the
Boards
The
as
the
standard
regional
employees
for
third-party
director
therefore
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
Boards
and
desist
unfair
practices
and
to
recognize
and
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.
Id. at 441.
findings
they
if
are
by
substantial
evidence
to
support
conclusion,
that
is,
more
than
Gestamp
South Carolina, L.L.C. v. NLRB, 769 F.3d 254, 263 (4th Cir.
2014) (citation omitted).
Id.
A.
The
employer
concluding
that
first
Lal,
argues
Martinez,
that
Sanchez,
the
Board
and
Torres
erred
in
are
not
and
responsibly
direct
employees.
The
employer
We disagree
under
the
Act
is
supported
by
substantial
evidence.
The
Board
may
set
aside
an
election
if
conduct
by
employees
may
be
induced
to
support/oppose
the
union
906,
907
(2004).
is
the
burden
of
the
party
(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
any
one
of
the
twelve
supervisory
functions
in
Section
in
the
interest
of
the
employer.
Id.
(citation
and
intended
to
Acts
distinguish
definition
true
of
supervisors
supervisor
vested
with
is
genuine
management
Accordingly,
and
form
comparing data.
an
opinion
or
evaluation
by
discerning
and
Judgment is
Id. at
in
Section
152(11)
as
act
of
designating
an
In the
record
reveals
that
Lals
and
Sanchezs
The
evidence
supports
assigned
employees
to
relative
experience,
work
he
the
groups
only
did
conclusion
based
so
on
within
that,
when
Lal
the
employees
the
team
lead
instructed
follow
employees
whether
to
the
plants
rule
of
assignment
judgment,
because
functions
the
required
decisions
10
the
were
use
made
of
independent
according
to
therefore
hold
that
the
Boards
decision
regarding
the
authority
Section
to
reward
definition
in
152(11)
if
350
although
N.L.R.B.
Lal,
recommending
regarding
354,
Sanchez,
employee
the
recommendations
357
extent
and
raises,
to
affected
(2007).
Martinez
the
which
the
The
Board
were
evidence
the
he
Shaw,
found
involved
that
in
was
inconclusive
putative
supervisors
employers
ultimate
decision.
without
the
benefit
of
written
guidelines.
After
offered
decision.
their
input
to
Oh,
who
made
the
ultimate
putative
supervisors
opinions
to
determine
the
final
our
view,
that
the
the
Board
have
concluded
supervisors
at
least
from
this
had
the
29
U.S.C. 152(11).
putative
could
12
We therefore conclude
we
consider
whether
the
putative
supervisors
were
Section
152(11),
because
the
putative
employer
failed
to
prove
that
supervisors
were
the
putative
supervisors
record
blank
includes
warning
Lals
forms
testimony
to
the
that
the
putative
managers
supervisors,
All
that
putative
supervisor
exercised
independent
at
the
cases.
In
other
explicit
direction
instances,
the
of
putative
manager
in
supervisors
certain
simply
13
This
putative
evidence
supports
supervisors
did
the
not
Boards
act,
or
conclusion
effectively
that
the
recommend
Accordingly, we
N.L.R.B.
657
(2007),
in
which
putative
supervisor
was
Id. at 660.
decisions,
(2)
management
did
not
conduct
an
Id. at
660-61.
In
the
present
case,
as
in
Metro
Transport,
management
who
had
committed
safety
violations.
However,
in
make
discipline,
an
individualized
but
instead
assessment
acted
as
of
conduits
the
for
need
for
managements
See Shaw, 350
that
the
putative
supervisors
did
not
exercise
authority
responsibly
to
direct
15
employees
by
instructing
putative
supervisor
responsibly
directs
another
the Board concluded that the employer had not established that
the
putative
supervisors
used
independent
judgment
in
Because
we
Boards
find
that
substantial
evidence
supports
the
the
work
performed
by
employees
is
routine
and
from
independent judgment.
putative
supervisor
does
not
involve
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
16
direction
from
the
putative
The evidence
supervisors
indicating
that
regarding
the
the
putative
supervisors
we
conclude
determination
assigned
work,
again
discretion
in
that
substantial
that
the
putative
evidence
supports
supervisors
did
the
not
the
employers
regarding
each
view
of
of
the
the
four
putative
asserted
supervisors
supervisory
evidence de novo.
that
the
employer
did
not
meet
its
burden
of
aside
the
results
of
the
election
on
the
basis
of
Cf. generally
for
setting
aside
elections
based
on
supervisory
misconduct).
B.
The
employer
argues,
nonetheless,
that
even
if
Lal,
for
objectionable
conduct
by
third-party
employees.
Board
than
aggravated
may
set
aside
supervisory,
as
to
create
a
an
election
misconduct
a
free
if
general
reprisal
rendering
Horizons
Hotel,
270
N.L.R.B.
802,
whether
third-party
threats
are
based
such
conduct
atmosphere
election
on
of
impossible.
803
(1984).
sufficiently
employee,
was
fear
so
and
Westwood
To
determine
serious
to
18
made
by
one
rank-and-file
objectionable.
Duralam,
employee
Inc.,
284
to
another,
N.L.R.B.
1419,
are
not
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
Under
Westwood,
hold
we
the
that
standards
the
Board
set
forth
did
not
in
Duralam
clearly
abuse
and
its
discretion
in
declining
to
invalidate
the
results
of
the
See Media
III.
For
review
these
of
the
reasons,
Boards
we
deny
order,
the
and
employers
grant
the
petition
Boards
for
cross-
20