Pac Tell Group, Inc. v. NLRB
Filing
UNPUBLISHED AUTHORED OPINION filed. Motion disposition in opinion--denying petition for review [999521236-2] in 15-1111; granting Motion for enforcement of agency order (FRAP 15) [999534381-2] in 15-1186 Originating case number: 10-CA-139779 Copies to all parties and the district court/agency. [999724201].. [15-1111, 15-1186]
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UNPUBLISHED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
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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granted by unpublished opinion.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/CrossRespondent.
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/CrossPetitioner.
Unpublished opinions are not binding precedent in this circuit.
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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 crossapplication 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.
positions
indisputably
qualify
as
managerial
in
nature.
These
At
issue in this case is the alleged supervisory status under the
3
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Act
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of
four
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individuals,
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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
Forestry,
Rubber,
supervisors.
The
United
Manufacturing,
Steel,
Energy,
Paper
and
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.
over
the
employer’s
objection
The Board directed an election
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
should
be
set
conduct
aside.
and
that
The
the
results
regional
4
of
director
the
of
election
the
Board
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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
objectionable
conduct.
certified
union
the
Board’s
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
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).
cease
and
desist
The Board ultimately ordered the employer to
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.”
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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.
findings
they
if
are
We will affirm the Board’s factual
supported
considering the record as a whole.
377 F.3d 394, 398 (4th Cir. 2004).
by
substantial
evidence
CSX Hotels, Inc. v. NLRB,
Substantial evidence is
“such relevant evidence as a reasonable mind might accept as
adequate
to
support
a
conclusion,”
that
is,
more
scintilla of evidence, but less than a preponderance.
than
a
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.
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A.
The
employer
concluding
that
first
Lal,
argues
Martinez,
supervisors under the Act. 2
that
Sanchez,
the
Board
and
erred
Torres
in
are
not
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.
with the employer’s argument.
We disagree
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.”
N.L.R.B.
906,
907
(2004).
Harborside Healthcare, Inc., 343
It
2
is
the
burden
of
the
party
Because the Board adopted the reasoning of the regional
director, our references to the Board’s findings include those
of the regional director.
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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
intended
to
internal quotation marks omitted).
The
Act’s
distinguish
definition
“true
of
supervisors
“supervisor”
vested
with
is
‘genuine
management
prerogatives,’ [from] employees such as ‘straw bosses, lead men,
and set-up men’ who are protected by the Act even though they
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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
comparing data.”
an
opinion
or
evaluation
by
discerning
Id. at 692-93 (citation omitted).
and
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.”
693.
Id. at
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.
“assign”
in
Section
152(11)
as
The Board has defined the term
“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.
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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
assigned
employees
to
relative
“experience,”
work
he
the
groups
only
did
conclusion
based
so
on
within
that,
when
Lal
the
employees’
the
team
lead
structure imposed by management.
The putative supervisors also
instructed
follow
employees
whether
to
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”
judgment,
because
functions
the
required
decisions
10
the
were
use
made
of
independent
according
to
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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
Section
to
reward”
definition
in
152(11)
if
“play[s] a significant role in affecting” such raises.
Inc.,
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’
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.”).
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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
decision.
their
input
to
Oh,
who
made
the
ultimate
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’
proposal to give to Oh.
opinions
to
determine
the
final
Jang testified that management agreed
with the putative supervisors’ recommendations 90 percent of the
time.
In
evidence
our
view,
that
the
the
Board
have
concluded
supervisors
at
least
from
this
had
the
authority “effectively to recommend” raises for employees.
29
U.S.C. § 152(11).
putative
could
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.
12
We therefore conclude
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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
responsible for issuing written warnings.
the
employer
failed
to
prove
that
supervisors
were
The Board held that
the
putative
supervisors
exercised independent judgment when they disciplined employees.
The
provided
record
blank
includes
warning
Lal’s
forms
testimony
to
the
that
the
putative
managers
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”).
warnings
at
the
cases.
In
other
explicit
The putative supervisors issued
direction
instances,
the
of
a
putative
manager
in
supervisors
certain
simply
implemented in a routine fashion the requirement that they warn
employees who did not comply with certain workplace rules.
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This
putative
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evidence
supports
supervisors
did
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the
not
Board’s
“act,
or
conclusion
effectively
that
the
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.
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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
discipline,
an
individualized
but
instead
assessment
acted
as
of
conduits
the
for
directive to enforce particular safety protocols.
need
for
management’s
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
15
employees
by
instructing
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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.”
690-92.
Oakwood, 348 N.L.R.B. at
As with the “assignment” and “discipline” inquiries,
the Board concluded that the employer had not established that
the
putative
supervisors
used
independent
responsibly directing employees’ work.
judgment
in
Additionally, the Board
concluded that the employer failed to show that the putative
supervisors were held accountable for employees’ work.
Because
we
Board’s
find
that
substantial
evidence
supports
the
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
independent judgment.
putative
supervisor
does
Shaw, 350 N.L.R.B. at 356.
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
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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
indicating
that
regarding
the
the
putative
supervisors’
directing employees was minimal. 7
evidence,
Board’s
we
conclude
determination
assigned
work,
again
discretion
in
Given the totality of the
that
substantial
that
the
putative
evidence
supports
supervisors
did
the
not
exercise independent judgment in their direction of employees.
We acknowledge that there is some evidence in the record
supporting
authority
functions.
the
employer’s
regarding
each
view
of
of
the
the
four
putative
asserted
supervisors’
supervisory
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
7
not
meet
its
burden
of
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.
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establishing the supervisory status of Lal, Martinez, Sanchez,
or Torres under 29 U.S.C. § 152(11).
set
aside
the
results
of
the
Accordingly, we will not
election
on
the
objectionable conduct by statutory supervisors.
basis
of
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.
The
rather
Board
than
aggravated
We disagree with the employer’s argument.
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
establish “a general atmosphere of fear and reprisal,” we look
to
18
Appeal: 15-1111
Doc: 62
Filed: 12/23/2015
Pg: 19 of 20
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
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
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
Westwood,
hold
we
the
that
standards
the
Board
8
set
forth
did
not
in
Duralam
clearly
abuse
and
its
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
Appeal: 15-1111
Doc: 62
discretion
in
Filed: 12/23/2015
declining
to
Pg: 20 of 20
invalidate
the
results
election on the basis of these challenged statements.
of
the
See Media
Gen. Operations, Inc., 360 F.3d at 441.
III.
For
review
these
of
the
reasons,
Board’s
we
deny
order,
the
and
employer’s
grant
the
petition
Board’s
for
cross-
application for enforcement.
PETITION FOR REVIEW DENIED;
CROSS-APPLICATION FOR
ENFORCEMENT GRANTED
20
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