Pac Tell Group, Inc. v. NLRB

Filing

AMENDED OPINION filed amending and superseding opinion dated 12/23/2015. Motion disposition--granting Motion to publish opinion/order (Local Rule 36(b)) [999736860-2]. Originating case number: 10-CA-139779. Copies to all parties.. [15-1111, 15-1186]

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PUBLISHED
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)

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Argued:

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October 27, 2015
Amended:

Decided:

December 23, 2015

March 15, 2016

Before KEENAN, WYNN, and DIAZ, Circuit Judges.

Petition for review denied; cross-application for enforcement
granted by published 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.

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BARBARA MILANO KEENAN, Circuit Judge:
In this appeal, we consider the National Labor Relations
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
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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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not

the

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

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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

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Doc: 72

discretion

in

Filed: 03/15/2016

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