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National Labor Relations Board v. Missouri Red Quarries, Inc.

United States Court of Appeals, Eighth Circuit

April 6, 2017

National Labor Relations Board Petitioner
Missouri Red Quarries, Inc. Respondent Eastern Missouri Laborers' District Council Intervenor Missouri Red Quarries, Inc. Petitioner
National Labor Relations Board Respondent Eastern Missouri Laborers' District Council Intervenor

          Submitted: September 20, 2016.

         National Labor Relations Board

          Before RILEY, Chief Judge, [1] MURPHY and SMITH, Circuit Judges.

          RILEY, Chief Judge.

         The National Labor Relations Board ruled Missouri Red Quarries, Inc. (Missouri Red) committed an unfair labor practice under the National Labor Relations Act (NLRA), see 29 U.S.C. § 158(a)(1), (5), by refusing to recognize and collectively bargain with the Eastern Missouri Laborers' District Council (the union). The key issue before us is not about the unfair labor practice itself, but rather whether the Board was correct to certify the union in the first place. The Board certified the union only after it upheld a challenge to Steve Johnston's potentially determinative ballot by declaring him a statutory supervisor and thus not entitled to vote. Missouri Red contends this was error and petitions for review of the Board's decision. The Board cross-petitions for enforcement of its order, and the union intervened in support of the order. We deny the petition for review and grant the cross-petition for enforcement.

         I. BACKGROUND

         Missouri Red operates a granite quarry in Ironton, Missouri. The quarry is staffed by ten individuals who excise granite from the quarry pits, called the "ledge, " cut the granite to the desired specifications in the saw plant, and ship it to a facility in Georgia where it is manufactured for sale. The company is owned by Tom Oglesby, who also owns and oversees four other operations in Georgia and Oklahoma that employ about 140 individuals in all. Oglesby's principal office is in Elberton, Georgia, 621 miles from Ironton. As a result, his visits to the Ironton quarry are limited to a day-long visit every month or sometimes more. Oglesby stays informed by talking with Johnston-the subject of the instant petitions-for about ten minutes every week. Despite Oglesby's other business ventures, the distance, and his limited physical presence, Oglesby testified he manages Missouri Red "totally" and is "in charge of everything."

         There was a clear on-site supervisor at the Ironton quarry until June 2013, when his employment at Missouri Red ended. Rather than hire a replacement, Oglesby implemented a decentralized system at Ironton with four foremen and no named supervisors.[2] Johnston was elevated to one of these foreman positions and took on certain administrative responsibilities in addition to his duties in the saw plant. Johnston estimated about 90% of his time is spent performing typical bargaining-unit work and the other 10% is spent completing administrative tasks. Though Oglesby claimed he vested each foreman with identical (non-supervisory) authority, employees viewed Johnston as the head person, having been told by Oglesby to take any problems to Johnston, and one Missouri Red employee testified "[Johnston] was the guy in charge and everybody knew it."

         Crucial to this appeal is the role Johnston played in Missouri Red hiring two new employees. The first employee is Josh Moses, who was hired at some point in 2014. Johnston had gone to school with Moses's parents, knew he was young and in need of a job, and "figured he'd be a hard worker" because Moses had grown up on a farm. Johnston also knew Missouri Red had fired an employee from the ledge several weeks earlier, and he did not believe anyone had yet applied to fill the opening. Sensing a match, Johnston called Oglesby and told him about Moses. Oglesby told Johnston to "have him come in, do his drug test, and if he passes, " hire him. Moses came in the next day, filled out an application for the first time, passed his drug test, spoke with Johnston briefly, and went to work. Shane Horn was hired in a similar fashion. In August 2014, another employee told Johnston that Horn was interested in a job. Johnston, who had "known Shane since he was a kid, " called Oglesby to relay his co-worker's comment and inquire about hiring Horn. Oglesby said to "have him come in, get his drug test, and if he passes, send him to work." Johnston did just that, and Horn was hired.[3]

         In April 2015 the union filed a petition with the Board seeking to represent all quarry employees not excluded under the NLRA, 29 U.S.C. §§ 151, et seq. An election was held shortly thereafter and the votes were tallied: five votes for union representation and four votes against. Johnston's ballot remained sealed because the union argued he was a statutory supervisor under § 152(11) of the NLRA and therefore not entitled to vote. Because Johnston's vote was potentially determinative-as a five-five even split would result in the union not being certified, see id. § 159(a)-the Regional Director ordered a hearing be held. The parties presented their evidence and arguments to the Hearing Officer, who concluded Johnston was not a supervisor and thus recommended his vote be counted. The union filed exceptions and each party submitted briefs to the Regional Director. The Regional Director accepted the Hearing Officer's credibility determinations, but declared Johnston a supervisor given his effective authority to recommend hire[4] and various secondary indicia.

         Having upheld the union's challenge to Johnston's ballot, the Regional Director certified the union. Missouri Red sought review by the Board, which summarily denied the request.[5] In order to seek review of the certification, Missouri Red declined to recognize the union and refused to bargain with it. The union filed an unfair-labor-practice charge with the Board, alleging violations under § 158(a)(1) and (5) of the NLRA. Missouri Red admitted its refusal to bargain, but reiterated its position that the underlying certification was improper. The Board granted summary judgment to the union because "[a]ll representation issues raised by [Missouri Red] were or could have been litigated in the prior representation proceeding." The Board ordered Missouri Red to cease and desist, and "bargain on request with the Union." Missouri Red has not done so, and petitions this court for review of the Board's order and underlying decision to certify the union. The Board cross-petitions for enforcement of its order. See id. § 160(f) (appellate jurisdiction).


         The NLRA affords employees certain rights-including the right to organize and vote on representation-that do not extend to supervisors, thus whether Johnston's vote should be counted depends on whether he is a supervisor. See id. §§ 152(3), 157, 159. The statutory definition of "supervisor" has three components. See id. § 152(11); Multimedia KSDK, Inc. v. NLRB, 303 F.3d 896, 899 (8th Cir. 2002) (en banc). First, the individual must have the authority to accomplish or effectively to recommend one or more of the twelve supervisory actions listed in § 152(11), which includes hiring. See Multimedia KSDK, 303 F.3d at 899. Second, "the authority must involve the use of independent judgment and be more than routine or clerical in nature." Id. Third, the authority must be held in the interest of the employer. See id. The party asserting supervisory status-here, the union-bears the burden of establishing these requirements. See NLRB v. Ky. River Cmty. Care, Inc., 532 U.S. 706, 711 (2001).

         Determining supervisory status under this three-part approach is fact-intensive and "'calls upon the [Board's] special function of applying the general provisions of the [NLRA] to the infinite gradations of authority within a particular industry.'" Securitas Critical Infrastructure Servs., Inc. v. NLRB, 817 F.3d 1074, 1078 (8th Cir. 2016) (quoting NLRB v. Chem Fab Corp., 691 F.2d 1252, 1256 (8th Cir. 1982)). We review the Board's conclusion "'under the deferential substantial evidence standard of review.'"[6] Id. (quoting NLRB v. Whitesell Corp., 638 F.3d 883, 890 (8th Cir. 2011)); see 29 U.S.C. § 160(f) ("[T]he findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall . . . be conclusive."). Provided there is substantial evidence, "'we may not preempt the Board's choice between two fairly conflicting views of that evidence.'" Securitas, 817 F.3d at 1078 (quoting JHP & Assocs. v. NLRB, 360 F.3d 904, 911 (8th Cir. 2004)).

         Missouri Red tries to chip away at the considerable discretion we give the Board by asserting "the Board is known for inconsistent determinations in regard to 'supervisory status'" and in this case "seemingly went to great lengths, contrary to its precedent and policy of narrowly defining supervisory status, to define Johnston as a statutory supervisor." We are not wholly unreceptive to this argument, and have in fact expressed our own concern about the Board's apparent attempts to stretch the NLRA's protections. See Beverly Enters. v. NLRB, 148 F.3d 1042, 1045-46 (8th Cir. 1998); Schnuck Mkts., Inc. v. NLRB, 961 F.2d 700, 704 (8th Cir. 1992). The Board asserts such perceived pro-union bias is attributable to a "bygone era of Board decision-making." We do not necessarily agree.

         As a result of this concern, "'our review necessarily becomes more probing'" and "a close and thorough examination of the record is called for to ensure that the Board's findings are supported by substantial evidence and that its decision is not arbitrary and capricious." Beverly Enters., 148 F.3d at 1046 (quoting Schnuck Mkts., 961 F.2d at 704). Yet we have rejected a plea to alter our standard of review so as to presume Board decisions are "the inevitable product of a pro-union bias, " id., and the deferential substantial evidence standard remains, see Securitas, 817 F.3d at 1078.[7]Thus we will uphold the Board's order if (and only if) a close examination of the record reveals substantial evidence Johnston had authority effectively to recommend that Missouri Red hire Moses and Horn, and in so doing exercised his independent judgment.[8]

         A. Authority to Recommend Hire

         The Regional Director's conclusion that "Johnston effectively recommended both Moses and Horn for hire" relied primarily on its finding "Johnston's recommendation to hire proved determinative, " given that Oglesby did not conduct "any sort of independent review." "The Board has consistently applied the principle that authority effectively to recommend generally means that the recommended action is taken without independent investigation by superiors." Children's Farm Home, 324 N.L.R.B. 61, 61 (1997) (emphasis added); see, e.g., Schnuck Mkts., 961 F.2d at 705; Donaldson Bros. Ready Mix, Inc., 341 N.L.R.B. 958, 962 (2004) (finding supervisory status because management's "independent evaluation of [the supervisor's] recommendations consist[ed] solely of reviewing . . . applications"); Venture Indus., Inc., 327 N.L.R.B. 918, 919-20 (1999) (finding authority effectively to recommend discipline and hiring even though management would "conduct[] a followup investigation about 30 to 40 percent of the time" and did not always follow the supervisors' recommendations); Fred Meyer Alaska, Inc., 334 N.L.R.B. 646, 647 (2001).

         Missouri Red does not suggest Oglesby conducted any sort of independent investigation before instructing Johnston to hire Moses and Horn, and the evidence bears this out. Oglesby's involvement was limited to receiving calls from Johnston, requiring the candidates pass a drug test, [9] and giving final approval for them to be hired. Oglesby did not speak with either candidate, and there is no indication Oglesby sought information beyond what Johnston provided or ever withheld approval for Johnston's hiring recommendations. In comparison, Johnston played a role that exceeded "the mere screening of applications or other ministerial participation." J.C. Penney Corp., 347 N.L.R.B. 127, 129 (2006). Johnston initiated the hiring process by suggesting Moses and Horn-neither of whom had even applied-to Oglesby. While perhaps not a formal "interview, " he spoke to both candidates before they were hired. Horn went to Johnston when he first arrived at Missouri Red because "[t]hat's who [he] heard to talk to." It was Johnston who made sure Moses and Horn completed their paperwork and drug tests before sending them to work. There is evidence to suggest Johnston's co-workers were aware of his unique role in hiring. According to one employee, "[i]f we had an opening in the company and you had somebody in mind that you thought would be a good person, you'd go tell Steve Johnston." This testimony supports the Regional Director's inference that the employee who initially told Johnston about Horn's interest in a job "did not feel empowered to make a word-of-mouth recommendation directly to Oglesby" and instead told Johnston.

         Missouri Red contends this evidence is insufficient when compared to other Board decisions, and that Johnston's comments to Oglesby about Moses and Horn are more akin to personal references than recommendations evidencing any sort of supervisory authority. On the surface, the Board's decision in Jefferson Chemical Co., 237 N.L.R.B. 1099, 1102 (1978), could be read to support this contention. In that case, management sometimes asked a welding inspector to recruit a new employee given his "wide acquaintance among welders in the locality as a result of his many years in the trade and the fact that he ha[d] served as a welding instructor." Id. In such instances the welder would "vouch[] for their character and qualifications, " and the recruits were thereafter hired. Id. In finding such participation did not confer supervisory status, the Board held: "The fact that a recommendation for the employment of an applicant is approved out of respect for the judgment of another, rather than because of his delegated authority to participate in the hiring process, is . . . not an indicium of supervisory authority." Id.

         The Board has not required the delegation of such authority to be explicit, however. In Your Public Radio Corp. Employer, 200 L.R.R.M. (BNA) 1055, 2014 WL 3613193, at *3-9 (July 7, 2014), the Board found supervisors possessed delegated authority effectively to recommend hire where they handled virtually every aspect of the hiring process. Depending on the situation, the supervisors screened applicants or took it upon themselves to recruit co-workers they thought would be a good fit for the job; they met with applicants; and they made recommendations to management, who "relied exclusively on their recommendations when making job offers." Id. at *9. Management would then meet with candidates, "discuss[] salary and mak[e] job offers." Id. Presumably management rubber stamped the supervisors' recommendations out of a respect ...

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