N.L.R.B. v. St. Clair Die Casting, L.L.C.

• Decision Date: 13 September 2005
• Docket Number: No. 04-2920.,04-2920.
• Citation: 423 F.3d 843
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ST. CLAIR DIE CASTING, L.L.C., Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

423 F.3d 843

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ST. CLAIR DIE CASTING, L.L.C., Respondent.

No. 04-2920.

United States Court of Appeals, Eighth Circuit.

Submitted: June 22, 2005.

Filed: September 13, 2005.

Robert D. Younger, argued, St. Louis, MO (Geoffrey M. Gilbert, on the brief), for petitioner.

Amy Ginn, argued, Washington, DC (William M. Bernstein, Arthur F. Rosenfeld, John E. Higgins, Jr., John H. Ferguson Aileen A. Armstrong, and Fred B. Jacob, on the brief), for respondent.

Before MURPHY, BYE, and SMITH, Circuit Judges.

MURPHY, Circuit Judge.

Petitioner National Labor Relations Board (Board) seeks enforcement of its order that St. Clair Die Casting, L.L.C. (St.Clair) bargain with the union which won a representation election at its plant and furnish bargaining information. The order was based on the Board's findings that St. Clair committed unfair labor practices by refusing to meet and bargain after the union won the election by a vote of 71-51 and was certified as the exclusive collective bargaining representative. St. Clair contends that four supervisors were improperly included in the bargaining unit and that this affected the outcome of the election. We enforce the Board's order.

I.

St. Clair is located in St. Clair, Missouri, and it manufactures custom aluminum and zinc die castings. On August 20, 2003, the International Union, United Automobile, Aerospace & Agricultural Implement Workers of America-UAW (Union) filed a petition with the Board seeking to represent an employee unit in collective bargaining. The unit was composed of approximately 131 production, material handling, and maintenance employees at the plant. St. Clair opposed the petition, arguing that four setup specialists in the machine and finishing department should not be included in the unit because they were supervisors within the meaning of § 2(11) of the National Labor Relations Act (NLRA), 29 U.S.C. § 152(11).

A Board hearing officer held an evidentiary hearing on September 5, 2003, to determine the appropriateness of the unit and the status of the four setup specialists: Raymond Bay, James Price, Robert Sibole, and Harry Kroenlien. Two of the specialists were called as witnesses: Bay by St. Clair and Price by the Union. Bill Phillips, the coach or supervisor for the machine and finishing department, also testified for St. Clair, and it submitted a post hearing brief. The decision and direction of election, issued after the hearing by the Board's acting regional director, found that the four setup specialists were not supervisors as defined in § 2(11) of the NLRA, concluded that they were properly included in the voting unit, and directed that a secret ballot election be conducted to determine whether the employees wished to be represented by the Union.

St. Clair filed a request for review of the decision and direction of election, arguing that the acting regional director had erred by finding that the challenged employees were not supervisors and by including them in the voting unit. The Board decided that the request for review raised only one substantial issue, whether setup specialist Bay was a supervisor, and that the best way to resolve the issue would be "through the use of the Board's challenge procedure." The Board then amended the decision and direction of election by the acting regional director to provide that Bay could vote under challenge in the representation election. One member of the three person Board disagreed and would have entirely denied the request for review.

The Board conducted the election at the St. Clair plant on October 9, 2003, to determine whether the employee unit wanted to be represented by the Union. The Union won the election by a vote of 71 to 51, and the acting regional director certified it as the exclusive bargaining representative for the employee unit. The unit was described as all "full-time and regular part-time production and maintenance employees, including material handling, quality, and tool room employees, team leaders, and setup specialists employed by the Employer at its St. Clair, Missouri facility, EXCLUDING temporary employees, office clerical and professional employees, guards and supervisors as defined in the Act." Challenges were made to the ballots of the four setup specialists and one other employee, but it is not disputed that under Board procedure such challenges need not be investigated before certification unless they are sufficient in number to affect the outcome of the election.

After the Union was certified, it requested that St. Clair furnish it with "data pertinent to these negotiations."¹ The requests were made in a series of letters to the company dated October 31, 2003, December 18, 2003, and January 14, 2004. St. Clair did not respond to the requests, and the Union filed an unfair labor practice charge alleging that it had violated §§ 8(a)(1) and (a)(5) of the NLRA. The Union also sent a letter to St. Clair on February 19, 2004, demanding that the company meet and bargain with it. The company refused to do so, and the Union filed another unfair labor practice charge, alleging that St. Clair also violated §§ 8(a)(1) and (a)(5) by refusing and failing to meet and bargain with the Union.

The cases were consolidated, and the Board's general counsel issued a complaint which included allegations that St. Clair's refusal to bargain and furnish information violated §§ 8(a)(1) and (a)(5). In its answer St. Clair admitted it had refused to furnish information and to bargain, but it argued that it was not required to do either because the bargaining unit improperly included one or more setup specialists who were supervisors under the statute. The general counsel moved for summary judgment and filed a brief in support, and the Board asked St. Clair to show cause why the motion should not be granted. St. Clair's response stated that it had not violated the NLRA because there were supervisors included in the bargaining unit.

The Board granted the motion for summary judgment, finding that St. Clair had violated §§ 8(a)(1) and (a)(5) of the NLRA by refusing to bargain with the Union and to furnish it with pertinent information and that all the issues raised by St. Clair were or could have been litigated during the earlier representation proceeding. The Board observed that the company had not offered to produce "any newly discovered and previously unavailable evidence, nor does it allege any special circumstances that would require the Board to reexamine the decision made in the representation proceeding." The Board rejected St. Clair's contention that the Union's certification was invalid, found that the bargaining unit was appropriate, and ordered St. Clair to bargain with the Union and furnish it with the requested information. The Board now seeks enforcement of this order.

II.

St. Clair argues that the Board erred in upholding the acting regional director's conclusion that the four setup specialists were not supervisors under § 2(11) of the NLRA. It contends that the setup specialists used independent judgment in assigning tasks, in issuing secondary disciplinary forms, and in evaluating employees. According to St. Clair, it need not bargain with the Union because the bargaining unit includes supervisors. In support it cites 29 U.S.C. § 164(a), a section of the NLRA which states that "no employer ... shall be compelled to deem individuals defined herein as supervisors as employees for the purpose of any law ... relating to collective bargaining"; Pony Express Courier Corp. v. NLRB, 981 F.2d 358, 364 (8th Cir.1992) (citing § 164 and stating that employers are not required to bargain with unions that represent supervisors); and Waverly-Cedar Falls Health Care Ctr., Inc. v. NLRB, 933 F.2d 626, 628-29 (8th Cir.1991) (same). It further contends that the inclusion of supervisors in the unit tainted the result of the election. St. Clair contends that it has never had the opportunity to litigate "substantial issues" with respect to the supervisory status of Bay and that the Board's order must be reversed and the case remanded.

The Board argues that St. Clair has failed to establish that any of the four setup specialists are supervisors within the meaning of the NLRA. It alternatively contends that even if the setup specialists were supervisors, its order should be enforced because the inclusion of the four specialists did not affect the outcome of the representation election. As to Bay's status, it points out that his vote had no impact on the election and that several procedural options had been available to St. Clair to resolve the question of his eligibility, such as negotiating with the Union or petitioning for unit clarification under § 102.60(b) of the Board's Rules and Regulations. The Board also states in a Rule 28(j) letter submitted after oral argument that St. Clair could have raised any allegation of taint by objecting under § 102.69.² That provision allows a party to raise objections to the conduct of an election, or conduct affecting the results of the election, within seven days of the tally of ballots.

A.

In § 10(a) of the NLRA Congress empowered the Board to prevent any person from engaging in any unfair labor practice affecting commerce. 29 U.S.C. § 160(a). Section 8(a)(1) of the NLRA provides that it is an unfair labor practice for an employer "to interfere with, restrain, or coerce" employees in the exercise of their rights to organize and bargain collectively. 29 U.S.C. § 158(a)(1). Section 8(a)(5) provides that it is also an unfair labor practice for an employer "to refuse to bargain collectively with the representatives of his employees." 29 U.S.C. § 158(a)(5). In order to advance the bargaining process, an employer has an affirmative obligation to furnish the recognized employee representative with information it needs. NLRB v. Acme Indus. Co., 385 U.S. 432, 435-36, 87 S.Ct. 565, 17 L.Ed.2d 495 (1967).

Whenever the...