N.L.R.B. v. Dole Fresh Vegetables, Inc.

Decision Date28 May 2003
Docket NumberNo. 01-1978.,01-1978.
Citation334 F.3d 478
CourtU.S. Court of Appeals — Sixth Circuit

(argued and briefed), National Labor Relations Board, OFfice of the General Counsel, Washington, DC, for Petitioner.

Theodore R. Scott (argued and briefed), Michelle A. Herrera (briefed), Luce, Forward, Hamilton & Scripps, San Diego, CA, for Respondent.

Before SUHRHEINRICH and COLE, Circuit Judges; CARR, District Judge.**


COLE, Circuit Judge.

The National Labor Relations Board ("NLRB" or the "Board") petitions this Court for enforcement of its order issued against Dole Fresh Vegetables, Inc. ("Dole" or the "Company"). The Board found that Dole violated Sections 8(a)(5) and (1) of the National Labor Relations Act (the "Act"), 29 U.S.C. §§ 158(a)(1) and (3) (1998), by refusing to bargain with the duly elected labor union as the certified representative of a unit of Dole's employees. The issues on appeal are: (1) whether the Board reasonably concluded that two employees were not supervisors under Section 2(11) of the Act, 29 U.S.C. § 152(11) (1998); and (2) whether the Board abused its discretion by overruling Dole's objections to its decision without holding a post-election hearing to determine whether the two employees at issue should be classified as supervisors under Section 2(11) of the Act.

For the reason stated below, we GRANT the Board's petition for enforcement.

I. Background

Dole operates a plant in Springfield, Ohio that processes and distributes fresh vegetables. The plant employs approximately 310 employees, of which fifteen are maintenance employees. The plant operates three shifts, with production occurring in the first two shifts. Production is run at the plant for five or six days a week from about 7:30 a.m. until it is complete, usually around 12:00 a.m. The plant manager, Lenny Pelifian, is in charge of daily plant operations. In the maintenance department, the maintenance manager reports directly to Pelifian, but at the time of the pre-election hearing the position was vacant and Pelifian was serving as the acting maintenance manager. Two shift maintenance supervisors ("shift supervisors"), one for first shift and the other for the second shift, reported to Pelifian in his capacity as acting maintenance manager. Both the maintenance manager and the shift supervisors grant time off, approve overtime, and issue disciplinary warnings.

Maintenance employees are classified as maintenance leads ("leads"), maintenance packaging technicians, maintenance technicians, and maintenance parts clerks, and they all receive an hourly wage. Leads and maintenance technicians work on each shift, and the leads are usually the most experienced maintenance employees and report directly to the shift supervisors. At the time of the pre-election hearing the lead position for the first shift was vacant. During the third shift, the lead reports to the second-shift supervisor for the first two hours and then to the third-shift sanitation supervisor.

Generally, maintenance employees prepare Dole's equipment and machinery for production, referred to as "startup work," monitor production equipment, repair equipment, perform preventive maintenance and rebuild equipment. The leads spend about half of their time performing the various maintenance tasks and the other half preparing shift notes and doing related tasks. The leads are not able to schedule employees, grant time off, or authorize overtime, and they do not review the work performed by the technicians. The maintenance technicians spend about half of their time monitoring the equipment and the other half divided between performing startup work, addressing breakdowns, rebuilding equipment and performing preventive maintenance. The maintenance parts clerks ensure that there is an adequate inventory of parts available for the equipment and the plant overall. They do not work on the production floor and spend their time in the maintenance shop area.

The maintenance technicians do not receive specific instructions for their jobs from a shift supervisor or lead for startup work because the assigned tasks are routine. They do, however, receive work orders prepared by a shift supervisor specifying tasks to perform during the shift. The shift supervisors give the work orders to the leads who then pass along the orders to the maintenance technicians. After each shift ends, the maintenance technicians give the leads a list of the work completed by the technicians and the leads compile "shift notes" for the maintenance managers to use when preparing for the next shift.

A. The Representation Proceeding

On July 31, 2000, the International Union of Operating Engineers, Local 20 (the "Union") filed a representation petition with the Board seeking certification as the representative of eighteen maintenance employees. The Company opposed the petition, arguing that some of the employees the Union wanted to include should not be included, and that the lead position was supervisory and had to be excluded from the bargaining unit under the Act. Title 29 U.S.C. § 164(a) provides in relevant part:

Nothing herein shall prohibit any individual employed as a supervisor from becoming or remaining a member of a labor organization, but no employer subject to this subchapter shall be compelled to deem individuals defined herein as supervisors as employees for the purpose of any law, either national or local, relating to collective bargaining.

29 U.S.C. § 164(a) (1998). Section 2(11) of the Act defines a supervisor and reads:

(11) The term "supervisor" means any 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) (1998); see also 29 U.S.C. § 152(3) (1998) ("The term `employee' shall include any employee ... but shall not include ... any individual employed as a supervisor....").

A pre-election hearing was conducted by Charles H. Brooks, a Hearing Officer for the Board, on August 30, 2000, to determine whether the two leads, Larry Saunders and Robert Ford, were eligible for inclusion in the bargaining unit. At that hearing, both parties were represented by counsel, presented witnesses, cross-examined witnesses and introduced evidence. Following the pre-election hearing, the Board's Regional Director, Richard L. Ahearn, issued a Decision and Direction of Election on September 19, 2000. After reviewing the hearing transcript and examining the evidence, he made several findings including: (1) that an appropriate unit of employees (the "Unit") under Section 9(a) of the Act existed at the plant for purposes of collective bargaining; and (2) that Saunders and Ford were not supervisors within the meaning of Section 2(11) of the Act and therefore did not need to be excluded from the bargaining unit. The Regional Director also directed an election by secret ballot among the employees in the Unit to determine whether they wanted to be represented by the Union. A secret ballot was conducted on October 19, 2000. After the election, Dole filed a Request for Review of the Regional Director's Decision and Direction of Election. On October 24, 2000, the Board issued an Order denying Dole's request. The ballots were counted in the presence of Dole and the Union on October 31, 2000 and the results were as follows:

                Approximate number of eligible voters ..  17
                Number of void ballots ..................  0
                Number of votes cast for the Union ...... 14
                Number of votes cast against the Union ..  2

Upon losing the election by a vote of 14 to 2, Dole filed seven objections to the election. The first four objections alleged that Saunders and Ford engaged in conduct "interfering with the election or in conduct affecting the results of the election." The final three objections alleged that the Board engaged in objectionable conduct by including Saunders and Ford in the appropriate bargaining unit and by failing to dismiss the petition for representation due to "supervisory taint" of the election resulting from the activities of Saunders and Ford. The Regional Director issued a Supplemental Decision and Certification of Representative on November 21, 2000. He concluded: (1) that the issues regarding the supervisory status of Saunders and Ford were fully litigated in the pre-election hearing and that there was no additional evidence to support a departure from that previous finding; and (2) that Dole was not entitled to an evidentiary hearing on its objections. The Regional Director then overruled all of Dole's objections and certified the Union as the exclusive representative of the employees in the Unit. Dole submitted a Request for Review of the Regional Director's November 21, 2000 decision. On January 3, 2001 the Board denied the request.

B. The Unfair Labor Practice Proceeding

Following certification, Dole refused to recognize and bargain with the Union. The Union charged Dole with unfair labor practices in violation of Sections 8(a)(5) and (1) of the Act, which make it unlawful:

(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title;

. . .

(5) to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 159(a) of this title.

§§ 158(a)(1), (5). The Board's Acting General Counsel issued a Complaint and Notice of Hearing, alleging that Dole refused to bargain...

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