N.L.R.B. v. Yuba Natual Resources, Inc.
| Decision Date | 06 August 1987 |
| Docket Number | No. 86-7387,86-7387 |
| Citation | 824 F.2d 706 |
| Parties | 126 L.R.R.M. (BNA) 2165, 107 Lab.Cas. P 10,082 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. YUBA NATURAL RESOURCES, INC., Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
John Welsh, Washington, D.C., for petitioner.
Patricia S. Radez, San Francisco, Cal., for respondent.
On Application for Enforcement of an Order of the National Labor Relations Board.
Before FLETCHER, BEEZER and THOMPSON, Circuit Judges.
The National Labor Relations Board (the Board) petitions for enforcement of its order requiring Yuba Natural Resources, Inc. (Yuba) to bargain with Operating Engineers Local Union No. 3. Yuba admits its refusal to bargain with the union, but contends that the union was improperly certified by the Board.
Yuba contends that the Board erred in concluding that Clay Adamson, a union proponent, was not a supervisor within the meaning of the National Labor Relations Act (NLRA). Yuba also argues that the Board erred in failing to consolidate this case with another unfair labor practice claim. We grant the Board's petition for enforcement.
Yuba produces and sells rock and aggregate products from its facility located in Marysville, California. During the summer of 1983, the Marysville facilities included a central complex, the "Ores Plant," and a construction site for a new plant. 1 Seven employees, operating in two shifts, worked at the Ores Plant which provided all Yuba's materials. The plant manager was Loren Gilmore. Clay Adamson was a plant operator.
In June 1983, as Yuba's new plant neared completion, Phil Sutherling, Yuba's Executive Vice President of Operations, notified Loren Gilmore that he was needed full time at the new plant. Loren Gilmore selected Adamson to act as leadman during his absence. In a memorandum distributed to employees, Loren Gilmore stated,
In September 1983, Yuba transferred all operations to the new site and Sutherling issued a second memorandum informing employees that Adamson would be the supervisor at the new plant. At the new plant, Adamson's duties did not change significantly. As before, Adamson operated plant machinery, inspected the product for quality and performed routine maintenance and repairs. He also assigned small jobs to other employees and ordered repair parts for the plant. He received no increase in salary.
On November 4, 1983, the Board conducted an election which resulted in a 12-to-8 vote for the union. Yuba filed In May 1984, a Board Hearing Officer recommended that the Board reject Yuba's objections and certify the union. The Hearing Officer concluded that Adamson was not a supervisor and that, even if he were, his conduct was not objectionable. 2 The Board adopted the Hearing Officer's finding that Adamson was not a statutory supervisor, but did not consider the Hearing Officer's finding concerning Adamson's pre-election conduct.
timely objections to the election, alleging, among other things, that Adamson was a supervisor and that he had: (1) contacted the union and instigated the organizing drive; (2) solicited employees to sign union authorization cards; (3) outspokenly advocated union representation, and (4) threatened and coerced employees, by threatening them with discharge, to force them to vote for the union. Yuba contends that Adamson's actions created an atmosphere of fear and coercion which disturbed the conditions necessary for a free election. Supervisory participation in a union campaign will not by itself invalidate an election. NLRB v. Hawaiian Flour Mill, Inc., 792 F.2d 1459, 1462 (9th Cir.1986). However, supervisory support will invalidate a union's victory when it reasonably tends to have a coercive effect on or is likely to impair an employee's choice. Id. (citations omitted)
Yuba subsequently refused to bargain with the union. In response to this refusal, the Board's General Counsel issued a complaint alleging violations of sections 8(a)(5) and 8(a)(1) of the NLRA. 3 On a motion for summary judgment the Board ruled in favor of the General Counsel, and ordered Yuba to bargain with the union.
On February 10, 1984, the union filed additional unfair labor practice claims concerning Yuba's post-election conduct, including Yuba's termination of Adamson. Yuba's motion to consolidate the unfair labor practice claims was denied by the Board.
The Board's factual findings are conclusive if supported by substantial evidence in the record, viewed as a whole. 29 U.S.C. Sec. 160(e). We will uphold the Board's legal conclusions if it applied the substantive law correctly. NLRB v. Chicago Metallic Corp., 794 F.2d 527, 530 (9th Cir.1986).
Yuba asserts that Adamson was a supervisor within the meaning of the NLRA and that his campaign activities on behalf of the union created a climate of coercion that impermissibly tainted the election. See NLRB v. Hawaiian Flour Mill, Inc., 792 F.2d 1459, 1462 (9th Cir.1986); NLRB v. Island Film Processing Co., 784 F.2d 1446, 1452 (9th Cir.1986) (). 4
In determining whether Adamson was a supervisor, we are guided by section 2(11) of the NLRA which provides:
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. Sec. 152(11).
The existence of any one of the enumerated powers combined with the exercise of independent judgment is sufficient to confer supervisory status upon an employee. Chicago Metallic, 794 F.2d at 530-31; Island Film, 784 F.2d at 1451. An employee who only gives minor or routine orders will not be considered a supervisor. See Island Film, 784 F.2d at 1451; George C. Foss Co. v. NLRB, 752 F.2d 1407, 1410 (9th Cir.1985).
Yuba advances several arguments in support of its claim that Adamson is a supervisor. First, Yuba contends that its designation of Adamson as a supervisor is controlling. Second, Yuba asserts that Adamson performed supervisory duties at the Ores Plant. Third, Yuba contends that employees perceived Adamson as a supervisor even if he performed no supervisory tasks. Finally, Yuba argues that Adamson must be deemed a supervisor because his duties have not changed significantly since 1981, when, in connection with the earlier union campaign, a Board Hearing Officer found he was a supervisor.
An employee's formal job title or classification is irrelevant. An individual will only be deemed a supervisor if he actually performs supervisory duties as defined in 29 U.S.C. Sec. 152(11). Chicago Metallic, 794 F.2d at 531. We must "look to actual duties, not merely job title or classification." Id. (citing International Longshoremen's Ass'n v. Davis, 476 U.S. 380, 106 S.Ct. 1904, 90 L.Ed.2d 389 (1986)). See also Laborers and Hod Carriers Local No. 341 v. NLRB, 564 F.2d 834, 837 (9th Cir.1977).
Principally, Yuba contends that Adamson authorized and assigned overtime during his shifts. The parties presented conflicting testimony on this issue to the Board Hearing Officer. Adamson testified that only Gilmore and Sutherling authorized overtime. Gilmore corroborated Adamson's testimony. Sutherling, on the other hand, testified that Adamson had the authority to assign overtime. The Hearing Officer weighed the conflicting testimony and found that Adamson was not a supervisor within the meaning of the NLRA. The Hearing Officer's determination that Adamson had no authority to authorize overtime is supported by substantial evidence in the record. Consequently, we must uphold the Hearing Officer's determination on this issue. NLRB v. Dick Seidler Enterprises, 666 F.2d 383, 385 (9th Cir.1982); Walla Walla Union-Bulletin, Inc. v. NLRB, 631 F.2d 609, 613-14 (9th Cir.1980).
Yuba argues that Adamson was perceived as a supervisor by his fellow employees and, therefore, is entitled to supervisory status. Yuba relies on Chicago Metallic where we held, "An employee who technically may not satisfy the statutory criteria of Section 2(11) nevertheless may be accorded supervisory status when he is perceived to be a supervisor by other employees." 794 F.2d at 532.
The Chicago Metallic court considered the perception of fellow employees because it was faced with a "borderline case." Such is not the case here. Further, the perceptions of Yuba's employees concerning Adamson's supervisory status are far weaker here than in Chicago Metallic. In Chicago...
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