NLRB v. Loparex LLC ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 09-2187, 09-2289
L OPAREX LLC,
Petitioner/Cross-Respondent,
v.
N ATIONAL L ABOR R ELATIONS B OARD ,
Respondent/Cross-Petitioner.
Petition for Review of an Order of the
National Labor Relations Board.
Nos. 18-CA-18436, 18-CA-18448, and 18-CA-18671
A RGUED N OVEMBER 3, 2009—D ECIDED D ECEMBER 31, 2009
Before E ASTERBROOK, Chief Judge, and W OOD and
T INDER, Circuit Judges.
W OOD , Circuit Judge. Loparex LLC owns and operates
a small manufacturing plant in Hammond, Wisconsin.
When a handful of the 200 employees working at the
plant began to drum up interest in unionizing the
workforce, Loparex pushed back by placing a number
of restrictions on organizing activity at the workplace.
Loparex’s actions were soon brought to the attention of
2 Nos. 09-2187, 09-2289
the National Labor Relations Board, which concluded
that Loparex had engaged in a number of unfair labor
practices in violation of the National Labor Relations Act,
§ 8(a)(1), 29 U.S.C. § 158(a)(1) (“the Act,” or “the NLRA”).
The Board ordered Loparex to cease and desist and to
take several affirmative steps to remedy its past violations.
Guided by the deferential standard of review applicable
to the Board’s decisions, we conclude that its order
should be enforced.
I
Loparex owns multiple production facilities scattered
across the country; at these plants, it manufactures
polycoated and silicone-coated papers and films. In
June 2006, Loparex acquired the Hammond plant from
the Douglas-Hanson Company. Though the employees
in that location had attempted to form a union when the
plant was under the ownership of Douglas-Hanson, these
efforts had died off by the time Loparex took over. With
Loparex at the helm, employees’ prounion sentiment lay
dormant until early 2007, when the company announced
several controversial employment policies. Spurred in
part by their disagreement with the company’s recent
actions, a small group of employees renewed their
efforts to unionize the plant. This campaign was not
warmly received by Loparex officials.
In the back-and-forth that followed, Loparex imposed
several limitations on union organizing at work. After
union supporters posted material on company bulletin
boards in March 2007, Loparex issued a policy statement
Nos. 09-2187, 09-2289 3
that required employees to obtain approval before
placing any material on the boards. A few months later,
several employees attempted to distribute prounion
flyers in Loparex’s parking lot, but they were stopped by
company officials. Around the same time, employees
passed out union buttons in the plant and left some
of them near a time clock for other employees to pick up.
When company officials learned of this activity, they
quickly called a meeting and told the union advocates
that they had violated company policy. Management
also discouraged employees from talking about the
union during working hours. Then, in June or July 2007,
Loparex informed all of the shift leaders working at the
Hammond plant that they qualified as supervisors
under the NLRA and were thus prohibited from par-
ticipating in union activities.
Following these events, Teamsters Local 662 filed three
separate unfair labor practice charges. After a hearing
in May 2008, Administrative Law Judge (“ALJ“) Paul
Bogas issued a decision in November 2008 finding that
Loparex had violated the Act in several ways: by promul-
gating its bulletin board policy because of antiunion
animus; by announcing unlawfully broad constraints on
employee communications relating to unionization; and
by treating shift leaders as though they were super-
visors under the Act. Loparex filed exceptions to all
but one of the ALJ’s findings. (The ALJ also found that
Production Manager Todd Dennison violated section
8(a)(1) of the Act in June 2007 when he informed a group
of employees that they were prohibited from speaking
about union organizing at work. Since Loparex did not
4 Nos. 09-2187, 09-2289
contest this conclusion before the Board, we summarily
enforce the ALJ’s order on this issue. See NLRB v. Alwin
Mfg. Co., 78 F.3d 1159, 1162 (7th Cir. 1996)). The Board
affirmed the ALJ’s findings of fact and conclusions of
law for the most part, but it wrote separately on the
issue of shift leaders’ status as statutory supervisors.
Loparex now petitions this court requesting that we set
aside the Board’s decision, and the Board cross-petitions
to obtain an order enforcing its decision.
II
Our review of the Board’s decision is deferential. We
accept its factual findings if they are supported by sub-
stantial evidence, and its legal conclusions “unless they are
irrational or inconsistent with the [Act].” Ryder Truck
Rental v. NLRB, 401 F.3d 815, 825 (7th Cir. 2005); see also
Brandeis Machinery & Supply Co. v. NLRB, 412 F.3d 822, 829
(7th Cir. 2005); 29 U.S.C. § 160(e). Our focus is on the
Board’s decision; as a practical matter, we look to the
ALJ’s opinion on issues where the Board affirmed with-
out additional comment.
A. Loparex’s Bulletin Board Policy
The Board adopted the ALJ’s conclusion that Loparex
violated section 8(a)(1) when, against a backdrop of a
corporate policy that permitted employees to use the
bulletin boards for a variety of non-work purposes, it
shut off access in response to union organizing activity.
As support for his finding that the purpose of the new
Nos. 09-2187, 09-2289 5
policy was to inhibit the organization campaign, the ALJ
pointed to a confrontational meeting between manage-
ment and a union supporter that took place a few months
before Loparex issued the policy. The evidence of an
upsurge in prounion activity following that meeting, in
the ALJ’s view, supported an inference of Loparex’s
knowledge and distaste for the employees’ organizing
efforts. This aversion played a key role in the formulation
of the bulletin board policy. Loparex objects that there is
only a weak temporal connection between the earlier
confrontation and the eventual issuance of the new
bulletin board policy. Loparex adds that the evidence
does not establish that the company was even aware
that prounion materials had been posted on company
bulletin boards.
Section 8(a)(1) offers employees broad protection from
employers’ attempts “to interfere with, restrain, or coerce
employees in the exercise” of their statutory rights to
organize under section 7. 29 U.S.C. § 158(a)(1); 29 U.S.C.
§ 157. Yet this statutory entitlement does not give em-
ployees an unfettered right to use a company’s bulletin
boards to stir up interest in unionization. See Fleming
Companies, Inc. v. NLRB, 349 F.3d 968, 975 (7th Cir. 2003);
Guardian Indus. Corp. v. NLRB, 49 F.3d 317, 318 (7th Cir.
1995). The critical question is whether the employer is
discriminating against union messages, or if it has a
neutral policy of permitting only certain kinds of postings
(for example, those related directly to work rules). Discrim-
inatory interference with union organizers’ access to
bulletin boards is forbidden. Fleming, 349 F.3d at 975; J.C.
Penney Co., Inc. v. NLRB, 123 F.3d 988, 997 (7th Cir. 1997).
6 Nos. 09-2187, 09-2289
Though it is undisputed that Loparex’s new bulletin
board policy was facially neutral and nondiscriminatorily
applied, an employer may violate the Act if its motiva-
tion for a new policy is its hostility toward prounion
activity. See NLRB v. Village IX, Inc., 723 F.2d 1360, 1365-66
(7th Cir. 1983) (finding the employer’s adoption of a
rule was motivated by an antiunion position and thus
violated the Act); Brandeis Machinery & Supply Co. v. NLRB,
412 F.3d 822, 834-35 (7th Cir. 2005) (explaining that
under section 8(a)(1), facially nondiscriminatory “policies
may not target, either through design or enforcement,
activity protected by the Act”) (emphasis added); see also
NLRB v. Wolfe Electric Co., 314 F.3d 325, 328 (8th Cir. 2002);
Four B Corp. v. NLRB, 163 F.3d 1177, 1184 (10th Cir. 1998);
Roadway Exp., Inc. v. NLRB, 831 F.2d 1285, 1290 (6th Cir.
1987).
If an employer is alleged to have acted with an antiunion
purpose, we apply the analytical framework set forth by
the Board in Wright Line, a Division of Wright Line, Inc., 251
NLRB 1083 (1980). See FedEx Freight East, Inc. v. NLRB,
431 F.3d 1019, 1027-28 (7th Cir. 2005); Roadway Exp., 831
F.2d at 1290. Under Wright Line, the Board must make
a prima facie showing that “antiunion animus was a sub-
stantial or motivating factor in the employer’s decision.”
NLRB v. Joy Recovery Technology Corp., 134 F.3d 1307, 1314
(7th Cir. 1998). Once the Board does so, the burden shifts
to the employer to prove that it had a legitimate business
reason for making its decision. Id. Since Loparex did not
offer any explanation for why it adopted the new bulletin
board policy, the case hinges on whether the Board ade-
quately proved its prima facie case.
Nos. 09-2187, 09-2289 7
In determining whether an employer acted improperly,
the Board is entitled to rely upon circumstantial evidence.
See SCA Tissue North America LLC v. NLRB, 371 F.3d 983,
988-89 (7th Cir. 2004). In concluding that Loparex was
opposed to the unionization campaign, the ALJ focused
on a series of events that took place during the
months leading up to Loparex’s announcement of the
bulletin board policy. In January or February of 2007,
Schillinger, a production operator at the plant, spoke with
Randy Risler, who worked in human resources, about
the employees’ dissatisfaction with newly enacted atten-
dance and pay policies. Id. at 104. Schillinger was
someone Risler knew. In 2006, Schillinger had been fired
by Douglas-Hanson, the previous owner of the plant,
for his union organizing activity, but he had recently
been reinstated pursuant to the settlement of an unfair
labor practices charge. In early February 2007, a week
after Schillinger’s conversation with Risler, Todd Bloom
and Jason Carlson, both supervisors and former Douglas-
Hanson employees, called Schillinger into an office
to discuss what Schillinger said to Risler. After ques-
tioning Schillinger, Bloom called in Risler and Lisa Koats,
the human resources manager. At some point in the
conversation, Schillinger pointed out that everyone in the
room knew his history of union organizing, and Koats
responded, “That’s all water under the bridge.” Schillinger
then asked what he should do if people asked him
about unionization and Koats said, “[Y]ou’re to just work
and not talk about the Union.”
Beginning in early February 2007, prounion activity at
the Hammond plant slowly began to increase. Schillinger
8 Nos. 09-2187, 09-2289
started to wear union buttons and hats to work, and he
donned a union t-shirt for about half of his workdays. On
March 9, 2007, a group of employees posted a prounion
flyer on one of Loparex’s many company bulletin boards.
The flyer was taken down shortly after it was posted;
thereafter, it was repeatedly reposted and taken down.
The record does not reveal when these postings and re-
postings took place, or how many times the flyer was
replaced, and so we cannot tell whether the flyer was
displayed on the company bulletin board after March 9.
These events support the Board’s conclusion that
Loparex was motivated by antiunion animus when it
enacted its bulletin board policy. Schillinger’s discussion
of unions with Loparex’s management and his prounion
apparel put the company on notice that union organizing
efforts at the plant had (re)commenced. Loparex points
out that there is no evidence indicating that the
company knew that union activists had placed a flyer on
one of the many bulletin boards in the plant. Nonetheless,
the Board was aware that this was a relatively small plant.
In addition, it was entitled to rely on the suspicious timing
of the policy announcement, immediately after a three- or
four-month period in which Loparex witnessed an
uptick in employees’ organizing efforts. Cf. Brandeis
Machinery & Supply Co. v. NLRB, 412 F.3d 822, 835 (7th Cir.
2005); Great Lakes Warehouse Corp. v. NLRB, 239 F.3d 886,
890 (7th Cir. 2001); NLRB v. Rain-Ware, Inc., 732 F.2d 1349,
1354 (7th Cir. 1984).
The inference of an antiunion purpose is reinforced
by the hostility Loparex’s management displayed toward
Nos. 09-2187, 09-2289 9
Schillinger at the February 2007 meeting. The Board,
affirming the ALJ, reasonably viewed the circumstances
leading to the meeting as suspect. Presumably, Risler
had already tipped off management about Schillinger’s
opposition to the new policies and thus there was little
reason to interrogate Schillinger about his conversation
with Risler. The management officials who called the
meeting had worked at Douglas-Hanson when
Schillinger was fired for his union activity. By warning
Schillinger at the end of the meeting not to speak about
the union, Koats came dangerously close to illegally
prohibiting an employee from engaging in prounion
solicitation during the workday. See NLRB v. Aluminum
Casting & Engineering Co., 230 F.3d 286, 293-94 (7th Cir.
2000) (holding an overbroad no-solicitation rule may
improperly send the message that employees cannot
discuss unions during break times). We see no reason
to second-guess the Board’s conclusion that the
meeting revealed management’s distaste for a union.
B. Distribution of Union Literature in the Parking Lot
In May or early June 2007, Schillinger, Chris Meeker
and two other employees handed out literature to co-
workers in the company parking lot and placed union
literature on car windshields. Shortly after they got
started, three Loparex officials came out to the parking lot
and informed them that they were violating company
policy. The Board endorsed the ALJ’s conclusion that
Loparex’s restriction on union organizing in the
company parking lot constituted an unfair labor practice
under section 8(a)(1).
10 Nos. 09-2187, 09-2289
In protecting employees’ right to organize, section 8(a)(1)
of the Act recognizes that employees’ organizing activities
may substantially interfere with employers’ property
rights. See St. Margaret Mercy Healthcare Centers v. NLRB,
519 F.3d 373, 374 (7th Cir. 2008). Thus, while the Act
grants employees the right to solicit on behalf of a union-
ization campaign, the statute also recognizes the em-
ployer’s interest in maintaining productivity and disci-
pline. See NLRB v. Babcock & Wilcox Co., 351 U.S. 113 (1956).
An employer, for example, is entitled to limit or ban
solicitation in the workplace during work time. See
NLRB v. Clinton Electronics Corp., 284 F.3d 731, 739 (7th Cir.
2002) (citing Republic Aviation v. NLRB, 324 U.S. 793 (1945)).
An employer may not, however, prohibit all solicita-
tion in a company parking lot. Loparex contends that this
is not what it was doing; instead, it argues, it only
banned the practice of placing flyers on car windshields.
The Board saw matters differently; it agreed with the
ALJ’s finding that the Loparex officials were telling the
employees that they could not distribute any union
materials in the parking lot even if they were off-duty.
Because the record provides some support for both posi-
tions, this was a classic call for the Board. Cf. NLRB v.
Aluminum Casting & Engineering Co., 230 F.3d 286, 293-94
(7th Cir. 2000); Beverly California Corp. v. NLRB, 227 F.3d
817, 839-40 (7th Cir. 2000).
We add that even if Loparex had proscribed only distri-
bution on car windshields, the Board still could have
found that its policy violated section 8(a)(1). NLRB v.
Village IX, Inc., 723 F.2d 1360, 1365-66 (7th Cir. 1983). In
Nos. 09-2187, 09-2289 11
Village IX, we concluded that an employer engaged in an
unfair labor practice when it barred several employees
from placing leaflets under the windshield wipers of cars
parked in the company lot. Id. We explained that “the
distribution [of leaflets] could not have disrupted the
company’s work” and “would not have interfered with
the owners’ property right except in the most technical
of senses.” Id. at 366. Loparex’s alleged concern that
distribution on cars would lead to “wholesale littering”
lacks merit. This concern was never mentioned by com-
pany officials and there is no evidence indicating that
litter would have been a problem.
C. Distribution of Union Buttons in the Lunch Room
In June 2007, Meeker left a pile of prounion buttons lying
on a table next to a time clock. On June 20, Todd Dennison
and Lisa Koats, both members of Loparex’s management
team, held a meeting with Meeker, Schillinger, and
another employee about their distribution of the buttons.
Dennison warned, “I don’t want to catch you passing
[buttons] out, Okay, I don’t want to see them laying
around. . . . You can pass them out when you’re outside,
on your own time, but when you’re here working, you,
you, need to be working.” The ALJ concluded, and the
Board agreed, that the prohibition was overbroad
because employees could have believed they were
barred from soliciting near the time clock, a non-work
area, during non-working hours.
Loparex comes close to conceding that such an expansive
rule against solicitation on company property would
12 Nos. 09-2187, 09-2289
violate section 8(a)(1). Our review satisfies us that the
Board’s position finds support in the evidence. See Alumi-
num Casting, 230 F.3d at 293-94. Loparex defends itself in
this instance by trying to characterize Dennison’s state-
ment as an anti-clutter order. Company officials, it says,
are permitted to forbid employees from leaving unat-
tended piles of buttons on company property. Once
again, the question is whether an otherwise reasonable
policy operates in practice in a way that discriminates
against union organizers. See Fleming Companies, Inc. v.
NLRB, 349 F.3d 968, 975 (7th Cir. 2003). Loparex contends
that its prohibition was nondiscriminatorily applied, and
it asserts that company officials were acting within
their rights in banning the use of company property to
distribute union buttons.
Loparex’s argument on this point is terse and largely
unsupported by pertinent authority, and so we were
concerned that it might be forfeited. See White Eagle Co-op
Ass’n v. Conner, 553 F.3d 467, 476 n.6 (7th Cir. 2009).
Loparex does, however, refer us to a case that directly
addresses the company-property issue. See Guard Publish-
ing, 351 NLRB 70 (2006), enf’d in part, 571 F.3d 53 (D.C. Cir.
2009). The Board argues that Loparex cannot invoke Guard
Publishing because it failed to raise the case before the
Board properly. See Production Workers Union of Chicago
v. NLRB, 161 F.3d 1047, 1054 (7th Cir. 1998) (explaining
that appellate court cannot review an argument first
raised on appeal unless “extraordinary circumstances” are
present). Loparex did, however, present its company-
property argument in its opening brief before the Board.
This is enough to preserve the point in these enforcement
Nos. 09-2187, 09-2289 13
proceedings and to allow Loparex to rely on this theory
even though the particular case was first mentioned in
its reply brief.
Nevertheless, this is of no help to Loparex. The Board
affirmed the ALJ’s finding that the no-distribution rule
was overly broad, because Dennison and Koats did not
state that they were disallowing distribution only in
work areas of the facility. By purporting to restrict dis-
tribution in non-work areas, during break times, they
stepped over the line. In so finding, the Board was fol-
lowing long-established policy to the effect that “a rule is
presumptively invalid if it prohibits distribution on the
employees’ own time.” See Our Way, Inc., 268 NLRB 394,
394 (1983). The ALJ also noted that at the same time
Loparex was complaining about the union materials, it
permitted the distribution in the lunchroom of some
coupons for a local fast-food restaurant, suggesting that
its real concern was neither clutter nor limitation to job-
related materials.
D. Shift Leaders as Supervisors under the Act
In June or July 2007, Loparex announced to the shift
leaders working at the Hammond plant that they were
“supervisors” within the meaning of the Act and thus
prohibited from engaging in union activities. See NLRB
v. Kentucky River Community Care, Inc., 532 U.S. 706, 708
(2001). Section 2(11) of the Act states:
The term ‘supervisor’ means any individual having
authority, in the interest of the employer, to hire,
14 Nos. 09-2187, 09-2289
transfer, suspend, lay off, recall, promote, discharge,
assign, reward, or discipline other employees, or
responsibly to direct them, or to adjust their griev-
ances, 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). To prove that employees qualify as
statutory supervisors, an employer has the burden to
prove: “(1) [the employees] hold the authority to engage
in any 1 of the 12 listed supervisory functions, (2) their
‘exercise of such authority is not of a merely routine or
clerical nature, but requires the use of independent judg-
ment,’ and (3) their authority is held ‘in the interest of the
employer.’ ” Kentucky River, 532 U.S. at 713 (citation
omitted). Loparex argues that shift leaders qualify as
supervisors because they have the authority to responsibly
direct employees and assign them work.
Before we address each of these contentions, it is
helpful to provide a general description of the role shift
leaders play at the Hammond plant. Each shift leader is
part of a small crew typically comprised of five or so
workers. Shift leaders work directly under a team
manager, who is generally assigned to the same 12-hour
shift. While shift leaders, like other crew members, operate
the production machinery, they also help out other crew
members, answer questions, and provide needed supplies.
In addition, shift leaders are required to assign crew
members to various machines in order to accomplish the
tasks allocated to the crew in the daily job priority sheet.
Nos. 09-2187, 09-2289 15
1. Authority responsibly to direct
To establish that an employee has the authority responsi-
bly to direct another co-worker, the employee must be
accountable for the co-worker’s performance. See NLRB v.
Adam & Eve Cosmetics, Inc., 567 F.3d 723, 728 (7th Cir.
1977). In addition to accountability, the Board requires that
an employee must have “authority to take corrective
action, if necessary” and be subject to negative conse-
quences for her failure to take such action. Oakwood
Healthcare, Inc., 348 NLRB 686, 692 (2006). The Board
adopted the ALJ’s conclusion that Loparex’s shift
leaders were not empowered to take corrective action.
Loparex argues that Oakwood Healthcare was wrongly
decided because the Board inappropriately read into the
statute an additional requirement that the employee
must have the capacity to take corrective actions. The
Board asserts that Loparex has forfeited any argument
directly challenging the case. See 29 U.S.C. § 160(e). While
Loparex argued to the Board that its shift leaders did
direct their co-workers, it neither attacked Oakwood
Healthcare nor raised the issue of corrective action. This
may well amount to a forfeiture of Loparex’s argument
on appeal. See Masiongale Electrical-Mechanical, Inc. v.
NLRB, 323 F.3d 546, 555 (7th Cir. 2003). Yet even if
Loparex did preserve the issue, we are unpersuaded by
its argument.
The Board’s position, in Loparex’s opinion, is nonsensi-
cal, because the ability to discipline is a statutorily recog-
nized supervisory power. Assuming that “corrective
action” is not different from disciplinary action, Loparex
16 Nos. 09-2187, 09-2289
argues that the Oakwood Healthcare rule effectively elimi-
nates “responsible direction” as a separate basis for
establishing an employee’s supervisory status. Loparex
contends that the Board applied the “corrective action”
requirement in a manner that conflated the idea of disci-
pline and responsible direction.
The most we can say is that the reference to responsible
direction in section 2(11) of the Act may be ambiguous.
We thus owe Chevron deference to the Board’s decision
in Oakwood Healthcare. See Chevron U.S.A., Inc. v. National
Resources Defense Counsel, Inc., 467 U.S. 837 (1984); NLRB v.
GranCare, Inc., 170 F.3d 662, 666 (7th Cir. 1999) (en banc)
(according Chevron deference to Board’s interpretation of
the “independent judgment” requirement in section 2(11)).
Though Loparex contends that Oakwood Healthcare’s
concept of “corrective action” is fundamentally flawed,
we find it a permissible interpretation of the pertinent
statutory language. The Board is entitled to take the
position that it would be incongruous to hold someone
accountable for the conduct of others she could not control
or correct. See NLRB v. Don’s Olney Foods, Inc., 870 F.2d
1279, 1284 (7th Cir. 1989) (holding that responsible direc-
tion implies the need for accountability).
At the same time, in applying the “corrective action”
requirement, the Board must be careful to distinguish
between corrective and disciplinary action in order to
ensure that each part of section 2(11) has meaning. Yet,
despite Loparex’s claims to the contrary, there is little
indication that it equated these two forms of supervisory
power. Instead, the Board accepted the ALJ’s finding that
Nos. 09-2187, 09-2289 17
shift leaders lacked authority to take corrective action
because they were unable to control their crew members
in any meaningful sense. The ALJ pointed out, for
example, that if a member of a shift leader’s crew is
insubordinate, the shift leader’s only option is to submit a
factual report detailing the issue to her team manager
for consideration. The ALJ found that this meager re-
porting power could not be construed as a form of correc-
tive action.
Since Loparex did not provide any other evidence
indicating that shift leaders had authority to control crew
members, the Board did not need to illustrate the dif-
ference between corrective and disciplinary action. We add
that we have no trouble imagining separate domains
for these two kinds of action. For instance, an employee
might be said to take corrective action if she requires a co-
worker to stay late to complete a project that has fallen
behind schedule. Placing this small burden on the em-
ployee, however, would not amount to a disciplinary
action that could affect the employee’s job status.
We are satisfied that substantial evidence supports
the Board’s determination that shift leaders do not
possess the ability to take corrective action. This court
owes deference to the Board when it is engaged in the
difficult task of distinguishing between “true supervisors”
and other employees under section 2(11). See GranCare,
170 F.3d at 666. This type of line-drawing is what the
Board is for, after all. And the evidence in this case pro-
vided ample support for the Board’s conclusion that
shift leaders lack the authority responsibly to direct
their crew members.
18 Nos. 09-2187, 09-2289
2. Authority to assign
While the Board assumed that shift leaders had the
authority to assign work to crew members, it also con-
cluded that shift leaders did not exercise independent
judgment while assigning the work. See Kentucky River,
532 U.S. at 713 (distinguishing “independent judgment”
from the exercise of authority that is “merely routine
or clerical [in] nature”). In applying the concept of inde-
pendent judgment, the Board focused on the manner
in which shift leaders assign work to their crew members.
The shift leaders refer to the daily priority sheet, which
“lists the jobs to be run on each machine in order of
importance and when those jobs are due.” Only two
shift leaders testified about their specific approach to
assignments. Meeker reported that he used three basic
strategies: (1) making sure people rotated to different
machines; (2) allowing a person to continue working on
the same machine if a project took more than a day; and
(3) random assignment. Meeker did not take into
account the personal characteristics of his co-workers
when assigning work. Tim Monicken had a different
system: he assigned higher priority work to more efficient
workers. The Board gave no weight to Monicken’s testi-
mony, however, because he was no longer a shift leader
at the time of the hearing and he never professed to
speak about how other shift leaders assigned work. Left
with a meager record showing only Meeker’s approach
to assigning work, the Board decided that this was not a
position that required the exercise of independent judg-
ment.
Nos. 09-2187, 09-2289 19
Loparex contends that the Board should not have
ignored Monicken’s testimony. Yet Loparex is unable to
point to any evidence that any other shift leaders
adopted Monicken’s practice of assigning work based
upon workers’ relative productivity. In fact, the ALJ
specifically found that Monicken’s job as shift leader
differed in many respects from other shift leaders. Since
Loparex had the burden to demonstrate independent
judgment, we conclude that substantial evidence
supports the Board’s decision to focus on Meeker’s ap-
proach to work assignments.
Retreating to Meeker’s testimony, Loparex contends that
it is irrelevant that Meeker failed to exercise independent
judgment. As long as Meeker was empowered to make
independent judgments about work assignments, Loparex
asserts that he qualifies as a supervisor under section
2(11). Cf. Dreyer’s Grand Ice Cream, Inc. v. NLRB, 140
F.3d 684, 687 (7th Cir. 1998) (collecting cases that hold
that the actual exercise of supervisory power is not neces-
sary to qualify as a supervisor under section 2(11)).
While it is possible that a statutory supervisor need only
have the authority to exercise one of the supervisory
powers enumerated in section 2(11), this does not suffice
for the exercise of independent judgment. See NLRB v.
Don’s Olney Foods, Inc., 870 F.2d 1279, 1283-84 (7th Cir.
1989). In Don’s Olney Foods, even though an employee
had the ability to assign workers to different tasks, we
found this authority insufficient because most of the
assignments were dictated by informal routine. Id. Simi-
larly, Meeker’s method of assignment was routine and
clerical in nature; therefore, the Board acted within its
20 Nos. 09-2187, 09-2289
authority when it concluded that Loparex’s shift leaders
did not exercise the requisite independent judgment
to qualify as supervisors under the Act.
***
We conclude that the Board’s order should be
E NFORCED in its entirety.
12-31-09