NLRB v. Missouri Red Quarries, Inc. , 853 F.3d 920 ( 2017 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 16-1450
___________________________
National Labor Relations Board
lllllllllllllllllllllPetitioner
Eastern Missouri Laborers’ District Council
lllllllllllllllllllllIntervenor
v.
Missouri Red Quarries, Inc.
lllllllllllllllllllllRespondent
___________________________
No. 16-1682
___________________________
Missouri Red Quarries, Inc.
lllllllllllllllllllllPetitioner
v.
National Labor Relations Board
lllllllllllllllllllllRespondent
Eastern Missouri Laborers’ District Council
lllllllllllllllllllllIntervenor
____________
National Labor Relations Board
____________
Submitted: September 20, 2016
Filed: April 6, 2017
____________
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.
1
The Honorable William Jay Riley stepped down as Chief Judge of the United
States Court of Appeals for the Eighth Circuit at the close of business on March 10,
2017. He has been succeeded by the Honorable Lavenski R. Smith.
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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.”
2
Oglesby testified he still has a supervisor at each of his other quarries, yet
manages the Georgia granite-processing plant and its 100-plus employees himself.
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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
3
Missouri Red hired a third employee around this time, though Oglesby
handled that hiring process himself. One employee advised against hiring this
candidate.
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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 hire4 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).
II. DISCUSSION
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.
4
The Regional Director rejected the union’s other exceptions and those issues
are not before us now.
5
We treat the Regional Director’s decision as final given that the Board
affirmed the reasoning and findings set forth there.
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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
6
Missouri Red contends the issue before us is a legal one that warrants de novo
review. Our precedent makes clear fact-driven supervisory determinations warrant
deference provided the Board recited the correct legal standard. See, e.g., Securitas,
817 F.3d at 1078-80. Missouri Red concedes the Board “cited the appropriate legal
standards.”
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‘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
7
This standard does not change when the Regional Director reverses the
decision of the Hearing Officer. See Millard Processing Servs., Inc. v. NLRB, 2 F.3d
258, 262 (8th Cir. 1993). Because the Hearing Officer’s factual findings are part of
the record, we critically consider the evidence that led the Hearing Officer to a
conclusion opposite that of the Regional Director and Board. See id.8
Missouri Red makes no argument as to the third requirement, and we think it
clear whatever authority Johnston did possess was held in the interest of Missouri
Red.
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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
9
We do not consider the drug test on these facts to constitute an independent
investigation—the Board regularly looks past such minor managerial involvement to
find effective recommendation. See, e.g., Donaldson Bros., 341 N.L.R.B. at 962;
Mountaineer Park, Inc., 343 N.L.R.B. 1473, 1474-76 (2004) (finding effective
recommendation even though management “‘review[ed]’” disciplinary
recommendations to make sure they were “‘justifiable’”). While the record is not
clear, the evidence supports the reasonable inference that the drug test was a routine
hiring practice.
-8-
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
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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 for their judgment, but the Board’s analysis focused
entirely on comparing the supervisors’ proactive and extensive role in hiring to
management’s passive and marginal role.10 See id. at *8-9.
We are not persuaded by Missouri Red’s argument that Jefferson Chemical and
the other, even less-analogous, cases it cites control our decision here. Rather we find
substantial evidence Oglesby did not conduct any sort of independent investigation
of Moses or Horn, and instead played a passive role in the hiring process as compared
to Johnston’s active and meaningful role. This is enough to constitute an effective
recommendation under § 152(11), and cases like Donaldson Bros., Venture
Industries, and Your Public Radio Employer support this conclusion.
10
Whenever a manager or an owner approves a hire without any independent
investigation—which may be a requirement for effective recommendation—it is a
rubber stamp based in large part on respect for the supervisor’s judgment.
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Our focus then turns to whether Johnston’s involvement in the hiring process
was “more than routine or clerical” and “involve[d] the use of independent
judgment.” Multimedia KSDK, 303 F.3d at 899. Independent judgment is often
found lacking when actions are “dictated or controlled by detailed instructions” or
“there is only one obvious and self-evident choice.” Oakwood Healthcare, Inc., 348
N.L.R.B. 686, 693 (2006). Conversely, independent judgment exists when an
individual acts largely “free of the control of others” and weighs factors relevant to
the action involved. Id. In perhaps its seminal decision on what constitutes
independent judgment, the Board explained: “[An individual], when exercising
his/her authority to recommend a person for hire, may be called upon to assess the
applicants’ experience, ability, attitude, and character references, among other factors.
If so, the [individual’s] hiring recommendations likely involve the exercise of
independent judgment.” Id.; see also Fred Meyer, 335 N.L.R.B. at 649 (finding
independent judgment where supervisors made recommendations “based on their own
assessments of what skills are needed”).
We find sufficient evidence supports the conclusion Johnston exercised
independent judgment in effectively recommending Moses and Horn for hire. To
begin, we reject Missouri Red’s assertion that “[t]here are no qualifications for an
applicant to work on the ledge of the quarry.” That a job involves little more than
manual labor does not mean anyone can do it or that certain traits are not required or
at least desired. As the Board noted, “Johnston had an independent basis for
assessing” Moses and Horn and their “readiness to work” given that he knew both
candidates. Such familiarity allowed Johnston to assess their “experience, ability,
attitude, and character references, among other factors,” and so the Board did not act
capriciously in finding he exercised independent judgment. Oakwood, 348 N.L.R.B.
at 693; see Ky. River, 532 U.S. at 713 (“It falls clearly within the Board’s discretion
to determine, within reason, what scope of discretion qualifies.”).
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B. Secondary Indicia
Finding Johnston effectively recommended Moses and Horn for hire does not
end our analysis. “‘One who engages in an isolated incident of supervision is not
necessarily a supervisor under the [NLRA]. If this were the criterion and the
hallmark of supervision then practically all employees would be supervisors.’”
Jefferson Chem., 237 N.L.R.B. at 1102 (quoting NLRB v. Sec. Guard Serv., Inc., 384
F.2d 143, 149 (5th Cir. 1967)). In cases such as this—where there is substantial
evidence the individual has authority to exercise independent judgment in performing
at least one supervisory function, but the question is a close one—“courts often look
to secondary factors.” Schnuck Mkts., 961 F.2d at 706.
A number of secondary indicia support the Board’s determination that Johnston
is a supervisor. Most persuasive to us are the real-world implications if Oglesby was
truly Missouri Red’s only supervisor. That is, if Johnston was not a supervisor, then
the quarry was left without an on-site supervisor for many weeks at a time. It is not
“a reasonable conclusion” to think Missouri Red would run its quarry—which is
spread across 400 acres and operates around the clock—“without on-site
supervision.” Id.; see also Empress Casino Joliet Corp. v. NLRB, 204 F.3d 719, 722
(7th Cir. 2000) (“A business cannot operate efficiently unless the employer has a team
of employees he controls to whom he can delegate the essential supervisory functions
that he cannot exercise personally.”); NLRB v. Beacon Light Christian Nursing
Home, 825 F.2d 1076, 1080 (6th Cir. 1987). Oglesby contended he alone supervised
the ten Missouri Red Ironton employees in addition to the 100-plus employees he
directly supervised at his Georgia plant. We find this strains credulity. See Schnuck
Mkts., 961 F.2d at 706 (“[C]ourts are often aided by calculating the resulting mix of
supervisors to non-supervisory workers.”); Iron Mtn. Forge Corp., 278 N.L.R.B. 255,
262 (1986) (finding a ratio of 60:1 to be “an inordinately high ratio”).11
11
Missouri Red makes much of the Board’s general policy of narrowly
construing supervisor status. If Johnston were not a supervisor “then the union rather
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Other secondary indicia support the Board’s decision. Warranted or not,
employees perceived Johnston to possess some extra degree of supervisory authority.
See, e.g., Schnuck Mkts., 961 F.2d at 706; NLRB v. Chi. Metallic Corp., 794 F.2d
527, 531 (9th Cir. 1986). Johnston was one of only two employees to have keys to
the quarry office. See, e.g., Donaldson Bros., 341 N.L.R.B. at 962. He also received
a pay raise upon becoming a foreman so that he is now tied with one other individual
for highest pay rate at Ironton. See, e.g., id. Also relevant, though not controlling,
is the fact Johnston was referred to as “Quarry Supervisor” on the election voter job
description list. See, e.g., Schnuck Mkts., 961 F.2d at 706.
In deferring to the Board’s determination, “[w]e acknowledge that there is
some evidence in the record supporting the employer’s view” that Johnston was an
employee, not a supervisor.12 Pac Tell Grp., Inc. v. NLRB, 817 F.3d 85, 95 (4th Cir.
2016). “Nevertheless, we are not charged with evaluating the evidence de novo.” Id.Instead, we probe the record to determine whether there is substantial evidence to
support the Board’s decision, and in this case we conclude there is. Although our
independent judgment could be different than the Board’s, we defer to the Board and
conclude it did not act arbitrarily or capriciously by upholding the union’s challenge
than the company [would] control the [quarry],” and the NLRA “rejects a syndicalist
(that is, worker-controlled) conception of business.” Empress Casino, 204 F.3d at
722. Congress left it primarily to the Board to weigh these conflicting policy
interests, hence our limited scope of review. See, e.g., Ky. River, 532 U.S. at 725 n.5
(Stevens, J., concurring in part and dissenting in part).
12
For example, Johnston spends 90% of his time performing bargaining-unit
work, while only 10% of his time is dedicated to administrative duties. This weighs
in favor of employee status, but does not necessitate such a finding. See Schnuck
Mkts., 961 F.2d at 706 (“The fact that [a supervisor] spent a portion of his time on
manual labor is not controlling.”); NLRB v. Joe B. Foods, Inc., 953 F.2d 287, 296
(7th Cir. 1992) (“The fact that [a supervisor] spent a great portion of his time in
hands-on work does not undercut his supervisory status.”).
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to Johnston’s ballot, certifying the union, and finding Missouri Red committed an
unfair labor practice.13
III. CONCLUSION
For the foregoing reasons, we deny Missouri Red’s petition for review and
grant the Board’s cross-petition for enforcement.
SMITH, Circuit Judge, dissenting.
The majority holds that an individual becomes a supervisor under the NLRA
by merely recommending a family friend for hire. Because this construes supervisory
authority too broadly and will unnecessarily strip individuals of their organizational
rights, I respectfully dissent. Specifically, I disagree with the majority’s determination
that Johnston possessed delegated authority to participate in the hiring process.
Further, insufficient evidence exists to support the conclusion that Johnston exercised
independent judgment in effectively recommending Moses and Horn for hire.
Under the NLRA, an individual is a “supervisor” if (1) the individual “ha[s]
authority . . . effectively to recommend” hiring, and (2) “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); see also Multimedia KSDK, 303 F.3d at 899 (8th
Cir. 2002).
13
We wish to make the limited reach of our holding clear. Contrary to the
dissent’s opening assertion, the fact an individual recommends a family friend for hire
does not make him or her a per se supervisor under the NLRA. We merely
acknowledge it is within the Board’s discretion to reach that conclusion where:
(1) the individual played an active, ongoing, and essentially determinative role in the
hiring process, (2) higher management played virtually no role other than giving
endorsement to the individual’s recommendation, and (3) strong secondary indicia
exist to support the Board’s conclusion that the individual is a supervisor.
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1. Authority to Effectively Recommend Hiring
Whether an individual has supervisory authority to recommend hiring depends
upon whether the individual’s hiring recommendations are in fact effective. Your
Public Radio Corp., 2014 WL 3613193, at *8. To determine this,
the Board examines the amount of weight the employer affords the
recommendation. Specifically, the Board has found recommendations
effective when “management is prepared to implement the
recommendation without an independent investigation of the relevant
circumstances.” In the absence of such a requirement, an employer’s
reliance on word-of-mouth referrals could confer supervisory status on
the entire staff, since it is not uncommon for employers to expect their
more experienced employees to recommend someone for hire. Finally,
an individual does not “effectively recommend hiring” unless there was
“delegated authority to participate in the hiring process” and not
merely an employer’s respect for an individual’s opinion on an
applicant.
Id. at *8 (emphasis added) (citations omitted) (first quoting Chevron USA, 309
N.L.R.B. 61, 65 (1992); then quoting Jefferson Chem., 237 N.L.R.B. at 1102).
Although the inquiry focuses on the weight an employer gives a
recommendation, the Board has consistently applied the rule that an individual does
not effectively recommend hiring unless the individual has delegated authority to
participate in the hiring process and the recommendation for hire is not approved
merely out of respect for the judgment of the individual. See Cook Inlet Tug & Barge,
Inc., 362 N.L.R.B. No. 111, 2015 WL 4101331, at *27 (June 30, 2015); Your Public
Radio Corp., 2014 WL 3613193, at *8; Jefferson Chem., 237 N.L.R.B. at 1102 (“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 also not an indicium of supervisory authority.”).
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The majority places great weight on Oglesby not conducting any independent
investigation. This fact alone, however, is insufficient to confer supervisory status
upon Johnston—there must be “delegated authority to participate in the hiring
process,” Your Public Radio Corp., 2014 WL 3613193, at *8 (quoting Jefferson
Chem., 237 N.L.R.B. at 1102), and the hiring recommendation must not be followed
“merely [out of] an employer’s respect for an individual’s opinion on an applicant,”
id.
The majority points out that the Board “has not required the delegation of such
authority to be explicit” and has found delegated authority when an individual
“handled virtually every aspect of the hiring process.” Part II.A. supra. The majority
notes that this includes when “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. (quoting Your
Public Radio Corp., 2014 WL 3613193, at *9).
However, an individual who screens, recruits, and meets with applicants before
making a recommendation to management does not necessarily have delegated
authority to participate in the hiring process. See, e.g., NLRB v. Harmon Indus., Inc.,
565 F.2d 1047, 1050 (8th Cir. 1977) (“Sufficient evidence supports the conclusion
that Cox did not effectively recommend that other employees be hired, fired or
disciplined. Though Cox recommended that a replacement be hired in the repair
department when Sullivan left, and participated in interviews of applicants, . . . [and]
gave his opinion on the best applicant . . . .”).14 In Jefferson Chemical, management
14
See also J.C. Penney Corp., 347 N.L.R.B. at 129 (rejecting supervisory
authority of an individual who “simply steered applicants through the system and
completed their hiring paperwork”); The Door, 297 N.L.R.B. 601, 601–02 (1990)
(finding that an employee lacked authority to effectively recommend for hire when
his role in the hiring process was limited to screening resumes, making
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asked an employed welder to recruit additional welders, the welder made
recommendations for the hiring of other welders by vouching for their character and
qualifications, and the recommended welders were subsequently hired. 237 N.L.R.B.
at 1102. Yet the Board determined that the welder’s participation in the hiring process
was insufficient to confer supervisory status because “[a]ny attention paid to [the
welder’s] opinions or recommendations was based upon deference to his expertise,
not to his delegated power.” Id. And “[t]he 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
also not an indicium of supervisory authority.” Id.
Johnston guiding Moses and Horn through their hiring paperwork and
personally vouching for their character does not constitute sufficient proof that he
possessed delegated authority to participate in the hiring process. Johnston is not
meaningfully distinguishable from the welder in Jefferson Chemical. Here, Johnston’s
recommendations were limited to personal references—nothing more. And it is
unclear how Oglesby’s approval of hiring Moses and Horn amounts to anything more
than approval out of respect for Johnston’s judgment. Thus, I do not agree that
Johnston possesses sufficient authority to effectively recommend hiring.
2. Independent Judgment
The presence of supervisory authority also depends upon whether the
individual exercised independent judgment in making hiring recommendations. The
use of independent judgment “contemplates more than the mere screening of
applications or other ministerial participation in the interview and hiring process.”
Your Public Radio Corp., 2014 WL 3613193, at *8 (quoting J.C. Penney Corp., 347
N.L.R.B. at 129). The Board has explained that its independent-judgment analysis
recommendations regarding technical qualifications, and participating in interviews).
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turns on the freedom of the individual to evaluate data, formulate an opinion, and
recommend accordingly. As the Board explained in Oakwood:
To ascertain the contours of “independent judgment,” we turn first to the
ordinary meaning of the term. “Independent” means “not subject to
control by others.” Webster’s Third New International Dictionary 1148
(1981). “Judgment” means “the action of judging; the mental or
intellectual process of forming an opinion or evaluation by discerning
and comparing.” Webster’s Third New International Dictionary 1223
(1981). Thus, as a starting point, to exercise “independent judgment” an
individual must at a minimum act, or effectively recommend action, free
of the control of others and form an opinion or evaluation by discerning
and comparing data. . . . [T]hese requisites are necessary, but not in all
instances sufficient, to constitute “independent judgment” within the
meaning of the Act.
348 N.L.R.B. at 692–93 (footnote omitted). Importantly, the Board “must interpret
‘independent judgment’ in light of the contrasting statutory language, ‘not of a merely
routine or clerical nature.’” Id. at 693 (quoting 29 U.S.C. § 152(11)). Thus, “[i]t may
happen that an individual’s [effective recommendation of action] will be based on
independent judgment within the dictionary definitions of those terms, but still not
rise above the merely routine or clerical.” Id. If so, the exercise of such authority is
insufficient to confer supervisory status. Thus, it is important to “assess the degree
of discretion exercised by the putative supervisor.” Id.The exercise of independent judgment is considered more than merely routine
or clerical when an individual actively exercises some form of discretionary scrutiny
in assessing an applicant. Examples of independent judgment that is more than merely
routine or clerical include when employees complete evaluation forms that “provide[]
for the acceptance or rejection of the [applicant],” NLRB v. Chardon Rubber Co., 90
F. App’x 84, 91 (6th Cir. 2003); “make their hiring decisions and recommendations
based on their own assessments of what skills are needed and whether the [applicants]
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. . . have the appropriate skills or qualifications,” In re Fred Meyer Alaska, Inc., 334
N.L.R.B. 646, 649 (2001); and are “called upon to assess [an] applicant[’s]
experience, ability, attitude, and character references, among other factors,”
Oakwood, 348 N.L.R.B. at 693.
However, the exercise of independent judgment is considered merely routine
or clerical when an individual does not actively evaluate an applicant or only does so
in an isolated instance. Examples of independent judgment that is merely routine or
clerical include when employees have only “informal ‘discussions’ with and [give]
‘suggestions’ to th[eir] superiors” about hiring and transfers, George C. Foss Co. v.
NLRB, 752 F.2d 1407, 1411 (9th Cir. 1985); “simply steer[] applicants through the
system and complete[] their hiring paperwork,” J.C. Penney Corp., 347 N.L.R.B. at
129; and are “dictated or controlled by detailed instructions, whether set forth in
company policies or rules, the verbal instructions of a higher authority, or in the
provisions of a collective bargaining agreement,” Oakwood, 348 N.L.R.B. at 693.
The majority holds that sufficient evidence supports the conclusion that
Johnston exercised independent judgment in effectively recommending Moses and
Horn for hire because “‘Johnston had an independent basis for assessing’ Moses and
Horn and their ‘readiness to work’ given that he knew both candidates.” Part II.A.
supra. “Such familiarity allowed Johnston to assess their ‘experience, ability, attitude,
and character references, among other factors, and so the Board did not act
capriciously in finding he exercised independent judgment.” Id. (quoting Oakwood,
348 N.L.R.B. at 693).
However, having personal familiarity with an applicant’s family is not the same
as forming “an opinion or evaluation by discerning and comparing data.” See
Oakwood, 348 N.L.R.B. at 692–93. And the majority cites no authority for the
proposition that merely knowing an applicant’s family automatically qualifies as a
sufficient basis upon which an individual may exercise independent judgment in
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recommending for hire. Instead, it seems that this is precisely the type of
recommendation that the Board avoids elevating to supervisory status. See, e.g.,
Jefferson Chem., 237 N.L.R.B. at 1102.
Further, even if recommending a family friend for hire evidences independent
judgment within the dictionary definitions of those terms, it does not rise above the
merely routine or clerical. See Oakwood, 348 N.L.R.B. at 693. In fact, it is no more
than what employers expect of experienced employees—referring acquaintances to
their employer for possible hire. See Your Public Radio Corp., 2014 WL 3613193,
at *8; NLRB v. ADCO Elec. Inc., 6 F.3d 1110, 1117–18 (5th Cir. 1993); George C.
Foss Co., 752 F.2d at 1411.
Thus, I disagree with the majority’s classification of Johnston’s personal
familiarity with Moses and Horn as an independent basis for assessing their
employability, and I would hold that insufficient evidence exists to support the
conclusion that Johnston exercised independent judgment in effectively
recommending Moses and Horn for hire.
I therefore respectfully dissent.
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