Foreman at Worksite Found to Be a Statutory Supervisor (and Therefore Not Eligible to Participate in Union Election)

National Labor Relations Board v. Missouri Red Quarries, Inc. - Eighth Circuit Court of Appeals

Facts:  Missouri Red Quarries, Inc. ("Missouri") operated a granite quarry in Ironton, Missouri.  Missouri is owned by Tom Oglesby ("Oglesby") who owns and oversees four other quarry operations.  As a result of not living in Ironton, Oglesby only visits the quarry about once a month.  Oglesby stays informed of events at the quarry by talking with Steve Johnston ("Johnston") for about ten minutes each week.  After an on-site supervisor left the Ironton quarry in June 2013, Oglesby implemented a decentralized system with four foremen and no named supervisors.  Johnston was named one of the foremen and took on administrative responsibilities.  (Approximately 90% of Johnston's time at work was spent performing typical bargaining-unit work and the remaining 10% was spent completing administrative tasks).  Employees at the quarry viewed Johnston as the head person, as Oglesby told them that any problems should be taken to Johnston directly.

During the course of his time serving as a foreman, Johnston hired two new employees in 2014 (both of whom he personally knew through family contacts).  In both cases, Johnston called Oglesby to notify him of the two potential employees.  Oglesby instructed Johnston to have the applicants come in for a drug test and if they passed, to hire them.  Both applicants passed their drug tests and began working at the quarry.

In 2015, the Eastern Missouri Laborers' District Council (the union) filed a petition with the National Labor Relations Board ("NLRB") seeking to represent the quarry employees.  An election was then held with 5 votes being case for union representation and 4 against.  Johnston's ballot remained sealed because the union argued he was a statutory supervisor (and therefore not entitled to a vote).  Johnston's vote was critical as if he voted against the union, a 5 - 5 split would mean the union would not be certified.

The Regional Director ordered a hearing be held and the Hearing Officer determined Johnston was not a supervisor and recommended his vote be counted.  The union filed exceptions and the Regional Director declared Johnston was in fact a supervisor (given his effective authority recommend hiring potential employees) and therefore certified the union.  

Holding:  The Court of Appeals pointed out at the outset that the National Labor Relations Act ("NLRA") affords employees certain rights (such as the right to organize and vote on representation), but these rights to not extend to supervisors.  Prior caselaw has established that a person is a supervisor if:  1) the individual has the authority to accomplish or effectively to recommend one or more of the twelve statutory actions listed in Section 152(11) (which includes hiring); 2) the authority must involve the use of independent judgment and be more than routine or clerical in nature; and 3) the authority must be held in the interest of the employer.  When a question arises over supervisory status, the union bears the burden of establishing the three requirements.

Missouri argued that the NLRB is "known for inconsistent determinations in regard to 'supervisory status'" and in this case "went to great lengths, contrary to its precedent and policy of narrowly defining supervisory status, to define Johnston as a statutory supervisor."  While the Court of Appeals did not necessarily disagree with this argument, it pointed out that an in depth analysis was needed to examine whether the NLRB had made a proper ruling.

As for the three part test, the Court noted that Oglesby did not conduct any sort of independent investigation before instructing Johnston to hire the two applicants.  Of particular note, the NLRB had established in other cases that the delegation of authority need not be explicit.  In this case, the Court held that Johnston's involvement went beyond "mere screening of the applicants".  Johnston conferred with the applicants and recommended their hire to Oglesby.  The record was devoid of any evidence that Oglesby talked with the applicants himself, sought information beyond what Johnston told him, or even withheld approval for Johnston's hiring recommendations.  In fact, Oglesby's only involvement was limited to receiving calls from Johnston and instructing that drug tests be conducted before the applicants were hired.  

Judgment:  The Eighth Circuit Court of Appeals denied Missouri's petition for review of the NLRB's decision to not count Johnston's ballot on the grounds that Johnston was a statutory supervisor under the NLRA and therefore his vote in the union election could not be counted.

The Takeaway:  I wanted to start off this part of the analysis with a nod to the Court of Appeals recognizing the somewhat uncertain nature of NLRB decisions on the statutory supervisor matter (with the suggestion from Missouri that the NLRB seems to keep moving the goal post on this topic).  Interesting to see the Court give some credence to the argument that prior NLRB decisions make it difficult for litigants to proceed...while not directly criticizing prior NLRB decisions.

With that being said, I did want to highlight this case in particular & point out the dissent written by Judge Smith.  In the dissent, Judge Smith questions how Johnston can be held to be a supervisor simply because he recommended a family friend for hire.  Of note, Judge Smith points out that the majority opinion could cite no authority for the proposition that simply knowing an applicant's family automatically qualifies as a sufficient basis upon which an individual can exercise independent judgment.  Instead, Judge Smith writes that the majority opinion in this case could create a slippery slope:  a broad construction of supervisory authority could result in many other individuals losing their statutory right to organize and vote in an election. 

Of course, the majority opinion did point to other facts in the record to establish that Johnston was in fact a supervisor under the NLRA:  other workers at the quarry viewed Johnston as being in charge (having been told to take issues/problems to Johnston directly), with one employee even stating "[Johnston] was the guy in charge and everybody knew it."  With that being said, the dissent in this case does a masterful job highlighting the potential unwanted effects this decision could have.

Majority Opinion Judge:  Chief Judge Riley

Date:  April 6, 2017

Opinion:  http://hr.cch.com/ELD/NLRBMissouriRed040617.pdf