Highland Superstores, Inc. v. National Labor Relations Board

927 F.2d 918
CourtCourt of Appeals for the Sixth Circuit
DecidedMay 1, 1991
Docket89-6357, 89-6561
StatusPublished
Cited by35 cases

This text of 927 F.2d 918 (Highland Superstores, Inc. v. National Labor Relations Board) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Highland Superstores, Inc. v. National Labor Relations Board, 927 F.2d 918 (6th Cir. 1991).

Opinions

DAVID A. NELSON, Circuit Judge.

The issue in this case is whether there was substantial evidence to support a finding by the National Labor Relations Board that six “leadmen” employed at the petitioner’s warehouse were eligible to vote in a union representation election. The eligibility of the men to vote depends on whether they were or were not “supervisors” under § 2(11) of the National Labor Relations Act, 29 U.S.C. § 152(11).

A regional director of the NLRB concluded that the leadmen were in fact supervisors and thus could not vote. Shortly before the election, however, the Board reversed that determination. The leadmen were permitted to vote, and the union won the election by the narrow margin of 24 to 22. Refusing to bargain with the union, the employer petitioned this court to set aside an order in which the Board directed it to bargain. The Board filed a cross-petition seeking enforcement of its order.

As is often true where the status of low-level front-line supervisors is in question, the case is a close one. On the record presented, however, we conclude that there was sufficient evidence to support the Board’s determination that the leadmen were not § 2(11) supervisors. We shall [920]*920therefore grant enforcement of the Board’s order.

I

The petitioner, Highland Superstores, Inc., is a nationwide retailer of consumer electronics and appliances. It has stores in Illinois, Indiana, Minnesota, and Wisconsin that are supplied from a Highland-operated warehouse in Lansing, Illinois. The warehouse, which stocks some $60 million worth of merchandise, employs approximately 55 people.

Overseeing the entire warehouse operation, at the time in question, was an Operations Controller. A Division Operations Manager reported to him, and a Division Warehouse Manager reported to the Operations Manager. Six supervisors reported to the Division Warehouse Manager, and these supervisors oversaw the work of the six leadmen whose status is at issue here. The remaining positions, about 40 in number, were filled by material handlers and lift-truck operators.

Evidence presented at a Board hearing showed that each leadman worked with a team of five to ten material handlers and fork lift operators. The leadmen, who spent a portion of each day physically loading and unloading trucks themselves, were also responsible for paperwork associated with the flow of inventory through the warehouse and for telling their team members which trucks to work on and how much time was available to load or unload particular trucks. The leadmen were paid by the hour, with time-and-a-half for overtime. Unlike the supervisors, the leadmen did not receive a year-end bonus. It is undisputed that the leadmen had no authority to interview, hire, transfer, discharge, lay off, recall or promote other employees, or to adjust their grievances. Leadmen did play a role in evaluating the performance of other employees, although the role may have been largely reportorial, and it is unclear how much use was actually made of the evaluations. Some of the leadmen, at least, were also involved on occasion in minor disciplinary matters.

Highland has challenged the Board’s decision as to the status of all six leadmen, but the resolution of the case really turns on the status of two of them: leadmen Frank Colangelo and Timothy Balmes. Messrs. Colangelo and Balmes appear to have been somewhat more involved than the others in employee evaluation and discipline, and Highland insists that they had authority “effectively to recommend action” with regard to such matters. The company further maintains that leadmen Colangelo and Balmes exercised “independent judgment” in directing the activities of their team members, and that the exercise of such authority was “not of a merely routine or clerical nature.” The quoted language is important, under the governing statute.

II

Section § 2(11) of the National Labor Relations Act, 29 U.S.C. § 152(11), defines a supervisor as

“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.”

Supervisors are not bargaining unit employees, 29 U.S.C. § 152(3), and no employer can be compelled to negotiate with representatives of a bargaining unit that includes supervisors. 29 U.S.C. § 164(a).

As Judge Posner has noted, the first of the two clauses of § 2(11) gives the definition of “supervisor” an initial appearance that turns out to be deceptively broad. If it stood alone, the first clause would make “supervisors” of, among others, anyone responsible for “[supervision in the elementary sense of directing another’s work....” NLRB v. Res-Care, 705 F.2d 1461, 1465 (7th Cir.1983). The first clause does not stand alone, however, and the second clause—the portion following the [921]*921“if” — imposes a significant qualification. It limits the definition of “supervisor” to people whose direction of the work of others, etc., is not “merely routine.” In adding this limitation, Congress intended to withhold § 2(11) supervisory status from “ ‘straw bosses,’ ‘leadmen,’ and other low-level employees having modest supervisory authority.” Res-Care, 705 F.2d at 1466 (quoting S.Rep. No. 105, 80th Cong., 1st Sess. 4 (1947)).

Highland argues that because its lead-men told Highland employees which trucks to unload and because the leadmen allocated manpower among various jobs, they were conclusively shown to have exercised independent judgment in directing other employees in the interest of the employer. The evidence and the relevant case law, however, support the Board’s conclusion that the leadmen’s assignment of work was “merely routine.”

The leadmen were given a schedule of incoming and outgoing trucks each day. After they received the schedule, the lead-men’s authority to assign work was limited to telling employees which trucks to unload and allocating the time required to perform such tasks. The work was so routine that employees would often consult the schedule, not the leadmen, for a new assignment.

In Williamson Piggly Wiggly v. NLRB, 827 F.2d 1098 (6th Cir.1987), this court held that a grocery store produce manager was not a supervisor even though he had the “discretion to direct the routine activities of the produce department such as unloading trucks, stocking and rotating produce, and ordering from suppliers_” Id. at 1101. See also NLRB v. First Union Management, 777 F.2d 330, 335 (6th Cir.1985) (serving as a “lead man” with authority to make “routine assignment of tasks to others does not elevate an employee to supervisory status”).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

NLRB v. St. Clair Die
Eighth Circuit, 2005
National Labor Relations Board v. Chardon Rubber Co.
90 F. App'x 84 (Sixth Circuit, 2003)
Cooper/T. Smith, Inc. v. NLRB
Eleventh Circuit, 1999
Beverly Enterprises v. National Labor Relations Board
148 F.3d 1042 (Eighth Circuit, 1998)
Telemundo v. NLRB
First Circuit, 1997

Cite This Page — Counsel Stack

Bluebook (online)
927 F.2d 918, Counsel Stack Legal Research, https://law.counselstack.com/opinion/highland-superstores-inc-v-national-labor-relations-board-ca6-1991.