# National Labor Relations Board v. Onyx Management Group LLC > Court of Appeals for the Second Circuit · August 26, 2015 · 614 F. App'x 40 URL: https://www.frixlaw.com/law-library/cases/2830732 ## Case - **Full name:** NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ONYX MANAGEMENT GROUP LLC, Respondent - **Court:** Court of Appeals for the Second Circuit - **Decided:** August 26, 2015 - **Citations:** 614 F. App'x 40 - **Precedential status:** Unpublished - **Opinion:** Opinion - **Judges:** Newman, Walker, Jacobs - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2830732 ## Opinion text 14-3511-ag NLRB v. Onyx Management Group LLC UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 26th day of August, two thousand fifteen. 5 6 PRESENT: JON O. NEWMAN, 7 JOHN M. WALKER, JR., 8 DENNIS JACOBS, 9 Circuit Judges. 10 11 - - - - - - - - - - - - - - - - - - - -X 12 NATIONAL LABOR RELATIONS BOARD, 13 Petitioner, 14 15 -v.- 14-3511-ag 16 17 ONYX MANAGEMENT GROUP LLC, 18 Respondent. 19 - - - - - - - - - - - - - - - - - - - -X 20 21 FOR PETITIONER: MARNI VON WILPERT (Kira 22 Dellinger Vol, Richard F. 23 Griffin, Jr., Jennifer Abruzzo, 24 John H. Ferguson, and Linda 25 Dreeben, on the brief), National 26 Labor Relations Board, 27 Washington, D.C. 28 1 1 FOR RESPONDENT: GAIL L. GOTTEHRER (Aaron 2 Feigenbaum, on the brief), 3 Axinn, Veltrop & Harkrider LLP, 4 New York, New York. 5 6 Petition to enforce an order of the National Labor 7 Relations Board. 8 9 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED 10 AND DECREED that the petition of the National Labor 11 Relations Board be GRANTED. 12 13 The National Labor Relations Board (the “Board”) 14 petitions, pursuant to 29 U.S.C. § 160(e), to enforce an 15 order against Onyx Management Group LLC (“Onyx”) for 16 refusing to bargain with nine employees certified as a 17 bargaining unit of the International Union of Operating 18 Engineers, Local 30, AFL-CIO, in violation of the National 19 Labor Relations Act (the “Act”), 29 U.S.C. § 158(a)(1), (5). 20 Onyx concedes refusal to bargain, but contends that the unit 21 was improperly certified. We assume the parties’ 22 familiarity with the underlying facts, the procedural 23 history, and the issues presented for review. 24 25 The bargaining unit certified by the Board includes 26 nine employees: five “inside maintenance workers” and four 27 “outside groundsmen,” including lead outside groundsman Mark 28 Weymouth. Onyx challenges the Board’s findings that: 29 (1) Weymouth does not function as a supervisor and (2) the 30 inside maintenance workers and outside groundsmen share a 31 community of interest. The Board’s factual finding as to 32 supervisory status is conclusive if supported by substantial 33 evidence, NLRB v. Quinnipiac Coll., 256 F.3d 68, 73 (2d Cir. 34 2001); and its determination as to community of interest 35 “will stand unless arbitrary and unreasonable,” Staten 36 Island Univ. Hosp. v. NLRB, 24 F.3d 450, 455 (2d Cir. 1994). 37 38 1. Supervisory Status. Supervisors do not have a 39 right to participate in collective bargaining. 29 U.S.C. 40 § 164(a); Quinnipiac Coll., 256 F.3d at 73. The Act defines 41 a “supervisor” as an individual that exercises any one of 42 twelve statutorily enumerated powers while using 43 “independent judgment” and acting “in the interest of the 44 employer.” 29 U.S.C. § 152(11); Schnurmacher Nursing Home 45 v. NLRB, 214 F.3d 260, 264 (2d Cir. 2000). 46 2 1 One of the enumerated powers is the power to “assign 2 . . . other employees.” 29 U.S.C. § 152(11). Onyx argues 3 that Weymouth had the power to assign tasks to other outside 4 groundsmen and used independent judgment in exercising this 5 power. 6 7 The Board’s conclusion to the contrary is supported by 8 substantial evidence. It is undisputed that Weymouth meets 9 with Mark Cimilluca (Onyx’s Property Manager) every morning 10 to discuss tasks that need to be performed and then relays 11 Cimilluca’s wishes to the other outside groundsmen. Joint 12 App’x 94-98, 168-69. Apart from serving in this liaison 13 capacity, Weymouth performs the same work as the other 14 groundsmen (mowing, landscaping, and so forth) and does so 15 pursuant to directives from Cimilluca. Id. 106-07. Onyx 16 seizes on various references in the record that the 17 groundsmen “report to” Weymouth and that he “delegate[s]” to 18 them. Id. 54-55, 168-69.1 But those references could 19 reasonably be read as referring to Weymouth’s role in 20 communicating management directives from Cimilluca. And to 21 the extent that the other groundsmen defer to Weymouth as to 22 task prioritization, deference to a more experienced 23 colleague is not acquiescence to a superior. 24 25 On this record, we are satisfied that the Board’s 26 conclusion that Weymouth is not a supervisor is supported by 27 substantial evidence.2 28 29 2. Community of Interest. The Board is empowered to 30 determine “whether . . . the unit appropriate for the 31 purposes of collective bargaining shall be the employer 32 unit, craft unit, plant unit, or subdivision thereof.” 29 33 U.S.C. § 159(b). “The determination . . . requires 34 selection of an appropriate unit, not the most appropriate 35 unit, and the NLRB’s decision will stand unless arbitrary 1 Other references in the record that Weymouth “supervises” the groundsmen are also not dispositive. Whether or not an individual is a “supervisor” under the Act is a functional analysis and is not controlled by labels. See Quinnipiac Coll., 256 F.3d at 75-76 (analyzing actual tasks performed by “shift supervisors”). 2 In light of this conclusion, we need not decide whether Weymouth’s participation in the election “tainted” the outcome. See Quinnipiac Coll., 256 F.3d at 81. 3 1 and unreasonable.” Staten Island Univ. Hosp., 24 F.3d at 2 455 (citation omitted). A unit is appropriate if its 3 members share “a substantial community of interests.” Id. 4 5 To be sure, the degree of cohesion within each group of 6 indoor employees and outdoor employees is greater than the 7 cohesion between those two groups: the groups (generally) 8 perform different tasks, work on different schedules, and 9 infrequently interact with each other. Notwithstanding 10 those differences, the Board concluded that the two groups 11 share a community of interest because they receive 12 comparable pay and benefits and are subordinate to a common 13 supervisor, Cimilluca. See Staten Island Univ. Hosp., 24 14 F.3d at 454 (“The degree of shared interests is measured by 15 eight factors: [including] . . . similarity of employment 16 conditions, centralization of administration, managerial and 17 supervisory control . . . .”). On this record, we are 18 satisfied that the Board did not act arbitrarily in 19 concluding that a sufficient community of interest existed 20 to certify a bargaining unit containing both groups. 21 22 For the foregoing reasons, and finding no merit in 23 Onyx’s other arguments, we hereby GRANT the petition of the 24 Board. 25 26 FOR THE COURT: 27 CATHERINE O’HAGAN WOLFE, CLERK 4 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2830732. Public record. Not legal advice.