upholding the Board’s finding of supervisory status based in large part on the fact that the worker made “his own assessments of employees’ skills or expertise”
How later courts described this case
- upholding the Board’s finding of supervisory status based in large part on the fact that the worker made “his own assessments of employees’ skills or expertise”
- whether to grant summary judgment “lies in the Board’s discretion”
- “Because ... the company failed to present legal authority indicating that the Board had changed its standard for determining supervisory status” the application of its “rule against relitigation” was proper
- "Because the company did not raise [its argument] in the unfair labor practice proceeding, the Board was entitled to treat [it] as abandoned."
Written by the judges who cited it.
The opinion
KAREN LeCRAFT HENDERSON, Circuit Judge
concurring:
Although I agree with my colleagues that we need not resolve Rimdzuis’s eligibility to vote, I write separately to emphasize the Board’s clear error in sustaining the challenge to Rimdzuis’s ballot on the basis that he was not a regular part-time employee. Rimdzuis was 78 years old at the time of the hearing and had then worked at the company for seven years. His duties include trouble-shooting, machine repair and procuring spare parts. Rimdzuis works approximately twenty' hours a week but works more when his job demands it. Which days and hours he works, however, are largely within his discretion. Although he spends considerable time away from the plant, he generally works in the same area as all other mechanics, that is, the “mechanics crib” where the tools are stored. Joint Appendix (JA) 46. He earns a fixed weekly wage of $300, has never been given a raise and receives no overtime pay or fringe benefits.
The hearing officer seized on the differences between Rimdzuis’s working conditions and those of other- employees and determined the differences left Rimdzuis without sufficient connection to the bargaining unit, that is, without a “community of interest.” JA 178. The Board, over the dissent of Member Hurtgen, adopted the hearing officer’s recommendation and the reasoning therefor. Hurtgen relied on Rimdzuis’s twenty hours of unit work weekly for seven years and determined that “[t]he fact that he schedules his own 20 hours does not detract from .his regular part-time status.” JA 171 n.4. Our precedent as well as the Board’s precedent plainly support the dissent.
As we have, often noted, the Board has established an inclusive- eligibility formula designed to allow “optimum employee enfranchisement ... without enfranchising individuals with no real continuing interest in the terms and conditions of employment offered by the employer.” B B & L, Inc. v. NLRB, 52 F.3d 366, 370 (D.C.Cir.1996) (quoting Trump Taj Mahal, 306 N.L.R.B. 294 , 296 (1992)) (internal quotation marks omitted). . In its case by case determination, the Board asks “whether the employee regularly performs duties similar to those performed by unit employees for sufficient periods of time to demonstrate that [he has] a substantial interest in the unit’s working conditions.” Time Warner Cable v. NLRB, 160 F.3d 1, 6 (D.C.Cir.1998) (quoting Martin Enters., Inc., 325 N.L.R.B. 714 (1998)) (internal quotation marks omitted). While noting that it occasionally considers other evidence, the Board has consistently held that the amount of time an employee spends performing unit work can be sufficient to demonstrate “substantial and continuing interest in the terms and conditions of employment.” Oxford Chemicals, Inc., 286 N.L.R.B. 187 , 188 (1987). More important here, the Board in Oxford rejected resort to the community-of-interest analysis once the hour-inquiry has proven satisfactory:
[W]e find that once this standard has been met, it is both unnecessary and inappropriate to evaluate other aspects of the [part-time 1 ] employee’s terms and conditions of employment in a kind of second .tier community-of-interest analysis. That is, inclusion of a [part-time] employee within a particular unit does not depend on a showing of community-of-interest factors in addition to the regular performance of a substantial amount of unit work.
286 N.L.R.B. at 188 (footnote and internal citation omitted).
Rimdzuis undisputedly performs unit work for at least twenty hours a week. *80 This is sufficient “to demonstrate that [he has] a substantial interest in the unit’s working conditions.” Time Warner Cable v. NLRB, 160 F.3d at 6 (forty hours of unit work for only one month preceding election satisfies standard). I do not believe the flexibility of his work schedule removes him from the community of interest shared by the bargaining unit. Cf. Leaders-Nameoki, Inc., 237 N.L.R.B. 1269 , 1269 (1978) (“It is well established in department store cases that part-time employees who regularly work an average of 4 hours or more per week are considered to be eligible regular part-time employees ... even though they may work full-time for another employer or are free to reject work when offered.”); Henry Lee Co., 194 N.L.R.B. 1107 , 1107 (1972) (“Where, as here, part-time employees are engaged in unit work for substantial periods each week, even though on an unscheduled basis, it is customary Board policy to include them in the unit as regular part-time employees.”). Moreover, neither Rimdzuis’s fixed wage nor his exclusion from certain fringe benefits negates the substantial interest he has in the working conditions he shares with others in the bargaining unit approximately twenty hours each week. Accordingly, I believe the Board clearly erred in disenfranchising Rimdzuis.
. The Board in Oxford Chemicals addresses “dual function” employees but notes that the same standard applies for determining eligibility of part-time employees. See 286 N.L.R.B. at 187; See also Time Warner, 160 F.3d at 6 n. 12.