Employees who were “supervisors and sole executives of the Company, cannot be deemed employees within the collective bargaining obligations of the applicable law, even though their performance of some bargaining unit work made them eligible for participation in the trust funds.”
How later courts described this case
- Employees who were “supervisors and sole executives of the Company, cannot be deemed employees within the collective bargaining obligations of the applicable law, even though their performance of some bargaining unit work made them eligible for participation in the trust funds.”
Written by the judges who cited it.
The opinion
BRIGHT, Circuit Judge,
concurring.
I concur in the result for reasons stated below.
I believe that if the Company’s conduct in reporting and contributing for the supervisors on a minimum-hour basis constituted a substantial economic detriment to the various fringe benefit trust funds, the Board properly could have determined that such conduct vitally affected the employees’ terms and conditions of employment. However, on the record before us, it cannot be said that the failure of the Company to fully pay assessments for two supervisory employees to the benefit funds vitally affects employee interests.
The Board asserts that a large number of employers contribute to the trust funds and that a substantial number of union members participating in the benefits program move from job to job. See majority opinion at 719-720. It then states that delinquencies by contributing employers on behalf of supervisors and bargaining unit employees moving from job to job, and on behalf of supervisors reported as bargaining unit employees, significantly erode the trust fund plan. The Board, however, has offered no proof that the inadequacy of the Company’s contributions substantially affected the pooled trust funds. The Board neither provides information concerning the number of employers who failed to pay full assessments for nonbargaining unit employees nor information respecting any impact on the funds because of employers’ inadequate contributions on behalf of such nonbargaining unit personnel. Having failed to disclose the extent of trust fund depletion attributable to contribution deficiencies on behalf of supervisory personnel, the Board has not demonstrated that the inadequacy of those contributions “vitally affected” employee interests.