store manager’s conduct in driving employee through town to tear down protected union campaign signs from public places found to violate Act
How later courts described this case
- store manager’s conduct in driving employee through town to tear down protected union campaign signs from public places found to violate Act
- "the NLRB, because of its special expertise, is afforded broad discretion in determining whether an employee is a 'supervisor' "
Written by the judges who cited it.
The opinion
WELLFORD, Circuit Judge,
dissenting:
The proper standard of review in this case has been recently set out by this court in a decision in which Judge Martin joined:
The question of whether individuals should be accorded supervisory status is a mixed question of fact and law. Beverly Enterprises v. NLRB, 661 F.2d 1095, 1099 (6th Cir.1981). As such, the Board’s determination regarding the supervisory status of the line operators is not to be overturned as long as there is substantial evidence in the record as a whole to support its finding. NLRB v. Adam & Eve Cosmetics, Inc., 567 F.2d 723, 727 (7th Cir.1977). Accord, Beverly Enterprises v. NLRB, 661 F.2d at 1099 .
N.L.R.B. v. Lauren Mfg. Co., 712 F.2d 245, 247 (6th Cir.1983) (per curiam) (emphasis added). See also N.L.R.B. v. Health Care Logistics, Inc., 784 F.2d 232, 234 (6th Cir. 1986) (citing Lauren); N.L.R.B. v. Baja’s Place, 733 F.2d 416, 421 (6th Cir.1984); Beverly Enterprises, Inc. v. N.L.R.B., 661 F.2d 1095, 1099 (6th Cir.1981); N.L.R.B. v. Wilson-Crissman Cadillac, Inc., 659 F.2d 728, 730 (6th Cir.1981); Machine Tool and Gear, Inc. v. N.L.R.B., 652 F.2d 596, 597 (6th Cir.1980); N.L.R.B. v. Publishers Printing Co., 625 F.2d 746, 749 (6th Cir. 1980); N.L.R.B. v. Detroit Edison Co., 537 F.2d 239, 242 (6th Cir.1976); Pulley v. N.L.R.B., 395 F.2d 870, 875 (6th Cir.1968).
The standard of review is not abuse of discretion. 1 We do not give the NLRB virtually carte blanche to decide the issue with which this case is concerned: whether an employee occupies supervisory status.
I would conclude that there is not substantial evidence to support the Board’s determination that Johnny Lucas was not a supervisory employee of Williamson Piggly Wiggly. The following facts indicate Lucas’ supervisory status: (1) Lucas fired Dexter Addington, another employee. (2) Lucas worked at times as night store manager. (3) Lucas rehired Layne, an employee who had quit. 2 Layne’s testimony to this effect was neither discredited nor refuted. (4) Lucas recommended other employees for hire, who were later hired. (5) Management consulted Lucas on recommended transfers to and from Lucas’ produce department. (6) Lucas prepared work schedules and worklists in his department. (7) A number of employees perceived Lucas as a supervisor. (8) Lucas had a “title” as a department manager. (9) Lucas regularly attended management meetings. (10) Lucas received substantially higher pay and benefits than other department employees. (11) Lucas ordered produce, took inventory, and set prices for produce in his department. (12) Lucas trained employees in his department and evaluated their work performance.
In summary, Lucas had most of the normal indicia of a supervisor. His own testimony was found, at least in part, to be contradictory. His denial of supervisory status was patently self-serving. For these reasons, I would REVERSE the finding of the Board that Lucas was not a supervisory employee within the meaning of the Act.
. The case cited for this proposition, Medical Center at Bowling Green v. N.L.R.B., 712 F.2d 1091, 1093 (6th Cir.1983), has not otherwise subsequently been cited for that proposition.
. This court has rejected the Board's reasoning that a "single incident’’ was "too isolated to establish ... status as a supervisor.” N.L.R.B. v. Medina County Publications, Inc., 735 F.2d 199, 201 (6th Cir.1984).