"Under the ["date certain"] approach, an employee whose term of employment remains uncertain is eligible to vote."
How later courts described this case
- "Under the ["date certain"] approach, an employee whose term of employment remains uncertain is eligible to vote."
- exercise of allegedly supervisory powers must be more than routine or clerical
Written by the judges who cited it.
The opinion
O’SCANNLAIN, Circuit Judge,
concurring in part and dissenting in part:
While I am in agreement with the court’s decision to grant enforcement of the Board’s order based on Figueroa’s status as an eligible employee, I must respectfully dissent from the implication that we might also hold that Reyes was eligible.
As the opinion expressly states, “[s]ince the union won the election by two votes, S.R.D.C. must prevail on both challenges to succeed in setting aside the Board’s order.” The union quite properly wins the appeal if Figueroa is deemed an eligible employee. Despite our recognition of this fact, the opinion finds it necessary to address both challenges, in the process needlessly inferring adoption of the “date certain” test of NLRB v. New England Lithographic Co., 589 F.2d 29, 32 (1st Cir.1978), a rule heretofore not applied in this or any other circuit. The panel unanimously agrees that Figueroa was not a statutory supervisor and thus was eligible to vote in the election; there is no need to reach the question of whether Reyes was eligible to vote as a temporary employee. Indeed, if we were properly to reach it without entering the realm of dicta as we do, I would counsel rejection of the “date certain” test as flawed. We expressly declined to choose between the “reasonable expectation” and the “date certain” tests in NLRB v. Western Drug, 600 F.2d 1324, 1325 (9th Cir.1979). There is even less reason to settle this question here.