National Labor Relations Board v. Missouri Red Quarries, Inc.
853 F.3d 920
| 8th Cir. | 2017Background
- Missouri Red Quarries operated a small Ironton, MO granite quarry overseen by owner Tom Oglesby who lived 621 miles away and visited infrequently; on-site management was decentralized after the prior on-site supervisor left.
- Steve Johnston was a foreman who spent ~90% of his time doing unit work and ~10% on administrative tasks; employees often treated him as the person in charge.
- Johnston initiated and facilitated hiring of two employees (Moses and Horn): he recommended them to Oglesby, had them complete forms and drug tests, and Oglesby gave final approval without independent investigation.
- A union election produced 5 votes for and 4 against; Johnston’s ballot was challenged by the union as a statutory supervisor so his vote was sealed and potentially determinative.
- The Regional Director (and later the Board) found Johnston a supervisor (authority effectively to recommend hire + independent judgment + employer interest), certified the union, and the NLRB found Missouri Red committed an unfair-labor-practice by refusing to bargain; Missouri Red petitioned for review.
Issues
| Issue | Plaintiff's Argument (Missouri Red) | Defendant's Argument (NLRB / Union) | Held |
|---|---|---|---|
| Whether Johnston was a statutory "supervisor" under 29 U.S.C. § 152(11) | Johnston’s hiring referrals were personal recommendations/referrals, not delegated authority; management respected his opinion but conducted ultimate review; no delegated authority existed | Johnston effectively recommended hires because Oglesby performed no independent investigation and routinely rubber-stamped Johnston’s recommendations; Johnston assessed candidates and facilitated hiring | Johnston is a supervisor — substantial evidence supports that his recommendations were effectively determinative and involved independent judgment |
| Whether Johnston’s recommendations involved independent judgment (not routine/clerical) | Personal familiarity with candidates is not the same as weighing factors; recommending acquaintances is routine and common — does not rise above clerical | Johnston knew candidates, assessed their readiness, and handled hiring logistics, reflecting discretionary assessment of experience/attitude/fit | Court upheld Board: Johnston exercised independent judgment in recommending hires |
| Whether secondary indicia support supervisory status given close factual question | Employer: Johnston’s limited administrative time and hands-on work weigh against supervisor status; referrals commonplace | Board: secondary factors (employee perception of Johnston as in charge, pay raise, office keys, lack of on-site supervision otherwise) support supervisory status | Secondary indicia sufficiently support the Board’s determination that Johnston was a supervisor |
| Standard of review and effect on remedy (certification & ULP order) | Board erred legally and factually; Missouri Red sought de novo review | Board’s factual findings reviewed for substantial evidence; prior representation proceedings preclude relitigation and support summary enforcement remedies | Court applied deferential substantial-evidence review (with probing), denied review, and granted enforcement of the NLRB order |
Key Cases Cited
- Multimedia KSDK, 303 F.3d 896 (8th Cir.) (three-part supervisory test: authority to effect or effectively recommend specified acts; independent judgment; in interest of employer)
- NLRB v. Kentucky River Cmty. Care, 532 U.S. 706 (2001) (party asserting supervisory status bears burden; framework for statutory supervisor analysis)
- Securitas Critical Infrastructure Servs., Inc. v. NLRB, 817 F.3d 1074 (8th Cir. 2016) (substantial-evidence standard and deference to Board factfinding)
- Schnuck Mkts., Inc. v. NLRB, 961 F.2d 700 (8th Cir. 1992) (use of secondary indicia and need for close review when Board stretches supervisory definition)
- JHP & Associates v. NLRB, 360 F.3d 904 (8th Cir. 2004) (courts may not supplant Board’s choice between fairly conflicting views of evidence)
- Empress Casino Joliet Corp. v. NLRB, 204 F.3d 719 (7th Cir.) (practical necessity of on-site supervisors and related secondary indicia)