Williamson Piggly Wiggly v. National Labor Relations Board
827 F.2d 1098
6th Cir.
1987
Check Treatment

*2 alleged thievery. During the interview the MERRITT, Before MARTIN inquiry meeting focus shifted to the WELLFORD, Circuit Judges. week. Lucas previous was asked MARTIN, JR., Judge. F. BOYCE why brought people fifteen he had whether unionization headquarters, him to finding This arises from discussed, whether authorization National Labor Relations 280 N.L. distributed, Wiggly R.B. 125 in cards and the names signed explain why cards. The also some of the persons who had security regarded Lucas he supervisor; told should ees failing management that a Board, fired to tell however, found the work of the head- group going routine, produce department to be so that failing quarters complain, and for little, employees required if any, direction stop told that them. Lucas was completing company their tasks. The opportunities with future have better urges supervi- Lucas be considered *3 resigned if he ployers rather than sory employee because he attended meet- in resignation placed fired. A letter of ings argument heads. This signed. him front of which he The NLRB inconclusive, however, because the discharge directly found that Lucas’s record shows that who in or- related to the union admittedly supervisors were also at- ganizing campaign and ordered that tended given compensation reinstated and for lost NLRB, It is well settled that the because wages. special expertise, of its is afforded broad ruling challenging In the of the determining in discretion whether an em- Wiggly argues that all atwas ployee “supervisor.” is a E.g., Medical relevant times at NLRB, at Bowling 712 Supervisors the store. are excluded from F.2d Light Iowa Elec. statutory of “employee” the definition un- NLRB, and Power Co. v. and, consequently, der the Act lack protec- Cir.1983); NLRB, Methodist Home v. discharge engaging tion from in F,2d NLRB v. Adam & protected activity. and other concerted Cosmetics, Inc., Eve 567 F.2d 723 152(3). Act, “supervi- U.S.C. Under the § 1977); Global Development Marine sor” is NLRB, California, Inc. v. 528 F.2d 92 having authority, individual in the Cir.1975); Co., 292 & F.2d Swift employer, interest of the trans- (1st Cir.1961). Moreover, agree we fer, suspend, recall, off, lay promote, dis- is important that for the Board not to “[i]t reward, charge, assign, discipline or oth- broadly, construe status too employees, er responsibly direct for worker super- who is deemed to abe them, adjust or to their grievances, or organizational rights.” visor loses his effectively action, to recommend such NLRB, Douglas Corp. McDonnell in foregoing connection with the the ex- (9th Cir.1981). reviewing In authority ercise such is not of mere- discretionary determination, Board’s we nature, ly routine or requires clerical but provided affirm will no of independent judgment. use discretion, Center, abuse 152(11). Id. at § provided F.2d at the Board’s find- considering The the record ings supported of fact are by substantial whole, concluded that Lucas not a evidence in the record when considered as a supervisor. The Board found that Lucas whole, hire, fire, authority lacked discipline give We employees. the one instance where substantial deference to the decision cas did fire an employee, Lucas was that at judge op- administrative law who serving time as acting manager and portunity credibility evaluate of wit- had beyond given therefore authority nesses; we also must consider whatever produce manager. The Board noted weight reduces the that the administrative hourly Lucas was an employee, as judge law ascribes such evidence. were the other three full-time Light NLRB v. Beacon Nursing Christian part-time employee one Home, department. Although high- he received a er We find the hourly wage others, Board’s decision that Lucas than the the Board found this discrepancy was a time he the result of greater seniority engaged protected rather because of was concerted activi- supervisory responsibilities. may Seniority ty to have record and Enter- Pulley basis law. reasonable v. N.L. ap- R.B., Cir.1968). 661 F.2d at 1099. While prises, had discretion to direct routine parently of review standard is not abuse such produce department, activities give discretion.1 do not the NLRB trucks, rotating unloading stocking and as virtually blanche to carte decide the issue suppliers, ordering from with which this case is concerned: whether authority independent to make no occupies supervisory status. firing, promot- regard hiring, ments I would conclude there is not sub- setting employees in his ing, or salaries of stantial to support evidence the Board’s economic he lacked the determination anot “supervisor” defined authority of a supervisory employee of Williamson Wiggly. facts indicate Lu- Accordingly, petition review is cas’ status: Lucas fired request for enforcement denied Addington, employee. Dexter another *4 Board is order of the Lucas worked at times as store man- granted. (3) ager. Layne, Lucas rehired quit.2 Layne’s ee who had testimony WELLFORD, dissenting: Judge, this effect neither discredited nor re- proper standard of review (4) futed. Lucas recommended other em- recently has been this court set out (5) who were later hired. joined: Judge decision in which in a Martin Management consulted Lucas on recom- question individuals whether mended transfers to and from Lucas’ supervisory accorded status is should be (6) department. Lucas prepared work question a mixed of fact and law. Bever- worklists in department. schedules and his 1095, Enterprises v. ly (7) A of employees perceived number such, As (8) supervisor. Lucas had a “title” as regarding the su- Board’s determination (9) department manager. regular- operators pervisory status of is the line ly management (10) attended long to be overturned as substantially higher Lucas received pay record as a substantial evidence benefits finding. whole ployees. Lucas ordered took Inc., Cosmetics, & Eve 567 F.2d Adam prices inventory, set in his 723, Cir.1977). Accord, Lucas trained 661 F.2d at 1099. and evaluated their work Co., 245, Mfg. v. Lauren N.L.R.B. performance. curiam) (per (emphasis summary, Lucas had most of the nor- added). See also N.L.R.B. v. Health Care supervisor. mal indicia of His own testi- Inc., 232, Logistics, 784 F.2d Cir. found, mony in part, at least 1986) (citing Lauren); Baja’s N.L.R.B. v. His denial contradictory. Place, 416, 733 F.2d patently self-serving. status was N.L.R.B., Enterprises, Inc. v. reasons, I these would REVERSE the find- N.L.R.B. v. ing of Board that Lucas Inc., Cadillac, Wilson-Crissman 659 F.2d meaning within the Tool and Machine of the Act. Gear, N.L.R.B., 652 F.2d (6th Cir.1980); N.L.R.B. v. Publishers Co.,

Printing

1980); Co., N.L.R.B. v. Detroit Edison proposition, rejected reasoning

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