United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 04-2920

___________

National Labor Relations Board, *

*

Petitioner, *

* On Application for Enforcement

v. * of an Order of the National

* Labor Relations Board.

St. Clair Die Casting, L.L.C., *

*

Respondent. *

___________

Submitted: June 22, 2005

Filed: September 13, 2005

___________

Before MURPHY, BYE, and SMITH, Circuit Judges.

___________

MURPHY, Circuit Judge.

Petitioner National Labor Relations Board (Board) seeks enforcement of its

order that St. Clair Die Casting, L.L.C. (St. Clair) bargain with the union which won

a representation election at its plant and furnish bargaining information. The order

was based on the Board's findings that St. Clair committed unfair labor practices by

refusing to meet and bargain after the union won the election by a vote of 71-51 and

was certified as the exclusive collective bargaining representative. St. Clair contends

that four supervisors were improperly included in the bargaining unit and that this

affected the outcome of the election. We enforce the Board's order.
-2-

I.

St. Clair is located in St. Clair, Missouri, and it manufactures custom aluminum

and zinc die castings. On August 20, 2003, the International Union, United

Automobile, Aerospace & Agricultural Implement Workers of America-UAW

(Union) filed a petition with the Board seeking to represent an employee unit in

collective bargaining. The unit was composed of approximately 131 production,

material handling, and maintenance employees at the plant. St. Clair opposed the

petition, arguing that four setup specialists in the machine and finishing department

should not be included in the unit because they were supervisors within the meaning

of § 2(11) of the National Labor Relations Act (NLRA), 29 U.S.C. § 152(11).

A Board hearing officer held an evidentiary hearing on September 5, 2003, to

determine the appropriateness of the unit and the status of the four setup specialists:

Raymond Bay, James Price, Robert Sibole, and Harry Kroenlien. Two of the

specialists were called as witnesses: Bay by St. Clair and Price by the Union. Bill

Phillips, the coach or supervisor for the machine and finishing department, also

testified for St. Clair, and it submitted a post hearing brief. The decision and

direction of election, issued after the hearing by the Board's acting regional director,

found that the four setup specialists were not supervisors as defined in § 2(11) of the

NLRA, concluded that they were properly included in the voting unit, and directed

that a secret ballot election be conducted to determine whether the employees wished

to be represented by the Union.

St. Clair filed a request for review of the decision and direction of election,

arguing that the acting regional director had erred by finding that the challenged

employees were not supervisors and by including them in the voting unit. The Board

decided that the request for review raised only one substantial issue, whether setup

specialist Bay was a supervisor, and that the best way to resolve the issue would be

"through the use of the Board's challenge procedure." The Board then amended the
1

The Union requested eleven categories of information: 

(1) A list of all hourly employees setting forth their date of hire, sex,

age, and marital status, (2) Classifications and wage rates of all hourly

employees, (3) Any bonus and/or merit increase(s) and information used

to grant the same, (4) A copy of any insurance benefits ... along with the

cost of each benefit per employee, per month to the company and to the

individual employee, (5) A list of all fringe benefits that employees have

at the present time ..., (6) Copy of company handbook covering practices

and policies currently governing employees ..., (7) Copy of pension plan

for hourly employees, (8) Annual Registration Statement identifying

separated participants with different vested benefits, (9) Copy of profit

sharing and 401(k) Plan, (10) Number of work shifts and the starting

-3-

decision and direction of election by the acting regional director to provide that Bay

could vote under challenge in the representation election. One member of the three

person Board disagreed and would have entirely denied the request for review.

The Board conducted the election at the St. Clair plant on October 9, 2003, to

determine whether the employee unit wanted to be represented by the Union. The

Union won the election by a vote of 71 to 51, and the acting regional director certified

it as the exclusive bargaining representative for the employee unit. The unit was

described as all "full-time and regular part-time production and maintenance

employees, including material handling, quality, and tool room employees, team

leaders, and setup specialists employed by the Employer at its St. Clair, Missouri

facility, EXCLUDING temporary employees, office clerical and professional

employees, guards and supervisors as defined in the Act." Challenges were made to

the ballots of the four setup specialists and one other employee, but it is not disputed

that under Board procedure such challenges need not be investigated before

certification unless they are sufficient in number to affect the outcome of the election.

After the Union was certified, it requested that St. Clair furnish it with "data

pertinent to these negotiations."1

 The requests were made in a series of letters to the
time of each shift, and (11) Brief explanation of the financial status,

holdings, and a list of customers under contract.

-4-

company dated October 31, 2003, December 18, 2003, and January 14, 2004. St.

Clair did not respond to the requests, and the Union filed an unfair labor practice

charge alleging that it had violated §§ 8(a)(1) and (a)(5) of the NLRA. The Union

also sent a letter to St. Clair on February 19, 2004, demanding that the company meet

and bargain with it. The company refused to do so, and the Union filed another unfair

labor practice charge, alleging that St. Clair also violated §§ 8(a)(1) and (a)(5) by

refusing and failing to meet and bargain with the Union.

The cases were consolidated, and the Board's general counsel issued a

complaint which included allegations that St. Clair's refusal to bargain and furnish

information violated §§ 8(a)(1) and (a)(5). In its answer St. Clair admitted it had

refused to furnish information and to bargain, but it argued that it was not required

to do either because the bargaining unit improperly included one or more setup

specialists who were supervisors under the statute. The general counsel moved for

summary judgment and filed a brief in support, and the Board asked St. Clair to show

cause why the motion should not be granted. St. Clair's response stated that it had not

violated the NLRA because there were supervisors included in the bargaining unit.

The Board granted the motion for summary judgment, finding that St. Clair had

violated §§ 8(a)(1) and (a)(5) of the NLRA by refusing to bargain with the Union and

to furnish it with pertinent information and that all the issues raised by St. Clair were

or could have been litigated during the earlier representation proceeding. The Board

observed that the company had not offered to produce "any newly discovered and

previously unavailable evidence, nor does it allege any special circumstances that

would require the Board to reexamine the decision made in the representation

proceeding." The Board rejected St. Clair's contention that the Union's certification

was invalid, found that the bargaining unit was appropriate, and ordered St. Clair to
-5-

bargain with the Union and furnish it with the requested information. The Board now

seeks enforcement of this order.

II.

St. Clair argues that the Board erred in upholding the acting regional director's

conclusion that the four setup specialists were not supervisors under § 2(11) of the

NLRA. It contends that the setup specialists used independent judgment in assigning

tasks, in issuing secondary disciplinary forms, and in evaluating employees.

According to St. Clair, it need not bargain with the Union because the bargaining unit

includes supervisors. In support it cites 29 U.S.C. § 164(a), a section of the NLRA

which states that "no employer ... shall be compelled to deem individuals defined

herein as supervisors as employees for the purpose of any law ... relating to collective

bargaining"; Pony Express Courier Corp. v. NLRB, 981 F.2d 358, 364 (8th Cir. 1992)

(citing § 164 and stating that employers are not required to bargain with unions that

represent supervisors); and Waverly-Cedar Falls Health Care Ctr., Inc. v. NLRB, 933

F.2d 626, 628-29 (8th Cir. 1991) (same). It further contends that the inclusion of

supervisors in the unit tainted the result of the election. St. Clair contends that it has

never had the opportunity to litigate "substantial issues" with respect to the

supervisory status of Bay and that the Board's order must be reversed and the case

remanded.

The Board argues that St. Clair has failed to establish that any of the four setup

specialists are supervisors within the meaning of the NLRA. It alternatively contends

that even if the setup specialists were supervisors, its order should be enforced

because the inclusion of the four specialists did not affect the outcome of the

representation election. As to Bay's status, it points out that his vote had no impact

on the election and that several procedural options had been available to St. Clair to

resolve the question of his eligibility, such as negotiating with the Union or

petitioning for unit clarification under § 102.60(b) of the Board's Rules and
2

St. Clair asks that the Board's letter be stricken, but it can be considered as a

citation of supplemental authority under Federal Rule of Appellate Procedure 28(j)

responding to St. Clair's statement at oral argument that it had had no opportunity to

present evidence of any taint which may have occurred after the evidentiary hearing

but before the election.

-6-

Regulations. The Board also states in a Rule 28(j) letter submitted after oral

argument that St. Clair could have raised any allegation of taint by objecting under

§ 102.69.2

 That provision allows a party to raise objections to the conduct of an

election, or conduct affecting the results of the election, within seven days of the tally

of ballots.

A.

In § 10(a) of the NLRA Congress empowered the Board to prevent any person

from engaging in any unfair labor practice affecting commerce. 29 U.S.C. § 160(a).

Section 8(a)(1) of the NLRA provides that it is an unfair labor practice for an

employer "to interfere with, restrain, or coerce" employees in the exercise of their

rights to organize and bargain collectively. 29 U.S.C. § 158(a)(1). Section 8(a)(5)

provides that it is also an unfair labor practice for an employer to "to refuse to bargain

collectively with the representatives of his employees." 29 U.S.C. § 158(a)(5). In

order to advance the bargaining process, an employer has an affirmative obligation

to furnish the recognized employee representative with information it needs. NLRB

v. Acme Indus. Co., 385 U.S. 432, 435-36 (1967).

Whenever the Board receives a charge that a person has engaged in unfair labor

practices, the Board has the power to issue a complaint stating the charges and giving

notice of a hearing. 29 U.S.C. § 160(b). If the Board finds any unfair labor practice,

it must state its findings of fact and issue an order requiring the responsible party to

cease and desist. 29 U.S.C. § 160(c). The Board may petition any federal court of

appeals for enforcement of its order. 29 U.S.C. § 160(e).
-7-

Section 9 of the NLRA gives the Board the power to determine the unit

appropriate for the purpose of collective bargaining, to investigate and provide for

hearings and determine whether a question of representation exists, and to direct an

election or provide for secret ballots and certify the results. 29 U.S.C. § 159; see 29

C.F.R. § 101.21. In order to challenge the certification of a collective bargaining

unit, an employer must refuse to recognize the union because certifications under §

9(c) of the NLRA are not reviewable as final orders of the Board. Waverly, 933 F.2d

at 628. If a union files an unfair labor practice charge for refusal to bargain, the

employer may then challenge the certification of the unit as an affirmative defense to

the charges. Id. Review of the Board's certification decision is limited to a

determination of whether the decision is arbitrary, capricious, an abuse of discretion,

or lacking in substantial evidentiary support. Id. at 629.

B.

Section 2(3) of the NLRA, 29 U.S.C. § 152(3), excludes "any person employed

as a supervisor" from the definition of the term "employee," and supervisors are not

entitled to the protection of any law relating to collective bargaining. 29 U.S.C. §

164; see Beverly Enters. v. NLRB, 148 F.3d 1042, 1045 (8th Cir. 1998). Section

2(11) defines the term supervisor as 

any individual having authority, in the interest of the employer, to hire,

transfer, suspend, lay off, recall, promote, discharge, assign, reward, or

discipline other employees, or responsibly to direct them, or to adjust

their grievances, or effectively to recommend such action, if in

connection with the foregoing the exercise of such authority is not of a

merely routine or clerical nature, but requires the use of independent

judgment.

29 U.S.C. § 152(11).
-8-

This statutory definition of supervisor has two components. First, a supervisor

is someone who has authority to perform one of the listed functions even if the

individual does not exercise it. Beverly Enters., 148 F.3d at 1045; Waverly, 933 F.2d

at 629. Second, a supervisor has the type of authority which involves use of

independent judgment and which is more than routine or clerical in nature. Beverly

Enters., 148 F.3d at 1045. In limiting § 2(11) to employees who exercise independent

judgment, Congress sought to distinguish between "'straw bosses, leadmen, set-up

men, and other minor supervisory employees, on the one hand,'" (emphasis added),

and supervisors vested with "'such genuine management prerogatives as the right to

hire or fire, discipline, or make effective recommendations with respect to such

action'" on the other. NLRB v. Bell Aerospace Co. Div. of Textron, Inc., 416 U.S.

267, 280-81 (1974) (quoting S. Rep. No. 80-105, at 4 (1947)).

The burden of proving supervisory status under the NLRA rests with the party

asserting it. NLRB v. Kentucky River Cmty. Care, Inc., 532 U.S. 706, 711-12 (2001).

Whether a particular employee is a supervisor is a factual question within the Board's

special expertise, and its findings regarding supervisory status will be upheld as long

as they are supported by substantial evidence on the record as a whole. Beverly

Enters., 148 F.3d at 1045.

C.

The testimony at the representation hearing showed that the setup specialists

at St. Clair assisted machine operators by setting up and programming machines for

particular jobs and by making sure that the operators have the necessary materials to

perform a task and move material to and from the machines during the shift. All of

the setup specialists reported to Bill Phillips, the department's coach, and he testified

that all of the setup specialists had the same duties and responsibilities. St. Clair's

machine and finishing department operated twenty four hours per day with three

shifts, and Phillips was at the facility daily until 5:00 or 6:00 p.m. He and two setup
-9-

specialists worked the first shift with a team leader and other employees who are

classified either as operators or advanced operators. One setup specialist worked on

the second and third shifts, but there was no coach or team leader present during these

shifts.

St. Clair argues that the setup specialists were supervisors under § 2(11) of the

NLRA because they exercised independent judgment in assigning tasks to other

employees, but there was evidence at the representation hearing showing that the

setup specialists did not have independent authority to assign operators their initial

tasks or to prioritize the work to be done on the shift. Phillips prioritized the work

assignments of the operators on all three shifts, and Bay testified he would call

Phillips at home if he needed further direction. Although the setup specialists could

assign employees to train other employees, training was a routine process within the

department. St. Clair did not produce evidence establishing that the specialists used

their independent judgment in assigning work, as opposed to following routine or

standardized practices, so their assistance in assigning work did not make them

supervisors under the NLRA. See Providence Alaska Medical Ctr. v. NLRB, 121 F.3d

548, 552-53 (9th Cir. 1997) (assignment of nurses at the beginning of each shift was

routine activity done within the parameters of a set schedule and did not require

independent judgment); Panaro and Grimes, 321 N.L.R.B. 811, 812 (1996)

(individual who exercised supervisory authority only in routine, clerical, or

perfunctory manner was not a supervisor).

St. Clair also contends that the setup specialists were supervisors under § 2(11)

because they exercised independent judgment in disciplining other employees,

pointing to Phillips' testimony that all of the setup specialists had authority to issue

secondary disciplinary warning forms used to report employee rule violations. The

testimony showed that Bay was the only setup specialist to have filled out or signed

such a form, and Price, a setup specialist on the first shift, testified that he was not

even aware the form existed. Moreover, the warning forms were not part of St. Clair's
-10-

formal disciplinary system; instead they were developed by Phillips solely for the use

in the machine and finishing department. The forms did not automatically lead to

formal discipline within the company, and Phillips testified that he had revoked a

warning form in the past. The Board has stated that "'for the issuance of reprimands

or warnings to constitute statutory supervisory authority, the warning must not only

initiate, or be considered in determining future disciplinary action, but also it must be

the basis of later personnel action without independent investigation or review by

other supervisors.'" Waverly, 933 F.2d at 630 (quoting Passavant Health Center, 284

N.L.R.B. 887, 890 (1987)). It appears from the record here that the setup specialists

were not an integral part of the disciplinary process, but that they reported infractions

to Phillips who had discretion to decide how much weight to give the forms and when

to issue formal discipline. See Beverly Enters., 148 F.3d at 1046 ("'The mere

reporting of facts is not enough to make the reporter a supervisor.'") (quoting

Highland Superstores, Inc. v. NLRB, 927 F.2d 918, 922 (6th Cir. 1991)).

Participation by the specialists in secondary disciplinary warning forms did not

establish that they were supervisors exercising independent judgment to discipline

other employees.

According to St. Clair, the setup specialists exercised independent judgment

in evaluating the work of other employees. The testimony showed that on several

occasions Phillips asked Bay to rate employees from 1 to 5 in areas such as attitude,

safety, quality, and absenteeism. Phillips would then discuss the form with Bay and

fill out an evaluation form and sign it. The form would be presented to the employee,

and Bay said that he was asked to sign the form as a witness. The authority to

evaluate employees is not included in the listed functions of a supervisor in § 2(11)

of the NLRA, however, and the Board has stated that the authority to evaluate

employees without the authority to recommend specific personnel action is

insufficient to confer supervisory status. Passavant Health Center, 284 N.L.R.B. 887,

891 (1987). Here, there were no evaluations by setup specialists which recommended

any specific personnel action, and St. Clair has presented no evidence that any
-11-

evaluations by the specialists resulted in any such action. We conclude that

substantial evidence supports the conclusion that the setup specialists' role in

evaluating other employees was primarily one of reporting, and that did not make

them supervisors under the NLRA. See Beverly Enters., 148 F.3d at 1046-47.

Setup specialists, like the other production and maintenance employees, were

paid by the hour and received a paycheck each week. They received the same

benefits and were subject to the same disciplinary procedures as others in the unit.

They worked the same hours, had the same number of breaks and the same fifteen

minute lunch period, and used the same break room and locker areas as the other

production and maintenance employees working on the shift. They did not wear

distinctive clothing, badges, or other insignia marking them as separate from other

employees. In addition both Bay and Price testified that they had voted in a previous

representation election in 1999. These factors support the Board's findings that the

setup specialists were not supervisors.

We conclude that there is substantial evidence in the record to support the

Board's finding that the bargaining unit was appropriate since the setup specialists did

not exercise independent judgment in disciplining other employees or in assigning

tasks and did not recommend personnel action in their evaluations. 

Although there is substantial evidence in the record that setup specialist Bay

was not a supervisor, St. Clair claims that the Board erred by failing to resolve

"substantial issues" regarding his status. The Board was not required to undertake

more detailed review, however, because Bay's status would not have affected the

certification decision since the Union won the representation election by twenty votes

and St. Clair could have petitioned the Board for unit clarification or negotiated with

the Union over Bay's status. See Glen Manor Home for Jewish Aged v. NLRB, 474

F.2d 1145, 1150 (6th Cir. 1973) (no need to rule on supervisory status where

inclusion in unit did not affect the outcome of the representation election).
-12-

St. Clair had the opportunity to present evidence at the representation

proceeding to support its argument that all four setup specialists were supervisors,

and it called witnesses of its own choosing. Setup specialist Bay and coach Phillips

both testified for it at the representation hearing. As the Board stated in its decision,

St. Clair failed to bring forward any newly discovered or previously unavailable

evidence, and St. Clair identifies none at this point. We conclude that St. Clair has

failed to establish its affirmative defense that it was not required to bargain with the

Union because the employee unit was improperly certified.

St. Clair also argues that inclusion of the setup specialists in the unit tainted the

results of the election because they allegedly had influence over other employees in

the bargaining unit. A party challenging a representation election carries the heavy

burden of proving that there were improprieties which interfered with employee free

choice to such an extent that they materially affected the outcome of the election.

Deffenbaugh Indus. v. NLRB, 122 F.3d 582, 586 (8th Cir. 1997). Although Board

procedures would have allowed the company to raise this argument as a challenge to

the results of the election within seven days of the tally of the vote under § 102.69 of

the Board's Rules and Regulations, it did not and it offers no evidence of actual taint.

We conclude St. Clair has also failed to meet its burden on this issue.

St. Clair conceded at oral argument that the information sought by the Union

would likely be relevant bargaining information about employees in the bargaining

unit if the Union had been properly certified. The type of information sought by the

Union is presumptively relevant for purposes of collective bargaining. See e.g., Metro

Health Foundation, Inc., 338 N.L.R.B. 802, 802-03 (2003); Maple View Manor, Inc.,

320 N.L.R.B. 1149, 1151 (1996). Since St. Clair has not shown that the four setup

specialists were improperly included in the bargaining unit or the Union was

improperly certified, the company is obligated to bargain with the Union and furnish

it with the requested information under §§ 8(a)(1) and (a)(5) of the NLRA.
-13-

III.

Having found no issues of material fact relating to the status of the setup

specialists, the alleged taint in the election, or the bargaining information sought by

the Union, we conclude the Board did not err by granting summary judgment. Since

there is substantial evidence in the record to support the Board's finding that the

bargaining unit was appropriate, we enforce its order.

______________________________