In the

United States Court of Appeals

For the Seventh Circuit

Nos. 09-2187, 09-2289

LOPAREX LLC,

Petitioner/Cross-Respondent,

v.

NATIONAL LABOR RELATIONS BOARD,

Respondent/Cross-Petitioner.

Petition for Review of an Order of the

National Labor Relations Board.

Nos. 18-CA-18436, 18-CA-18448, and 18-CA-18671

ARGUED NOVEMBER 3, 2009—DECIDED DECEMBER 31, 2009

Before EASTERBROOK, Chief Judge, and WOOD and

TINDER, Circuit Judges.

WOOD, Circuit Judge. Loparex LLC owns and operates

a small manufacturing plant in Hammond, Wisconsin.

When a handful of the 200 employees working at the

plant began to drum up interest in unionizing the

workforce, Loparex pushed back by placing a number

of restrictions on organizing activity at the workplace.

Loparex’s actions were soon brought to the attention of
2 Nos. 09-2187, 09-2289

the National Labor Relations Board, which concluded

that Loparex had engaged in a number of unfair labor

practices in violation of the National Labor Relations Act,

§ 8(a)(1), 29 U.S.C. § 158(a)(1) (“the Act,” or “the NLRA”).

The Board ordered Loparex to cease and desist and to

take several affirmative steps to remedy its past violations.

Guided by the deferential standard of review applicable

to the Board’s decisions, we conclude that its order

should be enforced.

I

Loparex owns multiple production facilities scattered

across the country; at these plants, it manufactures

polycoated and silicone-coated papers and films. In

June 2006, Loparex acquired the Hammond plant from

the Douglas-Hanson Company. Though the employees

in that location had attempted to form a union when the

plant was under the ownership of Douglas-Hanson, these

efforts had died off by the time Loparex took over. With

Loparex at the helm, employees’ prounion sentiment lay

dormant until early 2007, when the company announced

several controversial employment policies. Spurred in

part by their disagreement with the company’s recent

actions, a small group of employees renewed their

efforts to unionize the plant. This campaign was not

warmly received by Loparex officials.

In the back-and-forth that followed, Loparex imposed

several limitations on union organizing at work. After

union supporters posted material on company bulletin

boards in March 2007, Loparex issued a policy statement
Nos. 09-2187, 09-2289 3

that required employees to obtain approval before

placing any material on the boards. A few months later,

several employees attempted to distribute prounion

flyers in Loparex’s parking lot, but they were stopped by

company officials. Around the same time, employees

passed out union buttons in the plant and left some

of them near a time clock for other employees to pick up.

When company officials learned of this activity, they

quickly called a meeting and told the union advocates

that they had violated company policy. Management

also discouraged employees from talking about the

union during working hours. Then, in June or July 2007,

Loparex informed all of the shift leaders working at the

Hammond plant that they qualified as supervisors

under the NLRA and were thus prohibited from participating in union activities.

Following these events, Teamsters Local 662 filed three

separate unfair labor practice charges. After a hearing

in May 2008, Administrative Law Judge (“ALJ“) Paul

Bogas issued a decision in November 2008 finding that

Loparex had violated the Act in several ways: by promulgating its bulletin board policy because of antiunion

animus; by announcing unlawfully broad constraints on

employee communications relating to unionization; and

by treating shift leaders as though they were supervisors under the Act. Loparex filed exceptions to all

but one of the ALJ’s findings. (The ALJ also found that

Production Manager Todd Dennison violated section

8(a)(1) of the Act in June 2007 when he informed a group

of employees that they were prohibited from speaking

about union organizing at work. Since Loparex did not
4 Nos. 09-2187, 09-2289

contest this conclusion before the Board, we summarily

enforce the ALJ’s order on this issue. See NLRB v. Alwin

Mfg. Co., 78 F.3d 1159, 1162 (7th Cir. 1996)). The Board

affirmed the ALJ’s findings of fact and conclusions of

law for the most part, but it wrote separately on the

issue of shift leaders’ status as statutory supervisors.

Loparex now petitions this court requesting that we set

aside the Board’s decision, and the Board cross-petitions

to obtain an order enforcing its decision.

II

Our review of the Board’s decision is deferential. We

accept its factual findings if they are supported by substantial evidence, and its legal conclusions “unless they are

irrational or inconsistent with the [Act].” Ryder Truck

Rental v. NLRB, 401 F.3d 815, 825 (7th Cir. 2005); see also

Brandeis Machinery & Supply Co. v. NLRB, 412 F.3d 822, 829

(7th Cir. 2005); 29 U.S.C. § 160(e). Our focus is on the

Board’s decision; as a practical matter, we look to the

ALJ’s opinion on issues where the Board affirmed without additional comment.

A. Loparex’s Bulletin Board Policy

The Board adopted the ALJ’s conclusion that Loparex

violated section 8(a)(1) when, against a backdrop of a

corporate policy that permitted employees to use the

bulletin boards for a variety of non-work purposes, it

shut off access in response to union organizing activity.

As support for his finding that the purpose of the new
Nos. 09-2187, 09-2289 5

policy was to inhibit the organization campaign, the ALJ

pointed to a confrontational meeting between management and a union supporter that took place a few months

before Loparex issued the policy. The evidence of an

upsurge in prounion activity following that meeting, in

the ALJ’s view, supported an inference of Loparex’s

knowledge and distaste for the employees’ organizing

efforts. This aversion played a key role in the formulation

of the bulletin board policy. Loparex objects that there is

only a weak temporal connection between the earlier

confrontation and the eventual issuance of the new

bulletin board policy. Loparex adds that the evidence

does not establish that the company was even aware

that prounion materials had been posted on company

bulletin boards.

Section 8(a)(1) offers employees broad protection from

employers’ attempts “to interfere with, restrain, or coerce

employees in the exercise” of their statutory rights to

organize under section 7. 29 U.S.C. § 158(a)(1); 29 U.S.C.

§ 157. Yet this statutory entitlement does not give employees an unfettered right to use a company’s bulletin

boards to stir up interest in unionization. See Fleming

Companies, Inc. v. NLRB, 349 F.3d 968, 975 (7th Cir. 2003);

Guardian Indus. Corp. v. NLRB, 49 F.3d 317, 318 (7th Cir.

1995). The critical question is whether the employer is

discriminating against union messages, or if it has a

neutral policy of permitting only certain kinds of postings

(for example, those related directly to work rules). Discriminatory interference with union organizers’ access to

bulletin boards is forbidden. Fleming, 349 F.3d at 975; J.C.

Penney Co., Inc. v. NLRB, 123 F.3d 988, 997 (7th Cir. 1997).
6 Nos. 09-2187, 09-2289

Though it is undisputed that Loparex’s new bulletin

board policy was facially neutral and nondiscriminatorily

applied, an employer may violate the Act if its motivation for a new policy is its hostility toward prounion

activity. See NLRB v. Village IX, Inc., 723 F.2d 1360, 1365-66

(7th Cir. 1983) (finding the employer’s adoption of a

rule was motivated by an antiunion position and thus

violated the Act); Brandeis Machinery & Supply Co. v. NLRB,

412 F.3d 822, 834-35 (7th Cir. 2005) (explaining that

under section 8(a)(1), facially nondiscriminatory “policies

may not target, either through design or enforcement,

activity protected by the Act”) (emphasis added); see also

NLRB v. Wolfe Electric Co., 314 F.3d 325, 328 (8th Cir. 2002);

Four B Corp. v. NLRB, 163 F.3d 1177, 1184 (10th Cir. 1998);

Roadway Exp., Inc. v. NLRB, 831 F.2d 1285, 1290 (6th Cir.

1987).

If an employer is alleged to have acted with an antiunion

purpose, we apply the analytical framework set forth by

the Board in Wright Line, a Division of Wright Line, Inc., 251

NLRB 1083 (1980). See FedEx Freight East, Inc. v. NLRB,

431 F.3d 1019, 1027-28 (7th Cir. 2005); Roadway Exp., 831

F.2d at 1290. Under Wright Line, the Board must make

a prima facie showing that “antiunion animus was a substantial or motivating factor in the employer’s decision.”

NLRB v. Joy Recovery Technology Corp., 134 F.3d 1307, 1314

(7th Cir. 1998). Once the Board does so, the burden shifts

to the employer to prove that it had a legitimate business

reason for making its decision. Id. Since Loparex did not

offer any explanation for why it adopted the new bulletin

board policy, the case hinges on whether the Board adequately proved its prima facie case.
Nos. 09-2187, 09-2289 7

In determining whether an employer acted improperly,

the Board is entitled to rely upon circumstantial evidence.

See SCA Tissue North America LLC v. NLRB, 371 F.3d 983,

988-89 (7th Cir. 2004). In concluding that Loparex was

opposed to the unionization campaign, the ALJ focused

on a series of events that took place during the

months leading up to Loparex’s announcement of the

bulletin board policy. In January or February of 2007,

Schillinger, a production operator at the plant, spoke with

Randy Risler, who worked in human resources, about

the employees’ dissatisfaction with newly enacted attendance and pay policies. Id. at 104. Schillinger was

someone Risler knew. In 2006, Schillinger had been fired

by Douglas-Hanson, the previous owner of the plant,

for his union organizing activity, but he had recently

been reinstated pursuant to the settlement of an unfair

labor practices charge. In early February 2007, a week

after Schillinger’s conversation with Risler, Todd Bloom

and Jason Carlson, both supervisors and former DouglasHanson employees, called Schillinger into an office

to discuss what Schillinger said to Risler. After questioning Schillinger, Bloom called in Risler and Lisa Koats,

the human resources manager. At some point in the

conversation, Schillinger pointed out that everyone in the

room knew his history of union organizing, and Koats

responded, “That’s all water under the bridge.” Schillinger

then asked what he should do if people asked him

about unionization and Koats said, “[Y]ou’re to just work

and not talk about the Union.”

Beginning in early February 2007, prounion activity at

the Hammond plant slowly began to increase. Schillinger
8 Nos. 09-2187, 09-2289

started to wear union buttons and hats to work, and he

donned a union t-shirt for about half of his workdays. On

March 9, 2007, a group of employees posted a prounion

flyer on one of Loparex’s many company bulletin boards.

The flyer was taken down shortly after it was posted;

thereafter, it was repeatedly reposted and taken down.

The record does not reveal when these postings and repostings took place, or how many times the flyer was

replaced, and so we cannot tell whether the flyer was

displayed on the company bulletin board after March 9.

These events support the Board’s conclusion that

Loparex was motivated by antiunion animus when it

enacted its bulletin board policy. Schillinger’s discussion

of unions with Loparex’s management and his prounion

apparel put the company on notice that union organizing

efforts at the plant had (re)commenced. Loparex points

out that there is no evidence indicating that the

company knew that union activists had placed a flyer on

one of the many bulletin boards in the plant. Nonetheless,

the Board was aware that this was a relatively small plant.

In addition, it was entitled to rely on the suspicious timing

of the policy announcement, immediately after a three- or

four-month period in which Loparex witnessed an

uptick in employees’ organizing efforts. Cf. Brandeis

Machinery & Supply Co. v. NLRB, 412 F.3d 822, 835 (7th Cir.

2005); Great Lakes Warehouse Corp. v. NLRB, 239 F.3d 886,

890 (7th Cir. 2001); NLRB v. Rain-Ware, Inc., 732 F.2d 1349,

1354 (7th Cir. 1984).

The inference of an antiunion purpose is reinforced

by the hostility Loparex’s management displayed toward
Nos. 09-2187, 09-2289 9

Schillinger at the February 2007 meeting. The Board,

affirming the ALJ, reasonably viewed the circumstances

leading to the meeting as suspect. Presumably, Risler

had already tipped off management about Schillinger’s

opposition to the new policies and thus there was little

reason to interrogate Schillinger about his conversation

with Risler. The management officials who called the

meeting had worked at Douglas-Hanson when

Schillinger was fired for his union activity. By warning

Schillinger at the end of the meeting not to speak about

the union, Koats came dangerously close to illegally

prohibiting an employee from engaging in prounion

solicitation during the workday. See NLRB v. Aluminum

Casting & Engineering Co., 230 F.3d 286, 293-94 (7th Cir.

2000) (holding an overbroad no-solicitation rule may

improperly send the message that employees cannot

discuss unions during break times). We see no reason

to second-guess the Board’s conclusion that the

meeting revealed management’s distaste for a union.

B. Distribution of Union Literature in the Parking Lot

In May or early June 2007, Schillinger, Chris Meeker

and two other employees handed out literature to coworkers in the company parking lot and placed union

literature on car windshields. Shortly after they got

started, three Loparex officials came out to the parking lot

and informed them that they were violating company

policy. The Board endorsed the ALJ’s conclusion that

Loparex’s restriction on union organizing in the

company parking lot constituted an unfair labor practice

under section 8(a)(1).
10 Nos. 09-2187, 09-2289

In protecting employees’ right to organize, section 8(a)(1)

of the Act recognizes that employees’ organizing activities

may substantially interfere with employers’ property

rights. See St. Margaret Mercy Healthcare Centers v. NLRB,

519 F.3d 373, 374 (7th Cir. 2008). Thus, while the Act

grants employees the right to solicit on behalf of a unionization campaign, the statute also recognizes the employer’s interest in maintaining productivity and discipline. See NLRB v. Babcock & Wilcox Co., 351 U.S. 113 (1956).

An employer, for example, is entitled to limit or ban

solicitation in the workplace during work time. See

NLRB v. Clinton Electronics Corp., 284 F.3d 731, 739 (7th Cir.

2002) (citing Republic Aviation v. NLRB, 324 U.S. 793 (1945)).

An employer may not, however, prohibit all solicitation in a company parking lot. Loparex contends that this

is not what it was doing; instead, it argues, it only

banned the practice of placing flyers on car windshields.

The Board saw matters differently; it agreed with the

ALJ’s finding that the Loparex officials were telling the

employees that they could not distribute any union

materials in the parking lot even if they were off-duty.

Because the record provides some support for both positions, this was a classic call for the Board. Cf. NLRB v.

Aluminum Casting & Engineering Co., 230 F.3d 286, 293-94

(7th Cir. 2000); Beverly California Corp. v. NLRB, 227 F.3d

817, 839-40 (7th Cir. 2000).

We add that even if Loparex had proscribed only distribution on car windshields, the Board still could have

found that its policy violated section 8(a)(1). NLRB v.

Village IX, Inc., 723 F.2d 1360, 1365-66 (7th Cir. 1983). In
Nos. 09-2187, 09-2289 11

Village IX, we concluded that an employer engaged in an

unfair labor practice when it barred several employees

from placing leaflets under the windshield wipers of cars

parked in the company lot. Id. We explained that “the

distribution [of leaflets] could not have disrupted the

company’s work” and “would not have interfered with

the owners’ property right except in the most technical

of senses.” Id. at 366. Loparex’s alleged concern that

distribution on cars would lead to “wholesale littering”

lacks merit. This concern was never mentioned by company officials and there is no evidence indicating that

litter would have been a problem.

C. Distribution of Union Buttons in the Lunch Room

In June 2007, Meeker left a pile of prounion buttons lying

on a table next to a time clock. On June 20, Todd Dennison

and Lisa Koats, both members of Loparex’s management

team, held a meeting with Meeker, Schillinger, and

another employee about their distribution of the buttons.

Dennison warned, “I don’t want to catch you passing

[buttons] out, Okay, I don’t want to see them laying

around. . . . You can pass them out when you’re outside,

on your own time, but when you’re here working, you,

you, need to be working.” The ALJ concluded, and the

Board agreed, that the prohibition was overbroad

because employees could have believed they were

barred from soliciting near the time clock, a non-work

area, during non-working hours.

Loparex comes close to conceding that such an expansive

rule against solicitation on company property would
12 Nos. 09-2187, 09-2289

violate section 8(a)(1). Our review satisfies us that the

Board’s position finds support in the evidence. See Aluminum Casting, 230 F.3d at 293-94. Loparex defends itself in

this instance by trying to characterize Dennison’s statement as an anti-clutter order. Company officials, it says,

are permitted to forbid employees from leaving unattended piles of buttons on company property. Once

again, the question is whether an otherwise reasonable

policy operates in practice in a way that discriminates

against union organizers. See Fleming Companies, Inc. v.

NLRB, 349 F.3d 968, 975 (7th Cir. 2003). Loparex contends

that its prohibition was nondiscriminatorily applied, and

it asserts that company officials were acting within

their rights in banning the use of company property to

distribute union buttons.

Loparex’s argument on this point is terse and largely

unsupported by pertinent authority, and so we were

concerned that it might be forfeited. See White Eagle Co-op

Ass’n v. Conner, 553 F.3d 467, 476 n.6 (7th Cir. 2009).

Loparex does, however, refer us to a case that directly

addresses the company-property issue. See Guard Publishing, 351 NLRB 70 (2006), enf’d in part, 571 F.3d 53 (D.C. Cir.

2009). The Board argues that Loparex cannot invoke Guard

Publishing because it failed to raise the case before the

Board properly. See Production Workers Union of Chicago

v. NLRB, 161 F.3d 1047, 1054 (7th Cir. 1998) (explaining

that appellate court cannot review an argument first

raised on appeal unless “extraordinary circumstances” are

present). Loparex did, however, present its companyproperty argument in its opening brief before the Board.

This is enough to preserve the point in these enforcement
Nos. 09-2187, 09-2289 13

proceedings and to allow Loparex to rely on this theory

even though the particular case was first mentioned in

its reply brief.

Nevertheless, this is of no help to Loparex. The Board

affirmed the ALJ’s finding that the no-distribution rule

was overly broad, because Dennison and Koats did not

state that they were disallowing distribution only in

work areas of the facility. By purporting to restrict distribution in non-work areas, during break times, they

stepped over the line. In so finding, the Board was following long-established policy to the effect that “a rule is

presumptively invalid if it prohibits distribution on the

employees’ own time.” See Our Way, Inc., 268 NLRB 394,

394 (1983). The ALJ also noted that at the same time

Loparex was complaining about the union materials, it

permitted the distribution in the lunchroom of some

coupons for a local fast-food restaurant, suggesting that

its real concern was neither clutter nor limitation to jobrelated materials.

D. Shift Leaders as Supervisors under the Act

In June or July 2007, Loparex announced to the shift

leaders working at the Hammond plant that they were

“supervisors” within the meaning of the Act and thus

prohibited from engaging in union activities. See NLRB

v. Kentucky River Community Care, Inc., 532 U.S. 706, 708

(2001). Section 2(11) of the Act states:

The term ‘supervisor’ means any individual having

authority, in the interest of the employer, to hire,
14 Nos. 09-2187, 09-2289

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). To prove that employees qualify as

statutory supervisors, an employer has the burden to

prove: “(1) [the employees] hold the authority to engage

in any 1 of the 12 listed supervisory functions, (2) their

‘exercise of such authority is not of a merely routine or

clerical nature, but requires the use of independent judgment,’ and (3) their authority is held ‘in the interest of the

employer.’ ” Kentucky River, 532 U.S. at 713 (citation

omitted). Loparex argues that shift leaders qualify as

supervisors because they have the authority to responsibly

direct employees and assign them work.

Before we address each of these contentions, it is

helpful to provide a general description of the role shift

leaders play at the Hammond plant. Each shift leader is

part of a small crew typically comprised of five or so

workers. Shift leaders work directly under a team

manager, who is generally assigned to the same 12-hour

shift. While shift leaders, like other crew members, operate

the production machinery, they also help out other crew

members, answer questions, and provide needed supplies.

In addition, shift leaders are required to assign crew

members to various machines in order to accomplish the

tasks allocated to the crew in the daily job priority sheet.
Nos. 09-2187, 09-2289 15

1. Authority responsibly to direct

To establish that an employee has the authority responsibly to direct another co-worker, the employee must be

accountable for the co-worker’s performance. See NLRB v.

Adam & Eve Cosmetics, Inc., 567 F.3d 723, 728 (7th Cir.

1977). In addition to accountability, the Board requires that

an employee must have “authority to take corrective

action, if necessary” and be subject to negative consequences for her failure to take such action. Oakwood

Healthcare, Inc., 348 NLRB 686, 692 (2006). The Board

adopted the ALJ’s conclusion that Loparex’s shift

leaders were not empowered to take corrective action.

Loparex argues that Oakwood Healthcare was wrongly

decided because the Board inappropriately read into the

statute an additional requirement that the employee

must have the capacity to take corrective actions. The

Board asserts that Loparex has forfeited any argument

directly challenging the case. See 29 U.S.C. § 160(e). While

Loparex argued to the Board that its shift leaders did

direct their co-workers, it neither attacked Oakwood

Healthcare nor raised the issue of corrective action. This

may well amount to a forfeiture of Loparex’s argument

on appeal. See Masiongale Electrical-Mechanical, Inc. v.

NLRB, 323 F.3d 546, 555 (7th Cir. 2003). Yet even if

Loparex did preserve the issue, we are unpersuaded by

its argument.

The Board’s position, in Loparex’s opinion, is nonsensical, because the ability to discipline is a statutorily recognized supervisory power. Assuming that “corrective

action” is not different from disciplinary action, Loparex
16 Nos. 09-2187, 09-2289

argues that the Oakwood Healthcare rule effectively eliminates “responsible direction” as a separate basis for

establishing an employee’s supervisory status. Loparex

contends that the Board applied the “corrective action”

requirement in a manner that conflated the idea of discipline and responsible direction.

The most we can say is that the reference to responsible

direction in section 2(11) of the Act may be ambiguous.

We thus owe Chevron deference to the Board’s decision

in Oakwood Healthcare. See Chevron U.S.A., Inc. v. National

Resources Defense Counsel, Inc., 467 U.S. 837 (1984); NLRB v.

GranCare, Inc., 170 F.3d 662, 666 (7th Cir. 1999) (en banc)

(according Chevron deference to Board’s interpretation of

the “independent judgment” requirement in section 2(11)).

Though Loparex contends that Oakwood Healthcare’s

concept of “corrective action” is fundamentally flawed,

we find it a permissible interpretation of the pertinent

statutory language. The Board is entitled to take the

position that it would be incongruous to hold someone

accountable for the conduct of others she could not control

or correct. See NLRB v. Don’s Olney Foods, Inc., 870 F.2d

1279, 1284 (7th Cir. 1989) (holding that responsible direction implies the need for accountability).

At the same time, in applying the “corrective action”

requirement, the Board must be careful to distinguish

between corrective and disciplinary action in order to

ensure that each part of section 2(11) has meaning. Yet,

despite Loparex’s claims to the contrary, there is little

indication that it equated these two forms of supervisory

power. Instead, the Board accepted the ALJ’s finding that
Nos. 09-2187, 09-2289 17

shift leaders lacked authority to take corrective action

because they were unable to control their crew members

in any meaningful sense. The ALJ pointed out, for

example, that if a member of a shift leader’s crew is

insubordinate, the shift leader’s only option is to submit a

factual report detailing the issue to her team manager

for consideration. The ALJ found that this meager reporting power could not be construed as a form of corrective action.

Since Loparex did not provide any other evidence

indicating that shift leaders had authority to control crew

members, the Board did not need to illustrate the difference between corrective and disciplinary action. We add

that we have no trouble imagining separate domains

for these two kinds of action. For instance, an employee

might be said to take corrective action if she requires a coworker to stay late to complete a project that has fallen

behind schedule. Placing this small burden on the employee, however, would not amount to a disciplinary

action that could affect the employee’s job status.

We are satisfied that substantial evidence supports

the Board’s determination that shift leaders do not

possess the ability to take corrective action. This court

owes deference to the Board when it is engaged in the

difficult task of distinguishing between “true supervisors”

and other employees under section 2(11). See GranCare,

170 F.3d at 666. This type of line-drawing is what the

Board is for, after all. And the evidence in this case provided ample support for the Board’s conclusion that

shift leaders lack the authority responsibly to direct

their crew members.
18 Nos. 09-2187, 09-2289

2. Authority to assign

While the Board assumed that shift leaders had the

authority to assign work to crew members, it also concluded that shift leaders did not exercise independent

judgment while assigning the work. See Kentucky River,

532 U.S. at 713 (distinguishing “independent judgment”

from the exercise of authority that is “merely routine

or clerical [in] nature”). In applying the concept of independent judgment, the Board focused on the manner

in which shift leaders assign work to their crew members.

The shift leaders refer to the daily priority sheet, which

“lists the jobs to be run on each machine in order of

importance and when those jobs are due.” Only two

shift leaders testified about their specific approach to

assignments. Meeker reported that he used three basic

strategies: (1) making sure people rotated to different

machines; (2) allowing a person to continue working on

the same machine if a project took more than a day; and

(3) random assignment. Meeker did not take into

account the personal characteristics of his co-workers

when assigning work. Tim Monicken had a different

system: he assigned higher priority work to more efficient

workers. The Board gave no weight to Monicken’s testimony, however, because he was no longer a shift leader

at the time of the hearing and he never professed to

speak about how other shift leaders assigned work. Left

with a meager record showing only Meeker’s approach

to assigning work, the Board decided that this was not a

position that required the exercise of independent judgment.
Nos. 09-2187, 09-2289 19

Loparex contends that the Board should not have

ignored Monicken’s testimony. Yet Loparex is unable to

point to any evidence that any other shift leaders

adopted Monicken’s practice of assigning work based

upon workers’ relative productivity. In fact, the ALJ

specifically found that Monicken’s job as shift leader

differed in many respects from other shift leaders. Since

Loparex had the burden to demonstrate independent

judgment, we conclude that substantial evidence

supports the Board’s decision to focus on Meeker’s approach to work assignments.

Retreating to Meeker’s testimony, Loparex contends that

it is irrelevant that Meeker failed to exercise independent

judgment. As long as Meeker was empowered to make

independent judgments about work assignments, Loparex

asserts that he qualifies as a supervisor under section

2(11). Cf. Dreyer’s Grand Ice Cream, Inc. v. NLRB, 140

F.3d 684, 687 (7th Cir. 1998) (collecting cases that hold

that the actual exercise of supervisory power is not necessary to qualify as a supervisor under section 2(11)).

While it is possible that a statutory supervisor need only

have the authority to exercise one of the supervisory

powers enumerated in section 2(11), this does not suffice

for the exercise of independent judgment. See NLRB v.

Don’s Olney Foods, Inc., 870 F.2d 1279, 1283-84 (7th Cir.

1989). In Don’s Olney Foods, even though an employee

had the ability to assign workers to different tasks, we

found this authority insufficient because most of the

assignments were dictated by informal routine. Id. Similarly, Meeker’s method of assignment was routine and

clerical in nature; therefore, the Board acted within its
20 Nos. 09-2187, 09-2289

authority when it concluded that Loparex’s shift leaders

did not exercise the requisite independent judgment

to qualify as supervisors under the Act.

* * *

We conclude that the Board’s order should be

ENFORCED in its entirety.

12-31-09