PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-1111

PAC TELL GROUP, INC., d/b/a U.S. Fibers,

Petitioner,

v.

NATIONAL LABOR RELATIONS BOARD,

Respondent,

UNITED STEEL, PAPER AND FORESTRY, RUBBER, MANUFACTURING, 

ENERGY, ALLIED-INDUSTRIAL AND SERVICE WORKERS INTERNATIONAL 

UNION, LOCAL 7898,

Intervenor.

No. 15-1186

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

v.

PAC TELL GROUP, INC., d/b/a U.S. Fibers,

Respondent.

On Petition for Review and Cross-Application for Enforcement of 

an Order of the National Labor Relations Board. (10-CA-139779)
2

Argued: October 27, 2015 Decided: December 23, 2015

Amended: March 15, 2016

Before KEENAN, WYNN, and DIAZ, Circuit Judges.

Petition for review denied; cross-application for enforcement 

granted by published opinion. Judge Keenan wrote the opinion, 

in which Judge Wynn and Judge Diaz joined.

ARGUED: Reyburn Williams Lominack, III, FISHER & PHILLIPS LLP, 

Columbia, South Carolina, for Petitioner/Cross-Respondent. 

Julie Brock Broido, NATIONAL LABOR RELATIONS BOARD, Washington, 

D.C., for Respondent/Cross-Petitioner. Mariana Padias, UNITED 

STEELWORKERS UNION, Pittsburgh, Pennsylvania, for Intervenor. 

ON BRIEF: Michael D. Carrouth, Jonathan P. Pearson, FISHER & 

PHILLIPS LLP, Columbia, South Carolina, for Petitioner/CrossRespondent. Richard F. Griffin, Jr., General Counsel, Jennifer 

Abruzzo, Deputy General Counsel, John H. Ferguson, Associate 

General Counsel, Linda Dreeben, Deputy Associate General 

Counsel, Michael Randall Hickson, Attorney, NATIONAL LABOR 

RELATIONS BOARD, Washington, D.C., for Respondent/CrossPetitioner.
3

BARBARA MILANO KEENAN, Circuit Judge:

In this appeal, we consider the National Labor Relations

Board’s (the Board) determination that four individuals employed 

by U.S. Fibers, who were engaged in pro-union activity before a 

union election, were not supervisors within the meaning of the 

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

Under our deferential standard of review, we conclude that the 

Board’s decision is supported by substantial evidence. We also 

agree with the Board’s conclusion that the four individuals did 

not engage in objectionable conduct sufficient to set aside the 

results of the election under the Board’s third-party misconduct 

standard. For these reasons, we deny U.S. Fibers’ petition for 

review of the Board’s final order, and grant the Board’s crossapplication for enforcement of its order.

I.

U.S. Fibers (the employer) recycles polyester fibers at a 

plant located in Trenton, South Carolina. As relevant here, the 

employer utilized a tiered management structure as follows: Ted 

Oh served as vice president of operations, Kevin Corey as 

director of manufacturing, Glenn Jang as production manager, and 

Kyong Kang as production and quality assurance manager. These 

positions indisputably qualify as managerial in nature. At 

issue in this case is the alleged supervisory status under the 
4

Act of four individuals, Jose Lal, David Martinez, Eduardo 

Sanchez, and Adauco Torres, who were designated by management as 

“supervisors” (the putative supervisors). The putative 

supervisors each oversaw the daily work performed by between 22 

and 40 hourly workers during each 12-hour shift. These groups 

working each shift were subdivided into smaller teams of between 

three and five persons. Each team was assigned a “team lead” 

who was more skilled and experienced than the other members of 

the team. The “team leads” reported to the putative 

supervisors. 

The United Steel, Paper and Forestry, Rubber, 

Manufacturing, Energy, Allied-Industrial and Service Workers 

International Union, Local 7898 (the union) filed an election 

petition with the Board, seeking to represent certain employees 

at the employer’s Trenton plant. The Board directed an election 

over the employer’s objection that the putative supervisors 

should not be included in the bargaining unit because of their 

alleged supervisory status. See 29 U.S.C. § 152(3). The union 

won the election by a twelve-vote margin, with four contested 

ballots cast by the putative supervisors. 

The employer filed objections to the results of the 

election, arguing that the putative supervisors had engaged in 

objectionable conduct and that the results of the election 

should be set aside. The regional director of the Board 
5

concluded that the employer had failed to establish that Lal, 

Martinez, Sanchez, and Torres were supervisors as defined in the 

Act. The Board adopted the regional director’s reasoning and 

affirmed his decision. The Board also rejected the employer’s 

alternative contention that the results of the election should 

be set aside under the Board’s standard for third-party 

objectionable conduct. The regional director therefore 

certified the union as the employees’ exclusive collective 

bargaining representative.1 

Following issuance of the certification order, the employer 

refused to recognize or engage in collective bargaining with the 

union. The employer maintained the view that the Board’s 

certification of the union was improper, and that the results of 

the election should be set aside. At the union’s request, the 

Board filed a complaint against the employer, alleging that the 

employer had engaged in unfair labor practices under 29 U.S.C. § 

158(a)(1) and (5). The Board ultimately ordered the employer to 

cease and desist its unfair practices and to recognize and 

bargain with the union upon request (the final order). 

 1 The certification included “[a]ll full-time and regular 

part-time production, janitorial, warehousemen, shipping and 

maintenance employees, employed by the Employer at its Trenton, 

South Carolina facility, excluding all other employees, 

including office clerical employees, professional and 

confidential employees, guards and supervisors as defined in the 

Act.” 
6

The employer filed a petition for review of the Board’s 

final order in this Court. The Board filed a cross-application 

for enforcement of the same order, and we granted the union’s 

motion to intervene in support of the Board’s decision. 

II.

We first set forth the general principles governing the 

scope of our review of Board-supervised elections. We presume 

that the results of such elections are valid, and we afford them 

great deference. NLRB v. Media Gen. Operations, Inc., 360 F.3d 

434, 440-41 (4th Cir. 2004). Accordingly, we will set aside the

results of an election only if the Board “has clearly abused its 

discretion.” Id. at 441. We will affirm the Board’s factual 

findings if they are supported by substantial evidence 

considering the record as a whole. CSX Hotels, Inc. v. NLRB, 

377 F.3d 394, 398 (4th Cir. 2004). Substantial evidence is 

“such relevant evidence as a reasonable mind might accept as 

adequate to support a conclusion,” that is, more than a 

scintilla of evidence, but less than a preponderance. Gestamp 

South Carolina, L.L.C. v. NLRB, 769 F.3d 254, 263 (4th Cir. 

2014) (citation omitted). We will defer to the Board’s factual 

determinations even if we might have reached a different result 

in the first instance. Id. 
7

A.

The employer first argues that the Board erred in 

concluding that Lal, Martinez, Sanchez, and Torres are not 

supervisors under the Act.2 According to the employer, these 

individuals engaged in certain supervisory functions enumerated 

in the Act, namely, exercising the authority to assign, reward, 

discipline, and responsibly direct employees. The employer 

therefore contends that the election should be set aside because 

of pro-union activity by these alleged supervisors. We disagree 

with the employer’s argument. Although the putative supervisors 

exercised some authority over other employees, we conclude that 

the Board’s determination that the putative supervisors were not 

“supervisors” under the Act is supported by substantial 

evidence.

The Board may set aside an election if “conduct by 

supervisors, be it pro[-]union or anti[-]union, . . . interferes 

with the employees’ freedom of choice,” based on the reasoning 

that “employees may be induced to support/oppose the union 

because they fear future retaliation, or hope for preferential 

treatment, by the supervisor.” Harborside Healthcare, Inc., 343 

N.L.R.B. 906, 907 (2004). It is the burden of the party 

 2 Because the Board adopted the reasoning of the regional 

director, our references to the Board’s findings include those 

of the regional director.
8

asserting supervisory status to prove by a preponderance of the 

evidence that particular persons qualify as supervisors under 

the Act. Dean & Deluca N.Y., Inc., 338 N.L.R.B. 1046, 1047 

(2003). 

The Act defines “supervisor” as: 

[A]ny 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) (emphasis added). Individuals therefore 

qualify as supervisors only if they have the authority to engage 

in any one of the twelve supervisory functions in Section 

152(11), including the four functions at issue in this case. 

NLRB v. Ky. River Cmty. Care, Inc., 532 U.S. 706, 713 (2001). 

Additionally, putative supervisors’ “exercise of such authority 

[cannot be of] a merely routine or clerical nature, but requires 

the use of independent judgment,” and their authority must be 

“held in the interest of the employer.” Id. (citation and 

internal quotation marks omitted).

The Act’s definition of “supervisor” is intended to 

distinguish “true supervisors vested with ‘genuine management 

prerogatives,’ [from] employees such as ‘straw bosses, lead men, 

and set-up men’ who are protected by the Act even though they 
9

perform ‘minor supervisory duties.’” Oakwood Healthcare, Inc., 

348 N.L.R.B. 686, 688 (2006) (citation omitted).3 Accordingly, 

the exercise of “independent judgment” requires that a person

“act, or effectively recommend action, free of the control of 

others and form an opinion or evaluation by discerning and 

comparing data.” Id. at 692-93 (citation omitted). Judgment is 

not independent under the Act if it is “dictated or controlled 

by detailed instructions, whether set forth in company policies 

or rules, the verbal instructions of a higher authority, or in 

the provisions of a collective bargaining agreement.” Id. at 

693. With these principles in mind, we turn to address each of 

the employer’s four asserted bases for a finding of supervisory 

status. 

i.

We begin by considering the putative supervisors’ authority 

to assign the work of employees. The Board has defined the term 

“assign” in Section 152(11) as “the act of designating an 

employee to a place (such as a location, department, or wing), 

appointing an employee to a time (such as a shift or overtime 

 3 The employer does not challenge the reasonableness of the 

Board’s interpretation of the definition of “supervisor” set 

forth in Oakwood. Accordingly, we need not resolve the parties’ 

dispute regarding whether this Court’s precedent pre-dating the 

Supreme Court’s decision in Kentucky River and the Board’s 

decision in Oakwood remains controlling. Given the facts of 

this case, we can resolve the question of the putative 

supervisors’ authority based on Oakwood and other recent cases. 
10

period), or giving significant overall duties, i.e., tasks, to 

an employee.” Oakwood, 348 N.L.R.B. at 689. “Assign” does not 

refer to an “ad hoc instruction that the employee perform a 

discrete task,” nor does it include assignments made “solely on 

the basis of equalizing workloads.” Id. at 689, 693. In the 

present case, the Board found that the putative supervisors’ 

roles in assigning work did not require the use of independent 

judgment necessary to constitute supervisory authority under the 

Act. 

The record reveals that Lal’s and Sanchez’s 

responsibilities included creating employee work schedules on a 

form previously prepared by Jang, a manager, based on Jang’s 

instructions regarding the number of employees required for each 

shift. The evidence supports the conclusion that, when Lal 

assigned employees to work groups based on the employees’ 

relative “experience,” he only did so within the team lead 

structure imposed by management. The putative supervisors also 

instructed employees whether to follow the plant’s “rule of 

thumb” to clean their work areas when machines malfunctioned, or 

instead to move to another work station. 

We conclude that the Board reasonably found that none of 

these “assignment” functions required the use of independent 

judgment, because the decisions were made according to 
11

parameters set by management or to equalize employee workloads.4 

We therefore hold that the Board’s decision regarding the 

authority to assign is supported by substantial evidence.

ii.

We turn to consider whether the putative supervisors had 

the authority to reward by evaluating employee performance for 

the purpose of recommending raises.5 A person satisfies the 

“authority to reward” definition in Section 152(11) if he 

“play[s] a significant role in affecting” such raises. Shaw, 

Inc., 350 N.L.R.B. 354, 357 (2007). The Board found that 

although Lal, Sanchez, and Martinez were involved in 

recommending employee raises, the evidence was inconclusive 

regarding the extent to which the putative supervisors’ 

recommendations affected the employer’s ultimate decision. 

 4 We disagree with the employer’s contention that the 

putative supervisors necessarily exercised the authority to 

assign because they were the highest-ranking employees at the 

plant during certain shifts. Although this is one factor to 

consider in our substantial evidence analysis, we cannot 

conclude that this factor overrides the evidence that the 

putative supervisors did not exercise independent judgment in 

assigning work. 

5 The employer also argues that the putative supervisors 

possessed the authority to reward because they could grant 

overtime hours to employees. Because the employer failed to 

pursue this argument in the administrative proceedings, the 

issue has been waived. See 29 U.S.C. § 160(e) (“No objection 

that has not been urged before the Board, its member, agent, or 

agency, shall be considered by the court, unless the failure or 

neglect to urge such objection shall be excused because of 

extraordinary circumstances.”).
12

The record demonstrates that the putative supervisors were 

responsible for evaluating a list of designated employees on a 

biannual basis to help determine which employees should receive 

raises. The putative supervisors made recommendations to the 

managers, in some cases proposing a specific amount of monetary 

increase, without the benefit of written guidelines. After 

receiving the recommendation of the putative supervisors, the 

managers offered their input to Oh, who made the ultimate 

decision. According to Jang, because his opinion about which 

employees deserved raises sometimes differed from that of the 

putative supervisors, he “combine[d]” his opinion together with 

the putative supervisors’ opinions to determine the final 

proposal to give to Oh. Jang testified that management agreed 

with the putative supervisors’ recommendations 90 percent of the 

time. 

In our view, the Board could have concluded from this 

evidence that the putative supervisors at least had the 

authority “effectively to recommend” raises for employees. 29 

U.S.C. § 152(11). Nevertheless, it also was reasonable for the 

Board to view this evidence of authority to reward as ambiguous 

with respect to the weight accorded to the putative supervisors’ 

opinions, and to hold that the employer had failed to meet its 

burden of proving supervisory status. We therefore conclude 
13

that the Board’s determination regarding the authority to reward

is supported by substantial evidence. 

iii.

Next, we consider whether the putative supervisors were 

given the authority to discipline employees within the meaning 

of Section 152(11), because the putative supervisors were 

responsible for issuing written warnings. The Board held that 

the employer failed to prove that the putative supervisors 

exercised independent judgment when they disciplined employees. 

The record includes Lal’s testimony that the managers 

provided blank warning forms to the putative supervisors, 

advised them of possible infractions, and instructed them to 

complete a form every time a worker disobeyed safety rules. All 

warnings were subject to approval by management before issuance. 

Cf. General Die Casters, 359 N.L.R.B. No. 7, at *81-82 (2012) 

(concluding that a putative supervisor exercised independent 

judgment in issuing discipline in part because there was “no 

credible evidence of any other supervisor being involved in the 

issuing of the[] warnings”). The putative supervisors issued 

warnings at the explicit direction of a manager in certain 

cases. In other instances, the putative supervisors simply 

implemented in a routine fashion the requirement that they warn 

employees who did not comply with certain workplace rules. 
14

This evidence supports the Board’s conclusion that the 

putative supervisors did not “act, or effectively recommend 

action, free of the control of others” when they issued warnings 

to employees. Oakwood, 348 N.L.R.B. at 692-93.6 Accordingly, we 

conclude that substantial evidence supports the Board’s finding 

that the putative supervisors did not use independent judgment 

in exercising this supervisory function.

Our conclusion with respect to disciplinary authority is 

not altered by the employer’s reliance on Metro Transport LLC, 

351 N.L.R.B. 657 (2007), in which a putative supervisor was 

chastised by a manager for failing to exercise his discretionary 

authority to discipline employees. Id. at 660. The Board found 

that the putative supervisor possessed the authority to exercise 

independent judgment in disciplinary decisions because (1) the 

putative supervisor was not merely a conduit for management’s 

disciplinary decisions, (2) management did not conduct an 

independent investigation of such decisions made by the putative 

supervisor, and (3) “the determination of what discipline to 

 6 The employer relies on Sanchez’s statement that he 

disciplined an employee because the employee “disobeyed an order 

of work” by failing to “check all of the product” properly. 

Although this testimony could suggest that Sanchez used 

independent judgment in evaluating the need for certain 

discipline, it is unclear what “check[ing] all of the product” 

entails. We therefore conclude that Sanchez’s unspecific 

testimony does not erode the substantial evidence supporting the 

Board’s conclusion that independent judgment was not used. 
15

impose would necessarily depend on [the putative supervisor’s] 

independent judgment of what the situation warranted.” Id. at 

660-61.

In the present case, as in Metro Transport, management 

admonished putative supervisors for failing to issue warnings to 

employees who had committed safety violations. However, in 

contrast to Metro Transport, the putative supervisors here did 

not make an individualized assessment of the need for 

discipline, but instead acted as conduits for management’s 

directive to enforce particular safety protocols. See Shaw, 350 

N.L.R.B. at 356-57 (concluding that a putative supervisor did 

not exercise independent judgment in issuing discipline in part 

because the putative supervisor did not have the “discretion to 

decide which incidents to record” or to determine whether to 

complete a “write-up” form at all). Any discretion the putative 

supervisors had regarding the severity of appropriate discipline 

was limited to determining whether a first or subsequent warning 

was warranted given the employee’s prior disciplinary history. 

For all these reasons, we hold that the record supports the 

conclusion that the putative supervisors did not exercise 

independent judgment in issuing discipline.

iv.

Finally, we consider whether the putative supervisors had 

the authority responsibly to direct employees by instructing 
16

them regarding the manner in which they were to perform their 

duties. A putative supervisor “responsibly directs” another 

employee if he “direct[s] and perform[s] the oversight of the 

employee,” and is “accountable for the performance of the task” 

by the employee “such that some adverse consequence may befall 

the one providing the oversight if the tasks performed by the 

employee are not performed properly.” Oakwood, 348 N.L.R.B. at 

690-92. As with the “assignment” and “discipline” inquiries, 

the Board concluded that the employer had not established that 

the putative supervisors used independent judgment in 

responsibly directing employees’ work. Additionally, the Board 

concluded that the employer failed to show that the putative 

supervisors were held accountable for employees’ work. Because 

we find that substantial evidence supports the Board’s 

independent-judgment determination, we have no need to consider 

the question of the putative supervisors’ accountability for the 

work of others.

When the work performed by employees “is routine and 

repetitive” and does not require “more than minimal guidance,” 

direction from a putative supervisor does not involve 

independent judgment. Shaw, 350 N.L.R.B. at 356. Accordingly, 

although Lal testified that he told the employees “what they are 

going to do and how they are going to do it,” and employees 

confirmed that they received direction from the putative 
17

supervisors, this evidence is not dispositive of the responsible 

direction inquiry. The record indicates that the work performed 

by hourly employees at the plant was sufficiently routine that 

the employees did not require extensive direction. The evidence 

also shows that the managers gave the putative supervisors a 

list of work orders to be completed by employees during each 

shift, and that the managers communicated frequently with the 

putative supervisors regarding the assigned work, again 

indicating that the putative supervisors’ discretion in 

directing employees was minimal.7 Given the totality of the 

evidence, we conclude that substantial evidence supports the 

Board’s determination that the putative supervisors did not 

exercise independent judgment in their direction of employees.

We acknowledge that there is some evidence in the record 

supporting the employer’s view of the putative supervisors’ 

authority regarding each of the four asserted supervisory 

functions. Nevertheless, we are not charged with evaluating the 

evidence de novo. Applying the deferential standard of review 

for substantial evidence, we conclude that the Board reasonably 

determined that the employer did not meet its burden of 

 7 As with the authority to assign, we disagree with the 

employer that the putative supervisors exercised responsible 

direction merely because there were no managers present at the 

plant at certain times. Although the putative supervisors 

clearly directed employees’ work to some extent, we must also 

analyze whether they did so with independent judgment.
18

establishing the supervisory status of Lal, Martinez, Sanchez, 

or Torres under 29 U.S.C. § 152(11). Accordingly, we will not 

set aside the results of the election on the basis of 

objectionable conduct by statutory supervisors. Cf. generally

Harborside Healthcare, Inc., 343 N.L.R.B. 906 (2004) (explaining 

grounds for setting aside elections based on supervisory 

misconduct).

B. 

The employer argues, nonetheless, that even if Lal, 

Martinez, Sanchez, and Torres are not supervisors as defined in 

the Act, the Board election still should be set aside under the 

standard for objectionable conduct by third-party employees. 

The employer contends that Lal and Martinez “threatened” other 

employees that they could lose their jobs if the union did not 

win the election. We disagree with the employer’s argument. 

The Board may set aside an election based on employee, 

rather than supervisory, misconduct if such conduct “was so 

aggravated as to create a general atmosphere of fear and 

reprisal rendering a free election impossible.” Westwood 

Horizons Hotel, 270 N.L.R.B. 802, 803 (1984). To determine 

whether third-party threats are sufficiently serious to 

establish “a general atmosphere of fear and reprisal,” we look 

to 
19

the nature of the threat itself . . .[;] whether the 

threat encompassed the entire bargaining unit; whether 

reports of the threat were disseminated widely within 

the unit; whether the person making the threat was 

capable of carrying it out, and whether it is likely 

that the employees acted in fear of his capability of 

carrying out the threat; and whether the threat was 

‘rejuvenated’ at or near the time of the election.

Id. However, “threats of job loss for not supporting the union, 

made by one rank-and-file employee to another, are not 

objectionable.” Duralam, Inc., 284 N.L.R.B. 1419, 1419 n.2 

(1987); see also Accubuilt, Inc., 340 N.L.R.B. 1337, 1338 (2003) 

(same).

We conclude that the challenged statements by Lal and 

Martinez do not meet the rigorous standard for objectionable 

third-party conduct. For example, Martinez told other employees 

that “there could be a possibility of [the employer] letting 

[employees] go” if workers supported the company, and Lal stated 

that if the employees did not “sign the union form” it would be 

“a lot easier for the Company to be able to let employees go.” 

In our view, these statements merely constitute general comments 

about potential future job loss made by some employees to fellow 

employees.8 Under the standards set forth in Duralam and 

Westwood, we hold that the Board did not clearly abuse its 

 8 We similarly are unpersuaded by the employer’s brief 

assertion that the putative supervisors’ attendance at union 

meetings and solicitation of union authorization cards amounted 

to a “general atmosphere of fear and reprisal rendering a free 

election impossible.” Westwood, 270 N.L.R.B. at 803. 
20

discretion in declining to invalidate the results of the 

election on the basis of these challenged statements. See Media 

Gen. Operations, Inc., 360 F.3d at 441.

III.

For these reasons, we deny the employer’s petition for 

review of the Board’s order, and grant the Board’s crossapplication for enforcement.

PETITION FOR REVIEW DENIED;

CROSS-APPLICATION FOR

ENFORCEMENT GRANTED