___________

No. 96-2273

___________

Eagle Window & Door, Inc., *

*

Petitioner, *

*

v. *

*

National Labor Relations Board, *

*

Respondent. *

___________ Petitions for Review of an

 Order of the National

Labor No. 96-2531 Relations Board.

___________

Eagle Window & Door, Inc., *

*

Respondent, * [UNPUBLISHED]

*

v. *

*

National Labor Relations Board, *

*

Petitioner. *

_____________

Submitted: November 12, 1996

 Filed: January 7, 1997

_____________

Before FAGG, BEAM, and HANSEN, Circuit Judges.

_____________

PER CURIAM.

Following a vigorous campaign, a union certification election was

held at Eagle Window & Door's manufacturing plant in Dubuque, Iowa. The

union was declared the winner, but only by a few votes. Eagle challenged

the election because the National Labor Relations Board (the Board) refused

to count the ballots of thirty-eight factory group leaders. The Board

rejected Eagle's challenge
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because it decided the group leaders worked as supervisors at Eagle's

plant, and thus they were ineligible to vote in the union election. See

29 U.S.C. §§ 152(3), (11) (1994). The Board then ordered Eagle to bargain

with the union, and Eagle petitioned for review. 

Eagle manufactures windows and doors on an automated assembly line.

The employees working along the line generally perform the same repetitive

tasks each day. Eagle's entire production process is separated into about

sixteen departments operating under the direction of thirteen acknowledged

supervisors. Each department is divided into teams that are guided by the

challenged group leaders. Although the group leaders spend most of their

day working on the assembly line, the group leaders also distribute daily

work assignments based on computerized production schedules prepared by

upper management, check the daily work against predetermined

specifications, monitor workplace safety, and provide their supervisors

with worker evaluations. Group leaders cannot hire, fire, or effectively

impose discipline on any employee.

Under the National Labor Relations Act, a supervisor is defined as

any employee who has the authority

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). Recently, the Board recognized that it "has a duty

not to construe the statutory language too broadly" and concluded "[o]nly

individuals with `genuine management prerogatives' should be considered

supervisors, as opposed to `straw bosses, leadmen . . . and other minor

supervisory employees.'" Panaro & Grimes, A Partnership D/B/A Azusa Ranch

Mkt., 321 N.L.R.B. No. 112, 1996 WL 410877, at *2 (July 19, 1996)
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(quoted case omitted). Thus, the Board maintains "an individual who

exercises some `supervisory authority' only in a routine . . . or

perfunctory manner will not be found to be a supervisor." Id. (quoted case

omitted). Understandably, it is not an easy task for the Board to make the

call on whether group leaders with differing degrees of responsibility

exercise statutory supervisory authority. Compare S.D.I. Operating

Partners, L.P., 321 N.L.R.B. No. 24, 1996 WL 233631, at *1 (Apr. 30, 1996)

(group leaders are not supervisors); Quadrex Envtl. Co., 308 N.L.R.B. 101,

101-02 (1992) (same); Somerset Welding & Steel, Inc., 291 N.L.R.B. 913,

913-14 (1988) (same); with ITT Lighting Fixtures, 249 N.L.R.B. 441, 442

(1980) (group leaders are supervisors); Richardson Bros. Co., 228 N.L.R.B.

314, 314 (1977) (same).

In this case, the Board adopted a hearing officer's findings that

Eagle's group leaders were supervisors for two reasons: (1) the group

leaders played a significant role in the evaluation of the other employees,

and (2) the group leaders directed the work within their department. See

Schnuck Mkts., Inc. v. NLRB, 961 F.2d 700, 703 (8th Cir. 1992) (supervisory

employees must possess at least one of the § 152(11) powers). Of course,

the Board's decision is entitled to deference so long as it is supported

by substantial evidence on the record as a whole. See id. at 703-04.

Having carefully reviewed the record, we conclude the Board's decision is

not supported by substantial evidence.

Initially, we believe the Board's hearing officer attached too much

significance to the group leaders' role in the evaluation process.

Although Eagle's group leaders provided their supervisors with a

preliminary evaluation of the other team members' work, the supervisors

were responsible for the employees' final evaluations. See Hexacomb Corp.,

313 N.L.R.B. 983, 984 (1994). Nevertheless, the hearing officer felt

Eagle's group leaders were independently evaluating their team members like

the leadmen in Iron Mountain Forge Corp., 278 N.L.R.B. 255, 255 n.1 (1986).

In Iron Mountain
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Forge Corp., however, only three of the leadmens' initial evaluations were

ever changed by the reviewing officer. See id. at 259. In contrast, the

initial evaluations by Eagle's group leaders were often rejected or

modified by their supervisors. In our view, Eagle's situation is more like

the Board's holdings that the "`[a]uthority simply to evaluate employees

without more is insufficient to find supervisory status.'" Quadrex Envtl.

Co., 308 N.L.R.B. at 101 (quoted case omitted); see Somerset Welding &

Steel, Inc., 291 N.L.R.B. at 914.

Similarly, we find no substantial support for the hearing officer's

finding that Eagle's group leaders were statutory supervisors when they

directed their team's work. The group leaders merely passed out routine

work assignments and made sure the work was completed according to

predetermined schedules and specifications. In so doing, the group leaders

did nothing more than draw on their own on-the-job expertise and

experience. See Quadrex Envtl. Co., 308 N.L.R.B. at 101; Somerset Welding

& Steel, Inc., 291 N.L.R.B. at 914. Thus, the group leaders' duties did

not involve the kind of "real managerial discretion that [called for] the

exercise of independent judgment." S.D.I. Operating Partners, L.P., 1996

WL 233631, at *1. Likewise, we find nothing in the supervisors'

consultation with the group leaders incidental to the supervisors'

decisions about overtime and employee transfers, or the group leaders' role

in making sure the daily work was performed safely, that alters our view

the group leaders did not exercise statutory supervisory authority.

Finally, we reject Eagle's argument that the election should be set

aside because the union's campaign tactics materially affected the election

results. We believe the hearing officer's findings on this issue are

supported by substantial evidence on the record as a whole and no useful

purpose would be served by an extended discussion.
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Having concluded that the contested ballots must be counted, we

remand to the Board for further appropriate proceedings.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.