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National Labor Relations Board, v. Winnebago Television Corp.

February 9, 1996






Petition for Enforcement of an Order of the National Labor Relations Board. No. 33 CA 10611

Before EASTERBROOK, KANNE, and ROVNER, Circuit Judges.

KANNE, Circuit Judge.



The National Labor Relations Board ("NLRB") ordered Winnebago Television Corporation d/b/a WTVO-TV ("WTVO") to negotiate with the International Brotherhood of Electrical Workers ("Union"), which the NLRB had certified as the exclusive representative of a collective bargaining unit of WTVO's employees. WTVO refused to negotiate, and the NLRB now asks us to enforce its order pursuant to our authority under sec. 10(e) of the Labor Management Relations Act, 29 U.S.C. sec. 160(e). This petition raises issues concerning (1) the classification of two of WTVO's employees under the statute governing the determination of collective bargaining units and (2) the disposition of WTVO's request for review of the unit determination. For the reasons discussed below, we deny the petition for enforcement.


WTVO is a television station in Rockford, Illinois, affiliated with the National Broadcasting Company ("NBC"). WTVO employs approximately sixty-five people who supervise and staff six departments: administration, production, programming, news, sales, and engineering. WTVO airs locally and network-produced news and entertainment programs, commercials, and public service announcements. It generates the bulk of its revenue by producing commercials and selling commercial airtime, but it does receive some revenue directly from NBC.

The genesis of these proceedings occurred on December 17, 1992, when the Union filed a petition with the NLRB under 29 U.S.C. sec. 159(c)(1), *fn1 seeking to represent twenty-two fulland part-time employees in WTVO's production department. At the time of the petition, the Union already represented a bargaining unit of thirteen WTVO engineering technicians. A seven-day hearing took place beginning January 13, 1993, and WTVO and the Union filed final briefs on March 9 and 10, 1993, respectively. In its brief, the Union suggested a unit of seventeen employees. WTVO argued for a "wall to wall" unit encompassing all nonsupervisory and unrepresented employees.

The parties' positions regarding the status of two employees, Chris Hilgendorf and Karen Mais, are material to our decision. Hilgendorf works in the production department and directs WTVO's weekday evening newscasts at five, six, and ten o'clock P.M. WTVO characterizes Hilgendorf as a supervisor under 29 U.S.C. sec. 152(11), who should be excluded from any bargaining unit. The NLRB argues that he did not qualify as a supervisor under sec. 152(11) and should be included in the bargaining unit. Mais is an assistant to the programming/community affairs director and is responsible for drafting production orders and programming schedules. WTVO and the Union agreed during the proceedings below that she should be included in any appropriate bargaining unit, the NLRB disagreed, and the question of her placement is currently unresolved.

The NLRB acting regional director ("ARD") decided on July 30, 1993, that the appropriate bargaining unit under 29 U.S.C. sec. 159(b) consisted of thirteen WTVO employees, which included Hilgendorf and excluded Mais. The ARD directed that an election be held to determine whether the Union would act as representative for the bargaining unit. On August 12, 1993, WTVO requested that the NLRB review the ARD's decision and stay the election pending its review. *fn2 The NLRB refused to grant the stay, and the election proceeded as scheduled on August 23.

The NLRB issued an order on September 8, 1993. It found that WTVO's request for review had raised a substantial issue only with regard to the placement of Mais and stated that the challenge procedure was the appropriate mechanism for resolving her disputed status. It accordingly amended the ARD's decision to permit her to vote by challenged ballot but denied WTVO's request for review in all other respects. A total of twelve eligible voters cast ballots in the election, which the Union won by a vote of seven to five. The two-vote margin rendered the Mais issue immaterial to the certification decision, *fn3 and the NLRB regional director *fn4 certified the Union as the unit's collective bargaining representative on September 22, 1993. *fn5

WTVO subsequently refused to bargain with the Union, prompting the Union to file a charge of unfair labor practice on March 21, 1994. The Union amended the charge on May 17, and the regional director issued a complaint and notice of hearing on June 1. WTVO answered the complaint on June 10, stating that its refusal to bargain was based upon the ARD's erroneous determination of the appropriate bargaining unit and the consequently flawed certification issued by the regional director. General counsel for the NLRB moved for summary judgment on August 11, 1994, stating that WTVO was precluded from raising its assigned issues by virtue of the regional director's certification decision of September 22, 1993. The NLRB issued a notice to show cause on August 17, which allowed WTVO to brief the issue and explain why summary judgment should not be granted against it. WTVO argued that summary judgment was inappropriate because three issues warranted the attention of either an administrative law judge or the NLRB: (1) Hilgendorf's inclusion in the unit, (2) Mais's exclusion from the unit, and (3) the limitation of the unit only to production department employees.

A three-member panel of the NLRB issued a decision and order on September 23, 1994. It first found that WTVO had failed to adduce any evidence concerning the unit determination that was unavailable to it for use in the earlier representation proceeding before the ARD. *fn6 With regard to the dispute concerning Hilgendorf's status, the NLRB determined that WTVO's reliance on a recent United States Supreme Court decision, NLRB v. Health Care & Retirement Corp., __ U.S. __, 114 S. Ct. 1778 (1994), was misplaced and insufficient to require reconsideration of the ARD's unit determination with regard to Hilgendorf. Nowhere did the decision and order discuss the question concerning Mais.

On the issue of alleged unfair labor practice, the NLRB panel focused on the answer filed by WTVO on June 10, 1994, in response to the regional director's complaint. It reasoned that WTVO's admissions in the answer concerning the Union's certification and its own "technical refusal to bargain" fatally undermined its contrary statements in the response to the notice to show cause. The NLRB stated that, having failed to dispute "the authenticity of that correspondence [i.e., the answer] in its response to the Notice to Show Cause," WTVO had effectively admitted to refusing to bargain with the Union as alleged in both the complaint and the motion for summary judgment.

Based upon these findings, the panel granted summary judgment in favor of the NLRB and ordered WTVO to commence bargaining with the Union. WTVO steadfastly refused, and the NLRB filed the instant petition for enforcement on January 30, 1995. We have jurisdiction to entertain this petition for enforcement under 29 U.S.C. sec. 160(e).


In addition to conferring jurisdiction, 29 U.S.C. sec. 160(e) prescribes the scope of our review. We are authorized to set aside, enforce, or modify the NLRB's decision but must confine any such action to an issue that has actually been determined by the NLRB. 29 U.S.C. sec. 160(e) (conferring upon us jurisdiction "of the proceeding and of the question determined therein"). We may not consider objections that were not previously submitted to the NLRB unless the failure to make those objections can be "excused because of extraordinary circumstances." Id. In cases where the NLRB has failed to address properly raised objections, we may be constrained to remand the matter to the NLRB for further consideration in light of the unambiguous command of sec. 160(e).

In considering those issues within the scope of our review, we are obligated to affirm the NLRB's findings of fact if they are "supported by substantial evidence on the record considered as a whole." Id.; see also NLRB v. O'Daniel Trucking Co., 23 F.3d 1144, 1148 (7th Cir. 1994). The substantial evidence test is deferential: "Substantial evidence means evidence that reasonable minds might accept as adequate to support a conclusion." Central Transport, Inc. v. NLRB, 997 F.2d 1180, 1184 (7th Cir. 1993). We may neither "dabble in fact-finding" nor displace the NLRB's factual determinations simply because we envision a different conclusion had we reviewed the record de novo. K-Mart Corp. v. NLRB, 62 F.3d 209, 212 (7th Cir. 1995) (citing NLRB v. P*I*E Nationwide, Inc., 923 F.2d 506, 513 (7th Cir. 1991)).

The Labor Management Relations Act empowers the NLRB to define the contours of appropriate bargaining units. 29 U.S.C. sec. 159(b). These determinations are firmly within the discretion of the NLRB and are rarely to be disturbed. South Prarie Constr. Co. v. Operating Engineers, 425 U.S. 800, 805, 96 S. Ct. 1842, 1844 (1976). Nevertheless, although abstaining from fact-finding, we will conduct "a thorough review of the record to ensure that the unit determination is not unreasonable, arbitrary or capricious, or unsupported by substantial evidence." NLRB v. Joe B. Foods, Inc., 953 F.2d 287, 293 (7th Cir. 1992).

Selecting an appropriate bargaining unit requires the NLRB to apply the classifications of 29 U.S.C. sec. 152 to its findings of fact in each particular case. We review the NLRB's application of law to fact under the substantial evidence standard, and "the Board's reasonable inferences may not be displaced on review even though [we] might justifiably have reached a different conclusion had [we] considered the matter de novo." U.S. Marine Corp. v. NLRB, 944 F.2d 1305, 1313-14 (7th Cir. 1991) (en banc) (citation omitted), cert. denied, 503 U.S. 936 (1992).


In its decision and order of September 23, 1994, the NLRB made no determination concerning Mais. In its order of September 8, 1993, however, the NLRB ordered that she be allowed to vote by challenged ballot and that her placement be determined through the challenge procedure. At oral argument, counsel for the NLRB stated that the resolution of her status depended upon our decision concerning Hilgendorf. He requested that we remand the matter to the NLRB for a final determination of Mais's placement either within or without the bargaining unit should we find Hilgendorf to have been wrongly included in the unit.

WTVO has argued that the election results are irreparably flawed due to the prejudicial effect of Mais's uncertain status and exclusion from the unit at the time of the election. It contends that even if we find her exclusion to be proper, we should nevertheless direct that a new election be held on the basis of the alleged prejudice. WTVO's argument rests upon a faulty premise, however. We are not empowered to address the question concerning Mais because that issue has not been determined by the NLRB. See 29 U.S.C. sec. 160(e). We agree with counsel for the NLRB that the question would become ripe for its determination should we deny the petition based upon the placement of Hilgendorf. There is no disagreement that the NLRB will resolve challenges that are potentially dispositive of an election. Heritage Fire Protection, Inc., 307 N.L.R.B. 824 (1992), enforcement granted, 33 F.3d 55 (6th Cir. 1994); CWM, Inc.?Port Arthur, Employer, 306 N.L.R.B. 495 (1992); see also 29 C.F.R. sec. 102.69. The fulcrum of this dispute is therefore the appropriate classification of Hilgendorf under 29 U.S.C. sec. 152.



Congress enacted the Labor Management Relations Act in 1935 to prevent industrial strife that threatened the growth of the Nation's burgeoning interstate commerce. 29 U.S.C. sec. 151 et seq. As originally written, the Act did not exclude supervisors from the definition of employees accorded protection under the Act, and the United States Supreme Court decided in 1947 that, absent language to the contrary, supervisors were within the ambit of the Act's coverage. Packard Motor Car Co. v. NLRB, 330 U.S. 485, 67 S. Ct. 789 (1947).

Congress reacted to Packard Motor Car Co. by excluding supervisors from the Act's coverage in the Labor Management Relations Act of 1947. See Health Care & Retirement Corp., 114 S. Ct. at 1787 (Ginsburg, J., dissenting) (tracing the Act's legislative history). The 1947 legislation excluded "any individual employed as a supervisor" from the class of "employees" defined in sec. 2(3). The same legislation replaced the prior sec. 2(11) of the Act with the following definition of supervisor:

The term "supervisor" means 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. sec. 152(11).

It is settled law in this circuit that this section is to be read disjunctively. An employee who possesses any one of the iterated criteria qualifies as a supervisor within the meaning of sec. 152(11). Joe B. Foods, 953 F.2d at 294 (collecting cases and quoting NLRB v. Ajax Tool Works, Inc., 713 F.2d 1307, 1311 (7th Cir. 1983)). We have previously characterized "supervisor" as a term of art because there are a great number of scenarios in which an employee might exercise some supervisory authority without qualifying as a supervisor under sec. 152(11). Children's Habilitation Ctr., Inc. v. NLRB, 887 F.2d 130, 131 (7th Cir. 1989). Informing the application of this "nondirective statutory definition" is the goal that motivated Congress in 1947 to exclude supervisors from the coverage of the Act: maintaining an equilibrium of power in the employer-union relationship. Id. Allowing supervisors to join employee unions would threaten the integrity of a business's decisionmaking hierarchy and would create potential conflicts of interest as supervisors balanced their loyalties to the union with ...

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