     14-3511-ag
     NLRB v. Onyx Management Group LLC

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 26th day of August, two thousand fifteen.
 5
 6       PRESENT: JON O. NEWMAN,
 7                JOHN M. WALKER, JR.,
 8                DENNIS JACOBS,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       NATIONAL LABOR RELATIONS BOARD,
13                Petitioner,
14
15                    -v.-                                               14-3511-ag
16
17       ONYX MANAGEMENT GROUP LLC,
18                Respondent.
19       - - - - - - - - - - - - - - - - - - - -X
20
21       FOR PETITIONER:                       MARNI VON WILPERT (Kira
22                                             Dellinger Vol, Richard F.
23                                             Griffin, Jr., Jennifer Abruzzo,
24                                             John H. Ferguson, and Linda
25                                             Dreeben, on the brief), National
26                                             Labor Relations Board,
27                                             Washington, D.C.
28

                                                  1
 1   FOR RESPONDENT:            GAIL L. GOTTEHRER (Aaron
 2                              Feigenbaum, on the brief),
 3                              Axinn, Veltrop & Harkrider LLP,
 4                              New York, New York.
 5
 6        Petition to enforce an order of the National Labor
 7   Relations Board.
 8
 9        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
10   AND DECREED that the petition of the National Labor
11   Relations Board be GRANTED.
12
13        The National Labor Relations Board (the “Board”)
14   petitions, pursuant to 29 U.S.C. § 160(e), to enforce an
15   order against Onyx Management Group LLC (“Onyx”) for
16   refusing to bargain with nine employees certified as a
17   bargaining unit of the International Union of Operating
18   Engineers, Local 30, AFL-CIO, in violation of the National
19   Labor Relations Act (the “Act”), 29 U.S.C. § 158(a)(1), (5).
20   Onyx concedes refusal to bargain, but contends that the unit
21   was improperly certified. We assume the parties’
22   familiarity with the underlying facts, the procedural
23   history, and the issues presented for review.
24
25        The bargaining unit certified by the Board includes
26   nine employees: five “inside maintenance workers” and four
27   “outside groundsmen,” including lead outside groundsman Mark
28   Weymouth. Onyx challenges the Board’s findings that:
29   (1) Weymouth does not function as a supervisor and (2) the
30   inside maintenance workers and outside groundsmen share a
31   community of interest. The Board’s factual finding as to
32   supervisory status is conclusive if supported by substantial
33   evidence, NLRB v. Quinnipiac Coll., 256 F.3d 68, 73 (2d Cir.
34   2001); and its determination as to community of interest
35   “will stand unless arbitrary and unreasonable,” Staten
36   Island Univ. Hosp. v. NLRB, 24 F.3d 450, 455 (2d Cir. 1994).
37
38        1.  Supervisory Status. Supervisors do not have a
39   right to participate in collective bargaining. 29 U.S.C.
40   § 164(a); Quinnipiac Coll., 256 F.3d at 73. The Act defines
41   a “supervisor” as an individual that exercises any one of
42   twelve statutorily enumerated powers while using
43   “independent judgment” and acting “in the interest of the
44   employer.” 29 U.S.C. § 152(11); Schnurmacher Nursing Home
45   v. NLRB, 214 F.3d 260, 264 (2d Cir. 2000).
46


                                  2
 1        One of the enumerated powers is the power to “assign
 2   . . . other employees.” 29 U.S.C. § 152(11). Onyx argues
 3   that Weymouth had the power to assign tasks to other outside
 4   groundsmen and used independent judgment in exercising this
 5   power.
 6
 7        The Board’s conclusion to the contrary is supported by
 8   substantial evidence. It is undisputed that Weymouth meets
 9   with Mark Cimilluca (Onyx’s Property Manager) every morning
10   to discuss tasks that need to be performed and then relays
11   Cimilluca’s wishes to the other outside groundsmen. Joint
12   App’x 94-98, 168-69. Apart from serving in this liaison
13   capacity, Weymouth performs the same work as the other
14   groundsmen (mowing, landscaping, and so forth) and does so
15   pursuant to directives from Cimilluca. Id. 106-07. Onyx
16   seizes on various references in the record that the
17   groundsmen “report to” Weymouth and that he “delegate[s]” to
18   them. Id. 54-55, 168-69.1 But those references could
19   reasonably be read as referring to Weymouth’s role in
20   communicating management directives from Cimilluca. And to
21   the extent that the other groundsmen defer to Weymouth as to
22   task prioritization, deference to a more experienced
23   colleague is not acquiescence to a superior.
24
25        On this record, we are satisfied that the Board’s
26   conclusion that Weymouth is not a supervisor is supported by
27   substantial evidence.2
28
29        2.  Community of Interest. The Board is empowered to
30   determine “whether . . . the unit appropriate for the
31   purposes of collective bargaining shall be the employer
32   unit, craft unit, plant unit, or subdivision thereof.” 29
33   U.S.C. § 159(b). “The determination . . . requires
34   selection of an appropriate unit, not the most appropriate
35   unit, and the NLRB’s decision will stand unless arbitrary


         1
              Other references in the record that Weymouth
     “supervises” the groundsmen are also not dispositive.
     Whether or not an individual is a “supervisor” under the Act
     is a functional analysis and is not controlled by labels.
     See Quinnipiac Coll., 256 F.3d at 75-76 (analyzing actual
     tasks performed by “shift supervisors”).
         2
              In light of this conclusion, we need not decide
     whether Weymouth’s participation in the election “tainted”
     the outcome. See Quinnipiac Coll., 256 F.3d at 81.
                                  3
 1   and unreasonable.” Staten Island Univ. Hosp., 24 F.3d at
 2   455 (citation omitted). A unit is appropriate if its
 3   members share “a substantial community of interests.” Id.
 4
 5        To be sure, the degree of cohesion within each group of
 6   indoor employees and outdoor employees is greater than the
 7   cohesion between those two groups: the groups (generally)
 8   perform different tasks, work on different schedules, and
 9   infrequently interact with each other. Notwithstanding
10   those differences, the Board concluded that the two groups
11   share a community of interest because they receive
12   comparable pay and benefits and are subordinate to a common
13   supervisor, Cimilluca. See Staten Island Univ. Hosp., 24
14   F.3d at 454 (“The degree of shared interests is measured by
15   eight factors: [including] . . . similarity of employment
16   conditions, centralization of administration, managerial and
17   supervisory control . . . .”). On this record, we are
18   satisfied that the Board did not act arbitrarily in
19   concluding that a sufficient community of interest existed
20   to certify a bargaining unit containing both groups.
21
22        For the foregoing reasons, and finding no merit in
23   Onyx’s other arguments, we hereby GRANT the petition of the
24   Board.
25
26                              FOR THE COURT:
27                              CATHERINE O’HAGAN WOLFE, CLERK




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