                              UNPUBLISHED

                  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)


Argued:   October 27, 2015              Decided:   December 23, 2015
Before KEENAN, WYNN, and DIAZ, Circuit Judges.


Petition for review denied; cross-application for enforcement
granted by unpublished opinion.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/Cross-
Respondent.   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/Cross-
Petitioner.


Unpublished opinions are not binding precedent in this circuit.




                                 2
BARBARA MILANO KEENAN, Circuit Judge:

      In this appeal, we consider the National Labor Relation

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 cross-

application 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

                                       3
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

                                               4
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.”


                                                 5
     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.



                                      6
                                               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.


                                               7
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

                                              8
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.


                                          9
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



                                          10
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.”).


                                               11
      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



                                             12
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.



                                              13
      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.


                                         14
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

                                            15
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

                                            16
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.


                                          17
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



                                               18
       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.


                                                19
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     cross-

application for enforcement.

                                               PETITION FOR REVIEW DENIED;
                                                     CROSS-APPLICATION FOR
                                                       ENFORCEMENT GRANTED




                                       20
