Trailmobile Division, Pullman Incorporated v. NLRB

• Decision Date: 21 June 1967
• Docket Number: No. 23271.,23271.
• Citation: 379 F.2d 419
• Parties: TRAILMOBILE DIVISION, PULLMAN INCORPORATED, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

379 F.2d 419 (1967)

TRAILMOBILE DIVISION, PULLMAN INCORPORATED, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 23271.

United States Court of Appeals Fifth Circuit.

June 21, 1967.

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Charles M. Lanier, New Orleans, La., Hulse Hays, Jr., John R. Phillips, Cincinnati, Ohio, for petitioner, Taft, Stettinius & Hollister, Cincinnati, Ohio, Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, La., of counsel.

Marcel Mallet-Prevost, Asst. Gen. Counsel, Paul J. Spielberg, Atty., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, George B. Driesen, Atty., N. L. R. B., Washington, D. C., for respondent.

James E. Youngdahl, Little Rock, Ark., for intervenor, McMath, Leatherman, Woods & Youngdahl, Little Rock, Ark., of counsel.

Before HUTCHESON, THORNBERRY and DYER, Circuit Judges.

HUTCHESON, Circuit Judge.

This matter is here on a petition by Trailmobile Division, Pullman, Inc., to review and set aside an order of the Board, 156 N.L.R.B. No. 55. Trailmobile, found guilty of unfair labor practices for refusal to bargain, was ordered to bargain with the Union.¹ Trailmobile admits refusal to bargain, but insists that the certification of the Union after a Board-conducted election was erroneous. The Board, in its answer to the petition for review, requests enforcement of its order.

Trailmobile manufactures commercial truck trailers at its plant in Longview, Texas. On September 3, 1964, the Board conducted a representation election among Trailmobile's production and maintenance employees. The Union challenged the voting eligibility of sixteen persons, a number sufficient to affect the result of the election.² No exception was taken to the Board's ruling which rejected two of the challenges. Since the Union won the election by three votes and those two ballots alone would not have affected the result of the election, they were left unopened.

We are required to consider the eligibility of the remaining 14 challenged voters.³ The Union contends that 13 leadmen were ineligible to vote on the ground that they were supervisors, not employees; and it challenges Lenzo Higginbotham's voting eligibility on the ground that he was not an employee of Trailmobile on the date of the election. After a hearing, the Hearing Officer recommended that the challenges to the ballots of the leadmen be sustained but that Higginbotham's ballot be counted. The Board sustained the challenges to all 14 ballots, thus upholding the Hearing Officer with regard to the leadmen but reversing him with regard to Higginbotham. Accordingly, the Union was certified as the exclusive collective bargaining representative of Trailmobile's production and maintenance employees. Refusing to recognize the Union as such and to bargain with it, Trailmobile was charged with violations of Section 8(a) (1), (5) of the Act. The parties waived a hearing before a trial examiner and stipulated the record to be considered by the Board. On December 30, 1965, the Board held that Trailmobile had committed the unfair labor practices charged by refusing to bargain with the Union, and issued the order here for review.

We deal first with the question whether the leadmen were supervisors.⁴ The Board's conclusion must be sustained if it is supported by substantial evidence on the record considered as a whole. Section 10(e), 29 U.S.C. Sec. 160(e). Whether an individual is a supervisor in that he shares in the power of management must be determined on the facts of each case. See NLRB v. Bama Co., 353 F.2d 320, 322 (5th Cir. 1965); NLRB v. Schill Steel Prods., Inc., 340 F.2d 568, 571 (5th Cir. 1965); NLRB v. Griggs Equipment, Inc., 307 F.2d 275, 279 (5th Cir. 1962). In making such determinations which involve the consideration of subtle gradations of authority, the Board is accorded considerable discretion. See NLRB v. Belcher Towing Co., 284 F.2d 118, 120 (5th Cir. 1960); NLRB v. Swift & Co., 292 F.2d 561, 563 (1st Cir. 1961).

Trailmobile personnel work in a single building having no dividers. There are 12 foremen (who clearly are supervisors), the 13 leadmen, and 339 rank-and-file employees. We treat the leadmen as a group as it appears that their authority was approximately the same. About half of the leadmen worked under a foreman, while the others did not. The leadmen working under a foreman arrived at work a half-hour early to discuss with the foreman the work that was to be done on that shift. There is evidence that at times the leadmen assigned work to the employees at the beginning of a shift; foremen also did this when present. One of the functions of leadmen was to keep production running smoothly; thus, whenever necessary, they reassigned employees to different jobs. In a few situations leadmen sought to maintain discipline by reprimanding employees. Some recommendations by leadmen that employees be transferred or discharged proved effective. When overtime work was available, the leadmen selected the employee to perform it. We conclude that these facts provide substantial evidence from which the Board in its discretion could have determined that these leadmen used the degree of independent judgment necessary to make them supervisors. See e. g., NLRB v. Gary Aircraft Corp., 368 F.2d 223 (5th Cir. 1966); NLRB v. Big Three Welding Equipment Co., 359 F.2d 77, 80-81 (5th Cir. 1966); NLRB v. Bama Co., supra, 353 F.2d at 322; NLRB v. Schill Steel Prods., Inc., supra, 340 F.2d at 571; NLRB v. Charley Toppino & Sons, Inc., 332 F.2d 85 (5th Cir. 1964) (per curiam).⁵

We cannot, however, agree with the Board's decision as to Higginbotham's eligibility. About six weeks prior to the election held on September 3, 1964, Higginbotham applied for a leave of absence for the stated purpose of working on some trucks he owned privately. He received a 30 day leave of absence effective July 21. Shortly after the leave commenced, he began driving his trucks for H. E. Spahn & Co. as a hauler. Near the end of the leave, Higginbotham requested that it be extended. His request was granted, the leave being extended 30 days until September 21. He voted in the election on September 3. He returned to work at the end of the extended leave, worked one day, and quit.

There is testimony, credited by the Hearing Officer, to the effect that prior to the election Higginbotham had told another employee that he had decided not to resume employment at Trailmobile after his leave of absence since he could make more money driving his truck. To be eligible to vote in a representation election, a person must be an employee on both the eligibility date and the election date. Declaring that evidence pertaining to Higginbotham's subjective intent while on leave of absence was not controlling on the question whether he was an employee on the critical dates, the Hearing Officer held that Higginbotham continued as an employee notwithstanding his hauling work and the testimony that he had decided to quit. In reversing the Hearing Officer, the Board concluded that Higginbotham in fact had abandoned his employment with Trailmobile prior to the election.

We find that the Board failed to apply the correct standard by which the voting eligibility of employees on...