Oil, Chemical and Atomic Workers Int. U. v. NLRB

• Decision Date: 27 May 1971
• Docket Number: 23750,No. 23295,23751.,23300,23295
• Citation: 445 F.2d 237
• Parties: OIL, CHEMICAL AND ATOMIC WORKERS INTERNATIONAL UNION, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, George A. Angle, d/b/a Kansas Refined Helium Company, Intervenor. George A. ANGLE, d/b/a Kansas Refined Helium Company, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

445 F.2d 237 (1971)

OIL, CHEMICAL AND ATOMIC WORKERS INTERNATIONAL UNION, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, George A. Angle, d/b/a Kansas Refined Helium Company, Intervenor.

George A. ANGLE, d/b/a Kansas Refined Helium Company, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

Nos. 23295, 23300, 23750, 23751.

United States Court of Appeals, District of Columbia Circuit.

Argued November 3, 1970.

Decided May 27, 1971.

Mr. Jerry D. Anker, Washington, D. C., for petitioner in Nos. 23,295 and 23,300.

Mr. Marvin J. Martin, with whom Mr. W. Stanley Churchill, Wichita, Kan., was on the brief, for petitioner in Nos. 23,750 and 23,751 and intervenor in Nos. 23,295 and 23,300.

Mr. Joseph E. Mayer, Atty. National Labor Relations Board, for respondent. Messrs. Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, Allison W. Brown, Jr., and Harold B. Zanoff, Attorneys, National Labor Relations Board, were on the brief for respondent.

Before McGOWAN and TAMM, Circuit Judges, and MATTHEWS,^* Senior District Judge.

McGOWAN, Circuit Judge:

These petitions for review, filed by the union (Oil, Chemical and Atomic Workers International, AFL-CIO) and the employer (Kansas Refined Helium Company), bring before us two related orders of the National Labor Relations Board. The Board has also filed a cross-petition for enforcement. Finding upon examination of the numerous issues raised that the Board has committed no errors of law and that its findings are amply supported by substantial evidence, we deny both petitions for review and grant the Board's request for enforcement.

I

The issues presented here arise from a fact pattern which has become familiar to this court and to the other Courts of Appeals in reviewing the Board's unfair labor practice decisions. The dispute in this instance arose under the following circumstances. Shortly after the employer took over the operation of a newly constructed helium plant, the union with the assistance of several key employees launched a campaign to organize the plant's production and maintenance personnel. The union quickly obtained signed union authorization cards from 18 of the 22 employees involved. Upon being notified that a majority of its employees had signed cards designating the union as their collective bargaining representative, the employer called for a formal election to be conducted by the Board.

During the months before the scheduled election the employer, through the conduct of its sole owner, engaged in numerous activities in an apparent effort to dissipate employee enthusiasm for union representation. The Trial Examiner found that the employer had committed unfair labor practices in violation of Section 8(a) (1) of the Labor Management Relations Act, 29 U.S.C. § 158(a) (1) (1964), by coercively interrogating each employee in the plant, by making statements to several of its employees indicating an animus toward the union, and by making veiled threats against the union and its sympathizers in a speech at a dinner given for all the employees. The Examiner also found violations of Section 8(a) (3), (5), and (1) of the Act, 29 U.S.C. § 158(a) (3), (5), (1) (1964), in (a) the discriminatory discharge of 6 pro-union employees, (b) the granting of a unilateral wage increase immediately prior to the date scheduled for the election, and (c) the persistent refusal to bargain with the employees' designated representative. The Board approved each of the Examiner's conclusions, 176 N.L.R.B. No. 115, and since, viewed as a whole, the record amply reflects the existence of substantial supporting evidence, we affirm the Board's findings.¹

The second Board order under review, 176 N.L.R.B. No. 116, deals exclusively with the suspension and second discharge of one of the 6 pro-union employees who had been previously discharged and reinstated. The Trial Examiner and the Board found that this discharge constituted an unfair labor practice offending Section 8(a) (3), (4), and (1), 29 U.S.C. § 158(a) (3), (4), (1) (1964). This finding is also clearly founded upon substantial evidence, and we leave it undisturbed.

In so sustaining the Board's orders as against the claims of error pressed upon us by the employer,² the single substantive issue meriting extended exposition is the "aging but nevertheless persistently vexing problem of whether or not an employee is a supervisor."³ That inquiry here focuses on the status of the plant's "senior operators."

II

The Labor Management Relations Act in terms confers upon employees the rights of self-organization, collective bargaining through chosen representatives, and engaging in concerted activities for their mutual benefit. Section 7, 29 U.S.C. § 157 (1964). The Act further protects employees from the unfair labor practices of their employers which interfere with those rights. Section 8(a), 29 U.S.C. § 158(a) (1964). Section 2(3), as pertinent to our consideration, defines the term "employee" as follows: "The term `employee' shall include any employee * * * but shall not include * * * any individual employed as a supervisor * * *." 29 U.S.C. § 152(3) (1964). Given this statutory framework, it is critical, both in ascertaining the appropriate bargaining unit and in evaluating allegations of unfair labor practices, to determine whether particular individuals are "employees" or "supervisors."⁴ Quite understandably, this statutory dichotomy has spawned substantial Board and appellate litigation. The statutory definition with which we deal reads in full:

"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 responsibility 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 merely routine or clerical in nature, but requires the use of independent judgment."

Section 2(11), 29 U.S.C. § 152(11) (1964).

The Board found the class of employees in question here not to be supervisors. In applying the statutory test to the factual setting of this case, the Board's decision is, of course, entitled to great weight. The substantial evidence standard for review of agency fact determinations (Section 10(e), (f), 29 U.S.C. § 160(e), (f) (1964)) takes on special significance where the issue lies so squarely within the Board's ambit of expertise. On this score we find ourselves in firm agreement with a recent opinion by Judge Waterman of the Second Circuit:

"Inasmuch as infinite variations and gradations of authority can exist within any one industrial complex and any drawing of the line between the personnel of management and the rank and file workers may require some expertise in evaluating actual power distributions which exist within an enterprise, the Board\'s findings relative thereto are entitled to great weight."

NLRB v. Metropolitan Life Ins. Co., 405 F.2d 1169, 1172 (2d Cir. 1968). See also Food Store Employees Union, Local 347 v. NLRB, 137 U.S.App.D.C. 248, 253, 422 F.2d 685, 690 (1969); Amalgamated Clothing Workers v. NLRB, 137 U.S. App.D.C. 93, 97, 420 F.2d 1296, 1300 (1969). With that limitation on our review power in mind, we turn to a consideration of the facts underlying the Board's decision.

Kansas Refined Helium Company is a highly automated plant engaged primarily in the process of extracting helium from natural gas. The facility is in operation around the clock, seven days a week, and is staffed by approximately 25 persons spread out over three sucessive shifts. Filling the top positions of responsibility are the plant manager, the operations and engineering manager, and the chief of maintenance. These three fall clearly within the management echelon and there is no controversy as to their supervisory status. The remainder of the employees, with the exception of several repair and maintenance personnel, are classified as either senior or junior operators. It is the status of the four senior operators, all of whom signed union authorization cards and some of whom participated in soliciting signatures from other employees, which is the critical issue in this proceeding.

The responsibilities of the "operating" employees — the senior and junior operators — consist primarily of observing the indicators and gauges, which reflect the progress of the various stages in the refining process, and of making adjustments as necessary. On each shift there is one senior operator and either two or three junior operators. Generally the senior operator stations himself in the main control room in front of the central indicator board; the junior operators move throughout the plant performing other routine functions such as checking machinery and controls in the outbuildings. The standard operating activities of both the senior and junior operators are performed in accordance with an instructional manual known as the "blue book." Any nonroutine instructions, required to take care of unusual circumstances, are assigned by the three managerial supervisors. Communication of such special instructions from one shift to the next is accomplished through notations penciled into the "special orders book" by the assigning manager. This book is periodically consulted by all operators. One of the responsibilities of each senior operator is to ascertain that the junior operators on his shift have fulfilled any such special assignments.

Because of the full-time operation of the plant, there are many hours during the day when the managerial supervisors are not present. The employer has relied heavily in these proceedings on this fact as indicating that, at least during substantial segments of any workday, the senior operators do have the obligation "responsibly to direct" the junior operators on...