N.L.R.B. v. Publishers Printing Co., Inc., 78-1069

• Decision Date: 10 July 1980
• Docket Number: No. 78-1069,78-1069
• Citation: 625 F.2d 746
• Parties: 104 L.R.R.M. (BNA) 3100, 89 Lab.Cas. P 12,315 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PUBLISHERS PRINTING COMPANY, INC., Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 746

625 F.2d 746

104 L.R.R.M. (BNA) 3100, 89 Lab.Cas. P 12,315

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PUBLISHERS PRINTING COMPANY, INC., Respondent.

No. 78-1069.

United States Court of Appeals Sixth Circuit.

Argued April 7, 1980.

Decided July 10, 1980.

Elliott Moore, Deputy Associate Gen. Counsel, John G. Elligers, Frederick Havard, Linda Weisel, N. L. R. B., Washington, D. C., Emil Farkas, Director, Region 9, N. L. R. B., Cincinnati, Ohio, for petitioner.

John H. Doesburg, Phoenix, Ariz., for respondent.

Before EDWARDS, Chief Judge, BROWN, Circuit Judge and CECIL, Senior Circuit Judge.

CECIL, Senior Circuit Judge.

Petitioner, National Labor Relations Board, pursuant to Section 10(e) of the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et seq., applies for enforcement of its order to respondent, Publishers Printing Company, Inc., a Kentucky corporation, engaged in publishing magazines for commercial customers, to cease and desist from:

1. discharging or otherwise discriminating against employees to discourage membership in the Teamsters, Local Union 783, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America;

2. interrogating employees as to whether they signed union cards;

3. telling employees that the plant would be closed if the employees voted in a union;

4. telling employees that an employee had been fired for soliciting union cards;

5. enforcing any rule that there would be no solicitations of any kind for any purpose carried on among employees;

6. in any other manner discouraging membership in the union organization.

Further, the Board's order requires the respondent to take affirmative action as follows:

1. offer Carl Mattingly and William Phillips full reinstatement to their former positions;

2. make Mattingly and Phillips whole for any loss of earnings they may have suffered by reason of respondent's discrimination against them;

3. revoke its no solicitation rule.

The ultimate issues are:

Whether substantial evidence on the record as a whole supports the Board's findings that Respondent violated Sections 8(a)(1) and (3) of the Act.

The respondent argues that those persons allegedly responsible for the violative actions were not supervisors and therefore management could not be responsible for their acts. Our first consideration then, is whether the Board's determination that those persons were supervisors "has 'warrant in the record' and a reasonable basis in law." N. L. R. B. v. Hearst Publications, 322 U.S. 111, 131, 64 S.Ct. 851, 861, 88 L.Ed. 1170 (1944). Section 2(11) of the Act defines a supervisor as:

"any individual having the authority, in the interest of the employer, to hire, transfer, suspend, layoff, recall, promote, discharge, assign, reward or discipline other employees, or responsibly to direct them, or to adjust grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of merely routine or clerical nature, but requires the use of independent judgment."

The persons whose supervisory status is in question are: Paul Mattingly, Ronald Adams, Joe Gast and Orville Crigler.

With respect to Paul Mattingly, there is evidence in the form of testimony of employees Phillips and Summitt, to the effect that Mattingly assigned and directed the work of several employees in respondent's shipping and receiving department by telling them what to do. Summitt testified that Mattingly was his supervisor and assigned work for him to perform. According to Summitt, Mattingly "could suggest" the hire or fire of employees, and that "As far as I know, he recommended me" for hire. Summitt further testified that Mattingly assigned overtime, and that, if Summitt forgot to punch in or needed his time card corrected, Mattingly would correct it.

Mattingly, himself, testified that he did not have the authority to hire, fire, discipline, promote, demote, transfer or layoff any employee of respondent. His testimony was to the effect that he was merely a conduit for instructions from plant superintendent Gearheart to other employees. According to Mattingly, he did not even have the authority to tell other employees what to do. Instead, Mattingly testified that

"I don't tell them, I ask them to help me."

Mattingly described his responsibilities, however, as follows:

"I take care of anything that comes in anything that's received. Anything that's shipped out. I take care of the inserts for the customers * * * I do about anything that has to do with the shipping and receiving."

It is concluded that such broad responsibilities described by Mattingly, himself, simply could not be carried out with the limited authority claimed by him, that is, that he was merely a conduit for the superintendent's instructions and could only ask and not require other employees who worked with him to help him. In view thereof, and in view of there being testimony to the effect that Mattingly could effectively recommend employees for hire, there is substantial evidence on the record supporting the Board's conclusion that Paul Mattingly was a supervisor within the meaning of Section 2(11) of the Act.

The evidence with respect to the supervisory status of Ronald Adams is much the same as Mattingly. Like Mattingly, Adams testified that he voted in the union election. He denied having any authority to hire, fire, promote or demote respondent's employees. The effect of Adams' testimony was that he merely channelled directions for work activity from superintendent Gearheart to other employees. Further, like Mattingly, Adams insisted upon testifying that he merely asked other employees in the department to "help" him "to get the work done."

Yet, Adams testified that he was responsible for stock paper control at respondent's plant and described the following broad responsibilities:

"Unloading boxcars with rolls of...