FEDERAL COMPRESS & WAREHOUSE COMPANY v. NLRB
| Decision Date | 08 August 1968 |
| Docket Number | No. 18061.,18061. |
| Citation | 398 F.2d 631 |
| Parties | FEDERAL COMPRESS & WAREHOUSE COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Edward R. Young, Memphis, Tenn. (Newell N. Fowler, Fowler, Brackhahn & Young, Memphis, Tenn., on the brief), for petitioner; Leslie A. Nicholson, Nicholson & Moore, Memphis, Tenn., of counsel.
Joseph A. Yablonski, National Labor Relations Board, Washington, D. C. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Gary Green, Atty., National Labor Relations Board, Washington, D. C., on the brief), for respondent.
Before PHILLIPS, PECK and COMBS, Circuit Judges.
Federal Compress and Warehouse Company petitions to review and set aside a decision and order of the National Labor Relations Board, reported at 166 N.L.R.B. No. 17, in which the Board found that the employer had violated Sections 8(a) (1) and 8(a) (5) of the National Labor Relations Act. The Board cross-petitions for enforcement of its decision and order.
Federal Compress contends that there are two reasons why it should not be required to bargain with respect to the classifications of shed clerk and maintenance repairmen: (1) both of these classifications are supervisory within the meaning of the National Labor Relations Act, 29 U.S.C. § 152(11); and (2) assuming that these classifications are not supervisory, the union contractually waived its right to bargain until the expiration of the existing collective bargaining agreement.
Since April 26, 1943, Retail, Wholesale and Department Store Union, AFL-CIO, Local 19, has been the bargaining representative of all Federal Compress production and maintenance employees. Supervisory and clerical personnel were not included in the bargaining unit. During the period under consideration the Union and the company had entered into a collective bargaining agreement.
On August 25, 1965, the Union filed a clarification petition with the Regional Director, requesting that the unit be clarified to include shed clerks and maintenance repairmen. In the clarification proceeding the employer contended that the shed clerks and maintenance repairmen were supervisors. The Regional Director held to the contrary and included these classifications in the bargaining unit. The Board denied the request by Federal Compress for review and later refused the request to reconsider.
Following the clarification proceeding, the Union requested that the company provide certain information to facilitate collective bargaining with respect to the shed clerks and maintenance repairmen. The company responded that the persons formerly holding these classifications had been promoted to foreman positions. Thereupon, the Union filed a charge with the Regional Director alleging that the company refused to bargain about the wages, hours and working conditions of shed clerks and maintenance repairmen. Later Federal Compress and the Union entered a settlement agreement in which the company agreed not to change any of the terms or conditions of employment of the two classifications without prior notice and opportunity to negotiate with the Union. Nevertheless, in later bargaining the company insisted that because the individuals holding these positions had been made supervisors, it was only obligated to bargain with respect to future employees in the classification of shed clerk and maintenance repairmen. Federal Compress was willing to bargain on the issue of whether the "promoted" employees were included in the bargaining unit but refused to bargain with respect to their terms and conditions of employment.
Based on this refusal to bargain the Regional Director set aside the settlement agreement and filed unfair labor practice charges against the company. The Board adopted the findings and conclusions of the trial examiner which were summarized as follows:
"In sum, as there are absent any overriding considerations, I conclude, and find, that Respondent has, since April 7, 1966, violated Section 8(a) (5) and (1) of the Act (1) by unilaterally granting wage increases to employees in the contract unit on April 7, 1966, and on September 1, 1966, in derogating of the Union, the exclusive bargaining agent of these employees; (2) by refusing to negotiate with the Union concerning the classifications of shed clerk and maintenance-repairman in the unit, except during the open period of the contract; and (3) during such negotiations as were held with the Union in August and September 1966, by conditioning wage increases for other classifications of employees (who were in the unit at the time the classifications of shed clerk and maintenance-repairman were added thereto by Board decision) upon the exclusion of incumbent shed clerks and maintenance-repairmen from the unit, and by offering to bargain only as to future employees in these two classifications."
Federal Compress is engaged primarily in the business of storing and compressing cotton. Shed clerks check bales of cotton as they are loaded or unloaded at the warehouse. The cotton is moved by employees known as clipper drivers who use vehicles similar to fork lifts. Federal Compress contends that the shed clerks supervise the clipper drivers and that the maintenance repairmen supervise their individual helpers.
Two issues are before this Court:
(1) Whether substantial evidence supports the decision of the Board that nine alleged supervisors are not supervisors within the meaning of the Act; and (2) whether by entering into a collective bargaining agreement which did not expressly include the alleged supervisors, the Union waived the right to bargain with the employer as representative of these individuals.
We hold (1) that substantial evidence on the record as a whole supports the finding of the Board with respect to seven of the nine alleged supervisors; and (2) that under the terms of the collective bargaining agreement here involved the Union did not waive the right to bargain as representative of these individuals.
In the unit clarification proceeding it was established that when cotton is being unloaded, a shed clerk checks the bales for the accuracy of the tag number. In a loading situation, the shed clerks get their shipping orders from the shipping foreman. Shed clerks check the numbers on the bales of cotton against the shipping orders and tell the clipper drivers to move the bales. Instructions to the drivers include telling them how the car is to be loaded. Clipper drivers are assigned by the general foreman to a gang for the purpose of loading or unloading cotton. The shed clerks do not have clipper drivers permanently assigned to them. The unit clarification decision described the work duties of the two maintenance repairmen as maintaining and repairing the approximately sixty buildings which make up the Federal Compress warehouse operation. It was stated that each has at least one man, classified as a repairman, who is regularly assigned to work with him. The record in the present case, however, shows that substantially heavier duties of supervisory character have been delegated to the two maintenance repairmen than described in the unit clarification decision.
Although Federal Compress does not concede the correctness of the unit clarification which found that shed clerks and maintenance repairmen were non-supervisory employees, the company relies heavily on additional duties and powers which were subsequently given to these individuals. It is contended that the employer decided to enlarge the supervisory authority of certain individuals in these classifications so as to make certain that they would be supervisors under the Act. They were told that they had authority to hire and fire, to suspend employees, to grant overtime, to grant leave, and to perform other functions of management. They were instructed to keep records of the exercise of this authority and to report their actions to the office. The Board and the trial examiner agreed that the obligation of Federal Compress "to bargain as to these individuals, who were found not to be supervisory in the unit clarification decision might, under some circumstances, be altered by developments subsequent thereto" but held that none of the nine alleged supervisors are in fact supervisors within the meaning of the Act.
Thus we reach the question of whether the individuals formerly known as shed clerks and maintenance repairmen are supervisors within the meaning of the National Labor Relations Act:
"The term `supervisor\' means any individual having authority, in the interest of the...
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