Jas. E. Matthews & Co. v. NLRB

Decision Date08 February 1966
Docket NumberNo. 17880.,17880.
Citation354 F.2d 432
PartiesJAS. H. MATTHEWS & CO., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
CourtU.S. Court of Appeals — Eighth Circuit

B. S. Clark, of Smith, Williams, Friday & Bowen, Little Rock, Ark., for petitioner.

Warren M. Davison, Attorney, N. L. R. B., Washington, D. C., Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel and Marcel Mallet-Prevost, Asst. General Counsel, N. L. R. B., Washington, D. C., for respondent.

Before VOGEL, MATTHES and RIDGE, Circuit Judges.

RIDGE, Circuit Judge.

This is a petition by Jas. H. Matthews & Co. to review a decision and order of the National Labor Relations Board pursuant to § 10 of the National Labor Relations Act, as amended (61 Stat. 136, 73 Stat. 519; 29 U.S.C.A. § 151 et seq.). The Board in its answer and cross-petition seeks enforcement of its order as reported at 149 NLRB No. 18.

In the case at bar the Board agreed with the Trial Examiner that the Company violated § 8(a) (1) of the Act by means of threats, coercive interrogation, surveillance and the maintenance of an unlawful, no-solicitation rule, all of which interfered with, restrained and coerced appellant's employees in the exercise of their rights under § 7 of the Act. The Board also found that the Company violated § 8(a) (5) and (1) of the Act by refusing to bargain with a Union designated by a majority of its employees. This Court has jurisdiction of the alleged unfair labor practices since they occurred at Searcy, Arkansas, within this Circuit.

Petitioner is a Pennsylvania corporation, with one of its three plants, the Bronze Division, located in Searcy, Arkansas. This plant specializes in the manufacture of bronze memorial tablets and plaques. The General Superintendent of the Bronz Division is Roy Randles, who is stationed in Pittsburgh, Pennsylvania. Immediately under him in authority is William Morton, Plant Superintendent at the Searcy Plant. This plant is divided into factory and foundry divisions. Morton supervises the operation of the foundry section which has thirty-five employees, while his assistant, James Landis, supervises work in the factory which employs thirty-seven others. The factory is further subdivided into four departments: (1) pattern setup; (2) tooling; (3) coloring; and (4) shipping. These departments have twelve, eleven, six and five employees, respectively. Finally, each department is headed by an individual designated a "leadman" by the Company.

The instant litigation arises out of the efforts of the International Association of Machinists, A.F.L.-C.I.O., to organize petitioner's employees, beginning in January, 1964. The Trial Examiner found that during the ensuing period of organizational activity, petitioner, through Division Superintendent Randles, Plant Superintendent Morton, Office Manager Russell, and Leadman Harmon, talked to many Company employees concerning their interest in the Union. It was determined by the Trial Examiner and the Board that these conversations "in full effect constitute interference at least, and real intent to coerce and intimidate employees (of appellant) in their concerted activities for the purpose of collective bargaining."

The primary issue presented by the instant appeal is whether or not petitioner violated § 8(a) (5) and (1) of the Act by refusing to bargain with the Union when recognition was first sought, after it claimed majority status on January 11, 1964.

The first question to which we turn is whether or not factory "leadmen" are supervisors within the meaning of § 2(11) of the Act. This must first be determined in order to find the proper place of those employees, either in or out of the bargaining unit here considered. A determination of that question will also control whether certain of the alleged § 8(a) (1) violations attributable to one or more leadmen are binding on petitioner. Next, we shall examine the merits of petitioner's contention that "(t)here is no substantial evidence to support a finding that the Union had a majority status as of January 11, 1964." Finally, we shall discuss the nature and effect of petitioner's refusal to recognize the Union on the last-above-mentioned date.

Section 2(11) of the Act defines a "supervisor" as:

"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 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."

It is well settled law that "(t)his section is to be interpreted in the disjunctive, * * * and the possession of any one of the authorities listed in § 2(11) places the employee invested with (such) authority in the supervisory class." Ohio Power Co. v. N. L. R. B., 176 F.2d 385, 387, 11 A.L.R.2d 243 (6 Cir.), cert. denied, 338 U.S. 899, 70 S.Ct. 249, 94 L.Ed. 553. Moreover, § 2(11) "does not require the exercise of the power described for all or any definite part of the employee's time. It is the existence of the power which determines the classification." Id., at 388. Accord, N. L. R. B. v. Edward G. Budd Mfg. Co., 169 F.2d 571, 575, 576, 579 (6 Cir.), cert. denied, 335 U.S. 908, 69 S.Ct. 411, 93 L.Ed. 441; N. L. R. B. v. Leland-Gifford Co., 200 F.2d 620, 626 (1 Cir.). However, "(i)t is not alone that (the employee) may hire or fire or lay off or discipline. He must do so in the interest of the employer. * * * (T)here must be a determination of status based upon the `nature' of the supervisory position and `how completely the responsibilities of the particular position identify the holder of the position with management,' all `because of the infinite possible variations in responsibilities enumerated in § 2(11)' * * *." International Union of United Brewery etc. Workers v. N. L. R. B., 111 U.S.App.D.C. 383, 298 F.2d 297, 303, cert. denied, 369 U.S. 843, 82 S.Ct. 875, 7 L.Ed.2d 847 (quoting from Local 636, Plumbers v. N. L. R. B., 109 U.S.App. D.C. 315, 287 F.2d 354, 362. And where, as here, "the question is one of specific application of a broad statutory term in a proceeding in which the agency administering the statute must determine it initially, the reviewing court's function is limited. * * * (T)he Board's determination * * * is to be accepted, if it 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, 860, 88 L.Ed. 1170; accord N. L. R. B. v. Lee-Rowan Company, 316 F.2d 209, 212 (8 Cir.), cert. denied, 375 U.S. 827, 84 S.Ct. 70, 11 L.Ed.2d 59.

On the basis of our analysis of the record, we are of the opinion that the Board's determination that such leadmen are in fact supervisors has both the necessary warrant in the record and a reasonable basis in law. Of controlling importance is the testimony that the leadmen assign work to the employees in their departments; transfer employees from job to job, as necessary in their sole opinion; pass on employee requests for time off; effectively recommend discipline; and oversee the other employees' work, as well as checking its quality. N. L. R. B. v. Syracuse Stamping Co., 208 F.2d 77, 79 (2 Cir.); Eastern Greyhound Lines v. N. L. R. B., 337 F.2d 84 (6 Cir.); N. L. R. B. v. Southern Bleachery & Print Works, 257 F.2d 235, 239 (4 Cir.), cert. denied, 359 U.S. 911, 79 S.Ct. 588, 3 L.Ed.2d 575. In addition, the record discloses that the leadmen meet regularly with Factory Foreman Landis, occasionally with Plant Superintendent Morton, and on one occasion all four leadmen attended a training session in Pittsburgh, the Company Headquarters. Of further significance in this connection is the testimony that the leadmen are paid from eleven to forty cents an hour more than the regular employees in their departments, and that petitioner's officials represented that the leadmen were their supervisors and the regular employees so regarded them. N. L. R. B. v. Schill Steel Products, Inc., 340 F.2d 568, 571-572 (5 Cir.). Finally to be noted is the fact that if the leadmen were not supervisors, Factory Foreman Landis would have to exercise detailed supervision over some thirty-seven employees in the departments involved in a variety of tasks and handling products at many stages of completion in the production process. The unlikelihood of that situation occurring was properly considered by the Board. Vega et al. v. N. L. R. B., 341 F.2d 576, 577 (1 Cir.); N. L. R. B. v. Supreme Dyeing & Finishing Corp., 340 F.2d 493, 494 (1 Cir.); N. L. R. B. v. Mt. Clemens Metal Products Co., 287 F.2d 790, 791 (6 Cir.), enforced as modified, 126 NLRB 1297, 1298, n. 4.

In short, the record here clearly supports a finding that the four leadmen are clothed "with genuine power to perform a supervisory function" (N. L. R. B. v. Leland-Gifford, supra) and the Board properly classified them as supervisors within the meaning of § 2(11) of the Act. Thus we hold that the Board correctly excluded leadmen from the bargaining unit and that petitioner is responsible for their conduct in connection with the found § 8(a) (1) violations to be discussed infra. N. L. R. B. v. Schill Steel Products, Inc., supra.

As a consequence of the above determination, the number of employees eligible for the bargaining unit is reduced from seventy-two to sixty-eight. The Union thus needed only thirty-five signed authorization cards to comprise a majority.

The Union began the organizing campaign in question in January, 1963. In connection therewith, a meeting was held at a truck stop on January 6th, which was attended by twenty-five employees. A second meeting was held on the afternoon of January 10th. The next day, January 11th, the Union made its initial claim of...

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