N.L.R.B. v. Dickerson-Chapman, Inc.

• Citation: 964 F.2d 493
• Decision Date: 01 July 1992
• Docket Number: No. 91-4533,DICKERSON-CHAPMA,INC,91-4533
• Parties: 140 L.R.R.M. (BNA) 2854, 122 Lab.Cas. P 10,255 NATIONAL LABOR RELATIONS BOARD, Petitioner-Cross-Respondent, v., Respondent-Cross-Petitioner.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 493

964 F.2d 493

140 L.R.R.M. (BNA) 2854, 122 Lab.Cas. P 10,255

NATIONAL LABOR RELATIONS BOARD, Petitioner-Cross-Respondent, v. DICKERSON-CHAPMAN, INC., Respondent-Cross-Petitioner.

No. 91-4533.

United States Court of Appeals,

Fifth Circuit.

July 1, 1992.

Frederick C. Havard, Aileen A. Armstrong, Dep. Assoc. Gen. Counsel, Paul J. Spielberg, NLRB, Washington, D.C., for petitioner-cross respondent.

Armin J. Moeller, Jr., R. Pepper Crutcher, Phelps, Dunbar, Jackson, Miss., for respondent-cross petitioner.

H. Frank Malone, Director, Region 15, NLRB, New Orleans, La., for other interested parties.

Petition for Review and Cross-Petition for Enforcement of an Order of the National Labor Relations Board.

Before WILLIAMS, JOLLY, and HIGGINBOTHAM, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

The National Labor Relations Board ("NLRB") petitions us to enforce its order directing Dickerson-Chapman, Inc. ("DCI") to bargain with the Union. DCI argues that it is under no duty to bargain. First, DCI contends that the Board's order is unenforceable because, in leaving the status of seven foremen unresolved, the Board failed to make a determination of an appropriate bargaining unit. DCI further argues that it has no duty to bargain for the additional reason that the certified unit is inappropriate because it includes fifteen foremen and crew leaders who are supervisors.

We conclude that the Board did satisfy its duty to make a determination of an appropriate bargaining unit. Further, the Board did not abuse its discretion in failing to determine the status of the seven foremen before conducting the election or certifying the unit. Finally, there is substantial evidence in the record supporting the Board's determination that the fifteen foremen and crew leaders were not supervisors. Therefore, we grant the Board's petition for enforcement. We hold, however, that because the Board failed to determine that the seven foremen were not supervisors, they are, on this record, not included in the unit, and thus are not included in this enforcement order.

I

The National Labor Relations Board seeks enforcement of its order against Dickerson-Chapman, Inc. to bargain with the Union. DCI, who is in the business of digging ditches for South Central Bell Telephone Company's lines, junction boxes, and cable conduits, employs construction and maintenance field crews which, including the foremen and crew leaders, the Union sought to represent. DCI argued that an appropriate unit must exclude crew foremen and crew leaders because they are supervisors within the meaning of 29 U.S.C. § 152(11). After a hearing, the Regional Director found that an appropriate bargaining unit consisted of certain classifications of employees, excluding any employee in that classification who is a supervisor. ¹ The Regional Director found that DCI's four administrative officers, J.M. Stewart, Bryan Wampler, Howard Berry, and Robert Ainsworth, were supervisors. He also found that service wire foreman Homer Parker, cable foreman Pete Hayman, and conduit foreman Alva Abel were supervisors. The Regional Director found that the remaining workers in the classifications were not supervisors and were therefore eligible to be in the bargaining unit. The Board amended the Regional Director's decision, finding that there was a substantial question as to the status of seven of the foremen. ² It found the remaining fifteen foremen and crew leaders at issue to be employees. ³

The Board allowed the seven foremen to vote subject to challenge by DCI following the vote. The Union won the representation election by twenty-nine votes--the vote was 38 to 9. DCI filed objections to the election on the grounds that the Board included supervisors in the voting unit. The Regional Director, affirmed by the Board, overruled the objections, holding that supervisory issues could be resolved only in a challenge proceeding, which was unnecessary because the challenged ballots were insufficient to affect the Union's majority. On May 9, 1990, the NLRB certified the Union as the bargaining representative of an employee unit including foremen and crew leaders who were not supervisors.

The Union demanded negotiations and DCI refused. The Union filed an unfair labor practice charge alleging that DCI had unlawfully refused to bargain with the Union. DCI responded that the underlying certification was invalid because the unit included foremen and crew leaders who were supervisors. ⁴

General Counsel moved for summary judgment and the Board granted that motion. It found that DCI was raising issues that could have been presented at the representation hearing and was not offering any newly discovered evidence or evidence that was previously undiscoverable. Accordingly, the Board issued a cease and desist order requiring DCI to bargain with the certified unit. The Board now petitions us to enforce its order.

II

As we have stated, DCI is a ditch-digging contractor that digs ditches, sets poles, and supplies maintenance crews for South Central Bell. At the time of the hearing, there were four persons clearly in management positions: general manager J.M. Stewart, office manager Bryan Wampler, and field superintendents Howard Berry and Robert Ainsworth. The remaining employees were divided into different construction crews: conduit, pole, cable, boring, and service wire crews, each headed by a foreman. Additionally, there were maintenance crews headed by crew leaders.

With respect to the routine work day, the record establishes the following: All of the employees usually report for work around 7:00 a.m. Each of the foremen and crew leaders receive job descriptions or blue prints from one of the managers. The crews then gather the necessary tools and supplies and go the various job sites scattered across the area. For the most part, the laborers are supervised by their foreman or crew leader; the managers do, however, go out to the job sites on occasion. The services performed by the crews are mostly routine and the laborers require little supervision. The foremen and crew leaders spend most of their time operating machinery, but they also perform manual labor alongside the crew members. They are paid hourly wages, but are paid more than the rest of the laborers. The foremen and crew leaders with seniority receive more vacation.

III

DCI argues that the NLRB's decision is not supported by the record because the evidence establishes that several of the foremen and crew leaders included in the bargaining unit exercised supervisory authority. Furthermore, DCI contends that, in any event, all of the foremen and crew leaders possessed the same authority and that, consequently, all are supervisors. Finally, DCI argues that the Board's order cannot be enforced because the Board failed to determine an appropriate bargaining unit because it left the status of seven foremen dangling.

On the other hand, the Board argues that it acted within its discretion in determining an appropriate bargaining unit without resolving the status of the seven challenged voters, because their votes did not affect the outcome of the election. The Board further argues that it is entitled to enforcement of its bargaining order because substantial evidence supports its determination that the foremen and crew leaders included in the unit were not supervisors.

IV

First, we will address DCI's argument that the Board's order cannot be enforced because the Board failed to determine an appropriate bargaining unit as required by Section 9(b) of the Act. ⁵ "The Board does have broad discretion under Section 9(b) when making a unit determination. That section's language, however, expressly requires that the Board make a determination 'in each case.' " NLRB v. Cardox Div. Of Chemetron Corp., 699 F.2d 148, 153 (3rd Cir.1983). DCI argues that the Board failed to satisfy its statutory duty to determine an appropriate bargaining unit when it failed to determine the eligibility of seven contested unit members before conducting the election, requiring the seven to vote a challenged ballot instead.

In making its argument, DCI relies on Cardox. In Cardox, because the company voluntarily bargained with the unit, the Board did not make a determination of an appropriate bargaining unit. The court held that the Board failed to satisfy its statutory duty. Cardox, however, is distinguishable from DCI's case. In Cardox, the Board made no determination whatsoever. Here, the Regional Director determined that the bargaining unit included certain classifications of employees, including foremen and crew leaders. The Regional Director in his determination of the unit, however, excepted three foremen from the unit because they exercised supervisory authority. Upon its review, the Board determined that there was a substantial issue as to the supervisory status of seven additional foremen who the Regional Director had included. Nevertheless, it affirmed the Regional Director's determination of the appropriate bargaining unit but questioned the inclusion of seven named individuals, and concluded that those seven would vote in the election subject to challenge. Thus, the Board satisfied its statutory duty to determine an appropriate bargaining unit. It simply postponed a decision concerning whether named individuals were within the described unit--a unit which included foremen and crew leaders, but which excluded supervisors.

Furthermore, the Board did not abuse its discretion in allowing the seven employees to vote subject to challenge. The challenge procedure, a longstanding Board practice, NLRB v. Doctors' Hospital of Modesto, Inc., 489 F.2d 772, 776 (9th Cir.1973), "enables the Board to conduct an immediate election where ... it is undecided about the eligibility of a relatively small number of individuals whose votes may not affect the election." Medical Center at Bowling Green v. NLRB, 712 F.2d 1091, 1093 (6th Cir.1983). See also NLRB v....