Amalgamated Local Union 355 v. NLRB

Decision Date09 July 1973
Docket NumberDocket 72-1926,No. 703-705,72-2224,72-2315.,703-705
Citation481 F.2d 996
PartiesAMALGAMATED LOCAL UNION 355, Petitioner and Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent and Cross-Petitioner. LOCAL 259, UNITED AUTOMOBILE AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
CourtU.S. Court of Appeals — Second Circuit

COPYRIGHT MATERIAL OMITTED

Harold Dublirer, New York City (Dublirer, Haydon & Straci, New York City, of counsel), for Amalgamated Local Union 355.

Leonard Leibowitz, New York City (Richard Dorn, and Sipser, Weinstock, Harper & Dorn, New York City, of counsel), for Local 259, United Automobile Aerospace and Agricultural Implement Workers of America.

Douglas S. McDowell, Washington, D. C. (Peter G. Nash, Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Abigail Cooley Baskir, Atty., National Labor Relations Board, Washington, D. C., of counsel), for National Labor Relations Board.

Before FRIENDLY and OAKES, Circuit Judges, and DAVIS, Judge.*

DAVIS, Judge:

Presented for review is a decision and order of the National Labor Relations Board determining that Amalgamated Local Union 3551 violated section 8(b)(1)(A) and (2) of the National Labor Relations Act, 29 U.S.C. 151 et seq. (1970), by using the aid of Russell Motors, Inc. in organizing that company's employees, by entering into a contract with the company at a time when Local 355 did not represent an uncoerced majority of the employees and when there was a real question as to representation raised by Local 259 of the United Automobile, Aerospace, and Agricultural Implement Workers of America, and by including in the contract and enforcing a union security clause requiring membership in Local 355 as a condition of employment. 198 NLRB No. 58 (July 21, 1972). The Board seeks affirmance and enforcement of the order as it stands.2 Local 355 attacks its factual foundation, as well as four of the remedial provisions. Local 259 asserts that the Board fell short of providing an adequate remedy. We first take up Local 355's challenge to the agency's findings and determination, and then consider the scope of the remedy.

I.

Russell Motors is a New York corporation located in the village of Roslyn, Nassau County. Operating out of two separate facilities, the company retails and services new and used Buicks and Opels. There are separate sales and service departments, the latter having four subdivisions: the repair shop, the parts department, the body shop and the "make ready" shop (where optional equipment is installed and the car cleaned prior to delivery to the customer). In the fall of 1970, there were about 25 employees in the service department, if supervisory staff members are counted in the total.3

At that time, an organizing campaign of the service department was conducted on behalf of Local 355, and Russell entered into a contract with that union. During the same period, Local 259 also acquired a sufficient number of authorization cards from employees to demand recognition.4 The trier found, and the Board agreed, that Russell's "announced preference of Local 355, its open membership campaign at its own expense through its own supervisors and management-related personnel on behalf of Local 355, its deliberate misdating of the `collective agreement' hastily executed with Local 355, the terms and provisions of that `collective agreement' including the mandatory Local 355 membership and dues `checkoff' with surrender of the right to strike and other employee rights, and its threats to shut down rather than deal with UAW Local 259 speak eloquently of a snug `sweetheart' arrangement as charged" footnotes omitted. 198 N.L.R.B. No. 58, at 46.

Supervisory employees: Local 355 complains that, in coming to this conclusion, the Board characterized too many of Russell's employees as supervisors, given the size and organization of the service department. 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. 29 U.S.C. § 152(11) (1970).

It is well settled that this section is to be read in the disjunctive; any of the listed elements is sufficient for an initial finding of supervisory status. N.L.R.B. v. Metropolitan Life Ins. Co., 405 F.2d 1169, 1173 (C.A. 2, 1968); Warner Co. v. N.L.R.B., 365 F.2d 435, 437 (C.A. 3, 1966); N.L.R.B. v. Elliott-Williams Co., 345 F.2d 460, 463 (C.A. 7, 1965); N.L.R.B. v. City Yellow Cab Co., 344 F.2d 575, 580 (CA. 6, 1965); N.L. R.B. v. Quincy Steel Casting Co., 200 F.2d 293, 295 (C.A. 1, 1952). It has also been held that the Board's findings in this area are entitled to special weight since it possesses expertise "in evaluating actual power distributions which exist within an enterprise" needed for drawing lines between managerial personnel and the rank and file. N.L.R.B. v. Metropolitan Life Ins. Co., supra, 405 F.2d at 1172; see Marine Eng'rs Beneficial Assn. v. Interlake S.S. Co., 370 U.S. 173, 179 n.6, 82 S.Ct. 1237, 8 L.Ed.2d 418 (1962).

There is no question that Russell Philpit, the president of Russell Motors, Joseph Nocella, the service manager, and James Guido, the assistant service manager, all were properly taken by the Board to be supervisors. As to the controverted status of the people in charge of the service department subdivisions, we conclude that Orval Marquand, George Guido, and Henry Mack — who were significantly connected with the giving of the unlawful assistance — were all permissibly characterized, in connection with the finding on that point, as supervisory personnel.

Marquand was manager of the parts department. On a salary plus commission basis, he had the power effectively to recommend people for hiring. He did not punch a timeclock, unlike at least one of his two regular subordinates. Local 355 insists that, with only two employees under him, Marquand could not really be considered a supervisor. It is, however, the capability of control rather than the number controlled that is decisive. Mack was foreman of the body shop. Although he worked on cars just like the other three men in that shop, he had the power to direct their work. He could decide whether the shop should accept a particular job at a particular time and could schedule work. He could also make effective recommendations for hiring, promotions, and the granting of overtime. He was the only worker in the shop not required to punch the timeclock and the only one to receive commissions in addition to his salary. George Guido, James' brother, was foreman or manager of the make-ready shop. He assigned and scheduled work among the three other workers in his shop, doing none of the physical labor himself. Paid on straight salary, he did not punch a timeclock while the men under him did.

In the light of these facts, the Board's conclusion as to the supervisory status of each of these men must be upheld. As we point out below, the Board could find that the other employees reasonably believed these men to be acting in the employer's interest.

Local 355's membership drive: There is ample evidence to support the Board's view that supervisors participated importantly, on behalf of the employer, in obtaining signed cards authorizing Local 355 as the collective bargaining representative and also that the rank-and-file could reasonably think of these supervisory personnel as reflecting management's position.

In 1970, signs of employee dissatisfaction with the company's existing hospitalization benefits had begun to appear; a series of discussions was held among the employees about the possibility of unionization. At this stage, there was no specific mention of any particular union. During one of the meetings, Richard Nocella, a mechanic in the repair shop and brother of Joseph Nocella (the service manager), volunteered to get in touch with a friend of his already in a union.5 Nocella then contacted, via this friend, Henry Stirt, business agent and treasurer for Local 355, and arranged for a meeting with him.6

On September 8, Stirt came to Russell Motors during working hours and, in the course of a meeting with Nocella (and Marquand) in his car, handed over a substantial number of Local 355 employee authorization cards. Stirt was aware that Marquand was the parts manager but concluded that he was a supervisor in title only. In any event, cards were turned over by Stirt and Marquand ended up with three of them — one for himself and the remaining two for the other men in the parts department. He was given the cards either directly by Stirt, as Marquand testified, or from Nocella later on, as Nocella remembered it.

Henry Mack, foreman of the body shop, received a call from Richard Nocella, telling him that cards were going to be sent over to his shop; they arrived the same day. Mack told the employees in the body and make-ready shops, during working hours, that Nocella had sent the cards over. Mack said that the cards were on his desk and once they were signed he would get them back to Nocella. Mack did not personally hand the cards out but left them on the desk for the men to pick up. He reminded the men, later on, that the cards were there and asked if they had filled them out yet. He offered the comment that Local 355 was a good union. Mack told one of the workers in the body shop that if the latter wished to join the union with the majority of them, he should sign a card. The reply was that the employee "would go with the majority." The...

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