Fall River Sav. Bank v. N.L.R.B., 80-1579

• Decision Date: 22 May 1981
• Docket Number: No. 80-1579,80-1579
• Citation: 649 F.2d 50
• Parties: 107 L.R.R.M. (BNA) 2653, 91 Lab.Cas. P 12,767 FALL RIVER SAVINGS BANK, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — First Circuit

Page 50

649 F.2d 50

107 L.R.R.M. (BNA) 2653, 91 Lab.Cas. P 12,767

FALL RIVER SAVINGS BANK, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 80-1579.

United States Court of Appeals, First Circuit.

Argued March 5, 1981.

Decided May 22, 1981.

Joseph W. Ambash, Boston, Mass., with whom Kevin J. Fitzgerald and Foley, Hoag & Eliot, Boston, Mass., were on brief, for petitioner.

Richard S. Zuckerman, Atty., Washington, D. C., with whom William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, and Elliott Moore, Deputy Associate Gen. Counsel, Washington, D. C., were on brief, for respondent.

Before CAMPBELL, BOWNES and BREYER, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

Fall River Savings Bank petitions for review of an order requiring it to bargain with Local 1325 of the United Food and Commercial Workers. The Board cross-petitions for enforcement of its order.

Fall River Savings Bank (the Bank) operates out of five branch offices in the Fall River, Massachusetts area, in addition to its main office in Fall River. Each branch office is staffed by a Branch Manager an Assistant Branch Manager, ¹ from one to four tellers, and a janitor. The main office is the headquarters for the Bank's officers and professional staff; a number of tellers also work there. On February 28, 1978, Local 1325 of the Retail Clerks International Association petitioned the Board for certification as the bargaining representative of all the Bank's regular full- and part-time employees, excluding "supervisors and guards as defined in the Act." On March 24, 1978, the Retail Clerk's Union and the Bank entered into a "Stipulation for Certification upon Consent Election," which defined the bargaining unit as:

All regular full-time and part-time employees at the Employer's Offices excluding the president, vice-presidents, assistant vice-presidents, treasurers, assistant treasurers, branch managers, guards and supervisors as defined in the Act.

The election was held on April 28, 1978. Of 44 uncontested votes, 23 were for the Union and 21 against. Seven ballots were challenged; when these ballots were eventually opened after the Board's ruling on exceptions, the final tally was 28 votes for the Union and 23 against. The Bank filed timely objections to the conduct of the election, all of which were rejected by the Regional Director. The Board adopted most of the Regional Director's recommendations, but directed that a hearing be held to receive evidence on two categories of objections. The hearing was to focus on: 1) the supervisory or employee status of the five Assistant Branch Managers; and 2) the effect of the pro-union activity of various supervisory personnel. ² After nine days of hearings, held between October 23 and November 21, 1978, the Administrative Law Judge (ALJ) recommended that the objections be overruled and that the challenged ballots be opened. On December 6, 1979, the Board issued its "Supplemental Decision and Direction" adopting the ALJ's recommendations. This decision included a footnote which stated:

On June 7, 1979, the Retail Clerks International Association and the Amalgamated Meatcutters and Butcher Workmen of North America merged, forming the United Food and Commercial Workers Union, AFL-CIO. The name of the Union herein, formerly Local 1325, Retail Clerks International Association, has been amended to reflect this change.

The Union was certified on December 20, 1979. The Bank did not seek reconsideration of either the December 6 decision or the Certification two weeks later.

Between December 20, 1979 and January 7, 1980, the Union sent to the Bank at least three letters requesting that bargaining sessions be scheduled. Each such letter was sent on stationery bearing the letterhead of the "United Food and Commercial Workers International Union, AFL-CIO, Local No. 1325." The Bank responded on January 10, 1980, essentially reasserting its previous objections to the election. The Union then filed a charge with the Board, which, on January 29, 1980, issued a complaint charging the Bank with refusing to bargain in violation of sections 8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1) and (5).

The Bank answered the complaint on February 13 reasserting several of its objections to the election. Upon motion by the general counsel, the Board on March 25, 1980 transferred the proceeding to itself and issued a notice to show cause why summary judgment should not be granted. On April 14, 1980, the Bank amended its answer to raise, for the first time, a defense based on the merger between the Retail Clerks International Association and the Amalgamated Meatcutters and Butcher Workmen. The Board refused to address this issue on the ground that it was not timely raised; it granted summary judgment for the general counsel, along with the order now under review, on July 24, 1980.

The Bank raises four issues for our consideration: 1) whether the Assistant Managers of the three largest branches are "supervisors" as defined in section 2(11) of the Act, 29 U.S.C. § 152(11); ³ 2) whether the pro-union conduct of supervisors requires that the election be set aside; 3) whether the Board erred in refusing to grant a hearing on the Bank's allegation of a threat made by one supervisor to an employee; and 4) whether the Board's certification of the United Food and Commercial Workers is invalid because of the Board's failure to inquire into the validity of the merger between the Retail Clerks International Association and the Amalgamated Meatcutters. We resolve each of these issues against the Bank and enforce the Board's order.

I. The Status of the Assistant Branch Managers

Section 2(3) of the Act, 29 U.S.C. § 152(3), excludes from the definition of "employees" for the purpose of the Act "an individual employed as a supervisor." Section 9(b), 29 U.S.C. § 159(b), in turn limits to employees the persons who may be included in bargaining units designated by the Board. Section 2(11) defines the term "supervisor" as follows:

The term 'supervisor' means 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 reasonably 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.

"By well-settled construction, this section is to be read in the disjunctive, with the existence of any one of the statutory powers sufficient to confer supervisory status." Maine Yankee Atomic Power Co. v. NLRB, 624 F.2d 347, 360 (1st Cir. 1980); NLRB v. Magnesium Casting Co., 427 F.2d 114, 117 (1st Cir. 1970), aff'd, 401 U.S. 137, 91 S.Ct. 599, 27 L.Ed. 735 (1971). We have repeatedly held that application of the statutory test is a question of fact for the Board, Stop & Shop Companies, Inc. v. NLRB, 548 F.2d 17, 18 (1st Cir. 1977); NLRB v. Magnesium Casting Co., supra; NLRB v. Swift & Co., 292 F.2d 561, 563 (1st Cir. 1961). While the Board's discretion in this area is not unlimited, Maine Yankee Atomic Power Co. v. NLRB, supra; NLRB v. Metropolitan Petroleum Co., 506 F.2d 616 (1st Cir. 1974), the Board's determination should be sustained if supported by substantial evidence.

The Bank contends that Assistant Branch Managers are supervisors primarily because they are in charge of the branch during the absence of the Branch Manager. The parties stipulated to the supervisory status of Branch Managers, who are ordinarily the highest ranking persons present in each branch. While both Managers and Assistant Managers spend much of their work day performing the routine chores of a teller, Branch Managers, and to a lesser degree Assistant Managers, perform some functions which tellers do not perform. Managers open the branch with a key; they turn on the branch computers with a "supervisory override" key; they initiate and assist tellers in the process of "proving out" in which each teller balances his or her transactions at the end of the day; they accept applications for loans, which are then forwarded to the main office; they approve passbook loans through application of a mathematical formula; they authorize the cashing of particularly large checks; they sign bank checks; and they assign tellers to windows according to a pre-arranged rotation system. With regard to personnel management, there was some conflicting testimony, but the Board reasonably found that hiring, firing, promotions and salary increases were all handled by the main office, without significant reliance on recommendations from the branches, and that Branch Managers would discipline tellers formally only after consultation with the main office.

Managers are absent from their branches during lunch hours, management meetings (which Assistant Managers do not attend), illness, and vacations, although there was testimony that higher officials from the main office make a practice of supervising at branches when Branch Managers are absent for extended periods. Also, Assistant Managers rotate with Managers for work on Saturday mornings, when the branches operate with a reduced staff. On these occasions, unless a supervisor from the main office is present, the assistant Branch Manager is the highest ranking person in the branch.

We have had several occasions to consider the status of employees who, while otherwise serving as ordinary workers, are occasionally called upon to take charge of others during the absence of a superior. NLRB v. Sayers Printing Co., 453 F.2d 810 (1st Cir. 1971); NLRB v. Magnesium Casting Co., 427 F.2d 114; NLRB v. Swift & Co., 292 F.2d 561; NLRB v. Quincy Steel Casting, 200 F.2d 293 (1st Cir. 1952). We have taken the position in such cases that "spasmodic and...