GAF Corp. v. N.L.R.B.

• Decision Date: 11 December 1975
• Docket Number: No. 75-2561,75-2561
• Citation: 524 F.2d 492
• Parties: 90 L.R.R.M. (BNA) 3295, 78 Lab.Cas. P 11,189 GAF CORPORATION, Petitioner-Cross Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross Petitioner. Summary Calendar. *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 492

524 F.2d 492

90 L.R.R.M. (BNA) 3295, 78 Lab.Cas. P 11,189

GAF CORPORATION, Petitioner-Cross Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross Petitioner.

No. 75-2561

Summary Calendar. ^*

United States Court of Appeals, Fifth Circuit.

Dec. 11, 1975.

Harry L. Browne, Stanley E. Craven, Kansas City, Mo., for petitioner.

Elliott L. Moore, Deputy Assoc. Gen. Counsel, N. L. R. B., Washington, D. C., Clifford Potter, Regional Director, Region 23, N. L. R. B., Houston, Tex., for respondent.

Petition for Review and Cross Application for Enforcement of an Order of the National Labor Relations Board (Texas Case).

Before COLEMAN, AINSWORTH and SIMPSON, Circuit Judges.

AINSWORTH, Circuit Judge:

This case adds another wrinkle to what has been termed "the aging but nevertheless persistently vexing problem of whether or not an employee is a supervisor" under section 2(11) of the National Labor Relations Act, 29 U.S.C. § 152(11). NLRB v. Security Guard Service, Inc., 5 Cir., 1967, 384 F.2d 143, 145 (Goldberg, J.). Here the sole issue is whether temporary service as a foreman brings a rank-and-file employee within the ambit of section 2(3) which excludes supervisors from the benefits and protections of the Act.

Petitioner GAF Corporation seeks our review under section 10(f), of the NLRB's decision and order, 218 NLRB No. 45 (June 5, 1975), finding that the Company had engaged in an unfair labor practice by refusing to bargain with the Texas City Metal Trades Council, a newly certified collective bargaining agent at GAF's Texas City, Texas plant. The Board has filed a cross-application seeking our enforcement of its order pursuant to section 10(e).

GAF concedes that it refused to bargain with the union but asserts that it did so in order to obtain review of the NLRB's decision, 214 NLRB No. 67 (October 29, 1974), sustaining the union's challenge, in a certification election, to the ballot of Winfred Reed, then acting as a foreman of the bargaining unit now certified as being represented by the Texas City Metal Trades Council. Reed's ballot is of critical importance because the September 14, 1973 election was won by the union with a plurality of only one vote. Because we find that Reed's limited service as a foreman did not disqualify him from voting in the election, we set aside the Board's decision in this case and deny enforcement of its order.

The story of this case begins in early July of 1973 when GAF offered Roy Brewer, the maintenance supervisor at the Texas City plant, a similar job at its facility in New York. Because Brewer flatly declined this offer, the Company agreed to transfer him only long enough to set up a maintenance program and train a supervisor at the New York plant. ¹ Upon Brewer's departure on or about July 16, 1973, Peter Morris, a machinist foreman at Texas City, was chosen to replace him during his absence. Reed, in turn, was elevated from his rank-and-file maintenance job to serve as a machinist foreman while Morris was taking Brewer's place as maintenance supervisor. Reed's promotion was announced by a notice, posted on the shop bulletin board, which stated that "Doug Reed will be acting as machinist foreman for an indefinite period of time." Reed testified before the Hearing Officer that Morris had told him that his appointment would last from six weeks to six months. Despite the indefinite duration of Reed's status as foreman, it was clear at the time that both his and Morris' promotions were the result of Brewer's temporary transfer to New York. ²

Reed supervised eleven maintenance men for approximately eight weeks from mid-July until Brewer's return to Texas City a week after the election was held. ³ On September 21, Brewer again became maintenance supervisor, Morris reassumed his post as maintenance foreman, and Reed returned to his position as a rank-and-file machinist.

Contrary to the conclusions of its Hearing Officer, the NLRB found that the indefinite nature of Reed's appointment as foreman precluded his participation in the union election. Although the Board has frequently recognized that employees serving in a temporary supervisory position are not, as a rule, ineligible to vote in bargaining unit elections, ⁴ it concluded that in this case Reed's status was "something more than that of a temporary supervisor." In the NLRB's view, "Reed's indefinite status as a machinist foreman indicates the employer's uncertainty as well as the employees', and does not constitute notice, nor does it permit an inference that Reed was only a temporary supervisor." The Board concluded further that Reed was disqualified because he was supervising his own bargaining unit at the time of the election and because he appeared to be an employee favored by management.

Of course, the Board has considerable discretion in applying the mandates of the National Labor Relations Act to the constantly changing patterns of employee-management relations. NLRB v. Erie Resistor Corp., 373 U.S. 221, 236, 83 S.Ct. 1139, 1149-1150, 10 L.Ed.2d 308 (1963). Particular deference must be given to the NLRB's findings concerning the "infinite and subtle" gradations of authority which determine who, as a practical matter, falls within the statutory definition of "supervisor." NLRB v. Swift & Co., 1 Cir., 1961, 292 F.2d 561, 563, quoted with approval in NLRB v. Security Guard Service, Inc., supra, at 146; see Trailmobile Division, Pullman, Inc. v. NLRB, 5 Cir., 1967, 379 F.2d 419, 422. Consequently, this circuit has repeatedly declined merely to second-guess the Board concerning an employee's status under section 2(11) of the Act. See, e. g., NLRB v. Houston Natural Gas Corp., 5 Cir., 1973, 478 F.2d 467; NLRB v. Griggs Equipment, Inc., 5 Cir., 1962, 307 F.2d 275, 279.

We are generally obligated, though, to determine whether the NLRB's conclusions are supported by substantial evidence on the record considered as a whole, ⁵ and whether its application of the statutory definition of supervisor had a reasonable basis in law. ⁶ NLRB v. Houston Natural Gas Corp., supra, at 468. More specifically, we must examine the Board's decision to ensure that a reasonable balance is struck between the two labor law policies which clash in this case. On the one hand, the NLRB's decision reflects a concern evident in both its own precedent and in the decisions of this circuit that bargaining units be protected against members whose basic loyalty is necessarily to management. See NLRB v. Florida Agricultural Supply Co., 5 Cir., 1964, 328 F.2d 989, 991. On the other hand, "the Board has a duty to employees to be alert not to construe supervisory status too broadly because the employee who is deemed a supervisor is denied employee rights which the act is intended to protect." Westinghouse Electric Corp. v. NLRB, 7 Cir., 424 F.2d 1151, 1158, cert.denied, 400 U.S. 831, 91 S.Ct. 63, 27 L.Ed.2d 62 (1970); see Shoreline Enterprises of America, Inc. v. NLRB, 5 Cir., 1959, 262 F.2d 933, 944.

In approaching this problem, we are guided by the legislative history of sections 2(3) and 2(11) which makes it clear that, rather than evidencing congressional concern over management interference in union affairs, the Taft-Hartley amendments excluding supervisors from the NLRA were, in fact, the result of organized labor's growing control over management personnel. ⁷ In enacting sections 2(3) and (11), Congress' preeminent purpose "was to give the employer a free hand to discharge foremen as a means of ensuring their undivided loyalty, in spite of any union obligations." Carpenters District Council v. NLRB, 1959, 107 U.S.App.D.C. 55, 57, 274 F.2d 564, 566. Thus, in cases involving employees who serve as temporary supervisors, where union control of management personnel cannot be a serious issue, we attach greater importance to the individual employee's right to the protections of the labor laws than we do to the invariably elusive goal of eliminating conflicts of interest among union members. ⁸ Eligibility to vote, then, does not depend on an employee being free from any ties with management but instead on his being "sufficiently concerned with the terms and conditions of employment in a unit to warrant his participation in the selection of a collective bargaining agent." Shoreline Enterprises v. NLRB, supra, at 944.

As its own jurisprudence reveals, the Board has traditionally taken a similar approach toward a rank-and-file employee's right to participate in union activities despite service as a temporary supervisor. The NLRB, for example, has long approved the "sporadic" exercise of temporary supervisory authority by a union member over his own bargaining unit. See, e. g., Stewart & Stevenson Services, Inc., 164 NLRB 741, 742 (1967). Temporary supervisors, moreover, have been permitted to vote even though the election occurred while they were acting in a supervisory capacity. In a case very similar to this one, the Board refused to disqualify an employee who had supervised his own bargaining unit during the month before and after a certification election:

We do not believe . . . that . . . a nonsupervisory employee . . . may be denied his right to vote in the unit to which he properly belongs, solely because he was temporarily substituting for a supervisor at the time of the election. We find . . . that this temporary and sole assignment did not destroy (the employee's) interests as a member of (his unit), and that he is therefore eligible to vote. Thermoid Company, 123 NLRB 57, 58-59 (1959).

The NLRB has permitted employees in seasonal industries to vote in certification elections even though they had supervised members of their own bargaining unit for three to four months of each year. The Great Western Sugar Company, 137 NLRB 551 (1962). Because these employees served as supervisors only during the peak season of each year and performed exclusively rank-and-file functions in the off season, the Board found their roles to be...