Illinois State Journal-Register, Inc. v. NLRB
| Decision Date | 10 June 1969 |
| Docket Number | No. 16979.,16979. |
| Citation | 412 F.2d 37 |
| Parties | ILLINOIS STATE JOURNAL-REGISTER, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
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R. Theodore Clark, Jr., Richard D. Ostrow, Chicago, Ill., for petitioner, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, Ill., of counsel.
Marcel Mallet-Prevost, Asst. Gen. Counsel, Nancy M. Sherman, Atty., N. L. R. B., Washington, D. C., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Michael F. Rosenblum, Atty., N. L. R. B., for respondent.
Before HASTINGS, Senior Circuit Judge, KILEY and KERNER, Circuit Judges.
Illinois State Journal-Register, Inc. (Company) petitions this court, pursuant to Section 10(f) of the National Labor Relations Act (Act), as amended, 29 U.S.C.A. § 160(f), to review and set aside an order of the National Labor Relations Board (Board), issued against the petitioning-Company on June 3, 1968. The Board found the Company had engaged in unfair labor practices within the meaning of Section 8(a) (1) and 8(a) (5) of the Act, as amended, 29 U.S.C.A. § 158(a) (1) and (a) (5), by refusing to bargain collectively with the International Mailers Union (Union), exclusive bargaining representative for the Company's 14 city and country district circulation managers working out of Company's Springfield, Illinois plant.
The Board, pursuant to Section 10(e) of the Act, as amended, 29 U.S.C.A. § 160(e), cross-petitions for enforcement of its order.1
The record reveals that the Company is an Illinois corporation engaged in the business of publishing daily newspapers in Springfield, Illinois. It further shows that on August 30, 1967, the Union filed a petition with the Board seeking to represent for purposes of collective bargaining the Company's city and country district managers.
Subsequent to a hearing ordered by the Thirteenth Regional Director of the Board to consider, inter alia, whether the district men whom the Union sought to represent were supervisory or managerial employees, the Regional Director issued a decision finding that such district managers were not supervisory or managerial employees and that they constituted a unit appropriate for the purposes of collective bargaining pursuant to Section 9(b) of the Act, as amended, 29 U.S.C.A. § 159(b). The Board denied the Company's request for review of the Regional Director's unit decision in case No. 38-RC-419.2
Pursuant to the Regional Director's direction, a representation election was conducted on January 17, 1968 in which a majority of the district managers designated the Union as their collective bargaining representative. On January 25, 1968, the Union was so certified.
It is undisputed that subsequent to the certification the Union requested, and continues to request, the Company to bargain collectively and that the Company has refused, and continues to refuse, to bargain with the Union.
With the Company's refusal to bargain, the Union filed a charge, and the Board's General Counsel, by the officer-in-charge of Subregion 38, issued a complaint and notice of hearing on March 19, 1968 against the Company alleging violations of Section 8(a) (5) and 8(a) (1). In answer to the complaint, the Company admitted its refusal to bargain and alleged that the certification of the Union was invalid on the grounds that the district managers are not employees within the meaning of Section 2(3) of the Act, as amended, 29 U.S.C.A. § 152(3). Specifically, the Company's answer contends that the 14 district managers are supervisors within the meaning of Section 2(11), as amended, 29 U. S.C.A. § 152(11). The Company contends, therefore, that its refusal to bargain is not violative of the Act since the certification of the Union was invalid as such district men do not constitute an appropriate bargaining unit.
Thereafter, on March 27, 1968, General Counsel filed with the Board a motion for summary judgment. The motion was premised upon the Board's "rule against relitigation." Under such procedure, the Board will not relitigate in a subsequent refusal-to-bargain proceeding matters which have been considered and disposed of in a prior related representation case.3 Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 61 S.Ct. 908, 85 L.Ed. 1251 (1941); N. L. R. B. v. National Survey Service, Inc., 7 Cir., 361 F.2d 199, 204 (1966).
By the motion, General Counsel asserted that since the Company admits its continuing refusal to bargain and that since the sole issue raised by the Company's answer related to the question of the unit's propriety, which had been previously determined in Case No. 38-RC-419, a hearing with respect to the alleged unfair labor practice was unnecessary under the rule against relitigation.
In substance, the Board granted the motion on the basis of the reasoning embraced in General Counsel's motion for summary judgment.
In this case, the Company's petition for review of the Board's order in effect represents a petition for review of the Regional Director's finding and decision that the 14 district managers are employees, rather than "supervisors and/or managerial employees", and constitute a unit appropriate for the purposes of collective bargaining. This is true since the validity of the Board's order hinges on the propriety of the Regional Director's finding with respect to the issue of whether the district managers were employees within the meaning of the Act.
It is axiomatic that the Board is accorded wide discretion in establishing the correct limits of a bargaining unit and is not subject to reversal unless it is arbitrary and capricious in the exercise of its discretion. N. L. R. B. v. Waukesha Lime & Stone Co., 7 Cir., 343 F.2d 504, 507 (1965); N. L. R. B. v. Weyerhaeuser Company, 7 Cir., 276 F.2d 865, 869 (1960), and cases cited therein, cert. denied, 364 U.S. 879, 81 S.Ct. 168, 5 L.Ed.2d 102. The finding reached in the instant case with respect to the question of whether the district managers were employees and constituted an appropriate bargaining unit "must be sustained if it is supported by substantial evidence on the record considered as a whole." Trailmobile Division, Pullman Incorporated v. N. L. R. B., 5 Cir., 379 F.2d 419, 422 (1967); N. L. R. B. v. Security Guard Service, Inc., 5 Cir., 384 F.2d 143 (1967).
After examining the record, we are satisfied that the evidence substantially supports the conclusion that the Company's district managers are employees within the meaning of the Act and constitute an appropriate bargaining unit. Such a determination was reasonable and cannot be characterized as being arbitrary or capricious in nature. It necessarily follows that the Board's petition for enforcement of its order should be granted.
The record shows that the Company's circulation department has 14 district men or managers. Each manager is assigned to a geographical area known as a district; there are five country and nine city districts. Though the manager's functions and responsibilities within his district are multifarious and the subject of some disagreement, it is undeniable that his paramount concern is with the newspaper carriers of which there are approximately sixty to seventy in each district.
With respect to the Company's contention that the district men are managerial employees, we are in accord with the Regional Director's analysis that "the discretion and initiative which these men the district managers are expected to exercise fall within relatively unimportant areas * * *" and "* * * make them sufficiently removed from managerial policy-making so they may not be considered employees who formulate, determine and effectuate managerial policy."
Though the Board has established a policy of excluding "managerial employees" from bargaining units, it has not developed clear guidelines for determining whether particular individuals are "managerial employees." In Retail Clerks International Ass'n, A.F.L.-C.I.O. v. N. L. R. B., 125 U.S.App.D.C. 63, 366 F.2d 642, 644-645 (1966), cert. denied, 386 U.S. 1017, 87 S.Ct. 1373, 18 L.Ed.2d 455, the court notes that there seem to be two fundamental tests for determining whether an employee is a managerial employee and therefore excludable under Board policy from bargaining units.
The first test is to determine whether an employee is so closely related to or aligned with management as to place the employee in a position of potential conflict of interest between his employer on the one hand and his fellow workers on the other. If an employee is found to be in such a position, he is not, under Board policy, entitled to be represented in the collective process.
The second managerial employee test is to determine whether the employee is formulating, determining and effectuating his employer's policies or has discretion, independent of an employer's established policy, in the performance of his duties. If an employer cloaks an individual with such authority or such discretion, that individual would be a managerial employee and would be deprived of the right of representation by a bargaining unit.
The alignment between the 14 district men in question and the upper management echelon of the Company is not of such degree or character as to place these employees in a position of potential conflict. The alignment test is essentially a narrow one in the sense that unless an employee is substantially involved in his employer's labor policies his relationship with management is not one of a managerial employee. The rationale behind this is succinctly set forth in Westinghouse Electric Corporation v. N. L. R. B., 6 Cir., 398 F.2d 669, 670-671 (1968). In that case the court stated:
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