Keener Rubber, Inc. v. NLRB
| Decision Date | 27 January 1964 |
| Docket Number | No. 15152.,15152. |
| Citation | 326 F.2d 968 |
| Parties | KEENER RUBBER, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Robert M. Rybolt, Canton, Ohio, Larry R. Brown, Day, Cope, Ketterer, Raley & Wright, Canton, Ohio, on brief, for petitioner.
Melvin H. Reifin, N. L. R. B., Washington, D. C., Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, Allison W. Brown, Jr., Attorney, N. L. R. B., Washington, D. C., on brief, for respondent.
Before MILLER, Circuit Judge, and LEVIN and KENT, District Judges.
Petitioner, Keener Rubber, Inc., seeks to review and set aside an order issued by the National Labor Relations Board which found that the petitioner violated Section 8(a) (5) and (1) of the National Labor Relations Act, as amended, Section 158(a) (5) and (1), Title 29, United States Code, in refusing to bargain with the Union which had been certified as the exclusive representative of the employees in a unit appropriate for collective bargaining in petitioner's plant. The order directed the petitioner to cease and desist from the unfair labor practice found and, upon request, to bargain collectively with the Union. The Board, by its answer, seeks enforcement of the order.
In an election conducted among 38 employees in a stipulated unit at the petitioner's plant, 19 votes were cast for, and 18 against, representation by the Union. An additional ballot cast by William Mowen was challenged by the Union on the ground that Mowen was a supervisor as defined by Section 2(11) of the Act, Section 152(11), Title 29, United States Code, and was ineligible to participate in the selection of a bargaining representative. The Board directed that a hearing be held to resolve this issue. The Hearing Officer found that Mowen responsibly directed employees in the performance of their work in a nonroutine manner and was thus a supervisor within the meaning of Section 2(11) of the Act. The Board adopted the finding of the Hearing Officer and certified the Union as the exclusive representative of the petitioner's employees. Thereafter, the Union requested the petitioner to meet with it and negotiate for a collective bargaining agreement. The petitioner refused to recognize and meet with the Union. On the basis of these facts the Board found that the petitioner had refused to bargain with the Union in violation of Section 8(a) (5) and (1) of the Act, and entered the order now under review.
The only question involved is the propriety of the finding that Mowen was a supervisor within the meaning of Section 2(11) of the Act. That section provides:
"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 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."
The petitioner operated its mill room with a full complement of employees on two shifts, the first shift between the hours of 6:30 A.M. and 2:30 P.M., and the second shift from 2:30 P.M. to 10:30 P.M. In August 1960 an employee named Hammel was working as foreman on the second shift. Hammel was relieved of his duties on the second shift and transferred to the first shift. Mowen was transferred from the first shift to replace Hammel on the second shift. Although Mowen was in charge of the second shift, petitioner contends he was merely a "straw boss" or "leadman" who directed the performance of routine jobs and through whom management sent and enforced its orders with respect to the operations of the second shift. Such an employee is not a supervisor within the meaning of the Act....
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