Laborers and Hod Carriers Local No. 341 v. N.L.R.B.

• Decision Date: 06 October 1977
• Docket Number: AFL-CI,No. 76-2279,P,76-2279
• Parties: 97 L.R.R.M. (BNA) 2287, 54 A.L.R.Fed. 65, 82 Lab.Cas. P 10,290 LABORERS AND HOD CARRIERS LOCAL NO. 341, affiliated with Laborers' International Union of North America,etitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 834

564 F.2d 834

97 L.R.R.M. (BNA) 2287, 54 A.L.R.Fed. 65,

82 Lab.Cas. P 10,290

LABORERS AND HOD CARRIERS LOCAL NO. 341, affiliated with Laborers' International Union of North America AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 76-2279.

United States Court of Appeals Ninth Circuit.

Oct. 6, 1977.

Fredric R. Dichter, of Birch, Jermain, Horton & Bittner, Anchorage, Alaska, for petitioner.

Charles M. Henderson, Seattle, Wash., for respondent.

ON PETITION FOR REVIEW AND CROSS-APPLICATION FOR ENFORCEMENT OF AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD.

Before WRIGHT, CHOY and ANDERSON, Circuit Judges.

J. BLAINE ANDERSON, Circuit Judge:

I. JURISDICTION

Laborers and Hod Carriers Local No. 341 (the Union) has petitioned for review of an order of the N.L.R.B. (the Board) reported at 223 NLRB No. 143. The Board has cross-petitioned for enforcement. The Board found ¹ that the Union violated Sections 8(b)(1)(A) and 8(b)(2) of the National Labor Relations Act by arbitrarily causing Bannister-Joyce-Leonard (the Employer) to discharge one of its employees. The events occurred in Valdez, Alaska. This court has jurisdiction under 29 U.S.C. § 160(f), (e).

II. ISSUES

Was there substantial evidence to support the Board's findings:

1. That Patrick Hurrell was an employee and not a supervisor;

2. That the Union caused Hurrell's discharge; and

3. That the Union thereby violated sections 8(b)(1)(A) and 8(b)(2)?

III. SUMMARY OF FACTS

On April 2, 1976, Patrick J. Hurrell, the complainant before the Board, was dispatched by Jim Robison, the Union's field representative, to a job site in Valdez, Alaska, at the request of Bob Morris, the Employer's yard foreman. Under the bargaining agreement, the Employer had "exclusive responsibility" to designate labor foremen, the job Hurrell was to perform. The Union agrees the dispatch was proper.

Hurrell has been "in and out of" Local 238 (Idaho-Washington) of the laborers' union since 1948. Hurrell's father has been business agent for the same local for thirty years. No evidence was introduced showing that Hurrell experienced trouble with Local 238. Hurrell transferred into Local 341, the petitioner herein, when he came to Alaska for this job in the spring of 1975.

As labor foreman, Hurrell supervised a crew of three full-time and two part-time laborers and worked with a crane operator and an oiler. His wage rate was seventy-five cents higher than the crew members. The crew thought one of them should have been foreman and objected to Hurrell's dispatch. On April 4, 1975, the crew's job steward, William Divins, notified Robison of the crew's objections; Robison told Divins the dispatch was proper. Divins informed the crew of the Union's position. On the evening of April 5th, the crew met without Hurrell and voted to hold a work stoppage, euphemistically termed a safety meeting. Divins did not participate in the vote. They asked Divins to request a union representative to come to the job site. Divins was unable to contact anyone, and the crew decided to postpone the work stoppage until a union representative came.

On April 6, Divins told M. T. Wilhite, the Employer's job superintendent, that a work stoppage would begin the following day. Divins said he was only conveying the crew's intentions; he explained that Hurrell was the problem, but did not mention his conversation with Robison. Wilhite asked whether the work stoppage would occur if Hurrell were discharged. Divins said no. Without informing Divins or the Union, Wilhite terminated Hurrell the same day, April 6, 1975. Hurrell returned to Idaho.

An unfair labor practice charge was filed by Hurrell on April 14, 1975. Two days later the Union received notice of the charge. On May 23, 1975, the Union's attorney wrote Hurrell telling him that the Union did not object to his employment. Hurrell was rehired after the Employer learned of the letter.

IV. WAS HURRELL A SUPERVISOR UNDER SECTION 2(11)?

The Board's findings of fact are conclusive if supported by " substantial evidence on the record considered as a whole." 29 U.S.C. § 160(f). Similar deference is given to the Board's interpretations of labor relations statutes.

Subsections 8(b)(1)(A) and 8(b)(2) apply only to employees; supervisor and employee are mutually exclusive terms. Section 2(11) provides that:

"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 responsibility to direct them, ² 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).

The enumerated powers are disjunctive; the independent judgment criterion is conjunctive. Ohio Power Co. v. N.L.R.B., 176 F.2d 385 (6th Cir. 1949), cert. denied, 338 U.S. 899, 70 S.Ct. 249, 94 L.Ed. 553 (1949). For example, the authority to promote in the interest of the employer renders a person a supervisor only if the person uses independent judgment in deciding whom to promote. The existence of authority is sufficient though failure to exercise may show the authority does not exist.

The line between merely routine exercises of authority and those requiring independent judgment is to be drawn by the Board; therefore, the courts usually defer to the Board's expertise. Kaiser Engineers v. N. L. R. B., 538 F.2d 1379, 1383-84 (9th Cir. 1976). Job titles are unimportant. Ross Porta-Plant, Inc. v. N. L. R. B., 404 F.2d 1180, 1182 (5th Cir. 1968). The legislative history indicates that the purpose of Congress was to allow employers to insure the loyalty of supervisors by granting them greater power over supervisors. Meat Cutters Union Local 81 of A. M. C. & B. W. v. N. L. R. B., 147 U.S.App.D.C. 375, 381, 458 F.2d 794, 800 (1972).

The record fully supports the Board's conclusion. In assigning work, Hurrell relayed the yard foreman's instructions (Tr. 29, 1. 20-25) and routinely adjusted job duties according to the workers' requests (Tr. 32, 1. 16-23). He worked alongside the crew (Tr. 9, 1. 14) and kept "the work moving along" (Tr. 8, 1. 15-16). If suspension or discipline were necessary, Hurrell would summon the yard foreman (Tr. 31, 1. 2-9). Although Hurrell speculated that he had authority to recommend discipline (Tr. 32, 1. 7-9), he had never done so (Tr. 32, 1. 4-6), and the record indicates Hurrell's duty was to report facts, not "effectively recommend" ³ (Tr. 31). Grievances were to be reported to Hurrell, but adjusted by the yard foreman (Tr. 34, 1. 4). Hurrell had no authority to hire, fire (Tr. 8-9), or perform any other supervisory function.

Because this is a factual determination and job duties are never identical, the value of precedents is limited. See Arizona Public Service Company v. N. L. R. B., 453 F.2d 228, 230 n. 4 (9th Cir. 1971). Viewed as a whole, the case law is consistent with the Board's determination. In N. L. R. B. v. Security Guard Service, Inc., 384 F.2d 143 (5th Cir. 1967), the court upheld the Board's finding that sergeants who supervised other plant security guards were employees. Like Hurrell, the sergeants worked alongside other guards and related the captain's instructions to the guards. The court emphasized that a supervisor must be part of management ⁴ and termed the sergeants' occasional exercises of authority transitory and routine. In Global Marine Development of California, Inc. v. N. L. R. B., 528 F.2d 92 (9th Cir. 1975), cert. denied, 429 U.S. 821, 97 S.Ct. 70, 50 L.Ed.2d 83 (1976), this court affirmed the Board's determination that assistant marine engineers were not supervisors; their responsibility for engine room operations was deemed routine.

Another Ninth Circuit case, N. L. R. B. v. Doctors' Hospital of Modesto, Inc., 489 F.2d 772 (9th Cir. 1973), is instructive. The court held that registered nurses were employees even though they assigned and directed licensed vocational nurses and aides. Since vocational nurses assign and direct aides, a domino effect would result if the "managerial" criterion were disregarded:

"The leadman or straw boss may give minor orders or directives or supervise the work of others, but he is not necessarily a part of management and a 'supervisor' within the Act. The fact that nurses are highly trained professionals and occasionally use independent judgment does not necessarily make them part of management or 'supervisors' under the Act." Id. at 776. ⁵

Precision Fabricators, Inc. v. N. L. R. B., 204 F.2d 567 (2d Cir. 1953) also supports the Board's determination. There the complainant assigned work to production employees pursuant to an order schedule given to him by the production manager. In concluding that these supervisory duties were routine, the court pointed out that the complainant spent 80% of his time operating a machine and that he only kept the workers busy. Id. at 568-69. Although the aforementioned cases indicate the Board's finding is correct, other cases support petitioner's challenge.

In N. L. R. B. v. Gray Line Tours, Inc., 461 F.2d 763 (9th Cir. 1972) (per curiam), this court rejected the Board's finding that bus dispatchers were employees because the dispatchers were authorized to send home drivers who refused to drive a particular bus or who were improperly dressed. The court equated this with power to suspend, but never addressed the independent judgment criterion. Accord, Eastern Greyhound Lines v. N. L. R. B., 337 F.2d 84 (6th Cir. 1964) ("The effective exercise of authority is nonetheless supervisory because it is a delegated authority." Id. at 87). Production foremen were found to be supervisors in N. L. R. B. v. Edward G. Budd Mfg. Co., 169 F.2d 571, 575 (6th Cir. 1948), cert. denied, 335 U.S. 908, 69 S.Ct. 411, 93 L.Ed. 441 (1949), but the...