N.L.R.B. v. Dixon Industries, Inc.
| Citation | 700 F.2d 595 |
| Decision Date | 16 February 1983 |
| Docket Number | No. 81-1032,81-1032 |
| Parties | 112 L.R.R.M. (BNA) 2781, 96 Lab.Cas. P 14,031 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. DIXON INDUSTRIES, INC., Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
Jonathan Saperstein, Washington, D.C. (W. Christian Schumann, Atty., 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, N.L.R.B., Washington, D.C., with him on brief), for petitioner.
Peter T. Van Dyke of Lytle, Soule, Curlee, Harrington, Chandler & Van Dyke, Oklahoma City, Okl., for respondent.
Before HOLLOWAY and McWILLIAMS, Circuit Judges, and TEMPLAR, * District Judge.
Pursuant to section 10(e) of the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et seq., the National Labor Relations Board seeks enforcement of its order against Dixon Industries, Inc. The issues to be resolved are whether the Board acted properly (1) in sustaining the Union's election challenges to three company leadmen on the ground that they were supervisors rather than employees, and hence ineligible to vote; (2) in overruling Dixon's objections to the election based on two Union leaflets which the Company claims contained material misrepresentations which affected the outcome of the election; (3) in finding that Dixon's admitted refusal to bargain with the Union as the elected representative of the Company's production and maintenance employees was therefore violative of section 8(a)(5) and (1) of the Act.
Pursuant to a Stipulation for Certification Upon Consent Election, an election was held involving all full-time and regular part-time production and maintenance employees at Dixon's plant in Coffeyville, Kansas, where Dixon is engaged in the manufacture of lawn mowing equipment. Thirty employees voted for the Union, namely, the International Association of Machinists and Aerospace Workers, AFL-CIO, twenty-five voted against the Union, and five ballots were challenged and therefore not counted. At the election the Union had challenged the ballots of five persons, contending that four were supervisors rather than employees, and therefore ineligible to vote, and that the fifth was not a regular part-time employee but only a temporary employee.
Shortly after the election, Dixon filed objections to the election, alleging that the Union made two material misrepresentations shortly before the election which affected the outcome of the election. In this regard, Dixon claimed that the Union distributed a leaflet comparing the wages paid by Dixon to the wages paid by another company in Coffeyville with whom the Union had a contract. That leaflet, according to Dixon, contained inaccurate and misleading information. Further, Dixon claimed that the Union distributed a second leaflet comparing Dixon's rules regarding vacation time with the vacation rules of the other company, which leaflet also contained inaccurate and misleading information.
A Hearing Officer conducted an evidentiary hearing on the Union's five challenges and Dixon's objections to the election, and upheld three of the Union's challenges, disallowing two, and overruled Dixon's objections to the elections. Specifically, the Hearing Officer recommended that the Union's challenges to the ballots of Obie Estes, Steve Reedy, and John Burris be sustained for the reason that each was in fact a "supervisor" and hence, under the Act, not eligible to vote. The Union also challenged the ballot of Cal Harvey on the ground that he too was a supervisor. This particular challenge was disallowed by the Hearing Officer. The challenge to the fifth ballot by the Union, the ballot of George McDuffee, was also disallowed, the Hearing Officer finding that McDuffee was a regular part-time employee, and not a temporary one.
As concerns Dixon's objections to the election, the Hearing Officer recommended that they be overruled for the reason that the statements in the Union leaflets concerning pay and vacation time at Dixon compared with pay and vacation time at another company in Coffeyville were not such material misrepresentations as would warrant setting aside the election.
Dixon thereafter filed with the Board exceptions to the Hearing Officer's recommendations. After reviewing the record in light of Dixon's exceptions, a three-member panel of the Board adopted the Hearing Officer's findings and recommendations, and certified the Union as the validly elected representative of Dixon's employees in the production and maintenance department. One member of the panel dissented in part. See Dixon Industries, Inc. and International Association of Machinists and Aerospace Workers, AFL-CIO, Petitioner. 247 NLRB 1446 (1980).
Thereafter, the Union sent Dixon a letter requesting it to bargain. Dixon refused to bargain on the ground that the Board's certification of the Union was invalid. The Union then filed an unfair labor practice charge, and the Board's Regional Director issued a complaint, alleging that Dixon had violated, and was continuing to violate, section 8(a)(5) and (1) of the Act by refusing to bargain with the Union. Dixon filed an answer admitting the fact allegations in the complaint but claiming a good-faith refusal to bargain because of doubt as to the validity of the Board's certification. On motion for summary judgment, the Board found that Dixon was in violation of section 8(a)(5) and (1) and entered remedial orders. See Dixon Industries, Inc. and International Association of Machinists and Aerospace Workers, AFL-CIO, 252 NLRB 698 (1980). The Board now seeks enforcement of its order.
Estes was the "leadman" in Dixon's transaxle department. Burris was the leadman in the assembly department. Reedy was the leadman in the company's fabrication department. Each proposed to vote in the plant election, and all were challenged by the Union on the basis that they were in fact supervisors and therefore ineligible to vote. All apparently cast their vote, but their ballots were segregated and not counted. As indicated, the majority of the Board vote adopted the recommendation of its Hearing Officer that the Union's challenges against Estes, Burris, and Reedy be sustained, finding that each was a "supervisor" as that term is used in the Act. Dixon argues here that such finding is not "supported by substantial evidence in the record considered as a whole." We do not agree.
Dixon in its "Job Classification," document refers to a so-called "leadman" as follows:
To assign work and to assist and train employees under his jurisdiction. To perform work as required. Maintain a high standard of quality, have parts and/or materials available to be worked and maintain records and assist in scheduling of work as required by supervisor. Keep supervisor informed of actions and performance of all employees and condition of equipment.
The fact that Dixon may have considered Estes, Burris, and Reedy to be "leadmen," as opposed to supervisors, does not resolve the issue of whether, under the Act, the three were, or were not, supervisors. The Act, 29 U.S.C. Sec. 152(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 responsibly to direct them, or...
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...[Company] as the elected representative of an appropriate unit of the company's employees. "], italics added; N.L.R.B. v. Dixon Industries, Inc. (10th Cir. 1983) 700 F.2d 595, 597 ["certified the Union as the validly elected representative of Dixon's employees in the production and maintena......