N.L.R.B. v. Porta Systems Corp.

Decision Date29 May 1980
Docket NumberNo. 650,D,650
Citation625 F.2d 399
Parties104 L.R.R.M. (BNA) 2918, 89 Lab.Cas. P 12,109 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PORTA SYSTEMS CORPORATION, Respondent. ocket 79-4169.
CourtU.S. Court of Appeals — Second Circuit

William R. Stewart, Deputy Asst. Gen. Counsel, Washington, D. C. (Patricia Cornwell Matthews, Washington, D. C., of counsel), for petitioner.

Henry C. Woicik, Jericho, N. Y., for respondent.

Before OAKES, VAN GRAAFEILAND and NEWMAN, Circuit Judges.

OAKES, Circuit Judge:

The National Labor Relations Board is here seeking enforcement of an order based upon findings of violations of § 8(a)(1) and § 8(a)(3) of the Act, 29 U.S.C. § 158(a)(1), (3). Porta Systems Corporation, the employer, manufactures, sells, and distributes electronics and related products from its plant in Syosset, Long Island, where it employed approximately 160 to 170 production employees in January, 1977. At that time, one supervisor, Robert Dietz, had approximately 100 employees and four so-called "leadpersons" under his supervision, and another, Harry Taylor, had between 30 and 90 employees and one "leadperson" under his supervision.

A critical question in the case is whether these leadpersons were "supervisors" as defined in § 2(11) of the Act, 29 U.S.C. § 152(11). 1 This question is critical because several of the violations of § 8(a)(1) that were found by the Administrative Law Judge and sustained by the Board itself were based on acts by the leadpersons warnings and threats, surveillance, participation in the preparation and circulation of an anti-union petition, and coercive interrogation of employees by pinning "vote no" buttons on them. The company is only We are also presented with the question whether there is substantial evidence to support the finding that company Chief Executive Officer DeLuca created the impression, two weeks before the election was scheduled to take place, that an impending suspension of routine wage increases would be the fault of the union. Finally, there is a question whether the company violated § 8(a)(1), (3) of the Act by adopting and maintaining a ten-percent absentee discharge rule and discharging both pro-union and anti-union employees pursuant to that rule, while refusing to reinstate employees either because of their union activity or in order to discourage union activity.

responsible for these acts if the leadpersons involved were "supervisors."

I. Leadpersons as Supervisors

There was substantial evidence of the following facts in the record. Leadpersons make work assignments to employees and see to it that the work is performed within a certain period of time. They also select employees to work overtime and in doing so consider the individual employee's capability. They train new employees. They have some authority to maintain plant discipline and they check for lateness and absenteeism, asking employees for explanations. They also criticize the performance of employees working with them and advise such employees' foremen. They also have keys to the plant. At the same time, the leadpersons spend much of their time working on the line, and their pay is not substantially greater than that of the other employees. They work a 40-hour week, punch the clock as the rest of the workers do, and are paid time and one-half for overtime. They do not have authority to hire or fire or to transfer a fellow worker from one job to another, nor do they attend the production meetings that are attended by foremen, members of the engineering staff, and officers of the company.

The Administrative Law Judge found that each of the leadpersons in question responsibly directs the work of the employees assigned to her, effectively recommends wage increases for the employees, disciplines them, and assigns them work "all in a manner requiring the exercise of independent judgment." He noted that his findings were "consistent with" the responsibilities as outlined in prehearing affidavits executed by the four leadpersons. He also discredited the subsequent testimony of the leadpersons disavowing those affidavits, because he found the witnesses "evasive, argumentative and entirely unconvincing in their demeanor."

Preliminarily, we note that the Board's findings in this area are entitled to "special weight," Amalgamated Local Union 355 v. NLRB, 481 F.2d 996, 999-1000 (2d Cir. 1973), cert. denied, 414 U.S. 1002 (1973), in light of the Board's expertise "in evaluating actual power distributions which exist within an enterprise," NLRB v. Metropolitan Life Insurance Co., 405 F.2d 1169, 1172 (2d Cir. 1968). Yet, in NLRB v. Monroe Tube Co., 545 F.2d 1320, 1324-25 (2d Cir. 1976), despite the fact that the night foreman in question was responsible for eight people on the night shift and there was frequently no one of higher authority when he was there, and despite the facts that he was empowered to move employees from job to job when necessary, earned thirty percent more than the other employees in the shift, and was regarded by the night shift employees as their supervisor, this court reversed a Board determination that he was a supervisor. The court's holding was based on the fact that the night foreman did not attend weekly management meetings, he did not have an office or desk of his own, his instructions as to work priorities and scheduling were received from his foreman, and emergency personnel situations had to be reported to the latter. The court said that "his exercise of authority was of a strictly routine nature pursuant to (his foreman's) directions." Id. at 1325.

So the question turns ultimately on whether the powers of the leadpersons are exercised independently and in the interest of management thereby denoting a supervisory rank, or are exercised in a merely routine or clerical way. See generally While the question is a very close one, judged by these standards, the finding of the ALJ that the leadpersons here were supervisors is supported by substantial evidence. A careful perusal of the record indicates that the findings are based upon testimony by the leadpersons and other employees, even though some of the former later disavowed affidavits given to Board counsel.

NLRB v. Monroe Tube co., supra ; NLRB v. Big Ben Department Stores, Inc., 396 F.2d 78, 82 (2d Cir. 1968). Senator Flanders, who offered the final amendment that became Section 2(11), noted in the Congressional Record that "under some modern management methods, the supervisor might be deprived of authority for most of the functions enumerated and still have a large responsibility for the exercise of personal judgment." 93 Cong.Rec. 4677 (1947). A person "charged with the responsible direction of his department and the men under him," determining "under general orders which jobs shall be undertaken next and who shall do it," giving instructions for its proper performance and training in the performance of unfamiliar tasks, is above the grade of " 'straw bosses, lead men, set-up men and other minor supervisory employees' " and has supervisory power. Id.

II. The CEO's Speech

The evidence that the Chief Executive Officer attempted to create the impression that a withholding of wage increases would be the fault of the union is quite thin indeed, but nevertheless also sufficient to support the findings. The election was scheduled for February 25, 1977, and he gave a speech to three separate groups of employees on February 11, reading from a prepared text to the first two groups, but admittedly varying the prepared text in the third speech. He did not, however, admit making the impromptu statement, testified to by a single employee, that there could be no wage increases "because of the union being on the scene" or until after "the election came through for or against the union." He only recalled stating to the employees that the company "could not come out with a benefit program . . . because of the (possibility of) litigation surrounding the current situation," and insisted that his "current situation" remark was not referring to the union election campaign. The CEO's version is lent some support by the uncontroverted evidence in the record that no suspension of wage increases actually took place. But the ALJ found a violation, basing his finding as much on DeLuca's inability to remember and somewhat equivocal testimony as on the testimony of the single employee who described the speech but testified to two different versions of it. As we have said, the evidence is thin, but it is nevertheless substantial enough.

III. The Ten-Percent Absentee Discharge Rule

The question under § 8(a)(3) is, of course, whether the employer has "by discrimination in regard to . . . tenure of employment . . . encourage(d) or discourage(d) membership in any labor organization." 29 U.S.C. § 158(a)(3). More specifically, the issue here is the support in the record for the ALJ's conclusion that the discharges of January 26, 1977 were not made solely for legitimate economic reasons, but because the company had an intent to discourage union activities by the employees. See NLRB v. Advanced Business Forms Corp., 474 F.2d 457, 463-64 (2d Cir. 1973); NLRB v. Long Island Airport Limousine Service Corp., 468 F.2d 292, 295 (2d Cir. 1972).

Prior to January 26, 1977, the employer had no standard policy with respect to the number of absences that would result in a discharge. Instead, the supervisors exercised their own judgment on an ad hoc basis, discharging those employees with an absentee rate considered unacceptable. On January 24 or 25, the employer held a management personnel meeting at which absenteeism, lateness, productivity, and employee drinking were discussed. The two foremen present, Taylor and Dietz, picked out those employee attendance sheets that indicated a The company contends that the development of this new absentee policy was occasioned by the need to cut the absentee rate in order to meet...

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