N.L.R.B. v. Health Care Logistics, Inc.

• Citation: 784 F.2d 232
• Decision Date: 27 February 1986
• Docket Number: 85-5276,Nos. 85-5207,s. 85-5207
• Parties: 121 L.R.R.M. (BNA) 2872, 104 Lab.Cas. P 11,802 NATIONAL LABOR RELATIONS BOARD, Petitioner, Cross-Respondent, v. HEALTH CARE LOGISTICS, INC., Respondent, Cross-Petitioner.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 232

784 F.2d 232

121 L.R.R.M. (BNA) 2872, 104 Lab.Cas. P 11,802

NATIONAL LABOR RELATIONS BOARD, Petitioner, Cross-Respondent, v. HEALTH CARE LOGISTICS, INC., Respondent, Cross-Petitioner.

Nos. 85-5207, 85-5276.

United States Court of Appeals, Sixth Circuit.

Argued Nov. 8, 1985.

Decided Feb. 27, 1986.

Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., William Bernstein (argued), Washington, D.C., Emil C. Farkas, Director, N.L.R.B., Region 9, Cincinnati, Ohio, for petitioner, cross-respondent.

James D. Kurek (argued), Buckingham, Doolittle, Burroughs, Akron, Ohio, for respondent, cross-petitioner.

Before MERRITT and WELLFORD, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.

WELLFORD, Circuit Judge.

The National Labor Relations Board ("NLRB") seeks enforcement of its order, adopting the ALJ's finding that National Health Care Logistics, Inc. ("the Company") committed unfair labor practices by discharging employees Jon Jacobs, Mark Cox, and Robert Fox to discourage union activities among its employees. The Company cross appeals the decision.

At all times relevant to this case, the Company was engaged in the manufacture of medical cabinets in Circleville, Ohio. The physical plant was small, consisting of a 2000 square feet, one story building about the size of a three-car garage, and was divided into an open manufacturing area, a paint room, and a restroom. Gary Sharpe, the Company president, lived a short distance from the plant.

In June 1983, several months before the alleged unfair labor practices, Sharpe allegedly told one of the discharged employees, Jon Jacobs, that if a union ever came into the plant, he would close it down. The comment was allegedly made in connection with an argument Sharpe had with another employee about a workers' compensation claim.

The Company's workforce originally consisted of three to four fulltime employees. In the fall of 1983, however, a business growth required expansion of the workforce, resulting in the employment of six to eight additional workers. This expansion pushed the Company into financial difficulties, with sizeable losses suffered through February 1984. In mid-October 1983, the employees began discussing the possibility of union representation. Jacobs initiated these discussions at the plant with employee Mark Cox and shop supervisor Erwin. Between mid-October and November 7, several additional discussions took place at the plant among Jacobs, Cox, Erwin, and other employees. Jacobs led these discussions and spoke in favor of union representation with several employees, including Cox and Robert Fox, who expressed an interest in union representation.

On Monday, November 7, 1983, Jacobs telephoned a representative of the United Steel Workers of America ("the Union") during a work break. He arranged for the union representative to meet with the employees a few days later. After completing his call, Jacobs returned to the work area and reported to the employees that the Union agent would be in town and that anyone interested should meet with him. On the evening of November 7, Sharpe decided to terminate employees Jacobs, Cox, and Fox. The next day, Tuesday, November 8, operations manager Salyers informed each of them that they were terminated.

Subsequently the discharged employees filed separate unfair labor practice charges, later consolidated, against the Company. The Board found, in conformity with the ALJ, that the Company violated sections 8(a)(1) and (3) of the Act (29 U.S.C. Secs. 158(a)(1) and (3)) by discharging employees Jacobs, Cox, and Fox in order to discourage union activities. ¹

In its cross petition, the Company asserts that no violation occurred as to Jon Jacobs because he was a supervisor within the meaning of the National Labor Relations Act and therefore not a covered employee. Alternatively, the Company argued that the Board's decision is not supported by substantial evidence because all three discharged employees, including Jacobs, had been terminated for legitimate business reasons and not as a pretext for an unfair labor practice. We enforce the Board's order as to Jacobs and Cox, but deny enforcement of the NLRB order regarding the discharge of Fox.

I

29 U.S.C. Sec. 157 accords employees "the right to self-organization, to form, join, or assist labor organization...." Excluded from the Act's protection are supervisors who are by the Act's definition not deemed to be employees. 29 U.S.C. Sec. 152(3). See ITT Lighting Fixtures, Division of ITT Corp. v. NLRB, 719 F.2d 851, 857-58 (6th Cir.1983) (discussing consequences of statutory distinction between an "employee" and "supervisor"). Supervisors are defined at 29 U.S.C. Sec. 152(11) to be:

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 Company argues that Jacobs was a supervisor because he directed the work of other shop employees and received a promotion from general laborer to the position of assistant shop supervisor, pointing to a promotion of Jacobs to supervisor on a short-lived second shift formed approximately two months before his discharge. When the second shift was discontinued, however, Jacobs returned to his position as assistant shop supervisor where his duties were expanded to include solo field maintenance trips and inventory control.

Although noting that Jacobs was a supervisor within the Act's meaning during his short-term control over the second shift, the ALJ determined that at the time of his discharge, Jacobs was not acting as a supervisor in his position as "assistant shop supervisor." The ALJ stated that neither Jacobs' job title as assistant shop supervisor nor a conclusory statement that Jacobs possessed any of the enumerated supervisory powers under 28 U.S.C. Sec. 152(11) was sufficient to establish that Jacobs was a supervisor within the meaning of the Act, relying upon Saladmaster Corp., 216 NLRB 769 (1975) and United States Gypsum Co., 118 NLRB 20 (1957).

Since the question of supervisory status is a mixed question of fact and law, the Board's finding in that respect will be upheld if it is supported by substantial evidence on the record. NLRB v. Lauren Manufacturing Co., 712 F.2d 245, 247 (6th Cir.1983). On this issue, we defer to the Board's expertise on a charging party's status "if it has 'warrant [support] in the record' and a reasonable basis in law." Beverly Enterprises v. NLRB, 661 F.2d 1095, 1099 (6th Cir.1981) (quoting NLRB v. Hearst Publications, Inc., 322 U.S. 111, 131, 64 S.Ct. 851, 861, 88 L.Ed. 1170 (1944)).

The exercise of any one of the enumerated powers combined with "independent judgment" is enough to make one a supervisor....

* It has been held that the mere fact that an employee may give some instructions to others, or that he may command their respect, does not indicate that he must identify with the interest of the employer rather than the employees; the test must be the significance of his judgments and directors.... [T]he specific job title of the employer is not controlling. Courts must examine the employee's actual job responsibility, authority and relationship to management.

NLRB v. Wilson-Crissman Cadillac, Inc., 659 F.2d 728, 729-30 (6th Cir.1981) (citations omitted).

The record in this case supports the Board's finding that Jacobs did not possess sufficient indicia of supervisory status under the Act. The Company does not contend--and the record is devoid of evidence--that when acting as assistant shop supervisor, Jacobs ever hired, transferred, suspended, laid off, recalled, promoted, discharged, assigned, rewarded, disciplined, or adjusted the grievances of other employees or that he had the authority to do so. Nor does the record show that Jacobs possessed or exercised authority to direct and control the work of other employees. The record shows rather that Jacobs spent approximately thirty to forty percent of his time traveling to the facilities of the Company's customers, where he performed field maintenance on products purchased from the Company. He traveled and worked alone and thus had no employees to supervise. Although Jacobs had the discretion to make decisions and purchase materials in the course of performing this duty, his discretion was unrelated to the work of fellow employees and does not demonstrate statutory supervisory status. The record further shows that when Jacobs was not traveling, he divided his work at the plant between inventory control work and production assembly work on the Company's products. Inventory control, like the field maintenance work, was performed by Jacobs alone and did not involve exercise of supervisory authority.

The Company contends that Jacobs was a supervisor because he directed the work of other employees in the course of his assembly work on the first shift, but the record does not support this contention. The occasional instructions to others given by Jacobs were routine in nature and did not involve any use of independent judgment. Rather, as the Board found, Jacobs either passed on routine instructions from operations manager Salyers or advised other employees how to do their work based on his seniority and experience. Employees generally knew what jobs to perform each day and were all expected to help one another out when necessary. We find support in the record for the finding that the limited and routine authority exercised by Jacobs did not confer supervisory status upon him.

An additional factor supports this finding. Since only seven or eight other employees were in the shop as well as two other supervisors, Salyers and Erwin, counting Jacobs as a...