N.L.R.B. v. J.K. Electronics, Inc., 78-1267

• Decision Date: 16 February 1979
• Docket Number: No. 78-1267,78-1267
• Citation: 592 F.2d 5
• Parties: 100 L.R.R.M. (BNA) 2764, 85 Lab.Cas. P 11,107 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. J. K. ELECTRONICS, INC., d/b/a Wesco Electrical Company, Respondent, United Electrical, Radio and Machine Workers of America, (UE), Intervenor.
• Court: U.S. Court of Appeals — First Circuit

Page 5

592 F.2d 5

100 L.R.R.M. (BNA) 2764, 85 Lab.Cas. P 11,107

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. J. K. ELECTRONICS, INC., d/b/a Wesco Electrical Company, Respondent,

United Electrical, Radio and Machine Workers of America,

(UE), Intervenor.

No. 78-1267.

United States Court of Appeals, First Circuit.

Argued Dec. 5, 1978.

Decided Feb. 16, 1979.

Norman Moscowitz, Atty., Washington, D. C., with whom John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, and Janet C. McCaa, Atty., Washington, D. C., were on brief, for petitioner.

Brian E. Hayes, with whom Skoler & Abbott, P.C., Springfield, Mass., was on brief for respondent.

Robert Z. Lewis, Sarah R. Wunsch, and Leonard D. Polletta, New York City, on brief, for intervenor.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

The employer, J. K. Electronics, Inc., contests the determination of the National Labor Relations Board that the group leaders in its plant are supervisors within the meaning of 29 U.S.C. § 152(11). ¹

The Board's ruling rested on its finding that the group leaders have the power to effectively recommend disciplinary action in the areas of rule infractions and low production. ² Group leaders, according to their job description, are responsible for coordinating production activities within their assigned sphere. Pursuant thereto, they are to "report any problems impeding (their) ability to carry out (their) function to the Shift Supervisor." Specifically, they have the responsibility to "(m)ake recommendations on all new personnel to the Shift Supervisor," to "(r)eview individual production tabulations on a daily basis and report substandard totals to Shift Supervisors," to "(r)eport all personnel and production problems" and "insubordination incidents" to the shift supervisor. As, according to the Board, the group leaders make recommendations in the discharge of these duties that result in verbal and written warnings to employees, they have the power effectively to recommend disciplinary action. This determination was at odds with that reached by the ALJ who characterized the duties set forth in the job description as being those of a "leadman with little or no authority and with minimal discretion." Noting without further elaboration that "there appeared to be independent supervisory investigations made" of the group leaders' reports concerning employees, the ALJ concluded the group leaders' recommendations were not sufficiently effective to render them supervisors within the meaning of 29 U.S.C. § 152(11).

The Board, while explicitly deferring to the ALJ's resolutions of credibility, observed that independent supervisory investigations were not always conducted. In fact, in many of the disciplinary instances testified to, it is not clear from the record to what extent, if any, supervisors actually independently investigated the matters in question, though in some cases it is clear from the nature of the event that opportunity for independent assessment was severely limited and deference of necessity had to have been accorded to the group leaders' reports. This is true of an incident of an employee's swearing at a group leader. The swearing was not witnessed, the employee quit on the spot, and the supervisor adopted the group leader's report of the event in the supervisor's recommendation that the employee not be rehired. Similarly, in those instances of repeated infractions of safety rules and of excessive talking during production time which resulted in written warnings, it is reasonable to infer that reliance was placed on the group leaders' daily observations of the offending employees. The text of the warnings supports this inference.

We agree with the Board that what is involved in this case is not contrary resolutions by the Board and ALJ of conflicting factual predicates. Rather, the Board has drawn from essentially the same factual premises as the ALJ different inferences concerning the effectiveness of the group leaders' recommendations. In these circumstances, for the purpose of our review, the significance of the disagreement between the Board and the ALJ is diminished, and "the Board's special understanding is at least as important an aid in interpreting the facts as is the ALJ's immersion in the case." NLRB v. Matouk Industries, Inc., 582 F.2d 125, 128 (1st Cir. 1978).

Determining the effectiveness of the group leaders' recommendations on disciplinary matters is basically a factual, not a legal matter. Stop & Shop Companies, Inc. v. NLRB, 548 F.2d 17, 19 (1st Cir. 1977). Even if reasonable minds could also go the other way, we must uphold the Board if its ultimate finding is supported by substantial evidence on the record as a whole. Universal...