N.L.R.B. v. Chicago Metallic Corp.

• Decision Date: 17 July 1986
• Docket Number: No. 85-7458,85-7458
• Citation: 794 F.2d 527
• Parties: 122 L.R.R.M. (BNA) 3163, 104 Lab.Cas. P 11,880 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CHICAGO METALLIC CORPORATION, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 527

794 F.2d 527

122 L.R.R.M. (BNA) 3163, 104 Lab.Cas. P 11,880

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CHICAGO METALLIC CORPORATION, Respondent.

No. 85-7458.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 8, 1986.

Decided July 17, 1986.

John Walsh, Deputy Associate General Counsel, N.L.R.B., Washington, D.C., for petitioner.

Kenneth E. Ristau, Jr., William D. Claster, Gibson, Dunn, & Crutcher, Newport Beach, Cal., for respondent.

On Application for Enforcement of Orders of the National Labor Relations Board.

Before WRIGHT and NELSON, Circuit Judges, and ROSENBLATT, ^* District Judge.

EUGENE A. WRIGHT, Circuit Judge:

This application for enforcement of National Labor Relations Board orders ¹ presents the question whether one perceived by employees as a supervisor, although not satisfying the statutory criteria of 29 U.S.C. Sec. 152(11), nevertheless may be accorded supervisor status for purposes of unfair labor practice charges arising from union campaigning before a representation election. We consider the relevancy of employees' perceptions of supervisor status in the context of two Board decisions: one certified a representation election and the other prohibited the company from threatening employees with discharge for union campaigning on company time.

BACKGROUND

Chicago Metallic Corporation manufactures steel superstructure for ceilings in a plant in Vernon, California.

The Sheet Metal Workers' Union petitioned the Board for certification as the bargaining representative of the production and maintenance employees at the Vernon facility. The Company and Union agreed to an election to be held on November 5, 1981 among "[a]ll production and maintenance employees and shipping and receiving employees, including leadpersons...."

Ralph Picazzo was an assistant production leadman and a maintenance leadman. Knowing of the Union's organizing campaign, he signed a Union authorization card, attended its meetings, and talked with other employees about supporting the Union.

About ten days before the election, shipping leadman Jerry Colvard, a Union opponent, and employee Steve Kofeik told plant manager Donald Moore that Picazzo was "campaigning for the Union on company time." Four days later, Moore told Picazzo Four days before the election, Picazzo asked production helper, Brent Yankee, how he intended to vote and encouraged him to vote for the Union. Yankee did not agree with those suggestions. Picazzo threatened him, "If you tell anyone what I've told you, I'll get you, I'll kill you."

to discontinue that activity or be subject to termination.

Yankee reported the threat to leadman Patterson, who told plant manager Moore. Moore assigned a security guard to Yankee's shift.

Two or three days before the election, Yankee told Larry Colvard of Picazzo's threat and Larry told his brother, Jerry. Employees Negron and Freeland also learned of the threat.

Larry Colvard testified that Picazzo told him, "If the Union wins, [Jerry Colvard] will be gone." Written on the bathroom wall was the threat, "Death to the Dog Brothers," referring to the Colvards. Finally, he testified that Yankee's car windows had been smashed. The date of that occurrence is unclear.

Picazzo told employee Freeland that Jerry Colvard would be fired if the Union won and he warned Freeland against voting against the Union. Moore reportedly assured both Freeland and Jerry Colvard that their jobs were secure.

The election resulted in a 19-10 vote for the Union. The Company challenged only Picazzo's ballot, on the ground that he was a supervisor. On November 10, Moore discharged Picazzo for threatening and intimidating employees before and after the election.

PROCEEDINGS BELOW

The Company filed election objections on November 12. The Union then filed an unfair labor practice charge alleging that the Company had unlawfully threatened and discharged Picazzo because of his Union activities. The Company's election objections were consolidated with the unfair labor practice allegations. Hearings were held on July 13 and 14.

On January 30, 1985, the Board affirmed the ALJ's findings that the Company violated Section 8(a)(1) of the Act, 29 U.S.C. Sec. 158(a)(1), by threatening to discharge Picazzo if he continued to campaign for the Union. ² It concluded that the election objections lacked merit and certified the Union.

The Board's General Counsel alleged that the Company had violated Section 8(a)(5) and (1) of the Act, 29 U.S.C. Sec. 158(a)(5) and (1), by refusing to bargain with, or furnish information to, the Union. The Board granted the General Counsel's motion for summary judgment.

DISCUSSION

I. Election Objections

A. Supervisor Status

The enforceability of the order certifying the election hinges on Picazzo's status. We recognize that the Board has wide discretion in determining whether an employee is a supervisor. NLRB v. Island Film Processing Co., 784 F.2d 1446, 1450 (9th Cir.1986). Its determination will be followed if supported by substantial evidence and it applies the law correctly. Id.; NLRB v. Best Products Co., 765 F.2d 903, 906 (9th Cir.1985).

Section 2(11) of the Act provides:

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 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. Sec. 152(11).

The existence of any one of the enumerated powers combined with "independent judgment" suffices to confer supervisory status. Island Film, 784 F.2d at 1451; George C. Foss Co. v. NLRB, 752 F.2d 1407, 1410 (9th Cir.1985). We look to actual duties, not merely job title or classification. International Longshoremen's Association v. Davis, --- U.S. ----, 106 S.Ct. 1904, 1915 n. 13, 90 L.Ed.2d 389 (1986).

In borderline cases, it is appropriate to consider "secondary indicia" in determining whether one is a supervisor. II C. Morris, The Developing Labor Law at 1454 (2d ed. 1983). One secondary factor recognized by the Board is whether the person is perceived as a supervisor. Id.; see also Helena Laboratories Corp., 225 NLRB 257, 265 (1976) (lead lady accorded supervisor status where company held her out to employees as such), modified, 557 F.2d 1183 (5th Cir.1977); Aurora & East Denver Trash Disposal, 218 NLRB 1, 10 (1975) (foreman who claimed he was mere conduit for employer's orders to employees was supervisor where he led other employees to believe he was one); Gerbes Super Market, Inc., 213 NLRB 803, 806 (1974) (department manager was supervisor where he was regarded by fellow employees as their "boss" and was considered person in authority); Broyhill Co., 210 NLRB 288, 294 (1974) (foreman a supervisor where company placed him in a position such that employees reasonably believed that he spoke on management's behalf), enf'd, 514 F.2d 655 (8th Cir.1975).

The Supreme Court has recognized that, in election cases, acts of perceived supervisors are to be accorded the same weight as those of actual supervisors. See International Association of Machinists v. NLRB, 311 U.S. 72, 79-80, 61 S.Ct. 83, 88-89, 85 L.Ed. 50 (1940). We have such a situation here.

Whether Picazzo qualifies as a "statutory" supervisor is a close question. He assisted leadman Kreuger in maintaining proper production work schedules. He directed employees in their job performance. He was assigned no manual chores.

He wrote weekly employee evaluations and prepared and issued written disciplinary warnings and notices to employees, including suspension notices. When the merits of those notices were challenged, Picazzo referred the employee to plant manager Moore or superintendent Williams.

Moore testified that Picazzo and Kreuger had authority and discretion to take disciplinary action against employees. Picazzo's primary role in the disciplinary process was highlighted by the termination of O'Shaughnessey. Picazzo effectively recommended his firing by informing Kreuger that O'Shaughnessey had left his machine unattended repeatedly.

When instructed, Picazzo transferred employees from one assignment to another. He made overtime assignments although the actual need for overtime was decided by Williams.

Picazzo trained new employees, served as plant safety representative and attended management meetings where production and expansion issues were discussed.

On this evidence alone, we cannot say that Picazzo meets the statutory criteria of Section 2(11). But there is more. Several employees testified to their belief that Picazzo had the authority to discipline and issue written reprimands that were signed by him as "company supervisor." They considered him to be in charge of inspection, training and supervision. Their contact with management was through Picazzo.

Plant manager Moore testified that Larry Colvard and Freeland believed that Picazzo had the power to fire them. Kosiek testified that he understood that Picazzo supervised production and completed warning slips and evaluations on employees.

Significantly, the ALJ concluded:

The fact that the employees may perceive Picazzo as a supervisor when they receive the warnings from him, and see his signature on the line labelled 'Signature of Supervisor,' is not determinative because the facts herein show that Picazzo is not exercising supervisory authority.

This conclusion cannot stand. In such borderline cases where satisfaction of the statutory criteria is fairly debatable, the perception of fellow employees weighs more heavily. An employee who technically may not satisfy the statutory criteria of Section 2(11) nevertheless may be accorded supervisory status when he is perceived to be a supervisor by...