National Lab. Rel. Bd. v. Southern Bleachery & Pr. Wks.
| Decision Date | 29 July 1958 |
| Docket Number | No. 7654.,7654. |
| Citation | 257 F.2d 235 |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SOUTHERN BLEACHERY & PRINT WORKS, Inc., Respondent. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Fannie M. Boyls, Attorney, National Labor Relations Board, Washington, D. C. (Jerome D. Fenton, General Counsel, Thomas J. McDermott, Associate General Counsel; Marcel Mallet-Prevost, Asst. General Counsel, and Robert E. Manuel, Attorney, National Labor Relations Board, Washington, D. C., on brief), for petitioner.
Frank A. Constangy, Atlanta, Ga. (M. A. Prowell, Mildred McClelland, and Fred W. Elarbee, Jr., Atlanta, Ga., on brief), for respondent.
Warren Woods, Washington, D. C., for Machine Printers Beneficial Ass'n, Charging Party and amicus curiae.
Before SOBELOFF, Chief Judge, SOPER, Circuit Judge, and BARKSDALE, District Judge.
This petition for enforcement of an order of the Labor Board turns on the Board's determination that certain machine printers of the Southern Bleachery and Print Works, Inc. were not supervisors but employees of the company. The specific charges against the company are that it violated § 8(a) (1) (5) of the Labor Management Relations Act, 29 U.S.C.A. § 158(a) (1) (5), by refusing to bargain with the Machine Printers Beneficial Association which had been certified as the bargaining representative of the machine printers, and also that the company violated § 8(a) (1) (3) and (4) of the statute by discharging certain machine printers for giving testimony against the company in the representation case.
On March 21, 1955, the union petitioned the Board for an election in a unit of workers designated generally as machine printers, including journeymen and apprentices. The company contended in opposition that the machine printers had been made supervisors on June 5, 1950, and the Board sustained the contention and dismissed the petition. Thereafter the Board, upon the union's petition, reconsidered its action and after oral argument reversed its prior decision, one member dissenting, and ordered an election, which was held April 10, 1956, and resulted in a majority of 32-to-13 in favor of the union. Thereafter the Board certified the union as the bargaining representative of the employees and the union requested the company to bargain with it in regard to wages, hours and conditions of employment; but the company refused to bargain on the ground that the machine printers are supervisors and thereupon the proceeding now before us was instituted.
Section 2(3) of the Act excludes from the definition of the term "employee," and therefore from the protection of the Act, "any individual employed as a supervisor." Section 2 (11) of the Act defines the term "supervisor" as:
"* * * 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."
Each printing machine is run by a crew of four men including a machine printer who stands in front of the machine and is primarily responsible for the production and quality of the printed cloth and exercises some authority over his less skilled helpers. They include a back tender who stands behind the machine, a grey tender who stands at the side and a can boy for every two machines. The issue of fact is whether each machine printer is a supervisor of the three helpers in his unit, or merely a lead man of greater skill and authority than his helpers but without supervisory authority as defined in the statute.
There were approximately forty machine printers, of whom thirty worked in three shifts in the print works, and ten who worked in two shifts in the shirting print in the bleachery of the company. In addition to the printers, whose status as supervisors is in dispute, there are eleven supervisors, including an overseer, three assistant overseers, five section foremen and two floormen in the print room; and six supervisors in the shirting print, including a shirting supervisor, two assistant overseers and three floormen. The total complement of the print room is one hundred sixteen, of which eleven are admittedly supervisors and thirty more are asserted by the employer to be supervisors. The total complement of the shirting print is forty-six, of which six are admitted to be supervisors and ten others are asserted to be such by the employer.
It is conceded that until June 1950, the machine printers were not supervisors. Prior thereto, in 1943, 1948 and 1949, elections had been held in a unit of machine printers but no bargaining representative had been selected in any of these elections. In June 1950, the employer changed the job designation of machine printer to that of unit supervisor and gave the printers a list of ten instructions entitled "Basic Responsibility of Unit Supervisor". These related to the responsibility of the printer as to the delivery of maximum production with satisfactory quality, correct printing of the cloth, decisions as to material requirements and mechanical replacements of the unit and instructions tending more clearly to show a supervisory status within the terms of the Act, including the responsibility to check on the time cards of the workers in his unit, to recommend their hiring and firing and rate increases, and to take necessary steps to report, reprimand or recommend disciplinary actions or infraction of company rules. In addition, the employer changed the method of computing the printers' pay by increasing their weekly base pay by $25.00 in lieu of a lower base pay and production bonus. They continued to receive a guaranteed base pay plus time and one-half for time over 40 hours a week, an arrangement not applicable to admitted supervisors on straight salary.
The crucial question for decision is whether the status of the machine printer was actually changed to such an extent on June 5, 1950, that he was transformed from a skilled worker, charged of necessity with a measure of control over his helpers on the unit, to a unit supervisor clothed with the characteristic authority described in the Act as not merely of routine or clerical nature, but requiring the use of independent judgment. The Board found this to be a nice question, as appears from its change from its earlier decision in favor of the employer's contention to a contrary decision after further examination of the evidence. Before June 5, 1950, as well as after, the operation of a machine required the constant attention and much the greater part of the time of the head of the unit. He was obliged to check the quality of the cloth printed on his machine and to exercise the customary control of an experienced workman over his less skillful helpers. Since June 5, 1950, the printers have had the additional duty of initialing pay increase slips, time cards and material requisition slips, a function formerly performed by the overseers or assistant overseers. Testimony was given by certain unit supervisors at the hearing that since the institution of the new system in 1950 they had recommended pay increases for members of their crew which were honored by the management, and there was additional testimony that no pay increase was given to a member of any crew without the unit supervisor's approval. Similar testimony was given in regard to the filling of vacancies and in regard to the removal of an unsatisfactory employee. The evidence also showed that the pay of the helpers on the machines was computed upon time cards initialed by the machine printers and that requisitions for supplies were also initialed by them.
On the other hand, there was testimony tending to show that the additional duties imposed upon the machine printers on June 5, 1950, with respect to the initialing of increased pay slips, time cards, etc., were for the most part routine matters, especially as increases in pay, although not completely automatic, were usually allowed after a set period of time on the job. There was also testimony by five of the machine printers that although they had initially recommended that employees be hired, fired, given merit increases, promoted or demoted since 1950, the slips were signed by them routinely without the exercise of independent judgment and in some instances without...
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