National Labor Relations Bd. v. Parma Water Lifter Co., 13770.

• Decision Date: 13 April 1954
• Docket Number: No. 13770.,13770.
• Parties: NATIONAL LABOR RELATIONS BOARD v. PARMA WATER LIFTER CO.
• Court: U.S. Court of Appeals — Ninth Circuit

211 F.2d 258 (1954)

NATIONAL LABOR RELATIONS BOARD v. PARMA WATER LIFTER CO.

No. 13770.

United States Court of Appeals Ninth Circuit.

March 8, 1954.

Rehearing Denied April 13, 1954.

George J. Bott, Gen. Counsel, David P. Findling, Associate Gen. Counsel, A. Norman Somers, Asst. Gen. Counsel, Marcel Mallet-Prevost, Edmond F. Rovner, Washington, D. C., Melton Boyd, Attys., N.L.R.B., Seattle, Wash., for petitioner.

Eli A. Weston, Boise, Idaho, for respondent.

Before STEPHENS, BONE and ORR, Circuit Judges.

BONE, Circuit Judge.

This case is before us on the petition of the National Labor Relations Board for enforcement of an order which it has issued against respondent. The order was based upon findings that respondent violated Section 8(a) (1) and (5) of the National Labor Relations Act, as amended, 29 U.S.C.A. § 158(a) (1, 5), by refusing to bargain with International Association of Machinists, Local Lodge No. 1491 (herein "the Union") after a majority of the employees had designated the Union as their bargaining representative; and that respondent interfered with, restrained and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, 29 U.S.C.A. § 157, in violation of Section 8(a) (1) of the Act, by making threats against and promises to the employees and engaging in other acts designed to dissuade them from adherence to the Union and to interfere with their right of collective bargaining. In its decision the Board adopted in full the findings and conclusions of the Trial Examiner. Its order requires respondent to cease and desist from the unfair labor practices found, to bargain with the Union on request, and to post the usual notices.

The Union's Majority

Respondent manufactures farm and industrial machinery at its plant in Parma, Idaho. On February 3, 1952, 15 of respondent's 19 production and maintenance employees who, concededly, constitute an appropriate bargaining unit, signed Union authorization cards. On the evening of February 4 a meeting was held at the home of one of the employees. Respondent's production manager, Lee Rose, and a foreman, Joe Gilmore, attended the meeting. At the meeting a secret ballot was taken and the employees present selected the Union as their bargaining representative by a vote of 14 to 1.

On the basis of the above undisputed facts the Board concluded that the Union was duly designated as the bargaining representative of the employees. Respondent attacks this finding on several grounds. Respondent first contends that since Wayne Morris, one of the employees who was active in the Union's organizational drive, was a "supervisor" within the meaning of Sec. 2(11) of the Act,¹ his Union activity constituted management interference with or coercion of the employees in choosing the Union as bargaining agent, with the result that the Union did not have an "uncoerced majority" of the employees.

We pass the question whether a supervisor's union activity can with sense be deemed employer interference with the employees' organizational efforts when, as in the instant case, such activity is carried on in the face of strong and quite open Union hostility on the part of the supervisor's superiors. On first impression it would seem that the supervisor acts as the antagonist and not as representative of the employer in such circumstances. However, the Board met respondent's contention with a finding that Morris was not a "supervisor" and it is upon that finding that petitioner here relies. We shall therefore confine our attention to that question.

Morris worked in the lathe shop with one other machinist and an apprentice. The lathe shop was under the direct supervision of Manager Rose. Morris testified that it was his "understanding" that in the absence of Rose he was in charge of the lathe shop; that he sometimes assigned work to the other two employees in the shop, but that often the work was turned over to them without his intervention; that Rose or respondent's president, Lloyd Nelson disciplined the workers in the shop; that he (Morris) did not discipline the other two men, and did not know if he had authority to do so; that he did not and could not hire, fire or promote employees or recommend such action. There was evidence that Morris's authority to "assign" work was exercised by suggestions to the other two men to do certain tasks when necessary to get work out on time. The other two employees often made similar suggestions to Morris. Morris did not consider himself a supervisor, and neither did the other two employees who worked with him. Morris never participated in meetings of supervisory personnel or attended policy-making conferences at the plant.

Morris's status was about the same as that of the employee Tancrell in the case of N. L. R. B. v. Whitin Machine Works, 1 Cir., 204 F.2d 883, and involved less responsibility than that held by the "room boss" or "leadman," Petti, in the case of Precision Fabricators v. N. L. R. B., 2 Cir., 204 F.2d 567, both of whom were held not to be "supervisors" within the meaning of Sec. 2(11) of the Act. He did the work of an ordinary production employee and had no authority to direct work when Manager Rose was present. Cf. N. L. R. B. v. Quincy Steel Casting Co., 1 Cir., 200 F.2d 293, 296. And the exercise of the limited authority he had in Rose's absence appears to have been of a "merely routine or clerical nature," not requiring the "use of independent judgment." Sec. 2(11) of the Act; cf. N. L. R. B. v. Whitin Machine Works, supra, 204 F.2d at page 886; Precision Fabricators v. N. L. R. B., supra. We think the Board did not err in finding that Morris was not a "supervisor" within the meaning of Sec. 2(11) of the Act.

Respondent next contends that the Union secured its majority by "pressure," and "persuasion or coercion or unreasonable promises," but there is not a shred of evidence to support the contention. Finally, it seems to be urged that a Union is entitled to recognition as bargaining representative only after a Board-conducted representation election. It is well settled, however, that the designation may be made by other means, one of the most common of which is the signing of Union authorization cards. N. L. R. B. v. Trimfit of California, Inc., 9 Cir., 211 F.2d 206; N. L. R. B. v. W. T. Grant Co., 9 Cir., 199 F.2d 711-712; Zall v. N. L. R. B., 9 Cir., 202 F.2d 499, 501; Motorola, Inc. v. N. L. R. B., 9 Cir., 199 F.2d 82, 83. In this case there was, in addition to the signing of the authorization cards, the informal poll of the employees on the evening of February 4, 1952, in which a majority of the employees voted for the Union as bargaining agent. We find no error in the Board's finding that the Union was effectively designated as the bargaining representative of the employees.

The Unfair Labor Practices

The facts with respect to the alleged unfair labor practices of respondent, as found by the Board on the basis of substantial evidence, were as follows. As noted above, Rose and Gilmore, respondent's production manager and foreman, respectively, attended the meeting on February 4, at which 14 of the employees voted for the Union as their bargaining agent. In respondent's plant the next day, February 5, Rose told one of the employees that President Nelson was willing to grant a pay raise if the employees would "drop this Union thing," and that "before he Nelson will sign the Union contract he will sell the shop and go out of business." Rose told another employee to throw away his Union button. Gilmore stated to an employee that Nelson was angry and had threatened to sell the plant. A petition was circulated among the employees. Rose dictated the heading of the petition, which read: "We the undersigned wish to be released from all association with the IAM Union." As the petition was being circulated, Rose told one employee that "If your job means anything to you go through and sign" the petition. One of the employees testified that he signed the petition because he had heard that the plant would be closed if the Union was successful, and that a wage raise would be granted if the Union was defeated. Eleven of the 19 employees signed the petition.

On the same day, February 5, the Union sent, and respondent received, a registered letter giving notice that the Union represented the employees and requesting a bargaining conference. On February 8, without consulting the Union, respondent posted a notice in the plant that the work-week was being reduced from 44 to 40 hours. The following day, February 9, Nelson replied to the Union's request for a bargaining conference. In his letter Nelson stated that his attorney had received the February 5 withdrawal petition signed by 11 employees, and that in view thereof he did not believe the Union represented the employees. Nelson added that he would agree to an election to determine the question of representation. A week later, on February 16, Nelson, without consulting the Union, announced a wage increase of from 10 to 26 cents an hour. The Union filed unfair labor practice charges with the Board on February 27.

These facts support the Board's conclusions that respondent violated Secs. 8(a) (1)...