National Labor Relations Bd. v. Quincy Steel Cast. Co., 4662.
Citation | 200 F.2d 293 |
Decision Date | 29 December 1952 |
Docket Number | No. 4662.,4662. |
Parties | NATIONAL LABOR RELATIONS BOARD v. QUINCY STEEL CASTING CO., Inc. |
Court | United States Courts of Appeals. United States Court of Appeals (1st Circuit) |
Robert E. Greene, Boston, Mass. (George J. Bott, General Counsel, David P. Findling, Associate Gen. Counsel, A. Norman Somers, Assistant Gen. Counsel, Samuel M. Singer and Julian S. Perlman, all of Washington, D. C., on brief), for petitioner.
Julius Kirle, Boston, Mass., for respondent.
Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.
This petition by the National Labor Relations Board seeks enforcement of a Board order predicated upon a finding that respondent, Quincy Steel Casting Co., Inc., has refused to bargain with the International Molders and Foundry Workers Union of North America, AFL, Local 106, the certified representative of its employees, in violation of § 8(a) (1) and (5) of the National Labor Relations Act, as amended, 61 Stat. 136, 29 U.S.C.A. § 158(a) (1, 5). There is no doubt that respondent has refused to recognize and bargain with the Union. Respondent has consistently maintained the position that it is under no duty to do so, because the Union was improperly certified as the bargaining representative of its employees. As the case comes to us, the only question to be decided is whether the Board's finding that two of the company's employees, Francis W. Green and John A. Dunn, were not supervisors within the meaning of § 2(11) of the Act, 29 U.S. C.A. § 152(11), and hence were entitled to vote in the election conducted by the Board, should be sustained as "supported by substantial evidence on the record considered as a whole". § 10(e), 29 U.S.C.A. § 160(e).
In a representation proceeding instituted by the Union, the Board, on December 18, 1950, issued its Decision and Direction of Election, finding that all the production and maintenance employees in respondent's plant in Quincy, Massachusetts, excluding office, clerical and professional employees, guards and supervisors, constituted a unit appropriate for collective bargaining, and directing that an election be conducted within thirty days among the employees of the unit, under the supervision of the Board's Regional Director. The company has at no time challenged the appropriateness of the unit as thus defined by the Board.
Thereafter, on January 17, 1951, the election was held. Prior thereto, in a letter to the Boston Regional Office of the Board, the attorney for respondent had supplied an "alphabetical list by departments of all the employees in the alleged appropriate unit appearing on the current payroll with their job titles." The list contained the names of 28 employees, including J. A. Dunn, described as "coremaker and bench pouring boss", and F. W. Green, described as "floor molder and assistant foreman".
During the course of the voting the company challenged the right of Green and Dunn to vote on the ground that they were supervisors and therefore excluded from the bargaining unit. In accordance with Board procedure, the agent conducting the election permitted Green and Dunn to vote, and duly impounded their challenged ballots. At the conclusion of the election, the agent issued a tally of ballots which showed that 27 employees had voted, out of 28 eligible voters, that 12 unchallenged ballots had been cast in favor of the Union, and 13 unchallenged ballots against it, with the two challenged ballots unopened and uncounted.
Since the challenged ballots were sufficient in number to affect the result of the election, the Regional Director, after investigation and in accordance with the Board's rules and regulations, issued his Report on Challenges on February 13, 1951, wherein he concluded that neither Green nor Dunn were "supervisors" and recommended that their ballots be opened and counted. Upon consideration of the company's exceptions to this report, the Board on March 26, 1951, issued its Supplemental Decision and Direction, in which it adopted the conclusions and recommendations of the Regional Director and ordered that the challenged ballots be opened and counted. Respondent promptly moved for reconsideration and for a formal hearing on the matter, but this request was denied by order of the Board issued April 10, 1951, "for lack of merit, and for the reasons set forth in the Supplemental Decision and Direction of March 26, 1951." Thereafter, the Regional Director opened and counted the challenged ballots and issued a revised tally, disclosing that of the 27 ballots cast, 14 were in favor of the Union and 13 against. Accordingly on April 26, 1951, the Regional Director, by authority of and on behalf of the Board, certified the Union as the exclusive bargaining representative of all the employees in the designated unit.
After the company had explicitly refused to recognize and bargain with the certified Union, the Union filed with the Board a charge of unfair labor practices, pursuant to § 10(b) of the Act. There followed a complaint against respondent, issued June 15, 1951, by the General Counsel of the Board.
The complaint came on for hearing before a Trial Examiner, at which hearing testimony was received at length as to the facts bearing on the issue whether Green and Dunn should have been included in the bargaining unit or excluded on the ground that they were "supervisors".
On July 31, 1951, the Trial Examiner issued his Intermediate Report and Recommended Order finding that the contested ballots had been properly counted, since Green and Dunn were not supervisors within the meaning of § 2(11) of the Act, finding further that respondent had refused to bargain with the certified Union, and recommending that the Board issue an order against respondent in the usual terms.
Respondent filed exceptions to the Intermediate Report and a brief in support thereof. Upon consideration of the Intermediate Report, the exceptions, and brief, and the entire record of the case, the Board on December 3, 1951, issued its Decision and Order adopting the findings, conclusions, and recommendations of the Trial Examiner. This is the order which the Board seeks, in the pending petition, to have us enforce.
Section 2(3) excludes from the definition of the term "employee" "any individual employed as a supervisor". Section 2(11) defines "supervisor" as follows:
"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."
"This section is to be interpreted in the disjunctive, and the possession of any one of the authorities listed in § 2(11) places the employee invested with this authority in the supervisory class." Ohio Power Co. v. NLRB, 6...
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