National Labor Relations Board v. Leland-Gifford Co., 4654.
| Decision Date | 22 December 1952 |
| Docket Number | No. 4654.,4654. |
| Citation | 200 F.2d 620 |
| Parties | NATIONAL LABOR RELATIONS BOARD v. LELAND-GIFFORD CO. |
| Court | U.S. Court of Appeals — First Circuit |
Maurice Alexandre, Washington, D. C. (George J. Bott, Gen. Counsel, David P. Findling, Associated Gen. Counsel, A. Norman Somers, Asst. Gen. Counsel, and Marcel Mallet-Prevost, all of Washington, D. C., on brief), for petitioner.
Ernest L. Anderson, Worcester, Mass., for respondent.
Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.
The principal issue presented by this petition for enforcement of an order of the National Labor Relations Board is whether thirteen individuals were employed by the Respondent as supervisors as defined in § 2(11) of the National Labor Relations Act. 49 Stat. 449 (1935) as amended by the Labor Management Relations Act, 1947, 61 Stat. 138, 29 U.S.C.A. § 152(11), during the period of time covered by a complaint alleging an unfair labor practice on the part of the Respondent in refusing to bargain with the duly certified bargaining representative of its production and maintenance employees except, inter alia, those having supervisory status.1
The question arises on the following evidentiary facts as to which there is little if any dispute.
The Respondent has been engaged for many years in the business of manufacturing machine tools, its primary business being the manufacture of "sensitive" drilling machines. It does not manufacture any stock models, but builds specially designed drilling machinery on individual orders from its customers. Thus it manufactures a great variety of machines, some small and others large, many weighing several tons. The Trial Examiner found that because of the peculiar nature of its product, the Respondent's business "is always in a state of flux, one month up and the next month down, all depending upon the receipt of orders."
In order to accommodate itself to the more or less unpredictable fluctuations in its business, the Respondent has for a great many years organized its plant on the basis of numerous small, pretty much self-sufficient, but nevertheless interdependent departments, each in charge of an experienced man, who is carried on the payroll as a "foreman," or "assistant foreman." During the war years, when the Respondent was employing some 500 men in its machine tool plant, it had 62 departments, and the Board found that the person in charge of each one of them was in fact a "supervisor." After the war the Respondent's business decreased, and at various times from 1945 to 1949 its production and maintenance force was reduced until in the latter year it reached a low point of 100 to 125 men, and the number of departments in the plant shrank to between 25 and 30. At the time of the hearing herein, however, its force in the unit involved had increased to about 300 men.
As a result of the post-war reduction in force and the elimination of departments, some former department heads were transferred to routine production work in another department. Of the departments which remained in the Respondent's plant some were reduced to one man, and that the former supervisor, who by working as an ordinary production man was able to do all the work of his department. Other departments were reduced to the former supervisor and one to a few underlings, and in those cases the former full-time supervisor divided his time as necessary between working as a production man himself and supervising the man or men remaining under his direction and control. Nevertheless, in spite of the nature of the work being done by the admittedly former supervisors during the period of maximum reduction in force, the Respondent kept those men on under their old titles and, apparently, at their old rates of pay. The question here is as to the status of thirteen2 of these men who remained in their old departments during the time covered by the complaint and who during that time had in some instances none and in other instances only a few men under them.
The question is presented in this way. In 1943, as the result of a secret Board election, United Steel Workers of America, CIO, was certified by the Board as the bargaining representative of all the production and maintenance employees in the Respondent's plant except, among others, "supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action." The Board agent in charge of that election excluded all persons classified by the Respondent as "foremen" and "assistant foremen" from the list of eligible voters, and neither the Union nor the Respondent objected. Thus it would seem, although neither the Trial Examiner nor the Board made a categorical finding on the point, that none of the thirteen men here involved voted at that election, for at that time all of them were carried on the Respondent's rolls as either "foremen" or "assistant foremen," some having held their titles for over thirty years.
Following certification, the Union and the Respondent entered into a series of contracts. And at the conferences preceding each contract the Union requested information concerning individual rates of pay, job classifications, and rate ranges. Later, after the post-war reduction in the Respondent's labor force, the Union also asked the Respondent to "clarify the bargaining unit," asserting that the Union ought to be recognized as the representative of those "foremen" and "assistant foremen" who were then regularly engaged in production work in departments which contained no individuals which the Respondent classified as "employees." The Respondent offered the Union a list of job classifications and rate ranges, but it refused to disclose individual rates of pay or the names of employees in the various job classifications on the ground, primarily, that such matters were of a personal and confidential nature and dissension in its plant would result if the Respondent disclosed that information. The Respondent said that it could not bargain with respect to the make-up of the bargaining unit because that unit had been fixed by the Board at the time of the election and only the Board could change it.
Nevertheless, in spite of the Respondent's refusal to bargain with respect to the above matters, annual contracts were signed by the Respondent and the Union in 1944, 1945, 1946, and 1947, and a two-year contract was signed in 1948. In the summer of 1950, during negotiations for another contract, the matters at issue over the years between the Respondent and the Union came to a head when the Union in August filed a charge against the Respondent alleging the latter's refusal to bargain collectively with the Union "concerning certain employees within the bargaining unit." However, notwithstanding the Union's charge, another annual contract was signed in September 1950, and, discussions of the disputed issues continuing, the Union filed an amended charge in November, adding to its former one the charge that since on or about May 16, 1950, the Respondent had refused to bargain with the Union in that it had refused to furnish the Union with "payroll data concerning employees within the bargaining unit." The General Counsel on behalf of the Board issued a complaint on these charges alleging that "On or about May 16, 1950, and at all times thereafter, Respondent did refuse and continues to refuse to bargain collectively with the Union as the exclusive representative" of the employees in the unit in violation of § 8(a)(1) and (5) of the Act, 29 U.S.C.A. § 158(a) (1, 5). Typical administrative procedures followed resulting in due course in the order of the Board couched in the usual remedial terms directing the Respondent to bargain collectively with the Union by disclosing the individual wage rates of employees in the Unit in which it included the thirteen men with whom we are concerned. This is the order we are asked to enforce in the present proceeding.
The Trial Examiner saw the question of the Respondent's duty to give the Union data as to the individual wages of its employees in the unit as separate and distinct from the question of the Respondent's duty to bargain with the Union as to the composition of the unit. And he resolved both questions against the Respondent. The Board, however, took a different approach but reached the same conclusion. Believing that by "segregating the questions" the Trial Examiner "may have broadened the issues" beyond those presented by the record, it said:
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