NLRB v. Corral Sportswear Company

• Decision Date: 15 November 1967
• Docket Number: No. 9185.,9185.
• Citation: 383 F.2d 961
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CORRAL SPORTSWEAR COMPANY, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

383 F.2d 961 (1967)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CORRAL SPORTSWEAR COMPANY, Respondent.

No. 9185.

United States Court of Appeals Tenth Circuit.

October 4, 1967.

Rehearing Denied November 15, 1967.

Thomas R. Beech, Washington, D. C. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, George B. Driesen, Atty., N. L. R. B., were with him on the brief), for petitioner.

Karl H. Mueller, Fort Worth, Tex., (Harold E. Mueller, of Mueller & Mueller, Fort Worth, Tex., was with him on the brief), for respondent.

Before LEWIS and SETH, Circuit Judges, and BRATTON, District Judge.

LEWIS, Circuit Judge.

The National Labor Relations Board seeks enforcement of its order requiring the respondent Company to bargain with the Union¹ earlier certified by the Board as the collective bargaining agent of the Company. The Company's refusal to bargain after certification is admitted and constitutes a violation of section 8(a) (5) and (1) of the National Labor Relations Act, 29 U.S.C. § 158, unless, as the Company here contends, the Board's certification was premised upon an invalid election.

The Corral Sportswear Company is engaged in the manufacture of coats and jackets with a plant located at Ardmore, Oklahoma. In August of 1964, the Union filed a petition for an election among the Company's employees. Thereafter, the Union and Company entered into a stipulation for Certification Upon Consent Election, which was approved. At the time of the election in question, the Company had 96 employees, of whom 76 were allowed to vote. In October of 1964, the Board conducted an election at which 71 unchallenged ballots were cast, 36 for the Union, and 35 against. During the voting, the Company challenged the ballot of a set-up department employee, and the Union challenged the ballots of two line-girls, a finishing department employee, and the patternmaker. Since the 5 challenged ballots were sufficient in number to affect the result of the election, an investigation was conducted pursuant to section 102.69 of the Board's Rules and Regulations.²

Upon recommendation of the Regional Director, the Board ordered a hearing to resolve the challenges. The Hearing Examiner, after hearing the evidence, sustained all 5 challenges. The Company's challenge, and 3 of the 4 union challenges were sustained on the grounds that the employees in question were "supervisors" within the meaning of the Act.³ Under the Act, supervisors are not within the shelter of the organizational provisions to bargain collectively. NLRB v. Edward G. Budd Mfg. Co., 6 Cir., 169 F.2d 571, cert. denied, Foreman's Ass'n of America v. Edward G. Budd Mfg. Co., 335 U.S. 908, 69 S.Ct. 411, 93 L.Ed. 441 (1949). The remaining employee challenged by the Union was the wife of the plant superintendent who did all her work at home rather than at the plant and was found by the Hearing Examiner to lack sufficient community of interest with the other employees in the plant to warrant her inclusion in the bargaining unit.

Based on the one vote majority, the Board certified the Union and denied the Company's petition for reconsideration.

The Company first resists enforcement of the Board order through claim of error in the determination that the Union's challenges were valid as leveled against supervisory employees.⁴ Although judicial review of this supporting finding by the Board is proper, Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456, we must recognize "* * * that of necessity a large measure of informed discretion is involved in the exercise by the Board of its primary function to determine those who as a practical matter fall within the statutory definition of a `supervisor.'" NLRB v. Swift & Co., 1 Cir., 292 F.2d 561, 563. So viewed we find ample support in the record sustaining the Board's action in refusing to count the votes of those employees challenged by the Union as supervisors.

It is well settled that section 2(11), cited in full in footnote #3, supra, is to be read in the disjunctive and the existence of any one of the indicia listed is sufficient to support a finding that the one possessing it is a supervisor. E.g., Warner Company v. NLRB, 3 Cir., 365 F.2d 435; NLRB v. Edward G. Budd Mfg. Co., supra; NLRB v. Elliott-Williams Co., 7 Cir., 345 F.2d 460. The record shows that the employees in question performed one or more of the tasks which qualify them for supervisor status. They did on occasion exercise authority which was more than of a merely routine or clerical nature and required the use of independent judgment. The functions of the challenged employees in question were almost identical to those of certain "floorladies" in the recent case of Brewton Fashions, Inc. v. NLRB, 361 F.2d 8, cert. denied, 385 U.S. 842, 87 S.Ct. 95, 17 L.Ed.2d 75 (1966), where the Board's determination that said floorladies were supervisors was upheld by the Fifth Circuit.⁵ We hold the Board's findings that the challenged votes were those of supervisory employees are supported by substantial evidence.

The Company also contends that the election was invalid because, after two of the Union's challenges were allowed, four other unchallenged votes became invalid as a matter of law and consequently the result of the election does not necessarily reflect the will of the employees eligible to vote. This question has some aspects of first impression and requires more particularized consideration.

Prior to the election the Company prepared and submitted a list of its employees which, after the parties had stipulated as to the ineligibility of certain employees to vote because of their supervisory duties, contained a total of 76 voters — 1 janitor, 1 patternmaker, 11 cutters, 3 set-up department employees, 3 finishing department employees, 2 shipping department employees, 6 linegirls, and 49 employees performing other work. All voted, as earlier indicated, with 5 challenges made. The Company challenged Pat Wilson, a set-up department employee, as a supervisor; the Union challenged Velma Trent, a finishing department employee, as a supervisor; the Union challenged Myrtha Heartsill and Gladys Roberts,⁶ linegirls, as supervisors; and the Union challenged Ruth Wills, the patternmaker.

At a pre-election conference the Union and the Company apparently made an effort to set the ground rules for the determination of eligibility of voters. Our present record abstracts testimony of an occurrence at the conference through the examination by Union counsel of Mr. Simpler, the Company plant manager:

Q. Could it be, Mr. Simpler, that the reason you challenged Pat Wilson or had her challenged at the polls was because you knew she was a strong union sympathizer? A. I definitely — no, sir, that is not true, positively not true, because I did not know that she was a strong sympathizer at that time.

Q.

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