NLRB v. Elliott-Williams Co.

• Citation: 345 F.2d 460
• Decision Date: 07 April 1965
• Docket Number: No. 14687.,14687.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ELLIOTT-WILLIAMS CO., Inc., Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

345 F.2d 460 (1965)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ELLIOTT-WILLIAMS CO., Inc., Respondent.

No. 14687.

United States Court of Appeals Seventh Circuit.

April 7, 1965.

Marcel Mallet-Prevost, Asst. Gen. Counsel, Paul M. Thompson, Atty., National Labor Relations Board, Washington, D. C., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Warren M. Davison, Atty., National Labor Relations Board, for petitioner.

Jack H. Rogers, Indianapolis, Ind., for respondent.

Before CASTLE, KILEY and SWYGERT, Circuit Judges.

KILEY, Circuit Judge.

This is a petition under Sec. 10(e) of the National Labor Relations Act, 29 U.S.C. § 160(e), to enforce an order of the National Labor Relations Board issued against respondent, an Indiana manufacturer, found guilty of violating Sec. 8(a) (1) of the Act by interfering with its employees' Sec. 7 organizational rights; and of violating Secs. 8(a) (5) and (1) by refusing to recognize and bargain with the Sheet Metal Workers Union as the representative of its employees. Respondent seeks to have the order set aside. We decide the order should be enforced.

The union commenced an organizational drive among respondent's employees in July, 1962, in which it obtained signed authorization cards from twenty of respondent's twenty-four eligible employees. After a discussion of recognition of the union with respondent's president, James Elliott, on August 13, 1962, at which Elliott refused to recognize the union and suggested an election, the union representatives that same day filed a representation petition with the Board. The Board issued its Order of Election on September 13, 1962. On November 21 the Board's Regional Director dismissed the election petition in view of the filing of the complaint, basis of this proceeding, against respondent by the General Counsel.

The trial examiner, whose findings and recommendations the Board adopted,¹ found that Elliott, respondent's president, Mrs. Elliott, its vice-president, and Robert Henry, who was found to be a supervisor within the meaning of the Act, 29 U.S.C. § 152(11), engaged in coercive practices violative of Sec. 8(a) (1) of the Act. We think there is substantial evidence on the record as a whole, bearing in mind the trial examiner's responsibility to determine the credibility of witnesses, to support those findings.

The Board found that Mrs. Elliott on two occasions threatened and interrogated employees; that Elliott gave a unilateral wage increase of ten cents an hour, offered to bargain directly with employees, and offered to lend the employees money to hire a lawyer to drop the Sheet Metal Workers and form an independent union; and that Henry threatened loss of jobs and benefits, polled employees as to their preference between the Sheet Metal Workers and an independent union, and offered to bargain directly with employees. These activities began immediately after the union's demand for recognition and continued until the filing of the complaint. Taken singly or in concert, they constituted unlawful interference with the organizational rights of respondent's employees under Sec. 7 of the Act. E. g., N. L. R. B. v. Mid-West Towel & Linen Service, Inc., 339 F.2d 958 (7th Cir. 1964).

Respondent contends that the Board improperly attributed to it the statements and conduct of Henry because, it says, the finding that Henry was a supervisor is not supported by substantial evidence on the record as a whole. The term "supervisor" under Sec. 2(11) of the Act, 29 U.S.C. § 152 (11),

"* * * 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 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. Keener Rubber, Inc. v. N. L. R. B., 326 F.2d 968 (6th Cir.), cert. denied 377 U.S. 934, 84 S.Ct. 1337, 12 L. Ed.2d 297 (1964); N. L. R. B. v. Fullerton Publishing Co., 283 F.2d 545 (9th Cir. 1960); Ohio Power Co. v. N. L. R. B., 176 F.2d 385, 387, 11 A.L.R.2d 243 (6th Cir.), cert. denied 338 U.S. 899, 70 S.Ct. 249, 94 L.Ed. 553 (1949).

There is substantial evidence on the record as a whole from which the examiner could find that Henry was a supervisor within the rule announced in Ohio Power. Testimony credited by the examiner justified his findings that Henry had a separate work area in the metal shop with a desk similar to those of company officials; that he instructed, criticized, and assigned work to employees; that he was able effectively to recommend the hiring and firing of employees; and that he gave employees permission to leave work early. He was paid over $1.00 an hour more than most of the employees received and he was described by employees who testified as "metal shop foreman" and "in charge of the metal shop." The evidence shows that Henry was not merely more skilled than the others as was Curole in N. L. R. B. v. Valentine Sugars, Inc., 211 F.2d 317, 322-323 (5th Cir. 1954), nor was the authority he exercised "of a routine nature" as was that of Petti in Precision Fabricators v. N. L. R. B., 204 F.2d 567, 568-569 (2d Cir. 1953). The question of who is a supervisor is a practical matter and one of fact in which the Board, in the exercise of its primary function as fact finder, must be permitted "a large measure of informed discretion." N. L. R. B. v. Swift and Co., 292 F.2d 561, 563 (1st Cir. 1961); Keener Rubber, Inc. v. N. L. R. B., 326 F.2d 968 (6th Cir. 1964). We think that discretion was properly exercised here.

Respondent's contention that the Board is estopped to find that Henry was a supervisor because of the union's stipulation in the representation hearing, approved by the Board's Regional Director, that Henry should be included in the unit is clearly without merit. N. L. R. B. v. Montgomery Ward & Co., 242 F.2d 497 (2d Cir.), cert. denied 355 U.S. 829, 78 S.Ct. 40, 2 L.Ed.2d 41 (1957).

We think also that the record as a whole justified the examiner in concluding that "at all times since August 13, 1962" the union was the representative of a majority of respondent's employees in an appropriate unit and that "by refusing on or about August 13, 1962, and at all times thereafter" to recognize and bargain with the union as the exclusive representative of its employees respondent violated Sec. 8(a) (5). Respondent contends that there is no substantial evidence to support a finding that the union made a clear demand for recognition and bargaining. Instead, respondent argues, the union representatives gave Elliott the choice of immediate recognition or an election and Elliott chose the latter.

The testimony as to what was said at the meeting between Elliott and the union representatives on August 13 is in dispute, but it is clear that Elliott was told that a majority of his employees had signed authorization cards, that Coyle, the union representative, had them in his hand and that Elliott did not ask to see them and expressed no doubt as to the authenticity of the cards or objection to the appropriateness of the unit.² The testimony of Coyle, which the examiner obviously credited, was that after he told Elliott that ninety per cent of his employees had signed cards, Elliott refused to recognize the union. We think Coyle's testimony,³ taken as true, shows a clear demand for recognition and bargaining and a clear refusal and there is no evidence of any good faith doubt on Elliott's part of the...