NLRB v. FLORIDA AGRICULTURAL SUPPLY COMPANY, ETC.
| Decision Date | 12 March 1964 |
| Docket Number | No. 20728.,20728. |
| Citation | 328 F.2d 989 |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. FLORIDA AGRICULTURAL SUPPLY COMPANY, DIVISION OF PLYMOUTH CORDAGE COMPANY, Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Allen M. Hutter, Atty., N.L.R.B., Marcel Mallet-Prevost, Asst. Gen. Counsel, N.L.R.B., Dominick L. Manoli, Associate Gen. Counsel, N.L.R.B., Washington, D. C., for petitioner.
Arthur W. Milam, Jacksonville, Fla., for respondent.
Before TUTTLE, Chief Judge, and JONES and BELL, Circuit Judges.
This case comes to us on a petition for enforcement of a Board Order against Respondent company. There is no issue as to jurisdiction. On August 17, 1962, after a Board conducted election, the Union was certified but since September 21, 1962 the Company has refused to bargain about the terms and conditions of employment of William Walton and Robert Goolsby, contending that they were supervisors and not properly within the bargaining unit. The Board found that they were not supervisors when performing duties as mechanics during a portion of each year, that the refusal to bargain was a violation of § 8(a) (5) and (1) of the Act, 29 U.S.C.A. § 158(a) (5) and (1), and ordered the company to cease and desist from its refusal to bargain.1
The undisputed facts are that Walton and Goolsby were hired as mechanics with the understanding that at some time during the months from April to August, the peak work season of the company, they would serve as supervisors as that term is defined in the Act. 29 U.S.C.A. § 152(11). They were the only mechanics in the employ of the company. The total time spent as supervisors during this period was three months. During the other nine months of the year they worked as mechanics doing general maintenance work, electrical millwright work, and electrical and acetylene welding under the supervision of Foreman Fouracre. Also, they spent about five percent of this nine months period as substitute supervisors for Mr. Fouracre when he was ill or on vacation. Throughout the year they attended monthly supervisor meetings. They received the pay of skilled mechanics which was in line with the pay of foreman and considerably more than that received by rank and file employees. They received three weeks vacation annually as did all the supervisors, and over half of the rank-and-file employees. Upon these facts the Board held that they should be included in the bargaining unit during the nine months when they were functioning as mechanics, and thus availed of collective bargaining representation under the Act.2
This conclusion rested on the view that their employment was clearly divided into supervisory and non-supervisory categories, with three months being spent annually in the first, and nine months in the latter. The Board relies on its holding in The Great Western Sugar Co. v. N.L.R.B., 1962, 137 NLRB 551, which overruled Whitmoyer Laboratories, Inc. v. N.L.R.B., 1955, 114 NLRB 749, as it concerned seasonal supervisors to sustain this position. These cases, and the Board order before us must be considered in the light of the fact that Congress in 1947 expressly excluded supervisors from the term "employee" as it was used in according rights under the Act. 29 U.S.C.A. §§ 152(3) and (11).
In Whitmoyer the Board reiterated its previously established policy of excluding workers from bargaining units who divide their time between supervisory and non-supervisory duties if their assumption of supervisory authority is regular and substantial, and not merely occasional and sporadic. It then extended this policy to hold that employees who spend a regular and substantial part of their time performing supervisory duties on a seasonal basis are also supervisors within the meaning of the Act, and are therefore to be excluded from the bargaining unit.
In the first appearance of The Great Western Sugar case before the Board, 1962, 132 NLRB 936, Whitmoyer was followed in holding as supervisors employees who performed maintenance, repair and housekeeping...
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