NLRB v. International Metal Specialties, Inc.
| Decision Date | 04 November 1970 |
| Docket Number | No. 20 Docket 34361.,20 Docket 34361. |
| Citation | 433 F.2d 870 |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INTERNATIONAL METAL SPECIALTIES, INC., Respondent. |
| Court | U.S. Court of Appeals — Second Circuit |
David Rosenbaum, Washington, D. C., Atty. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Herman M. Levy and Seth D. Rosen, Attys., N.L.R.B.), for petitioner.
Julius Neiman, New York City (Marcus, Shenkman & Neiman, New York City, Jack Levine and Solomon D. Monshine, New York City, of counsel), for respondent.
Before FRIENDLY, SMITH and HAYS, Circuit Judges.
The National Labor Relations Board hereinafter "the Board" applies for enforcement of a bargaining order issued against respondent International Metal Specialties, Inc., a corporation engaged in fabrication, sale and distribution of metal products in New York City. The order was based on a finding that respondent violated §§ 8(a) (1) and (a) (5) of the National Labor Relations Act (29 U.S.C. § 158) by interfering with employees in the exercise of their rights and by refusing to bargain collectively with the representatives of the employees. These violations, it was held, made impossible the holding of a free election. We hold that the Board's findings are supported by substantial evidence in the record and grant enforcement of the bargaining order.
In May, 1966, Shopmen's Local Union No. 455, International Association of Bridge, Structural and Ornamental Iron Workers, undertook an effort to organize the plant. By June 14, fifteen employees had signed cards designating the union as bargaining agent. An additional employee signed up before June 22. On June 14, the union filed an election petition with the Board and wired the company demanding recognition, a demand repeated June 22. Pursuant to a consent election agreement, a vote was held on August 17, 1966. The union lost by a vote of 16 to 10 with two challenged ballots. The union proceeded to file timely objections to certain conduct of management which allegedly affected the election. In addition, charges of unfair labor practices were brought, and the two cases were consolidated for hearing and decision.
The Board found violations of § 8(a) (1) resulting from threats by supervisors Garguilo and DeRosa of loss of benefits and plant closure if the union should succeed. Also considered a violation of § 8(a) (1) was the statement of one Shields, also found by the Board to be a supervisor, that if the employees had any grievances they should form a committee and see Supervisor DeRosa, thus bypassing the union. The Board further found to be a violation unilateral wage increases intended to undermine the union's position. The Board considered violations of §§ 8(a) (5) and (1) management's refusal to recognize and bargain with the union, which had been designated by a majority of employees in an appropriate bargaining unit. Because of these unfair labor practices, the holding of a free and fair election was found to be impossible.
Our review of the Board findings of fact is confined to a determination of whether they are supported by substantial evidence on the record considered as a whole, taking into account whatever in the record fairly detracts from its weight, but giving due regard to the Board's expertise. Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951). The finding that threats were made by DeRosa and Garguilo is supported by employees' testimony in the record. Some question has arisen, however, concerning Garguilo's status as a spokesman for management, rather than as an employee. The Board's finding that Garguilo was, in fact, a "supervisor" is amply supported by substantial evidence. He is the brother-in-law of the company general manager and the son-in-law of the company secretary. He is paid substantially more than other employees, and the testimony indicated that he assigns, directs and checks employees' work and that he is partially responsible for plant safety. Shields, too, was properly found to be a management spokesman, because of his comparatively higher pay, as well as his considerable responsibility concerning the assignment and transfer of employees. The question of management or employee status is properly entrusted to the Board's expertise, and we therefore find sufficient support for the Board's decision in this area. See Marine Engineers Beneficial Association v. Interlake Steamship Co., 370 U.S. 173, 179-180, 82 S.Ct. 1237, 8 L.Ed.2d 418 (1962); N.L.R.B. v. Big...
To continue reading
Request your trial
-
Waterbury Community Antenna, Inc. v. N.L.R.B.
...NLRB v. Gissel Packing Co., 395 U.S. 575, 613-14, 89 S.Ct. 1918, 1940, 23 L.Ed.2d 547 (1969). And in NLRB v. International Metal Specialities, Inc., 433 F.2d 870, 872 (2d Cir. 1970), Cert. denied, 402 U.S. 907, 91 S.Ct. 1378, 28 L.Ed.2d 647 (1971), we held that under Gissel the Board has "a......
-
N.L.R.B. v. American Geri-Care, Inc.
...whatever in the record fairly detracts from its weight, but giving due regard to the Board's expertise." NLRB v. International Metal Specialties, Inc., 433 F.2d 870, 871 (2d Cir.1970), cert. denied, 402 U.S. 907, 91 S.Ct. 1378, 28 L.Ed.2d 647 (1971); see United Aircraft Corp. v. NLRB, 440 F......
-
N.L.R.B. v. A. Lasaponara & Sons, Inc.
...292, 296-97 (2d Cir. 1972); N. L. R. B. v. Gerbes Super Markets, Inc., 436 F.2d 19 (8th Cir. 1971); N. L. R. B. v. International Metal Specialties, Inc., 433 F.2d 870 (2d Cir. 1970), cert. denied, 402 U.S. 907, 91 S.Ct. 1378, 28 L.Ed.2d 647 (1971); Snyder Tank Corp. v. N. L. R. B., 428 F.2d......
-
N.L.R.B. v. Q-1 Motor Exp., Inc.
...1150 n. 34 (3d Cir.1977) (affirming Board's inclusion of misplaced card in tally of majority status); NLRB v. International Metal Specialties, Inc., 433 F.2d 870, 872 (2d Cir.1970) (same), cert. denied, 402 U.S. 907, 91 S.Ct. 1378, 28 L.Ed.2d 647 (1971). Similarly, we find no error in the A......