NLRB v. Magnesium Casting Company, No. 7462.

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Writing for the CourtALDRICH, , COFFIN, Circuit , and BOWNES
Citation427 F.2d 114
PartiesNATIONAL LABOR RELATIONS BOARD, Petitioner, v. MAGNESIUM CASTING COMPANY, Respondent, United Steelworkers of America, Intervenor.
Decision Date21 May 1970
Docket NumberNo. 7462.

427 F.2d 114 (1970)

NATIONAL LABOR RELATIONS BOARD, Petitioner,
v.
MAGNESIUM CASTING COMPANY, Respondent,
United Steelworkers of America, Intervenor.

No. 7462.

United States Court of Appeals, First Circuit.

May 21, 1970.


427 F.2d 115
COPYRIGHT MATERIAL OMITTED
427 F.2d 116
Abigail Cooley Baskir, Washington, D. C., Attorney, with whom Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Marshall F. Berman, Washington, D. C., Attorney, were on the brief, for petitioner

Jerome H. Somers, Boston, Mass., with whom Louis Chandler and Stoneman & Chandler, Boston, Mass., were on the brief, for respondent.

Before ALDRICH, Chief Judge, COFFIN, Circuit Judge, and BOWNES, District Judge.

COFFIN, Circuit Judge.

On the basis of the evidence adduced at a unit determination hearing on March 14, 1968, the Regional Director concluded that six of the seven assistant foremen whose status was in dispute were employees rather than supervisors and thus includible in the proposed bargaining unit at the Magnesium Casting Company plant in Hyde Park, Massachusetts. The Company's Request for Review, contending that three of the six — Scott, Morris, and Massey — were supervisors, was denied by the Board as raising no substantial issues warranting review. On June 21, the United Steelworkers of America won the election 140 to 59.

Pursuing the accepted method for challenging such unit determinations, Boire v. Greyhound Corp., 376 U.S. 473, 476-477, 84 S.Ct. 894, 11 L.Ed.2d 849 (1964), the Company refused to bargain with the Union. The Company's answer to the ensuing unfair labor practice complaint renewed the contention concerning the status of Scott, Morris, and Massey. In response to the General Counsel's Motion for Summary Judgment, the Company asserted the existence of newly discovered evidence concerning Scott's status and his activities on behalf of the Union. The Trial Examiner granted the Motion for Summary Judgment, concluding that the Company's evidence regarding Scott was not newly discovered and thus that the Regional Director's determination in the representation proceeding should be followed. The Board affirmed the Summary Judgment and adopted the Trial Examiner's conclusion that the Company had committed an unfair labor practice by its refusal to bargain.

Thereafter, the Company filed a Motion for Reconsideration with the Board, contending that the holding in Pepsi-Cola Buffalo Bottling Co. v. N.L.R.B., 409 F.2d 676 (2d Cir. 1969), cert. denied, 396 U.S. 904, 90 S.Ct. 219, 24 L.Ed.2d 181 (1969), required the Board to make its own findings of fact regarding the status of Scott, Morris, and Massey. Noting its disagreement with the Pepsi-Cola rule, the Board denied the Motion, and comes to us seeking enforcement of its order to bargain.

I.

The Company's initial contention is that the inclusion of Scott, Morris, and Massey in the bargaining unit was improper because all three are supervisors within the meaning of the NLRA, 29 U.S.C. § 151 et seq. Under section 9 of the Act, only "employees" are properly includible in a bargaining unit, which provision combines with the section 2(3) definition of "employee" to exclude from the bargaining unit "any individual employed as a supervisor". Section 2(11) defines "supervisor" as

"* * * any individual having authority, in the interest of the employer,
427 F.2d 117
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." Emphasis added.

Since the definition is set forth in the disjunctive, it is generally agreed that the possession of any one of the listed powers is sufficient to confer "supervisory" status, e. g., N.L.R.B. v. Metropolitan Life Insurance Co., 405 F.2d 1169, 1173 (2d Cir. 1968); N.L.R.B. v. Little Rock Downtowner, Inc., 414 F.2d 1084, 1089 (8th Cir. 1969), as long as "such authority is not merely of a routine or clerical nature, but requires the use of independent judgment". See, e. g., Amalgamated Clothing Workers etc. v. N.L.R.B., 420 F.2d 1296, 1300 (D.C. Cir. 1969).

Nevertheless, as Judge Woodbury stated in N.L.R.B. v. Swift and Company, 292 F.2d 561, 563 (1st Cir. 1961),

"* * * the gradations of authority `responsibly to direct\' the work of others from that of general manager or other top executive to `straw boss\' are so infinite and subtle 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.\'"

With that in mind, the Regional Director's determination should be sustained if supported by substantial evidence.

The instant case presents one of those situations where the gradations of authority are particularly difficult to ascertain. The Company has approximately 250 employees in the unit found appropriate, some 22 of whom work in the Products Division. Within that Division there are two sections — one for plating and finishing, another for assembly and packaging — each with 10-12 men under the supervision of a foreman, both of whom are conceded to be "supervisors". It is within these 10-12 man sections that the present controversy arises. The Company contends that all four assistant foremen are also supervisors; the Regional Director found that only Zagrafos — who worked with 9 employees and had exercised supervisory powers on several occasions — was a supervisor, and that Morris, Massey, and Scott were not.

Morris and Massey are employed in the assembly and packaging section of the Products Division. Working with 2-4 others in separate groups, each performs routine supply and inspection functions in addition to the normal packaging work of the section. Both are paid somewhat more than their fellow workers, but substantially less than their foreman. Neither has ever exercised any of the powers specified in section 2(11).1 Both refer any important decisions to their foreman, who makes the daily work assignments and checks the work of each of the men in the section, including Morris and Massey, at regular 10 minute intervals throughout the working day. Whatever responsibility these assistant foremen may have vis-a-vis their fellow workers, it is of a fairly routine nature; while some judgment is obviously required to determine what problems should be referred to the foreman, such judgments hardly suggest a finding of "supervisory" status. We are troubled by their attendance at bi-weekly "management" meetings but that one factor does not alter the substantial evidence that these men are not supervisors.

427 F.2d 118

Scott presents more difficulty. He is specially trained to perform the critical plating function in the Products Division. During his seven months as an assistant foreman, he once recommended a raise for a fellow worker who soon thereafter received it, and he once prevailed on another employee — by threatened loss of job — not to leave work abruptly in the middle of the day. However, it does not strike us as unusual that the most skilled of three or four men in a shop would command respect from his co-workers and his foreman even though he possessed no "supervisory" powers. Moreover, the quality control work in which he engages concerns the products themselves and only indirectly reflects on his own work and that of the other employees; he is not charged with the responsibility of assessing their general capabilities. Compare N.L.R.B. v. Metropolitan Life Insurance Co., supra at 1174-1177. As with Morris and Massey, however, his frequent attendance at the "management" meetings lends credibility to the Company's contentions.

However, if "deference to expertise" and "substantial evidence" mean anything in this area of...

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27 practice notes
  • N.L.R.B. v. Porta Systems Corp., No. 650
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • May 29, 1980
    ...v. NLRB, 445 F.2d 237 (D.C.Cir. 1971), cert. denied, 404 U.S. 1039, 92 S.Ct. 713, 30 L.Ed.2d 730 (1972); NLRB v. Magnesium Casting Co., 427 F.2d 114 (1st Cir. 1970), aff'd, 401 U.S. 137, 91 S.Ct. 599, 27 L.Ed.2d 735 (1971); Westinghouse Electric Corp. v. NLRB, 424 F.2d 1151 (7th Cir.), cert......
  • City of Davenport v. Public Employment Relations Bd., No. 59399
    • United States
    • United States State Supreme Court of Iowa
    • March 22, 1978
    ...& Co. v. NLRB, 437 F.2d 1127 (5 Cir. 1971); NLRB v. Sayers Printing Co., 453 F.2d 810 (8 Cir. 1971); NLRB v. Magnesium Casting Co., 427 F.2d 114 (1 Cir. 1970), aff'd, 401 U.S. 137, 91 S.Ct. 599, 27 L.Ed.2d 735 (1971); Doctors Hospital, 217 NLRB No. 87, 1974-75 CCH NLRB P 15,688 (1975); Wing......
  • Fall River Sav. Bank v. N.L.R.B., No. 80-1579
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • May 22, 1981
    ...to confer supervisory status." Maine Yankee Atomic Power Co. v. NLRB, 624 F.2d 347, 360 (1st Cir. 1980); NLRB v. Magnesium Casting Co., 427 F.2d 114, 117 (1st Cir. 1970), aff'd, 401 U.S. 137, 91 S.Ct. 599, 27 L.Ed. 735 (1971). We have repeatedly held that application of the statutory test i......
  • Trustees of Boston University v. N.L.R.B., Nos. 77-1143
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • April 13, 1978
    ...is one of fact for the Board, Stop & Shop Companies, Inc. v. NLRB, 548 F.2d 17, 18 (1st Cir. 1977); NLRB v. Magnesium Casting Co., 427 F.2d 114, 117 (1st Cir. 1970), aff'd, 401 U.S. 137, 91 S.Ct. 599, 27 L.Ed.2d 737 (1971), and the expertise of the Board in dealing with the gradations of au......
  • Request a trial to view additional results
27 cases
  • N.L.R.B. v. Porta Systems Corp., No. 650
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • May 29, 1980
    ...v. NLRB, 445 F.2d 237 (D.C.Cir. 1971), cert. denied, 404 U.S. 1039, 92 S.Ct. 713, 30 L.Ed.2d 730 (1972); NLRB v. Magnesium Casting Co., 427 F.2d 114 (1st Cir. 1970), aff'd, 401 U.S. 137, 91 S.Ct. 599, 27 L.Ed.2d 735 (1971); Westinghouse Electric Corp. v. NLRB, 424 F.2d 1151 (7th Cir.), cert......
  • City of Davenport v. Public Employment Relations Bd., No. 59399
    • United States
    • United States State Supreme Court of Iowa
    • March 22, 1978
    ...& Co. v. NLRB, 437 F.2d 1127 (5 Cir. 1971); NLRB v. Sayers Printing Co., 453 F.2d 810 (8 Cir. 1971); NLRB v. Magnesium Casting Co., 427 F.2d 114 (1 Cir. 1970), aff'd, 401 U.S. 137, 91 S.Ct. 599, 27 L.Ed.2d 735 (1971); Doctors Hospital, 217 NLRB No. 87, 1974-75 CCH NLRB P 15,688 (1975); Wing......
  • Fall River Sav. Bank v. N.L.R.B., No. 80-1579
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • May 22, 1981
    ...to confer supervisory status." Maine Yankee Atomic Power Co. v. NLRB, 624 F.2d 347, 360 (1st Cir. 1980); NLRB v. Magnesium Casting Co., 427 F.2d 114, 117 (1st Cir. 1970), aff'd, 401 U.S. 137, 91 S.Ct. 599, 27 L.Ed. 735 (1971). We have repeatedly held that application of the statutory test i......
  • Trustees of Boston University v. N.L.R.B., Nos. 77-1143
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • April 13, 1978
    ...is one of fact for the Board, Stop & Shop Companies, Inc. v. NLRB, 548 F.2d 17, 18 (1st Cir. 1977); NLRB v. Magnesium Casting Co., 427 F.2d 114, 117 (1st Cir. 1970), aff'd, 401 U.S. 137, 91 S.Ct. 599, 27 L.Ed.2d 737 (1971), and the expertise of the Board in dealing with the gradations of au......
  • Request a trial to view additional results

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