NLRB v. Sayers Printing Company

• Decision Date: 27 January 1972
• Docket Number: No. 71-1111,71-1143.,71-1111
• Citation: 453 F.2d 810
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, and Local Union No. 252, Lithographers-Photoengravers International Union, AFL-CIO, Intervenor, v. SAYERS PRINTING COMPANY, Respondent. LOCAL UNION NO. 252, LITHOGRAPHERS-PHOTOENGRAVERS INTERNATIONAL UNION, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

453 F.2d 810 (1971)

NATIONAL LABOR RELATIONS BOARD, Petitioner, and Local Union No. 252, Lithographers-Photoengravers International Union, AFL-CIO, Intervenor, v. SAYERS PRINTING COMPANY, Respondent.

LOCAL UNION NO. 252, LITHOGRAPHERS-PHOTOENGRAVERS INTERNATIONAL UNION, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

Nos. 71-1111, 71-1143.

United States Court of Appeals, Eighth Circuit.

December 31, 1971.

Petition for Review and Application for Enforcement of Order Denied January 27, 1972.

COPYRIGHT MATERIAL OMITTED

Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Abigail Cooley Baskir, Elaine F. Palumbo, Frank Vogl, Attys. N.L.R.B., Washington, D. C., for N.L.R.B.

John H. Doesburg, Phoenix, Ariz., for Sayers Printing Co.

Bruce S. Feldacker, Stanley R. Schuchat, Schuchat, Cook & Werner, St. Louis, Mo., for Local Union No. 252, Etc.

Before GIBSON, BRIGHT and ROSS, Circuit Judges.

Petition for Review and Application for Enforcement of Order of N.L.R.B. Denied January 27, 1972.

ROSS, Circuit Judge.

The National Labor Relations Board (Board) determined that respondent-employer, Sayers Printing Company (Company), had committed unfair labor practices in violation of §§ 8(a)(1), 8(a)(3), and 8(a)(5) of the National Labor Relations Act. (29 U.S.C. §§ 158 (a)(1), 158(a)(3), and 158(a)(5).) The Board issued an order requiring the Company to cease and desist from action hereinafter described which it deemed to be threatening and coercive and from other alleged unfair labor practices and further requiring the Company to reinstate three employees and reimburse them for lost wages resulting from their alleged unlawful discharges. In addition, the Board set aside the representation election and ordered the Company to bargain with Local Union No. 252, Lithographers-Photoengravers International Union AFL-CIO (Union). However, the Board declined to award damages to the Union and members of the bargaining unit for benefits they allegedly lost as a result of the refusal of the Company to bargain as ordered by the Board. We grant enforcement of the Board's order in part and deny enforcement in part.

The Company is an employer engaged in commerce as defined by the Act and operates a printing plant in St. Louis, Missouri. All dates pertinent to this opinion are in 1969, unless otherwise indicated. Late in 1968 and early in 1969 the Union started its organization campaign among the employees of the Company, and by April 9 had secured ten authorized signature cards. On May 2, the Union Vice-President (Mr. Mantei) wrote and delivered a letter to Herbert M. Sayers (Sayers, Jr.), President of the Company, advising him that a majority of the offset and letterpress employees of the Company had authorized the Union to represent them, requesting the Company to recognize the Union as the exclusive bargaining agent for those employees, and further requesting the Company to begin negotiations for an agreement. A recognition agreement was enclosed. Sayers, Jr., through a secretary, refused to accept the tendered letter and agreement and had them returned to Mantei without seeing him.

Mr. Mantei then went to the Board's regional office, displayed the ten cards and filed a petition for a representation election. Pursuant to a stipulation, an election was held on June 13 with 21 persons voting. Of these, 8 voted in favor of the Union, 3 against, and 10 ballots were challenged. On June 19, the Union filed objections to conduct allegedly affecting the election result, and after an investigation by the Regional Office, the Regional Director recommended that certain challenges be overruled, one challenge be sustained, and others be referred for hearing. Both parties appealed these recommendations to the Board, and in its decision on November 3, it sustained the challenge to the ballot of Mylus Powell, thus reducing the eligible voters to 20. It then remanded the proceedings to the Director with instructions to open and count the ballots of Dale Hardy, M. Schmidt, Isringhaus, and Knudson. This was done, and the count then stood at 8 for the Union, 7 against, and 5 still challenged. Since no majority was evident, the Director entered an order consolidating the hearing on the five remaining challenges, with the hearing on the unfair labor practices alleged by the Union.

The five remaining votes were those of Al Polster, challenged by the Company, and Robert E. Evans, David E. Schutz, John A. Maxwell, and Earl Hardy, who were challenged by the Union. The Trial Examiner found that Polster had been illegally discharged prior to the election and should have been permitted to vote. The Union's challenges to the ballots of Evans and Schutz were not sustained; but its challenges to the ballots of Maxwell and Earl Hardy were sustained on the ground that they were supervisors within the meaning of § 2(11) of the Act (29 U.S.C. § 152(11)) and therefore excluded from the bargaining unit. Because of the determination by the Board that a bargaining order should issue, the three eligible votes were not then opened and counted. However, considering the fact that Polster had signed an authorization card and Evans and Schutz had not, and assuming the party challenging the votes had reason to do so, the vote apparently would have been 9-9, without Maxwell and Hardy, and 9 for the Union and 11 against, if Maxwell and Hardy had been determined to be members of the bargaining unit. Since the votes of all of the 10 persons who signed cards prior to the election (except the vote of Polster) were counted, it is obvious that at least one person who signed a card voted against the Union.

Polster was discharged on June 9 after being accused of being away from his press unnecessarily while it was running. Carlos Busackino and Thomas Carney were discharged on August 11 when the Company sold one of its presses and either terminated or severely curtailed the work of its letterpress department. The Examiner found and the Board held that these discharges were the result of the Union activity of these men and therefore were violations of § 8(a)(3). The Board ordered them to be offered reinstatement and reimbursed for loss of pay they may have suffered as a result of the alleged discrimination practiced against them.

The Examiner and the Board found that prior to the election the Company engaged in acts calculated to coerce and threaten the members of the bargaining unit in their vote, and further found it to have made promises of enhanced economic benefits if the employees voted against the Union. These acts, together with the discharges, were found to be unfair labor practices. The Board also held that as of May 2, the Union represented a majority of the Company's employees within an appropriate bargaining unit, and that by refusing to recognize and bargain with the Union, the Company had engaged in an unfair labor practice within the meaning of § 8(a)(5) of the Act. The Board ordered the Company to bargain with the Union and post the usual notices. The Company's refusal to comply with the Board's orders was followed by an application for enforcement in this Court by the Board. A petition for review was also filed by the Union as to that portion of the Board's order refusing to make whole the employees and the Union from the alleged damages by the Company's "unlawful refusal to recognize and bargain with it."

I. WERE MAXWELL AND HARDY SUPERVISORS?

We turn first to the question of whether or not there is substantial evidence in the record to justify the Board's findings that Maxwell and Hardy were supervisors, since that determination affects both the scope of the § 8(a)(1) violations and also the question of whether or not a bargaining order should have issued.

29 U.S.C. § 152(11) provides as follows:

"The term \'supervisor\' 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 of the statute, worded as it is in the disjunctive, has been consistently interpreted to mean that if any one of the enumerated indicia of supervision is present in a form which requires the exercise of independent judgment, there must be a finding that an employee so empowered is a supervisor and therefore excluded from the bargaining unit. N.L.R.B. v. Little Rock Downtowner, Inc., 414 F.2d 1084, 1089 (8th Cir. 1969); Jas. H. Matthews & Co. v. N.L.R.B., 354 F.2d 432, 434 (8th Cir. 1965), cert. denied, 384 U.S. 1002, 86 S.Ct. 1924, 16 L.Ed.2d 1015 (1966).

We have carefully examined the testimony of all the witnesses and have determined that there is no evidence that either Maxwell or Hardy could effectively recommend or that they attempted to exercise any independent judgment in management decisions to hire, transfer, suspend, lay off, recall, promote, discharge, reward or discipline other employees or adjust their grievances. Evidence was offered which was calculated to show that Maxwell and Hardy did "assign" and "responsibly direct" other employees, but for reasons hereinafter set forth, we feel that this evidence is neither conclusive nor substantial and is not a sufficient basis for determining that Maxwell and Hardy were supervisors under the Act.

Both Maxwell and Hardy were hourly paid employees who had been with the Company a long time. They both had been assigned duties relating to quality control of the work, and on occasion, both ordered supplies.

Maxwell used a desk in an office occupied by plant superintendent Schmidt and assumed Schmidt's duties when he was on vacation. The "desk" used by...