NLRB v. Security Guard Service, Inc.

• Decision Date: 25 September 1967
• Docket Number: No. 23894.,23894.
• Citation: 384 F.2d 143
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SECURITY GUARD SERVICE, INC., Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

384 F.2d 143 (1967)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SECURITY GUARD SERVICE, INC., Respondent.

No. 23894.

United States Court of Appeals Fifth Circuit.

September 25, 1967.

COPYRIGHT MATERIAL OMITTED

Marcel Mallet-Prevost, Asst. Gen. Counsel, Marsha Swiss, Atty., N. L. R. B., Washington, D. C., Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Elliott Moore, Attorney, N. L. R. B., for petitioner.

W. A. Thurmond, Charles R. Jones, Scott, Hulse, Marshall & Feuille, El Paso, Tex., for respondent.

Before RIVES, WISDOM, GOLDBERG, Circuit Judges.

GOLDBERG, Circuit Judge.

We have here for decision the aging but nevertheless persistently vexing problem of whether or not an employee is a supervisor. The National Labor Relations Board seeks the enforcement of its order pursuant to Section 10(e) of the National Labor Relations Act, as amended, 29 U.S.C.A. § 160(e), against Security Guard Service, Inc. (Security). The Board adopted the Trial Examiner's findings that the company had violated Section 8(a) (1) and (3) of the Act by interfering with its employees' rights of self-organization in discharging Guard Sergeant Paul R. Ashmore because of his activity on behalf of the union. 154 NLRB 8.

Ashmore's status is the sole and determinative issue of this case.¹ Security claims that he is a supervisor, and thus not protected under the Act from discriminatory discharge. The Board insists that his statutory status is one of "employee" rather than "supervisor." We enforce.

Security, a Texas corporation with its principal office and place of business in El Paso, Texas, provides guard security services and related services in Texas and New Mexico. In the spring of 1964 an organizational movement began among the company's guard employees. On May 6, 1964, a week before the employees' representative filed a petition for a Board election, Security discharged Ashmore, admittedly because of his participation in union activities.

Ashmore had been employed as a guard sergeant at the National Aeronautics and Space Administration's (NASA) White Sands Missile Site near Organ, New Mexico. The guard complement at the site consisted of one captain, four guard sergeants, and six or seven guards. The guard sergeants and guards worked in three shifts continuously on a 24-hour basis. Generally, in addition to one guard sergeant, three guards were on duty during the early shift, one or two guards during the second shift, and one guard during the third shift. The captain, an admitted supervisor, was generally on duty throughout the day shift and remained until about 4:30 p. m., an hour and a half into the second shift. The guards spent the majority of their time at the guardhouse at the main gate checking all vehicles and persons entering or leaving the site. They also patrolled the tech area and the site perimeter. NASA issued badges to people authorized to enter, and there was a list of those entitled to enter which was maintained and which was checked by the guards. Sergeants performed the same patrol and guard functions as the other guards but additionally maintained a daily activity log on a NASA form and kept time cards of the guards assigned to their shift. These sergeants generally related and interpreted instructions from the captain to other guards on the shifts and occasionally made decisions on admittance of personnel. Shift assignments were made by the captain. The sergeants, like the other guards, were paid by the hour and received overtime pay, although the hourly rate of pay was approximately 25 percent higher than the rate paid the others. The captain was paid monthly and received approximately 50 percent more than the sergeants but was not compensated for any overtime work. The uniforms of the captain and the sergeants were the same but were different from the guards in that the sergeants and captains wore white cap covers and gold badges.

The iteration of the thesis that the Board's findings are not to be considered fragile or frangible is constantly and unremittingly before us. The tensile strength of such findings increases as they are applied to the minutiae of management-employee relations. NLRB v. Erie Resistor Corp., 1963, 373 U.S. 221, 236, 83 S.Ct. 1139, 10 L.Ed.2d 308, 94 A.L.R.2d 1137. Concerning the determination of "supervisor" status, we subscribe to the following well-received statement:

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.\'

NLRB v. Swift and Co., 1 Cir. 1961, 292 F.2d 561, 563, quoted with approval in Marine Engineers Beneficial Ass'n v. Interlake Steamship Co., 1962, 370 U.S. 173, 179 n. 6, 82 S.Ct. 1237, 8 L.Ed.2d 418 and in NLRB v. Bama Co., 5 Cir. 1965, 353 F.2d 320, 322. Judge Hutcheson's recent opinion in Trailmobile Division, Pullman, Inc. v. NLRB, 5 Cir. 1967, 379 F.2d 419, 422, likewise accords the Board "considerable discretion." Finally, in Local No. 207, Intern. Ass'n of Bridge Structural and Ornamental Iron Workers Union v. Perko, 1963, 373 U.S. 701, 706, 83 S.Ct. 1429, 10 L.Ed.2d 646, the Supreme Court not only recognized Board pre-emption in a case involving dismissal of a foreman but also expressed respect for the Board's decision in "difficult problems of status."

We are aware that despite such judicial deference to Board expertise, we must reverse the Board if the record does not contain substantial evidence to support its holding. Universal Camera Corp. v. NLRB, 1951, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456. In fact, this Court has recently denied enforcement of two Board orders after careful analyses of the Universal Camera doctrine. NLRB v. O. A. Fuller Super Markets, Inc., 5 Cir. 1967, 374 F.2d 197, 200; NLRB v. Whitfield Pickle Co., 5 Cir. 1967, 374 F.2d 576, 581-582. An examination of the record discloses substantial evidence, however, that Ashmore was not in the category of employee designated by Congress as "supervisor."

Section 2(3) of the National Labor Relations Act expressly excludes supervisors from employee status.² Section 2(11) of the Act defines "supervisor" in the following manner:

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 responsibility 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.

To be sure, the enumerated functions of a supervisor are listed disjunctively. NLRB v. Elliott-Williams Co., 7 Cir. 1965, 345 F.2d 460 (1965); Ohio Power Co. v. NLRB, 6 Cir. 1949, 176 F.2d 385, 387, 11 A.L.R.2d 243, cert. denied, 1949, 338 U.S. 899, 70 S.Ct. 249, 94 L.Ed. 553; NLRB v. Edward G. Budd Mfg. Co., 6 Cir. 1948, 169 F.2d 571, 576, cert. denied sub nom. Foremen's Ass'n of America v. Edward G. Budd Mfg. Co., 1949, 335 U.S. 908, 69 S.Ct. 411, 93 L.Ed. 441. Nevertheless, the statute expressly insists that a supervisor 1) have authority 2) to use independent judgment 3) in performing such supervisory functions 4) in the interest of management. These latter requirements are conjunctive. See International Union of United Brewery, etc., v. NLRB, 1961, 111 U.S.App.D.C. 383, 298 F.2d 297, 303, cert. denied, 1961 sub nom. Gulf Bottlers, Inc. v. NLRB, 369 U.S. 843, 82 S.Ct. 875, 7 L.Ed.2d 847; Poultry Enterprises v. NLRB, 5 Cir. 1954, 216 F.2d 798, 802; NLRB v. Brown & Sharpe Mfg. Co., 1 Cir. 1948, 169 F.2d 331, 334. Moreover, the statutory words "responsibility to direct" are not weak or jejune but import active vigor and potential vitality.

In 1947 Congress, by enacting Sections 2(3) and 2(11), expressly shielded companies from the possible organization of "all who are on the payroll of the company, including the president".³ That the exclusion from "employee" status applied only to foremen who were "the arms and legs of management in executing labor policies"⁴ is evident, however, from the following excerpt from the Senate Committee Report:

The committee has not been unmindful of the fact that certain employees with minor supervisory duties have problems which may justify their inclusion in the act. It has therefore distinguished between straw bosses, leadmen, set-up men, and other minor supervisory employees, on the one hand, and the supervisor vested with such genuine management prerogatives as to the right to hire or fire, discipline, or make effective recommendations with respect to such action.

S.Rep. No. 105, 80th Cong., 1st Sess. 4 (1947). The Conference Committee which reconciled House and Senate bills reported:

Supervisors. — As heretofore stated, both the House bill and the Senate Amendment excluded supervisors from the individuals who are to be considered employees for the purposes of the act. The House bill defined as `supervisors\', however certain categories of employees who were not treated as supervisors under the Senate amendment.

* * * * * *

The conference agreement, in the definition of `supervisor,\' limits such term to those individuals treated as supervisors under the Senate amendment. * * *

H.Rep. No. 510, 80 Cong. 1st Sess. 35 (1947), U.S.Code Cong. Service 1141 (1947). Clearly Section 2(3) created and Section 2(11) defined an exception carved out of a general provision. The above legislative history justifies the standard reluctance to apply an exception broadly.

Recognizing different judicial tendencies in the Section's application, we tend to agree with the analysis in International Union of United...