NLRB v. Swift and Company, No. 5752.

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Writing for the CourtWOODBURY, , and HARTIGAN and ALDRICH, Circuit
Citation292 F.2d 561
PartiesNATIONAL LABOR RELATIONS BOARD, Petitioner, v. SWIFT AND COMPANY, d/b/a New England Processing Unit, Respondent.
Docket NumberNo. 5752.
Decision Date21 July 1961

292 F.2d 561 (1961)

NATIONAL LABOR RELATIONS BOARD, Petitioner,
v.
SWIFT AND COMPANY, d/b/a New England Processing Unit, Respondent.

No. 5752.

United States Court of Appeals First Circuit.

July 21, 1961.


Peter M. Giesey, Attorney, Washington, D. C., with whom Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Frederick U. Reel, Atty., Washington, D. C., were on the brief, for petitioner.

William F. Joy, Boston, Mass., with whom Carl G. Bergstedt, Catherine A. Griffin and H. Richard George, Boston, Mass., were on the brief, for respondent.

Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.

WOODBURY, Chief Judge.

This petition for enforcement of an order of the National Labor Relations

292 F.2d 562
Board raises the question of the propriety of the Board's certification of United Packinghouse Workers of America, Local 165, AFL-CIO, as the exclusive bargaining representative of two separate groups of workers in the respondent's Somerville, Massachusetts, division, called its New England Processing Unit

The Union petitioned the Board under § 9(a) and (c) of the Act1 for certification as the bargaining representative of all plant clerical employees, except professional employees and supervisors, in the respondent's New England Processing Unit. Simultaneously it filed a similar petition for certification as the bargaining representative of all office clerical employees, with similar exceptions, in the same establishment. The petitions were consolidated and after hearing the Board issued its Decision and Direction of Elections finding that all office clerical employees at the respondent's Somerville plant, excluding the secretary to the plant manager, constituted a unit appropriate for collective bargaining purposes, and that all plant clerical employees at the same plant, excluding the assistant foreman of the Curing Department, constituted a separate appropriate unit. Accordingly the Board directed elections and, the Union receiving a majority of the votes cast in each, certified the Union as the exclusive bargaining representative for each unit.

Thereafter the respondent refused to bargain with the Union as the representative of the employees in either unit and refused the Union's request for information as to the wages of the employees in the two units. In ensuing unfair labor practice proceedings charging refusal to bargain in violation of § 8(a) (1) and (5) of the Act the respondent took the stand that it was under no duty to bargain with the Union for the reason that the units certified by the Board were inappropriate. It urges this court to deny the Board's petition for enforcement for the same reason. Its position is that the Board erroneously included supervisors in the units it certified as appropriate, that it arbitrarily and unreasonably departed from its customary practice by including "managerial and confidential" employees in those units, and furthermore that even if the units are appropriate the Board ought not to permit the Union to represent the employees in the units because it also represents the production and maintenance employees at the same plant.

Section 2(3) of the Act excludes from the definition of "employees," that is, persons who can be included by the Board under § 9(b) in the units it may determine to be appropriate for collective bargaining purposes, "any individual employed as a supervisor." And § 2(11) defines "supervisor" 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."

The first question for consideration is whether the Board...

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54 practice notes
  • Riverside Press, Inc. v. NLRB, No. 25783.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • September 11, 1969
    ...Inc. v. NLRB, 5 Cir., 1966, 361 F.2d 8, cert. denied 385 U.S. 842, 87 S.Ct. 95, 17 L.Ed.2d 75; NLRB v. Swift & Co., 1 Cir., 1961, 292 F.2d 561. However, this is the most we have to do. The matter was well put in the concurring opinion in NLRB v. Red Spot Elec. Co., 9 Cir., 1951, 191 F.2d 69......
  • Beverly Enterprises, Virginia, Inc. v. NLRB, No. 96-2779
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • January 19, 1999
    ...of . . . discretion" in determining who in exercising such authority was and was not a § 2(11) supervisor) (quoting NLRB v. Swift & Co., 292 F.2d 561, 563 (1st Adding to the intrinsic difficulty posed by § 2(11)'s ambiguous definition of "supervisor" is the contemporaneous amendment respect......
  • City of Davenport v. Public Employment Relations Bd., No. 59399
    • United States
    • United States State Supreme Court of Iowa
    • March 22, 1978
    ...function to determine those who as a practical matter fall within the statutory definition of a 'supervisor'." NLRB v. Swift and Co., 292 F.2d 561, 563 (1 Cir. 1961). See NLRB v. Metropolitan Life Ins. Co., 405 F.2d 1169, 1172 (2 Cir. 1968); NLRB v. Security Guard Service, Inc., 384 F.2d 14......
  • Mon River Towing, Inc. v. NLRB, No. 17735.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • December 22, 1969
    ...function to determine those who as a practical matter fall within the statutory definition of a `supervisor,'" N. L. R. B. v. Swift & Co., 292 F.2d 561, 563 (1st Cir. 1961). Our review is limited to the determination of whether the conclusion of the trial examiner and the Board here is supp......
  • Request a trial to view additional results
54 cases
  • Riverside Press, Inc. v. NLRB, No. 25783.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • September 11, 1969
    ...Inc. v. NLRB, 5 Cir., 1966, 361 F.2d 8, cert. denied 385 U.S. 842, 87 S.Ct. 95, 17 L.Ed.2d 75; NLRB v. Swift & Co., 1 Cir., 1961, 292 F.2d 561. However, this is the most we have to do. The matter was well put in the concurring opinion in NLRB v. Red Spot Elec. Co., 9 Cir., 1951, 191 F.2d 69......
  • Beverly Enterprises, Virginia, Inc. v. NLRB, No. 96-2779
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • January 19, 1999
    ...of . . . discretion" in determining who in exercising such authority was and was not a § 2(11) supervisor) (quoting NLRB v. Swift & Co., 292 F.2d 561, 563 (1st Adding to the intrinsic difficulty posed by § 2(11)'s ambiguous definition of "supervisor" is the contemporaneous amendment respect......
  • City of Davenport v. Public Employment Relations Bd., No. 59399
    • United States
    • United States State Supreme Court of Iowa
    • March 22, 1978
    ...function to determine those who as a practical matter fall within the statutory definition of a 'supervisor'." NLRB v. Swift and Co., 292 F.2d 561, 563 (1 Cir. 1961). See NLRB v. Metropolitan Life Ins. Co., 405 F.2d 1169, 1172 (2 Cir. 1968); NLRB v. Security Guard Service, Inc., 384 F.2d 14......
  • Mon River Towing, Inc. v. NLRB, No. 17735.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • December 22, 1969
    ...function to determine those who as a practical matter fall within the statutory definition of a `supervisor,'" N. L. R. B. v. Swift & Co., 292 F.2d 561, 563 (1st Cir. 1961). Our review is limited to the determination of whether the conclusion of the trial examiner and the Board here is supp......
  • Request a trial to view additional results

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