Pulley v. NLRB

• Decision Date: 05 June 1968
• Docket Number: No. 17846.,17846.
• Citation: 395 F.2d 870
• Parties: Verlin L. PULLEY and Carola Pulley, d.b.a. Capitol-Varsity Cleaning Co., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

395 F.2d 870 (1968)

Verlin L. PULLEY and Carola Pulley, d.b.a. Capitol-Varsity Cleaning Co., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 17846.

United States Court of Appeals Sixth Circuit.

June 5, 1968.

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J. Mack Swigert, Cincinnati, Ohio (Jerold A. Fink, Cincinnati, Ohio, on the brief) for petitioner.

Leon M. Kestenbaum, N.L.R.B., Washington, D. C., (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Michael N. Sohn, Atty., N.L.R.B., Washington, D. C., on the brief) for respondent.

Before COMBS, Circuit Judge, and McALLISTER and CECIL, Senior Circuit Judges.

CECIL, Senior Circuit Judge.

This cause is before the Court upon petition of Verlin L. and Carola Pulley, d. b. a. Capitol-Varsity Cleaning Co., (Capitol), to review an order of the National Labor Relations Board issued on April 13, 1967. The Board has cross-petitioned for enforcement of its order which is reported at 163 NLRB 145. This Court has jurisdiction of the proceeding, the alleged unfair labor practices having occurred in Oxford, Ohio, within this judicial circuit. Section 160 (e), Title 29, U.S.C. The Board found that Capitol committed unfair labor practices in violation of Section 158(a) (1), (3) and (5), Title 29, U.S.C.

Capitol is in the laundry and dry cleaning business and also reconditions athletic equipment. Its central plant, the one involved in the dispute herein, is located in Oxford, Ohio. William Pulley, who is the son of Capitol's owners, is the general manager. Andrew McLaughlin is the production manager and is responsible for the daily management of the Oxford facility. The unfair labor practice charges, which are the basis of the order now before us, were filed by AFL-CIO Laundry and Dry Cleaning International Union, Local No. 248, (the union).

The union commenced an organizational campaign at Capitol's Oxford plant on March 11, 1966, which culminated in a strike beginning on March 29, 1966. The Board found that during the course of this campaign, of which Capitol was fully aware, Capitol committed numerous acts in violation of Section 8(a) (1) of the Act by "interrogating its employees as to their union membership and activity, by requesting them to report the names of employees engaging in union activity, and by creating the impression that it was keeping union meetings or attendance thereat under surveillance." We find that there is substantial evidence in the record considered as a whole to support these findings and conclusions of the Board. Section 160 (e), Title 29, U.S.C.

On March 16, 1966, the union formally demanded recognition, claiming to represent a majority of Capitol's employees. Such demand was premature because on that date the union only represented 49 of the 99 employees in the appropriate bargaining unit, one less than the required majority. By March 29th the union possessed authorization cards from 10 more employees. On March 17, 1966, Capitol wrote the union stating that it had a good faith doubt as to the union's majority status and that it had filed a petition with the Board seeking an election. On the following day the union also filed a representation petition with the Board. On March 29th Moser, a union organizer, saw Pulley and orally informed him that the union represented a majority of Capitol's employees and requested recognition and bargaining, which was refused. A strike began at 11:45 p. m. that night. Shortly thereafter, Pulley arrived at the plant where Moser told him that the strike would be called off if Capitol recognized the union. On April 9, 1966, the union sent a telegram to Capitol again formally asserting its majority status, requesting recognition and offering to submit to a card check by the N.L.R.B. On April 11th, the union, realizing that the Board does not check cards, offered to submit to a card check by a third neutral party. Capitol replied on April 12th, stating,

"As you know the National Labor Relations Board is investigating our charge that your union has engaged in threats and coercion in its current attempt to seek recognition. We do not believe that any organization engaging in this conduct can be the freely chosen representative of our employees. Moreover Section 9(c) (1) of Act requires Board to direct an election by secret ballot whenever there is a question concerning representation. Therefore we repeat that we will abide by the results of a proper secret ballot NLRB election."

The union filed unfair labor practice charges on April 12, 1966, which prevented the holding of the representation election.

The Board held that although the union did not represent a majority of employees on the date of its initial request for recognition, March 16, 1966, it did represent a majority at the time of its later requests, and that Capitol did not possess a good-faith doubt as to its majority status. The Board found that this conduct amounted to a violation of Section 8(a) (5) and (1) of the Act and ordered Capitol to recognize and bargain with the union.

Capitol alleges that the union did not possess a majority of valid authorization cards because 24 of the signed cards were solicited by Glenn Parker, who at the time was a "supervisor" within the meaning of the Act. Cards solicited by supervisors are invalid and may not be counted in determining whether a union represents a majority of employees in an appropriate bargaining unit. N.L.R.B. v. Hamilton Plastic Molding Company, 312 F.2d 723, (C.A.6). The Board held that Parker was not a "supervisor," but an "employee."

Section 152(11), Title 29, U.S. C. defines a 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."

Whether an employee is a supervisor or not is a question of fact, and the Board's resolution of that issue is conclusive if supported by substantial evidence. Peoples Service Drug Stores, Inc. v. N.L. R.B., 375 F.2d 551, (C.A.6); N.L.R.B. v. Ertel Manufacturing Corporation, 352 F.2d 916, (C.A.7), cert. den., 383 U.S. 945, 86 S.Ct. 1202, 16 L.Ed.2d 208; Eastern Greyhound Lines v. N.L.R.B., 337 F.2d 84, (C.A.6). The considerations 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.'" N.L.R.B. v. Swift and Company, 292 F.2d 561, 563, (C.A.1).

Parker began his employment with Capitol as a truck driver in September, 1965. In December of that year, McLaughlin asked Parker if he would like to temporarily replace Dale Baird as his assistant while Baird was away at school from late January to April, 1966. Parker accepted and shortly thereafter began working with Baird. Baird's duties included the distribution of unpressed garments to the pressers for finishing. The pressers were paid on a piece-rate basis and it was Baird's job to try to make certain that each presser had an equal share of easy and hard items to press so that their pay would be approximately equal. In addition to this, Baird had the authority to hire and fire employees, and scheduled the work in the department by telling the pressers when to start and finish. Both the Board and Capitol admit that Baird was a "supervisor." The extent to which Parker assumed Baird's responsibilities is determinative of the issue of Parker's status. Capitol concedes that Parker did not have the authority to hire and fire. McLaughlin testified that normally he would tell Parker what time the pressers should begin work and Parker relayed the instructions to the pressers. Only on infrequent occasions when McLaughlin was gone from the plant did Parker make the decision himself. Parker always checked with McLaughlin or Pulley before granting an employee's request to come in late or leave early. Parker never ordered supplies or reprimanded employees. Parker's primary function was to distribute the garments to pressers in a manner so as to equalize the pay among the pressers. This job was occasionally performed by other employees while Parker was out in the truck. It is possible that Parker performed some supervisory functions on the rare instances when both Pulley and McLaughlin were absent from the plant, but such infrequent activities do not change the status of an employee to a "supervisor." Poultry Enterprises v. N.L.R.B., 216 F.2d 798, (C.A.5). Parker was not trained to be a permanent replacement for Baird, having identical powers and responsibilities, but was given the job on a temporary basis without the accompanying supervisory authority. Although the distribution of garments to be pressed involved some exercise of judgment, and could affect the earnings of a presser, it was merely of a routine nature and did not involve the use of independent judgment as the Act requires.

Therefore we conclude that there was substantial evidence to support the finding of the Board that Parker was not a supervisor at the time he solicited the signatures on the 24 cards in question. This being the case, the union possessed a majority of valid authorization cards when it made its demand for recognition in late March and early April 1966.

But the mere existence of a majority of valid authorization cards is not sufficient to support a finding of an 8(a) (5) violation, if the employer has a good faith doubt as to the majority status of the union. An employer is not required to recognize and bargain with a union if it...