NLRB v. Lindenmeyr

• Court: Court of Appeals for the First Circuit
• Decided: March 15, 1993
• Docket: 92-1351
• Status: Published

Opinion

USCA1 Opinion

March 15, 1993        [NOT FOR PUBLICATION]
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

        No. 92-1351

                           NATIONAL LABOR RELATIONS BOARD,

                                     Petitioner,

                                         and

                       GENERAL WAREHOUSEMEN, SHIPPERS, PACKERS,
                      RECEIVERS, STOCKMAN, CHAUFFEURS & HELPERS,
                       LOCAL UNION NO. 504, affiliated with THE
                       INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
                         CHAUFFEURS, WAREHOUSEMEN AND HELPERS
                                 OF AMERICA, AFL-CIO,

                                     Intervenor,

                                          v.

                           LINDENMEYR/MUNROE, A DIVISION OF
                          CENTRAL NATIONAL GOTTESMAN, INC.,

                                     Respondent.

                                 ____________________

ON APPLICATION FOR ENFORCEMENT AND
                              PETITION FOR REVIEW OF AN
                     ORDER OF THE NATIONAL LABOR RELATIONS BOARD

                                 ____________________

                                        Before

                                Selya, Circuit Judge,
                                       _____________
                           Campbell, Senior Circuit Judge,
                                     ____________________
                              and Boudin, Circuit Judge.
                                          _____________

                                ______________________

Nathan L. Kaitz with  whom Morgan, Brown  & Joy were on brief  for
            _______________            ____________________
        respondent.
            Julie  Broido, Senior  Attorney, National  Labor  Relations Board,
            _____________
        with   whom  Peter  Winkler,   Supervisory  Attorney,  National  Labor
                     ______________
        Relations  Board, Jerry  M.  Hunter, General  Counsel, National  Labor
                          _________________
        Relations  Board,  Aileen  A.  Armstrong,  Deputy  Associate   General
                           _____________________
        Counsel,  National  Labor Relations  Board,  Yvonne  T. Dixon,  Acting
                                                     ________________
        Deputy General Counsel, National Labor Relations Board and Nicholas E.
                                                                   ___________
        Karatinos, Acting Associate General Counsel,  National Labor Relations
        _________
        Board, were on brief for petitioner.
            Brian W.  Mellor with  whom Mark D.  Stern and the  Law Office  of
            ________________            ______________          ______________
        Mark D. Stern, P.C. were on brief for intervenor.
        __________________

                                 ____________________

____________________

Per  Curiam.   The  National Labor  Relations Board  has
                 ___________

            petitioned   to   enforce   its   order   against  respondent

            Lindenmeyr/Munroe, a division  of Central National Gottesman,

            Inc.  ("the  company").   The  order directs  the  company to

            bargain with  Local 504  of the International  Brotherhood of

            Teamsters,  Chauffeurs, Warehousemen  and Helpers  of America

            ("the  union").  Agreeing that  the order is  valid, we order

            its enforcement.

                 Lindenmeyr/Munroe  operates  a  warehouse in  Mansfield,

            Massachusetts, from which it distributes paper products.  The

            company hired Donald Dooley on April  1, 1986 to serve as the

            night shift  foreman.  On  March 28, 1989, the  union filed a

            petition  with the Board seeking  to represent a  unit of the

            company's warehouse employees.  The Board's Regional Director

            issued a  direction of election  on May 10,  1989, permitting

            Dooley  to vote as an employee subject to the company's claim

            that he  was  a "supervisor"  within the  meaning of  section

            2(11)  of  the  National Labor  Relations  Act,  29  U.S.C.  

            152(11).

                 The Board conducted the election on June 8, 1989.  Aside

            from Dooley's vote, the  tally of unchallenged ballots showed

            eight  votes  for  the  company  and  eight  for  the  union.

            Dooley's ballot  (which favored  the union) was  the deciding

            vote.   The Board's Regional Director  then ordered a hearing

            to be conducted before an administrative law judge to resolve

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the issue of Dooley's  status.  The administrative  law judge

            conducted  the  hearing, determined  that  Dooley  was not  a

            supervisor,  and  directed  that  his ballot  be  opened  and

            counted.  The  Board adopted the  recommended order, and  the

            Regional Director  thereafter certified  the union.   On June

            21,  1991,   the  union   requested  the  company   to  begin

            bargaining.      The   company   refused,   citing   improper

            certification of the bargaining unit as its basis.

                 Upon the  company's refusal to bargain,  the union filed

            an unfair labor  practice charge.   On August  15, 1991,  the

            Regional Director  charged  that  the  company  had  violated

            sections 8(a)(1) and (5)  of the Act, 29 U.S.C.     158(a)(1)

            and  (5).  The company  admitted the refusals  to bargain but

            asserted that  the union  was improperly certified  because a

            determinative  vote was  cast  by a  supervisor.   On summary

            judgment, the Board entered an order dated November 26, 1991,

            finding  that the company had violated the Act as charged and

            requiring that it bargain.   Enforcement of the order  is now

            sought,  pursuant  to section  10(e)  of the  Act,  29 U.S.C.

            160(e).

                 The  sole   issue  is  whether  there   is  "substantial

            evidence" in  the record to justify the  Board's finding that

            Dooley was not a supervisor.  Universal Camera Corp. v. NLRB,
                                          _____________________     ____

            340 U.S. 474, 488 (1951).  Section 2(11) of the Act provides:

                         The   term   "supervisor"  means   any
                      individual   having  authority,   in  the

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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  statute is  read in  the  disjunctive.   Any one  of the

            enumerated  capabilities can  confer supervisory  status upon

            the individual.  E.g., Maine Yankee Atomic Power v. NLRB, 624
                             ___   _________________________    ____

            F.2d  347,  360  (1st Cir.  1980).    However, gradations  of

            authority  ranging from "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 Company, 292 F.2d 561, 563
                             ____    _________________

            (1st Cir. 1961).

                 In this  case, the  administrative law judge  found that

            Dooley's work day was "almost indistinguishable" from that of

            the  other warehousemen on his shift.  Dooley like the others

            "picked"  orders  and  loaded   them  on  pallets  for  truck

            delivery.   He  clocked in  and out,  was paid  on an  hourly

            basis,  had no  office or  desk, did  no extra  paperwork and

            attended  no management meetings.  Hiring  and firing was the

            province  of Dooley's  own superiors.   Although  Dooley gave

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certain orders, the administrative law judge found them to be

            limited in scope, mechanical in nature, and involving no real

            use of independent judgment.  The Board could thus reasonably

            find that  Dooley exerted "the routine exercise  of a skilled

            worker's control over  less capable employees, and  was not a

            supervisor sharing  the power of management."   Goldies, Inc.
                                                            _____________

            v. NLRB, 628 F.2d 706, 710 (1st Cir. 1980).
               ____

                 The  company  argues  that  when it  hired  Dooley,  his

            superiors  described his  authority  to him  in broad  terms,

            including the power effectively to recommend discipline.  The

            administrative law  judge  found  that  this  description  of

            Dooley's authority had  been provided to Dooley  "once upon a

            time," but  he also found that Dooley's  actual authority did

            not  correspond to the original description.  While it is the

            existence and not the  exercise of authority that establishes

            supervisory status, NLRB v. Leland-Gifford Co., 200 F.2d 620,
                                ____    _________________

            625  (1st Cir. 1952), we think that the existence of Dooley's

            authority was reasonably in dispute in this case.

                 Specifically,  the administrative  law  judge  found  no

            indication   that   Dooley   himself   had   ever   exercised

            disciplinary  authority,  recommended   discipline  or   even

            reported any  misbehavior of others to superiors.   There was

            no evidence that other workers had ever been told that Dooley

            had such  authority.  Indeed,  while Dooley  could report  or

            recommend  anything  to management,  Dooley  himself observed

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that  "anybody else could" too.  The picture painted by these

            and  other facts  strongly suggests  that neither  Dooley nor

            anyone  else behaved  as if  he had  been entrusted  with any

            special disciplinary authority.  In sum, the Board's decision

            is  a   reasonable  evaluation   of  the  facts   based  upon

            substantial evidence.

                 The petition for enforcement is granted.
                                                 _______

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