NLRB v. Lindenmeyr ( 1993 )

March 15, 1993 [NOT FOR PUBLICATION]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
-3-
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
-4-
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
-5-
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
-6-
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.
-7-