Before O'CONNELL and KALODNER, Circuit Judges, and FOLLMER, District Judge.
Three questions are presented by this petition*fn1 of the National Labor Relations Board for enforcement of its order of August 31, 1945, against the respondent, an Illinois corporation operating a meat packing plant at Jersey City, New Jersey. The Board's jurisdiction is conceded.
The three questions involved are: (1) whether certain plant clerks and standards department checkers are "employees" within the meaning of the Act; (2) whether the Board could properly certify as the exclusive bargaining representative of a unit including the plant clerks and checkers a union, of which a coaffiliate represents respondent's production and maintenance employees, and order respondent to bargain collectively with the union so certified; (3) whether the Board in its discretion may require respondent to bargain collectively with the Union which represented a majority of the employees in the certified unit at the time of respondents refusal to bargain, despite the Union's loss of majority status after respondent failed to bargain for an unbroken period of approximately two years.
The Board's order was based on findings that respondent, in violation of Section 8(1) and (5) of the Act, refused to bargain collectively with United Packinghouse Workers of America, Local 49-A (C.I.O.), herein called the Union, as the exclusive representative of what the Board determined to be an appropriate unit composed of clerical employees at its Jersey City plant. The Board's order required respondent to cease and desist from the unfair labor practices found and from any related conduct, to bargain collectively with the Union upon request, and to post notices as hereinafter discussed.
It appears that on December 2, 1943, the Union filed its representation petition under Section 9 of the Act with respect to a group of employees, including plant clerks and standards department checkers. The Trial Examiner of the Board conducted a hearing on February 16, 1944, attended by the Union and the respondent. On April 29, 1944, the Board issued a Decision and Direction of Election in which it found that the plant clerks and standards department checkers were not managerial employees as contended by respondent and that these employees, together with certain other employees constituted a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act.
On May 24, 1944, an election was conducted and the Board on June 5, 1944, issued a certificate of representation in which it found that of approximately 29 eligible voters, 20 cast valid votes for the Union and three against it. It may be noted that no objections to the election were filed by the respondent. The certification of the Union as the exclusive bargaining representative of the employees in the unit was in conformity with the provision of Section 9(a) and (c) of the Act.
On November 16, 1944, the respondent advised the Union of (a) its refusal to bargain with it on matters relating to plant clerks, and of (b) its intention to seek Court review of any Board order that might issue because of respondent's refusal to negotiate. The respondent in doing so took the position that the unit included individuals who were part of management and whose duties were supervisory in character, so that they were not "employees" under the Act; further, that in any event they should not be represented by the same union as the company's production employees, and finally that the unit was too heterogeneous to be valid. The Union thereupon filed charges that respondent had refused to bargain with it and proceedings were commenced under Section 10(c) of the Act.
The Board thereupon issued a complaint against the respondent and on March 21 and 22, 1945, hearings were held before a Trial Examiner. At the hearings upon the complaint, respondent admitted its refusal to negotiate with the Union. On April 6, 1945, the Intermediate Report of the Trial Examiner was filed. The report found that "* * * the Union was the duly designated bargaining representative of a majority of the employees in the aforesaid bargaining unit * * *" and was therefore "* * * the exclusive representative * * *".It also found that the respondent "* * * has refused to bargain collectively with the Union as the exclusive representative of its employees in an appropriate unit and has thereby interfered with, restrainedAnd coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act."
Subsequently, on August 31, 1945, the Board issued its Decision and Order affirming its previous finding in the representation proceedings and finding further that the respondent's refusal to bargain with the Union constituted a statutory violation. The respondent was ordered, among other things, to bargain collectively with the Union upon request. For the reasons previously stated the respondent continued to refuse to do so.
The Board did not file its petition for enforcement of its order and a transcript of the record in the representation and the complaint proceedings until September 12, 1946.
The respondent's answer raised a number of objections to the Board's order and to the conduct of proceedings before the Board.
On November 14, 1946, before respondent's brief on these issues was due for filing, a communication was presented to Mr. W. R. Moffat, Superintendent of the Jersey City plant of the company. This communication read as follows: "We the undersigned plant clerks and checkers do hereby state, that we do not wish to be represented by unionism in this plant."
The communication was signed by 20 of the 25 persons in the positions comprising the unit which the Board found appropriate in its decision of April 29, 1944.
In view of this communication the respondent, on November 25, 1946, filed with this Court a motion for leave to adduce additional evidence material to this cause, under Section 10(e) of the Act, 29 U.S.C.A. § 160(e).
In its motion, respondent averred as follows: that of the 20 persons who signed the above communication, 13 were not on its payroll at the time of the election on May 24, 1944; of these, 9 were former employees who were serving in the armed forces of the United States at the time of the election and who had since returned to its staff; seven of these 9 occupied positions which would have rendered them eligible to vote at the time of the election if they had not been in military service - two of them occupied such positions since their return from military service; another of these 13 persons was in its employ at the time of the election but was not in the alleged unit and was therefore ineligible to vote; he was subsequently transferred to a position which placed him within the alleged unit; two additional persons in this group of 13 were hired and one was transferred to its Jersey City plant since the election and after all hearings were concluded in these proceedings; the remaining seven of the 20 persons who signed the communication were eligible to vote in the election of May 24, 1944.
Argument on the respondent's motion was heard by this Court on December 16, 1946. At the time the respondent asserted that it was prepared to prove that the foregoing changes in personnel occurred in the normal course of business, replacement of women - who had temporarily occupied these positions during wartime - by men. Respondent urged that the purposes of the Act would not be served by compelling it to bargain with the Union as the sole representative of its employees in complete disregard of the wishes of the majority of these employees. In reply, counsel for the petitioner advised the Court that assuming that the respondent established by evidence adduced at a hearing all of its allegations as to the Union's loss of majority, the petitioner would reaffirm its order of August 31, 1945, and again direct the respondent to bargain with the Union.
In view of the position taken by the petitioner, this Court on December 20, 1946, 158 F.2d 670, deferred ruling on respondent's motion, stating: "* * * It appears to us that a remand for the purpose of adducing additional testimony would be a useless gesture, at this point, and result only in delay in a case which has already been pending too long. It is, therefore, our conclusion not to grant the motion at this time, but to preserve the right of the respondent to argue his legal point as though the evidence had been adduced."
The parties are agreed that in determining the question of change of status "* * * the case is now to be treated as if the requested remand had taken place, the facts sought to be adduced had been found by the Board, and the Board had formally decided that it would effectuate the policies of the Act for respondent to bargain collectively on request with the Union * * *" (page 1, Petitioner's Reply Brief).
As to the first question presented - whether certain plant clerks and standards department checkers are "employees" within the meaning of the Act:
The core of the respondent's contention with respect to this issue is that the plant clerks and standards department checkers perform duties supervisory in character so as to "* * * clearly align these employees on the management side * * *" and that they are not "employees" but rather "employers" under the Act, and therefore not subject to the collective bargaining provisions of the Act.
The petitioner takes the position that none of the employees involved perform supervisory duties and that there was ample evidence to sustain the finding that they were not invested with managerial functions. In support of its position petitioner cited National Labor Relations Board v. Armour & Co., 10 Cir., 154 F.2d 570, certiorari denied 67 S. Ct. 92, as being "on all fours" with the instant case.
The ruling of the Supreme Court in Packard Motor Car Company v. National Labor Relations Board, 67 S. Ct. 789, 791, makes discussion of this question academic. In that case, it was contended that foremen are not "employees" because they perform supervisory functions. Rejecting the contention the Supreme Court held that they were stating: "The privileges and benefits of the Act are conferred upon employees, and § 2(3) of the Act, so far as relevant, provides 'The term "employee" shall include any employee * * *' 49 Stat. 450. The point that these foremen are employees both in the most technical sense at common law as well as in common acceptance of the term, is too obvious to be labored. The Company, however, turns to the Act's definition of employer, which it contends reads foremen out of the employees class and into the class of employers. Section 2(2) reads: 'The term "employer" includes any person acting in the interest of an employer, directly or indirectly * * *' 49 Stat. 450.The context of the Act, we think, leaves no room for a construction of this section to deny the organizational privilege to employees because they act in the interest of an employer."
Further, the Supreme Court in its most recent expression on the subject has ruled that "it is elementary that the Board has the duty of determining in the first instance who is an employee for purposes of the National Labor Relations Act and that the Board's determination must be accepted by reviewing courts if it has a reasonable basis in the evidence and is not inconsistent with the law." National Labor Relations Board v. E. C. Atkins and Company, 67 S. Ct. 1265, 1268.
Citing the Packard Motor Car Company decision, the Supreme Court in the Atkins case sustained the Board's ruling that private plant guards who were civilian auxiliaries to the Army's military ...