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Warner Co. v. National Labor Relations Board

decided: September 6, 1966.


Staley, Chief Judge, and Kalodner and Freedman, Circuit Judges.

Author: Staley


Petitioner, Warner Company, requests us to review and set aside a decision and order of the National Labor Relations Board determining that Warner's "order takers" and "shippers" constitute an appropriate unit of employees for collective bargaining, and finding Warner Company guilty of an unfair labor practice by its refusal to bargain with the union certified by the Board for the unit in question. The Board has cross-petitioned for enforcement of its order.

The issue before us is whether there was substantial evidence adduced at the representation hearing to support the Board's conclusion that the members of the unit were "employees" rather than "supervisors" within the meaning of Section 2(11) of the National Labor Relations Act, as amended, 29 U.S.C.A. § 152(11). If the members are "supervisors" within Section 2(11), then Section 14(a) of the Act, as amended, 29 U.S.C.A. § 164(a) would relieve Warner Company of the duty to bargain with the certified bargaining representative of the unit. We hold that the members of the bargaining unit are "supervisors" and therefore the Board's finding and order must be set aside and denied enforcement.

The Warner Company is engaged in the building supplies business, including the sale of ready-mixed concrete, in the Greater Philadelphia market. The contested bargaining unit certified by the Board consists of persons who are employed at various distribution yards, and who generally are responsible for the receipt of orders and the delivery of Warner's products. Known as "shippers," "order takers," "dry shippers," and "shipper-order takers," (hereinafter called "shippers"), these men translate the customer requests into completed sales by advising customers, scheduling deliveries, ordering the drivers to make deliveries, and generally maintaining control over the operations necessary to these functions. The members of the unit, where more than one is employed at a distribution yard, are required to work closely together and to perform work within each other's nominal jurisdiction according to the particular demands of the work situation. In performing these functions, the shippers are responsible to a yard manager and must perform their jobs under the rules provided by the collective bargaining agreement between the Warner Company and the drivers' union.

Following a petition filed by the union seeking to organize the shippers, the regional director of the Board ordered a representation hearing. Warner Company's position, at this hearing and at all times since, has been that the unit sought by the petitioning union is inappropriate solely because it consists entirely of supervisors. The evidence received at the hearing consisted of a few undisputed exhibits and the testimony of one witness, the Warner Company manager of industrial and public relations. The regional director found upon this record that, inter alia, "* * * Although * * * the facts herein are delicately balanced * * * the shippers * * * are not supervisors within the meaning of Section 2(11) of the Act * * *. Eastern Greyhound Lines, 138 NLRB 8 * * *."*fn1

The supervisory status of given employees has frequently been litigated before the Board and the courts. The question is important because under the National Labor Relations Act, as amended by the Labor Management Relations Act of 1947, supervisors are deprived of the right to organize and to bargain collectively under the Act's protection. NLRB v. Edward G. Budd Mfg. Co., 169 F.2d 571 (C.A. 6, 1948), cert. denied sub nom. Foreman's Assn. v. Edward G. Budd Mfg. Co., 335 U.S. 908, 93 L. Ed. 441, 69 S. Ct. 411 (1949). Supervisors are excluded from the coverage of the term "employee" in Section 2(3), and Section 14(a) provides that employers subject to the Act are not obligated to treat supervisors as employees for the purpose of any laws relating to collective bargaining. Therefore, if a unit certified by the Board contains supervisory personnel, the unit is improper and the employer does not have to bargain with it.

Supervisory personnel are distinguished from employees by Section 2(11) of the Act which provides:

"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."

An employee will be deemed a supervisor under the Act if he possesses any one of the types of authority listed in Section 2(11) and the exercise of such authority is nonroutine and entails the use of independent judgment. E. g. West Penn Power Co. v. NLRB, 337 F.2d 993, 996 (C.A. 3, 1964).

The distinction between employees and supervisors is frequently difficult to draw: "* * * the gradations of authority 'responsibly to direct' the work of others from that of general manager or other 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 & Co., 292 F.2d 561, 563 (C.A. 1, 1961). While such deference to the Board's determination is necessary, upon an appeal we must examine the record as a whole to determine whether there is substantial evidence to support the Board's findings. "* * * [A] reviewing court is not barred from setting aside a Board decision when it cannot conscientiously find that the evidence supporting that decision is substantial, when viewed in the light that the record in its entirety furnishes, including the body of evidence opposed to the Board's view." Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 95 L. Ed. 456, 71 S. Ct. 456 (1951).

Since it is only necessary that the shippers exercise one of the types of authority listed in Section 2(11), supra, we need not here review each function performed by them.*fn2

The Power to Adjust Grievances

In his decision after the representation hearing, the regional director found that "* * * The record also shows that the shippers handle minor complaints, but that written grievances are referred to the Yard Manager in accordance with contractual provisions." Therefore, he concluded that "* * * The manner of grievance handling, the elaborate and detailed contractual provisions governing hiring and employment conditions, and the highly centralized and comprehensive ...

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