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05/27/71 Oil, Chemical and Atomic v. National Labor

May 27, 1971

OIL, CHEMICAL AND ATOMIC WORKERS INTERNATIONAL UNION, AFL-CIO, PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD, RESPONDENT' GEORGE A. ANGLE D/B/A KANSAS REFINED HELIUM COMPANY, INTERVENOR.

COMPANY, PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD, RESPONDENT 1971.CDC.135



UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

George A. Angle d/b/a Kansas Refined Helium

APPELLATE PANEL:

McGowan and Tamm, Circuit Judges, and Matthews,* Senior District Judge.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCGOWAN

McGOWAN, C. J.:

These petitions for review, filed by the union (Oil, Chemical and Atomic Workers International, AFL-CIO) and the employer (Kansas Refined Helium Company), bring before us two related orders of the National Labor Relations Board. The Board has also filed a cross-petition for enforcement. Finding upon examination of the numerous issues raised that the Board has committed no errors of law and that its findings are amply supported by substantial evidence, we deny both petitions for review and grant the Board's request for enforcement. I

The issues presented here arise from a fact pattern which has become familiar to this court and to the other Courts of Appeals in reviewing the Board's unfair labor practice decisions. The dispute in this instance arose under the following circumstances. Shortly after the employer took over the operation of a newly constructed helium plant, the union with the assistance of several key employees launched a campaign to organize the plant's production and maintenance personnel. The union quickly obtained signed union authorization cards from 18 of the 22 employees involved. Upon being notified that a majority of its employees had signed cards designating the union as their collective bargaining representative, the employer called for a formal election to be conducted by the Board.

During the months before the scheduled election the employer, through the conduct of its sole owner, engaged in numerous activities in an apparent effort to dissipate employee enthusiasm for union representation. The Trial Examiner found that the employer had committed unfair labor practices in violation of Section 8(a)(1) of the Labor Management Relations Act, 29 U.S.C. § 158(a)(1) (1964), by coercively interrogating each employee in the plant, by making statements to several of its employees in the plant, by making statements to several of its employees indicating an animus toward the union, and by making veiled threats against the union and its sympathizers in a speech at a dinner given for all the employees. The Examiner also found violations of Sections 8(a)(3), (5), and (1) of the Act, 29 U.S.C. § 158(a)(3), (5), (1) (1964), in (a) the discriminatory discharge of 6 pro-union employees, (b) the granting of a unilateral wage increase immediately prior to the date scheduled for the election, and (c) the persistent refusal to bargain with the employees' designated representative. The Board approved each of the Examiner's conclusions, 176 NLRB No. 115, and since, viewed as a whole, the record amply reflects the existence of substantial supporting evidence, we affirm the Board's findings. *fn1

The second Board order under review, 176 NLRB No. 116, deals exclusively with the suspension and second discharge of one of the 6 pro-union employees who had been previously discharged and reinstated. The Trial Examiner and the Board found that this discharge constituted an unfair labor practice offending Sections 8(a)(3), (4), and (1), 29 U.S.C. 158(a)(3), (4), (1) (1964). This finding is also clearly founded upon substantial evidence, and we leave it undisturbed.

In so sustaining the Board's orders as against the claims of error pressed upon us by the employer, *fn2 the single substantive issue meriting extended exposition is the "aging but nevertheless persistently vexing problem of whether or not an employee is a supervisor." *fn3 That inquiry here focuses on the status of the plant's "senior operators." II

The Labor Management Relations Act in terms confers upon employees the rights of self-organization, collective bargaining through chosen representatives, and engaging in concerted activities for their mutual benefit. Section 7, 29 U.S.C. § 157 (1964). The Act further protects employees from the unfair labor practices of their employers which interfere with those rights. Section 8(a), 29 U.S.C. § 158(a) (1964). Section 2 (3), as pertinent to our consideration, defines the term "employee" as follows: "The term 'employee' shall include any employee . . . but shall not include . . . any individual employed as a supervisor . . . ." 29 U.S.C. § 152(3) (1964). Given this statutory framework, it is critical, both in ascertaining the appropriate bargaining unit and in evaluating allegations of unfair labor practices, to determine whether particular individuals are "employees" or "supervisors." *fn4 Quite understandably, this statutory dichotomy has spawned substantial Board and appellate litigation. The statutory definition with which we deal reads in full:

"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 responsibility 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 merely routine or clerical in nature, but requires the use of independent judgment."

Section 2(11), 29 U.S.C. § 152(11) (1964).

The Board found the class of employees in question here not to be supervisors. In applying the statutory test to the factual setting of this case, the Board's decision is, of course, entitled to great weight. The substantial evidence standard for review of agency fact determinations (Sections 10(e), (f), 29 U.S.C. § 160(e), (f) (1964)) takes on special significance where the issue lies so squarely within the Board's ambit of expertise. ...


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