National Labor Relations Board v. Aerovox Corporation of Myrtle Beach, South Carolina

BOREMAN, Circuit Judge

(concurring specially):

While concurring in the decision to enforce the Board’s order I feel that one confusing aspect of this case, i.e., alleged unlawful suspension of Mary Mishoe and Arlene Hucks, may warrant some elaboration and additional comment. This is because I was at first convinced that the suspensions were justified and not in violation of the Act.

The company contends that Mishoe and Hucks were assistant supervisors, and as such were part of management, subject to disciplinary action for engaging in pro-union activities. These two employees were wearing union badges, were suspended and have not since been rehired. The company further contends that Mishoe and Hucks should have been considered supervisory personnel because assistant supervisors had been determined to be “supervisors” within the meaning of the Act at a prior representation hearing. It is unquestioned that, at the representation hearing, there was a stipulation between the company and the union that all foremen, assistant foremen, supervisors and assistant supervisors were “supervisors” within the meaning of the Act and there were stipulations also that certain named assistant supervisors were within the supervisory structure. However, it is not easily determinable just what effect such stipulations had upon the status of Mishoe and Hucks due to the confusing inconsistency with which the parties treated the status of “material handlers” or “assistant supervisors.”

Such confusion is evidenced in the Board’s treatment of the status or classification of such persons. Since all parties seemingly agreed that there is no substantial difference between “material handlers” and “assistant supervisors”, it would appear that the stipulation that assistant supervisors were to be treated as supervisors would indicate that material handlers should also be treated as assistant supervisors. Yet, the Board insists that the status of all material handlers was not determined at the representation hearing.

*1213 Even more surprising is the discovery that the company obviously did not think that the status of some “material handlers” or “assistant supervisors” had been determined at the representation hearing since it included at least five assistant supervisors, among them Mishoe and Hucks, on its list of employees eligible to vote in the election, 1 while now contending that such persons were part of management. Furthermore, the company failed to challenge one vote at the election which the Board challenged on the basis that the voter was an assistant supervisor; this would additionally indicate that the company was not then as certain as it now claims to be that all assistant supervisors had been determined at the representation hearing to be part of management and therefore ineligible to vote.

In support of its contention that the status of all material handlers or assistant supervisors had not been determined at the representation hearing the Board notes that following the election its Regional Director determined that a hearing would be necessary in order to ascertain the validity of four challenged votes on the ground that these voters were assistant supervisors. This hearing was never held since it appeared that these votes would not determine the outcome of the election. This further supports the Board’s contention that the status of certain assistant supervisors (including Mishoe and Hucks) had not been determined at the representation hearing.

In light of the confusing inconsistency with which the parties treated the status of “material handlers” or “assistant supervisors”, I am persuaded to reject the company’s claim that there was a clear determination at the representation hearing that aU assistant supervisors or material handlers were to be considered a part of management. The company’s inclusion of the names of Mishoe and Hucks and at least three other “assistant supervisors” on the voting eligibility list strengthens the Board’s position that the status of such employees had not been resolved at the representation hearing; the company’s excuse that the confusion resulted from a malfunctioning IBM run is unpersuasive since the company certainly could and should have checked the accuracy of the voting eligibility list prior to its submission.

Being unable to say that the status of all assistant supervisors or material handlers had been clearly determined at the representation hearing, it is necessary to look to the testimony introduced in the unfair labor practice hearing to determine whether Mishoe and Hucks were employees entitled to vote or supervisors subject to disciplinary action. The Board found that they were not supervisors due to the nature of their work and their lack of managerial powers. The trial examiner credited testimony to the effect that they were not told that they were supervisors nor were they invited to attend any supervisors’ meetings until the day of their suspension; he found that these two employees lacked “scope for independent judgment or discretion.” Recognizing that the nature of work performed rather than formal title is determinative as to whether a job is supervisory, I reach the conclu *1214 sion that there is substantial evidence in the record to support the Board’s determination that Mishoe and Hueks were nonsupervisory employees and that they were suspended in violation of §§ 8(a) (1) and (3).

. If do not have available for examination the voting eligibility list which the company prepared, but I accept the hearing examiner’s finding that the company did include names of some assistant supervisors, among them Mishoe and Hucks, especially since the company does not deny that such names were included on the list but instead tries to explain such inclusion by stating that this was the result of a malfunctioning IBM run.

The list of challenged votes, a copy of which is included in the appendix before us, docs include the names of four assistant supervisors, including Mishoe, whose votes were challenged on the basis that they were assistant supervisors. Arlene Hucks was apparently included on the voting eligibility list, but was unable to be present on the day of the election so she did not cast a ballot.