# National Labor Relations Board v. Z and L Lumber Company of Columbus > Court of Appeals for the Sixth Circuit · April 2, 1971 · 440 F.2d 51 URL: https://www.frixlaw.com/law-library/cases/9456656 ## Case - **Full name:** NATIONAL LABOR RELATIONS BOARD, Petitioner, v. Z AND L LUMBER COMPANY OF COLUMBUS, Respondent - **Court:** Court of Appeals for the Sixth Circuit - **Decided:** April 2, 1971 - **Citations:** 440 F.2d 51; 76 L.R.R.M. (BNA) 3063; 1971 U.S. App. LEXIS 10967 - **Precedential status:** Published - **Opinion:** Dissent by Weick - **Judges:** Weick, Celebrezze, Brooks - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9456656 ## Opinion text WEICK, Circuit Judge (dissenting in part). I dissent from that part of the opinion which upholds the Board’s finding that Robert Scurlock was a non-supervisory employee, rather than a foreman. Manager Howard McGowan testified that Scurlock was a foreman of the warehouse and yard, and as such was paid a salary of $120 per week, plus overtime, and a supervisory bonus which averaged $150 per month. 1 Employees Albert Ault, William Bach, Clarence Lewis and Arthur Conrad testified that Scurlock was their foreman. Scurlock’s successor, foreman James Clark, also testified as to his duties as foreman. Ault was a witness for the General Counsel and testified upon cross-examination. The only conflict in the evidence was the testimony of dischargees Scurlock and Veeck, who were obviously vitally interested in the outcome of the case. If Scurlock was a foreman the company had a right to discharge him without reference to any unfair labor practice. The Board should have taken into account their interest, but apparently it did not do so. In Automation & Measurement Div., Bendix Corp. v. N.L.R.B., 400 F.2d 141 (6th Cir. 1968), the Regional Director, acting sua sponte, without any request from either the company or the union, made a wholesale determination, which we disapproved as arbitrary, that sixty of the company’s job leaders were foremen. This determination of the Board was the converse of the result in the present case. The holding by the Board that the sixty leaders were foremen deprived them of the right to vote in a representation election. 2 The special expertise usually claimed by the Board does not relieve us of our duty to carefully scrutinize the evidence, *54 or require us to accept the Board’s findings, where, upon consideration of the record as a whole, we believe they are wrong. Universal Camera Corp. v. N.L.R.B., 340 U.S. 474 , 71 S.Ct. 456 , 95 L.Ed. 456 (1950). In my opinion, the company did not commit a Section 8(a) (1) or 8(a) (3) violation with respect to foreman Scurlock, and I would deny enforcement as to him. . Mr. McGowan testified : “Q. Now, wliat capacity did Mr. Scurlock serve in out there? “A. Mr. Scurlock was hired in as salesman and he worked out real good. I asked him to go out into the yard and take over as foreman of the warehouse and the yard. “Q. Now what are the duties of the yard foreman? “A. Well, he sees that stuff gets put away in the yard and he receives the stuff that comes into the yard. He takes care of — he has four or five employees out there, some part-time. He supervises these employees, sees that material gets loaded on the customers. And railroad cars come in, the unloaders report to him and lie sees it gets unloaded. He brings the tally in to me. We send the papers into Pittsburgh. And just general supervision of the yard and warehouse. “Q. Now, you say unloaders. Do you use other people to unload ears. “A. We use Manpower or Kelly labor. “Q. And you say all of these unloaders reported to Mr. Scurlock? “A. Yes, Mr. Scurlock or Mr. Clark or— *'Q. Whoever was in that position? “A. Right.” . Bendix job leaders had been included in the bargaining units as non-supervisory employees in five prior representation cases. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9456656. Public record. Not legal advice.