Highland Superstores, Inc. v. National Labor Relations Board

MEREDITH, District Judge,

dissenting:

My learned colleagues, Judge Wellford and Judge Nelson believe that all six lead- *924 men were not supervisors within the meaning of the statute. I disagree. I believe, as did the Regional Director, that all six leadmen were supervisors within the plain meaning of the statute. Consequently, I believe that none of them should have been allowed to vote in the certification election.

In many circumstances, the error in finding that the leadmen were not supervisors and, thus, were entitled to vote would be harmless error because of the margin of victory or defeat for the Union. In the present circumstances, however, the Union won by a mere two votes, 24-22. Assuming that the six leadmen voted for the Union by at least a 4-2 margin, an assumption that seems perfectly valid in light of the pro-Union activity of the leadmen, 1 their votes provided the margin of victory. Had the Board followed the statute and found them to be supervisors, the Union, in order to prevail, would have to win the support of 21 of the 40 non-leadmen. Given that, with the leadmen voting, the Union only received 24 votes and given the pro-union activity of the leadmen, I find it difficult, if not impossible, to believe that 21 of the non-leadmen supported the Union. Indeed, if one is to assert that 21 of the 24 votes for the Union came from non-lead-men, then, by mathematical necessity, one has to assert that no more than 3 of the 6 leadmen voted for the Union. Because of their extensive record of pro-union activities, I find it impossible to believe that the leadmen deadlocked 3-3 or voted against the Union. Thus, the Board’s decision that the six leadmen were not supervisors can hardly be characterized as harmless error. Indeed, as illustrated supra, it changed the outcome of the election.

Although I firmly believe that all six of the leadmen are supervisors within the meaning of the statute, I will concede that the supervisory status of four of the lead-men, Frank Brod, Dino Grando, Jerry Kuli-kowski, and Steve Powell, is less than clear. Yet, because the margin of victory was only two votes, the issue of whether these four were supervisors is actually irrelevant to the present case. As explained infra, it is clear that the other two leadmen, Tim Balmes and Frank Coiangelo, performed a multitude of supervisory functions and, thus, must be considered supervisors. If, as I believe, both Mr. Balmes and Mr. Coiangelo were supervisors, and, if they voted for the Union, then the election clearly was tainted. Without their votes, the election would be deadlocked at 22-22 and the Union would not be certified.

Because it is only necessary to find that two of the six leadmen were supervisors in order to invalidate the election, I will not dwell on my reasons for believing that all six leadmen are supervisors. Instead, I will explain, in some detail, why it is obvious that both Mr. Balmes and Mr. Coiange-lo are supervisors within the meaning of the statute.

Under the National Labor Relations Act, a “supervisor” is defined as

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 direct them, or to adjust their grievances, or to effectively recommend such actions, if in connection with the foregoing the exercise of such authority is not of a merely routine or a clerical nature, but requires the use of independent judgment.

N.L.R.A., 29 U.S.C. Section 152 (11) (emphasis added). Furthermore, it is clear that, in this Circuit, the exercise of any one of the various functions is sufficient to establish an employee as a supervisor. NLRB v. Detroit Edison Co., 537 F.2d 239, 242 (6th Cir.1976). As explained infra, the record clearly demonstrates that there is substantial evidence that both of the men exercised a multitude of the supervisory functions on a regular basis.

There is substantial evidence that Mr. Balmes is a supervisor. For several hours each and every evening, Mr. Balmes is *925 without supervision of any kind. For that extended period of time, he is the only authority for the men under him and his orders cannot be immediately countermand-, ed by going to the next level. If being the sole authority for ten employees for several hours each and every evening does not constitute the responsible direction of other employees using independent judgment, then what does? Furthermore, on at least one occasion, Mr. Balmes, without consulting any of his superiors, sent an employee home for disciplinary reasons. Certainly, this action constitutes the discipline of employees. Finally, he provides performance evaluations of the employees under him to his supervisors and these evaluations are followed almost without exception. Obviously, this constitutes the effective recommendation of discipline. Under the prior case law of this Court, any one of these factors would be sufficient to make Mr. Balmes a supervisor. Yet, the Board obviously has chosen to ignore the sum of all of this evidence in making its determination. If it had looked at this evidence it would have been compelled to reach the opposite result. Thus, I am forced to conclude that the Board’s decision regarding Mr. Balmes was not based on substantial evidence.

With regard to Mr. Colangelo, the evidence of supervisory functions is even more substantial than that for Mr. Balmes. When trucks arrive at the Highland loading dock during his shift, it is Mr. Colangelo, not anyone else, who determines how the trucks will be unloaded, which trucks will be unloaded first, how many men will work on each truck, and which men will work together on an unloading crew. His decisions vary greatly depending on the circumstances presented. Indeed, the trucking firms know him as the “receiving supervisor.” Clearly, these actions are the direction of fellow employees in a non-routine manner requiring independent judgment. Furthermore, on at least one occasion, he disciplined an employee for smoking and on another occasion he sent an employee home for disruptive behavior. If this is not the discipline of employees, then what is it? Finally, he makes recommendations to his supervisor about the performance evaluation of those below him and these recommendations are almost universally adopted. Obviously, this practice constitutes the effective recommendation of reward and discipline. A finding of any of these functions is sufficient to make Mr. Colangelo a supervisor. The fact that the Board chose to ignore this evidence and conclude the opposite only demonstrates to me that there is no substantial evidence for the Board’s decision regarding Mr. Colan-gelo.

Although a conclusion that Mr. Balmes and Mr. Colangelo were supervisors is sufficient to taint the election, the record shows that there is ample evidence as to the supervisory status of the other four leadmen. For example, Mr. Brod is the only supervisor on duty at least one day each week. Mr. Grando bears the responsibility of scheduling crew members to meet the fluctuations in the number of trucks arriving and departing. Finally, Mr. Kuli-kowski and Mr. Powell have supervisory authority that is very similar to that exercised by the other four. Thus, every one of these individuals can be regarded as a supervisor.

Because I believe that all of the six lead-men were supervisors, I believe that it was improper for them to vote in the election and, consequently, that the election was tainted. Even if I am incorrect about four of the leadmen being supervisors, it is clear that both Mr. Balmes and Mr. Colangelo were supervisors. The votes of these two are enough to taint the election requiring a reversal of the Board’s decision and a new certification election in which none of the six leadmen would participate. For these reasons, I respectfully dissent.

. Indeed, I believe that the six leadmen voted 6-0 in favor of the Union. I base this belief on the multitude of pro-union activities and statements made by the six leadmen. Mr. Coiangelo, who, as explained infra, was clearly a supervisor, was particularly vocal and active in his support of pro union activities.