
USCA1 Opinion

	




          March 15, 1993        [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1351                           NATIONAL LABOR RELATIONS BOARD,                                     Petitioner,                                         and                       GENERAL WAREHOUSEMEN, SHIPPERS, PACKERS,                      RECEIVERS, STOCKMAN, CHAUFFEURS & HELPERS,                       LOCAL UNION NO. 504, affiliated with THE                       INTERNATIONAL BROTHERHOOD OF TEAMSTERS,                         CHAUFFEURS, WAREHOUSEMEN AND HELPERS                                 OF AMERICA, AFL-CIO,                                     Intervenor,                                          v.                           LINDENMEYR/MUNROE, A DIVISION OF                          CENTRAL NATIONAL GOTTESMAN, INC.,                                     Respondent.                                 ____________________                          ON APPLICATION FOR ENFORCEMENT AND                              PETITION FOR REVIEW OF AN                     ORDER OF THE NATIONAL LABOR RELATIONS BOARD                                 ____________________                                        Before                                Selya, Circuit Judge,                                       _____________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Boudin, Circuit Judge.                                          _____________                                ______________________            Nathan L. Kaitz with  whom Morgan, Brown  & Joy were on brief  for            _______________            ____________________        respondent.            Julie  Broido, Senior  Attorney, National  Labor  Relations Board,            _____________        with   whom  Peter  Winkler,   Supervisory  Attorney,  National  Labor                     ______________        Relations  Board, Jerry  M.  Hunter, General  Counsel, National  Labor                          _________________        Relations  Board,  Aileen  A.  Armstrong,  Deputy  Associate   General                           _____________________        Counsel,  National  Labor Relations  Board,  Yvonne  T. Dixon,  Acting                                                     ________________        Deputy General Counsel, National Labor Relations Board and Nicholas E.                                                                   ___________        Karatinos, Acting Associate General Counsel,  National Labor Relations        _________        Board, were on brief for petitioner.            Brian W.  Mellor with  whom Mark D.  Stern and the  Law Office  of            ________________            ______________          ______________        Mark D. Stern, P.C. were on brief for intervenor.        __________________                                 ____________________                                 ____________________                 Per  Curiam.   The  National Labor  Relations Board  has                 ___________            petitioned   to   enforce   its   order   against  respondent            Lindenmeyr/Munroe, a division  of Central National Gottesman,            Inc.  ("the  company").   The  order directs  the  company to            bargain with  Local 504  of the International  Brotherhood of            Teamsters,  Chauffeurs, Warehousemen  and Helpers  of America            ("the  union").  Agreeing that  the order is  valid, we order            its enforcement.                 Lindenmeyr/Munroe  operates  a  warehouse in  Mansfield,            Massachusetts, from which it distributes paper products.  The            company hired Donald Dooley on April  1, 1986 to serve as the            night shift  foreman.  On  March 28, 1989, the  union filed a            petition  with the Board seeking  to represent a  unit of the            company's warehouse employees.  The Board's Regional Director            issued a  direction of election  on May 10,  1989, permitting            Dooley  to vote as an employee subject to the company's claim            that he  was  a "supervisor"  within the  meaning of  section            2(11)  of  the  National Labor  Relations  Act,  29  U.S.C.              152(11).                 The Board conducted the election on June 8, 1989.  Aside            from Dooley's vote, the  tally of unchallenged ballots showed            eight  votes  for  the  company  and  eight  for  the  union.            Dooley's ballot  (which favored  the union) was  the deciding            vote.   The Board's Regional Director  then ordered a hearing            to be conducted before an administrative law judge to resolve                                         -3-                                         -3-            the issue of Dooley's  status.  The administrative  law judge            conducted  the  hearing, determined  that  Dooley  was not  a            supervisor,  and  directed  that  his ballot  be  opened  and            counted.  The  Board adopted the  recommended order, and  the            Regional Director  thereafter certified  the union.   On June            21,  1991,   the  union   requested  the  company   to  begin            bargaining.      The   company   refused,   citing   improper            certification of the bargaining unit as its basis.                 Upon the  company's refusal to bargain,  the union filed            an unfair labor  practice charge.   On August  15, 1991,  the            Regional Director  charged  that  the  company  had  violated            sections 8(a)(1) and (5)  of the Act, 29 U.S.C.     158(a)(1)            and  (5).  The company  admitted the refusals  to bargain but            asserted that  the union  was improperly certified  because a            determinative  vote was  cast  by a  supervisor.   On summary            judgment, the Board entered an order dated November 26, 1991,            finding  that the company had violated the Act as charged and            requiring that it bargain.   Enforcement of the order  is now            sought,  pursuant  to section  10(e)  of the  Act,  29 U.S.C.            160(e).                 The  sole   issue  is  whether  there   is  "substantial            evidence" in  the record to justify the  Board's finding that            Dooley was not a supervisor.  Universal Camera Corp. v. NLRB,                                          _____________________     ____            340 U.S. 474, 488 (1951).  Section 2(11) of the Act provides:                         The   term   "supervisor"  means   any                      individual   having  authority,   in  the                                         -4-                                         -4-                      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.            The  statute is  read in  the  disjunctive.   Any one  of the            enumerated  capabilities can  confer supervisory  status upon            the individual.  E.g., Maine Yankee Atomic Power v. NLRB, 624                             ___   _________________________    ____            F.2d  347,  360  (1st Cir.  1980).    However, gradations  of            authority  ranging from "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 and Company, 292 F.2d 561, 563                             ____    _________________            (1st Cir. 1961).                 In this  case, the  administrative law judge  found that            Dooley's work day was "almost indistinguishable" from that of            the  other warehousemen on his shift.  Dooley like the others            "picked"  orders  and  loaded   them  on  pallets  for  truck            delivery.   He  clocked in  and out,  was paid  on an  hourly            basis,  had no  office or  desk, did  no extra  paperwork and            attended  no management meetings.  Hiring  and firing was the            province  of Dooley's  own superiors.   Although  Dooley gave                                         -5-                                         -5-            certain orders, the administrative law judge found them to be            limited in scope, mechanical in nature, and involving no real            use of independent judgment.  The Board could thus reasonably            find that  Dooley exerted "the routine exercise  of a skilled            worker's control over  less capable employees, and  was not a            supervisor sharing  the power of management."   Goldies, Inc.                                                            _____________            v. NLRB, 628 F.2d 706, 710 (1st Cir. 1980).               ____                 The  company  argues  that  when it  hired  Dooley,  his            superiors  described his  authority  to him  in broad  terms,            including the power effectively to recommend discipline.  The            administrative law  judge  found  that  this  description  of            Dooley's authority had  been provided to Dooley  "once upon a            time," but  he also found that Dooley's  actual authority did            not  correspond to the original description.  While it is the            existence and not the  exercise of authority that establishes            supervisory status, NLRB v. Leland-Gifford Co., 200 F.2d 620,                                ____    _________________            625  (1st Cir. 1952), we think that the existence of Dooley's            authority was reasonably in dispute in this case.                 Specifically,  the administrative  law  judge  found  no            indication   that   Dooley   himself   had   ever   exercised            disciplinary  authority,  recommended   discipline  or   even            reported any  misbehavior of others to superiors.   There was            no evidence that other workers had ever been told that Dooley            had such  authority.  Indeed,  while Dooley  could report  or            recommend  anything  to management,  Dooley  himself observed                                         -6-                                         -6-            that  "anybody else could" too.  The picture painted by these            and  other facts  strongly suggests  that neither  Dooley nor            anyone  else behaved  as if  he had  been entrusted  with any            special disciplinary authority.  In sum, the Board's decision            is  a   reasonable  evaluation   of  the  facts   based  upon            substantial evidence.                 The petition for enforcement is granted.                                                 _______                                         -7-                                         -7-
