341 F2d 576 Vega v. National Labor Relations Board

341 F.2d 576

Rafael VEGA et al., Petitioners,

No. 6289.

United States Court of Appeals First Circuit.

Feb. 23, 1965.

Ginoris Vizcarra, Santurce, P.R., with whom Sarah Torres Peralta, Santurce, P.R., was on the brief, for petitioners.

Norton J. Come, Asst. Gen. Counsel, with whom Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Melvin J. Welles, and Robert A. Armstrong, Washington, D.C., Attys., were on the brief, for respondent.

Before ALDRICH, Chief Judge, MARIS,1 Circuit Judge, and FORD, District Judge.


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This petition for review by five discharged employees whose complaint was dismissed by the National Labor Relations Board raises the single question of whether petitioners were supervisors, and hence not within the protection of the Act. The trial examiner, in a careful and detailed report, reached the conclusion that they were not supervisors. On review by a three-member panel two members, although in most respects adopting the subsidiary findings of the trial examiner, reached the opposite conclusion. Crimptex, Inc., 145 N.L.R.B. No. 50, December 16, 1963. One member would have accepted the trial examiner's report in toto.


No purpose would be served by our repeating the findings. As counsel for the Board candidly admits, the question is close. However, we have repeatedly stated that a broad discretion must be given to the Board on this issue. In this case we regard it as of considerable importance that if the petitioners were not supervisors the company's employees were entirely without supervision a large part of the time. Cf. N.L.R.B. v. Supreme Dyeing and Finishing Corp., 1 Cir., 1965, 340 F.2d 493. In such circumstances it was not unreasonable to conclude that even the relatively small amount of supervisory power conferred upon and exercised by petitioners made them representatives of the employer.




By designation