Waterman and Moore, Circuit Judges, Bonsal, District Judge.*fn*
This case is before this court upon the petition of the National Labor Relations Board for the enforcement of its order against the respondent, Metropolitan Life Insurance Company (hereinafter referred to as Metropolitan), issued on March 23, 1967. The Board's decision and order are reported at 163 NLRB No. 71. The alleged unfair labor practices having occurred in New York City, where Metropolitan is engaged in the sale of various forms of insurance, this court has jurisdiction of the proceeding. Labor-Management Relations Act, 1947, § 10(e), 29 U.S.C. § 160(e).
Metropolitan's home office, located at One Madison Avenue, New York, N.Y., comprises two large building complexes, known as the North and South Buildings. Each individual building has engineering crews which maintain and operate various equipment in the building in three eight hour shifts. This equipment consists of, inter alia, heating and air conditioning installations, special air conditioning equipment for computers, ventilation devices, water and sanitary systems, pneumatic tubes, fans and refrigeration systems, and commissary and laundry equipment. Under the engineering division's chief engineer and his assistant, Metropolitan has an authorized complement of 79 employees attached to the operating crews. This complement includes one air conditioning engineer, four assistant air conditioning engineers, three operating engineers, nine watch engineers, six assistant watch engineers, seven engineers' assistants, eleven engineers' helpers, seventeen general helpers, and twenty-one wipers.
On June 18, 1965, pursuant to Section 9(c) of the Labor-Management Relations Act, 1947, 29 U.S.C. § 159(c), International Union of Operating Engineers, Locals 30-A, 30-B, and 30-C, AFL-CIO (hereinafter referred to as Local 30), filed with the Board its petition setting forth that it was entitled to represent the engineering division crews which maintain and operate the above described equipment. On August 9, a representation hearing was held, in which both Local 30 and Metropolitan participated.
On September 20, 1965, based upon the record in the representation hearing, the Regional Director issued his Decision and Direction of Election.*fn1 He concluded that the operating engineers, the air conditioning engineers, the assistant air conditioning engineers, and the watch engineers were all supervisors within the meaning of Section 2(11) of the Act. He found the following group of employees to be an appropriate unit for collective bargaining:
All assistant watch engineers, engineer assistants, engineer helpers, general helpers and wipers employed in the operating crew of the Employer's engineering division at One Madison Avenue . . . .
Although Local 30 did not object to the exclusion of the operating engineers and the air conditioning engineer, it maintained that the assistant air conditioning engineers and the watch engineers did not possess supervisory authority but were merely employees and therefore should be included in the collective bargaining unit. Consequently, the Local filed a timely request with the Board for review of the Regional Director's determination. By telegraphic order, dated November 5, 1965, the Board granted review and stayed the election the Regional Director had ordered.
In its Decision on Review the Board concluded that the watch engineers and the assistant air conditioning engineers were not supervisors and included them in the unit. Thereafter a secret ballot election was held on July 20, 1966 and forty-nine votes were cast in favor of Local 30 and twelve against representation. On July 28, 1966 the Regional Director certified Local 30 as the representative of the employees in the designated unit.
Following the certification Local 30 requested recognition and bargaining. Metropolitan formally declined this request on September 15, 1966. Local 30 then filed with the Board an unfair labor practice charge and the General Counsel issued a complaint alleging that the refusal to recognize and to bargain violated Sections 8(a)(5) and (1) of the Act. Metropolitan's answer admitted the refusal to bargain, but asserted that the refusal was lawful because the Board's determination that included the watch engineers and assistant air conditioning engineers in the bargaining unit was erroneous. The General Counsel thereupon moved for summary judgment on the ground that the only issue raised in defense had already been determined in the representation hearing adversely to Metropolitan.
On December 6, 1966 the Board issued a Notice to Show Cause why the motion for summary judgment should not be granted. Metropolitan's Memorandum in Opposition to the summary judgment motion did not assert that there was any newly discovered evidence relative to whether the watch engineers and assistant air conditioning engineers were supervisors but contended only that the Board's unit determination was incorrect.
Noting the absence of an allegation of special circumstances, the Board refused to reexamine the determination made in the representation proceeding, concluded that there were no material factual issues requiring a hearing, and granted the General Counsel's motion for summary judgment. Accordingly, the Board found Metropolitan's admitted refusal to bargain violative of Section 8(a)(5) and (1) of the Act, and ordered Metropolitan to bargain with Local 30 upon request and to post an appropriate notice. It is this order that the Board petitions us to enforce.
Under Section 9(b) of the Labor-Management Relations Act, 1947, the only persons who may properly be included by the Board in the units it deems appropriate for collective bargaining purposes are "employees." Excluded from the term "employee" is "any individual employed as a supervisor." Labor-Management Relations Act, 1947, § 2(3), 29 U.S.C. § 152(3). Section 2(11) of the Act defines "supervisor" as
Persons who fall within this classification of "supervisors" are consequently not entitled to the protections accorded "employees" under the Act and their employers are under no obligation to bargain with a union if the union's bargaining unit includes such persons. Therefore, if the persons whose status Metropolitan questions are supervisors, as defined by the Act, Metropolitan is not guilty of any ...