NLRB v. North Arkansas Electric Cooperative, Inc.

• Decision Date: 12 August 1971
• Docket Number: No. 19437.,19437.
• Citation: 446 F.2d 602
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. NORTH ARKANSAS ELECTRIC COOPERATIVE, INC., Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

446 F.2d 602 (1971)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. NORTH ARKANSAS ELECTRIC COOPERATIVE, INC., Respondent.

No. 19437.

United States Court of Appeals, Eighth Circuit.

August 12, 1971.

Elliott Moore, Atty., N. L. R. B., Washington, D. C., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Richard S. Robin, William J. Avrutis, Attys., N. L. R. B., for petitioner. Gaines N. Houston, Little Rock, Ark., for respondent.

Before VAN OOSTERHOUT, HEANEY and ROSS, Circuit Judges.

ROSS, Circuit Judges.

The National Labor Relations Board seeks enforcement of its order requireing reinstatement of Jack Lenox, a North Arkansas Electric Cooperative, Inc. managerial employee, on the grounds that North Arkansas violated § 8(a) (1) and (3) of the National Labor Relations Act by discharging Lenox for failing to remain neutral during a union organizational campaign. We deny enforcement.

This case was before us in 1969, N. L. R. B. v. North Arkansas Electric Cooperative, Inc., 412 F.2d 324 (8th Cir. 1969), at which time it was remanded to the Board for a determination of "whether or not the discharge of Lenox, as a `managerial employee' under all the circumstances of the case, was or was not violative of the Act." Id. at 328. We held that the Board's determination that Lenox was not a "managerial employee" was in error, but instructed the Board to determine on remand "whether an employer has a right to discharge a `managerial employee' for expressing favorable opinions of a union during the course of a representation election." Id. at 325. On remand the Board determined that even though Lenox was a "managerial employee" he was nevertheless an "employee" as defined in § 2(3) of the Act and again seeks enforcement of its order. North Ark. Electric Coop., 185 N.L.R.B. No. 83, 75 L.R.R.M. 1068 (1970).

In this Court's prior decision, the facts relating to Lenox's employment were carefully set forth by Judge Heaney as follows:

"Lenox was one of two electrification advisors employed by this rural electrification cooperative. He scheduled his own time and activities. He was treated as part of management as far as wages and benefits. He was paid on a monthly basis like other management personnel; he received no extra pay for overtime; and, he was carried on the insurance program of management. He actively participated with other management personnel in semi-annual meetings; the purpose of which was to plan new programs and secure new customers. He assisted in conducting employee training sessions.

"Lenox served as a spokesman for the cooperative in the rural communities within the district in which he was stationed. He attended numerous meetings and made frequent speeches on behalf of it. He prepared and placed advertising material on the radio, in newspapers and other publications. While most of the prepared advertisements were of an institutional nature, Lenox not only determined when they would be placed but, on frequent occasions, designed the advertising to meet competitive problems with other fuels. Compare, A. S. Abell Company, 81 N.L.R.B. No. 16, 23 L.R.R.M. 1298 (1949), where editorial writers in a large newspaper were deemed not to be `managerial employees.\'

"Lenox was manager of the Arkansas Adequate Wiring Bureau, of which North Arkansas was a member. He inspected and certified wiring in homes or buildings. He determined whether the customers could qualify for all-electric rates and adjusted customer complaints.

"Lenox was excluded from the bargaining unit at the time of the representation election by agreement between the company and the union. While neither the Board nor this Court are bound by the understanding between the parties, the fact that he was excluded in indicative of the view that was taken of his job by those in a position to closely observe what he did.

"In summary, we believe that the record amply demonstrates that Lenox exercised discretion in the performance of his duties and that the nature of his responsibilities were such as to closely ally him with management." N. L. R. B. v. North Arkansas Electric Cooperative, Inc., supra, at 327-328.

The opinion then set forth the conclusion of our Court:

"We are also convinced, from a review of the decided cases, that had this issue been presented to the Board in the context of a representation election that the Board would have excluded Lenox as a `managerial employee.\' Fresno Auto Auction, Inc., 167 N.L. R.B. No. 124, 66 L.R.R.M. 1177 (1967); Gulf States Telephone Co., 118 N.L.R.B. No. 141, 40 L.R.R.M. 1309 (1957); General Telephone Company of Ohio, 112 N.L.R.B. No. 152, 36 L.R.R.M. 1178 (1955). It cannot, irrespective of the illegality or unfairness of the discharge, be permitted to reach a different result because the question is presented in the context of an unfair labor practice." Id. at 328.

The only question presented to the Board upon remand was whether as a "managerial employee" Lenox was protected from discharge for failing to remain neutral in a union representation election by § 8(a) (3) and (1) of the Act.¹ The sole question presented to us in this application for enforcement is the correctness of the Board's decision that Lenox was so protected.

Subsection (3) of 29 U.S.C.A. § 152, defines "employee" as used in the Act; subsection (11) defines "supervisor."²

Both prior and subsequent to the 1947 amendment, there were many decisions of the NLRB which indicated that the Board considered managerial employees excluded from the coverage of the Act.

This was acknowledged by the brief of the General Counsel for the NLRB in the first application for enforcement:

"While the Act makes no specific provision for `managerial employees\', the Board has long held this category of personnel to be excluded from the protection of the Act. Thus, early in the administration of the Act, the Board initiated a policy, which continues to this date, of excluding from bargaining units of rank-and-file workers, to whom Congress intended to accord the right of self-organization, those individuals who formulate, determine, and effectuate management policies.9 This exclusionary practice rests on the premise that the functions and interests of such individuals are more closely allied with those of management than with production workers, and therefore, that they are not truly `employees\' within the meaning of Section 2(3) of the Act, as read in conjunction with Section 2(2). See, Retail Clerks International Ass\'n v. N. L. R. B. 125 U.S.App.D.C. 63, 366 F.2d 642, 645 (C.A.D.C., 1966), cert. denied 386 U.S. 1017 87 S.Ct. 1373, 18 L.Ed.2d 455. (Emphasis supplied.)

9. Ford Motor Company, 66 NLRB 1317, 1322 (1946); Palace Laundry Dry Cleaning Corp., 75 NLRB 320, 323, n. 4 (1947); Transit Casualty Company, 83 NLRB 857, 859 (1949); American Broadcasting Company, 107 NLRB 74, 79 (1953); Swift and Company, 115 NLRB 752, 753-754 (1956); AFL-CIO, 120 NLRB 969, 973 (1958); Eastern Camera and Photo Corp., 140 NLRB 569, 571 (1963). This exclusionary policy has been approved by the courts. See, for example, Retail Clerks International Ass\'n, AFL-CIO v. N.L.R.B. 125 U.S.App.D.C. 63, 366 F.2d 642 (C.A.D.C., 1966), cert. denied, 386 U.S. 1017 87 S.Ct. 1373, 18 L.Ed.2d 455; Amalgamated Meat Cutters etc. v. N.L.R.B. 99 U.S. App.D.C. 24, 237 F.2d 20, 27 (C.A. D.C.1956), cert. denied, 352 U.S. 1015 77 S.Ct. 556, 1 L.Ed.2d 545; International Ladies\' Garment Workers\' Union v. N.L.R.B., 339 F.2d 116, 123 (C. A. 2, 1964); N.L.R.B. v. Swift and Company, 292 F.2d 561, 563-564 (C.A. 1, 1961); N.L.R.B. v. Armour and Company, 154 F.2d 570, 574 (C.A. 10, 1946), cert. denied, 329 U.S. 732 67 S.Ct. 92, 91 L.Ed. 633." Brief for Petitioner at 9010, 412 F.2d 324 (8th Cir. 1969).

In determining whether the NLRB in its second decision on this case was correct in reversing its admittedly "long held" position that managerial employees are "excluded from the protection of the Act," we turn to the legislative history of the Labor-Management Relations Act of 1947.

Prior to the 1947 amendments, the NLRB had interpreted the word "employee" to include supervisors and one purpose of the amendments was to exclude supervisors from the coverage of the Act.

The House bill amending the National Labor Relations Act in 1947 (H.R. 3020) contained language defining those to be excluded from the definition of "employees" which was different from the Senate version. The conference report submitted to the Senate by Senator Taft contained the following statement:

"Supervisors: Both the House bill and the Senate amendment excluded supervisors from the individuals deemed to be employees for the purposes of the act. There was a sharp divergence between the House and Senate, however, with respect to the occupational groups which fell within this definition. The Senate amendment, which the conference ultimately adopted, is limited to bona fide supervisors. The House, had included numerous other classes. There were generally (A) certain personnel who fix the amount of wages earned by other employees, such as inspectors, checkers, weighmasters, and time-study personnel (B) labor relations personnel, police, and claims personnel, and (C) confidential employees. The Senate amendment confined the definition of supervisor to individuals generally regarded as foremen and employees of like or higher rank.

"In the case of persons working in labor relations personnel and employment divisions, it was not thought necessary to make specific provision, as was done in the House bill, since the Board had treated, and presumably will continue to treat, such persons as outside the scope of the act. This is the prevailing Board practice with respect to confidential secretaries as well, and it was not the intention of the conferees to alter this practice in any respect. The conference agreement does not treat time-study personnel or guards as supervisors, as

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