ARA Leisure Services, Inc. v. N.L.R.B.

• Decision Date: 28 January 1986
• Docket Number: I,No. 85-1368,No. 17,17,85-1368
• Citation: 782 F.2d 456
• Parties: 121 L.R.R.M. (BNA) 2598, 54 USLW 2431, 104 Lab.Cas. P 11,800 ARA LEISURE SERVICES, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. Printing and Graphic Communications Unionntervenor.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 456

782 F.2d 456

121 L.R.R.M. (BNA) 2598, 54 USLW 2431,

104 Lab.Cas. P 11,800

ARA LEISURE SERVICES, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent Printing and Graphic Communications Union No. 17, Intervenor.

No. 85-1368.

United States Court of Appeals Fourth Circuit.

Argued Nov. 7, 1985.

Decided Jan. 28, 1986.

Norman Buchsbaum (Douglas E. Koteen, Craig F. Ballew, Law Offices of Norman R. Buchsbaum on brief) for petitioner.

L. Pat Wynns (Rosemary M. Collyer, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Andrew F. Tranovich on brief), for appellee.

Before HALL, MURNAGHAN, and WILKINSON, Circuit Judges.

WILKINSON, Circuit Judge:

ARA Leisure Services, Inc. petitions for review of a decision by the National Labor Relations Board finding ARA guilty of unfair labor practices. ARA Leisure Services, Inc., 272 N.L.R.B. No. 199 (1984). Specifically, the Board adopted the decision of an Administrative Law Judge ("ALJ") that ARA violated sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act when it discharged certain novelty vendors from their jobs at a sports arena in Indianapolis, Indiana. Because we find no error in the Board's action, we deny the petition for review and grant enforcement of the Board's order.

I

ARA sells food, beverage and novelty items in Market Square Arena in Indianapolis under a concession lease agreement with Market Square Associates. ¹ The novelty vendors are classified either as "tableheads" or "helpers." In late 1982, twelve individuals served as tableheads. As the title implies, each was responsible for a tabletop operation selling novelty items in the concourse of the arena. Each tablehead worked closely with one or more helpers--hired by the tablehead--who assisted at the table or hawked items inside the arena itself. A total of twenty-six helpers worked at Market Square under this arrangement.

The instant dispute arose from the efforts of intervenor Printing and Graphic Communications Union No. 17 to organize ARA personnel at the arena. In December 1981, early in its organizational campaign, the union filed a representation petition for a unit of all ARA novelty and souvenir vendors at Market Square. The Board's Regional Director found the suggested unit inappropriate because these employees did not possess interests sufficiently distinct to warrant separate representation.

The union again filed a representation petition in November 1982, but broadened the suggested unit to include "[a]ll food, beverage, novelty and souvenir sales employees, all commissary employees, [and] all money room cashiers." ARA contested the propriety of this unit on two grounds. First, it argued that the tableheads were independent contractors, and therefore neither they nor their helpers were ARA employees. Alternatively, ARA characterized the tableheads as supervisors and therefore not within the coverage of the Act. See 29 U.S.C. Secs. 152(3), 164(a). On December 22, 1982, the Regional Director directed an election but excluded the tableheads as supervisors. The election was set for January 18, 1983.

In light of the finding that tableheads were supervisors, ARA sent a letter dated January 3, 1983 to seven tableheads who were members of the union's organizing committee. The letter informed these tableheads that they were discharged "for being disloyal to the Company concerning the union." The next day ARA wrote to the eighteen helpers of these tableheads that "your supervisor was discharged for disloyalty to the Company concerning the union" and "your services are no longer needed." On January 12, the Board postponed the election indefinitely.

In the subsequent unfair labor practice proceedings, the ALJ rejected ARA's assertion that the tableheads were independent contractors. He did, however, find their discharge as supervisors permissible under the doctrine of Parker-Robb Chevrolet, Inc., 262 N.L.R.B. 402 (1982), enforced sub nom., Automobile Salesmen's Union Local 1095 v. NLRB, 711 F.2d 383 (D.C.Cir.1983). The ALJ rejected--both on these facts and as a matter of law--the theory that the firing of supervisors constituted an unfair labor practice because it was intended to thwart the union activity of rank-and-file employees.

With respect to the discharge of helpers, however, the ALJ concluded that ARA's action was so inherently destructive of section 7 rights as to give rise to an inference of unlawful intent without need for specific proof. See NLRB v. Great Dane Trailers, 388 U.S. 26, 34, 87 S.Ct. 1792, 1797, 18 L.Ed.2d 1027 (1967); NLRB v. Erie Resistor Corp., 373 U.S. 221, 83 S.Ct. 1139, 10 L.Ed.2d 308 (1963). The ALJ also found sufficient specific evidence to warrant the inference of anti-union animus and concluded that the discharge of helpers violated sections 8(a)(1) and 8(a)(3). ² The Board adopted the relevant portions of the ALJ's decision, though it relied only on specific evidence of intent and found it unnecessary to consider the theory of Erie Resistor and Great Dane. It ordered ARA to reinstate the discharged helpers with back pay.

II

We note at the outset of this appeal, that a tablehead and a helper enjoy a very different legal status. The discharge of tableheads would be legal whether they are characterized as independent contractors or supervisory employees. Independent contractors, of course, are not protected by the Act and a company may terminate its relationship with its contractors without limitation, see 29 U.S.C. Sec. 152(3). Supervisors likewise enjoy no protection, id., and Parker-Robb, 262 N.L.R.B. 402, reaffirmed the settled principle that supervisors may be discharged for union activity. See Florida Power & Light v. International Brotherhood of Electrical Workers, 417 U.S. 790, 807-09, 94 S.Ct. 2737, 2746-47, 41 L.Ed.2d 477 (1974); Beasley v. Food Fair of North Carolina, 416 U.S. 653, 654-55, 94 S.Ct. 2023, 2024-25, 40 L.Ed.2d 443 (1974). In this case, the record leaves no doubt that the tableheads were supervisors, and we see no reason to question the conclusion that their discharge was legitimate. ³

The discharge of their helpers is another matter. ARA defends its discharge of helpers on two grounds. First, it argues that tableheads are independent contractors and, consequently, helpers departed simply because their employers--the tableheads--were released. Second, ARA asserts that the evidence of anti-union animus in the discharge of helpers is insufficient to establish an unfair labor practice, and attempts to show a legitimate business practice whereby helpers always depart with their tableheads. For the reasons explained below, we reject these contentions and direct enforcement of the Board's order.

A.

The Board's conclusion that ARA committed unfair labor practices by discharging the helpers rests upon its finding that the helpers were employees of ARA and not of the tableheads. This finding, in turn, is grounded in the characterization of tableheads as supervisory employees rather than independent contractors. ARA challenges that characterization here. On this question, the Board's decision, though "not one in which [it] had to apply its special expertise, should be upheld if the Board chose between two fairly conflicting views." NLRB v. Tri-State Transport Corp., 649 F.2d 993 (4th Cir.1981). See also, NLRB v. United Insurance Co., 390 U.S. 254, 260, 88 S.Ct. 988, 991, 19 L.Ed.2d 1083 (1968). Our examination of the record here convinces us that the Board did indeed choose between fairly conflicting views, and we accordingly affirm the finding that tableheads are employees of ARA.

In excluding independent contractors from the coverage of the Act, Congress intended that common law agency principles would govern the determination of employee/independent contractor status. United Insurance, 390 U.S. at 256, 88 S.Ct. at 989. Courts analyze this issue by applying the "right to control" test: "When the person for whom services are performed retains the right to control the manner and means by which those services are to be accomplished and particularly when that person provides supervision as to the details of the work, the workers are considered employees." Air Transit, Inc. v. NLRB, 679 F.2d 1095, 1098 (4th Cir.1982). See also, Yellow Taxi Co. v. NLRB, 721 F.2d 366, 374 (D.C.Cir.1983); NLRB v. A.S. Abell Co., 327 F.2d 1, 4 (4th Cir.1964); Restatement (Second) of Agency Sec. 220 (1958). It is the right to control, rather than the actual exercise of control, that is significant. NLRB v. Associated Diamond Cabs, Inc., 702 F.2d 912, 920 (11th Cir.1983). The test, however, is not narrowly focused on direct supervision, though of course such supervision is indicative of control. Instead, we must examine the relationship in its entirety, considering all the circumstances that suggest either employee or independent contractor status. See Associated Diamond Cabs, 702 F.2d at 919; Tri-State Transport, 649 F.2d at 995; Associated General Contractors of California, Inc. v. NLRB, 564 F.2d 271, 279 (9th Cir.1977).

Our examination of the relationship between ARA and the tableheads convinces us that the Board made a reasonable choice when it characterized tableheads as employees of ARA. We note that the company performs for the tableheads the kind of services one would expect from an employer. In contrast to cases where we have found independent contractor status, ARA makes all necessary payroll deductions for novelty personnel, including state and federal withholding taxes, Social Security, and worker's compensation. Cf. Air Transit, 679 F.2d at 1097; Tri-State, 649 F.2d at 996. There are other indicia of employee status as well. Tableheads must complete an employment application, sign in and out of work, abide by company rules contained in the ARA Employee Handbook, and face the customary sanctions of reprimand, suspension and...