C & W Super Markets, Inc. v. N.L.R.B.

• Decision Date: 21 July 1978
• Docket Number: No. 77-1904,77-1904
• Citation: 581 F.2d 618
• Parties: 98 L.R.R.M. (BNA) 3311, 84 Lab.Cas. P 10,741 C & W SUPER MARKETS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 618

581 F.2d 618

98 L.R.R.M. (BNA) 3311, 84 Lab.Cas. P 10,741

C & W SUPER MARKETS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 77-1904.

United States Court of Appeals, Seventh Circuit.

Argued April 12, 1978.

Decided July 21, 1978.

D. Peter DeBruyne, Rockford, Ill., for petitioner.

Carol A. DeDeo, N.L.R.B., Washington, D. C., for respondent.

Before PELL and WOOD, Circuit Judges, and SOLOMON, Senior District Judge. ^*

HARLINGTON WOOD, Jr., Circuit Judge.

This matter comes to us on a petition by C & W Super Markets, Inc. (C&W) for review of an order of the National Labor Relations Board (NLRB or Board) requiring C&W to bargain with the retail Clerks Union Local 1354 (union) and to cease and desist from, and compensate certain aggrieved employees for, certain unfair labor practices. The Board has cross-petitioned for enforcement of its order. We deny C&W's petition and enforce the decision and order of the Board.

The facts are as follows. C&W owns and operates a grocery store in Rockford, Illinois. The store's organizational structure includes: the owner and president of the company, Robert Whitely; a store manager; an assistant manager, a slot which was vacant for much of the time period under consideration here; a group of stockers, including a number of department managers responsible for keeping various food departments stocked and smoothly operating; and a variety of other full-time and part-time employees, including cashiers, baggers, guards, office girls, etc.

In 1974, the position of store manager was held by Ken Dillenberg, who was aided by Terry Schabacker as assistant manager. In November of that year, Schabacker resigned his position in order to open up his own grocery store in Vermont. As that venture was not a success, in March of 1975 he asked to return to C&W. Dillenberg could not take him back as assistant manager, since Duane Schmidt had succeeded him in that position. Instead, Schabacker became a stocker, but at his previous hourly wage rate and with greater than normal powers and managerial responsibilities, partly due to his friendship with Dillenberg. Then, on August 4, 1975, Whitely dismissed Dillenberg and made Schmidt store manager. Schmidt decided to get by without an assistant manager for the time being and centralized all powers to hire and fire in himself. Schabacker and a number of other employees including Dennis King, Larry Buchanan, and Marilyn Palumino became concerned about their job security. Buchanan suggested that they try to get a union in the store and Schabacker asked Palumino to phone the Retail Clerks Union, Local 1354. The union sent Velma Skarvan out to talk to the employees about gaining recognition for the union. Over a two or three week period, meetings were held at various employees' homes and signed authorization cards were solicited from other employees, many of them by Schabacker, King and Buchanan. A total of 17 cards were collected by August 11, and four more shortly thereafter.

On August 14, the union sent the company a letter claiming to represent a majority of the employees at the Rockford store and requesting recognition and collective bargaining. The company refused and the union filed a petition with the NLRB seeking an election. After a hearing in late September to determine which employees should be included in the bargaining unit, the Regional Director of the NLRB ordered that an election be held. This order was upheld by the Board and the election was held on December 11, 1975. The union lost the election and filed timely objections.

C&W was charged with numerous unfair labor practices during the course of the election campaign which allegedly undermined and destroyed the union's majority status and made it impossible to hold a fair election. The alleged unfair practices included: threatening and interrogating employees, instructing employees not to engage in union activities, soliciting employee assistance in anti-union activities, promising to reward employees for not supporting the union, discharging and reducing the hours of employees for pro-union activities and for testifying before the NLRB, and refusing to hire a job applicant because of her union sympathies, all in violation of Sections 8(a)(1), (3), and (4) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1), (3), and (4) (the Act). C&W was also charged with refusing to bargain with the union in violation of Sections 8(a)(5) and (1) of the Act, 29 U.S.C. §§ 158(a)(5) and (1).

A hearing was held on these charges before an administrative law judge (ALJ), who found that C&W had indeed committed most of the violations charged. On March 23, 1977, the ALJ issued a decision in which C&W was ordered to cease and desist from any further unfair labor practices; to reinstate employees who had lost their jobs and make the aggrieved employees whole for lost wages; and to bargain with the Retail Clerks Union, Local 1354 as exclusive representative of the employees in the bargaining unit. C&W filed exceptions to the decision and on August 15, 1977, the Board adopted the ALJ's recommended findings and order. C&W now petitions this court to review the final order of the Board pursuant to Section 10(f) of the Act, 29 U.S.C. § 160(f). The NLRB has cross-petitioned for enforcement of its decision and order pursuant to Section 10(e) of the Act, 29 U.S.C. § 160(e).

I. The Supervisory Status of Terry Schabacker, Dennis King and Larry Buchanan

C&W's first attacks on the Board's decision are based on its assertion that the Board erred in not finding that Terry Schabacker, Dennis King, and Larry Buchanan were "supervisors" within the meaning of Section 2(11) of the Act, 29 U.S.C. § 152(11). Such a finding would have two consequences of particular import here. Firstly, since supervisors are excluded from the protections of the Act, any sanctions imposed by the employer against such a person for pro-union activities or sympathies would not generally constitute an unfair labor practice under the Act. See R. Gorman, Basic Text on Labor Law § 6. Secondly, a finding of supervisory status raises the question of whether authorization cards solicited by such a person should be counted in determining whether a union represents a majority of the employees in a bargaining unit, in view of the possibility that the supervisor's solicitation role may have compromised the employees' expression of their true positions. See, e.g., NLRB v. WKRG-TV, Inc., 470 F.2d 1302 (5th Cir. 1973); Flint Motor Inn Co., 194 NLRB No. 115, '72 Lab. L. Rep. (CCH) P 23,738 (1971); Glomac Plastics, Inc., 194 NLRB No. 63, '72 Lab. L. Rep. (CCH) P 23,685 (1971).

Sec. 2(11) of the National Labor Relations Act provides:

(11) The term "supervisor" means any individual having authority, in the 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 congressional purpose in excepting supervisors from the coverage of the Act was

in part to assure that rank-and-file employees could unionize and select their leaders free from undue influence by supervisors in the union, but more important to assure that supervisors whether organized within a rank-and-file union or organized independently would not fall into league with or become accountable to employees who they were charged to supervise and thereby renounce the undivided loyalty due the employer. R. Gorman, Supra, At 34.

See also NLRB v. Security Guard Service, Inc., 384 F.2d 143, 147-48 (5th Cir. 1967); NLRB v. Pilot Freight Carriers, Inc., 558 F.2d 205, 207 (4th Cir. 1977). Thus, in the context of the present case, the concern with regard to the alleged Section 8(a)(1) and (3) violations is whether Schabacker, King and Buchanan were enough a part of management that C&W could rightly demand that they remain loyal to its position in the battle for unionization and discipline them for their pro-union activities. The second consideration is whether they held sufficient power over the employment conditions of the employees from whom they solicited authorization cards so as to constrain the latters' freedom of choice with respect to unionization.

In scrutinizing the Board's finding that Schabacker, King and Buchanan were not supervisors within the meaning of the Act, we must remain aware of our limited standard of review. The Board's determination must be upheld if supported by substantial evidence on the record considered as a whole. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951).

The facts with respect to the duties of these three employees during the period of time in question are as follows. Schabacker, King and Buchanan were all primarily stockers with responsibility for the day-to-day ordering, pricing, stocking and displaying of grocery items in particular areas of the store (respectively, dairy products, juice and glassware, and frozen foods). ¹ Each punched a time clock and was paid on an hourly basis, receiving no benefits different from those received by the other hourly employees. Schabacker earned the same hourly wage as when he was assistant manager, $0.50 more per hour than the next highest paid employee. King and Schabacker both had the authority to cash customers' checks and often reconciled sales reports with cash register receipts. They both knew the combination to the safe, and Schabacker would sometimes engage in banking transactions for the store involving thousands of dollars, signing drafts issued by Whitely. All three employees would upon occasion open the store in the morning or close it at night. King and Schabacker even had their own sets of keys.

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