FOOD STORE EMP. U., LOCAL 347, AMC & BW v. NLRB

• Citation: 422 F.2d 685
• Decision Date: 03 June 1969
• Docket Number: No. 21939.,21939.
• Parties: FOOD STORE EMPLOYEES UNION, LOCAL 347, AMALGAMATED MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA, AFLCIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, G. C. Murphy Co., Intervenor.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

422 F.2d 685 (1969)

FOOD STORE EMPLOYEES UNION, LOCAL 347, AMALGAMATED MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA, AFLCIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, G. C. Murphy Co., Intervenor.

No. 21939.

United States Court of Appeals District of Columbia Circuit.

Argued January 10, 1969.

Decided June 3, 1969.

COPYRIGHT MATERIAL OMITTED

Mr. Charles Orlove, Chicago, Ill., of the bar of the Supreme Court of Illinois, pro hac vice, by special leave of court, with whom Messrs. Mozart G. Ratner, Washington, D. C., and Albert Gore, Chicago, Ill., were on the brief, for petitioner.

Mr. Elliott Moore, Atty., National Labor Relations Board, with whom Messrs. Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, and Morton Namrow, Atty., National Labor Relations Board, were on the brief, for respondent.

Mr. Donald C. Bush, Pittsburgh, Pa., for intervenor.

Before BAZELON, Chief Judge, McGOWAN and TAMM, Circuit Judges.

BAZELON, Chief Judge:

The Food Stores Employees Union, Local 347, Amalgamated Meat Cutters and Butcher Workers of North America, claims that the National Labor Relations Board acted arbitrarily and capriciously in rejecting the conclusion of its trial examiner that the G. C. Murphy Company violated Section 8(a) (5) and (1) of the National Labor Relations Act¹ by refusing to recognize it as the representative of the employees in an appropriate unit of the company's store at Parkersburg, West Virginia. We find, to the contrary, adequate support for the Board's conclusion that the union had not attained majority status at the time of its demand for recognition in early April 1966. Since the union's other contentions, which deserve and will receive only brief mention, also lack merit, we affirm the order issued by the Board.

I

The union requested recognition in a unit consisting of all selling and production employees, stockroom employees and restaurant employees, excluding guards, the store manager, restaurant manager, office clerical employees, and supervisory employees. The trial examiner found that the union held valid authorization cards signed by 52 of the 83 employees in this unit, which he agreed was an appropriate one.² Since the trial examiner also found that the company "never intended to recognize the Union regardless of any majority it attained," he recommended an order that the employer "recognize and bargain with Local 347."

The Board found that the employer had violated Section 8(a) (1) in a variety of ways.³ In respect to the refusal to bargain, however, the Board concluded that an appropriate unit for this smallish retail store should include office clerical employees, and accordingly added five office girls and three merchandise girls to the unit described by the trial examiner. The Board also included in the unit six floor girls whom the trial examiner had excluded as supervisors, as well as three part-time workers excluded by the trial examiner as casual employees and one woman on sick leave whom the trial examiner had excluded as unlikely to return to work. Finally, the Board excluded as a casual employee a part-time worker included by the trial examiner.

The net effect of these modifications in the unit requested by the union and accepted by the trial examiner was to raise the number of employees involved from 83 to 100. Since none of the employees added had signed an authorization card, whereas the now excluded em-employee had, the number of valid authorization cards was reduced from 52 to 51. The Board also rejected three cards dated after the union's demand for recognition, as well as a card signed by one Virgina Poling who was not a member of the unit as defined by either the Board or the trial examiner. This reduced the number of valid cards to 47.⁴

At the completion of this process, the Board found that the union in April 1966 had not attained majority status in an appropriate unit of 100 employees. Consequently it rejected the order to bargain recommended by the trial examiner and dismissed the allegation that the company violated Section 8(a) (5) of the statute.

II

The union contends that the Board erred in determining an appropriate bargaining unit and, alternatively, that the unit requested by the union did not differ so substantially from the unit eventually approved by the Board as to relieve the employer of its duty to bargain collectively. The union's argument on this latter score is misplaced. We have held that an employer cannot claim to have had a good faith doubt a union requesting recognition represented a majority of his employees unless the "variance between the unit sought and the unit later found appropriate can be characterized as `substantial.'" Brewery & Beverage Drivers & Workers v. NLRB, 103 U.S.App.D. C. 190, 192, 257 F.2d 194, 196 (1958). But that is not the issue here.

A finding that an employer has violated Section 8(a) (5) by refusing to bargain requires two elements: "first, that a majority of the members of the appropriate bargaining unit have freely designated the Union as their bargaining agent; and, second, that the Company's denial of recognition was not in good faith." Amalgamated Clothing Workers of America v. NLRB, 124 U.S.App.D.C. 365, 373, 365 F.2d 898, 906 (1966). If the latter issue of good faith is at stake, the employer may sometimes justify a refusal to bargain by demonstrating a sincere belief that the union's requested unit was inappropriate and that the union did not enjoy majority status in any appropriate unit, or by showing that the unit demanded by the union varied so significantly from any appropriate unit that the request for recognition was too far from the mark to be valid.

But the "lack of good faith doubt is immaterial if in fact no majority existed." NLRB v. S. E. Nichols Co., 380 F.2d 438, 442 (2d Cir. 1967). And in this case the Board ruled not that the company acted in good faith, but that the union did not represent a majority of the employees in an appropriate unit. On this score, the degree of variance between the unit requested by the union and that found appropriate by the Board is immaterial: the question, and the only question, is whether a majority existed in the unit approved by the Board on the date the union demanded recognition.

III

The determination of an appropriate bargaining unit involves two inquiries. The first question is which individuals are "employees" within the policy of the Act; the next is what group within the class of employees shares a community of interests such that representation by a single bargaining agent will meet the statutory goal of "assuring to employees the fullest freedom in exercising the rights guaranteed"⁵ by the Act. The addition of three part-time workers and the exclusion of a fourth, as well as the inclusion of a woman on sick leave at the time of the recognition drive, involved the preliminary inquiry of who is an employee. The Board acted reasonably, we believe, in concluding that three women who worked respectively 10, 16 and 20 hours a week on a regular basis deserved to be included in any collective bargaining unit. Similarly, the exclusion of Leland Queen, who worked only irregularly as a replacement for absent or ill employees during March and April 1966, was also reasonable.

Rheba Dahmer had been receiving sick-leave benefits for approximately six months at the time of the union's demand for recognition. Partly because she was 60 years old, the trial examiner concluded there was no reasonable expectancy she would return to work. The Board disagreed. As with the part-time employees, we find no reason to reject the Board's determination. The fact that the Board reversed its trial examiner is of minimal importance. Unlike, for example, an alleged discriminatory discharge where demeanor evidence bearing upon intent may possibly entitle the findings of a trial examiner to special respect, the underlying facts were not in dispute here. The task rather was to decide from the undisputed facts whether these individuals should be considered employees. In exercising this judgment the Board owed no deference to its trial examiner. Cf. Universal Camera Corp. v. NLRB, 340 U.S. 474, 494-496, 71 S.Ct. 456, 95 L.Ed. 456 (1951); Oil, Chemical & Atomic Workers v. NLRB, 124 U.S.App.D.C. 113, 116, 362 F.2d 943, 946 (1966).

The same is true of the six floorgirls whom the trial examiner excluded as supervisors but whom the Board included. Section 2(3) of the Act excludes from its definition of employee "any individual employed as a supervisor."⁶ Section 2(11) in turn defines supervisor as

any individual having authority * * to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsible to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of authority is not of a merely routine or clerical nature, but requires the use of independent judgment.⁷

According to the testimony before the trial examiner, the floorgirls shifted salesgirls from counter to counter, co-ordinated lunch schedules, directed salesgirls to keep their counters neat, and assisted other employees who needed help. A company instruction sheet introduced into evidence, moreover, stated generally that a floorgirl must "direct the efforts of all employees under her supervision."

As far as the instruction sheet is concerned, it is well established that "theoretical of paper power will not suffice" to make an individual a supervisor. NLRB v. Security Guard Service, 384 F.2d 143, 149 (5th Cir. 1967). The test is what power the worker actually exercises, and the finely-shaded gradations of power in any enterprise proscribe a wooden reading of Section 2(11). Almost any employee "directs" other employees in some fashion at some time. The mere fact that a worker...