Furr's, Inc. v. NLRB, 8686.

• Decision Date: 09 October 1967
• Docket Number: No. 8686.,8686.
• Citation: 381 F.2d 562
• Parties: FURR'S, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

381 F.2d 562 (1967)

FURR'S, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 8686.

United States Court of Appeals Tenth Circuit.

February 20, 1967.

Rehearing Denied March 24, 1967.

Certiorari Denied October 9, 1967.

COPYRIGHT MATERIAL OMITTED

James H. Milam, Lubbock, Tex., for petitioner.

Anthony J. Obadal, Washington, D. C. (Arnold Ordman, Dominick L. Manoli, Marcel Mallet-Prevost and Elliott Moore, Washington, D. C., on brief), for respondent.

Before MURRAH, Chief Judge, and ALDRICH^* and SETH, Circuit Judges.

Certiorari Denied October 9, 1967. See 88 S.Ct. 70.

MURRAH, Chief Judge.

In this unfair labor practice proceedings the Board found the employer guilty of conduct violative of § 8(a) (1) of the Act, and of refusal to bargain in violation of § 8(a) (5). The employer was ordered to cease and desist from the 8(a) (1) conduct and from refusing to bargain; affirmatively it was ordered to bargain upon request and to post appropriate notices. On petition for review and cross-petition for enforcement the dispositive issues are (1) whether the employer was responsible for the 8(a) (1) conduct, (2) whether the union timely attained majority status, (3) whether the employer entertained a good faith doubt of such majority status, and (4) whether in all events an election must be held prior to collective bargaining. We enforce the order.

The petitioning employer, Furr's, Inc., operates an interstate chain of retail supermakets. Its Las Cruces, New Mexico, store was the subject of a union¹ organization drive in the autumn of 1964. This store is under the direct control of a store manager and the general management of the home office. It has 49 nonsupervisory employees in four departments (grocery, meat, produce and drug). By October 8 a total of 28 employees had executed union authorization cards, and on that date the union notified the employer that it represented a majority of store employees and requested recognition as their bargaining agent.² It was found and it is not disputed that although no unit was specifically defined in the bargaining demand, the clear implication was that the union sought a storewide unit (including meat department personnel).³ In its demand the union offered to demonstrate its majority status by means of a card check, but the offer was neither accepted nor rejected. On that same day, after the bargaining demand was made, four more employees signed union cards. Thereafter several communications passed between union and employer representatives; these were inconclusive, although an employer desire for an election was indicated. In any event recognition was not extended, and on October 12 Furr's filed a representation petition seeking an election among employees in a unit which excluded meat department personnel. This, the trial examiner found, signaled the rejection of the October 8 bargaining demand. The union subsequently filed unfair labor practice charges, and on December 15, the Board issued a complaint against Furr's. The following day the Regional Director dismissed Furr's representation petition, and the Board upheld that dismissal. A petition for review of the Board's action was dismissed by this court in Furr's, Inc. v. N. L. R. B., 10 Cir., 350 F.2d 84.

We consider first the § 8(a) (1) finding, for as we shall see infra, it is crucial to the consideration of the § 8(a) (5) findings. The trial examiner found that during the month of October, both before and after the October 8 bargaining demand, assistant store manager Amador and meat department head Harrison engaged in the following activities: Amador attended a union meeting, interrogated employees concerning union activities, and threatened reprisals should the union be recognized; Harrison also threatened reprisals, and for the first time began recording employee mistakes ostensibly as justification for future disciplinary action. The examiner further found that this extensive conduct⁴ occurred largely on store property during working hours, that Amador and Harrison were "supervisors" within the meaning of § 2(11) of the Act, and that Furr's was responsible for their conduct. Furr's does not dispute that Amador and Harrison committed the acts found or that those acts are the type violative of § 8(a)(1). Instead it asserts nonliability on the theory that it should not be held responsible for their conduct. In this connection we first examine the finding that Amador, Harrison and a third employee, produce department head Morgan, are supervisors.⁵

Section 2(11)⁶ is to be read in the disjunctive, and supervisory status is determined by the existence of any of the statutory powers in the employee and not the frequency of exercise. See Jas. H. Matthews and Co. v. N.L.R.B., 8 Cir., 354 F.2d 432, 434 and cases cited. But, the power must be exercised in the interest of the employer, Id. 435. Finally, since the determination involves the specific application of a broad statutory term by the agency administering the statute, the Board's finding will be accorded appropriate weight, Id. 435; the Board "must be permitted `a large measure of informed discretion'". N.L.R.B. v. Elliott-Williams Co., 7 Cir., 345 F.2d 460, 463, citing and quoting from N.L.R.B. v. Swift and Co., 1 Cir., 292 F.2d 561.

Furr's relies primarily on testimony of company officials concerning the company policy that only store managers have authority to hire and fire; that while store manager Ellington received recommendations from these three employees on personnel and work schedule matters, he nevertheless exercised his independent judgment. There was employee testimony, on the other hand, to the following effect: Amador is in charge of the store when Ellington is absent, and on occasion passes on requests for "break time" and receives employee reports of absence due to illness; Harrison directs the work of the employees in the meat department, and has authority to grant time off, to hire, and to make small purchases of meat; both Amador and Harrison are regarded by the employees as their "bosses"; Morgan directs the work of employees in the produce department, and has authority to grant time off, to hire, to arrange vacation schedules, and on occasion receives reports of absence due to illness; and, while all three men do manual labor similar to that done by other employees in their departments and are paid at an hourly rate, the rate for Amador and Harrison is higher than for any other employee, and the rate for Morgan is the same as for the other highest paid employees. The examiner credited this employee testimony, and considered it sufficient to bring Amador, Harrison and Morgan within the statutory definition.⁷ Finding no reason to disturb the examiner's credibility judgment, we agree that the statutory definition has been met.⁸

But, Furr's contends that even if Amador and Harrison were supervisors, their proscribed conduct was carried out in their individual capacities and did not bind Furr's. Ordinarily, a finding of supervisory status is sufficient to charge the employer with responsibility, see e.g. Jas. H. Matthews and Co. v. N.L.R.B., supra; N.L.R.B. v. American Manufacturing Co. of Texas, 5 Cir., 351 F.2d 74. But, this is not a necessary result, see e.g. Imco Container Co. of Harrisonburg v. N.L.R.B., 4 Cir., 346 F.2d 178. The definition of "employer" in § 2(2) of the Act includes "any person acting as an agent of an employer, directly or indirectly", and § 2(13) provides that "In determining whether any person is acting as an `agent' of another person so as to make such other person responsible for his acts, the question of whether the specific acts performed were actually authorized or subsequently ratified shall not be controlling." It is clear that these provisions are in complete harmony with prior decisions of the Supreme Court in International Association of Machinists, etc. v. N.L.R.B., 311 U.S. 72, 61 S.Ct. 83, 85 L.Ed. 50, and H. J. Heinz Co. v. N.L.R.B., 311 U.S. 514, 61 S.Ct. 320, 85 L.Ed. 309, to the effect that employer responsibility is not to be determined according to the strict rules of agency. See N.L.R.B. v. Arkansas-Louisiana Gas Co., 8 Cir., 333 F.2d 790; Local 636, etc., Plumbing and Pipe Fit. Ind. of United States and Canada v. N.L.R.B., 109 U.S. App.D.C. 315, 287 F.2d 354; and see N.L. R.B. v. Albuquerque Phoenix Express, Nov. 16, 1966, 10 Cir., 368 F.2d 451. "We are dealing here not with private rights * * * nor with technical concepts pertinent to an employer's legal responsibility to third persons * * * but with a clear legislative policy to free the collective bargaining process from all taint of an employer's compulsion, domination, or influence." International Association of Machinists, etc. v. N.L.R.B., supra, 311 U.S. 80, 61 S.Ct. 88. The test was recently stated in Irving Air Chute Co. v. N.L.R.B., 2 Cir., 350 F.2d 176, 179, "* * * The employer is responsible for acts of a supervisor when `employees would have just cause to believe that he was acting for and on behalf of the company'." Citing and quoting from N.L.R.B. v. Texas Independent Oil Co., 9 Cir., 232 F.2d 447. And see N.L.R.B. v. Continental Oil Co., 10 Cir., 121 F.2d 120.

Furr's position is that in the only instance where the activities of Amador and Harrison were called to the attention of Ellington (an employee told him that Harrison was recording employee mistakes in a black book), Ellington immediately put a stop to it; that otherwise he had no knowledge of their conduct; that Furr's policy is one of strict neutrality and non-discrimination against employees engaging in union activities; that this policy is given substance by Furr's history of amicable relations with this union at other of its stores; that the employees were well aware of this policy before the organization campaign began, and it was reiterated to them by Furr's Vice President Arnold at an employee meeting on October 14. The trial examiner rejected...