N.L.R.B. v. Chem Fab Corp.
| Decision Date | 01 November 1982 |
| Docket Number | No. 81-2316,81-2316 |
| Citation | 691 F.2d 1252 |
| Parties | 111 L.R.R.M. (BNA) 2754, 95 Lab.Cas. P 13,833 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CHEM FAB CORPORATION, Respondent. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Robert C.D. McDonald, Atlanta, Ga., for Chem Fab Corp.
W. Christian Schumann, Corinna Lothar Metcalf, Attys., William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., Washington, D.C., for N.L.R.B.
Before LAY, Chief Judge, and GIBSON, Circuit Judge, FAIRCHILD, * Senior Circuit Judge.
Chem Fab Corporation (the Company) asks us to review and set aside an order of the National Labor Relations Board (the Board). The Board requests us to enforce the order. The order is reported at 257 N.L.R.B. 996 (1981).
The relevant activities occurred at the Company's Central Street plant and its nearby Nevada Street plant in Hot Springs, Arkansas. They took place during a Union organizing effort and election campaign, in the second half of March and throughout April, 1980.
On March 21 Ronald Reagan, President of Chem Fab Corporation, met John Stephens, a Central Street employee, soliciting Union support during his lunch hour at the Nevada Street plant. Reagan then and there promulgated a rule against fraternization between the workers at the two plants. Selective enforcement based on Union activity was found to be a Sec. 8(a)(1) unfair labor practice. This finding is not contested by the Company. The Company also does not contest a finding of a Sec. 8(a)(1) unfair labor practice by issuing warnings to three employees for talking to fellow employees about the Union during working time.
The Company does take issue with the following:
The finding that Wade Ross, the "lead leadman" on the night shift at the Nevada Street plant was a supervisor, that he made certain statements, and that the statements were coercive and therefore Sec. 8(a)(1) unfair labor practices.
The finding that the rule, announced by Reagan during a speech on April 9, that employees are not to talk to each other about the Union during working time was a Sec. 8(a)(1) unfair labor practice.
The findings that statements, largely in Reagan's speeches, were impliedly threatening and coercive.
The findings that the transfer and discharge of Central Street employee John Stephens (apparently the most active and vocal Union advocate) were unlawfully discriminatory and Sec. 8(a)(1) and (3) unfair labor practices.
The finding that the discharge of Nevada Street employee John Stewart (a very open supporter of the Union) was unlawfully discriminatory and a Sec. 8(a)(1) and (3) unfair labor practice.
The rejection of the Company's claim that Stephens was disqualified for reinstatement because of alleged sales of marijuana in the plant.
Much of the relevant evidence is set forth or summarized in the ALJ's decision, and need not be repeated here. We conclude that there is substantial evidence in the light of the record as a whole to support the findings.
The ALJ's decision clearly disposes of the Company's argument regarding the rule against talking about the Union, see Republic Aviation Corp. v. NLRB, 324 U.S. 793, 803-804 n. 10, 65 S.Ct. 982, 988 n. 10, 89 L.Ed. 1372 (1945); Gerry's Cash Markets, Inc. v. NLRB, 602 F.2d 1021, 1024-25 (1st Cir. 1979), the instruction to report Union activists, see Bank of St. Louis v. NLRB, 456 F.2d 1234, 1235 (8th Cir. 1972), the request that employees obtain their authorization cards back from the Union, see NLRB v. Deutsch Co., 445 F.2d 902, 906 (9th Cir. 1971), cert. denied, 405 U.S. 988, 92 S.Ct. 1248, 31 L.Ed.2d 454 (1972); Amalgamated Clothing Workers of America v. NLRB, 424 F.2d 818, 824 (D.C.Cir.1970), and the various threats made by Company President Reagan, see Patsy Bee, Inc. v. NLRB, 654 F.2d 515 (8th Cir. 1981); NLRB v. Saunders Leasing Systems, Inc., 497 F.2d 453 (8th Cir. 1974); NLRB v. Crystal Tire Co., 410 F.2d 916, 918 (8th Cir. 1969).
Section 2(11), 29 U.S.C. Sec. 152(11), defines a "supervisor" as
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 definition lists the powers in the disjunctive. Therefore an individual's authority to exercise of any one of the powers justifies a finding of supervisory status. NLRB v. Broyhill Co., 514 F.2d 655, 658 (8th Cir. 1975). The determination of who is a supervisor is a fact question which calls upon the Board's special function of applying the general provisions of the Act to the infinite gradations of authority within a particular industry. Id. at 658. See NLRB v. Erie Resistor Corp., 373 U.S. 221, 236, 83 S.Ct. 1139, 1149, 10 L.Ed.2d 308 (1963). Therefore the Board may exercise a large measure of informed discretion and a court must accept its determinations so long as they have " 'warrant in the record' and a reasonable basis in law." NLRB v. Broyhill Co., 514 F.2d at 658, quoting Jas. H. Matthews & Co. v. NLRB, 354 F.2d 432, 435 (8th Cir.), cert. denied, 384 U.S. 1002, 86 S.Ct. 1924, 16 L.Ed.2d 1015 (1966).
The Board based its determination that Wade Ross possessed supervisory status upon findings that he possessed and exercised authority with respect to job assignments, transferring employees from one department to another, directing work, correcting time clock cards, and effectively recommending discharges and wage increases. The record contains conflicting evidence, but on the whole it supports the findings and conclusions of the Board. We reject all the Company's challenges to the Board's attribution of supervisory status to Ross. We comment on two.
Ross testified that Nevada Street Plant Manager Philip Sorrell, in the afternoon before going home, would advise him about the workload for the evening, whether there was any necessity for moving employees from one department to another, what he wanted, or what production he expected from the department that night. The Company argues that Sorrell's advice to Ross precluded the Board from drawing any inference that Ross was a supervisor from the numerous occasions on which Ross had transferred employees from one department and assigned them to jobs in another. Contrary to the Company's contention Ross did not state that the transfers and assignments he made were made pursuant to Sorrell's instructions. The Board's inference of Ross' independent judgment in this area may stand.
Evidence showed Ross' participation in the discharge of two employees. In one instance Ross apprised Sorrell that Richard Gross had left the plant at lunch time the previous day without clocking out or without advising either Ross or his immediate leadman that he was leaving and that Gross had done so on other occasions. Sorrell informed Ross to terminate Gross. Ross testified (Tr. 79.)
In the other discharge, Ross reported to Sorrell that Carl Langston would use profanity in front of women and would sneak around when no one was looking, go into the lunchroom, get other employees' lunches, and eat them, and that Ross personally had caught Langston eating other employees' lunches. Sorrell advised Ross to terminate Langston if he caught him stealing lunches again. A few days later, Ross again caught Langston eating someone else's lunch and immediately terminated him telling him among other things that Ross had repeatedly had to talk to him about his conduct toward women. Sorrell was not present when Ross terminated Langston nor did Ross contact Sorrell when Ross decided to terminate Langston. Ross, however, did testify that on one prior occasion when he caught Langston, he told him that if he had the authority he would terminate him, but that he would have to discuss it with Sorrell. (Tr. 81.) We do not accept the Company's view that the evidence related to the discharges precludes an inference that Ross went beyond merely reporting facts, and made effective recommendations to Sorrell.
Section 7 of the Act guarantees employees "the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." Section 8(a)(1) makes it an unfair labor practice for an employer to interfere with an employee's exercise of these rights. "The test of a violation of Sec. 8(a)(1) is whether the employer's conduct 'reasonably tends to interfere' with the employees' exercise of their Section 7 rights." NLRB v. Hitchiner Manufacturing Co., 634 F.2d 1110, 1113 (8th Cir. 1980).
Ross told Kenneth Jones, "Well, you know what happened to you last time, the last time you were involved in a union activity." Ross recalled asking Stewart and Jones what they were going to do with all the time off that they were going to have on their hands. Jones testified that the last time there had been Union activity Jones and fourteen other employees had been laid off and Jones was reinstated pursuant to a settlement of unfair labor practices charges. (Tr. 151-153.) Ross stated that he made the comment to Jones and Stewart as a result of discussing with them what would happen if a union was voted in and the possibility of a strike or something like that happening. Jones and...
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