N.L.R.B. v. Advertisers Mfg. Co., 200

• Decision Date: 29 June 1987
• Docket Number: No. 86-2632,No. 200,I,200,86-2632
• Citation: 823 F.2d 1086
• Parties: 125 L.R.R.M. (BNA) 3024, 106 Lab.Cas. P 12,444 NATIONAL LABOR RELATIONS BOARD, Petitioner, and Teamsters General Localntervening-Petitioner, v. ADVERTISERS MANUFACTURING COMPANY, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1086

823 F.2d 1086

125 L.R.R.M. (BNA) 3024, 106 Lab.Cas. P 12,444

NATIONAL LABOR RELATIONS BOARD, Petitioner and Teamsters General Local No. 200, Intervening-Petitioner, v. ADVERTISERS MANUFACTURING COMPANY, Respondent.

No. 86-2632.

United States Court of Appeals Seventh Circuit.

Argued April 20, 1987.

Decided June 29, 1987.

Marion Griffin, N.L.R.B., Elliott Moore, N.L.R.B., Washington, D.C., for petitioner.

Russ R. Mueller, Milwaukee, Wis., for respondent.

Before BAUER, Chief Judge, POSNER, Circuit Judge, and WILL, Senior District Judge. ^*

POSNER, Circuit Judge.

The Labor Board found that Advertisers Manufacturing Company, a maker of advertising materials, had committed a raft of unfair labor practices--25 to be exact--and the Board entered a remedial order which it asks us to enforce. (For a previous round of this litigation see Advertisers Mfg. Co. v. NLRB, 677 F.2d 544 (7th Cir.1982).) The company objects to only a handful of the unfair labor practice findings, and to some parts of the remedy. For the most part the company is merely disagreeing with the Board's evaluation of conflicting evidence and exercise of remedial discretion; the futility of such challenges requires no comment. We need discuss only three issues.

1. The first involves the discharge of Carol Hahn, a supervisory employee. A bitterly fought representation campaign, in the course of which the company committed many unfair labor practices, ended on September 12 when a local of the Teamsters Union was elected by a wide margin. On October 2, Ronald Hahn, who is Carol Hahn's son and is not a supervisory employee, was elected chief steward for the local union. Carol Hahn was fired six days later, though she had not engaged in any activities pro or con the union. The Board held that her discharge violated section 8(a)(1) of the National Labor Relations Act, 29 U.S.C. Sec. 158(a)(1), by interfering with her son's right, protected by section 7 of the Act, to engage in concerted activities.

The company argues that Carol Hahn's discharge was planned before the election and therefore before Ronald Hahn's election as shop steward, and for this and other reasons was unrelated to his activities on behalf of the union. This raises a straightforward factual issue that the Board resolved against the company. The Board may have been right or wrong, but its finding that Carol Hahn was fired in retaliation for Ronald Hahn's union activities was supported by substantial (though not abundant) evidence on the record considered as a whole, and is therefore beyond our power to correct.

The company's more interesting argument is that firing a supervisor in retaliation for a relative's union activities cannot violate the National Labor Relations Act. The Taft-Hartley amendments excluded supervisory employees from the protections of the NLRA; as a result, such employees have no statutory right to engage in concerted activities for mutual aid and protection, as nonsupervisory employees do. 29 U.S.C. Secs. 152(3), 157, 158; Wesley v. I.T.O. Corp., 739 F.2d 683, 685 (1st Cir.1984). The company notes that in Parker-Robb Chevrolet, Inc., 262 N.L.R.B. 402 (1982), enforced under the name of Automobile Salesmen's Union Local 1095 v. NLRB, 711 F.2d 383 (D.C.Cir.1983), the National Labor Relations Board held that discharging a supervisor for pro-union activities does not violate the Act even though "the discharge of a supervisor for engaging in union or concerted activity almost invariably has a secondary or incidental effect on employees," 262 N.L.R.B. at 404--namely to discourage them from engaging in such activities. See also ARA Leisure Services, Inc. v. NLRB, 782 F.2d 456, 459 and n. 3 (4th Cir.1986); Humana of West Virginia, Inc., 265 N.L.R.B. 1056, 1057-60 (1982). The company argues that Parker-Robb should control the present case.

It reads too much into Parker-Robb. The Board was careful to add there that "the discharge of supervisors is unlawful when it interferes with the right of employees to exercise their rights under Section 7 of the Act, as when they give testimony adverse to their employers' interest or when they refuse to commit unfair labor practices." 262 N.L.R.B. at 404; see also Boro Management Corp., 263 N.L.R.B. 421 n. 4 (1982); H.H. Robertson Co., 263 N.L.R.B. 1344, 1345 (1982). We do not understand the two examples given in Parker-Robb to have been intended to be exhaustive. This case provides a third example. If, as the Board found on sufficient evidence, the company fired Carol Hahn because of her son's union activities, there could be only one purpose, and that was to intimidate union supporters--consisting mainly of workers protected by the Act, such as Ronald Hahn himself--by showing the lengths to which the company would go to punish one of them. To retaliate against a man by hurting a member of his family is an ancient method of revenge, and is not unknown in the field of labor relations. For a bizarre instance see J.P. Stevens & Co., 179 N.L.R.B. 254 n. 2 (1969), enforced, 441 F.2d 514 (5th Cir.1971); see also Golub Bros. Concessions, 140 N.L.R.B. 120 (1962), and for examples from civil rights law Soderbeck v. Burnett County, 752 F.2d 285 (7th Cir.1985), and Shondel v. McDermott, 775 F.2d 859 (7th Cir.1985). If the company had fired Ronald Hahn in retaliation for his election as chief shop steward, there would be no question that it had violated the Act. Instead it fired his mother. If he loves his mother, this had to hurt him as well as her. Cf. In re Wagner, 808 F.2d 542, 548 (7th Cir.1986); CBI Industries, Inc. v. Horton, 682 F.2d 643, 647 (7th Cir.1982); Becker, A Treatise on the Family, ch. 8 (1981). An effective method of getting at him, a protected worker, it is barred by the statute.

Golub Bros. Concessions so holds, as do Consolidated Foods Corp., 165 N.L.R.B. 953, 959 (1967), enforcement denied in part, 403 F.2d 662 (6th Cir.1968) (per curiam), and Dewey Bros., Inc., 187 N.L.R.B. 137, 141-42 (1970), enforced without opinion under the name of NLRB v. General Plastics Corp., 457 F.2d 511 (5th Cir.1972), though all three decisions precede Parker-Robb. The Board might have noted that enforcement of its order in Consolidated Foods was denied, though only because the court of appeals found insufficient evidence that the discharge of the supervisor was actually in retaliation for his wife's union activities. See 403 F.2d at 664. But this is a detail. The Board adequately distinguished Parker-Robb, and that was enough to justify its adherence to Golub Bros. Concessions, Dewey Bros., and Consolidated Foods. Cf. NLRB v. J. Weingarten, Inc., 420 U.S. 251, 267, 95 S.Ct. 959, 968, 43 L.Ed.2d 171 (1975); International Union, United Automobile Workers v. NLRB, 802 F.2d 969, 974 (7th Cir.1986).

The Board's remedy, however, may seem problematic: forcing the company to reinstate a supervisor. (But see Howard Johnson Co. v. NLRB, 702 F.2d 1, 6 (1st Cir.1983); and see generally Annot., 64 A.L.R.Fed. 398 (1983).) The supervisors are supposed to be on the company's side in labor disputes; that is the essence of Parker-Robb. See also NLRB v. Res-Care, Inc., 705 F.2d 1461, 1465-66 (7th Cir.1983); Wesley v. I.T.O. Corp., supra, 739 F.2d at 685; H.R.Rep. No. 245, 80th Cong., 1st Sess. 16-17 (1947). It would be anomalous to force the company to reinstate a supervisor who was on the union's side. But as a matter of fact Carol Hahn was, so far as appears, on the company's side. She did not assist in her son's union activities. The company is not being asked to grasp a viper to its bosom. This is another point of distinction from Parker-Robb: the supervisors there had aided the union. Carol Hahn is not being reinstated so that she can help the union but so that Ronald Hahn and other protected employees will not be deterred from exercising their rights under section 7 by fear that if they do the company will try to get back at them in any way it can, including by firing their relatives. Of course, the company's action in firing Carol Hahn may have created bitterness and undermined her loyalty, but if so the company has only itself to blame.

2. In the week after the election, the company significantly reduced the work week of employees in some of its sewing departments, and the reductions remained in effect for two months. The Board held that by doing this the company had violated section 8(a)(3) (discrimination in any term or condition of employment, calculated to discourage employees from belonging to a union), as well as section 8(a)(1), of the Act. In the same period the company committed many other acts of retaliation against its workers, not limited to the firing of Carol Hahn. The timing of the reduction in the work week, set against the background of the other retaliatory acts and the company's obvious bitterness at the outcome of the election, persuaded the Board that the reduction was probably due to the company's hostility to the union. The company had...