NLRB v. Des Moines Foods, Inc.

• Decision Date: 29 November 1961
• Docket Number: No. 16694.,16694.
• Citation: 296 F.2d 285
• Court: U.S. Court of Appeals — Eighth Circuit
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. DES MOINES FOODS, INC., Respondent.

296 F.2d 285 (1961)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. DES MOINES FOODS, INC., Respondent.

No. 16694.

United States Court of Appeals Eighth Circuit.

November 29, 1961.

Leo N. McGuire, Atty., National Labor Relations Board, Washington, D. C. made argument for petitioner. Stuart Rothman, Gen. Counsel, Washington, D. C., Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Samuel M. Singer, Atty., and Leo N. McGuire, Atty., NLRB, Washington, D. C. were on the brief.

Hobart E. Newton, Stuart, Iowa, made argument for respondent, and was on the brief.

Before SANBORN, MATTHES and RIDGE, Circuit Judges.

SANBORN, Circuit Judge.

The National Labor Relations Board, in an unfair labor practice proceeding under § 10 of the National Labor Relations Act, as amended, 29 U.S.C.A. § 160, based on charges by Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, a labor union, determined that the respondent, Des Moines Foods, Inc., of Des Moines, Iowa,

"by discharging, laying off, transferring to less desirable work and refusing to recall employees, because of their union activities, * * has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (3) of the Act";

and

"by the above conduct and by interrogation of employees, threats of discharge and other economic reprisal, and giving the impression of surveillance of union meetings, thereby interfering with, restraining and coercing employees in the exercise of rights guaranteed by Section 7 of the Act, * * * has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act."

The Board also found that the respondent had discriminatorily discharged Ellen Hay, one of its employees, because of her union activities, and had similarly, and for like reasons, transferred Edith Brower, another employee, from the position she had occupied in respondent's plant to a less desirable position, and had in other respects discriminated against her. The Board issued its order requiring the respondent to cease and desist from the unfair labor practices which the Board found the respondent had committed; to reinstate Ellen Hay to her former position; to make her and Edith Brower whole for any loss of pay they may have suffered because of discrimination; and to post the usual notices.

The Board has petitioned this Court for the enforcement of its order, pursuant to § 10(e) of the Act, as amended, 29 U.S.C.A. § 160(e), which, among other things, provides: "The findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall be conclusive." The respondent resists the enforcement of the order, asserting that the evidentiary basis for it is inadequate. The question for decision is whether the Board's determination and order (reported in 129 N.L.R.B. No. 160) are supported by substantial evidence on the record as a whole.

The evidentiary facts out of which the controversy arose may be stated briefly as follows: The respondent operated an egg processing plant, where eggs were converted into frozen yolks, frozen whites, and frozen whole eggs. The processed eggs were sold and shipped to points outside the state of Iowa. Howard Randolph was the President of the respondent. Donald D. Brown was plant manager. Mrs. Jacqueline (Jacky) Flinn was floorlady. When the plant was in full operation it employed in the neighborhood of one hundred persons, nearly all of whom were women. Some ninety women were engaged in breaking eggs and separating the whites from the yolks. They worked on three conveyor lines, with thirty women on each. They were under the direction of the floorlady, Mrs. Flinn. The quota of each was 40 buckets of whites in eight hours. Late in 1958 the Union began a campaign to organize the employees of respondent. Ellen Hay and Edith Brower were active in the campaign, signed Union cards, attended Union meetings, and solicited fellow employees to join the Union. The Union won a consent election held on March 5, 1959, and on March 12, 1959, was certified as the bargaining agent for respondent's employees. During the organizational campaign, Mrs. Flinn interrogated employees about the Union and made anti-union statements which, if attributable to the management of the respondant, clearly constituted an unfair labor practice under § 8(a) (1) of the Act. The respondent contends that Mrs. Flinn was not a supervisor within the definition of 29 U.S.C.A. § 152(11),¹ and that her conduct and statements may not, under the evidence, be attributed to management.

The problem of when and under what circumstances one in the position of Mrs. Flinn — who had no authority to hire or to fire — reasonably may be determined to express the attitude of management rather than her own personal sentiments relative to unionization, has been a troublesome one. In 1939 it was considered by this Court in Cupples Co. Manufacturers v. National Labor Relations Board, 8 Cir., 106 F.2d 100, 114-116. See, also, Ballston-Stillwater Knitting Co., Inc. v. National Labor Relations Board, 2 Cir., 98 F.2d 758, 762. In those cases it was held that certain supervisory employees were not shown to have had authority to act or to speak for management. In 1940, the Supreme Court, in International Association of Machinists v. National Labor Relations Board, 311 U.S. 72, 80, 61 S.Ct. 83, 88, 85 L.Ed. 50, ruled that an employer might be held responsible for the acts of "so-called agents", although not "attributable to him on strict application of the rules of respondent superior." In that case, "the so-called agents" were said to be not even foremen. Of them, the Court said (311 U.S. p. 80, 61 S.Ct. p. 89):

"* * * To be sure, they were not high in the factory hierarchy and apparently did not have the power to hire or to fire. But they did exercise general authority over the employees and were in a strategic position to translate to their subordinates the policies and desires of the management."

In National Labor Relations Board v. Link-Belt Co., 311 U.S. 584, 599, 61 S.Ct. 358, 366, 85 L.Ed. 368, the Court said:

"* * * Nor does the Board lack the power to give weight to the activities of some of the supervisory employees on behalf of Independent union, even though they did not have the power to hire or to fire. As we indicated in International Association of Machinists v. National Labor Relations Board, supra 311 U.S. 72, 61 S.Ct. 721, 85 L.Ed. 50, the strict rules of respondent superior are not applicable to such a situation. If the words or deeds of the supervisory employees, taken in their setting, were reasonably likely to have restrained the employees\' choice and if the employer may fairly be said to have been responsible for them, they are a proper basis for the conclusion that the employer did interfere. * * *"

See, also: National Labor Relations Board v. Montgomery Ward & Co., 9 Cir., 133 F.2d 676, 682; National Labor Relations Board v. Winona Knitting Mills, Inc., 8 Cir., 163 F.2d 156, 160-161; National Labor Relations Board v. Solo Cup Company, 8 Cir., 237 F.2d 521, 523-524.

We think that in the instant case the Board reached a permissible conclusion in determining that, under the evidence, the conduct of Mrs. Flinn in interrogating employees and making statements predicting the loss of jobs if the Union won the election, reflected the attitude of management. Randolph and Brown knew about the union activities in the plant. At or about the time the Union commenced its campaign, Randolph had instructed Brown not to discuss the Union with any of the plant employees and to have nothing to do with the Union campaign. Brown had also been instructed by Randolph not to fire or demote any employee without consulting him. Brown testified that he observed these instructions and did not "talk union or non-union" to the employees. There was no showing that Randolph or Brown — who reasonably may be believed to have kept in touch with all that was going on in the plant during the Union campaign — instructed Mrs. Flinn not to concern herself with the activities of the Union or to refrain from discussing the Union with the employees for whom she was the supervisor. Her connection with management and her duties as...