NLRB v. Li'l General Stores, Inc.

• Decision Date: 11 May 1970
• Docket Number: No. 27538.,27538.
• Citation: 422 F.2d 571
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LI'L GENERAL STORES, INC., Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

422 F.2d 571 (1970)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LI'L GENERAL STORES, INC., Respondent.

No. 27538.

United States Court of Appeals, Fifth Circuit.

February 12, 1970.

Rehearing Denied and Rehearing Denied May 11, 1970.

Marcel Mallet-Prevost, Asst. Gen. Counsel, N. L. R. B., Washington, D. C., Harold A. Boire, Director, Region 12, N. L. R. B., Tampa, Fla., Allan M. Elster, Miami Beach, Fla., R. W. D. S. U., Local 885, Paul J. Spielberg, Atty., N. L. R. B., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Robertamarie Kiley, Atty., N. L. R. B., Washington, D. C., for petitioner.

Glenn L. Greene, Jr., W. Reynolds Allen, Jesse S. Hogg, Greene, Hogg & Allen, Miami, Fla., for respondent.

Before JOHN R. BROWN, Chief Judge, and COLEMAN and CLARK, Circuit Judges.

Rehearing Denied and Rehearing En Banc Denied May 11, 1970.

COLEMAN, Circuit Judge.

This is a petition for enforcement of an order of the National Labor Relations Board issued against Li'l General Stores, Inc., 170 N.L.R.B. No. 94 March 28, 1968.

Agreeing with the Trial Examiner, the Board found that the Company violated § 8(a) (1) of the Act by coercive interrogation of its employees; by threats to discharge employees and hire replacements; by promising benefits; by increasing work loads and written warning notices; and by withholding a company wide wage increase from the employees involved in this proceeding.

The Board also found that the Company had violated § 8(a) (3) and (1) of the Act by discharging Union adherents Tambor, Sowers, and Martinez for the purpose of discouraging membership in the Union and defeating the Union drive for collective bargaining rights.

These findings are supported by substantial evidence on the record, considered as a whole, Universal Camera Corporation v. N. L. R. B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951); N. L. R. B. v. Transway, Inc., 5 Cir., 1969, 410 F.2d 368.

There are other issues in the case, which will be discussed at a later point.

I

The fact are as follows. Li'l General Stores is a retail food chain, operating extensively in the State of Florida. This labor dispute stems from the ten stores of District 7 of the West Palm Beach Division. The Union began organizational efforts on December 1, 1966. Within the following week nineteen of the twenty-three employees involved had signed authorization cards. The Union forthwith December 9 petitioned for a representation election.

The election was held on March 10, 1967.

In the meantime, company counsel and two assistant managers visited each of the stores in question. The Trial Examiner credited testimony that counsel announced, from store to store, that the Company would stop the Union "by any means" and that rather than have a union the Company would close "all ten stores" and "replace all the employees of the district".

Prior to the beginning of the union activity, the Company had decided that a general wage increase was in order. Effective January 22, the increase was given all employees of the West Palm Beach Division except those in District 7.

New disciplinary measures were instituted in District 7. Supervisory calls increased from approximately three per week to two and three per day at each store and the Company began issuing written warning notices for employees who failed to perform the most insignificant tasks.

The Company discharged three known Union supporters. Kenneth Tambor was first transferred from his own store to one that was in a very poor condition. There was a very heavy volume of business at the latter establishment. The day Tambor took over the new store, a supervisor arrived and gave him a ten page list of deficiencies. In an effort to improve these conditions, Tambor returned to the store at night, with his wife and son to help him. Working day and night soon took its toll and Tambor became ill and missed five days of work, whereupon he was fired.

William Sowers was dismissed on the accusation of getting his cash register out of balance. The employee working the afternoon shift, however, had counted the money and found a surplus rather than a deficiency. A request for a recount of the money was refused. Sowers also received eight warning notices for such shortcomings as a failure to post his health card and failure to put away a grocery order.

Felix Martinez was fired for failing to make price changes, for failing to keep the floor and shelving clean, and for allowing trash to accumulate outside. As to the last item, there was evidence that the outside parking area was shared with a hamburger establishment which remained open an hour or more after the store had closed. So, it would have been necessary for Martinez to remain at the store for an additional two hours if he were to clean a parking area for which the store was only partially responsible.

In this state of the record, and we have recited only a small portion of it, we cannot say that the Board was not entirely justified in ordering the Company to cease and desist from the unfair labor practices found and from interfering with the employees in the exercise of the rights guaranteed by the statute. Moreover, the Board order requiring the Company to offer reinstatement to Tambor, Sowers, and Martinez and to make them whole for loss of pay is due to be enforced. Additionally, we enforce the order requiring the Company to pay the District 7 employees the wage increase wrongfully withheld. The cases are legion but all this, without further citation, is clearly commanded by the principles emphatically confirmed in N. L. R. B. v. Gissel Packing Company, 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969).

II

On February 10, 1967, the Regional Director, after a representation hearing, concluded that the District 7 store employees constituted an appropriate unit for bargaining and scheduled an election for March 10, 1967. We perceive no basis in the facts of this case for a holding here that this was not an appropriate bargaining unit. The Company argues that a division consisting of seven districts instead of one would be a more appropriate unit, citing N. L. R. B. v. Davis Cafeteria, Inc., 5 Cir., 1968, 396 F.2d 18. In Davis Cafeteria two units of an eight unit cafeteria were found to be an inappropriate bargaining unit where there was no "sort of local managerial authority over substantive subjects of collective bargaining". We are of the view that Davis Cafeteria is inapposite to the facts in this case. It is no authority for the contention of the present respondent that a division of seventy stores is, for bargaining purposes, preferable to a unit of ten. Actually, the Board may choose among several appropriate units and such a choice will be overturned in the courts only for an abuse of discretion, N. L. R. B. v. Quaker City Life Insurance Company, 4 Cir., 1963, 319 F.2d 690.

The Board found that District 7 was a "self-contained unit substantially autonomous in its daily operations". In order to test the Board's findings the criteria employed in N. L. R. B. v. Sun Drug Company, 3 Cir., 1966, 359 F.2d 408, should be applied. Factors cutting toward autonomy are: geographic separateness of the store or stores in question, minimal interchange of employees between the unit stores and other stores, and supervision by an official who has significant influence over decisions bearing on the collective bargaining process, and absence of a demand to represent the employees on a wide scale.

Each of the above criteria is met perfectly except as to supervision by someone whose decisions bear heavily on decisions involving the collective bargaining process. Lack of final authority by supervisors is not decisive if they have "considerable influence in the final decision with respect to * * * personnel matters" like "hiring, firing, and granting of raises". Continental Insurance Company v. N. L. R. B., 2 Cir., 1969, 409 F.2d 727, 728, 729; Singer Sewing Machine Company v. N. L. R. B., 4 Cir., 1964, 329 F.2d 200, 12 A.L.R.3d 775.

The Company's final argument in favor of division wide bargaining is one of administrative convenience. They argue that the division is a "company within a company" while the district is a "fluid and frequently changing small group of stores". Such a plea of convenience was...