NLRB v. Little Rock Downtowner, Inc.

• Decision Date: 19 August 1969
• Docket Number: No. 19427.,19427.
• Citation: 414 F.2d 1084
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. The LITTLE ROCK DOWNTOWNER, INC., Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

414 F.2d 1084 (1969)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. The LITTLE ROCK DOWNTOWNER, INC., Respondent.

No. 19427.

United States Court of Appeals Eighth Circuit.

August 19, 1969.

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Herman M. Levy, Atty., National Labor Relations Board, Washington, D. C., for petitioner, Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Jonathan M. Marks, Atty., N.L.R.B., Washington, D. C., on the brief.

Richard A. Brackhahn, of Fowler, Brackhahn & Young, Memphis, Tenn., for respondent, Newell N. Fowler, Memphis, Tenn., on the brief.

Before VAN OOSTERHOUT, Chief Judge, and VOGEL and HEANEY, Circuit Judges.

VOGEL, Circuit Judge.

The National Labor Relations Board petitions this court, pursuant to § 10(a) of the National Labor Relations Act, 29 U.S.C.A. § 151 et seq., for enforcement of its order issued on November 7, 1967, against respondent, The Little Rock Downtowner, Inc. Respondent is engaged in the motel and restaurant business in Little Rock, Arkansas. No jurisdictional issue is presented.

The Board's decision and order are reported at 168 N.L.R.B. No. 18. The Board found that respondent violated Sections 8(a) (5) and (1) of the Act by instituting unilateral wage increases among its employees and by changing their days and hours of employment without consulting their bargaining representative, by refusing to refrain from changing the terms and conditions of their employment in the future, and by refusing to bargain with the union. The Board also found that respondent violated Section 8(a) (1) of the Act by coercively interrogating and threatening its employees concerning their union activities. The Board ordered respondent to cease and desist from (1) refusing to bargain collectively; (2) unilaterally instituting changes in wages, hours, or other terms and conditions of employment of its employees without first notifying or consulting with the union; (3) coercively interrogating and threatening its employees; and (4) in any manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act. The Board further ordered respondent to bargain collectively with the union and to post appropriate notices.

The standard which governs our review is whether the Board's findings and order are supported by substantial evidence on the record as a whole. Universal Camera Corp. v. N.L.R.B., 1951, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456.

On November 7, 1962, the Hospital-Hotel-Motel, Restaurant Employees Union, Local No. 200, an affiliate of the Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, was certified as the exclusive bargaining representative for an appropriate unit of respondent's motel and restaurant employees.

On July 29, 1963, and January 28, 1964, the Board issued two decisions and orders finding that respondent had committed numerous unfair labor practices, including the refusal to bargain in good faith with the union, by granting wage increases and changing working conditions of various employees and by refusing to meet with union representatives. The Little Rock Downtowner, Inc., 143 N.L.R.B. 887; 145 N.L.R.B. 1286. On March 5, 1965, this court modified and then enforced the orders of the Board, N.L.R.B. v. Little Rock Downtowner, Inc., 8 Cir., 1965, 341 F.2d 1020. Thereafter respondent held a series of collective bargaining meetings with the union through April 8, 1966. No contract resulted from these negotiations.

On January 1, 1966, respondent increased the wages of employees H. D. Becker, a maintenance man, from $10.80 to $12.00 per day, and Climmie Stewart, a porter, from $100 to $120 per month, without first advising or negotiating with the union.

On April 20, 1966, after respondent refused to agree not to make further unilateral changes, the union filed an unfair labor practice charge alleging that the respondent's action constituted a refusal to bargain in violation of Section 8(a) (5) of the Act. The Regional Director of the Board refused to issue a complaint based on the union's charge. The union then appealed the Regional Director's decision and, in December 1966, the General Counsel directed that a complaint be issued against The Little Rock Downtowner. This complaint was later consolidated for hearing with the later unfair labor practice charges discussed herein.

It is well settled that unilateral changes in wages may violate the Act. N.L.R.B. v. Katz, 1962, 369 U.S. 736, 82 S.Ct. 1107, 8 L.Ed.2d 230; N.L.R.B. v. Newberry Equipment Co., 8 Cir., 1968, 401 F.2d 604, 609; N.L.R.B. v. Wonder State Mfg. Co., 8 Cir., 1965, 344 F.2d 210. In Katz, the Supreme Court noted:

"Unilateral action by an employer without prior discussion with the union does amount to a refusal to negotiate about the affected conditions of employment under negotiation, and must of necessity obstruct bargaining, contrary to the congressional policy. It will often disclose an unwillingness to agree with the union. It will rarely be justified by any reason of substance. It follows that the Board may hold such unilateral action to be an unfair labor practice in violation of § 8(a) (5), without also finding the employer guilty of over-all subjective bad faith." 369 U.S. at 747, 82 S.Ct. at 1114.

At first impression, the $1.20 per day increase in employee Becker's wages and the $1.00 per day increase in employee Stewart's wages may appear to be within the "de minimis" rule and thus not rising to the dignity of a violation of the Act. See N.L.R.B. v. Ralph Printing & Lithographing Co., 8 Cir., 1967, 379 F.2d 687, 692. An employer's actions should, however, be viewed with consideration to other surrounding circumstances, including events occurring previously thereto. Orders of the Board impose a continuing obligation upon an employer not to further perpetrate acts proscribed thereby or to bear the consequences.¹ Here respondent had previously been found to have violated the Act by refusing to bargain in good faith and by granting wage increases and changed working conditions unilaterally and had been ordered by the Board not to make unilateral changes in wages and that order had been enforced by this court, 341 F.2d 1020. Certainly in this concept the Board permissibly found that the unilateral increases in the wages of employees Becker and Stewart violated Section 8(a) (5) of the Act.

Respondent seeks to avoid the Board's order with regard to the unilateral increase in employee Becker's wages with the contention that he was a supervisor within § 2(11) of the Act, 29 U.S.C.A. § 152(11), and thus not a member of the bargaining unit. Section 2(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."

This section is to be interpreted in the disjunctive and the possession by an employee of any of the powers delineated therein places him in the supervisory class. Jas. H. Matthews & Co. v. N.L.R.B., 8 Cir., 1965, 354 F.2d 432, 434, cert. denied, 384 U.S. 1002, 86 S.Ct. 1924, 16 L.Ed.2d 1015.

"The question of who is a supervisor is a practical matter and one of fact in which the Board, in the exercise of its primary function as a fact finder, must be permitted `a large measure of informed discretion.\'" N.L.R.B. v. Elliott-Williams Co., Inc., 7 Cir., 1965, 345 F.2d 460, 463.

Further, the Board's determination of whether or not an employee is a supervisor "is to be accepted by the court if it has `warrant in the record' and a reasonable basis in law." Jas. H. Matthews & Co. v. N.L.R.B., supra, 354 F.2d at 435.

The evidence shows that Becker was responsible for physical maintenance of the entire motel, hired painters on a contract basis, negotiated the cost to the company, directed the progress of the work, decided what rooms were to be painted, and exercised discretion in purchasing supplies. However, the evidence also shows that Becker could not hire painters without authorization from the motel Innkeeper, that the Innkeeper made the actual payments to the painters and determined how the rooms would be painted, and, as Becker testified, "I would not take the responsibility of just going ahead and hiring painters. I always go to my superior." "He is the manager. I would not do anything without consulting with my superior, of course." We conclude that the Board properly exercised its discretion in finding that Becker was not a supervisor within the meaning of § 2(11) and such finding is supported by substantial evidence in the whole record.

Respondent seeks to avoid the applicability of the Act to its unilateral increase of employee Stewart's wages with the contention that his duties and wages were increased solely to conform with the order of the local public health officer to prevent certain unsanitary conditions. While recognizing that "there might be circumstances which the Board could or should accept as excusing or justifying the unilateral action", N.L.R.B. v. Katz, supra, 369 U.S. at 748, 82 S.Ct. at 1114, we believe this not to be such a case.

Respondent and the union did not meet between April 8, 1966, and January 12, 1967. In December 1966, respondent agreed to meet for negotiations with the union on January 12, 1967. Union representative Earl Yeargan opened the meeting by presenting the union's last contract proposals as a basis for further negotiations. Respondent's attorney, Richard A. Brackhahn, then repeatedly asked Yeargan to account for his absence during the preceding eight or nine months, to...