Russell Stover Candies, Inc. v. N.L.R.B., 76-1330
| Decision Date | 14 March 1977 |
| Docket Number | No. 76-1330,76-1330 |
| Citation | 551 F.2d 204 |
| Parties | 94 L.R.R.M. (BNA) 3036, 81 Lab.Cas. P 13,123 RUSSELL STOVER CANDIES, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Alvin D. Shapiro, Stinson, Mag, Thomson, McEvers & Fizzell, Kansas City, Mo., Sheryl B. Etling, Kansas City, Mo., for petitioner.
Corinna L. Metcalf, Atty., N.L.R.B., Washington, D. C., Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., Washington, D. C., for respondent; John S. Irving, Jr., Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Carl L. Taylor, Associate Gen. Counsel, Allison W. Brown, Jr., Atty., N.L.R.B., Washington, D. C., on brief.
Before HEANEY and STEPHENSON, Circuit Judges, and STUART, * District Judge.
Russell Stover Candies, Inc. has petitioned this court for review of the National Labor Relations Board's decision and order, and the Board has cross-petitioned for enforcement of its decision and order. The Board found 1 that Russell Stover Candies, Inc. violated section 8(a)(1) of the National Labor Relations Act, as amended (29 U.S.C. § 151 et seq.), by instructing Supervisor Johnson to observe and report the union activities of the employees under his supervision; by admonishing Johnson to eat lunch and take breaks with the employees under his supervision and be attentive to their comments regarding the union; by repeatedly questioning Johnson about what he had observed and learned concerning employee union activities; by instructing Johnson to keep a particular pro-union employee out of the warehouse; by setting in motion a chain of events which motivated Johnson to verbally inform employees that he was engaging in surveillance of their union activities; and by terminating Johnson because he refused to continue his unlawful surveillance of employee activities.
The Board's order requires the Company to cease and desist from the unfair labor practices found and from in any other manner interfering with, restraining or coercing employees in the exercise of their section 7 rights. Affirmatively, the Board ordered the Company to offer full and immediate reinstatement to Supervisor Johnson 2 and to make him whole for any loss of earnings incurred, and to post the appropriate notices.
We are convinced, after examining the record, that the Board's decision and order, based upon the findings of the administrative law judge, are sustained by substantial evidence on the record considered as a whole. Accordingly, we will not recount at length the evidence on this review.
The principal issue to be decided on this appeal is whether or not the Company violated section 8(a)(1) of the Act by discharging Supervisor Johnson because he refused to continue Company-ordered surveillance of union activities. Other circuits have recognized that a violation of section 8(a)(1) occurs if an employer discharges a supervisor because he refused to engage in unfair labor practices. NLRB v. I. D. Lowe, 406 F.2d 1033, 1034-35 (6th Cir. 1969). Such a discharge interferes with nonsupervisory employees' protected self-organizational rights by demonstrating to the employees the extreme measures to which the employer will resort in order to thwart the unionization efforts. NLRB v. Brookside Industries, Inc., 308 F.2d 224, 228 (4th Cir. 1962); NLRB v. Talladega Cotton Factory, Inc., 213 F.2d 209, 217 (5th Cir. 1954). It is beyond dispute that Johnson is not directly entitled to protection which the Act extends to employees, since he was a supervisor within the meaning of section 2(11) of the Act. However, if the discharge of the supervisor violates section 8(a)(1) of the Act, that supervisor may be entitled to reinstatement. The supervisor is not protected in his own right his basis for relief is that his discharge had a tendency to interfere with, restrain or coerce the protected employees in the exercise of their section 7 rights. The discharge has "the effect of interfering with and restraining the unionists in their membership by frightening them with reproof of a supervisor for not reporting on union activity." NLRB v. Brookside Industries, Inc., supra, 308 F.2d at 228.
In order for the discharge to constitute a violation of section 8(a)(1), the conduct in which Johnson refused to engage must have constituted an unfair labor practice. Discharging a supervisor who refuses to follow his employer's lawful instructions regarding union organization attempts does not constitute a violation of section 8(a)(1), so the supervisor is not entitled to reinstatement. NLRB v. North Arkansas Electric Coop., Inc., 446 F.2d 602, 610 (8th Cir. 1971). Here there is substantial evidence in the record, considered as a whole, to support the finding that the type of surveillance conducted by Johnson (and which he later refused to continue) was an unfair labor practice under section 8(a)(1). Johnson's surveillance was more than merely being attentive to employees' comments regarding the union. The Company instructed Johnson to engage in systematic surveillance of employee union activities, questioned him concerning the information he had gathered, and encouraged him to continue his surveillance even during non-work time. Johnson conducted his transparent surveillance with management's knowledge, either actual or chargeable, that his activities were poorly disguised. Eventually, management was informed that the employees knew about Johnson's surveillance. Under these circumstances, management's failure to countermand its instructions to Johnson was indicative of its indifference to employee suspicions. The Company must, therefore, be held accountable for the tendency to interfere with the employees' self-organization rights which resulted from their knowledge of Company surveillance activities. Thus the activities which Johnson refused to continue constituted unfair labor practices under section 8(a)(1) of the Act. NLRB v. Hawthorn Co., 404 F.2d 1205, 1208-09 (8th Cir. 1969).
A further prerequisite to finding that the supervisor's discharge was unlawful is that the reason for such discharge was his refusal to continue the unfair labor practice. Arguably, there is sufficient evidence in the record which might, under ordinary circumstances, justify Johnson's firing based on poor work performance....
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