Schnuck Markets, Inc. v. N.L.R.B.

• Decision Date: 07 April 1992
• Docket Number: 91-2653,Nos. 91-2627,s. 91-2627
• Citation: 961 F.2d 700
• Parties: 140 L.R.R.M. (BNA) 2073, 121 Lab.Cas. P 10,093 SCHNUCK MARKETS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SCHNUCK MARKETS, INC., Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 700

961 F.2d 700

140 L.R.R.M. (BNA) 2073, 121 Lab.Cas. P 10,093

SCHNUCK MARKETS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SCHNUCK MARKETS, INC., Respondent.

Nos. 91-2627, 91-2653.

United States Court of Appeals Eighth Circuit.

Submitted Jan. 8, 1992.

Decided April 7, 1992.

Dennis G. Collins, St. Louis, Mo., argued (Craig J. Hoefer, on brief), for petitioner.

Marilyn O'Rourke, Washington, D.C., argued (Howard E. Perlstein, Jerry M. Hunter, D. Randall Frye and Aileen A. Armostrong, on brief), for respondent.

Before BOWMAN, MAGILL and LOKEN, Circuit Judges.

MAGILL, Circuit Judge.

Schnuck Markets, Inc., appeals the National Labor Relations Board's determination that the company violated the National Labor Relations Act by demoting Thomas H. Jennings for protected union activity. The Board adopted an administrative law judge's finding that Jennings was not a statutory supervisor and, therefore, the company's demotion of him for union activity violated the Act. Schnucks also appeals the determination that the company violated the Act by refusing to assign Jennings to Sunday manager-on-duty work because of his union activity. ¹ We reverse.

I.

Schnucks operates a chain of grocery stores in the St. Louis metropolitan area. On March 7, 1988, Schnucks named Jennings, a then twenty-year employee, night manager of Schnucks' Ballwin, Missouri, store, one of the company's largest. As night manager, Jennings was the only manager on duty between the hours of 10 p.m. to 6 a.m. He was responsible at night for the overall management of the store which carried an average daily inventory of $2 million to $3 million. He also oversaw the work of twelve to sixteen employees, including checkers, baggers, cashiers, floor crew, a video clerk, delicatessen workers, and bakery workers. In addition, Jennings spent about thirty to forty percent of his time doing manual labor--stocking cigarettes and beer, and straightening the liquor.

Jennings belonged to the United Food and Commercial Workers Union, which represented all store employees except meat cutters and deli and seafood workers. The collective bargaining agreement between the union and Schnucks excluded store managers from membership in the union and provided that no supervisor or manager could perform "stocking, price marking, truck unloading or building displays, or any other bargaining unit work on a regular basis." ²

In December 1989, the company posted a work schedule that removed Jennings from Sunday duty effective December 17. Jennings complained to store manager Nick Collida about the change because Sunday duty entitled Jennings to premium pay of about $40 per week. Collida responded that Jennings earned too much money as night manager to work Sundays at premium pay. When Jennings responded that the collective bargaining agreement granted him the right to work Sunday hours, Collida asked Jennings if he wanted to remain night manager. Jennings said he would not voluntarily give up the night manager position. Collida refused to change the schedule.

Jennings, on December 18, filed a grievance over the loss of pay from the schedule change. At a hearing to discuss the grievance, Maureen Tedoni, labor relations specialist for Schnucks, offered to give Jennings four hours' pay for December 17. Tedoni also told Jennings that a decision had been made to replace him as night manager. Tom Evett, district manager for the company, said the company decided to remove Jennings from the night manager position to avoid a grievance every week Jennings was not scheduled to work Sunday. The company, on January 15, 1990, demoted Jennings from night manager to full-time produce clerk. Three days later, the union filed a grievance on Jennings' behalf over the demotion.

On February 11, the store assigned Vicki Vogt, an employee with less seniority than Jennings, as a Sunday manager on duty. ³ Later, the company also assigned grocery clerk Rick Russell as a Sunday manager on duty. Jennings filed grievances on February 15, 19, and 26 to protest the loss of premium hours he would have earned had he been scheduled to work Sundays. At a grievance meeting, Tedoni denied Jennings' February 15 grievance. Tedoni said that since Jennings was no longer part of management, he was not qualified to work as a manager on duty.

The Board's regional director filed a complaint on Jennings' behalf. After a hearing, the administrative law judge found that Schnucks violated § 8(a)(1) and (3) ⁴ of the Act by threatening Jennings with demotion, demoting him, and refusing to assign him as Sunday manager, all because of his protected union activity. ⁵ The Board adopted the ALJ's decision and order.

II.

Two issues are present on appeal: (1) whether Schnucks violated the Act by demoting Jennings from night manager for union activity; and (2) whether Schnucks violated the Act by refusing to assign Jennings to Sunday manager-on-duty shifts after the demotion. Because we find that the Board lacked jurisdiction to hear Jennings' demotion claim, and because we find that there is not substantial evidence to support the Board's determination that the company refused to assign Jennings to Sunday duty as a result of his union activity, we reverse.

A. Demotion from Night Manager

Schnucks concedes it demoted Jennings from night manager to produce clerk because he threatened to file grievances every week he was not given Sunday hours. The company contends, however, the Act does not protect Jennings because he was a supervisor. The National Labor Relations Act ⁶ excludes supervisors from the scope of its coverage. ⁷ The finding of supervisory status, therefore, is dispositive of the demotion question because, if Jennings is found to be a supervisor, he is unprotected by the Act and may be demoted or fired for union activity. Parker-Robb Chevrolet, Inc., 262 N.L.R.B. 402 (1982), petition for review denied sub nom. Automobile Salesmen's Union v. NLRB, 711 F.2d 383 (D.C.Cir.1983); Roma Baking Co., 263 N.L.R.B. 24 (1982); Hi-Craft Clothing Co. v. NLRB, 660 F.2d 910, 918 (3d Cir.1981). Schnucks bears the burden of proving supervisory status. Hearnsberger v. Gillespie, 435 F.2d 926, 929 (8th Cir.1970).

In determining supervisory status under the Act, the statutory definition rather than the ordinary, common-sense definition of the word controls. Section 2(11) of the Act provides:

The term "supervisor" means 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.

29 U.S.C. § 152(11) (1988). This statutory definition has two components. First, the individual must have the authority to accomplish one of the enumerated functions. This requirement is read in the disjunctive. Therefore, an individual's ability to exercise any one of the listed powers justifies the finding of supervisory status. NLRB v. Chem Fab Corp., 691 F.2d 1252, 1256 (8th Cir.1982). Second, the exercise of the individual's authority must require the use of independent judgment and be of more than a routine or clerical nature. Therefore, so-called "straw bosses" are not necessarily supervisors even if they give minor orders or supervise the work of others. Phillips v. Kennedy, 542 F.2d 52, 56 (8th Cir.1976).

The Board concluded Jennings was not a supervisor because he exercised independent judgment only sporadically. The Board found that the store manager retained all significant authority and gave Jennings no authority beyond that of a routine nature. For instance, the Board concluded that Jennings did not participate in managerial meetings, that his supervision mainly consisted of implementing the orders of daytime managers, and that he spent thirty to forty percent of his time on manual duties. Finally, the Board found that the company treated Jennings as a non-supervisor in all other respects under the bargaining agreement, and that although he was called a "manager," several employees had that title but were not considered supervisors.

Whether an employee is a supervisor is a factual question that falls within the Board's special expertise of applying the statutory framework to the "infinite gradations of authority within a particular industry." Chem Fab, 691 F.2d at 1256. Therefore, the Board's determination warrants deference so long as it is supported by substantial evidence on the record as a whole. Universal Camera Corp. v. NLRB, 340 U.S. 474, 487, 71 S.Ct. 456, 463 95 L.Ed. 456 (1951). Meeting the substantial evidence standard, however, requires more than a parsing of the record for evidence supporting the Board's decision. We also must consider evidence in the record that fairly detracts from the weight of the decision. Universal Camera, 340 U.S. at 488, 71 S.Ct. at 464.

This scrutiny is particularly appropriate in cases where the Board determines supervisory status. One commentator and numerous courts have assailed the Board's inconsistent determinations in this regard, complaining that the pattern of the Board's decisions on supervisory status "displays an institutional or policy bias on the part of the Board's employees" to expand the scope of the Act's protection. Note, The NLRB and Supervisory Status: An Explanation of Inconsistent Results, 94 Harv.L.Rev. 1713, 1714 (1981).

The Board applies the definition of supervisor that most widens the coverage of the Act, the definition that maximizes both the number of unfair labor practice findings it makes and the number of unions it certifies.

Id. at 1721; see also Waverly-Cedar Falls Health Care Center v. NLRB, 933 F.2d 626, 631 (8th Cir....