Teamsters Local 115 v. N.L.R.B., 115

• Decision Date: 26 January 1981
• Docket Number: 79-2018,I,Nos. 79-1619,No. 115,115,s. 79-1619
• Parties: 106 L.R.R.M. (BNA) 2462, 205 U.S.App.D.C. 306, 90 Lab.Cas. P 12,513 TEAMSTERS LOCAL 115, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Haddon House Food Products, Inc. and Flavor Delight, Inc., Intervenors. HADDON HOUSE FOOD PRODUCTS, INC. and Flavor Delight, Inc., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Teamsters Local Unionntervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 392

640 F.2d 392

106 L.R.R.M. (BNA) 2462, 205 U.S.App.D.C. 306,

90 Lab.Cas. P 12,513

TEAMSTERS LOCAL 115, a/w International Brotherhood of

Teamsters, Chauffeurs, Warehousemen and Helpers of

America, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent,

Haddon House Food Products, Inc. and Flavor Delight, Inc.,

Intervenors.

HADDON HOUSE FOOD PRODUCTS, INC. and Flavor Delight, Inc., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Teamsters Local Union No. 115, Intervenor.

Nos. 79-1619, 79-2018.

United States Court of Appeals,

District of Columbia Circuit.

Argued Oct. 27, 1980.

Decided Jan. 26, 1981.

Jonathan G. Axelrod, Bethesda, Md., with whom Hugh J. Beins, Washington, D. C., was on the brief, for petitioner in No. 79-1619 and intervenor in No. 79-2018.

Julius M. Steiner, Philadelphia, Pa., with whom Stephen J. Cabot and Jerald Cureton, Philadelphia, Pa., were on the brief, for petitioners in No. 79-2018 and intervenors in No. 79-1619.

Anton Hajjar, Atty., N. L. R. B., Washington, D. C., of the Bar of the Supreme Court of Louisiana pro hac vice by special leave of Court, with whom Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Washington, D. C., were on the brief, for respondent.

William J. Curtin and Stephen A. Bokat, Washington, D. C., were on the brief, for amicus curiae urging that the Board order should be upheld.

Before LUMBARD ^*, Senior Circuit Judge for the United States Court of Appeals for the Second Circuit, and MIKVA and GINSBURG, Circuit Judges.

Opinion for the Court filed by Circuit Judge MIKVA.

MIKVA, Circuit Judge:

Haddon House Food Products, Inc., is a small wholesale distributor, owned and managed by one Harold Anderson. Flavor Delight, Inc., is an even smaller spice company, owned and managed by his son, David Anderson. Together, the two companies are the Employer in this proceeding seeking review of an order of the National Labor Relations Board (Board).

On November 13, 1975, Local Union 115 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Union) commenced an organization drive among the employees of the Employer. On the following morning, two employees who had been active in the Union drive were summarily fired, as were two other employees who had signed Union authorization cards. Later that same day, three other cardsigners were laid off.

The conflict triggered by these events formed the basis of a complaint issued by the Board's general counsel, charging a number of violations of the National Labor Relations Act (Act). After a hearing, an Administrative Law Judge (ALJ) found that the Employer was guilty of an "outrageous and pervasive" system of unfair labor practices. Although the ALJ found that the Union had never obtained authorization cards from a majority of the employees in the bargaining unit, he nevertheless recommended that the Board issue a bargaining order because the Employer's conduct had been so pervasive and coercive that a fair election could not be held in the foreseeable future. The Board accepted and extended the ALJ's findings of unfair labor practices, but was sharply divided on the bargaining order remedy recommended by the ALJ, and ordered instead a variety of alternative remedies. ¹ The Union and the Employer each petitioned for review, and the Board cross-petitioned for enforcement. For reasons set forth in this opinion, we are prepared to enforce the Board's order only if one of the remedies proposed therein is modified.

I. UNFAIR LABOR PRACTICE FINDINGS

There is little dispute that the conduct engaged in by the Employer to abort the Union's organizing effort was egregious and effective. The Employer promised benefits to induce the employees to avoid the Union, and both threatened and carried out discharges and layoffs as a penalty for union activity. After the fired workers began picketing, the Employer initially offered them reinstatement. ² When they sought to accept the offer, after a few days' delay, the strikers were met by security guards and dogs who denied them entrance to the plant. While the ALJ did not consider the denial of reinstatement an unfair labor practice, the Board did. This is the only unfair labor practice finding challenged on appeal, ³ and we conclude that there was ample evidence in the record to sustain the Board's determination.

Unfair labor practice strikers those whose absence from the workplace is prompted by employer conduct that is found to constitute an unfair labor practice are entitled to reinstatement if they make an unconditional offer to return to work. N.L.R.B. v. International Van Lines, 409 U.S. 48, 93 S.Ct. 74, 34 L.Ed.2d 201 (1972). The ALJ found that the strikers' offer was conditional because they had resolved not to return unless they were all taken back. The Board, however, found that the Employer's reason for denying reinstatement had nothing to do with that condition; indeed, the Employer was unaware of any condition when the employees sought to return. The Employer denied them reinstatement, the Board found, because they had not met the deadline set in the Employer's offer of reinstatement. Reinstatement conditioned on such a deadline is not the reinstatement to which these employees were entitled under the Act.

The testimony in the record amply supports the Board's finding that the Employer denied reinstatement because its deadline had not been met. And the law amply supports the Board's conclusion that, having denied reinstatement for invalid reasons of its own, the Employer cannot now claim that a subjective resolve of the strikers, never communicated to the Employer, robbed the employees' return of its unconditional nature. The actual basis of the Employer's conduct is determinative. See, e. g., Lodges 743 & 1756, International Association of Machinists v. United Aircraft Corp., 534 F.2d 422, 458 n.61 (2d Cir. 1975), cert. denied, 429 U.S. 825, 97 S.Ct. 79, 50 L.Ed.2d 87 (1976); Snow v. N.L.R.B., 308 F.2d 687 (9th Cir. 1962).

The Board's unfair labor practice rulings were well-founded. Indeed, the record convinces us that the Employer's conduct constituted "a well-orchestrated antiunion campaign that featured repeated and egregious violations ... of the Act," J.A. 59 (concurring opinion of Chairman Fanning and Member Jenkins). The hard question is how to remedy such conduct in the case at bar.

II. THE MINORITY STATUS OF THE UNION

Where a union has enjoyed the support of a majority of the employees in the bargaining unit, the Board's remedies for serious employer misconduct frequently include an order directing the Employer to bargain with the union. In the instant case, however, the record does not support the Union's contention that it had achieved majority status. The parties agree that the Union had obtained twenty-seven authorization cards signed by employees. The Board found that there were more than fifty-three workers in the bargaining unit, so that twenty-seven cards cannot demonstrate majority support.

The ALJ had found at least fifty-nine employees in the unit. The Board concluded that the ALJ had counted three employees twice, and so found that there were at least fifty-six employees in the unit. Our own inspection of the record suggests that a fourth employee may have been counted twice. ⁴ Even so, the Union was at least one card short of majority status.

The Union claims that these figures include three other employees who should have been excluded from the unit because they were supervisors within the meaning of the Act. We turn to that contention.

Section 2(3) of the Act excludes from the statutory definition of employee "any individual employed as a supervisor." 29 U.S.C. § 152(3) (1976). Section 2(11) in turn defines 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 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) (1976). This court has reminded litigants that application of this definition requires an attentive eye to the realities of the workplace and not a "wooden reading," since "(a)lmost any employee 'directs' other employees in some fashion at some time." Food Store Employees Local 347 v. N.L.R.B., 422 F.2d 685, 690 (D.C.Cir.1969). Moreover, accurate estimation of supervisory status is a factual judgment facilitated by the expertise of the Board, and "(t)he substantial evidence standard for review of agency fact determinations ... takes on special significance where the issue lies so squarely within the Board's ambit of expertise." Oil, Chemical and Atomic Workers v. N.L.R.B., 445 F.2d 237, 241 (D.C.Cir.1971), cert. denied, 404 U.S. 1039, 92 S.Ct. 713, 30 L.Ed.2d 730 (1972) (citation omitted).

We begin with the Union's challenge to the Board's finding that Angelo Patelo is not a Flavor Delight supervisor. The record shows that, although he is paid more than some fellow employees, other rank-and-file workers earn more than he does. While he occasionally communicates orders from management, he does not have other supervisory, disciplinary, or hiring powers. He performs manual work side by side with other employees. These are hardly the facts on which the Board's determination can be overturned. The same is true regarding John Morrow, the Employer's oldest employee and one who may have had some authority at some time in the past. Partly because of his age, Morrow has trained another employee, Paul Masi, to take over his major responsibilities. The ALJ concluded that whatever authority Morrow had once exercised was now exercised by Masi, and that such authority did not suffice...