National Labor Relations Board v. Downslope Industries, Inc., and Greenbrier Industries, Inc.

LIVELY, Circuit Judge,

concurring in part and dissenting in part.

I agree with the majority that the Board’s order should be enforced insofar as it directs reinstatement with back pay of rank and file employees who were unlawfully discharged. However, I dissent from the decision to enforce the Board’s order insofar as it directs reinstatement with back pay of supervisor Scarlett. It is clear that Congress chose not to extend the protection of Section 7 of the Act to supervisors. Yet in this case the Board found the discharge of Scarlett to be unlawful as “an integral part of Respondent’s overall plan to discourage employees from engaging in protected activity.” This rationale is not supported by the language or purpose of the Act or by case law.

Member Murphy dissented in part from the decision of the Board in this case, stating:

By the decision in this case, I fear that this Board has once again taken a long and impermissible step toward expanding the National Labor Relations Act to confer upon itself jurisdiction over supervisors which the Act precludes. In finding *1121 that Supervisor Scarlett’s discharge violated the Act, the majority is taking the untenable position that anytime a supervisor is fired in close proximity with employees who are found to have been unlawfully discharged under the Act the supervisor’s discharge is also protected. In so doing, they are improvidently extending the protection Section 7 offers to employees to cover the concerted and union activities of supervisors. Whether this result is desirable or not, I believe it to be a proscribed one which takes congressional action, not decisional fiat, to achieve.

(Footnotes omitted).

My view of the present case coincides with that of the Fifth Circuit in N. L. R. B. v. Southern Plasma Corp., 626 F.2d 1287 (5th Cir. 1980), where Judge Henderson wrote for the court:

The ALJ also ordered reinstatement and backpay for supervisors Baker and Parker because their termination was “an integral part of a pattern of conduct aimed at penalizing employees” for their organizational activity. We regard this conclusion as a disturbing and unwarranted erosion of the Congressional mandate to exclude supervisors from the Act’s protection.

Through §§ 2(3), 2(11) and 14(a) of the Act, 29 U.S.C.A. §§ 152 (3), 152(11), 164(a), Congress excluded supervisors from the protection afforded rank-and-file employees who engage in concerted activity for their mutual benefit. Its purpose was to assure management of the undivided loyalty of its supervisory personnel by making sure that no employer would have to retain as its agent one who is obligated to the union. Florida Power & Light Co. v. IBEW, 417 U.S. 790, 808-809 , 94 S.Ct. 2737, 2746-2747 , 41 L.Ed.2d 477, 490-91 (1974). Supervisors fired for engaging in the same activity have no remedy under the Act. Id., 417 U.S. at 811 , 94 S.Ct. at 2748 , 41 L.Ed.2d at 492 . See also Beasley v. Food Fair of North Carolina, 416 U.S. 653, 660 , 94 S.Ct. 2023, 2027 , 40 L.Ed.2d 443, 450 (1974).

However, as explained in Russell Stover Candies, Inc. v. NLRB, 551 F.2d 204, 206 (8th Cir. 1977):

[I]f 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.

Courts have used reinstatement of a discharged supervisor as a remedy sparingly and in only narrowly defined circumstances. Reinstatement has been approved as a remedy where the supervisor was discharged for refusing to aid his employer in committing an unfair labor practice, NLRB v. Talladega Cotton Factory, 213 F.2d 209 (5th Cir. 1954); Russell Stover Candies, 551 F.2d -204 [8th Cir.]; where the supervisor was fired for giving testimony before the Board, NLRB v. Southland Paint Co., 394 F.2d 717 (5th Cir. 1968); Oil City Brass Works v. NLRB, 357 F.2d 466 (5th Cir. 1966); or where the discharge of a supervisor who hired his own crew was a pretext for the termination of his pro-union crew, Pioneer Drilling Co. v. NLRB, 391 F.2d 961 (10th Cir. 1968).

626 F.2d at 1294-95 .

I would reject outright the Board’s “integral part of a pattern of conduct aimed at penalizing employees for their union activities” test as inappropriate under the Act. There was no discussion of this test in N. L. R. B. v. Donelson Packing Co., 569 F.2d 430 (6th Cir. 1978), cited by the Board. Enforcement was granted on the determination that the findings of fact made by the Board were supported by substantial evidence on the record as a whole. This test is inexact and capable of being used to extend coverage to persons not intended to be covered by Congress.

The cases from this court in which the reinstatement of supervisors has been enforced typically have involved discharges for failure of the supervisor to commit un *1122 fair labor practices at the employer’s behest, Elder-Beerman Stores Corp. v. N. L. R. B., 415 F.2d 1375 (6th Cir. 1969), cert. denied, 397 U.S. 1009 , 90 S.Ct. 1237 , 25 L.Ed.2d 421 (1970); N. L. R. B. v. Lowe, 406 F.2d 1033 (6th Cir. 1969); or for giving testimony adverse to the employer at a Board hearing, N. L. R. B. v. Carter Lumber, Inc., 507 F.2d 1262 (6th Cir. 1974). In the present case the Board ordered reinstatement of a supervisor who had a personal complaint against management and was discharged for joining a protest by statutory employees with similar complaints. Reinstatement of a supervisor who has been discharged for joining in the same concerted activities undertaken by rank and file employees for their mutual benefit is not permissible.

The majority relies on what it terms the “crew chief” exception, citing Pioneer Drilling Co. v. N. L. R. B., 391 F.2d 961 (10th Cir. 1968). The term “crew chief” is not used in Pioneer Drilling. What the court said about reinstating supervisors in that case was that the pro-union activity of the employees motivated the employer to discharge the supervisors, and thus “the supervisors became not the object but rather a conduit of the employer’s unlawful acts.” Id. at 963 . The Board did not argue that this was a “conduit” case. The administrative law judge who heard this case found as a fact that “the chronological sequence here leads to the conclusion that the Respondent did not interfere with its employees’ Section 7 rights by discharging Scarlett . . . There is no indication that Lane was- seeking to ‘cover up’ employee discharges by terminating Scarlett. He simply discharged everyone who engaged in the protest, including her.” (App. at p. 789). 1 Scarlett, along with the rank and file employees, was discharged for protesting. She was not a “conduit of the employer’s unlawful acts”; she was individually an object of the employer’s wrath and suffered the same fate as the employees. Pioneering Drilling is not applicable.

Though the conduct of Jamison toward Scarlett was outrageous and indefensible, I do not believe her discharge comes within any of the “narrowly defined circumstances” where reinstatement of a supervisor is authorized. N. L. R. B. v. Southern Plasma Corp., supra, 626 F.2d at 1295 . I would deny enforcement to that portion of the order which requires the respondent to reinstate Scarlett with back pay.

. The Board did not disagree with this finding. It applied an impermissible legal test to the facts — that Scarlett’s firing was “an integral part” of an overall plan to discourage protected activity.