Dreyer's Grand Ice Cream, Inc. v. National Labor Relations Board

140 F.3d 684, 157 L.R.R.M. (BNA) 2854, 1998 U.S. App. LEXIS 5997
CourtCourt of Appeals for the Seventh Circuit
DecidedMarch 27, 1998
DocketNos. 97-2353, 97-2679
StatusPublished
Cited by4 cases

This text of 140 F.3d 684 (Dreyer's Grand Ice Cream, Inc. v. National Labor Relations Board) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dreyer's Grand Ice Cream, Inc. v. National Labor Relations Board, 140 F.3d 684, 157 L.R.R.M. (BNA) 2854, 1998 U.S. App. LEXIS 5997 (7th Cir. 1998).

Opinion

FLAUM, Circuit Judge.

In the wake of a failed unionization drive at its Fort Wayne, Indiana plant, Edy’s Grand Ice Cream (“Edy’s”) took steps to avoid future organizational efforts. Accordingly, Edy’s fired five employees who had been active with the union and committed lesser acts of retaliation against several others. These lesser acts included instructing employees who had supported the union to quit, interrogating them about their union activities, and suspending their memberships on the plant’s disciplinary committee. The National Labor Relations Board (“the Board”) ordered Edy’s to cease and desist from these activities and to reinstate the five terminated employees. In this petition for review of the Board’s decision, Edy’s contests only the Board’s reinstatement order. For the reasons that follow, we affirm the Board’s decision.

I.

The organization of Édy’s Fort Wayne facility is unusual. The workforce is divided into six vertically-integrated business units that rotate on a three-shift, 24-hour basis. Each business unit is divided into three teams; each team has eight to twelve employees. Through regular team meetings, team members have input into decisions regarding staffing, disciplinary matters, and strategies for reaching output goals. In addition to their work with their teams, employees may serve on various committees at the plant, including the Organizational Review Board (“the ORB”), which reviews disciplinary decisions made by the various teams. Over the long run, Edy’s hopes that this organizational structure will allow the employees to run the plant entirely on their own, without oversight by managers. In the meantime, however, Edy’s does employ traditional managers, who comprise a committee called the “M-Team.”

The United Food and Commercial Workers, Local 700 started a union organization effort at the plant in September 1993. Although the union ultimately lost the representation election on March 17, 1994, the organization drive had lasting effects on management’s outlook. Four days after the representation election, Plant Manager Kirk Raymond distributed a letter to employees thanking them for rejecting the union. Raymond’s letter also stated, “I am, however, very disturbed by comments from some team members who believe that this experience was in some way good for us. So that there are no misconceptions—this experience was extremely bad for us and one we should not repeat!” Raymond’s testimony in the administrative proceedings before the Board further revealed his sense of personal betrayal. According to the Administrative Law Judge:

Raymond’s testimony before me reflected greater hostility than he had expressed ... in his letter to his employees. He admitted that he did not want his employees to engage in union activity again. Further, he admitted that in his view a supervisor or anybody who engaged in union activity was engaging in the equivalent of stealing from the company or punching [686]*686somebody out. Continuing, Raymond admitted that he viewed stealing from the company or punching someone out “as offenses ... for which one could be discharged without warning.”

In the months following the union’s defeat in the representation election, Edy’s lashed out at a number of employees who had been active in the unionization drive, suspending several such employees from serving on the ORB and terminating the employment of five others. Local 700 filed unfair labor practice charges, and on September 12, 1996, the Administrative Law Judge issued his decision. The ALJ found that Edy’s had violated § 8(a)(1) of the National Labor Relations Act (“NLRA” or “the Act”) by instructing employees who had supported the union to quit, by interrogating employees about their union activities, and by suspending employees from the ORB in retaliation for their union support. The ALJ also determined that Edy’s had violated § 8(a)(1) and (3) by suspending employees, removing them from the ORB, and discharging them because of their union activities. The Board adopted the ALJ’s findings on May 9,1997 and ordered Edy’s to cease and desist its unlawful activities and to reinstate the five employees whom it had unlawfully discharged. Edy’s petitions this Court for review of the portion of the Board’s order requiring reinstatement of the five terminated employees: Robert Byanski, StevenLeatherman, Joe Troendly, Lois Jones, and Amy Wickensheimer.

II.

A. Robert Byanski and Steven Leatherman

Edy’s admits that it fired Robert Byanski and Steven Leatherman because of their union activities. Edy’s argues that this action was not unlawful, however, because Byanski and Leatherman were supervisory employees and were therefore outside of the NLRA’s protection.

Section 2(11) of the Act 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.

29 U.S.C. § 152(11). The distinction between supervisors and employees is crucial in maintaining “the balance of power between companies and unions”. NLRB v. Res-Care, Inc., 705 F.2d 1461, 1465 (7th Cir.1983) (discussing the policy justifications underlying the statutory prohibition against unionization of supervisors). The Board is permitted “a large measure of informed discretion” in determining whether employees are supervisors under the statutory definition. Dynamic Machine Co. v. NLRB, 552 F.2d 1195, 1201 (7th Cir.), cert. denied, 434 U.S. 827, 98 S.Ct. 103, 54 L.Ed.2d 85 (1977). Determination of supervisor status “is primarily a factual finding,” and “to the extent it requires statutory interpretation, it is a statute the Board is entrusted with enforcing.” NLRB v. Don’s Olney Foods, 870 F.2d 1279, 1281 (7th Cir.1989). We will not overturn the Board’s determination of supervisor status if it is supported by substantial evidence in the record. Id. at 1283.

Edy’s contends that Leatherman and Byanski were supervisors by virtue of their status as former “Super-Coordinators” at the plant. Edy’s created two Super-Coordinator positions in 1990 to oversee groups of teams and to troubleshoot and fill in when production problems occurred. Byanski and Leatherman held these positions, which paid an additional $1.50 per hour,, until Edy’s eliminated the Super-Coordinator positions in 1991. Edy’s created a new position, that of facilitator, to replace the Super-Coordinators, but Byanski and Leatherman were not selected to be facilitators. Thus, Byanski and Leatherman returned to their regular production jobs, but they continued to receive the additional $1.50 per hour.

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140 F.3d 684, 157 L.R.R.M. (BNA) 2854, 1998 U.S. App. LEXIS 5997, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dreyers-grand-ice-cream-inc-v-national-labor-relations-board-ca7-1998.