General Services, Inc.

National Labor Relations Board - Board Decisions

May 24, 1977

229 N.L.R.B. 940 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Services, Inc. and William Russell McCrack-
en. Case 1 O-CA-11741
May 24, 1977
DECISION AND ORDER
On October 15, 1976, Administrative Law Judge
Karl H. Buschmann issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,
conclusions, and recommendations of the Adminis-
trative Law Judge only to the extent consistent
herewith.
In his Decision, the Administrative Law Judge
found that it was not a violation of Section 8(a)(l) or
(4) of the Act for Respondent to refuse to rehire
William Russell McCracken, a supervisor, because
he filed charges with the Board alleging that he was
discharged for union activity in violation of Section
8(a)(l) and (3). Accordingly, the Administrative Law
Judge recommended that the complaint be dismissed
in its entirety. We find merit in the General Counsel's
exceptions to the Administrative Law Judge's Deci-
sion.
The facts are as follows. McCracken was hired by
Respondent in October 1973 and served as a lead
cook from that time until his discharge on July 23,
1975.1 On July 28, McCracken filed an 8(a)(1) and
(3) charge with the Board (Case 10-CA-11377)
alleging that he was discharged because of his union
activity. Although McCracken testified at the hearing
in June 1976 that he "was hired as a supervisor," the
8(a)(3) charge filed by him the preceding July
indicates that he was uncertain of his exact status.
Thus, under the heading "Basis of the Charge,"
McCracken alleged, inter alia, that he was first
informed that he was a supervisor during the 2-week
period between the commencement of his union
activity and his discharge.
Shortly after filing the charge, McCracken met
with a Board agent who suggested that McCracken
should inform Respondent that he would like to be
reinstated to his former job. According to McCrack-
en's credited testimony, on August 1 he spoke to
Assistant Project Manager Briggs and asked, "Are
you hiring?" Briggs replied that he was confident that
if McCracken were to write a letter to Respondent's
president, Wise, permission would be obtained to
rehire McCracken. McCracken then wrote the
requested letter, which he left with Briggs for delivery
I All subsequent dates herein are in 1975 unless otherwise indicated.
2 Nash v. Florida Industrial Commission, 389 U.S. 235, 238 (1967).
229 NLRB No. 134
to Wise. On the basis of Briggs' assurances that
authorization to rehire McCracken would surely be
forthcoming once Wise received the letter, McCrack-
en withdrew his charge in Case I0-CA-11377 that
same evening.
Approximately 10 days later, McCracken again
approached Briggs and asked about returning to
work. Briggs informed McCracken that Wise had
been notified of McCracken's charge on the same
day that his letter had been received, and that Wise
certainly would not take any action on McCracken's
request to return to work until the charge was
withdrawn and probably not until after the outcome
of an upcoming union election. Since that time,
McCracken has not been offered reemployment by
Respondent.
On December 29, McCracken filed a second 8(a)(1)
and (3) charge with the Board (Case 10-CA-11700),
again alleging that he was discharged because of his
union activity. On January 16, 1976, this charge was
dismissed by the Regional Director for Region 10 on
the ground that McCracken had been found to be a
supervisor in an earlier representation proceeding.
On January 22, 1976, McCracken filed the instant
8(a)(l) and (4) charge. The complaint issued on May
13, 1976.
In view of the above, it is clear, and the Adminis-
trative Law Judge found, that Respondent refused to
rehire McCracken because he had earlier filed a
charge with the Board. Thus, although Respondent
had assured McCracken that reemployment was
certain once the letter to Wise was received, it
thereafter refused to rehire him upon learning of his
charge in Case 10-CA-11377. The issue, therefore, is
whether Respondent's refusal to reinstate McCrack-
en to his former supervisory position was unlawful.
For the reasons discussed below, we answer this
question affirmatively and find that Respondent's
conduct in this regard was violative of Section
8(a)(4).
Although the Board is empowered to prevent
unfair labor practices, it cannot initiate its own
processes. Rather, as the Supreme Court has stated,
"Implementation of the Act is dependent upon the
initiative of individual persons who must, as petition-
er has done here, invoke its sanctions through filing
an unfair labor practice charge." 2 In order to
facilitate the free access to the Board's procedures
which is essential if unfair labor practices are to be
remedied, the Board, through its Rules and Regula-
tions, has proclaimed that any person may file a
charge. 3 Once a charge has been filed, it is not merely
the private rights of the parties which are involved in
3 Sec. 102.9 of the National Labor Relations Board Rules and
Regulations, Series 8, as amended.
940
GENERAL SERVICES, INC.
the dispute, but "the enforcement of public law and
the assertion of the public interest thereof." 4
That the initiation of a Board proceeding effectu-
ates public policy is clearly shown by the presence of
Section 8(a)(4) in the Act. Thus, the Supreme Court
has stated that by adopting this section "Congress
has made it clear that it wishes all persons with
information about such [unfair labor] practices to be
completely free from coercion against reporting them
to the Board." 5 This complete freedom is necessary,
the District of Columbia Circuit has said, "to prevent
the Board's channels of information from being dried
up by employer intimidation of prospective com-
plainants and witnesses."6 Similarly, the Board has
stated that the purpose of Section 8(a)(4) was "to
assure an effective administration of the Act by
providing immunity to those who initiate or assist the
Board in proceedings under the Act." 7
In sum, the Board and the courts have recognized
that if the Board is to perform its statutory function
of remedying unfair labor practices its procedures
must be kept open to individuals who wish to initiate
unfair labor practice proceedings, and protection
must be accorded to individuals who participate in
such proceedings. Therefore, it is not surprising that
"[t]he approach to § 8(a)(4) generally has been a
liberal one in order fully to effectuate the section's
remedial purpose."8 Under this approach, this Board
has included within the protections of 8(a)(4) job
applicants 9 and employees of other employers,' 0 as
well as supervisors." Additionally, although the
section literally only protects those who have "filed
charges or given testimony," this Board has also
protected those who provide affidavits or sworn
statements,12 those who refuse to testify voluntari-
ly,'3 employees who the employer erroneously
believes have filed charges against him,' 4 and
employees who testify against former employers.' 5
Through the Supremacy Clause, Section 8(a)(4) bars
discriminatory conduct not only by employers but
also by state agencies.' 6 Finally, the phrase in
Section 8(a)(4) prohibiting the employer from "other-
wise" discriminating against an employee has been
broadly interpreted 17 to include rehiring conditioned
upon the dropping of charges with the Board,18
refusing to hire a job applicant,' 9 and refusing to
4 Retail Clerks International Association, Local Union No. 1288, AFL
CIO (Nickel's Pal-Less Stores of Tulare Countyv. Incorporated), 163 NLRB
817. fn. I (1967): cf. N. LR. B. v. Industrial Union of Marine & Shipbuilding
Workers of America, AFL-CIO [United States Lines], 391 U.S. 418, 424
(1968).
3 Nash. supra at 238.
John Hancock Mutual Life Insurance Co. v. N.L.R.B., 191 F.2d 483, 485
(1951).
7 Briggs Manufacturing Compancr, 75 NLRB 569, 571 (1947).
s N.L.R.B. v. Scrivener, d/b/a AA Electric Co., 405 U.S. 117, 124 11972).
E Briggs Manufacturing Company, supra; Pacific American Shipowners
A sociation, et al., 98 NLRB 582 (1952).
'o Lamar Creamerr Company, 115 NLRB 1113 (1956). enfd. 246 F.2d 8
(C.A. 5, 1957)
rehire an employee even where the original dismissal
was nondiscriminatory. 2 0
In a very recent decision, we analyzed whether the
remedial purpose of Section 8(a)( 4) would be
effectuated by the application of the Board's doctrine
of deferral to arbitration awards to cases involving
alleged violations of that provision. Filmation Associ-
ates, Inc., 227 NLRB 1721 (1977). We held that the
deferral doctrine was inapplicable, stating that the
prohibition expressed in Section 8(a)(4) is "a funda-
mental guarantee to employees that they may invoke
or participate in the investigative procedures of this
Board without fear of reprisal and is clearly required
in order to safeguard the integrity of the Board's
processes." We concluded in Filmation that "issues
involving Section 8(a)(4) of the Act are solely within
the Board's province to decide" because "the duty to
preserve the Board's processes from abuse is a
function of this Board and may not be delegated to
the parties or to an arbitrator."
In our view, application of these principles requires
a finding of an 8(a)(4) violation here. In this case,
McCracken, unsure of his status as supervisor or
employee, filed an 8(a)(3) charge with the Board
alleging that he was discharged because of his union
activity. Clearly, in order to perform its statutory
function of determining whether an unfair labor
practice occurred, the Board would have to rule on
McCracken's status as statutory supervisor or rank-
and-file employee. As discussed above, the purpose
of Section 8(a)(4) is to insure that the Board will be
able to make that unfair labor practice determination
by protecting from reprisal employees who file unfair
labor practice charges and thus encouraging them to
report such allegations to the Board. We believe,
therefore, that for the purpose of processing his
charge McCracken must be considered an "employ-
ee" within the meaning of Section 8(a)(4). It is true
that the Board's subsequent investigation resulted in
a finding that McCracken was a statutory supervisor
and therefore without a remedy for his discharge.
But, because McCracken filed a charge, the policy
expressed in Section 8(a)(4) mandates that the
critical ruling on his status be made by the Board
alone, and that McCracken not suffer any other
discrimination because he filed the charge. To
l' General Nutrition Center, Inc., 221 NLRB 850(1975).
i2 N.LR.B. v. Scrivener, supra.
a3 Retail Store Employees Union. Local 876, Retail Clerks International
Association, AFL-CIO, 219 NLRB 1188 (1975).
14 Maple City Stamping Company, 200 NLRB 743 (1972).
'5 Fulton Bag & Cotton Mills, 79 NLRB 939 (1948), enfd. 180 F.2d 68
(C.A. 10, 1950).
16 Nash, supra.
7 N. L.R.B. v. Scrivener, 405 U.S. at 122.
tI Everage Brothers Market, Inc.. 206 NLRB 593 (1973).
lo Lamar Creamery Company, supra.
20 Motor City Electric Company, 204 NLRB 460 (1973).
941
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
protect his right to file that charge, he must be
protected from Respondent's later discrimination of
refusing him reinstatement.
A contrary holding that Respondent's discrimina-
tion against McCracken was lawful would clearly
discourage the filing of charges and thus reduce the
Board's ability to remedy unfair labor practices.
Furthermore, such a holding would be tantamount to
a conclusion that Respondent, rather than this Board
alone, was privileged to decide that McCracken's
8(a)(3) charge was unmeritorious because he was a
statutory supervisor and hence beyond the protec-
tions of the Act. But we are no more disposed to
delegate our decisionmaking function under Section
8(a)(4) to the Respondent in this case than we were
to delegate it to the arbitrator in Filmation.
As noted earlier, the concept of supervisory
protection under Section 8(a)(4) is not novel. Thus,
in General Nutrition Center, supra, the Board found a
violation of Section 8(a)(4) and (1) where a respon-
dent discharged and refused to reinstate a supervisor
because she assisted employees in proceedings before
the Board. In Modern Linen & Laundry Service,
Inc.,21 a supervisor had, pursuant to a subpena, given
testimony at a Board hearing. Allegedly, as a result
of such testimony, this person was discharged. This
Board initially dismissed the complaint because the
employer failed to meet our jurisdictional standards.
However, the Second Circuit reversed and remanded
the case to the Board,22 stating that the dismissal was
"unjust and intolerable," 23 and concluding that "the
protection afforded by § 8(a)(4) is coextensive with
the power to subpoena." 24 This Board subsequently
found that a violation had occurred.25 That the
supervisor in the present case acted voluntarily in
using the Board's procedures should not cause us to
give him any less protection than that given the
supervisor in Modern Linen & Laundry Service
because:
In terms of the effective administration of the
Act, however, we see no distinction between the
protection of managerial employees who cooper-
ate willingly with the Board and of those who
render assistance under legal compulsion. The
effect of the discharge, in either event, is to tend
to dry up legitimate sources of information to
Board agents, [and] to impair the functioning of
the machinery provided for the vindication of the
employees' rights .... 26
2' IIONLRB 1305(1954); 114 NLRB 166(1955).
22 Pedersen v. N. L.R.B., 234 F.2d 417 (C.A. 2, 1956).
23 234 F.2d at 420.
24 234 F.2d at 420. See also N L.R.B. v. Scrivener, supra, 405 U.S. at 124.
25 116 NLRB 1974 (1956). The Board found a violation of Sec. 8(a)(1)
The history of Section 8(aX4) further supports our
view that a supervisor who files a charge with the
Board alleging that he has been discriminated against
because of his union activity is, for the purpose of
processing that charge, an "employee" within the
meaning of that provision. Section 8(a)(4) had its
origin in Executive Order 6711 issued in May 1934
pursuant to the National Industrial Recovery Act.
That order provided as follows: "No employer ...
shall dismiss or demote any employee for making a
complaint or giving evidence with respect to an
alleged violation." Thereafter, in Section 8(4) of the
National Labor Relations Act of 1935, Congress
provided that it shall be an unfair labor practice for
an employer "to discharge or otherwise discriminate
against an employee because he has filed charges or
given testimony under this Act." This provision was
described as "merely a reiteration" of the 1934
Executive Order. "Comparison of S.2926 (73d Cong.)
and S.1958 (74th Cong.) Senate Committee Print 29,"
I Leg. Hist. 1319, 1355 (1935). Neither the National
Industrial Recovery Act nor the National Labor
Relations Act of 1935 excluded supervisory employ-
ees from its coverage.
In 1947, when Congress enacted the Taft-Hartley
amendments, Section 8(4) was retained without
change and merely relettered as Section 8(a)(4). Of
course, the 1947 amendments excluded from the
definition of "employee" in Section 2(3) those
individuals defined as supervisors in Section 2(11).
But the Supreme Court has stated that the objective
of these amendments was to relieve employers of the
obligation "to recognize and bargain with unions
including or composed of supervisors, because
supervisors were management obliged to be loyal to
their employer's interests, and their identity with the
interests of rank-and-file employees might impair
that loyalty and threaten realization of the basic ends
of federal labor legislation." Beasley v. Food Fair of
North Carolina, Inc., 416 U.S. 653, 659-660 (1974).
Thus, the Court concluded in Beasley that the
legislative history to the 1947 amendments "compels
the conclusion that Congress' dominant purpose in
enacting §§ 2(3) and 2(11), and enacting § 14(a) was
to redress a perceived imbalance in labor-manage-
ment relationships that was found to arise from
putting supervisors in the position of serving two
masters with opposed interests." (416 U.S. at 661-
662.)
Consistent with this interpretation, supervisors are
excluded from the organizational and representation-
but did not pass on the question of whether the discharge also violated Sec.
8(a)4).
z6 N.LR.B. v. Electro Motive Mfg. Co., Inc., 389 F.2d 61. 62 (C.A. 4,
1968), enfg. 158 NLRB 534 (1966).
942
GENERAL SERVICES, INC.
al portions of Section 8(a); i.e., 8(a)(l), (2), (3), and
(5). But nothing in the legislative history to the 1947
amendments indicates that Congress intended the
coverage of Section 8(a)(4) to be more limited than
that of its predecessor. To the contrary, it was
recognized that the new Section 8(a)(4) was worded
"[iJn the language of the present section 8(4)." H.
Rep. 245 on H.R. 3020, Committee on Education
and Labor, I Leg. Hist. 292, 321 (1947). Nor does the
legislative history suggest that, by relieving employ-
ers of the obligation to recognize and bargain with
supervisors, Congress intended to empower them,
rather than the Board alone, with the authority to
rule on the status of a complainant filing a charge
under the Act. Accordingly, we conclude that the
protection afforded supervisors under Section 8(4) of
the 1935 Act was not removed by the Taft-Hartley
amendments of 1947, and that Section 8(a)(4)
therefore provides a guarantee to a discharged
supervisor who files an 8(a)(3) charge that he may
obtain a Board ruling on his status free from
employer discrimination because he filed a charge.
CONCLUSIONS OF LAW
I. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. By refusing to reemploy William Russell
McCracken because he filed a charge under the Act
alleging that he was unlawfully discharged, Respon-
dent has violated Section 8(a)(4) and (1) of the Act.
3. The aforesaid unfair labor practice affects
commerce within the meaning of Section 2(6) and (7)
of the Act.
THE REMEDY
Having found that Respondent has violated the
Act in certain respects, we shall order that it cease
and desist therefrom and take certain affirmative
action necessary to effectuate the policies of the Act.
We shall order that it offer reinstatement to William
Russell McCracken, without prejudice to his seniori-
ty or other rights and privileges, and make him whole
for any loss of earnings he may have suffered by
reason of Respondent's unlawful refusal to reinstate
him. Backpay is to be computed in a manner
consistent with Board policy as set forth in F. W.
Woolworth Company, 90 NLRB 289 (1950), with
interest thereon at the rate of 6 percent per annum as
set forth in Isis Plumbing & Heating Co., 138 NLRB
716 (1962).
27 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
General Services, Inc., Huntsville, Alabama, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to reemploy or otherwise discriminat-
ing against a supervisor because he has filed charges
or given testimony under the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their rights under the National Labor Relations Act,
as amended.
2. Take the following affirmative action which
will effectuate the policies of the Act:
(a) Offer William Russell McCracken immediate
and full reinstatement to his former position or, if
such position no longer exists, to a substantially
equivalent position, without prejudice to his seniority
or other rights and privileges, and make him whole
for any loss of earnings he may have suffered as a
result of the discrimination practiced against him in
the manner set forth in the section of this Decision
entitled the "Remedy."
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(d) Post at its place of business in Huntsville,
Alabama, copies of the attached notice marked
"Appendix." 27 Copies of said notice, on forms
provided by the Regional Director for Region 10,
after being duly signed by Respondent's representa-
tive, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 10, in
writing, within 20 days of the date of this Order, what
steps the Respondent has taken to comply herewith.
MEMBERS PENELLO and WALTHER, dissenting:
We cannot agree with the majority that, in the
absence of any effect on employee rights, Respon-
dent violated Section 8(a)(4) and (1) of the Act by
refusing to reinstate William Russell McCracken, a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
943
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
supervisor, because he filed charges with the Board
alleging that he was discharged for union activity in
violation of Section 8(a)(3) and (1). Contrary to our
colleagues, we would adopt the Administrative Law
Judge's well-reasoned decision and dismiss the
complaint in its entirety.
There is no disagreement as to the facts which can
be summarized as follows. McCracken was employed
by Respondent as a supervisor in October 1973 and
was discharged on July 23, 1975. On July 28,
McCracken filed an 8(a)(3) and (1) charge with the
Board alleging that he was discharged because of his
union activity. Shortly thereafter, McCracken, acting
on the advice of a Board agent, asked to be rehired
and was assured by Respondent that reinstatement
was a virtual certainty. However, once Respondent
received notice of McCracken's 8(a)(3) charge, it
refused to reemploy him. It is not disputed that at all
times material McCracken was a supervisor within
the meaning of Section 2(11) of the Act. Indeed,
McCracken was found to be a statutory supervisor in
a subsequent representation proceeding.
On the basis of these facts, the Administrative Law
Judge refused to find an 8(a)(1) or (4) violation
"basically because not a scintilla of record evidence
shows that the rights of any other employees were
adversely affected by Respondent's failure to rein-
state McCracken." This critical finding is not
attacked by the majority, nor is it the subject of the
General Counsel's exceptions. On the contrary, the
General Counsel concedes that the "facts of the
present case are such that they are not clearly
brought within the line of prior Board decisions
where the discharge of a supervisor is unlawful
because it had a chilling effect upon the Section 7
rights of statutory employees...."
In the line of case law referred to by the General
Counsel, the Board, with court approval, has long
held that discrimination against a supervisor because
he assisted employees in proceedings before the
Board is violative of Section 8(a)(1). 28 More recently,
the Board has found a violation of Section 8(a)(4) as
well as Section 8(a)(1) under such circumstances.2 9
The underlying rationale of these cases has been well
articulated by the Fifth Circuit in its Oil City Brass
Works decision: 30
The Board's order should be enforced as an
inherent protection of its source of information
necessary to protect rank-and-file employees in
the exercise of their statutory rights. . .
* * *
Rank-and-file employees have a right to have
their privileges secured by the Act vindicated
through the effective administrative proceedings
provided by Congress. Included in this privilege is
the right to have witnesses testify without fear of
being penalized by their employer. As in the
instant case, it may often be necessary to have
supervisory personnel testify. It follows, therefore,
that any discrimination against supervisory per-
sonnel because of testimony before the Board
directly infringes the right of rank-and-file em-
ployees to a congressionally provided, effective
administrative process, in violation of section
8(a)(l )..
It is clear from this quotation that the right being
protected in cases such as Oil City Brass Works is not
that of the supervisor, who is excluded from the
coverage of the Act, but that of rank-and-file
employees to have their statutory guarantees vindi-
cated through the Board's processes. 3 1 In the instant
case, however, there is simply no evidence that
Respondent's refusal to reinstate McCracken infr-
inged on the right of statutory employees to an
effective administrative process or on any other
employee right protected by the Act. Thus, the
charges filed by McCracken concerned his own
union activity and his own discharge, rather than
alleged unfair labor practices committed against
rank-and-file employees. Further, as found by the
Administrative Law Judge, "[t]here is no record
evidence which shows that any rank-and-file employ-
ees even knew why McCracken was fired, and
whether he engaged in any union activity, much less
is there any showing that employees knew whether
Respondent failed to reinstate him because he had
filed charges with the Labor Board." In short, so far
as the record shows, the circumstances surrounding
Respondent's refusal to reinstate McCracken were
totally removed from any possible impact on
employee rights. 3 2
IN E.g., Better Monkeyv Grip Company, 115 NLRB 1170 (1956). enfd. 243
F.2d 836 (C.A. 5, 1957), cert. denied 353 U.S. 864.
29 General Nutrition Center, Inc., 221 NLRB 850, 858 (1975).
10 Oil City Brass Works v. N.L.R.B., 357 F.2d 466, 471 (C.A. 5, 1966),
enfg. 147 NLRB 627 (1964).
1i The majority has cited no case to the contrary. As noted above, in
General Nutrition, supra, the unfair labor practice finding was based on the
fact that the supervisor assisted statutory employees in filing a charge with
the Board. Similarly, in Modern Linen I Laundry Service, Inc., 116 NLRB
1974 (1956). the supervisor testified at a Board hearing and thereby helped
to vindicate employee rights. Finally, the majority's quotation from
N.L.R.B. v. Electro Motive Mfg. Co., Inc., 389 F.2d 61, 62 (C.A. 4, 1968), is
taken out of context because in that case the supervisor "was discharged for
giving a Board agent a signed statement which contained an admission that
certain employees had been unlawfully threatened" by him. The court cited
Oil City Brass Works, supra, and concluded that Sec. 8(a)( I) had been
violated because the respondent's conduct interfered with the right of
employees to an effective administrative proceeding.
12 With respect to the consideration of impact on employee rights,
Member Walther specifically relies on the absence of any evidence
944
GENERAL SERVICES, INC.
The majority nevertheless concludes that Respon-
dent's action violated Section 8(a)(4) of the Act. Our
colleagues state that "a supervisor who files a charge
with the Board alleging that he has been discrimi-
nated against because of his union activity is for the
purpose of processing that charge an 'employee'
within the meaning of" Section 8(a)(4). In other
words, the majority holds that although the defini-
tion of "employee" in Section 2(3) expressly excludes
"any individual employed as a supervisor," such
individuals are included within the term "employee"
as used in Section 8(a)(4). We cannot agree with our
colleagues' bizarre construction of the statute.
First, the Supreme Court has repeatedly interpre-
ted the Taft-Hartley amendments as removing
supervisors from the protections of the Act. "Specifi-
cally, Congress in 1947 amended the definition of
'employee' in § 2(3), 29 U.S.C. § 152(3), to exclude
those denominated supervisors under § 2(11), 29
U.S.C. § 152(11), thereby excluding them from the
coverage of the Act." Florida Power & Light Co. v.
International Brotherhood of Electrical Workers, Local
641, et al., 417 U.S. 790, 807 (1974). In Beasley v.
Food Fair of North Carolina, Inc., 416 U.S. 653, 654
(1974), the Supreme Court began its opinion by
stating that the "Taft-Hartley amendments of the
National Labor Relations Act excluded supervisors
from the protections of the Act .... "
Second, there is no affirmative evidence indicating
that Congress intended to treat the issue of supervi-
sory protection under Section 8(a)(4) and differently
from the other provisions of Section 8(a). Our
colleagues rely on the absence of legislative history
on this question to support their view that Congress
intended to include supervisors within the protection
of Section 8(a)(4). But, in view of the enactment of
Sections 2(3), 2(11), and 14(a) for the express purpose
of excluding supervisors from the Act, congressional
silence with regard to the coverage of one particular
section is hardly a sufficient basis for concluding that
Congress intended it to remain unaffected by the
1947 amendments. Certainly if Congress had intend-
ed the anomalous construction of the Act adopted by
the majority then, as the Supreme Court commented
in an analogous context, "it would have said so
expressly." N.LR.B. v. Bell Aerospace Company,
Division of Textron, Inc., 416 U.S. 267, fn. 13 (1974).
Finally, it is well established that the Act does not
protect supervisors against discharge by an employer
"solely because of their [union] membership."
Beasley, supra, 416 U.S. at 656. Therefore, there is no
congressionally intended reason for a supervisor to
file a charge with the Board concerning his own
discharge for union activity and hence no need for a
supervisor to be protected by Section 8(a)(4) for such
action. No less than our colleagues in the majority,
we embrace the principle that the "approach to §
8(a)(4) generally has been a liberal one in order fully
to effectuate the section's remedial purpose."3 3 That
purpose, it bears repeating, is to vindicate the
statutory rights of rank-and-file employees. Accord-
ingly, in the absence of any evidence indicating that
those rights were adversely affected, it is not a
violation of Section 8(aX4) or (1) for an employer to
refuse to reinstate a supervisor because he filed
charges with the Board alleging only that he was
discharged because of his union activity. In conclud-
ing otherwise, the majority has misconstrued the
Taft-Hartley amendments of 1947.
indicating that the refusal to reinstate McCracken for having filed charges
with the Board resulted in a direct infringement on the right of rank-and-file
employees to an effective administrative process. He, however, would not in
any event rely on evidence that Respondent's action might have led
employees reasonably to fear that it would take the same action against
them for similar conduct. See his dissent in Buddies Super Markers, 223
NLRB 950 (1976), enforcement denied, Docket 76-3567 (C.A. 5. 1977)
(unpublished order).
33 N.L.R.B. v. Scrivener, d/b/a/ AA Electric Co., 405 U.S. 117, 124
(1972).
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to reemploy, or otherwise
discriminate against, a supervisor because he has
filed charges or given testimony under the Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of their rights under the National
Labor Relations Act, as amended.
WE WILL offer William Russell McCracken
immediate and full reinstatement to his former
position or, if such position no longer exists, to a
substantially equivalent position, without preju-
dice to his seniority or other rights and privileges,
and WE WILL make him whole for any loss of
earnings he may have suffered as a result of the
discrimination practiced against him.
GENERAL SERVICES, INC.
DECISION
STATEMENT OF THE CASE
KARL H. BuscHMANN, Administrative Law Judge: On
May 13, 1976, a complaint issued pursuant to a charge filed
on January 22, 1976, and amended on February 9, 1976, by
William Russell McCracken. The complaint alleges that
Respondent herein, General Services, Inc., violated Section
8(a)(1) and (4) of the National Labor Relations Act (herein
the Act), as amended, by its failure or refusal to reinstate
William Russell McCracken, a supervisor, because he filed
945
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charges with or gave testimony to the Board in Cases 10-
CA-11377 and 10-CA-11700. Respondent filed a timely
answer admitting the jurisdictional allegations of the
complaint but denying the commission of an unfair labor
practice.
A hearing in this case was held before me on June 29,
1976, in Huntsville, Alabama. Upon the entire record,
including my observation of the witnesses, and after
consideration of the briefs filed by the counsel for the
General Counsel and the counsel for Respondent I make
the following:
FINDINGS OF FACT
General Services, Inc., an Alabama corporation with
offices at Redstone Arsenal, Huntsville, Alabama, is
engaged in providing contract food services for the United
States Missile Command. William Russell McCracken was
employed by General Services as a supervisor on October
18, 1973, and served as lead cook from that time to July
1975. On July 23, 1975, McCracken was discharged by
Paul K. Briggs, assistant project manager, in the presence
of Respondent's president, Glenn F. Wise. In the termina-
tion letter Respondent stated in substance that the
discharge was the result of McCracken's poor attitude
toward management.
On July 28, 1975, McCracken filed an 8(a)(1) and (3)
charge with the Board; i.e., Case 10-CA-11377. In his
charge, McCracken indicated that he had engaged in union
activity by obtaining signatures for union authorization
cards for which he was fired. Subsequently, on August I,
1975, and acting on the advice of a Board representative,
McCracken drove to the office of Assistant Project
Manager Briggs to request reinstatement of his former job.
While Briggs indicated to McCracken that he lacked the
authority to rehire him, Briggs left no doubt in McCrack-
en's mind that if he were to write a letter to Respondent's
president, Wise, he would be reinstated. Sitting in Briggs'
office, McCracken then wrote a letter to Wise requesting
his job back and handed the letter to Briggs for delivery to
Wise. On the basis of Briggs' suggestion that he would
surely obtain permission to put McCracken back to work
after Wise received the letter, McCracken withdrew his
charge in Case 10-CA-11377 that same evening.
About 10 days later, McCracken returned to inquire
about the result of his letter to Wise. Briggs informed him
that Wise had received notice of a charge on the same day
that the letter had been received, and that Wise would
certainly not take any action on McCracken's request until
the charge was withdrawn and probably not until after the
outcome of an upcoming union election.' In this regard,
McCracken testified as follows:
I asked Mr. Briggs if he had heard anything from
Mr. Wise, and about me going back to work. And he
said, "Well -" he said, "The day that Mr. Wise
received your letter, he also received a complaint from
the National Labor Relations Board." And, I said,
"Well, this complaint has been withdrawn," he said,
"Well, I am sure he won't do nothing until he receives
I The findings of facts are based primarily on the testimony of William
McCracken who seemed to have a clear and accurate recollection of the
the withdrawal,," and he said, "Then, I don't think he
will do anything until after the election." And, I said,
"What election?" He said, "We have been petitioned to
hold an election for the local labor union." And, I
didn't know nothing about that, them being petitioned.
And, he said, "Well, we will just have to wait and see
what the outcome on this is, but I am sure he wvouldn't
put you back to work until after the election is over."
On December 29, 1975 McCracken filed an 8(a)(1) and (3)
charge alleging discrimination against him for his union
activity. On January 16, 1976, this charge was dismissed by
the Regional Director because of the complainant's status
as a supervisor. On January 22, 1976, he again filed the
charge upon which the present complaint was issued.
ANALYSIS AND CONCLUSIONS OF LAW
The issue presented is whether or not the refusal to
reinstate a discharged supervisor, McCracken, because he
filed charges with the National Labor Relations Board
regarding his discharge, violates Section 8(a)(4) and (1) of
the Act. The General Counsel maintains in substance that
Section 8(a)(1) and (4) are violated because the refusal to
rehire has an inherently chilling effect upon the exercise of
Section 7 rights by employees. He readily concedes that the
present case does not fall within prior Board precedent
where the discharge of a supervisor was protected because
it directly affected employees' rights. For example, in
Better Monkey Grip Company, 115 NLRB 1170 (1956), it
was held that a supervisor could not be discharged for
giving testimony favorable to employees at a Board
hearing. In the words of the Board:
In our opinion, the net effect of [the supervisor's]
discharge was to cause nonsupervisory employees
reasonably to fear that the Respondent would take the
same action against them if they testified against the
Respondent in a Board proceeding to enforce their
guaranteed rights under the Act. Clearly inherent in the
employees' statutory rights is the right to seek their
vindication in Board proceedings. Moreover, by the
same token, rank-and-file employees are entitled to
vindicate these rights through the testimony of supervi-
sors who have knowledge of the facts without the
supervisors risking discharge or other penalty for giving
testimony under the Act adverse to their employer.
Clearly the Board was not concerned solely with the
discharge of a supervisor. Rather it was the Board's
concern for the employees and their rights and the effect
which the discharge of a supervisor had upon the Section 7
rights of employees which prompted the Board's holding in
this case. The Fifth Circuit in affirming the Board, 243
F.2d 836 (1957), supported this principle, stating that the
"Board was warranted in concluding that the discharge of
a supervisor for testifying under the Act interfered with,
restrained and coerced nonsupervisory employees in
violation of Sec. 8(aXl)." See also N.LRB. v. Dal-Tex
Optical Co., 310 F.2d 58 (C.A. 5, 1962); N.L.RB. v.
Talladega Cotton Factory, Inc., 213 F.2d 208 (C.A. 5, 1954).
The Board reaffirmed its position in Oil City Brass Works,
events. Contradictory testimony by Paul Briggs was discredited because of
several inconsistencies in his statements.
946
GENERAL SERVICES, INC.
147 NLRB 627 (1964), and the Fifth Circuit in enforcing
the Board order, 357 F.2d 466 (C.A. 5, 1966), recognizing
some confusion on this issue, stated that while "Congress
had declined to protect supervisors," employers may not
interfere or coerce employees in the exercise of their rights
by pressuring supervisors into committing an unfair labor
practice or by restraining them from testifying in favor of
the employees; therefore, the Board has the power to
protect supervisors who have testified in an unfair labor
practice case. Indeed, in Eugen Pederson [Modern Linen &
Laundry Service, Inc.] v. N.LR.B., 234 F.2d 417 (C.A. 2,
1956), the court observed that the Board's protectiive
powers under Section 8(a)(1) and (4) are coextensive with
its subpena power, and that to this end a supervisory
employee must also be protected. Similarly in General
Nutrition Center, Inc., 221 NLRB 850 (1975), the Board
affirmed the Administrative Law Judge's decision which
afforded protection under Section 8(a)(1) and (4) of the Act
to a supervisor who with rank-and-file employees assisted
in the Board proceeding.
On balance, these and various other cases dealing with
the issue of a supervisor's protection under Section 8(a)(1)
or (4) have a similar theme, which is that supervisors are
not protected by Section 8(a)(1) or (4) unless their
protection has a direct relation to the rights of rank-and-
file employees. Dispositive of this conclusion is the recent
decision in Beasley v. Food Fair of North Carolina, Inc., 416
U.S. 653 (1974).
Turning now to the relevant facts in the case at hand, it is
my opinion that McCracken's protection under Section
8(a)(1) or (4) is unwarranted basically because not a
scintilla of record evidence shows that the rights of any
other employees were adversely affected by Respondent's
failure to reinstate McCracken.
The charges which McCracken had previously filed with
the Board are primarily concerned with his own union
activities and his own discharge. There is no record
evidence which shows that any rank-and-file employees
even knew why McCracken was fired, and whether he
engaged in any union activity, much less is there any
showing that employees knew whether Respondent failed
to reinstate him because he had filed charges with the
Labor Board. No attempt has been made by the General
Counsel to show that any adverse action against McCrack-
en had a "chilling effect" on the employees. In short,
Respondent's actions against McCracken did not interfere
with or coerce rank-and-file employees' rights under
Section 7, nor is a supervisor's testimony involved, the
coercion of which might frustrate the purpose of the Act.
The purpose of Section 8(a)(4) is the protection of
employees in giving testimony and the right to file charges
and not to protect supervisors in filing charges on their
own account.
General Counsel argues that, if the law were that
employers could discharge supervisors for filing charges
with the Board, individuals, unsure of their status as
supervisors or employees, would hesitate to file charges
fearing that they may be held supervisors and thus subject
to discharge for filing the charge. The consequence would
be that some statutory employees would refrain from
exercising their statutory rights. Although appealing at first
blush, this argument is not persuasive. Most employees
know whether they are supervisors or not. Those who do
not know the precise nature of their position may turn to
the Board for advice prior to filing a charge. In this case,
McCracken knew he was a supervisor; he had been found a
supervisor in an earlier representation case, and he gave
testimony in this case that he was hired as a supervisor.
The General Counsel next argues that the legislative
history of the 1947 Taft-Hartley amendments indicates that
supervisors are "employees" within the meaning of that
term as used in Section 8(a)(4). However, in 1947 Congress
amended Section 2(3) of the Act to exclude supervisors
from the definition of "employees" under the Act. The
congressional intent to exclude all supervisors from the
coverage of the Act is further emphasized by the broad
definition given to "supervisor" in Section 2(11). There is
no reason why Section 8(a)(4) should be treated differently
from other portions of Section 8(a). The inclusion of
supervisors under Section 8(a)(4) carries the same potential
for the divided loyalties situation which Congress was
attempting to avoid in the other portions of Section 8(a).
Further, it is irrelevant whether a divided loyalties situation
arises under Section 8(a)(4). In N. LR.B. v. Bell Aerospace
Company, Division of Textron, Inc. 416 U.S. 267, 274 (1974),
the question presented was "whether all 'managerial
employees,' rather than just those in positions susceptible
to conflicts of interest in labor relations, are excluded from
the protection of the Act." The Supreme Court answered in
the affirmative. The fact that "[n]o fears were expressed in
Congress that management's bargaining position would be
undermined if supervisors were allowed to file charges
. ." does not indicate that Congress affirmatively chose
to include supervisors under Section 8(aX4). If that had
been Congress' intention, Congress could have explicitly
placed supervisors under the umbrella of Section 8(a)(4). It
did not.
The weight of case authority supports the proposition
that the Act excludes supervisors. The Supreme Court
stated in Florida Power & Light Co. v. International
Brotherhood of Electrical Workers, Local 641, 417 U.S. 790,
807 (1974):
Specifically, Congress in 1947 amended the definition
of"employee" in § 2(3), 29 U.S.C. § 152(3), to exclude
those denominated supervisors under § 2(11), 29 U.S.C.
§ 152 (11), thereby excluding them from the coverage of
the Act. [Emphasis supplied.]
Again, in Beasley v. Food Fair of North Carolina, 416 U.S.
653, 654 (1974), the Court said "Taft-Hartley amendments
of the National Labor Relations Act excluded supervisors
from the protections of the Act ... ."
The General Counsel cites Nash v. Florida Industrial
Commission, 389 U.S. 235, 238 (1967), where the Court
states "Congress had made it clear that it wishes all persons
with information about such practices to be completely
free from coercion against reporting them to the Board."
The General Counsel emphasizes the reference to "all
persons." However, the Court concluded "it is unlawful for
an employer to seek to restrain an employee in the exercise
of his right to file charges." While the Court in its choice of
words does not specifically exclude supervisors, the mere
947
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reference to "persons" as opposed to "employees" is a thin
straw indeed upon which to base an argument.
Finally, the General Counsel maintains the approach to
Section 8(a)(4) has been liberally construed to effectuate
the section's remedial purpose. N.LR.B. v. Robert Scriven-
er, d/b/a AA Electric Company, 405 U.S. 117, 124 (1972).
But the Court simply indicated a liberal approach in terms
of the degree of contact an employee should have with the
Board rather than who the beneficiaries were who need the
protection. Again McCracken was not seeking the Board's
help to protect employees' rights generally but only his
own.
A supervisor is concededly not protected by any other
provision of Section 8(a). Thus there is no congressionally
intended reason for a supervisor to file a charge with the
Board, and hence no need for the supervisor to be
protected by Section 8(a)(4). In the case where a supervisor
reports to the Board unfair labor practices against rank-
and-file employees, he may be protected from discharge
under Section 8(aX)(), since employee rights are directly
affected.
The purpose of Section 8(a)(4) is to protect employees as
defined in Section 2(3). Thus the failure to reinstate
McCracken, a supervisor, for filing charges with the Board,
is not a violation of Section 8(a)(4) of the National Labor
Relations Act.
[Recommended Order for dismissal omitted from publi-
cation.]
948