On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.
Cudahy, Circuit Judge, Fairchild, Senior Circuit Judge, and Templar, Senior District Judge.*fn*
FAIRCHILD, Senior Circuit Judge.
Graves Trucking, Inc., the employer, petitioned for review, to have us set aside or modify an order of the NLRB.*fn1 The Board seeks enforcement.
In general outline, Graves Trucking's employee Hanes (found by the Board to be a supervisor) assaulted Graves Trucking's employee and union steward Nash. Nash had led other employees in concerted action to protest a change in conditions of employment. The Board found a § 8(a) (1) unfair labor practice. The ALJ found that Nash has "been under a doctor's care for injuries stemming from the choking incident, and has remained under medical orders not to return to work." As part of the remedy, the Board ordered Graves Trucking to make Nash whole for loss of earnings suffered as a result of the unlawful conduct until his injury no longer precludes him from performing his former or a substantially equivalent job, plus interest.
The details are set forth in the decision of the ALJ, 246 N.L.R.B. at 346-348. Graves Trucking challenges the finding that Hanes was a supervisor, the finding that Graves Trucking was responsible for physical injury to Nash, and the propriety of the Board's lost earnings (backpay) remedy.
I. The Finding that Hanes Was a Supervisor
Graves Trucking is engaged in the business of transporting construction materials. Its home office is at Fort Wayne, Indiana. In the summer of 1978 Graves Trucking contracted to haul asphalt from a plant about 60 miles from Fort Wayne to highway construction sites on Interstate Highway 69.
Nash and one other driver began working on the project May 31. Hanes and four other drivers arrived June 6. All, including Hanes, performed similar driving duties at the same rate of pay. All were union members, although not of the same local.
Hanes, however, clearly had been given additional responsibilities and some degree of authority over the other drivers. There was testimony that on June 6, when Hanes first came on the job, he introduced himself as "the boss of the job." Schuhler, a co-owner of Graves Trucking, told one of the drivers that day that Hanes was the man who would run the job. Hanes arrived in a Company truck, and was the only driver who drove a Company truck to the job site. The drivers turned in their time and weight tickets to him. If incomplete, he would give them back for completion, although his only further responsibility was to convey them to the home office. He handed out the paychecks, and accepted grievances, although he simply transmitted them to the home office. He delivered warning letters when issued by the home office. He assigned particular hauling jobs, specified the drivers' starting schedule, and assigned overtime work. There was testimony that on one occasion Hanes gave permission to a driver to take an afternoon off, provided he got a driver to work in his place, and that in another conversation, he said that a driver who ran light loads "would have to be wrote up if it didn't straighten out."
Hanes testified it was part of his responsibility to see that the employees started on time. The normal paid workday started at 5:45 AM, the first fifteen minutes being devoted to safety inspection of the trucks. On June 20, Hanes told drivers Moore and Kissell that they were to have their trucks ready at 6:00, but would no longer be paid for the inspection period. The drivers informed Nash, the union steward, and on June 21, they all arrived at 6:00 rather than 5:45. Hanes said he wanted them there at 5:45, but they wouldn't be getting paid for the fifteen minutes. Hanes told Nash, "I'm telling you right now if you guys ain't going to do your job you are going to get fired."
The incident in which Hanes choked Nash occurred soon thereafter, as described in the ALJ's findings. When Hanes discussed the assault with the union business agent, Hicks, Hanes "said he wanted the people on the scales at 6:00 o'clock." After admitting the assault, he said, "I flew off the handle." When Hicks called Mr. Graves to remonstrate about the "supervisor" choking the union steward, Graves "said Dick Hanes was going to run that god damned job down there, that Bill Nash was not going to run it." Later Hicks talked with Schuhler at the job site and objected to having the men work under Hanes' jurisdiction. Hicks testified: "He said we would work under them. If we didn't work under them Hanes had the authority to fire whoever refused to work for him." Earlier, before the job started, Mr. Graves had told Hicks "Dick Hanes would be the man running the job and he was the man we would be getting hold of on the job site." Section 2(11) of the National Labor Relations Act defines the term "supervisor":
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 responsibility 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). It is well settled that possession of any of the above indicia is sufficient to support a finding that an employee is a "supervisor" within the meaning of the act. N.L.R.B. v. Adam & Eve Cosmetics, Inc., 567 F.2d 723, 727 (7th Cir. 1977); see also N.L.R.B. v. Brown Specialty Co., 436 F.2d 372, 375 (7th Cir. 1971).
The Board is entitled to a "large measure of informed discretion" in determining whether an individual is a "supervisor" within the meaning of the Act. N.L.R.B. v. Adam & Eve Cosmetics, Inc., 567 F.2d 723, 726 (7th Cir. 1977); Dynamic Machine Co. v. N.L.R.B., 552 F.2d 1195, 1201 (7th Cir. 1977), cert. denied, 434 U.S. 827, 98 S. Ct. 103, 54 L. Ed. 2d 85 (1977). We have no difficulty determining that there is adequate support for the finding in this case.
II. The Employer's Responsibility for Hanes' Conduct
Graves Trucking contends that even if Hanes was a supervisor, the Board could not properly hold it responsible for his conduct, including any personal injury the conduct may have caused.
Leaving aside the violent aspect of his conduct, it seems quite clear that the Board could find, by reason of Hanes' conduct, that Graves Trucking had engaged in a § 8(a) (1) unfair labor practice. Hanes was properly found to be authorized to direct the drivers concerning their prompt reporting for work. A dispute developed over his telling them they would cease to be paid for the time spent in truck inspection. Their arrival at 6:00 after consultation with the union steward was, under the circumstances, concerted action concerning the change in pay and schedule. Hanes' resulting threats and verbal abuse, if there had been nothing more, could properly have been deemed coercion, restraint, and interference in the exercise of protected rights. As it actually happened, the threats and verbal abuse culminated in a violent assault on employee and union steward Nash, even more coercive conduct.
Graves correctly points out that, aside from the Hanes-Nash June 21 incident, there is no evidence of anti-union animus on the part of Graves Trucking, and that the violence of Hanes' conduct may have been sparked by his own anger over an otherwise unrelated misfortune of his own, an accident he had just had in maneuvering his truck.
Graves Trucking relies principally on National Labor Rel. Bd. v. Miami Coca-Cola Bottling Co., 222 F.2d 341 (5th Cir. 1955). There the court set aside a Board finding of a § 8(a) (1) unfair labor practice based on a supervisor's assault on two union officials who were distributing literature outside the plant. In terms of agency doctrine, one might argue that going outside the plant to accost union officials was beyond the scope of the Miami supervisor's employment. In contrast, an altercation with several employees at ...