Connecticut Distributors, Inc. v. National Labor Relations Board

Citations: 681 F.2d 127; 110 L.R.R.M. (BNA) 2788; 1982 U.S. App. LEXIS 18663Docket: 970

Court: Court of Appeals for the Second Circuit; June 4, 1982; Federal Appellate Court

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Connecticut Distributors, Inc. is appealing a National Labor Relations Board (NLRB) order related to violations of the National Labor Relations Act, specifically sections 8(a)(5) and (1), due to the company's actions during an economic strike. The NLRB found that the company improperly promised benefits to employees, circulated disaffection petitions, and withdrew recognition of the union, thus converting the economic strike into an unfair labor practice strike under sections 8(a)(3) and (1). The Board's order, issued on May 1, 1981, is documented as 255 N.L.R.B. No. 170.

A key issue in the case is whether Anthony Capasso, the company dispatcher who engaged in these activities, was a supervisor for whom the company would be liable. The court questioned the Board's designation of Capasso as a supervisor but ultimately ruled that even if he was, the company was not responsible for his actions since it did not participate in them.

Capasso, a long-time employee and union member, sought legal advice on decertification during the strike and circulated anti-union petitions among employees, claiming the company's president would not negotiate further with the union. He indicated that if employees left the union, they would receive previously offered wages and benefits. Despite a majority signing the petitions, there was no evidence that the company knew of these actions beforehand. 

Using one of the petitions as justification, the company filed a decertification petition with the NLRB, but the union responded with an unfair labor practice charge. After being advised that Capasso was a supervisor, the company withdrew its decertification petition and resumed negotiations. Subsequently, another employee circulated an anti-union petition, leading the company to file yet another decertification petition and refuse to bargain or reinstate striking employees. The court denied enforcement of the NLRB's order based on its findings.

The Board upheld the administrative law judge's findings that Capasso was a supervisor and that the company was liable for his distribution of anti-union petitions, which constituted violations of sections 8(a)(5) and (1). The reliance on a second petition to doubt the union's majority was also deemed a violation, transforming the economic strike into an unfair labor practice strike, thereby making the company's refusal to reinstate employees a violation of sections 8(a)(3) and (1). The Board ruled that the employees' third petition did not establish good-faith doubt due to Capasso’s involvement in the first two petitions. 

Capasso was classified as a supervisor based on his authority to hire temporary employees, manage work schedules, and grant time off. The Board asserted that his role involved the exercise of independent judgment, as defined under 29 U.S.C. 152(11), and that such determinations by the Board carry special deference. However, the document argues that Capasso's duties were routine, lacking significant independent judgment, and similar to those in Spector Freight System, Inc., where decisions were largely dictated by established protocols, requiring only minor deviations. 

Furthermore, even if Capasso’s duties were deemed supervisory, the Board incorrectly held the company accountable for his anti-union actions. Precedents indicate that a company is only responsible for a supervisor's anti-union activities if it can be shown that the company encouraged or ratified those actions. Applying this standard, the Board's decision lacks support.

The Board identified two facts to suggest company participation in an anti-union petition: the company provided Capasso with four lawyers' names and filed a decertification petition the same day it received an employee petition. However, these facts are deemed insufficient to establish the company's complicity in Capasso's actions. The four lawyers were independent, and there is no indication that the company's referral was improper. Additionally, the company's prompt filing of the decertification petition does not imply participation in the petition's circulation, which had already occurred without the company's knowledge. While the Board's claim that the immediate filing condoned Capasso's actions may hold some truth, it does not demonstrate that the employer influenced the gathering of signatures. Furthermore, the Board's criticism of the company for failing to investigate the petition's circumstances is counterproductive, as such an investigation could itself lead to an unfair labor practice charge. Therefore, even if Capasso is considered a supervisor, his actions cannot be attributed to the company, allowing the company to question the union's majority status based on the petition. The Board's alternative standard for determining company involvement, based on employees' perceptions of management's approval, is rejected in favor of an objective test of affirmative participation, as established by precedent cases. Review granted; enforcement denied.