National Labor Relations Board v. Ely's Foods Inc., D/B/A Scotto's I. G. A., 656 F.2d 290

National Labor Relations Board v. Ely's Foods Inc., D/B/A Scotto's I. G. A.

656 F.2d 290

8th Cir.

1981

Check Treatment

*1 17, July 1969, that on contends State give effect to the consecutive in order to NATIONAL LABOR RELATIONS sentences, running ten-year sen- Petitioner, BOARD, running suspended, and the tence was v. eight-year Ap- commenced. sentence INC., stating prison pellant disagrees, ELY’S FOODS d/b/a Scotto’s I. A., though Respondent. officials treаted him as he were G. continuing ten-year sentence to serve No. 80-1779. shortly mandatory before his release until time, contends, time. At that he he was Appeals, United Court of States serving informed that he was in fact Eighth Circuit. eight-year expi- sentence and that begin ration of that sentencе he would serv- May Submitted 1981. ing ten-year sentence. July Decided 1981. Appellant paroled September was pa- December while on On role, again burglary. he was convicted of appellant’s parole revoked,

As a result serving

and he is now the remainder of the

ten-year sentence. appellant not

It does matter when sentence,

began serving eight-year his appellant

under either version of the facts being deprived

fails to show that he is of his

liberty process Appel without due of law.

lant was sentenced to two consecutive eight years.

terms of and ten No matter in served,

what order these two were terms

appellant subject would still have been

one of them at his the time of December subsequent cоnviction and revocation McManus, Judge, sitting by Chief des- parole. case, appellant In either is not ignation, specially opinion. concurred serving expired argued sentence. It is prohibits

that Missouri law the service of a

sentence in “installments.” Even if this is

true, Schleicher is not entitled to federal corpus

habeas relief. In the circumstances case,

of this the Due Process Clause of the imposes Fourteenth Amendment no such states,

rule on the has been Schleicher

continuously custody, in obedience to the

state courts’ him of consecu

tive sentences. This is not a there

fore, premature where there has been a custody, delay

release from or a in the defendant,

incarceration caused af

firmatively wrong grossly negligent gov or Ciccone,

еrnmental action. See Shelton ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍judgment dismissing petition

affirmed.

findings and conclusions of the administra- judge (ALJ). tive law The Board’s decision and order fully and the ALJ’s decision are reported Ely’s Foods 249 N.L.R.B. (1980). Briefly, the factual sur- circumstances rounding (8)(a)(l) the section violations are following. the January the unions bеgan joint organizing among effort the grocery clerks and meatcutters at Scotto’s Brookfield, I.G.A. in Missouri. Scotto’s is a sized, moderately family-run supermarket Ely only owned Otto and the store Ely. operated February On 2 and employee an the supermarket presented Ely twenty-one to the names of (argued), Sally J. E. grocery Michael Bobroff employees, twenty- out aof total of Barker, Donohue, Husch, Eppenberger, eight, signed authorizing had who the Cornfeld, Louis, Mo., for Elson & St. Retail Employees Store Union to be their agent. I. A. Foods d/b/a Scotto’s G. February On employee Ely same advised the three Sewell, (ar- G. Judith A. Dowd Robert agreed had to meatcutters authorize the B., gued), Attys., Washington, N. L. R. D. United Food Commercial Workers Un- Lubbers, C., Counsel, William A. Gen. John bargaining agent. ion to be their Jr., Counsel, Higgins, Deputy E. Gen. Rob- Allen, Counsel, Ely, being found Acting ALJ that Otto ert E. Associate Gen. organizational Moore, campaign advised of on Deputy Associate Coun- Elliott Gen. February sel, B., summoned an petitioner. R. N. L. for interrogated into regard- his office and her GIBSON, Judge, Circuit Before Senior ing participation her union and the union ARNOLD, Judge, MeMANUS,* Circuit following day Ely activities of others. The Judge. District advised a number of that a un- ionized store would result in more restric- GIBSON, R. FLOYD Senior Circuit employment tive terms and conditions of Judge. layoffs possible were if he was The National Labor Relations Board going pay wages. to to union On that have (Board) petitions this court for enfоrcement Ely day promised same also two directing Ely’s bargain of its order find he would additional hours work Employees with the Retail Store Union and for them. United In- Food Commercial Workers 6, 1979, February On the Retail Store ternational Union. Foods contests the petition Employees Union for an filed grounds order grocery election in the clerk unit. The elec- sup- Board’s decision and the record fail to February tion was for 28. On scheduled port order. We election, day Ely promised before enforce the Board’s order. employee wage increase “whеn the mess 29, 1980, issued May

On Board Finally, with.” over [union election] declaring election, morning decision and of the Ely threatened 8(a)(1) violated tardy employee had section with more work- arduous Act, ing reprimanding National Labor Relations U.S.C. conditions while him for adopted being 158(a)(1) The Board one hour late. § * Iowa, McManus, sitting by designa- Northern District of Honorable Edward J. Chief Judge, District Court for the tion. United States Court, company Supreme was held and the in NLRB v. Gissel

The election Co., Packing 575, 612, 89 S.Ct. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍for the union and won. The vote was ten (1969), 23 L.Ed.2d 547 reviewed challenged. against, sixteen with two votеs policy reasons behind issuance of a bar- objections to the election The union filed gaining order: among the with the Board. The election *3 bargaining designed order is as much [A] The United was never held. meatcutters remedy past to damage election as it is to Union, how- Food and Commercial Workers employer deter future misconduct. If an concerning ever, objections also filed has succeeded in undermining a union’s regard company with to the conduct of the strength destroying and laboratory meatcutters. election, necessary conditiоns for a fair he may see no need to violate a cease-and- In the matter of the meatcutters’ desist activity. order further unlawful representation, union the AU found damage done, The will have been and Burstert, charge depart of the meat Pat in perhaps only way fair tо effectuate ment, supervisor was a who committed sec employee rights is to re-establish the con- 8(a)(1) violations. Burstert stated at tion they as existed before employ- ditions Ely various times to the meatcutters campaign. er’s unlawful [Footnotes agreement would like to еnter into a direct omitted.] they pursue with them and that should such Foods, however, argues that a bar- individually negotiations, either or collec gaining appropriate order is not because the tively, regard without to a union. Burstert engage Board failed to in a expect indicаted that the meatcutters could why bargaining of the reasons substantially to receive increased benefits if remedy necessary, and there was they Finally, did so. on March showing why no a traditional “cease and election, grocery clerk Burs after union See, e.g., desist” order would not suffice. replace tert told a meatcutter three Home, Inc., Nursing Red Oaks positions. ments had been hired for their 1980); 633 F.2d 508-09 NLRB The AU construed this to be a direct threat Inc., Towing, v. Jamaica 632 F.2d 215 they to the meatcutters “that were to be 1980); Foods, Pilgrim discharged as a result of their continued (1st 1978). 591 F.2d 119 activity.” Ely’s union 249 N.L. recommending AU in this in issuance R.B. at 914. order, of a following made the The AU and the Board found the above findings: 8(a)(1). activities to be violations of section I am applicable convinced under findings.1 not does contest precedent Board in the election the Retail It contеnds instead that the or- aside, Clerks unit be set and I should der should not be enforced because neither proper further find that a full and reme- the Board’s decision nor the record contain dy requires the issuance of support remedy facts sufficient to orders in both units as contended bargaining order. General Counsel. numerous unfair suggests Foods’ brief that Burstert was 1051 We con- only “marginal supervisor.” Respondent’s clude that Burstert exercised sufficient “inde- pendent judgment” agree regard supervisor brief at 22. We with the Board and the with to these work supervisor qualify ALJ that Burstert was a within the functions to as a within the NLRA, 1049; meaning 2(11) 2(11). meaning of section of section See id. at cf. University, 152(11) (1976). charge U.S.C. of the Burstert is in NLRB v. Yeshiva n.13, § n.13, department. ALJ found that meat 63 L.Ed.2d (1980) (an may Burstert sets hours for the meatcutters and exercises be excluded if he has authority working authority personnel any in the area of con over one of twelve enumerated successfully 2(11)). gener- He ditions. mended give has also recom actions in section See Note, pay reprimands. ally Supervisory raises and We must The NLRB and Status: Results, Explanation of deference to the Board’s determination on An Inconsistent this issue. See NLRB v. Harmon Harv.L.Rev. 1713 above, practices, particularly fashioning misbehavior.

labor found discretion, wherein Re- of its practices those unfair labor in the exercise then, through Ely spondent, properly Otto take both Board can into Burstert, promised benefits cоnsideration the extensiveness of an em- layoff ployer’s practices threatened unfair terms of their consequence discharge past of their effect on conditions election selecting as their collective- either Union likelihood of in the fu- their recurrence mandate representative, ture. If possibil- finds that the Board possibility erasing conclusion that the ity past the effects of unfair the effects of the aforementioned ensuring (or election fair a fair traditional reme- practices by other rerun) by remedies, the use of traditional elections, dies, insuring fair is slight though present, employ- is slight. circumstances it Under expressed ee sentiment through once *4 employees, of the clear that the desire would, balance, be pro- better by expressed signa- their overwhelmingly order, by bargaining a tected then such cards, tures on warrants authorization (see n.32, supra). an order should issue bargaining orders in the of Co., Packing NLRB v. Gissel 395 U.S. at respective each unit. 614-15, 89 at 1940. S.Ct. Ely’s Inc., at Foods 249 N.L.R.B. 914. examining In order in the this para that this Foods contends case, clearly we find that the unions had a graph nothing per morе a constitutes than large majority at the time authorization agree functory While we conclusion. signed early February cards were in 1979. specific findings of the Board equal importance the fact ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Of is regard necessity and the ALJ to the of with family-run, store in issue here was located рerhaps a order were less than in a small town. Otto actions can appellate present desirable for review and expected pervasive therefore to have a be only marginal bypassing pre case for effect in a his limited local we procedure, ferred election find that the support labor market. considerations These Board, complete findings see of the Board’s and the ALJ’s conclusions that Inc., 913-14, at 249 N.L.R.B. possibility “the the effects of of the support record issuance as a whole aforementioned unfаir bargaining order in case. this remedies, insuring other traditional elections, Inc., slight.” Ely’s fair reviewing

In whether a 249 N.L.R.B. at 914. issue, give order should this court must “special respect” to the Board’s determina order, however, In enforcing the Board’s tion. Board draws on a fund of “[T]he we Court’s Supreme reiterаte the admoni- * * own, knowledge all expertise its Co., Packing 395 tion in Gissel U.S. at Co., Packing NLRB v. Gissel 395 at 612 U.S. is, all, 89 after S.Ct. at 1939: “There noth- n.32, Supreme 89 at 1939 n.32. The S.Ct. bargaining order, if, ing permanent in Court, Co., Packing in Gissel outlined the employer’s after the effects acts have of the factors the Board should сonsider in the off, clearly worn desire to type case of election violations in union, they filing disavow the can do so volved in this case: representation petition.” authority Board’s issue such an Enforced. showing of on a lesser appropriate, misconduct is we should re- McMANUS, Judge, Chief District concur-

emphasize, showing where there is also a ring specially. point majori- that at one union had a course, ty; effectuating panel to enforce the such a determines order, having free choice Board’s elected ascertainable be- view of important goal deterring adopt majority comes as not to the courts as 294 Requiring the appeal respect to the factu to state its rea- [Board] analysis required reviewing ‘guar-

al of the Board in cases sons enables the court to Towing, v. Jamaica intеgrity such as this. NLRB antee the of the administrative ’ Inc., (2d 1980); process. 602 F.2d 1100 Cir. NLRB v. . . . It also contributes to the Chevrolet, Appletree (4th growth predictability 608 F.2d impor- 988 of ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍this Pilgrim Foods, Inc., 1979); addition, Cir. NLRB tant area of labor law. n 1978); (1st NLRB ‘requirement provide 591 F.2d 110 Cir. v. Pa the [Board] Airlines, (9th findings prophy- cific F.2d 1148 serves as a Southwest Industries, 1977); аgainst arbitrary NLRB v. Armcor laxsis exercise of the 1976); (3d Peerless of power.’ F.2d 239 Ameri [Board’s] ca, 484 F.2d 1108 Inc. v. Cir. Lastly, circuits have indicated that 1973); Systems, NLRB v. American Cable requirements such are consistent with the agree I 427 F.2d general principle open, that an free election bar, although the сase with the result in at preferred is the establishing method of approach I feel the better to these status, representative e.g., union’s cases is that of the above circuits. Armcor 1976), leading Supreme case in Court this has this circuit. Ante at is, course, Packing area NLRB v. Gissel Co., 23 L.Ed.2d U.S. аpprove I am aware legal of and There court sanctioned the requires give standard of review that us to *5 deference to the Board on these matters. present under circumstances as were here suggest But I that such deference is not upon findings by possi- the Board that “the warranted where merely the Board has set bility past practices of the effects of litany, reciting by forth a conclusions rote ensuring a fair election ... any explication. without factual remedies, though use of traditional present, University, Yeshiva 100 S.Ct. slight sentiment once (1980) (reliance unsup- on conclusions would, expressed through balance, ported by analysis precludes grant protected be better order.” expertise); of deference to Board’s see 614-615, 395 U.S. at at 1940. In Airlines, NLRB v. Pacific Southwest applying language this to the cases before (9th 1977) (Bоard F.2d 1151-52 Cir. them, majority requires of the circuits findings orders on should not be boiler- (1) findings Board to make as to plate); Agr. Chem., NLRB v. Kaiser Div. of impact the immediate and residual of unfair Corp., (5th Kaiser A&C F.2d 374 process; (2) on the election 1973) However, (same). thorough, inde- undertake a assessing detailed рendent review of this record indicates that possibilities holding a fair election in order should be enforced. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍any continuing terms effect of back, therefore, To send this case would be misconduct, recurring the likelihood of mis- delay. a wasted effort and See Peerless of conduct, potential effectiveness America, NLRB, Inc. v. 484 F.2d 1108 remedies; (3) traditional reconcile the 1973). However, again emphasize I issuance of the prior order with procedure, my view, that the better is the decisions in which no such order was issued. majority approach outlined above. America, g.

E. Peerless of Inc. v.

F.2d language, addition to the Gissel justified approach

circuits have their based appellate responsibility their review process.

the administrative As stated in

NLRB v. Armcor 1976) (citations omitted):