N.L.R.B. v. Q-1 Motor Exp., Inc.

• Decision Date: 29 July 1994
• Docket Number: No. 93-1746,Q-1,93-1746
• Citation: 25 F.3d 473
• Parties: 146 L.R.R.M. (BNA) 2459, 128 Lab.Cas. P 11,108 NATIONAL LABOR RELATIONS BOARD, Petitioner, v.MOTOR EXPRESS, INCORPORATED, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 473

25 F.3d 473

146 L.R.R.M. (BNA) 2459, 128 Lab.Cas. P 11,108

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. Q-1 MOTOR EXPRESS, INCORPORATED, Respondent.

No. 93-1746.

United States Court of Appeals,

Seventh Circuit.

Argued Nov. 30, 1993.

Decided May 25, 1994.

Rehearing and Suggestion for Rehearing En Banc Denied July 29, 1994.

Elizabeth Kinney, N.L.R.B., Region 13, Chicago, IL, Aileen A. Armstrong, William A. Baudler (argued), N.L.R.B. Appellate Court, Enforcement Litigation, Washington, DC, Paul J. Spielberg, N.L.R.B., Litigation Branch, Washington, DC, D. Randall Frye, N.L.R.B., Region 9, Cincinnati, OH, for petitioner.

Douglas C. Haney (argued), James H. Hanson, Scopelitis, Garvin, Light & Hanson, Indianapolis, IN, for respondent.

Before LAY, ^* COFFEY and ROVNER, Circuit Judges.

LAY, Circuit Judge.

The National Labor Relations Board (the "Board") seeks enforcement of its order finding Q-1 Motor Express, Inc. ("Q-1" or the "Company"), guilty of unfair labor practices. ¹ The Board held, in accordance with the findings of an Administrative Law Judge ("ALJ"), that the Company had violated section 8(a)(1) of the National Labor Relations Act, 29 U.S.C. Sec. 158(a)(1) (1988) ("the Act"), by threatening employees with closure of its terminal, job losses, and other reprisals if they became unionized; by creating the impression of surveillance of union activities; and by granting the employees pay increases and promising to address their grievances in order to discourage union activities. The Board also affirmed the ALJ's findings that Q-1 had violated sections 8(a)(1) and 8(a)(3) of the Act, 29 U.S.C. Secs. 158(a)(1), (3) (1988), by discharging three pro-union employees, drivers Donald Denham, Dan Stevens, and Anthony Lupo, because of their union activities. The Board found that the General Drivers, Warehousemen & Helpers Local Union No. 89, affiliated with the International Brotherhood of Teamsters, AFL-CIO ("the Union"), represented a majority of the Company's employees in an appropriate bargaining unit as of May 19, 1991, an appropriate date for examining section 8(a)(1) and 8(a)(3) violations, and determined that the Company's violations were so pervasive as to make a fair election unlikely. The Board held that a bargaining order was therefore appropriate. It ordered the Company to reinstate Denham, Stevens, and Lupo and to bargain in good faith with the Union upon request. This enforcement action, and the Company's cross-petition for review, followed.

Upon careful review of the record, we find substantial evidence supporting the Board's section 8(a)(1) and 8(a)(3) determinations. ² We further find no abuse of discretion in the Board's determination that a bargaining order is appropriate to remedy the violations at Q-1. We therefore enforce the Board's order.

I. BACKGROUND

In early May, 1991, Q-1 driver Donald Denham contacted the Union about organizing the Company's employees. Denham obtained union authorization cards and with the help of other employees began soliciting card signatures.

The Company became aware of the organizing campaign shortly after it began, and it responded with hostility. As found by the ALJ, about a week after part-time driver Anthony Lupo signed an authorization card a Q-1 supervisor told him that Company management knew that union cards were being distributed and that if he knew what was good for him, he would stay away from those involved in the effort. Another driver who had signed an authorization card was told by this same supervisor, whose husband was a Q-1 driver, that she hoped her own husband would not join the Union. If he did, the supervisor explained, he would have to find another job, because "Q-1 could not stand union pressure."

A short time later, on May 17, Q-1 President James E. Schroering confronted organizer Denham at a truck stop, telling him, in a conversation that was overheard in part by driver Lupo, that he knew that Denham was the one passing out the union cards. Schroering told Denham that he had spoken with his attorney and had been advised that to thwart the Union, he could fire all the drivers, close the Company down, and then reopen with new drivers 72 hours later. Denham testified that Schroering said he would not permit "no half-ass Union [to] come in and try to tell him how to run his business." Schroering also informed Denham that he had called Denham's previous employer and learned that Denham had been a member of the Teamsters Union for ten years. Finally, Schroering told Denham that he knew that the drivers were planning a meeting for May 19, and that he was going to hold a meeting with the drivers that same day.

On May 19, the day of the employees' organizational meeting, Q-1 ran, for the first time, a newspaper advertisement for new drivers. At the meeting, the employees discussed the advertisement and wondered why the Company was seeking more drivers when it had for months refused to put part-time driver Lupo on full-time status. The drivers also discussed the Company's failure to raise their compensation rates, a major impetus for the organizing campaign. Denham informed the employees who had gathered that he had received authorization cards from a majority of the drivers and that he had told the Union that they had elected it as their bargaining representative.

Later that afternoon, the Company began its own meeting with the employees. Q-1 Vice President James J. Schroering began the meeting by complaining about unions and stating that he knew that "little green [union] cards" were being circulated among the employees. President James E. Schroering then announced that the Company was increasing the compensation rates for the drivers, purportedly because of the improved gas mileage the drivers had been able to attain. He also invited the employees to express their job concerns and agreed to give Lupo more hours in exchange for a reduction in the hours driven by the other drivers.

After the Company meeting, Denham and some of the other Union supporters met to discuss the status of the organizing campaign. Driver Dan Stevens, who had filled out his union card at the earlier meeting but forgotten to sign it, asked Denham to turn his card in along with the others. Denham and Lupo then arranged for Lupo to deliver the cards to the Union. The ALJ determined that as of May 19, 1991, eight authorization cards had been executed, enough to constitute a majority of the bargaining unit's eleven employees.

On Friday, May 24, President James E. Schroering complained to Stevens that he thought he "had better friends in this Company amongst the drivers than what's turned out to be." He told Stevens, "I know everybody that signed a Union card. [I]f it takes firing everybody to keep the Union out of here, then that's what I will do." Shortly thereafter, three union supporters, including Denham, Stevens, and Lupo, were fired.

Q-1 asserts that each of the employees was fired in accordance with Q-1's disciplinary procedures, for work-related transgressions. The ALJ thoroughly examined and rejected each of the Company's proffered explanations and concluded that the three drivers had been discharged because of their union membership and activities.

On July 18, 1991, the Union wrote to the Company to demand recognition. The Company failed to reply. The Union also filed a charge with the Board accusing Q-1 of unlawfully attempting to discourage employee support for the Union and requesting that, in view of Q-1's unlawful conduct, the Board issue a bargaining order. ³

II. DISCUSSION

A. Unfair Labor Practices

1. Section 8(a)(1) Violations

On the basis of the testimony credited by the ALJ, the record fully supports the Board's findings of unfair labor practices. Section 8(a)(1) of the NLRA makes it an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights" to "self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." 29 U.S.C. Secs. 157, 158(a)(1) (1988); see NLRB v. Overnite Transp. Co., 938 F.2d 815, 819 (7th Cir.1991). The test for what constitutes "interference" with these rights is not whether an attempt at coercion succeeded or failed, but whether the employer engaged in conduct that " 'reasonably tends to interfere with, restrain, or coerce employees in the free exercise' " of their protected rights. Id. at 819 n. 5 (citation omitted); NLRB v. Berger Transfer & Storage Co., 678 F.2d 679, 689 (7th Cir.1982).

The record before us is replete with instances of comments and conduct that would reasonably tend to interfere with the employees' right to self-organization. As we noted in Central Transport v. NLRB, 997 F.2d 1180 (7th Cir.1993), "Threatening employees with shop closure or discharge, or coercively interrogating them to discourage union activities violates Section 8(a)(1) of the Act," id. at 1189. Here, Q-1 management personnel repeatedly threatened drivers that Q-1 would shut down and reopen with new employees rather than allow the drivers to unionize. Moreover, Q-1 President James E. Schroering interrogated drivers (and in one case, a driver's spouse) about the union organization efforts and made explicit and implicit threats of retaliation. See Berger, 678 F.2d at 689 (observing that "when the questions asked 'viewed and interpreted as the employee must have understood the questioning and its ramifications, could reasonably coerce or intimidate the employee with regard to union activities,' a violation has been established" (citation omitted)). Through such coercive interrogations and numerous other statements, Q-1 created an impression that it was engaging in surveillance of the union activities, another impermissible labor practice under section 8(a)(1). See id. at...