Fleming Companies, Inc. v. N.L.R.B.

• Decision Date: 18 November 2003
• Docket Number: No. 01-3765.,No. 02-1226.,01-3765.,02-1226.
• Citation: 349 F.3d 968
• Parties: FLEMING COMPANIES, INC., Memphis General Merchandise Division, Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner.
• Court: U.S. Court of Appeals — Seventh Circuit

349 F.3d 968

FLEMING COMPANIES, INC., Memphis General Merchandise Division, Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner.

No. 01-3765.

No. 02-1226.

United States Court of Appeals, Seventh Circuit.

Argued September 26, 2002.

Decided November 18, 2003.

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Howard S. Linzy, The Kullman Firm, New Orleans, LA, Charles M. Elmer, The Kullman Firm, Birmingham, AL, for Petitioner.

Julie B. Broido, Washington, DC, Elizabeth Kinney, Chicago, IL, Aileen Armstrong, Office of the General Counsel, Washington, DC, for Respondent.

Before COFFEY, ROVNER, and DIANE P. WOOD, Circuit Judges.

ILANA DIAMOND ROVNER, Circuit Judge.

In 1997, employees of a warehouse in Memphis, Tennessee, began a union organizing drive in preparation for an election to determine if there was sufficient support for a union at the warehouse. The union filed a complaint with the National Labor Relations Board ("Board") against the owner of the warehouse, Fleming Companies, Inc., Memphis General Merchandise Division ("Fleming"), alleging that Fleming committed several unfair labor practices that resulted in the union losing the election. The Board then brought a complaint against Fleming. An administrative law judge ("ALJ") conducted a hearing and found that Fleming had violated several provisions of the National Labor Relations Act and issued a cease and desist order. Fleming appealed the ALJ's decision, but the Board affirmed the ALJ's rulings, findings of fact, and conclusions, and adopted his recommended order.

Fleming has now appealed three of the ALJ's findings to this court: (1) that Fleming violated 29 U.S.C. § 158(a)(1) by threatening employees that it would impose more stringent working conditions and would start enforcing company rules because of union organizing activity; (2) that Fleming violated § 8(a)(1) by unlawfully threatening employees with plant closure if the employees selected the union to represent them; and (3) that Fleming violated § 8(a)(1) by removing union literature from an employee bulletin board and by threatening an employee with discipline for posting union literature on it. The Board cross-applied for enforcement of the NLRB's order. We affirm in part, and reverse in part.

Fleming is a wholesale grocery distribution company that operates a warehouse in Memphis.¹ In January 1997, some employees began a union organizing drive at the warehouse. On February 5, two employees, one of whom was Duc Le, had a conversation on the warehouse floor about paying union dues. Shortly afterwards, the manager of Human Resources, Danny Gaither, confronted Le while he was working in the lift room. Gaither pointed his finger at Le and said, "Don't talk about this Union shit. I know how to take care of you."

On that same day, Gaither observed two employees—both stockers—punch their timecards before their shifts started. Fleming's company policies allow employees to punch into work only within five minutes before their shift starts. Fleming programs the time clock closest to the employees' work stations with their schedule and then the time clock will reject any request to punch in outside of the employees' schedule. The warehouse has four time clocks and only the one closest to the employee's work station is programmed with their schedule, so employees can punch in early if they use one of the unassigned time clocks. The two employees observed by Gaither had punched in 15 minutes and 10 minutes early by using an unassigned time clock. Gaither also observed the same two employees sitting in the break room after their shift had started. Fleming has a policy that prohibits employees from being in the break room at any time other than during their assigned breaks.

Gaither was with another Fleming employee, Mitch Zweig, when he observed these infractions. Zweig was the leadperson for the stockers and reported to the warehouse managers. Gaither decided that both employees should receive a written disciplinary warning for these infractions, and Zweig volunteered to inform the employees of the reprimand. While talking to Vessie Reynolds, one of the employees to be disciplined, Zweig told her that Gaither "had to bust up that thing down there in the lift room." Zweig warned that Gaither was "on the warpath" and that the "union stuff" had management "stirred." Zweig then told Reynolds that the warehouse manager was "printing up a letter about punching in on the right clock so nobody can get in early" and added that Fleming would also be "looking at breaks." The next day, the warehouse manager issued a memo reminding employees to utilize their "home" clocks and not to expand their break periods.

On March 19, a forklift driver, Stanley Jones, brought pro-union flyers to work and posted one of them on a break-room bulletin board. Jones also posted a flyer on the break-room door and left several flyers on the table and chairs. The flyer was entitled, "35 Things Management Cannot Dol" Shortly after Jones put up the flyers, an employee saw Zweig remove them and ball them up in his hand. Later that day, Zweig and Gaither confronted Jones in front of his coworkers and told him that Fleming did not allow any material on the bulletin boards except for company business. Gaither told Jones, "If we catch you placing information or materials on our boards or walls, we will have to take disciplinary action including up to termination." Before this incident, no employee had ever been disciplined for posting items on the bulletin boards.

The union continued to pursue organization of the warehouse and an election was set for June 4 to determine if there was sufficient support for the union. Prior to the election, Fleming's division president, Russ Hill, held a series of mandatory "Save Fleming" meetings with employees. At one of these meetings, on June 3, several employees claim that Hill warned a group of about 100 employees that if they voted for the union, Fleming would be financially damaged and the Memphis warehouse might close down. The election took place the next day, and the union did not receive a majority of the vote.²

ALJ's Decision

In 1998 an ALJ presided over a seven-day trial at which many employees testified, including Le, Reynolds, Jones, and Gaither. The ALJ found that Zweig's comments to Reynolds on February 5 were coercive because they were made in order to threaten more stringent working conditions due to the union campaign. The ALJ specifically pointed to Zweig's comments that it was the management's concern over this "union stuff" that was the cause of them "looking at breaks" and "printing up a letter about punching in on the right clock."

The ALJ also found that division president Hill impermissibly threatened the closure of the plant the day before the union election took place. Two employees testified that Hill told them that if they voted for the union, the warehouse "would go in the hole." The two employees' testimony differed in one respect—one testified that Hill said the plant "would" close if the union won the election, and the other testified that Hill said the plant "could" close. A distribution manager also testified about the content of Hill's speech, but he claimed that Hill never mentioned the closing of the plant. The ALJ credited the employees' testimony over the manager and found that the slight difference in words by the witnesses did not alter the basic message of Hill's speech—that a vote for the union would put the future of the warehouse, and the employees' jobs, at risk. Thus, the ALJ found that Hill's speech violated § 8(a)(1).

Finally, the ALJ found that Fleming impermissibly prohibited the posting of union materials on company bulletin boards. Fleming's company handbook states that the bulletin boards are "for company business purposes only." However, the ALJ found that in practice, Fleming allowed personal postings by employees and would remove them only after they had been posted for anywhere from several days to several months. Employees posted wedding invitations, announcements, thank-you cards, birthday cards, sympathy notes and notices of personal items for sale, but there was no evidence of any commercial or organizational material. The ALJ found that because Fleming "permitted employees to post personal items," it was required to allow union postings. Fleming appealed three issues to a three-member panel of the National Labor Relations Board, which affirmed the ALJ's decision.

Discussion

We will uphold a Board order if there is substantial evidence in the record to support its findings of fact and if its conclusions of law have a reasonable basis in the law. Huck Store Fixture Co. v. NLRB, 327 F.3d 528, 533 (7th Cir.2003); see 29 U.S.C. § 160(e), (f). Substantial evidence is relevant evidence such that a reasonable mind might accept as adequate to support a conclusion. NLRB v. Clinton Elecs. Corp., 284 F.3d 731, 737 (7th Cir.2002). We do not engage in our own fact-finding or supplant the Board's reasonable conclusions "simply because we would have come to a different conclusion if we reviewed the case de novo." Livingston Pipe v. NLRB, 987 F.2d 422, 426 (7th Cir.1993). However, we can set aside a Board decision if we cannot "find that the evidence supporting that decision is substantial, when viewed in the light that the record in its entirety furnishes, including the body of evidence opposed to the Board's view." J.C. Penney Co. v. NLRB, 123 F.3d 988, 993 (7th Cir.1997) (citation omitted).

Section 7 of the NLRA provides that "[e]mployees shall have the right 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. § 157. Section 8(a)(1) of the NLRB considers it an unfair labor practice for an employer to...