400 F.3d 920 (D.C. Cir. 2005), 03-1323, Federated Logistics and Operations, a Div. of Federated Corporate Services, Inc. v. N.L.R.B.

Docket Nº:03-1323, 03-1357.
Citation:400 F.3d 920
Party Name:FEDERATED LOGISTICS AND OPERATIONS, A Division of Federated Corporate Services, Inc., Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent UNITE, AFL-CIO-CLC, Intervenor
Case Date:February 25, 2005
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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400 F.3d 920 (D.C. Cir. 2005)

FEDERATED LOGISTICS AND OPERATIONS, A Division of Federated Corporate Services, Inc., Petitioner



UNITE, AFL-CIO-CLC, Intervenor

Nos. 03-1323, 03-1357.

United States Court of Appeals, District of Columbia Circuit.

Feb. 25, 2005.

Argued Sept. 14, 2004

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On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.

Meir Feder argued the cause for petitioner. With him on the briefs were Andrew M. Kramer and Julia M. Broas.

Robert J. Englehart, Attorney, National Labor Relations Board, argued the cause for respondent. With him on the brief were Arthur F. Rosenfeld, General Counsel, John H. Ferguson, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, and David A. Fleischer, Senior Attorney.

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James B. Coppess argued the cause for intervenor. With him on the brief was Ira J. Katz.

Opinion dissenting in part filed by Circuit Judge HENDERSON.

Before: SENTELLE, HENDERSON and TATEL, Circuit Judges.


SENTELLE, Circuit Judge.

Federated Logistics and Operations ("Federated" or "Employer"), a division of Federated Corporate Services, Inc., petitions this Court for review of a decision and order of the National Labor Relations Board ("Board") in an unfair labor practice proceeding. Federated challenges Board determinations that it unlawfully made threats to, withheld wage increases from, and disciplined employees at one of its distribution facilities during a union organizing drive at its Tampa, Florida facility. Federated also challenges the broad order the Board imposed to remedy these unfair labor practices. For the reasons more fully set forth below, we deny the petition.

I. Background

Federated Logistics, which provides receipt, distribution and return services for Federated Department Stores, operates one of its fourteen distribution centers in Tampa, Florida. On August 25, 2000, the Union of Needletrades, Industrial and Textile Employees ("UNITE") petitioned the Board to hold an election for the union to unionize the plant. When Federated management received the petition three days later, it flew its Vice President of Labor and Employee Relations from its Cincinnati, Ohio headquarters to Tampa to coordinate the company response to the organizing drive. Federated then launched a voluminous communications campaign with its Tampa employees. From August 28th, when it was notified of the election petition, through October 5th, the evening before the election, the Employer issued an open letter nearly every other day on the effects of unionization, generally organized in a "frequently asked question" format. In its August 29th letter, for example, Federated wrote:


NO! If a union gets in, it will be very difficult, if not impossible, to get rid of the union.

Joint Appendix ("J.A.") at 42. Federated arranged for the presence of specially trained managers from other facilities to speak one-on-one with employees about unionization. Finally, Joe Vella and Kevin Hart, two Federated vice presidents, convened nonmandatory group meetings with the Tampa employees two and four days before the election, to provide further information on unionization in a presentation based on a series of power-point slides.

The Union lost the October 6, 2000 election by a vote of 81 to 60. The Union filed objections to the election with the Board on October 13, 2000. On March 14, 2002, an administrative law judge ("ALJ") held that Federated violated NLRA § 8(a)(1), 29 U.S.C. § 158(a)(1), by (1) maintaining a no-solicitation rule prohibiting solicitation in work areas during nonworking time; (2) interrogating employees about their union activities; (3) creating the impression among employees that their union activities were under surveillance; (4) soliciting an employee to attend and report back on a union meeting; (5) soliciting employee grievances with the implied promise to remedy them; (6) promising employees unspecified benefits if they defeated the union; and (7) threatening employees that supporting the Union would be futile, that they would lose benefits if the Union were elected, and that their wages would be frozen. Federated Logistics & Operations, 340 N.L.R.B. No. 36, slip op. at 20

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(2003) ("ALJ Decision"). The ALJ additionally found that Federated had violated NLRA § 8(a)(3), 29 U.S.C. § 158(a)(3), by (1) withholding a wage increase from employees because of their involvement in the election; and (2) disciplining two employees because they engaged in union activities. Id. at 20-21. The Board adopted the ALJ's findings over Petitioner's objections. As a remedy, the Board imposed a broad cease-and-desist order on Federated with respect to all the above-mentioned violations, ordered the employer to supply the Union with the names and addresses of employees for two years or until a certified election had been held, and ordered Federated to take various affirmative actions to repair the effects of its no-solicitation rule, unlawful disciplining of employees, and withheld wage increase. The Board also directed that a Federated official or a Board agent in the presence of such an official read a Notice of Violation included in the Board opinion to an assembly of the Tampa employees.

Of the Board's findings, Federated appeals only the determinations that it unlawfully threatened the Tampa employees with the futility of unionization, withheld wage increases, and disciplined employees in violation of NLRA § 8(a)(1) & (3), 29 U.S.C. § 158(a)(1) & (3). (Federated does not dispute the Board's adoption of the ALJ's finding that it committed the other six abovementioned unfair labor practices.) The Employer further challenges the Board's imposition of what it characterizes as an "extraordinary" remedy, as unwarranted by the facts of the case.

II. Discussion

A. Standard of Review

Under the NLRA, the Board's findings of fact are conclusive "if supported by substantial evidence on the record considered as a whole ...." 29 U.S.C. § 160(e). "Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Evergreen America Corp. v. NLRB, 362 F.3d 827, 837 (D.C.Cir.2004) (internal quotations omitted). This means that we must uphold the Board's decision even if we would have reached a different result upon de novo review. See Perdue Farms, Inc., Cookin' Good Div. v. NLRB, 144 F.3d 830, 834-35 (D.C.Cir.1998). We appreciate our dissenting colleague's recitation of the evidence which serves to well illustrate the volume of substantial evidence upon which the Board relied. However, our colleague's proposals as to how her findings would have differed from the Board's on that evidence are not consistent with our limited role in review.

B. Unlawful threats

Federated's first challenge is that the Board erred in finding that comments made by Vella and Hart amounted to unlawful threats of the futility of unionization in violation of NLRA § 8(a)(1), 29 U.S.C. § 158(a)(1), which forbids an employer from "interfer[ing] with, restrain[ing], or coerc[ing] employees in the exercise" of their statutory rights under the Act.

Specifically, the ALJ found as fact that, during the course of a power point presentation to a large group of Tampa employees at informational meetings convened shortly before the election:

Vella and Hart did inform the employees that bargaining would start at zero and that the Union would seek to take control of their 401(k) plan and that it was likely they would lose the 401(k) as the Union would bargain for control as it did at Respondent's facility in Seacaucus, New Jersey. [Further,] Vella and Hart told the employees that the work could be moved in the event of a strike.

ALJ Decision at 14 (emphasis added).

The Board accepted these findings, characterizing them as follows:

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During employee meetings on October 2, and 4, ... Vella and Hart stated, with regard to what would happen to employees' wages and benefits if the Union were selected, that "[they] would start from zero and would negotiate from that," that the Union would strike, and that if a strike occurred the operation could be shut down and moved to another of the Respondent's facilities in 3 days, and that employees could lose their 401(k) plan.

Id. at 1. Reviewing these comments "in context, to determine whether they 'effectively threaten employees ... [,]' " id. at 2, the Board agreed with the ALJ that the comments "reasonably would be understood by employees as threats that benefits would be lost and that selecting union representation would be futile." Id.

1. Substantial Evidence of Threatening Statements

Federated argues that there is insufficient evidence in the record to establish that its managers made statements constituting prohibited threats. Instead, the employer argues, the statements that the ALJ did establish it made fell within the safe haven created by NLRA § 8(c), 29 U.S.C. § 158(c), to protect employers' free speech rights. Pet. Br. at 26.

Section 8(c) holds that:

The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act, if such expression contains no threat of reprisal or force or promise of benefit.

29 U.S.C. § 158(c).

Therefore, "an employer is free to communicate to his employees any of his general views about unionism or any of his specific views about a...

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