N.L.R.B. v. Rich's of Plymouth, Inc.

• Decision Date: 06 June 1978
• Docket Number: No. 77-1497,77-1497
• Citation: 578 F.2d 880
• Parties: 98 L.R.R.M. (BNA) 2684, 84 Lab.Cas. P 10636A NATIONAL LABOR RELATIONS BOARD, Petitioner, v. RICH'S OF PLYMOUTH, INC., Respondent.
• Court: U.S. Court of Appeals — First Circuit

Page 880

578 F.2d 880

98 L.R.R.M. (BNA) 2684, 84 Lab.Cas. P 10636A

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. RICH'S OF PLYMOUTH, INC., Respondent.

No. 77-1497.

United States Court of Appeals, First Circuit.

Argued April 4, 1978.

Decided June 6, 1978.

Lee Ann Huntington, Atty., Washington, D. C., with whom John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Elliott Moore, Deputy Associate General Counsel, and William R. Stewart, Atty., Washington, D. C., were on brief, for petitioner.

Duane R. Batista, Boston, Mass., with whom David E. Watson and Nutter, McClennen & Fish, Boston, Mass., were on brief, for respondent.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

COFFIN, Chief Judge.

The National Labor Relations Board (the Board) seeks enforcement of a cease and desist order issued after its finding that respondent violated section 8(a) (1) of the National Labor Relations Act (the Act) (1) by soliciting employee grievances and promising and granting benefits with intent to discourage support for a union campaign and (2) by creating an impression of surveillance among the employees. Also at issue is whether respondent shall be required to reinstate with back pay a union supporter who walked off her job in a fit of pique on a busy night. We first address those portions of the Board's order which we enforce.

Promise and Grant of Benefits

Respondent is a chain of nine retail stores. In April, 1976, Local 222 of the Retail Clerks International Association, AFL-CIO embarked on a campaign to organize the employees of respondent's Plymouth, Massachusetts store. A flyer distributed among the employees announced that an initial organizational meeting would be held on April 26.

The same day of the union's first meeting, Gerald Costello, personnel and operations manager for the chain, convened the entire workforce, scheduling separate meetings for the day and night shift employees. Addressing the day employees first, Costello discussed the union campaign and the effect of signing authorization cards. He then asked if the employees had any problems. Two subjects were raised: health insurance and the establishment of a grievance committee. Costello agreed to investigate both proposals. He explained that if implemented, a health insurance plan would cover all stores in the Rich's chain, not just the Plymouth branch, and would be jointly financed by management and the employees.

On May 10 Costello met with a group of 15 or 20 night shift employees. This group's reaction to the two suggestions made by the day personnel was favorable. Costello told them that a grievance committee procedure would be established and that management would pursue the proposal for health insurance.

A short time later a grievance committee ballot box was installed in the Plymouth store. Two days later it was removed. After the May 10 meeting, no further mention was made of the health insurance proposal. Store supervisors were directed to answer any inquiries about the progress of the employees' suggestions by stating that the company "had been advised not to go into this at this point."

Early in May respondent instituted a pay increase of 5 cents per hour for all employees in the chain. On May 14, the union filed a petition with the Board to represent the Plymouth store workforce. ¹ An election was conducted on July 22 in which the union lost by a margin of 41 votes to 22, with 7 ballots challenged. Subsequently the union filed unfair labor practice charges and sought to have the election overturned.

We sustain the Board's conclusion that respondent violated section 8(a)(1) of the Act by soliciting employee grievances and promising benefits during the pendency of this union campaign. One indication that the grievance sessions conducted in this case could be found to have been calculated to infringe upon the employee freedom of choice with respect to unionization, NLRB v. Exchange Parts, 375 U.S. 405, 409, 84 S.Ct. 457, 11 L.Ed.2d 435 (1964), is their timing. Ordinarily, the more imminent a representational election, the greater the presumption that management's expression of concern for employee welfare has an impermissible motive, See NLRB v. Styletek, Division of Pandel-Bradford, Inc., 520 F.2d 275, 277 (1st Cir. 1975). Here an election had not yet been requested at the time the employees were convened and additional benefits were discussed, a fact seemingly in respondent's favor, See id. However, it appears to be no mere coincidence that Costello called for the meetings, inquired of the day employees' grievances, and promptly responded to their suggestions the very day the union had chosen for its first organizational meeting. We think it reasonable to conclude that the grievance sessions were timed to nip the union effort in the bud.

The manner of convening the workforce adds support to the Board's finding. Neither grievance session was a regularly scheduled event, See NLRB v. South Shore Hospital, 571 F.2d 677, 681 (1st Cir. 1978). The meetings were not called by the employees, but were initiated by management, and concededly in response to the union presence at the store, See NLRB v. Gotham Industries, 406 F.2d 1306, 1311 (1st Cir. 1969). Costello asked for the employees' proposed improvements promptly after having acknowledged that the union was attempting to organize. When contrasted to respondent's characteristic method of dealing with employee complaints on an individual, informal basis, convocation of the entire workforce conveyed the impression that with a union campaign in progress, employee suggestions would be taken more seriously.

Some evidence, although it was specifically discredited by the administrative law judge, indicates that the proposal for a health insurance plan may at least have been considered by management prior to the union's appearance at the Plymouth store, See NLRB v. Arrow Elastic Corp., 573 F.2d 702, 706 (1st Cir. 1978). Even if that were the case, it would not mitigate the effects of respondent's conduct. No specific details of such a plan were communicated to the employees prior to April 26, nor did management ever unconditionally commit itself to providing health insurance, Id.; NLRB v. Exchange Parts, supra, 375 U.S. at 409, 84 S.Ct. 457. In any event, there is no basis for believing that the second improvement discussed with the employees at the same time, establishment of a grievance committee, had been predetermined, See NLRB v. Arrow Elastic Corp., supra. That idea originated with the day employees at the April 26 meeting. No business justification was even offered for management's sudden interest in it, See NLRB v. Otis Hospital, 545 F.2d 252 (1st Cir. 1976).

Respondent seeks support in the fact that whatever promises may have been made at the meetings were never put into effect. ² In what appears to have been a belated effort to avoid a probable unfair labor practice charge, respondent removed the grievance committee ballot box before an election could be held, made no further mention of the proposal for health insurance, and gave an explanation for its action which was carefully phrased to avoid reference to the union. As we have noted in previous decisions, we are not insensitive to attempts by an employer to mitigate impermissible conduct, See Sta-Hi Division, Sun Chemical Corp. v. NLRB, 560 F.2d 470, 474 (1st Cir. 1977). Once the promises had been made, however, the requisite laboratory conditions for a representational election had been destroyed, and even good faith efforts to blunt their impact could not make it otherwise, Id.

Similarly, we agree with the Board that the implementation of a 5 cent per hour pay increase violated section 8(a)(1). Although it is not invariably an unfair labor practice to increase compensation while a union campaign is underway, such conduct makes out a prima facie case of intentional interference with employee organizational rights, See NLRB v. Styletek,supra, 520 F.2d at 280. ³ The burden then shifts to the employer to justify both the fact and the timing of the increase, Id.

Respondent argues that it carried that burden by introducing evidence that the decision to increase wages was made in January, 1976, before the union made its presence known, and was implemented pursuant to a consistently applied policy of granting raises in the spring and fall of each year, See D'Youville Manor v. NLRB, 526 F.2d 3, 5 (1st Cir. 1975). However, the administrative law judge and the Board discredited testimony by respondent's president that by January, 1976, management had resolved to increase wages. We have no basis for disturbing that finding, based as it was on an assessment of credibility, See NLRB v. Garland Corp., 396 F.2d 707, 709 (1st Cir. 1968).

Similarly, the Board was unpersuaded, and we think with good reason, by the argument that the timing of the raise was in line with pre-existing company policy. Between 1972 and 1974 wages were increased every six months, in April and October. That pattern was interrupted in 1974 and subsequent increases, mandated by changes in federal minimum wage requirements, were instituted in May, 1974, January, 1975, and January, 1976. The next voluntary pay increase was not until May, 1976. No evidence indicates that the employees had any expectation that they would receive the 5 cent raise, much less that it would be in that month. Since respondent had only once given a raise in May, and that had been two years prior to the period in question, we, like the Board, are unconvinced that respondent had a history of showing its munificence in May. Respondent's conceded awareness of the union presence at the time it put the increase into effect undermines its argument all the more, See NLRB v. Arrow Elastic Corp., supra, at 704; NLRB v. Gotham Industries, supra, 406 F.2d at 1310. On these facts it appears that even if it might have been decided in advance, the wage increase was ...