N.L.R.B. v. Davis
| Citation | 642 F.2d 350 |
| Decision Date | 20 April 1981 |
| Docket Number | AFL-CI,No. 79-7566,I,79-7566 |
| Parties | 107 L.R.R.M. (BNA) 2248, 91 Lab.Cas. P 12,715 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. Steven DAVIS and Michael Provenzano, d/b/a Carlton's Market, Respondent, Retail Clerks Union Local 1428, United Food Commercial Workers International Union,ntervenor. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Robert M. Simpson, Rose, Klein & Marias, Los Angeles, Cal., for respondent.
On Application for Enforcement of an Order of The National Labor Relations Board.
Before FLETCHER and FERGUSON, Circuit Judges, and FITZGERALD *, District Judge.
The National Labor Relations Board ruled that Carlton's Market of El Monte, California engaged in unfair labor practices which dissipated a union majority within the bargaining unit and brought about conditions making a fair representation election impossible. As a consequence, the Board issued a bargaining order and now comes to this court for enforcement. 1
On November 28, 1977, Michael Provenzano and Steven Davis, both experienced in grocery management but inexperienced in labor relations, entered into an agreement with Tajico Corporation to acquire Carlton's Market. The business was in poor financial shape. On the same date, the union 2 completed collection of authorization cards from 13 out of 17 employees at the market.
The new management was opposed to the union. Provenzano and Davis discharged six of their employees because of their pro-union activities. Provenzano also told employees that he would do anything to keep On March 13, 1978, the union filed a charge of unfair labor practices with the National Labor Relations Board. Provenzano and Davis then consulted a skilled labor attorney who provided them with a "crash course" in employee relations. There have been no new allegations of unfair labor practices at the market since.
the union out. He threatened to fire union supporters, offered wage increases to those who took his side, threatened not to hire people with pro-union sympathies, mentioned reductions in hours for pro-union employees, and stated that he could obtain the discharge of pro-union employees who left his store to work elsewhere if they should prove troublesome to him.
An administrative law judge held hearings on the union's complaint in December 1978 and January 1979. The judge refused to admit some evidence indicative of a change of attitude on the part of the management. However, Provenzano and Davis were permitted to show that the number of employees at the market had grown from 17 to 37, of whom 27 had been hired subsequent to any unfair labor practices. At the time of the hearing, only nine members remained of the work force employed at the time the unfair labor practices were committed.
The judge found that 15 separate unfair labor practices had occurred in addition to the six prohibited discharges which had been stipulated to. The Board adopted the judge's recommendation and issued an order requiring Carlton's Market to cease and desist its unfair labor practices and to recognize and bargain with the union.
Despite respondent's contentions to the contrary, we find substantial evidence in the record as a whole to establish that in December 1977 the union represented a majority of the employees in the bargaining unit, and that the management thereafter committed serious unfair labor practices against the employees and the union. We hold, as well, that the Board's inquiry into whether a fair election might be held was adequate and that the Board's reasons are sufficiently explicit to justify the bargaining order.
In NLRB v. Gissel Packing Company, 3 the Supreme Court ruled that a bargaining order could issue in these circumstances if (1) "the Union demonstrates that it represented a majority of the unit employees who signed valid union authorization cards," (2) the employer committed unfair labor practices, and (3) those practices are "bad enough to undermine the free election process." 4
The Board correctly determined that the proper size of the bargaining unit was 17, rather than 20 as respondent contends. It found (1) that Donald Conroy was essentially an expert on pricing working for Tajico rather than an employee of the market, (2) that Naushad Kurji was a management trainee with special status more closely aligning him with management than with employees, and (3) that Angus Garrison could be properly excluded as a meat employee in line with current industry practice separating meat and grocery employees. These findings are not arbitrary and capricious as they are supported by substantial evidence. 5
Respondent contends that a majority was not achieved within the unit because the purpose of the authorization cards was misrepresented to the signers. In Gissel the Court adopted the Board's Cumberland Shoe doctrine for dealing with authorization cards when such claims arise.
(I)f the card itself is unambiguous (i. e., states on its face that the signer authorizes the Union to represent the employee for collective bargaining purposes and not to seek an election), it will be counted unless it is proved that the employee was told that the card was to be used solely for the purpose of obtaining an election. 6
In this case, the card was unambiguous. Therefore, the management must establish that the signer was told that the card would be used solely for an election in order to exclude it from the count. Our examination of the evidence now relied upon by the respondent reveals that, at best, it can be viewed as conflicting. The testimony of William Rodriguez, who collected the cards, provides substantial evidence in the light of the entire record that a sufficient number of signature cards were properly signed to obtain a majority.
Four employees were discharged by Carlton's Market within a week of signing their union authorization cards. Later two more employees who had signed cards were terminated. Although all six were subsequently offered reinstatement and back pay, we conclude that discharges for protected union activity strike directly at the Act's stated purpose of "encouraging the practice and procedure of collective bargaining ... by protecting the exercise by workers of full freedom of association...." 7 Such violations are among the most serious infringements of the Act possible. Besides these six, there are seven additional findings of unfair labor practices by Carlton's Market which are undisputed. They include Provenzano's coercive interrogation of employees about union sympathies, a statement to an employee that he was trying to keep the union out, his threat to get another employee discharged from any future job because of union activities, and his statements to still another employee that he did not want any discussion of union organization in the market, or anyone in the store who was for the union. These findings reveal a pattern of sustained and serious violation of section 8(a)(1) of the Act. 8
Finally, six more findings of unfair labor practices rest on the administrative law judge's determinations of credibility. All involve conversations which Provenzano had with individual employees. The employees testified that Provenzano threatened discharges and cuts in hours if the union organized the store, repeatedly interrogated them about their attitudes toward the union, and promised wage increases if they would not support it.
The findings of the Board must be upheld if supported by substantial evidence viewing the record as a whole. 9 "... (T)he examiner's findings as to credibility should not be disturbed unless a 'clear preponderance of all the relevant evidence convinces that they are incorrect.' " 10 Here the administrative law judge made credibility resolutions on the basis of the demeanor and appearance of the witnesses and explicitly presented her analysis and reasoning for crediting some and not crediting others in her findings. Significant testimony in the record supports her findings which we will not disturb.
An employer's commission of an unfair labor practice does not automatically result in an order to bargain. In choosing a remedy, Gissel instructs the Board to consider the extensiveness of the unfair labor practices, their past effect on election conditions, 11 the likelihood of their reoccurrence, and the probability that a fair election can be held. 12 The relevant time period for consideration of the possibility of a fair election is when the case is before the Board. 13
To document its consideration of these factors, the Board must make findings which are sufficiently explicit to support issuance of a bargaining order. The Board must "clearly articulate the reasons behind any order, and particularly why other remedies were found inappropriate." 14 These findings may not be perfunctory. 15 However, when the Board has considered these matters and determined that a bargaining order is necessary, Gissel counsels deference to the Board's determination of a remedy. 16
In her decision, the administrative law judge concluded that the misconduct of Carlton's management was so pervasive that it made a fair election infeasible:
Finally, I reject Respondent's argument that any effect of the unfair labor practices has been dissipated and a fair election is now possible. The extent of Respondent's unfair labor practices are so pervasive that traditional remedies will not erase the effects thereof. Provenzano and Davis deliberately embarked upon a course of action designed to, and which did, undermine the Union's majority. The leading union adherent was discharged along with 5, probably 6, of the 13 card signers in a unit of only 17. Nine of the current employees were employed at the time of the unfair labor practices. The nature of ...
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