Pedro's, Inc. v. N.L.R.B.
| Decision Date | 13 April 1981 |
| Docket Number | No. 79-2443,79-2443 |
| Citation | 652 F.2d 1005 |
| Parties | 107 L.R.R.M. (BNA) 2023, 209 U.S.App.D.C. 208, 91 Lab.Cas. P 12,690, 2 Employee Benefits Ca 1180 PEDRO'S INC., d/b/a Pedro's Restaurant, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Hotel, Motel and Restaurant Employees and Bartenders Union, etc., Intervenor. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.
Lawrence E. Blatnik, Atty., N.L.R.B., Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B. , Washington, D. C., with whom Robert E. Allen, Acting Associate Gen. Counsel, Washington, D. C., were on the brief, for respondent.
Barry S. Jellison entered an appearance for intervenor.
J. Mark Montobbio, San Francisco, Cal., with whom John H. Feldman III was on the brief, for petitioner.
Before McGOWAN, Chief Judge, and ROBINSON and EDWARDS, Circuit Judges.
Opinion for the court filed by Circuit Judge HARRY T. EDWARDS.
Pedro's, Inc. (the "company") here seeks review of a decision and order of the National Labor Relations Board ("NLRB" or the "Board"). 1 The Board has filed a cross-application for enforcement of its order. For reasons set forth below, we hold that only certain of the Board's unfair labor practice findings are entitled to enforcement, and remand this case to the Board for further proceedings.
Pedro's is a restaurant and bar located in Los Gatos, California. On about January 18, 1978, an employee of the restaurant contacted the Hotel and Restaurant Employees and Bartenders Union, Local 19, to discuss the possibility of organizing Pedro's employees. ALJ 3. 2 The union held a number of employee meetings, and several employees signed cards authorizing the union to serve as the exclusive bargaining representative of Pedro's employees. On February 2, 1978, a union representative hand-delivered to the company a letter stating that the union had obtained authorization cards from a majority of Pedro's employees. ALJ 4. On February 17, after company management had responded that they had a good faith doubt that the union represented an uncoerced majority of the employees, the union filed a petition for an election with the NLRB. An election was held on April 21, 1978, and the union was defeated by a vote of 56 to 36. ALJ 1.
The union challenged the results of the election, and filed unfair labor practice charges against the company. After a hearing, the Board found that Pedro's had committed several violations of Section 8(a)(1) 3 of the National Labor Relations Act ("NLRA" or the "Act") 4 during the course of the union campaign. ALJ 4-17. In addition, the Board ruled that this unlawful conduct undermined the union's majority and rendered doubtful or impossible the holding of a free and fair second election. ALJ 22-32. As a result, and pursuant to standards announced in NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969), the Board ordered the company to bargain collectively with the union. Pedro's challenges the unfair labor practice determinations made by the Board, and the issuance of a bargaining order in this case.
With two important exceptions set forth below, we hold that substantial evidence exists to support the findings of the Board that the company committed several violations of Section 8(a)(1) of the Act during the union campaign. 5 Although each of these findings is vigorously contested by the company, it is firmly established that findings of the Board are entitled to judicial enforcement if supported by substantial evidence. 29 U.S.C. § 160(e) (1976); Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951).
We are unable to find substantial evidence, however, to support a finding of the Board that the company violated Section 8(a)(1) by implementing a health insurance plan for its employees during the union organizational drive. Proper resolution of this issue requires a detailed review of the facts surrounding the implementation of the plan.
The subject of health insurance coverage for employees of the restaurant first arose in either late 1975 or at some unspecified time in 1976. ALJ 7. Employees were told on this first occasion that the restaurant was not in a suitable financial position to provide insurance. Id. However, on April 23, 1977, the subject again arose during an employee meeting, and Peter S. Ramirez, president and co-owner of the company, told employees that the company was in a position to begin to collect bids from insurance companies. ALJ 8. Ramirez stated that he thought coverage could be secured by the end of the year. No date was mentioned, however, as to when such a plan would go into effect. Id.
Although the company contends that several insurance companies were contacted unsuccessfully after the April 23 meeting, the only documentary evidence to support this contention is a letter dated November 18, 1977, indicating that State Farm Insurance had been requested to submit a bid. ALJ 8. In mid-December 1977, however, Harold Hobson, an experienced insurance broker, was introduced to company management and agreed to solicit additional bids. Id. Hobson contacted the Prudential Life Insurance Company and the New York Life Insurance Company. Another broker, Jack Montgomery, also solicited bids from three additional underwriters. Id. During January, 1978, several meetings were conducted between company officials and representatives of the insurance companies. ALJ 8; A. 99, 263. 6 On February 1, 1978, Prudential submitted a formal, written proposal. ALJ 8. The company compared this proposal with the others subsequently received from other underwriters, and, on March 6, 1978, Pedro's executed an application with Prudential and tendered the initial premium that commenced coverage of the plan. ALJ 10. 7
In mid-March, Ramirez held a meeting with the employees and informed them that they had been insured for a week. ALJ 7. He introduced Hobson and a representative from Prudential, who in turn explained the new health insurance coverage and gave the employees forms to fill out. No reference to the union was made at this meeting. Id.
It is firmly established that an employer may not grant benefits to employees during an organizational drive in an attempt to influence the outcome of a pending election. In NLRB v. Exchange Parts Co., 375 U.S. 405, 84 S.Ct. 457, 11 L.Ed.2d 435 (1964), the Supreme Court held:
We have no doubt that (Section 8(a)(1)) prohibits not only intrusive threats and promises but also conduct immediately favorable to employees which is undertaken with the express purpose of impinging upon their freedom of choice for or against unionization and is reasonably calculated to have that effect.
375 U.S. at 409, 84 S.Ct. at 459. However, a benefit granted in the normal course of the business of an employer, without any motive of inducing employees to vote against the union, does not violate the Act. NLRB v. Tommy's Spanish Foods, Inc., 463 F.2d 116 (9th Cir. 1972); Jervis Corp., Bolivar Division v. NLRB, 387 F.2d 107 (6th Cir. 1967). 8 The question presented, therefore, is whether the disputed insurance benefit was granted in the normal course of business by the employer, or outside the normal course of business in an attempt to influence the outcome of the election. In Free-Flow Packaging Corp. v. NLRB, 566 F.2d 1124, 1130 (9th Cir. 1978), the court stated that "(t)he question quite simply is whether the employer in good faith sought to comply with the requirements of law." 9
In the present case, the Board acknowledged that preparations for the implementation of a health insurance plan had begun well in advance of the union organizational drive. The ALJ concluded that the company "had commenced serious attempts to secure health insurance coverage prior to the commencement of the union organizational campaign." ALJ 15. The Board here contends, however, that Pedro's "accelerated" its efforts to locate and implement a plan upon learning of the union activities of its employees.
In reviewing the record in this case, we are unable to find any evidence that the company accelerated its efforts to implement a health insurance plan because of the union's organizational drive. The company had initially announced the possibility of an insurance plan in April of 1977. At least one insurer was contacted between April and November, 1977. Then, in December 1977, well before the union campaign began, the company secured the services of an experienced insurance broker. From the moment that Hobson entered the picture, substantial progress was made in obtaining bids and securing a plan. In addition, there was nothing unusual about the amount of time that it took Hobson to secure an insurance plan for the company, and the plan was implemented within a time frame that was consistent with industry practice. ALJ 10. In short, the Board has produced no evidence that the health insurance plan was implemented outside the normal course of business, in an attempt to induce employees to vote against the union. 10
We are aware that certain courts have imposed a heavy burden on an employer to justify a grant of benefits during a union election campaign. 11 In this case, the company presented evidence that it was the introduction of insurance broker Hobson, and not the union organizational drive, that advanced the implementation of the health insurance plan. The Board has found nothing to rebut this evidence. Thus, to the extent that the company had a burden to justify the implementation of the health insurance plan in a case of this sort, 12 that burden has been met.
In NLRB v. Exchange...
To continue reading
Request your trial
-
Road Sprinkler Fitters Local Union No. 669 v. N.L.R.B.
...NLRB v. Gissel Packing Co., 395 U.S. 575, 612 n.32, 89 S.Ct. 1918, 1939 n.32, 23 L.Ed.2d 547 (1969). See also Pedro's, Inc. v. NLRB, 652 F.2d 1005, 1011-12 (D.C.Cir.1981) (remanding case for determination of appropriate remedy after rejecting one unfair labor practice In the present case we......
-
Federated Logistics and Operations v. N.L.R.B.
...may not withhold a wage increase that would have been granted but for a union organizing campaign. See also Pedro's, Inc. v. NLRB, 652 F.2d 1005, 1008 n. 8 (D.C.Cir.1981). Two pieces of circumstantial evidence reflected in the record provide a basis for the Board to adopt the ALJ's finding ......
-
Conair Corp. v. N.L.R.B.
...the record as a whole, see, e.g., Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951); Pedro's, Inc. v. NLRB, 652 F.2d 1005, 1011 (D.C.Cir.1981), 65 and adequately justifies the conclusion that Conair's conduct fell into the most egregious category. Case law furt......
-
St. Francis Federation of Nurses and Health Professionals v. N.L.R.B., AFL-CI
...29 U.S.C. Sec. 160(e) (1976). See Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951); Pedro's Inc. v. NLRB, 652 F.2d 1005, 1007 (D.C.Cir.1981). We apply a "deferential standard of review ... when the Board engages in a reasoned exercise of its expert judgment." ......