N.L.R.B. v. Price's Pic-Pac Supermarkets, Inc., PIC-PAC
| Decision Date | 03 May 1983 |
| Docket Number | PIC-PAC,No. 82-1033,82-1033 |
| Citation | 707 F.2d 236 |
| Parties | 113 L.R.R.M. (BNA) 2405, 97 Lab.Cas. P 10,078 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PRICE'SSUPERMARKETS, INC., Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., Michael David Fox (argued), Washington, D.C., for petitioner.
Robert F. Houlihan, Donald P. Wagner (argued), Stoll, Keenon & Park, Lexington, Ky., for respondent.
Before ENGEL and CONTIE, Circuit Judges, and ALDRICH, District Judge. *
The National Labor Relations Board (Board) has applied for enforcement of an order finding that Price's Pic-Pac Supermarkets, Inc. violated Sec. 8(a)(1) and (3) of the National Labor Relations Act (Act) by:
5. Offering an employee a promotion and wage increase in order to induce that worker to refrain from supporting the union and 6. Discharging three employees in order to discourage union activity.
To remedy these violations, the Board ordered the company both to cease and desist from violating the Act and to reinstate three employees with back pay. Although no representation election has ever been held, the Board also approved a bargaining order.
The company now contends that substantial evidence does not support the Board's finding of Sec. 8(a)(1) and (3) violations. It argues in the alternative that the Board should have required that an election be held rather than imposing a bargaining order. For the reasons presented below, we enforce the Board's order.
The Administrative Law Judge (ALJ) found the following facts. The defendant engages in the retail sale of groceries at a store located in Prestonburg, Kentucky. The events forming the basis of this litigation occurred between November 12 and 20, 1979. Jodie Ward, a representative of the Food Store Employees Union, and Jewel Cockerham, a cashier at the store, arranged an organizational meeting at a local motel on November 12. Fourteen store employees attended the meeting and signed union authorization cards. Cockerham subsequently obtained eight additional cards from company employees.
At 4:00 P.M. on November 16, 1979, store manager Whitten discharged Cockerham. Although the company claims that it terminated Cockerham for being rude to customers, the ALJ found that this explanation was pretextual and that Cockerham had been discharged for engaging in union organizing.
At 6:00 P.M. the same evening, company president Taylor Price confronted employee Hurd in the stockroom. When Hurd told Price that he supported the union, Price stated that he would close the store rather than negotiate with a union. Price gave Hurd one day to reconsider his position.
On November 17, Whitten summoned employee Prater to his office. Prater had signed an authorization card. When asked what he knew about the union, Prater refused to answer and returned to work. Ten minutes later, Whitten and Price accosted Prater. Whitten told Price that Prater had lied about his union activities and ordered Prater to clean the milk cooler, a job normally done when the cooler was empty.
Finding the cooler full of milk, Prater explained to his immediate superior that the milk might spoil were it removed and the cooler cleaned. While the two considered this matter, Whitten returned and told Prater that if he refused to discuss the union with Whitten, then he should discuss it with no one or risk being physically beaten for doing so. Whitten added that although Prater would not be discharged, the latter would be made to wish that he had been terminated. Prater then quit and was told to punch out. The ALJ ruled this a constructive discharge.
Later that morning, employee Ousley was called to the office. Although Ousley denied union involvement, Whitten responded that he knew that Ousley was one of the employees who had signed authorization cards at the organizational meeting. He then threatened to close the store if the union were approved and offered Ousley a raise and promotion to head cashier if she would cease her union activities.
At about noon on November 17, Price and Whitten asked Hurd if he had changed his mind about the union. When Hurd responded that he still favored the union, Price told Hurd to punch out and leave. The ALJ ruled this a discharge.
Several hours later, Whitten spoke to employees Jesse and Phillip Meade. Whitten informed Jesse both that he knew the latter had signed an authorization card and that the store would close if the union prevailed. Furthermore, employees attending a union meeting scheduled for November 19 would be fired. The store manager also asked Phillip how he intended to vote. After Phillip stated that he was unsure, Whitten said that if the union were approved, both he and Phillip would lose their jobs.
Whitten scheduled an employee meeting for Sunday, November 18. During this meeting, he displayed certain financial records (which were presented neither to the ALJ nor the Board) and again threatened to close the store if the union prevailed. While Whitten promised that no one would be fired for union involvement, he admitted that Price had discharged Hurd for precisely that reason. Individuals were also asked if they still supported the union.
On November 19, Whitten threatened to discharge Jesse and Phillip Meade if they attended that evening's union meeting. The meeting nevertheless occurred as scheduled at Cockerham's house. As Hurd and the Meades left in Hurd's car, Price drove his auto from a gas station located near the home. Price flashed his headlights as he followed Hurd's car. The three employees then returned to Cockerham's house and observed Price circling the block until 2:30 A.M.
We hold that substantial evidence supports the finding of Sec. 8(a)(1) violations. The Board found five such violations, the first of which is that the defendant coercively interrogated and polled employees about the union. While questioning employees about a union is not per se unlawful, NLRB v. Armstrong Circuit, Inc., 462 F.2d 355, 357 (6th Cir.1972), the Board's assessment of coercive effect, if reasonable, should be sustained. Cf. Henry I. Siegel Co. v. NLRB, 417 F.2d 1206, 1214 (6th Cir.1969), cert. denied, 398 U.S. 959, 90 S.Ct. 2175, 26 L.Ed.2d 545 (1970) ().
The ALJ cited numerous examples of coercive interrogation and polling. For instance, Price accompanied a question to employee Hurd concerning whether the latter supported the union with threats that the store would close and that Hurd had one day to reconsider his pro-union position. Whitten asked Phillip Meade how Meade would vote and then stated that both would lose their jobs if the union prevailed. Furthermore, Whitten asked individuals if they favored the union at an employee meeting during which unlawful threats of plant closure occurred. See infra. These and other examples cited by the ALJ comprise substantial evidence upon which to base the conclusion that the company's interrogation and polling activities were coercive.
The defendant also transgressed Sec. 8(a)(1) by creating the impression of surveillance of union activity. Such an impression was created, for instance, when Whitten told both Ousley and Jesse Meade that he already knew that the two had signed authorization cards. See NLRB v. Rich's Precision Foundry, Inc., 667 F.2d 613, 624-25 (7th Cir.1981). Price wrongfully engaged in actual surveillance of union activity when he watched Cockerham's house, followed three employees as they left the meeting and circled Cockerham's home in an auto until 2:30 A.M. See NLRB v. Tru-Line Metal Products Co., 324 F.2d 614, 616 (6th Cir.1963).
Third, the company violated the Act by threatening discharges, physical injury and business closure if the employees continued to support the union. On the subject of threatened discharges, the ALJ found that on November 16, Price ominously advised Hurd to reconsider his pro-union stance. On November 17, Whitten told Jesse Meade that employees attending future union meetings would be fired. Although the company claims to have retracted all such statements at the November 18 employees' meeting, Whitten threatened on the very next day to discharge Ousley and the Meades if they attended the organizational meeting scheduled for that evening.
On the topic of physical injury, the ALJ found that Whitten threatened employee Prater with beatings if the latter discussed the union with fellow workers. Finally, the company unlawfully threatened to close the Prestonburg store if the union were accepted. The defendant responds, however, that since its statements were mere predictions of the economic consequences of unionization, its comments were protected under NLRB v. Gissel Packing Co., Inc., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969).
This contention is without merit. The Supreme Court held in gissel that:
If there is any implication that an employer may or may not take action solely on his own initiative for reasons unrelated...
To continue reading
Request your trial
-
Adair Standish Corp. v. N.L.R.B.
...complete evidence" concerning the operations of either the company as a whole or the Standish plant. Cf. NLRB v. Price's Pic-Pac Supermarkets, Inc., 707 F.2d 236, 240 (6th Cir.1983) (discounting employer's statements where employer "failed to present either to the ALJ or to the Board the fi......
-
Peabody Coal Co. v. N.L.R.B., s. 82-1220
...the protection of the First Amendment. Gissell, 395 U.S. at 618, 89 S.Ct. at 1942 (emphasis added). In NLRB v. Price's Pic-Pac Supermarkets, Inc., 707 F.2d 236, 240 (6th Cir.1983), the court held that company predictions of plant closure in the event of a union victory were not factual pred......
-
Lee v. N.L.R.B.
...before the Board is barred from judicial review by section 10(e) of the Act, 29 U.S.C. § 160(e)); NLRB v. Price's Pic-Pac Supermarkets, Inc., 707 F.2d 236, 241 (6th Cir.1983) (refusing to reach the merits of a claim because it was never presented to the Board and was, therefore, barred unde......
-
Uforma/Shelby Business Forms, Inc. v. N.L.R.B.
...the issue differently upon de novo review. See W.F. Bolin Co. v. NLRB, 70 F.3d 863, 871 (6th Cir.1995); NLRB v. Price's Pic-Pac Supermarkets, Inc., 707 F.2d 236, 240 (6th Cir.1983). We generally defer to the credibility determinations of the Board, and "will not normally substitute [our] ju......