N.L.R.B. v. Horizon Air Services, Inc., 84-1869

• Decision Date: 26 April 1985
• Docket Number: No. 84-1869,84-1869
• Citation: 761 F.2d 22,119 L.R.R.M. 2203
• Parties: 119 L.R.R.M. (BNA) 2203, 102 Lab.Cas. P 11,457 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HORIZON AIR SERVICES, INC., Respondent.
• Court: U.S. Court of Appeals — First Circuit

Page 22

761 F.2d 22

119 L.R.R.M. (BNA) 2203, 102 Lab.Cas. P 11,457

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HORIZON AIR SERVICES, INC., Respondent.

No. 84-1869.

United States Court of Appeals,

First Circuit.

Argued March 8, 1985.

Decided April 26, 1985.

Victoria A. Higman, Washington, D.C., with whom Linda Dreeben, Rosemary M. Collyer, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Associate Gen. Counsel, and Elliott Moore, Deputy Associate Gen. Counsel, Washington, D.C., were on brief for petitioner.

Philip G. Boyle, Boston, Mass., with whom Patricia A. Day and Holland, Crowe & Drachman, Boston, Mass., were on brief for respondent.

Before BREYER and TORRUELLA, Circuit Judges, and SELYA, ^* District Judge.

SELYA, District Judge.

The National Labor Relations Board (Board) asks us to enforce its order of September 24, 1984, finding Horizon Air Services, Inc. (Horizon) guilty of unfair labor practices in violation of Secs. 8(a)(1), (3), and (5) of the National Labor Relations Act (the Act), 29 U.S.C. Secs. 158(a)(1), (3), and (5), and ordering Horizon to bargain with the International Association of Machinists and Aerospace Workers, AFL-CIO (Union). The Board found, ¹ in substance, that Horizon had: (i) coercively interrogated employees concerning union activities (their own and those of other employees) and threatened workers with discharge and plant closure if they engaged in organizing activities or if the union became the collective bargaining representative, in violation of Sec. 8(a)(1) of the Act; (ii) taken punitive actions against pro-Union workers, e.g., fired off a written warning to a Union adherent and reduced his working hours, discharged two employees for Union activity, and implemented new working conditions among its employees, all in violation of Secs. 8(a)(1) and (3) of the Act; and (iii) refused to recognize and bargain in good faith with the Union as the collective bargaining representative for Horizon's employees, in violation of Secs. 8(a)(1) and (5) of the Act.

In his order of December 30, 1983, the ALJ directed Horizon to cease and desist from the melange of unfair labor practices which had occurred, to reinstate the two discharged employees with backpay (and, ancillary thereto, to expunge any memorialization of the firings and to preserve records necessary to calculate backpay), to post appropriate notices, and, notwithstanding the absence of an election, to recognize and bargain with the Union. The ALJ further instructed Horizon to notify the Board's regional director of steps taken to comply with the order. In affirming the ALJ's remediative order, the Board reiterated his finding that Horizon's conduct was so egregious and pervasive that a fair election could not be held through the use of more traditional constraints. The Board therefore concluded that the bargaining order was a condign remedy in this situation.

Horizon asks us to reverse the Board's findings of unfair labor practices and contends that the issuance of a bargaining order was unwarranted and should not be enforced by this court.

I.

We acknowledge at the outset that, as to matters of fact, the pertinent standard of appellate review is whether the Board's findings are supported by substantial evidence on the record as a whole. 29 U.S.C. Sec. 160(e); see NLRB v. American Spring Bed Mfg. Co., 670 F.2d 1236, 1239 (1st Cir.1982); NLRB v. Matouk Indus., Inc., 582 F.2d 125, 128 (1st Cir.1978). We note, as well, the prudential precept that much weight must be given to the ALJ's credibility determinations. American Spring Bed Mfg. Co., 670 F.2d at 1242; NLRB v. Blue Hills Cemetery, 567 F.2d 529, 530 (1st Cir.1977). Our chore is one of appellate review only. "[I]t is not our function to retry the case on a cold record." Id. We present the facts in the manner most hospitable to the Board's determinations, consistent with requisite record support.

Horizon is a Massachusetts corporation with its principal place of business located upon the grounds of Logan International Airport in East Boston. It operates an airfreight pickup and delivery service and an associated warehouse facility at the East Boston site. The villains of the piece, in the Board's view, are Joseph Ryan (Horizon's sole shareholder and president) and Mary Turilli (vice president, operations manager, and dispatcher). Horizon utilizes sundry vans and trucks in the conduct of its business; as of May 1, 1983, it employed twelve warehousemen and drivers, who collectively comprised the bargaining unit in question. Horizon has apparently been a non-union shop since it began operations in January, 1978.

The effort to get the Union off the launching pad was initiated in mid-1983 by two then-employees, Albert Solomon and Christopher Heinz. On May 6, 1983, Solomon made initial contact with the Union. Thereafter, on May 9, he met with Heinz and with the Union's representative (Celona). By the following day, the engines were revving up: Solomon and Heinz had obtained signed authorization cards from seven of the twelve employees in the bargaining unit.

Word spread quickly to the control tower and Ryan flew to the attack. On May 11, he interviewed several employees in his office. Heinz was interrogated that morning, and the ALJ found that Ryan threatened him both with discharge and with closing the plant if a union came in to organize the workforce. Subsequently, on May 13, Ryan questioned a former employee, Leonard Torto, about the extent of union activity among Horizon's crew and about the nature of employee grievances. Torto described some of the complaints, but did not divulge the source of the incipient union groundswell. Ryan told him that there was a "cancer" in the company and that he would "cut it out." Later that day, Ryan cross-questioned another employee, Michael Fazio, about his knowledge of union activities and specifically, as to whether Heinz and Solomon were the "instigators" of such efforts. In short order, Ryan took decisive steps to abort the Union's flight plan: he discharged Heinz, handed him an envelope containing three weeks severance pay (which Heinz refused), and told him to call the company lawyer. (No contemporaneous reason was proffered for the discharge.) Ryan then grilled at least four staffers (including Fazio) as to whether or not they had signed authorization cards. And, Ryan kept a personal "hit list"--a roster of each employee and his/her professed sympathies and/or antipathies regarding unionization.

Beginning on May 16, and reflected in the paychecks of May 19, Horizon instituted the practice of giving employees paystubs showing their weekly pay, with the number of regular hours worked, the number of overtime hours worked, and the pay therefor. Prior to May 16, employees working the normal day shift from 8 a.m. to 5 p.m. were paid for eight hours of work. The practice was to pay employees straight time for work performed after 5 p.m. The changes in working conditions which were implemented as of May 16 included the payment of time and a half for overtime work and a change in the normal day shift (thereafter 8 a.m. to 4 p.m.), with overtime paid after 4 p.m. Each and all of these innovations were designed to ameliorate specific employee complaints, as previously reported by Torto to Ryan.

Solomon, too, was caught within the sweep of Horizon's protective radar. The facts regarding his discharge are as follows. On May 14, Ryan attempted to segregate Solomon from the other employees by reassigning him to an 11 p.m. to 7 a.m. shift as a night watchman. Although Ryan later rescinded this decision (apparently on the advice of counsel), Solomon, upon reporting to work on Tuesday, May 17, was told that there would be "no overtime, no nothing" for him. The record shows that Solomon did not work on May 18 due to illness. On May 20, he received a written warning for his failure to call in two days before (although he testified that he had made several attempts to do so). During the ensuing week, Solomon was repeatedly advised that there was no work for him and that he should not "bother coming in until this is over". On Saturday, May 28, Solomon received a letter stating that he was being discharged due to a "phase-out" of Horizon's van operations. Solomon's separation from Horizon's service thus became a reality. Yet, it is clear beyond peradventure that Solomon's work was performed by other employees after his discharge and that there had been no decrease in the delivery of freight by vans.

On June 9, 1983, the Union requested by letter that Horizon recognize it as the bargaining agent for the unit. The employer refused to do so. On June 14, the Union filed a petition for certification.

II.

Horizon has offered no basis or argument for overturning the Board's findings and conclusions with regard to the Secs. 8(a)(1) and (3) violations based on threats, coercive interrogations, and improvements in working conditions. So, the employer has effectively waived the right to object to these findings as erroneous. See, e.g., NLRB v. Valley Plaza, Inc., 715 F.2d 237, 240-41 (6th Cir.1983); NLRB v. Nevis Industries, Inc., 647 F.2d 905, 908 (9th Cir.1981); NLRB v. Jacob E. Decker and Sons, 569 F.2d 357, 360 (5th Cir.1978); Dreis & Krump Manufacturing Co. v. NLRB, 544 F.2d 320, 325 (7th Cir.1976). Enforcement proceedings cannot be stalemated on a wing and a prayer. Moreover, the Board's findings in these respects are clearly bulwarked by substantial--indeed, overpowering--evidence on the record as a whole and therefore should be upheld on review. 29 U.S.C. Sec. 160(e). See Universal Camera Corp. v. NLRB, 340 U.S. 474, 477-91, 71 S.Ct. 456, 459-66, 95 L.Ed. 456 (1951); American Spring Bed Mfg. Co., 670 F.2d at 1239.

Horizon does, however, dispute the Board's findings that Secs. 8(a)(1) and (3) ² were transgressed with regard to the discharges of Heinz and Solomon, claiming that the Board failed properly to...