N.L.R.B. v. J. Coty Messenger Service, Inc.

Decision Date29 May 1985
Docket NumberNo. 911,D,911
Parties119 L.R.R.M. (BNA) 2779, 53 USLW 2630, 103 Lab.Cas. P 11,511 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. J. COTY MESSENGER SERVICE, INC., Respondent. ocket 84-4162.
CourtU.S. Court of Appeals — Second Circuit

Patrick J. Szymanski, Washington, D.C. (Rosemary M. Collyer, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Andrew F. Tranovich, Linda B. Weisel, N.L.R.B., Washington, D.C., of counsel), for petitioner.

Lloyd Somer, New York City, for respondent.

Before MESKILL and PRATT, Circuit Judges, and EDMUND L. PALMIERI, District Judge for the Southern District of New York, sitting by designation.

GEORGE C. PRATT, Circuit Judge:

The National Labor Relations Board seeks enforcement of an order entered on September 24, 1984, after it found respondent J. Coty Messenger Service, Inc. ("Coty") had violated Secs. 8(a)(1) and 8(a)(3) of the National Labor Relations Act (the "act"). 29 U.S.C. Sec. 158(a)(1) and (3). The order requires Coty to cease and desist from various unfair practices, to reinstate an employee with back pay, and to bargain with the Amalgamated Messenger Union, Local 38-A, Service Employees International Union, AFL-CIO (the "union"), as the exclusive representative of Coty foot messenger employees. With the exception of that portion of the order requiring Coty to bargain with the union, we grant enforcement.

BACKGROUND

Coty, a family owned messenger service with an office in Manhattan, employed approximately thirty-one individuals as foot messengers in April 1981. Richard Cotogno, who is vice-president, secretary, and treasurer of the corporation, controls its daily operations. The rest of the staff at the Manhattan office consists of four dispatchers.

In the Spring of 1981, the union began an organizational campaign among foot messengers working in New York City. Two of Coty's messengers, Anthony Caravello and Luis Olan, who had attended a union meeting and signed union authorization cards, agreed to solicit additional cards from Coty's other messengers. During the next few days, the two men spoke in favor of the union and gathered at least nineteen more signed union authorization cards. On April 24, with cards from at least twenty-one of Coty's thirty-one messenger employees, the union filed a petition for certification with the board. On May 4, the union filed a charge against Coty alleging violations of Secs. 8(a)(1) and 8(a)(3) of the National Labor Relations Act.

After a hearing, the administrative law judge issued a decision finding that Coty had repeatedly violated Sec. 8(a)(1) of the act by: promising bonuses and increased benefits to discourage employee support for the union; threatening employees with closure of the business and discharge if the union became their collective bargaining representative; interrogating employees concerning their union activities; and influencing A three member panel of the board, with one member dissenting in part, affirmed the judge's findings, conclusions and rulings and adopted the recommended order with minor modifications. The board now petitions for enforcement of its order. In response, Coty contends that it did not commit any unfair labor practices, and that even if it did, a bargaining order is not warranted under the circumstances.

a former employee to ignore a subpoena validly issued by the board. The ALJ also found that Coty violated Secs. 8(a)(1) and (3) by discharging Anthony Caravello for his union activities and by granting its employees a bonus to discourage support for the union. Based on these violations, the judge issued a recommended order requiring Coty to cease and desist from the found unfair labor practices or from interfering in any way with its employees' exercise of their collective bargaining rights, to offer Caravello immediate reinstatement with back pay, and to bargain, upon request, with the union as the exclusive representative of the messengers.

DISCUSSION
A. The Unfair Labor Practices.

The scope of our review of the board's findings that an employer committed unfair labor practices is quite limited. N.L.R.B. v. Knogo Corp., 727 F.2d 55, 59 (2d Cir.1984). Coty's claims are almost entirely factual and must be rejected if there is substantial evidence in the record to support the board's conclusions. N.L.R.B. v. Heads & Threads Co., a Division of MSL Industries, Inc., 724 F.2d 282, 287 (2d Cir.1983). The findings of the board cannot be lightly overturned, particularly when they are based upon the board's assessment of witness credibility. N.L.R.B. v. American Geri-Care, Inc., 697 F.2d 56, 60 (2d Cir.1982), cert. denied, 461 U.S. 906, 103 S.Ct. 1876, 76 L.Ed.2d 807 (1983). Indeed, credibility findings made by an ALJ and accepted by the board cannot be overturned unless they are "hopelessly incredible" or they "flatly contradict" either the "law of nature" or "undisputed documentary testimony." Id. (citing N.L.R.B. v. Columbia University, 541 F.2d 922, 928 (2d Cir.1976) and N.L.R.B. v. Dinion Coil Co., 201 F.2d 484, 490 (2d Cir.1952)). Bearing in mind the limited nature of our review, we briefly address Coty's contentions.

1. Additional Benefits.

An employer violates Sec. 8(a)(1) of the act when it grants or promises to grant benefits to discourage employee support for a union. See, e.g., N.L.R.B. v. Exchange Parts Co., 375 U.S. 405, 409, 84 S.Ct. 457, 459-60, 11 L.Ed.2d 435 (1964); N.L.R.B. v. Jamaica Towing, Inc., 632 F.2d 208, 212 (2d Cir.1980); N.L.R.B. v. International Metal Specialties, Inc., 433 F.2d 870, 871-72 (2d Cir.1970), cert. denied, 402 U.S. 907, 91 S.Ct. 1378, 28 L.Ed.2d 647 (1971). An employer may not engage in any conduct immediately favorable to the employees if it is undertaken with the express purpose of impinging upon their choice for or against a union. Exchange Parts Co., 375 U.S. at 409, 84 S.Ct. at 459-60. Coty contends that it never gave or promised benefits in order to thwart the union campaign.

Cotogno testified that he had decided far in advance of the union organizing campaign to begin awarding bonuses for employee punctuality to remedy a tardiness problem. But one of Coty's messengers testified that when Cotogno announced the bonus plan at a meeting of the messengers, he said that it was "to stop the union, you know, to avoid it." Another messenger testified that Cotogno told them that he could not afford a union and that the best he could do was to offer them a bonus for good attendance. The ALJ specifically discredited Cotogno's contention that the bonus plan had been under consideration before the union campaign and found similar testimony by the dispatchers to be contradictory and unreliable.

Further, several messengers testified that Cotogno offered additional employee benefits during the meeting. Cotogno claimed that he only described existing benefits, and in fact had told the employees that the company could not afford to give them medical benefits. But he admitted that several employees had been asking about medical coverage and that he told them at the meeting that "it was an additional benefit, which was up in the air." Messengers testified that he said he was going to give them medical care and that they had never heard of the other "existing" benefits Cotogno described at the meeting, such as the pension plan and the life insurance plan. In view of this testimony, the ALJ reasonably rejected Cotogno's assertion that he had only described existing benefits and had rejected the possibility of medical benefits.

Faced with the employees' testimony, with Cotogno's conflicting testimony, and with the fact that the offer of benefits came at a meeting held to discuss the union and in response to employee questions about what they could expect from the company, the ALJ's and the board's conclusion that Cotogno offered benefits to thwart employee support for the union is fully justified by the record.

2. Threats to Employees.

Coty challenges the board's findings that Cotogno threatened to discharge an employee for engaging in union activities and to close the company if employees voted for a union and that he engaged in coercive interrogation of the messengers about their union activities. Such conduct, if it occurred, violates Sec. 8(a)(1) of the act. See, e.g., N.L.R.B. v. Pace Oldsmobile, Inc., 681 F.2d 99, 100 (2d Cir.1982) (threatened discharge prohibited); N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, 618-20, 89 S.Ct. 1918, 1942-43, 23 L.Ed.2d 547 (1969) (threatened closure prohibited); Jamaica Towing, Inc., 632 F.2d at 212 (threats of closure or loss of employment prohibited); N.L.R.B. v. Solboro Knitting Mills, Inc., 572 F.2d 936, 939-40 (2d Cir.), cert. denied, 439 U.S. 864, 99 S.Ct. 188, 58 L.Ed.2d 174 (1978) (coercive interrogation of employees prohibited); N.L.R.B. v. Gladding Keystone Corp., 435 F.2d 129, 132 (2d Cir.1970) (same).

The board found that Cotogno threatened messenger Rodriguez by telling him that his job depended on refraining from joining the union. In view of the conflicting nature of the testimony by Rodriguez, who first said that Cotogno told him he could have his job back if he did not join the union, and then later said Cotogno told him that he would be fired from his job if he joined the union, the dissenting member of the panel disagreed with this finding. But the ALJ had specifically recognized the conflict in the testimony and found that "[w]hat emerges from Rodriguez' testimony is that at some point during the course of his employment * * * Cotogno * * * told Rodriguez that his job depended on his refraining from joining the Union." Since this credibility assessment by the ALJ, which was accepted by a majority of the board, is not "hopelessly incredible", American Geri-Care, Inc., 697 F.2d at 60, we have no reason to disturb it.

Coty hardly addresses the...

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