763 F.2d 92 (2nd Cir. 1985), 911, N.L.R.B. v. J. Coty Messenger Service, Inc.

Docket Nº:911, Docket 84-4162.
Citation:763 F.2d 92
Case Date:May 29, 1985
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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763 F.2d 92 (2nd Cir. 1985)




No. 911, Docket 84-4162.

United States Court of Appeals, Second Circuit

May 29, 1985

Argued March 18, 1985.

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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.


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

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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.

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.


  1. 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...

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