N.L.R.B. v. Okun Bros. Shoe Store, Inc.

• Decision Date: 29 July 1987
• Docket Number: No. 85-6038,85-6038
• Citation: 825 F.2d 102
• Parties: 125 L.R.R.M. (BNA) 3343, 56 USLW 2131, 107 Lab.Cas. P 10,067 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. OKUN BROTHERS SHOE STORE, INC., Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 102

825 F.2d 102

125 L.R.R.M. (BNA) 3343, 56 USLW 2131,

107 Lab.Cas. P 10,067

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. OKUN BROTHERS SHOE STORE, INC., Respondent.

No. 85-6038.

United States Court of Appeals, Sixth Circuit.

Argued Oct. 16, 1986.

Decided July 29, 1987.

Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., Washington, D.C., Helen Morgan, Steven Smith (argued), Bernard Gottfried, Director, Region 7, N.L.R.B., Detroit, Mich., for petitioner.

John J. Mallon (argued), Troy, Mich., Terence Brennan, for respondent.

Before ENGEL, JONES and KRUPANSKY, Circuit Judges.

ENGEL, Circuit Judge.

The National Labor Relations Board seeks enforcement of its order issued July 19, 1985 and reported at 275 N.L.R.B. 1019. The Board found that respondent Okun Brothers Shoe Store, Inc., had violated section 8(a)(1) of the National Labor Relations Act by threatening its employees with reduction in hours if they chose union representation, by interrogating an employee concerning union activities, and by soliciting employee grievances with an implied promise to correct them if the employees rejected union representation. 29 U.S.C. Sec. 158(a)(1) (1982). In addition to the posting of the usual notices the Board directed that a representation election, held on May 26, 1981 and resulting in a 19-19 tie vote, be set aside and that a new election be conducted.

We uphold the Board's determination that the respondent was guilty of a section 8(a)(1) violation by threatening employees with a reduction in hours and therefore uphold as well its order for a new election. We conclude, however, that substantial evidence does not support the Board's determination of the other two violations.

The respondent Okun Brothers Shoe Store, Inc., is a family-owned retail shoe outlet that has been in operation in Kalamazoo for approximately sixty years. The most recent owner of the store was Leon Okun, but at the time of the events giving rise to this action, Leon had been compelled to withdraw from active management due to serious illness. As a result, the duties of general manager and chief executive officer of the store fell upon Leon's brother Marvin, who was obliged to divide his time between the shoe store and his own insurance company in Kalamazoo. In the winter and early spring of 1981 the United Food and Commercial Workers International Union, AFL-CIO, instituted a campaign to organize the shoe store employees, and on April 13, 1981 a representation petition was filed, followed on April 30 by a stipulation for certification upon consent election. This was approved by the regional director of the Board, and an election was scheduled and held May 26, 1981. At that time forty-three employees comprised the bargaining unit and the election resulted in a 19-19 tie vote, which of course spelled defeat for the union.

The union later filed objections to the election, and a resulting consolidated unfair labor practice proceeding led to a hearing in Kalamazoo on June 25 and 26, 1982 before an administrative law judge (ALJ) who thereafter issued the order now sought to be enforced.

The evidence presented to the ALJ and embodied in the record before the Board and before us shows that approximately one month before the scheduled election Assistant Manager Cris Nezamus approached two employees, Smirle Weston and Tony O'Brien in the break area of the store and said something about the employees voting in a union and their hours probably getting cut. Nezamus also said that any action regarding employee hours would probably be taken care of by the store manager, Charlie Steele. Both Weston and O'Brien testified that Nezamus said that the employees would be cut down to a forty-hour week if they voted in the union, at least a ten- to twelve-hour reduction from the hours then being assigned each week. Ostensibly the conversation began when Nezamus expressed uncertainty as to whether he should personally join the union. Weston's reaction to Nezamus' comments was somewhat ambivalent. He testified at one time that he understood those statements to be threats although in an earlier affidavit he had testified that Nezamus may have been talking to himself. O'Brien for his part testified that the employees were never sure whether Nezamus spoke for the company or for himself and it was evident that O'Brien had little respect for or fear of Nezamus. Apparently Nezamus had tried to fire O'Brien once, but he did not succeed.

About a week after the first incident, Nezamus asked employee Weston how many employees he thought had signed up; Weston assumed that Nezamus meant how many had signed up to vote for the union and replied that he thought they had twenty-five employees. Weston then testified that Nezamus again was wondering whether he should join the union, but acknowledged that Nezamus seemed more curious than anything.

Finally, during the period immediately preceding the election, Okun Brothers hired the management consultant firm of Craft and Barresi to assist it in communicating the management's position regarding unionization. Representatives from the consulting firm were present in the store from one to three weeks prior to the election. Eerbeck, one of the consultants, confirmed Marvin Okun's testimony that the company had been hired to help answer employees' questions regarding the upcoming election, to provide relevant information, and to listen to any concerns employees might have. The consulting firm also held employee meetings at which it described election procedure and solicited questions from the employees. During at least some of these meetings the question of an employee handbook was raised; the possibility of a handbook had been previously discussed between the employees and the consultants and by the employees at union meetings. The lead member of the consulting team said, "I can't promise you that our company would be hired to write an employee handbook; but we have written them in the past, and they cover all the fringe benefits that you are talking about. Because we have experience in these matters, we can get this done very quickly." In response to an employee question, another consultant stated that there was no recourse for employees if a handbook turned out to be one-sided or strictly pro-management. Throughout the meetings with the employees, the consultants and the store manager were very careful to point out that they could make no promises to the employees because of the strictures placed upon employer action by the National Labor Relations Act.

It is hornbook law of course that we must uphold and enforce the decision of the Board if substantial evidence on the record as a whole supports its findings, even though we might justifiably have made a different choice had the matter been before the court de novo. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951); Dayton Typographic Service, Inc. v. NLRB, 778 F.2d 1188, 1191 (6th Cir.1985); Union Carbide Corp. v. NLRB, 714 F.2d 657, 660 (6th Cir.1983).

The test for determining whether an employer has violated section 8(a)(1) is whether the employer's conduct tends to be coercive or tends to interfere with the employees' exercise of their rights. NLRB v. Norbar, Inc., 752 F.2d 235, 238 (6th Cir.1985). In making this determination, the Board considers the total context in which the challenged conduct occurs and is justified in viewing the issue from the standpoint of its impact upon the employees. NLRB v. E.I. DuPont de Nemours, 750 F.2d 524, 528 (6th Cir.1984) (citing Henry I. Siegel Co. v. NLRB, 417 F.2d 1206, 1214 (6th Cir.1969)). This assessment should take into account "the economic dependence of the employees on their employers, and the necessary tendency of the former, because of that relationship, to pick up intended implications of the latter that might be more readily dismissed by a more disinterested ear." Peabody Coal Co. v. NLRB, 725 F.2d 357, 363 (6th Cir.1984) (quoting NLRB v. Gissel Packing Co., 395 U.S. 575, 617, 89 S.Ct. 1918, 1941, 23 L.Ed.2d 547 (1969)).

I.

In determining whether Cris Nezamus' statements to employees Weston and O'Brien tended to restrain them in the exercise of their rights, it is necessary of course to examine the context in which those statements were made. Okun Brothers asserts that Nezamus' statements regarding a cut in hours were only predictions or opinions of what would occur if the employees should vote in the union. However Weston testified that he understood the statements to be threats, and O'Brien testified that he was never sure when Nezamus acted on his own or when he represented management even though he did not generally listen to Nezamus "unless it suited him." Predictions or opinions concerning the effect of unionization must be based on objective fact in order to insulate an employer from a charge of violation of the Act. NLRB v. Gissel Packing Co., 395 U.S. 575, 618-20, 89 S.Ct. 1918, 1942-43, 23 L.Ed.2d 547 (1969). The record shows no factual basis for Nezamus' statements.

Weston was apparently the only employee to testify that he felt threatened by Nezamus' statements. Normally the uncorroborated testimony of an interested party does not amount to substantial evidence of an unfair labor practice. See NLRB v. Otsego Ski Club-Hidden Valley, Inc., 542 F.2d 18, 19 (6th Cir.1976); NLRB v. Elias Bros. Big Boy, Inc., 327 F.2d 421, 426 (6th Cir.1964). However, where the testimony is uncontradicted and properly found to be credible, that testimony may be substantial evidence to support the Board's determination. Union Carbide Corp. v. NLRB, 714 F.2d 657, 662 (6th Cir.1983). There was no contradiction by anyone from Okun Brothers concerning Nezamus' statements although there were internal inconsistencies in the testimony of the two employees as to the precise words used.

Respondent's principal defense to the unfair labor practice charge was either to deny or at least...