N.L.R.B. v. Joe B. Foods, Inc.

• Decision Date: 06 January 1992
• Docket Number: No. 90-1146,90-1146
• Citation: 953 F.2d 287
• Parties: 139 L.R.R.M. (BNA) 2323, 120 Lab.Cas. P 11,059 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. JOE B. FOODS, INCORPORATED doing business as Butera Finer Foods, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 287

953 F.2d 287

139 L.R.R.M. (BNA) 2323, 120 Lab.Cas. P 11,059

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. JOE B. FOODS, INCORPORATED doing business as Butera Finer Foods, Respondent.

No. 90-1146.

United States Court of Appeals Seventh Circuit.

Argued June 4, 1991.

Decided Jan. 6, 1992.

Elizabeth Kinney, Chicago, Ill., Aileen A. Armstrong, William M. Bernstein (argued), Appellate Court, Enforcement Litigation, Washington, D.C., for petitioner.

John J. Mallon, Brian M. Smith (argued), Smith & Associates, Troy, Mich., for respondent.

Before COFFEY, RIPPLE, and MANION, Circuit Judges.

RIPPLE, Circuit Judge.

The National Labor Relations Board (the Board) seeks enforcement of its order against Joe B. Foods, Inc. d/b/a Butera Finer Foods. For the following reasons, we enforce the order.

I BACKGROUND

On December 24, 1986, Joe B. Foods, Inc. (Joe B. Foods), a corporation formed by Joseph Butera, purchased from Certified Grocers of Illinois Wholesale, Inc. (Certified) three Chicago supermarkets at 4608 West Belmont Avenue, 3518 West Division Street, and 3939 West Ogden Avenue.

During its ownership, Certified had recognized United Food and Commercial Workers Local 546 (the Union) as the bargaining representative of the employees of the three stores' meat and fish departments. Each of the three meat and fish departments was a separate bargaining unit, and Certified signed separate, though identical, collective bargaining agreements for each unit. Bargaining for all three units was conducted in a single session. The Ogden Avenue store's collective bargaining agreement defined the bargaining unit as "all employees in the meat department of said Employer who process, pack, wrap, handle, price and sell frozen and fresh meats on Employer's premises."

After Joe B. Foods bought the three supermarkets, Yvonne Harris, Certified's store manager at the Ogden Avenue store, distributed employment applications to store employees, including employees of the fish and meat department, for employment with Joe B. Foods. At this time seven employees were working regularly in the meat department: Tom Ademak, the meat manager; Arthur Bradley, Fred Feller, and John Russell, journeymen meatcutters; Marilyn Bell, wrapper; Gus Rodriquez, fish man; Emanuel Rodriquez, fish man and wrapper.

After the change of ownership, the Ogden Avenue store was closed for remodeling from late January to February 26, 1987. During this time, Mr. Butera interviewed the employees from Certified's Ogden Avenue meat department. All were offered jobs. With the exception of Tom Ademak, who declined Mr. Butera's job offer, all of Certified's Ogden Avenue meat department employees came to work for Joe B. Foods, occupied the same job classifications, and performed the same work as they had for Certified.

In addition to the former Certified employees, the new Joe B. Foods meat department employed Steve Butera as meat department manager, Paul Palazzolo as back room boss and meat manager trainee, and Frank Palazzolo as a meatcutter and back room boss trainee. On March 6, Joe B. Foods hired Stanley Sokolowski as a back room meat manager and meat manager trainee. Several utility clerks were also hired: Chris Hill, James Presley, Michael Williams, Harold Wells, and Chris Minter. The primary duties of the utility clerks were bagging chickens and cleaning up. They also assisted the meat wrapper by "catching" meat after it had been wrapped, placing trays of meat in the cooler, and putting price labels on wrapped meat.

Operation of the meat department was essentially unaltered. During remodeling, Joe B. Foods installed rails so that the meat department could handle hanging quarters of meat; however, the store continued to receive 70 to 80 percent of its meat and fish in boxes, and the employees processed it in the same manner they had when the store was under Certified's ownership. The employees used the same tools and equipment, much of which Joe B. Foods had purchased from Certified. Joe B. Foods obtained its meat mostly from the suppliers that had previously supplied Certified. The meat department remained located in the rear of the store where it had been during Certified's ownership.

On April 16, the Union wrote to Joe B. Foods and asked to bargain. On April 21, Joseph Butera announced plans to install a 401(k) pension plan. On April 24, Joe B.

Foods refused to bargain with the Union, and Joseph Butera chided the meat department workers for seeking union representation.

The other two stores purchased by Joe B. Foods from Certified were reopened on May 13 and June 19.

II THE BOARD PROCEEDINGS

This case came first before an Administrative Law Judge (the ALJ) on the Union's complaint that Joe B. Foods refused to bargain, unilaterally instituted a new pension plan, and threatened employees concerning union membership. The ALJ found that the meat department of the Ogden Avenue store remained an appropriate bargaining unit, that Joe B. Foods was obligated to bargain as the successor of Certified, and that its refusal to bargain was a violation of section 8(a)(1) and section 8(a)(5) of the National Labor Relations Act. 29 U.S.C. § 158(a)(1) & (5). The ALJ also determined that, because pension plans are mandatory subjects of bargaining, Joe B. Foods' unilateral establishment of a new pension plan was an unfair labor practice. Moreover, he determined that, although the anti-union language used by Joseph Butera might have been permissible during an election campaign, his statement was a violation of section 8(a)(5) because it occurred at a time when the employer was refusing to bargain in violation of section 8(a)(5). He further determined that the language was also a violation of the section 7 rights of the employees. The ALJ recommended an order requiring Joe B. Foods to cease and desist from refusing to recognize and bargain with Local 546, from making unilateral changes in terms and working conditions of bargaining unit employees, and from coercively interrogating or threatening employees concerning union activities and membership. The order also required Joe B. Foods to post a notice at its stores, announcing that it would not refuse to recognize and bargain with Local 546, that it would not change unilaterally the wages, hours, and working conditions of bargaining unit employees, and that it would not threaten employees or otherwise interfere with their exercise of rights guaranteed by section 7 of the National Labor Relations Act.

The Board affirmed the ALJ's rulings, findings and conclusions and adopted the ALJ's recommended order. It then applied to this court for enforcement of that order. In reply, Joe B. Foods challenges the Board's finding of successorship and asks that we deny enforcement.

III ANALYSIS

A. Applicable Standards

We have jurisdiction to consider the Board's petition for enforcement under 29 U.S.C. § 160(e). Section 160(e) also provides our standard of review: findings of fact by the Board are "conclusive" if they are supported by "substantial evidence on the record considered as a whole." See U.S. Marine Corp. v. NLRB, 944 F.2d 1305, 1313-14 (7th Cir.1991); see also NLRB v. United Ins. Co., 390 U.S. 254, 260, 88 S.Ct. 988, 991, 19 L.Ed.2d 1083 (1968); Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 465, 95 L.Ed. 456 (1951). This standard of review "does not allow us to dabble in factfinding, and we may not displace reasonable determinations simply because we would have come to a different conclusion if we reviewed the case de novo." NLRB v. P*I*E Nationwide, Inc., 923 F.2d 506, 513 (7th Cir.1991). The "Board's application of the law to particular facts is also reviewed under the substantial evidence standard, and the Board's reasonable inferences may not be displaced on review even though the court might justifiably have reached a different conclusion had it considered the matter de novo." U.S. Marine, 944 F.2d at 1314 (quoting Indianapolis Power & Light Co. v. NLRB, 898 F.2d 524, 529 (7th Cir.1990). Cf. NLRB v. Don's Olney Foods, Inc., 870 F.2d 1279, 1281 (7th Cir.1989) (deferential standard of review applied to NLRB determination, both as to facts, and as to statutory interpretation, because "it is a statute the Board is entrusted with enforcing.").

B. The Successorship Issue

Under the doctrine of successorship, if an employer carries on a newly-acquired business in substantially the same manner as its predecessor and hires a majority of its employees from the predecessor, it is obligated to bargain with the union that represented those employees under its predecessor. See Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 39-41, 107 S.Ct. 2225, 2233-35, 96 L.Ed.2d 22 (1987); NLRB v. Burns Int'l Sec. Servs., Inc., 406 U.S. 272, 279, 92 S.Ct. 1571, 1577, 32 L.Ed.2d 61 (1972). A primarily factual approach, based on the totality of the circumstances of a given situation, is used to determine whether a new company is indeed a successor to the old. Fall River Dyeing, 482 U.S. at 43, 107 S.Ct. at 2236. "[T]he focus is on whether there is a 'substantial continuity' between the enterprises ... whether the business of both employers is essentially the same; whether the employees of the new company are doing the same jobs in the same working conditions under the same supervisors; and whether the new entity has the same production process, produces the same products, and basically has the same body of customers." Id. The " 'triggering' fact for the bargaining obligation" is the "composition of the successor's work force." Id. at 46, 107 S.Ct. at 2237. The composition of the successor's work force is measured when a "substantial and representative complement" of employees in the bargaining unit has been hired. Id. at 47, 107 S.Ct. at 2238.

Joe B. Foods' challenge to the Board's finding of successorship raises two separate groups of issues. First, Joe B. Foods contends that the Board erred in determining that...