Autozone, Inc. v. N.L.R.B.
| Decision Date | 24 April 1996 |
| Docket Number | Nos. 94-6280,94-6408,s. 94-6280 |
| Citation | 83 F.3d 422 |
| Parties | 152 L.R.R.M. (BNA) 2384 NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. AUTOZONE, INC., Petitioner Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent Cross-Petitioner. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Before: NELSON and SILER, Circuit Judges; and WISEMAN, District Judge. *
This case comes before this Court on petition of AutoZone, Inc. ("AutoZone") for review of a decision and an order rendered on September 30, 1994 by the National Labor Relations Board (the "Board"). On cross-application, the Board seeks enforcement of the order. We DENY AutoZone's petition to set aside the decision of the Board. Furthermore, we GRANT in full the Board's cross-application for enforcement of its order.
AutoZone is engaged in the distribution and sale of automotive parts throughout the continental United States. Among its nationwide distribution centers is a facility located in Greenville, South Carolina. The events of this case arose during an effort by the General Drivers, Warehousemen and Helpers, Local No. 28, International Brotherhood of Teamsters, AFL-CIO (the "Union") to seek representation of employees at this facility in Greenville.
In October or November of 1992, the Union began an organizing campaign among the employees at the Greenville distribution center. By January 6, 1993, the campaign culminated to the point of recognition demand, and on the following day, January 7, the Union filed a representation petition with the Board. By a letter dated January 8, Greenville Distribution Center Manager Rick Ferguson declined the Union's demand for recognition. On January 11, Ferguson posted a notice to all personnel, advising them of the Union's petition and of AutoZone's opposition. On January 27, the Board's Regional Director approved a stipulation by both AutoZone and the Union that a representation election be held on March 5, 1993 among employees in an agreed-upon bargaining unit.
The Union lost the election. Of approximately 203 eligible voters, 57 voted in favor of union representation and 135 voted against, with two challenged ballots. Thereafter, the Union filed objections to AutoZone's conduct, allegedly affecting the election results. Certain of these objections were subsequently consolidated for hearing with a complaint issued by the Board's Regional Director alleging unfair labor practices against AutoZone.
AutoZone's unlawful conduct first surfaced on January 20, when Supervisor Timothy Schlichting, in the presence of Supervisor Eddie Massey and Personnel Manager Jim Wartinger, removed three or four letter-sized union flyers from a bulletin board, used by employees for sales notices and other personal notes, in the Company canteen. Schlichting, however, did not remove the antiunion materials also posted on the board. Having observed Schlichting's removal of the flyers, employee Reuben Rice complained to Vice President Dennis Roberts about the removal shortly after Schlichting's actions; the flyers were reposted later that day.
AutoZone uses a pay increase procedure that includes an annual pay "adjustment" for the employees at its various distribution centers, each having its own wage scale. The annual increase is determined separately for each distribution center by its local management and is not guaranteed. In fact, the increase is granted only if a wage survey shows a given distribution center's payscale is not competitive within its geographic area. Once the information is collected, Vice President Roberts reviews it and then makes a recommendation to AutoZone's president. In 1991, AutoZone began conducting its wage surveys and analysis in December, with wage adjustments being made in January 1993.
On a routine visit in November 1992 to the Greenville Distribution Center, Roberts was approached by several employees, asking about a wage increase and if so how much. Roberts replied to the best of his knowledge that he expected a wage increase between 4 to 5 percent, but this figure was not yet confirmed. About two weeks later, Roberts returned to Greenville, where both he and management met with small groups of employees to convey the same information about the wage increase. In addition, they added that AutoZone was awaiting the results of a labor market analysis being done in its Phoenix, Arizona distribution center by the Hay Group. If the Phoenix survey showed AutoZone's wages not to be competitive there, AutoZone would then assume its other distribution centers were also not competitive and initiate wage surveys in those areas.
In mid-December 1992, Vice President Roberts received a copy of the Hay Group survey, which indicated that AutoZone's pay was no longer competitive in the Phoenix area. In response, Roberts issued instructions to begin wage surveys for all distribution center areas, including Greenville. Having received all the data for AutoZone's distribution centers, Roberts reviewed the material and passed on his wage increase recommendations for all the distribution centers, except for Greenville. Roberts placed the Greenville wage data aside; he did not perform his analysis or finalize a recommendation regarding a pay adjustment for the Greenville Distribution Center. On January 11, 1992, AutoZone's president approved Roberts' recommendations with some modification.
According to the data from the wage surveys at the other distribution centers, the wage adjustment at Greenville, had it been made, would have been greater than 5 percent. Furthermore, if the adjustment had been implemented at Greenville, it would have been effective for the pay period beginning January 3, 1993.
On January 22, 1993, Vice President Dennis Roberts and Manager Rick Ferguson made a joint speech to the Greenville employees. After a few introductory comments, Ferguson emphasized that "We do not want the teamsters or any other union in our operation!!". He added, "We are completely and entirely against this union getting in here and we will take every legal step available to keep it out!!". Roberts, delivering the second half of the speech, stated:
The other issue I want to discuss has to do with the status of pay increases at this [distribution center]. A number of you have asked when or if the 4 to 5 percent increase we had mentioned back in December would be going through. You need to understand that the numbers we mentioned in December were a tentative forecast only. After that time, we decided to re-evaluate the pay situation in this market. Before we were able to gather all the data we needed and reach a final decision, however, the Teamsters' petition came in. Our understanding of the law is that we cannot make changes in the pay or benefits once a petition comes in, unless the decision had been finalized beforehand. We very much regret that the union's poor timing has now tied our hands, but we do not intend to violate the law. The thing to keep in mind, though, is that once the union is beaten in the election--and we feel confident that is exactly what is going to happen here--then we will be able to move forward, free of the restrictions that we now live under. We're sorry we cannot be more specific than that now, but we wanted you to understand the legal status of your pay increase at this time.
AutoZone then conducted a question-and-answer session following this speech. In response to a question concerning pay increases at the other distribution centers, Ferguson responded that the average increase was between 12 and 15 percent.
On February 11, 1993, several members of the Union's organizing committee approached Ferguson and Roberts to discuss a problem concerning, in essence, discriminatory practice by AutoZone. Reuben Rice, an AutoZone employee, read to them a short handwritten note protesting a company practice of allowing antiunion employees to walk around the facility during work time making antiunion statements to other employees, while prohibiting union supporters from campaigning for the Union during work time. Two days before this meeting, Supervisor Schlichting told employee Stanley Wilson that he would be discharged if he were caught discussing the Union on the job.
Later that day, AutoZone assembled all employees, and Ferguson told them there would be no talking whatsoever either for or against the Union during work time. He further stated that such discussion was hampering production and that violators would be subject to discipline, including discharge. This restriction was not in effect during their personal time at breaks, lunch, and before or after work; employees could discuss any topic during these times. Despite these warnings, AutoZone's policy concerning employee conversation remained in effect. That is, employees were permitted to carry on conversations during work as long as it did not interfere with their work.
In mid-February, Supervisor Barbara Cunningham told employees during a meeting that any discussion regarding the Union would lead to their being terminated.
Around the same time, Supervisor Marshall Hurley told employees, including employee Robin Delk, who were talking in the rest room line that they should not be talking about the Union.
On another occasion in mid-February, housekeeping employee James Andrews, while cleaning lavatories in the women's rest room, stopped two female employees coming in to use the facility. Andrews spoke with the two about Union health benefits, which was an issue in the campaign. As a result of the discussion, the women were delayed from...
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