Family Foods, Inc. v. N.L.R.B.
| Decision Date | 10 July 1992 |
| Docket Number | 91-5033,AFL-CIO-CL,I,Nos. 90-6550,s. 90-6550 |
| Citation | 968 F.2d 1214 |
| Parties | 140 L.R.R.M. (BNA) 2872 NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. FAMILY FOODS, INC., Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner, and United Food and Commercial Workers International Union, Local 951,ntervenor on Behalf of Respondent/Cross-Petitioner. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Before JONES and NORRIS, Circuit Judges, and WOODS, District Judge. *
Petitioner, Family Foods, Inc., seeks review, and the National Labor Relations Board ("NLRB") seeks enforcement, of the NLRB's decision finding that Family Foods violated federal labor law. For the following reasons, the NLRB's order is affirmed in all but two minor respects.
Family Foods owned and operated nine grocery stores in western Michigan. The instant suit involves seven of Family Foods' stores, of which six were located in the Kalamazoo area. These stores included its newest stores in Oshtemo and Portage, Michigan, which opened on November 9, 1987 and November 30, 1987, respectively. Family Foods purchased the two stores from Spartan Stores, Inc., which operated them under the name of "Harding's Friendly Foods" ("Harding's"). Employees at the Harding's stores had been represented by United Food and Commercial Workers International Union ("UFCW") Local 951, except for the meat department at Oshtemo, which had been represented by UFCW Local 539. The seventh store involved here is in Muskegon, approximately ninety miles from Kalamazoo. None of Family Foods' employees at any of the stores are presently represented by a union. Family Foods' owner and chairman is Thomas Duthler Sr. At all material times, his son, Thomas Duthler Jr. ("Duthler"), was Director of Human Resources. Family Foods' president is Jack Duggan.
On October 30, 1987, UFCW Local 951 filed a Petition for Representation Election in four separate store units consisting of all of Family Foods' full-time and part-time employees in the Kalamazoo area. On December 3, 1987, the NLRB Regional Director approved a stipulated election agreement. A representation election for all six Family Foods' Kalamazoo stores (including the two newly acquired, former Harding's stores) as a single unit was scheduled for January 14, 1988. On January 11, 1988, UFCW Local 951 filed a separate petition for election at the Muskegon Family Foods' store.
Employees cast 329 votes in the Kalamazoo election: 181 votes against UFCW Local 951 and 148 votes for UFCW Local 951. UFCW Local 951 then filed unfair labor practice charges and election objections, as well as "blocking" charges to prevent the representation election in Muskegon. UFCW Local 539 and Janie Albright, a former employee, also filed unfair labor practice charges.
The unfair labor practice charges alleged that Family Foods violated section 8(a)(1), (3) of the National Labor Relations Act ("NLRA"), 29 U.S.C. § 158(a)(1), (3). Of the unfair labor practice charges initially filed, the NLRB General Counsel included about one half in the complaint. A trial was held before an Administrative Law Judge ("ALJ") in Kalamazoo, Michigan from January 23 to 26, 1989 and from February 7 to 8, 1989.
On June 13, 1989, the ALJ found that Family Foods had committed various unfair labor practices. Specifically, the ALJ held that Family Foods had violated 29 U.S.C. § 158(a)(1), (3) (1988) by refusing to hire each and every former Oshtemo and Portage Harding's employee due to anti-union considerations. The ALJ held also that Family Foods had discriminatorily discharged Lurlean Martin at the Muskegon store for her union support, and that Family Foods had committed a variety of unfair labor practices, including coercive interrogation of several employees during the pre-election period. The ALJ ordered a remedy that required Family Foods to provide back pay to all former Harding's Oshtemo and Portage store employees, regardless of whether they applied for a job with Family Foods.
On July 31, 1989, Family Foods filed timely exceptions to the ALJ's decision. The NLRB General Counsel and UFCW Local 951 filed cross-exceptions. On October 31, 1990, the NLRB affirmed the ALJ's decision. It amended the ALJ's remedy, however, to state that Family Foods is only required to offer employment to all former Harding's employees "who openly sought employment and who would have been hired but for the ... unlawful discrimination." J.A. at 5-6.
Family Foods petitioned this Court, pursuant to NLRA, § 10(f), 29 U.S.C. 160(f) (1988), for review of the NLRB's decision. 1 The NLRB filed a cross-application, pursuant to NLRA, § 10(e), 29 U.S.C. 160(e) (1988), for enforcement of its order. On February 5, 1991, UFCW intervened on behalf of the NLRB.
Family Foods contends that the NLRB erred in finding that Family Foods unlawfully failed to hire certain applicants at its Oshtemo and Portage, Michigan stores, and that Family Foods unlawfully discharged Lurlean Martin. The standard of review on appeal in a petition for review of an NLRB decision derives from the United States Supreme Court's decision in Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951). This court, in its recent decision in NLRB v. Aquatech, Inc., 926 F.2d 538 (6th Cir.1991), set forth the following concise summary of the standard of review:
"The scope of our review of Board findings is well-established: Where there is substantial evidence in the record as a whole to support the Board's conclusions, they may not be disturbed upon appeal." Kux Mfg. Co. v. NLRB, 890 F.2d 804, 808 (6th Cir.1989). Thus, the Board's findings of fact and its "application of the law to the facts" are subject to the substantial evidence test. NLRB v. Ohio Masonic Home, 892 F.2d 449, 451 (6th Cir.1989). "Evidence is considered substantial if it is adequate, in a reasonable mind, to uphold the decision." Emery Realty, Inc. v. NLRB, 863 F.2d 1259, 1262 (6th Cir.1988) (quoting Roadway Express, Inc. v. NLRB, 831 F.2d 1285, 1289 (6th Cir.1987)). When there is a conflict in the testimony, "it is the Board's function to resolve questions of fact and credibility," and this court ordinarily will not disturb credibility evaluations of the Board or an ALJ, who has observed the witnesses' demeanor. NLRB v. Baja's Place, 733 F.2d 416, 421 (6th Cir.1984). "[T]he Board's reasonable inferences may not be displaced on review even though the court might justifiably have reached a different conclusion had the matter been before it de novo." Turnbull Cone Baking Co. v. NLRB, 778 F.2d 292, 295 (6th Cir.1985), cert. denied, 476 U.S. 1159 (1986).
Id. at 544 (parallel citation omitted).
First, Family Foods argues that substantial evidence does not support the NLRB's finding of an anti-union motive. Section 8(a)(3) of the NLRA proscribes employer "discrimination in regard to hire or tenure of employment ... to encourage or discourage membership in any labor organization." 29 U.S.C. § 158(a)(3). Accordingly, an employer violates section 8(a)(1) and (3) of the NLRA by discharging or taking other adverse action against an employee for engaging in activities in support of union representation. See Turnbull Cone Baking Co. v. NLRB, 778 F.2d 292, 296-97 (6th Cir.1985), cert. denied, 476 U.S. 1159 (1986).
Although a new employer is not required to hire its predecessor's employees, the employer violates section 8(a)(1) and (3) of the NLRA by refusing to hire them because of their union affiliation or to avoid a bargaining obligation with the union that represents them. See Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 40 (1987); Kessel Food Markets v. NLRB, 868 F.2d 881, 884-86 (6th Cir.), cert. denied, 493 U.S. 820 (1989). Where the employer's opposition to union activity is proven to be a motivating factor in its adverse employment decisions, those decisions violate the NLRA unless the employer demonstrates, as an affirmative defense, that it would have made the same decisions even in the absence of the employee's protected conduct. NLRB v. Transportation Mgmt. Corp., 462 U.S. 393, 401-03 (1983); Turnbull Cone Baking, 778 F.2d at 296.
The question of the employer's motive is a factual matter to be determined by the NLRB, and the NLRB may reasonably infer motive from the circumstances surrounding the employer's actions, as well as from the direct evidence. Birch Run Welding & Fabricating v. NLRB, 761 F.2d 1175, 1179 (6th Cir.1985). Circumstantial evidence supporting an inference of anti-union motivation includes the following: "proximity in time between recent protected activity and measures taken against the employee," Jim Causley Pontiac v. NLRB, 620 F.2d 122, 125 (6th Cir.1980); the employer's demonstrated anti-union bias and the contemporaneous commission of other unfair labor practices, Grand Rapids Die Casting Corp. v. NLRB, 831 F.2d 112, 117 (6th Cir.1987); departure from past practice in instituting the adverse action, Dayton Typographic Serv. v. NLRB, 778 F.2d 1188, 1193 (6th Cir.1985); and disparate treatment of union supporters compared with other employees, NLRB v. Supreme Bumpers, 648 F.2d 1076, 1077 (6th Cir.1981). The NLRB also reasonably considers the inability of the employer's proffered justification to withstand scrutiny. NLRB v. A & T Mfg. Co., 738 F.2d 148, 150 (6th Cir.1984). Of course, direct evidence constituting an outright confession of unlawful discrimination eliminates any question concerning the existence of unlawful reasons for discharge. Turnbull Cone Baking, 778 F.2d at 297.
Undisputed record evidence establishes that Family Foods was determined to avoid recognizing and bargaining with a union. As the NLRB found, from the moment Family Foods' employees began to organize...
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