Great Lakes Warehouse Corp. v. NLRB, CROSS-RESPONDEN

• Citation: 239 F.3d 886
• Decision Date: 07 February 2001
• Docket Number: No. 00-2191,00-2226,CROSS-RESPONDEN,CROSS-PETITIONER,V,00-2191
• Parties: (7th Cir. 2001) GREAT LAKES WAREHOUSE CORPORATION, PETITIONER/NATIONAL LABOR RELATIONS BOARD, RESPONDENT/
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 886

239 F.3d 886 (7th Cir. 2001)

GREAT LAKES WAREHOUSE CORPORATION, PETITIONER/CROSS-RESPONDENT,

V.

NATIONAL LABOR RELATIONS BOARD, RESPONDENT/CROSS-PETITIONER.

No. 00-2191, 00-2226

U.S. Court of Appeals, Seventh Circuit

Argued January 16, 2001

Decided February 07, 2001

On Petition for Review and Cross-Application for Enforcement of the Order of the National Labor Relations Board. No. 13-CA-36553. [Copyrighted Material Omitted] Walter J. Liszka (argued), Wessels & Pautsch, Chicago, IL, for Petitioner.

Elizabeth Kinney, National Labor Relations Board, Chicago, IL, for Respondent.

Before Flaum, Chief Judge, and Posner and Coffey, Circuit Judges.

Flaum, Chief Judge

Great Lakes Warehouse Corporation ("GLW") appeals from the National Labor Relations Board's ("NLRB" or "Board") order finding that it violated the National Labor Relations Act ("NLRA") by firing one employee and attempting to promote another soon before a union organizing drive. GLW claims that its mere offer of a promotion cannot violate the NLRA and that it fired the other employee in accordance with its disciplinary policy. For the reasons stated herein, we reject GLW's arguments and grant enforcement of the NLRB's order.

I. Background

GLW is a warehousing company in Northern Indiana owned by the Faure Brothers Corporation ("Faure"). In October, 1997, an affiliate of the International Brotherhood of Teamsters, AFL-CIO was preparing an organizing drive at GLW. GLW employees Gary Anderson and Victor Oller were known union supporters who had been active in prior attempts to unionize GLW.

On October 16, the warehouse distribution manager offered Anderson the position of foreman, which had been open for approximately four months. Anderson declined, and the manager asked him if he was refusing the job "because of the union?" Anderson replied that he could not comment. The manager responded that Anderson should "be prepared for changes" and walked away. On October 20, as Anderson was leaving the building, he met three management officials, including the owner of Faure. The owner asked him why he had refused the foreman job, and Anderson said that he "couldn't talk about it." The owner then asked why he and other employees could not talk to her about their concerns, rather than seeking union representation and incurring the attendant dues. Anderson was unresponsive and the conversation turned to golf and other matters. No negative changes in Anderson's pay or working conditions took place after he refused the offer, and he voluntarily resigned in March, 1998.

Oller, a forklift driver, was fired by the company after receiving repeated written warnings for errors. The company had a progressive disciplinary policy, known to Oller, with the fourth warning requiring the employee's termination. On October 21, the warehouse distribution manager issued Oller his first warning for an incident on October 1 when a truck loaded by Oller left without a pallet of ordered product. Oller received his second warning and a one-day suspension without pay around October 28 for unloading more cases of product than necessary on October 21. The third warning was issued on October 30 when he mislabelled four hundred cases of product on October 20; Oller was given a three-day suspension without pay by the manager. The fourth and final warning was presented to Oller on November 7 for putting the incorrect expiration date on cases of cheese on October 27. Management presented Oller with the option of voluntarily resigning and being given a severance package in return for signing a settlement offer and release prepared by the company. Oller was given a week off to consider this offer, but he rejected it on November 14 and was immediately fired.

GLW had been more lenient in the application of its disciplinary policy with other employees by giving only a single warning for multiple mistakes. Barbara Pala received a second warning for errors occurring on three different days, which was followed by a third warning which also covered three different days worth of errors. When Pala was eventually forced to resign, her final written warning stated that she had been averaging two mistakes a week. Another employee, Sharon Cole, was given an initial warning for mistakes occurring on two days. Jim Campbell also was given an initial warning for mistakes made on a particular day "and prior." The warning noted that he had made numerous errors and a customer had complained about his performance, yet Campbell received only a single warning.

Relying on these facts, the General Counsel of the NLRB charged GLW with various violations of the NLRA. An administrative law judge ("ALJ") found that GLW violated sec. 8(a)(1) of the NLRA, 29 U.S.C. sec. 158(a)(1), in three ways, namely by: threatening Anderson with unspecified retaliation, coercively interrogating Anderson regarding his union sympathies, and offering a promotion to induce him to abandon the union. A fourth transgression was of sec. 8(a)(3), 29 U.S.C. sec. 158(a)(3), which the ALJ found GLW violated by firing Oller for supporting the union. The Board affirmed the ALJ's findings regarding these four violations, emphasizing that the promotion was offered to Anderson immediately before the organizing campaign and the fact that this foreman position had been vacant for four months. GLW petitions for review of two of the Board's findings that GLW violated the NLRA in offering to promote Anderson and by firing Oller.

II. Discussion

We will affirm the Board's decision if its factual findings are supported by substantial evidence and its conclusions have a reasonable basis in the law. See Dilling Mech. Contractors, Inc. v. NLRB, 107 F.3d 521, 523-24 (7th Cir. 1997). This standard requires only that the Board produce relevant evidence sufficient for a reasonable person to accept the Board's conclusion. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951). However, a cursory review is insufficient, and we take into account the whole record, including evidence contrary to the Board's position. See Dilling, 107 F.3d at 524.

A. Uncontested Violations

GLW has not contested the Board's findings that it violated sec. 8(a)(1) of the NLRA by interrogating Anderson and by making unspecified threats of retaliation when he declined the promotion to foreman. Therefore, we summarily enforce the Board's order regarding these issues without determining whether substantial evidence supports the Board's findings. See NLRB v. Champion Labs., Inc., 99 F.3d 223, 227 (7th Cir. 1996). These violations do not disappear from the case, but rather remain as evidence that may support the Board's findings on contested issues. See U.S. Marine Corp. v. NLRB, 944 F.2d 1305, 1314-15 (7th Cir. 1991) (en banc).

B. Promotion Offer

Section 8(a)(1) of the NLRA prohibits employers from interfering with, restraining or coercing employees in the exercise of their rights to form, join, or assist labor organizations and engage in activities for the purpose of collective bargaining or other mutual aid or protection. 29 U.S.C. sec. 158(a)(1). Offers of promotion to management positions can violate sec. 8(a)(1) if these reasonably tend to interfere with or coerce employees in exercising the right of self-organization granted by sec. 7 of the NLRA, 29 U.S.C. sec. 157. See NLRB v. Henry Colder Co., 416 F.2d 750, 753 (7th Cir. 1969); see also Matson Terminals, Inc. v. NLRB, 114 F.3d 300, 302 (D.C. Cir. 1997); see generally Medo Photo Supply Corp. v. NLRB, 321 U.S. 678, 685-86 (1944) (holding that offers of benefits to union supporters that induce them to leave the union violate sec. 8(a)(1)). We determine whether coercion or interference was present by examining all the relevant facts and circumstances. See NLRB v. Shelby Mem'l Hosp. Ass'n, 1 F.3d 550, 559 (7th Cir. 1993).

Substantial evidence supports the Board's position. GLW argues that Anderson was qualified for the position, and that no specific threats or promises were made to him. GLW also repeatedly stresses that no change in Anderson's working conditions took place after he declined the promotion, and thus its offer cannot be considered coercive. However, the test is not whether interference or coercion actually occurred, but only whether the employer's action reasonably tended to interfere with or coerce employees in the exercise of their self-organization rights. See Carry Cos. of Ill. v. NLRB, 30 F.3d 922, 934 (7th Cir. 1994). The evidence presented to the Board was rather sparse, but it was sufficient under the deferential substantial evidence standard to support the Board's conclusion that the offer was an attempt to interfere with Anderson's right to unionize by moving him to a management position. The most important facts are the Board's uncontested findings that after Anderson declined the promotion the warehouse distribution manager interrogated him and then threatened him with unspecified reprisals. In addition, other evidence buttressed the Board's position. Anderson was unwilling to talk about any union-related reasons as to why he turned down the offer, which suggests that he felt coerced. See Champion Labs., 99 F.3d at 227. The timing of the offer also supports the Board's determination. The foreman position had been open for four months, yet GLW waited until soon before the organizing drive, in which Anderson would be a key union supporter, to offer the promotion to Anderson. While timing alone is not sufficient to show coercion or interference, it is a relevant factor for the Board to consider and may strengthen the Board's conclusion if other indicia of coercion or interference are present. See Chicago Tribune Co. v. NLRB, 962 F.2d 712, 717-18 (7th Cir. 1992).

C. Termination

Section 8(a)(3) prevents an employer from discriminating in the tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization. 29 U.S.C. sec. 158(a)(3)....