McLane/Western, Inc. v. N.L.R.B., 81-1081

• Court: U.S. Court of Appeals — Tenth Circuit
• Writing for the Court: Before HOLLOWAY and McWILLIAMS, Circuit Judges, and TEMPLAR; HOLLOWAY
• Citation: McLane/Western, Inc. v. N.L.R.B., 723 F.2d 1454 (10th Cir. 1983)
• Decision Date: 22 December 1983
• Docket Number: No. 81-1081,81-1081
• Parties: 115 L.R.R.M. (BNA) 2112, 99 Lab.Cas. P 10,719 McLANE/WESTERN, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

Page 1454

723 F.2d 1454

115 L.R.R.M. (BNA) 2112, 99 Lab.Cas. P 10,719

McLANE/WESTERN, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 81-1081.

United States Court of Appeals Tenth Circuit.

Dec. 22, 1983.

Kenneth R. Stettner, Atty., Denver, Colo. (Robert R. Miller of Good & Stettner, P.C., Denver, Colo., were on brief), for petitioner.

Linda Weisel, Atty., National Labor Relations Board, Washington, D.C. (Kenneth B. Hipp, Deputy Asst. Gen. Counsel, Peter Winkler, Atty., William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, National Labor Relations Board, Washington, D.C., were on brief), for respondent.

Before HOLLOWAY and McWILLIAMS, Circuit Judges, and TEMPLAR, District Judge ^*.

HOLLOWAY, Circuit Judge.

This petition for review by McLane/Western, Inc. (the company) challenges the National Labor Relations Board's decision in 251 NLRB No. 175 that the company's pre-election conduct violated Sec. 8(a)(1) of the National Labor Relations Act, 29 U.S.C. Sec. 158(a)(1), and that the company's post-election discharge of an employee violated Secs. 8(a)(1) and (a)(3) of the Act, 29 U.S.C. Secs. 158(a)(1) and (a)(3). The Board has cross-petitioned for enforcement of its order. We conclude that there is substantial evidence on the record considered as a whole to support the Board's finding that the company's pre-election conduct violated Sec. 8(a)(1), and enforce the portion of the Board's order in that respect. In light of the recent Supreme Court decision in NLRB v. Transportation Management Corp., --- U.S. ----, 103 S.Ct. 2469, 76 L.Ed.2d 667 (1983), we remand for a determination whether the company would have discharged the employee, regardless of his protected conduct in connection with union activities.

I Background

The company is engaged in the sale and distribution of food and related grocery products. III R. 569. The company's warehouse in Denver, Colorado, stocks approximately 12,000 different items and maintains inventory valued at several million dollars. The company is a subsidiary of McLane and Co. of Texas. Drayton McLane is President of McLane and Co. Neil McCarty is division president of the company. Stephen Jacobson is the warehouse manager. Patrick Johnson is a shift supervisor.

On May 1, 1979, the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 435 (the union), filed a representation petition with the Board's Denver Regional Office, seeking to represent the company's employees. I R. 410. After a hearing, the Board directed that a union election be conducted at the company. Id. at 411. The company conducted an extensive handbill campaign against the union. II R. 489-546. At the secret ballot election held on June 28-30, 1979, sixty eight company employees voted against the union while forty two employees voted for the union. ¹ I R. 422.

On July 9, 1979, the union filed objections with the Board, alleging that the company's conduct before the election interferred with the employees' rights under Sec. 7 of the National Labor Relations Act, 29 U.S.C. Sec. 157. II R. 424-25. ² On July 17, the union filed an unfair labor practice charge against the company, alleging that the company discharged an employee, Keith McFarland, on July 11 in order to discourage membership in a labor organization. The union amended its unfair labor practice charge to include allegations that the company had "engaged in numerous instances of unlawful interrogation and threats of reprisals against its employees because of their union activities." Id. at 547-48.

A consolidated hearing was held before an administrative law judge in Denver, Colorado, on December 6 and 7 to consider both the union's objections to the election and the unfair labor practice charges. The ALJ found that the company's pre-election conduct violated Sec. 8(a)(1) and that the discharge of McFarland violated Secs. 8(a)(1) and (a)(3), and ordered that McFarland be reinstated. The company filed objections to the decision of the ALJ. The Board adopted the "rulings, findings, recommendations, and conclusions" of the ALJ and his recommended order. The Board's ruling that a second election be held is not at issue here. The company's motion to reconsider the Board's decision was denied by the Board. This petition for review and cross-application for enforcement followed.

II

Pre-election conduct

Section 7 of the Act grants employees "the right of self-organization, to form, join or assist labor organizations ... and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." 29 U.S.C. Sec. 157. Section 8(a)(1) implements Sec. 7 by making it an unfair labor practice "to interfere with, restrain, or coerce employees in the exercise" of those rights. 29 U.S.C. Sec. 158(a)(1).

We previously have held that interrogating employees about their, or their co-workers', union sympathies, e.g., Coors Container Co. v. NLRB, 628 F.2d 1283, 1288-89 (10th Cir.1980); Groendyke Transport v. NLRB, 530 F.2d 137, 143-44 (10th Cir.1976), and threatening employees during an organizational campaign with loss of benefits, e.g., NLRB v. Merrill, 388 F.2d 514, 517 (10th Cir.1968); J.C. Penney Co. v. NLRB, 384 F.2d 479, 480-82 (10th Cir.1967), plant closure, e.g., Ann Lee Sportswear, Inc. v. NLRB, 543 F.2d 739, 743 (10th Cir.1976); Singer Co. v. NLRB, 480 F.2d 269, 271 (10th Cir.1973), and physical violence, e.g., Bill's Coal Co. v. NLRB, 493 F.2d 243, 245 (10th Cir.1974); NLRB v. McBride, 274 F.2d 124, 127 (10th Cir.1960), may violate Sec. 8(a)(1).

The ALJ found that "[b]y interrogating employees concerning their union activities and sympathies and about the union activities and sympathies of their fellow employees, by threatening plant closures, loss of existing benefits and having to bargain from scratch should employees select a collective-bargaining representative, and by threatening to punch an employee in the nose for having initiated the organizational campaign by the union, [the company] violated Section 8(a)(1) of the Act." III R. 585. The Board adopted these findings. Id. at 614. We conclude that there is substantial evidence on the record considered as a whole to support the findings. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951); Safeway Stores, Inc. v. NLRB, 691 F.2d 953, 956 (10th Cir.1982).

First, the ALJ found that on several occasions company management individually questioned employees concerning the upcoming union election. In this connection there was evidence that cigarette department leadman Rod Townley testified that warehouse manager Jacobson called Townley into his office soon after the first company handbill was distributed. According to Townley, Jacobson asked him which employees supported the union and whether it enjoyed majority support. I R. 122; III R. 571. When Townley told Jacobson that he was not involved with the union and thus could not answer the question, Jacobson responded, "Come on, you don't think I am a fool, do you," and asserted that Townley "work[ed] with the ringleader," whom Jacobson identified as Dan Shields. Id. Jacobson later gave a subsequent company handbill to Townley and again asked if the union enjoyed majority support. I R. 123, 142-43. Jacobson denied that he asked these questions or made the statements attributed to him by Townley. Id. at 340-41. Townley also testified that first-shift supervisor Johnson gave him a handbill on two occasions and asked him how things were going with the union. Id. at 741.

Division president McCarty met with cigarette department employee Shields on several occasions concerning company handbills. Shields testified that during one meeting McCarty asked him if other employees were actively involved in the union. Id. at 188-89. McCarty denied questioning Shields about the union. Id. at 302, 304, 305.

General merchandise department employee Faye Binkley testified that on two occasions Jacobson questioned her about the union's support among the employees. In the second conversation, when Binkley responded that she knew of at least two employees who were going to vote against the union, Jacobson asked her to name these two employees. Binkley refused to identify these anti-union employees. III R. 574; I R. 163-66, 170-75. Jacobson denied that he questioned Binkley about the union. I R. 341-A to 341-B.

Second, the ALJ found that on several occasions company management threatened individual employees with loss of benefits, plant closure and physical violence. In this connection Shields testified that McCarty told him on more than one occasion that the employees would lose benefits if the union won the election. Shields said that McCarty told him that the employees would lose their profit-sharing plan (I R. 184); that the company was "morally opposed" to a union shop and would "close their doors and move the company away" rather than deal with the union (id. at 190); that employee wages could be lowered (id. at 191); that the company could not be forced to "deal with the union if we don't want to" (id. at 191); and that the company could "tie [the election] up in the courts for years to come" (id.). McCarty denied making these statements. Binkley testified that Jacobson told her that unionization could result in the loss of company benefits. Id. at 164, 171; III R. 574, 579. Jacobson denied making such statements. I R. 341-B.

Two days before the election, company president McLane visited the warehouse to discuss with cigarette department employee John Thomas the possibility of Thomas riding a bicycle from Denver to the company's Texas headquarters as a promotional stunt. The next day McLane returned to discuss the matter further. Shields offered to serve as Thomas's agent. McLane responded to Shields that "I am...