N.L.R.B. v. Pizza Crust Co. of Pennsylvania, Inc.

• Decision Date: 05 January 1989
• Docket Number: No. 88-3251,88-3251
• Citation: 862 F.2d 49
• Parties: 129 L.R.R.M. (BNA) 3002, 57 USLW 2359, 110 Lab.Cas. P 10,850 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PIZZA CRUST COMPANY OF PENNSYLVANIA, INC., Respondent.
• Court: U.S. Court of Appeals — Third Circuit

Page 49

862 F.2d 49

129 L.R.R.M. (BNA) 3002, 57 USLW 2359,

110 Lab.Cas. P 10,850

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PIZZA CRUST COMPANY OF PENNSYLVANIA, INC., Respondent.

No. 88-3251.

United States Court of Appeals Third Circuit.

Argued Oct. 17, 1988.

Decided Nov. 23, 1988.

Rehearing and Rehearing In Banc Denied Jan. 5, 1989.

Rosemary M. Collyer, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Associate Gen. Counsel, Aileen A. Armstrong, Deputy Associate Gen. Counsel, Collis Suzanne Stocking, Supervisory Atty., Frederick C. Havard (argued), N.L.R.B., Washington, D.C.

Robert Ufberg (argued), Kenneth Sandler, Rosenberg & Ufberg, Scranton, Pa., for respondent.

Before SLOVITER and HUTCHINSON, Circuit Judges, and DEBEVOISE, District Judge. ^*

OPINION OF THE COURT

SLOVITER, Circuit Judge.

I.

This case is before us on the application of the National Labor Relations Board for enforcement of its order requiring respondent Pizza Crust Company of Pennsylvania, Inc. (Company) to cease and desist from prohibiting off-duty employees from distributing union literature on its parking lot and from interrogating employees regarding union membership or activities, and requiring respondent to post notice and to hold a new election for choosing a collective bargaining representative.

This court has jurisdiction under section 10(e) of the National Labor Relations Act (the Act), 29 U.S.C. Sec. 160(e) (1982), over the parts of the order requiring the Company to cease and desist and post notice. However, under our decision in Graham Architectural Prod. Corp. v. NLRB, 697 F.2d 534 (3d Cir.), reh'g in banc denied, 706 F.2d 441 (1983), we do not have jurisdiction over that part of the Board's order which directed that the December 21 union election be set aside and a new election held. Accord NLRB v. Intertherm, Inc., 596 F.2d 267, 278 (8th Cir.1979); NLRB v. Monroe Tube Co., 545 F.2d 1320, 1329 (2d Cir.1976); American Bread Co. v. NLRB, 411 F.2d 147, 156 (6th Cir.1969); Hendrix Mfg. Co. v. NLRB, 321 F.2d 100, 106 (5th Cir.1963). See also NLRB v. International Bhd. of Elec. Workers, 308 U.S. 413, 60 S.Ct. 306, 84 L.Ed.354 (1940) (employers must wait until after elections have occurred to challenge orders under section 10(f)).

II.

The Interrogation of an Employee

A.

Pizza Crust is a family-owned business owned by Sam Falbo, Sr. and operating in Carbondale, Pennsylvania. The Company employs approximately 75 employees. Sam Falbo, Jr. serves as assistant general manager and his brother David Falbo is plant manager. An organizational campaign on behalf of the United Food and Commercial Workers Local 72 (Union) began in late September 1984. Employees Kevin White and Edward Ward, after meeting with Ralph Carlacci, a Union business agent, began distributing union authorization cards and other literature. Union supporters attempted to keep their organizing efforts secret from management. In early October, two union activists were fired. ¹

Before the organizational effort began, Kevin White had arranged with his supervisor, Tony Morgantini, to be excused from working beyond the scheduled end of his shift at 3:30 p.m. on some of the days on which he attended paralegal class. On October 29, White asked Morgantini if he could be excused from overtime that night because he had to take a test for his paralegal class. Morgantini replied that he would have to check with David Falbo. Later that morning, White was called to the office where David and Sam, Jr. awaited him. According to White, after he explained that he had to take a test that night and would appreciate being released from overtime, Sam, Jr. said:

"its [sic] like this." He goes, "I am stuck between a rock and a hard place because we have a union campaign going on here." And he said that he didn't know who was involved. And he stopped and looked at me.

App. at 193. In addition, Sam, Jr. stated that because labor charges had been filed against him for firing two employees, "he would not be able to do anything for [White] because he didn't know who was involved in the campaign." Id. Ultimately, White was given permission to leave at 4:30 p.m. after working an hour overtime.

The ALJ credited White's testimony, finding that "White was ... placed in a position of being forced to barter his knowledge ... of union adherents for the privilege of being excused from overtime that day." App. at 194. The ALJ concluded that such questioning of employees constituted an interrogation in violation of section 8(a)(1).

A majority of the Board upheld the ALJ's finding of an unfair labor practice, concluding that "Falbo's heavy-handed suggestions concerning his need to know who was 'involved' with the Union were at least as coercive, under the circumstances, as direct questions would have been." App. at 220 n. 2. Chairman Dotson dissented on the ground that Sam, Jr.'s comments to Kevin White "were too brief, general, and ambiguous to be objectively characterized as an inquiry into union activities...." App. at 222-23 (emphasis in original).

B.

The Board's application of the law to particular facts as well as its findings on questions of fact underlying its determinations that unfair labor practices occurred are conclusive if supported by "substantial evidence on the record as considered as a whole," including any evidence detracting from the Board's view. 29 U.S.C. Sec. 160(e); Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951); see also NLRB v. United Ins. Co., 390 U.S. 254, 260, 88 S.Ct. 988, 991, 19 L.Ed.2d 1083 (1968).

The ALJ's determination of what happened in this meeting rested on inferences that he drew from the silence referred to in White's testimony, as well as the ALJ's credibility findings based on the witnesses' demeanor. Although the Company characterizes the conversations between Sam, Jr. and Kevin White differently than did the ALJ, the ALJ's interpretations of the evidence fall clearly within the province of the finder of fact. The Board was entitled to adopt the ALJ's findings with respect to the tone of the conversation with White, the implications arising from the questions Sam, Jr. left unasked, and the potentially coercive nature of the exchange. The Board's findings thus rest on substantial evidence on the record considered as a whole and may not be disturbed by us.

III.

The Solicitation and Distribution of Union Literature

A.

The second unfair labor charge before us stems from the Board's findings that the Company violated Section 8(a)(1) by prohibiting off-duty employees from using its parking lot for solicitation or distribution relating to matters involving the exercise of their rights under section 7 of the Act. Five leafletters sought to distribute literature on December 14, 1984 and December 18, 1984. These leafletters were Ward and Burton, the two discharged employees, White and Joseph Kilhullen, both on workers' compensation at the time, and union business agent Carlacci. In the first exchange, occurring on December 14, David Falbo saw White and Kilhullen standing in the Company parking lot. He asked what they were doing, and they told him they were going to pass out "some stuff." David Falbo testified that he stated:

Kevin, you're not here to see me about your compensation claim ... so basically you don't have really any business to be on the property. I said, if you want to go to the entrance and hand out whatever you're handing out, that's fine with me, but don't do it on the property.

App. at 204-05.

He also asked Kilhullen to move his automobile off the property, which Kilhullen did. David then went back inside the building. The leafletters began walking together towards the Company parking lot with leaflets in their hands. When they reached the border of the Company's property, they were met by Sam, Jr. Addressing Carlacci, Sam, Jr. stated that he did not want any leafletting on Company property. Pressed by Carlacci to allow employees White and Kilhullen on the premises, Sam, Jr. responded, according to his own testimony:

[A]s far as I'm concerned ... they have no company business to conduct. So ... if you want to distribute your leaflets at the entrances, I won't stop you, but I don't want anybody on the premises.

App. at 205.

Carlacci agreed that the men would stand just off the premises and hand out leaflets. Sam, Jr. then left and the five men stood at the two entrances to the Company parking lot and handed out literature to employees entering and leaving the plant during the shift change.

Later on December 14, Kevin White, David, and Sam, Sr. got into an altercation. According to White's testimony, which the ALJ credited, Sam, Sr. told White that:

[T]his was his plant and that it was his property and that I didn't have a right to be there and that I had better not attempt to stop any cars or block traffic.

App. at 205.

The ALJ credited the testimony of David and an employee witness as to what happened next: White cursed at Sam, Sr. and David threatened to call the police. The police were not called, however, and White continued his leafletting without further interruption.

On December 18, the five men again returned to leaflet. While standing at the entrance to the plant, Burton and Kilhullen were each separately given instructions by Sam, Sr., Sam, Jr. and/or David Falbo not to hand out leaflets on the property, obstruct traffic, or block the entranceways. App. at 205.

The ALJ found that the Falbos' actions in forbidding White and Kilhullen from coming onto the Company's parking lot to distribute leaflets constituted an unfair labor practice. The ALJ relied on Tri-County Medical Center, Inc., 222 N.L.R.B. 1089 (1976), where the Board held that "except where justified by business reasons," rules denying off-duty employees entry to "parking lots, gates, and other outside nonworking areas" would be found invalid. Id. at 1089.

On this basis, the ALJ set aside...