N.L.R.B. v. S.E. Nichols, Inc.

• Decision Date: 29 November 1988
• Docket Number: 275,Nos. 137,D,s. 137
• Parties: 129 L.R.R.M. (BNA) 3098, 57 USLW 2375, 110 Lab.Cas. P 10,853 NATIONAL LABOR RELATIONS BOARD, Petitioner-Cross-Respondent, v. S.E. NICHOLS, INC., Respondent-Cross-Petitioner. ockets 88-4057, 88-4087.
• Court: U.S. Court of Appeals — Second Circuit

Page 952

862 F.2d 952

129 L.R.R.M. (BNA) 3098, 57 USLW 2375,

110 Lab.Cas. P 10,853

NATIONAL LABOR RELATIONS BOARD, Petitioner-Cross-Respondent, v. S.E. NICHOLS, INC., Respondent-Cross-Petitioner.

Nos. 137, 275, Dockets 88-4057, 88-4087.

United States Court of Appeals, Second Circuit.

Argued Oct. 4, 1988.

Decided Nov. 29, 1988.

Leonard W. Wagman, New York City (Golenbock and Barell, Robert S. Goodman, Charles S. Joseph, of counsel), for respondent-cross-petitioner.

William A. Baudler, N.L.R.B., Washington, D.C. (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, Susan L. Williams, Supervisory Atty., N.L.R.B., Washington, DC, of counsel), for petitioner-cross-respondent.

Before FEINBERG, Chief Judge, NEWMAN and GARTH, ^* Circuit Judges.

FEINBERG, Chief Judge:

The National Labor Relations Board applies for enforcement of its order against S.E. Nichols, Inc., and Nichols cross-petitions to vacate the Board's order. The Board found that Nichols had violated section 8(a)(1), (3) and (4) of the National Labor Relations Act by, among other things, discharging four union activists and otherwise coercing employees, harassing employees on account of their participation in Board proceedings and discriminating against them in their terms of employment. To remedy these violations, the Board fashioned an expansion of its traditional remedies, including a broad set of affirmative requirements. Nichols objects to almost all of the Board's findings of violations, the breadth and severity of its proposed remedy and the consolidation of two complaints by the Administrative Law Judge (ALJ). With one modification, we enforce the Board's order.

I. Background

The petitions before us are occasioned by a bitter labor dispute in upstate New York. The following summary of the facts is based upon the Board's findings. Nichols, which we sometimes refer to hereafter as "the company," operates in many states a chain of 43 self-service discount retail department stores. The company has a long history ¹ of using unlawful means to resist unionization at its stores, and this controversy arises out of efforts between August 1979 and June 1980 to unionize its store in Herkimer, New York. At the time, the store had approximately 70 employees.

In August 1979, Dorothy Reinhardt and Doug Vincent, two Herkimer employees, began discussing the need for a union at the Herkimer store. On August 31, Reinhardt and Vincent contacted two representatives of the Retail Store Employee's Union Local 345, United Food and Commercial Worker's International Union, AFL-CIO, hereafter referred to as "the union," ² and received blank union authorization cards to give to their fellow employees.

Earlier that day, Denise Styles and Kristin Burkle, two security employees, began to organize a walkout in protest over a changed work schedule, which increased the number of hours and days to be worked each week. They were dissuaded from this course of action by Reinhardt, and they agreed to join the incipient union organization. By September 2, Reinhardt, Vincent and Styles had obtained about 27 signed union authorization cards. On September 7, the union petitioned for a representation election.

Henry Korcz, the company's supervisor of the district in which the Herkimer store is located, knew of the growing union sentiment at Herkimer by September 2, at the very latest, and immediately visited the store. Concurrent with his arrival, management began vigilant observation of the areas in which Reinhardt and Vincent worked. On September 3, Korcz summarily fired both Reinhardt and Vincent with previously prepared pay checks. The store manager, Robert Hathorn, then dismissed Burkle and Styles in the same manner the following day. On September 4, Korcz received a mailgram from the union claiming that it represented a majority of the company's employees. In response to the unionization efforts, Korcz held a series of meetings with employees in which management aggressively lobbied against unionizing the store. In one of these meetings, as the ALJ noted,

Korcz was asked if the four discriminatees would be reinstated, to which he answered: "[Y]es, but once they're reinstated, they don't last too long"; in other words, pretexts would be found for their later discharge.

On September 7, the union filed unfair labor practice charges, claiming that the discharges of the union activists, Korcz's tactics at the meetings with employees and a company rule restricting the acceptance of literature on company property all violated the Act. A complaint issued in October 1979, and was tried as case No. 3-CA-9304 before the ALJ in March 1980. The ALJ heard evidence from 15 witnesses over a three-day period.

Employees Fred Pumilio, June Klimacek, and Margaret Goldsmith testified against the company at the hearing before the ALJ. Shortly thereafter, the three employees were subjected to increased scrutiny and harassment by the store's management. Pumilio and Klimacek were given written warnings about their behavior, and Goldsmith was not granted a promised raise. Manfred Brecker, the president of the company, told her to "ask the Union to give [her] a raise."

In the months following the March unfair labor practice hearing, the top officers of the company, including president Brecker and district supervisor Korcz, continued their aggressive campaign against the unionization of the Herkimer store. Brecker, whose office was in New York City, paid three unusual visits to the Herkimer store in April and June, and held meetings with both small and large groups of employees to discourage them from supporting the union. In these meetings, Brecker, among other things, embarrassed Pumilio, Klimacek and Goldsmith by ridiculing their complaints about management and said that "hell would have to freeze over before [Reinhardt, Vincent, Burkle and Styles] would get hired again." Brecker also said that when those dismissed because of union activities "do come back they don't last long because people don't get along with them and I consider them troublemakers and they leave."

This post-hearing harassment and coercion gave rise to another unfair labor practice charge. A second complaint, 3-CA-9714, issued in May 1980, and was amended in June and September. This complaint, as amended, alleged that on various occasions between March and June 1980, the company violated the Act at its Herkimer store.

In June 1980, an election was held pursuant to the union representation petition that had been filed in September 1979. The union lost the election, and no objection was filed.

On July 3, 1980, the ALJ granted the motion of the Board's General Counsel to reopen the record and to consolidate case 3-CA-9714 with the first complaint, case 3-CA-9304, arising out of the same union campaign. The ALJ scheduled a new hearing in September 1980. Meanwhile, the Board's Regional Director had filed a petition in the United States District Court for the Northern District of New York, pursuant to section 10(j) of the Labor Management Relations Act, 29 U.S.C. Sec. 160(j), for a temporary injunction against the company's unfair labor practices pending hearing and decision in the case before the Board. On July 8, 1980, Judge Neal McCurn denied the application. The denial was affirmed by order of this court in February 1981, in which, however, we expressed doubt over whether the district court "applied too strict a standard" and made clear that the affirmance was not "in any way intended to prejudge the pending Labor Board proceeding or any future court action brought in respect thereto."

The consolidated cases were heard by ALJ Klein in September 1980. At the hearing, the parties stipulated that the record of the section 10(j) proceeding be used in lieu of testimony on the charges covered by the second complaint. The ALJ issued a lengthy opinion in December 1980, finding Nichols in violation of Sec. 8(a)(1), (3) and (4) of the Act and ordering expansive remedies against the Company.

In June 1987, a three-member panel of the Board affirmed the ALJ's rulings, findings and conclusions with certain modifications and limited the recommended remedies in certain respects. ³ One member dissented in part and would have further limited the ALJ's decision. The Board agreed with the ALJ that the company violated Sec. 8(a)(1) and (3) of the act by dismissing Reinhardt, Vincent, Styles and Burkle and by refusing to offer them reinstatement. The Board accepted most of the ALJ's findings that the company had committed numerous violations of Sec. 8(a)(1) in its aggressive resistance to the Union. The Board also accepted the ALJ's findings that the company violated Sec. 8(a)(1), (3) and (4) of the act by giving written warnings to Pumilio and Klimacek, by withholding a raise to Goldsmith, and by subjecting the three employees to ridicule, increased supervision and unfavorable working conditions.

The Board curtailed slightly the breadth of the measures fashioned by the ALJ to remedy the company's unfair labor practices. The Board's affirmative remedies required the company, among other things, to give a union, under specified conditions, access to company bulletin boards, notice of, and access to, management speeches regarding unionization, and access to the employees in order to give a 30-minute pre-election speech; to undertake a posting and mailing of a "Notice to Employees;" and to have president Brecker read the notice to all employees in the district and certain supervisors.

This petition for enforcement and cross-petition to vacate followed the Board's decision and order.

II. Discussion

The company argues on appeal that the Board's findings of unfair labor practices are not supported by substantial evidence, that the Board abused its discretion in fashioning harsh and overbroad remedies, and that the ALJ's...