N.L.R.B. v. Anchorage Times Pub. Co.
| Citation | 637 F.2d 1359 |
| Decision Date | 29 April 1981 |
| Docket Number | No. 79-7024,79-7024 |
| Parties | 106 L.R.R.M. (BNA) 2900, 90 Lab.Cas. P 12,613 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ANCHORAGE TIMES PUBLISHING CO., Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Ruah Donnelly Lahey, Washington, D. C., argued, for petitioner; Elliott Moore, NLRB, Washington, D. C., on brief.
Douglas A. Riggs, Anchorage, Alaska, argued, for respondent; Karl Johnstone, Anchorage, Alaska, on brief.
On Petition to Review and Cross-application to Enforce a Decision of the National Labor Relations Board.
Before ANDERSON and SKOPIL, Circuit Judges, and BYRNE, * District Judge.
WM. MATTHEW BYRNE, Jr., District Judge:
The National Labor Relations Board ("the Board") petitions for enforcement of its order against the Anchorage Times Publishing Co. ("the Company" or "the Times"), reported at 237 N.L.R.B. No. 78 (1978). We hold that substantial evidence supports all of the Board's unfair labor practice findings and, accordingly, enforce the Board's chosen remedies, including a bargaining order.
The Times is Alaska's largest newspaper publishing company, with its primary offices located in a single building in downtown Anchorage. During the relevant period, the Times employed approximately 280 employees in five departments.
During the late summer of 1976, several employees in the editorial department (the newsroom) initiated meetings between high level management officials and newsroom employees to discuss wages and working conditions. 1 Dissatisfied with the results of these meetings, a group of employees sought to find a union willing to represent the Times employees in the accounting, advertising, circulation, and editorial departments. To this end they met with William Coleman, a representative of the International Brotherhood of Electrical Workers, Local 1547 AFL-CIO ("the Union"), who agreed to help organize a campaign among Times employees in the four departments.
Coleman conducted four meetings with the employees between October 24 and November 5, 1976. At these meetings he solicited employees to sign cards authorizing the Union to represent them for the purpose of collective bargaining with Times management. 2 Coleman explained to the employees that if thirty percent of the employees in the bargaining unit signed such cards, a petition could be filed for a Board-conducted election. He further explained that if fifty-one percent of the employees in the bargaining unit signed authorization cards, the Union could request the Company to recognize the Union voluntarily as the employees' exclusive bargaining representative, although he cautioned that it was unlikely that the Company would extend such recognition. The employees were advised by Coleman that by signing the cards they were authorizing the Union to represent them in collective bargaining. Some of the cards were signed by employees at the meetings; others were signed at other locations and returned to the Union.
On November 15, 1976, the Union filed with the Board a petition requesting a representation election. After a hearing, the Regional Director determined that the appropriate bargaining unit contained 181 employees and that 97 valid authorization cards had been signed on or before November 13, 1976. 3 He ordered the election to be held in early January, 1977.
The election was held on January 20, 1977, and the employees voted seventy-seven to seventy-three against the Union, with sixteen ballots challenged. 4 The Union filed separate unfair labor practice charges against the Company on January 17, 1977, and on January 24, 1977. The Union contended that, during the course of the campaign, both before and after the Union filed the petition requesting an election, the Company engaged in a course of conduct that included interrogating employes about union sympathies; conducting surveillance of Union-related employee activities; threatening job losses in the event of a vote in favor of the Union; terminating an employee for discriminatory reasons; and granting wage increases immediately prior to the election in order to influence the employees' votes. These charges were consolidated for hearing before the Board's Administrative Law Judge ("ALJ"). After extensive hearings, he determined that the Company had violated Sections 8(a)(1) and 8(a) (3) of the National Labor Relations Act ("the Act"), 29 U.S.C. §§ 158(a)(1) & 158(a)(3) (1976). The ALJ found that the Union represented a majority of the employees and that the unfair labor practices prevented the holding of a fair "rerun" election. He therefore recommended that the Board set aside the results of the January 20 election and order the Company to bargain with the Union. The ALJ also recommended that one employee, who had been dismissed in violation of the Act, be reinstated and made whole, and that the customary notices be posted. The Board adopted the ALJ's recommendations with minor variations, not here relevant. 5 Now the Board petitions for enforcement of its order.
The Board found that the Company had engaged in a pervasive scheme of unfair labor practices, both before and after the filing of the election petition. In reviewing these findings, the Court cannot overturn decisions that are supported by substantial evidence in the record considered as a whole. Universal Camera Corp. v. NLRB, 340 U.S. 474, 487-88, 71 S.Ct. 456, 464-65, 95 L.Ed. 456 (1951); L'Eggs Products, Inc. v. NLRB, 619 F.2d 1337, 1341 (9th Cir. 1980); NLRB v. Tischler, 615 F.2d 509, 511 (9th Cir. 1980); NLRB v. Bighorn Beverage, 614 F.2d 1238, 1240 (9th Cir. 1980). That is, if there are conflicting interpretations of the facts, and the one adopted by the Board is supported by substantial evidence, the Court may not substitute a different interpretation. See NLRB v. Adams Delivery Service, Inc., 623 F.2d 96, 99 (9th Cir. 1980).
The largest number of unfair labor practice incidents found by the Board consisted of unlawful interrogations of employees about their union sympathies. These interrogations were conducted over a period of several months by various high-ranking Company officials including General Manager William Tobin (who oversaw all five departments), Managing Editor Clint Andrews (who supervised the editorial department), City Editor Michael Todd, and Director of Circulation Jules Molenda. 6
The Company raises three objections to the Board's findings that these interrogations constituted unfair labor practices: first, that substantial evidence does not support the factual findings of the Board; second, that the Board erred in finding the interrogations unlawful because there was no evidence that the questioning actually intimidated any employees in the exercise of their guaranteed rights; and third, that under the Board's "critical period" doctrine the interrogations conducted before the filing of the election petition should not be considered unfair labor practices or, at least, should not be relied upon in justifying a bargaining order.
After a careful review of the extensive testimony at the hearings before the ALJ, the Court concludes that the Board's determination of facts in each incident is supported by substantial, although not uncontradicted, evidence. The Company points to testimony in the record that would tend to undermine the particular factual findings. In each instance, however, the conflict in testimony resolves to a question of evaluating the credibility of the witnesses. The ALJ is in the best position to evaluate which witness is recalling the facts most accurately, and the Court cannot conduct a de novo review of the testimony to make different credibility determinations. NLRB v. Adams Delivery Service, Inc., 623 F.2d at 99.
The Company argues that the Board's findings should be overturned because there was no evidence that the interrogations actually had a coercive effect on the employees. Indeed, in two instances the interrogators indicated that the employees did not have to answer the questions. 7 Thus, it argues, the interrogations did not affect the outcome of the election and should not be considered unfair labor practices.
The short answer to this argument is that interrogation violates the Act if it has a tendency to intimidate employees in the exercise of their protected rights, even if there is no evidence of actual intimidation. See Penasquitos Village, Inc. v. NLRB, 565 F.2d 1074, 1080 (9th Cir. 1977); NLRB v. Bell Manufacturing Division, Di Giorgio Leisure Products, Inc., 483 F.2d 150, 151-53 (9th Cir. 1973). As this Court explained in Amalgamated Meat Cutters and Butcher Workmen of North America, Local No. 364 v. NLRB, 435 F.2d 668, 669 (9th Cir. 1970),
(i)n order for an employer's interrogation of employees to constitute unfair labor practices under section 8(a)(1) it must be associated with express or implied threats or promises, or form part of an overall pattern tending to restrain or coerce employees with regard to their protected activities.... When the inquiries are not undertaken in a threatening manner but are only isolated instances free of coercion and without any systematic intimidation in the background, they are not unlawful.
The burden rests on the General Counsel to prove that the interrogations violated the Act. See Hughes & Hatcher, Inc. v. NLRB, 393 F.2d 557, 563 (9th Cir. 1968).
In this case, the Board found that each interrogation incident was associated with an implied threat. Moreover, it found that the interrogations were part of an overall systematic pattern of intimidation of employees. These findings are supported by substantial evidence and, therefore, justify the conclusion that the interrogations were unfair labor practices even though there was no evidence that employees were actually intimidated...
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