N.L.R.B. v. Mangurian's, Inc.

• Decision Date: 16 January 1978
• Docket Number: No. 77-1487,77-1487
• Parties: 97 L.R.R.M. (BNA) 2477, 83 Lab.Cas. P 10,311 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MANGURIAN'S, INC., Respondent. Summary Calendar. *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 463

566 F.2d 463

97 L.R.R.M. (BNA) 2477, 83 Lab.Cas. P 10,311

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MANGURIAN'S, INC., Respondent.

No. 77-1487

Summary Calendar. ^*

United States Court of Appeals, Fifth Circuit.

Jan. 16, 1978.

Elliott Moore, Deputy Associate, Gen. Counsel, N.L.R.B., John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Carl L. Taylor, Assoc. Gen. Counsel, John D. Burgoyne, Supervisor, Howard E. Perlstein, Atty., Washington, D. C., for petitioner.

James M. Blue, Jr., Shenandoah Station, Miami, Fla., John-Edward Alley, Michael R. Miller, Tampa, Fla., for respondent.

Application for Enforcement of an Order of the National Labor Relations Board.

Before THORNBERRY, RONEY and HILL, Circuit Judges.

RONEY, Circuit Judge:

The National Labor Relations Board found Mangurian's, Inc. violated § 8(a)(1) of the Act, 29 U.S.C.A. § 158(a)(1) (1973), while opposing an organizational campaign mounted by the Retail, Wholesale and Department Store Union, AFL-CIO, 227 N.L.R.B. No. 28 (Dec. 7, 1976). The Board seeks enforcement of its cease and desist order. We grant enforcement for three reasons: (1) substantial evidence supports the Board's determination that Mangurian's discriminated against union solicitation, reprimanded an employee who passed out organizational literature, and threatened to close stores if the union prevailed, (2) the Board properly concluded that an allegation of union racial and other invidious discrimination need not be considered as an affirmative defense, and (3) the election result locked inside a ballot box impounded by the NLRB is irrelevant to this enforcement petition.

Mangurian's, Inc. operates a chain of retail furniture stores and supporting warehouses. In late February 1975 the union began a concerted effort to organize the sales and nonsales employees in southeastern Florida. The union filed election petitions on various dates between March 10 and 13. On May 21 the Board's Regional Director directed that an election be held. On June 9, however, the union filed the unfair labor practice charges which are the subject of this review proceeding. The Board held the election on June 20, but impounded the ballots pending disposition of the unfair labor practice charges.

Discriminatory "No-Solicitation" Rule

Prior to the union campaign, the company had no rule prohibiting solicitation by employees at its West Palm Beach store, and collections for various charities regularly occurred. About March 1 the company posted a notice in the store which said that because of the union's "campaign to get in here . . . as in all matters which are unrelated to work, no person will be allowed to carry on Union organizing activities on the job" and violations will result in "serious disciplinary action."

The timing of the rule provides a sufficient basis for a Board finding that "the Company had motives other than maintenance of production or discipline." Brewton Fashions, Inc. v. NLRB, 361 F.2d 8, 17 (5th Cir.), cert. denied, 385 U.S. 842, 87 S.Ct. 95, 17 L.Ed.2d 75 (1966); see Republic Aviation Corp. v. NLRB, 324 U.S. 793, 803 & n. 10, 65 S.Ct. 982, 89 L.Ed. 1372 (1945). As such the rule presents a violation of § 8(a)(1), which makes it unlawful for an employer "to interfere with, restrain, or coerce employees" in the exercise of their rights to organize. The company removed the notice on March 9, and never enforced it, but those facts only mitigate the degree of coercion. This is not a case where the Board's only objection to a rule was the company's discriminatory enforcement. See Amalgamated Clothing Workers v. NLRB, 124 U.S.App.D.C. 365, 377-378, 365 F.2d 898, 910-911 (1966). Furthermore, the Board's misstatement in its complaint which indicated the rule was not posted until after election petitions were filed on March 10 was not a material error and did not deprive the company of adequate notice of the charges against it. See NLRB v. Sunnyland Packing Co., 557 F.2d 1157 (5th Cir. 1977). Finally, the approval of a notice containing similar language in Surprenant Manufacturing Co. v. NLRB, 341 F.2d 756, 758 (6th Cir. 1965), is not persuasive. There no claim of discriminatory timing was made, and the decision focused on sections of the notice for which this case provides no parallel.

Reprimand of Employee for Leafleting

A few days before a union meeting on March 16, employee Rene Proulx passed out leaflets near the exit of a Fort Lauderdale complex containing a company distribution center and a "Big M" store. Proulx was off from work that day. The leaflet invited recipients to "hear the real truth" at a given time and place. Above that message was a caricature of a business executive shouting into his intercom "Send me in someone to fire" and printed near his head were the words "Wilson, Inc." Ray Wilson was the company's president. About two months after the leafleting, Wilson sent Proulx a written warning and reprimand which implied the leaflet demeaned the company and its management in the eyes of its customers and if repeated "more serious action than this reprimand will be taken."

An employee has a right to distribute union literature on nonworking time in nonworking areas, absent an affirmative showing of special circumstances such as the maintenance of production or discipline justifying curtailment of that right. Republic Aviation Corp. v. NLRB, supra; Republic Aluminum Co. v. NLRB, 394 F.2d 405 (5th Cir. 1968) (en banc).

The company claims that its precarious financial position, coupled with the tendency of the leaflet to demean the company in the eyes of its customers, present such a special circumstance. The administrative law judge found, however, on Proulx' testimony, that only warehouse employees received the meeting announcements. While the language of the leaflet "Join Mangurian's Employees" could support an inference that it was intended for customers, and the company's operations manager testified Proulx gave the leaflet to customers, the administrative law judge did not credit his testimony. The company received no complaints from customers. In resolving factual disputes, credibility resolutions by the Board are entitled to affirmance on review unless the credited testimony is inherently unreasonable or defective. See NLRB v. American Art Industries, Inc. 415 F.2d 1223, 1227 (5th Cir. 1969), cert. denied, 397 U.S. 990, 90 S.Ct. 1122, 25 L.Ed.2d 397 (1970).

Alternatively, the company argues the leaflet was a "wanton attempt to lampoon President Wilson" which was

so disrespectful of the employer as seriously to impair the maintenance of discipline and thus render the employee unfit for further service.

NLRB v. Blue Bell, Inc., 219 F.2d 796, 798 (5th Cir. 1955) (employer called "a liar"). That conclusion, however, is out of place here. In the context of an organizational campaign hotly contested by both sides, some leeway must be tolerated. See Linn v. Plant Guard Workers, 383 U.S. 53, 61, 86 S.Ct. 657, 15 L.Ed.2d 582 (1966). The caricature did no more than express in a humorous fashion the acknowledged power of the president of an unorganized company to hire and fire. The Board's conclusion is in accord with the facts: "the literature was not defamatory and did not exceed the limits of appropriate campaign literature."

Threats to Close Stores

At the time of the campaign, the company had a reputation for unprofitability. It had sustained operating losses for five years, and the company had closed or sold stores in New York, Texas and Colorado, retaining only those in Georgia and Florida. Employees frequently questioned company officials about potential closings. President Wilson, who was hired to reverse the company's ill fortune, had adopted a policy of optimism. The Board found that during the campaign, however, management officials on three separate occasions unlawfully threatened that a union victory would by itself cause the company to go out of business. Such a statement, unaccompanied by a proven causal link to specific union economic demands, is a coercive threat rather than an honest forecast. NLRB v. Gissel Packing Co., 395 U.S. 575, 619-620, 89 S.Ct. 1818, 23 L.Ed.2d 547 (1969).

The company attacks the sufficiency of the evidence supporting all three findings. Taking the threats in chronological order, the first came on April 28 when company Personnel Director Steven Waldschmidt departed from a prepared speech to eight assembled West Palm Beach store employees and stated that if the union got in, the union could possibly cause the company to go out of business. The company presented witnesses who denied the statement was made, but the administrative law judge found one's memory imperfect, another's statement uncertain, and the third's testimony in part contradicted by facts not in dispute. In contrast, the administrative law judge determined that the testimony of two pro-union employees which established that the statement was made had the "ring of truth and certainty." Even though the judge apparently erred when he also placed reliance on the company's failure to call witnesses equally available to both sides, his finding that the threat was made is supported by a reasonable credibility choice.

The company also argues that the threat, even if made, was not a dire prediction amounting to a threat of reprisal or force or promise of benefit, but was instead a mere opinion protected by § 8(c), 29 U.S.C.A. § 158(c), and the First Amendment. See Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. 748, 778-779, 96 S.Ct. 1817, 48 L.Ed.2d 346, (Stewart, J., concurring). The case on which the company relies, NLRB v. Southwire Co., 429 F.2d 1050 (5th Cir. 1970), cert. denied, 401 U.S. 939, 91 S.Ct. 932, 28 L.Ed.2d 218 (1971), upheld a special master's determination that a company president's speech was protected even though it contained the opinion that he was, in the words of the Court, "unsure of the status of...