N.L.R.B. v. Pepsi-Cola Bottling Co. of Topeka, Inc.

• Decision Date: 07 January 1980
• Docket Number: No. 77-1716,PEPSI-COLA,77-1716
• Citation: 613 F.2d 267
• Parties: 103 L.R.R.M. (BNA) 2233, 87 Lab.Cas. P 11,784 NATIONAL LABOR RELATIONS BOARD, Petitioner, v.BOTTLING COMPANY OF TOPEKA, INC., Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 267

613 F.2d 267

103 L.R.R.M. (BNA) 2233, 87 Lab.Cas. P 11,784

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PEPSI-COLA BOTTLING COMPANY OF TOPEKA, INC., Respondent.

No. 77-1716.

United States Court of Appeals Tenth Circuit.

Argued March 12, 1979.

Decided Jan. 7, 1980.

Corinna Lothar Metcalf, Atty., N. L. R. B., Washington, D. C. (John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Carl L. Taylor, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Marion Griffin, Atty., N. L R. B., Washington, D. C., with her on brief), for petitioner.

William G. Haynes, of Eidson, Lewis, Porter & Haynes, Topeka, Kan. (K. Gary Sebelius, Norton, Kan., with him on brief), for respondent.

Before SETH, Chief Judge, and BREITENSTEIN and LOGAN, Circuit Judges.

LOGAN, Circuit Judge.

The National Labor Relations Board has applied for enforcement of an order it issued against Pepsi-Cola Bottling Company of Topeka, Inc., requiring the Company to cease and desist from unfair labor practices, to bargain collectively with the union, to reinstate former strikers and compensate them for loss of earnings, and to post the usual notice. The administrative law judge found the Company had violated section 8(a)(1), (3) and (5) of the National Labor Relations Act (the Act), 29 U.S.C. § 158(a)(1), (3) and (5); the Board affirmed with slight modification.

All of the events involved in this case occurred in 1975. Local No. 142, Laborer's International Union, AFL-CIO, was certified as the bargaining representative of the Company's employees on April 7. When negotiations for a contract were unsuccessful, the Union employees struck from June 23 to July 15. The strike failed; it was later found to be an economic and not an unfair labor practice strike. On July 16 the strikers applied for reinstatement (apparently through the Union), but were told their jobs had all been filled. During this time the Company was owned entirely by Donald Bidwell and his wife, who sold all their shares to Donald Hogue, the sale to be effective August 4. Pursuant to an agreement made in connection with this sale, Bidwell terminated all of the employees on August 2, notifying them that they could reapply for jobs with the new owner. Hogue hired at least 80% Of the people who had been working for the Company at the time of the transfer, most of them nonstrikers or persons hired to replace strikers. Hogue hired one of seven strikers who applied for work, and at least one other new employee. Hogue refused to negotiate with the Union after the sale, claiming that he had serious doubts it represented a majority of the Company's employees.

The Board found Bidwell had lawfully terminated the employees. This ruling is not challenged. Some of the unfair labor charges made by the Board were adjudicated in favor of the Company, and these also are not at issue in this proceeding. The controversy here concerns the Board's findings of the following violations:

(1) Section 8(a)(1) violations founded on Bidwell's interrogation of two employees concerning whether they "knew of" the letter sent by the Union during the pre-election period; Bidwell's threat to discharge two employees because of union activities; and the Company's requirement, during Bidwell's ownership, that the replaced strikers fill out new employment application forms;

(2) Hogue's refusal to bargain with the Union after he acquired the Company, in violation of sections 8(a)(1) and (5);

(3) Hogue's discrimination against strikers in his hiring process, in violation of sections 8(a)(1) and (3).

Section 10(e) of the Act, 29 U.S.C. § 160(e), provides that fact findings made by the Board are conclusive "if supported by substantial evidence on the record considered as a whole." It is not this Court's place to overturn the Board's decision because it might have decided the matter differently. This standard, however, does not remove from the courts of appeals their responsibility to assure that the Board acts within reasonable bounds and that the supporting evidence is indeed substantial. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 490, 71 S.Ct. 456, 95 L.Ed. 456 (1951).

I

The evidence supporting the unfair labor practice charges concerning Bidwell's interrogation about the letter sent by the Union and his threats of discharge consists primarily of the conflicting testimony of Bidwell and the employee involved in each incident. The administrative law judge believed the employees' recitals of the events. The determination of credibility is particularly within the province of the hearing officer. NLRB v. Dover Corp., Norris Div., 535 F.2d 1205, 1209 (10th Cir.), Cert. denied, 429 U.S. 978, 97 S.Ct. 488, 50 L.Ed.2d 586 (1976). We see no circumstances in the record that would indicate these findings are unreasonable and therefore we accept the determination of credibility.

The opinion of the administrative law judge fairly sets out the testimony and his basis for finding that the interrogations were coercive. The evidence is not overwhelming, but is sufficient. Since the determination of whether particular interrogations are unlawful is the primary responsibility of the Board, we will not disturb its decision. See NLRB v. Miller Trucking Serv. Inc., 445 F.2d 927, 930-31 (10th Cir. 1971).

Substantial evidence supports finding Bidwell unlawfully threatened two employees with discharge. Zane Brown testified that he was called to a meeting in Bidwell's office to discuss his continued employment and was told by Bidwell, "(W)hen you're in the Union, you're fighting the company. And when you fight the company, I have no further needs of your services." Janice Cote testified that when she was in Bidwell's office discussing her continuing employment, he stated this "was his business and no crazy sons of bitches (referring to the Union) was going to run it and he could get rid of us anytime he wanted to and no god damn union was going to save us." These statements, made to employees in the formal atmosphere of the president's office in the context of discussing their continued employment, constitute a violation of section 8(a)(1).

The Board also insists that Bidwell committed an unfair labor practice by requiring the economic strikers who had been replaced during the strike to file employment applications if they were interested in filling vacancies that might occur in the future. In support of this holding the administrative law judge stated,

To denigrate and deny the replaced strikers their rights by placing them on a par with someone who applies for a job off the street, as it were, necessarily results in a loss of these rights to the striker. In short, the requirement of making out new applications for employment addressed to replaced strikers wipes the slate clean with respect to any rights and priviliges (sic) they may have secured as employees. This deprivation constitutes, in my view, a retaliation or penalty for having engaged in protected, concerted activity, and is therefore violative of Section 8(a)(1) of the Act.

Economic strikers retain their status as employees as long as they have not obtained other regular and substantially equivalent employment. See Act § 2(3), 29 U.S.C. § 152(3); NLRB v. Fleetwood Trailer Co., 389 U.S. 375, 378-81, 88 S.Ct. 543, 19 L.Ed.2d 614 (1967). Once rehired, economic strikers regain their seniority and other benefits, essentially the same as if they had been laid off in a force reduction and then recalled. Id. ; NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 87 S.Ct. 1792, 18 L.Ed.2d 1027 (1967). Therefore, treating economic strikers as new employees violates the Act.

The evidence on both sides shows the company attorney told the returning strikers there were no jobs available and they should "reapply" or "go make applications." Thus, it seems certain they were told that they must make some kind of formal application on an individual basis. But this is not necessarily evidence that the strikers were treated in significant respects the same as employees who had never worked for the Company.

In addition, there is evidence showing treatment consistent with continuing employee status. Bidwell's son testified that one striker was recalled between the end of the strike and the termination of all employees on August 2. The notice of termination in connection with the sale of the business was mailed to the strikers as well as to those currently employed. Further, the administrative law judge's opinion states, "there is no evidence that during the period between July 15 and August 2, there were any jobs available for the returning strikers caused by the departure of permanent replacements, or otherwise."

It might be argued that the Board could adopt a Per se rule, forbidding a requirement that employees file individual employment applications to come back to work on the theory that such a requirement always is an unfair labor practice, either because it is inconsistent with the recognition of the Union's status as the employees' bargaining representative or because, without a clear statement by the employer that the strikers retain their continuing-employee status, requiring a new employment application infers loss of seniority and other employee rights and hence is coercive. Cf. NLRB v. Robinson, 251 F.2d 639 (6th Cir. 1958) (circumstances inferred loss of employee status in requirement to file "new" application). We do not understand, however, that the Board is adopting a Per se rule here. The determination, as quoted above, appears to be based upon a finding that this company denied the strikers their rights as continuing employees. That finding is not supported by substantial evidence. See NLRB v. Fleetwood Trailer Co., 389 U.S. 375, 381, 88 S.Ct. 543, 547, 19 L.Ed.2d 614 (1967) ("The right to reinstatement does not depend upon technicalities relating to application.") Enforcement will be denied to this aspect of the Board...