N.L.R.B. v. Village IX, Inc.

• Citation: 723 F.2d 1360
• Decision Date: 29 December 1983
• Docket Number: No. 83-1432,83-1432
• Parties: 115 L.R.R.M. (BNA) 2297, 99 Lab.Cas. P 10,710 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. VILLAGE IX, INCORPORATED, d/b/a Shenanigans, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1360

723 F.2d 1360

115 L.R.R.M. (BNA) 2297, 99 Lab.Cas. P 10,710

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. VILLAGE IX, INCORPORATED, d/b/a Shenanigans, Respondent.

No. 83-1432.

United States Court of Appeals Seventh Circuit.

Dec. 29, 1983.

William Stewart, Elliott Moore, N.L.R.B., Washington, D.C., for petitioner.

Marc J. Ansel, Erwin, Martinkus Cole & Ansel, Ltd., Champaign, Ill., for respondent.

Before PELL, POSNER, and COFFEY, Circuit Judges.

POSNER, Circuit Judge.

The Labor Board found that a company that owns a restaurant called "Shenanigans" in Decatur, Illinois had engaged in eight unfair labor practices in the course of an organizing campaign, in violation of sections 8(a)(1) (interference with employees' protected activities) and 8(a)(3) (discrimination in terms or conditions of employment to encourage or discourage union membership) of the National Labor Relations Act, 29 U.S.C. Secs. 158(a)(1), (a)(3). The Board ordered the company to cease and desist from the violations and to post the usual notices assuring the employees that it would desist, and also ordered the company to bargain with the union as the exclusive representative of Shenanigans' workers, even though the union had lost the representation election. The company in its opening brief in this court asked us to set aside only four of the Board's unfair labor practice findings, plus the bargaining order. But the Board in its brief undertook at considerable length to defend even the uncontested findings, in order that, as the Board's attorney explained at argument, we might get the full "odor" of the company's conduct. Not surprisingly, this led the company in its reply brief to attack those findings, and we conclude that the correctness of all of the unfair labor practice findings is before us insofar as their correctness bears on whether the Board's bargaining order should be enforced.

In March 1980, a few months after Shenanigans opened, a waitress named Dee Griffiths received union-authorization cards from the United Retail Workers Union to give to the other employees. Assisted by her husband Ralph (not an employee) she became the principal organizer of the employees and held frequent meetings with them in her home during March and April. On April 13 Mrs. Griffiths called in sick to Shenanigans, but she was not sick; she was conducting an organizational meeting. The company found out about this and fired her the next day. This is the first of the unfair labor practices found by the Board.

Also on April 13 one of the company's co-owners, Block, made a speech (which was tape recorded) in which he told the employees that the restaurant business was highly competitive and that

Unions do not work in restaurants .... The balance is not here .... If the Union exists at Shenanigans, Shenanigans will fail. That is it in a nutshell.... I won't be here if there is a Union within this particular restaurant. I am not making a threat. I am making a statement of fact.... I respect anyone who wants to join the Union if that in essence is a workable place and can afford to pay Union wages. We can't in the restaurant business.

He said the only restaurant in Decatur that was unionized was struggling, and if Shenanigans raised its prices in order to pay union wages its customers would switch to the nonunion restaurants, whose prices would be lower. He added:

Shenanigans can possibly exist with labor problems for a period of time. But in the long run we won't make it. The cancer will eat us up, and we will fall by the wayside. And if you walk into this place five years down the road, if there is a Union in here, then I guarantee you it won't be a restaurant. I don't know what it will be. But wherever you people will be working in this town, in Decatur, it will not be in a Union restaurant. It will be in a non-Union restaurant, because there is a Union in town, it's at the Sheridan, and I think they only use one or two waitresses during the week and maybe three on the weekends. And you get Union wages, and I doubt if you get hardly any tips.

I am not making a threat. I am stating a fact. When you are dealing with the Union you had better consider the pros and cons. I am sure there is a lot of pros that are involved. I haven't looked into them in that great of detail because this is my first experience with them. I only know from my mind, from my heart and from my pocketbook how I stand on this. And I don't like the idea of looking at a Union as far as my employees are concerned.

The Board held that this speech was coercive.

Mrs. Griffiths complained to the Board about her discharge, and the Board and the company entered into a settlement agreement whereby the company agreed to reinstate her with back pay. She returned to work on November 20, 1980, and the same day the company announced that distributing any campaign literature on company time was forbidden. The Board found that this "no-distribution rule" violated section 8(a)(3) because it had been adopted in order to impede the union's organizing effort, and that it violated section 8(a)(1) because it extended to nonwork areas of the restaurant and nonworking time during the work day.

Ralph Griffiths had been accustomed to pick up his wife at the restaurant after work. Often he would arrive early--sometimes hours early--and pass the time in the restaurant, soliciting employees to join the union. The company forbade him to solicit and when he continued doing so banned him completely from the restaurant. This was held to be an unfair labor practice too.

The other four unfair labor practice findings grow out of a party that the company threw for Shenanigans' employees in January 1981 (the anniversary of its opening), two days before the election, at a different restaurant but one owned by the company's owners. Mrs. Griffiths and another known union adherent, Miss Tuttle, received invitations postmarked the day of the party and thus not delivered till it was too late; and when Miss Tuttle later complained to Block he said, "You didn't deserve one, bitch." The Board found that the company had deliberately delayed mailing invitations to the two employees and by doing so had discriminated against them because of their union activities, in violation of section 8(a)(3). At the party Block and his co-owner asked a retarded employee whether any union people had visited him in his home. He said they had. This was the end of the conversation, but the Board held that the questioning violated section 8(a)(1). Finally, in the parking lot outside the restaurant, Miss Tuttle along with two nonemployee union organizers put leaflets under the windshield wipers of the parked cars. Block ordered them removed and also knocked down one of the organizers, Ryan, who was putting a leaflet on Block's car. (Ryan was not hurt, and Block was not arrested.) The removal of the leaflets and the assault on Ryan were held to be unfair labor practices.

By December 22, 1980, the union had received signed authorization cards from 28 of Shenanigans' 47 employees. (Most of these cards had been secured back in March and April, when the organization campaign began.) The union petitioned for a representation election, and it was held on January 22. The union lost by a vote of 28 to 12.

With respect to the first and last (chronologically) of the alleged unfair labor practices--the discharge of Mrs. Griffiths and the assault on Ryan--the Board's findings are amply supported. Although Mrs. Griffiths called in sick when she was not sick, she arranged for another waitress to take her place; and since this type of substitution (not dependent on illness) was common at Shenanigans, the Board was entitled to infer that Mrs. Griffiths had been fired not because she had failed to show up for work as scheduled but because she was the leader of the organization campaign. As for Block's assault on Ryan, it is the Board's position, which was upheld in Heavenly Valley Ski Area v. NLRB, 552 F.2d 269, 273 (9th Cir.1977); cf. NLRB v. Berger Transfer & Storage Co., 678 F.2d 679, 691 (7th Cir.1982), that assaulting a union organizer in the presence of one or more employees of the company being organized violates section 8(a)(1) because an onlooker is likely to infer that if the company would assault an organizer it would also retaliate in some fashion against an employee who supported the union. Of course if Block had been acting reasonably in self-defense or defense of property such an inference by an onlooker would have been unreasonable. And he testified that the tires of his car had been slashed recently and when he saw someone bending over his car he thought the car was about to be damaged again. This is possible but the record entitled the Board to find, to the contrary, that Block knew full well what Ryan was doing and assaulted him in order to prevent him from distributing union leaflets. It is immaterial that, as the Board also found, Ryan had no right to distribute leaflets on private property without the owner's permission. The company does not argue that Block would have been justified in assaulting Ryan merely to protect a technical property right without a previous demand that he leave (there was none).

The no-distribution rule and preventing Miss Tuttle from distributing leaflets in the parking lot on the night of the party present related issues. Employees' rights of self-organization are not absolute, and yield to the company's right to operate its business without undue disruption. NLRB v. Browning-Ferris Industries, 700 F.2d 385, 388-89 (7th Cir.1983); id. at 390-91 (concurring opinion). A company may therefore prohibit union soliciting and leafletting while its employees are supposed to be working, provided that the rule is applied--as it was here--to anti-union as well as pro-union leafletting. "Working time is for work." Republic Aviation Corp. v. NLRB, 324 U.S. 793, 803 n. 10, 65 S.Ct. 982, 988 n. 10, 89 L.Ed....