Raley's, Inc. v. N.L.R.B.
| Decision Date | 07 April 1983 |
| Docket Number | Nos. 81-7471 and 81-7592,AFL-CIO and I,s. 81-7471 and 81-7592 |
| Citation | 703 F.2d 410 |
| Parties | 112 L.R.R.M. (BNA) 3376, 97 Lab.Cas. P 10,002 RALEY'S, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Retail Clerks Union Locals 373, 588 and 1179, United Food & Commercial Workers,ndependent Drug Clerks Association, Intervenors. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Henry R. Telfeian, McLaughlin & Irvin, Norman Leonard, San Francisco, Cal., for petitioner.
David R. Marshall, N.L.R.B., Washington, D.C., for respondent.
Petition for review of a Decision and Order of the National Labor Relations Board.
Before KENNEDY, ALARCON, NELSON, Circuit Judges.
Petitioner, Raley's Inc. (Raley's), seeks review of a Decision and Order of the National Labor Relations Board (Board) issued June 29, 1981 under National Labor Relations Act Sec. 10(f), 29 U.S.C. Sec. 160(f) (1976). 1 The Board found that Raley's had engaged in several unfair labor practices under sections 8(a)(1) and (2) of the National Labor Relations Act (Act), 29 U.S.C. Sec. 158(a)(1), (2) (1976). These findings were based on Raley's conduct in the period preceding a 1979 representation election between the incumbent Independent Drug Clerks Association (IDCA) and the Retail Clerks Union (Retail Clerks). The Board ordered Raley's to cease and desist from the unfair labor practices and to post notices to that effect. The election was set aside, and an order directing a second election was issued.
We affirm all the unfair labor practice findings except the conclusion that Raley's violated section 8(a)(1) and (2) of the Act by announcing the existence of lawfully granted benefits in order to influence the election. We reverse this finding on the basis of the employer's free speech rights guaranteed by Sec. 8(c) of the Act, 29 U.S.C. Sec. 158(c) (1976), reverse the order of the associated remedial measures, and remand the election order to the Board for reconsideration.
After considering the record as a whole, we accept the Administrative Law Judge's findings of fact (adopted by the Board) as being supported by substantial evidence. 29 U.S.C. Sec. 160(e) (1976); Universal Camera Corp. v. NLRB, 340 U.S. 474, 485, 71 S.Ct. 456, 463, 95 L.Ed. 456, 466 (1951). Because the Board and the Administrative Law Judge have provided an extensive discussion of the complex facts in this case, and because we summarily affirm most of the Board's conclusions, we repeat only the basic facts and those relevant to the issues that are discussed in detail in this opinion.
Raley's is engaged in the retail sale of food, drugs, and related products throughout Northern California. Since 1964, all its drugstore and Drug Center employees have been represented by the IDCA, which was certified in an election conducted by the Board. During its tenure, the IDCA has negotiated successive collective bargaining agreements, the most recent of which was in effect at all times relevant to this case.
In April, 1979, various Retail Clerk locals began a campaign to organize Raley's Drug Center and drugstore employees and to oust the incumbent IDCA. Raley's has officially maintained a neutral posture between the two unions.
In June or July of 1979, Kay Sordillo, Secretary-Treasurer of the IDCA, called James Teel, Vice-President of Raley's, and requested that Raley's send an insurance representative to the stores to explain increased health and welfare benefits to the employees. Sordillo had received a number of questions from employees regarding their benefits, and it appeared that many of them were unaware of the precise nature and extent of those benefits. Teel contacted company counsel and then advised Sordillo that Raley's could explain its benefits but could not campaign on either union's behalf.
In late April, 1979, Raley's granted increased health and welfare benefits to its California employees who were represented by the IDCA. Raley's Nevada employees, who were represented by the Retail Clerks, had been granted additional benefits in early April. The California employees received their benefits pursuant to a 1977 agreement between the IDCA and Raley's that guaranteed IDCA-represented employees any benefits granted to the Nevada workers.
In late July and early August, before the August 16 election, meetings were held at most of Raley's retail stores in order to explain the health and welfare benefits to the employees. Sordillo and Robert Gilbert, the insurance carrier's representative, were present at each of these meetings.
The IDCA secured 106 of the 193 votes cast in the election, enough to maintain its representation. The Retail Clerks filed three cases with the NLRB charging that Raley's had committed unfair labor practices in connection with the election. After hearing a great deal of conflicting testimony, the Administrative Law Judge issued a Decision and Order that was adopted by the Board on June 29, 1981.
The Board reached the following conclusions regarding the unfair labor practice charges:
1) By unlawfully interrogating employees about their union membership sympathies and activities, Respondent Raley's has violated Section 8(a)(1) of the Act. [29 U.S.C. Sec. 158(a)(1) (1976).]
2) By threatening employees with discharge or discipline if they spoke to representatives of the Retail Clerks on company time while allowing representatives of the IDCA to freely campaign among the employees in all areas of the stores, Respondent Raley's has violated Section 8(a)(1) and (2) of the Act. [29 U.S.C. Sec. 158(a)(1), (2) (1976).]
3) By unlawfully announcing the granting of increased health and welfare benefits in order to induce the employees to select the incumbent IDCA as their bargaining representative and to discourage employee support for the Retail Clerks, Respondent Raley's violated Section 8(a)(1) and (2) of the Act. [29 U.S.C. Sec. 158(a)(1), (2) (1976).]
4) By removing campaign literature of the Retail Clerks from the employees' bulletin board while allowing literature from the incumbent IDCA to remain posted, the Respondent has violated Section 8(a)(1) and (2) of the Act. [29 U.S.C. Sec. 158(a)(1), (2) (1976).]
Raley's was ordered to cease and desist from those practices and to take certain affirmative actions designed to effectuate the policies of the Act. The Board also directed that the August, 1979 representation election between the Retail Clerks Union and the IDCA be set aside and a new one be conducted.
This case presents three issues on appeal:
I. Was there substantial evidence to support the Board's unfair labor practice findings?
II. May an employer violate Section 8(a)(1) of the Act by announcing and explaining lawfully granted benefits in order to influence an election?
III. What is the proper disposition of the election order?
This section will consider the unfair labor practice issues, and will then address the question of the election order.
The substantial evidence standard governs our review of the Board's finding of an unfair labor practice. We must affirm the Board's conclusions as to whether various unfair labor practices were committed if such a conclusion is supported by substantial evidence on the record considered as a whole. NLRB v. Max Factor & Co., 640 F.2d 197, 204 (9th Cir.1980), cert. denied, 451 U.S. 983, 101 S.Ct. 2314, 68 L.Ed.2d 840 (1981); NLRB v. Prineville Stud Co., 578 F.2d 1292, 1296 (9th Cir.1978); see NLRB v. Mercy Peninsula Ambulance Service, Inc., 589 F.2d 1014, 1019 n. 8 (9th Cir.1979).
We summarily affirm all the Board's unfair labor practice findings except the one that Raley's violated section 8(a)(1) by announcing new health and welfare benefits in order to influence the outcome of the election. Although we accept for purposes of this analysis the Board's conclusion that Raley's timed the employee meetings regarding increased benefits so as to influence the voting, we reverse the finding of a violation of the Act because the announcement and explanation of lawfully granted benefits is a protected activity under section 8(c) of the Act. 2
Section 8(a)(1) of the Act makes it an unfair labor practice "to interfere with, restrain or coerce employees in the exercise of the rights guaranteed in section 7," which entitles employees to choose their own representatives. 29 U.S.C. Secs. 157, 158(a)(1) (1976). Section 8(c) affirms an employer's right to express "any views, argument, or opinion" without violating section 8(a)(1) as long as such expression contains "no threat of reprisal or force or promise of benefit." 29 U.S.C. Sec. 158(a)(1), (c) (1976); see NLRB v. Four Winds Industries, 530 F.2d 75 (9th Cir.1976); NLRB v. Raytheon Co., 445 F.2d 272 (9th Cir.1971). In NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969), the Supreme Court established that "an employer is free to communicate to his employees any of his general views about unionism or any of his specific views about a particular union, so long as the communications do not contain a 'threat of reprisal or force or promise of benefit.' " 395 U.S. at 618, 89 S.Ct. at 1942, 23 L.Ed.2d at 580 (quoting 29 U.S.C. Sec. 160(c)). An employer's free speech rights apply in an election between two unions as in an organizational election. See AFL v. NLRB, 308 U.S. 401, 411 n. 4, 60 S.Ct. 300, 305 n. 4, 84 L.Ed. 347, 353 n. 4 (1940). This court has stated that "unfair labor practices predicated on speech must be scrutinized carefully and unless the speech is coercive--i.e. contains threats or promises--it is privileged." NLRB v. Marine World USA, 611 F.2d 1274, 1277 (9th Cir.1980). An employer may attempt to influence the outcome of an election by presenting facts and even making predictions based on fact, as long as the employer avoids using its influence to interfere with employee...
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