Traction Wholesale Center v. Nat'l Labor Bd.

• Decision Date: 30 June 2000
• Docket Number: No. 99-1336,99-1336
• Citation: 216 F.3d 92
• Parties: (D.C. Cir. 2000) Traction Wholesale Center Co., Inc.,Petitioner v. National Labor Relations Board, Respondent
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 92

216 F.3d 92 (D.C. Cir. 2000)

Traction Wholesale Center Co., Inc.,Petitioner v. National Labor Relations Board, Respondent

No. 99-1336

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 20, 2000

Decided June 30, 2000

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On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board

Terrence J. Nolan argued the cause for petitioner. With him on the briefs was Christopher H. Mills.

Rachel I. Gartner, Attorney, National Labor Relations Board, argued the cause for respondent. On the brief were Leonard R. Page, General Counsel, Linda Sher, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, Peter Winkler, Supervisory Attorney, and Jill A. Griffin, Attorney.

Before: Randolph, Tatel and Garland, Circuit Judges.

Opinion for the Court filed by Circuit Judge Tatel.

Concurring statement filed by Circuit Judge Randolph.

Tatel, Circuit Judge:

Petitioner challenges the National Labor Relations Board's determination that it committed unfair labor practices in response to a union organizing campaign. Petitioner also challenges the Board's imposition of a bargaining order. Because we conclude that the Board's unfair labor practice determinations are supported by substantial evidence and that the Board adequately explained the need for the bargaining order, we deny the petition for review of those issues and grant the Board's cross-petition for enforcement.

I

Petitioner Traction Wholesale Center Company, Inc., a wholesale tire distributor, buys tires and wheels from manufacturers and larger distributors, reselling them to tire retailers and gas stations. Operating out of four warehouses--two in New Jersey and one each in Delaware and Philadelphia-Traction employed approximately thirty-six people at the time of the events that gave rise to this case. Traction Wholesale Ctr. Co., Inc., 328 NLRB No. 148, 1999 WL 1186753 at *10 (July 28, 1999). The unfair labor practices at issue occurred when Traction learned that a union had garnered support from a majority of its employees. As determined by an administrative law judge, the relevant facts are as follows.

In March 1997, several Traction employees approached Charles Schiavone, one of the company's Philadelphia drivers, "seeking guidance on how to form a union." Id. at *10. A seven-year Traction veteran, Schiavone contacted and met with the Teamsters Union, Local No. 115, about organizing warehouse employees and drivers working in the company's four warehouses. At the end of that meeting, Schiavone signed a union authorization card designating the union as his "chosen representative in all matters pertaining to wages, hours, and working conditions." Id. He also took blank authorization cards to distribute to Traction drivers and warehousemen. During the next month, Schiavone kept the union apprized of his organizing efforts. By April 14, the union had received signed authorization cards from eleven of Traction's twenty drivers and warehousemen. Id. at *11.

Armed with the eleven authorization cards, two union representatives went to the Philadelphia warehouse on April 15 to ask Traction to recognize the union. There they met with the on-site manager, Scott Adams, and showed him the signed authorization cards. Id. at *11. When Adams told the union representatives that he had no authority to recognize the union, they asked him to deliver a letter to Traction's owners, Joseph O'Donnell and Jeffrey Cohen, in which the union demanded recognition. Id. at *12.

Immediately after the union representatives left, Adams summoned Schiavone to his office, telling him that he was upset that Schiavone had not told him about the union organizing effort and demanding to know who had started it. Id. at *15, 22. Adams warned that Traction would either close the warehouse or subcontract for delivery services if the union campaign succeeded. Id. at *15. If Schiavone "wanted to be a union thug like other union supporters who destroy other people's property," Adams said, "then go right on ahead." Adams then told Schiavone to "get the fuck out of here." Id. When Schiavone called Adams the next morning asking whether he should return to work, Adams told him that he had been fired. Id.

On the same day that the union representatives met with Adams and showed him the eleven signed cards, Adams asked Kevin Tryon, another Philadelphia driver, whether he had signed an authorization card. Id. at *16, 23. When Tryon, who in fact had signed a card, answered no, Adams revealed that he had seen Tryon's signature on a card. Id. at *16. Later that evening, Adams told Tryon that Traction would "rather pay niggers $5.00 an hour" than work with the union. Id. He also told Tryon that Traction was "not afraid to close down, if that's what it takes." Id.

That same day, Adams announced two policy changes for the Philadelphia warehouse. First, employees would have to begin "punching out" and "punching in" on the time clock to document that they took no more than thirty minutes for lunch. Id. at *16-17. Second, employees could no longer use company vans after work for personal reasons. Id. Until this announcement, Adams had allowed such use even though company policy prohibited it.

The union then filed a representation petition, and the Board ordered an election. During the two months before the election, Traction's two owners and Adams conducted two meetings with the Philadelphia drivers and warehousemen that led to additional unfair labor practice charges. At the first meeting, on April 23, Adams told Tryon that although he was "due for a raise, he would not be getting it...." Id. at *18. Also during that meeting, Cohen (one of the owners) asked the employees what Traction had done to make them bring in a union, telling them not only that Traction could offer them more than the union, but that if they had any personal or job-related problems, Traction could help. Id. at *18, 24. At a second meeting, this one on June 3, Cohen told the employees that Traction would "give them more than the union" and that once they "got past this thing, we can move on to something bigger and better." Id. at *24.

The union lost the election. Sixteen employees voted against the union, two voted for it, and two ballots were contested. Id. at *19. Following an evidentiary hearing, an administrative law judge found that Traction had committed a series of unfair labor practices in violation of sections 8(a)(1) and (3) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1), (a)(3), by firing Schiavone, denying Tryon's raise, and changing its policies with respect to personal use of vans and clocking in and out for lunch. Id. at *37. The ALJ also concluded that Adams' comments to both Schiavone and Tryon amounted to unfair labor practices in violation of section 8(a)(1), as did Cohen's comments to Traction's Philadelphia employees. Id. The ALJ recommended that the Board invalidate the election and issue a bargaining order.Id. at * 38.

The Board agreed that Traction had committed the enumerated unfair labor practices and that a bargaining order was appropriate. Id. at *1. The Board disagreed with the ALJ on just one issue. Despite concluding that Traction had committed an unfair labor practice by changing its van policy, the ALJ recommended no remedy because Traction had offered evidence that its insurance policy would not cover personal use of company vans. Id. at *38 n.30. Without explanation, the Board ordered Traction to rescind its personal use prohibition. Id. at *1 n.2. Member Brame dissented on two grounds: he thought that Cohen's remarks at the April 23 and June 3 meetings did not amount to unfair labor practices; he also thought the bargaining order inappropriate because, in his view, the union had never attained majority support. Id. at *5-6.

In its petition for review, Traction argues that the unfair labor practice charges stemming from the Schiavone firing, the changed van policy, the denial of Tryon's raise, and Cohen's comments are not supported by substantial evidence in the record. Traction also challenges two of the Board's remedies: the reinstatement of its personal van use policy and the bargaining order. With respect to the latter, Traction argues that the Board failed to satisfy this circuit's strict standards for imposing bargaining orders. See, e.g., Avecor, Inc. v. NLRB, 931 F.2d 924, 934-39 (D.C. Cir. 1990). The Board cross-petitions for enforcement.

II

Section 8(a)(1) of the NLRA makes it an unfair labor practice for employers "to interfere with, restrain, or coerce employees" in the exercise of their rights "to selforganization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection...." 29 U.S.C. §§ 158(a)(1), 157. Section 8(a)(3) makes it an unfair labor practice for employers "by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization." Id. § 158(a)(3). To establish that an employer's conduct (in this case, Schiavone's firing, the change in van policy, and the denial of Tryon's raise) violates section 8(a)(3), the general counsel must first show that the "protected activity was a motivating factor in the adverse employment decision." Frazier Indus. Co., Inc. v. NLRB, 213 F.3d 750 (D.C. Cir. 2000) (internal quotation marks omitted). If this prima facie showing is made, the burden shifts to the employer to demonstrate that "it would have made the adverse decision even had the employee not engaged in protected activity." Vincent Ind. Plastics, Inc. v. NLRB, 209 F.3d 727, 735 (D.C. Cir. 2000) (citing Wright Line,...