Cumberland Farms v. NLRB

• Court: Court of Appeals for the First Circuit
• Decided: February 4, 1993
• Docket: 92-2008
• Status: Published

Opinion

USCA1 Opinion

February 4, 1993  UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                                 ____________________

          No. 92-2008

                               CUMBERLAND FARMS, INC.,

                                     Petitioner,

                                          v.

                           NATIONAL LABOR RELATIONS BOARD,

                                     Respondent.

                                 ____________________

                     ON PETITION FOR REVIEW AND CROSS-APPLICATION
                            FOR ENFORCEMENT OF AN ORDER OF
                          THE NATIONAL LABOR RELATIONS BOARD

                                 ____________________

                                        Before

                             Torruella, Selya and Stahl,

                                   Circuit Judges.
                                   ______________

                                _____________________

               Philip J.  Moss, with whom  Moon, Moss, McGill  & Bachelder,
               _______________             ________________________________
          P.A., was on brief for petitioner.
          ____
               Deborah  E. Shrager,  Attorney, with  whom Jerry  M. Hunter,
               ___________________                        ________________
          General Counsel, Yvonne T.  Dixon, Acting Deputy General Counsel,
                           ________________
          Nicholas E. Karatinos,  Acting Associate General  Counsel, Aileen
          _____________________                                      ______
          A.  Armstrong,  Deputy  Associate  General   Counsel,  and  Peter
          _____________                                               _____
          Winkler, Supervisory Attorney, were on brief for respondent.
          _______

____________________

____________________

TORRUELLA, Circuit Judge.   This case  is before us  on
                               _____________

          petition to review  a decision  and order of  the National  Labor

          Relations  Board (the  "Board") filed  by Cumberland  Farms, Inc.

          (the  "Company"),  and  the  cross-application of  the  Board  to

          enforce  its order.1  The  Board found that  the Company violated

              8(a)(1)  and (3)  of the  National  Labor Relations  Act (the

          "Act"),  29  U.S.C.    58(a)(1)  and (3)  (1973), by  engaging in

          coercive  interrogation of  its employees  regarding their  union

          activities,  discharging employees  because of  these activities,

          and threatening  to arrest  a  union agent  while he  distributed

          handbills on public property.  Accordingly, the Board ordered the

          Company to reinstate the discharged employees with back  pay, and

          to post notices admitting these violations and disclaiming future

          illegal action.

                    The  Company  challenges  the findings  of  the  Board,

          claiming that they are unsupported by substantial evidence on the

          record considered  as a whole.   We disagree and  thus affirm the

          Board's order.  

                                      THE FACTS
                                      THE FACTS
                                      _________

                    The  record  supports   the  Board's  finding   of  the

          following facts.  The Company owns a dairy business that operates

          four  plants,  including one  in Florence,  New  Jersey.   In the

          summer  of 1990, the  United Food  and Commercial  Workers, Local

          1360, United Food and Commercial  Worker's International, AFL-CIO

          (the "Union") began  organizing in  this plant.   Two  employees,

____________________

          1  The  Board's order is reported at Cumberland  Farms, Inc., 307
          N.L.R.B. 231 (1992).

John Mariano  and John  Bartosh, distributed  union authorization

          cards to the employees.

                    Shortly after they  began the  membership drive,  their

          immediate  supervisor, Company  foreman John  Messner, questioned

          them on several occasions  regarding their actions and progress.2

          Thomas  Sweeney,  the Company's  Human  Resources Director,  also

          questioned Mariano about his union activities  in the presence of

          Bartosh.3    Mariano  and Bartosh admitted  involvement with  the

          drive.  

                    On August  3, 1990, six days after  Mariano and Bartosh

          began distributing Union authorization cards, the  Company issued

          a letter to  the employees urging them not to  sign. At 5:30 p.m.

          of the same day,  Emanuel Cavaco, the Company's Manager  of Dairy

          Operations, Robert Wood, the Florence plant manager, Sweeney, and

          plant engineer Allen Canney met with Mariano in a conference room

          and  stated   that  they   had  received  complaints   about  his

          distribution of  union authorization  cards.  Mariano   responded

          that  he  distributed  them  during  non-working  time.    Cavaco

          contended, however, that given the number of complaints received,

          he  must have engaged in these activities during working hours as

          well.    The  meeting  became more  confrontational  when  Cavaco
                              
          ____________________

          2   On one occasion, Messner  said, "I heard you  guys are giving
          out  union  cards.    I'm  all  for  the  union;  how's  the guys
          responding?      Are  you getting  a  lot  signed?"   On  another
          occasion,  he said:  "How are you guys doing?  Have you got a lot
          of  cards signed?   How's the guys  responding?  I'm  all for the
          union."

          3  Sweeney  asked, "Hey, John, .  . . anything new  I should know
          about around here, like the union?"

                                         -3-

accused  Mariano of  violating  a  Company no-solicitation  rule.

          After further questioning  Cavaco stated, "John, we  took you out

          of the  cooler;  we put  you  in with  the maintenance  to  learn

          something, and this is how you repay us.  Do you have anything to

          say  for yourself?"  When  Mariano said no,  Cavaco suspended him

          indefinitely.   Wood and  Canney then  escorted  Mariano off  the

          property and  denied him access to his locker.  Upon reaching the

          gate  Wood  said, "John,  didn't we  just  speak [about  a salary

          increase] a . . . week before  this - and then you pull something

          like this?  Do you have anything to say?"  Mariano left with  the

          impression that the Company  would further investigate.  However,

          a  week later,  although  no further  inquiry  was made,  Mariano

          received  a  letter from  the Company  terminating  him due  to a

          "comprehensive   investigation  concerning   the  no-solicitation

          policies."

                    On the day that Mariano was suspended, Cavaco, Sweeney,

          and Wood  subjected Bartosh to a  similar interrogation regarding

          alleged  complaints   against  him  for  violation   of  the  no-

          solicitation rule.  Bartosh flatly denied these charges.   Cavaco

          reminded Bartosh that the Company treated him favorably by moving

          him to  the maintenance department  and that  he therefore  "owed

          them."   Bartosh was then escorted off the Company premises after

          he  locked his  tools.   When  Bartosh returned  to the  plant to

          retrieve  his  tools,  Wood fired  him  for  having  solicited on

          company property.

                    On  August 16,  various non-employee  union organizers,

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including Mariano and Bartosh, distributed union handbills on the

          public highway near  the Company's plant entrance.   Although the

          organizers  were  on  public  property,  three  Company  security

          officers  told one of them that they were on Company property and

          would be  arrested if they did not leave.  When they arrived, the

          Florence police officers indicated  that the handbillers were not

          violating the law.

                                  STANDARD OF REVIEW
                                  STANDARD OF REVIEW
                                  __________________

                    We uphold the  Board's findings of a  violation as long

          as substantial evidence on  the record as a whole  supports them,

          even if we would have reached a  different conclusion.  29 U.S.C.

             160(e) and (f).

                                       ANALYSIS
                                       ANALYSIS
                                       ________

          I.  Coercive Interrogation
          I.  Coercive Interrogation

                    Section  8(a)(1) of  the  Act  protects employees  from

          coercive interrogation regarding their union activities.  NLRB v.
                                                                    ____

          Otis Hosp.,  545 F.2d 252, 256 (1st Cir. 1976).  The existence of
          __________

          coercion is generally a factual issue and depends on the totality

          of  the   circumstances,  id.,  including  the   setting  of  the
                                    ___

          interrogation  and  the  status  of the  interrogators.    P.S.C.
                                                                     ______

          Resources, Inc. v.  NLRB, 576 F.2d 380, 383 (1st  Cir. 1978).  An
          _______________     ____

          interrogation need  not contain explicit threats  to be coercive.

          NLRB v. Gogin, 575 F.2d 596, 600 (7th Cir. 1978).  
          ____    _____

                    Given  the  circumstances  of  this   case,  we  cannot

          conclude that the evidence does not  support the Board's findings

          regarding the coercive nature  of the interrogations.  A  team of

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high level managers confronted  Mariano and Bartosh shortly after

          they  began their  concerted  activities,  questioned them  about

          their  Union  affiliation,  and  accused   them  of  ingratitude.

          Moreover, during the confrontations, the managers  denied Mariano

          and  Bartosh access to the evidence against them, and in essence,

          denied them  an opportunity  to defend themselves.   Accordingly,

          the Board reasonably found the interrogations coercive.

          II.  Interfering with lawful Union activities
          II.  Interfering with lawful Union activities

                    An employer lacks a  legitimate interest in interfering

          with  union  activities  which  occur away  from  the  employer's

          property.  Threatening  to call  the police, in  the presence  of

          employees, to  interfere with lawful union  activity violates the

          Act.  NLRB v.  Schlegel Oklahoma, Inc., 644  F.2d 842, 843  (10th
                ____     _______________________

          Cir. 1981).    In the  present  case, Company  security  officers

          threatened to  have the  union organizers  arrested  in front  of

          Mariano and  Bartosh, who  as unfair labor  practice dischargees,

          continued  to retain employee status under the Act, see 29 U.S.C.
                                                              ___

            152(3).   Accordingly, the  Board correctly concluded  that the

          threat violated Section 8(a)(1) of the Act.

          III.  Discharge
          III.  Discharge

                    When an  employer discharges an employee for supporting

          a union, he  violates the Act,  29 U.S.C    158(a)(3), unless  he

          proves that he would have taken the same action in the absence of

          the employee's union activities.   NLRB v. Amber Delivery  Serv.,
                                             ____    ______________________

          Inc., 651 F.2d 57, 68-69 (1st Cir. 1981).  The  employer fails to
          ____

          meet this burden,  however, if the proposed reason  for discharge

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is shown to  be a mere pretext to  disguise discrimination.  NLRB
                                                                       ____

          v. Pilgrim Foods, Inc., 591 F.2d 110, 118 (1st Cir. 1979)
             ___________________

                    In reaching its determination  on motive, the Board may

          consider the timing of the discharge, id. at 117, any differences
                                                ___

          in the application of disciplinary  rules, NLRB v. S.E.  Nichols,
                                                     ____    ______________

          Inc., 862  F.2d 952, 959  (2d Cir. 1988), cert.  denied, 490 U.S.
          ____                                      _____________

          1108 (1989), the procedures used for  discharge, NLRB v. American
                                                           ____    ________

          Spring Bed  Mfg. Co., 670  F.2d 1236,  1245 (1st Cir.  1982), the
          ____________________

          investigation of  the purported reasons for  the discharge, Sioux
                                                                      _____

          Products, Inc. v.  NLRB, 684 F.2d 1251, 1259 (7th Cir. 1982), and
          ______________     ____

          the purported justifications for  the ultimate actions.  American
                                                                   ________

          Spring Bed Mfg. Co., 670 F.2d at 1245.
          ___________________

                    We conclude that substantial  evidence on the record as

          a whole supports the Board's findings regarding the discharges of

          Mariano and Bartosh.  The Company  admits that it  discharged the

          employees for distributing union authorization cards.  It argues,

          however, that  by distributing  those cards, Mariano  and Bartosh

          were soliciting,  and  that the  no-solicitation  rule  therefore

          justified the discharges.  

                    We  conclude,  as did  the  Board,  that the  Company's

          reliance on  the no-solicitation rule  was a  pretext to  justify

          discharges for engaging  in union activity.   At the time of  the

          discharges,  the Company knew  that Mariano and  Bartosh were the

          in-plant  leaders  of the  union's  organizational  effort.   The

          Company then  coercively  interrogated them  and then  discharged

          them based solely upon a cursory investigation, affording them no

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opportunity to defend themselves.  Moreover,     the    Company's

          employees  were generally  unaware of  the no-solicitation  rule,

          much  less its enforcement.  Indeed, Mariano and Bartosh were the

          only  employees that  the  Company ever  disciplined for  alleged

          violations of  the no-solicitation rule.   Accordingly, the Board

          reasonably determined that the  no-solicitation rule was merely a

          pretextual justification for an illegal discharge.

                    In a  final  attempt to  salvage  the validity  of  the

          discharges, the Company claimed  that Mariano and Bartosh engaged

          in time card irregularities.  However, the Company failed to even

          mention this  serious accusation  at the  time of  the employees'

          discharges.   Thus, the Board  reasonably afforded  no credit  to

          this argument.

                                      CONCLUSION
                                      CONCLUSION
                                      __________

                    We have  considered all  other allegations made  by the

          Company  and conclude that they lack merit.  The Board's judgment

          was  rational and effectively promotes the  goals of the Act.  As

          such, we affirm the Board's order.

                    The  petition  for review  is  denied  and the  Board's
                                                   ______

          request for enforcement of its order is granted.
                                                  _______

                    Costs to the Board.

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