J.C. Penney Company, Inc. v. National Labor Relations Board

123 F.3d 988, 156 L.R.R.M. (BNA) 2161, 1997 U.S. App. LEXIS 22828
CourtCourt of Appeals for the Seventh Circuit
DecidedAugust 29, 1997
Docket96-3679, 96-3994
StatusPublished
Cited by32 cases

This text of 123 F.3d 988 (J.C. Penney Company, Inc. v. National Labor Relations Board) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
J.C. Penney Company, Inc. v. National Labor Relations Board, 123 F.3d 988, 156 L.R.R.M. (BNA) 2161, 1997 U.S. App. LEXIS 22828 (7th Cir. 1997).

Opinions

BAUER, Circuit Judge.

This appeal concerns J.C. Penney Company’s petition for review of an order of the National Labor Relations Board (“the NLRB” or “the Board”), which found that J.C. Penney had violated § 8(a)(1) of the National Labor Relations Act (“the NLRA”). Specifically, the Board adopted the findings and order of an administrative law judge (“ALJ”). The ALJ concluded that a J.C. Penney supervisor threatened an employee with discharge because of her union sympathies and that J.C. Penney maintained a discriminatory policy which prohibited the posting of union materials on company bulletin boards and work carts that were otherwise available for general use by the employees. The Board filed a cross-application for enforcement of its order. We deny the Board’s request to enforce that part of the order requiring that J.C. Penney cease and desist from threatening employees with the loss of employment because of them union activities. We grant the Board’s request for enforcement of the remainder of its order.

Background

J.C. Penney operates a large Catalog Fulfillment Center (“the CFC”) in Lenexa, Kansas. In early 1995, the International Brotherhood of Teamsters, Local Union No. 41, AFL-CIO (“the union”), began a campaign to organize the more than 1,000 employees who work at the CFC. Employee supporters of the union started distributing union materials in the CFC shortly thereafter. This case arose when a regional director of the NLRB issued a complaint in response to union charges that during the union’s campaign, J.C. Penney violated §§ 8(a)(1) and (a)(3) of the NLRA.

Diana Sanders Jaccard was (and, as far as we know, still is) a J.C. Penney employee. Because a wrist injury prevented her from performing her regular duties, Jaccard was given a temporary position at J.C. Penney’s Central Warehouse Office, beginning in late summer of 1994 and scheduled to end in early 1995. Jaccard was a union supporter. On or about February 2,1995, the union sent a letter to J.C. Penney stating that several employees, including Jaccard, supported the union’s efforts to organize employees at the CFC. After her temporary position came to an end, Jaccard was placed on medical leave in March 1995. Eventually, Jaccard’s medical restriction was removed, and she was reinstated in a new department with a permanent position and a higher salary.

Part of the reason for the NLRB’s issuing a complaint had to do with an incident during Jaccard’s tenure in the temporary position. Jaccard testified before an ALJ that on February 13,1995, Mark Smith, a Central Warehouse supervisor, approached her and they discussed Jaccard’s pending marriage. Joanne Wells, another employee, was also [992]*992present. During the course of this conversation, Smith noticed that Jaccard was wearing a union button and stated, “Oh, you’re for the Union.” When Jaccard did not respond, Smith said, “I’m glad you got a husband.” Wells turned to Jaccard and said, “Oh, you won’t live long.” Smith looked sharply at Wells and then walked away. After this incident, Jaccard stopped wearing any union buttons and instead put them inside or attached them to her purse. Before the ALJ, Smith denied that he ever saw Jaccard wearing a union button and that he ever made the statements. Wells did not testify. The ALJ found Jaccard’s testimony to be credible. He concluded that Smith’s remarks threatened Jaccard with discharge because of her union activities, in violation of § 8(a)(1) of the NLRA.

This appeal also concerns J.C. Penney’s policy on posting union materials. J.C. Penney had a policy in effect since 1977 which forbade displaying personal items, solicitations, or anything else that was not company-sponsored or did not have a direct effect on work. J.C. Penney did allow its employees to post a company-approved newsletter, the Lenexa Board of Trade, which publicized employee personal items for sale.

The ALJ found that nonwork-related materials regularly appeared on some of the CFO’s bulletin boards. Some of these postings were company-sponsored solicitations for the United Way and the March of Dimes charities. Others were personal and unapproved, including thank-you notes, party announcements, Christmas cards, a solicitation for maid service, and collections when employees died or were hospitalized. The ALJ found that at least some of the personal, unapproved materials remained posted for long periods of time. J.C. Penney considered union materials a solicitation. Supervisors removed union materials from bulletin boards, but, in at least one instance, J.C. Penney left untouched an adjacent noncom-pany posting.

The ALJ found that J.C. Penney’s enforcement of its rule against unapproved postings was “spotty.” The ALJ also considered J.C. Penney’s admission that union postings would never be approved even though other personal postings regularly appeared on the boards. Under these circumstances, the ALJ concluded that J.C. Penney’s policy of removing unapproved postings from its bulletin boards was “disparately applied to union materials.” The ALJ found J.C. Penney in violation of § 8(a)(1) of the NLRA.

Employees at the CFC often personalized their carts with stickers, photographs, and other materials. On March 10, 1995, Operations Manager Tom Riechl removed two union bumper stickers from employee Paul Farris’ work cart, but left untouched several nonunion stickers and family pictures attached to the cart. When Farris called Personnel Manager Jeffrey Sembler to complain, Sembler told Farris that he could personalize his cart with family pictures but that he could not have offensive pictures, cartoons or sayings. Farris was also instructed that employees were not permitted to put union stickers on their carts because the carts were company property, and union stickers constituted solicitation material. The ALJ concluded that J.C. Penney had permitted the decoration of work carts and that Reichl’s removal of the union stickers and Sembler’s affirmation of that action were discriminatory modifications of J.C. Penney’s permissive practice toward work cart decoration. The ALJ concluded that J.C. Penney again violated § 8(a)(1) of the NLRA.

On November 9, 1995, management personnel and employee representatives held a meeting. Randy Heldenbrand, an employee representative, asked CFC Manager Frank Kemp why J.C. Penney had removed union materials from the cafeteria tables. Hel-denbrand testified that Kemp responded that he did not have to provide an open forum for the union inside the CFC. Heldenbrand then inquired about a rumor that some bulletin boards for posting union materials would be available. Heldenbrand recalled that Kemp did not respond and went on to discuss another subject. Shortly thereafter, the minutes of the meeting were posted. The minutes of the meeting stated:

Q: Flyers were passed out this week concerning the union. Why did management pick them up? I was told it was against the law to pick them up.
A: We have easels to display union material as well as our response. One of the [993]*993main reasons that we went to displaying information both ours and theirs on easels was to minimize the miscellaneous papers being posted and left laying [sic] around.

Heldenbrand testified that no mention was made of easels at the meeting. Kemp did not testify, but Sembler recalled that the question was asked and that Kemp stated that J.C. Penney generally picked up all unattended materials left on cafeteria tables.

Around this time, J.C.

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Cite This Page — Counsel Stack

Bluebook (online)
123 F.3d 988, 156 L.R.R.M. (BNA) 2161, 1997 U.S. App. LEXIS 22828, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jc-penney-company-inc-v-national-labor-relations-board-ca7-1997.