Traction Wholesale Center Co. v. National Labor Relations Board

216 F.3d 92, 342 U.S. App. D.C. 201, 54 Fed. R. Serv. 328, 164 L.R.R.M. (BNA) 2769, 2000 U.S. App. LEXIS 15365
CourtCourt of Appeals for the D.C. Circuit
DecidedJune 30, 2000
DocketNo. 99-1336
StatusPublished
Cited by27 cases

This text of 216 F.3d 92 (Traction Wholesale Center Co. v. National Labor Relations Board) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Traction Wholesale Center Co. v. National Labor Relations Board, 216 F.3d 92, 342 U.S. App. D.C. 201, 54 Fed. R. Serv. 328, 164 L.R.R.M. (BNA) 2769, 2000 U.S. App. LEXIS 15365 (D.C. Cir. 2000).

Opinions

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. [97]*97Petitioner 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, Schia-vone 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 ware-housemen. During the next month, Schia-vone kept the union apprised 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 ware[98]*98house. 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.

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Bluebook (online)
216 F.3d 92, 342 U.S. App. D.C. 201, 54 Fed. R. Serv. 328, 164 L.R.R.M. (BNA) 2769, 2000 U.S. App. LEXIS 15365, Counsel Stack Legal Research, https://law.counselstack.com/opinion/traction-wholesale-center-co-v-national-labor-relations-board-cadc-2000.