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 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?"
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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
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
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
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
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
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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