Great Lakes v. NLRB ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 00-2226, 00-2191
Great Lakes Warehouse Corporation,
Petitioner/Cross-Respondent,
v.
National Labor Relations Board,
Respondent/Cross-Petitioner.
On Petition for Review and Cross-Application
for Enforcement of the Order of the
National Labor Relations Board.
No. 13-CA-36553.
Argued January 16, 2001--Decided February 7, 2001
Before Flaum, Chief Judge, and Posner and Coffey,
Circuit Judges.
Flaum, Chief Judge. Great Lakes Warehouse
Corporation ("GLW") appeals from the National
Labor Relations Board’s ("NLRB" or "Board") order
finding that it violated the National Labor
Relations Act ("NLRA") by firing one employee and
attempting to promote another soon before a union
organizing drive. GLW claims that its mere offer
of a promotion cannot violate the NLRA and that
it fired the other employee in accordance with
its disciplinary policy. For the reasons stated
herein, we reject GLW’s arguments and grant
enforcement of the NLRB’s order.
I. Background
GLW is a warehousing company in Northern
Indiana owned by the Faure Brothers Corporation
("Faure"). In October, 1997, an affiliate of the
International Brotherhood of Teamsters, AFL-CIO
was preparing an organizing drive at GLW. GLW
employees Gary Anderson and Victor Oller were
known union supporters who had been active in
prior attempts to unionize GLW.
On October 16, the warehouse distribution
manager offered Anderson the position of foreman,
which had been open for approximately four
months. Anderson declined, and the manager asked
him if he was refusing the job "because of the
union?" Anderson replied that he could not
comment. The manager responded that Anderson
should "be prepared for changes" and walked away.
On October 20, as Anderson was leaving the
building, he met three management officials,
including the owner of Faure. The owner asked him
why he had refused the foreman job, and Anderson
said that he "couldn’t talk about it." The owner
then asked why he and other employees could not
talk to her about their concerns, rather than
seeking union representation and incurring the
attendant dues. Anderson was unresponsive and the
conversation turned to golf and other matters. No
negative changes in Anderson’s pay or working
conditions took place after he refused the offer,
and he voluntarily resigned in March, 1998.
Oller, a forklift driver, was fired by the
company after receiving repeated written warnings
for errors. The company had a progressive
disciplinary policy, known to Oller, with the
fourth warning requiring the employee’s
termination. On October 21, the warehouse
distribution manager issued Oller his first
warning for an incident on October 1 when a truck
loaded by Oller left without a pallet of ordered
product. Oller received his second warning and a
one-day suspension without pay around October 28
for unloading more cases of product than
necessary on October 21. The third warning was
issued on October 30 when he mislabelled four
hundred cases of product on October 20; Oller was
given a three-day suspension without pay by the
manager. The fourth and final warning was
presented to Oller on November 7 for putting the
incorrect expiration date on cases of cheese on
October 27. Management presented Oller with the
option of voluntarily resigning and being given
a severance package in return for signing a
settlement offer and release prepared by the
company. Oller was given a week off to consider
this offer, but he rejected it on November 14 and
was immediately fired.
GLW had been more lenient in the application of
its disciplinary policy with other employees by
giving only a single warning for multiple
mistakes. Barbara Pala received a second warning
for errors occurring on three different days,
which was followed by a third warning which also
covered three different days worth of errors.
When Pala was eventually forced to resign, her
final written warning stated that she had been
averaging two mistakes a week. Another employee,
Sharon Cole, was given an initial warning for
mistakes occurring on two days. Jim Campbell also
was given an initial warning for mistakes made on
a particular day "and prior." The warning noted
that he had made numerous errors and a customer
had complained about his performance, yet
Campbell received only a single warning.
Relying on these facts, the General Counsel of
the NLRB charged GLW with various violations of
the NLRA. An administrative law judge ("ALJ")
found that GLW violated sec. 8(a)(1) of the NLRA,
29 U.S.C. sec. 158(a)(1), in three ways, namely
by: threatening Anderson with unspecified
retaliation, coercively interrogating Anderson
regarding his union sympathies, and offering a
promotion to induce him to abandon the union. A
fourth transgression was of sec. 8(a)(3), 29
U.S.C. sec. 158(a)(3), which the ALJ found GLW
violated by firing Oller for supporting the
union. The Board affirmed the ALJ’s findings
regarding these four violations, emphasizing that
the promotion was offered to Anderson immediately
before the organizing campaign and the fact that
this foreman position had been vacant for four
months. GLW petitions for review of two of the
Board’s findings that GLW violated the NLRA in
offering to promote Anderson and by firing Oller.
II. Discussion
We will affirm the Board’s decision if its
factual findings are supported by substantial
evidence and its conclusions have a reasonable
basis in the law. See Dilling Mech. Contractors,
Inc. v. NLRB, 107 F.3d 521, 523-24 (7th Cir.
1997). This standard requires only that the Board
produce relevant evidence sufficient for a
reasonable person to accept the Board’s
conclusion. See Universal Camera Corp. v. NLRB,
340 U.S. 474, 477 (1951). However, a cursory
review is insufficient, and we take into account
the whole record, including evidence contrary to
the Board’s position. See Dilling, 107 F.3d at
524.
A. Uncontested Violations
GLW has not contested the Board’s findings that
it violated sec. 8(a)(1) of the NLRA by
interrogating Anderson and by making unspecified
threats of retaliation when he declined the
promotion to foreman. Therefore, we summarily
enforce the Board’s order regarding these issues
without determining whether substantial evidence
supports the Board’s findings. See NLRB v.
Champion Labs., Inc., 99 F.3d 223, 227 (7th Cir.
1996). These violations do not disappear from the
case, but rather remain as evidence that may
support the Board’s findings on contested issues.
See U.S. Marine Corp. v. NLRB, 944 F.2d 1305,
1314-15 (7th Cir. 1991) (en banc).
B. Promotion Offer
Section 8(a)(1) of the NLRA prohibits employers
from interfering with, restraining or coercing
employees in the exercise of their rights to
form, join, or assist labor organizations and
engage in activities for the purpose of
collective bargaining or other mutual aid or
protection. 29 U.S.C. sec. 158(a)(1). Offers of
promotion to management positions can violate
sec. 8(a)(1) if these reasonably tend to
interfere with or coerce employees in exercising
the right of self-organization granted by sec. 7
of the NLRA, 29 U.S.C. sec. 157. See NLRB v.
Henry Colder Co., 416 F.2d 750, 753 (7th Cir.
1969); see also Matson Terminals, Inc. v. NLRB,
114 F.3d 300, 302 (D.C. Cir. 1997); see generally
Medo Photo Supply Corp. v. NLRB, 321 U.S. 678,
685-86 (1944) (holding that offers of benefits to
union supporters that induce them to leave the
union violate sec. 8(a)(1)). We determine whether
coercion or interference was present by examining
all the relevant facts and circumstances. See
NLRB v. Shelby Mem’l Hosp. Ass’n, 1 F.3d 550, 559
(7th Cir. 1993).
Substantial evidence supports the Board’s
position. GLW argues that Anderson was qualified
for the position, and that no specific threats or
promises were made to him. GLW also repeatedly
stresses that no change in Anderson’s working
conditions took place after he declined the
promotion, and thus its offer cannot be
considered coercive. However, the test is not
whether interference or coercion actually
occurred, but only whether the employer’s action
reasonably tended to interfere with or coerce
employees in the exercise of their self-
organization rights. See Carry Cos. of Ill. v.
NLRB, 30 F.3d 922, 934 (7th Cir. 1994). The
evidence presented to the Board was rather
sparse, but it was sufficient under the
deferential substantial evidence standard to
support the Board’s conclusion that the offer was
an attempt to interfere with Anderson’s right to
unionize by moving him to a management position.
The most important facts are the Board’s
uncontested findings that after Anderson declined
the promotion the warehouse distribution manager
interrogated him and then threatened him with
unspecified reprisals. In addition, other
evidence buttressed the Board’s position.
Anderson was unwilling to talk about any union-
related reasons as to why he turned down the
offer, which suggests that he felt coerced. See
Champion Labs., 99 F.3d at 227. The timing of the
offer also supports the Board’s determination.
The foreman position had been open for four
months, yet GLW waited until soon before the
organizing drive, in which Anderson would be a
key union supporter, to offer the promotion to
Anderson. While timing alone is not sufficient to
show coercion or interference, it is a relevant
factor for the Board to consider and may
strengthen the Board’s conclusion if other
indicia of coercion or interference are present.
See Chicago Tribune Co. v. NLRB, 962 F.2d 712,
717-18 (7th Cir. 1992).
C. Termination
Section 8(a)(3) prevents an employer from
discriminating in the tenure of employment or any
term or condition of employment to encourage or
discourage membership in any labor organization.
29 U.S.C. sec. 158(a)(3). An employer violates
this section if anti-union animus was a
substantial or motivating factor in the company’s
decision to discharge an employee. See Vulcan
Basement Waterproofing of Ill. v. NLRB, 219 F.3d
677, 684 (7th Cir. 2000). To establish that a
termination violates this section, the General
Counsel of the NLRB must show by a preponderance
of the evidence that: (1) the employee engaged in
activities protected by the NLRA; (2) the
employer knew of the employee’s involvement in
these activities; (3) the employer harbored
animus toward those activities; and (4) a causal
connection exists between the employer’s animus
and the decision to terminate. See id; Carry
Cos., 30 F.3d at 927. If the General Counsel
succeeds, then the employer can still avoid the
finding of a violation if it demonstrates by a
preponderance of the evidence that its discharge
decision was based on unprotected conduct and
that it would have fired the employee regardless
of his or her protected activities. See Carry
Cos., 30 F.3d at 927.
The Board’s finding of a violation is supported
by substantial evidence. GLW argues that the
Board has not shown anti-union animus because GLW
knew for over a decade that Oller was a union
supporter and would have fired him long ago if it
had wanted to punish him for his union
activities. GLW also contends that permitting
Oller to resign and extending a severance package
shows that it lacked animus. GLW further claims,
both to attack the causal connection and to
establish its affirmative defense, that its
disciplinary policy was mandatory and Oller
admitted committing all four of the violations
which led to his dismissal. However, as with the
promotion violation, though the evidence is far
from overwhelming, the record contains enough
support for the Board’s conclusion. Anti-union
animus could be demonstrated by the
contemporaneous uncontested interrogation and
threats of reprisal against Anderson regarding
his union activism. In establishing the causal
connection and defeating GLW’s affirmative
defense, the General Counsel in addition relied
on the fact that other employees, who were not
ardent union supporters, were not treated as
harshly under GLW’s disciplinary policy. Though
GLW claims that the text of its policy requires
a separate warning for every error, the General
Counsel produced evidence, described above, that
other employees less identified with the union
were given warnings that covered multiple
mistakes made on different days./1 However,
Oller was given a warning for each error rather
than having errors on different days combined
into a single warning as occurred with Pala,
Cole, and Campbell. Disparate disciplinary
treatment of union supporters supports a finding
that GLW violated sec. 8(a)(3) by firing Oller.
See NLRB v. Del Rey Tortilleria, Inc., 787 F.2d
1118, 1124 (7th Cir. 1986); NLRB v. Bliss &
Laughlin Steel Co., 754 F.2d 229, 236 (7th Cir.
1985). Finally, the timing of his discharge,
though it cannot alone be the basis for a
violation, see Vulcan, 219 F.3d at 688, further
supports the Board’s finding. See Jet Star, Inc.
v. NLRB, 209 F.3d 671, 676-77 (7th Cir. 2000).
While GLW might have known of Oller’s union
sympathies for years, it fired him soon before an
organizing drive. Sufficient evidence was
presented for the Board to conclude that GLW
terminated Oller in order to remove someone who
likely would be a leader in this attempt at
unionization.
III. Conclusion
The Board is entitled to summary enforcement of
the two uncontested NLRA violations. Substantial,
though relatively modest, evidence supports the
Board’s other two findings which we will not
disturb given the deferential standard of review.
Therefore, we Deny GLW’s petition for review and
Enforce the Board’s order in full.
/1 At oral argument, GLW claimed that it had
produced evidence before the ALJ that the
disciplinary policy was normally strictly
enforced and that the more lenient treatments
some employees received were rare and unusual
deviations not related to their support of a
union or lack thereof. Because this argument was
not presented in GLW’s briefs, it is waived. See
Berens v. Ludwig, 160 F.3d 1144, 1148 (7th Cir.
1998).
Posner, Circuit Judge, concurring. I join the
court’s opinion, and write separately only to
flag two issues for possible future consideration
either by the Labor Board or, in an appropriate
case, which this is not, a reviewing court.
The Board relies, with regard to Anderson, the
employee to whom the company offered a promotion
to management rank, on the conventional principle
that offering a promotion is one method of
interfering with a union organizing campaign, and
with regard to Oller, the employee fired for
shipping the wrong items, on the equally
conventional principle that failure to impose
discipline uniformly can be evidence of
discrimination against a union supporter. Both
principles have a role to play in unfair labor
practices cases, but it is a role to be played
with caution, as neither the Board nor (fatally)
the company recognizes.
The idea that the carrot is as potent as the
stick, and therefore that it is as "coercive" to
offer a union supporter a promotion to management
as it is to fire him, is unsound. Most workers
welcome a promotion, and so a company that has a
practice of promoting union supporters to get
them out of the bargaining unit, the group of
workers that vote on whether to unionize the
unit, will actually increase the expected income
of being a union supporter. The more eager the
company is to buy off union supporters, the more
union supporters there will be. So likely,
therefore, is such a tactic of discouraging
unionization to backfire that the Board should
hesitate to infer such a motive from the offer of
promotion.
Oller received the stick, not the carrot; but
the use of evidence of nonuniformity in the
imposition of discipline to support an inference
to discrimination has a downside that, again,
neither the Board nor the company in this case
recognizes. If a company risks legal trouble by
exercising lenience in the enforcement of its
work rules, it will have an incentive to enforce
those rules in a uniform and therefore harsh
manner. Lenience will be out. Workers as a whole
may suffer. It does not follow that evidence of
discriminatory enforcement should be
inadmissible, because having strict rules on
attendance or performance but enforcing them only
against union supporters would be a potent method
of discouraging unionization. But the downside to
this type of evidence that I have pointed to is
an argument for the Board’s resolving close cases
against an inference of discrimination. Oller’s
was a close case, given the number and gravity of
his mistakes, but the company has failed to argue
that close cases should be resolved in favor of
the company for the sake of other workers,
workers who might receive lenient treatment were
it for the company’s fear that lenience toward a
worker who happened not to be a union supporter
would be used as evidence of an unfair labor
practice.