Walgreen Co. v. National Labor Relations Board ( 1975 )

LAY, Circuit Judge.

Walgreen Company has filed a petition to review, and the National Labor Relations Board a cross-application to enforce, a Board order issued against the Company on September 24, 1973. The Board’s decision and order are reported at 206 NLRB 15. The Board found numerous § 8(a)(1) violations as well as a wrongful discharge in violation of §§ 8(a)(3) and (1), and it issued a bargaining order. We grant enforcement of the Board’s order.

In 1970 Walgreen opened a new drug store in Petaluma, California. Shortly thereafter the Retail Clerks Union Local 1532 tried to organize the store’s employees, but lost a Board election in January 1971. In 1972 a second organizational attempt was made. The Union petitioned for a Board election on April 14, 1972. The election was set for June 14, 1972. On June 9, the Union wrote to the Company stating that it had a card majority of the employees and requested immediate recognition. This was refused by the Company. The Company does not contest, and the record shows, that prior to the election the Union held a valid card majority. The Union subsequently lost the election. Of the 21 votes cast, nine were for the Union, nine were against and three votes were successfully challenged.

I. The Unfair Labor Practices

The Administrative Law Judge found that the Company had violated § 8(a)(1) of the National Labor Relations Act by (1) interrogating employees about Union activities, (2) promising wage increases, (3) threatening to close the store if the Union won the election, (4) threatening denial of promotions to Union adherents, (5) threatening that the Company would refuse to sign a collective bargaining agreement, (6) creating an impression of surveillance of Union activities, and (7) imposing onerous work schedules to punish Union adherents. In addition, he found that the Company violated §§ 8(a)(1) and 8(a)(3) by its discriminatory discharge of clerk Debra O’Neil soon after the election.

The Board adopted the Administrative Law Judge’s findings, and in addition upheld a § 8(a)(1) charge, rejected by the Administrative Law Judge, regarding remarks made to Warren Whitney, the husband of an employee.

The unfair labor practices found by the Administrative Law Judge and the Board may be briefly summarized.

(1) Interrogating employees about Union activities

Store Manager James Thornton received the Union’s election petition on April 15. That day, he called checkout clerk Debra O’Neil into his office and asked her, in the presence of bookkeeper Audrey Milligan, when she had seen the Union representatives and why she wanted the Union. On subsequent occasions, Thornton interrogated four other employees as well as Warren Whitney, the husband of employee Judith Whitney.

(2) Promising wage and benefit increases

Also on April 15, Thornton told Debra O’Neil that all employees would be getting a raise. Audrey Milligan and Darlene Barlow heard the same promise that day,. as did employee Jim Stone, whose mother, Anna Jo Davidson, was also an employee. Thornton told Warren Whitney that the Company was working on “sick leave, improved hospitalization, and improved profit sharing, but [the Company] could not put such benefits into effect while the Union was in the picture.”

(3) Threatening to close the store if the Union won the election

When he promised Darlene Barlow her raise, Thornton told her that if employees voted the Union in, the store might close. In late April he told Darlene Barlow and Ron Morgan that the store would close if the Union won. Finally, Thornton told Warren Whitney that Richard Wessels, the Company’s Director of Employee Relations, had said that the store would have been closed had the Union succeeded in its prior campaign, and that the Company was “not about to let a store like that go Union.”

Shortly before the election, Assistant Store Manager Philip Johnson told Jim Stone that it would be cheaper for the Company to close the store rather than to sign a Union contract, since the store was operating at a loss. Later, Johnson used a pencil and paper to illustrate this argument to bookkeeper Audrey Milligan.

(4) Threatening denial of promotions to Union adherents

Thornton told Ron Morgan that support for the Union would mean loss of any chance to become an Assistant Manager and to participate in the training program. Thornton told bookkeeper Audrey Milligan that the Company would not promote her to auditor if the Union won. The Administrative Law Judge found these statements to be “good sound advice, tendered in the friendliest of spirit, but [they] did violate Section 8(a)(1) of the Act.”

(5) Threatening that the Company would refuse to sign a collective bargaining agreement

At various times before the election. Thornton told four employees and Warren Whitney that the Company would refuse to sign a contract, indicating that a strike would be necessary.

(6) Engaging in surveillance and creating an impression of surveillance of Union activities

Thornton believed until shortly before the election, mistakenly, that Judith Whitney strongly opposed the Union. He tried to enlist her husband to spy on the employees for him. Shortly before the election, Thornton told Audrey Milligan that he knew who had signed Union cards and insisted that she list those whom she believed had done so. After the election, Assistant Manager Johnson told the employees that the Company knew how everyone had voted.

(7) Imposing onerous work schedules to punish Union adherents

The Administrative Law Judge found that just prior to the election, Thornton knew that Debra O’Neil, Robert Levin, Audrey Milligan and Judith Whitney supported the Union. Immediately after the election, Thornton posted work schedule changes. Audrey Milligan, who had been bookkeeper ever since the store opened, was demoted to cigar counter cashier on the night shift. Pharmacist Levin was switched from a daytime weekday schedule to the night shift and was told that he would have to work weekends. Judith Whitney was switched from the day shift to the night shift, and Ginger Johnson was moved from nights to days, despite the fact that both employees preferred the prior arrangement and no legitimate reason for the switch was advanced by the Company.

(8) The discharge of Debra O’Neil

Debra O’Neil, an open Union adherent, was fired by Thornton on'August 4, 1972, allegedly for tardiness and rudeness to customers. Thornton testified that he discharged her because of a customer’s complaint that she had called him an S.O.B. The customer, Colonel Hoteling, denied that she had so addressed him, as did O’Neil.

The Administrative Law Judge credited the Colonel’s testimony that O’Neil had brusquely told the Colonel’s wife, when asked whether a certain item was in stock, “If it’s not there, it’s not there.” The Colonel’s complaint about that incident to Thornton was found to have been a pretext for a discharge actually motivated by a, desire to discourage Union membership in violation of §§ 8(a)(1) and 8(a)(3).

We find substantial evidence on the record to sustain the Board’s findings.

II. The Bargaining Order

The more difficult issue relates to the Board’s bargaining order issued pursuant to NLRB v. Gissel Packing Co., Inc., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969).¹ In previous decisions the courts of appeals have directed the Board to make a detailed analysis and findings as to the three criteria necessary to support a Board order under Gissel.² See, e.g., Peerless of America, Inc. v. NLRB, 484 F.2d 1108, 1118 (7th Cir. 1973); NLRB v. Copps Corp., 458 F.2d 1227, 1229-1230 (7th Cir. 1972); NLRB v. General Stencils, Inc., 438 F.2d 894, 901-902 (2d Cir. 1971). The judicial response to the Board’s continued failure has been divided. In some instances, cases have been remanded to the Board for further findings, see, e.g., New Alaska Development Corp. v. NLRB, 441 F.2d 491, 494-495 (7th Cir. 1971); NLRB v. General Stencils, Inc., supra, 438 F.2d at 901 — 902, 905; Clark’s Gamble Corp. v. NLRB, 407 F.2d 199, 202 (6th Cir. 1969); see also note 5 infra. Where Board findings are inadequate, however, in many instances the court has undertaken its own analysis of the record to determine whether the bargaining order should be enforced. See, e.g., NLRB v. Gruber’s Super Market, Inc., 501 F.2d 697 (7th Cir. 1974); Peerless of America, Inc. v. NLRB, supra, 484 F.2d at 1120; NLRB v. Kostel Corp., 440 F.2d 347, 352 (7th Cir. 1971).

The Board has not provided us with the requisite analysis in the instant case. However, notwithstanding the Board’s conclusory findings, where the unfair practices in the factual record are as pervasive as here, this court must give due recognition to the Gissel direction that

[i]t is for the Board and not the courts, however, to make that determination, based on its expert estimate as to the effects on the election process of unfair labor practices of varying intensity. In fashioning its remedies under the broad provisions of § 10(c) of the Act (29 U.S.C. 160(c)), the Board draws on a fund of knowledge and expertise all its own, and its choice of remedy must therefore be given special respect by reviewing courts. See Fibreboard Paper Products v. NLRB, 379 U.S. 203 [, 85 S.Ct. 398, 13 L.Ed.2d 233] (1964). “[I]t is usually better to minimize the opportunity for reviewing courts to substitute their discretion for that of the agency.” Consolo v. FMC, 383 U.S. 607, 612 [, 86 S.Ct. 1018, 1027, 16 L.Ed.2d 131] (1966).

395 U.S. at 612 n.32, 89 S.Ct. at 1939.³

Our enforcement on the present record is not intended to detract from the Peerless guidelines.⁴ This circuit’s requirement that the Board provide analysis and findings serves as a prophylaxsis against an arbitrary exercise of the Board’s power. When the Board has not done this, this court must balance the need for such findings on the overall record presented as against the inefficient process resulting from remand to the administrative agency.⁵ When the facts clearly show only isolated violations of § 8(a)(1), so that under any analysis a court would feel compelled to set aside a bargaining order, a remand would simply increase the administrative and judicial burden of all concerned. Cf. NLRB v. Gruber’s Super Market, Inc., supra; Peerless of America, Inc. v. NLRB, supra; Arbie Mineral Feed Co. v. NLRB, 438 F.2d 940 (8th Cir. 1971); Fremont Newspapers, Inc. v. NLRB, 436 F.2d 665 (8th Cir. 1970).

Equally, where the unfair labor practices are pervasive, the court must consider the Board’s recognized expertise in weighing the lack of feasibility in a remand. We find the latter situation to be the case here.⁶ Cf. NLRB v. Copps Corp., supra; NLRB v. Henry Colder Co., 447 F.2d 629, 630 (7th Cir. 1971); NLRB v. Drives, Inc., 440 F.2d 354 (7th Cir. 1971); NLRB v. Kostel Corp., supra.

The Board’s order is enforced.⁷

1 . The Company additionally complains that the bargaining order should not issue since the complaint did not contain a § 8(a)(5) charge. This circuit along with other courts of appeals has uniformly held that even absent a § 8(a)(5) violation, the Board’s authority to issue a bargaining order in favor of a Union which had majority support when it made its demand “is settled.” NLRB v. Drives, Inc., 440 F.2d 354, 366 (7th Cir.), cert. denied, 404 U.S. 912, 92 S.Ct. 229, 30 L.Ed.2d 185 (1971); accord, NLRB v. Dan Howard Mfg. Co., 390 F.2d 304, 309 (7th Cir. 1968); Wausau Steel Corp. v. NLRB, 377 F.2d 369, 373 (7th Cir. 1967); United Steelworkers v. NLRB, 126 U.S.App.D.C. 215, 376 F.2d 770, 772-773, cert. denied sub nom. Northwest Eng’r Co. v. NLRB, 389 U.S. 932, 88 S.Ct. 297, 19 L.Ed.2d 285 (1967); Steel-Fab, Inc., 212 NLRB 25, 86 LRRM 1474 (1974).

2 . These oft-repeated tests need no further amplification. They are:

(1) Did the Union have majority support in an appropriate unit prior to the impact of Company unfair practices?

(2) Did Company unfair practices cause the Union to lose its majority?

(3) Will lesser remedies be insufficient to overcome the impact of past unfair practices or to deter similar future conduct, so that a fair election could not be held within a reasonable time?

See NLRB v. Gissel Packing Co., Inc., 395 U.S. 575, 614, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969).

3 . In Peerless of America, Inc. v. NLRB, 484 F.2d 1108 (7th Cir. 1973), this court described the analysis necessary to support a bargaining order:

We recognize that the determination of the immediate and residual impact of unfair labor practices may be a diffuclt task. . But by “specific findings” in this regard we hardly mean that the Board must determine how many employees actually were caused to abandon the Union. We mean only that it estimate the impact, taking into account the factors in the particular case which are indicative of actual effect or which plausibly, in the light of existing knowledge, would contribute to or detract from an actual impact. This is, after all, what the courts which have made their own analyses have done. Similarly the “detailed analysis” of the likelihood of recurring misconduct and of the potential curative effect of ordinary remedies only requires an appraisal of those factors which might reasonably have a bearing, such as whether the employer has a history of anti-union animus and Labor Act violations, whether the employer has taken affirmative rectifying measures or otherwise indicated his cooperativeness in assuring a fair election, etc.

Id. at 1118 n.16.

4 . Although the Board’s expertise in the Gissel area has been attacked (cf. Getman & Goldberg, The Myth of Labor Board Expertise, 39 U.Chi.L.Rev. 681, 683-84 (1972)), it must be recognized that it is Congress, the policy-making body of our government, which established the Board, 29 U.S.C. § 151 et seq., and the Supreme Court in Gissel which has given its imprimatur to the Board’s expertise. In Gissel, the Court recognized in one of the cases (General Steel) that although the Board had not made specific findings to justify a Gissel order, they might nonetheless be implicit in the Board’s order. 395 U.S. at 616, 89 S.Ct. 1918.

5 . The years consumed on remand have seldom been compensated for by more detailed analysis of the need for a bargaining order by the Board, which was the reason for remand in the first place. For example, in December 1972, the Second Circuit finally denied enforcement to a bargaining order based on unfair practices during the summer of 1967, five years earlier. The Board’s original order in the case was not issued until August 1969, General Stencils, Inc., 178 NLRB 18, 71 LRRM 1652 (1969), and enforcement was not sought until late in 1970. In January 1971, the Second Circuit remanded the case with directions to amplify the need for a bargaining order. NLRB v. General Stencils, Inc., 438 F.2d 894 (2d Cir. 1971). The Board’s supplementary opinion issued in March 1972, 195 NLRB 173, 79 LRRM 1608 (1972), was again found insufficient by the Second Circuit, but rather than a second remand, the court denied enforcement. 472 F.2d 170 (2d Cir. 1972).

Even worse has been the General Steel litigation from the Fourth Circuit, which has consumed ten years between the commission of unfair labor practices in 1964 and the court’s enforcement of the Board’s bargaining order in October 1974. In the interim, the Board had originally ordered bargaining, General Steel Products, Inc., 157 NLRB 59, 61 LRRM 1417 (1966), and the Fourth Circuit denied enforcement, 398 F.2d 339 (4th Cir. 1968). The Supreme Court granted certiorari and reversed this case and three others in Gissel, 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969). On remand, the Board again ordered bargaining in conclusory language. 180 NLRB 8, 72 LRRM 1579 (1969). The Fourth Circuit again refused to enforce the bargaining order, citing the Board’s lack of detailed analysis. 445 F.2d 1350 (4th Cir. 1971). On the second remand, the Board ordered an election rather than bargaining, 199 NLRB 121, 81 LRRM 1513 (1972). In December 1973, the Company objected to the second election won by the Union. The Board overruled these objections and entered another bargaining order, 207 NLRB 112, 85 LRRM 1003 (1973). This order was recently enforced. General Steel Products v. N.L.R.B. 503 F.2d 896 (4th Cir. 1974).

6 . The Company claims that the Board erred in ordering bargaining despite the fact that Manager Thornton was transferred to another stote soon after his discriminatory discharge of Debra O’Neil. We disagree. Even assuming that changes in management, occurring after pervasive unfair labor practices have successfully undermined a union’s card majority, might sometimes militate against a bargaining order, cf. NLRB v. Gruber’s Super Market, Inc., supra, and Peerless of America, Inc. v. NLRB, supra, we are not persuaded that the Board erred here. Thornton was transferred, not discharged, and there is no indication that employees saw the transfer as a punishment rather than as a promotion. Further, Assistant Manager Philip Johnson, who also took an active part in the Company’s unfair labor practices, was not discharged or otherwise disciplined.

7 . In order to avoid any misunderstanding, and contrary to the implications of Judge Pell’s dissent, we have carefully weighed the ALJ’s unfortunate rhetoric. Notwithstanding his confusing reference to Sir Conan Doyle’s literary quest for truth (“There remains however, grossly improbable, uncontradicted testimony, which on the admonition of Sherlock Holmes', must be the truth.”), the ALJ did carefully weigh the evidence and make proper findings of fact. He noted: “No witness was conscious of any deliberate prevarication. No witness had any clear uncontaminated recollection of the original event described in his or her testimony.” The ALJ then made sixteen specific findings of fact, carefully analyzing the testimony of each witness, crediting some and discrediting others. For example, in discussing the illegal promise of wage increases he found:

Neither can I credit the testimony of Brandner, Davidson, Ginger Johnson or Barlow as to the amounts promised. These are all intelligent literate persons, who must be charged with knowledge that both wages and prices were limited by Executive Order under the Wage Stabilization Act. I nevertheless, base the above finding on Thornton’s admission that he did tell some employees, including O’Neil, that he was recommending raises, on the fact that there is no corroboration of Thornton’s testimony as to the date of his telephone call to Saunders, no credible corroboration of Thornton’s testimony that any of these promises were made before April 15, and the fact that there is no reason on this record, other than receipt of the Union’s petition, for telling employees in April, 1972, that they would receive raises. These promises of wage increases restrained and coerced employees in the exercise of Section 7 rights.

We think the substance of the overall findings of fact to be more significant than the literary idiosyncrasies of the hearing judge. Additionally, we give weight to the Board’s analysis of the ALJ’s findings. The Board stated in footnote 1 of its opinion:

The Respondent and the General Counsel have excepted to certain credibility findings made by the Administrative Law Judge. It is the Board’s established policy not to overrule an Administrative Law Judge’s resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3). We have carefully examined the record and find no basis for reversing his findings.

206 NLRB No. 15.

The test we apply is, of course, whether the Board’s order is supported by substantial evidence on the record as a whole. We think a fair reading of the record clearly establishes this.

The dissent describes the evidence supporting the unfair labor practices as “feeble.” We find it “pervasive.” Herein lies our essential disagreement over the appropriateness of the Board’s bargaining order.