Observer & Eccentric v. NLRB

NOT RECOMMENDED FOR FULL TEXT PUBLICATION
File Name: 05a0214n.06
Filed: March 25, 2005
Nos. 03-2540, 04-1010
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
OBSERVER & ECCENTRIC NEWSPAPERS, ) ON PETITION FOR REVIEW
INC., ) AND CROSS-APPLICATION
) FOR ENFORCEMENT OF AN
ORDER OF THE NATIONAL
Petitioner/Cross-Respondent, )
LABOR RELATIONS BOARD
) (No. 7-CA-44695)
v. )
) OPINION
NATIONAL LABOR RELATIONS BOARD, )
)
Respondent/Cross-Petitioner. )
)
BEFORE: MOORE and GILMAN, Circuit Judges; and GWIN, District Judge.*
Gwin, District Judge:
With this petition, we consider whether substantial evidence supports the National Labor
Relations Board’s (“the Board”) determination that Observer & Eccentric Newspapers, Inc.
(“Observer”) violated Section 8(a)(1) of the National Labor Relations Act (“NLRA”) by unlawfully
interrogating an employee. 29 U.S.C. § 158(a)(1). The Board found that Petitioner Observer
unlawfully interrogated employee Donna Gregway (“Gregway”) about current union activities. Also
with this petition, we consider the Board’s cross-application for enforcement.
For the following reasons, we AFFIRM the decision of the Board in these consolidated
cases, thus GRANTING the Board’s petition for enforcement of the Board order and DENYING
*
The Honorable James S. Gwin, United States District Judge for the Northern District of Ohio, sitting by
designation.
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the Observer’s petition for review.
I. FACTUAL BACKGROUND
The Observer publishes community newspapers in the greater metropolitan Detroit area.
Although some departments of the Observer are unionized, the employees in the business office are
not. Complainant Anne Grabda (“Grabda”) and Gregway worked in the business office. This case
concerns whether the Observer violated the NLRA in laying off Complainant Grabda and in
interrogating Gregway and Grabda during discovery for a state-court lawsuit.
A. 1997 Union Campaign
During a 1997 union campaign, several employees from the business office met with
representatives from a union that represented the Observer’s editorial department employees. Jean
Podrasky (“Podrasky”), Grabda, and Gregway held meetings of union supporters at their homes.
The Observer opposed the union campaign. As detailed in the Administrative Law Judge’s
(“ALJ”) decision, the Observer’s General Manager conducted meetings with employees to
“discourage them from organizing the business office.” The General Manager also sent each
employee a letter, which advocated that “we do not need or want our non-union employees to be
represented by a union.” Less than one week after sending the letter to employees, the Controller
sent a letter to the General Manager and Vice President of Human Resources, which urged that the
company take “a defensive position” in response to the union. The Controller also recommended
that the company “fire[] Jean Podrasky NOW” to send a message that employees should not engage
in union activities on company time.
The business office employees’ 1997 campaign to obtain union representation failed. In
1998, and after the union campaign failed, Lisa Gorno (“Gorno”), who is the Human Resources
Director, questioned at least one employee about ongoing efforts to organize.
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B. Podrasky and Egnatowski Lawsuit
In February 2000, the Observer fired two business office employees, Podrasky and Linda
Egnatowski (“Egnatowski”). After being fired, Podrasky and Egnatowski filed suit against the
Observer in Michigan state court. They alleged that the Observer committed age discrimination and
wrongfully discharged them based upon a perception that they supported the union during the 1997
campaign among the business office employees.
Attorney Mark Heusel (“Heusel”) represented the Observer in the Podrasky and Egnatowski
litigation. In February 2001, Heusel deposed Podrasky. During her deposition, Podrasky listed
several business office employees who were involved in the unsuccessful 1997 union campaign,
including Grabda, Gregway, and Lucy Caulford (“Caulford”). On May 15, 2001, Heusel received
a witness list from counsel for Podrasky and Egnatowski. The witness list included the names of
business office employees, who were potential witnesses. After receiving the witness list, Heusel
sought to interview several business office employees, including Grabda and Gregway.
C. Heusel and Gorno’s Interviews
In August 2001, Human Resources Director Gorno scheduled interviews with the employees
on Heusel’s behalf. Human Resources Director Gorno and Heusel then conducted individual
interviews with several employees. Attorney Heusel interviewed Gregway and Grabda. He did not
interview Caulford. At the interviews, Heusel explained to the employees that the purpose of the
interview was to gather information for the Podrasky and Egnatowski litigation, whether such
information was helpful or harmful for the company. Gorno attended each interview and took notes,
but the Board has no written transcript of the interviews. Other than Heusel, Gorno, and the
employee being interviewed, no one else was present.
1. Grabda’s Interview
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Heusel and Gorno interviewed Grabda, who was an open union supporter. At the ALJ
hearing, Grabda testified that “[t]hey told me that – right up front, that they already knew that I was
part of the Union organization back in 1997-98, and they knew that I had meetings at my house and
at [Gregway’s] house and at Jean Podrasky’s house.” Grabda further testified that Heusel said, “We
know that you were [an] active member in the organization – organizing drive.” Grabda recalled
another exchange with Heusel: “He said, well you know, the Union activity stopped in 1998, and
I said no, that they hadn’t stopped. People are still talking about it. And he said, ‘Oh they are?’ He
said, ‘Are you?’ And I said, ‘Well, I don’t really think I should answer that.’ And he didn’t push
that question any further.” On December 10, 2001, the Observer laid Grabda off.
2. Gregway’s Interview
Heusel and Gorno also interviewed Gregway. Unlike Grabda, Gregway was not an open
union supporter. However, Heusel knew that Gregway supported the organizing effort from the
earlier testimony given by Podrasky. During the interview, Heusel asked Gregway why the business
office employees were interested in starting a union. Gregway responded, “[W]e were unpaid [sic]
and we were tired of the way we were treated.” Heusel also asked Gregway whether employees
were still talking about the union. Gregway responded, “Yes.” Gorno then exclaimed, “What!
We’re still talking about the union?” Gregway, again, said, “Yes.” At the conclusion of the
interview, Gorno again asked Gregway: “Are they still talking about the union?” For the third time,
Gregway responded “yes.” The General Counsel alleged that this questioning, which he contended
had no relation to the state-court lawsuit, interfered with Gregway’s right to engage in concerted
activities for the purpose of collective bargaining or other mutual aid or protection.
II. PROCEDURAL BACKGROUND
Complainant Grabda filed charges with the Board against the Observer. On March 29, 2002,
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Region Seven of the Board issued a complaint alleging an unfair labor practice. First, the complaint
alleged that the Observer violated Sections 8(a)(3) and (1) of the NLRA, 29 U.S.C. § 158 (a)(3) and
(1), by discriminating against Grabda for her union activities.
Second, the complaint alleged that the Observer violated Section 8(a)(1), 29 U.S.C. §
158(a)(1), by interrogating employees in a way that had a reasonable tendency to interfere with,
restrain, or coerce them in the exercise of their protected rights under Section 7 of the NLRA.
A. The ALJ Opinion
On June 18 and 19, 2002, the ALJ tried the case and, on September 23, 2002, issued an
opinion. In that opinion, the ALJ found that the Observer did not violate Sections 8(a)(3) and (1)
of the NLRA when it laid Grabda off. However, the ALJ found that the Observer violated Section
8(a)(1) of the NLRA by interrogating employees about pending union efforts without providing the
assurances described in Johnnie’s Poultry, 146 N.L.R.B. 770 (1964), enforcement denied on other
grounds, 344 F.2d 617 (8th Cir. 1965).
After receiving conflicting testimony about whether Heusel gave the Johnnie’s Poultry
assurances to the employees, the ALJ found that Heusel and Gorno failed to inform the employees
“that they could decline to be interviewed and that they would not experience retaliation on account
of their answers or their refusal to be interviewed.” In this finding, the ALJ found Gregway credible
and discredited contrary testimony from Heusel and Gorno. In finding Heusel less credible, the ALJ
observed that Heusel could not “specifically recall whether or not he gave these assurances to
Grabda and Gregway.” Instead, Heusel only testified about his general practice when interviewing
employees of his clients. Finding Gregway credible, the ALJ concluded that the Observer
unlawfully interrogated Gregway in violation of Section 8(a)(1).
B. The Board Opinion
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The Observer appealed the ALJ’s ruling regarding Section 8(a)(1) to the Board. On
September 11, 2003, the Board affirmed the ALJ’s order. The Board adopted the ALJ’s finding that
the Observer did not violate the NLRA when it laid Grabda off in December 2001. The panel
majority also concluded that the Observer violated Section 8(a)(1) in interrogating Gregway,
although it modified the ALJ’s analysis. Instead of applying the Johnnie’s Poultry standard, the
Board applied the totality-of-the-circumstances test from Rossmore House, 269 N.L.R.B. 1176(1984), aff’d sub nom. Hotel Employees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). The
Board found that Heusel and Gorno asked Gregway questions concerning employees’ union
activities as of August 2001, even though the stated purpose for the interview was to defend against
Podrasky’s and Egnatowski’s wrongful discharge claim arising out of a 2000 discharge.
To remedy the Section 8(a)(1) violation, the Board adopted the ALJ’s recommended order.
That recommended order required the Observer (1) to cease and desist its unlawful conduct, and (2)
to post copies of a remedial notice informing employees of their rights to organize and of the
Board’s decision that the Observer violated the NLRA. Because an additional violation would be
cumulative and would not affect the remedy, the Board did not determine the legality of Grabda’s
interview.
Member Schaumber dissented, arguing that Gregway’s interview was not coercive under the
totality-of-the-circumstances test. Member Schaumber disagreed with the majority’s
characterization of the facts. The majority found that Heusel and Gorno “repeatedly” asked
Gregway about current union activities after finding that they asked her three times. Member
Schaumber disagreed that this should be characterized as “repeatedly.”
C. The Observer’s Petition for Review
On December 1, 2003, the Observer filed a petition for review of the Board’s decision and
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order. The Observer prays for this Court to set aside the order, adopt the dissenting opinion of
Member Schaumber, and deny the Board’s cross-application for enforcement.
On December 23, 2003, the Board filed a cross-application to enforce its decision and order.
The General Counsel argues that substantial evidence supports the Board’s finding that the Observer
violated Section 8(a)(1) by interrogating Gregway about current union activities.
We ordered the two cases consolidated and we now review the decision of the Board.
III. JURISDICTION AND STANDARD OF REVIEW
This Court has jurisdiction to review final orders of the Board pursuant to Sections 10(e) and
(f) of the NLRA, 29 U.S.C. § 160(e) and (f). The Board issued its final order on September 11,
2003. The Observer and the Board timely filed their respective petitions.
We defer to the Board’s findings of fact where those findings are “supported by substantial
evidence on the record considered as a whole.” 29 U.S.C. § 160(e); Peters v. NLRB, 153 F.3d 289,
294 (6th Cir. 1998). Substantial evidence means “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Dupont Dow Elastomers, L.L.C. v. NLRB, 296
F.3d 495 (6th Cir. 2002). Where substantial evidence supports a Board decision, we must uphold
that decision, “even though we might justifiably have made a different choice had the matter been
before the court de novo.” NLRB v. Okun Bros. Shoe Store, Inc., 825 F.2d 102, 105 (6th Cir. 1987).
“Deference to the Board’s factual findings is particularly appropriate where the record is
fraught with conflicting testimony and essential credibility determinations have been made.” Tony
Scott Trucking, Inc. v. NLRB, 821 F.2d 312, 315 (6th Cir. 1987) (internal quotation marks omitted).
Credibility determinations “are entitled to great weight. We will overturn those determinations only
if they overstep the bounds of reason.” Kusan Mfg. Co. v. NLRB, 749 F.2d 362, 366 (6th Cir. 1984)
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(per curiam) (internal quotation marks and citations omitted). However, we also consider evidence
in the record that detracts from the Board’s findings.
As with the Board’s factual findings, we review the Board’s application of law to facts under
the substantial evidence standard. Holly Farms Corp. v. NLRB, 517 U.S. 392, 398-99 (1996); NLRB
v. Mead Corp., 73 F.3d 74, 78 (6th Cir. 1996). We “may not displace reasonable inferences of the
Board.” See Pikeville United Methodist Hosp. v. United Steelworkers of Am., 109 F.3d 1146, 1154
(6th Cir. 1997).
With the standard of review in mind, we consider the Observer’s petition.
IV. DISCUSSION
In this opinion, we address four arguments that the Observer advances to assail the Board’s
opinion. First, we determine whether the Board’s findings of fact and credibility determinations are
entitled to deference. Second, we evaluate the Observer’s argument that it did not violate Section
8(a)(1) because Heusel and Gorno did not ask Gregway about her Section 7 rights. Third, we assess
whether substantial evidence supports the Board’s decision that the Observer’s interrogation had a
tendency to coerce Gregway, as determined by the Rossmore House’s totality-of-the-circumstances
test. Finally, we consider the Observer’s contention that it was privileged to question Gregway
because of the pending state-court lawsuit.
A. Credibility Determinations and Factual Findings
Throughout its brief, the Observer claims that the Board erred in its factual findings and
credibility determinations. We are reluctant to reverse the Board’s finding that Gregway’s testimony
was credible because the record includes conflicting testimony. The “assignment of credibility to
witnesses is the prerogative of the Board.” Pikeville United Methodist Hosp., 109 F.3d at 1154 n.7
(internal quotation marks omitted). This Court is “uniquely unsuited to pass upon the legitimacy
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of such disputes when sworn testimony is offered on both sides of an issue.” Kamtech, Inc. v.
NLRB, 314 F.3d 800, 812 (6th Cir. 2002); see Tony Scott Trucking, 821 F.2d at 315.
The Observer argues that the Board erred in failing to credit testimony from Heusel, Gorno,
and Mary Ann Smith (“Smith”). As for Heusel, the Observer asserts that the Board failed to credit
testimony concerning what assurances Heusel offered and what questions he asked during
Gregway’s interview. Yet the record shows that Heusel testified that he had no specific recollection
of what he actually said to Gregway. Instead, he testified only regarding his “general practice”
while interviewing employees of his clients. The Board adequately explained its reasons for failing
to credit Heusel’s testimony.
Likewise, the Board offered sufficient explanation for discrediting Gorno’s testimony that
she acted merely as a silent note-taker and did not speak during the interview. Gorno’s testimony
contradicted that of Gregway, who testified that Gorno posed several questions concerning
employees’ current union support. Where their testimony conflicted, the Board credited Gregway
and found that Gorno asked about employees’ current union activities. The ALJ observed Gorno’s
and Gregway’s testimony, and heard more than sufficient evidence to support Gregway’s version.
Finally, Smith’s testimony is insufficient to overturn the Board’s decision that Gregway was
credible. Smith testified that Heusel assured her that participation in the interview was voluntary.
Even if it were true that Heusel gave Smith assurances that she would not suffer reprisal, this does
not affect the Board’s finding that Heusel and Gorno failed to provide similar assurances to
Gregway. As the Executive Secretary to the General Manager and the Controller, Smith did not
even work in the business office, and this case concerns the Observer’s interviews of business office
employees. Given the conflicting testimony in the record about whether particular assurances were
given, Smith’s testimony does not warrant overturning the Board’s determination that Gregway
testified credibly that she received no assurances that her participation was voluntary and that she
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would not be punished for her responses.
We find no reason to overturn the Board’s credibility determinations or factual findings, and
we defer to these findings in reviewing the Observer’s petition.
B. Section 7 Rights
The Observer next maintains that the Board erred in finding a Section 8(a)(1) violation
because Heusel and Gorno did not ask Gregway about her union activities and did not implicate her
Section 7 rights. This argument is contrary to the law.
Under Section 8(a)(1) of the NLRA, it is an unfair labor practice for an employer “to
interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.”
29 U.S.C. § 158(a)(1). Section 7 guarantees employees the “right of self-organization, to form, join,
or assist labor organizations . . . and to engage in other concerted activities for the purpose of
collective bargaining . . . .” 29 U.S.C. § 157. The Supreme Court has held that Section 7 includes
the “right of employees to discuss organization among themselves.” Central Hardware Co. v.
NLRB, 407 U.S. 539, 542 (1972). The right of employees to self-organize “necessarily encompasses
the right effectively to communicate with one another regarding self-organization at the job site.”
Beth Israel Hosp. v. NLRB, 437 U.S. 483, 491 (1978); see Oakwood Hosp. v. NLRB, 983 F.2d 698,
701 (6th Cir. 1993). Because the Board found that the business office employees were “still talking”
about unionization as of August 2001, they were exercising rights protected under Section 7.
C. The Totality-of-the-Circumstances T est
The Observer further contends that insufficient evidence supports the Board’s finding that
Heusel and Gorno unlawfully interrogated Gregway in violation of Section 8(a)(1). We find that
substantial evidence from the record as a whole supports the Board’s findings that Gregway’s
interrogation violated Section 8(a)(1) under the totality-of-the-circumstances test.
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“An employer violates section 8(a)(1) of the Act by coercively interrogating its employees
about their union activities.” NLRB v. E.I. DuPont de Nemours, 750 F.2d 524, 527 (6th Cir. 1984).
To determine if an employer’s interrogation is coercive, the Board applies a totality-of-the-
circumstances test: “‘whether under all of the circumstances the interrogation reasonably tends to
restrain, coerce or interfere with rights guaranteed by the Act.’” Dayton Typographic Serv., Inc. v.
NLRB, 778 F.2d 1188, 1194-95 (1985) (quoting Rossmore House, 269 N.L.R.B. No. 198, 116
L.R.R.M. 1025, 1026 (1984), enforced sub nom. Hotel Employees & Rest. Employees Union, Local
11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985)). When words or context suggest an “element of
coercion or interference,” an interrogation becomes unlawful. E.g., ITT Auto. v. NLRB, 188 F.3d
375, 389 (6th Cir. 1999) (internal quotation marks omitted).
The Observer argues that the Board erred in finding a violation of Section 8(a)(1) without
evidence of actual coercion or an intent to coerce. The Observer is mistaken. The totality-of-the-
circumstances test is an objective test, considering neither an employer’s subjective intent nor an
employee’s subjective perception of the question. E.g., Torbitt & Castleman, Inc. v. NLRB, 123 F.3d
899, 906 (6th Cir. 1997) (rejecting an employee’s “subjective reactions” to statements in deciding
whether the statements are unlawful); see also Surprenant Mfg. Co. v. NLRB, 341 F.2d 756, 763 (6th
Cir. 1965). Instead of considering the subjective perceptions of an employer or employee, the Board
analyzes whether the employer’s questions reasonably had a tendency to coerce the employee’s
exercise of her Section 7 rights. See Peabody Coal Co. v. NLRB, 725 F.2d 357, 363 (6th Cir. 1984).
Under all of the circumstances, if an employer’s questions have a tendency to interfere with or
coerce an employee’s protected activity, then the employer’s interrogation is unlawful under Section
8(a)(1).
When determining the coercive tendency of an interrogation, the Board considers several
factors, including (1) the employer’s prior hostility to unionization; (2) the questioner’s identity
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within the employer’s organization; (3) the nature of the information sought; and (4) the place and
methods of interrogation. E.g., Architectural Glass & Metal Co. v. NLRB, 107 F.3d 426, 434 (6th
Cir. 1997); Dayton Typographic Serv., Inc., 778 F.2d at 1194. Because substantial evidence from
the record as a whole supports the Board’s finding that Heusel’s and Gorno’s questions had a
tendency to coerce Gregway in the exercise of her Section 7 rights, the Observer’s arguments fail.
See V&S ProGalv, Inc. v. NLRB, 168 F.3d 270, 280 (6th Cir. 1999); see also Holly Farms Corp. v.
NLRB, 517 U.S. 392, 398-99 (1996).
1. Prior Hostility
The record shows that the Observer exhibited prior hostility toward the collective efforts of
business office employees. Prior hostility to union activities suggests that the employer intended
to coerce the employee. See Architectural Glass & Metal Co., 107 F.3d at 434. The record is
replete with examples of Observer’s hostility toward the 1997 union campaign. For example, the
Observer conducted meetings with employees to discourage unionization, mailed letters to each
employee in the business office, and circulated an internal memorandum urging that the Observer
terminate Podrasky. Even though the Observer’s hostility to the 1997 union campaign occurred
years before Gregway’s interview, it constituted the Observer’s most recent response to unionization
efforts among the business office employees.
2. Questioner’s Identity
Heusel’s and Gorno’s positions within the Observer further support the Board’s
determination that their questioning had a tendency to coerce Gregway. Gorno was a high-level
company official, and Heusel was a company agent. As the Observer’s attorney, Heusel represented
the company in the Podrasky and Egnatowski lawsuit, which concerned the unsuccessful 1997 union
campaign. Gorno’s attendance during the interview further supports the Board’s finding that the
interrogation had a tendency to coerce Gregway. As the Human Resources Director, Gorno
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participated in firing decisions of business office employees. The Board has recognized that the
presence of management, such as Gorno, suggests coercion. See Automotive Warehouse Distrib.,
Inc., 171 N.L.R.B. 683 (1968).
3. Nature of Information Sought
During the interview, Heusel and Gorno broached the subject matter of the employees’
current union activities, and they asked Gregway three times whether the employees were still
discussing the union. We examine whether the Observer’s questions sought “information outside
the issues raised in the complaint” by asking an employee a question that “potentially covers matters
outside the scope of a complaint.” Dayton Typographic Serv., Inc., 778 F.2d at 1195.
The Observer maintains that Heusel’s and Gorno’s questions were permissible as discovery
for the pending state-court lawsuit. See Mich. Ct. R. 2.302(B)(1). However, for material to be
discoverable, it must be relevant to the subject matters of the pending suit. E.g., Bauroth v.
Hammoud, 632 N.W.2d 496, 500 (Mich. 2001). In Michigan, relevant evidence is “evidence having
any tendency to make the existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the evidence.” See Mich. R. Evid.
401; see also FED. R. EVID. 401 (same). Evidence is relevant when the “fact to be proven [is] truly
in issue.” People v. Crawford, 582 N.W.2d 785, 792 (Mich. 1998). When the question has no
probative value in resolving a contested issue, the evidence sought is irrelevant. E.g., United States
v. Blankenship, 775 F.2d 735, 739 (6th Cir. 1985); see also People v. Edwards, No. 213336, 2000
Mich. App. LEXIS 616, at **6-7 (Mich. Ct. App. June 9, 2000); In re Estate of Johnson, 328
N.W.2d 359, 360 (Mich. Ct. App. 1982) (holding that a report dated after the “relevant time period”
was immaterial to the case).
The Observer cannot establish relevance. Although the Michigan rules have a broad scope
of discovery, irrelevant information is not discoverable. Heusel’s and Gorno’s questions concerned
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employees’ current union activities, and they were not probative of contested issues in the pending
suit. Their questions were wholly irrelevant. See Schrand v. Fed. Pac. Elec. Co., 851 F.2d 152, 156
(6th Cir. 1988) (observing that the proffered evidence could not “logically or reasonably be tied to
the decision to terminate” the plaintiff). The Observer had no legitimate purpose in asking such
questions of Gregway. Given the irrelevance of questions about current union support to the state-
court case, the questions could easily be found to have a tendency to coerce Gregway not to exercise
her Section 7 rights.
The Observer claims that Heusel and Gorno did not violate Section 8(a)(1) because neither
asked Gregway about her own union sentiment. Contrary to the Observer’s argument, an employer
violates Section 8(a)(1) when it asks an employee about other employees’ union sentiments. See,
e.g., Sundance Constr. Mgmt., 325 N.L.R.B. 1013, 1013 (1998); Williamhouse of Cal. Inc., 317
N.L.R.B. 699, 716 (1995); Cumberland Farms Inc., 307 N.L.R.B. 1479, 1479 (1992), enforced, 984
F.2d 556 (1st Cir. 1993). Heusel impermissibly asked Gregway why employees wanted a union.
4. Place and Methods of Interrogation
The context of the interrogation further supports the Board’s finding that the Observer
unlawfully interrogated Gregway. As to this factor, we recognize the Board’s special expertise in
determining the “impact of utterances made in the employer-employee relationship.” See NLRB v.
Gissel Packing Co., 395 U.S. 575, 620 (1969).
The Board found that Gregway was a reluctant participant in the interview and had not been
an open union supporter. When Gorno called Gregway into her office to schedule the interview,
Gregway asked Gorno, “[D]o I have to really do this?” Rather than informing Gregway that her
participation was voluntary, Gorno answered, “It’s really no big deal.” Heusel and Gorno
interviewed Gregway in a conference room.
The Observer contends that the Board erred because Heusel’s and Gorno’s interview did not
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rise to the level of coercion. However, this argument fails because the existence of coercion in an
interrogation is a factual issue entitled to deference. See V&S ProGalv, Inc. v. NLRB, 168 F.3d 270,
279-80 (6th Cir. 1999) (affirming the Board’s decision that the employer violated Section 8(a)(1)
and rejecting the employer’s argument that the question did not rise to the level of coercive
interrogation); see also Cumberland Farms, Inc. v. NLRB, 984 F.2d 556, 559 (1st Cir. 1993). We
have stated that “the Board’s assessment of coercive effect, if reasonable, should be sustained.”
NLRB v. Price’s Pic-Pac Supermarkets, Inc., 707 F.2d 236, 239 (6th Cir. 1983) (internal citations
omitted). Based upon all of the circumstances of the interview, substantial evidence supports the
Board’s conclusion that the interrogation had a tendency to interfere with Gregway’s protected
activity.
For the above reasons, we hold that substantial evidence supports the Board’s finding that
the Observer’s interrogation of Gregway violated Section 8(a)(1).
D. Johnnie’s Poultry Test
The Observer argues that the Johnnie’s Poultry requirements do not apply to this case. In
finding a violation of Section 8(a)(1), the Board did not reach the question of whether Johnnie’s
Poultry applied because the Observer’s interrogation was unlawful under the totality-of-the-
circumstances test. Because we find a violation of Section 8(a)(1) under the totality-of-the-
circumstances test, it is also unnecessary for us to decide whether the Johnnie’s Poultry assurances
were required. See In re EPI Constr., 336 N.L.R.B. 234, 241 (2001) (finding a violation under the
totality-of-the-circumstances test and not determining whether the Johnnie’s Poultry assurances
applied). Even assuming that the Observer was correct in claiming that it was not required to
provide the Johnnie’s Poultry assurances, the Observer’s interrogation violated Section 8(a)(1)
because it was coercive under the totality-of-the-circumstances test. Accordingly, we affirm the
Board’s finding that the Observer’s interrogation of Gregway violated Section 8(a)(1) of the NLRA.
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Nos. 03-2540, 04-1010
Observer & Eccentric Newspapers, Inc. v. NLRB
IV. CONCLUSION
For the foregoing reasons, we conclude that substantial evidence supports the Board’s ruling.
This Court therefore AFFIRMS the decision of the National Labor Relations Board. The
Observer’s petition for review is DENIED, and the Board’s cross-petition for enforcement is
GRANTED.
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