Fleming Companies, Inc. v. National Labor Relations Board

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 01-3765 & 02-1226
FLEMING COMPANIES, INC., MEMPHIS
GENERAL MERCHANDISE DIVISION,
Petitioner/Cross-Respondent,
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent/Cross-Petitioner.
____________
Petitions for Review and Cross-Application
for Enforcement of an Order of the
National Labor Relations Board.
____________
ARGUED SEPTEMBER 26, 2002—DECIDED NOVEMBER 18, 2003
____________
Before COFFEY, ROVNER, and DIANE P. WOOD, Circuit
Judges.
ROVNER, Circuit Judge. In 1997, employees of a ware-
house in Memphis, Tennessee, began a union organizing
drive in preparation for an election to determine if there
was sufficient support for a union at the warehouse. The
union filed a complaint with the National Labor Relations
Board (“Board”) against the owner of the warehouse,
Fleming Companies, Inc., Memphis General Merchandise
2 Nos. 01-3765 & 02-1226
Division (“Fleming”), alleging that Fleming committed sev-
eral unfair labor practices that resulted in the union losing
the election. The Board then brought a complaint against
Fleming. An administrative law judge (“ALJ”) conducted a
hearing and found that Fleming had violated several
provisions of the National Labor Relations Act and issued
a cease and desist order. Fleming appealed the ALJ’s
decision, but the Board affirmed the ALJ’s rulings, findings
of fact, and conclusions, and adopted his recommended
order.
Fleming has now appealed three of the ALJ’s findings to
this court: (1) that Fleming violated 29 U.S.C. § 8(a)(1) by
threatening employees that it would impose more stringent
working conditions and would start enforcing company
rules because of union organizing activity; (2) that Fleming
violated § 8(a)(1) by unlawfully threatening employees with
plant closure if the employees selected the union to repre-
sent them; and (3) that Fleming violated § 8(a)(1) by
removing union literature from an employee bulletin board
and by threatening an employee with discipline for posting
union literature on it. The Board cross-applied for enforce-
ment of the NLRB’s order. We affirm in part, and reverse in
part.
Fleming is a wholesale grocery distribution company that
operates a warehouse in Memphis.1 In January 1997, some
employees began a union organizing drive at the ware-
house. On February 5, two employees, one of whom was Duc
Le, had a conversation on the warehouse floor about paying
union dues. Shortly afterwards, the manager of Human
1
The background summary contained in this section of the
opinion is based on the findings of fact made by the ALJ, which
were affirmed by the Board. There were numerous allegations of
unfair labor practices, but we will discuss only those that are
relevant to the determination of this appeal.
Nos. 01-3765 & 02-1226 3
Resources, Danny Gaither, confronted Le while he was
working in the lift room. Gaither pointed his finger at Le
and said, “Don’t talk about this Union shit. I know how to
take care of you.”
On that same day, Gaither observed two employees—
both stockers—punch their timecards before their shifts
started. Fleming’s company policies allow employees to
punch into work only within five minutes before their shift
starts. Fleming programs the time clock closest to the
employees’ work stations with their schedule and then the
time clock will reject any request to punch in outside of the
employees’ schedule. The warehouse has four time clocks
and only the one closest to the employee’s work station is
programmed with their schedule, so employees can punch
in early if they use one of the unassigned time clocks. The
two employees observed by Gaither had punched in 15
minutes and 10 minutes early by using an unassigned time
clock. Gaither also observed the same two employees sitting
in the break room after their shift had started. Fleming has
a policy that prohibits employees from being in the break
room at any time other than during their assigned breaks.
Gaither was with another Fleming employee, Mitch
Zweig, when he observed these infractions. Zweig was the
leadperson for the stockers and reported to the warehouse
managers. Gaither decided that both employees should re-
ceive a written disciplinary warning for these infractions,
and Zweig volunteered to inform the employees of the
reprimand. While talking to Vessie Reynolds, one of the
employees to be disciplined, Zweig told her that Gaither
“had to bust up that thing down there in the lift room.”
Zweig warned that Gaither was “on the warpath” and that
the “union stuff” had management “stirred.” Zweig then
told Reynolds that the warehouse manager was “printing up
a letter about punching in on the right clock so nobody can
get in early” and added that Fleming would also be “looking
4 Nos. 01-3765 & 02-1226
at breaks.” The next day, the warehouse manager issued a
memo reminding employees to utilize their “home” clocks
and not to expand their break periods.
On March 19, a forklift driver, Stanley Jones, brought
pro-union flyers to work and posted one of them on a break-
room bulletin board. Jones also posted a flyer on the break-
room door and left several flyers on the table and chairs.
The flyer was entitled, “35 Things Management Cannot
Do!” Shortly after Jones put up the flyers, an employee saw
Zweig remove them and ball them up in his hand. Later
that day, Zweig and Gaither confronted Jones in front of his
coworkers and told him that Fleming did not allow any
material on the bulletin boards except for company busi-
ness. Gaither told Jones, “If we catch you placing informa-
tion or materials on our boards or walls, we will have to
take disciplinary action including up to termination.” Before
this incident, no employee had ever been disciplined for
posting items on the bulletin boards.
The union continued to pursue organization of the ware-
house and an election was set for June 4 to determine if
there was sufficient support for the union. Prior to the
election, Fleming’s division president, Russ Hill, held a
series of mandatory “Save Fleming” meetings with employ-
ees. At one of these meetings, on June 3, several employees
claim that Hill warned a group of about 100 employees that
if they voted for the union, Fleming would be financially
damaged and the Memphis warehouse might close down.
The election took place the next day, and the union did not
receive a majority of the vote.2
2
Due to the Board’s finding that Fleming committed unfair labor
practices, the NLRB ordered a rerun of the election, but the
election has been stayed pending the resolution of this litigation.
Nos. 01-3765 & 02-1226 5
ALJ’s Decision
In 1998 an ALJ presided over a seven-day trial at which
many employees testified, including Le, Reynolds, Jones,
and Gaither. The ALJ found that Zweig’s comments to
Reynolds on February 5 were coercive because they were
made in order to threaten more stringent working condi-
tions due to the union campaign. The ALJ specifically
pointed to Zweig’s comments that it was the management’s
concern over this “union stuff” that was the cause of them
“looking at breaks” and “printing up a letter about punching
in on the right clock.”
The ALJ also found that division president Hill imper-
missibly threatened the closure of the plant the day before
the union election took place. Two employees testified that
Hill told them that if they voted for the union, the ware-
house “would go in the hole.” The two employees’ testimony
differed in one respect—one testified that Hill said the
plant “would” close if the union won the election, and the
other testified that Hill said the plant “could” close. A
distribution manager also testified about the content of
Hill’s speech, but he claimed that Hill never mentioned the
closing of the plant. The ALJ credited the employees’ tes-
timony over the manager and found that the slight differ-
ence in words by the witnesses did not alter the basic
message of Hill’s speech—that a vote for the union would
put the future of the warehouse, and the employees’ jobs, at
risk. Thus, the ALJ found that Hill’s speech violated
§ 8(a)(1).
Finally, the ALJ found that Fleming impermissibly pro-
hibited the posting of union materials on company bulletin
boards. Fleming’s company handbook states that the bul-
letin boards are “for company business purposes only.”
However, the ALJ found that in practice, Fleming allowed
personal postings by employees and would remove them
only after they had been posted for anywhere from several
6 Nos. 01-3765 & 02-1226
days to several months. Employees posted wedding invi-
tations, announcements, thank-you cards, birthday cards,
sympathy notes and notices of personal items for sale, but
there was no evidence of any commercial or organizational
material. The ALJ found that because Fleming “permitted
employees to post personal items,” it was required to allow
union postings. Fleming appealed three issues to a three-
member panel of the National Labor Relations Board, which
affirmed the ALJ’s decision.
Discussion
We will uphold a Board order if there is substantial evi-
dence in the record to support its findings of fact and if its
conclusions of law have a reasonable basis in the law. Huck
Store Fixture Co. v. NLRB, 327 F.3d 528, 553 (7th Cir.
2003); see 29 U.S.C. § 160(e), (f). Substantial evidence is
relevant evidence such that a reasonable mind might accept
as adequate to support a conclusion. NLRB v. Clinton Elecs.
Corp., 284 F.3d 731, 737 (7th Cir. 2002). We do not engage
in our own fact-finding or supplant the Board’s reasonable
conclusions “simply because we would have come to a
different conclusion if we reviewed the case de novo.”
Livingston Pipe v. NLRB, 987 F.2d 422, 426 (7th Cir. 1993).
However, we can set aside a Board decision if we cannot
“find that the evidence supporting that decision is substan-
tial, when viewed in the light that the record in its entirety
furnishes, including the body of evidence opposed to the
Board’s view.” J.C. Penney Co. v. NLRB, 123 F.3d 988, 993
(7th Cir. 1997) (citation omitted).
Section 7 of the NLRB provides that “[e]mployees shall
have the right to self-organization, to form, join, or assist
labor organizations, to bargain collectively through repre-
sentatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining
or other mutual aid or protection . . . .” 29 U.S.C. § 157.
Nos. 01-3765 & 02-1226 7
Section 8(a)(1) of the NLRB considers it an unfair labor
practice for an employer to restrain, coerce, or interfere
with employees in their exercise of the rights conferred
in § 7. 29 U.S.C. § 158(a)(1). “Threats of discharge, disci-
pline, plant closure or other reprisals against employees for
engaging in union activity are unlawful and violative of
section 8(a)(1) of the Act because these acts reasonably tend
to coerce employees in the exercise of their rights, regard-
less of whether they do, in fact, coerce.” N. Wire Corp. v.
NLRB, 887 F.2d 1313, 1318 (7th Cir. 1989). It is also settled
that a coercive threat may be implied rather than stated
expressly. See Nat’l By-Products, Inc. v. NLRB, 931 F.2d
445, 451-52 (7th Cir. 1991) (quoting NLRB v. Gissel Packing
Co., 395 U.S. 575, 617-18 (1969)).
Fleming first challenges the ALJ’s finding that it threat-
ened stricter enforcement of company rules in response to
union organizing. Fleming argues that leadperson Zweig
was not functioning as Fleming’s agent at the time he made
the allegedly threatening comments to Reynolds. To hold an
employer liable, the individual who made the statement
must act as an agent of the employer. 29 U.S.C. § 152(2); see
also NLRB v. Thermon Heat Tracing Servs., Inc., 143 F.3d
181, 186 (7th Cir. 1998). An agent has apparent authority
when an employer takes steps that would reasonably lead
third persons to believe that the designated employee was
authorized to take certain actions on behalf of the employer.
See Restatement (Second) of Agency, § 27. In determining
whether an agent has apparent authority, the Board
considers “whether, under all circumstances, the employees
would reasonably believe that the employee in question was
reflecting company policy and speaking and acting for
management.” Einhorn Enters., Inc., 279 N.L.R.B. 576, 580
(1986).
Substantial evidence supports the Board’s finding that
Fleming’s conduct could reasonably lead employees to be-
8 Nos. 01-3765 & 02-1226
lieve that Zweig was speaking and acting for management.
The Board relied on evidence that when Fleming announced
to the stockers that Zweig had been promoted, they intro-
duced him as a “supervisor.” The record reveals that
Fleming informed employees that Zweig was a “Team
Leader,” and Gaither testified that Team Leaders have a
“leadership position” with the company. The employees who
testified before the ALJ stated that they “reported to Zweig”
and took orders from him. The Board found that Zweig
directed other employees’ work, investigated employee
conduct, and gave written reports of disciplinary incidents
to higher management. Furthermore, the Board found that
Zweig’s conversation with Reynolds was done “at the
direction of higher management.” Therefore, we sustain the
Board’s conclusion that Zweig was an agent of Fleming.
Fleming also argues that the context of Zweig’s conversa-
tion with Reynolds shows that his statements were not
threatening and did not interfere with the employees’ ex-
ercise of their rights. Fleming argues that Zweig merely
informed Reynolds of the reprimand and reminded her of
existing policies. The ALJ held that a reasonable employee
would infer that management was planning to enforce time
clock and break-time rules more strictly because they were
“stirred” by “this Union stuff.”
An employer violates § 8(a)(1) of the Act by threatening
an employee with stricter enforcement of company rules
and other unspecified reprisals due to a union campaign.
See NLRB v. Shelby Mem’l Hosp. Ass’n, 1 F.3d 550, 564 (7th
Cir. 1993). Whether a threat of discipline was made is a
finding of fact within the Board’s expertise. NLRB v.
Champion Lab, Inc., 99 F.3d 223, 228 (7th Cir. 1996). In
determining whether an employer’s statement is coercive,
we consider “whether an employer’s actions had a reason-
able tendency to interfere with or coerce employees.” NLRB
v. Joy Recovery Tech. Corp., 134 F.3d 1307, 1313 (7th Cir.
Nos. 01-3765 & 02-1226 9
1998). Fleming is correct that whether an employer’s
statements to an employee are coercive depends on the
factual context in which the statement is made. See Shelby
Mem’l Hosp. Ass’n, 1 F.3d at 559.
We uphold the ALJ’s decision on this point because it
is based upon substantial evidence. Reynolds testified
that Zweig told her that Gaither was on the “warpath”
following the “thing down there in the lift room” and that
management was “going to be looking at breaks.” Then
Zweig told Reynolds that management would begin strictly
enforcing rules as to clocking in and using the break room.
The ALJ found that “the overall statement was coercive”
because a reasonable interpretation of the conversation
would lead an employee to believe that these rule enforce-
ments were being done because of union organizing.
Fleming also argues that Zweig never explicitly stated that
Fleming would alter its policies or enforce them in a dis-
criminatory manner, but this argument fails because ex-
press threats are not necessary to violate § 8(a)(1). See Nat’l
By-Products, Inc., 931 F.2d at 451. Fleming’s argument
boils down to a request that we reweigh the evidence
ourselves, but that role is best left to the Board. Accord-
ingly, we sustain the Board’s decision.
Fleming next argues that substantial evidence does not
support the Board’s conclusion that Fleming threatened to
close the Memphis warehouse. A threat of plant closure is
a per se violation of § 8(a)(1). See Multi-Ad Servs., Inc. v.
NLRB, 255 F.3d 363, 373 (7th Cir. 2001). In this case, two
employees testified that division president Hill said that the
warehouse “would” or “could” close if the employees voted
for the union. The ALJ credited the employees’ account of
the speech over that of the manager, and we will reject
credibility findings only under extraordinary circumstances.
Masiongale Elec.-Mech., Inc. v. NLRB, 323 F.3d 546, 551
(7th Cir. 2003). This evidence is sufficient to establish a
10 Nos. 01-3765 & 02-1226
violation. See Gissel Packing Co., 395 U.S. at 618-19(employer unlawfully threatened that unionization “will or
may” result in plant closing); Cent. Transp., Inc. v. NLRB,
997 F.2d 1180, 1189 (7th Cir. 1993) (employer unlawfully
said that facility might possibly close).
Finally, Fleming appeals the Board’s conclusion that it
violated § 8(a)(1) by removing union flyers from the bulletin
board in the break room. Fleming argues that it had a valid,
pre-existing policy prohibiting unapproved postings on
company bulletin boards. Fleming has a rule in its em-
ployee handbook restricting the bulletin boards to company
use and prohibiting employees from posting any personal
announcements. Fleming contends that there was substan-
tial evidence that the policy was consistently and uniformly
enforced and that items that violated the stated policy were
removed.
The ALJ found that Fleming’s written policy was con-
tradicted by its practice of permitting employees to post
personal items—notices of weddings or births—on the bul-
letin boards. The ALJ also found that Fleming consistently
excluded any posting of group or organizational notices. The
ALJ concluded that because Fleming “permitted employees
to post personal items,” it was required to allow union
postings.
An employer has the right to restrict access to its bulletin
boards. J.C. Penney, 123 F.3d at 997; Guardian Indus.
Corp. v. NLRB, 49 F.3d 317, 318 (7th Cir. 1995). An
employer, however, cannot discriminate against a union’s
posted material by disparately applying its posting policy to
hinder the union’s efforts. J.C. Penney, 123 F.3d at 997. In
J.C. Penney and Guardian Industries, we found that an
employer’s policy permitting employees to post personal
announcements and for-sale notices did not compel them to
allow union postings, as long as the policy was consistently
enforced. Id.; Guardian Indus., 49 F.3d at 321-22.
Nos. 01-3765 & 02-1226 11
In this case, although Fleming had a policy forbidding the
posting of any non-company material on the bulletin boards,
there was substantial evidence that this policy was not
enforced. Three employees testified that they routinely saw
personal notices posted on the bulletin boards. The ALJ
went on to find that even though Fleming did not enforce its
written policy, the company’s permissive use of the bulletin
boards to post personal items did not extend to organiza-
tional postings. The ALJ concluded that “there is no
evidence that Fleming has ever allowed an employee to post
any notice expressing ideas and designed to induce action
by employees as a group, such as an investment club, travel
club, sports club, religious club, political club, or any similar
club or committee.” Therefore, Fleming’s actual practice of
permitting personal postings, but not organizational ones,
was consistently enforced.
The ALJ felt bound by the Board’s decision in Benteler
Indus., Inc., 323 N.L.R.B. 712, 714 (1997), which held that
“if the employer permits employees to use its bulletin board
for the posting of notices relating to personal, nonwork-
related items such as sales of personal property, cards, and
thank-you notices, it cannot validly discriminate against
notices of union meetings which employees have posted.” In
Guardian Industries, we explicitly rejected the position that
whenever the employer permits employees any access to a
bulletin board, it must permit the posting of union notices.
Guardian Indus., 49 F.3d at 320. We did recognize, how-
ever, that once companies allow postings of a similar
character to union materials, then they may not discrimi-
nate against unions by prohibiting their postings. Id.Because the company in Guardian Industries only allowed
for-sale notices, but not announcements of meetings or
organizations, we held that this distinction did not “dis-
criminate against the employees’ right of self-organization.”
Id. at 321-22.
12 Nos. 01-3765 & 02-1226
The Board attempted to distinguish this case from our
decision in Guardian Industries by stating that Fleming
allowed a “wide range of personal postings,” not just for-sale
notices. In re Fleming Co., Inc., 336 N.L.R.B. No. 15, at *3
(2001). In Guardian Industries, however, we did not hold
that only for-sale notices were distinct in character from
union notices, but rather held that courts should look for
disparate treatment of union postings before finding that an
employer violated § 8(a)(1). Guardian Indus., 49 F.3d at
320. We stated that “a rule banning all organizational
notices . . . is impossible to understand as disparate treat-
ment of unions.” Id. Just as we have recognized for-sale
notices as a category of notices distinct from organizational
notices (which would include union postings), we can now
add the category of personal postings. The ALJ’s factual
finding that Fleming did not allow the posting of organiza-
tional material on its bulletin boards does not support the
conclusion that Fleming violated § 8(a)(1) by prohibiting the
posting of union materials. Accordingly, we deny enforce-
ment of the part of the Board’s decision that Fleming
violated § 8(a)(1) by removing union literature from com-
pany bulletin boards. We enforce the remainder of the
Board’s order.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-18-03