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Cumberland Farms v. NLRB, 1st Cir. (1993)
Cumberland Farms v. NLRB, 1st Cir. (1993)
Cumberland Farms v. NLRB, 1st Cir. (1993)
February 4, 1993
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.
______________
_____________________
____________________
____________________
Board (the
"Company"),
enforce
coercive
and
its order.1
8(a)(1)
"Act"),
a decision
29
and (3)
U.S.C.
and order of
"Board") filed
the
The
National
58(a)(1)
to arrest
the National
by Cumberland
its employees
Labor
the
Board
to
(1973), by
Act (the
engaging in
regarding their
because of
union agent
on
Farms, Inc.
Labor Relations
and (3)
discharging employees
and threatening
is before us
cross-application of
of the
interrogation of
activities,
This case
union
these activities,
while he
distributed
pay, and
Company
challenges
the findings
of
the
Board,
as a whole.
We disagree and
Board's order.
THE FACTS
THE FACTS
_________
The
record
following facts.
four
summer
plants,
supports
the
Board's
finding
of
the
including one
of 1990, the
in Florence,
United Food
organizing in
New
and Commercial
Jersey.
In the
Workers, Local
Two
employees,
____________________
1 The Board's order is reported at Cumberland
N.L.R.B. 231 (1992).
John Mariano
and John
Bartosh, distributed
union authorization
supervisor, Company
began the
Sweeney,
membership drive,
foreman John
Messner, questioned
the Company's
Human
Resources Director,
Mariano
their
also
in the presence of
involvement with
the
drive.
On August
Company issued
of Dairy
stated
that
distribution of
that
he
they
had
received
union authorization
distributed
them
during
complaints
cards.
about
Mariano
non-working
his
responded
time.
Cavaco
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
about around here, like the union?"
-3-
I should know
accused
Mariano of
violating
cooler;
we put
Company no-solicitation
in with
say
for yourself?"
indefinitely.
Wood and
property and
gate
Wood
When
didn't we
week later,
received
although
letter from
"comprehensive
learn
escorted
just
Mariano off
the
speak [about
a salary
to
the maintenance
rule.
no further
inquiry
the Company
investigation
concerning
However,
was made,
terminating
the
the
Mariano
him due
to a
no-solicitation
policies."
subjected Bartosh to a
complaints
solicitation rule.
against
him
violation
of
the
no-
Cavaco
and that
he therefore
"owed
them."
he
locked his
retrieve
his
tools.
When
tools,
Bartosh returned
Wood fired
him
for
to the
having
plant to
solicited on
company property.
On
August 16,
various non-employee
union organizers,
-4-
were
on
property,
three
Although the
Company
security
officers
would be
Board's findings of a
as substantial evidence on
violation as long
supports them,
different conclusion.
29 U.S.C.
________
I.
I.
Coercive Interrogation
Coercive Interrogation
Section
8(a)(1) of
the
Act
protects employees
from
NLRB v.
____
The existence of
the
circumstances,
interrogation
and
the
id.,
___
including
status
of the
the
setting
interrogators.
of
the
P.S.C.
______
Resources, Inc. v.
_______________
Cir. 1978).
An
interrogation need
to be coercive.
the
circumstances
of
this
case,
we
cannot
of the interrogations.
team of
-5-
began their
concerted
questioned them
about
their
Union
affiliation,
and
accused
them
of
ingratitude.
denied Mariano
denied them
an opportunity
to defend themselves.
Accordingly,
with
union
property.
activities
Threatening
which
occur away
to call
the police, in
employees, to
Act.
NLRB v.
____
Cir. 1981).
In the
threatened to
have the
Mariano and
continued
present
Bartosh, who
from
as unfair labor
employer's
the presence
of
case, Company
union organizers
the
security
arrested
(10th
officers
in front
of
practice dischargees,
152(3).
Accordingly, the
that the
Discharge
Discharge
When an
a union, he
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.
The
employer fails to
for discharge
-6-
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
F.2d 1236,
1982), the
American
________
The Company
admits that it
discharged the
by distributing
were soliciting,
and
that the
no-solicitation
It argues,
and Bartosh
rule
therefore
that the
Company's
conclude,
the
Board,
as did
in union activity.
leaders
Company then
of the
coercively
was a
pretext to
At the time of
union's
justify
organizational
interrogated them
the
effort.
and then
The
discharged
were generally
much
only
employees that
violations of
the
Moreover,
unaware of
the
Company's
the no-solicitation
rule,
disciplined for
alleged
final
attempt to
salvage
the validity
of
the
mention this
serious accusation
discharges.
at the
time of
the employees'
reasonably afforded
no credit
to
this argument.
CONCLUSION
CONCLUSION
__________
We have
Company
was
considered all
by the
As
petition
for review
is
denied
______
-8-
and the
Board's