
USCA1 Opinion

	




          February 4, 1993  UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          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.                                   ______________                                _____________________               Philip J.  Moss, with whom  Moon, Moss, McGill  & Bachelder,               _______________             ________________________________          P.A., was on brief for petitioner.          ____               Deborah  E. Shrager,  Attorney, with  whom Jerry  M. Hunter,               ___________________                        ________________          General Counsel, Yvonne T.  Dixon, Acting Deputy General Counsel,                           ________________          Nicholas E. Karatinos,  Acting Associate General  Counsel, Aileen          _____________________                                      ______          A.  Armstrong,  Deputy  Associate  General   Counsel,  and  Peter          _____________                                               _____          Winkler, Supervisory Attorney, were on brief for respondent.          _______                                 ____________________                                 ____________________                    TORRUELLA, Circuit Judge.   This case  is before us  on                               _____________          petition to review  a decision  and order of  the National  Labor          Relations  Board (the  "Board") filed  by Cumberland  Farms, Inc.          (the  "Company"),  and  the  cross-application of  the  Board  to          enforce  its order.1  The  Board found that  the Company violated              8(a)(1)  and (3)  of the  National  Labor Relations  Act (the          "Act"),  29  U.S.C.    58(a)(1)  and (3)  (1973), by  engaging in          coercive  interrogation of  its employees  regarding their  union          activities,  discharging employees  because of  these activities,          and threatening  to arrest  a  union agent  while he  distributed          handbills on public property.  Accordingly, the Board ordered the          Company to reinstate the discharged employees with back  pay, and          to post notices admitting these violations and disclaiming future          illegal action.                    The  Company  challenges  the findings  of  the  Board,          claiming that they are unsupported by substantial evidence on the          record considered  as a whole.   We disagree and  thus affirm the          Board's order.                                        THE FACTS                                      THE FACTS                                      _________                    The  record  supports   the  Board's  finding   of  the          following facts.  The Company owns a dairy business that operates          four  plants,  including one  in Florence,  New  Jersey.   In the          summer  of 1990, the  United Food  and Commercial  Workers, Local          1360, United Food and Commercial  Worker's International, AFL-CIO          (the "Union") began  organizing in  this plant.   Two  employees,                                        ____________________          1  The  Board's order is reported at Cumberland  Farms, Inc., 307          N.L.R.B. 231 (1992).          John Mariano  and John  Bartosh, distributed  union authorization          cards to the employees.                    Shortly after they  began the  membership drive,  their          immediate  supervisor, Company  foreman John  Messner, questioned          them on several occasions  regarding their actions and progress.2          Thomas  Sweeney,  the Company's  Human  Resources Director,  also          questioned Mariano about his union activities  in the presence of          Bartosh.3    Mariano  and Bartosh admitted  involvement with  the          drive.                      On August  3, 1990, six days after  Mariano and Bartosh          began distributing Union authorization cards, the  Company issued          a letter to  the employees urging them not to  sign. At 5:30 p.m.          of the same day,  Emanuel Cavaco, the Company's Manager  of Dairy          Operations, Robert Wood, the Florence plant manager, Sweeney, and          plant engineer Allen Canney met with Mariano in a conference room          and  stated   that  they   had  received  complaints   about  his          distribution of  union authorization  cards.  Mariano   responded          that  he  distributed  them  during  non-working  time.    Cavaco          contended, however, that given the number of complaints received,          he  must have engaged in these activities during working hours as          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  I should know          about around here, like the union?"                                         -3-          accused  Mariano of  violating  a  Company no-solicitation  rule.          After further questioning  Cavaco stated, "John, we  took you out          of the  cooler;  we put  you  in with  the maintenance  to  learn          something, and this is how you repay us.  Do you have anything to          say  for yourself?"  When  Mariano said no,  Cavaco suspended him          indefinitely.   Wood and  Canney then  escorted  Mariano off  the          property and  denied him access to his locker.  Upon reaching the          gate  Wood  said, "John,  didn't we  just  speak [about  a salary          increase] a . . . week before  this - and then you pull something          like this?  Do you have anything to say?"  Mariano left with  the          impression that the Company  would further investigate.  However,          a  week later,  although  no further  inquiry  was made,  Mariano          received  a  letter from  the Company  terminating  him due  to a          "comprehensive   investigation  concerning   the  no-solicitation          policies."                    On the day that Mariano was suspended, Cavaco, Sweeney,          and Wood  subjected Bartosh to a  similar interrogation regarding          alleged  complaints   against  him  for  violation   of  the  no-          solicitation rule.  Bartosh flatly denied these charges.   Cavaco          reminded Bartosh that the Company treated him favorably by moving          him to  the maintenance department  and that  he therefore  "owed          them."   Bartosh was then escorted off the Company premises after          he  locked his  tools.   When  Bartosh returned  to the  plant to          retrieve  his  tools,  Wood fired  him  for  having  solicited on          company property.                    On  August 16,  various non-employee  union organizers,                                         -4-          including Mariano and Bartosh, distributed union handbills on the          public highway near  the Company's plant entrance.   Although the          organizers  were  on  public  property,  three  Company  security          officers  told one of them that they were on Company property and          would be  arrested if they did not leave.  When they arrived, the          Florence police officers indicated  that the handbillers were not          violating the law.                                  STANDARD OF REVIEW                                  STANDARD OF REVIEW                                  __________________                    We uphold the  Board's findings of a  violation as long          as substantial evidence on  the record as a whole  supports them,          even if we would have reached a  different conclusion.  29 U.S.C.             160(e) and (f).                                       ANALYSIS                                       ANALYSIS                                       ________          I.  Coercive Interrogation          I.  Coercive Interrogation                    Section  8(a)(1) of  the  Act  protects employees  from          coercive interrogation regarding their union activities.  NLRB v.                                                                    ____          Otis Hosp.,  545 F.2d 252, 256 (1st Cir. 1976).  The existence of          __________          coercion is generally a factual issue and depends on the totality          of  the   circumstances,  id.,  including  the   setting  of  the                                    ___          interrogation  and  the  status  of the  interrogators.    P.S.C.                                                                     ______          Resources, Inc. v.  NLRB, 576 F.2d 380, 383 (1st  Cir. 1978).  An          _______________     ____          interrogation need  not contain explicit threats  to be coercive.          NLRB v. Gogin, 575 F.2d 596, 600 (7th Cir. 1978).            ____    _____                    Given  the  circumstances  of  this   case,  we  cannot          conclude that the evidence does not  support the Board's findings          regarding the coercive nature  of the interrogations.  A  team of                                         -5-          high level managers confronted  Mariano and Bartosh shortly after          they  began their  concerted  activities,  questioned them  about          their  Union  affiliation,  and  accused   them  of  ingratitude.          Moreover, during the confrontations, the managers  denied Mariano          and  Bartosh access to the evidence against them, and in essence,          denied them  an opportunity  to defend themselves.   Accordingly,          the Board reasonably found the interrogations coercive.          II.  Interfering with lawful Union activities          II.  Interfering with lawful Union activities                    An employer lacks a  legitimate interest in interfering          with  union  activities  which  occur away  from  the  employer's          property.  Threatening  to call  the police, in  the presence  of          employees, to  interfere with lawful union  activity violates the          Act.  NLRB v.  Schlegel Oklahoma, Inc., 644  F.2d 842, 843  (10th                ____     _______________________          Cir. 1981).    In the  present  case, Company  security  officers          threatened to  have the  union organizers  arrested  in front  of          Mariano and  Bartosh, who  as unfair labor  practice dischargees,          continued  to retain employee status under the Act, see 29 U.S.C.                                                              ___            152(3).   Accordingly, the  Board correctly concluded  that the          threat violated Section 8(a)(1) of the Act.          III.  Discharge          III.  Discharge                    When an  employer discharges an employee for supporting          a union, he  violates the Act,  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.   NLRB v. Amber Delivery  Serv.,                                             ____    ______________________          Inc., 651 F.2d 57, 68-69 (1st Cir. 1981).  The  employer fails to          ____          meet this burden,  however, if the proposed reason  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  on motive, the Board may          consider the timing of the discharge, id. at 117, any differences                                                ___          in the application of disciplinary  rules, NLRB v. S.E.  Nichols,                                                     ____    ______________          Inc., 862  F.2d 952, 959  (2d Cir. 1988), cert.  denied, 490 U.S.          ____                                      _____________          1108 (1989), the procedures used for  discharge, NLRB v. American                                                           ____    ________          Spring Bed  Mfg. Co., 670  F.2d 1236,  1245 (1st Cir.  1982), the          ____________________          investigation of  the purported reasons for  the discharge, Sioux                                                                      _____          Products, Inc. v.  NLRB, 684 F.2d 1251, 1259 (7th Cir. 1982), and          ______________     ____          the purported justifications for  the ultimate actions.  American                                                                   ________          Spring Bed Mfg. Co., 670 F.2d at 1245.          ___________________                    We conclude that substantial  evidence on the record as          a whole supports the Board's findings regarding the discharges of          Mariano and Bartosh.  The Company  admits that it  discharged the          employees for distributing union authorization cards.  It argues,          however, that  by distributing  those cards, Mariano  and Bartosh          were soliciting,  and  that the  no-solicitation  rule  therefore          justified the discharges.                      We  conclude,  as did  the  Board,  that the  Company's          reliance on  the no-solicitation rule  was a  pretext to  justify          discharges for engaging  in union activity.   At the time of  the          discharges,  the Company knew  that Mariano and  Bartosh were the          in-plant  leaders  of the  union's  organizational  effort.   The          Company then  coercively  interrogated them  and then  discharged          them based solely upon a cursory investigation, affording them no                                         -7-          opportunity to defend themselves.  Moreover,     the    Company's          employees  were generally  unaware of  the no-solicitation  rule,          much  less its enforcement.  Indeed, Mariano and Bartosh were the          only  employees that  the  Company ever  disciplined for  alleged          violations of  the no-solicitation rule.   Accordingly, the Board          reasonably determined that the  no-solicitation rule was merely a          pretextual justification for an illegal discharge.                    In a  final  attempt to  salvage  the validity  of  the          discharges, the Company claimed  that Mariano and Bartosh engaged          in time card irregularities.  However, the Company failed to even          mention this  serious accusation  at the  time of  the employees'          discharges.   Thus, the Board  reasonably afforded  no credit  to          this argument.                                      CONCLUSION                                      CONCLUSION                                      __________                    We have  considered all  other allegations made  by the          Company  and conclude that they lack merit.  The Board's judgment          was  rational and effectively promotes the  goals of the Act.  As          such, we affirm the Board's order.                    The  petition  for review  is  denied  and the  Board's                                                   ______          request for enforcement of its order is granted.                                                  _______                    Costs to the Board.                                         -8-
