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  &amp; 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  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
                                          

          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
                                     

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

          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

          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
                                      

          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-
