UNF WEST, INCORPORATED, Petitioner Cross-Respondent v. NATIONAL LABOR RELATIONS BOARD, Respondent Cross-Petitioner.
No. 16-60124
United States Court of Appeals, Fifth Circuit.
December 20, 2016
844 F.3d 451
Suavinex also contends that Universal Gym Equipment is distinguishable because it expressly prohibited the use of product “features” as well as product “designs,” unlike the instant contract, which only prohibits copying LNC‘s “product design.” Suavinex contends that, at most, LNC alleges that Suavinex copied certain design features of LNC‘s products. The district court did not address this argument and we make no observation as to whether there is a meaningful difference between copying features of a “product design” and copying a “product design” for purposes of determining breach of the Termination Agreement. On remand, Suavinex may address this argument directly to the district court.8
Further, we draw no conclusion as to whether Suavinex did, in fact, copy LNC‘s product designs, in violation of the Termination Agreement. These are questions of fact requiring an examination of the summary judgment record that the district court did not undertake. We remand to the district court to determine, in the first instance, whether these factual issues can be resolved on summary judgment.
C. Injunctive Relief
The district court‘s judgment that LNC was not entitled to an injunction was premised entirely on its conclusion that the Termination Agreement did not reach the products at issue, and therefore that Suavinex did not breach the agreement. Accordingly, reversing the district court‘s judgment on LNC‘s breach of contract claim requires that we reverse the district court‘s denial of injunctive relief as well. We take no position on the merits of whether LNC is entitled under Louisiana state law to the injunctive relief it seeks.
D. Attorney‘s Fees
Reversal on the breach of contract claim likewise requires vacation of the attorney‘s fees award to Suavinex. It is premature at this juncture to conclude which party will be the “prevailing party,” entitled to reasonable attorney‘s fees under Paragraph 5.9 of the Termination Agreement.
III. CONCLUSION
In sum, we REVERSE the district court‘s judgment on LNC‘s breach of contract claim and its request for injunctive relief. We VACATE the award of attorney‘s fees to Suavinex. And we REMAND the case to the district court for further proceedings consistent with this opinion.
Douglas M. Topolski, Esq., Ogletree Deakins, P.C., Washington, DC, Franklin Dalton Davis, Attorney, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Dallas, TX, for Petitioner Cross-Respondent.
Linda Dreeben, Esq., Deputy Associate General Counsel, Jill A. Griffin, Esq., Supervisory Attorney, Rebecca Jean Johnston, National Labor Relations Board, Appellate & Supreme Court Litigation Branch, Washington, DC, Olivia Garcia, Los Angeles, CA, for Respondent Cross-Petitioner.
Before STEWART, Chief Judge, and SMITH and DENNIS, Circuit Judges.
UNF West, Inc. (“UNF“) petitions for review of a National Labor Relations Board (“Board“) Decision and Order finding that UNF engaged in unfair labor practices by (1) interrogating employees about their union activities, (2) threatening employees with futility regarding their rights to organize and bargain collectively, and (3) threatening employees with reduction of wages. The Board cross-applies for enforcement of its Order. UNF‘s petition is DENIED; the Board‘s cross-application is GRANTED.
I. Background
UNF is a California corporation involved in distributing natural and organic foods. It maintains a facility in Moreno Valley, California. The International Brotherhood of Teamsters, Local 166 (“Union“) began an organizing campaign at the Moreno Valley facility in 2012. That same year the Board conducted a representation election, which the Union lost. The Union subsequently filed objections based on alleged unfair labor practices, asking for the result to be set aside. The Regional Director found merit in the Union‘s claims, and the matter was heard before an Administrative Law Judge (“ALJ“). However, before the ALJ ruled, the Union withdrew its objections to the election and sought again to be elected as the employees’ representative. The ALJ eventually rendered his decision, which the Board adopted and the D.C. Circuit enforced in UNF West, Inc. I, 361 NLRB No. 42 (2014). Meanwhile, the Board set a new election date for late May, but canceled that election the night before due to fresh allegations of unfair labor practices on the part of Juan Negroni (“Negroni“) and Carlos Ortiz (“Ortiz“), Kulture labor consultants who acted as UNF‘s agents.1
After a hearing, a second ALJ found the conduct of these consultants to have violated
With regard to the second incident, Contreras alleged that he had a conversation with Negroni in the warehouse on May 22, 2014. Negroni purportedly approached him in an aisle and asked, “What about the Union?” Negroni went on to say, “I have heard that the Union is making a lot of promises.” After Contreras denied this and suggested that Negroni and his colleagues were “making false promises” and “[l]ying to people and threatening them,” Negroni allegedly said “I hope the company won‘t hear what you‘re saying.” In response, Contreras showed him the same document that Aceves had shown Negroni two weeks prior, which prompted Negroni to admonish that the document was “useless,” as “[t]he company ha[d] its own policies.”
As to the third incident, on May 16, 2014, UNF called Contreras to attend an employee meeting in the human resources department at which Ortiz gave a slide presentation. Contreras testified that Ortiz began the meeting by speaking ill of the Union, whereupon Contreras interjected with the following: “I have heard from the warehouse that you guys are saying that if the Union wins, the Company‘s going to reduce the wages of all the employees.” Ortiz responded, “Lino, we put that message on the projector so everybody could see it. Lino, of course, if the Union wins, the Company could reduce your wages.” Contreras responded, “But that‘s illegal.” Ortiz responded again, “Lino, who pays your salary? The Company, right? Therefore, the Company has the right to reduce your salary.” Employee Juan Urquiza, also present at the meeting, corroborated this version of events, testifying that in response to questioning by Contreras, Ortiz said, “If the Union won and they would represent [you], ... the company could lower [your] wages, salaries ... because the company pays [your] salaries.”
The Board considered and affirmed the ALJ‘s rulings and adopted his recommended Order. UNF then filed the instant petition with this court.
II. Standard of Review
We will affirm the Board‘s findings of fact if they are “supported by substantial evidence on the record, considered as a whole.” Poly-Am., Inc. v. NLRB, 260 F.3d 465, 476 (5th Cir. 2001). “Substantial evidence is that which is relevant and sufficient for a reasonable mind to accept as adequate to support a conclusion. It is more than a mere scintilla, and less than a preponderance.” El Paso Elec. Co. v. NLRB, 681 F.3d 651, 656 (5th Cir. 2012) (emphasis omitted) (quoting Spellman v.
Challenges to legal conclusions are reviewed de novo, id., while procedural and evidentiary rulings are reviewed for abuse of discretion. Marathon LeTourneau Co., Longview Div. v. NLRB, 699 F.2d 248, 254 (5th Cir. 1983).
III. Discussion
The NLRA functions to regulate conduct attending organizational activities in the workplace in a manner that balances between protecting the rights of employees, employers, and “to a lesser extent, the union.”2 Section 7 of the NLRA grants employees a wide range of rights to organize themselves, to “form join, or assist labor organizations,” to engage in collective bargaining via their chosen representatives, “to engage in concerted activities” to further collective bargaining or “other mutual aid or protection,” or to refrain from these activities.
A. Threats to Reduce Wages
The ALJ determined (1) that Ortiz‘s statement—that UNF could reduce employees’ wages because it pays those wages—came before the slide presentation and included no mention of collective bargaining, and (2) that even if the later slide presentation referenced collective bargaining, the earlier statement without that reference was never specifically corrected. Accordingly, Ortiz‘s statement could be reasonably interpreted as conveying a threat that UNF would unilaterally reduce wages should the Union win the election.
On appeal, UNF contends that because (1) the slide presentation began by defining collective bargaining as the subject of the meeting and (2) Ortiz read slides describing collective bargaining in an objective manner and specifically disclaimed authority to make threats, the slides should establish that Ortiz‘s statements were made in the context of collective bargaining.
The alleged threats to reduce wages at the May 16, 2014 meeting violate
Cases applying this rule to statements regarding reductions in wages or benefits have found that such a statement is not a threat of reprisal where it “was made in a context ... indicat[ing] that bargaining is a process in which each side makes its own proposals, that it requires mutual agreement, and where existing benefits may be traded away.” Histacount Corp., 278 NLRB 681, 689 (1986). But if the statement in its context “fail[s] to include any reference to the collective-bargaining process or to any economic necessities or other objective facts as a basis for its prediction that wages might be reduced,” then it is impermissible, because it implies that an employer may act on its own initiative, unilaterally, and for its own reasons. President Riverboat Casinos of Mo., Inc., 329 NLRB 77, 77 (1999).
We agree with the Board and the ALJ that Ortiz‘s statements constitute a threat to reduce wages in violation of
Second, Ortiz‘s later statements, which consisted of his reading the slide presentation text word for word, did not even address the earlier implication that UNF could unilaterally reduce wages. While only contemporaneous or earlier contextual factors can influence a statement‘s reasonable import for the listener at the time that the statement was uttered, see TRW, 654 F.2d at 313 (noting that “language used by the parties involved in a union representation campaign ... must be considered in light of the circumstances existing when such language was spoken” (emphasis added)), additional comments can be made to clarify, expand, or otherwise alter the context and reasonable import of that statement. See Plastronics, Inc., 233 NLRB 155, 156 (1977) (noting that “statements are not objectionable when addition-
B. Threats of Futility
The ALJ found that Negroni‘s May 9th statement in relation to the document listing employee rights that Aceves handed to him “doesn‘t work here” clearly conveyed that Section 7 rights, “including the right to form a union, did not apply to [UNF] and it was therefore useless for Aceves to attempt to organize with his coworkers and ... join the Union.” The ALJ also found that Negroni‘s May 22nd statement to Contreras that the document detailing employee rights was “useless” because “[t]he company has its own policies” communicated the same message.
On petition for review, UNF argues principally that neither of the statements that the ALJ found to be threats of futility was accompanied by a threat to take action to ensure futility, and so they do not run afoul of
Threats of futility include “remarks concerning the futility of electing a union,” NLRB v. Laredo Coca Cola Bottling Co., 613 F.2d 1338, 1341 (5th Cir. 1980), or those that communicate a message to “employees that selection of a union would be an ‘exercise in futility.‘” 4 While the Board proscribes such remarks where they “were clearly intended to and had the effect of conveying to the employees the futility of their support of the Union,” Wellstream Corp., 313 NLRB 698, 706 (1994), “this Court has only found comments to be unlawful statements about futility when accompanied by a threat or implication that the employer will take some action to render union support futile.” Brown & Root, Inc. v. NLRB, 333 F.3d 628, 634 (5th Cir. 2003) (emphasis added). Accordingly, we review the record for affirmative evidence that (1) remarks were made concerning the futility of exercising unionization rights and (2) those remarks were conjoined with a threat or implication that UNF would act to ensure the futility of union organization. See id. at 634.
Because our review reveals such evidence, we agree with the Board and the
Regarding Contreras, Negroni‘s comments that the employee rights document in Contreras‘s possession (the same document Aceves showed Negroni) was “useless” because “[t]he company has its own policies,” coupled with Negroni‘s earlier comment that “I hope the company won‘t hear what you‘re saying” constituted a threat of futility. First, Negroni‘s comment on the uselessness of the employee rights document signifies that attempts to exercise employee rights are futile because UNF has its own policies. See id. at 706. Second, the full context of Negroni‘s remarks establishes the presence of an accompanying threat to ensure futility. See Brown & Root, Inc., 333 F.3d at 634. This conclusion depends on the aggregation of two aspects of the conversation: (1) the statement regarding UNF‘s policies, which signals that UNF is in full control of anything going on inside the facility; and (2) Negroni‘s statement prior to the remarks concerning futility, which implied consequences for Negroni‘s expression of discontent with UNF‘s actions and so imparts information regarding UNF‘s disposition to punish. To join an assertion of control with a disposition to punish is to combine a threat of punishment with a statement of capability. Combine this further with a remark of futility, and the jurisprudential requirements are met.
The difficulty is the timing of the comments to be combined. The actual threat communicating disposition to punish came before the subject matter prompting the remarks of futility and before the comments asserting unilateral control. Accordingly, one might claim that these statements are disconnected, and that the threat does not accompany the remark of futility. However, this view would seem to ignore the requirement that threats of futility, just like other violations of
C. Coercive Interrogation
The ALJ found that both the May 9th and May 22nd conversations between Negroni and employees Aceves and Contreras, respectively, constituted coercive interrogations. The ALJ concluded that the “entire [May 9th] conversation established” the interrogation‘s coerciveness because: (1) Aceves was questioned by a UNF agent charged with combatting the Union‘s organizing campaign shortly before an election; (2) there was no evidence that Aceves engaged in open Union activity at the workplace or that Negroni was aware of the degree of Aceves‘s Union involvement; (3) the conversation between Negroni and Aceves was neither casual, friendly, nor joking (Aceves told Negroni, “Leave me alone“); and (4) Negroni issued “an employer‘s ultimate threat, that it controlled Aceves‘s employment.” As for the May 22nd conversation, the ALJ found that its entire context established coerciveness based on the information sought by Negroni‘s questioning and his statement that UNF would not want to hear what Contreras was saying, implying adverse consequences for Contreras.
UNF‘s primary objection to the ALJ‘s analysis of this issue is that it failed to apply all of the Bourne factors.5 UNF asserts that some of those that were not applied would have weighed in its favor. UNF asserts that the ALJ‘s treatment of the factors is legal error preventing enforcement. We disagree.
Interrogation of employees is illegal when “the words themselves or the context in which they are used ... suggest an element of coercion or interference.” Rossmore House, 269 NLRB at 1177. The presence of such an element is ascertained by examining the totality of the circumstances, an analysis guided by the application of several factors: (1) the background, or history of employer hostility and discrimination; (2) the nature of the information the questioner seeks; (3) the rank of the questioner in the company hierarchy; (4) the place and manner of the interrogation; (5) the truthfulness of the employee‘s reply; (6) whether the employer had a valid purpose in obtaining the information sought about the union; (7) whether a valid purpose, if existent, was communicated to the employee; and (8) whether the employer assured the employee that no reprisals would be forthcoming should he or she support the union. NLRB v. Brookwood Furniture, 701 F.2d 452, 460-61 (5th Cir. 1983); accord Paceco v. NLRB, 601 F.2d 180, 183 (5th Cir. 1979); TRW-United, 637 F.2d at 416; see also Bourne v. NLRB, 332 F.2d 47, 49 (2d Cir. 1964).
The Bourne factors are analytical guiding lights—not a mandate for formalistic analysis. See Sturgis Newport Business Forms, Inc. v. NLRB, 563 F.2d 1252, 1256 (5th Cir. 1977) (noting that “a proper evaluation of the evidence goes beyond examining a list of factors and then comparing the number that favor the employer to the number that favor the union,” since “[i]ntimidation may occur even if all factors cut in favor of the employer“). Both the NLRB and this circuit have repeatedly stressed that “[n]o single factor is determinative and ‘coercive interrogation may still be found ... even if all the above enumerated factors operate in the employer‘s fa-
Our review of the record evidence indicates that the Board and ALJ properly concluded that Negroni‘s conduct on May 9th and May 22nd constituted coercive interrogation in violation of
For both scenarios, the ALJ specifically mentioned the Bourne factors and based his decision on a number of facts relevant to them in consideration of the totality of the circumstances, including (1) the background, namely that these incidents occurred “shortly before an election“; (2) the identity of the questioner as a UNF agent “charged with combatting the Union‘s organizing campaign“; (3) the nature of Aceves‘s responses to questioning, concluding that these indicated that the conversation was not friendly or joking; (4) the place and method of the interrogation, noting that the questions Negroni asked were accompanied by a threat referencing Aceves‘s economic dependence. Indeed, the presence of a threat implies the absence of a free choice, and accordingly, “interrogation accompanied by threats has been held to interfere with an election even though only one percent of the employees were threatened.”6 For the reasons stated, we see no basis upon which to disturb the ALJ‘s finding on coerciveness.7
UNF also raises three other objections to the Board and ALJ‘s decision, all of which we conclude to be without merit.
First, UNF objects that the Board and ALJ erred by refusing to allow Ortiz to testify in Spanish while allowing the General Counsel‘s witnesses to do so. Evaluations regarding the competence of a witness to testify in English and the corresponding “need for an interpreter [are] within the discretion of the [ALJ].” Meat Packers Int‘l, 225 NLRB 294 n.8 (1978). Ortiz is fluent in English, and a significant part of his job involves translating between English and Spanish. He displayed no apparent difficulty testifying in English, and review of the transcript uncovers no evidence of his confusion or misunderstanding. Moreover, the ALJ‘s decision to withhold an interpreter was subject to revision if Ortiz began to display linguistic difficulty—which he did not. We conclude that the ALJ reasonably exercised his discretion in requiring Ortiz to testify in English. See Marathon LeTourneau Co., 699 F.2d at 254.
Second, UNF objects that the Board and ALJ erred by ordering the extraordinary remedy of public notice reading. Because “[t]he particular means by which the effects of unfair labor practices are to be expunged are matters for the Board[,] not the courts to determine,” Va. Elec. & Power Co. v. NLRB, 319 U.S. 533, 539, 63 S.Ct. 1214, 87 L.Ed. 1568 (1943) (quotation marks omitted), administrative remedial choices “stand unless it can be shown that the order is a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the Act.” Id. at 540; accord J.P. Stevens & Co. v. NLRB, 417 F.2d 533, 537 (5th Cir. 1969). Public notice reading in particular is designed to “ensure that the important information set forth in the notice is disseminated to all employees, including those who do not consult the [employer‘s] bulletin boards.” Excel Case Ready, 334 NLRB 4, 5 (2001). This court has previously noted that “[f]or repeated violations persisted in despite intervening declarations of illegality, the Board is warranted in impliedly concluding that such conduct has created a chill atmosphere of fear and, further, in recognizing that the reading requirement is an effective but moderate way to let in a warming wind of information and, more important, reassurance.” J.P. Stevens & Co., 417 F.2d at 540.
It is incontrovertible that UNF is a repeat violator of
Finally, UNF objects that the Board and ALJ erred by refusing to allow it to present testimony that established that there was a petition to ask the Union to withdraw, that proffered witnesses had signed the petition, and that those witnesses had never heard Ortiz or Negroni make any of the allegedly problematic statements to Aceves or Contreras or to them individually. The ALJ enjoys wide discretion to exclude irrelevant or otherwise inadmissible evidence. See Marathon LeTourneau Co., 699 F.2d at 254. The
Neither the petition expressing the opinion of some employees about the Union nor the proffered testimony regarding each witness‘s individual lack of experience with the labor consultants is probative of what happened to Aceves or Contreras. Moreover, there is no evidence that these witnesses were in a position to observe Aceves, Contreras, Ortiz, or Negroni at key moments—thus, the witnesses seemingly lacked personal knowledge from which to testify about the interactions between these individuals. Lastly, despite UNF‘s claims to the contrary, whether Union support was in fact chilled by an
See Marathon LeTourneau Co., 699 F.2d at 254.
IV. Conclusion
For the aforementioned reasons, UNF West‘s petition is DENIED. The Board‘s cross-application for enforcement is GRANTED.