On Application for Enforcement of a Decision and Order of the National Labor Relations Board, NLRB Docket No. 4-CA-14658 et al.
Sloviter and Hutchinson, Circuit Judges, and Debevoise, District Judge*fn*
This case is before us on the application of the National Labor Relations Board for enforcement of its order requiring respondent Pizza Crust Company of Pennsylvania, Inc. (Company) to cease and desist from prohibiting off-duty employees from distributing union literature on its parking lot and from interrogating employees regarding union membership or activities, and requiring respondent to post notice and to hold a new election for choosing a collective bargaining representative.
This court has jurisdiction under section 10(e) of the National Labor Relations Act (the Act), 29 U.S.C. § 160(e) (1982), over the parts of the order requiring the Company to cease and desist and post notice. However, under our decision in Graham Architectural Prod. Corp. v. NLRB, 697 F.2d 534 (3d Cir.), reh'g in banc denied, 706 F.2d 441 (1983), we do not have jurisdiction over that part of the Board's order which directed that the December 21 union election be set aside and a new election held. Accord NLRB v. Intertherm, Inc., 596 F.2d 267, 278 (8th Cir. 1979); NLRB v. Monroe Tube Co., 545 F.2d 1320, 1329 (2d Cir. 1976); American Bread Co. v. NLRB, 411 F.2d 147, 156 (6th Cir. 1969); Hendrix Mfg. Co. v. NLRB, 321 F.2d 100, 106 (5th Cir. 1963). See also NLRB v. International Bhd. of Elec. Workers, 308 U.S. 413, 60 S. Ct. 306, 84 L. Ed. 354 (1940), (employers must wait until after elections have occurred to challenge orders under section 10(f)).
The Interrogation of an Employee
Pizza Crust is a family-owned business owned by Sam Falbo, Sr. and operating in Carbondale, Pennsylvania. The Company employs approximately 75 employees. Sam Falbo, Jr. serves as assistant general manager and his brother David Falbo is plant manager. An organizational campaign on behalf of the United Food and Commercial Workers Local 72 (Union) began in late September 1984. Employees Kevin White and Edward Ward, after meeting with Ralph Carlacci, a Union business agent, began distributing union authorization cards and other literature. Union supporters attempted to keep their organizing efforts secret from management. In early October, two union activists were fired.*fn1
Before the organizational effort began, Kevin White had arranged with his supervisor, Tony Morgantini, to be excused from working beyond the scheduled end of his shift at 3:30 p.m. on some of the days on which he attended paralegal class. On October 29, White asked Morgantini if he could be excused from overtime that night because he had to take a test for his paralegal class. Morgantini replied that he would have to check with David Falbo. Later that morning, White was called to the office where David and Sam, Jr. awaited him. According to White, after he explained that he had to take a test that night and would appreciate being released from overtime, Sam, Jr. said:
"its [sic] like this." He goes, "I am stuck between a rock and a hard place because we have a union campaign going on here." And he said that he didn't know who was involved. And he stopped and looked at me.
App. at 193. In addition, Sam, Jr. stated that because labor charges had been filed against him for firing two employees, "he would not be able to do anything for [White] because he didn't know who was involved in the campaign." Id. Ultimately, White was given permission to leave at 4:30 p.m. after working an hour overtime.
The ALJ credited White's testimony, finding that "White was . . . placed in a position of being forced to barter his knowledge . . . of union adherents for the privilege of being excused from overtime that day." App. at 194. The ALJ concluded that such questioning of employees constituted an interrogation in violation of section 8(a)(1).
A majority of the Board upheld the ALJ's finding of an unfair labor practice, concluding that "Falbo's heavy-handed suggestions concerning his need to know who was 'involved' with the Union were at least as coercive, under the circumstances, as direct questions would have been." App. at 220 n.2. Chairman Dotson dissented on the ground that Sam, Jr.'s comments to Kevin White "were too brief, general, and ambiguous to be objectively characterized as an inquiry into union activities. . . ." App. at 222-23 (emphasis in original).
The Board's application of the law to particular facts as well as its findings on questions of fact underlying its determinations that unfair labor practices occurred are conclusive if supported by "substantial evidence on the record as considered as a whole," including any evidence detracting from the Board's view. 29 U.S.C. § 160(e); Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 95 L. Ed. 456, 71 S. Ct. 456 (1951); see also NLRB v. United Ins. Co., 390 U.S. 254, 260, 19 L. Ed. 2d 1083, 88 S. Ct. 988 (1968).
The AL's determination of what happened in this meeting rested on inferences that he drew from the silence referred to in White's testimony, as well as the AL's credibility findings based on the witnesses' demeanor. Although the Company characterizes the conversations between Sam, Jr. and Kevin White differently than did the ALJ, the ALJ's interpretations of the evidence fall clearly within the province of the finder of fact. The Board was entitled to adopt the ALJ's findings with respect to the tone of the conversation with White, the implications arising from the questions Sam, Jr. left unasked, and the ...