NLRB v. 6 West Limited Corp , 237 F.3d 767 ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 00-1329 & 00-1599
6 WEST LIMITED CORPORATION and
LETTUCE ENTERTAIN YOU ENTERPRISES, INC.,
doing business as TUCCI MILAN,
Petitioners/Cross-Respondents,
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent/Cross-Petitioner.
On Petition for Review and Cross-Application
for Enforcement of Orders of
the National Labor Relations Board
Nos. 13-CA-32908, 13-CA-32971, 13-CA-33047, 13-CA-33455.
Argued September 27, 2000--Decided January 10, 2001
Before POSNER, COFFEY, and KANNE, Circuit Judges.
COFFEY, Circuit Judge. Tucci Milan/1 (Tucci)
was the focus of a union organizing drive/2 in
the fall and winter of 1994. After Tucci’s
employees voted against union representation, the
National Labor Relations Board (NLRB) determined
that Tucci’s pre-union vote conduct violated the
National Labor Relations Act (NLRA)./3 Tucci
appeals, and we grant its petition for review,
deny the General Counsel’s cross-petition for
enforcement, and vacate the decision of the NLRB.
I. BACKGROUND
The events leading up to the NLRB’s conclusion
that Tucci violated the NLRA began in late August
or early September 1994, when Jeff Kozak, the
general manager of Tucci, discovered that someone
had withdrawn numerous pages from the manager’s
log./4 When Kozak discovered that the log was
missing some pages, he questioned those employees
whom he believed had access to the office if they
knew the whereabouts of the missing pages,
including the weekday and weekend managers, the
restaurant’s chef, the managing partner (Howard
Katz), the former general manager (Steve
Schwartz), Richard Melman (president of LEYE), as
well as all of Tucci’s other managers. Not one of
them admitted having any knowledge of the
whereabouts of the missing pages. At that time,
management neither suspected theft nor that any
of the employees might have been involved despite
the fact that the employees were occasionally
given keys to the office to use the photocopier.
After the questioning of the individuals whom he
believed had access to the log bore no results,
Kozak set the matter aside and took no further
investigatory actions.
In the summer of 1994, 19 Tucci employees met
at the shared residence of servers Brian Gibson
and Jill Ricci to discuss various work-related
problems they perceived at the restaurant,
including health and safety conditions, the
alleged lack of effectiveness of Tucci’s
grievance resolution mechanism, and the
distribution of tips received at a large 1993
Christmas party. Attendees at the meeting were
shown, but not given, a copy of a document
entitled "Constructive Criticism" which consisted
of a cut-and-paste compilation of comments taken
from the manager’s log denigrating employees and
customers./5 As the attendees discussed the
contents of the "Constructive Criticism"
document, Brian Gibson and Greg Calvird suggested
that they call the Union and inquire into their
rights. Within one week of the meeting, Gibson
and Calvird met with Union Representative Terry
Maloney to discuss employee complaints, the
benefits of union representation, and the
mechanics of organizing Tucci employees.
Shortly afterwards, in September 1994, a second
meeting of Tucci employees was held at the
Gibson-Ricci residence. About seven employees
including Brian Gibson, Jill Ricci, Greg Calvird,
Gretchen Grant, Elaine Gonzales, and Sarkis
Akmakjian attended. At this time, those employees
in attendance signed union authorization cards
and went about forming a union organizing
committee. In addition to attending union
meetings, these committee members encouraged
other Tucci employees to attend union meetings
through conversations in and outside the
restaurant, including telephone calls to
employee’s homes.
Gibson, Ricci, Gonzales, Akmakjian, and Calvird
invited other Tucci employees to attend a union
organizing meeting on Saturday, October 8, 1994,
at a bar located across the street from Tucci
Milan. During this meeting, Gibson talked about
the necessity of having union representation and
distributed copies of the "Constructive
Criticism" document. During the meeting, Ken
Schrader, a Tucci bartender, recognized the
document as part of the manager’s log. Schrader
became volubly upset and repeatedly characterized
the document as stolen property. When Schrader
asked Gibson the source of the logs, Gibson first
responded "you don’t want to know." But, when
pressed further, Gibson replied "it’s amazing
what you can find in the garbage." According to
Schrader, a "sly smile" accompanied Gibson’s
explanation./6
Schrader gave his copy of "Constructive
Criticism" to Kozak and informed both Kozak and
Katz that Gibson was distributing cut-and-paste
compilations of the manager’s log to Tucci
employees in an effort to form union
representation. A week later, Schrader reiterated
the story to Jacqui Glasby, an employee relations
specialist for Tucci Milan.
A. Gibson’s Termination
At a regular employee meeting on Tuesday,
October 11, 1994, Katz announced that he had been
informed that parts of the manager’s log had been
stolen, and that the police had been
contacted./7 Two Chicago police officers arrived
at the close of the meeting and completed a
police report concerning the missing pages of the
manager’s log with Katz in a separate room.
Gibson did not report to work the next day and
contacted Glasby claiming that Katz had
threatened employees with an INS immigration
raid. When Glasby asked if that was the true
reason for Gibson’s call, Gibson stated that he
knew his rights. After that, Gibson contacted
union agent Maloney. Maloney concluded that
management knew about Gibson’s union involvement
and suggested that Gibson prepare a written
statement announcing his union organizing
activities.
Gibson returned to work on October 15, 1994,
and was immediately confronted by General Manager
Kozak and Managing Partner Katz who requested a
meeting with him. Before the three men went into
the manager’s office, Gibson requested the
presence of two witnesses. Upon Gibson’s request,
Kozak and Katz permitted Gibson to bring Calvird
and Grant into the meeting. Once in the office,
Gibson read his prepared statement announcing his
union organizing activities. Katz responded that
he was unaware of any union organizing efforts
and stated that the meeting had nothing to do
with union activities. Katz went on and explained
to Gibson that he did not call in before 8:00
a.m. when he failed to report to work on October
12, 1994, as set forth in the employee manual.
Katz further expressed concerns about Gibson’s
failure to share his tips with other employees
("tip-out") after his shift on Tuesday, October
11, 1994./8 Katz then informed Gibson that he
had been seen passing out stolen compilations of
the manager’s log and asked Gibson if he had
stolen the manager’s log. But, Gibson refused to
admit to either passing out copies of the stolen
documents or stealing the logs. Gibson was
informed that the determination of the theft
question would be handled by a police
investigation and that he would be suspended
pending the outcome of the investigation./9
Gibson called Glasby in Las Vegas on November
4, 1994, to inquire about a rumor circulating in
the restaurant that he had been permanently
fired. Glasby informed Gibson that he would
receive a final termination letter in the mail,
and when Gibson asked why he had been discharged,
Glasby stated that he told "too many stories"
about the missing portions of the manager’s log,
and that he was "not loyal to the Company."
Shortly thereafter, Gibson received his final
termination in a letter dated November 3, 1994,
which stated:
This is to advise you that your suspension, which
commenced October 15, 1994 has been converted to
termination effective as of this date. We have
taken this action because we have concluded that
your explanation concerning your role in the
unauthorized removal of company records is not
credible./10
B. Tucci Hostility Toward The Union
1. Increased Security
Kozak testified that prior to the union
organizing campaign, Tucci hired the services of
WBE Security to provide the services of one off-
duty, plain-clothed Chicago policeman on Friday
and Saturday nights to ensure the safety of
customers and employees. However, after the union
organizing activities commenced in early October,
security coverage increased to one security
officer every night of the week. Kozak testified
that he expanded the security arrangement after
the manager of a neighboring Ruth’s Chris
restaurant told him that the same union agents,
Terry Maloney and the union president, were
responsible for creating two disturbances at
Ruth’s Chris restaurant which required police
intervention.
2. The Solicitation Discipline
The Tucci Milan restaurant provides a handbook
of rules to its employees that contains the
following prohibition against solicitation and
distribution:
SOLICITATION AND DISTRIBUTION OF MATERIALS
1. DISTRIBUTION BY EMPLOYEES AT WORK
No employee may distribute literature of any kind
in work areas at any time before, during or after
the work day. This rule does not apply to non-
work areas.
No employee may solicit another employee to join
or support any endeavor or project during his own
work time anywhere on Company property; nor may
any employee solicit another employee during that
employee’s work time. This rule does not apply to
non-work (free) time, such as breaks and meal
breaks.
Ricci, while on the restaurant’s premises on
November 3, 1994, spoke with three other
employees about an upcoming union meeting and
suggested that they attend. After some of the
employees informed management that they were
uncomfortable about being solicited, Ricci was
given a written warning concerning her violation
of Tucci’s solicitation policy. Similarly,
Calvird and Grant, also union supporters, were
given written warnings after employees also
complained about their attempts at union
membership solicitation.
However, in the past, Grant, Ricci, and Calvird
had all solicited customers and employees. For
example, Ricci had sold hand-painted bottles to
employees and customers while working at the
restaurant. Grant had purchased theater tickets,
raffles tickets, and girl scout cookies. Finally,
Calvird displayed and sold hand-made Christmas
ornaments at the restaurant in December 1993.
3. The Bomb Threat
At an employee meeting in December of 1994,
management questioned employees about a letter
that had been sent on union stationery to a
number of Tucci Milan’s frequent diners. The
letter informed the frequent diners that they
might be asked to rate server performance for
management and might be subpoenaed to testify in
a court proceeding. Naturally, Tucci management
was very upset over the contents of this letter
and asked the employees present at the meeting if
anyone knew who was responsible for the letters.
Ricci responded that she did not feel that any
employee had written the letter because the
letter did not address the concerns that first
led some of the employees to contact the Union.
After the meeting, Ricci returned to the
restaurant and was asked by Kozak what she
thought of the meeting and the letter. Ricci
informed him that if the letter had come from the
Union she would be very upset and that she
intended to contact the Union before she returned
to Rhode Island for the Christmas holiday.
However, she journeyed to Rhode Island the next
day without contacting the Union.
At approximately 9:30 p.m. on the same night,
Ricci’s roommate, Gibson, answered the telephone
at their residence. The caller asked Gibson if he
could "fry eggs on Jill’s car," and told him that
he would see him in jail, and threatened to
sodomize him. Gibson hung up and reported the
substance of the call to Ricci. Ricci then
returned the call by dialing *69 on the
telephone. When the caller answered the phone,
Ricci asked "who is this," and a male voice
responded "who the f . . . is this." Ricci told
him that she was the person whose house he had
just called, told him to never call there again,
and hung up the telephone. Within several
minutes, the same caller telephoned. The male
caller threatened that he knew where they lived
and that he would come to their house and blow it
up.
That night, Gibson and Ricci contacted the
police and had the call traced./11 The next
morning, before leaving for Christmas vacation,
Ricci informed an assistant manager at Tucci of
the threatening phone calls she and Gibson
received, but stated that the identity of the
caller was unknown.
A few days later, Kozak held an employee
meeting and informed them that he had something
to tell them about Ricci. Kozak informed the
employees that Ricci had been upset about the
union letter sent to Tucci Milan’s frequent
diners and that she had gone to the union office
to confront the Union about the letter and to
tell them that she had no interest in being
involved with them anymore. Kozak then told the
employees that Ricci suspected that the Union had
threatened to blow up her house. Finally, Kozak
told the employees that Ricci had left town out
of fear and that the employees should be very
careful before they got involved with an
organization like that. However, one of the
employees spoke up and stated that she did not
believe the Union had threatened Ricci and that
Ricci had merely left town to visit her parents
and not out of any fear for her life.
C. Coercion and the Solicitation of Grievances
Two Tucci servers, Akmakjian and Gonzales,
testified that they received visits from Melman,
the founder and president of LEYE, and Haskell,
a senior vice president in the LEYE organization.
According to Akmakjian’s testimony, Melman and
Haskell visited the restaurant almost daily in
the week preceding the election whereas he had
observed the two men in the restaurant only a
couple of times a year prior to the union
campaign. Akmakjian also testified that three
days before the election Melman promised to re-
open his inquiry into a disputed tip issue at a
1993 Christmas party and remove a reporting-for-
work-late warning from Akmakjian’s personnel
file./12 Gonzales testified that on the
evening prior to the election, Haskell sought her
out and raised a number of issues with her and
promised to re-open the investigation into a
prior injury Gonzales sustained on the job as
well as the same 1993 Christmas party tip issue
Akmakjian had complained about.
D. The Charges/13
On October 17, 1994, Gibson filed a complaint
with the NLRB alleging that his suspension and
termination were in violation of the NLRA.
Specifically, Gibson argued that he was suspended
and eventually terminated because of Tucci’s
animus against his protected union activities.
Additionally, Jill Ricci filed a second case
against Tucci on November 7, 1994, alleging that:
1) the restaurant had disciplined her because of
her protected union activities; 2) employee Greg
Calvird was also disciplined by Tucci for
engaging in protected union activities; and 3)
the restaurant unlawfully applied its non-
solicitation policy when disciplining her and
Greg Calvird because of their involvement with
the Union. Ricci also alleged that she and her
roommate, Gibson, had received a phone call
threatening to blow up their house and that
Kozak, in violation of the NLRA, announced to the
restaurant’s employees that the bomb threat was
from the Union and that Ricci, frightened, had
been forced to leave Chicago. In a separate case,
Tucci server Gretchen Grant also alleged that the
restaurant unlawfully applied its non-
solicitation policy when disciplining her for
soliciting union support./14
E. The ALJ and NLRB
1. Gibson’s Discharge
On November 5, 1997, Administrative Law Judge
Thomas R. Wilks found that Tucci violated sections
8(a)(3) and (1) of the NLRA when it suspended and
discharged Brian Gibson because of his union and
other concerted, protected activities. According to
the ALJ, the fact that Tucci took no action with
regard to the missing log until after it was used
in a union organization effort and that Gibson was
never charged with the theft of the missing log,
leads one to the conclusion that Gibson’s
termination was based on nothing "more than a
thinly premised suspicion that Gibson may have been
somehow involved in the use, if not the
acquisition, of confidential documents."
Two of the three NLRB members sitting in review
of the ALJ concluded that even though the ALJ
"may not have accurately characterized [Tucci’s]
stated reason for discharging Gibson," sufficient
evidence existed to support the ALJ’s finding
that Tucci violated the NLRA when it discharged
Gibson. The two members of the Board reached this
conclusion because Tucci did not have a formal,
written policy stating that it would "discharge
an employee who failed to give credible answers
in an investigation of missing property." The
dissenting board member picked up on this
peculiar reasoning and stated that there was no
need for an employer to have a formal, written
policy stating that it would terminate an
employee who failed to give credible answers.
Rather, according to the dissenting judge, common
sense mandates that employers be allowed to
discharge employees who give less than credible
answers during the course of an investigation
into stolen property.
2. Tucci Hostility Toward the Union
a. increased security
According to the ALJ, "[t]here is no clear,
convincing, conclusive evidence that any
identifiable security officer did anything that
would be suggestive of surveillance of employees
as they engaged in any attempted union
activities." Rather, the fact that Tucci managers
had learned of the problems associated with the
union president and its agent at a local
restaurant, supported Tucci’s "reasonable
business motivation . . . for additional
security."
The two-member majority of the Board agreed
with the ALJ that there was no persuasive
evidence that Tucci’s security officers engaged
in any actual surveillance of those employees
suspected of engaging in union activities.
However, the majority concluded that the
expansion from one security officer two nights a
week to one security officer every night of the
week was coercive and violated section 8(a)(1) of
the NLRA because, according to the two Board
members, Tucci’s increased use of security guards
during the organizing campaign was part of a
coercive strategy to disparage the Union and to
frighten employees into withdrawing their support
for the Union.
The dissenting Board member disagreed with the
majority’s finding regarding Tucci’s increased
security measures and concluded, like the ALJ,
that the increase in security was a reasonable
business action in response to information from
a credible source concerning union misconduct
that took place at a local restaurant. According
to the dissenting Board member, the ALJ’s finding
in this regard was supported by the evidence and
should not be disturbed because there was no
evidence in the record tending to demonstrate
that the increase in security had a coercive
effect on the employees’ union activity.
b. the solicitation discipline
According to the ALJ, Tucci also violated the
NLRA when it disciplined Gretchen Grant, Jill
Ricci, and Greg Calvird for soliciting union
support while at work. The ALJ rested his
decision on the fact that Tucci management had
allowed past solicitation, such as the selling of
girl scout cookies, hand-blown glass Christmas
decorations, and hand-painted bottles. The ALJ
concluded that the restaurant impermissibly
discriminated against the Union when it
disciplined the three employees for soliciting
union support when it had allowed others to
solicit without punishment. All three members of
the Board agreed with the ALJ on this point.
c. the bomb threat
With respect to Kozak’s claim that the bomb
threat Ricci received was an act of the Union,
the ALJ concluded:
In this case, Kozak’s statement that Ricci fled
the city because she had been threatened by the
Union was so completely unfounded that if it did
not constitute an intentional lie, it was so
reckless and irresponsible as to warrant the same
sanction. I find that Kozak’s remarks patently
conveyed to the employees that they were in a
real and immediate danger from union violence. I
find that the objective tendency of such remarks
was to cause fear, confusion and dissension in
the ranks of possible prounion voters and
solidify antiunion voters in the upcoming
election./15
3. Solicitation of Grievances
The ALJ found that although senior vice
president, Charles Haskell, and the president and
founder of LEYE, Richard Melman, solicited
grievances from employees Sarkis Akmakjian and
Elaine Gonzales in early January 1995, this
conduct was lawful because it did not differ
significantly from previous actions under the
multifaceted grievance procedure maintained by
Tucci. The two-member majority of the Board
disagreed with the ALJ and concluded that
high-ranking members of management not only
initiated discussions of employee problems, but
also agreed to revisit "closed cases," both
implicitly and explicitly promising to remedy the
problems. Under these circumstances, we find that
[Tucci management] was not engaged in following
its preexisting grievance procedure or a
comparable process and that its preelection
promises to reopen previously resolved matters
constituted the unlawful solicitation of
grievances.
The dissenting Board member initially noted that
the mere fact that high-ranking Tucci officials
visited the restaurant during the week before the
election was not in and of itself a violation of
the NLRA. He went on to conclude that once high-
ranking officials were present at the restaurant,
it was only natural that they would address
specific employee concerns. Finally, the dissent
concluded that there was no evidence that the
high-ranking officials from the restaurant
"solicited grievances and promised to remedy them
as an inducement for employees to abandon the
Union."
II. ISSUES
On review, we consider whether Tucci violated
the NLRA when it: 1) terminated Gibson; 2) hired
additional security; 3) issued employees written
warnings for soliciting union support; 4)
attributed a bomb threat to the Union; or 5)
allowed high-ranking officials to address
employee grievances.
III. DISCUSSION
A. Standard of Review
The standard governing our review of unfair
labor practice proceedings before the Board is
well established. "We will uphold the Board’s
order if ’substantial evidence on the record as
a whole supports its factual findings and if its
conclusions have a reasonable basis in the law.’"
Dilling Mech. Contractors, Inc. v. NLRB, 107 F.3d
521, 523-24 (7th Cir. 1997) (quoting Carry Cos.
of Illinois v. NLRB, 30 F.3d 922, 926 (7th Cir.
1994)).
B. Gibson’s Discharge
The applicable substantive standards this court
applies are also well established. Section 7 of
the National Labor Relations Act, 29 U.S.C. sec.
157, guarantees employees the right to
self-organization by forming, joining, or
assisting labor organizations. Section 8(a)(1) of
the Act, 29 U.S.C. sec. 158(a)(1), protects the
right of employees to unionize by making it an
unfair labor practice "to interfere with,
restrain, or coerce employees in the exercise of
the rights guaranteed in section 157 of this
title." Therefore, management may not threaten an
employee with shop closure or with discharge nor
may an employer interrogate coercively an
employee in order to discourage union activities.
See, e.g., Van Vlerah Mechanical Inc. v. NLRB,
130 F.3d 1258, 1262 (7th Cir. 1997); NLRB v. Q-1
Motor Exp., Inc., 25 F.3d 473, 477 (7th Cir.
1994); Central Transp., Inc. v. NLRB, 997 F.2d
1180, 1189 (7th Cir. 1993). However, as we stated
in Carry Companies of Ill. v. NLRB, 30 F.3d 922,
926 (7th Cir. 1997),
union activism is not an impenetrable shield
against discharge, and the Act "does not give
union adherents job tenure." Chicago Tribune, 962
F.2d at 716 (quoting NLRB v. Loy Foods Stores,
Inc., 697 F.2d 798, 801 (7th Cir. 1983)). A
company is free to discharge its employees "for
good, bad, or no reasons, so long as its purpose
is not to interfere with union activity." Loy
Foods, 697 F.2d at 801.
The Board concluded that Gibson’s discharge
violated the NLRA because Tucci did not establish
that it would have fired Gibson absent his union
support. In reaching this conclusion, the Board
relied on the fact that Tucci did not have an
express, written policy stating that it "would
discharge an employee who failed to give credible
answers in an investigation of missing property."
We find this logic specious.
No company needs to have a set procedure for
what action it will take when adjudicating every
single employee problem. It is also obvious that,
at a bare minimum, companies must be able to
trust their employees and be assured that no one
is stealing documents from offices or private
files. It is also obvious that companies must be
able to discharge a thief or an untruthful
employee. In fact,
[f]alse statements impair the employer’s ability
to make sound judgments that may be important to
the employer’s legal, ethical and economic
well-being. So, an employer is entitled to expect
and to require truthfulness and accuracy from its
employees in an internal investigation that is
exploring possibly improper conduct in the
business’s own workplace. . . . Therefore, an
employer, in these situations, is entitled to
rely on its good faith belief about falsity,
concealment, and so forth.
EEOC v. Total System Services, Inc., 221 F.3d
1171, 1176 (11th Cir. 2000).
The Board’s reliance on the absence of any
formal policy requiring honesty is not only
misplaced legally, but divorced from the real
world, and an example of skewed and position-
oriented decision-making without the application
of logical reasoning and common sense. We thus
hold that the Board’s decision that the employer
violated the NLRA in discharging Gibson is not
supported by substantial evidence. Rather, Gibson
gave his employer cryptic and false answers in
response to inquiries about the materials stolen
from the manager’s log./16 Whether Gibson
actually stole the materials in question is
irrelevant. What is relevant is that Tucci had a
logical and legitimate reason to suspect that
Gibson was involved in the removal of the
documents. When Gibson was less than forthright
with his answers, Tucci was justified in
terminating his employment. Tucci would have
terminated Gibson for giving misleading answers
in the course of an investigation into stolen
property regardless of Gibson’s union
involvement. Vulcan Basement Waterproofing of
Ill., Inc. v. NLRB, 219 F.3d 677, 684 (7th Cir.
2000) ("[T]he employer can . . . avoid a finding
of an unfair labor practice if it can show that
it would have taken the action [Gibson’s
termination] regardless of the employee’s union
activities.")
C. Tucci Hostility Toward the Union
It is well established that it is an unfair
labor practice to grant or even to promise a
benefit (wage increase or otherwise) in order to
discourage an employee’s support of a union. Van
Vlerah, 130 F.3d at 1262. When determining if an
employer’s actions are forbidden by the NLRA, we
must ask ourselves if the employer’s action
"’reasonably tended to interfere with or coerce
employees in the exercise of their protected rights.’"
Carry Cos., 30 F.3d at 934 (quoting Weather
Shield Mfg., Inc., Millwork Div. v. NLRB, 890
F.2d 52, 56 (7th Cir. 1989)).
1. Increased Security
The Board disagreed with the ALJ and determined
that Tucci’s increase in security from one
security guard on Friday and Saturday nights to
one security guard every day violated the NLRA
because no business justification was ever
"communicated to [Tucci] employees." However, the
Board failed to cite any authority, nor are we
aware of any, stating that a business decision
will be justified only if that decision is
discussed with employees; presumably because
there is no such legal authority. Rather, the
record in this case establishes that Kozak was
informed by a local restaurant that it had
experienced two disturbances involving union
agent Maloney and the Union’s president. It was
after Kozak was informed of these disturbances
that Tucci decided to increase its security
force.
Under the circumstances present in this case,
we disagree with the NLRB’s conclusion that Tucci
violated the NLRA for the following reasons.
First and foremost, Tucci management had a
legitimate business reason to increase its
security, namely that Tucci had reliable
information that high-ranking union members had
been involved in a disturbance which required
police intervention at a nearby restaurant.
Second, both the ALJ and the Board agreed that
there was "no persuasive evidence that the
[security personnel] engaged in actual
surveillance of the employee’s union activities."
Third, the lone security officer was not in
uniform and never attempted to intimidate or
interfere with any union supporters or other
employees. Finally, we are of the opinion that it
makes more sense to encourage rather than
discourage employers to take security concerns
seriously; to condemn Tucci’s actions in this
case, at least with regard to the increase in
security, would send the wrong message to
employers. Once again, the Board’s decision
displays result-oriented decision-making rather
than the even, well-reasoned application of the
NLRA, precedent, and common sense.
2. Solicitation Discipline
"As a rule, . . . an employer cannot be
compelled to allow distribution of union
literature by nonemployee organizers on his
property." Lechmere, Inc. v. NLRB, 502 U.S. 527,
533 (1992). However, there is an exception to
this rule./17 An employer may not discriminate
in violation of section 8(a)(1) by denying "union
access to its premises while allowing similar
distribution or solicitation by nonemployee
entities other than the union." Lucile Salter
Packard Children’s Hosp. v. NLRB, 97 F.3d 583,
587 (D.C. Cir. 1996) (emphasis added); see also
Lechmere, 502 U.S. at 534; Babcock, 351 U.S. at
112. Under the non-discrimination exception,
"[a]n employer may not exercise its usual right
to preclude union solicitation and distribution
on its property if the employer permits similar
activity by other nonemployee entities in
similar, relevant circumstances." Lucile Salter
Packard, 97 F.3d at 587.
The ALJ, who was affirmed by a unanimous Board
on this point, concluded that Tucci violated the
NLRA when it disciplined three employees for
soliciting union support at work. The ALJ, in
reaching his conclusion, relied on the fact that
Tucci management had allowed non-union
solicitations in the past such as the employee
selling of girl scout cookies, hand-made
Christmas ornaments, hand-painted bottles,
theater tickets, and raffle tickets.
As stated above, Tucci violated the NLRA if it
discriminated by punishing the three employees
for soliciting union support but allowing other,
similar solicitations by other employees. We are
of the opinion that solicitations for girl scout
cookies, Christmas ornaments, hand-painted
bottles, and the other examples listed by the ALJ
certainly cannot, under any circumstances, be
compared to union solicitation as support for the
ALJ’s determination that the restaurant engaged
in a discriminatory application of its non-
solicitation policy./18 We are at a loss to
comprehend how a restaurant could maintain
positive relations with its employees and
customers if it failed to allow an activity as
innocent as the sale of girl scout cookies or the
sale of hand-blown Christmas ornaments during the
yuletide season. In short, the examples listed by
the ALJ can be seen as beneficial to all
employees, whereas the union solicitation by the
three disciplined employees obviously, according
to the record, made some of the employees
uncomfortable enough to complain to
management./19 A restaurant in the United
States of America should be free to prohibit
solicitations on the premises that interfere with
or bother employees or customers, and allow those
solicitations which neither interfere with nor
bother employees or customers. In this case, the
record is barren of any evidence that Tucci
management allowed other unwanted solicitation in
its restaurant. We do not believe that the
Board’s decision is supported by substantial
evidence and we are of the opinion that Tucci was
not in violation of the NLRA when it issued
written warnings to three employees for union
solicitation on the company’s premises.
3. The Bomb Threat
As described earlier in the opinion, Kozak
informed Tucci employees that Ricci believed that
the Union was responsible for the bomb threat
that she and Gibson received, and that Ricci had
left town out of fear for her life despite the
fact that Ricci had left town to visit her
parents. According to the ALJ,
Kozak’s statement that Ricci fled the city
because she had been threatened by the Union was
so completely unfounded that if it did not
constitute an intentional lie, it was so reckless
and irresponsible as to warrant the same
sanction. I find that Kozak’s remarks patently
conveyed to the employees that they were in a
real and immediate danger from union violence. I
find that the objective tendency of such remarks
was to cause fear, confusion and dissension in
the ranks of possible prounion voters and
solidify antiunion voters in the upcoming
election.
However, "[i]n determining whether an employer’s
activities [or speech] are forbidden by the Act,
the appropriate inquiry is whether those actions
reasonably tended to interfere with or coerce
employees in the exercise of their protected
rights." Van Vlerah, 130 F.3d at 1262.
Furthermore, we must look into the circumstances
and context in which the statement was made. Id.
at 1262-63.
In this case, Tucci management displayed a
letter to its employees, written on union
stationery, that was mailed to a number of
Tucci’s preferred customers informing the
customers that they might be required to rate
servers on their next visit to the restaurant
and, furthermore, that they might even be called
to testify in future court proceedings. When
asked by Kozak what she thought of the letter,
Ricci responded that if the letter had indeed
come from the Union she would be very upset. She
further informed Kozak that she was going to
contact the Union before leaving town that night
to visit her parents over the Christmas season.
However, unbeknownst to Kozak, Ricci left the
Chicago area that night without contacting the
Union.
Kozak was also advised that Ricci received a
bomb threat from an unidentified source on the
very same night that he thought Ricci had gone to
the union headquarters to express her
disappointment if the Union was involved in the
letter-writing campaign. Furthermore, rumors of
the bomb threat had already circulated among
Tucci employees and the mere fact that Kozak
informed them of the threat Ricci received cannot
be deemed as a violation of the NLRA because
Kozak was not telling the employees anything they
didn’t already know.
The General Counsel for the NLRB argues that
Kozak violated the Act when he informed Tucci
employees that Ricci believed that the bomb
threat was from the Union and that Ricci had left
town because of her fear of union violence.
However, when the entire record is considered it
is possible to understand what might have lead
Kozak to attribute the bomb threat to the Union.
Initially, Ricci informed Kozak that she was
going to contact the Union and inquire whether
they had any involvement with the letters that
were mailed to Tucci’s preferred customers. It is
reasonable for Kozak to have taken Ricci at her
word and assume that she had actually contacted
the Union as she stated she intended to do that
very night. Next, because the letter was written
on union stationery, it is a logical inference
for Kozak to have believed that the Union was
involved in the letter-writing campaign to
Tucci’s preferred customers. It is also
reasonable to believe that the Union told Ricci
that it was involved in the letter-writing
campaign. It is also a logical step to assume
that once the Union informed Ricci that it had
participated in sending the letters to Tucci
customers, Ricci would have decided that she no
longer wanted to be associated with the Union.
Additionally, and although many people feel
otherwise, there is still a perception amongst
many of the public at large, going back to the
days of Jimmy Hoffa, that unions, violence, and
the mob are somehow interrelated. See generally,
Julie Kosterlitz, Searching for New Labor,
National Journal, Sept. 4, 1999; Jonathon Cohn,
Hard Labor: John Sweeney, modern militant, Oct.
6, 1997. Added to that, Kozak had been advised by
a manager from another local restaurant that
high-ranking members of the same Union that was
attempting to organize at Tucci Milan had been
involved in two disturbances at the neighboring
restaurant which necessitated police
intervention. Apparently, Kozak assembled these
bits of information and innuendos and constructed
a scenario that had the Union threatening to bomb
the residence of one of its supporters.
Finally, Gonzales immediately spoke up at the
meeting and told Kozak that she did not believe
that the Union had threatened Ricci because those
employees in contact with the Union would have
heard about it. Gonzales further made clear to
the employees assembled that Ricci had not left
town out of fear of union violence, but that she
had gone to Rhode Island to visit her parents.
Therefore, the employees were faced with
assessing the truthfulness of Kozak’s version of
events where the Union threatens to blow up one
of its own supporters and Gonzales’s version that
she doubted any Union involvement in the bomb
threat. Furthermore, Gonzales informed the
assembled employees that the real reason for
Ricci’s departure from town was to visit her
parents during the holidays.
Our inquiry in this case is whether, when
considering all the factors surrounding Kozak’s
statements, the employees were interfered with or
coerced into voting against the Union. Based on
this record, we are of the opinion that Kozak’s
comments cannot reasonably be read as influencing
or coercing Tucci employees. Consequently,
Kozak’s attribution to the Union of the bomb
threat received by Ricci does not violate the
NLRA.
D. Solicitation of Grievances
As stated earlier in the opinion, the ALJ
concluded that although senior vice president,
Charles Haskell, and the president and founder of
LEYE, Richard Melman, solicited grievances from
employees days before the union election, this
conduct was lawful because it did not differ
significantly from Tucci management’s previous
conduct. However, the two-member majority of the
Board disagreed with the ALJ and concluded that
Tucci management "was not engaged in following
its preexisting grievance procedure or a
comparable process and that its preelection
promises to reopen previously resolved matters
constituted the unlawful solicitation of
grievances."
The Board, in disagreeing with the ALJ, relied
on the fact that none of Tucci’s grievance
polices contemplated that high-ranking officials
would "ferret out problems or resolve
grievances." However, we are of the opinion that
the Board took too narrow of an approach to the
realities of the employer-employee relationship
in the "nineties."
An employer violates the NLRA when the employer
interferes with employees in the exercise of
their rights by soliciting grievances when such
solicitation is accompanied by express or implied
promise of benefits specifically aimed at
interfering with, restraining, or coercing
employees in their organizational effort. NLRB v.
Berger Transfer & Storage Co., 678 F.2d 679, 691
(7th Cir. 1982). However, it is undisputed that
the mere presence of Haskell and Melman at Tucci
Milan did not violate the Act.
In this case, Melman discussed a Christmas tip
issue with an employee. This was an issue that
Melman had personally been involved with in the
past and we see no reason why Melman should be
precluded from revisiting the issue when an
employee complains about it. In fact, just the
opposite is true; the fact that Melman was
involved with these types of disputes in the past
supports the ALJ’s finding that the solicitation
of grievances was in conformity with the past
business practices of the restaurant.
The situation would be different if Melman
promised a different resolution of the matter.
But, Melman merely stated that although he
thought the issue had been resolved, he would
look into the matter. Furthermore, we are of the
opinion that while Melman was legitimately
engaged in a discussion concerning the Christmas
tip issue, it is natural that complaints over
other issues might arise and we are unable to
understand why such discussions would violate the
NLRA./20
We are also of the opinion that Haskell’s visit
to the restaurant immediately before the union
vote did not violate the Act. It is important to
note that Haskell never promised to remedy
situations that had previously been decided
against employees. Rather, Haskell’s discussion
with Gonzales was a dialogue concerning the pros
and cons of union organization. And, although
Haskell did promise to reopen some matters, we
agree with the ALJ that there is no evidence in
the record that he made any specific promise as
to any action that would be taken. Consequently,
we are of the opinion that Haskell did not
solicit grievances as an inducement for employees
to abandon their support for the Union, and,
thus, no violation of the Act occurred.
Given our conclusion that none of Tucci Milan’s
actions violated the NLRA, we GRANT Tucci’s
petition for review, DENY the General Counsel’s
cross-petition for enforcement, and VACATE the
decision of the NLRB.
/1 Tucci Milan is an Italian restaurant in Chicago,
Illinois, which is jointly owned by 6 West
Limited Corp. and Lettuce Entertain You
Enterprises, Inc. (LEYE). Throughout the opinion
the petitioners/cross-respondents will be
referred to as either Tucci or Tucci Milan.
/2 The labor organization in this case was the Hotel
Employees and Restaurant Employees Union, AFL-
CIO, Local 1.
/3 The relevant portions of the NLRA are codified at
29 U.S.C sec. 158(a) (Unfair labor practices),
and state:
(a) Unfair labor practices by employer
It shall be an unfair labor practice for an
employer--
(1) to interfere with, restrain, or coerce
employees in the exercise of the rights
guaranteed in section 157 of this title;
* * *
(3) by discrimination in regard to hire or
tenure of employment or any term or condition of
employment to encourage or discourage membership
in any labor organization . . . .
/4 The manager’s log is a three-ring-binder
containing a one-page synopsis of business for
every day that the restaurant is open, as well as
managers’ sometimes derogatory comments on
employees’ and customers’ behavior and
personalities. The log is kept in the manager’s
locked office and contains summaries dating back
one or two years.
/5 Gibson testified at the hearing before the ALJ
that he received copies of the log statements in
the mail at an unspecified time in the summer of
1994 and decided they were important enough to
warrant sharing with coworkers. Ricci, Greg
Calvird, and Elaine Gonzales (both servers at
Tucci Milan) also testified to receiving copies
of the log in the mail.
/6 Gibson testified at the hearing before the ALJ
and offered the rather ridiculous explanation
that he told Schrader that the documents were not
stolen because the photocopies of the manager’s
log that he had made were not, themselves,
stolen. Gibson further testified to telling
Schrader that "maybe someone threw it out in the
garbage," such as a manager with office access.
/7 Katz stated that the person responsible for the
theft of the documents would be arrested and made
veiled threats that anyone with information about
the theft should come forward or risk being
considered an accomplice. Katz also made the
threatening comment that the restaurant could be
visited by the Immigration and Naturalization
Service.
/8 It is a common practice for servers to "tip-out"
other employees, such as bartenders, busboys, and
hostesses, after their shift.
/9 At the meeting, Gibson was told that if he was
"cleared" of the charges, he would be reinstated
with full back pay. Despite management’s
suspension of Gibson, he continued to pass out
his "Constructive Criticism" document.
/10 Even though Gibson was advised that he was only
being suspended pending the results of a police
investigation, at the time Gibson was terminated
no police investigation had been concluded.
Furthermore, Gibson has not been charged with the
theft of the manager’s log.
/11 The record does not reveal whether the call was
ever successfully traced.
/12 The late warning was, in fact, not removed from
the employee’s file.
/13 Only those charges relevant to this appeal will
be discussed.
/14 The Regional Director consolidated all of these
allegations into a consolidated complaint. The
consolidated complaint further alleged that in
early January 1995, Haskell and Richard Melman
solicited employee grievances and that Haskell
impliedly promised remedy thereof and granted
benefits to employees, including the removal of
disciplinary personnel file write-ups, to
discourage union activities. Finally, the
complaint further alleged that from October 1994
through January 1995, security personnel hired by
the restaurant engaged in surveillance of its
employees’ union activities, and attempted to
stifle union support.
/15 Neither the Board’s majority decision nor the
dissenting judge specifically commented on
Kozak’s attribution of the bomb threat to the
Union. However, the NLRB order does prohibit
Tucci from "falsely tell[ing its] employees that
the Union is responsible for bomb threats to
employees, or explicitly or implicitly warn[ing]
that they are in imminent danger of union
violence."
/16 The ALJ also questioned Gibson’s credibility on
several grounds.
/17 There are actually two exceptions to this general
rule. An employer violates section 8(a)(1) if it
prohibits union access to the employer’s property
if the employees are otherwise "inaccessible"
because they are "’beyond the reach of reasonable
union efforts to communicate with them.’"
Lechmere, 502 U.S. at 534 (quoting NLRB v.
Babcock & Wilcox Co., 351 U.S. 105, 112 (1956)).
However, this exception does not apply to this
case.
/18 Of course, a restaurant would discriminate in the
enforcement of its non-solicitation policy if it
prohibited union solicitation but allowed
employees to solicit business, political,
religious, or other association membership.
/19 We do not read the ALJ decision as discrediting
Kozak’s testimony that employees were
"uncomfortable" with the union solicitation.
Rather, the ALJ and the Board relied on the
allegedly discriminatory application of Tucci’s
non-solicitation rule.
/20 We are aware of the fact that Melman informed
Akmakjian that he would look into a late
disciplinary warning that the employee believed
was unfair. While Melman did not promise any
particular result, Haskell informed Akmakjian
that the warning had been removed from his file
despite the fact that the warning was never
removed. Although we certainly do not approve of
management falsely informing its employees that
grievances had been resolved in their favor, we
are of the opinion that the fact that Akmakjian
was falsely informed as to the outcome of a
grievance does not constitute a violation of the
NLRA because, as the ALJ concluded, Melman’s and
Haskell’s "reception of employee complaints [did
not] constitute . . . a significant departure
from an ongoing past practice."