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Bozzuto's Inc. v. National Labor Relations Board

United States Court of Appeals, Second Circuit

June 24, 2019

BOZZUTO'S INC., Petitioner-Cross-Respondent,
v.
NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner.

          Argued: November 29, 2018

         Cross-petition by respondent National Labor Relations Board for enforcement of an order (A) holding that petitioner employer engaged in unfair labor practices in violation of the National Labor Relations Act (the "Act"), 29 U.S.C. §§ 158(a)(1) and (3), by, inter alia, announcing wage increases in conjunction with urging employees to decline to join a union, asking one pro-union employee "what's going on with this union stuff," later suspending and then discharging him for allegedly low productivity, and discharging another pro-union employee for insubordination in refusing to attend a meeting; and (B) requiring employer to (1) cease and desist from such or similar violations, (2) reinstate the insubordinate employee, (3) compensate and make whole both discharged employees, (4) post the Board's remedial notice listing the employer actions found to have violated the Act, and (5) hold a meeting at which that notice is read aloud to its employees by, or in the presence of, employer's senior vice president. See Bozzuto's, Inc., 365 N.L.R.B. No. 146 (2017).

         Employer petitions for review of the Board's holdings that the above single question constituted impermissible interrogation and that the discharges were motivated by antiunion animus, contending that those findings are not supported by substantial evidence; and it contends that the Board abused its discretion in ordering remedies for the discharged employees and ordering that the remedial notice be read aloud at a meeting of employees.

         The petition for review is granted to the extent that it challenges (1) the Board's rulings and orders with regard to (a) "interrogation" and (b) the discharge of an employee for insubordination, and (2) the order that the Board's remedial notice be read aloud at a meeting of employees. In all other respects, the petition for review is denied. The Board's cross-petition for enforcement is granted in all respects except those in which the petition for review is granted.

          MIGUEL A. ESCALERA, Jr., Hartford, Connecticut (Sheldon D. Myers, Kainen, Escalera & McHale, Hartford, Connecticut, on the brief), for Petitioner-Cross-Respondent.

          DAVID A. SEID, Washington, D.C. (Peter B. Robb, General Counsel, John W. Kyle, Deputy General Counsel, Linda Dreeben, Deputy Associate General Counsel, Julie Brock Broido, Supervisory Attorney, National Labor Relations Board, Washington, D.C., on the brief), for Respondent-Cross-Petitioner.

          Before: KEARSE, LIVINGSTON, and CARNEY, Circuit Judges.

          KEARSE, Circuit Judge.

         Petitioner-cross-respondent Bozzuto's Inc. ("Bozzuto") petitions for review of so much of an order of respondent-cross-petitioner National Labor Relations Board ("NLRB" or "Board"), see Bozzuto's, Inc., 365 N.L.R.B. No. 146 (2017), as (A) found Bozzuto committed unfair labor practices in violation of §§ 8(a)(1) and/or (3) of the National Labor Relations Act (the "Act"), 29 U.S.C. §§ 158(a)(1) and (3), in its treatment of two employees who were union supporters, by asking Todd McCarty "what's going on with this union stuff," later discharging him for allegedly low productivity, and discharging Patrick Greichen for alleged insubordination in refusing to attend a meeting to which he was summoned by management; and (B) orders Bozzuto to reinstate Greichen, to provide Greichen and McCarty with backpay and compensation for other losses, and to read the Board's remedial notice, detailing Bozzuto's violations of the Act, aloud at a meeting of its employees. In support of its petition, Bozzuto contends principally that substantial evidence did not support the Board's findings that the single question to McCarty was coercive or that either McCarty or Greichen was terminated because of antiunion animus or protected activity, and that the Board abused its discretion in ordering Bozzuto to reinstate Greichen with backpay and to read the remedial order aloud to employees.

         The Board cross-petitions for enforcement of its order which--in addition to the above aspects challenged by Bozzuto-- found that Bozzuto violated the Act by announcing wage increases in conjunction with urging employees to decline to join a union; by maintaining a restrictive speech policy that conditioned continued employment for suspended employees on their written agreement not to discuss with coworkers terms of employment, including discipline; by disciplining Greichen for talking with other Bozzuto employees about conditions of employment; and by suspending McCarty for supposedly low productivity.

         For the reasons that follow, we grant Bozzuto's petition for review to the extent that it challenges (1) the Board's rulings and orders with regard to the "interrogation" of McCarty and the discharge of Greichen, and (2) the order that the Board's remedial notice be read aloud at a meeting of employees. In all other respects, the petition for review is denied. The Board's cross-petition for enforcement is granted in all respects except those in which the petition for review is granted.

         I. BACKGROUND

         The observable events leading to these administrative proceedings, despite some vagueness in the testimony as to their precise timing, are largely undisputed. Bozzuto operates wholesale warehouses in Connecticut for the distribution of food products, employing approximately 450 production workers in capacities such as loaders, forklift operators, and "selectors." A selector's job includes receiving orders for food products, driving a motorized vehicle to the section in which the ordered products are stored, and loading the products onto portable platforms that are ultimately carried by truck to the customers.

         In order to evaluate selectors' productivity, Bozzuto attaches machine-readable tags to each warehouse product and uses a computerized system to compare the speed with which selectors complete their tasks against a standard time--which the parties call the "labor standard." The labor standards were established by Bozzuto engineers after months of studies, in accordance with accepted engineering methods, calculating average times needed to complete specific tasks. The resulting standards are posted publicly on Bozzuto bulletin boards for the employees' information.

         A Bozzuto selector whose performance exceeded the labor standard on a weekly basis became eligible for added incentive pay; a selector whose performance failed, for a given week, to meet at least 95 percent of the labor standard was subject to potential discipline.

         McCarty and Greichen were employed at a Bozzuto warehouse as selectors. McCarty had frequently earned extra incentive pay for exceeding the labor standards. In August 2013, Bozzuto posted a commendation for his "outstanding job selecting . . . food products" and his "expertise and dedication to always doing the right job!" (Bozzuto's High Achievers, August 23-25, 2013, "Todd McCarty" ("GREAT JOB, TODD!!!!").)

         A. The events of mid-September through October 1, 2013

         In September 2013, McCarty contacted the United Food and Commercial Workers Union, Local 919 (the "Union"); shortly thereafter, he, Greichen, and two other Bozzuto employees met with a Union representative. On Monday September 23, McCarty and Greichen began handing out union authorization cards to their fellow production workers, urging them to sign up.

         The effort to unionize Bozzuto employees did not long remain covert. On September 26, an employee posted a message to Bozzuto's internal electronic message board stating that union authorization cards were being distributed. McCarty had initially hoped the unionization effort would escape management's notice for at least the first few weeks; but it did not, and within the first week he chose to be open about his participation. By September's end, the Union had obtained 84 signed authorization cards from Bozzuto employees.

         Bozzuto's management was generally aware in that first week that a union-organizing effort was under way. On Monday September 30, Bozzuto's Vice President of Human Resources Carl Koch posted a message stating that Bozzuto was "aware of the current activity."

         On or about October 1, as McCarty exited a restroom near a Bozzuto work area, he encountered Bozzuto's Senior Vice President Rick Clark, with whom he had a good relationship. Clark asked, "Hey, Todd, what's going on with this Union stuff?" McCarty replied, "I'm not going to talk about it with you, Mr. Clark." (Hearing Transcript ("Tr.") 485.) That was the end of the conversation.

         On October 1, Bozzuto issued a written announcement that stated in pertinent part as follows:

We have been advised by a number of our associates that the [Union] is attempting to unionize our associates and asked them to sign a union card. The associates that came to us did so out of concern for themselves and their fellow workers stating that having a union is not in the best interest of Bozzuto[] or the associates.
. . . .
We want all of our associates to understand that they are not required to sign a union card. It's absolutely ok to say NO. If anyone harasses you about that, tell them to stop and feel free to seek our assistance.
We do not need a union at Bozzuto[]. Unions do not provide jobs, only successful companies can . . . .

(Emphasis in original.) On the same day, Bozzuto posted a memorandum announcing that nearly all production workers would be receiving hourly pay increases ranging from 50 cents to two dollars per hour, retroactive to September 29, 2013.

         Also on October 1, 2013, Greichen was summoned to a meeting with several members of Bozzuto's management team: Senior Vice President Clark, Human Resources Vice President Koch, Associate Relations and Development Manager Doug Vaughan, and Head of Security Bill Glass. Bozzuto maintains that the meeting was called because Clark had been told by other employees that Greichen was displaying erratic behavior and making various negative comments about Bozzuto's labor standards being too stringent, complaining that they did not, in Greichen's view, allow enough time for employees to complete their assigned tasks. As reflected in a memorandum prepared by Vaughan from his notes of the meeting, Clark informed Greichen "that several associates" had "commented on how his behavior had been increasingly more erratic and some hourly associates considered his behavior 'scary, '" and that "it was management's job to provide a safe and clean work environment for all associates" and to address "comments . . . made to management that raise a red flag."

         Greichen was warned against continuing his behavior and told he "needed to stop disrupting the work environment by making negative comments in the aisles, such as[] being forced to work 20 hours per day or comments about needing three legs to do the work here, in the hallway in front of his peers."

         B. The Discharge of Greichen on October 8

         On October 8, 2013, Greichen complained first to his supervisors, and thereafter to Bozzuto's then-Grocery Distribution Manager Jason Winans, that the labor standard pertaining to his assigned tasks for the day had been unfairly shortened, making timely completion of his work impossible. Winans's ensuing memorandum summarizing his conversation with Greichen stated that Winans "attempt[ed] to calm Mr. Greichen down" by reviewing with him the computer records as to individual assignments; but when Winans "didn't see anything out of the ordinary, "

Patrick [Greichen] began telling me how he believes Bozzuto[] cuts the standard time on assignments on days when the volume is high in order to get more cases out of people and to pay them less, in the process making them miserable. Patrick then told me that he tells anybody and everybody he can that he believes we are purposely changing the standards on a daily basis in order to screw the associates. I told Patrick that I didn't believe any of this to be true and that these were very serious accusations he was making.

(Memorandum of Jason Winans dated October 9, 2013, as to October 8, 2013 accusations by Patrick Greichen ("Winans Memorandum of Greichen's October 8 statements") at 1 (emphases added)). As indicated in that memorandum, Winans viewed the situation as problematic, and he promptly reported Greichen's accusations to Clark and Vaughan.

         Clark and Winans arranged for a 4:00 meeting on October 8 at which Bozzuto industrial engineers James Wright and David Heatley could explain to Greichen how the standard times for various tasks were determined and functioned so that Greichen could see that the targets were not subject to manipulation. Bozzuto maintains that it hoped both to educate and reassure Greichen and to prevent him from spreading misinformation to other employees.

         Winans then, as instructed by Clark, told Greichen of the scheduling of the meeting and its purpose, and said Greichen's presence was required. Despite Winans's repeated urging, Greichen refused to attend. He said he felt he was being harassed. Vaughan then joined Winans in attempting to persuade Greichen to attend the meeting. Vaughan said Greichen would not face discrimination or harassment or "anything negative" if he attended the meeting; Winans emphasized that the meeting was mandatory and that if Greichen did not attend, he would be suspended pending termination for insubordination. Greichen confirmed that he understood. There is no dispute that he was also informed the meeting would be attended by industrial engineers.

         Greichen nonetheless refused to attend. Bozzuto discharged him, effective that day, citing his insubordination.

         C. The 2014 Suspension and Termination of McCarty

         Following the October 8, 2013 discharge of Greichen, McCarty remained involved in supporting the union-organizing effort and was one of the few remaining active union supporters. His involvement with the Union had been well known to Bozzuto's management since the first week of the campaign.

         In early January 2014, McCarty became aware that his reported productivity numbers for the week ending January 4 appeared to be unduly low, and he deduced that Bozzuto's computerized reporting system, in tracking his efficiency as compared to the labor standard, had failed to take account of his "down time," i.e., time when he properly was not on-the-clock. Down time, such as a supervisor-approved break or time needed for equipment repairs, does not count toward the total time the employee has taken to complete a task. Thus, failure to account for an employee's down time would make his performance appear to be less productive than it actually was.

         To verify his suspicion that the reporting system was not taking proper account of his down time, McCarty began to take screen shots each week of the raw data shown for him in the computer, in order to prove inaccuracies in the final productivity reports. He complained to Winans about the discrepancies he observed due to his missing down time. According to McCarty, Winans essentially disregarded his complaint, saying "If you wanted down time put in, you should have made sure it was put in. . . . It is what it is." (Tr. 515.)

         In mid-January, McCarty spoke with his supervisor William Englehart to pursue his complaint about improper treatment of his down time. According to McCarty, Englehart told him not to worry about it (see id. at 516); but Bozzuto proceeded to suspend McCarty for five days on account of his supposedly low productivity numbers. McCarty refused to sign the Bozzuto write-up documenting this five-day suspension, arguing that the productivity numbers shown were inaccurate.

         McCarty then was away for a few weeks, in part on vacation, and he had coworkers take screen shots of his data for the week ending January 18. Their photographs showed that McCarty's originally recorded down time was thereafter deleted, thereby lowering McCarty's productivity score.

         On February 18, the day that McCarty returned, he was summoned to a meeting with members of Bozzuto's management. He was told that his performance for the week of January 11 was at 94 percent of the labor standard, and that, as a result, he was being discharged. McCarty objected on the ground that the ...


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