On Application for Enforcement of an Order of The National Labor Relations Board.
Cummings, Bauer, Circuit Judges, and McLaren, District Judge.*fn*
In this enforcement proceeding the National Labor Relations Board ("the Board"), seeks a decree charging the respondent employer, Townhouse T.V. & Appliances, Inc. ("Townhouse"), with unfair labor practices arising out of the subcontracting of its delivery and installation operation after the employees performing that operation informed Townhouse of their desire to join a union. The issues involved are whether substantial evidence supports the Board's finding that Townhouse committed unfair labor practices and whether the Board's remedy is proper.
Townhouse sells and services appliances and television sets from a single store in Chicago, Illinois. From 1959, when the store opened, until September 11, 1973, Townhouse delivered and installed its appliances with its own vehicles operated by its own employees. At the time of the alleged unfair labor practices, Townhouse operated two delivery trucks and employed four full-time driver-installers and one part-time driver-installer and utility man. From the time it commenced business in 1959 through August of 1973 no union represented any of Townhouse's employees.
On August 30, 1973, the four full-time driver-installers signed cards authorizing the Chicago Truck Drivers, Helpers and Warehouse Workers Union (Independent) ("the Union") to be their exclusive representative for collective bargaining with Townhouse. On September 5, 1973, two field representatives of the Union presented the cards to Michael Moore, president of Townhouse, and requested that the company recognize the Union as collective bargaining representative for the driver-installers and that it sign a collective bargaining agreement. Moore refused both requests and told the Union representatives that he was going to have an outside hauler deliver his merchandise. The Union filed a petition for a Board conducted certification election later that day.
After work that same day, Moore called driver-installers Oliva and Ostrick into his office. He questioned them about their desire to unionize and stated he could not afford to pay the Union's pay scale.
On September 6, 1973, Moore arranged for Rizzo Brothers Haulers to take over the Townhouse delivery operations beginning September 12. The day before Rizzo took over, Moore discharged its four driver-installers. On September 20, Townhouse sold the two trucks formerly used in its delivery and installation service.
The Administrative Law Judge found that Townhouse had violated Section 8(a)(1) of the Act through Moore's interrogation of Oliva and Ostrick and Sections 8(a)(3) and 8(a)(1) through the discharge of the four driver-installers. To remedy these violations he recommended that the Board order Townhouse to bargain with the Union concerning the decision to contract out its delivery-installation work and concerning the economic effects of the decision on the affected employees and to award the affected employees backpay from the date of their discharge to the date the Union and the company bargain either to an agreement or an impasse.
The Board adopted the Administrative Law Judge's findings with respect to Townhouse's unfair labor practices, adding the part-time driver-installer to those employees found to have been discriminatorily discharged, but refused to order the Administrative Law Judge's proposed remedy. In its stead the Board ordered Townhouse to reestablish its delivery operation and reinstate the discharged employees as well as to bargain with the Union and award the employees backpay.
Townhouse challenges both the unfair labor practice findings and the remedial order.
Section 8(a)(1) of the Act proscribes employer conduct which coerces employees in the exercise of their right to form, join or assist labor organizations. As Townhouse points out, the mere interrogation of employees concerning union membership is not per se a violation of the Act. See L. C. Cassidy & Son, Inc. v. NLRB, 415 F.2d 1358, 1361 (7th Cir. 1969). But the Board may properly find a Section 8(a)(1) violation if, within the context of the interrogation, the questions asked appear to have had a ...