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National Labor Relations Board v. Sure-Tan Inc.

decided: February 24, 1982.


On Application For Enforcement Of An Order Of The National Labor Relations Board

Before Cudahy, Circuit Judge, Fairchild, Senior Circuit Judge, and Brown, Senior District Judge.*fn*

Author: Cudahy

When these same respondents were before us several years ago, we noted in passing certain "bogeymen" who now have made a full appearance calling on us for decision in this matter of first impression. See NLRB v. Sure-Tan, Inc., 583 F.2d 355, 358 n.3 (7th Cir. 1978). In this prior decision involving the same respondent, we held that illegal aliens are "employees" protected by the National Labor Relations Act (the "Act" or "NLRA"). We presently confront the further knotty problem of rectifying the injustice done certain of these aliens, whose labor was gratefully accepted and broadly utilized but whose efforts at labor organization were rebuffed by expulsion from the United States.

Unfortunately, more than five years have passed since the occurrence of the discriminatory acts underlying the order of the National Labor Relations Board (the "Board" ) in this case. Even more unfortunately, whatever remedy is approved here may have little effect in discouraging employer conduct which violates the rights of employees under the NLRA-conduct which the employer now argues was merely consistent with his duty under the Immigration and Naturalization Act (the "INA" ).

Respondent Sure-Tan, Inc., and Surak Leather Company ("Sure-Tan" ) are two small leather processing and sales firms located in Chicago, Illinois.*fn1 Both firms are owned and operated by Steve and John Surak, and at the times relevant to this case they employed approximately eleven workers. Most of these employees were Mexican nationals in the United States without visas or work permits. A union organization drive began at Sure-Tan in July, 1976, and eight employees signed cards authorizing the Chicago Leather Workers Union, Local 431, Amalgamated Meatcutters and Butcher Workmen of North America (the "Union" ),*fn2 to act as their collective bargaining representative. On August 12, 1976, the Union filed an election petition with the Board and an election was held on December 10, 1976. The Union won the election, and on January 19, 1977, the Board notified Sure-Tan that its objections were overruled and that the Union was certified as the employees' collective bargaining representative.

On February 22 and March 23, 1977, the Board's Acting Regional Director for Region 13 issued complaints against Sure-Tan, charging that Sure-Tan violated sections 8(a)(1), 8(a)(3) and 8(a)(4) of the Act by discriminatorily discharging five employees because of their union activities; threatening, interrogating and coercing its employees to discourage them from engaging in protected activities; and discriminatorily reprimanding an employee who filed a complaint with the Board. The case was heard by an administrative law judge (ALJ) who upheld the complaints in all respects. The Board affirmed and adopted the ALJ's findings and conclusions but modified the backpay and reinstatement remedy proposed by the ALJ. We shall discuss separately each issue raised by Sure-Tan with respect both to the merits of the Board's order and the Board's revised reinstatement and backpay remedy. In summary, we find that substantial evidence supports the Board's order in this case, subject to certain modifications of the remedy.

I. Interrogations and Threats

The ALJ found that on several occasions between August, 1976 (after the Union began its organization efforts), and December, 1976, John Surak threatened, coerced and interrogated various employees about their union support in violation of section 8(a)(1) of the Act. Former employee Floriberto Rodriguez testified that at some time during August, 1976, John Surak approached a group of employees (including Rodriguez) asking in English and Spanish, "You all union?" When Rodriguez responded that they knew nothing about the Union, Surak retorted by calling them "mother fucking son of a bitches" before leaving the room.*fn3

Former employee Francisco Robles testified that in October, 1976, John Surak showed him a piece of paper with squares marked "yes" and "no." Surak pointed to the "yes" square and told Robles, "Union no good. Little work." Pointing to the "no" square, Surak told Robles "(T)he Company is good. A lot of work here." Surak then marked the "no" square saying, "O.K. Francisco?" to which Robles replied, "O.K." Robles testified that Surak approached another employee (Primitivo Servantez) in Robles' presence at some time in December before the election and attempted to give that employee similar advice about the "yes" and "no" squares. When Surak was unable to communicate in English with this employee, he asked Robles to translate the message into Spanish. Robles then told Servantez that Surak wanted him to mark the "no" square on his election ballot.

Robles further testified that two hours after the election on December 10, 1976, John Surak addressed a group of employees (which included Robles, Arguimiro Ruiz and Primitivo Servantez) exclaiming "no friends, no amigos," and using the word "immigration." Surak asked the employees, "Union why? Union why?" and he also cursed them saying "Mexican son of a bitch." Surak then asked Robles whether he possessed proper immigration papers; Robles replied that he did not have appropriate documentation. Surak also asked the other employees if they possessed proper immigration papers; Servantez replied, through Robles, that "nobody had papers there."*fn4 Employee Albert Strong also testified that after the election on December 10, John Surak told him, "Your dream finally came true, but I won't stay in business."*fn5

Sure-Tan contends that the ALJ erred by crediting the testimony of Rodriguez, Robles and Strong and that the ALJ's finding of a violation of section 8(a)(1) based upon this testimony is therefore not supported by substantial evidence as required by section 10(e) of the Act, 29 U.S.C. § 160(e) (1976). We must disagree. The only evidence in support of its claim to which Sure-Tan directs our attention is the testimony of John Surak. Surak denied that he made any of the quoted statements or that he threatened or interrogated his employees about their union activities. But the ALJ, who conducted the hearing and observed Surak's demeanor, discredited what he deemed Surak's hesitant and evasive testimony. After reviewing the transcript of the hearing, we cannot conclude that the ALJ erred in discrediting Surak's uncorroborated and self-serving declarations. See NLRB v. Mars Sales & Equipment Co., 626 F.2d 567, 571-72 (7th Cir. 1980). On review, we will fault the Board for accepting an ALJ's credibility determinations only when such determinations are inherently incredible, unreasonable or conflict with the clear preponderance of the evidence. NLRB v. Hospital and Institutional Workers Union, Local 250, 577 F.2d 649, 652 (9th Cir. 1978); see First Lakewood Associates v. NLRB, 582 F.2d 416, 420 (7th Cir. 1978); Electri-Flex Co. v. NLRB, 570 F.2d 1327, 1331-32 (7th Cir.), cert. denied, 439 U.S. 911, 99 S. Ct. 280, 58 L. Ed. 2d 256 (1978). Surak's uncorroborated denials do not meet this standard.

Sure-Tan's contention that Surak's statements do not amount to a violation of section 8(a)(1) is similarly without merit. Under section 8(a)(1), an employer commits an unfair labor practice by "interfering with, restrain(ing), or coercing employees in the exercise of the rights guaranteed in section 7 (of the Act)." 29 U.S.C. § 158(a)(1) (1976). Proof of successful interference, restraint or coercion is unnecessary; a violation of section 8(a)(1) is demonstrated by an employer's conduct which tends to interfere with the rights of employees to organize a union. Jays Foods, Inc. v. NLRB, 573 F.2d 438, 444 (7th Cir.), cert. denied, 439 U.S. 859, 99 S. Ct. 176, 58 L. Ed. 2d 167 (1978). The ALJ was more than justified in concluding that Surak's instructions to Robles and Servantez, implying that a "yes" vote (approving union representation) would result in "little work," constitutes a threat within the ambit of section 8(a)(1). Although free to predict the economic consequences of unionization, an employer unlawfully threatens his employees when he warns of an adverse economic impact without providing an objective basis for the employees to believe that the predicted result is not caused solely at the employer's initiative. NLRB v. Gissel Packing Co., 395 U.S. 575, 618, 89 S. Ct. 1918, 1942, 23 L. Ed. 2d 547 (1969); NLRB v. Gogin, 575 F.2d 596, 600-01 (7th Cir. 1978).

Moreover, the ALJ justifiably concluded that Surak unlawfully interrogated his employees when he questioned them about their support of unionization. Interrogation violates section 8(a)(1) when, properly viewed in the context of an employee-employer relationship, the employer's questioning may have reasonably induced fear in the employees causing them to refrain from assisting a union. NLRB v. Gogin, 575 F.2d 596, 600 (7th Cir. 1978); Satra Belarus, Inc. v. NLRB, 568 F.2d 545, 547-48 (7th Cir. 1978). Surak's questions about union support, followed by ethnic slurs, inquiries into the employees' immigration status, occasional ascriptions of canine ancestry and other expressions of Surak's anti-union animus are unarguable and flagrant examples of interrogation prohibited by section 8(a)(1).

II. Additional Threats and Layoffs

The ALJ also found that Sure-Tan violated sections 8(a)(1), 8(a)(3) and 8(a) (4) of the Act, 29 U.S.C. §§ 158(a)(1), (3) & (4) (1976), by reprimanding employee Albert Strong for filing a complaint with the Board. Strong testified that on or about January 31, 1977, he filed a complaint at the local Board office alleging that he had been discriminatorily laid off by Sure-Tan for several weeks after the union election. Shortly after he filed this complaint, John Surak approached Strong at work and berated him for filing the complaint. Steve Surak then joined in, echoing his brother's claim that Strong was a "dirty son of a bitch" and stating to Strong that "You are trying to get money like you did before."*fn6 Several days after this incident, John Surak called Strong a "lazy punk" for failing to move some bags of chemicals. Strong responded by telling Surak that he intended to report Surak to the Board. Later that same day, Steve Surak gave Strong a letter of reprimand.*fn7 This was the first letter of reprimand issued to Strong in his 11 years of employment with the Surak brothers.

The ALJ concluded that the Surak brothers' verbal harassment of Strong shortly after he filed a complaint with the Board and the subsequent letter of reprimand*fn8 were motivated by Strong's long-standing union support and his effort to invoke the Board's legal processes and, thus, violated sections 8(a) (1), 8(a)(3) and 8(a)(4). Sure-Tan contends that the ALJ erred by crediting Strong's testimony as against the Surak brothers' denial that any of these statements were ever made. The ALJ's credibility determinations must stand, especially when the only contrary evidence consists of the Surak brothers' own self-serving denials.*fn9 See NLRB v. Mars Sales & Equipment Co., 626 F.2d 567, 571-72 (7th Cir. 1980).

We also reject Sure-Tan's argument that these findings, which are supported by substantial evidence on the whole record, do not establish violations of sections 8(a)(1), 8(a)(3) and 8(a)(4). The ALJ justifiably concluded that the Surak brothers' threatening remarks and written reprimand addressed to Strong shortly after he filed charges (or, more precisely, indicated his intention to file additional charges) impeded Strong's exercise of protected rights and his access to the Board in violation of sections 8(a)(1) and 8(a)(4). See NLRB v. Scrivener, 405 U.S. 117, 121-25, 92 S. Ct. 798, 801-03, 31 L. Ed. 2d 79 (1972); NLRB v. Intertherm, Inc., 596 F.2d 267, 275-76 (8th Cir. 1979). See generally Glenroy Construction Co. v. NLRB, 527 F.2d 465, 468 (7th Cir. 1975). Moreover, the ALJ correctly found, in light of the Surak brothers' demonstrated anti-union animus and the fact that their disciplinary reprimand followed closely on the heels of Strong's resort to Board processes, that the reprimand was discriminatorily motivated and thus violated section 8(a)(3). See Electri-Flex Co. v. NLRB, 570 F.2d 1327, 1334-35 (7th Cir.), cert. denied, 439 U.S. 911, 99 S. Ct. 280, 58 L. Ed. 2d 256 (1978). The ALJ's inference seems even more justifiable in ...

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