Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-13-2005

NLRB v. Alandco Dev Corp
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3787




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                                             NOT PRECEDENTIAL

                UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT


                             No. 04-3787


               NATIONAL LABOR RELATIONS BOARD

                                             Petitioner

                                  v.

ALANDCO DEVELOPMENT CORP., d/b/a SENIOR CARE AT THE FOUNTAINS

                                             Respondent



                Application for Enforcement of An Order
                 of the National Labor Relations Board
                           (No. 4-CA-31269)



               Submitted Under Third Circuit LAR 34.1(a)
                          Date: May 13, 2005

        Before: SLOVITER, FISHER and ALDISERT, Circuit Judges

                         (Filed May 13, 2005)



                      OPINION OF THE COURT




                                   1
ALDISERT, Circuit Judge.

       The National Labor Relations Board files an application for enforcement of its

order affirming the Administrative Law Judge’s (“ALJ’s”) decision. The ALJ held that

Alandco Development Corporation (the “Company”) violated § 8(a)(1) of the National

Labor Relations Act (the “Act”) by interfering with its employees’ rights to organize and

engage in union activities. 29 U.S.C. § 158(a)(1) (2000).

       The Company operates an assisted living and residential care facility in New

Jersey. The United Food & Commercial Workers Union sought to represent the

Company’s employees and an election was held. The first election was set aside and a

second election was scheduled. During the course of the Union campaign, there is

evidence that the Company restricted its employees’ access to its facilities, interrogated

two employees, told employees that an administrator wanted them terminated because of

their Union support and sang a song conveying that employees should either vote against

the Union or go work at a unionized facility. The ALJ determined that this established a

violation of § 8(a)(1) and the Board affirmed with some modifications.

       On appeal, we must decide whether the Board’s unfair labor practice findings are

supported by substantial evidence. We have jurisdiction pursuant to 29 U.S.C. § 160(e).

We will grant the Board’s application for enforcement of its order.

                                             I.

       Because we write only for the parties, who are familiar with the facts, procedural


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history and contentions presented, we will not recite them except as necessary to our

discussion.

                                               II.

       Section 7 of the Act guarantees employees “the right to self-organization, to form,

join or assist labor organizations, . . . and to engage in other concerted activities for the

purpose of collective bargaining or other mutual aid or protection . . . . ” 29 U.S.C. §

157. Section 8(a)(1) of the Act implements that guarantee by making it an unfair labor

practice for employers to “interfere with, restrain, or coerce employees in the exercise of

[their § 7] rights.” 29 U.S.C. § 158 (a)(1).

       We review the Board’s factual findings under the substantial evidence standard.

29 U.S.C. § 160(e). “[A] reviewing court must recognize the Board’s competence in the

first instance to judge the impact of utterances made in the context of the employer-

employee relationship.” N.L.R.B. v. Gissel Packing Co., 

, 620 (1969).

Whether an employer’s conduct is coercive within the meaning of § 8(a)(1) of the Act is

a question of fact best left to the specialized expertise of the Board. See N.L.R.B. v.

Pizza Crust Co. of Penn., Inc., 

, 51 (3d Cir. 1988). Additionally, the

resolution of issues of credibility is not for the reviewing court. N.L.R.B. v. Buitoni

Foods Corp., 

, 171 (3d Cir. 1962).




                                                3
                                            III.

       When we examine the facts against the foregoing precepts, we conclude that

substantial evidence supports the Board’s determination. The facts tell a story of coercion

and threat. The Company had a rule barring employees from the facility until ten minutes

before the start of their shift or ten minutes after the end. The Company contends that the

policy was implemented to prevent socializing between employees. The Board, however,

found that the Company strictly enforced the rule only during the Union’s campaign

before the election and not at other times. The Board credited the testimony of Juanita

Joyce and Jennifer Copeland to support this finding.

       Next, there is evidence that Jack Wiener, an administrator, approached employees

Juanita and Grace Joyce while they were sitting in a car in the parking lot prior to the

start of their shift. He made accusatory complaints about pro-union postings, used a

vulgarity and shook their car. This course of conduct against the sisters was coercive.

       Director Sharon Gossner, on about fifty occasions, sang aloud in front of

employees the rhyme, “Vote No, No, No or St. Mary’s is the Place to Go.” St. Mary’s

was a comparable health care facility. We have no difficulty in concluding that a

manager’s suggestion that employees who want a Union should find work elsewhere

violates the Act. See N.L.R.B. v. Gravure Packaging, Inc., 

, 1303 (1996)

(“A suggestion that union supporters should quit coveys the impression that such support

is incompatible with continued employment and implicitly threatens discharge.”). There


                                             4
is also evidence that Gossner, the night before the election, sang “If you vote for the

Union, you wo[]n’t have a job on Monday.”

       Finally, there is evidence that food service directors Mitchell and Fisher separately

told pro-Union employees that Wiener wanted to get rid of them. The Board reasonably

chose to credit the specific testimony of some witnesses over others. Accordingly, there

is substantial evidence to support the Board’s factual findings.

                                         *****

       We have considered all contentions of the parties and conclude that no further

discussion is necessary. The Board’s application for enforcement of its order will be

granted.




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