N.L.R.B. v. Taylor Mach. Products, Inc.
| Decision Date | 18 February 1998 |
| Docket Number | No. 96-6047,96-6047 |
| Citation | 136 F.3d 507 |
| Parties | 157 L.R.R.M. (BNA) 2449, 135 Lab.Cas. P 10,125 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. TAYLOR MACHINE PRODUCTS, INC., Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
David Habenstreit (argued and briefed), National Labor Relations Board, Office of the General Counsel, Washington, DC; Aileen A. Armstrong (briefed), Deputy Associate General Counsel, Peter Winkler (briefed), National Labor Relations Board, Appellate Court Branch, Washington, DC, for Petitioner.
; Ronald S. Lederman (briefed), Scott D. Norton (briefed), Anthony A. Asher (argued), Sullivan, Ward, Bone, Tyler & Asher, Southfield, MI, for Respondent.
Before: KENNEDY, JONES, and CLAY, Circuit Judges.
KENNEDY, J., delivered the opinion of the court, in which CLAY, J., joined. NATHANIEL R. JONES, J. (pp. 520-521), delivered a separate opinion concurring in part and dissenting in part.
The National Labor Relations Board (hereinafter, "NLRB" or "Board") petitions for enforcement of a final order against Taylor Machine Products, Inc. ("Taylor") issued July 21, 1995, reported at 317 NLRB 1187, 1995 WL 437226 (1995). For the following reasons we grant enforcement, with the exception of the Board's order to recognize and bargain directly with the Union.
Taylor produces small brass and steel parts, and sells them directly to America's largest automakers, as well as to other manufacturers of parts for automakers. Taylor divides its manufacturing processes into "core" and "secondary" operations. In the core operations unit, machinists cut and shape auto parts. Approximately sixty percent of Taylor's products are sold to customers without further processing. The remaining products require additional processing in the secondary operations division. Prior to August 6, 1992, Taylor housed both the core and secondary operations in its only plant, located in Taylor, Michigan.
In January, 1992, Local Lodge 82, District Lodge 60, International Association of Machinists and Aerospace Workers, AFL-CIO-CLC ("Union") began an organizing campaign among Taylor's fifty-eight production and maintenance employees. The Union held an organizational meeting on Sunday January 26, 1992; by the end of the day, thirty-nine employees had signed a petition authorizing the Union to represent them in collective bargaining with their employer. The next day, the Union filed a petition for Board election and certification as the collective-bargaining representative for the production and maintenance employees. Pursuant to this petition, an election was held on March 25, 1992. Of the voters, thirty-one voted in favor of the Union and twenty-three cast ballots in opposition to Union representation. Five remaining ballots were challenged and not counted.
Taylor filed timely objections, alleging that conduct by the Union and its supporters tainted the election results. On May 28, 1992, a hearing officer of the Board recommended that the election be overturned on the basis of third-party conduct. The hearing officer specifically found that in connection to the union campaign, union supporters vandalized two cars and two bicycles owned by anti-union workers. It also concluded that union supporters threatened workers opposed to unionization with physical harm and property damage. In one instance, a union supporter told a worker opposed to the union, who was wearing an anti-union button on her left lapel, that would be "the wrong place to be wearing that button if a bullet were shot." On October 15, 1992, the Board's Acting Regional Director acted on the hearing officer's recommendation, set aside the election, and ordered a new election. The Board held the order in abeyance pending the outcome of the instant unfair labor practice complaint in which the General Counsel sought an order requiring Taylor to bargain directly with the Union.
The complaint in this case, filed on November 10, 1992, 1 alleged that Taylor, through as many as nine of its officers, managers, and supervisors, committed a variety of unfair labor practices in violation of section 8(a)(1) of the Labor Management Relations Act of 1947, (the "Act"), 29 U.S.C. § 158. 2 The complaint also asserted that the following actions taken by Taylor violated section 8(a)(3) 3 of the Act: (1) the June 12 discharge of employee James Howells; (2) the July 6 discharge of employee Gene Wilson; and (3) the August 6 relocation of the secondary operations machines to a new facility in Kentucky and discharge of six employees who had been assigned to operate those machines. Finally, the complaint alleged that Taylor's refusal to bargain over the transfer of secondary operations violated section 8(a)(5) of the act. 4 Respondent Taylor denied the commission of any unfair labor practices and contested the majority status of the Union.
In a decision dated April 12, 1994, the Administrative Law Judge ("ALJ") made findings of fact and concluded that Taylor had engaged in four separate types of conduct that violated § 8(a)(1). 5 The Board adopted the ALJ's findings and recommended remedies. We set forth the findings of fact at considerable length because of their importance to the issue of whether a bargaining order was appropriate in this case.
The ALJ concluded that Taylor's owner and several of its high-level employees threatened workers in violation of § 8(a)(1). On the basis of testimony by employees Charles Warren and Elmer Ferrell, as well as former employees Bonnie Warren and Gene Wilson, the ALJ found that on Monday January 27, 1992, the day after the Union meeting, then plant manager Pat Cassiopia called employees Charles Warren and Gene Wilson separately into his office. The ALJ determined that Cassiopia told Charles Warren that "some employee was going to get fired because of the union activities" and warned Wilson that Charles Jones, the owner, "would close the doors" if the Union won the election. The ALJ found that Cassiopia, later in the same week, also called Bonnie Warren and Elmer Ferrell into his office and told them "that the shop was too small to have a union and that the doors would be closed if the employees were successful in their organizational attempt." Respondent did not call Cassiopia--who by that time had been fired by respondent--to testify. The ALJ found the unrebutted testimony of Wilson, Ferrell, and the Warrens to be credible.
The ALJ found that other management officials made similarly impermissible threats. For example, he found that machine supervisor Charles Bertram called then-employee Paul Marquess into his office on January 27, 1992 and told him that "a lot of people would lose their jobs" if the employees voted in the Union. Next, the ALJ concluded that, in the context of a discussion about Gene Wilson's support for the unionization effort, Taylor's president, David Sanders, "said something about my heart condition; that if I was to lose this job, that I would have a hard time finding another job due to my pre-existing heart condition." Finally, the ALJ found that, shortly before the August 6, 1992, layoffs, the owner of Taylor, Charles Jones, told Charles Warren that Jones knew the women who worked in secondary operations "started" the attempt at organization and that "he would take care of them too." The ALJ concluded that this conduct occurred by crediting the testimony of Charles Warren and finding that he "c[ould] not credit the cryptic, oblique testimony by Jones against the fully developed, specific, potentially decision-altering testimony by Warren." With the exception of Jones' threat to "take care of" the women in the secondary operations unit, all of these threats occurred before the Union won the election on March 25, 1992.
The ALJ also found that, beginning Monday January 27, 1992, high-level employees violated § 8(a)(1) by interrogating Union supporters. Specifically, the ALJ concluded as follows: (1) that Cassiopia called Charles Warren into his office and asked him what he knew about the Union activities, and that Cassiopia later asked Ferrell "who had started the drive" for a union; (2) that Bertram called Marquess into his office and questioned him regarding whether union representatives had been to Marquess' house and what the organizational efforts were all about; (3) that shipping foreman Joseph Gratowski called employee Woodrow Singleton into his office and asked whether he had been contacted by the Union, and what progress had been made toward unionization; (4) that supervisor of secondary operations Ronald Perkins asked former employee Shirley Tizai, and others working around her, what they thought were the chances that the Union would succeed, and who among them would vote for the union; and (5) that quality control supervisor Kathy Ganich questioned former employee James Howells about why he would not campaign against the union and threatened that unionization could lead to a plant closure. With respect to each of these incidents, the ALJ stated explicitly that he found the testimony of the production and maintenance employee more credible than that of the corresponding supervisor. 6 Only Kathy Ganich's statements occurred after the March election.
At the hearing, Taylor's president, David Sanders, admitted that in August, 1992, Taylor issued a new employee handbook that prohibited "the distribution of any and all literature ... in working and non-working areas." The ALJ concluded that this rule, by prohibiting the distribution of literature in non-work areas, was over-broad and violated § 8(a)(1).
Finally, the ALJ concluded that Taylor violated § 8(a)(1) by permitting and condoning the harassment of known...
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