569 F.2d 357 (5th Cir. 1978), 76-3181, N.L.R.B. v. Jacob E. Decker and Sons

• Date: 13 March 1978
• Docket Number: 76-3181.
• Citation: 569 F.2d 357
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. JACOB E. DECKER AND SONS, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 357

569 F.2d 357 (5th Cir. 1978)

NATIONAL LABOR RELATIONS BOARD, Petitioner,

v.

JACOB E. DECKER AND SONS, Respondent.

No. 76-3181.

United States Court of Appeals, Fifth Circuit

March 13, 1978

Page 358

[Copyrighted Material Omitted]

Page 359

Elliott Moore, Deputy Assoc. Gen. Counsel, John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Carl L. Taylor, Assoc. Gen. Counsel, Michael S. Winer, Michael F. Messitte, Attys., NLRB, Washington, D. C., for petitioner.

Leon C. Reivitz, Phoenix, Ariz., A. J. Harper, II, Houston, Tex., for respondent.

Application for Enforcement of an Order of the National Labor Relations Board.

Before THORNBERRY, GOLDBERG, and CLARK, Circuit Judges.

CHARLES CLARK, Circuit Judge:

The NLRB has applied for enforcement of its order that Decker cease certain unfair labor practices, offer reinstatement to two employees, and pay two other employees the wages they lost while suspended. ¹ See Jacob E. Decker and Sons, 223 N.L.R.B. 70 (1976). With one exception Decker concedes that there was substantial evidence to support the Board's findings that Decker had violated sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act. 29 U.S.C. §§ 158(a)(1), (3). The exception involves two employees who were suspended for thirty days because, according to Decker, they failed to correct misstatements on their company records. In addition to that evidentiary challenge, Decker contends that the Board committed two procedural errors that preclude enforcement of the Board's order. Both procedural errors involve the felony convictions of two other employees who testified on behalf of the Board at the hearing before

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an Administrative Law Judge (ALJ). The first error concerns the effect of a conviction on a witness' credibility. Decker contends that the Board should have remanded the case to the ALJ so that he could reassess the credibility of the witnesses in the light of their convictions. The second error involves the effect of a conviction on an employee's eligibility for reinstatement. Decker contends that the Board should have reopened the record to allow the evidence of the felony convictions to be included in Decker's challenge to the ALJ's order that the employees be offered reinstatement. For the reasons stated below, we enforce all of the Board's order except for the portion dealing with the two discharged employees who were later convicted of felonies.

Since Decker has not contested the Board's general findings, we need only relate the background of this case in summary fashion. Early in June 1974 the Union, Local 171 of the Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, began an attempt to organize the employees at Decker's meat processing plant in San Antonio, Texas. At a meeting on June 20, seven employees discussed the campaign with union organizers. One of those employees was Alfredo Orosco. Orosco signed a union card at that meeting and later began soliciting other employees to sign cards. On June 28 Orosco was discharged. During the next few days the company held three meetings to explain that Orosco had been discharged because he had failed to list a former employer on his application for employment. Three weeks later, two other employees, Raymond Tarin and Jesse Garcia, were suspended for thirty days because, according to the company, they had concealed that they were brothers-in-law. The final action by the company that concerns this court occurred on September 6, when John A. Dominguez was discharged from his position on the maintenance clean-up crew. The company explained that Dominguez, a probationary employee, had been fired because his performance was unsatisfactory.

Because the company has not challenged the Board's findings of a violation of section 8(a)(1), the Board is entitled to an order enforcing its directive that the company post the appropriate notices. See Montgomery Ward & Company v. NLRB, 385 F.2d 760, 765 (8th Cir. 1967).

The company contends that there was insufficient evidence to support the Board's conclusion that Tarin and Garcia were suspended because of their union activities. The company finds support for its contention in the ALJ's statement that Tarin and Garcia "were bona fide candidates for suspension" because they had falsified company records. Both Tarin and Garcia had indicated on company forms that they had no relative working for the company even though they were brothers-in-law. ² In spite of his statement, the ALJ concluded, and the Board agreed that the suspension was motivated by an anti-union animus. Our review of that conclusion is limited to assessing whether there is substantial evidence in the record as a whole to support the Board's finding. " When the findings and conclusions of the Board are supported by the record as a whole, the court will not substitute its judgment for that of the agency." Linbeck Construction Corporation v. NLRB, 550 F.2d 311, 320 (5th Cir. 1977).

The company contends that the Board erred in finding the suspension was motivated by anti-union animus. It points out that in the meetings held after Orosco's discharge it announced an "open" period during which employees could correct their records without being penalized for the initial falsification, and urges that since Tarin and Garcia did not take advantage of that

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open period, they were suspended. However, there was a conflict in the testimony as to when the company first announced the open period; some said it was in the meetings to explain Orosco's firing, others said it came only after Tarin's and Garcia's suspension. The ALJ concluded that neither Tarin nor Garcia was notified of the open period prior to their suspension. Since there is testimony upon which the ALJ could base his conclusion, we will not disturb it even though there is also testimony to support the contrary conclusion. Sturgis Newport Business Forms, Inc. v. NLRB, 563 F.2d 1252, 1256 (5th Cir. 1977); Helena Laboratories Corporation v. NLRB, 557 F.2d 1183, 1187 (5th Cir. 1977); NLRB v. Standard Forge & Axle Company, 420 F.2d 508, 510 (5th Cir. 1969), cert. denied, 400 U.S. 903, 91 S.Ct. 140, 27 L.Ed.2d 140 (1970). The only objective evidence supports the ALJ's conclusion. Those corrections that were made were dated after the suspension of Tarin and Garcia. There was also evidence that the company knew of at least one other pair of relatives who had not disclosed their relationship, yet the company had taken no action against them. Thus the ALJ had evidence upon which he could fairly conclude that the company had discriminated against Tarin and Garcia. In addition, there was evidence upon which the ALJ could have concluded that the discrimination was based upon anti-union animus. The plant manager knew that Tarin was actively involved in the campaign to organize the union and, three weeks before the suspension, had asked Tarin about his activities. That knowledge, coupled with the fact that the suspension came during the company's efforts to defeat the union's organizing campaign, could support the conclusion that the suspension was based upon union activities. NLRB v. Varo, Inc., 425 F.2d 293, 301-02 (5th Cir. 1970). As we held in NLRB v. Central Power & Light Company, 425 F.2d 1318, 1322 (5th Cir. 1970), "the existence of cause is not a defense to a discharge actually motivated by anti-union purposes. . . . The cases also clearly indicate that open hostility by the employer to the union and discharge of an employee shortly after the employer learns of his union activity may give rise to an inference that the discharge was discriminatory."

Decker's contentions concerning Orosco and Dominguez do not directly challenge the Board's finding that they were discharged because of their activity on behalf of the union. Instead, Decker argues that because both Orosco and Dominguez have been convicted of felonies, their credibility is in doubt. Decker petitioned the Board to remand the case to the ALJ so that he could reconsider his evaluation of the credibility of the two men. If the ALJ found them not to be credible, then, Decker reasons, there would be insufficient evidence to support the finding that their discharges were unfair labor practices and less evidence to support the finding that the company had violated section 8(a)(3). Decker also relies upon the felony convictions to challenge the Board's order that Orosco and Dominguez be offered reinstatement. Decker asked the Board to reopen the record to admit evidence of the convictions. The Board refused, postponing until the compliance stage a decision on Dominguez' and Orosco's suitability for reinstatement.

The following calendar of events is important in considering both of Decker's arguments:

February 11-13, 1975: Partial hearing on the unfair labor charges. February 19: Dominguez pled guilty to federal charges that he had used the telephone to facilitate the distribution of LSD, a felony under 21 U.S.C. §§ 841(a)(1), 843(b). March 3-6: Hearing resumed and concluded. May 2: Dominguez adjudged guilty and sentenced. June 26: ALJ decision issued. July 16: Decker petitioned Board to reopen the record to admit Dominguez' conviction insofar as it related to his credibility. Page 362

February 26, 1976: Orosco pled guilty to state charges of possession of more than four ounces of marijuana, a felony in Texas. March 15: Board decision issued denying Decker's petition to reopen the record to consider Dominguez' conviction.³ March 25: Judgment against Orosco entered. April 7: Decker petitioned Board to reopen the record to consider the effect of both convictions on credibility as well as on reinstatement. May 28: Board denied petition, saying that it would defer until the compliance stage consideration of reinstatement. This chronology reveals that Dominguez' conviction became final after the...