P.S.C. Resources, Inc. v. N.L.R.B.

Decision Date12 May 1978
Docket NumberNo. 77-1389,77-1389
Parties98 L.R.R.M. (BNA) 2432, 83 Lab.Cas. P 10,604 P.S.C. RESOURCES, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
CourtU.S. Court of Appeals — First Circuit

Sanford A. Kowal, Boston, Mass., with whom Sallop, Kowal & Davis, Assoc., Boston, Mass., was on brief, for petitioner.

Wyneva Johnson, Atty., Washington, D. C., with whom Michael S. Winer, Atty., John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Carl L. Taylor, Associate Gen. Counsel, and Elliott Moore, Deputy Associate Gen. Counsel, Washington, D. C., were on brief, for respondent.

Before CAMPBELL and BOWNES, Circuit Judges, PETTINE, Chief Judge. *

PETTINE, Chief District Judge.

Petitioner P.S.C. Resources refines waste oil. During the period relevant to this case, at the Watertown, Massachusetts facility, five drivers under the direction of the manager, John Lee, were responsible for soliciting, purchasing and collecting waste oil that was thereafter shipped to petitioner's refineries. The drivers were paid a weekly salary, regardless of the amount of oil they collected, but they also received incentive bonuses depending on their weekly collection record. Following a meeting in late February/early March, 1976 with petitioner's general manager, William White, at which grievances were aired, the drivers began to discuss joining a union. On May 6, 1976, four drivers, including Thomas Carleton, signed union authorization cards. On May 13, 1976, Carleton was dismissed by Lee.

In this petition for review and cross-application for enforcement of a decision and order of the National Labor Relations Board, we are called upon to review the Board's findings that petitioner committed several unfair labor practices. In specific, the Board adopted, without discussion or alteration, the substantive findings of the Administrative Law Judge ("ALJ") that petitioner coercively interrogated its employees and created an impression of surveillance in violation of § 8(a)(1) of the National Labor Relations Act ("Act"), 29 U.S.C. § 158(a)(1) (1970), and that petitioner discharged Thomas Carleton because of his union activities in violation of § 8(a)(1) and (3) of the Act, 29 U.S.C. § 158(a)(1), (3).

Our review is limited to "whether on the record as a whole there is substantial evidence to support the Board's findings." NLRB v. Pearl Bookbinding Co., 517 F.2d 1108, 1112 (1st Cir. 1975). Deference to the inferences drawn by the ALJ who heard and observed the witnesses first-hand is particularly required in our review of discriminatory discharges wherein the employer's motive is the key. Trustees of Boston University v. NLRB, 548 F.2d 391, 393 (1st Cir. 1977). Of course, credibility judgments stand "unless they are beyond the bounds of reason." NLRB v. Pearl Bookbinding Co., supra, 517 F.2d at 1113.

I. Coercive Interrogation and the Impression of Surveillance

The ALJ's findings that petitioner's manager, John Lee, coercively interrogated employees and gave them an impression of surveillance is based on both Lee's testimony and the testimony of employees. Lee testified that he began asking employees if they knew anything about the union in the fall of 1975. His inquiries were at the behest of the president of petitioner who was "concerned" about the rumor Lee reported that the men at the Watertown facility were organizing a union. Lee was informed in late 1975 or early 1976 that a concentrated effort to unionize had been launched. Lee gave no indication in his testimony that his inquiries ever ceased. In light of his boss' directive and the information Lee received of increased union activity, the ALJ correctly inferred that Lee's questioning continued well into 1976. To all his questions with one exception, Lee testified that the employees indicated their ignorance of any union activity.

Employees testified that Lee asked them individually if they knew anything about the union on several occasions, including in May, only a few days after they signed union cards and several days prior to Carleton's discharge. In response to the May questioning, Mr. Giordano testified that he told Lee the men had signed union cards. Mr. Anderson stated that Lee asked him if he, Anderson, started the union and that Lee said he knew Anderson held a union card. Anderson replied that he did not start the union, that the company knew when it hired him that he held a card and that he had also signed a union authorization card. In response to Lee's further question about who gave him the authorization card, he answered that he did not remember. Mr. Purcell reported that Lee twice asked him if he knew anything about the union and twice stated that Lee knew that Purcell did indeed know something. Both times, Purcell lied and denied any knowledge because he was afraid he "might be out the door" if Lee thought he was involved in the union.

The ALJ found that Lee's conversations with Purcell, whose testimony he credited, had created an impression of surveillance. We agree that Lee's expressions of knowledge of Purcell's union activities were intended to and did in fact give Purcell an impression of surveillance in violation of § 8(a)(1). See, e. g., NLRB v. Prince Macaroni Manufacturing Co., 329 F.2d 803, 805-06 (1st Cir. 1964); cf. NLRB v. Simplex Time Recorder, 401 F.2d 547 (1st Cir. 1968).

Several factors persuasively support the ALJ's finding that Lee coercively interrogated the employees. See generally Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir. 1964), cited in Chauffeurs, Teamsters and Helpers Local 633 v. NLRB, 166 U.S.App.D.C. 157, 160, 509 F.2d 490, 493 (1974) and in Corriveau & Routhier Cement Block v. NLRB, 410 F.2d 347, 349 (1st Cir. 1969). The interrogation was not an isolated incident but occurred repeatedly over the course of several months. Compare with Chauffeurs, Teamsters & Helpers, Local 633 v. NLRB, supra, 166 U.S.App.D.C. at 162, 509 F.2d at 495. Although the questioning was generally informal and performed by Lee who was not a top executive of the company, Lee had sole control over discharge decisions. Inquiries by a man in Lee's position could and did suggest to at least Purcell that a pro-union answer would result in reprisal. See NLRB v. Kelly & Picerne, Inc., 298 F.2d 895, 898 (1st Cir. 1962) (impact on employees determinative of legality). Compare with NLRB v. Prince Macaroni Manufacturing Co., 329 F.2d at 806 (employee who spoke "freely" of union activities was not intimidated by questioning). The impression of reprisal is further reinforced by the fact that Lee's inquiries were not simply general but asked for identification of the instigator. Lastly, Lee admitted that he told the employees that another of petitioner's facilities had ceased operations in reaction to a union organizing effort and that the Watertown facility might likewise close, leaving them all without jobs. He further admitted that he had in fact no reason to believe the company planned to close the Watertown facility. The ALJ noted that such a threat of plant closure would constitute a violation of § 8(a)(1) but did not consider it because the conversation may have occurred beyond the period covered by the complaint. However, such a statement contributes to the climate of coerciveness that surrounded the subsequent interrogation. See Corriveau & Routhier Cement Block, Inc. v. NLRB, supra, 410 F.2d at n. 2.

II. Discharge of Carleton

Whether the "dominant" reason for the discharge of Carleton was his union activities rather than his work performance is a more difficult question. To find a violation of § 8(a)(1) and (3), "(w)here there are both proper and allegedly improper grounds for discharge, the Board's burden is to find affirmatively that the discharge would not have occurred but for the improper reason." Coletti's Furniture, Inc. v. NLRB, 550 F.2d 1292, 1293-94 (1st Cir. 1977). Like so many other cases this Court has had occasion to review, e. g., NLRB v. South Shore Hospital, 571 F.2d 677 (1 Cir. 1978); A. J. Krajewski Manufacturing v. NLRB, 413 F.2d 673, 676 (1 Cir. 1969); NLRB v. Pioneer Plastics Corp., 379 F.2d 301, 306 (1 Cir. 1967); NLRB v. Joseph Antell, Inc., 358 F.2d 880 (1 Cir. 1966), at issue preliminarily is whether the Board has sustained its burden of showing that the petitioner knew of Carleton's union activity. Stone & Webster Engineering Corp. v. NLRB, 536 F.2d 461, 464 (1st Cir. 1976). The evidence that Lee knew of union activity among the men generally, including Carleton, is quite strong. The combination of Lee's independent information about the union drive, the fact that the drivers, including Carleton, gathered to discuss the union in full view of Lee and which Lee admits observing although he denies he knew what they were discussing, the testimony of Giordano and Anderson that they told Lee about the union efforts before Carleton's discharge, Lee's admission that Giordano may indeed have told him about the union prior to discharge, the smallness of the plant and, finally, the telephone call from the NLRB on the day of Carleton's discharge asking Lee if he had received their "literature," all establish that Lee knew of the union activities of all four drivers, including Carleton.

The fact that Lee did not fire all four drivers but only Carleton bears on the ultimate question of whether Carleton's union activities were the "dominant" reason for the discharge. Petitioner argues that if union activities were the motive, Lee should have fired all the men; that the only factor that distinguished Carleton from the other three was not his union participation but rather his poor job performance and misconduct which allegedly formed the basis for the discharge. Only one incident supports circumstantially respondent's position that Lee believed Carleton to be the instigator. In late April, Lee passed through the group of drivers who had been discussing the...

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