Delco-Remy Div., General Motors Corp. v. N.L.R.B., DELCO-REMY

• Decision Date: 18 June 1979
• Docket Number: No. 78-1523,DELCO-REMY,78-1523
• Citation: 596 F.2d 1295
• Parties: 101 L.R.R.M. (BNA) 2740, 86 Lab.Cas. P 11,366 DIVISION, GENERAL MOTORS CORPORATION, Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1295

596 F.2d 1295

101 L.R.R.M. (BNA) 2740, 86 Lab.Cas. P 11,366

DELCO-REMY DIVISION, GENERAL MOTORS CORPORATION, Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner.

No. 78-1523.

United States Court of Appeals, Fifth Circuit.

June 18, 1979.

Wendell R. Tucker, Otis M. Smith, Eugene L. Hartwig, J. R. Wheatley, Edmond J. Dilworth, Jr., Detroit, Mich., for petitioner, cross-respondent.

James D. Fagan, Jr., Morgan C. Stanford, Atlanta, Ga., for Internat'l Union, etc.

Elliott Moore, Deputy Assoc. Gen. Counsel, John S. Irving, Gen. Counsel, Corinna L. Metcalf, N.L.R.B., Washington, D. C., Stanford, Buffington, Fagan & Giolito, Atlanta, Ga., for respondent, cross-petitioner.

Walter C. Phillips, Regional Director, Atlanta, Ga., for other interested party.

Petition for Review and Cross Application for Enforcement of an Order of the National Labor Relations Board.

Before BROWN, Chief Judge, COLEMAN and TJOFLAT, Circuit Judges.

COLEMAN, Circuit Judge.

We have this case on a petition for review of an order of the National Labor Relations Board, 234 NLRB 144 (February 17, 1978). We set aside the Board order.

The Board found that Delco-Remy had violated §§ 8(a)(1) and 8(a)(3) of the National Labor Relations Act, 29 U.S.C. § 151, Et seq., by (1) discharging Barbara Rawls and Albert Phillips because of their union activities and (2) by coercively interrogating employees concerning their union activities, by requesting employees to campaign among other employees against the union, by threatening employees with discharge or transfer in the event of a union victory, and by coercing an employee into signing a written statement taken in support of the discharge of another employee.

The Board order requires the company to reinstate Rawls and Phillips, to make them whole, and to post an appropriate notice. It likewise requires the company to cease and desist from the unfair labor practices found and from interfering in any other manner with their exercise of § 7 rights.

Delco-Remy submits that the findings of the Administrative Law Judge, adopted by the Board, are not supported by substantial evidence on the record as a whole. In particular, the company argues that the Administrative Law Judge improperly found every disputed fact in favor of the employees and the union, doing so under the guise of making credibility choices where no substantial issue of credibility existed, in some instances ignoring overwhelming evidence to the contrary.

I.

Early in 1975, Delco began operation of a newly constructed factory for the manufacture of automobile batteries in Fitzgerald, Georgia, a city of approximately 10,000 inhabitants. The plant employed approximately 250 hourly employees at the end of 1975, 275 at the end of 1976, and 285 at the time of the Board hearing.

Delco utilizes a job enrichment program which is designed to encourage "mutual respect and trust" by giving its workers more control over the daily operations of the plant. Each hourly employee is a member of one of approximately 25 plant operating teams. Each team consists of six to ten employees, under the control of a team leader who has been selected by the team members. The team, team leader, and area coordinator select employees for new jobs, counsel and reprimand employees, and engage in other similar supervisory functions. The system is discussed in detail in an employee handbook and, further, the operation of the team system is the subject of a detailed orientation program, lasting 17 hours, which all employees, including supervisors, must attend when they are hired.

Delco's innovative approach to management-employee relations is manifest in other areas. Violations of company rules result in oral counselling. Delco further represents that it does not require that punitive types of discipline, such as oral or written reprimands or disciplinary layoffs, be assessed against employees. If counselling is unsuccessful, or if the violation is regarded as serious, termination of employment may result.

Union contact with Delco employees began in early 1975 when some union representatives visited employee homes. In May 1975, Delco's plant manager invited a labor law attorney from Atlanta to conduct a four hour training session at the plant for the benefit of the plant supervisors. In January 1976 union organizers surveyed the Fitzgerald area. A month later union representative James Weaver visited the home of employee Barbara Rawls and enlisted her assistance as the in-plant union organizer. By April the union obtained some signed union cards. In May the plant management invited the same labor lawyer to conduct another four hour seminar for its supervisors on the rights and obligations of employers, unions, and employees under the Act. On August 4, 1976, the union filed a representation election petition. Subsequently a General Motors labor law attorney visited the plant and counselled the plant management on the Act. The plant manager then prepared a letter reiterating how management should conduct itself during the election campaign. Almost all of the members of management and the salaried employees coming in contact with hourly employees read this letter and signed it, acknowledging that they had read and understood its instructions.

An election was held on September 2, 1976. The Union was soundly licked, 184 to 71, with five ballots challenged. No challenge to the results of the election were ever filed. That, however, was not the end of the matter.

Seven months after the election, a complaint was issued by the Board's Atlanta office charging that Delco unlawfully interrogated its employees concerning their union activities, created the impression of surveillance of its employees' union activities, threatened its employees with demotion if they selected the union, solicited its employees to persuade others to withdraw their support from the union, and discharged two of its employees because of their union activities. This complaint was amended, at the suggestion of the Administrative Law Judge, to include the charge that Delco coerced an employee into signing a statement, following the discharge of a fellow employee, which was to be used in support of Delco.

On September 28, 1977, Administrative Law Judge Walter H. Maloney, Jr. issued his decision finding violations of §§ 8(a)(1) and 8(a)(3) of the Act. ¹ On February 17, 1978, the Board affirmed the Administrative Law Judge's decision with one slight modification. ²

The Board Findings

The Board found Delco guilty of violating the Act based on six separate incidents involving employees at the Fitzgerald plant:

(1) A conversation between Second-Shift Maintenance Supervisor David Lynch and employee Donnie Young;

(2) A conversation between Quality Control Supervisor James E. Kendall and employee Alfred Phillips;

(3) Two conversations between Second-Shift Production Supervisor Arthur Johnson and Alfred Phillips;

(4) The discharge of Alfred Phillips;

(5) The discharge of Barbara Rawls; and

(6) The taking of a statement from employee Charlie Byrd in connection with the discharge of Barbara Rawls.

Each incident will be discussed below.

II. The Discharge of Barbara Rawls

Barbara Rawls began working for Delco on July 14, 1975 in the production department. Later she was transferred to the quality control division. She was discharged on December 14, 1976.

Rawls was an active union supporter, of which Delco was aware. She testified that, according to other employees, she was the in-plant union leader. She had signed a union authorization card, conducted approximately 15 union meetings at her home, passed out pamphlets, gave out and picked up authorization cards, and was one of the union observers during the September 1976 election. A fellow employee, Clinton Down, also served as a union observer at the election and is still employed at Delco.

In addition, Rawls made a pro-union speech at an anti-union meeting, entitled "Freedom for Independence", held a week or two before the election by an anti-union committee of plant employees. The meeting was attended by 70 persons, including the mayors of Fitzgerald and nearby Ocilla several business and professional men, and a number of rank-and-file employees from the plant. The record reveals no connection between Delco or any of its management and this meeting. At the conclusion of the prepared speeches, comments from the floor were solicited. At that point Rawls came to the podium and informed the assembly that "I still felt strongly for the Union." Delco officials "heard" of this incident.

Mrs. Rawls' separation notice stated that she had been

counseled for improper conduct at various times since January 1976. On December 14, 1976, it was learned that she had made false and malicious statements about a member of supervision (Johnson) and she was discharged.

At the hearing before the Administrative Law Judge Delco contended that Rawls was discharged for a number of shortcomings: (1) the "Mike Sherrett" incident; (2) not wearing her safety glasses; (3) the December 11 incident where Rawls reported late for work and then abandoned her post without notice; and, finally, (4) the "Charlie Byrd" incident, involving an alleged statement by Rawls to her live-in boyfriend, Byrd, that Supervisor Johnson was making passes at her. According to Delco, this last straw broke the camel's back, precipitating her discharge.

1. "Mike Sherrett" Incident.

The "Mike Sherrett" incident involved an argument in mid-February, 1976, between Rawls and her team leader, Sherrett. Sallee was the general manufacturing supervisor of the day shift. He was notified by an area coordinator that Rawls and Sherrett had had an argument resulting "in one employee threatening the other". Both employees were brought before Sallee. Rawls accused Sherrett of "hassling her a lot lately about her safety glasses", and remarking to her that " 'I hope OSHA...