Ballou Brick Co. v. N.L.R.B., 85-2420

• Decision Date: 15 August 1986
• Docket Number: No. 85-2420,85-2420
• Citation: 798 F.2d 339
• Parties: 123 L.R.R.M. (BNA) 2121, 105 Lab.Cas. P 12,050 BALLOU BRICK COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 339

798 F.2d 339

123 L.R.R.M. (BNA) 2121, 105 Lab.Cas. P 12,050

BALLOU BRICK COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 85-2420.

United States Court of Appeals,

Eighth Circuit.

Submitted May 13, 1986.

Decided Aug. 15, 1986.

Patrick J. Barrett, Omaha, Neb., for petitioner.

Mark S. McCarty, Washington, D.C., for respondent.

Before HEANEY, Circuit Judge, HENLEY, Senior Circuit Judge, and MAGILL, Circuit Judge.

HENLEY, Senior Circuit Judge.

This case involves an attempt by Lodge 1426 of the International Association of Machinists and Aerospace Workers (Union) to organize the workers at a plant owned by Ballou Brick Company. On May 2, 1983 the Union filed a petition for a representative election at Ballou Brick. Later, as a result of actions by the Company, the Union filed a complaint alleging unfair labor practices in violation of Secs. 8(a)(1) and (3) of the National Labor Relations Act (Act), 29 U.S.C. Secs. 158(a)(1) and (3).

The issues were consolidated and set before an Administrative Law Judge (ALJ) for purposes of hearing, ruling and decision. The ALJ found in an extensive opinion that Ballou had violated Sec. 8(a)(1) of the Act by (1) requesting employees to engage in surveillance; (2) creating the impression of surveillance; (3) threatening employees and stating that employees had been discharged for union activities; (4) threatening plant closure; (5) encouraging employees to report union activities; and (6) maintaining a policy prohibiting solicitation and distribution of union literature. The ALJ further found that the Company had violated Secs. 8(a)(1) and (3) of the Act by discharging thirteen employees to discourage membership in and support of the Union.

A panel of the National Labor Relations Board (NLRB or Board) affirmed the ALJ's decision. Ballou appeals arguing that the ALJ's findings are not supported by substantial evidence. The Board cross-appeals for enforcement of its order. We affirm the Board's decision as to the layoffs but reverse as to some of the unfair labor practices.

Passing for the moment those facts specifically relating to the incidences of alleged unfair labor practices, we now recount the basic underlying facts.

Ballou manufactures and sells bricks at its Sergeant Bluff, Iowa facility. As would be expected, its business is somewhat seasonal and related to the amount of construction being done. In April, 1983 it completed a major capital construction project at its plant.

Approximately fourteen employees met on April 23, 1983 at a union hall and all but one signed a card authorizing the Union to represent them. The following Monday, April 25, 1983, another meeting was held at a local tavern near the brickyard to have other employees sign authorization cards. That day the Union sent the Company a letter requesting that it be recognized as the collective bargaining agent of the Company's production and maintenance employees.

The company officials and supervisors met with a labor consultant and made a list of those employees they believed were potential union leaders and who would vote for a union. One of the supervisors admitted walking in on the meeting at the tavern. He was told not to discuss who was there with anyone.

On May 13, 1983 the Company advised fourteen employees that they were being laid off. ¹ They were told the layoff was permanent and that it was not for misconduct, but rather for economic reasons. Each was given a letter restating this. The Company then held a meeting of the remaining employees who were told that the layoff was based on poor economic conditions and that they were lucky to be "survivors." The Company had prior layoffs in 1981 and 1982, but those were temporary.

An election was held on July 15, 1983. Of the forty-three votes cast, twenty were for the Union, ten were against and thirteen were challenged.

On July 27, 1983, after the election, the Company began recalling employees and eventually recalled seven of the employees who had been laid off. It also hired fourteen new employees.

I.

The petitioner first argues that substantial evidence on the record as a whole does not support the ALJ's finding that the thirteen employees were discharged in violation of Secs. 8(a)(1) and (3). We note that an order by the NLRB in an unfair labor practice case is entitled to be enforced if the Board's findings of fact are supported by the record as a whole. NLRB v. Vincent Brass & Aluminum Co., 731 F.2d 564, 566 (8th Cir.1984). Also, merely because two inconsistent conclusions may be drawn from the same evidence or that this court would be justified in deciding the case differently if acting de novo does not mean that the Board's order lacks the support of substantial evidence. Id.

Ballou contends that the Board failed to properly apply the Wright Line analysis to the layoff question. See Wright Line, A Division of Wright Line, Inc., 251 NLRB 1083 (1980), enf'd, 662 F.2d 899 (1st Cir.1981), cert. denied, 455 U.S. 989, 102 S.Ct. 1612, 71 L.Ed.2d 848 (1982). According to this analysis:

[W]hen employees are discharged for both legitimate and illegitimate reasons, the general counsel must make a prima facie showing that the employees' protected activity was a "motivating factor" in the employer's decision. The burden then shifts to the employer to show that the same action would have taken place even in the absence of the protected conduct.

Vincent Brass & Aluminum Co., 731 F.2d at 566.

Ballou argues that a prima facie case of unlawful discharge was not proven in that there is not substantial evidence showing that the company officials who made the layoff decision had knowledge of individual employee's union activities or that protected activity was the motivating factor in the decision to lay off the employees.

In an improper discharge case the employer's intent, since it is subjective, will rarely be proven by direct evidence, and the Board is free to draw reasonable inferences from both direct and circumstantial evidence. NLRB v. Senftner Volkswagen Corp., 681 F.2d 557, 559 (8th Cir.1982). Inferences as to an employer's motivating intent "may be drawn from the employer's hostility toward the union, coincidence between the employee's activities and the discharge, or the absence of previous warnings or reprimands to the employee." Lemon Drop Inn, Inc. v. NLRB, 752 F.2d 323, 325 (8th Cir.1985) (citations omitted).

The ALJ's findings in this regard are not as complete as one might wish them to be; however, we believe the evidence is substantial enough to support a finding that the employer knew of the union activity and that this was the motivating factor behind the layoff.

The ALJ found that Ballou knew of the union activities of its employees before they were selected for layoff because of the Company's knowledge of the April 23 and 25 union organizing meetings. Also, the Company had received the Union's request to represent the employees. We also believe the Company had reasonable identification of the employees who attended the April 25 meeting. In this connection, we note the statement of supervisor William Heckart to employee Scott Clark that Heckart had driven by the tavern on the night of the meeting and knew who had attended the meeting by seeing whose vehicles were there.

We note also that other courts have found it is not necessary that the general counsel prove the employer's knowledge of a specific employee's opinion as to the union, when there is a mass layoff for the unlawful purpose of discouraging union membership. See Birch Run Welding & Fabricating Inc. v. NLRB, 761 F.2d 1175, 1179-80 (6th Cir.1985); M.S.P. Industries, Inc. v. NLRB, 568 F.2d 166, 176 (10th Cir.1977).

We do not agree with the ALJ that the mere hiring of a labor consultant and conducting a vigorous campaign to present its position (except, of course, for those activities which are a violation of the Act) alone would show an unlawful antiunion animus. However, the Company's open hostility to the Union coupled with its other acts does support the ALJ's finding that this was the motivating factor behind the discharges. We note that at the Company's meeting with its labor consultant two of the laid off employees, Edward Thompson and David McCarthy, were listed as union leaders and that these two employees were among those not recalled after the election. At the Company's meeting, ten of the fourteen laid off employees were listed as potentially voting for the Union and three were listed as questionable. All of the laid off employees had signed union authorization cards, and attended at least one meeting. Moreover, the timing of this layoff right after the request for representation and the recall shortly after the election are suspect.

Also damaging to the Company's position is the statement attributed to its chief operating officer, John Hill, that the employees had been laid off because of union activity, and his comment to a former employee that he would be considered for employment after the union campaign died down. The ALJ found the testimony regarding these statements to be credible, and as there is nothing to make us think otherwise we accept them as true. See NLRB v. Quick Find Co., 698 F.2d 355, 359 (8th Cir.1983).

While any one of these actions by the employer alone might not be sufficient to show that the protected activity was the motivating factor behind the layoff, we believe that taken as a whole and considered in light of the violation of Sec. 8(a)(1) hereinafter detailed they provide substantial evidence to support the ALJ's finding that such was the case.

The Company further alleges that the layoff would have occurred regardless of any employee's involvement in protected activity because the decision was compelled by economic necessity. It argues that the layoff was necessary because of a sharp decrease in sales, an accumulation of inventory with a lack of storage space, and the completion of the...