Indiana Cal-Pro, Inc. v. N.L.R.B.

• Decision Date: 22 December 1988
• Docket Number: 88-5201,Nos. 88-5101,CAL-PR,INC,s. 88-5101
• Citation: 863 F.2d 1292
• Parties: 130 L.R.R.M. (BNA) 2222, 110 Lab.Cas. P 10,868 INDIANA, Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1292

863 F.2d 1292

130 L.R.R.M. (BNA) 2222, 110 Lab.Cas. P 10,868

INDIANA CAL-PRO, INC., Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner.

Nos. 88-5101, 88-5201.

United States Court of Appeals Sixth Circuit.

Argued Oct. 12, 1988.

Decided Dec. 22, 1988.

Charles Hampton White argued, Cornelius & Collins, Nashville, Tenn., for petitioner, cross-respondent.

Aileen A. Armstrong, Dep. Asso. Gen. Counsel, Linda Dreeben, Karen L. Arndt argued, N.L.R.B., Office of the General Counsel, Washington, D.C., William T. Little, Regional Director, N.L.R.B., Indianapolis, Ind., for respondent, cross-petitioner.

Before KEITH, JONES and MILBURN, Circuit Judges.

MILBURN, Circuit Judge.

Petitioner, Cross-Respondent Indiana Cal-Pro, Inc. ("the Company") petitions this court to review and set aside an order of the National Labor Relations Board ("the Board") finding the Company in violation of sections 8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C. Sec. 151 et seq. ("the Act"). The Board has filed a cross-application for enforcement of its order. The Board's decision and order are reported at 287 NLRB No. 81. For the reasons that follow, we deny the Company's petition to set aside and grant enforcement of the Board's order.

I.

A.

On August 13, 1986, the Laborers' Local Union No. 741 ("the Union"), which is affiliated with the Laborers' International Union of North America, AFL-CIO, filed an unfair labor practice charge against the Company, alleging that the Company violated the Act by engaging in a concerted effort to coerce unit employees to abandon union support within the Company. The Union alleged that the Company interrogated employees as to their union sentiment, threatened closure of the plant should unionization occur, and prepared and circulated a petition disavowing union support.

On October 9, 1986, the Board issued an unfair labor practice complaint against the Company, alleging that the Union, as of June 17, 1986, represented a majority of the Company's employees (as established through Union authorization cards), that the Company had engaged in numerous acts interfering with and coercing its employees, and that the Company's conduct precluded the holding of a fair election among the employees. After a hearing before an Administrative Law Judge ("ALJ"), the Company was found to have violated sections 8(a)(1) and (5) of the Act as alleged by the Union.

On December 16, 1987, the Board rendered its decision and order affirming the ALJ's decision and adopting the recommended order of the ALJ with slight modifications. The Board ordered that the Company cease and desist from further unfair labor practices, post an appropriate notice of the Board's decision and order, and recognize and bargain collectively with the Union. The Company filed its petition to set aside the Board's order on January 26, 1988, and the Board cross-applied for enforcement on February 22, 1988.

B.

The Company operates a limestone mine and processing facility in Ellettsville, Indiana. In 1978, the Company's production and maintenance employees were jointly represented by the Laborers' Local Union No. 741 and a local of the Operating Engineers' International Union. In 1984, the Company filed a decertification petition, but the two unions disclaimed interest in representing the employees, and, accordingly, the Company's production and maintenance employees went unrepresented.

In June 1986, John Siniard, a mine employee, initiated efforts to organize the employees. On June 15, 1986, Siniard obtained blank Union authorization cards from the Union, which he then distributed to other Company employees. Siniard told the employees that the cards were intended "to bring the Union back." Of the fourteen employees in the unit of production and maintenance employees, nine signed authorization cards by June 17, 1986. The cards stated:

I, the undersigned, hereby designate [the Union] as my collective bargaining representative in all matters pertaining to labor conditions, wages and hours of employment, and ... I do hereby apply for membership in [the Union] ... and agree to abide by all the provisions of the Constitution and By-Laws of [the Union].

J.A. at 307-16.

Siniard testified that on June 20, 1986, the signed authorization cards were returned to the Union. On July 8, 1986, the Union demanded recognition and filed a petition with the Board seeking a Board-conducted election. The Company refused recognition, and an election was scheduled but later canceled in light of the developments described below.

Several unit employees testified before the ALJ regarding events at the Company during June and July 1986. Garry Shrum, an employee who signed one of the authorization cards, indicated that approximately one week before July 28, 1986, he was in the Company's shop with Lester Christy, mine foreman, when Steve Summit, the plant superintendent, approached him. Shrum stated that Summit told the two of them that "you guys might think about looking for another job."

He said that he had received a letter from Mr. Summers [the Company president located in Nashville] that if the union come in [sic] that they was going to close the doors down, that they had offered him [i.e., Summit] a job down south and had told him that he should talk it over with his family and see how they all felt about moving down south.

J.A. at 97.

Shrum testified that on other occasions Summit told him that Summers was upset about the employees' efforts to bring the Union back and that Summers had told Summit, "Well, if the union come back [sic], we'll just close the doors down," or "okay, fine, let them bring the union back in, but we'll be closing the doors down if they do." J.A. at 99, 100. Shrum told other unit employees of Summit's comments. Fearing unemployment, Shrum later obtained other work in Bloomington, Indiana.

Another employee testifying before the ALJ was Warren Walls. Walls, who also signed a Union authorization card, testified that he was on sick leave from about June 25, 1986, to July 20, 1986. He indicated however, that he visited the Company during the first week of July 1986, and at that time he entered into a conversation with Summit. He stated that he told Summit "things are looking a little slow around here," and Summit responded that although things were slow at present, "I know one thing for sure, if that union gets in, the company will close the doors." J.A. at 164. Walls also testified that during this visit to the Company he spoke with unit employees Siniard, Shrum, Richard Crowe, Gary Hoff, and John Sheppard and that each of these individuals told Walls that they had heard the Company would shut down if unionization occurred.

Herschel Sparks signed an authorization card and testified before the ALJ. Sparks stated that he was injured and unable to work from June 8, 1986, to August 6, 1986, but that on returning to work, he went into the office to punch in and ran into Summit. He testified that Summit asked, "if I had a job.... [T]hat if the union got back in they was going to close the doors down." J.A. at 185. He testified that Summit made similar remarks to him three or four different times during that week.

Although Summit denied making each of the statements related above, the ALJ chose to credit Shrum, Walls, and Sparks and discredit Summit. The ALJ noted that Shrum, Walls, and Sparks appeared to be forthright while Summit did not impress the ALJ "as a particularly credible witness[ ]." J.A. at 6.

According to Siniard, in late July he was approached by employee Roger Kemp about his efforts to bring the Union back. Kemp, who had earlier signed a Union authorization card, told Siniard "I think we screwed up." When Siniard asked why he thought so, Kemp responded "[t]hat if we brought the union back in, they would shut the doors." J.A. at 126. Kemp requested Siniard call the Union and ask it "to back off." J.A. at 127. Siniard testified he told Kemp he would call the Union.

Some time after this exchange, plant superintendent Summit called Siniard into his office and in Kemp's presence questioned Siniard regarding whether the Union had been called and asked to discontinue its unionization efforts. Siniard informed Summit that he had not yet called the Union, and Summit asked whether Siniard still intended to place the call. Siniard told Summit that he would call the Union. Although Summit denied having this conversation with Siniard, the ALJ chose to credit Siniard's testimony.

Later that same day, John Sheppard, an employee at the mine, asked Summit to assist him in drafting a petition disavowing Union support. Sheppard testified that he asked Summit to help him with "the wording and the spelling" of the petition. Summit then wrote the document which stated:

This is a petition to discontinue the representation of the Labors [sic] Union Local 741 of Bloomington.

J.A. at 306.

Sheppard testified that after Summit wrote the petition, Sheppard carried it, followed by Summit, to the employee lunchroom where he placed the petition on a table. Summit and Sheppard then stood in the lunchroom and watched while several employees read and signed the petition. Walls testified that when he first saw the petition, he asked Summit about the petition. Walls testified that "[h]e said I didn't have to sign it if I didn't want to, it was up to you. Whoever wanted to sign it could and who didn't want to didn't have to." Walls, however, related that he signed it because "I figured if I didn't sign it it would spoil me as being one of the union members...." J.A. at 168.

Siniard also testified that Summit was present in the lunchroom when he first saw the petition. Siniard signed the petition "[b]ecause if I hadn't signed it, he would have knowed [sic] who signed the union cards." J.A. at 131. Eventually, twelve employees signed the petition, including seven of the nine employees who signed...