928 F.2d 609 (2nd Cir. 1991), 1075, N.L.R.B. v. Fermont, a Div. of Dynamics Corp. of America

Docket Nº:1075, Docket 90-4130.
Citation:928 F.2d 609
Party Name:NATIONAL LABOR RELATIONS BOARD, Petitioner, v. FERMONT, A DIVISION OF DYNAMICS CORPORATION OF AMERICA, Respondent.
Case Date:March 21, 1991
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 609

928 F.2d 609 (2nd Cir. 1991)

NATIONAL LABOR RELATIONS BOARD, Petitioner,

v.

FERMONT, A DIVISION OF DYNAMICS CORPORATION OF AMERICA, Respondent.

No. 1075, Docket 90-4130.

United States Court of Appeals, Second Circuit

March 21, 1991

Argued Feb. 28, 1991.

Page 610

Marilyn O'Rourke, Washington, D.C. (Jerry M. Hunter, Gen. Counsel, Robert E. Allen, Associate Gen. Counsel, Aileen A. Armstrong, Deputy Associate Gen. Counsel, Howard E. Perlstein, Supervisory Atty., Peter D. Winkler, Robert N. Herman, Office of Gen. Counsel, John Truesdale, Office of Executive Secretary, Washington, D.C., Peter B. Hoffman, Office of the Director, Hartford, Conn., of counsel), for petitioner.

Robert B. Mitchell, Bridgeport, Conn. (Loraine M. Cortese-Costa, Susan M. Sedensky, Durant, Sabanosh, Nichols & Houston, of counsel), for respondent.

Before OAKES, Chief Judge, LUMBARD and CARDAMONE, Circuit Judges.

PER CURIAM:

In this case, the National Labor Relations Board (the "NLRB") seeks to enforce its two decisions and orders, dated November 19, 1987, and October 10, 1989, respectively, which require respondent (Fermont, a Division of Dynamics Corporation of America) to offer reinstatement with back pay to three of its employees--Christine Dumas, Miguel Lugo and Mark McGraw--who were allegedly unlawfully issued disciplinary warnings for absenteeism due to their union activities. For the following reasons, enforcement is granted.

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BACKGROUND

Beginning in December 1981, a number of respondent's employees became dissatisfied with their collective-bargaining representative's unwillingness to prosecute employee grievances against the company. As a result, they contacted a rival union, which, in March 1982, filed a petition for certification with the NLRB. An election to determine the employees' future collective-bargaining representative was held on May 14, 1982. After the new union narrowly won the May election, respondent challenged the results, forcing a re-run that was held on November 12, 1982, in which the employees voted against any union representation. However, the results of the second election were set aside because of the initiation of this suit, which challenges respondent's conduct before and after the May 14 election.

The Administrative Law Judge (the "ALJ") who tried the case in September 1983 found that respondent had engaged in a widespread illegal campaign to encourage its employees to vote against any union representation in the May election. Specifically, the ALJ found that respondent had offered employees an automatic raise as an inducement to vote for the company, had threatened to discharge at least one employee who had engaged in pro-union activity, and had awarded prizes in a contest where employees were asked to point out why everyone should vote against any union representation in the election.

In addition, the ALJ found that respondent manipulated its attendance policy both before and after the May election in an attempt to induce employees to vote against the union. 1 Initially, the ALJ found that one of respondent's supervisors had held a meeting on May 7 in which he promised three employees that if they voted against the union, previous disciplinary notices that had been issued for absenteeism would be dismissed. In addition, the ALJ found that respondent had failed to enforce uniformly the attendance policy before the May election, but, once the election was over, had strictly enforced the policy against those employees who had engaged in pro-union activity. In so finding, the ALJ focused on the fact that respondent had issued no disciplinary warnings to employees for the two months preceding the election, but that immediately after the election, had issued an "avalanche" of warnings to union supporters who had...

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