N.L.R.B. v. Mini-Togs, Inc.

Decision Date12 January 1993
Docket NumberMINI-TOG,INC,N-C,No. 91-5057,91-5057
Citation980 F.2d 1027
Parties142 L.R.R.M. (BNA) 2265, 124 Lab.Cas. P 10,528, 125 Lab.Cas. P 10,627 NATIONAL LABOR RELATIONS BOARD, Petitioner, v., Luv-are, Inc., and Embroideries, Inc., A Single Employer, Respondent.
CourtU.S. Court of Appeals — Fifth Circuit

Robert Herman, Aileen A. Armstrong, Charles Donnelly, Dep. Assoc. Gen. Cnsl., N.L.R.B., Washington, D.C., for petitioner.

David Hagaman, Robert E. Rigrish, Clark, Paul, Hoover & Mallard, Atlanta, Ga., for Mini-Togs, Inc.

H. Frank Malone, Dir., Region 15, N.L.R.B., New Orleans, La., for Other Interested Parties.

Application for Enforcement of an Order of the National Labor Relations Board.

Before POLITZ, Chief Judge, JOHNSON, and JOLLY, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

This National Labor Relations Board enforcement action arises from an effort by the United Steelworkers to organize Mini-Togs. In response to the union efforts, Mini-Togs mounted an intensive counter campaign to defeat the union. In the course of campaign speeches and conversations, many unlawful threats were alleged to have been made by Mini-Togs concerning the consequences of unionization. Some union adherents were laid off and some were fired outright. Unfair labor practice charges were filed with the Board, and now we are presented with the remnants of those charges--the rest have either been dismissed, settled, or not appealed. Today we address whether substantial evidence supports the Board's findings that Mini-Togs violated sections 8(a)(1) and (3) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1), 158(a)(3), by discharging Alice Faye Washington and Eric Coler and by laying off Patricia Gayden and Karen Miller for their union activities. We hold that the Board's findings as to Washington and Miller are not supported by substantial evidence; we further hold, however, that the Board's findings as to Gayden and Coler are supported by substantial evidence. Enforcement of the Board's order is therefore granted in part and denied in part.

I

On September 8, 1988, a representative of the United Steelworkers of America, AFL-CIO-CLC, met with approximately thirteen employees of Mini-Togs. Present at this meeting were Karen Miller, Patricia Gayden, and Alice Faye Washington. The thirteen employees formed an organizing committee and signed union authorization cards. These and other employees then began regularly attending union meetings.

On September 13, 1988, Miller, a snap machine operator, was laid off. Miller's supervisor informed her that she was being laid off because of lack of work. The supervisor stated that Miller was the logical person to be laid off because she had been absent from work with the flu two weeks earlier. Later, the supervisor stated that Miller was chosen because she had an allergy or sinus problem that was aggravated when Mini-Togs printed garments with dyes. Miller was told she would be recalled when the work increased.

Later that same day, six sleeper line inspectors were discharged. Mini-Togs argued that these employees were terminated because they were doing essentially the same task as other employees. According to another employee, a supervisor in the cutting department noticed the six sleeper line inspectors leaving the plant. This employee stated that the supervisor left and upon his return warned cutting department employees not to talk about the union where they could be overheard and added that these employees had been terminated because "they were talkin' union."

On Friday, September 16, 1988, Miller returned to the plant to pick up her paycheck and to obtain employee signatures on union authorization cards. At this time, Eric Coler signed a union card. A production manager subsequently took a union card from another employee and told Miller and the others with her that they could not hand out literature in the parking lot because they were no longer employed by Mini-Togs. Miller and the others left. Later that day the production manager told Mini-Togs's president, Ed Hakim, that he had seen the other employee sign a union card; he gave the card to Hakim. It was disputed, however, whether Hakim also learned that Coler had signed a union authorization card. On Monday, September 19, Coler was discharged. Coler, who had been employed by Mini-Togs for about one month, was terminated because he was harassing another employee and calling her a "fat ass" and "fat doughnut." This employee was upset about these comments and complained to Hakim. Hakim asked Coler if he had made these statements, and Coler denied that he had. Hakim told Coler that if he would admit saying these things, no disciplinary action would be taken against him; however, if he denied them and an investigation determined that he did say them, he would be terminated. Coler maintained that he had not made the comments. A witness was interviewed, and her story matched the other employee's and indicated that Coler had indeed harassed the employee. When Hakim asked Coler what he had to say about this, he simply shrugged his shoulders. Hakim stated that he fired Coler for his harassment of the employee and that he considered in his decision the fact that Coler had only been employed for one month.

On October 17, 1988, Hakim made a fiery speech against the union. During this speech, given during working hours, Hakim made several references to employers who closed their businesses after employees chose union representation; furthermore, he blamed "unionism" for causing steel mills to close domestic plants and reminded the employees of how scarce employment was in this location. He also reminded them that Mini-Togs had shut down an entire production line in 1983 in response to an attempt by employees to unionize.

During his speech, Hakim also made specific reference to Alice Faye Washington, a leading union adherent. Washington was a sewing machine operator who, at that time, had never been disciplined during her twelve years of employment with Mini-Togs. In his speech, Hakim referred to Washington by name and stated that she should remember the shutting down of the production line in 1983 because she was in that line. He warned employees to be careful when they signed union cards because Washington might be the union representative to whom they would eventually have to answer. Hakim also told the employees that Washington had served time in prison.

After the speech was concluded, the employees were given forms addressed to the union which stated, "I did not understand what the union card meant when I signed it. Please cancel my union card and return it to me." The form suggested that, after signing it, each employee should give a copy to his or her supervisor, who in turn would give a copy to Hakim. Hakim personally asked Washington to sign the form. She refused.

On October 20, 1988, Washington, Miller, Gayden, and others distributed pro-union handbills to employees arriving for work. The handbill included the signatures of Washington, Miller, Gayden, and all other members of the organizing committee. Gayden's supervisor observed what she was doing. Approximately one hour later, the supervisor told her to clock out and go home. Gayden testified that she was given no explanation as to why she was laid off. Another employee testified that there was plenty of work to do. According to Mini-Togs, however, the decision to lay off Gayden had been made as early as October 12. Gayden's supervisor announced that two shifts were being combined and eight of the seventeen employees in this department would be laid off according to their production. Gayden was told on October 12 that she was laid off. On this same day, however, Gayden's supervisor told her that she wanted her temporarily to come back to work in the packing department to help with shipment of a special order. Gayden returned and worked October 18 and 19 and was again sent home on October 20. Mini-Togs maintained that Gayden was laid off at this time because the special order was ready to be shipped and she was no longer needed. Gayden returned to work on January 3, 1989.

On Friday, October 28, 1988, Washington read an anti-union flyer that had been left on her sewing machine. She loudly referred to the contents of the flyer as "a bunch of god damn lies" and referred to the distributors of the flyers as "f-----g whores." Washington was overheard by another employee who had recently revoked her union card and who had participated in distributing the anti-union flyers. This employee reported Washington's statements to a supervisor. On Monday, October 31, Hakim called Washington and six other employees to his office. In the office, Mini-Togs's attorney separately questioned each of the employees regarding Washington's conduct on October 28. Washington denied that any such incident had occurred and refused to answer any questions. Washington was told to leave the premises until she decided to answer Hakim's questions.

On November 3, 1988, Hakim sent a letter to Washington stating that she was on indefinite suspension for use of language that was profane, cursing, and defamatory in the presence of and regarding other employees. Hakim offered to limit the suspension to thirty days if Washington would apologize to the workers at whom she had directed her statements, after which she could return to work on six-months probation. Washington was warned that if she rejected this offer, her indefinite suspension would be converted to a discharge. On November 9, Washington wrote Mini-Togs and rejected the proposal; in this letter she again denied that she had committed any misconduct. Hakim sent Washington a second letter and gave her an additional three days in which to respond. When she failed to reply, she was terminated.

II

Based upon these facts, the Board concluded that Mini-Togs had violated section 8(a)(1) of the National Labor Relations Act, 29 U.S.C. § 158(a)...

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