Alpo Petfoods, Inc. v. N.L.R.B.

• Decision Date: 11 September 1997
• Docket Number: 96-1604,Nos. 96-1572,s. 96-1572
• Citation: 126 F.3d 246
• Parties: 156 L.R.R.M. (BNA) 2295, 134 Lab.Cas. P 10,074 ALPO PETFOODS, INCORPORATED; Friskies Petcare, a Division of the Nestle Food Company, Petitioners, v. NATIONAL LABOR RELATIONS BOARD; Oil, Chemical & Atomic Workers International Union, Respondents. NATIONAL LABOR RELATIONS BOARD, Petitioners, v. ALPO PETFOODS, INCORPORATED; Friskies Petcare, a Division of the Nestle Food Company, Respondents.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 246

126 F.3d 246

156 L.R.R.M. (BNA) 2295, 134 Lab.Cas. P 10,074

ALPO PETFOODS, INCORPORATED; Friskies Petcare, a Division

of the Nestle Food Company, Petitioners, v. NATIONAL LABOR RELATIONS BOARD; Oil, Chemical & Atomic

Workers International Union, Respondents.

NATIONAL LABOR RELATIONS BOARD, Petitioners, v. ALPO PETFOODS, INCORPORATED; Friskies Petcare, a Division

of the Nestle Food Company, Respondents.

Nos. 96-1572, 96-1604.

United States Court of Appeals, Fourth Circuit.

Argued March 5, 1997.

Decided Sept. 11, 1997.

ARGUED: Steven Robert Wall, Morgan, Lewis & Bockius, L.L.P., Philadelphia, PA, for Petitioners. Jill Ann Griffin, National Labor Relations Board, Washington, DC, for Respondent. ON BRIEF: Barry E. Gosin, Morgan, Lewis & Bockius, L.L.P., Philadelphia, PA, for Petitioners. Frederick L. Feinstein, General Counsel, Linda Sher, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, Paul J. Spielberg, Deputy Assistant General Counsel, National Labor Relations Board, Washington, DC, for Respondent.

Before HALL and ERVIN, Circuit Judges, and MICHAEL, Senior United States District Judge for the Western District of Virginia, sitting by designation.

Petition denied and enforcement granted by unpublished opinion. Judge ERVIN wrote the opinion, in which Judge K.K. HALL and Senior Judge MICHAEL joined.

OPINION

ERVIN, Circuit Judge:

Petitioner/Cross-Respondent Alpo Pet Foods, Inc. (Alpo) petitions for review of a decision and order of the National Labor Relations Board (Board), Respondent/Cross-Petitioner here, finding that Alpo had violated the National Labor Relations Act when it laid off three employees following a unionization campaign. The Board seeks enforcement of its order requiring, inter alia, reinstatement with back pay and restoration of seniority rights for these three employees. We deny Alpo's petition for review and grant the Board's cross-application for enforcement of its order.

I.

Alpo operates a pet food can parts facility in Weirton, West Virginia. This facility, which opened in 1985 with four initial employees, has been managed by Vincent Kirpsak since its inception. Following its 1987 decision to expand into the cat food market, Alpo decided in 1989 to expand the capacity at the facility to manufacture containers in-house. As part of this effort, the maintenance department's staffing was increased from four to eight employees in 1990, and, by design, as much of the plant expansion as possible was to be undertaken by these employees. By 1993, the expansion program was essentially complete, with only minor work to be done through 1994. Maintenance outsourcing decreased each year from 1991 onwards.

In November 1993, Kirpsak's supervisor advised him that the Weirton facility was facing a forecasted shortfall of $382,000 for the fiscal year ending September 30, 1994. Kirpsak responded with an action plan to cut costs by $373,000, including shutting down the plant for three five-day periods, saving energy, selling production time to outside companies, and tweaking the volume/mix in the production process.

Later that same month, David Gamble, an employee in the maintenance department, began attempts at organizing the 75 employees at the facility. To varying degrees he was joined in his efforts by his fellow maintenance department employees Charles Artman, Mark Hager, and Earl Franklin Speerhas. Ultimately the campaign proved unsuccessful, and the Oil, Chemical and Atomic Workers International Union (Union) lost the February 18, 1994 election by a vote of 50 to 25. The Union filed neither unfair labor practice charges nor objections at that time for any conduct during the campaign, and the Board certified the results on February 28. Alpo had conducted its own anti-unionization campaign at an estimated cost to the plant of $50,000.

By April 1994, it became clear to Kirpsak that his cost-savings plan could not be implemented and by June he thought it was necessary to act on the situation. Kirpsak therefore proposed to his supervisor on June 28 that three maintenance department positions be eliminated, justifying the reorganization in large part on the fact that the capital expansion project was nearly complete and that it made sense to return the maintenance department staffing to its pre-expansion project level. Kirpsak determined that proper operation of the facility required the retention of a plant electrician, two tool and die workers, and one machinist, with the consequence that the positions of machinist/electrician and two machinists would be eliminated. As a result of these permanent layoffs, Kirpsak recognized that additional outsourcing would be necessary and that certain retained employees would have to take on greater responsibilities, thus warranting a $0.20/hour wage increase. Nevertheless, the net effect of the layoffs would be a savings of more than $84,000.

Kirpsak claimed that he subsequently turned to the employee handbook to implement the seniority procedures to determine which employees would be laid off. On July 11, 1994, Gamble, Hager, and Speerhas were notified that they were being permanently laid off from the maintenance department. Hager, however, with the most plantwide seniority of these three employees, was offered an entry level job as a packer, which he accepted.

On September 6, 1994, the Union filed a charge alleging that Alpo had violated Section 8(a)(1) and (3) of the National Labor Relations Act (NLRA or Act), 29 U.S.C. § 158(a)(1), (3), by laying off Gamble, Hager, and Speerhas in retaliation for their union activities. Following a two-day hearing before an administrative law judge (ALJ), the ALJ issued a decision finding the company had violated the Act. The Board, in a March 20, 1996 decision and order, affirmed the ALJ's findings and conclusions in toto and adopted his recommended order with only a minor modification. See Alpo Pet Foods, Inc., 320 N.L.R.B. 956, 320 N.L.R.B. No. 101, 1996 WL 127873 (Mar. 20, 1996).

The ALJ credited Kirpsak's reasons as to why certain positions were retained but found "patently untrue" Kirpsak's testimony that he considered only the positions, and not the individuals, to be eliminated, especially in Gamble's case. See id., slip op. at 17. Indeed, because the ALJ saw this testimony as an attempt to mislead him and the Board, he drew the adverse inference that the true motivation behind Gamble's layoff was unlawful. See id., slip op. at 18. The ALJ also found that Gamble had been threatened by the human resources manager, a § 8(a)(1) violation, and intimidated by Kirpsak during the election campaign. See id. More generally, Alpo's turn to certain outsourcing, a decrease in machine efficiency after the layoffs, and the $0.20/hour raise evidenced to the ALJ that Alpo's failure to admit its economic mistake was unlawfully motivated and that it was not in such dire financial condition as to have made the layoffs economically necessary. See id., slip op. at 19. The ALJ concluded that the layoffs of Gamble, Hager, and Speerhas and the subsequent subcontracting of the work previously performed by them, to avoid recalling them, was a violation of § 8(a)(1) and (3) of the Act. See id. In addition, because Alpo had failed to demonstrate to the ALJ's satisfaction that the layoffs would have occurred in the absence of the protected union activities, Alpo failed to meet its burden under Wright Line, a Div. of Wright Line, Inc., 251 N.L.R.B. 1083, 1980 WL 12312 (1980), enforced on other grounds, 662 F.2d 899 (1st Cir.1981), cert. denied, 455 U.S. 989, 102 S.Ct. 1612, 71 L.Ed.2d 848 (1982). See id., slip op. at 20. As a result of this decision, the Board ordered Alpo to, inter alia, reinstate Gamble, Hager, and Speerhas to their former positions with back pay and restored seniority rights.

Alpo petitions for review of the Board's decision and order. The Board cross-petitions for enforcement of its order.

II.

The Board possessed subject matter jurisdiction below pursuant to 29 U.S.C. § 160(a). The Board's Decision and Order of March 20, 1996, constitutes a final order under the NLRA, and thus we possess appellate jurisdiction pursuant to 29 U.S.C. § 160(e), (f).

The Board's decision is to be upheld if its factual findings are supported by substantial evidence on the record. 29 U.S.C § 160(e). This is so "even though we might have reached a different result had we heard the evidence in the first instance." NLRB v. General Wood Preserving Co., 905 F.2d 803, 810 (4th Cir.) (internal quotation marks and citations omitted), cert. denied, 498 U.S. 1016, 111 S.Ct. 590, 112 L.Ed.2d 595 (1990). "Substantial evidence has been held to mean 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' " Id. (quoting NLRB v. Aquabrom, Div. of Great Lakes Chem. Corp., 855 F.2d 1174, 1178 (6th Cir.1988)).

III.

A.

Discriminatory discharge is an unfair labor practice under § 8(a)(3) of the Act, 29 U.S.C. § 158(a)(3). ¹ An employer's actions violate this section, however, only if they are motivated by anti-union animus. Goldtex, Inc. v. NLRB, 14 F.3d 1008, 1011 (4th Cir.1994). We have recently laid out the standards with which to deal with such cases:

The Board has established a formula for determining when an allegedly discriminatory discharge violates the [Act]. First, the General Counsel must make out a prima facie case that the employer's decision to lay off an employee was motivated by anti-union animus. The burden then shifts to the employer to prove affirmatively that the same action would have been taken even in the absence of the employee's union activity. To make out a prima facie case, the General Counsel must show (1) that the employee was engaged in protected activity, (2) that the employer was aware of the activity, and (3) that the activity was a substantial or motivating reason for the employer's action. Motive may be demonstrated by circumstantial as...