American Thread Co. v. N.L.R.B.
| Decision Date | 26 September 1980 |
| Docket Number | No. 79-1362,79-1362 |
| Citation | 631 F.2d 316 |
| Parties | 105 L.R.R.M. (BNA) 3023, 89 Lab.Cas. P 12,284 AMERICAN THREAD COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Fourth Circuit |
David M. Vaughan, Atlanta, Ga. (David C. Hagaman, Elarbee, Clark & Paul, Atlanta, Ga., on brief), for petitioner.
Lee W. Jackson, N.L.R.B., Washington, D.C. (Norton J. Come, Acting Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Washington, D.C., on brief), for respondent.
Before WIDENER and SPROUSE, Circuit Judges, and HADEN, District Judge *.
The Petitioner, American Thread Company, has petitioned to review and set aside, and the National Labor Relations Board has cross-petitioned to enforce, an order of the Board finding that Petitioner violated Section 8(a)(3) and (1) of the National Labor Relations Act 1 by discriminatorily discharging its employee, Mike Lee Sparks. We grant enforcement.
The law applicable to this case is clear and settled; resolution turns on the facts. Accordingly, we give fairly extensive discussion to the record evidence.
Prior to his discharge on December 7, 1977, Sparks had been employed for eleven years as a truck loader in the receiving department of Petitioner's Sevier Plant in Marion, North Carolina. In Petitioner's view, Sparks was a "good" employee. Nevertheless, Sparks' personnel record was not without blemish; he had been orally disciplined three times. Sparks had been warned on two occasions in 1977 for leaving his work area prior to the shift-end buzzer. On April 8, 1977, he had been warned for passing out union cards on company time in violation of Petitioner's policy regarding solicitation. He denied having done so.
Petitioner historically was opposed to union organization of its employees, 2 as union organization at the Sevier Plant resulted in an election in June, 1972, won by the union, but subsequently set aside due to "irregularities." A second election was held in September, 1972, and Petitioner prevailed. Sparks supported the union in the 1972 campaign by soliciting 15 to 20 employees to sign union authorization cards, and also by his attendance at union meetings. Employer knowledge of Sparks' 1972 activities was manifested when Plant Manager Bill McBee asked Sparks, shortly after the June, 1972, election, whether he had "voted right" and also by conversations initiated by McBee, and another supervisor, Charlie Duncan, concerning Sparks' attendance at the union's "victory party."
The record contains no evidence of union activity from 1972 until the spring of 1977 when some brief and unsustained activity occurred. It was on April 8 that Sparks received an oral warning from his immediate supervisor, Joe Biddix, for violating Petitioner's no solicitation rule. This action was recorded in Sparks' personnel file. Approximately three weeks later Sparks was asked by Plant Manager McBee if he was "for the union" and Sparks stated he was not.
As noted by the Administrative Law Judge, the circumstances surrounding Sparks' discharge are not in significant dispute. At approximately 8:30 a. m., on December 2, 1977, Sparks, having completed unloading two trucks and preparing to unload a third, heard the call of nature. Instead of proceeding approximately 150 yards to the men's restroom, he went outdoors to the back of the plant where two other employees, Chesley Glenn and Norman Dale, were sitting in a parked trash truck. After exchanging a few words with them, Sparks walked to a location between the trash truck and an adjacent vehicle owned by the plant's food service concessionaire, Robert Ayers, and believing himself to be concealed from the view of others, began urinating on the lot. Glenn and Dale, fully aware of Sparks' conduct, determined to play a "joke" on him, and so called over a young female employee of Robert Ayers, Tammy Carpenter. Carpenter approached Glenn's vehicle whereupon Glenn stated, "What's the matter with Sparks?" Carpenter then noticed Sparks apparently relieving himself, responded with an expletive directed at Glenn and walked away. Sparks' back was directed toward Carpenter, Glenn and Dale.
Later, Glenn shared the "joke" with his supervisor, Willard Hollifield, who then informed Joe Biddix of the occurrence. Biddix reported the incident to Assistant Plant Manager Bill Henline and it was decided that Sparks should be suspended. Upon confrontation by Biddix, Sparks did not deny the incident, but stated that his back was turned toward "the lady." Sparks was then suspended by Biddix.
During the three day suspension, Wade Bowman investigated the incident by talking with Glenn and Dale but not with Sparks or Carpenter. After consulting with Biddix, Henline and Poore, Bowman decided to discharge Sparks. When Sparks returned to work after the termination of the suspension on the morning of December 7, he was informed of the decision. Although not denying his action, Sparks reiterated that no one had actually seen him do it. The stated ground for discharge was "indecent conduct."
Although acknowledging that Glenn's and Dale's actions in purposefully involving Carpenter constituted indecent conduct within the meaning of Petitioner's "indecent conduct" rule, Bowman nevertheless imposed no discipline of any kind upon either employee. 3 Bowman excused the conduct of Glenn and Dale because he ". . . did not see any reason for them to be disciplined in any way because they had thought of it as a joke . . ." and further, he ". . . did not think it was severe enough for there to be disciplinary action." App. 53.
Bowman testified that urinating outside the plant, but on the premises, clearly was indecent conduct meriting discharge. Petitioner's evidence suggested that Petitioner viewed such conduct as a very severe transgression, and that management had instructed maintenance department employees, several years prior to 1977, that the conduct was prohibited. 4 As the Board noted, Petitioner never had taken any specific action to identify or punish previous transgressors. Additionally, three employees testified that it was not uncommon for employees to urinate on the outdoors plant premises. There is no conflict, however, that Sparks was the first and only employee known to management to have done so.
The ALJ considered the legitimacy of Sparks' discharge as "highly suspicious" particularly because of "the minor nature of his offense when weighed in terms of the value of his services as a good employee for more than eleven years." App. 19-20. The ALJ found in favor of Petitioner, however, because in his view the general counsel simply had failed to carry his burden of proof. This conclusion was founded primarily upon the established and concededly legitimate basis for discipline by Petitioner, as well as the remoteness in time of the union activities from the date of discharge. Upon review, the Board interpreted the facts differently, and reversed. 242 NLRB No. 10 (1979).
The sole issue before the Court is whether the Board's decision is supported by substantial evidence on the entire record. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). This standard on review is not altered because the Board drew different inferences and legal conclusions from the evidence than did the ALJ. Universal Camera, supra, at 493-494, 71 S.Ct. at 467. The Board, not the ALJ, is ultimately vested with the responsibility for determining whether an unfair labor practice has been committed. Universal Camera, supra, at 492, 71 S.Ct. at 466; Florida Steel Corp. v. NLRB, 601 F.2d 125, 129 (4th Cir. 1979); see 29 U.S.C. § 160(c). The Board is bound to give great deference only to the ALJ's findings which are based upon determination of the credibility of the witnesses. The ALJ's other findings and conclusions are part of the record, and while the Board is not free to disregard them, those findings and conclusions are entitled only to such weight as they intrinsically and reasonably command. In this respect, we recognize that the Board drew different inferences and conclusions from the evidence as found by the ALJ, and did not, in any significant particular, ignore or conclude contrary to those findings of the ALJ premised upon credibility of the witnesses.
The law applicable to this action is well settled. In NLRB v. Consolidated Diesel Electric Co., 469 F.2d 1016, at 1024 (4th Cir. 1972), we stated:
Neptune Water Meter Co., supra, at 570.
There is no dispute that Sparks' conduct merited discipline. The...
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