Arbie Mineral Feed Co. v. NLRB, 20286.

• Citation: 438 F.2d 940
• Decision Date: 26 February 1971
• Docket Number: No. 20286.,20286.
• Parties: ARBIE MINERAL FEED CO., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

438 F.2d 940 (1971)

ARBIE MINERAL FEED CO., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 20286.

United States Court of Appeals, Eighth Circuit.

February 26, 1971.

Allen E. Brennecke, Arley J. Wilson, Mote, Wilson & Welp, Marshalltown, Iowa, for petitioner.

Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Jack H. Weiner, Herman M. Levy, Corinna Lothar Metcalf, Attys., N. L. R. B., for respondent.

Before MATTHES, Chief Judge, and LAY and BRIGHT, Circuit Judges.

BRIGHT, Circuit Judge.

This controversy arises out of an attempt by the union¹ to organize approximately 24 production and maintenance employees and truck drivers of the Arbie Mineral Feed Co. (Arbie), which engages in the production of animal feed in Marshalltown, Iowa. The union, which claimed to represent a majority of the employees as of January 17, 1969, filed unfair labor practice charges against the employer. The Board determined that Arbie had violated § 8(a) (1) of the National Labor Relations Act by interrogating its employees concerning their union activity and in threatening some employees with economic reprisals should the union win recognition. In addition, the Board found Arbie in violation of § 8(a) (1) and (3) of the Act because of its discharge of two employees. The Board directed that Arbie cease and desist from these unfair labor practices, that it reinstate the men wrongfully discharged and that it bargain with the union. The employer petitions to set aside the Board's order which is reported at 182 N.L.R.B. No. 24, 74 L.R.R.M. 1062 (1970). The Board cross-applies for enforcement. We have jurisdiction pursuant to 29 U.S.C. § 160(e) and (f).

We grant enforcement in part. We decline to sustain the Board's bargaining order. Since the Board's findings of independent unfair labor practices underlie the issuance of said order, we first must review briefly the evidence cited to support these findings.

The union organization drive was initiated in early November, 1968, by Gerald Breuklander, an Arbie truck driver, who was later discharged. Charles Wogan, a plant employee also later discharged by Arbie, joined Breuklander's efforts and signed a union authorization card at the beginning of the campaign. Although other employees hesitated to join the union at first, a number joined the union campaign during or immediately following the union meetings held in December, 1968, and January, 1969. Brueklander successfully solicited union authorization cards from several employees at places away from the union hall. By mid-January, the union possessed fourteen cards and claimed to represent the majority of the employees appropriate to a bargaining unit. Arbie, however, rejected the union's demand for recognition and told the union representative to present the demand to the National Labor Relations Board. Thereafter, the union petitioned for an election, but just prior to the hearing on the petition, filed the instant unfair labor practice charges. On the basis of this filing, the contemplated representation hearing was indefinitely postponed. We turn to a discussion of the separate charges.

I. THE § 8(a) (1) CHARGES

Shortly after the initial union meeting, supervisor Penrod asked Wogan if he was a union member. A few days later, foreman Moore asked Wogan what had transpired at the union meeting. During this conversation, and on subsequent occasions, Moore told employees that the union would not do the men any good, that it would cause employees a loss of money through loss of overtime work, Christmas bonuses and profit sharing, and that those employees campaigning for the union could be discharged. Supervisor Penrod told another employee that if the union gained recognition, Arbie would reduce overtime work for the present employees by adding a third shift. The witness to this latter conversation could not recall the exact date, but he thought the conversation occurred "around" mid-January. The Board deemed these conversations to be coercive and violative of § 8(a) (1). It rejected a number of other § 8(a) (1) charges alleged in the complaint.

Arbie argues that the evidence demonstrates that the conversations consisted of casual, isolated remarks which lacked any coercive effect. It further contends that the employees initiated all conversations with foreman Moore, a former union member, to solicit his personal opinion concerning the benefits of unionism. The record contains substantial evidence, however, to justify a finding of coercion from the repeated and pointed nature of the interrogations; that the remarks were not isolated and inconsequential. N. L. R. B. v. Talbot-General Wire Products, Inc., 419 F.2d 824 (8th Cir. 1969), is easily distinguishable, as in that case the remarks were made in a "casual" conversation.

Our review of questions of fact such as these is limited to whether substantial evidence on the record as a whole supports the Board's determinations. The Board may draw reasonable and fair inferences from the evidence it finds to be creditable. Petitioner has shown no grounds on which we could properly reject the Board's findings and interpretations of the facts relative to these § 8 (a) (1) charges.

II. THE § 8(a) (3) CHARGES

On December 5, 1968, Arbie discharged Charles Wogan, an employee of sixteen-months duration, for alleged insubordination. The company contends that it based the discharge on four incidents involving Wogan. The first was the taking of a company truck without permission for personal use. Second, when Wogan was asked to pay for use of the employer's truck, he complained to fellow workers that the company overcharged him. While in the company offices, he said that he "wouldn't take the damn thing again anyway." Third, Wogan improperly operated a mixing machine and burned out its motor. Finally, on the day of his discharge, Wogan protested to the company comptroller that he had been paid $1.00 less than his fellow employees for the previous pay period. The company official rejected his claims. As Wogan left the company offices, he said to a group of fellow employees then waiting in the reception area, "I think it is a bunch of crap." He made this remark in the presence of the female office secretary. Almost immediately thereafter, the manager called Wogan into his office and discharged him because of his "language" and his "poor attitude".

The Board viewed the employer's reasons given for the discharge as pretextual and, in doing so, noted that the alleged misdeeds committed prior to December 5, 1968, produced no hint of disciplinary action by the employer. The Board characterized the incident on the day of Wogan's discharge as being relatively innocuous. From all of the evidence, we think the Board might infer that an intent to discourage union activity, at least in part, motivated this particular discharge. See Betts Baking Co. v. N. L. R. B., 380 F.2d 199 (10th Cir. 1967). Thus, the General Counsel proved Wogan's discharge constituted a somewhat typical § 8(a) (3) violation.

The other discharged employee, Gerald Breuklander, had worked for Arbie for more than two years. The company dismissed him for drinking beer while operating a company truck on a feed delivery. A well-established company rule prohibited driving while drinking any intoxicant. Upon being informed of this incident the day after it occurred, the plant manager promptly fired Breuklander. When first confronted by his employer, Breuklander denied the charge. During the interrogation concerning this incident, Breuklander asked for a transfer to a non-driving job in the plant. After considering the matter for a few minutes, the manager declined, even though he later admitted that it was a poor time to let anyone go and that Breuklander had been a good employee.

The Board sustained a § 8(a) (3) violation based on Breuklander's discharge. We disagree. Safety rule "violations present matters which employers may reasonably consider" in determining the appropriateness of a discharge, even if an adherent of the union is involved. Illinois Ruan Transport Corporation v. N. L. R. B., 404 F.2d 274, 279 (8th Cir. 1968). Nor does union affiliation prevent a discharge for cause. N. L. R. B. v. Arkansas Grain Corporation, 392 F.2d 161 (8th Cir. 1968). Breuklander committed a grave dereliction of duty. By driving while drinking, he violated an elemental safety rule which exposed his employer to almost certain liability should an accident occur. We find no substantial evidence indicating that the company condoned such grossly improper conduct by any of its employees at any time. Neither do we find substantial evidence to support the Board's view that Arbie's failure to give Breuklander a different job indicated that the drinking incident constituted a pretextual reason offered by the company for firing Breuklander. Accordingly, we reject the § 8 (a) (3) violation found on these facts.

III. THE § 8(a) (5) BARGAINING ORDER

We must examine the Board's bargaining order by applying the standards for the less extraordinary unfair labor practice case, as set forth in N. L. R. B. v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969). In Gissel, the Court noted that conduct in the "exceptional" cases, those where the employer's conduct can be characterized as "outrageous" and "pervasive", will justify the issuance of a bargaining order without need of inquiry into whether the union ever represented a majority of the employees. The issuance of such an order is justified in those situations as "the only available, effective remedy for substantial unfair labor practices." 395 U.S. at 614, 89 S.Ct. at 1940. The Supreme Court, in Gissel, also authorized the issuance of a bargaining order by the Board where the employer's independent unfair labor practices, although not subject to characterization as outrageous or extraordinary, "have the tendency to...