Avecor, Inc. v. N.L.R.B.
| Decision Date | 03 July 1991 |
| Docket Number | No. 89-1643,89-1643 |
| Citation | 931 F.2d 924 |
| Parties | 137 L.R.R.M. (BNA) 2175, 289 U.S.App.D.C. 286, 59 USLW 2728, 118 Lab.Cas. P 10,709 AVECOR, INCORPORATED, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Oil, Chemical and Atomic Workers International Union, Intervenor. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Petition for Review of an Order of the National Labor relations board.
Harold R. Weinrich, Washington, D.C., for petitioner. Ann Hale-Smith and Jeffrey M. Mintz, Atlanta, Ga., were on the brief for petitioner.
Judith P. Flower, Attorney, National Labor Relations Board ("NLRB"), with whom Aileen A. Armstrong, Deputy Associate General Counsel, and Barbara A. Atkin, Supervisory Atty., NLRB, Washington, D.C., were on the brief, for respondent.
John W. McKendree, Denver, Colo., and Lynn Agee, Memphis, Tenn., were on the brief, for intervenor.
Before BUCKLEY, WILLIAMS, and THOMAS, Circuit Judges.
Opinion for the court filed by Circuit Judge BUCKLEY.
After chemical plant workers voted against union representation, the union charged the employer with unfair labor practices. The administrative law judge concluded that the employer had indeed violated the National Labor Relations Act, that the violations invalidated the election, that the misconduct was so serious that a fair election was essentially impossible, and that the company must therefore bargain with the unelected union. The National Labor Relations Board affirmed the decision. We hold that the Board wrongly construed the firing of an employee as an unfair labor practice, neglected to explain its conclusion about the composition of the bargaining unit, and failed to undertake the proper inquiries and make the requisite findings before imposing the bargaining order.
The basic facts are straightforward and undisputed. Avecor, Inc., operates a small chemical pigment plant in Vonore, Tennessee. The United Steelworkers attempted to organize plant workers in 1986, but, in an election conducted by the NLRB, the union received no votes. The Steelworkers did not charge the company with any unfair labor practices.
In the spring of 1987, some Avecor employees decided to try again with a different union. On April 23, quality control trainee Jeff Tidwell walked into the laboratory office, secured the telephone number for the Oil, Chemical and Atomic Workers International Union, and, in answer to a question, told his supervisor what he was doing. Another employee telephoned the union and arranged a meeting. The following day at midnight, about ten Avecor employees met union organizers at a service station. While there, Tidwell and several others signed union authorization cards. On April 30, the union petitioned the NLRB for an election. In a June 25 election, the union lost by a vote of twenty-two to ten, with five additional ballots challenged.
The union filed objections to the election and charged Avecor with unfair labor practices. An administrative law judge ("ALJ") held hearings in January and May-June 1988. In a decision issued September 30, 1988, he concluded that the company had engaged in various unlawful threats, promises, interrogations, and discharges. He set aside the election results and ordered the company to bargain with the union. Almost a year later, on September 22, 1989, the NLRB issued a decision that, with one minor and somewhat baffling exception, adopted all of the ALJ's findings and conclusions. Avecor, Inc., 296 N.L.R.B. No. 94 (1989). This appeal followed.
Our scope of review is limited. The Board's findings of fact, if supported by substantial evidence, are conclusive. 29 U.S.C. Sec. 160(e) (1988); see St. Agnes Medical Center v. NLRB, 871 F.2d 137, 144 (D.C.Cir.1989). We owe substantial deference to inferences drawn from the facts, see Peoples Gas Sys., Inc. v. NLRB, 629 F.2d 35, 42 (D.C.Cir.1980); to choices of remedies, see NLRB v. Gissel Packing Co., 395 U.S. 575, 612 n. 32, 89 S.Ct. 1918, 1940 n. 32, 23 L.Ed.2d 547 (1969); and, overall, to the "reasoned exercise of [the Board's] expert judgment," Conair Corp. v. NLRB, 721 F.2d 1355, 1373 (D.C.Cir.1983), cert. denied, 467 U.S. 1241, 104 S.Ct. 3511, 82 L.Ed.2d 819 (1984).
We do not, however, merely rubber-stamp NLRB decisions. As we said in Peoples Gas:
[T]his court is a reviewing court and does not function simply as the Board's enforcement arm. It is our responsibility to examine carefully both the Board's findings and its reasoning, to assure that the Board has considered the factors which are relevant to its choice of remedy, selected a course which is remedial rather than punitive, and chosen a remedy which can fairly be said to effectuate the purposes of the Act.
The union charged the company with committing multiple unfair labor practices. The NLRB found merit in some charges and rejected others. As the union has not appealed the rejected ones, we deal here only with those that the Board credited and that the employer appeals.
Two provisions of the National Labor Relations Act ("NLRA") apply to improper terminations. Section 8(a)(1) provides that it is an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title." 29 U.S.C. Sec. 158(a)(1). Section 8(a)(3) forbids an employer "by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization." 29 U.S.C. Sec. 158(a)(3).
Where a termination is alleged to be improper, the NLRB General Counsel bears the burden of demonstrating that "an antiunion animus contributed to the employer's decision to discharge an employee." NLRB v. Transportation Mgt. Corp., 462 U.S. 393, 395, 103 S.Ct. 2469, 2471, 76 L.Ed.2d 667 (1983) (citing Wright Line, 251 N.L.R.B. 1083 (1980), enf'd, 662 F.2d 899 (1st Cir.1981), cert. denied, 455 U.S. 989 (1982)). Circumstantial evidence will suffice. See Property Resources Corp. v. NLRB, 863 F.2d 964, 966-67 (D.C.Cir.1988).
Once the General Counsel has made this prima facie showing, the employer may negate the unfair labor practice finding by showing "by a preponderance of the evidence that the worker would have been fired even if he had not been involved with the union." Transportation Management, 462 U.S. at 395, 103 S.Ct. at 2471. Engaging in union activities does not shield an employee from being fired; the NLRA proscribes only terminations that are motivated by the union activities. See Southwire Co. v. NLRB, 820 F.2d 453, 459 (D.C.Cir.1987).
Here, the Board concluded that Avecor had improperly discharged two men, Jeff Tidwell and Leroy Hamby.
Tidwell's job was to test pigment samples to ensure that the color matched the customer's order. On April 24, 1987, he experienced trouble with a large order. Production had to be halted while he tried various adjustments. In frustration, Tidwell kicked cans and jugs while cursing loudly.
Three days later, the laboratory manager, Ed Pollard, accused Tidwell of having "lost his cool" and offered him a choice between demotion and a written warning. ALJ Decision at 24 (appendix to Avecor 296 N.L.R.B. No. 94). Tidwell chose the latter. The next day he stopped by Pollard's office to secure the warning but was told that it was not yet ready.
Later that day, another supervisor instructed Tidwell to report to Pollard and Larry Willoughby, the plant manager. Willoughby told Tidwell that the quality control job seemed to be more than he could handle. Pollard had erred in offering the write-up or demotion choice, Willoughby continued, because the company's policy was that "if you don't make it, you go out the door." Id. Under that policy, he said, Tidwell was fired. Tidwell protested that he was not to blame for the problems he had encountered on the job and that, in any event, the company should not dismiss people who could ably handle other tasks at the plant. Willoughby was unswayed.
The ALJ concluded that the prima facie burden had been met. He found that Tidwell had secured the union telephone number, attended the midnight meeting, signed an authorization card, and persuaded another employee to sign a card. The ALJ also found that Avecor supervisors knew of the union from the outset and that Tidwell had discussed it with two supervisors. Finally, the ALJ believed that the circumstances of the firing suggested "disparate treatment" of Tidwell: "the questionable validity of the basis for the discharge, Respondent's change of position regarding the discipline imposed on Tidwell, and the timing of the discharge in relation to the beginning of the union activity." Id. at 25.
No evidence directly showed that Willoughby and Pollard, the supervisors who fired Tidwell, knew of his union activities. In concluding that they did have such knowledge, the ALJ presumably applied the small-plant doctrine, although he cited it only in connection with another matter. The doctrine "permits an inference that the company knew of the union activities of specific employees from evidence that union activities 'were carried on in such a manner, or at times that in the normal course of events, [the company] must have noticed them.' " Chauffeurs, Teamsters & Helpers, Local 633 v. NLRB, 509 F.2d 490, 496 (D.C.Cir.1974) (quoting Hadley Mfg. Corp., 108 N.L.R.B. 1641, 1650 (1954)). In this case, the bargaining unit consisted of fewer than forty employees; the evidence supporting the prima facie showing, viewed through the small-plant doctrine, is ample.
Avecor argued that the upgraded discipline had a benign explanation that, if true, would rebut the prima facie showing and defeat the unfair labor practice charge. Tidwell's...
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