Birch Run Welding & Fabricating, Inc. v. N.L.R.B.

• Decision Date: 13 May 1985
• Docket Number: 84-5470,Nos. 84-5335,s. 84-5335
• Citation: 761 F.2d 1175
• Parties: 119 L.R.R.M. (BNA) 2426, 102 Lab.Cas. P 11,475 BIRCH RUN WELDING & FABRICATING, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1175

761 F.2d 1175

119 L.R.R.M. (BNA) 2426, 102 Lab.Cas. P 11,475

BIRCH RUN WELDING & FABRICATING, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

Nos. 84-5335, 84-5470.

United States Court of Appeals Sixth Circuit.

Submitted March 14, 1985.

Decided May 13, 1985.

John W. Wolf, Thomas A. Basil, Luce, Basil & Collins, Saginaw, Mich., for petitioner.

Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., Washington, D.C., Bernard Gottfried, Director, Region 7, N.L.R.B., Detroit, Mich., for respondent.

Before KENNEDY and CONTIE, Circuit Judges, and PECK, Senior Circuit Judge.

CONTIE, Circuit Judge.

Birch Run Welding & Fabricating, Inc. (Birch Run) petitions for review of, and the National Labor Relations Board (Board) cross-applies for enforcement of, a Board order concluding that Birch Run violated Sec. 8(a)(3) of the National Labor Relations Act (Act) by laying-off thirteen employees after becoming aware of an organizational campaign by the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (Union). For the reasons stated below, we enforce the Board's order. ¹

I.

As of January 1983, Birch Run employed thirty-five to forty employees at its plant located in Birch Run, Michigan. The company President was Harold Johnson. Birch Run's plant was divided into front and back shops. The front shop contained tool rack fabrication and repair operations. The back shop housed a machine shop and an assembly floor where die cast machines were built and used die cast machines were rebuilt. Employees Kamrade, Oberg, ² Parlberg, Schmidt and Wade worked days in the front shop along with several other unidentified employees. Their supervisor was George Anscomb. Employees Altman, Aquirre, Benham, Berg, Sparck and Yaklin worked nights in the front shop. The record does not identify their supervisor. Employees Clark and Humes worked days in the back shop machine shop under supervisor Gerald Johnson. Employees Kuhr, Morris, Reikowski, VanNess and Zabarcki worked days in the back shop assembly floor under supervisor Thomas Goodreau. Employees Hogan, Metiva and Reittenbach worked nights in the back shop machine shop under supervisor Ted Dahl. The record is unclear about who worked nights in the back shop assembly floor. Employees Barske and Lonsway (and possibly others) may have worked in this area.

Birch Run frequently laid off employees. Employees Aquirre, Oberg, Parlberg, Schmidt and Zabarcki, for instance, had all been temporarily laid off in the past. The company had no formal lay-off policy and did not use the seniority system. If an employee were working on an order at the time of a lay-off, he would finish before being laid-off even if a more senior employee were available. Nor were recalls based upon seniority. The company usually did lay-off the night shift before the day shift, however.

Humes, a lathe operator, contacted union representative Koster late in 1982. Ten employees, including Humes, attended an organizational meeting at a union office in Saginaw on January 16, 1983. Some employees signed union authorization cards. Eighteen to twenty employees attended a second meeting at a union office located outside Saginaw on January 23. More employees signed authorization cards and the group formed an organizing committee consisting of employees Altman, Aquirre, Barske, Hogan, Humes, Lonsway, Metiva, Oberg, Parlberg, Reittenbach, Sparck and Zabarcki. The union sent a letter containing these names to the purported Chairman of the Board of Birch Run. The postal service returned this letter unopened, however, and there is no evidence that Birch Run ever learned of its contents.

At this time, Birch Run was experiencing economic difficulties. An unspecified number of employees had already been laid-off and others had been assigned to jobs outside of their normal classifications. Work existed, however, for the employees who remained on January 25 and 26, the dates upon which the relevant events occurred.

Company President Johnson met with all night shift employees on January 25 and with all day shift employees at 7:00 A.M. on January 26. Johnson stated that business was not good because many of Birch Run's competitors were going bankrupt, thereby flooding the market with die cast machines. Moreover, many company customers were going bankrupt and were not paying their bills. Thus, the company was accepting low profit or no profit tool rack work merely to maintain a "core" of good workers. Although supervisor Anscomb would begin traveling in an attempt to attract new business, the prospects were not good. Johnson also stated that a local bank wanted the company to lay-off thirty percent of its remaining workers but that the company wanted to avoid further lay-offs. Johnson indicated that Birch Run was "holding water" and would not "fold." No pay raises or paid vacations would be forthcoming in the foreseeable future, however. Employee Zabarcki testified at the hearing before the Administrative Law Judge (ALJ) that a similar speech had been given one month before a large lay-off early in 1982 (Tr. at 323).

Humes returned to his work station after the meeting. Harold Johnson approached and offered Humes a pay raise because of his good work performance provided that he did not tell other employees. Humes accepted. Supervisor Gerald Johnson subsequently approached Humes and stated that he would have difficulty explaining the lack of pay raises when there was sufficient work in the plant to keep the remaining employees busy. Both men then went to Harold Johnson's office. As the latter was explaining recent losses, Humes interrupted and stated:

I think it's about time we stopped beating around the bush.... I think you guys know there's an organizing drive going on in the shop right now and I don't know why you have me up here showing me this stuff, but I I think it's for this reason, and if you don't know it, you do now. (Tr. at 39).

The Johnsons denied prior knowledge of the union campaign and asked what the employees wanted. Humes responded that the employees wanted many different things, including job security, and that they had not believed a word that Harold Johnson had said at the meeting.

At lunch hour on January 26, Humes gave union buttons, pens and pocket protectors bearing union insignia to Schmidt and Zabarcki. Schmidt placed a pocket protector in his shirt pocket where it remained for the rest of the day. Zabarcki wore a union button on his shirt for the remainder of the day.

At 3:00 P.M., supervisor Anscomb approached Schmidt with a blueprint. As the men leaned over the blueprint, Anscomb gave Schmidt a job assignment that would require several hours to complete. The men then straightened. Anscomb saw the union pocket protector, stated that he would return momentarily and walked away. When Anscomb returned ten or fifteen minutes later, he laid-off Schmidt effective at the 3:30 P.M. shift ending time despite the fact that he had just given Schmidt the new assignment.

Supervisor Goodreau laid-off Humes, Clark and Zabarcki. These lay-offs also were effective at 3:30 P.M. Schmidt and these three employees subsequently received letters suggesting that they seek employment elsewhere because there was no reason to believe that they would be recalled. Although Clark, Schmidt and Zabarcki had been laid-off before, they had never received such letters. Birch Run also laid-off Parlberg and VanNess on the afternoon of January 26. VanNess was not a union adherent. Employee Morris, who was a union supporter, was not laid-off.

Before leaving the plant at 3:30 P.M., Humes gave the union campaign materials to Hogan, the night shift lathe operator. At lunch time, Hogan distributed union materials to Aquirre, Oberg, Sparck and Yaklin. Aquirre and Oberg attached buttons to their coats and hung them near their work stations. Yaklin wore a union button on his hat for the rest of the evening.

Although supervisor Anscomb usually did not arrive at the plant until 5:00 A.M., he appeared at 11:00 P.M. on January 26 and laid-off Altman, Aquirre, Benham, Oberg, Reittenbach, Sparck and Yaklin. All but Benham were union adherents. Oberg asked if the company was not making enough money or did not have sufficient work. Anscomb responded that the company was making money and had plenty of work. When Oberg then inquired about the reason for the layoffs, Anscomb stated, "it's all part of the game."

Union supporters Hogan and Metiva were not laid-off on January 26. Even though Hogan could produce only one-third as much as Humes on the lathe, he replaced Humes on the day shift lathe operation. The record further reflects that when the thirteen employees were laid-off on January 26, they left behind uncompleted assignments.

After the lay-offs, Hogan taught supervisor Dahl to use the lathe and taught supervisor Gerald Johnson to operate the boring mill. Although the plant had operated on a five-day work week before January 26, the plant frequently operated six days per week thereafter. Moreover, within three months after the lay-offs, Birch Run hired two new assemblers and six new machine shop workers. Although Altman, Aquirre, Benham and VanNess eventually were recalled, none of the other laid-off employees has been recalled.

Since Birch Run contended at the administrative hearing, in response to the General Counsel's charges, that the lay-offs were economically motivated, the ALJ evaluated the case under the standards set forth in Wright Line, 251 N.L.R.B. 1083 (1980). The ALJ held that the General Counsel had shown that anti-union animus had contributed to Birch Run's decision to lay-off the thirteen employees. Furthermore, the company had not rebutted this prima facie case. The ALJ concluded, therefore, that Birch Run had violated Sec. 8(a)(3). The ALJ ordered Birch Run to cease and desist from violating Sec. 8(a)(3), to reinstate the laid-off employees with back pay,...