Bromine Div., Drug Research, Inc. v. N.L.R.B., 77-1732

• Decision Date: 28 April 1980
• Docket Number: No. 77-1732,77-1732
• Citation: 621 F.2d 806
• Parties: 105 L.R.R.M. (BNA) 2370, 89 Lab.Cas. P 12,259 BROMINE DIVISION, DRUG RESEARCH, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 806

621 F.2d 806

105 L.R.R.M. (BNA) 2370, 89 Lab.Cas. P 12,259

BROMINE DIVISION, DRUG RESEARCH, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 77-1732.

United States Court of Appeals, Sixth Circuit.

April 28, 1980.

Dee Edwards, Royal Oak, Mich., for petitioner.

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

Before KEITH, KENNEDY and MARTIN, Circuit Judges.

ORDER

Petitioner Drug Research, Inc., seeks review of the Board's order and the Board seeks enforcement of its order determining that Petitioner engaged in various unfair labor practices.

The Board found that, pending resolution of Company challenges to ballots cast in a representation election, the Company unlawfully refused to rehire two employees whose ballots had been challenged on the ground that they lacked a reasonable expectation of reemployment; that following certification of the Union as collective bargaining representative, the Company refused to recognize and bargain with the Union; that the unit employees went out on strike to protest the Company's unlawful refusal to bargain; that following the unfair labor practice strikers' unconditional offer to return to work, the Company unlawfully refused to reinstate four strikers; that the Company unilaterally granted wage increases after the Union had been certified as bargaining representative; and the Company interfered with strikers' Section 7 rights by threatening strikers with criminal prosecution and by informing reinstated strikers that they were to be regarded as new employees.

The Board's order requires the Company to cease and desist from the unfair labor practices found and from in any other manner interfering with, restraining or coercing employees in the exercise of rights guaranteed in Section 7 of the Act. Affirmatively, the order requires the Company to make whole Sterling and Burgess for any loss of earnings suffered as a result of the Company's unfair labor practices; to offer the four unfair labor practice strikers immediate and full reinstatement to their former or substantially equivalent positions and to make them whole for any loss of earnings suffered by reason of the Company's refusal to reinstate them; to bargain collectively with the Union upon request; and to post the usual notice.

Upon consideration of the record and the arguments made to this Court, we are of the opinion that the Board's order should be enforced.

CORNELIA G. KENNEDY, Circuit Judge (concurring in part and dissenting in part.)

While I concur in all other portions of the Court's order I respectfully dissent from that portion which grants enforcement of the Board's order requiring reinstatement of Earl Stevens. Dr. Laurene Paterson, the president and manager of the respondent, testified that Stevens was not recalled because of his conduct stemming from an occasion when he was arrested by the police at the plant. The parties stipulated that Stevens had pled guilty to illegal entry without breaking and to malicious destruction of personal property and that the incident involved in those guilty pleas occurred during the course of the strike.

In determining whether there has been an 8(a)(1) violation, the Supreme Court has prescribed a multistep formula. NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 87 S.Ct. 1792, 18 L.Ed.2d 1027 (1967). The General Counsel must first show that there has been discrimination within the meaning of the act. Id. at 32, 87 S.Ct. at 1796. In order to find a violation, it must be proven that the discriminatory conduct was motivated by an antiunion purpose. Id. at 33, 87 S.Ct. at 1797. If the conduct was inherently coercive, then an antiunion motive is presumed, and the burden shifts to the employer to explain his motive. If, on the other hand, the harm was slight, an affirmative showing must be made of improper motive, once the employer has come forward with proof of a legitimate and substantial business justification. Id. See generally NLRB v. Elias Brothers Restaurants, 496 F.2d 1165, 1167 (6th Cir....