Chemvet Laboratories, Inc. v. NLRB

• Decision Date: 08 May 1974
• Docket Number: No. 73-1372.,73-1372.
• Citation: 497 F.2d 445
• Parties: CHEMVET LABORATORIES, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

497 F.2d 445 (1974)

CHEMVET LABORATORIES, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 73-1372.

United States Court of Appeals, Eighth Circuit.

Submitted November 14, 1973.

Decided May 8, 1974.

Lyle McClain, Kansas City, Mo., for petitioner.

Martin Namrow, Asst. Gen. Counsel, NLRB, Washington, D. C., for respondent.

Before GIBSON, MOORE^* and WEBSTER, Circuit Judges.

MOORE, Circuit Judge.

This is a petition for review and a cross-application for enforcement of an order of the National Labor Relations Board issued on February 8, 1973 and supplemented on June 14, 1973.

Because of the supplemental decision and order of the Board dated June 14, 1973, the petition for review filed June 7, 1973, the first amended petition for review filed July 10, 1973, the cross-application for enforcement dated July 16, 1973, the amended cross-application for enforcement filed July 27, 1973, and the answer to the amended cross-application filed August 10, 1973, particular attention must be given to the decretal portions of the Administrative Law Judge's decision, the Board's decision and supplemental decision.

Specifically, the Administrative Law Judge in substance ordered Chemvet to desist from (a) discouraging membership in Department Store, Package, Grocery, Paper House, Liquor and Meat Drivers, Helpers and Warehousemen Local Union 955 (the "Union"); (b) threatening plant closure to discourage Union support; (c) interfering with the employees' rights to self-organization; and by way of affirmative action (a) to offer employee Connie Sue Ellis full reinstatement to her job with make-whole pay; and (b) to make whole employees Ruhl, Terrell, Downey and Ellis for loss of pay due to overtime work discrimination.

The Board's order filed February 8, 1973, affirmed the Administrative Law Judge's decision except that it modified it as to "overtime" in an important respect as follows:

While we find, in agreement with the Administrative Law Judge, that the evidence is sufficient to show a decline in available overtime offered to these employees and to establish a causal relationship between this and the employees\' union activities, we find no practicable way to measure how much overtime would have been available or which employees would have availed themselves of overtime opportunities, had they been offered. Employee Ruhl, for example, had made clear at the outset of the events with which we are here concerned that he was not going to be willing to perform as much overtime as he had in the past. Employee Terrell\'s testimony leaves us in some doubt as to how much additional overtime he would have accepted. There is also evidence that new equipment lessened somewhat the need for overtime. These and other factors suggest that an affirmative make-whole order would lead only to an evidentiary morass in our compliance proceedings. We will therefore substitute for the affirmative make-whole order recommended by the Administrative Law Judge a specific injunctive prohibition against future discrimination in offering overtime opportunities to employees.

The Board then some four months later amended its decision by reinstating the Administrative Law Judge's decision as to overtime back pay.

After considering the entire record, the decisions of the Administrative Law Judge and the Board, and the Board's supplemental decision, we enforce the Board's original decision of February 8, 1973, as supplemented by its decision of June 14, 1973, except as to reinstatement of Connie Sue Ellis and back pay for her.

Chemvet Laboratories, Inc. (Chemvet) is a company, located in Kansas City, Missouri, engaged in the manufacture and distribution of veterinary pharmaceuticals. Nick Yovetich and Michael Harmon are the principal shareholders of the corporation. At the time in question nine persons were employed at the two-story plant occupied by Chemvet: three were engaged in the production of liquid pharmaceuticals on the second floor of the Chemvet plant; two others produced powders, tablets and boluses on the first floor; and three others who also worked on the first floor were primarily engaged in the packaging, labelling and bottle washing operations.

Organizational activity began on March 15, 1972, when Kenneth Ruhl, one of the first floor employees, contacted the Union and inquired whether it would be willing to represent the Chemvet employees. Ruhl discussed the possibility of union representation with the remaining first floor employees (with the exception of Charline Rodriguez) and, the next day, this group of five union adherents agreed that their best interests would be served by unionization. The following evening this group went to the union hall and signed union authorization cards. On Monday, March 20, the Union wrote the company claiming majority status and also filed a petition with the Board for a representation election. The next day the company received a notice from the Board that the petition had been filed, along with a Board notice to employees setting forth their rights under the Act. Thereafter, unionization became the topic of numerous discussions within the plant.

At the hearing before the Administrative Law Judge, several employees testified that a few days after the posting of the NLRB notice Mike Harmon entered the main first-floor workroom and shouted to the employees working there that "he was the boss and if he had to, he would shut it the plant down." Harmon then walked into the bolus room, also on the first floor and, according to the testimony adduced at trial, confronted Ruhl, saying, "Ken, I want you to understand that I'm the boss and I always will be." After a further exchange, Harmon reputedly declared that "if he had to he would close the place down."

On March 29, shortly before the regular 4 p. m. quitting time, Rodriguez and Ellis, two employees responsible for product packaging and labelling ceased production and started to clean the labelling machine. Nick Yovetich told the pair that it was not yet time to quit for the day and he ordered them to return to work. Rodriguez returned to work but Connie Sue Ellis did not. As Yovetich was leaving the room, Ellis, in making a statement to Rodriguez, loudly referred to Yovetich as a "son-of-a-bitch." A minute later Yovetich returned and, when Ellis refused to return to work, he discharged her.

Minutes after the incident between Yovetich and Ellis, Harmon demanded that employees Ruhl and Terrell, union supporters, surrender the keys to the plant which had long been entrusted to them in order to facilitate entrance to and exit from the plant when they worked overtime. Harmon also demanded keys from employees Dodig and Ballew, two upstairs employees and nonsupporters of the Union. However, after the lock to the plant was changed, new keys were given to these two employees. No similar offer was made to either Ruhl or Terrell.

During this general period, i. e., between March and April, 1972, employees in the powder, tablet and bolus production department, all of whom were union adherents, suffered a reduction in the amount of overtime work they normally performed.

Plant Closure

A threat to close the plant, when made in the context of the union organization of the employees, has long been recognized as one of the most potent instruments of employer interference with the right of employees to organize under the National Labor Relations Act. See N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, 618-620, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969). Appellant does not take issue with this recognized principle, rather it claims that the evidence presented to the Administrative Law Judge was insufficient to support the conclusion that management had threatened the employees with plant closure or had in any way interfered with their Section 7 rights.

Harmon conceded that he had announced to the various first floor employees (almost all of whom supported union representation) that "he was the boss"; however, he denied remarking to anyone that he was considering the possibility of closing the plant. Furthermore, appellant claims that the "dominant theme" of Harmon's exclamations was an assertion of authority, rather than any opposition to the organizational movement.

There is a threshold question of witness credibility. The recollections of the employee witnesses contrast sharply with Harmon's testimony. However, "it is settled law * * * that the question of credibility of witnesses is primarily one for determination by the trier of facts, and findings in this area are reversed only in extraordinary circumstances." N.L.R.B. v. Panzel Construction Co., 449 F.2d 148, 149 (8th Cir. 1971). This principle is simply a corollary of the general rule found in Section 10(e) of the Act which provides that: "The findings of the Board with respect to questions of fact if supported by substantial evidence on the record as a whole shall be conclusive." 29 U.S.C. § 160(e) (1970). Because the employee testimony constitutes substantial evidence to support the Board's finding that Harmon threatened to close the plant, we accept that finding.

A threat to close the plant is a violation of Section 8(a) (1) if it is "reasonably likely to restrain" employees in the exercise of their statutory rights. McGraw-Edison Co. v. N.L.R.B., 419 F.2d 67, 71 (8th Cir. 1969). Here, the threats to close the plant were made only a few days after the company learned of the union organization and while unionization was a principal daily topic of conversation among the employees. One of the threats was addressed to employee Ruhl who had led the drive for union representation. Substantial evidence supports the Board's conclusion that the threat constituted a violation.

The Plant Keys

Appellant also contends that the conclusion that the plant keys were taken from employees Ruhl and Terrell for purposes of intimidation and other anti-union consideration is not supported by any substantial...