Chromalloy Min. and Minerals Alaska Div., Chromalloy American Corp. v. N.L.R.B.

• Decision Date: 10 July 1980
• Docket Number: No. 78-3410,78-3410
• Parties: 104 L.R.R.M. (BNA) 2987, 89 Lab.Cas. P 12,166 CHROMALLOY MINING AND MINERALS ALASKA DIVISION, CHROMALLOY AMERICAN CORPORATION, Petitioner Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent Cross-Petitioner.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1120

620 F.2d 1120

104 L.R.R.M. (BNA) 2987, 89 Lab.Cas. P 12,166

CHROMALLOY MINING AND MINERALS ALASKA DIVISION, CHROMALLOY

AMERICAN CORPORATION, Petitioner Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent Cross-Petitioner.

No. 78-3410.

United States Court of Appeals, Fifth Circuit.

July 10, 1980.

Milling, Benson, Woodward, Hillyer, Pierson & Miller, Michael J. Molony, Jr., H. H. Hillyer, III, New Orleans, La., for Chromalloy Mining.

Elliott Moore, Deputy Associate Gen. Counsel, N. L. R. B., Richard M. Fischl, Atty., Washington, D. C., for the N. L. R. B.

Petition for Review and Cross Application for Enforcement of Orders of the National Labor Relations Board.

Before WISDOM, GOLDBERG and HENDERSON, Circuit Judges.

WISDOM, Circuit Judge:

In this case the National Labor Relations Board held that an employer committed unfair labor practices, including threats to shut down operations, discriminatory refusals to recall employees, and a promise of a benefit to one employee, all of which caused the union to lose its representation election. We hold that substantial evidence supports the Board on all but one of the unfair labor practices. Accordingly, we affirm the Board's decision and enforce its chosen remedy, a bargaining order.

I. Background

Chromalloy Mining and Minerals, Alaska Division, Chromalloy American Corp. operates a barite mine and processing plant at Castle Island, Alaska. The mine operates on a seasonal basis. During its peak of operations in 1976 Chromalloy had three management personnel and approximately 17 other employees on the island. The work force declined during the winter of 1976-77 to one employee who acted as a watchman. The 1977 peak work force consisted of two management personnel and eight other employees.

During the summer of 1976 an employee, Donnie M. Moore, began to solicit other employees on behalf of the International Union of Operating Engineers, AFL-CIO. On August 13 a Union representative wrote the company stating that 12 of the 17 employees had signed union authorization cards requesting recognition for collective bargaining purposes. On August 16 the Union filed a petition with the Board seeking a representation election.

Testimony revealed that several times during this initial organization period Wallace Dolph, the plant manager, warned the employees that the company might shut down if they joined a union. When Jimmie W. Thompson, the foreman, was asked by three employees what would happen if the employees organized a union, he told them: "Well, they may have to shut the operation down because they can't afford to pay the hourly wage and the benefits." Moore testified that Dolph told him on August 20 that no one was to talk about the Union anymore and anyone "talking Union" on company time would be terminated.

When Dolph resigned and left the island in September, Thompson was promoted to plant manager. John Murgas, manager of Alaska operations for Chromalloy, conducted two employee meetings in the fall during which he criticized labor unions and spoke of several benefits to employees the company planned to introduce.

The Board held a representation hearing during Fall 1976, but lost the transcript of that hearing. The Regional Director issued a Decision and Direction of Election on November 12, scheduling the election for the next seasonal peak in the work force. By late June 1977 there were eight employees. The Board scheduled the election for June 29.

Two weeks before the election Murgas held an employee meeting and again criticized unionization. Two employees remembered his expressing a belief that Chromalloy would shut down the mine if the Union was approved. Other employees did not recall such a statement. Two other employees stated that he made similar statements to them in private conversations. The night before the election Murgas told one employee that he would like to send him to a school that would teach him to operate heavy mining equipment.

Of the eight employees eligible to vote in the election, three voted for the Union and four against it. On July 5, 1977, the Union filed objections to the company's conduct affecting the election. ¹

On May 1, 1978, an administrative law judge found that Chromalloy had undermined the election process by refusing to recall two employees who had worked the prior year, threatening several times to close the plant, and promising benefits to one employee. The ALJ found that these actions constituted violations of §§ 8(a)(1), 8(a)(3), and 8(a)(5) of the National Labor Relations Act, 29 U.S.C. § 151 et seq. He concluded that "(t)he foregoing unfair labor practices are so substantial and pervasive and have so wholly disrupted and subverted the election process that a fair election cannot be conducted and the only remedy sufficient to correct them is an order requiring Respondent to recognize and bargain with the Union". 238 N.L.R.B. No. 94 at 22. On September 29 the Board adopted the ALJ's decision. 238 N.L.R.B. No. 94 at 1-2. Chromalloy has asked this Court to review and set aside the Board's order; the Board has petitioned for its enforcement.

II. Threats to Close Down the Plant

Two employees testified that during a June 15, 1977 meeting Murgas stated that in his opinion Chromalloy would shut down the plant if the Union won. Another employee who was not present at the meeting testified that later the same evening Murgas visited him and discussed the election. Murgas "said something that his personal opinion would be that if we lost our election we might close down our operation because the prices of the pallets and our long-range moving and such would not make it feasible". Another employee, Bruce Benitz, testified that the night before the election Murgas warned him, "You know, we have a union election tomorrow and if the Union goes through you can probably all start looking for new jobs because there is no doubt in (my) mind that the Company (will) shut down the mine if the Union go(es) through."

Chromalloy denied that Murgas stated during the meeting that the company would shut down if the Union won. It cites testimony by Murgas, one management employee, and three employees in the bargaining unit, all of whom stated that Murgas did not discuss closing down in connection with the election. Instead, they remembered his stating that if a certain land preservation bill passed Congress the plant might have to shut down. Murgas did not remember making any statement about closure of the plant to Benitz the night before the election.

Chromalloy argues that the ALJ erred in crediting the testimony of those employees who said that Murgas predicted that a Union victory would cause the plant to close. But it is not for this Court to second guess the credibility choices of an administrative law judge and the Board. "A court of appeals is generally bound to accept the credibility choices of an administrative law judge as adopted by the National Labor Relations Board. . . . When the issue is simply one of believability, we will not overturn the decision of the administrative law judge, who had the opportunity to hear the testimony and view the witnesses, unless the findings are self-contradictory." NLRB v. Florida Medical Center, 5 Cir. 1978, 576 F.2d 666, 671; accord, Helena Laboratories Corp. v. NLRB, 5 Cir. 1977, 557 F.2d 1183, 1187. The Board's decision here is also supported by uncontradicted evidence that during the prior summer Dolph and Thompson warned that the plant might shut down if the employees joined a union. Although events more than six months before filing of a complaint cannot be considered unfair labor practices, 29 U.S.C. § 160(b), evidence of such events is admissible because "earlier events may be utilized to shed light on the true character of matters occurring within the limitations period". Local Lodge No. 1424, International Assoc. of Machinists v. NLRB, 1960, 362 U.S. 411, 416, 80 S.Ct. 822, 826, 4 L.Ed.2d 832, 838. The pattern of earlier threats of a plant shutdown lends credence to the testimony about similar statements during the period immediately prior to the election.

The appropriate standard for reviewing a Board finding that statements about plant closure constitute an unfair labor practice is whether "the Board could reasonably conclude that the intended and understood import of that message was not to predict that unionization would inevitably cause the plant to close but to threaten to throw employees out of work regardless of economic realities". NLRB v. Gissel Packing Co., 1969, 395 U.S. 575, 619, 89 S.Ct. 1918, 1943, 23 L.Ed.2d 547, 581. Murgas made no mention of economic realities during his statements at the June 15 meeting and to Benitz. These statements therefore constitute unfair labor practices. His only comments about profitability and business necessity were made when he told one employee that if the Union won, "the prices of the pallets and our long-range moving and such would not make (operating the plant) feasible". But he never gave any reason why the prices would go up. This Court has held that prediction of plant closure in the event of a union victory constitutes a coercive threat if the statement is "unaccompanied by a proven causal link to specific union economic demands". NLRB v. Mangurian's Inc., 5 Cir. 1978, 566 F.2d 463, 466. See generally Bok, The Regulation of Campaign Tactics in Representation Elections Under the National Labor Relations Act, 78 Harv.L.Rev. 38, 78-79 (1964). Murgas provided no such causal link.

III. Promises of Benefits

On the night before the election, after predicting that the mine would shut down if the Union won, Murgas told Benitz that the plant was buying a front-end loader and that he would like to send Benitz to a special school to be trained in the operation of the device. Benitz replied that such training "would be real fine". Murgas had never before mentioned sending Benitz to a training school, and he...