Electri-Flex Co. v. N.L.R.B., ELECTRI-FLEX

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtBefore TONE and WOOD, Circuit Judges, and WYZANSKI; HARLINGTON WOOD, Jr.
Citation570 F.2d 1327
Docket NumberNo. 77-1515,ELECTRI-FLEX
Decision Date16 March 1978
Parties97 L.R.R.M. (BNA) 2888, 83 Lab.Cas. P 10,394 COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

Page 1327

570 F.2d 1327
97 L.R.R.M. (BNA) 2888, 83 Lab.Cas. P 10,394
ELECTRI-FLEX COMPANY, Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 77-1515.
United States Court of Appeals,
Seventh Circuit.
Argued Nov. 9, 1977.
Decided Feb. 14, 1978.
Rehearing Denied March 16, 1978.

Page 1330

Samuel W. Witwer, Jr., R. Dennis Claessens, Chicago, Ill., for petitioner.

Elliott Moore, Deputy Associate Gen. Counsel, William R. Stewart, Arnold Podgorsky, Attys., National Labor Relations Board, Washington, D. C., for respondent.

Before TONE and WOOD, Circuit Judges, and WYZANSKI, Senior District Judge. *

HARLINGTON WOOD, Jr., Circuit Judge.

Electri-Flex Company (hereinafter referred to as the company) petitions this court, pursuant to Section 10(f) of the National Labor Relations Act, 29 U.S.C. §§ 151 et seq., to review a Decision and Order of the National Labor Relations Board. The Board has filed a cross-application for enforcement of its order. 1

The company contends there is not substantial evidence to support the Board's finding that the company interfered with or restrained the employees in their unionization efforts or that the company improperly discharged and transferred pro-union employees.

Page 1331

In addition, the company seeks review of the violations found in respect to its use of a written warning system, and the implementation of tentatively approved contract provisions, a call-in rule and a 60-day probationary provision.

A.

The Interference Charge

The company contends the record lacks the substantial evidence necessary to support the Board's findings that it interfered with, restrained, and coerced its employees in the exercise of their statutory rights and thus violated Section 8(a)(1) of the Act.

In applying the "substantial evidence" standard we are aware of our duty to examine the entire record, including the evidence opposed to the Board's view, to determine whether the record contains "such evidence as a reasonable mind might accept as adequate to support a conclusion" and to find that the decision is "justified by the fair estimate of the worth of the testimony of the witnesses or its informed judgments on matters within its special competence." Universal Camera Corp. v. NLRB, 340 U.S. 474, 487-90, 71 S.Ct. 456, 466, 95 L.Ed. 456 (1957).

The testimony before the Administrative Law Judge (hereinafter referred to as ALJ) revealed that there had been interrogation by the company of its employees in regard to their union activity, and that discharge and other forms of reprisals were threatened if the employees supported the union or signed the authorization cards. In addition, the company promised to place those who voted for the company in management positions in an effort to dissuade employees from supporting the union. Other testimony revealed that the company maintained lists of employees on the basis of pro or anti-unionism, creating the impression that it had its employees under surveillance. We find there is substantial evidence to support the Board's finding of a violation of Section 8(a)(1).

The company also objects, claiming the ALJ used an "unnatural and legally unsupported test" relying solely on the absence of specific denials by the supervisors who engaged in the violative conduct.

The Board found that the ALJ even though not making explicit credibility findings, implicitly resolved conflicts in the testimony "by accepting and relying on the testimony of the General Counsel's witnesses," and in addition that the findings were based on demeanor. We agree with the conclusion reached by the Board that "there is no basis to overturn the . . . evaluation of credibility based on demeanor and the record as a whole. . . ." See NLRB v. Braswell Motor Freight Lines, 486 F.2d 743, 745 (7th Cir. 1973).

B.

The Discharge and Transfer Violations

The Board found that the company violated Section 8(a)(3) in its actions involving employees, Adrian Velez, Martin Ibarra, Juan Martin and Tony Capasso and additionally violated Section 8(a)(4) as to Tony Capasso.

The controlling principle behind the finding of a Section 8(a)(3) violation is that the company's action or decision was discriminatorily motivated. NLRB v. National Food Stores, Inc., 332 F.2d 249, 252 (7th Cir. 1964). In determining this motivation, the Board may consider circumstantial as well as direct evidence. Further, while it is necessary for this court to determine whether there is substantial evidence on the record as a whole to support the decision of the Board, the decision is entitled to judicial affirmance, "even though the court would justifiably have made a different choice had the matter been before it de novo." Universal Camera Corp. v. NLRB, 340 U.S. at 488, 71 S.Ct. at 465.

Finally, we note that absent exceptional circumstances, credibility resolutions

Page 1332

are within the province of the trier of fact. Sarkes Tarzian, Inc. v. NLRB, 374 F.2d 734, 736 (7th Cir. 1967).

Below we give a brief review of the circumstances surrounding these incidents.

The records show that Adrian Velez's transfer from the position of set-up man to packager occurred within days of interrogation by company supervisor regarding his union sentiments and his admission that he had signed a union card. The company's statements and treatment of Velez following this July 16 transfer also indicate that the company was attempting to get rid of him prior to the union election, because they viewed him as a union sympathizer and activist.

As to Martin Ibarra, the record shows that his transfer from set-up man to machine operator occurred on the very same day he was observed distributing union handbills. The ALJ indicated he was not crediting the testimony of the company's representative, that Ibarra had been transferred because of dissatisfaction with his work.

Juan Martin had been employed by the company since 1971. He became active in the unionization efforts at the company, signed an authorization card, attended meetings and distributed handbills on the day of the election. The company was aware of his union activity. Martin was fired by the company on January 28 after a disputed incident involving another employee. The ALJ indicated he was crediting the employee's version, which indicated that the incident was merely an "insignificant bumping" rather than a fight and found that the company magnified this minor incident to enable it to rid itself of a pro-union adherent.

Tony Capasso was known by the company to be a union supporter, having been questioned about it by his supervisor, and was told that things would be made rough for union supporters. In October, Capasso was confronted with the information that the company was aware that he had made a complaint to the Board and was told by foreman Brilz that he could have his job if he wanted it. Later there was an incident involving an infraction of the company rule to wear safety shoes, where Capasso was given a 3-day suspension in comparison to only one day given another employee for the same violation on the same day. The company claimed a "threat" was made by Capasso at this time and that this was the cause for his termination two days later. The ALJ specifically credited the testimony of Capasso over that of the company representative, Colosi, finding that the discharge had not occurred as Colosi testified and that it was Capasso's union activity which had caused the company to terminate him.

Applying the principles given above to the facts of this case, we feel there is substantial evidence in the record to support the finding of the board that a discriminatory motive prompted the company's decision to transfer Adrian Velez, to transfer Martin Ibarra, to discharge Juan Martin, and to discharge Tony Capasso. Further, the fact that Tony Capasso had given information to the National Labor Relations Board was an additional motive prompting his discharge, thus violating Section 8(a)(4).

C.

The Written Warning System

The written warning system 2 was found to be a new disciplinary system in that it amounted to a significant change from the previous system, that it had been implemented without bargaining with the Union and therefore was a violation of Sections 8(a)(5) and (1) of the Act. The Board, in addition, found that the record supported a

Page 1333

finding that the system was implemented with the illegal motivation of harassing and retaliating against union supporters and sympathizers, and therefore also violated Section 8(a)(3) of the Act.

In objecting the company presents three arguments. First, it is contended that a company's mode of discipline is not a mandatory subject for bargaining and rather is within the area of "management prerogative." Textile Workers v. Darlington Mfg. Co., 380 U.S. 263, 85 S.Ct. 994, 13 L.Ed.2d 827 (1965). While it is true that the Act does not take from the employer the right to enforce reasonable rules for the conduct of the business and to take disciplinary action against employees who either violate the rules or are generally not suitable for efficient production, NLRB v. Mylan-Sparta Co., 166 F.2d 485 (6th Cir. 1948), it is equally true that the institution of a new system of discipline is a significant change in working conditions, and thus is one of the mandatory subjects for bargaining under the provisions of Section 8(d) of the Act, included within the phrase "other terms and conditions of employment." NLRB v. Amoco Chemicals Corp., 529 F.2d 427, 431 (5th Cir. 1976); NLRB v. Gulf Power Co., 384 F.2d 822, 823 (5th Cir. 1967).

Thus it is necessary to determine if there was evidence to support the finding by the Board that the written notice system was a new system of discipline, or a significant change from the previously existing system. The company admits there was an increase in the numbers of written warnings issued after the arrival of the union, but states that the record does not support the conclusion that this...

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38 practice notes
  • N.L.R.B. v. Blake Const. Co., Inc., No. 80-1922
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • August 17, 1981
    ...v. NLRB, 416 F.2d 1126, 1134 n.12 (D.C.Cir.1969), cert. denied, 396 U.S. 903, 90 S.Ct. 216, 24 L.Ed.2d 179; Electri-Flex Co. v. NLRB, 570 F.2d 1327, 1335 (7th Cir. 1978), cert. denied, 439 U.S. 911, 99 S.Ct. 280, 58 L.Ed.2d 256; accord General Teamsters & Allied Workers Union No. 992 v. NLR......
  • N.L.R.B. v. Berger Transfer & Storage Co., No. 81-1239
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • May 13, 1982
    ...& Equipment Co., 626 F.2d 567 (7th Cir. 1980); Medline Industries, Inc. v. NLRB, 593 F.2d 788 (7th Cir. 1979); Electri-Flex Co. v. NLRB, 570 F.2d 1327 (7th Cir.), cert. denied, 439 U.S. 911, 99 S.Ct. 280, 58 L.Ed.2d 256 (1978). In the recent case of Kopack v. NLRB, 668 F.2d 946 (7th Cir. 19......
  • N.L.R.B. v. Sure-Tan, Inc., SURE-TA
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • February 26, 1982
    ...577 F.2d 649, 652 (9th Cir. 1978); see First Lakewood Associates v. NLRB, 582 F.2d 416, 420 (7th Cir. 1978); Electri-Flex Co. v. NLRB, 570 F.2d 1327, 1331-32 (7th Cir.), cert. denied, 439 U.S. 911, 99 S.Ct. 280, 58 L.Ed.2d 256 (1978). Surak's uncorroborated denials do not meet this Sure-Tan......
  • N.L.R.B. v. Rich's Precision Foundry, Inc., No. 81-1236
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • December 15, 1981
    ...discharge or layoff of employees was discriminatorily motivated. NLRB v. Gogin, 575 F.2d 596 (7th Cir. 1978); Electri-Flex Co. v. NLRB, 570 F.2d 1327 (7th Cir.), cert. denied, 439 U.S. 911, 99 S.Ct. 280, 58 L.Ed.2d 256 (1978). Motivation is a question of fact to be determined by the Board f......
  • Request a trial to view additional results
38 cases
  • N.L.R.B. v. Blake Const. Co., Inc., No. 80-1922
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • August 17, 1981
    ...v. NLRB, 416 F.2d 1126, 1134 n.12 (D.C.Cir.1969), cert. denied, 396 U.S. 903, 90 S.Ct. 216, 24 L.Ed.2d 179; Electri-Flex Co. v. NLRB, 570 F.2d 1327, 1335 (7th Cir. 1978), cert. denied, 439 U.S. 911, 99 S.Ct. 280, 58 L.Ed.2d 256; accord General Teamsters & Allied Workers Union No. 992 v.......
  • N.L.R.B. v. Berger Transfer & Storage Co., No. 81-1239
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • May 13, 1982
    ...Equipment Co., 626 F.2d 567 (7th Cir. 1980); Medline Industries, Inc. v. NLRB, 593 F.2d 788 (7th Cir. 1979); Electri-Flex Co. v. NLRB, 570 F.2d 1327 (7th Cir.), cert. denied, 439 U.S. 911, 99 S.Ct. 280, 58 L.Ed.2d 256 (1978). In the recent case of Kopack v. NLRB, 668 F.2d 946 (7th Cir. 1982......
  • N.L.R.B. v. Sure-Tan, Inc., SURE-TA
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • February 26, 1982
    ...577 F.2d 649, 652 (9th Cir. 1978); see First Lakewood Associates v. NLRB, 582 F.2d 416, 420 (7th Cir. 1978); Electri-Flex Co. v. NLRB, 570 F.2d 1327, 1331-32 (7th Cir.), cert. denied, 439 U.S. 911, 99 S.Ct. 280, 58 L.Ed.2d 256 (1978). Surak's uncorroborated denials do not meet this Sure-Tan......
  • N.L.R.B. v. Rich's Precision Foundry, Inc., No. 81-1236
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • December 15, 1981
    ...discharge or layoff of employees was discriminatorily motivated. NLRB v. Gogin, 575 F.2d 596 (7th Cir. 1978); Electri-Flex Co. v. NLRB, 570 F.2d 1327 (7th Cir.), cert. denied, 439 U.S. 911, 99 S.Ct. 280, 58 L.Ed.2d 256 (1978). Motivation is a question of fact to be determined by the Board f......
  • Request a trial to view additional results

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