Head Div., AMF, Inc. v. N.L.R.B.

• Decision Date: 13 March 1979
• Docket Number: No. 77-1243,I,AFL-CI,77-1243
• Citation: 593 F.2d 972
• Parties: 100 L.R.R.M. (BNA) 3035, 85 Lab.Cas. P 11,166 HEAD DIVISION, AMF, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Midwest Regional Joint Board, Amalgamated Clothing and Textile Workers Union,ntervenor.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 972

593 F.2d 972

100 L.R.R.M. (BNA) 3035, 85 Lab.Cas. P 11,166

HEAD DIVISION, AMF, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent and Midwest Regional Joint Board, Amalgamated Clothing and Textile Workers Union, AFL-CIO, Intervenor.

No. 77-1243.

United States Court of Appeals Tenth Circuit.

March 13, 1979.

Thomas W. Budd, Clifton, Budd, Burke & DeMaria, New York City (Hutchinson, Black, Hill, Buchanan & Cook, Boulder, Colo., on brief), for petitioner Head Division, AMF, Inc.

Bernard P. Jewler, Washington, D.C. (Robert G. Sewell and Howard F. Fine, Washington, D.C., on brief), for respondent N.L.R.B.

Ronald M. Willis, Chicago, Ill., for intervenor Midwest Regional Joint Board, Amalgamated Clothing and Textile Workers Union, AFL-CIO.

Before LEWIS, McKAY and LOGAN, Circuit Judges.

McKAY, Circuit Judge.

This case involves a petition for review of a National Labor Relations Board (NLRB) order and the NLRB's cross-application for enforcement of that order. ¹ That order adopted the NLRB Administrative Law Judge's disposition of the case except on one issue. ²

We will grant enforcement of the NLRB's order only if its findings which gave rise to that order are supported by substantial evidence in the record as a whole. Plasticrafts, Inc. v. N.L.R.B., 586 F.2d 185, 187 (10th Cir. 1978); N.L.R.B. v. Beech Aircraft Corp., 483 F.2d 51, 55 (10th Cir. 1973).

I.

The NLRB determined that petitioner, Head Division, AMF, Inc. (the Company), had violated Sections 8(a)(1) and (3) of the National Labor Relations Act (the Act). ³ The violations occurred at the Company's Boulder, Colorado, plant in 1975 during the Company's negotiation with the Midwest Regional Joint Board, Amalgamated Clothing Workers of America, AFL-CIO (the Union), which had won a representation election at the plant in August 1974. Three specific violations were found by the NLRB: the discharge of employee Mark Garber; the discharge of employee Robert Wright; and the Company's refusal to reinstate all strikers requesting reinstatement at the conclusion of an unfair labor practice strike staged at the Company's Boulder plant. We will review separately the NLRB's decision respecting each of these violations.

II.

Employee Mark Garber was discharged on January 6, 1975. The Company attributed his dismissal solely to his having kicked and dented a soft drink vending machine, citing Company policy against deliberate destruction of property. ⁴ It was alleged before the NLRB that his dismissal was an unfair labor practice, because the vending machine incident was merely a pretext offered by management for Garber's dismissal and his active union support was the actual cause for his termination. The NLRB's Administrative Law Judge determined that "while Garber's discharge is not above suspicion, the totality of circumstances indicate that it was provoked purely and simply by his insensate and destructive attack on the pop machine." Record, vol. 4, at 1798.

The NLRB itself, however, declined to adopt the Administrative Law Judge's recommended order as it related to Garber, finding instead that the reason given for Garber's discharge was pretextual. It did so without disturbing the Judge's credibility findings and on the basis of the same evidence which was before the Judge. From that evidence, however, it drew a contrary conclusion. In reaching its conclusion the NLRB relied chiefly on evidence that banging and kicking vending machines at the plant was commonplace, yet Garber was the only employee ever discharged for such conduct, and on evidence that the three employees previously discharged for property destruction had committed far more serious acts than Garber, such as product sabotage and knife throwing. The NLRB concluded that the real reason for the discharge was Garber's union activity consisting of: distributing pamphlets for the Union; speaking favorably of the Union to his fellow workers; making complaints about health conditions and repeatedly attempting to procure from management a copy of a government report which management was unable to produce that concluded, according to management, that there was no danger of dust inhalation at the plant; and telling a supervisor, in discussing the Union and the Company's response to unionization, that he thought the Company felt threatened by the Union and had for this reason removed previously existing employee benefits. ⁵

We are persuaded that the NLRB's decision was supported by substantial evidence and reasonable inferences drawn therefrom. We have indicated previously that the discharge of employees who are actively engaged in union affairs gives rise to an inference of impermissible, anti-union discrimination. E. g., N.L.R.B. v. Montgomery Ward & Co., 554 F.2d 996, 1002 (10th Cir. 1977); N.L.R.B. v. Glenn Berry Mfg., Inc., 422 F.2d 748, 751 (10th Cir. 1970). Anti-union discrimination need only be a partial motivation for the dismissal to find the dismissal unlawful. E. g., N.L.R.B. v. Montgomery Ward & Co., 554 F.2d at 1002. The employer's anti-union motive will, of necessity, generally be proven only by circumstantial evidence. Id.; Betts Baking Co. v. N.L.R.B., 380 F.2d 199, 204 (10th Cir. 1967).

In view of the fact that kicking and jostling the vending machine was a common practice among the employees, and that Garber was the only employee ever discharged for so doing without prior warning or attention to less extreme disciplinary sanctions the NLRB was not unreasonable in concluding that Garber was not discharged solely for kicking the vending machine. That conclusion is enhanced by the fact that while the Pepsi-Cola Bottling Company sent a serviceman to the plant following the incident, the record does not indicate repairs to the machine were necessary. The dent caused by Garber's kick, then, constituted a relatively minor infraction of the "no destruction of property" policy.

Nor is the inference of anti-union motivation dissipated by the fact that three prior instances of property damage characterized by the Company as the only prior violations of the policy resulted in termination of the employees involved. In one of those incidents the employee not only destroyed company property (punching three holes through plaster walls at the plant), but in addition made a false workmen's compensation claim. Both reasons were cited in support of his termination. In the second, an employee was terminated for sabotaging tennis rackets, rendering them scrap, and participating in an intentional work slowdown. Both reasons were given for the termination, which followed a written warning for absenteeism as well as a suspension for drinking on the Company premises. The notice of suspension contained a typed warning that it constituted "first and final written warning, that any future infractions of these company rules, by the employee will be cause for immediate termination." Record, vol. 3, at 1675. The third incident involved an employee who had previously been given a written warning concerning his behavior and who had threatened to sabotage tennis rackets. He was terminated for throwing several knives into the ceiling.

The record here, by contrast, indicates that Garber was given no warnings; no prior employment troubles were attributed to him; no other reason for termination co-existed with his denting the machine. The destruction in these earlier episodes was qualitatively worse than Garber's dent or resulted from action inherently more dangerous than Garber's kick. The NLRB could thus reasonably conclude that the termination of Garber was not just another instance of the Company's understandably harsh action against destroyers of company property and that the evidence offered by the Company did not dissipate the inference, arising from the evidence of Garber's extensive union activity, that his discharge was unlawful. Substantial evidence supports the NLRB's conclusion that Garber's discharge violated Sections 8(a)(3) and (1) of the Act and its order that he be reinstated with backpay is therefore granted enforcement.

III.

Employee Robert Wright was discharged from the Company in May of 1975. ⁶ The "principal reason" given for his discharge was violation of the Company's rule against "circulation or distribution of written material in working areas or on working time." Record, vol. 4, at 1784. The NLRB, adopting the recommendation of its Administrative Law Judge, found that Wright's discharge violated Sections 8(a)(3) and (1) of the Act because the Company had applied its "no distribution" rule unevenly.

The evidence relied on by the NLRB indicated that on May 7, 1975, while contract negotiations between the Union and the Company were in process, the Company made a plantwide distribution of a document indicating that a major decrease in the worldwide ski market and losses suffered by the Company's Boulder operation could lead to closing the Boulder plant. The document implied that raises being sought by the Union would further jeopardize the plant's ability to remain open. On the following day, Wright brought to the attention of several workers in his immediate area, three employees within a hundred feet of his work station, and a single mailroom employee, an article from the April 17, 1975, issue of Business Week magazine. The article stated that "the ski business is booming again" and quoted a ski company executive as saying "the industry looks healthy now." Record, vol. 3, at 1298. Wright pointed out to some of these employees the apparent conflict between the article and the document circulated by the Company. Wright's activity came to the attention of management, and he was discharged.

The NLRB noted that the Company had previously been found in violation of Section 8(a)(1) of the Act for disparate enforcement of its "no distribution" rule. See Midwest Regional Joint Board v. N.L.R.B., 183 U.S.App.D.C. 413, 425, 564 F.2d 434, 446 (1977) ("The Company countenanced...