Helena Laboratories Corp. v. N.L.R.B., 76-3077
| Decision Date | 22 August 1977 |
| Docket Number | No. 76-3077,76-3077 |
| Citation | 557 F.2d 1183 |
| Parties | 96 L.R.R.M. (BNA) 2101, 82 Lab.Cas. P 10,086 HELENA LABORATORIES CORPORATION, Petitioner-Cross Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross Petitioner. |
| Court | U.S. Court of Appeals — Fifth Circuit |
George E. Duncan, Beaumont, Tex., for petitioner-cross respondent.
Elliott Moore, Deputy Assoc. Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, John S. Irving, Gen. Counsel, Marion Griffin, Atty., Alan Banov, N.L.R.B., Washington, D. C., for respondent-cross petitioner.
Petition for Review and Cross Application for Enforcement of an Order of the National Labor Relations Board (Texas Case).
Before THORNBERRY, AINSWORTH and RONEY, Circuit Judges.
This matter is before us on the petition of Helena Laboratories Corporation to review and set aside an order of the National Labor Relations Board issued on June 26, 1976, and the cross-petition of the Board for enforcement. The Board held that the company violated Section 8(a)(1) of the National Labor Relations Act (29 U.S.C. § 151, et seq.) by coercively interrogating employees, promising benefits, threatening reprisals, forming an in-plant grievance committee to dissuade employees from supporting the Union and by interfering with employee witnesses and the Union's presentation of its case at a post-election hearing. The Board further found that the company violated Sections 8(a)(1) and (3) of the Act by discriminatorily denying wage increases to five employees and discharging employees Michael Coody, Lois Acker and Carol Dennis.
The company operates a factory in Beaumont, Texas, where it manufactures and repairs densitometers and other machines designed to assist in the laboratory analysis of body protein content. On November 14, 1974, pursuant to a petition of the Communications Workers of America, AFL-CIO, the Board conducted a representation election, resulting in 40 votes for the Union, 39 against it, and 9 challenged ballots. Upon the Union's objections alleging pre-election misconduct, a hearing was held on January 13-15, 1975. A recount of the votes showed 40 votes for the Union and 43 against it. The election was set aside and a second election on September 11, 1975 resulted in 48 votes for the Union, 46 against, and 8 challenged ballots. On October 14, 1976 the Union was certified as bargaining representative.
The unfair labor practice charges grow out of incidents occurring during the pre-election campaign, the January 1975 post-election representation hearing, and the subsequent discharge in February 1975 of three Union supporters, Coody, Acker and Dennis.
Without reweighing the evidence or making credibility choices, 1 we find substantial evidence to support the following incidents upon which the Board could have reasonably relied in concluding that the company was in violation of the Act.
The campaign for Union representation was initiated by Michael Coody. On October 1, 1974, he signed a Union authorization card from other employees. Eight days later Ovay Mayes, Vice President of the company, called Coody into his office and questioned him at length about these activities as well as difficulties Coody was having with his supervisor, Greg Thames. 2 Ralph Whitney, Production Manager, Ann Golias, Secretary-Treasurer and wife of President Tipton Golias, and Supervisor Thames later joined the group and continued to interrogate Coody along the same lines. Ann Golias informed Coody that a clause in the company's profit-sharing plan excluded Union members. The meeting lasted well beyond four hours. Several days later at an informal party given by an employee for the purpose of discussing Union membership benefits, Ann Golias, in response to criticism about the company's wage rates, volunteered the remark that "It is quite possible that certain employees have been overlooked in their evaluations and raises and we will take care of that immediately."
In the early part of September 1974 the company employed Betty Carter as a "lead person trainee." Employees were told that she would ultimately have authority to fire if the work was not done to her satisfaction. 3 Approximately two months later Carol Dennis was questioned by Betty Carter relative to a Union button she was wearing and pro-Union literature which she was reading. Dennis was an active Union supporter. She had signed a Union card, wore her Union button daily, and had distributed buttons to several employees. During the discussion between Carter and Dennis, Carter denounced Union organization and spoke of its alleged inevitable effects strikes, replacement of workers and loss of hospitalization benefits. On another occasion Carter told Dennis that if the Union was voted in everyone could be fired. This admonition was again repeated by Carter in the presence of Dennis two days before the election. At a pre-election meeting shortly thereafter, Carter informed President Golias that some of the girls had said they could not be fired for joining a union, to which he replied that he could fire anyone at any time. On the day of the election Carter asked Dennis if anything she had said regarding the Union had "sunk in." Dennis replied that it had but that she intended to vote for the Union regardless.
Lois Acker was another Union activist. She had signed a Union card and distributed several of them as well as pro-Union leaflets to employees. Acker was one of the three witnesses who testified for the Union at the representation hearing.
During the last week of the campaign Supervisors Thames and Sims attended a union-sponsored organizational meeting. The assembled employees were told by Sims that if the Union was voted in the company would contract out a large portion of its work and gradually phase out certain employees.
Following a suggestion previously made by Ann Golias and urged by Coody, President Golias approved the formation of an in-plant grievance committee approximately a week after the election. The company elected Jim Herod as Chairman and Coody and three others as representatives of departments. The committee was allowed to use company time to process grievances but its functions were limited as it was prohibited from discussing wages, salaries, holidays, sick leave benefits, profit sharing or insurance. As already indicated, the initial election precipitated a representation hearing held on January 13-15, 1975. Three days prior thereto President Golias asked Coody to drop all but one challenge and one objection. A discussion later ensued among President Golias, Coody and Herod relative to payment of these two employees during their attendance at the forthcoming hearing. Golias asked if the Union was going to pay for the time, to which Coody replied that he did not expect to be paid twice. Golias responded that if the employees kept their testimony "short and sweet" the company could afford to pay them for two or three hours as well as mileage. The subject was again brought up by Golias on the third day of the hearing when he told Coody, Herod and Acker, after they had testified at length to unfair practices of the company, that
Upon Coody's return to the plant on the final day of the hearing, after securing permission from his foreman, he went to another office to obtain the telephone number of a fellow employee recently discharged to determine whether a grievance complaint should be processed. There he met President Golias but the two men did not speak. When Coody returned to his work station he was given a written reprimand by Production Manager Whitney for using company time for personal business. When Coody pressed Whitney for an explanation, he was told that the reprimand was given under instructions of President Golias. The written reprimand was the first ever received by Coody. It contained the notation, "Will not reflect on performance review if corrective action is taken by the employee."
Shortly after the representation hearing, wage increases were given to all but five of the company's 80 to 100 employees. Among the five were Coody, Acker and Dennis. 4 Unsatisfactory job attitude was cited as a factor in denying all three wage increases. They were admonished to change their attitude or they would be discharged. Coody, Acker and Dennis were fired the following month. Coody and Acker were two of the three employees who testified for the Union at the representation hearing.
The company makes the following contentions in its petition for review:
1. Substantial evidence fails to support the finding that the discharges of Coody, Acker and Dennis were in violation of Sections 8(a)(1) and (3) of the Act.
2. The Board erred in finding that while Betty Carter, a lead lady, was not a supervisor, the company nevertheless was responsible for her statements on an agency theory.
3. That the bias and prejudice of the Administrative Law Judge caused the denial of administrative due process to the company.
The company contends that contrary to the Board's findings, the record shows that the discharges of Coody, Acker and Dennis were for cause. The Board inferred from the testimony that the alleged "causes" were pretexts.
While it has long been established that management is at liberty to discharge for good cause, bad cause, or no cause at all, there is one specific limitation on that privilege it may not discharge when the real motivating purpose is to do that which Section 8(a)(3) forbids. See N. L. R. B. v. McGahey, 5 Cir., 1956, 233 F.2d 406; N. L. R. B. v. Borden Company, 5 Cir., 1968, 392 F.2d 412; Boaz Spinning Company v. N. L. R. B., 5 Cir., 1968, 395 F.2d 512; N. L. R. B. v. Materials Transportation Company, 5 Cir., 196...
To continue reading
Request your trial
-
Superior Farming Co. v. Agricultural Labor Relations Bd.
...(See, e.g., N.L.R.B. v. Intern. Medication Systems, Ltd. (9th Cir.1981) 640 F.2d 1110, 1112, fn. 1; Helena Laboratories Corp. v. N.L.R.B. (5th Cir.1977) 557 F.2d 1183, 1187.) Nothing in Vista Verde or the federal cases relied upon in that opinion purports to place such a limitation on emplo......
-
N.L.R.B. v. ADCO Elec. Inc.
...or reweigh the evidence." NLRB v. Cal-Maine Farms, Inc., 998 F.2d 1336, 1339 (5th Cir.1993) (quoting Helena Laboratories Corp. v. NLRB, 557 F.2d 1183, 1187 (5th Cir.1977)). Instead, great deference is afforded the NLRB as to its credibility findings. NLRB v. Ryder/P.I.E. Nationwide, Inc., 8......
-
Chromalloy Min. and Minerals Alaska Div., Chromalloy American Corp. v. N.L.R.B.
...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 Th......
-
Monotech of Mississippi v. N.L.R.B.
...225 NLRB 257, 265 (1976) (employee accorded supervisory status where company held her out to employees as such), modified, 557 F.2d 1183, 1187 (5th Cir.1977), attending management meetings, NLRB v. Clark Manor Nursing Home Corp., 671 F.2d 657, 659 (1st Cir.1982); NLRB v. Koplin Bros. Co., 3......