Justak Bros. and Co., Inc. v. N.L.R.B., 81-1132

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtBefore SWYGERT, Senior Circuit Judge, and SPRECHER and BAUER; SWYGERT
Citation664 F.2d 1074
Parties108 L.R.R.M. (BNA) 3178, 92 Lab.Cas. P 13,133, 9 Fed. R. Evid. Serv. 1373 JUSTAK BROTHERS AND COMPANY, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Laborers Local Union 41, Laborers International Union of North America, and State of Indiana District Council, Laborers International Union of North America, Party Respondents.
Docket NumberNo. 81-1132,81-1132
Decision Date25 November 1981

Griffin B. Bell, Jr., Atlanta, Ga., for petitioner.

James Y. Callear, N. L. R. B., Washington, D. C., for respondent.

Before SWYGERT, Senior Circuit Judge, and SPRECHER and BAUER, Circuit Judges.

SWYGERT, Senior Circuit Judge.

Justak Brothers and Company, Inc. (hereinafter "the Company") has petitioned this court for review of an order of the National Labor Relations Board (hereinafter "the Board") pursuant to section 10(f) of the National Labor Relations Act, as amended, 29 U.S.C. §§ 151 et seq. (hereinafter "the Act"), 29 U.S.C. § 160(f). The Board has cross-applied for enforcement of its order pursuant to section 10(e) of the Act. Laborers Local Union 41, Laborers International Union of North America (hereinafter "the Union") intervened in this proceeding.

The Company supplies casual labor and vacuum truck waste removal services to industrial plants. Its work force consists of office employees, mechanics and mechanics' helpers, truck drivers, and laborers. In June 1979 the Union began an organizing campaign among the Company's laborers and truck drivers. On July 2 the Union filed a petition with the Board seeking an election at the Company. On July 12 the Company received the Union's request for bargaining. On July 23 the Union filed an unfair labor practice charge against the Company.

On September 28 the Board issued a complaint alleging that the Company (1) violated section 8(a)(1) by threatening and interrogating employees, promising and granting benefits to employees, and creating an impression of surveillance; (2) violated sections 8(a)(3) and (1) by discharging three employees; and (3) violated sections 8(a)(5) and (1) by refusing to bargain with the Union. After a hearing in December the Administrative Law Judge issued a decision on June 30, 1980 that sustained the allegations. On January 7, 1981 the Board affirmed the Administrative Law Judge's findings and conclusions. It adopted the recommended order that included the issuance of a Gissel-type bargaining order. The Company then filed this petition for review.

We review three issues. First, whether there is substantial evidence on the record as a whole to support the Board's finding that the Company violated section 8(a)(1) of the Act by restraining the coercing employees in the exercise of their section 7 rights. Second, whether there is substantial evidence on the record as a whole to support the Board's finding that the Company violated sections 8(a)(3) and (1) of the Act by discharging three employees because of their union activities. Third, whether the Board abused its discretion in finding a bargaining order necessary to remedy the Company's violations of sections 8(a)(5) and (1) of the Act of refusing to recognize and bargain with the Union.

I. The Independent Section 8(a)(1) Violations

The Company does not challenge the independent section 8(a)(1) violations. The provisions of the Board's order relating to these violations, therefore, are enforced. A discussion of these unfair labor practices is necessary, however, because their scope and nature are important factors in determining whether the Board properly issued a bargaining order. (See section III infra.)

In June 1979 the Union began an organizing campaign among the Company's laborers and truck drivers. On June 26 the Union held an organizational meeting where many of the Company's employees presented signed authorization cards to the Union representatives.

The Company's section 8(a)(1) violations began the next day. All of the Company's management, from owner Gary Justak to lower level supervisors, 1 committed these unfair labor practices. The violations fall into six categories: (1) threatening employees with discharge or layoff; (2) threatening employees with investigations and deportations by Immigration and Naturalization Service authorities; (3) creating the impression of surveillance of union activities; (4) interrogating employees about union activities; (5) promising better wages and medical coverage to thwart union organization; and (6) actually granting wage increases to thwart union organization.

II. Sections 8(a)(3) and 8(a)(1) Violations
A. Applicable Law

Section 8(a)(3) of the Act makes it an unfair labor practice for an employer to discriminate against an employee "in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization...." An employer violates section 8(a)(3) when it discharges an employee because of his union activities.

The critical issue in a section 8(a)(3) claim is whether the employer's actions were motivated by anti-union considerations. NLRB v. Gogin, 575 F.2d 596, 601 (7th Cir. 1978); Jay's Foods, Inc. v. NLRB, 573 F.2d 438, 443 (7th Cir. 1978), cert. denied, 439 U.S. 859, 99 S.Ct. 176, 58 L.Ed.2d 167 (1978). Because motive is rarely open to direct proof, it is "to be determined by the Board from consideration of all the evidence and in making its determination the Board is free to rely on circumstantial, as well as direct evidence." NLRB v. Gogin, 575 F.2d at 601.

This court recently approved the Board's refinement of the analysis used to determine the causal relationship between the employee's protected activities and the employer's action. Peavey Co. v. NLRB, 648 F.2d 460 (7th Cir. 1981). Under this analysis:

The General Counsel must first make a prima facie showing that the employee's protected conduct was a motivating factor in the employer's decision to discharge the employee. Once this is established, the burden shifts to the employer to demonstrate that he would have discharged the employee even in the absence of the protected conduct.

Peavey Co. v. NLRB, 648 F.2d at 461 (7th Cir. 1981). See Statler Industries, Inc. v. NLRB, 644 F.2d 902, 905 (1st Cir. 1981). If a causal relationship between the discharge and the protected activity is shown then the employer is liable unless he sustains his burden of proof. Furthermore, an employer's explanation need not be accepted if there is a reasonable basis for believing it "furnished the excuse rather than the reason for (an employer's) retaliatory action." NLRB v. Thor Power Tool Co., 351 F.2d 584, 587 (7th Cir. 1965).

As noted, Company officials made numerous unlawful threats of discharge, layoff, plant shutdown, and deportation as soon as they became aware of the Union's organizational campaign. (See section I supra.) This court has held repeatedly that the employer's conduct and anti-union animus are significant factors in determining motive. NLRB v. Gogin, 575 F.2d 596, 601-02; NLRB v. Tom Wood Pontiac, Inc., 447 F.2d 383, 386 (7th Cir. 1971); NLRB v. Bedford Nugent Corp., 379 F.2d 528, 529 (7th Cir. 1967).

Finally, this court "may not displace the Board's choice between two fairly conflicting views (of the evidence), 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. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951). See W. W. Grainger, Inc. v. NLRB, 582 F.2d 1118, 1120-21 (7th Cir. 1978). We will not pass on the credibility of witnesses, reweigh the evidence, or reject reasonable Board inferences simply because other inferences might also be reasonably drawn. NLRB v. Walton Mfg. Co., 369 U.S. 404, 405, 82 S.Ct. 853, 854, 7 L.Ed.2d 829 (1962).

B. Illegal Discharges

On the morning of June 28, three truck drivers-Thomas Waugaman, David Clousing, and Eric Myers-signed union authorization cards. Waugaman and Clousing also solicited cards from other drivers.

1. Waugaman's discharge

The Company threatened to discharge Thomas Waugaman. Justak (the owner) told him, "You may get a union in here but you will not be here." Kritch told Clousing that Waugaman "was on his way out." On June 29, the day before Waugaman's alleged misconduct that was the ostensible basis for his discharge, Kritch told Waugaman that he would try to "get him" for work related infractions.

On June 30, the Company asserts that Waugaman failed to respond when paged. The credited testimony shows, however, that: (1) Waugaman was called in and worked most of Saturday; (2) he was told he could leave by the job site supervisor; (3) the supervisor said that he would telephone the Company and have Waugaman paged if he was needed further; and (4) Waugaman was not paged that day to return to the job site.

The Company relies on discredited testimony without showing exceptional circumstances that warrant overturning the Administrative Law Judge's credibility resolutions. See NLRB v. Pittsburgh S. S. Co., 337 U.S. 656, 659-60, 69 S.Ct. 1283, 1285-86, 93 L.Ed. 1602 (1949); Electri-Flex Co. v. NLRB, 570 F.2d 1327, 1331-32 (7th Cir. 1978), cert. denied, 439 U.S. 911, 99 S.Ct. 280, 58 L.Ed.2d 256. For example, the Company claims that Waugaman lied to the job site supervisor on June 30 by telling him that his shift had ended. The Company, however, never called the supervisor as a witness to rebut Waugaman's uncontradicted testimony that the supervisor told Waugaman he could leave. Cf. International Union, UAW v. NLRB, 459 F.2d 1329, 1336-39 (D.C.Cir.1972).

The Board's finding that Waugaman was discharged for anti-union reasons had substantial support in the record.

2. Clousing's discharge

Clousing too was threatened. He was warned of a plant shutdown, told he was being fired for soliciting cards, and rehired on the condition he destroy the cards that he had in his possession.

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