Kopack v. N.L.R.B.
| Decision Date | 15 January 1982 |
| Docket Number | No. 80-1783,80-1783 |
| Parties | 109 L.R.R.M. (BNA) 2483, 92 Lab.Cas. P 13,194 Edward KOPACK, Sr. and Edward Kopack, Jr., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Vogt-Conant Co., Intervenor-Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Larry Sanders, Law Student, Notre Dame, Ind., for petitioners.
James D. Donathen, Elliott Moore, N.L.R.B., Washington, D. C., for respondent.
Before PELL and CUDAHY, Circuit Judges, and CAMPBELL, Senior District Judge. *
Edward Kopack, Sr. and Edward Kopack, Jr. petition for review of an order of the National Labor Relations Board (NLRB or Board) dismissing certain allegations of a complaint they filed against Vogt-Conant Co. (Company). On March 17, 1980, the NLRB found the evidence insufficient to conclude that the Company dismissed Kopack Jr. and Kopack Sr. in retaliation for the son's complaints about lack of overtime pay.
Overruling the decision of the Administrative Law Judge (ALJ), the Board found the discharges not in violation of sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1) and (3) (1976) (Act). At issue in this petition is whether there is substantial evidence in the record as a whole to support the conclusion of the Board. Critical to the question is the determination to what extent the ALJ relied on witness "credibility," as that term was used by the Supreme Court in Universal Camera Corp. v. NLRB, 340 U.S. 474, 496, 71 S.Ct. 456, 468, 95 L.Ed. 456 (1951).
Vogt-Conant Co. was under contract to Inland Steel Co. (Inland) to perform maintenance and construction work at Inland's East Chicago facility. Charles Cowles, the job superintendent, was the highest ranking Company official at the site. Raymond Chandler was his assistant. Inland's field force engineers oversaw the Company's operations on Inland's premises.
Kopack Jr. was hired by Cowles as a truckdriver at the Inland site in 1973. He had previously worked for Cowles at another company and the two had become friends. In 1976, Cowles gave Kopack Jr. a raise of twenty-five cents per hour above union scale because Kopack Jr. performed additional duties such as helping coordinate work and keeping Cowles advised as to the condition of equipment.
One of Kopack Jr.'s regular duties was to drive employees from the parking lot to the worksites in a company bus. During 1976 and 1977, employees complained to the foremen and union stewards about Kopack's driving. They claimed that he speeded, ran stop signs, and tried to beat trains across intersections. Most of the complaints were communicated to Chandler, who then reprimanded Kopack Jr. During the same period, Inland complained on three occasions about Kopack Jr.'s driving. Kopack Jr. received tickets from Inland personnel for speeding and passing a bus while it was unloading passengers. He was also observed by an Inland official going through a stop sign. On each occasion, Cowles told Kopack Jr. that he would have to obey Inland's traffic regulations.
The Company presented evidence that, in 1978, Inland complained about Kopack Jr.'s driving five times in five months. Of particular importance is an incident that occurred on January 11, 1978. Dick Wisnewski, Inland's assistant supervisor of field forces, saw Kopack Jr. driving the Company bus the wrong way on a one-way street at a high rate of speed. Following this incident, Wisnewski talked to both Cowles and Chandler, telling Cowles that if his drivers could not obey the traffic regulations, he should get new drivers. Wisnewski had the authority to cancel Inland's contract with the Company. Cowles testified that he reprimanded Kopack Jr., who assured him that the incident would not be repeated. Kopack Jr. testified that he did not remember Cowles' telling him of Wisnewski's anger over the infraction. He also claimed that it was Wisnewski who had been going the wrong way. Both the ALJ and the Board discredited Kopack Jr.'s testimony on this point.
Inland complained about Kopack Jr.'s driving twice during February, 1978, and once in late April. On May 9, 1978, Joe Ladd, an Inland field force engineer met with Cowles. He reported that Kopack Jr. had nearly caused an accident and asked Cowles to get a different driver for the area supervised by Ladd. Cowles then discussed the incident with Chandler, implying that Cowles' friendship with Kopack Jr. should not keep Chandler from discharging Kopack Jr. if the reckless driving continued.
On June 1, 1978, Chandler saw Kopack Jr. speeding and, according to Chandler's testimony, warned him that continued reckless driving could lead to discharge. Kopack Jr. remembered discussion of the infraction but not the warning. He further claimed that he had not been speeding. The ALJ did not resolve this conflict in testimony. On June 7, 1978, Chandler again saw Kopack Jr. speeding and failing to stop at stop signs. At the end of the day's shift, Chandler discharged Kopack Jr. According to Chandler, Kopack Jr. did not protest the dismissal; he did not even ask Chandler to explain his reasons therefor. Kopack Jr. however claimed that he did ask whether he was being fired or laid off and Chandler replied that he did not want to discuss it. The ALJ's decision implies that he credited Kopack Jr.'s testimony over that of Chandler insofar as Kopack Jr. contended that he questioned Chandler. The ALJ did not refer to the demeanor of either witness in this portion of his opinion. As Kopack Jr. left the site, he saw Cowles, who was apparently unaware of the discharge. Kopack Jr. shook hands with Cowles but did not mention his termination.
In April, 1978, the Company made two changes which affected Kopack Jr.'s earnings. Company vice-president Graves ordered that Kopack Jr. be paid no more than the union scale. During the previous year, Kopack Jr. had stopped performing the additional duties which had resulted in the premium pay. After Kopack Jr. complained to both Cowles and Graves, the premium pay was restored. During the same month, the Company quit paying drivers who operated the Company bus at the beginning and end of a twelve-hour shift for the extra time their duties required. This change was made because Inland interpreted the collective-bargaining agreement as not requiring the extra pay. Kopack Jr. also discussed this change with both Graves and Cowles. Graves told him that Inland's interpretation was binding because Inland paid the Company on a cost-plus basis.
Kopack Jr. then complained to the union about the loss of bus time. Tyrka, the union business agent, disagreed with Kopack Jr.'s interpretation of the collective bargaining agreement. Tyrka told Kopack Jr. that if he did not like the job he should quit. Because Kopack Jr. still was not convinced, Cowles invited Tyrka to the job site on May 15, 1978. Tyrka said that the Company and Inland were correct and, further, that Kopack Jr. should not be receiving the twenty-five cents per hour above union scale. The Company nonetheless continued the premium pay. Kopack Jr. still was not satisfied but Cowles refused to pay the drivers for bus time unless Kopack Jr. obtained from Inland a written guarantee that Inland would reimburse the Company. According to Kopack Jr.'s testimony, a day or two later, he complained to Chandler about the bus time. Chandler allegedly told him to "shut his mouth" about bus time unless he wanted Cowles and Tyrka to get rid of him. After this conversation in mid-May, Kopack Jr. did not complain again about bus time. Chandler testified that he did not think Kopack Jr. talked to him about bus time after May 15, 1978, when the meeting with Tyrka was held. Chandler denied having told Kopack Jr. to keep his mouth shut. The ALJ credited Kopack Jr. on this point and the Board adopted the ALJ's finding.
Kopack Sr. began working for the Company in August, 1977, as a truck driver. He had twenty-five years experience as a driver. Kopack Sr. drove a variety of trucks for the Company, driving a semi-tractor about twenty-five percent of the time. Occasionally he was laid off for lack of work.
On June 6, 1978, 1 Kopack Sr. was assigned to a semi-tractor with a large flatbed trailer. He had difficulty backing the trailer into a narrow space. Gerald Coffey, the Company's ironworker foreman, was upset at the length of time it took Kopack Sr. to complete the backing operation. That afternoon Coffey told Chandler that he would prefer a driver other than Kopack Sr. At the end of the shift, Chandler laid off Kopack Sr., telling him that he had no more work for him but that his previous work had been good. Chandler had been informed, however, of a new job to begin just a few days later. A new driver had been hired the day before Kopack Sr. was laid off and on July 26, 1978, a second new driver was hired. Kopack Sr. was not recalled. 2
Kopack Jr. filed an unfair labor practice charge against the Company on June 8 1978. Kopack Sr. filed a similar charge three days later. A consolidated complaint was issued on July 21, 1978, alleging that the discharges were violative of sections 8(a)(1) and 8(a)(3). Additionally, the complaint alleged that several threats were made to Kopack Sr. in violation of section 8(a)(1).
After a two-day hearing, the ALJ found that Chandler violated section 8(a)(1) when he told Kopack to "shut his mouth" about bus time unless he wanted to be fired. The ALJ also found that the Company's reasons for the discharges were pretextual. In the view of the ALJ, the Company had tolerated Kopack Jr.'s reckless driving habits so long that its "sudden concern" with his recklessness was not persuasive as the explanation for his discharge. According to the ALJ, the real reason for the discharge was Kopack Jr.'s complaints about the loss of bus...
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