Livingston Pipe & Tube, Inc. v. N.L.R.B.
| Decision Date | 02 March 1993 |
| Docket Number | Nos. 91-2939,91-3152,s. 91-2939 |
| Parties | 142 L.R.R.M. (BNA) 2694, 124 Lab.Cas. P 10,583 LIVINGSTON PIPE & TUBE, INCORPORATED, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LIVINGSTON PIPE & TUBE, INCORPORATED, Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Rick Verticchio (argued), Phelps, Kasten, Verticchio & Ruyle, Gillespie, IL, for Livingston Pipe & Tube Inc.
Charles P. Donnelly, Jr., Richard A. Cohen (argued), Marion L. Griffin, Contempt Litigation Branch, Aileen A. Armstrong, Appellate Court, Enforcement Litigation, Washington, DC, Joseph H. Solien, Kathie M. Grampp, N.L.R.B., St. Louis, MO, for N.L.R.B.
Before COFFEY and FLAUM, Circuit Judges, and WOOD, Jr., Senior Circuit Judge.
On July 24, 1991, the National Labor Relations Board ("the Board") found that Livingston Pipe & Tube, Inc. ("the Company") committed several unfair labor practices as defined by the National Labor Relations Act, 29 U.S.C. §§ 151-169 ("the Act"). Livingston v. Local 483, 303 N.L.R.B. No. 125, 1991 WL 148190 (N.L.R.B. July 24, 1991). The Company petitioned for review of the Board's Decision and Order ("the Order"), and the Board filed a cross-application seeking enforcement of the Order. We have jurisdiction to hear this appeal under 29 U.S.C. §§ 160(e) and (f). We grant the Board's cross-application for enforcement.
The Company processes, for non-retail sale, pipe and other related steel products at two locations in and near Staunton, Illinois. At all times relevant to this dispute, Mike Favre was the Company's owner and president; Bill Dittmar was operations manager; and Gary Buske and Stanley Pirok served as foremen. The Company's two facilities were manned by a total of 14 to 18 employees.
On March 25, 1988, Company employees met with a representative of Local 483 of the International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, AFL-CIO ("the Union"). At a March 30 meeting, several Company employees signed Union authorization cards 1 and were given Union buttons and stickers to wear and display at work. Alberic R. Vancauwelaert was one of the employees involved in these early organizational efforts.
On March 31, the Union filed a petition with the Board seeking a representation election, and the election was set for May 20, 1988. The next day, foreman Pirok questioned Vancauwelaert, who was wearing a Union badge, about why the employees were attempting to unionize and why they had not conferred with Company President Favre before launching their organizational drive. Vancauwelaert responded that he thought the Union "would better our environment at" the Company and that "Mike Favre would have fired us all for complaining." Around that same time, Pirok asked employee Michael L. Jarman why he was wearing a Union button and whether he supported the Union. Jarman replied that he supported the Union drive. Pirok then told Jarman that "the union wasn't worth it." Later in April, Pirok questioned Jarman about his presence at a Union organizing meeting in Mount Olive, Illinois.
On May 6, 1988, Company President Favre held a meeting with all Company employees and urged them not to support the Union organizing effort. After the meeting, Favre approached employee Jeffrey Hausman and told him that the union would do nothing "but cost you union dues every month." Favre also asked Hausman if he enjoyed attending "ball games." When Hausman answered yes, Favre said, "let me know in advance sometime and I will get you some tickets for you and your wife to go see a ball game."
On May 10, 1988, Pirok approached employee Darrell L. Hoffstot and asked him how he was planning to vote in the upcoming Union election. Hoffstot testified that he replied, On May 13, Favre met with Hoffstot and told him that a union was not necessary because in "six or seven months ... all these people would be working for me [Hoffstot]." Favre also told Hoffstot that it was not "too late" for the employees to halt their unionization drive. On May 18, Pirok approached employee Daniel W. Sexton and attempted to persuade him not to support the union effort.
On May 20, a majority of the Company employees voted to join the Union. 2 On June 21, operations manager Dittmar handed employee Jarman a letter informing him that he was discharged for excessive absenteeism and tardiness. The stated reason was that Jarman had been absent from work the day before. Jarman had been absent from work nine times in the previous ten months and had never been disciplined nor warned for excessive absenteeism. In 1987, Jarman had been suspended for two work days after failing to report for optional Saturday overtime work after volunteering for the work.
On July 15, employee Vancauwelaert telephoned his supervisor Buske to tell him that he was going to be absent that day. On July 18, Pirok handed Vancauwelaert a memorandum informing him that he was being suspended for two work days for excessive absenteeism. The memorandum also warned that the "next unexcused absence, or any evidence of [a] pattern [of] absences, excused or unexcused, will result in the termination of your employment from Livingston Pipe." Vancauwelaert had been absent 15 1/2 days during his one year with the Company, but had never been informed that his record was unacceptable. On September 19, Vancauwelaert called the Company yard to inform Buske that he could not report that day because his wife was ill and "I needed to have her looked at and I [don't] want to leave her by herself." At around 4 p.m., Vancauwelaert arrived at the Company yard to pick up his check. Pirok handed him a letter informing him that he was terminated for being "in violation of an absenteeism code." The letter referred to prior warnings about absenteeism and to Vancauwelaert's July suspension.
On September 29, employee Hausman reported for work 45 minutes late. Later in the day, he was given a memorandum from Pirok informing him that he was suspended from work for 30 days. The memorandum stated that Hausman had been suspended for two days in 1987 for failing to report for Saturday overtime work after volunteering for the work. The memorandum also noted that Hausman had been absent from work 5 1/2 days during 1988 and had been tardy twice.
Sexton was one of the Company's most senior employees with 6 1/2 years of service. In late 1986 or early 1987, Sexton had an accident while operating a forklift that caused $2,000 in damages to the machine. No action was taken against him following that incident. On May 23, 1988, 3 days after serving as the Union's observer at the election, Sexton accidently bumped his forklift against a "scrap tub", resulting in $25 in damage and delaying operations at the yard for 90 minutes. He was warned by operations manager Dittmar to be more careful. On May 24, Sexton was handed a letter signed by Dittmar which warned that "any further acts of carelessness/recklessness will result in significant discipline, up to and including termination, depending upon the seriousness of the incident." Five months later, on October 27, Sexton was steering his loaded forklift in rainy conditions down an incline through a warehouse door. Sexton's undisputed testimony was that the forklift brakes failed, and the machine skidded into the right side of the doorway frame, pushing it slightly out of alignment. The warehouse was already in a dilapidated condition and, with no supervisors on site, Sexton did not report the incident. Three workdays later, on November 2, Buske asked Sexton about the incident and why he had not reported it to him either the day it happened or the following day. Sexton replied that Buske was "nowhere to be found" when the accident occurred and that the following day, "I didn't see you much...." Later that day, Pirok handed Sexton a letter stating that he was terminated for his "irresponsible behavior" in the forklift accident and his failure to report the accident. Sexton complained that the accident was caused by brake failure and that he had reported the problem to the Company mechanic who was "dumping brake fluid in them about every other day and the brakes just wouldn't hold 100 percent." Pirok indicated that the termination would not be reconsidered.
The Union charged the Company with numerous violations of the Act. The Board, upholding the decision of an administrative law judge, found that the Company had coercively interrogated employees about their union sympathies, promised them benefits during a union campaign, implied that selection of a union would be futile, created the impression that the employees' union activities were under surveillance, and attempted to induce an employee to solicit his co-workers to withdraw their signed union authorization cards. The Board found that all these actions were in violation of Section 8(a)(1) of the Act, 29 U.S.C. § 158(a)(1), which makes it an unfair labor practice "for an employer to interfere with, restrain, or coerce employees in the exercise of" their Section 7, 29 U.S.C. § 157, rights to "self-organization, to form, join, or assist labor organizations...." The Board also found that the Company violated Sections 8(a)(3) and (1) of the Act, 29 U.S.C. §§ 158(a)(3) and (1), by discharging three employees and suspending a fourth in retaliation for their union activities. Section 8(a)(3) makes it an unfair labor practice for an employer to discriminate "in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization." Finally, the Board found that the Company violated ...
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