M.S.P. Industries, Inc. v. N.L.R.B.
| Decision Date | 23 December 1977 |
| Docket Number | No. 76-1100,C,No. 276,AFL-CI,276,76-1100 |
| Citation | 568 F.2d 166 |
| Parties | 97 L.R.R.M. (BNA) 2403, 82 Lab.Cas. P 10,263 M. S. P. INDUSTRIES, INC., d/b/a the Larimer Press, Petitioner, and Graphic Arts International Union, Localross-Petitioner, and Intervenor, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Tenth Circuit |
James E. Hautzinger, Denver, Colo. (Charles W. Newcom of Dawson, Nagel, Sherman & Howard, Denver, Colo., on the brief), for petitioner.
Andrew F. Tranovich, Atty., N. L. R. B., Washington, D. C. (John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Carl L. Taylor, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, N. L. R. B., Washington, D. C., on the brief), for respondent.
Peggy A. Hillman, Chicago, Ill. (Irving M. King, and Cotton, Watt, Jones, King & Bowlus, Chicago, Ill., of counsel, on the brief), for cross-petitioner and intervenor.
Before SETH, Chief Judge, HOLLOWAY, Circuit Judge, and CHILSON, District Judge. *
Petitioner M.S.P. Industries, Inc. (MSP), seeks review and modification of an order of the National Labor Relations Board, reported at 222 NLRB No. 29, which found MSP had committed unfair labor practices within the meaning of §§ 8(a)(1) and (3) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1) and (3) (1970) (). The Board ordered MSP to offer reinstatement to two discharged employees and awarded those employees, as well as three others, back pay. It also ordered MSP to cease and desist from the unlawful practices and to post the usual notices.
Graphic Arts International Union, Local No. 276, AFL-CIO (the Union), intervened with respect to MSP's petition and also cross-petitioned for review of that part of the Board's decision which declined to issue an order requiring MSP to bargain with the Union. The Board filed a cross-application for enforcement of its order pursuant to § 10(e) of the Act, 29 U.S.C. § 160(e) (1970).
MSP, a Colorado corporation, maintains its place of business in Denver, Colorado, where it is engaged in general commercial printing as "The Larimer Press." MSP's highest managerial official is Ray Scott who operates as an advisor to the Board of Directors, but has no official title. (R. 25). Roger Johnson, the general manager, reports directly to Scott. Benjamin Ewing is the plant superintendent. It is conceded that all these persons were supervisors within the meaning of Section 2(11) of the Act, 29 U.S.C. § 152(11) (1970).
MSP's production operations are organized into departments. Copy delivered by a customer is processed into a "camera-ready" form in the Art Department. From the Art Department work proceeds to the Preparatory Department which has three basic functions: first, negatives are produced by the camera; second, the negatives are "stripped" into proper position on a mask; third, the negatives are used in the preparation of plates for use on the presses. These plates are then taken to the Press Department where they are put on one of the company's five presses to produce the desired numbers of the printed product. Printed materials are then sent to the Bindery and Delivery Department where production is completed and the finished product delivered to the customer.
The facts stated above are undisputed. In our discussion which follows some of the facts are in sharp dispute. We state them as found by the administrative law judge and the Board or as indicated by some record evidence tending to support the findings. We note the major conflicts in the evidence.
The Union filed a representation petition on September 17, 1974, and on October 15, 1974, the parties entered into a Stipulation for Certification upon Consent Election, with the election scheduled for November 15, 1974. Thereafter, MSP held a series of preelection meetings with its employees during which Scott or Johnson told the employees that there had never been a layoff or a reduction in hours of work at MSP, even when production work was not available. 1 On November 7, a week before the election, Scott sent a letter to the company's employees in which he re-emphasized MSP's no-layoff policy (R. 40-41):
Your work at the Larimer Press is steady. There has NEVER been a layoff in the history of the Company over 7 years! Ask any member of the Union whether they have been kept on the payroll full time. When we have been short of work in the plant, rather than lay off, pressmen have worked in the bindery employees from all departments have been given fill work sometimes painting, etc., so they would receive a full week's pay at no reduction in their regular rate of pay! The union will not permit this!
(R. 1693, G.C.Ex. 24) (Emphasis in original). Scott reaffirmed this no-layoff policy in various discussions with individual employees prior to the election. (R. 110-11, 562-63).
The election was held at the company between 4:00 and 5:00 p. m. on November 15. There were 15 votes in favor of the Union and 6 against, with 8 ballots challenged. 2 (R. 16-17). Shortly after the election was over and the results announced, at about 5:15 or 5:30 p. m. the same day, Scott called a meeting of the company's management and decided 3 to lay off some employees on Monday, November 18. (R. 1008, 1037).
On Monday morning, the first regular working day after the election, Scott, accompanied by Johnson and Ewing, ordered each employee arriving at work to proceed directly to the employee's work station. (R. 302, 530, 565).
Soon afterwards, Scott, Johnson and Ewing went to each work station where Scott, using a document prepared by Johnson after the election, told each employee that: (1) they would not be permitted to leave their work stations, except in connection with their duties; (2) they were not to engage in personal conversation among themselves unrelated to their work; (3) they would be required to eat their lunches in the company lunchroom; (4) the lunch period would thereafter be staggered; (5) they would be required to punch out on completing the last job of the day and call in each day to ascertain whether there would be work for them the following day; and (6) the company was discontinuing its policy of providing free coffee for employees. 4 Scott also said that violation of any of these rules would subject the employee to dismissal. After this announcement Scott and Ewing placed Gonzalo Botello, John Filben, Henry Erlacher, Rafael Gonzalez and Rodney Olguin on an intermittent layoff status, stating that they would be notified or should call in to find out when work was available.
Botello, a stripper in the Preparatory Department, was informed by Ewing that he was being "temporarily laid off." (R. 386). Since Botello did not have a telephone at this time, Ewing instructed him to call in each day to see whether there was work for him. Botello testified that in a conversation with Scott later in the day, Botello was told: ". . . you brought this upon yourself." (R. 387); that when Botello asked how he had done this, Scott responded: "You voted for the Union." (R. 387); that Botello denied voting for the Union but Scott stated that he didn't believe him. (R. 387). Scott contradicted this testimony. 5 Botello remained out of work until November 21. He worked 16 hours in the week ending November 29 but was permanently laid off on December 2. (R. 388). On February 7, 1975, Johnson called Botello to offer him work but he declined the offer. (R. 389-90).
Filben, the company's only platemaker, was told to confine his work exclusively to platemaking, even though normally he also performed other tasks. He was also told to punch out when there was no such work to be done. (R. 114-15). Filben continued working part-time from November 18 to December 2, when Ewing notified him that MSP had no further need for a full-time platemaker and that his job was being eliminated. (R. 118-19).
Erlacher, MSP's only cameraman, was escorted by Scott to his work station when he reported for work and was ordered not to leave the work area and to refrain from conversations with other employees on pain of discharge. (R. 242-43). About an hour and a half later, Ewing ordered Erlacher to clock out and told him to call the plant every evening thereafter to ascertain whether there would be work for him the following day. Between November 18, 1974 and late February, 1975, Erlacher worked intermittently for the company. (R. 1652, G.C.Ex. 10). Since February 18, 1975, by arrangement with Johnson, Erlacher has not been required to call in on a daily basis and has been working at least forty hours a week. (R. 261).
When Gonzalez, a stripper, reported for work on the evening shift on November 18, Ewing told him that the night shift had been eliminated and that he should return to work the next day on the day shift. (R. 420-21). Meanwhile, another stripper who had previously tendered his resignation changed his mind. When Gonzalez reported for work on November 19 as ordered, Ewing informed him that there was no work for him since the other stripper was not leaving. (R. 421). Ewing did suggest that he call in each evening to inquire whether work would be available for him the following day. Gonzalez complied with this request but it was not until the first week of February, 1975, that Johnson told him that there was work available. (R. 424-26).
During the morning of November 18, Olguin, a pressman, told Ewing that the announcement by Scott was "all wrong". A few minutes later, Scott approached Olguin and asked him what was wrong with the working conditions and asked Olguin: "why did they vote the union in?". (R. 305-06). Olguin...
To continue reading
Request your trial
-
San Clemente Ranch, Ltd. v. Agricultural Labor Relations Bd.
...of an employee's union activity is a factor going to the employer's motive in acting against the employee. (M.S.P. Industries, Inc. v. N.L.R.B. (10th Cir.1977) 568 F.2d 166, 176.) Cases such as this are often said to present problems of multiple motives: anti-union animus, and the meting ou......
-
Aguinaga v. United Food and Commercial Workers Intern. Union
...fair representation had occurred, see id.; NLRB v. C.R. Adams Trucking, Inc., 767 F.2d 1276, 1277 (8th Cir.1985); M.S.P. Indus., Inc. v. NLRB, 568 F.2d 166, 180 (10th Cir.1977), and the defendant has a right to present such evidence in defending a claim for damages. M.S.P. Indus., 568 F.2d ......
-
N.L.R.B. v. Rich's Precision Foundry, Inc.
...Inc. v. NLRB, 330 F.2d 603 (2d Cir. 1964); NLRB v. Tesoro Petroleum Corp., 431 F.2d 95 (9th Cir. 1970); M. S. P. Industries, Inc. v. NLRB, 568 F.2d 166 (10th Cir. 1977). Our holding on this very issue is a very limited one. Only when, as here, a directly foreseeable layoff would not have oc......
-
Trustees of Forbes Library v. Labor Relations Commission
...motivated "even in part" by unlawful sentiments. See, e. g., NLRB v. Gogin, 575 F.2d 596, 601 (7th Cir. 1978); M.S.P. Indus., Inc. v. NLRB, 568 F.2d 166, 173-174 (10th Cir. 1977); NLRB v. Jamestown Sterling Corp., 211 F.2d 725, 726 (2d Cir. 1954). 2 If a court applying this test discerns an......
-
A Reexamination of the Role of Employer Motive Under Sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act
...(7th Cir. 1978) (discharge); Ham-bre Hombre Enter., Inc. v. NLRB, 581 F.2d 204 (9th Cir. 1978) (discharge); M.S.P. Indus., Inc. v. NLRB, 568 F.2d 166 (10th Cir. 1977) (discharge). 162. See, e.g., Edgewood Nursing Center, Inc. v. NLRB, 581 F.2d 363, 368 (3d Cir. 1978); Bandag, Inc. v. NLRB, ......