Midwest Regional Joint Bd., Amalgamated Clothing Workers of America, AFL-CIO v. N.L.R.B.
| Decision Date | 24 June 1977 |
| Docket Number | AFL-CI,P,Nos. 76-1067 and 76-1198,s. 76-1067 and 76-1198 |
| Citation | 183 U.S.App.D.C. 413,564 F.2d 434 |
| Parties | 95 L.R.R.M. (BNA) 2821, 183 U.S.App.D.C. 413, 81 Lab.Cas. P 13,287 MIDWEST REGIONAL JOINT BOARD, AMALGAMATED CLOTHING WORKERS OF AMERICA,etitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, AMF Head Division of AMF, Inc., Intervenor. AMF HEAD DIVISION OF AMF, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Midwest Regional Joint Board, Intervenor. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Vivian I. Schorman, New York City, for petitioner in No. 76-1067. Arthur M. Goldberg, Washington, D.C., was on the brief for petitioner in No. 76-1067.
William H. Emer, Los Angeles, Cal., for petitioner in No. 76-1198 and intervenor in No. 76-1067.
Jay E. Shanklin, Atty., N.L.R.B., Washington, D.C., with whom John S. Irving, Gen. Counsel, Carl L. Taylor, Associate Gen. Counsel, and Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., Washington, D.C., were on the brief, for respondent.
Before TAMM and MacKINNON, Circuit Judges, and OLIVER GASCH, * U. S. District Judge for the District of Columbia.
Opinion for the Court filed by TAMM, Circuit Judge.
This case arises from an order 1 of the National Labor Relations Board (Board) affirming the decision 2 of an Administrative Law Judge (ALJ) that the AMF Head Division of AMF, Inc. (hereinafter "the Company") violated sections 8(a)(1) and (3) of the National Labor Relations Act, 29 U.S.C. § 151 et seq. (1970) 3 by discharging two The appropriate standard of review in this case is clear. We are to sustain the Board's determinations if they are supported by substantial evidence on the record considered as a whole. NLRB v. Brown, 380 U.S 278, 85 S.Ct. 980, 13 L.Ed.2d 839 (1965); Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). Our function is not to overturn the Board's choice between two equally plausible inferences from the facts if the choice is reasonable, even though we might reach a contrary result if deciding the case de novo. NLRB v. United Insurance Co., 390 U.S. 254, 88 S.Ct. 988, 19 L.Ed.2d 1083 (1968); Mueller Brass Co. v NLRB, 544 F.2d 815, 817 (5th Cir. 1977). However, even though our scope of review is thus limited, we should deny enforcement if, after a full review of the record, we are unable conscientiously to conclude that the evidence supporting the Board's determination is substantial. Universal Camera Corp. v. NLRB, supra ; Mueller Brass Co. v. NLRB, supra.
employees because of their union activities and sympathies; threatening employees with reprisals because of their union activities; conducting a poll of employees designed to obtain knowledge of their union propensities and interest; enforcing a no-solicitation rule in a discriminatory manner; and eliminating certain employee benefits. The Company seeks review of these findings and the Board cross-appeals seeking enforcement of its order. The ALJ also held that the Company's termination of normal posting procedures for jobs at its warehouse was not a violation of section 8(a)(1) and in a separately filed appeal the Midwest Regional Joint Board, Amalgamated Clothing Workers of America, AFL-CIO (hereinafter "the Union") challenges the Board's order to the extent that it affirms that holding. We ordered these appeals consolidated for consideration on the merits.
We find that there is substantial evidence to support the Board's determinations that the Company violated section 8(a)(1) of the Act by interrogating employees about their union activities, polling employees to determine their union sympathies, threatening an employee with reprisals because of union activities, discriminatorily enforcing a no-solicitation rule, and eliminating or curtailing employee benefits because of union activity. We also find that substantial evidence on the whole record supports the Board's finding that the Company's discharge of Barbara Vachon violated sections 8(a) (1) and (3), but we cannot find such support for the Board's finding that the discharge of Richard Mahoney contravened the Act. Therefore we deny enforcement of the Board's order insofar as it found a violation in Mahoney's termination. Finally, we find that the Board's finding that the Company did not violate section 8(a)(1) by the manner in which it re-staffed its Broomfield warehouse is supported by substantial evidence in the whole record. We therefore grant enforcement of the Board's order in all respects except the finding of a violation in Mahoney's discharge.
In early 1974, the Union began an organizational campaign among the employees at the Company plant in Boulder, Colorado, and the warehouse facility in Broomfield, Colorado. The Company designated William Tabar, director of operations at the
Company's Boulder facility, to direct its response to the Union's campaign. On July 24, 1974, the Union and the Company entered into a stipulation agreement pursuant to which a secret ballot representation election was held on August 16, 1974.
Richard Mahoney worked for the Company from April, 1974, until his termination in July of 1974. Mahoney signed a union authorization card but that was the extent of his union activity. He was not a member of the organizing committee and he did not distribute Union literature. Mahoney began work as a janitor but later became an extruder machine operator. 4 Before Mahoney actually used the extruder his department supervisor, Thomas Stevenson, fully instructed him on the operation of the machine. Stevenson emphasized that, if the machine were ever to jam or malfunction, the safety regulations required the operator to shut off all power immediately and contact his supervisor. 5 After receiving Stevenson's instructions Mahoney began using his machine.
Later that same day Stevenson observed Mahoney using his fingers to press material down the throat of his extruder. Stevenson cautioned him against this practice, pointing out that he could very easily get his fingers caught. In June, Stevenson again observed Mahoney placing epoxy into the throat of the machine with his fingers. Again Stevenson warned Mahoney in emphatic terms not to follow this procedure, stressing that the tamping stick was there for a purpose and should be used accordingly. Subsequently, on July 9, 1974, Stevenson observed Mahoney with his safety glasses off and stuffing material down into the extruder by hand. Stevenson informed Mahoney that if he didn't remove his fingers from the machine he would lose both his fingers and his job.
A short while later (approximately thirty minutes), Nancy Platt, an engineering technician at the Company, presented Mahoney with a special mix of material to extrude. Mahoney placed the material in the machine and tamped it down. The material failed to extrude and, when additional material was added, the machine jammed. After failing to re-start the machine with the tamping stick, Mahoney reached into the throat of the machine in an effort to extract the material. He removed two small handfulls of material, but on the third attempt the machine released and sliced off the end of one of his fingers. Mahoney then shut off the machine and went to the infirmary for first aid.
Upon investigation of the incident Stevenson recommended to William Tabar, director of operations for the Company, that Mahoney be suspended. Tabar, without discussing his decision with any other management personnel, ordered Mahoney's termination. Tabar deemed termination to be warranted by Mahoney's insubordination and gross violation of safety regulations. 6
During the summer of 1974, subsequent to Mahoney's termination, a Workman's Compensation hearing resulted in an award reduced by half the amount normally given due to the finding that Mahoney had violated The ALJ concluded that, although grounds for disciplining Mahoney were present, the Company chose the most severe form of personnel action for strategical reasons. It is important to note that in controversies involving employee discharges or suspensions the motive of the employer is the controlling factor. NLRB v. Brown, supra, 380 U.S. at 287, 85 S.Ct. 980; Mueller Brass Co. v. NLRB, supra, 544 F.2d at 819. Absent a showing of anti-union motivation, an employer may discharge an employee for a good reason, a bad reason, or no reason at all without running afoul of the labor laws. NLRB v. O. A. Fuller Super Markets, Inc., 374 F.2d 197, 200 (5th Cir. 1967). In addition the mere fact that a specific employee not only breaks a company rule but also evinces a pro-union sentiment alone is not sufficient to vitiate the just cause for his discharge. Mueller Brass Co. v. NLRB, supra, 544 F.2d at 819. When good cause for discharge or suspension is clearly established, the burden is on the Board to show that anti-union animus was the motivating factor. NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 34, 87 S.Ct. 1792, 18 L.Ed.2d 1027 (1967); D'Youville Manor, Lowell Mass., Inc. v. NLRB, 526 F.2d 3, 6 (1st Cir. 1975); NLRB v. Billen Shoe Co., 397 F.2d 801, 803 (1st Cir. 1968). The burden on the Board is not simply to discover some evidence of improper motive, but to find an affirmative and persuasive reason why the employer rejected the good cause and chose an illegal one. NLRB v. Billen Shoe Co., supra, 397 F.2d at 803. The mere existence of anti-union animus is not enough. Chauffeurs Local 633 v. NLRB, 166 U.S.App.D.C. 157, 509 F.2d 490, 498 (1974). In order to establish a section 8(a)(3) violation the Board must find that the employee would not have been discharged but for his union activity. NLRB v. Klaue, 523 F.2d 410, 413 (9th Cir. 1975); Ridgely Manufacturing Co. v. NLRB, 166 U.S.App.D.C. 232, 510 F.2d 185, 186 (1975).
a safety regulation. On October 11, 1974, Mahoney was in the Company parking lot and encountered the manager of safety and...
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