Mueller Brass Co. v. N.L.R.B.

• Decision Date: 03 January 1977
• Docket Number: No. 75-3761,75-3761
• Citation: 544 F.2d 815
• Parties: 94 L.R.R.M. (BNA) 2225, 80 Lab.Cas. P 11,834 MUELLER BRASS COMPANY, a subsidiary of U. V. Industries, Inc., Petitioner-Cross Respondent, v. NATIONAL LABOR RELATIONS BOARD et al., Respondents-Cross Petitioners.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 815

544 F.2d 815

94 L.R.R.M. (BNA) 2225, 80 Lab.Cas. P 11,834

MUELLER BRASS COMPANY, a subsidiary of U. V. Industries, Inc., Petitioner-Cross Respondent, v. NATIONAL LABOR RELATIONS BOARD et al., Respondents-Cross Petitioners.

No. 75-3761.

United States Court of Appeals, Fifth Circuit.

Jan. 3, 1977.

M. Curtiss McKee, Emile C. Ott, Jackson, Miss., for petitioner.

Paul J. Spielberg, Atty., David Zorensky, Atty., John S. Irving, Jr., Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Elliott Moore, Deputy Assoc. Gen. Counsel, N.L.R.B., Washington, D. C., Geo. C. Longshore, Birmingham, Ala., for respondent.

Chas. M. Paschal, Jr., Director, Region 15, New Orleans, La., Raymond A. Jacobson, Director, Region 26, N.L.R.B., Memphis, Tenn., for other interested parties.

Petition for Review and Cross Application for Enforcement of an Order of the National Labor Relations Board (Mississippi Case).

Before COLEMAN, GODBOLD and HILL, Circuit Judges.

JAMES C. HILL, Circuit Judge:

This case is before the court upon the petition of Mueller Brass Co. (the "Company") for review of, and upon cross-application for enforcement of, an order of the National Labor Relations Board (the "Board"). The issues presented are whether substantial evidence on the record as a whole supports the Board's findings that the Company violated Sections 8(a)(1) and (3) of the National Labor Relations Act (the "Act"), 29 U.S.C.A. §§ 158(a)(1) and (3), by discharging employees Hansford Stone and James Roy Rogers and that the Company violated Section 8(a)(1) of the Act by threatening employees with adverse consequences if the union ¹ won the election; intimidating and warning employees against wearing union insignia; questioning employees as to whether anyone had 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. 29 U.S.C.A. § 160(e); 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); International Organization of Masters, Mates and Pilots v. NLRB, 539 F.2d 554 (5th Cir. 1976). It is not our function 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); NLRB v. Mueller Brass Co., 501 F.2d 680, 683-684 (5th Cir. 1974); NLRB v. Standard Forge & Axle Co., 420 F.2d 508 (5th Cir. 1969), cert. denied, 400 U.S. 903, 91 S.Ct. 140, 27 L.Ed.2d 140 (1970). 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 determinations is substantial. ² Universal Camera Corp. v. NLRB, supra; NLRB v. Mueller Brass Co., 509 F.2d 704, 707 (5th Cir. 1975); NLRB v. O. A. Fuller Super Markets, Inc., 374 F.2d 197, 200 (5th Cir. 1967).

talked to them about the union or had tried to get them to sign cards; and asking employees why they were wearing union buttons. Failing to find such evidence, we deny enforcement.

Background

The Company began production in 1971 in Fulton, Mississippi. The union conducted unsuccessful organizing campaigns in 1971 and 1973, and began its third campaign in early 1974. In NLRB v. Mueller Brass Co., 501 F.2d 680 (5th Cir. 1974), this Court upheld the Board's findings that the Company violated §§ 8(a)(1) and (3) of the Act by discharging an employee, and by making threats and suggesting that union organizers were being blacklisted by employees in the area. Significantly, this court found that "(t)here is no question from the record that the Company was strongly anti-union." Id. at 685.

Later, in NLRB v. Mueller Brass Co., 509 F.2d 704 (5th Cir. 1975), this court refused to enforce orders of the Board. This court found that "even considered against the Company's prior antiunion sentiment," the unrefuted testimony did not constitute substantial evidence that the Company had created an impression of surveillance. In addition, this Court upheld the suspension of an employee ³ involved in the case sub judice, finding no substantial evidence to indicate that the Company had treated him differently from other employees who falsified a report in violation of Company rules. With this background, we proceed to the case at bar.

DISCHARGES

Hansford Stone, Jr. went to work for the Company in March, 1972. Stone was given a verbal warning about absenteeism in February, 1974, and he received a written warning in April, 1974. Stone was specifically informed and warned about an automatic termination under Plant Rule 40. ⁴

On April 25, 1974, Stone went to see his physician, Dr. Collum, who advised him that he should go to the hospital. Stone reported this to the Company and Glenn Grissom, the personnel representative, placed him on sick leave. Grissom advised Stone that he should contact the Company when he was able to return to work and that he should present his doctor's release at that time.

Stone was hospitalized from April 25 until May 4, but he did not return to work until May 14. He did not contact the Company between the date of his hospital release and the date of his return to work. Charles Henson, the Company's general foreman, received a report that Stone had been seen around town and, upon inquiry, the Company received a note on May 9 from Dr. Collum stating that Stone should have been able to return to work on May 6, 1974. Thus, on May 9, 1974, Stone was terminated pursuant to Plant Rule 40. Subsequently, the Company received an insurance report indicating that Stone had been discharged from the hospital and that no home confinement was required.

Stone presented himself for work on May 14, 1974. He presented a May 13th note from Dr. Collum stating that he should be able to return to work on May 14. Stone was shown Dr. Collum's May 9th note and asked why he did not report to work on May 6. Stone stated that he had contracted a sore throat. He then left and returned the same day with a third note from Dr. Collum attempting to void the preceding two notes. The Company refused to reinstate him.

The Administrative Law Judge (ALJ) found that Stone's unexcused absence from work in combination with his previous record of absenteeism and the report that he had been seen visiting around town were a sufficient basis for the Company's belief that he had deliberately overstayed his excused absence and then prevailed upon his doctor to contradict his earlier reports. Despite the Company's admitted opposition to the union and its knowledge of Stone's sympathies, ⁵ the ALJ concluded that Stone was terminated for violating the rule about unexcused absences. The Board disagreed and from its review of the record concluded that the discharge of Stone was motivated by the Company's opposition to the union and its desire to rid itself of a known union adherent.

The conduct of Stone pales in comparison to the actions which formed the basis for the discharge of James Roy Rogers. Rogers began his employment with the Company in February, 1972. Prior to his discharge in February, 1974, he worked the 11:00 p. m. to 7:00 a. m. shift at the plant. Rogers had been active in union organization for approximately one and one-half years and was well known as a union activist by Company officials. He was discharged for conduct which was characterized by the Administrative Law Judge as "vulgar and offensive" by "any standard of acceptable conduct."

In summary, on January 31, 1974, during the 5:00 a. m. break Rogers displayed a mechanized artificial male sex organ to a female employee at the plant. The female employee was embarrassed and turned away. The very next night Rogers, on a dare from a fellow employee, approached another female employee and made her an indecent and offensive proposition. She, too, was embarrassed and upset by the remark.

A few days later Frank Robinson, the Company's Industrial Relations Manager, received a report that there had been an incident in the plant the previous week which had upset the female employees. The person responsible for the incident was not identified. The next day Robinson began an inquiry into the matter and after an extensive investigation, Rogers was interviewed and admitted the incidents involved. Rogers was then discharged by the Company for violation of Plant Rule 22. ⁶

With regard to the discharge of Rogers, the ALJ felt that, in light of the Company's opposition to the union, its knowledge of Rogers' union sympathies, its prior discrimination against him, ⁷ and its protracted investigation into his offenses, despite the absence of employee complaints, compared to its investigations into prior offenses toward female employees, the discharge of Rogers for his improper conduct was a pretext for finally getting rid of him. The Board agreed with the ALJ that the discharge of Rogers was pretextual.

In controversies involving employee discharges or suspensions, the motive of the employer is the controlling factor. NLRB v. Brown, 380 U.S. at 287, 85 S.Ct. 980. Absent a showing of antiunion motivation, an employer may discharge an employee without running afoul of the fair labor laws for a good reason, a bad reason or no reason at all. NLRB v. O. A. Fuller Super Markets, Inc., supra. The mere fact that a specific employee not only breaks a Company rule but also evinces a pro-union sentiment is alone not sufficient to destroy the just cause for his discharge. NLRB v. Mueller Brass Co., 509 F.2d at 711; see NLRB v. Soft Water Laundry, Inc., 346 F.2d 930 (5th Cir. 1965). The essence of discrimination in violation of Section 8(a)(3) of the Act is in treating like cases differently. Finally, the Board must sustain the burden of...