N.L.R.B. v. Magnesium Casting Co., Inc.

• Decision Date: 11 January 1982
• Docket Number: No. 81-1032,81-1032
• Citation: 668 F.2d 13
• Parties: 109 L.R.R.M. (BNA) 2429, 92 Lab.Cas. P 13,188 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MAGNESIUM CASTING COMPANY, INC., Respondent.
• Court: U.S. Court of Appeals — First Circuit

Page 13

668 F.2d 13

109 L.R.R.M. (BNA) 2429, 92 Lab.Cas. P 13,188

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MAGNESIUM CASTING COMPANY, INC., Respondent.

No. 81-1032.

United States Court of Appeals, First Circuit.

Argued Sept. 11, 1981.

Decided Dec. 11, 1981.

Rehearing Denied Jan. 11, 1982.

Eric Moskowitz, Atty., Washington, D. C., with whom William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, and Elliott Moore, Deputy Associate Gen. Counsel, Washington, D. C., were on brief, for petitioner.

Robert P. Corcoran, Washington, D. C., with whom Stoneman, Chandler & Miller, Washington, D. C., was on brief, for respondent.

Before COFFIN, Chief Judge, ALDRICH and BREYER, Circuit Judges.

BREYER, Circuit Judge.

This case arises out of a hotly contested union effort to organize the maintenance and production employees of Magnesium Casting Company, Inc. (the "Company"). The National Labor Relations Board found that the Company committed numerous unfair labor practices during the course of the election campaign. ¹ Since the Company had shown "pervasive and adamant hostility to the representation of its employees" by the union, and since 90 of 178 employees in the bargaining unit had signed union authorization cards, the Board ordered the Company to recognize and bargain with Local 262 of the United Electrical Radio and Machine Workers of America (the "Union") without an election. See NLRB v. Gissell Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969). The Board here petitions for enforcement of its order, which the Company resists on two grounds. First, the Company objects to the Board's unfair labor practice findings regarding the discharge of five employees. Second, the Company claims that several of the authorization cards were invalid. We find all of the challenged Board findings supported by substantial evidence, and we therefore enforce its order.

Magnesium Casting Company, located in Hyde Park, Massachusetts, makes metal castings and electrical fixtures. It has about 180 maintenance and production employees, a significant number of whom are Spanish, Greek or Puerto Rican and neither speak nor read English.

The union drive underlying this case began in the summer of 1977. It was initiated by an employee in the Company's die-casting department. That department operates 24 hours a day in three eight-hour shifts. A foreman, an assistant foreman, and about ten other employees work on each shift. The department included many of the Union's most active supporters, and its operations and procedures figure prominently in this case.

The lengthy record of this case provides two important items of background information about the Company's work practices against which the specific claims at issue must be judged. First, the Company has strict rules against absenteeism and tardiness, but those rules are often honored in the breach. The Company deals with the somewhat erratic work habits of its employees pragmatically. It routinely issues warnings; it occasionally suspends violators; sometimes it discharges them; but then usually it hires them back at some later time. This is not to say that the Company is lax; but rather, given the nature of the work or work force, attendance problems are a fact of life dealt with by the Company through rules that are firm in principle but applied flexibly in practice.

Second, the Company operates an incentive compensation system which, although simple in principle, appears on this record to be complex, confusing and subject to widespread (but largely tolerated) abuse and misunderstanding in practice. Essentially, the system seeks to pay workers more if they make more castings. Given the practical impossibility of counting every casting, however, incentive pay is based on the number of cycles a worker causes his machine to complete rather than on the number of castings he actually produces. Machine cycles are recorded on meters linked to each machine but located at a foreman's desk. When working under the incentive plan, a die-caster's pay depends on the meter count; when not working under the plan, pay depends simply on time spent on the job.

The complications and confusion stem in part from the ability of employees to make the meters record completed cycles that do not actually occur. Yet whether a worker has in fact "cheated" in this fashion is rarely easy to ascertain. "Metered" and "actual" production often differ simply because castings turn out defective and are thrown back and remelted before being counted in an inspection. Even when an employee has "cheated" by inflating a "meter" count, it is unclear that he has violated a norm of the workplace taken seriously by the Company. Employees are almost always warned of impending inspections before they occur, and violations almost never lead to disciplinary action, let alone dismissal. Finally, as it appears to be common knowledge within the Company that some machines work better than others, "fast" employees assigned to "slow" machines sometimes suspect that this has been done deliberately to hold down their wages. ² Then, in their view, a little cheating is "fair game."

Difficulties with the incentive compensation system also result from the fact that, on any given machine on any given shift, an employee is not always on or always off the incentive system. If the machine works properly, it seems, an employee is supposed to stay on the system, work hard, and be paid according to his productivity. But if the machine breaks down, the employee is supposed to get off the system and be paid by time rather than by productivity. Switching from one pay system to the other involves punching a certain set of cards in a certain sequence. The precise mechanics of this process, however, seem confusing. Neither the ALJ nor counsel for either side in this case-let alone the die-cast operators themselves-appears fully to have understood them. The Company claims that by punching cards in a certain way, an employee can increase his compensation. The testimony of the Company's own witness, however, revealed that attempts to cheat by mispunching cards are easily detectible and unlikely to succeed. In any event, the mispunching of cards is a common occurrence among die-cast operators, and employees are virtually never discharged, if even disciplined at all, for that reason.

With this background revealed by the record, we have reviewed the careful and detailed opinion of the administrative law judge-which was adopted by the Board. In checking the opinion against the record, we have found it accurate and its conclusions supported by substantial evidence. NLRB v. Amber Delivery Service, 651 F.2d 57 (1st Cir. 1981).

II

We turn first to the challenged finding of anti-union discriminatory behavior in violation of § 8(a)(3) of the Act. ³ The behavior at issue consists of the Company's discharging five employees: Walter Escribano, Leonard Lamkin, Sherman Brown, James Eason, and John Manoloulis. We have held that the standard in such cases is whether the discharges were motivated by anti-union animus rather than legitimate business concerns. In other words, to find that a discharge violated the Act, the Board must reasonably conclude that the discharge would not have taken place in the absence of the anti-union motive. See NLRB v. Eastern Smelting and Refining Corp., 598 F.2d 666, 671 (1st Cir. 1979).

In so-called "mixed motive" cases, we have more recently held that, once the Board makes a prima facie showing of significant improper motivation, the employer must produce evidence that it had a legitimate reason, sufficient in itself, for the discharge. NLRB v. Wright Line, A Division of Wright Line, Inc., 662 F.2d 899, 904-05 (1st Cir. 1981). "The imposition of this limited burden, however, does not shift to the employer the burden of proving that an unfair labor practice has not occurred." Id. at 905. That burden always remains with the Board. Id. ⁴ Although Wright Line was decided after the Board's decision here, we see no need for a remand of this case. The ALJ, and hence the Board, did not decide this case upon the niceties of burdens of proof. Rather, in the case of each discharge, the ALJ found evidence of anti-union motive and then went on to find that the employer's allegedly legitimate reason for the discharge was a pretext. The evidence is set out at length in the ALJ's opinion; we discuss it briefly here to indicate why we feel the ALJ's findings are adequately supported.

Walter Escribano. Escribano was fired in October 1977, allegedly for inflating his production count. The Company claims that it did not know of Escribano's Union activities when it fired him, but there is significant evidence to the contrary. Escribano joined the Union's organizational effort in August 1977. By October he had attended several union meetings, signed an authorization card, distributed union leaflets at the plant, and was soliciting support for the union almost every day. He testified that on one occasion he told another employee about a union meeting in the presence of a foreman. This latter fact distinguishes this case from NLRB v. South Shore Hospital, 571 F.2d 677 (1st Cir. 1978), where there was no evidence that management had ever directly observed the employee soliciting union support. See id. at 684; see also id. at 683 (discussing NLRB v. Malone Knitting, 358 F.2d 880 (1st Cir. 1966)). And, the former facts, showing significant union involvement, distinguish this case from NLRB v. Joseph Antell, Inc., 358 F.2d 880 (1st Cir. 1966), where the employee's only union activity consisted of attendance at a single union meeting held off the employer's premises at night. Finally, at least as corroboration it is reasonable to suppose that an employer would know who the union activists are in an overt, strongly resisted union campaign. This is so particularly when they...