N.L.R.B. v. Daniel Const. Co., a Div. of Daniel Intern. Corp., 83-1571

• Decision Date: 02 April 1984
• Docket Number: No. 83-1571,83-1571
• Citation: 731 F.2d 191
• Parties: 115 L.R.R.M. (BNA) 3574, 100 Lab.Cas. P 10,918 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. DANIEL CONSTRUCTION COMPANY, A DIVISION OF DANIEL INTERNATIONAL CORPORATION, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 191

731 F.2d 191

115 L.R.R.M. (BNA) 3574, 100 Lab.Cas. P 10,918

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. DANIEL CONSTRUCTION COMPANY, A DIVISION OF DANIEL INTERNATIONAL CORPORATION, Respondent.

No. 83-1571.

United States Court of Appeals Fourth Circuit.

Argued Jan. 12, 1984.

Decided April 2, 1984.

Melvin Hutson, Robert T. Thompson, Jr., Greenville, S.C. (M. Lee Daniels, Thompson, Mann & Hutson, Greenville, S.C., on brief), for respondent.

Joseph A. Oertel, N.L.R.B., Washington, D.C. (William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Washington, D.C., on brief), for petitioner.

Before WINTER, Chief Judge, and MURNAGHAN and SPROUSE, Circuit Judges.

SPROUSE, Circuit Judge:

The National Labor Relations Board (Board) applies for enforcement of its September 30, 1982, order requiring Daniel Construction Company (Daniel) (1) to reinstate eleven former employees who were discharged, suspended or refused employment because of their pro-union activities and (2) to take other affirmative steps to cease unlawful labor practices. Daniel, in its cross-petition opposing enforcement, argues that the Board failed to establish prima facie cases of unlawful discharge by substantial evidence. We grant the Board's application.

Daniel, a division of Daniel International Corporation, operates over two hundred construction and maintenance projects throughout the United States. The present controversy arises out of labor unrest at two such projects in southeastern North Carolina--the Hercofina Chemical Company complex in Wilmington (Hercofina) and the E.I. DuPont de Nemours chemical production plant in Cape Fear (DuPont). Daniel provides ongoing maintenance and construction services to the owners of these facilities, employing a combined work force of approximately nine hundred non-union workers. The two work sites are only fifteen miles apart, but they are managed and operated as separate entities by Daniel. All parties concede that at the critical time involved in this application economic factors required Daniel to lay off a number of employees at these two sites and at three other project sites in the area. The Board charges, however, that Daniel used these layoffs as an opportunity to rid itself of certain employees because of their pro-union activities.

The unfair labor practices at issue here began in early March 1980 with the disclosure by Daniel officials at Hercofina that some members of its work force were receiving higher wages than other highly-skilled mechanics. The disclosure prompted members of the work force to take collective action to rectify perceived inequities in the wage structure. Three spokesmen from this group--J.P. Stevens, Floyd Wescott and Larry McDowell--met with the Hercofina project superintendent to discuss ways of defusing the situation. They were told, bluntly, "if you don't like it [the wage differentials] you don't have to work here." The workers responded by striking the facility on March 12, 1980. Initially, worker enthusiasm for the job action was high, as nearly all of Daniel's Hercofina work force stayed away from the jobsite. When talks between management and worker representatives failed to produce results, however, support for the strike quickly dissipated. In response to a company ultimatum threatening to replace the strikers, employees ceased their around-the-clock picketing of the facility on March 16, 1980, the day before the company was to begin hiring replacements.

Meanwhile, the North Carolina State Building and Construction Trades Council, AFL-CIO, organized a rally in support of the workers at Hugh McRae Park in Wilmington on Sunday, March 16. Approximately 200 employees from various Daniel job sites attended, including two DuPont project supervisors, who apparently were curious about the strength of union support among their work force. An AFL-CIO representative at the rally urged the employees to stop the strike and begin organizing. He encouraged those present to sign the union authorization cards being circulated among the crowd as a first step in an organization drive.

The labor problems at Hercofina and the union rally at McRae Park received wide exposure in the local media. Several company officials admitted recognizing some of Daniel's employees from newspaper photographs and television film clips of the rally. Testimony also indicated that Daniel obtained a "blow-up" of a newspaper photograph of the crowd for the purposes of identifying those employees in attendance. Daniel obtained further information about the rally by interrogating several workers suspected of being present.

Soon after the McRae Park rally, Daniel began laying off employees at the Hercofina and DuPont projects. Eighty employees lost their jobs as a result of three separate reduction-of-force plans implemented by Daniel. The Board conceded that economic reasons necessitated the general layoff, but charged and later found that Daniel impermissibly used the otherwise legitimate layoffs as a "smokescreen" to retaliate against selected members of its work force displaying pro-union sympathies.

The Board also found Daniel guilty of a range of other unlawful labor practices, including (1) repeatedly threatening employees with reprisals and plant closures to dissuade union activities; (2) coercively soliciting employees to rescind their union authorization cards; and (3) taking photographs of employees engaged in lawful picketing for the purpose of identifying union adherents. Daniel does not contest the Board's findings on these obvious section 8(a)(1) violations, but strongly opposes enforcement of that part of the Board's order dealing with the eleven employees allegedly discharged or refused employment because of their union activities. The Board ordered various reinstatement and back pay remedies for these eleven workers after finding that anti-union animus was a motivating factor for their inclusion in the layoff plans. Daniel contends that the Board's evidence does not satisfy the Wright Line standard. See Wright Line, 251 NLRB 1083 (1980), enforced, 662 F.2d 899 (1st Cir.1981), cert. denied, 455 U.S. 989, 102 S.Ct. 1612, 71 L.Ed.2d 848 (1982). See also NLRB v. Transportation Management Corp., --- U.S. ----, 103 S.Ct. 2469, 76 L.Ed.2d 667 (1983) (approving Board's Wright Line formulation).

I

A

The scope of our review, of course, is limited. If the findings of the Board have substantial support in the record as a whole, our inquiry ends and its order must be enforced even though we might have reached a different result had we heard the evidence in the first instance. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). The starting point for our review, then, is the factual record upon which the Board based its decision concerning Daniel's motivation in discharging each of the eleven employees.

DUPONT SITE EMPLOYEES

1. James Piner and James Perdue

Piner and Perdue were longtime Daniel employees at the DuPont site, having worked there for over six years each. Piner previously worked at other Daniel jobsites beginning in the late 1960's, and was the only "small tool repairman" on Daniel's DuPont payroll. Perdue, who was one of only 10 machinists at the site, operated the 48-inch drill press as one of his primary job responsibilities. At the time of his termination, Perdue had more seniority than any employee in the shop other than a welder and a foreman.

Piner and Perdue briefly attended the union rally at McRae Park. They both saw their supervisor, Ken Willetts, among the crowd and left the rally soon afterward. Piner was asked about his attendance at the rally three days later by the millwright superintendent. After admitting he was present, Piner was told that his and Perdue's names were on a list of workers designated for layoffs. He also was told that company officials had enlarged a photograph of the rally to identify those workers in attendance. The next day Piner again confronted the superintendent seeking an explanation for his layoff. The superintendent indicated that he and Perdue were two of the best workers on the job, but that the termination decision was beyond his control. Immediately after laying off Piner and Perdue, Daniel transferred two employees out of another department to assume their exact duties--a strong indication that a lack of work was not the motive behind the pair's discharge.

2. Ralph Wilson and Jacqueline Wilson

Ralph and Jacqueline Wilson were the only husband-wife team employed at the DuPont site. Ralph was a welder and pipe fitter, who had worked for Daniel thirteen out of the last sixteen years. Jacqueline, also a pipe welder, had worked for Daniel for six years before her termination, three and one-half years of which were spent at the DuPont site. They were both placed on permanent layoff only four days after they attended the McRae Park rally and signed union authorization cards.

On receiving notice of their layoffs, the Wilsons pressed company officials up and down the chain of decisionmaking for an explanation. They were told by several supervisors that the decision came from "above," and that their work had been as good or better than other less senior workers still on the job. The Wilsons persistently sought an explanation from Jacqueline's immediate supervisor, Marshall Smith. On April 7, approximately two weeks after the layoff was announced, Ralph telephoned Smith seeking a written statement attesting to his wife's good job performance. Smith reportedly told Ralph that he would not discuss the matter on the phone for fear of a possible "tap," but would meet the couple later that night at a nearby parking lot. At the arranged time, Smith appeared at the lot and crawled into the backseat of the Wilsons' car. While the Wilsons drove around town, Smith purportedly told them that...