N.L.R.B. v. Big Three Indus. Gas & Equipment Co.
| Decision Date | 24 August 1978 |
| Docket Number | No. 77-2592,77-2592 |
| Parties | 99 L.R.R.M. (BNA) 2223, 84 Lab.Cas. P 10,791 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BIG THREE INDUSTRIAL GAS & EQUIPMENT CO., Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Elliott Moore, Deputy Assoc. Gen. Counsel, Jesse Etelson, Atty., John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Carl L. Taylor, Assoc. Gen. Counsel, Michael S. Winer, Atty., N. L. R. B., Washington, D. C., for petitioner.
Charles R. Vickery, Jr., Houston, Tex., for respondent.
Application for Enforcement of an Order of the National Labor Relations Board.
Before MORGAN and GEE, Circuit Judges, and KING, District Judge. *
This case comes before the court on petition by the National Labor Relations Board for enforcement of its decision and order in Big Three Industrial & Gas Equipment Co., 230 NLRB No. 48 (1977). The Board found that the respondent Big Three violated § 8(a)(1) and § 8(a)(3) of the National Labor Relations Act. We must decide whether principles of law and substantial evidence support the determinations of the Board.
The controverted actions and issues arise from a summer, 1976 union drive among workers at the employer's Bayport plant in Pasadena, Texas. At this plant, Big Three manufactured oxygen, acetylene and nitrogen employing a workforce divided into two departments: maintenance workers and operations personnel. From the very beginning, union enthusiasm captured the maintenance department. 1 On July 1, 1976, a maintenance worker contacted a representative of Oil, Chemical and Atomic Workers, International Union, AFL-CIO to learn about union organizing. Authorization cards were obtained on July 14, and, by the end of the following day, twenty-seven employees, primarily in maintenance, had signed.
From others at the Bayport plant came a very different response. A daunting array of statements by Company supervisors alternately threatened union supporters while offering rewards for union opponents. This barrage commenced on June 29 as Supervisor Lindsay told a worker that a union was "a good way for all of us to get fired," and continued through August 20 when, in reference to the union, Supervisor Richardson told a worker, "You're going to get fired just as sure as the world goes around . . . They're going to run everybody and bring in contract maintenance." In addition to threatening union supporters, Big Three operatives dangled rewards before potential union opponents. On several occasions, supervisors indicated to employee Judd that his opposition to the union was well known and thoroughly appreciated. Workers in the operations department were apparently told that they would receive a 40-cent per hour wage increase in exchange for opposing the union.
Not surprisingly, the impetus behind the union drive began to fade. Although 33 of some 35 employees in the maintenance department eventually signed cards, little union zeal emanated from the operations unit. On August 2, with the union campaign at least temporarily stalled, two of its leaders approached the Company's General Manager, Sid Peters, to suggest the formation of a Company union or committee. Peters flatly rejected this proposal. Efforts to unionize were resumed but with less force than before and with few or no signatures added after August 2.
This diminution of unionist energies, however, did not engender a corresponding reduction in the strident opposition by the Company. On August 9, Supervisor Richardson told union leaders Hurt and Robb they would never get anywhere in the Company because of their activities, and he suggested they find jobs elsewhere. Richardson also disclosed the operation of an anti-union spy, Jim Bowlin, who it was later reported, had been promised a supervisory position in exchange for information about union supporters. On August 17, Richardson told an employee that Bowlin had given the supervisors the names of all employees who signed union cards.
On that same day, amid this continuing background of subtle coercion and outright threats, three employees working overtime ignored a Company directive that they eat dinner on the premises and not leave the plant without punching out or notifying a supervisor. Two of the workers, William Fairless and John Coryell, had signed union cards. The third, Lee Judd, had not. Although Supervisor Richardson observed all three breaking the Company rule, he reported only Fairless and Coryell for disciplinary action. The next day Assistant Superintendent Borey, on Richardson's recommendation, suspended Fairless and Coryell for three days. Later that day, Richardson told the non-unionist rule breaker, Judd, not to leave the plant again without punching out, but added,
While measures against union supporters pervade this case, they do not comprise the full story. Harm to the Company occurred as well, when, in July, lumber was jammed into a water pump causing damages of $1,200 to $1,300. Another act of apparent sabotage occurred in August as a boiler was discovered with its internal parts ripped out. This necessitated further repairs costing from $2,000 to $3,000. Then, on August 19 and 20 a series of threats were leveled against the Company and several of its supervisors.
The worst of it fell on Supervisor Richardson whose life was threatened by an anonymous telephone caller on the morning of August 19. Additionally, three shots were fired at his house, and sugar was placed in the gas tanks of his automobiles. Threatening phone calls were also made to the homes of other supervisory personnel and received by their wives causing great tension and anxiety. Further intensifying this wave of fear were several telephone bomb threats made to the plant on the evening of August 19 and on the next morning. As a result, the Company permitted the maintenance workforce to leave for the day on August 20. The operations workers, however, elected to continue working in order to prevent the inordinate expense and delay that any halt in production would have occasioned. Some investigation was made of these incidents by law enforcement officials and by the Company itself. However, no conclusive identifications of the actual wrongdoers resulted. 2 A report of these events was delivered to a Company Vice President on August 23 and on the following day, Company officials met to consider action to solve the problems surrounding the maintenance department.
At this meeting, the plant manager recommended that the maintenance department be replaced by a return to contract maintenance, the means utilized until 1975. On the next day, August 25, Company officials adopted this proposal without attempting to implement alternatives. Later that evening, the Company announced that the maintenance work would be subcontracted and that all thirty-four workers in the maintenance department would be discharged.
From these and similar developments, the Board found that the Company perpetrated unfair labor practices during the period from the launching of the union drive through the mass discharge of the maintenance workforce. The assorted threats, interrogations, promises of benefits and creation of an impression of surveillance constituted violations of § 8(a)(1). The suspension of workers Fairless and Coryell was held to be anti-union discrimination within the proscription of § 8(a)(3). Finally, the mass discharge of all maintenance workers, which the Board found to be motivated by anti-union animus, was found to be a further violation of § 8(a)(3). After separately examining each alleged violation, we find the Board's determination to be supported by substantial evidence and consistent with the applicable law. We therefore enforce its decision and order.
Section 8(a)(1) of the National Labor Relations Act prohibits employers from interfering with, restraining, or coercing employees in the exercise of the rights to organize and bargain collectively. 29 U.S.C. § 158(a)(1). The Board identified more than a dozen acts of unlawful interference ranging from subtle intimation of advancement for workers who rejected the union, to crude threats of closing the plant should organizational efforts succeed. Additionally, the Board found that coercive interrogations had occurred in contravention of NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969) and that the Company had created an impression of surveillance by the alleged spy, Jim Bowlin. These words and deeds could not fail to inhibit organizational efforts. Indeed, the Company does not contend that these acts were innocent, but rather argues that the supervisors responsible did not speak or act for the Company. The Administrative Law Judge found that because the operatives in question were supervisors within Section 2(11) of the Act, the Company is responsible for their conduct.
We begin our assessment of the scope of Big Three's imputed liability by acknowledging the manifest supervisory status of Lindsay, Osborn, Richardson, and the others. These men were held to be supervisors by the Board and we owe deference to this resolution of a fact question and a matter of practical application by the Board to the infinite gradations of authority within a particular industry. NLRB v. Swift & Co., 292 F.2d 561, 563 (1st Cir. 1961). Testing such findings against the standard of substantial evidence, we observe that Lindsay, Park, Richardson and Osborn were empowered to interview job applicants, grant time off, allocate overtime work, transfer employees and recommend wage increases. This authority unquestionably brought them within the criteria of Section 2(11). 3 Additionally, the men who the Company currently seeks to disavow were called supervisors, were regarded as such...
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