N.L.R.B. v. Lummus Industries, Inc.

• Decision Date: 25 June 1982
• Docket Number: No. 81-7447,81-7447
• Citation: 679 F.2d 229
• Parties: 110 L.R.R.M. (BNA) 3052, 94 Lab.Cas. P 13,642 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LUMMUS INDUSTRIES, INC., Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 229

679 F.2d 229

110 L.R.R.M. (BNA) 3052, 94 Lab.Cas. P 13,642

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LUMMUS INDUSTRIES, INC., Respondent.

No. 81-7447.

United States Court of Appeals Eleventh Circuit.

June 25, 1982.

Elliott Moore, Deputy Asst. Gen. Counsel, Collis Suzanne Stocking, N. L. R. B., Washington, D. C., Jolane Findley, Mclean, Va., for petitioner.

Hatcher, Stubbs, Land, Hollis & Rothschild, James Humes, II, Columbus, Ga., for respondent.

On Application for Enforcement of an Order of the National Labor Relations Board.

Before INGRAHAM ^*, HATCHETT and ANDERSON, Circuit Judges.

INGRAHAM, Circuit Judge:

The National Labor Relations Board ("Board") petitions this court for enforcement of its order ¹ directing reinstatement of a discharged employee and related relief. We find substantial evidence to support the Board's conclusions that the respondent Lummus Industries, Inc. ("Lummus"), violated § 8(a)(1) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1), by discharging the employee for conduct that constituted protected concerted activity under § 7 of the Act; and also that Lummus maintained overbroad no-distribution and no-solicitation rules. We accordingly enforce the Board's order.

I-BACKGROUND

Lummus manufactures cotton ginning equipment at its plant in Columbus, Georgia. The company's seven hundred to seven hundred and fifty employees are represented by Local 1870 of the International Association of Machinists and Aerospace Workers. The employee in question, Chester Pumphrey, a member of the union, was hired in November 1977 as a machine shop trainee and worked for Lummus until his discharge on July 18, 1979.

The Administrative Law Judge found that Pumphrey began a campaign to improve the effectiveness of the union's representation as early as October 1978. These early efforts included canvassing fellow employees for ideas and suggestions and conveying this information to the union and the company, in person and through the company's suggestion forms. The record does not reflect the response, if any, this activity produced.

In late April 1979, Pumphrey prepared a one-page leaflet purporting to summarize his observations and beliefs concerning specific working conditions and the adequacy of union representation. ² The opening paragraph refers to allegedly disproportionate cost of living adjustments for "Journeymen" as opposed to employees in the lower wage range. Paragraph 2 states that employees in the lower wage range did not receive evaluations and wage reviews in May and September "as many of them no doubt think they are supposed to." Paragraph 3 states "one of the members of the team that negotiated that sorry contract is now our union president." Paragraph 4 contends that workers who invested in tools and instruments were not adequately compensated, and refers to the $4 an hour wage rate of some employees as a "starvation wage." Paragraphs 5 and 6 complain about the lack of an effective suggestions system and adequate training program. Paragraph 7 states that under the current contract, union officials could "sit on their hands" and bind the employees to an automatic renewal of the existing contract without any negotiation of improved wages or benefits. Paragraph 8 states:

There is a common feeling that during the entire 44 years that the I.A.M. has represented Lummus employees, there has been some kind of sell out every time contract negotiation time came around. There must be some truth to this, considering the starvation wage that most of us enjoy.

Pumphrey then inserted the phrase "I believe that:" and added three concluding paragraphs. Paragraphs 1 and 2 of this section appeal to the work force at large to articulate its desires and instruct the union negotiating team to bargain accordingly. Paragraph 3 states:

Realizing that it takes some kind of superhuman character to resist the temptation to accept a several thousand dollar bonus in exchange for a weak contract or even pursuant to Article XXII, no contract, which the company can easily afford, we should not be paranoid, but must be eternally watchful of the leadership.

The leaflet closes with an invitation to meet at Pumphrey's house to discuss the matters outlined in the leaflet.

Pumphrey distributed copies of this material to several employees with whom he had spoken previously. He denied posting any copies on any of the bulletin boards around the plant. Around May 1, however, a copy was found on a company bulletin board and taken to the night shift supervisor, Lamar Stone. On May 9 Pumphrey was called into Stone's office, together with a company lead man, shop steward and union committeeman. Pumphrey admitted authoring the leaflet although he denied posting it. After reading the leaflet aloud, Stone told Pumphrey he was causing dissension and trying to drive a wedge between the company and the union. With reference to paragraph 8 and paragraph 3 of the "belief" section, Stone told Pumphrey that the company would not tolerate allegations of sellouts or bribery, and asked if Pumphrey could prove such allegations. Pumphrey replied that he had no such proof but that the leaflet expressed his beliefs. Stone then warned Pumphrey not to post any material on company bulletin boards without permission from the company, and not to "be caught distributing unionizing literature on company property any time." On cross-examination Stone testified his interpretation of "company time," to which his warning applied, included any time the company was paying the employee, including break time. This meeting resulted only in an oral warning.

On June 11, the company Industrial Relations Manager John Moore was told that another copy of the leaflet had been posted. Pumphrey was called to Moore's office on June 12 for a meeting with Moore, a union steward, company supervisor and the plant manager. Once again Pumphrey admitted authoring the leaflet, although he denied posting it, and that he had no actual proof of bribery or sellouts but believed such a situation was possible. Moore and the plant manager apparently both told Pumphrey that the bribery and sellout allegations were unacceptable to the company, and read company rules 8 ³ and 17 ⁴ aloud to Pumphrey. These officials gave Pumphrey a "strong" oral warning that the next infraction of these rules would lead to discharge. No further incidents involving this leaflet appear in the record.

Around July 11, Pumphrey began a telephone survey that he testified was intended to ascertain "the opinions and attitudes of the work force concerning our wages, our union, our union leadership, ... (and) whether they believe(d) ... the rumors that they might have heard concerning sellouts." Pumphrey began by selecting four names at random from a seniority list posted at the plant. The results of his survey can be briefly summarized. On his initial attempts Pumphrey was able to reach two of the employees and asked them a series of questions about contract provisions, union representation, and whether they believed the union had been selling out. These two employees apparently answered the questions and completed the conversations without indicating any irritation or hostility. However, both employees reported the conversations to union officials, who then requested they further report the calls to the Industrial Relations Manager, Moore. Because Pumphrey was working on a night shift and made his calls during the day, he contacted the wives of the two remaining employees on his list. The ALJ found that the wives were upset by Pumphrey's questions, principally because they did not understand the purpose of the calls. Pumphrey nevertheless testified that the wives gave him useful suggestions about desirable contract provisions, such as health insurance and no-strike clauses. The two husbands, however, were angry that Pumphrey had disturbed their wives and both complained about the calls to union and company officials.

On July 18, Moore again called Pumphrey into his office. Moore had prepared a separation notice citing rule 17 (false and slanderous statements) as the ground for discharge. In response to Moore's questioning Pumphrey acknowledged making the telephone survey. Moore then informed Pumphrey that based on this continued conduct, following the two prior warnings, he was discharged.

The ALJ concluded that the company's no-solicitation and no-distribution rules were overbroad and improperly infringed on employees' section 7 right to communicate with fellow employees. Because these rules were the basis of the May and June warnings to Pumphrey, the ALJ continued, these warnings and the subsequent discharge were also unlawful. The ALJ also observed that there was no evidence that Pumphrey's activities caused any significant interference with production. Finally, the ALJ concluded that the allegations concerning bribery and sellouts, as well as the remainder of Pumphrey's communications, constituted protected concerted activity under section 7, so that his discharge constituted an unfair labor practice. The Board adopted these findings and conclusions and ordered Lummus to rescind the no-distribution and no-solicitation rules to the extent they prohibited distribution and solicitation during non-working time in non-working areas of the plant, and to offer reinstatement to Pumphrey and make him whole for loss of earnings (among other relief). ⁵

II-DISCUSSION

Section 7 of the Act guarantees the right of employees, among other rights, "to engage in ... concerted activities for the purpose of collective bargaining or other mutual aid or protection." 29 U.S.C. § 157 (1976). Section 8(a)(1) provides that it is an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise of" section 7 rights. 29 U.S.C. § 158(a)(1) (1976). As is apparent from the language of these sections, a discharge precipitated by the exercise of section 7 rights...