N.L.R.B. v. Florida Steel Corp.
| Decision Date | 15 December 1978 |
| Docket Number | No. 77-3432,77-3432 |
| Parties | 100 L.R.R.M. (BNA) 2102, 85 Lab.Cas. P 10,972 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. FLORIDA STEEL CORPORATION, Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Elliott Moore, Deputy Assoc. Gen. Counsel, Dave Fleischer, Atty., Michael Winer, Supervisor Atty., John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Carl L. Taylor, Assoc. Gen. Counsel, N.L.R.B., Washington, D. C., for petitioner.
Jeffrey L. Gibbs, Washington, D. C., for United Steelworkers of America, AFL-CIO.
Hamilton & Bowden, Charles F. Henley, Jr., William H. Andrews, Jacksonville, Fla., for respondent.
Harold A. Boire, Director Region 12, N.L.R.B., Tampa, Fla., for other interested party.
Petition for Enforcement of An Order of The National Labor Relations Board.
Before GOLDBERG, Circuit Judge, SKELTON, Senior Judge *, and FAY, Circuit Judge.
This case is before the court on the petition of the National Labor Relations Board (the Board) pursuant to Section 10(e) of the National Labor Relations Act, as amended (61 Stat. 136, 73 Stat. 519, 88 Stat. 395, 29 U.S.C., § 151, et seq.) (the Act), for enforcement of its order issued against Florida Steel Corporation (the Company) on August 25, 1977, which is reported in 231 NLRB No. 117. The United Steelworkers of America, AFL-CIO (the Union) has intervened, in support of the Board's order.
This is a simple case where the facts are clear and the applicable law is well established. Concisely stated, the Company discharged employee Donald Bassett for cause in that he falsified his application for employment contrary to the Company rule proscribing such conduct, and by his falsifications showed himself to be dishonest. The Administrative Law Judge (ALJ) held that the Company had discharged Bassett because of his union activities in the Company's plant in Tampa, Florida, in violation of § 8(a)(3) and (1) of the Act, and ordered his re-instatement with interest containing an inflation factor on back pay, and issued a broad form of order to be applied on a company-wide basis. The Board approved the decision and order of the ALJ, except that it substituted escalated interest for the inflation factor on back pay, with one member dissenting on this item. We have carefully examined the entire record and have concluded that the Board's order is not supported by substantial evidence on the record as a whole, and we accordingly deny enforcement.
The facts that show the Company is in the business of producing, manufacturing and distributing steel and steel related products. It has four steel mills in the southeastern part of the United States, one of which is located in Tampa, Florida. In 1971 Donald Bassett signed an application of the Company for employment as a crane operator at the Tampa plant. The application had two parts, namely, the first section showing his personal history, job interest, training, military history, and employment history, and the second section being a health history report. The first section executed and signed by Bassett contained the following provision:
(Emphasis supplied).
This first section of the application was completed and signed by Bassett on October 18, 1971. His answers to the questions on the form contained many falsehoods and outright misrepresentations, as will be discussed in detail below.
The second section of the application (the health history report) contained the following statement:
"The above statements are true to the best of my knowledge and I understand and agree that any falsification or misrepresentation by me on this form is sufficient cause for discharge." (Emphasis supplied).
Bassett signed this section of the application and delivered it to the Company. It contained false entries and misrepresentations as shown below.
The Company relied on the truth and accuracy of both sections of the application and hired Bassett as a crane operator in 1971. The Union began an organization campaign at the Tampa plant in 1973. Bassett signed a union card and became an avid union supporter at the plant at that time. All of this was well known to the Company, but it took no action whatever against Bassett because of his activities in favor of the Union.
Union elections were held simultaneously in the Traffic Division, the Mill Division, and the Rebar Division of the Tampa plant in February, 1976. The Union lost the elections by an overwhelming vote of from three to five to one. The Union filed objections and the Board set aside the elections and ordered new elections held.
In March, 1976, Bassett injured his back while working on the job, and, except for a few days, did not work again until August of that year. He filed a claim for workmen's compensation with the Hartford Insurance Group, which was the Company's insurer. Hartford investigated the claim and discovered that Bassett had a previous injury or disability to his back while working for Town & County Mobile Homes Sales and Salvage Yard in Great Bend, Kansas, in 1964. He was treated by chiropractor who told him he had a slipped disc. He lost about a week from work at the time. Hartford contacted the Company (Florida Steel Corporation) to see if it had any knowledge of the prior back injury. This inquiry was made in an attempt to make a claim against the State of Florida's Special Disability Fund. The Company had no knowledge of the prior back injury or disability of 1964. When Hartford made this inquiry, the Company checked the record section of Bassett's application (the health history report) described above which he executed in 1971 and found the following entry "Have you ever had (an) injury:
1. Back injury or disability No ."
The Company then examined the rest of his application and found that Bassett had not listed Town & Country Mobile Home Sales and Salvage Yard of Great Bend, Kansas, as one of his prior employers. This prompted the Company to make a thorough investigation of all of the entries on his application. As a part of this investigation, the officials of the Company had several meetings and conferences with Bassett, the first of which occurred on September 14, 1976, as shown by testimony of the Company officials and by Bassett's time card that was prepared and kept by the Company in its regular course of business. 1
As a result of this investigation, the Company discovered that Bassett had made many false statements and misrepresentations on his application for employment, and in some instances had knowingly, deliberately and intentionally lied in order to get the job by misleading the Company. Bassett admitted that this was true when he was confronted with the facts by the Company. At the trial, he again admitted that he had made the false statements on his application and that he had lied to deceive and mislead the Company.
The following false statements and untruths were made by Bassett on his job application as shown on the face of the application and by facts discovered by the Company in its investigation:
1. He stated on the application that he had never had a back injury or disability when in fact he had a back injury or disability in 1964 while working for Mobile Home Sales and Salvage Yard in Great Bend, Kansas, which was diagnosed by a chiropractor as a slipped disc, and which caused him to lose about a week's work.
2. He stated on the application that he had never had an ulcer or stomach trouble, when in fact he was treated for an ulcer at the company infirmary when he worked for Republic Steel.
3. He stated on the application that he was "laid off" when he worked for the Ormet Corporation, when in fact he was fired because he did not report for work for 6 days. He admitted that he deliberately concealed this from the Company for fear he would not get the job.
4. He stated on the application that he ceased working for Charlotte Metals because there was "no work," when the true facts were that he was fired for padding his payroll by creating overtime situations.
5. His application stated that he attended Reader High School 4 years and graduated in 1954, when actually he never attended that high school at all.
6. There was a 7-year gap in his employment history on the application.
7. He intentionally and wilfully failed to list 16 employers for whom he had worked, including the following companies, because, according to his admission at the trial, he was afraid that if he listed them he would not get the job:
(1) Town & County Mobile Home Sales & Salvage Yard in Great Bend, Kansas.
(2) Hiring hall of Sheet Metal Local 70 in Akron, Ohio.
(3) Boise Sheet Metal Company.
(4) Romano's Restaurant in Jacksonville, Florida.
(5) Bethlehem Steel Company in California.
(6) Size-Tec Oil Company in the oil fields of Kansas.
(7) Three or four unnamed companies in the Kansas oil fields.
(8) Barkley Mobile Homes in Florida.
8. He listed only 4 employers on his application for whom he had worked, namely Republic Steel, Ormet Corporation, Charlotte Metals and DeChaine Air Conditioning Company, giving the dates of his employment for each company. All of the dates listed were incorrect. For instance, he stated on the application that he worked for Ormet Corporation from 1966 to 1969 when in fact the correct dates were from 1958 to 1963.
Bassett admitted several times in his testimony at the trial that he deliberately and intentionally failed to list all of his employers on his application...
To continue reading
Request your trial
-
Taylor v. Cent. Pa. Drug & Alcohol Serv. Corp.
...Steel Corp., 231 NLRB No. 117, 96 L.R.R.M. 1070, 1977 WL 9474, enforcement denied on other grounds, sub nom., NLRB v. Florida Steel Corp., 586 F.2d 436, 451 (5th Cir.1978). Other courts in this circuit, including this court in Gallo v. John Powell Chevrolet, Inc., 779 F.Supp. 804, 817 (M.D.......
-
Davis v. Rutgers Cas. Ins. Co.
...id., citing Florida Steel Corp., 231 NLRB No. 117, 96 L.R.R.M. 1070, enf. denied on other grounds sub nom. NLRB v. Florida Steel Corp., 586 F.2d 436, 451 (5th Cir.1978). Other courts, in the exercise of their discretion, have selected the federal post-judgment interest rate, referred to in ......
-
United Steelworkers of America v. N.L.R.B.
...N.L.R.B. 587 (1976) (Tampa), enforced, 552 F.2d 368 (5th Cir. 1977) (table); 231 N.L.R.B. 651 (1977) (Tampa), enforcement denied, 586 F.2d 436 (5th Cir. 1978); 231 N.L.R.B. 923 (1977) (Croft); 233 N.L.R.B. 491 (1977) (Tampa), enforcement denied, 587 F.2d 735 (5th Cir. 1979); 235 N.L.R.B. 94......
-
Armstrong v. Charlotte County Bd. of County Com'Rs
...interest award "based on the IRS prime rates" that prevailed during the period of the discrimination. Guardian Pools, 828 F.2d at 1512. The NLRB decision cited by the Court referenced 26 U.S.C. § 66214 as the source for the IRS prime rate. See Florida Steel Corp., 231 NLRB 651, 96 L.R.R.M. ......