N.L.R.B. v. Mueller Brass Co.
| Citation | 501 F.2d 680 |
| Decision Date | 04 October 1974 |
| Docket Number | No. 73-3014,73-3014 |
| Parties | 87 L.R.R.M. (BNA) 2461, 75 Lab.Cas. P 10,363 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MUELLER BRASS CO., a subsidiary of U.V. Industries, Inc., Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., Washington, D.C., John J. A. Reynolds, Jr., Director, region 26, N.L.R.B., Memphis, Tenn., Aileen A. Armstrong, Washing, D.C., for petitioner.
Emile C. Ott, M. Curtiss McKee, Jackson, Miss., for respondent.
Before GEWIN, THORNBERRY and SIMPSON, Circuit Judges.
We review a decision of the National Labor Relations Board (the Board) adjudging the respondent, Mueller Brass Company, a subsidiary of U.V. Industries, Inc. (Company) guilty of violations of Sec. 8(a)(1) & (3) of the National Labor Relations Act, Title 29, U.S.C., Sec. 158(a)(1) & (3) (the Act). The Board petitions for enforcement of its Decision and Order 1 requiring (1) that the respondent employer cease its violations of the Act, and (2) grant reinstatement with back pay to its employee George Blanton who was found to have been discharged in violation of the Act. We grant the petition in each respect.
This case began with an alleged violation by employee Blanton of Mueller's 'no-solicitation' rule, which provided as follows:
No employee shall solicit or promote subscriptions, pledges, memberships or other types of support for any drives, campaigns, causes or organizations on company property during working time without express written permission from the Company.
The incident in question occurred the night of September 12, 1972, as Blanton and others working the 'graveyard' shift (11 P.M. to 7 A.M.) were reporting for work at the plant in Fulton, Mississippi. Blanton's duty that evening was as a member of the crew assigned to the Number One Block in the Mueller plant. It was routine procedure for the members of this crew to clock in on the way from the dressing room to the Number One Block area and then to wait in the block area to receive their work assignments for the evening from their supervisor, Larry Gray. The crew members did not know in advance of receiving their assignments what they were to do on any given evening.
On the night in question, Blanton testified that he had been to a Union 2 meeting at 7:30 P.M. The meeting resulted in a decision by several members of the graveyard shift that they would wear union badges and other union insignia to work that evening as a show of open support for unionization ot the Mueller plant. This was apparently the first time during this particular organizational campaign that employees had openly demonstrated union support. 3
Blanton testified that he reported to work on the night of the 12th sometime between 10:45 and 11:00 P.M. He clocked in and then proceeded to the vending machine area where he purchased a cup of coffee. As he was standing in the vending machine area, he was approached by a fellow crew member Randy Reich. According to Blanton, Reich inquired where Blanton had gotten his Union button. Blanton responded that he had gotten it at the union meeting and asked Reich whether he wanted one. Reich answered that he did and Blanton took an extra pin from his pocket and gave it to Reich. This is not the only version of events that evening, however.
Supervisor Larry Gray's account of the incident was that Blanton passed the button to Reich after the two men had reported to the Number One Block area and just prior to their receiving their shift work assignments from Gray. Blanton testified that he did not pass the button to Reich in the work area. He did ask Reich where his button was when he noticed that Reich was not wearing it, and Reich supposedly showed the button in an extended hand to Blanton. Whatever the correct version, Blanton was instructed by Gray to report to the office of the night foreman, Paul Stamper, as the other men were given their work assignments. After a brief time, Stamper arrived and confronted Blanton with the accusation that he had passed the union button to Reich during work time in violation of the company no-solicitation rule. Blanton denied this and asserted that he had given Reich the button in the vending machine area. Stamper thereafter questioned both Gray and Reich. Reich apparently told Stamper that Blanton had given him the button in the dressing room, which was at variance with Blanton's statement that the button had been passed in the vending machine area, but still supported Blanton's denial that the button had been passed in the Number One Block area. Stamper decided that Blanton's conduct required suspension, in accordance with company regulations, pending an investigation into the incident and resolution of the inconsistent explanations of the occurrence. Stamper, accordingly, ordered Blanton to clock out and go home for the evening.
On his way out of the building, Blanton sought out Gray in the Number One Block area and accused him of being a 'damn liar.' He further abused Gray verbally and invited him outside to settle matters between them. Gray declined the invitation. Blanton thereafter returned to Stamper's office and asked that he be fired rather than suspended because he did not want the uncertainty whether he would be discharged hanging over his head. Stamper replied that company rules required that a hearing be held before a discharge could be ordered, and again instructed Blanton to leave the plant. A hearing was subsequently held on September 25th, which Blanton did not attend. He testified that he was unable to attend because of the funeral of a friend. The decision was made to discharge Blanton on grounds: (i) that he had violated the company's no-solicitation rule; (ii) that Blanton had been insubordinate to his supervisor, Gray, after his suspension; and (iii) that Blanton had requested that he be discharged in his post-suspension encounter with foreman Stamper.
A hearing was held before an Administrative Law Judge (ALJ) in early January 1973 regarding Blanton's discharge and other alleged violations of the Act, supra. The ALJ found that Blanton's suspension and discharge for violation of the company no-solicitation rule constituted violations of Sec. 8(a)(1) of the Act. The judge concluded that, even accepting supervision Gray's account of the button-passing incident as true, the period during which Blanton gave Reich the union button was 'non-work' time under the rules announced in NLRB v. Monarch Tool Co., 6 Cir. 1954, 210 F.2d 183, cert. denied 347 U.S. 967, 74 S.Ct. 778, 98 L.Ed. 1109, and NLRB v. Essex Wire Corp., 9 Cir. 1957, 245 F.2d 589. The ALJ further concluded that the discharge could not be justified either on the basis of Blanton's post-suspension outburst against supervisor Gray or on the basis of his request to general foreman Stamper that he be discharged since this conduct was precipitated by the unlawful suspension. NLRB v. M & B Headwear Co., Inc., 4 Cir. 1965, 349 F.2d 170.
The ALJ found additionally that the suspension and discharge constituted violations of Sec. 8(a)(3) of the Act. She based this conclusion on a finding that the company had a distinct anti-union animus and that, absent this animus, it would not have applied the no-solicitation rule so strictly as to reach Blanton's handing a union button to a fellow employee during the period that the two were waiting to receive their work assignments. The finding of anti-union animus was predicated upon testimony of plant manager Charles Lymburner that he '(had) not made it any secret of my opinion that we do not need a union at Mueller Brass Company,' and upon a finding that plant industrial relations manager Farris Gregory had made statements to at least two employees indicating that Union organizers were being blacklisted by employers in the area and that Mueller Brass might be forced to shut down if it were unionized. 4
Based on her findings and conclusions, the ALJ issued a cease and desist order with posting of notice requirements. The order directed that Blanton be offered reinstatement with back pay from the date of his unlawful suspension. On application to the Board by both parties, the Board adopted the findings and conclusions of the Administrative Law Judge and directed the Company to comply with the Order.
This case presents close questions in several respects. Enforcement of the Board's order should follow if its findings are supported by substantial evidence in the record considered as a whole and are correct as a matter of law. Title 29, U.S.C., Sec. 160; NLRB v. Universal Camera Corp., 1950, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456. It is not our function to overturn a Board choice between two equally plausible inferences from the facts if the choice is reasonable, even though we might reach a contrary result if deciding the case de novo. NLRB v. United Insurance Co., 1968, 390 U.S. 254, 88 S.Ct. 988, 19 L.Ed.2d 1083; NLRB v. Standard Forge & Axle Co., 5 Cir. 1969, 420 F.2d 508, cert. denied 400 U.S. 903, 91 S.Ct. 140, 27 L.Ed.2d 140. We turn to a review of the Board's Decision and Order in the light of these rubrics.
The Sec. 8(a)(1) Violation. The Company disputes the ALJ's finding that its suspension and discharge of Blanton violated Sec. 8(a)(1) of the Act because the alleged infraction of the Company no-solicitation rule occurred during non-working time. It emphasizes that the rule applies by its terms to so-licitation 'during working time or in working areas,' and argues that because the solicitation here occurred in what was unquestionably a working area, the Board finding must be reversed under our prior decision in Patio Foods v. NLRB, 5 Cir. 1969, 415 F.2d 1001. The ALJ and the Board rely upon the fact that Blanton and Reich had not yet received their work assignments for the evening and had not engaged in actual...
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