N.L.R.B. v. Warren L. Rose Castings, Inc.
| Decision Date | 12 December 1978 |
| Docket Number | No. 77-3597,77-3597 |
| Citation | 587 F.2d 1005 |
| Parties | 100 L.R.R.M. (BNA) 2303, 85 Lab.Cas. P 11,022 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. WARREN L. ROSE CASTINGS, INC., d/b/a V & W Castings, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Elliott Moore, Joseph P. Norelli, Washington, D.C., for petitioner.
A. Patrick Nagel, Irvine, Cal., for respondent.
Application for Enforcement of an Order of the National Labor Relations Board.
Before CHAMBERS and HUG, Circuit Judges, and FERGUSON *, District Judge.
The National Labor Relations Board applies for enforcement of its order requiring Warren L. Rose Castings, Inc. to cease violations of the National Labor Relations Act, and to reinstate employee Michael McMurry with back pay. 1 We find the Board's decision was supported by substantial evidence and direct that the order be enforced.
This case turns principally on resolution of conflicting testimony and raises once again the question of what deference ought to be accorded the Board's findings when those findings constitute a reversal of the findings made by the administrative law judge who actually heard the case.
Among the facts that are not seriously contested are that Rose Castings hired McMurry on May 13, 1976 as a core machine operator and that McMurry was fired October 29, 1976. During this course of time McMurry was absent from work without prior authorization or explanation, on 13 different days. It appears that he was orally warned about unexplained absences in May or June, and again in August. 2 In addition, McMurry was orally warned in August about returning late to work after his lunch breaks. It is not disputed that McMurry never received a written warning of any kind. Also, there is no evidence to suggest that his absences or tardiness increased during the latter weeks of his employment. Rose Castings concedes that McMurry's work product was "very good".
After work on October 28, 1976, McMurry met with a union organizer and obtained some pro-union literature and union authorization cards to distribute to his fellow employees. McMurry reported for work on time, at 7:00 A.M. the next day. He distributed cards at the time he punched in, during his morning break and at lunch time. In addition, two or three times during working hours other employees approached McMurry to discuss the union proposal and McMurry talked with them. On one of these occasions, McMurry was talking to a co-employee outside the washroom when an individual named Danny walked by. Shortly thereafter, Danny conferred with Phillip Puleo, McMurry's foreman, and pointed to McMurry during the conversation. Within an hour, McMurry was summoned to the office of Melvin Maxwell, Rose Castings's vice president. Maxwell handed McMurry a final paycheck and told him he was discharged. Maxwell expressly refused to offer McMurry a reason for the firing. He testified at the hearing that his reason was to teach McMurry a lesson; since McMurry did not inform the company of his absences, the company would not give McMurry a reason for firing him.
There was no testimony to the effect that either Puleo or Maxwell actually witnessed any of McMurry's union activities.
On a number of details, the testimony of witnesses was in conflict. Maxwell said that Puleo reprimanded McMurry for being late about two weeks before the firing, adding that his real motivation for the reprimand was not McMurry's tardiness, but rather his habit of leaving his work area during working hours, to talk to other employees. This was the only evidence suggesting that there was a problem involving McMurry's on-the-job behavior, as opposed to his tardiness and unexplained absences. In direct contrast, Puleo testified that he had only seen McMurry leave his machine one time before the day of the discharge, and that was just one week earlier. Puleo stated that not only did he not reprimand McMurry on that occasion, he never even mentioned the incident. Also, another core machine operator testified that he sometimes left his machine to talk to other employees and had never been warned or reprimanded in this connection.
Puleo had trouble recalling both the time and place of his conversation with Danny. He gave several versions. The administrative law judge credited a version that placed the conversation in Puleo's office at 10:00 or 11:00 A.M. However, Puleo did recall that the subject of the conversation was McMurry's wanderings away from his machine, and recalled that Danny pointed to McMurry at one point. McMurry was not visible from Puleo's office and Danny did not encounter McMurry away from his machine until after lunch, so the conversation must have been not long before McMurry was summoned to Maxwell's office.
The credibility of Maxwell and Puleo was suspect in some other, less directly relevant ways. Both of them recalled that the whole department received a raise in July, while McMurry's recollection was that it came in September. Rose Castings has since conceded that McMurry's recollection was correct. Both Maxwell and Puleo attributed the earlier leniency regarding McMurry's absences to an acute need for manpower during a time of expansion and transition in the work force, yet Maxwell admitted that the work force did not grow appreciably between May and December of 1976. While there may have been considerable turnover, there was no evidence to show a significant decrease in turnover in October or November, such as would tend to explain the sudden strictness of attitude toward McMurry.
The administrative law judge generally credited Maxwell and Puleo, and reached the conclusion that Rose Castings discharged McMurry for job-related reasons, and not out of any anti-union motive. In doing so, he found that there was no evidence to suggest that Rose Castings's management had knowledge of McMurry's union activities. The Board, while noting its "longstanding policy (of) attach(ing) great weight to the credibility findings of an administrative law judge", disagreed. It found that the weight of the evidence,...
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