N.L.R.B. v. Mueller Brass Co.

• Decision Date: 17 March 1975
• Docket Number: No. 74--1840,74--1840
• Citation: 509 F.2d 704
• Parties: 88 L.R.R.M. (BNA) 3236, 76 Lab.Cas. P 10,751 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MUELLER BRASS CO., a subsidiary of U.V. Industries, Inc., Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 704

509 F.2d 704

88 L.R.R.M. (BNA) 3236, 76 Lab.Cas. P 10,751

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MUELLER BRASS CO., a subsidiary of U.V. Industries, Inc., Respondent.

No. 74--1840.

United States Court of Appeals Fifth Circuit.

March 17, 1975.

Elliott Moore, Deputy Associate Gen. Counsel, Charles P. Donnelly, N.L.R.B., Washington, D.C., John J. A. Reynolds, Jr., Director, Reg. 26, N.L.R.B., Memphis, Tenn., for petitioner.

Emile C. Ott, M. Curtiss McKee, Jackson, Miss., for respondent.

Application for Enforcement of an Order of the National Labor Relations Board (Mississippi case).

Before COLEMAN, CLARK and RONEY, Circuit Judges.

RONEY, Circuit Judge:

This is a typical NLRB enforcement proceeding. The applicable law is settled and the sole question for us on review is whether or not the record contains substantial evidence to support two findings of the Board: first, that the Company created the impression of surveillance of its employees' Union activities; and second, that a single employee's three-day suspension occurred because of his Union activities. Failing to find such evidence, we deny enforcement.

The National Labor Relations Board (the Board) adjudged the respondent, Mueller Brass Company, a subsidiary of U.V. Industries, Inc. (the Company) guilty of violating Section 8(a)(1) of the National Labor Relations Act (the Act) ¹ in a surveillance incident involving one employee and of violating Sections 8(a)(1) and (a)(3) of the Act ² in a separate incident involving the suspension of another employee. The Board petitions for enforcement of its Decision and Order ³ requiring that the Company (1) cease its violations of the Act, and (2) make the suspended employee whole for any loss of earnings suffered as a result of the Company's discrimination against him for Union activities.

The Board's determination must be sustained if supported by substantial evidence. NLRB v. Brown, 380 U.S. 278, 85 S.Ct. 278, 13 L.Ed.2d 839 (1965); Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). If the Board's decision is based upon such relevant evidence as might be accepted as adequate by a reasonable person, we are not at liberty to deny enforcement merely because the evidence may also reasonably support other conclusions or because we might have reached a different conclusion had the matter come before this Court de novo. NLRB v. United Insurance Co., 390 U.S. 254, 88 S.Ct. 988, 19 L.Ed.2d 1083 (1968); NLRB v. O. A. Fuller Super Markets, Inc., 374 F.2d 197 (5th Cir. 1967); NLRB v. Camco, Inc., 369 F.2d 125 (5th Cir. 1966). Although the scope of our review is thus limited, we may deny enforcement of an order of the Board if, after full review of the record, we are unable conscientiously to conclude that the evidence supporting the Board's decision is substantial. Universal Camera Corp. v. NLRB, 340 U.S. at 488, 71 S.Ct. 456; NLRB v. O. A. Fuller Super Markets, Inc., 374 F.2d at 200.

Surveillance--Employee Stockton

The facts which formed the basis for the Board's decision that the Company created the impression of surveillance of Union activity in violation of Section 8(a)(1) of the Act are brief. Abe Rubel Stockton worked as a janitor from May 1972 until February 27, 1973, in the Company's plant at Fulton, Mississippi, where the Company, a manufacturer of copper tubing, employed approximately 350 workers. The United Steelworkers of America, AFL--CIO--CLC (the Union) has been trying to organize the Company's employees at the Fulton plant since 1971. Having lost a representation election in September 1971, the Union began a new campaign in the summer of 1972. Sometime in the fall of 1972, Stockton was cleaning the break room when Farris Gregory, the plant personnel manager, entered the room to purchase a cup of coffee. At the hearing before the Administrative Law Judge, Stockton recounted the ensuing conversation:

He got a cup of coffee at the vending machine and he turned around to me, and he said, 'Rubel, I have been hearing some tales on you,' and I said, 'What's that, Farris?' He said, 'I have heard from some of the boys that you have been loaning your car to boys to go to Union meetings.' I just laughed and told him, I said, 'Well, it's my car, I can do as I please'. That was the extent of the conversation. He went on out.

Although Stockton testified that he did not consider the incident 'a joke,' he stated that Gregory smiled at him and that he returned the smile because 'when a fellow is nice to me, I'm nice to him.' Stockton further testified that no other persons heard the conversation and that, in fact, he had not been lending his car to persons to attend Union meetings.

At the conclusion of the hearing, the Administrative Law Judge ruled that the Company was guilty of creating the impression of surveillance of Union activity in violation of Section 8(a)(1) of the Act. The Administrative Law Judge based his decision upon two factors: (1) the unrefuted testimony of Stockton at the hearing, and (2) certain findings which the Board made in a prior case involving the Company. ⁴ In the case at bar, the Board affirmed the findings and conclusions of the Administrative Law Judge and adopted his cease and desist order.

The Company first contends that the conversation between Stockton and Gregory occurred more than six months prior to March 8, 1973, the date on which the charge against the Company was filed with the Board and, thus, any proceeding against the Company was barred by the Statute of Limitations established by Section 10(b) of the Act. Section 10(b) reads in part: su. . . Provided, That no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made . . ..

The Company argues that only an alleged violation of the Act which occurred after September 9, 1972, could be the subject of a charge filed on March 8, 1973, and the Company points out that Stockton testified that the conversation in question occurred '. . . around September or maybe October '72.' The Board, adopting the Decision and Order of the Administrative Law Judge, found that the incident in question occurred in the 'fall of 1972.' The Statute of Limitations is an affirmative defense and, as such, must be proved by the party alleging same. In the case at bar, the Company offered no evidence in opposition to Stockton's testimony. The Company, therefore, has failed to establish that the conversation between Stockton and Gregory occurred prior to September 9, 1972.

The Company also argues that the Administrative Law Judge erred in allowing the Board to amend its complaint against the Company to conform the date of the incident in question to the testimony of Stockton. The Company, however, has been unable to demonstrate that it was in any way prejudiced by the amendment. We, therefore, dismiss this argument and proceed to the merits.

The Company contends that Stockton's testimony, standing alone, does not establish a per se violation of Section 8(a)(1). The Company additionally asserts that the Administrative Law Judge erred in taking judicial notice of the former proceeding between the Company and the Board which, at the time of the instant hearing, was before this Court on a petition for enforcement, arguing that the prior findings of the Board were not 'final' for the purposes of notice because they were subject to rejection by this Court.

Section 8(a)(1) of the Act does not proscribe all surveillance of employee activities by the employer. The only surveillance, or impression of surveillance, which the Act prohibits is that which tends to interfere with, restrain, or coerce Union activities. NLRB v. Southwire Co., 429 F.2d 1050 (5th Cir. 1970), cert. denied, 401 U.S. 939, 91 S.Ct. 932, 28 L.Ed.2d 218 (1971). As we stated in Hendrix Mfg. Co. v. NLRB, 321 F.2d 100 (5th Cir. 1963),

Surveillance becomes illegal because it indicates an employer's opposition to unionization, and the furtive nature of the snooping tends to demonstrate spectacularly the state of the employer's anxiety. From this the law reasons that when the employer either engages in surveillance or takes steps leading his employees to think it is going on, they are under the threat of economic coercion, retaliation, etc.

321 F.2d at 104--105, n. 7.

Stockton's testimony, in and of itself, does not prove that the Company created an impression of surveillance in violation of Section 8(a)(1) of the Act. Standing alone, without evidence of a background of antiunion animus or a widespread pattern of antiunion conduct on the part of the Company, Stockton's statements do not establish that the Company interfered with, restrained, or coerced Union activities in any manner. From Stockton's account of the smiling encounter at the coffee machine, the personnel manager might well have intended his remarks to reflect the Company's prounion sentiments. In fact, however, Stockton's testimony is not the sole evidence of the Company's alleged violation of Section 8(a)(1).

In order to supply a background of antiunion animus for Stockton's statements, the Administrative Law Judge took judicial notice of certain findings which the Board had made in a prior proceeding between the instant parties. ⁵ Although the previous decision of the Board was before this Court on a petition for enforcement at the time of the administrative hearing in the instant case, it was not error for the Administrative Law Judge, or the Board in adopting the findings of the Administrative Law Judge, to take notice of that proceeding. In NLRB v. American Art Industries, Inc., 415 F.2d 1223 (5th Cir. 1969), we reviewed two separate proceedings involving the Board and American Art Industries, Inc. and held that it was proper for the trial examiner to take judicial notice of the first proceeding between the...