N.L.R.B. v. Rich's Precision Foundry, Inc., No. 81-1236

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtBefore PELL and CUDAHY, Circuit Judges, and DUMBAULD; PELL
Citation109 L.R.R.M. 2143,667 F.2d 613
Parties109 L.R.R.M. (BNA) 2143, 92 Lab.Cas. P 13,161 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. RICH'S PRECISION FOUNDRY, INC., Respondent.
Docket NumberNo. 81-1236
Decision Date15 December 1981

Page 613

667 F.2d 613
109 L.R.R.M. (BNA) 2143, 92 Lab.Cas. P 13,161
NATIONAL LABOR RELATIONS BOARD, Petitioner,
v.
RICH'S PRECISION FOUNDRY, INC., Respondent.
No. 81-1236.
United States Court of Appeals,
Seventh Circuit.
Argued Sept. 23, 1981.
Decided Dec. 15, 1981.

Page 617

James Donathen, Elliott Moore, N. L. R. B., Washington, D. C., for petitioner.

Loren J. Comstock, Abbott, Comstock & Goeres, Indianapolis, Ind., for respondent.

Before PELL and CUDAHY, Circuit Judges, and DUMBAULD, Senior District Judge. *

PELL, Circuit Judge.

This case arises on the petition of the National Labor Relations Board (Board or NLRB) for enforcement of its order finding the Respondent, Rich's Precision Foundry, Inc. (Company), in violation of §§ 8(a)(1) and (3) of the National Labor Relations Act as amended, 29 U.S.C. §§ 158(a)(1) and (3) (1976). The Company has cross-petitioned this court pursuant to 29 U.S.C. § 160(f) to review and set aside the order. The primary issues for our determination are whether the Board's findings that the Company violated §§ 8(a)(1) and (3) were supported by substantial evidence on the record as a whole and whether the employees allegedly discharged for union activities were supervisors excluded from the protection of the Act.

The Board 1 found that the Company violated § 8(a)(1) of the Act by maintaining an overly broad no solicitation and no distribution rule, threatening employees with discharge and plant closure for union support, conveying to employees an impression of Company surveillance of union activities, interrogating employees about union activities, soliciting an employee to engage in anti-union activity, and inducing employees to abandon the union by granting an increased Christmas bonus. The Board also found that the Company violated §§ 8(a)(1) and (3) of the Act by discharging Felix Birt and Homer Acres for their union activities and by laying off Kurt Elder and Greg Schumacher temporarily for lack of work until replacements for Birt and Acres were arranged. The Board ordered the Company to cease and desist from the unfair labor practices, to reinstate Birt and Acres, to make whole Birt, Acres, Elder, and Schumacher for all wages lost as a result of their unlawful layoffs, and to post an appropriate notice to inform the employees of these actions.

I. THE FACTUAL BACKGROUND

A. The Company's Operations and Personnel

The Company manufactures and distributes brass and aluminum castings at its foundry in Yorktown, Indiana. The Company employed approximately 65 people at the time of the alleged violations. The management and supervisory personnel of the plant included Richard Reece, owner and president; Steven Bailey, plant manager; and several foremen, including Dewey Miller and David Bennett. One of the Company's shop rules subjected employees to discipline for "distribution of any literature of soliciting or selling of any kind during working hours."

Prior to their discharges, Felix Birt and Homer Acres were employed at the plant as senior molders. Acres and Birt, in the course of their duties, gave assistance and instruction to the other less experienced molders in their department. The Company

Page 618

asserted that these instructional duties excluded Birt and Acres from the coverage of the Act as supervisors under 29 U.S.C. § 152(3) (1976). In support of its position, the Company introduced a December, 1978 organizational chart which included Birt and Acres in a list of foremen. President Reece testified their names were thus listed simply "because they're foremen;" a molder, Greg Schumacher, who worked with Birt, testified that Reece had once told him that Birt was a foreman.

B. Threats Against Union Organization

Birt testified that in mid-June Reece stated in a conference with the molders that there "definitely (would be) no union" and that "anyone caught talking about a union would be fired." Bailey and Miller, who were present at the meeting, testified that they had never heard Reece make such a statement. Reece did not testify as to the incident. 2

In August or September, Birt and Acres began to talk to the other employees about organizing a union due to dissatisfaction with wages and working conditions. In November, Acres and Birt, along with the other molders, ceased work to protest the Company's failure to install a shield on an overhead hopper. As spokesman for the molders, Birt met with Reece, Bailey, and Miller to request the Company to install the shield and grant a future pay raise. Birt said he warned them at one point that "if they (the company) didn't ... that we would get a union up." Approximately the last week in November, Birt and the other molders were discussing with foreman Miller the possibility of a union contract. Birt said that if the employees did not get a raise, they would "get a union," to which Miller replied they "couldn't do that" and "if (they) did, that they would close the door first." Miller did not deny making this statement.

C. The Locker Search

About December 1, Acres distributed to the employees a union pamphlet outlining examples of illegal conduct by an employer during a union campaign. On December 5, Miller and Bailey conducted a search of Birt's locker at the foundry. Birt testified that Miller and Bailey "said that they saw an employee from the cleaning room reading a piece of paper, and they have reason to believe that it had something to do with the union that could hurt the company, and they wanted to search my locker." Another witness corroborated that Miller had said that he was searching for a paper that an employee had been reading. Bailey testified that Miller had suggested the search because "he believed that Felix (Birt) had something that he should not have." He also confirmed that Miller had told Birt that he believed Birt had something "that would be a detriment to the company." Upon searching the locker, Miller pulled out a piece of paper which turned out to be a tardiness warning on the back of a copy of the shop rules. Bailey then apologized to Birt but indicated he was "very disappointed." There was testimony that an employee had been dismissed for drug problems one month earlier and that there had been some problems with employees drinking alcoholic beverages in the plant.

D. The Questioning of Anna Caldwell by Manager Bailey

Between December 5 and 7 Birt arranged a union organizational meeting for the evening of December 7. Both Birt and Acres publicized the meeting to the employees. In the morning of December 7, Bailey called a cleaning lady at the plant, Anna Caldwell, into his office. He asked her the nature of her discussion with other employees, including Acres, in the lounge, to which she replied that she had been talking with Acres about "bootlegging." According to Caldwell,

Page 619

Bailey responded, "Now, come on Anna, what were you talking about?" She replied that that had been all they were talking about, but if he "was asking about the union" she would be "the first to sign the card." She then left Bailey's office without any further discussion.

E. The Discharges of Birt, Acres, Elder, and Schumacher

A union organizational meeting was held on December 7 in which several employees, including Acres, Birt, Caldwell, Elder, and Schumacher, signed cards in support of the union. The next day, Reece instructed the plant manager Bailey and foreman Miller to discharge Birt and Acres but to say they were being laid off for lack of work so that they could draw unemployment benefits. Birt and Acres testified that around one o'clock in the afternoon Miller and Bennett told them to clean out their lockers and go to Bailey's office. Acres also testified that he had work to do when he was approached by Miller and Bennett. When Acres and Birt arrived to meet with Miller, Bennett and Bailey in Bailey's office, they were told by Bailey they were being "laid off." When Birt and Acres asked if they were being fired, Miller explained they were being laid off so they could draw unemployment. Birt also testified that Miller told them, "I warned you I would get you sooner or later." Acres and Birt then obtained their paychecks and left the foundry.

Their discharges resulted in shutdown of two production lines. Kurt Elder and Greg Schumacher, who worked with Birt and Acres on these production lines, were temporarily laid off when they ran out of work to perform as a result of Birt's and Acres' discharges. Elder and Schumacher were recalled approximately one week later after Birt's and Acres' positions had been filled.

F. The Unemployment Claims

Both Birt and Acres filed claims for unemployment compensation. In response to a notice of the claims from the Indiana Employment Security Division, Bailey certified on an Eligibility Information Report that Birt and Acres were ineligible for unemployment. The reason given on the form was that they had been laid off "partially due to lack of work" but would not be re-employed due to their "insubordination, poor performance, refusal to accept supervision, and in general ... defiant attitude." The Company does not appear to have otherwise contested their eligibility.

G. The Company's Statements and Conduct After the Discharges

On December 15, Acres went to the foundry to pick up his last paycheck. Reece's secretary told Acres that he could have his paycheck after he had talked to Reece. According to Acres, Reece told Acres to "go out and tell the people that the damn union wasn't no good," and to ask Miller for his job back. Reece also asked how many people were at the union meeting the day before. When Acres replied that Reece "didn't have to ask because he already knew," Reece asked Acres to meet with Bailey, Miller, and himself that afternoon. Acres did so, and during the meeting Reece said that "before he would have a union he would close the damn doors." Acres said that Reece then told him he "was the highest paid man that he had, and why was I in on...

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41 practice notes
  • U.S. Marine Corp. v. N.L.R.B., AFL-CIO
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • September 25, 1991
    ...Chrysler's employees from being hired as a majority in order to avoid a bargaining obligation. See NLRB v. Rich's Precision Foundry, Inc., 667 F.2d 613, 626 (7th Cir.1981) (Board properly relied on employer's manifest hostility toward unionization combined with knowledge of employee's union......
  • N.L.R.B. v. P*I*E Nationwide, Inc., Nos. 89-2585
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • January 17, 1991
    ...activity might support the conclusion that P*I*E's 1983 motivation had not abated. See id. at 192; NLRB v. Rich's Precision Foundry, Inc., 667 F.2d 613, 626 (7th Cir.1981). Taunting is not union activity, however, and mere evidence of animosity toward union members is not evidence of animus......
  • N.L.R.B. v. Berger Transfer & Storage Co., No. 81-1239
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • May 13, 1982
    ...and the Board, and will not be overturned by a reviewing court absent extraordinary circumstances. NLRB v. Rich's Precision Foundry, Inc., 667 F.2d 613 (7th Cir. 1981); NLRB v. Mars Sales & Equipment Co., 626 F.2d 567 (7th Cir. 1980); Medline Industries, Inc. v. NLRB, 593 F.2d 788 (7th Cir.......
  • Hardin County Educ. Ass'n, IEA-NEA v. Illinois Educational Labor Relations Bd., IEA-NE
    • United States
    • United States Appellate Court of Illinois
    • August 18, 1988
    ...it has been held shifting rationales can signal an unlawful discharge. (See, e.g., NLRB v. Rich's Precision Foundry, Inc. (7th Cir.1981), 667 F.2d 613, 626, 109 L.R.R.M. 2143; Nor-Cal Security (1984), 270 N.L.R.B. 543, 551, 117 L.R.R.M. 1112.) However, the Labor Board did not find the Distr......
  • Request a trial to view additional results
41 cases
  • U.S. Marine Corp. v. N.L.R.B., AFL-CIO
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • September 25, 1991
    ...Chrysler's employees from being hired as a majority in order to avoid a bargaining obligation. See NLRB v. Rich's Precision Foundry, Inc., 667 F.2d 613, 626 (7th Cir.1981) (Board properly relied on employer's manifest hostility toward unionization combined with knowledge of employee's union......
  • N.L.R.B. v. P*I*E Nationwide, Inc., Nos. 89-2585
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • January 17, 1991
    ...activity might support the conclusion that P*I*E's 1983 motivation had not abated. See id. at 192; NLRB v. Rich's Precision Foundry, Inc., 667 F.2d 613, 626 (7th Cir.1981). Taunting is not union activity, however, and mere evidence of animosity toward union members is not evidence of animus......
  • N.L.R.B. v. Berger Transfer & Storage Co., No. 81-1239
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • May 13, 1982
    ...and the Board, and will not be overturned by a reviewing court absent extraordinary circumstances. NLRB v. Rich's Precision Foundry, Inc., 667 F.2d 613 (7th Cir. 1981); NLRB v. Mars Sales & Equipment Co., 626 F.2d 567 (7th Cir. 1980); Medline Industries, Inc. v. NLRB, 593 F.2d 788 (7th Cir.......
  • Hardin County Educ. Ass'n, IEA-NEA v. Illinois Educational Labor Relations Bd., IEA-NE
    • United States
    • United States Appellate Court of Illinois
    • August 18, 1988
    ...it has been held shifting rationales can signal an unlawful discharge. (See, e.g., NLRB v. Rich's Precision Foundry, Inc. (7th Cir.1981), 667 F.2d 613, 626, 109 L.R.R.M. 2143; Nor-Cal Security (1984), 270 N.L.R.B. 543, 551, 117 L.R.R.M. 1112.) However, the Labor Board did not find the Distr......
  • Request a trial to view additional results

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