N.L.R.B. v. Instrument Corp. of America

• Decision Date: 04 August 1983
• Docket Number: No. 82-1408,82-1408
• Citation: 714 F.2d 324
• Parties: 113 L.R.R.M. (BNA) 3649, 98 Lab.Cas. P 10,356 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INSTRUMENT CORPORATION OF AMERICA, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 324

714 F.2d 324

113 L.R.R.M. (BNA) 3649, 98 Lab.Cas. P 10,356

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INSTRUMENT CORPORATION OF AMERICA, Respondent.

No. 82-1408.

United States Court of Appeals Fourth Circuit.

Argued Jan. 10, 1983.

Decided Aug. 4, 1983.

Lawrence S. Wescott, Baltimore, Md. (Peter E. Keith, Venable, Baetjer & Howard, Baltimore, Md., on brief), for respondent.

Frances H. O'Connell, Washington, D.C. (Allison W. Brown, Jr., William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Associate Gen. Counsel, Elliott Moore, Deputy Gen. Counsel, Washington, D.C., on brief), for petitioner.

Before RUSSELL and ERVIN, Circuit Judges, and FIELD, Senior Circuit Judge.

ERVIN, Circuit Judge:

In this case, the National Labor Relations Board seeks enforcement of its order directing Instrument Corporation of America ("ICA" or "the Company") to cease and desist from practices prohibited under section 8(a)(1) and (3) ¹ of the National Labor Relations Act, 29 U.S.C. § 158(a)(1) and (3), and to reinstate, with back pay, five former employees discharged allegedly for union organizing activities. An administrative law judge for the NLRB found that ICA wrongfully discharged Lynn Brown, Frank Ferrell, Fay Gray, Grace Harry, and Richard Schucker for engaging in protected activities. A panel of the NLRB affirmed, adopting the opinion of the ALJ. On the basis of substantial evidence in the record which sustains the ALJ's findings, we now grant enforcement as to Brown, Ferrell, Gray, and Harry. However, we deny enforcement as to Schucker.

I.

Instrument Corporation of America manufactures electronic stencil cutters. The Company's facility in Baltimore is divided into three departments--mechanical assembly, electrical assembly, and testing--each with its own supervisor. The physical layout of the facility fosters intermingling of all employees and supervisors: everyone works in a single room which also serves as a common lunch area, and the adjacent parking lot is used by employees and supervisors alike.

During the period relevant to this case the Company employed around twenty-five production and maintenance employees. Up until May 13, 1980, Lynn Brown and Frank Ferrell worked as mechanical assemblers. Fay Gray and Grace Harry were employed in the electrical assembly department. Richard Schucker was a tester until his dismissal on May 16, 1980.

In the fall of 1978, a group of ICA employees became disenchanted with management policies. Fay Gray suggested that the local chapter of the International Brotherhood of Electrical Workers ("IBEW") be contacted. Soon thereafter, three employees called on Local 24 of the IBEW and obtained union authorization cards. The three were Frank Ferrell, Robert Drummond, and Paul Bosnick, Jr., the son of ICA's manufacturing manager. Bosnick later told his father that he, Ferrell and Drummond had visited Local 24.

IBEW Local 24 conducted an organizing drive at ICA during the last few months of 1978 and managed to secure enough authorization cards to file a petition for representation with the NLRB on January 15, 1979. Pursuant to a stipulation with the Company, an election was set for March 23, 1979.

During the nine-week campaign that followed, employees Lynn Brown, Ferrell, Gray, Harry, and Schucker attended several union rallies at which plant supervisors were also present. These meetings were held after hours; employees desisted from campaign activities--including the distribution of union literature and the wearing of partisan buttons--during the work day.

Opposition to the union was personally led by the president of the Company, J. David Bryan. He wrote several open letters to employees warning of the drawbacks of unions. He held a grievance session for employees at which Lynn Brown, Ferrell, Gray, and Schucker voiced dissatisfaction over company policies. In management meetings Bryan instructed supervisors to speak out against the union with employees and to report back to him with information on the campaign. No evidence demonstrates, however, that Bryan specifically solicited the names of union partisans from supervisors.

Three witnesses for the NLRB testified at the proceedings below that Bryan threatened to "farm out" the Company's contracts rather than "answer to a union." This statement was alleged to have been made at a management meeting attended by supervisors Mary Brown and Daisy Wenk. Mary Brown reported the comment to Lynn Brown, ² and Wenk relayed it to Fay Gray. The testimony of Mary Brown, Lynn Brown, and Gray pertaining to Bryan's threat is contradicted by Paul Bosnick, ICA's manufacturing manager, who was present at the meeting where the statement was allegedly made, and Bryan himself. Both men claim no such comment was made.

In the March 23 election, the IBEW was defeated by two votes, 14-12. Following the election, employee Frank Ferrell requested a meeting with Bryan to discuss wage policies. At the meeting, Ferrell and Lynn Brown registered complaints over prevailing practices at the Company. Three other employees were also present at the meeting who are still employed by the Company.

Eleven months later in February, 1980, ICA suffered a severe economic setback when the purchaser of 90% of the Company's product, Gestetner Co., demanded modification of the supply contract between them. Bryan agreed to a suspension of shipments of stencil cutters for the months of March through May, followed by normal shipments in July and August, followed by reduced shipments for the duration of the year. From December 31, 1979 to April 31, 1980, ICA's accounts receivable fell by 70%, and its cash on hand dipped by 37%. ³ Faced with these difficulties, Bryan claims to have met with manufacturing manager Paul Bosnick in March, 1980 for the purpose of paring the workforce by 15%. Although at least one employee had been told that layoffs, if ever required, would fall according to seniority, those ultimately dismissed--Mary Brown, Lynn Brown, Ferrell, Gray, and Harry--reflected tenures of varying length at the Company. President Bryan offered economic reasons for the selection of each laid off employee; ⁴ the NLRB argues, of course, that it was the pro-union sympathies of the individuals tapped that motivated their dismissal.

The layoffs claimed to have been decided upon in March were not implemented right away. Bryan maintains this is because he hoped to find alternative purchasers during an impending trip to Brazil and Venezuela that would avoid the necessity of layoffs.

In April, while Bryan was away in South America, a new union organizing drive was begun. Employees Ferrell and Schucker obtained authorization cards from Local 24 which they distributed in the plant parking lot to their fellow workers before and after hours and during lunch. On April 28, the union filed a new petition for representation.

Bryan returned to Baltimore on May 7, his quest for new business having proved fruitless. On May 8, he learned of the new petition for representation. On May 12, Bryan, who had entered the hospital for surgery, directed the permanent layoffs of Mary Brown, Lynn Brown, Ferrell, Gray, and Harry. The five were dismissed on May 13.

That same day, Richard Schucker walked off his job at lunchtime, failing to return until 5:00 P.M. Schucker, who had been employed at ICA for one year and eight months, had a history of absenteeism. He even received a notice of dismissal in January, 1980, on account of his spotty attendance, but his job was saved when a supervisor resigned that month. Although Schucker's hours were more flexible than the assembly line workers' at ICA, he was expected to put in forty hours a week, which he had not met since January, 1980. Prior to leaving the plant on May 13, Schucker indicated to his supervisor, Robert Sikora, that he intended to take some vacation time that week. However, he did not tell Sikora that he planned to take off that afternoon. When Schucker reappeared at 5:00 P.M., Sikora demanded an explanation and apparently agreed to count Schucker's afternoon recess as vacation time. President Bryan felt differently, however, for when he learned three days later of Schucker's conduct, he ordered that Schucker immediately be fired. Sikora carried out this order on May 16. Schucker had been a vocal union sympathizer, and so he asked Sikora whether his dismissal was prompted by his union activities. Sikora replied it was not.

According to Bryan, the policy at ICA was that all layoffs were permanent, so that if business improved the Company could choose between hiring new employees at base wage rates or rehiring laid off employees at their former wage levels. In the months following the May layoffs, several new employees signed on at ICA; none of the five discharged employees were invited to return. A summer spurt in business led the Company to subcontract work with employees at premium overtime wages.

On June 6, 1980, the second union election again brought defeat for the IBEW, this time by a margin of 10-7. Seven challenged votes were lodged, including five registered by the employees laid off in May. Due apparently to his ill health, Bryan did not play an active role in the campaign leading up to June 6.

Shortly after the dismissals at issue, the union filed unfair labor practice charges with the National Director of the NLRB. Eventually, an administrative law judge found that the dismissals of Lynn Brown, Ferrell, Gray, Harry, and Schucker were largely motivated by anti-union animus, not valid business justifications. This is the ruling we are asked to review.

II.

In opposing the NLRB's petition for enforcement of its order, ICA contends that the administrative law judge misallocated the burdens of proof, forcing the Company to prove it would have discharged the employees even in the absence of protected conduct, ⁵ rather than requiring the Board to show that union activity was a "but...