N.L.R.B. v. Armcor Industries, Inc.

• Decision Date: 03 May 1976
• Docket Number: No. 75-1713,75-1713
• Citation: 535 F.2d 239
• Parties: 92 L.R.R.M. (BNA) 2374, 78 Lab.Cas. P 11,414 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ARMCOR INDUSTRIES, INC., Respondent.
• Court: U.S. Court of Appeals — Third Circuit

Page 239

535 F.2d 239

92 L.R.R.M. (BNA) 2374, 78 Lab.Cas. P 11,414

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ARMCOR INDUSTRIES, INC., Respondent.

No. 75-1713.

United States Court of Appeals, Third Circuit.

Argued Jan. 15, 1976.

Decided May 3, 1976.

Robert A. Giannasi, Asst. Gen. Counsel, Michael F. Messitte, Atty., N. L. R. B., Washington, D. C., for petitioner.

Hayes C. Stover, Peter H. Beaman, Kirkpatrick, Lockhart, Johnson & Hutchison, Pittsburgh, Pa., for respondent.

Before GIBBONS, FORMAN and ROSENN, Circuit Judges.

OPINION OF THE COURT

ROSENN, Circuit Judge.

The scenario of this proceeding has been played frequently on the industrial scene. The case and stage differ, but the theme revolves around the efforts of the officers of a small manufacturing company to cope with a sudden union organizing movement at its plant.

The first and least difficult issue presented is whether there is substantial evidence to support the Board's finding that respondent, Armcor Industries, Inc., ("the Company" or "Armcor"), had engaged is unfair labor practices in violation of Sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1), 158(a)(3) (1970). We conclude there is and grant the Board's petition for enforcement of that part of its order ¹ requiring the Company to cease and desist from the unfair labor practices and to reinstate two unlawfully discharged employees. The Board, in exercise of its remedial authority sustained by the Supreme Court in N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969), also ordered the Company to recognize and bargain with United Electrical Radio and Machine Workers of America ("UE") as the exclusive bargaining representative of Armcor's production and maintenance employees. That part of its order is remanded for further proceedings consistent with this opinion.

Following a discussion among some of the Company employees of the need for union representation in the plant, employee Michael Rossi contacted UE representative Ron Baldasseroni and the two arranged for a meeting to be held for interested employees on the evening of May 28. ² Apparently, word of the initial meeting promptly reached management officials because on the afternoon of the twenty-eighth, Company Vice-President Jack Fabean asked two employees where the meeting was going to be held that evening and told one that anyone who wanted a union was crazy and that employee problems should be brought to management for resolution. ³ The meeting was attended by 15 of Armcor's 23 employees; all 15 signed authorization cards. The next day Rossi solicited and secured signed authorization cards from four additional employees.

On the morning of May 30, Fabean asked Rossi whether "he got all the cards back" and further inquired "how many." Fabean commented that if problems were brought to management, employees would have been given what they wanted. That same morning, some employees were discussing the Union in the lunchroom when Fabean came in and remarked that he could hear everything they were saying because "the walls are paper thin."

At lunchtime on May 30, Charles Copeland, a representative of the International Union of Electrical Workers, AFL-CIO ("IUE") and friend of Armcor President Pat DeLaquil, suddenly appeared on the scene and approached a group of employees who were eating their lunch outside the plant. Copeland went up to Rossi saying, "you must be Mike." He said that he was "from the IUE and that somebody in the office had called (him) and told (him) that you were in need of a union here." Rossi informed Copeland that the employees wanted the UE. ⁴

At the end of work that same day, Thursday, Rossi and fellow employee Wayne Burns were called into the office of plant manager Kyle. Kyle gave them their checks and told them they were being laid off because of lack of work and because they were the least senior male employees. Kyle also told them that they either were unable to or would not perform work other than their normal job of final window assembly. Neither replied to Kyle, but took their checks and departed.

On the very next day, May 31, UE organizer Baldasseroni, accompanied by a group of employees, approached Company President DeLaquil and requested recognition of the UE as the employees' bargaining representative. DeLaquil refused, and later told a group of employees that he did not want Baldasseroni on Company property again.

That afternoon DeLaquil spoke to employee Elaine Seiler at her work station and inquired why she wanted a union. When she replied for "job security and higher pay," DeLaquil said, there is "no way (employees) could get higher pay the doors would have to close first." DeLaquil also said he was disappointed that employees did not bring problems to him first. Later that afternoon, DeLaquil asked another employee why he wanted a union, and again expressed disappointment that problems were not brought to him first.

That evening, the Company held one of its regularly scheduled "Pizza Nights" where, after work, employees were provided with dinner and were given an opportunity to express their grievances. DeLaquil briefly addressed the employees telling them that he was aware of their attempt to organize a union, that he did not particularly oppose such activity, but that he did not like the UE and "would fight it all the way." He further told them that the UE was no longer affiliated with the AFL-CIO, that in its early days the UE had been affiliated with the communist party, that a local UE organized plant had experienced a long strike and several wildcat strikes, and that he preferred that the employees' union be affiliated with the AFL-CIO. Also during this speech DeLaquil said he had been thinking about and preparing a profit-sharing plan, but that it could not be put into effect if they brought in the UE. ⁵

I. The Section 8(a)(1) Violation

The Board found that the Company violated Section 8(a)(1) of the Act by coercively interrogating employees concerning their union sympathies and activities; by threatening employees with economic reprisals, including closing of the plant if the Union came in and demanded higher wages; by creating the impression of surveillance; by encouraging union activity among its employees on behalf of a rival labor organization; and by promising employees benefits if they refrained from engaging in union activities.

To establish a violation of Section 8(a)(1), it need only be shown that "under the circumstances existing, (the employer's conduct) may reasonably tend to coerce or intimidate employees in the exercise of rights protected under the Act." Local 542, International Union of Operating Engineers v. N.L.R.B., 328 F.2d 850, 852-3 (3d Cir. 1964), cert. denied, 379 U.S. 826, 85 S.Ct. 161, 13 L.E.2d 93 (1964). See N.L.R.B. v. Burnup & Sims, Inc., 379 U.S. 21, 23-4, 85 S.Ct. 171, 172-73, 13 L.Ed.2d 1, 3-4 (1964). Whether an employer's actions meet that test is a question of fact for the Board and its determinations are conclusive if supported by substantial evidence. See Mon River Towing, Inc. v. N.L.R.B., 421 F.2d 1, 9-10 (3d Cir. 1969).

Considering the record as a whole, we conclude that the Board's order with respect to the Section 8 (a) (1) violations is supported by substantial evidence and will be enforced. See, e. g., N.L.R.B. v. Colonial Knitting Corp., 464 F.2d 949, 951 (3d Cir. 1972) (employer questioned employee about signing union cards without assurance of reprisal); N.L.R.B. v. Clapper's Mfg. Co., Inc., 458 F.2d 414 (3d Cir. 1972); Mon River Towing, Inc. v. N.L.R.B., 421 F.2d 1, 9 (3d Cir. 1969) (implied threat of reprisal sufficient).

II. The Discharge of Rossi and Burns

The Board further found that the Company violated Sections 8(a)(3) and (1) of the Act by discharging Rossi and Burns. With respect to Rossi, the Board argues that he was the prime instigator of the UE movement at the plant, that this became known to Company officers just prior to their terminating him, and that the abruptness and mid-week timing of the discharge, in the context of the other unfair labor practices, indicate the Company's anti-union motivation underlying the discharge. With respect to Burns, the Board admits that his union activity was minimal, ⁶ but contends that the Company discharged him to give an aura of legitimacy to Rossi's discharge. ⁷

The critical element in employee discharge cases is the intent of the employer to discourage union activity. N.L.R.B. v. Brown, 380 U.S. 278, 286-7, 85 S.Ct. 980, 985, 13 L.Ed.2d 839, 846 (1965). When the record establishes a prima facie case that "the employer engaged in discriminatory conduct which could have adversely affected employee rights to some extent, the burden is upon the employer to establish that he was motivated by legitimate objectives since proof of motivation is most accessible to him." N.L.R.B. v. Great Dane Trailers, Inc., 388 U.S. 26, 34, 87 S.Ct. 1792, 1798, 18 L.Ed.2d 1027, 1035 (1967).

The Company sought to justify the discharges on the ground that a reduction in work force was necessary because of lack of available work, and Rossi and Burns were chosen for "indefinite layoff" because they were the least senior male employees, they had poor work records, and they either could not perform jobs other than window assembling, or did so only with complaining. The factual basis for each of these points is disputed by the parties, but we do not propose to examine those arguments in detail here. The linchpin of the Company's argument, as we understand it, is that the work force had to be reduced. While there is evidence in the record that indicates that a major contract was being completed at the time of the discharges, the record also reveals that the Company began hiring within 10 days after the discharges, and within 90 days had hired 21 new employees. That fact has never been adequately explained. In view of these facts...