N.L.R.B. v. Moore Business Forms, Inc.
| Decision Date | 08 June 1978 |
| Docket Number | No. 77-1135,77-1135 |
| Citation | 574 F.2d 835 |
| Parties | 98 L.R.R.M. (BNA) 2773, 84 Lab.Cas. P 10,637 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MOORE BUSINESS FORMS, INC., Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Elliott Moore, Dep. Assoc. Gen. Counsel, Paul J. Spielberg, Supervisor, John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Carl L. Taylor, Assoc. Gen. Counsel, Ruth E. Peters, Atty., N. L. R. B., Washington, D.C., for petitioner.
Franklin R. Sears, Fort Worth, Tex., for respondent.
Application for Enforcement of an Order of the National Labor Relations Board.
Before COLEMAN and FAY, Circuit Judges, and KING, * District Judge.
The National Labor Relations Board seeks enforcement of an order that Moore Business Forms, Inc., Heflin, Alabama, violated §§ 8(a)(1) and (3) of the National Labor Relations Act. Moore cross petitions to set aside the order. We enforce in part.
On November 9, 1973, the International Printing and Graphic Communications Union, AFL-CIO, was certified at Moore's plant in Heflin. Between that date and March 25, 1974, the company and the union met five or six times in fruitless contract negotiations. On March 25, most of the employees struck in support of the contract demands.
From the very outset, the situation was deplorably marred by conduct which was violent or bordering on violence. Broken glass, nails, and pieces of metal were strewn across entrances to the plant and to the employee parking lot. In all, about 95 pounds of nails were cleared from around the plant. Rocks and other objects were thrown at non-striking employees. Missiles were thrown from slingshots at company cars, employee cars, and plant buildings. Pickets harassed non-strikers by throwing eggs at their automobiles and calling them obscene names. Guns were fired at homes of non-strikers. The plant itself was hit by gunfire and bombed with dynamite. Gunfire damaged electrical transformers serving the plant. On the night of April 25 some twenty gunshots were fired from the direction of strike headquarters into the plant entrance. The dangerous atmosphere was perhaps epitomized by a sign posted near the plant main entrance notifying non-strikers to "Enter at your own risk".
The company employed a private guard service to protect the plant. Guards and company supervisors maintained constant surveillance of the picket line. A strike file was kept, reciting striker misconduct as reported by guards, supervisors and non-striking employees. From this file the company determined that 31 strikers had been guilty of strike misconduct. On April 11, letters of termination were sent to these 31, citing strike misconduct as the reason for termination.
On June 21 the company took action against strikers it believed had been involved in the serious shooting incident on April 25. Two supervisors, who were in the plant lobby at the time the entrance was hit by gunfire on the 25th, swore out criminal complaints against all the strikers who had been seen in the area of the strike headquarters prior to the shooting and who had not been seen leaving the area before the shooting started. These additional strikers were suspended in accordance with company policy of suspending any employee charged with a felony.
Prior to the strike, Moore operated three shifts at the Heflin plant. Employees were regularly rotated between the shifts so that no employee was permanently assigned to an undesirable shift. When the strike began in March, the company was forced to reduce to a single shift and so operated until enough employees returned to work to allow a second shift on June 10. On July 15 a third shift was added. Without regard to seniority, strikers returning to work after June 10 were permanently assigned to the second shift and, when that was filled, to the third shift. After the strike ended Moore did not return to the practice of rotating shifts. This meant that those employees who had participated in the strike were forced to work the less desirable hours while non-strikers kept the most desirable hours.
Prior to the strike, Moore provided group medical insurance to its employees, but all employees who joined the strike were removed from coverage. When the strikers returned to work, the company required them to wait three months before reinstating their health insurance coverage, in effect treating them as if they were new employees.
After three weeks of testimony, filling over 2100 pages, the Administrative Law Judge found that the April 11 discharges (31 employees) converted the economic strike into an unfair labor practice strike and ordered that nineteen of those discharged on the eleventh be reinstated with back pay. He also ordered reinstated those strikers suspended as a result of the April 25 shooting incident, reasoning that it was "bootstrapping" for the company to rely on criminal charges it caused to be filed as the basis for the suspensions. The Judge also concluded that the company's suspicions (as he termed it) provided no basis for an honest belief that the charged employees engaged in the shooting on April 25.
The Administrative Law Judge found that the company violated Section 8(a)(3) of the Act with the institution of fixed shifts and the treatment of returning strikers as new employees for the purpose of health insurance. He ordered the company to reinstate the practice of rotating shifts and make whole all striking employees for any losses suffered for lack of health insurance.
The National Labor Relations Board affirmed the findings and conclusions of the Administrative Law Judge and adopted his recommended order.
Moore Business Forms, Inc. argues that substantial evidence on the record as a whole does not support the Board's finding that the company violated the Act by its discharge of 26 strikers, 19 on April 11 for strike misconduct and 7 in June for their alleged participation in the April 25 shooting. The company argues, in addition, that the Board improperly found that the company violated the Act by discontinuing its practice of rotating shifts in favor of fixed shifts and by requiring striking employees who returned to work to undergo a 90-day waiting period before reinstating their health insurance coverage.
The general counsel's complaint against Moore charged that 24 of the 31 employees discharged on April 11 had been wrongfully discharged. Moore presented evidence of the alleged misconduct of the 24 at the hearing before the Administrative Law Judge. The Administrative Law Judge determined that five of the employees named in the complaint were guilty of misconduct warranting discharge, but ruled that 19 of the 24 strikers had been wrongfully discharged in violation of Section 8(a)(1) of the National Labor Relations Act.
In the opinion of the Administrative Law Judge, seven of the nineteen employees engaged in some "minor" misconduct, insufficient to warrant discharge, while the company failed to prove that the remaining twelve engaged in any misconduct. He sought to base his determinations as to each of these twelve as matters of credibility, generally ascribing credibility to the denials of the strikers (often unsupported by anything but their own word) while discrediting the testimony of the company witnesses.
Rarely, if ever, has this Court been called upon to review a strike situation in which so much continuing, pervasive violence admittedly took place as that which occurred at Heflin. We do not sit for the vindication of those who resort to violence in labor disputes or any other activity. We condemn it, and we emphatically decline to lend aid to those participating in it. Conversely, we must be equally careful of the legal rights of those not actually shown to have been guilty participants. Our major problem with this case stems from two considerations (1) we do not sit as a fact finding court and may not overturn Board findings which are supported by substantial evidence in the record as a whole and (2) the company left gaps in its proof which it might have filled but did not.
In any event, as will later appear, we deny reinstatement to some of those whom the Administrative Law Judge exonerated and we have no choice but, sometimes with great reluctance, to enforce it as to others.
Before getting to the individual cases, however, we consider it appropriate
first to dispose of some of the legal issues involved. Was
the Economic Strike Converted into an Unfair Labor
Moore argues that the April 11 discharge did not convert the economic strike into an unfair labor practice strike, the point being that in such event Moore could not be ordered to rehire any strikers who were permanently replaced before making an unconditional offer to return to work and, moreover, would not be liable for back pay. Moore says it acted in good faith, honestly believing that the discharged strikers were guilty of serious strike misconduct.
It is clear, however, that an employer's good faith is not a defense to a violation of the Act. "Over and again the Board has ruled that § 8(a)(1) is violated if an employee is discharged for misconduct arising out of a protected activity, despite the employer's good faith, when it is shown that the misconduct never occurred." N. L. R. B. v. Burnup and Sims, Inc., 379 U.S. 21, 23, 85 S.Ct. 171, 172, 13 L.Ed.2d 1 (1964).
Our consideration does not end here however, because a violation of the Act alone does not convert an economic strike into an unfair labor practice strike. It is necessary that the employer's unfair labor practice prolong the strike. Allied Industrial Wkrs., AFL-CIO Loc. U. No. 289 v. N. L. R. B., 1973, 155 U.S.App.D.C. 112, 476 F.2d 868; N. L. R. B. v. Birmingham Publishing Company, 5 Cir. 1958, 262 F.2d 2. The employer's unfair labor practice need not be the sole or even the major cause or aggravating factor of the strike; it need only...
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N.L.R.B. v. Haberman Const. Co.
...that insured that the strikers, upon return, would be permanently relegated to less desirable shifts, see NLRB v. Moore Business Forms, Inc., 574 F.2d 835, 840-41 (5th Cir. 1978), and the cessation of payments of insurance premiums for strikers, conduct which assured that the employees woul......
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Soule Glass and Glazing Co. v. N.L.R.B., 79-1640
...unfair labor practice which is found to make the strike last longer than it otherwise would have. E. g., NLRB v. Moore Business Forms, Inc., 574 F.2d 835, 840 (5th Cir. 1978); R. Gorman, supra, at 339. It must be found not only that the employer committed an unfair Page 1080 practice after ......
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N.L.R.B. v. Haberman Const. Co.
...that insured that the strikers, upon return, would be permanently relegated to less desirable shifts, see NLRB v. Moore Business Forms, Inc., 574 F.2d 835, 840-41 (5th Cir. 1978), and the cessation of payments of insurance premiums for strikers, conduct which assured that the employees woul......
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...of the strike,' but only that it was 'a contributing factor.' " Soule Glass & Glazing, 652 F.2d at 1080 (quoting NLRB v. Moore Business Forms, 574 F.2d 835, 840 (5th Cir.1978)) (emphasis in original). Thus, the Board may accord considerable weight to the strikers' own characterization of th......