N.L.R.B. v. Carbonex Coal Co.

• Decision Date: 25 May 1982
• Docket Number: No. 80-1739,80-1739
• Citation: 679 F.2d 200
• Parties: 110 L.R.R.M. (BNA) 2566, 94 Lab.Cas. P 13,565 NATIONAL LABOR RELATIONS BOARD, Petitioner, and United Mine Workers of America, Intervenor, v. CARBONEX COAL COMPANY, Cross-Petitioner/Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 200

679 F.2d 200

110 L.R.R.M. (BNA) 2566, 94 Lab.Cas. P 13,565

NATIONAL LABOR RELATIONS BOARD, Petitioner, and United Mine Workers of America, Intervenor, v. CARBONEX COAL COMPANY, Cross-Petitioner/Respondent.

No. 80-1739.

United States Court of Appeals, Tenth Circuit.

May 25, 1982.

William Bernstein, Washington, D. C. (William Wachter, Washington, D. C., Atty., of counsel: William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, and Elliott Moore, Deputy Associate Gen. Counsel, N. L. R. B., Washington, D. C., with him on the brief), for petitioner.

Alex V. Barbour, Chicago, Ill. (Edward B. Miller, Chicago, Ill., Atty., of counsel: Pope, Ballard, Shepard & Fowle, Chicago, Ill., with him on the brief), for cross-petitioner/respondent.

Harrison Combs and Marilyn Townsend, Washington, D. C., for intervenor.

Before McWILLIAMS and McKAY, Circuit Judges, and ANDERSON, Chief District Judge. ^*

McWILLIAMS, Circuit Judge.

The National Labor Relations Board petitions for enforcement of an order issued against Carbonex Coal Company. 248 NLRB No. 107 (1980). By cross-petition, Carbonex Coal Company asks that, with the exception of the section 8(a)(1) findings, the order of the Board be vacated. We enforce the Board's order. ¹

Carbonex Coal Company is engaged in the mining of coal at various mines in northeastern Oklahoma. One of its mines is the Rogers Mine located in Rogers County, Oklahoma. The present dispute arises out of the efforts of the United Mine Workers of America, intervenor in the present proceeding, to unionize the workers at the Rogers Mine. After an extensive hearing was held before an Administrative Law Judge, it was determined that the Company's efforts to avoid the unionization of its workers by the United Mine Workers constituted violations of sections 8(a)(1), (3), and (5) of the National Labor Relations Act, 29 U.S.C. § 158 (1976). ²

The Board affirmed the ALJ's findings and conclusions. The Board determined that the Company had engaged in a variety of section 8(a)(1) violations prior to the representation election; had violated section 8(a)(3) and (5) of the Act by laying off employees in a three-week period immediately following the representation election; further had violated section 8(a)(3) of the Act by terminating employees who had participated in an unfair labor practice strike; had violated section 8(a)(3) and (5) of the Act by subcontracting its truck hauling operations following the representation election; and had violated section 8(a)(5) of the Act by failing to bargain in good faith with the recognized bargaining representative of its employees. To remedy these violations of the Act, the Board ordered, inter alia, that the Company reinstate the laid off and terminated employees with back-pay; that it offer the strikers, upon their unconditional application, immediate and full reinstatement to their former or substantially equivalent positions; that it reestablish its trucking operations; and that it bargain in good faith with the United Mine Workers.

In this Court, the Company does not challenge the Board's finding that, prior to the representation election, the Company violated section 8(a)(1) of the Act by, inter alia, threatening its employees with mine closures if the union won the representation election; interrogating its employees about their union activities; and threatening its employees with job termination because of their pro-union activity. The Company does challenge the findings of the Board relating to events that occurred after the representation election. The Board contends, however, that all critical findings are supported by substantial evidence, and seeks enforcement of the order. We agree with the Board.

The representation election was conducted on June 20, 1978. Out of some 60 employees who were eligible to vote in the representation election, 33 voted in favor of the United Mine Workers of America, and 23 voted against the union. ³ Within a three-week period following the representation election, the Company laid off, and refused to rehire, 18 employees. The Company failed to bargain with the union concerning these layoffs. Furthermore, in the week following the election, but prior to the Board's certification of the union as the employees' collective bargaining representative, the Company subcontracted away the balance of its hauling operations without bargaining in good faith over the matter. Several months later, when certain of the employees went out in a lawful strike by way of protest to the Company's unfair labor practices, the Company terminated the employment of three employees who supported the strike by refusing to cross the picket line. Finding these actions of the Company to be unfair labor practices, the Board entered what it deemed to be appropriate remedial orders, which the Board now seeks to enforce, and which the Company seeks to have set aside.

At the hearing before the ALJ, Carbonex's position was that the layoffs, and the decision to subcontract the balance of its hauling operations, were caused by economic conditions, and were not in any degree prompted by anti-union animus. The ALJ rejected these contentions and found that the layoffs and the subcontracting of the truck hauling operations were caused solely by the Company's anti-union animus. In affirming such findings, the Board went further than the ALJ and characterized Carbonex's economic justification argument as being the result of "knowing and calculated fabrication."

On judicial review of a Board order, a court should order enforcement if the Board correctly interpreted and applied the law, and if there is substantial evidence in the record, when considered in its entirety, to support the Board's findings. Universal Camera Corp. v. NLRB, 340 U.S. 474, 496-97, 71 S.Ct. 456, 468-69, 95 L.Ed. 456 (1951); NLRB v. Pepsi-Cola Bottling Co. of Topeka, 613 F.2d 267, 270 (10th Cir. 1980). In our view, the record amply supports the Board's findings that after the representation election Carbonex laid off employees and subcontracted certain truck hauling work not previously subcontracted as retaliation for its employees' unionization effort. Indeed, such evidence is rather overwhelming. The mere fact that Carbonex claimed economic justification is not decisive of the matter. As indicated, the Board, as the fact-finder, totally rejected that particular argument as being nothing but a contrived afterthought.

Carbonex suggests that in analyzing the testimony of the numerous witnesses who testified before the ALJ, both the ALJ, and later the Board, applied the wrong standard or test. Counsel argues that this Court, on review, should re-evaluate the evidence in the light of the Board's recent decision in Wright Line, 251 NLRB No. 150 (1980). Counsel does not desire a remand to the Board for reconsideration. For us to re-evaluate testimony in the light of a changed standard would seem, to us, to require that we engage in fact-finding, which is not a prerogative of a reviewing court. Be that as it may, we do not regard this to be a proper case for a consideration of the new Wright Line standard. Whether Wright Line cleared up a gray area, or, on the contrary, compounded the entire problem, is debatable. Compare Behring Int'l, Inc. v. NLRB, 675 F.2d 83 (3d Cir. 1982) and NLRB v. Wright Line, 662 F.2d 899, 904-05 (1st Cir. 1981), cert. denied, --- U.S. ----, 102 S.Ct. 1612, 71 L.Ed.2d 848 (1982) with Peavey Co. v. NLRB, 648 F.2d 460, 462 (7th Cir. 1981) and NLRB v. Nevis Indus., Inc., 647 F.2d 905, 909 (9th Cir. 1981). In any event, as indicated, we do not feel it necessary to consider Wright Line in the present proceeding.

The instant case was decided by the Board some five months before the Board enunciated the Wright Line rule. We do not believe that when the Board elects to modify one of its standards, that we must apply the new standard to cases decided by the Board before the change, which are en route to us on the date of the change. See Lippincott Indus., Inc. v. NLRB, 661 F.2d 112, 115 (9th Cir. 1981), where the Ninth Circuit declined to apply the Wright Line standard to a Board decision rendered before the announcement of Wright Line.

Furthermore, in view of the findings of the Board, the present case does not lend itself to the Wright Line formula. The Board, in Wright Line, was faced with a "dual motive" case where the employer, in fact, had a "legitimate business reason" for the discharge of one of its employees. Unlike Wright Line, the Board in the instant case found that Carbonex did not have a legitimate business justification for its action, and that, to the contrary, the excuse of economic necessity advanced by Carbonex was not only pretextual, but fabricated. In short, Tenth Circuit consideration of the Wright Line rule will have to wait.

The strike matter merits comment. Several months after the representation election at which a majority of the...