N.L.R.B. v. American Spring Bed Mfg. Co., 81-1421

• Decision Date: 19 February 1982
• Docket Number: No. 81-1421,81-1421
• Citation: 670 F.2d 1236
• Parties: 109 L.R.R.M. (BNA) 2874, 93 Lab.Cas. P 13,267 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. AMERICAN SPRING BED MANUFACTURING CO., d/b/a American Chain Link Fence Co., Respondent.
• Court: U.S. Court of Appeals — First Circuit

Page 1236

670 F.2d 1236

109 L.R.R.M. (BNA) 2874, 93 Lab.Cas. P 13,267

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. AMERICAN SPRING BED MANUFACTURING CO., d/b/a American Chain Link Fence Co., Respondent.

No. 81-1421.

United States Court of Appeals First Circuit.

Argued Dec. 11, 1981.

Decided Feb. 19, 1982.

James D. Donathen, Atty., Washington, D.C., with whom William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, and Andrew F. Tranovich, Atty., Washington, D.C., were on brief, for petitioner.

Benjamin E. Gordon, Boston, Mass., for respondent.

Before CAMPBELL and BOWNES, Circuit Judges, and WYZANSKI, ^* Senior District Judge.

BOWNES, Circuit Judge.

In a decision and order dated April 7, 1981, the National Labor Relations Board (the Board) ruled that respondent American Spring Bed Manufacturing Co., d/b/a American Chain Link Fence Co. (the Company), had committed several unfair labor practices in violation of section 8(a)(1), (3) and (5) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1), (3) & (5). The Board, with one exception not pertinent, affirmed the findings and conclusions of the administrative law judge. Specifically, the Board found that the Company had: (1) violated § 8(a)(1) by threatening an employee with discharge because he engaged in protected concerted activity, by soliciting an employee to assist in its anti-union campaign, and by granting wage increases to discourage union activity; (2) violated § 8(a)(3) & (1) by discharging two employees because they sought to unionize the Company's employees; and (3) violated § 8(a)(5) & (1) by refusing to recognize and bargain with the Union (International Union of Electrical, Radio and Machine Workers, AFL-CIO, CLC), which represented a majority of the Company's employees in an appropriate unit, by bargaining directly with employees over wages and by unilaterally granting wage increases to employees.

Upon concluding that these unfair labor practices were indicative of a pervasive and ongoing anti-union animus on the part of the Company, the Board ruled that a fair election was unlikely and that a bargaining order was necessary. The Board now petitions for enforcement of its order: that the Company cease and desist from engaging in various enumerated unfair labor practices; that it offer discharged employees Joseph L. Smith and Kevin W. Scott full and immediate reinstatement plus back pay without prejudice to seniority rights; that it preserve any records necessary to calculate the amount of back pay due under this order; that it recognize and bargain collectively in good faith with the Union; and that it post appropriate notices and notify the Regional Director of steps it has taken to comply with the order.

In deciding whether to enforce the Board's order, our standard of review is whether its findings are supported by substantial evidence on the record as a whole. 29 U.S.C. § 160(e); NLRB v. Matouk Indus., Inc., 582 F.2d 125, 128 (1st Cir. 1978); see NLRB v. Universal Camera Corp., 340 U.S. 474, 477-91, 71 S.Ct. 456, 459-466, 95 L.Ed. 456 (1951).

I. BACKGROUND

The respondent Company, located in Medford, Massachusetts, manufacturers, sells and distributes chain link fence and related products. Its management personnel consists of Guy Mafera, general manager; George Sullivan, assistant general manager; and Kenneth Gardner, plant superintendent. The Company employs about twenty employees, including two working foremen assigned to the shipping and production departments, Juan Rosario (production) and Richard Riccardi (shipping). Both Rosario and Riccardi are stipulated to be in the production and maintenance bargaining unit.

This case arose out of events that occurred in the production department. There were at all relevant times two types of machines in this department: one wire-draw machine that processed raw wire to a diameter suitable for the production of chain link fence, and four wire-weaving machines that wove the processed wire into chain link fence of the desired height. The final production process consisted of taking the rolls of chain link fence from the weaving machine and galvanizing them for resistance to the elements.

Most of the Company's employees were assigned to a 7:30 a.m. to 4:00 p.m. day shift. In order to maximize production and to keep up with customer orders, however, the Company, starting in 1976 and again in the spring of 1977, attempted to run the wiredraw and one of the four wire-weaving machines from 3:30 p.m. to midnight. The Company had difficulty maintaining this shift because the employees assigned to it, including Hector Ortiz and Feliciano Vega, refused to work at night on a regular basis. In early September 1977, the Company tried to solve this problem by hiring Smith and Scott to work as machine operators on the night shift. After a brief training period Smith and Scott went to work on the night shift on September 13 and October 3, respectively. Consistent with the Company's past practices, Smith and Scott worked nights on Monday through Thursday and joined the other employees on the day shift on Fridays.

The ALJ found that Smith was hired at the rate of three dollars per hour plus a 25-cent hourly night differential. Smith testified that he believed he was to receive four dollars per hour. The ALJ found that Smith genuinely believed, albeit mistakenly, he had been underpaid. On Friday, September 16, upon receiving his first paycheck covering his night work, Smith discovered the apparent discrepancy and immediately complained to plant superintendent Gardner, who, according to Smith, shrugged him off. Smith testified that, after this discussion, he spoke about his problem later that day with the other production employees. He advised his fellows of the higher wage rate that he believed he had been promised, and some of the other employees told him that they also believed they were not receiving the full pay that the Company had promised them. The ALJ credited Smith's testimony that some of the more senior employees were upset because they found out they were receiving a lower wage rate than he.

During the morning of the following work day, September 19, some of the production employees stopped working. With employee Gilberto Gracia as their spokesman, three or four of them approached assistant manager Sullivan, asked him why Smith was earning more than they, and requested wage increases for themselves. Sullivan responded by telling them that what any other employee was earning was none of their business, but did explain that Smith's wage rate was based upon his assignment to the night shift.

In the afternoon of the same day, Sullivan called Smith into his office where, with Gardner present, Sullivan told Smith that he should stop discussing his pay rate. Smith testified that Sullivan told him that Smith's discussions regarding pay upset the other employees, and that Smith must learn to keep his mouth shut about his pay if he wanted to continue working at the Company. According to Smith, Sullivan told him that if he continued complaining, Sullivan would have "to do something about it."

Sullivan acknowledged having this conversation with Smith about his pay on the day indicated, and agreed that the meeting was precipitated by the production employees having complained earlier in the day because Smith was being paid at a higher wage rate. Sullivan also testified that he asked Smith, "Don't you think what you're making is your own business?", that Smith agreed, apologized for having raised the issue among the employees, and left Sullivan's office. Sullivan unequivocally denied threatening Smith with loss of his job. The ALJ credited Smith over Sullivan on this and all other conflicting statements.

The following payday, September 23, Smith again complained to Gardner about his wages, who advised Smith that he could do nothing about his complaint but suggested that Smith speak with Sullivan. Smith reminded Gardner that Sullivan had told him that he did not want to hear any more complaining. Smith then contacted Louis Reyes, Jr., a union representative, and arranged an organizational meeting with the employees for October 2. Smith personally invited twelve unit employees to the meeting, including Rosario. Scott assisted in the organizational effort by inviting unit employee Kenneth Jewers to the meeting and by speaking with other employees about the Union prior to the meeting. The ALJ found no evidence that any other employee was active in the Union's initial organizational effort and determined that the Union's full-time organizer used Smith as his employee coordinator. The meeting was held on October 2, and twelve employees attended. All twelve, including Smith and Scott, signed union authorization cards.

On October 5, the Union advised the Company that it represented a majority of the employees in the production and maintenance units, and requested the Company to contact it to negotiate a collective bargaining agreement. The same day the Union filed with the Board a petition for a representation election among the Company's production and maintenance employees. The Company received the Union's recognition demand on October 6 and was served with a copy of the election petition on or about October 11.

Upon receiving the Union's demand for recognition, the Company on two occasions-October 6 and 7-interrogated working foreman Rosario, who had attended the October 2 meeting and had signed a union card. Both times Rosario was asked whether he "knew anything about anyone trying to organize a union," and both times he said that he did not. Sometime soon thereafter, general manager Mafera told Rosario that he was aware of and was opposed to the ongoing union activity and that he planned to hold a meeting of all employees to express his anti-union sentiments. Mafera asked Rosario...