N.L.R.B. v. Vought Corp. MLRS Systems Div.

• Decision Date: 21 April 1986
• Docket Number: CORPORATION--MLRS,No. 85-1271,85-1271
• Citation: 788 F.2d 1378
• Parties: 122 L.R.R.M. (BNA) 2168, 104 Lab.Cas. P 11,845 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. VOUGHTSYSTEMS DIVISION, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1378

788 F.2d 1378

122 L.R.R.M. (BNA) 2168, 104 Lab.Cas. P 11,845

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. VOUGHT CORPORATION--MLRS SYSTEMS DIVISION, Respondent.

No. 85-1271.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 15, 1985.

Decided April 21, 1986.

John B. Shepard, Dallas, Tex., for respondent.

Jesse Gill, of the N.L.R.B., Washington, D.C., for petitioner.

Before HEANEY, FAGG and BOWMAN, Circuit Judges.

HEANEY, Circuit Judge.

The National Labor Relations Board petitions for enforcement of its order which found that Vought Corporation--MLRS Systems Division (the Company) committed several violations of sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act (the Act), 29 U.S.C. Sec. 151 et seq. The Company contests the Board's findings that the Company violated sections 8(a)(1) and/or 8(a)(3) by attempting to enforce an overly broad no-distribution rule, and by reprimanding and firing employee David Evans, chairman of the in-plant union organizing committee. We enforce the Board's order.

I. FACTS.

The Company manufactures missile launchers at a nonunion facility in Camden, Arkansas. In June, 1982, it hired David Evans as a general assembler, labor grade two. Evans performed his job very well and, in November, 1982, was promoted to a dispatcher in the production control unit at a labor grade sixteen. His duties included inventorying, requisitioning, and replenishing depleted storage bins that contained parts for use on the launcher line. His performance as a dispatcher was exemplary through February, 1983. In early March, 1983, Evans unsuccessfully bid on a supervisory position. Shortly thereafter, he contacted the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (the Union) to discuss organizing the plant. He later became chairman of the in-plant organizing committee, handed out literature and authorization cards, and began wearing the union insignia.

The Company resisted the union campaign and, ultimately, dismissed David Evans. On June 3, 1983, a Regional Director of the Board issued a complaint which alleged that the Company engaged in conduct, including the discharge of Evans, which violated sections 8(a)(1) and (3) of the Act. An administrative law judge (ALJ) found that the Company violated section 8(a)(1) of the Act by requesting an employee to inform on union activities of others, by maintaining and attempting to enforce an overly broad no-distribution rule, by coercively interrogating employees about union activities, by threatening to close the plant or reduce its work force if the plant was unionized, by promising to resolve grievances if employees would abandon support of the union, by altering an employee's work assignments on account of his union support, and by threatening to discharge employee Evans for engaging in union solicitation. He found, however, that the Company had not violated the Act by issuing Evans an oral and a written warning of work deficiencies and then discharging him. He reasoned that the warnings were justified because Evans's work performance had lagged, and the firing was justified because Evans had threatened his supervisor and had used abusive language.

The Board affirmed the ALJ's findings of section 8(a)(1) violations, but reversed with respect to the ALJ's findings of no violations arising out of the warnings to and firing of Evans. The Board applied the test set forth in Wright Line, 251 NLRB 1083 (1981), enf'd, 662 F.2d 899 (1st Cir.1981), cert. denied, 455 U.S. 989, 102 S.Ct. 1612, 71 L.Ed.2d 848 (1982), approved in NLRB v. Transportation Management Corp., 462 U.S. 393, 103 S.Ct. 2469, 76 L.Ed.2d 667 (1983). It held that the warnings and the firing were motivated by the Company's desire to quell Evans's union activities and that he would not have been warned or discharged had it not been for his union activities. The Board further reasoned that even if Evans had been insubordinate to his supervisor, the insubordination was provoked by the Company's unlawful conduct and the Company thus could not rely on the insubordination to discipline him. Max Factor & Co., 239 NLRB 804, 817 (1978), enf'd, 640 F.2d 197 (9th Cir.1980), cert. denied, 451 U.S. 983, 101 S.Ct. 2314, 68 L.Ed.2d 840 (1981); NLRB v. M & B Headwear Co., 349 F.2d 170, 174 (4th Cir.1965).

II. DISCUSSION.

The Company contends that the Board erred in finding violations of the Act based on (1) the March 15 warning to David Evans to stop soliciting for the Union; (2) the alleged attempt of the Company to enforce an invalid no-distribution rule; (3) the May 5 oral warning to Evans; (4) the May 20 written warning to Evans; and (5) the discharge of Evans. ¹ We discuss each contention in turn.

A. March 15 Threat.

On March 15, the Company's general manager called Evans's supervisors to his office and informed them that Evans had been passing out union information and harassing employees during working hours. He instructed them to warn Evans that this was impermissible. The supervisors then met with Evans and informed him that he would be discharged if he continued to engage in union activities during working hours.

The ALJ concluded that these Company actions violated the Act because (1) he discredited the testimony that Evans was spending an inordinate amount of time on soliciting for the Union, was harassing other employees and was falling behind in his work; (2) the Company allowed solicitation during work-time for betting pools, charitable gifts and, most significantly, for the anti-union "I'm for Vought" Committee; and (3) the Company did not have a company-wide rule against solicitation. The Board affirmed.

The Company contends that the ALJ and the Board erred in finding a violation of the Act because the permitted solicitations did not interfere with production, whereas Evans's solicitation did because he harassed and intimidated employees. The Board responds that this Court should defer to the ALJ's credibility findings that Evans's union solicitation did not have an adverse impact on employee production. In addition, it notes that the Company allowed its anti-union committee to solicit on Company time. We agree with the Board, and grant enforcement of its finding that the March 15 warning violated section 8(a)(1) of the Act.

B. The No-Distribution Rule.

The Board found that the Company's no distribution rule, which prohibited "reproducing, posting, or passing out typed or printed material other than Company business" without permission of the Company, was unlawfully broad. On appeal, the Company argues that it did not violate the Act because the rule was never enforced. The Board responds that this argument is without merit because an overly broad no-distribution rule violates the Act even if never enforced because of its chilling effect. Jas. Matthews and Company v. NLRB, 354 F.2d 432, 441 (8th Cir.1965), cert. denied, 384 U.S. 1002, 86 S.Ct. 1924, 16 L.Ed.2d 1015 (1966). The Board also asserts that the record supports its finding that the Company did seek to enforce the rule on March 17, 1983, by attempting to prevent Evans from distributing union literature before working hours on the plant's parking lot. Plant security officers had informed Evans that he would not be allowed to do so and one of the officers threatened Evans. The Company responds that the rule was not enforced because plant supervisors informed the security officers that Evans was within his rights and Evans then continued to leaflet and was never disciplined for the incident.

In DeQueen General Hospital v. NLRB, 744 F.2d 612, 614 (8th Cir.1984), we reiterated that, "[i]n evaluating employer conduct * * * the test is not whether an attempt at [interference] has succeeded or failed, but whether 'the employer engaged in conduct which reasonably tends to interfere with, restrain, or coerce employees in the free exercise of their rights under section 7.' " (Citations omitted.) Applying this test, we grant enforcement of the Board's finding that the March 15 incident violated section 8(a)(1) of the Act because there is substantial evidence in the record to support the Board's findings that the Company's actions on March 15 tended to interfere with Evans's right to distribute union literature in a nonworking area on nonworking time, and that there were no special circumstances to justify the Company's attempted enforcement of the rule. See Eastex, Inc. v. NLRB, 437 U.S. 556, 570-71, 98 S.Ct. 2505, 2514-15, 57 L.Ed.2d 428 (1978).

C. May 5 Oral Warning.

On May 5, Evans's supervisor issued an oral warning to Evans that his work performance was "slipping." The supervisor noted that he had received complaints of supply shortages on Evans's work line. Evans acknowledged a shortage of supplies, but asserted five reasons for the shortage: 1) he had assumed the responsibilities of another employee, 2) the Company had implemented a time-consuming system of requiring supervisory signatures on requisitions for items, 3) his supervisor often delayed for days before signing his requisitions, 4) the warehouse delayed in getting parts to him, 5) and he was denied overtime work despite the fact that the line he was supplying was working overtime. The ALJ found that the Company had not violated the Act by giving this oral warning. He credited testimony that Evans was performing his function with less enthusiasm than he had shown before he became involved in Union activities.

The Board reversed this finding, relying on the Wright Line test. It found that the General Counsel had made a prima facie showing that Evans was disciplined for engaging in protected conduct. The Board next found that the Company had not met its burden of demonstrating that it would have disciplined Evans absent his union activity. The Board rejected the ALJ's conclusion that Evans was responsible for the supply shortage, and placed great weight on the reasons Evans gave...