N.L.R.B. v. Jakel Motors, Inc., 88-2380
| Decision Date | 30 May 1989 |
| Docket Number | No. 88-2380,88-2380 |
| Citation | 875 F.2d 644 |
| Parties | 131 L.R.R.M. (BNA) 2561, 111 Lab.Cas. P 11,211 NATIONAL LABOR RELATIONS BOARD, Petitioner, and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America-UAW, Intervenor, v. JAKEL MOTORS, INC., Jakel Manufacturing Company, Inc., and Jakel Incorporated, Single Employer, Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Richard Cohen, N.L.R.B., Washington, D.C., for petitioner.
Robin Wellford, Suelthaus & Kaplan, P.C., St. Louis, Mo., for respondent.
Before CUMMINGS, and FLAUM, Circuit Judges, and ESCHBACH, Senior Circuit Judge.
This is a petition for enforcement of an order of the National Labor Relations Board ("NLRB" or "Board"). Respondent Jakel Motors, Inc. ("Jakel") challenges the Board's finding that the company violated section 8(a)(3) of the National Labor Relations Act (the "Act"), 29 U.S.C. Sec. 158(a)(3), with respect to the discharges, transfers, and/or failures to recall twelve employees. Upon reviewing the administrative law judge's ("ALJ") comprehensive findings of fact, which were adopted by the Board, and considering the parties' briefs and oral arguments, we find Jakel's arguments to be without merit and, accordingly, grant the petition for enforcement.
Jakel is an Illinois corporation engaged in the manufacture and sale of small electric motors with production facilities in Highland, Illinois, and Palestine, Illinois. The company is family-owned and run primarily by several of the Jakel brothers. During March 1985, Jakel employees began a union organizing effort which culminated in a Board election held on October 4, 1985. Jakel's flagrant anti-union response to this organizing effort resulted in an NLRB finding of more than thirty violations of section 8(a)(1) of the Act. The violations included coercive interrogation of employees; threatening employees with plant closures, discharges, retaliatory transfers of work, loss of jobs, less desirable work assignments, and unfavorable employment references; telling employees that they or certain named co-workers had been discharged because they were pro-union; telling employees that their union activities were futile because the company would never negotiate or sign a contract with the union; engaging in surveillance of union meetings; prohibiting employees from distributing union literature on company property; and promulgating an overly broad no-solicitation/no-distribution rule. Jakel does not contest these findings, and we summarily affirm the section 8(a)(1) violations. NLRB v. Industrial Erectors, 712 F.2d 1131, 1134 (7th Cir.1983).
In addition, the Board found that Jakel had violated section 8(a)(3) of the Act with respect to twelve employees. It is the section 8(a)(3) violations that Jakel challenges, asserting that the Board's finding, as to each employee, is not supported by substantial evidence. Jakel raises no legal issues, nor does it contest any of the Board's underlying findings of fact. Jackel merely challenges the inferences drawn by the Board from those facts and contests the credibility findings of the ALJ.
The legal framework for review of an NLRB decision was aptly stated by this court in NLRB v. Dorothy Shamrock Coal Co., 833 F.2d 1263 (7th Cir.1987):
Our task is to determine if the judgment of the NLRB is supported by substantial evidence on the record as [a] whole. We must defer to the expertise of the Board and will not displace its reasonable inferences even where a plenary review of the record might yield a different result. Moreover, we "must accept the Board's credibility findings unless the party challenging [those determinations] establishes [that] 'exceptional circumstances' " justify a different result.
Id. at 1265 (citations omitted). The Shamrock court also stated the burdens of proof for a section 8 violation and commented on the types of evidence on which the Board may rely:
The General Counsel carries the burden of proving the elements of a section 8 unfair labor practice. Thus, the Counsel must establish that the discharge or other adverse labor practice was "based in whole or in part on antiunion animus--or ... that the employee's protected conduct was a substantial or motivating factor in the [employer's] adverse action." The employer, however, may avoid liability by showing that his actions would have been the same "regardless of his forbidden motive."
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The Board, however, is "free to rely on circumstantial as well as direct evidence" in assessing motive.
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[The timing of the adverse action] also serves as evidence of the Company's motive.
Id. at 1266, 1267, 1267-68 (citations omitted).
As to each employee, Jakel denies that anti-union animus was a motivating factor in its decision and contends that each adverse employee action was taken for non-discriminatory reasons. We initially note that Jakel's denial of any anti-union animus is belied by the uncontested findings of the Board that Jakel committed numerous, flagrant, and widespread acts of interference, restraint, and coercion in violation of section 8(a)(1). With respect to Jakel's claim that despite any purported anti-union animus, the adverse employee actions were motivated by non-discriminatory reasons, we will briefly summarize the main points of evidence supporting the Board's findings.
Theresa Buzick initiated the organizational effort at Jakel's Highland plant. In March 1985, she contacted the union headquarters, and an organizing meeting was set for June 12. Buzick, Strowmatt and Beckering all attended and signed authorization cards at that meeting. Daniel Jakel and another Jakel official conducted unlawful surveillance of the meeting. 1 Within one week of the meeting, Daniel Jakel transferred Buzick, Strowmatt and Beckering to Jakel's Palestine facility, 150 miles away. At the time, the Palestine plant was closed and had been closed for about a month; no production work was being done at the plant. The three women, all production line employees, were made to do janitorial cleanup work. In order to document the conditions at Palestine, the three transferees took pictures of themselves at the plant. One evening, they also taped a conversation with a laid-off Palestine employee concerning conditions at the plant. Within one week of their transfers to Palestine, the three were discharged. Jakel contended that they were discharged for taping supervisors' conversations and for taking unauthorized pictures. Jakel's contention is without merit. No evidence was introduced to show that any supervisors' conversations were taped, and picture-taking was not a prohibited activity. Substantial evidence in the record supports the Board's finding that the transfers and discharges were discriminatory in violation of section 8(a)(3).
Pryor did not attend the June 12 meeting. However, on June 13, a Wednesday, she was unlawfully interrogated by a Jakel supervisor about whether she had attended the meeting and whether she was for the union. 2 Pryor told the supervisor that she was for the union, and during the next few days Pryor talked to several other employees, encouraging them to support the union. On Friday, June 14, Pryor was looking at the efficiency reports for one of the plant's departments in order to get a list of employee names for organizing purposes. While so engaged, Daniel Jakel came by and instructed the department leadman not to let Pryor look at the reports. In the past, employees, including Pryor, had been allowed to look at the reports without interference by management. On the next workday, Monday, June 17, Robert Jakel, president of the company, delivered an anti-union speech to his assembled employees, during which he stated that the union would do them no good and could only cause a loss of jobs and that the company would never negotiate or sign a contract with the union. On that same day, Daniel Jakel called Pryor to his office and discharged her. Jakel contends that Pryor was discharged for her poor attitude and use of foul language (evidence of which is contained in the record). However, we find that substantial evidence in the record--including the timing of the discharge, the unlawful interrogation of Pryor a few days prior to the discharge, the unprecedented interference with her looking at efficiency reports, and the fact that her two work evaluations had shown satisfactory...
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