N.L.R.B. v. S.E. Nichols of Ohio, Inc.
| Citation | 704 F.2d 921 |
| Decision Date | 15 April 1983 |
| Docket Number | No. 81-1756,81-1756 |
| Parties | 113 L.R.R.M. (BNA) 2022, 97 Lab.Cas. P 10,000 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. S.E. NICHOLS OF OHIO, INC., Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
Elliott Moore, Deputy Associate Gen. Counsel (argued), Frances O'Connell, N.L.R.B., Washington, D.C., for petitioner.
Leonard W. Wagman (argued), Robert S. Goodman, Golenbock & Barell, New York City, for respondent.
Before KEITH, MARTIN, and JONES, Circuit Judges.
The National Labor Relations Board seeks enforcement of orders entered against S.E. Nichols of Ohio, Inc. on September 18, 1981. The Board's orders directed Nichols to reinstate former employee Lena Barnhardt and granted back pay awards to Barnhardt and Carolyn Moore, another former Nichols employee.
The present dispute is twelve years old and has been before this court on two previous occasions. A brief history of the conflict serves to clarify the immediate problem.
In 1970, Nichols, a self-service discount Department store, employed Barnhardt and Moore as clerks. Barnhardt was assigned to the mens' wear department, Moore to the ladies' wear department. In 1971, Barnhardt and Moore emerged as leaders in a union organizing campaign among Nichols employees. Both were discharged on April 1, 1971. In a decision issued March 17, 1972, the Board ruled that the discharges violated sections 8(a)(3) and (1) of the National Labor Relations Act, and ordered Nichols to reinstate both Barnhardt and Moore. 195 N.L.R.B. 939. A panel of this court granted enforcement of the Board's order. NLRB v. S.E. Nichols of Ohio, Inc., 472 F.2d 1228 (6th Cir.1972).
In 1973, Nichols "reinstated" Barnhardt and Moore by assigning them to "scrub" duty, a menial task neither had been asked to perform during her previous tenure as a clerk. After working briefly as "scrubbers," both Barnhardt and Moore refused to continue under these conditions. In 1975, Nichols again offered both women "reinstatement" on terms manifestly less attractive than their original employment. Again, Barnhardt and Moore declined this "demotion."
In 1978, the Board initiated contempt proceedings against Nichols, alleging failure to comply with the court's 1972 order. Judge Battisti of the Northern District of Ohio was appointed special master and authorized to conduct an evidentiary hearing. On the basis of the special master's report, this court held Nichols in civil contempt. By order dated February 8, 1979, Nichols was directed to purge itself of contempt by offering "immediate and full reinstatement to Lena Barnhardt and Carolyn Moore to their former positions, or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority and other rights and privileges."
Accordingly, Barnhardt and Moore returned to work at Nichols on February 27, 1979. Neither, however, was reassigned to the position she had held before her unlawful discharge. Barnhardt was instructed to "float" between departments on an "as needed" basis. On March 19, 1979, Barnhardt received conflicting job assignments from different supervisors. This incident culminated in a confrontation with the store manager, who reprimanded Barnhardt publicly and in the presence of other Nichols' personnel. Barnhardt clocked out and did not return to work. An unfair labor practice charge alleging "constructive discharge" was filed on her behalf.
Moore was also shuttled between different departments after her reinstatement. She quit, apparently without incident, in August, 1979. Moore's resignation is not an issue in the present litigation.
In mid-1979, the Board consolidated Barnhardt's complaint of "constructive discharge" with Moore's and Barnhardt's pending actions for back pay. In November, 1979, an administrative law judge conducted a five-day hearing on the matter. In a decision issued April 7, 1981, the administrative law judge found, first, that Nichols' treatment of Barnhardt during her last "reinstatement" was "designed to cause her to quit" and thus constituted a "constructive discharge." He recommended that the Board order Nichols, once again, to reinstate Barnhardt. Second, he computed back-pay awards for both Barnhardt and Moore. According to the administrative law judge, Barnhardt was entitled to $34,121.47 plus interest for the period between April 1, 1971 and February 27, 1979. Barnhardt's award was open-ended; her back pay would continue to accrue until Nichols offered her bona fide reinstatement. Moore's back pay was fixed at $22,238.17 plus interest, beginning April 1, 1971 and ending February 27, 1979.
Nichols filed voluminous exceptions to the administrative law judge's report.
On September 18, 1981, the Board issued an order adopting most of the administrative law judge's findings and recommendations. These enforcement proceedings followed.
Nichols raises several challenges to the Board's order. Our review of the record, however, persuades us that these objections are without merit.
First, Nichols asserts that Barnhardt was not "constructively discharged" after her February 27, 1979 "reinstatement." Nichols characterizes itself as "an employer who bent over backward to avoid confrontation and to deal fairly with the reinstated employee ... Nothing Respondent could have done would have forestalled Barnhardt's walk-out." The crux of this issue is, of course, the proper interpretation of the testimony introduced at the administrative hearing.
It is well settled that a reviewing court must uphold the Board's findings of fact as long as those findings are supported by substantial evidence in the record as a whole. Universal Camera Co. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951); NLRB v. Ogle Protective Service, Inc., 375 F.2d 497 (6th Cir.), cert. denied, 389 U.S. 843, 88 S.Ct. 84, 19 L.Ed.2d 108 (1972). Reasonable findings of fact will be upheld and credibility determinations will be accepted unless they lack a rational...
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