N.L.R.B. v. A & T Mfg. Co.

• Decision Date: 29 June 1984
• Docket Number: No. 83-5307,83-5307
• Citation: N.L.R.B. v. A & T Mfg. Co., 738 F.2d 148 (6th Cir. 1984)
• Parties: 116 L.R.R.M. (BNA) 3107, 101 Lab.Cas. P 11,096 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. A & T MANUFACTURING COMPANY, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 148

738 F.2d 148

116 L.R.R.M. (BNA) 3107, 101 Lab.Cas. P 11,096

NATIONAL LABOR RELATIONS BOARD, Petitioner, v.A & T MANUFACTURING COMPANY, Respondent.

No. 83-5307.

United States Court of Appeals Sixth Circuit.

Argued April 5, 1984.

Decided June 29, 1984.

Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., William R. Stewart, Allison

W. Brown, argued, Morton Namrow, Washington, D.C., for petitioner.

Blake Page, argued, Page, Clay & Thomas, Winchester, Ky., for respondent.

Before KENNEDY and CONTIE, Circuit Judges, and PECK, Senior Circuit Judge.

CONTIE, Circuit Judge.

The National Labor Relations Board(Board) applies for enforcement of an order holding that A & T Manufacturing Company(A & T) violated Sec. 8(a)(1) and (3) of the National Labor Relations Act.Since A & T did not contest the Administrative Law Judge's (ALJ) findings of Sec. 8(a)(1) violations before the Board, the Board's findings concerning those charges are enforced.¹See29 U.S.C. Sec. 160(e);Woelke & Romero Framing, Inc. v. NLRB, 456 U.S. 645, 665, 102 S.Ct. 2071, 2083, 72 L.Ed.2d 398(1982).With respect to the findings of Sec. 8(a)(3) violations, we enforce in part, vacate in part and remand for further proceedings.

This case involves A & T's alleged discriminatory lay-off of twenty-five "shop" employees and discriminatory discharge of one "field" employee.The record indicates that A & T is a Kentucky corporation engaged in the fabrication and installation of coal processing and loading equipment.Shop employees fabricate the equipment and field employees install the equipment at customers' work sites.During the relevant time period, A & T's most important customer was a foreign firm named USACO.

A & T shop employees began discussing unionization in August 1980.On August 20, the first organizational meeting took place at a local motel.Two days later, A & T laid off twenty-five of its twenty-eight shop employees.Field employee Jimmy Popp was discharged on September 23.A representation election occurred on October 17, 1980.The ALJ reasoned that since A & T had multiple motives for the lay-offs and the discharge, the case should be evaluated under the standard established in Wright Line, 251 N.L.R.B. 1083(1980).The ALJ concluded that the lay-offs violated Sec. 8(a)(3) but that A & T had legally terminated Popp.Although the Board adopted the ALJ's findings concerning the lay-offs, it held that the discharge also violated Sec. 8(a)(3).

The Supreme Court recently approved the Wright Line test for use in cases involving mixed employer motives.NLRB v. Transportation Management Corp., --- U.S. ----, 103 S.Ct. 2469, 76 L.Ed.2d 667(1983).Under this test, the General Counsel initially must demonstrate that anti-union animus contributed to the decision to lay-off or terminate employees.If this burden is satisfied, the employer must then show by a preponderance of the evidence that the employees would have been laid-off or terminated even had they not been engaged in protected activity.SeeWright Line, 251 N.L.R.B. at 1089.It is well established that an employer's motive for laying off or terminating employees is a factual question.SeeNLRB v. Buckhorn Hazard Coal Corp., 472 F.2d 53, 56(6th Cir.1973);NLRB v. Howell Automatic Machine Company, 454 F.2d 1077, 1080(6th Cir.1972);NLRB v. Murray-Ohio Manufacturing Co., 358 F.2d 948, 950(6th Cir.1966).The Board's factual determinations must be upheld if supported by substantial evidence on the record considered as a whole.29 U.S.C. Sec. 160(e).Moreover, since this court does not undertake de novo review, the Board's order must be enforced if the evidence supports two fairly conflicting views.SeeUniversal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456(1951);NLRB v. Naum Brother's Inc.637 F.2d 589, 591(6th Cir.1981).With these standards of review in mind, we first address the lay-offs and then examine the discharge of Popp.

The Board correctly held that the General Counsel had established that anti-union animus contributed to the decision to lay-off the twenty-five shop employees.A & T evinced its anti-union animus, for instance, by committing numerous Sec. 8(a)(1) violations.These violations included threats to discharge employees who engaged in protected activities and to close the plant if the union prevailed.Moreover, one A & T supervisor advised an employee that "the reason the shop was laid-off was the union."Thus, the burden properly was shifted to A & T to prove that the employees would have been laid-off even in the absence of protected activity.

The company contends that the lay-offs were necessitated by adverse general economic conditions and by the loss of USACO as a customer.Regarding the former justification, we find substantial evidence to support the Board's conclusion that A & T did not lay-off the shop employees for that reason.The record shows that A & T actually increased its shop work force from twenty to twenty-eight employees during 1980 and that even after the lay-off, some employees were recalled and worked substantial overtime.Moreover, Exhibit 2, a graph of A & T's work in process as of the end of each month of 1980, does not demonstrate that the company was adversely affected by general economic conditions.The graph, heavily relied upon by the company, shows that during the four months preceding August 1980, A & T's work in process remained above $4.5 million.To the extent that Exhibit 2 is a reliable measure of the general economic conditions facing A & T, it shows that the company's economic condition was relatively stable within three weeks of the lay-offs.The sharp decline in work in process reported as of August 31, 1980 may be attributable to the termination of the business relationship with USACO that occurred late in August rather than to general economic conditions.²In the alternative, we hold that even if Exhibit 2 does constitute some evidence of a general economic downturn, the evidence on that issue is conflicting.We may not, of course, disturb the Board's findings where the evidence supports two fairly conflicting views.

The Board did hold, however, that A & T's desire to terminate its business relationship with USACO, a slow paying customer, partially motivated the lay-offs.Nevertheless, the employee's organizational campaign was found to be the factor that ultimately persuaded A & T to end its relationship with USACO in late August 1980.The record indicates that from May 2, 1980 to July 21, 1980, USACO accumulated an overdue balance of over $411,000.On the latter date, USACO paid $350,000, leaving a balance of over $61,000.Subsequent billings increased this balance to approximately $210,000 by August 22.The record establishes, therefore, that when A & T decided to cease doing business with USACO, A & T had in the past tolerated much larger overdue balances for longer periods of time.There was no indication in August 1980 that USACO was financially troubled or was otherwise unwilling eventually to pay its debts.Furthermore, A & T never made a final demand on USACO (as might be expected in dealing with one's most important customer) that USACO pay the balance owed or face the consequences of not doing so.Under these circumstances, substantial evidence supports the Board's...