N.L.R.B. v. Southern Plasma Corp.

• Decision Date: 02 October 1980
• Docket Number: No. 79-2970,79-2970
• Citation: 626 F.2d 1287
• Parties: 105 L.R.R.M. (BNA) 2782, 89 Lab.Cas. P 12,337 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SOUTHERN PLASMA CORP., Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1287

626 F.2d 1287

105 L.R.R.M. (BNA) 2782, 89 Lab.Cas. P 12,337

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SOUTHERN PLASMA CORP., Respondent.

No. 79-2970.

United States Court of Appeals Fifth Circuit.

Oct. 2, 1980.

Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., L. Joseph Ferrara, Washington, D. C., for petitioner.

Huey, Camper & Guilday, Thomas J. Guilday, Tallahassee, Fla., for respondent.

Application for Enforcement of an Order of The National Labor Relations Board.

Before KRAVITCH, HENDERSON and REAVLEY, Circuit Judges.

HENDERSON, Circuit Judge:

The National Labor Relations Board (hereinafter referred to as the "Board") petitions for enforcement of its order finding Southern Plasma Corporation (hereinafter referred to as "Southern Plasma") in violation of §§ 8(a)(1) and 8(a)(3) of the National Labor Relations Act, 29 U.S.C.A. §§ 158(a)(1), (3) (hereinafter referred to as the "Act"), and directing reinstatement and backpay for certain former employees.

Southern Plasma produces and distributes blood plasma. The company is divided into sections according to function. The "front office" or "processing room" employees perform the initial screening of blood donors. Blood is actually drawn by a different group of employees who work in the "donor room". A third division of employees process antibodies from donors with rare blood types in the "antibody lab". In making its decision, the Board adopted, with a minor modification not important here, the findings of fact and conclusions of law entered by the Administrative Law Judge (hereinafter referred to as the "ALJ") after a hearing during which both sides presented evidence and argument. Our reference to the facts comes from the evidence presented at that hearing and the ALJ's findings.

Harry Gurley, the owner of Southern Plasma, instructed his lab manager, Valaree Peck, to distribute a non-competition agreement (hereinafter referred to as the "Gurley contract") to all employees, directing that they denote their acceptance thereof by their signatures. Because some of the employees felt the Gurley contract impinged too greatly on their freedom to work for others in the future, they resolved to consult a lawyer for advice. Pursuant to this plan, Patricia Mobley, Melanie Parker and Glenda Baker met with an attorney on the morning of September 2, 1977. With his aid, they formed the Southern Plasma Employees Association (hereinafter referred to as the "Association") and prepared for signature by other employees a petition authorizing the Association to represent them in collective bargaining. They also drafted a counter-proposal (hereinafter referred to as the "alternative contract") to the Gurley contract, which contained less restrictive non-competition provisions. Mobley, Baker and Parker returned to Southern Plasma, where they obtained the signatures of five additional employees on the Association's petition and the signatures of all employees, save one, of the donor lab and front office on the alternative contracts. ¹

At lunch on that same day, Mobley, Parker and Baker presented lab manager Peck with the alternative contracts and their bargaining demand. Peck expressed confusion and they explained further that they had formed a union and wanted to bargain collectively with Gurley. Peck then called Gurley and informed him that the employees had prepared a counter-proposal to his non-competition agreement. Gurley told Peck to come over to his office. Mobley accompanied Peck and, upon their arrival, Mobley presented Gurley with the stack of signed alternative contracts, told him that the employees had formed a union, and asked him to read their proposal. With this confrontation, Gurley became angry, threw the alternative contracts across his office, and exclaimed he did not have to deal with any union and that he would close the lab first. He repeated this later in their conversation. ² This was Gurley's only reference to the union during the entire September 2nd incident. Mobley explained to Gurley that what the employees really wanted was an explanation of his non-competition contract. Gurley responded that he had a manager, Peck, for that purpose, and initially refused to meet with the employees. Mobley succeeded in persuading him to discuss the problem with the employees and a short time later they all gathered for a meeting at the lab. At that time, Gurley explained that he needed more security, in the form of assurance that none of his employees would divulge the names of his valuable rare blood donors to competitors. He also announced that the lab was closed and that the employees had brought the closing on themselves. One donor lab employee, Dennis Huguley, argued with Gurley over the consideration claimed in the Gurley contract for the employees' agreement not to compete the specialized training given them by Southern Plasma. It was Huguley's contention that any "training" was simply the result of trial and error.

The unfruitful meeting came to an end with Gurley repeating that he was going to close the lab, and saying that he had not been making any money anyway and that he was going to get rid of the troublemakers and "potheads". The donor lab and processing room employees, except for Debi Blanchard, were terminated and the donor lab closed. The antibody lab, whose workers had signed the Gurley contract, remained open.

Six days later, on September 8th, the donor lab reopened with new employees. Calvin Thomas reapplied and was rehired. Mobley inquired about reemployment but was turned down. In November, Huguley came to the lab as a donor. Peck asked him if he would be interested in returning to his job, to which he replied affirmatively. However, upon inquiry Gurley said he would not rehire Huguley because he was a troublemaker, this assessment being based in part on Huguley's conduct at the September 2nd meeting.

The ALJ concluded, and the Board concurred, that Southern Plasma violated §§ 8(a)(1) and 8(a)(3) of the Act by closing the donor lab and then reopening it in order to foreclose the union, and that the complaint was not barred by § 10(b) of the Act. A separate violation was found in the refusal to rehire Huguley. The ALJ stated this refusal was motivated by anti-union animus prompted by Huguley's conduct at the September 2nd meeting, which the ALJ decided was protected concerted activity. Finally, the ALJ determined that Baker and Parker, even though supervisors, were entitled to reinstatement and backpay along with the rest of the former employees. See 29 U.S.C.A. § 152(3).

Section 10(b) of the Act, 29 U.S.C.A. § 160(b), provides that "no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made . . . ." The charge was filed and served on March 3, 1978, six months and one day after Gurley closed the lab. Southern Plasma insists that the employees were "discharged" on September 2nd, that any violation of the Act must have occurred on that day and that the complaint is therefore time-barred. We disagree.

In Textile Workers Union of America v. Darlington Mfg. Co., 380 U.S. 263, 271-274, 85 S.Ct. 994, 1000-1001, 13 L.Ed.2d 827, 835-36 (1965), the Supreme Court made it clear that an employer may shut down his entire business even if motivated by the most egregious anti-unionism. However, the employer cannot close his business temporarily and then reopen in order to oust the union. Id. 380 U.S. at 271, 85 S.Ct. at 1000, 13 L.Ed.2d at 835. ³ Putting Gurley's motive aside for the moment, we have no doubt that his actions constituted a temporary closing of the processing room and donor lab, and not simply a selective discharge of employees. Gurley's own testimony belies any other characterization. He clearly stated to his employees at the September 2nd meeting that he was closing the lab. Even if he had told them that he was closing the lab because he did not care to deal with a union, at that point there would have been no violation of the Act and the employees would have been without remedy. ⁴ It was only on September 8th, when the donor lab and front office reopened with new employees, that, assuming an unlawful motive, a violation of the Act occurred. ⁵

The ALJ did not separately analyze Gurley's conduct under §§ 8(a)(1) and 8(a) (3), and correctly so. Rather, once he decided that Gurley's conduct was discriminatorily motivated, he concluded that both sections were violated. Section 8(a)(1) prohibits employer conduct which interferes with employees' § 7 rights to organize and to bargain collectively. This section requires weighing the effect on employee rights against the employer's business justification for his actions; discriminatory motive need not be present. Republic Aviation Corp. v. NLRB, 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372 (1945). Section 8(a) (3) covers narrower ground it proscribes "discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization." Thus, an anti-union motive for the employer's action is necessary. In Darlington, the Court decided that closing a business is not a violation of § 8(a)(1) unless it also violates § 8(a)(3), i. e., it was motivated by anti-union animus, because such decisions "are so peculiarly matters of management prerogative." Darlington, 380 U.S. at 269, 85 S.Ct. at 999, 13 L.Ed.2d at 833. See R. Gorman, Basic Text on Labor Law 146, 148 (1976). Our examination of the temporary closing will focus only on § 8(a)(3). ⁶

The ALJ found that the donor lab and processing room were temporarily closed "in substantial part if not entirely, because (the employees) had concertedly acted for their own mutual aid and protection and because Gurley believed that they were engaged in union activity." R. 258 (footnote...