N.L.R.B. v. Proler Intern. Corp.

• Decision Date: 26 January 1981
• Docket Number: No. 79-3158,79-3158
• Citation: 635 F.2d 351
• Parties: 106 L.R.R.M. (BNA) 2530, 90 Lab.Cas. P 12,532 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PROLER INTERNATIONAL CORPORATION, Respondent. . Unit A
• Court: U.S. Court of Appeals — Fifth Circuit

Page 351

635 F.2d 351

106 L.R.R.M. (BNA) 2530, 90 Lab.Cas. P 12,532

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PROLER INTERNATIONAL CORPORATION, Respondent.

No. 79-3158.

United States Court of Appeals, Fifth Circuit.

Unit A

Jan. 26, 1981.

Elliott Moore, Deputy Associate General Counsel, J. Keith Gorham, Robert G. Sewell, N.L.R.B., Washington, D. C. for petitioner.

Fulbright & Jaworski, A. J. Harper, II, Brian S. Greig, L. G. Clinton, Jr., Houston, Tex., for respondent.

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

Before WISDOM, AINSWORTH and GEE, Circuit Judges.

WISDOM, Circuit Judge:

Proler International Corporation is a scrap iron salvage company. Its Houston plant employs between 200 and 250 persons. During the first six months of 1978 Proler workers filed a number of complaints with the National Labor Relations Board against the company arising out of a strike and a union organizational campaign. After a two-day trial, an administrative law judge determined that the company had committed a variety of unfair labor practices-including threats, interrogations, and discriminatory discharges-in violation of section 8(a)(1) and (3) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1) and (3). The Board adopted the ALJ's findings with some minor exceptions and ordered the company to cease and desist from interfering "in any other manner" with the rights of its employees, to reinstate with back pay all discriminatorily discharged employees, and to post appropriate notices at its plant. The Board now seeks enforcement of these orders. We enforce in part, vacate in part, and remand to the Board for further factual findings.

I.

Around eight in the morning of January 18, 1978, about 20 Proler truckdrivers met in the company conference room to discuss their complaints about working conditions with a company vice-president, Sam Oliver. Oliver stated that he was only a vice-president, not the owner, and that he could not negotiate with the employees at that time. He advised them to return to work or go home, and left the room. The employees went across the street to a roadside diner where they constructed picket signs and discussed the future strategy to be pursued. Within an hour, Oliver went to the diner and talked with the leader of the group, Leroy Stubbs, in an effort to convince the men to return to work. As Oliver left he told Stubbs that unless the men returned to work by 10:30 they would lose their jobs. Oliver and the striking employees continued to communicate with each other for the remainder of the day, and even met once again in Oliver's office. The drivers did not return to work that day and did not unconditionally offer to return to work until January 31, 1978.

The ALJ concluded that Oliver's statement was a discriminatory discharge of the striking truckdrivers that converted what was an economic strike into an unfair labor practice strike. He recommended immediate reinstatement for all the truckdrivers as well as back pay to be computed as of January 31, the date of their unconditional offer to return to work. The Board adopted the findings, but modified the recommended order in one respect. Reversing a thirty-year practice, it ordered that the back pay remedy be computed from the date of the discharge, rather than the date of the offer to return to work. ¹ Because we conclude that the Board's finding of a discharge is not supported by substantial evidence and that the strike was not converted into an unfair labor practice strike, we must vacate this part of the Board's order and remand for further findings.

The Board and the company hotly dispute whether or not Oliver used the word "fired" in his statement telling the drivers to return to work by 10:30 on the morning of the strike. This dispute focuses on the wrong question. The question is not what specific language was used but whether the language was such that it led the workers reasonably to conclude that they had been fired. NLRB v. Ridgeway Trucking Co., 5 Cir. 1980, 622 F.2d 1222, 1224. There is no evidence in the record that the men considered themselves discharged after the 10:30 deadline passed. The little evidence that exists concerning the drivers' later actions points the other way. Several of them met with Oliver again later in the afternoon. Furthermore, the men sent two mailgrams that afternoon in which they referred to themselves as "employees engaged in concerted activity" and asked for further meetings with management the next day. Similarly, there is no indication that the company considered the men discharged. No final checks were delivered to the men, nor were letters of termination sent. The one statement by Oliver is the sole piece of evidence relied on by the Board. The statement was undoubtedly a threat, which is in itself an 8(a)(1) violation, but it is not enough evidence, when viewed in light of the whole record, to support the Board's conclusion that the threat was actually carried out.

The conclusion that the strike was not converted to an unfair labor practice strike follows from the conclusion that no discharge occurred on January 18. It is undisputed that the walkout began in protest of working conditions and was an economic strike. For an economic strike to be converted to an unfair labor practice strike, the employer's unfair labor practice must be a contributing factor in causing or prolonging the strike. NLRB v. Moore Business Forms, Inc., 5 Cir. 1978, 574 F.2d 835, 840; NLRB v. Birmingham Publishing Co., 5 Cir. 1959, 262 F.2d 2, 9-10. The employees did not consider themselves discharged. Their continued strike therefore could not have been in protest of their discharge. Similarly, although it is conceivable that they may have been protesting the threat of discharge conveyed by Oliver, there is no evidence to support that notion. No one testified to that effect and apparently none of the picket signs carried by the striking employees listed either the threat of discharge or the supposed discharge as a grievance. There must be evidence of a causal link between the unfair labor practice and the strike. Cagle's, Inc. v. NLRB, 5 Cir. 1979, 588 F.2d 943, 950. Since none exists here, the strike remained an economic one.

Discharges may nevertheless have occurred when the strikers unconditionally offered to return to work on January 31. Economic strikers are entitled to immediate reinstatement upon their unconditional offer to return to work, unless the employer can show substantial and legitimate business justifications for refusing to rehire them; employees not rehired at that time are considered discriminatorily discharged. NLRB v. Fleetwood Trailer Co., 1967, 389 U.S. 375, 378, 88 S.Ct. 543, 545, 19 L.Ed.2d 614. Because this case was tried solely on the theory that the strike had been converted to an unfair labor practice strike by the supposed discharge on January 18, neither party offered proof concerning who was not reinstated and whether there were substantial business justifications for the company's failure to reinstate. We therefore remand this case to the Board for further findings on these issues. Those employees found by the Board to have been refused reinstatement without just cause will of course be entitled to the usual reinstatement and back pay remedy.

II.

In response to a successful union representation election and the union activity that ensued, the company undertook a variety of actions found by the Board to be violations of sections 8(a)(1) and (3) of the Act. With one exception, we affirm the Board's findings.

A.

On two successive days in February 1978, shortly after the successful union representation election, Earl Ramey, an employee of the company, and his girl friend, Felippa Torres, a former employee, invited several other employees to restaurants away from the plant site. Ramey voiced strong anti-union sentiments and urged the employees to sign a petition asking for another election. Torres served as his translator for the Spanish-speaking employees. The Board found that Ramey and Torres were agents of the company and that their promotion of a decertification petition thus violated the Act.

This Court has held that "(s)ection 8(a)(1) of the Act makes it unlawful for an employer to instigate and promote a decertification proceeding or induce employees to sign any other form of union-repudiating document, particularly where the solicitation is strengthened by the express or implied threats of reprisal or promises of benefit." NLRB v. Birmingham Publishing Co., 5 Cir. 1959, 262 F.2d 2, 7. If the actions of Ramey and Torres can be attributed to the company, they violated the Act. A company can be held accountable for unfair labor practices even if they are committed by persons other than management personnel if the company has taken steps that lead its employees reasonably to conclude that those persons were acting on behalf of management. Helena Laboratory Corp. v. NLRB, 5 Cir. 1977, 557 F.2d 1183, 1187. There is substantial evidence to indicate that the company took such steps and that Ramey and Torres were acting on behalf of the company: the company paid for the lunches; the company paid the employees for the time spent; the company provided at least one automobile to transport employees to the restaurants where the luncheons were held; Ramey wore a supervisor's white hard hat and was thought to be a supervisor by at least one employee; and, after one luncheon, Ramey gathered several of the employees in the personnel office of the company, in the presence of the company's attorney,...