N.L.R.B. v. Aquatech, Inc.

• Decision Date: 25 February 1991
• Docket Number: No. 90-5563,90-5563
• Citation: 926 F.2d 538
• Parties: 136 L.R.R.M. (BNA) 2608, 118 Lab.Cas. P 10,571 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. AQUATECH, INC., Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 538

926 F.2d 538

136 L.R.R.M. (BNA) 2608, 118 Lab.Cas. P 10,571

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. AQUATECH, INC., Respondent.

No. 90-5563.

United States Court of Appeals Sixth Circuit.

Submitted Jan. 28, 1991.

Decided Feb. 25, 1991.

Aileen A. Armstrong, Deputy Associate General Counsel, Charles P. Donnelly, Jr., Margaret E. Luke, N.L.R.B., Office of the General Counsel, Washington, D.C., Frederick Calatrello, Director, N.L.R.B., Region 8, Anthony J. Celebrezze, Cleveland, Ohio, for petitioner.

Stephen A. Markus, Robert J. Van Der Velde, Stephanie E. Trudeau, Ulmer & Berne, Cleveland, Ohio, for respondent.

Before MILBURN and GUY, Circuit Judges; and BROWN, Senior Circuit Judge.

RALPH B. GUY, Jr., Circuit Judge.

This case is before the court upon the application of the National Labor Relations Board (NLRB or Board) for enforcement of its order issued against Aquatech, Inc. (Aquatech), an Ohio corporation and manufacturer of sewer cleaning equipment. The Board adopted an administrative law judge's (ALJ) finding that Aquatech violated section 8(a)(3) of the National Labor Relations Act (Act), 29 U.S.C. Sec. 158(a)(3), by discharging employees Robert Naujoks, Charles Naujoks, John Pocius, Michael McAlpine, and Cottrell Glaze in retaliation for their union activities. The Board also adopted the ALJ's finding that Aquatech had violated section 8(a)(1) of the Act, 29 U.S.C. Sec. 158(a)(1), by engaging in conduct intended to interfere with, restrain, and coerce employees in exercising their rights under section 7 of the Act. ¹ The Board ordered Aquatech to cease and desist from unfair labor practices and from in any like manner interfering with, restraining, or coercing employees in the exercise of their statutory rights, and further ordered Aquatech to offer reinstatement with backpay to the five employees found by the Board to have been improperly discharged.

Aquatech argues that the discharges were not in retaliation for union activity, but were proper and based on well-documented violations of company policies, and asks this court for an order denying the application and vacating the Board's order. Specifically, Aquatech argues that (1) John Pocius did not fall within purview of the Act because he was a supervisor; (2) that the general counsel failed to establish that the discharge of Michael McAlpine was motivated by anti-union animus, because no evidence was presented that Aquatech knew McAlpine supported the union; (3) that the evidence overwhelmingly establishes that Cottrell Glaze and Charles Naujoks would have been terminated for violations of Aquatech's attendance policy even if they had not supported the union; and (4) that Robert Naujoks was properly terminated for violating Aquatech's no-solicitation rule.

Upon review we conclude that the Board's order is supported by substantial evidence and is in accordance with law, and we order enforcement.

I.

The general counsel for the Board, acting on behalf of the charging party, United Steelworkers of America (the union), commenced this action by alleging that Aquatech improperly terminated eight employees and engaged in certain other improper conduct during the course of a union organizing campaign. ² Aquatech denied the allegations, and the ALJ conducted a hearing where witnesses and documentary evidence were presented by counsel for both sides. ³

The events giving rise to this action began in late July 1988 when Hank Shaffer, a tow motor operator, initiated a union organizational campaign. He began by asking his co-workers if they would be interested in joining a union. After receiving many affirmative responses, Shaffer contacted the United Steelworkers and arranged to meet with a business agent several days later. At this meeting, the agent provided Shaffer with authorization cards. While on breaks over the next 10 days, Shaffer distributed the cards to a large number of employees and ultimately obtained signatures from approximately 75 percent of the workforce. He also gave batches of cards to several volunteers who then solicited authorizations from the workers in their respective departments. Later in the month, Shaffer and his group of volunteer assistants also distributed union buttons and other union paraphernalia.

Among those employees assisting Shaffer in the union organizing drive were John Pocius; Robert Naujoks; and Robert's brother, Charles Naujoks. Employees Michael McAlpine and Cottrell Glaze also were supporters; they signed authorization cards and attended meetings, and Glaze wore a union button. Shaffer and the employees who distributed union materials routinely met together on break times and at lunchtime to discuss their progress. Several supervisors observed employees meeting and carrying out their organizational activities.

Sometime in late August, union representative Al Capone contacted Aquatech's owner, Ben Fisco, Jr., to request recognition. Shortly thereafter, on September 1, Fisco held meetings with two separate groups of plant employees. Accounts of Fisco's remarks delivered to approximately 50 employees at the first of these meetings are uncontroverted. Fisco stated bluntly that the shop was his, that he had run his business without a union, and would continue to do so. He asserted that he would have no difficulty in identifying those who signed authorization cards and suggested the employees could still withdraw them. He further stated that if the union succeeded in its representational efforts, he would refuse to agree to a union shop or dues checkoff and would insist on mandatory drug testing. Fisco also remarked that he believed he had treated his employees fairly and saw no reason why they needed a union. He then assured the employees that he had an open door policy and that any time an employee wished to discuss anything with him, he would be glad to do so.

Before the meeting concluded, a number of employees asked why they had not received pay raises. Fisco responded that he had no knowledge of their pay scales but would look into the matter. Other employees complained about squalid conditions in the plant lunchroom and restrooms. Fisco promised improvements and Aquatech began to address these complaints the next day. The restrooms, lunchroom, and picnic tables were painted, and pipes were unclogged in the restrooms. A week or two later, curtains were hung in front of restroom stalls to provide privacy, and later still, leaky and non-functioning toilets were repaired.

All five employees at issue--McAlpine, Robert Naujoks, Charles Naujoks, Glaze and Pocius--were discharged by Aquatech during the same two-day period commencing on September 8 and ending on September 9. It is necessary to address separately the events leading to the discharge of each employee.

McAlpine, who was the first of the five employees to be discharged, began working as a machinist for Aquatech on July 7, 1985. He received a pay raise when he was promoted to work on a burning table, but after that he often asked his supervisor, Gary Skaggs, about another raise. On one occasion, he protested that his predecessor at the burning table had earned much more than he had. When Skaggs expressed disbelief, McAlpine urged him to check the records.

During the 1988 union organizing drive, McAlpine attended two union meetings. At one point, while union adherent Shaffer and he were on a lunch break at a location away from the plant, Shaffer gave McAlpine a union authorization card. Upon McAlpine's return to work, he placed the unsigned card on his work table where he kept his paperwork. Skaggs customarily placed work orders on McAlpine's work table near McAlpine's work station. Later that same day, McAlpine signed the authorization card and gave it to Shaffer as Shaffer was leaving work.

On September 8, the day he returned from a week's vacation, McAlpine was informed by Skaggs that he was being terminated for poor attendance and bad work habits. McAlpine protested that his work was good, that he was far more efficient than two employees he had trained on the burning table, and that he never had a poor attendance record.

Robert Naujoks served as one of the principal organizers during the union campaign, distributing authorization cards he received from Shaffer as well as union buttons, stickers, and other paraphernalia. He testified without contradiction that he engaged in this activity solely during break periods or before and after work. On one such occasion, a foreman, Silvio Alarcon, observed him handing an authorization card to an employee. In addition, Naujoks related that a small band of employees who were actively engaged in union campaigning often met during breaks to discuss their activities in an area which was easily observed by supervisors.

On September 9, in the presence of plant manager John Manes and several other supervisors, Naujoks received a separation notice which stated that he had violated company regulation 6 (attendance), company rule 9 (soliciting, distribution, littering), and company rule 13 (quality of work). Naujoks denied that he had violated these rules and asked to speak with Manes privately. Manes seized the separation notice and added the comment, "Also threatened a supervisor."

Naujoks testified that his work performance had been rated as "excellent" and that he was slated to be classified "at the top of the list" of welders. No evidence was presented at the hearing to show that Naujoks had breached Aquatech's attendance policy or produced shoddy work. Similarly, Aquatech produced no evidence that he had violated rule 9 by distributing union materials during non-working times in non-working areas. Company rule 9, proscribing solicitation, reads as follows:

There shall be no collecting or soliciting of any kind during the time employees are expected to be working. There shall be no distribution of literature at any time in work areas, nor in any place or manner which constitutes...