N.L.R.B. v. Henlopen Mfg. Co., Inc.

• Citation: 599 F.2d 26
• Decision Date: 03 May 1979
• Docket Number: No. 163,D,163
• Parties: 101 L.R.R.M. (BNA) 2247, 86 Lab.Cas. P 11,295 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HENLOPEN MANUFACTURING CO., INC., Respondent. ocket 78-4054.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 26

599 F.2d 26

101 L.R.R.M. (BNA) 2247, 86 Lab.Cas. P 11,295

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HENLOPEN MANUFACTURING CO., INC., Respondent.

No. 163, Docket 78-4054.

United States Court of Appeals, Second Circuit.

Argued Nov. 2, 1978.

Decided May 3, 1979.

Mary Schuette, Washington, D.C. (William R. Stewart, Deputy Asst. Gen. Counsel, L. Joseph Ferrara, Atty., John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., Washington, D.C., of counsel), for petitioner.

John M. Capron, Atlanta, Ga. (Fisher & Phillips, and Samuel Tannenbaum, DiFalco, Field & Lomenzo, New York City, of counsel), for respondent.

Before MOORE, FEINBERG and TIMBERS, Circuit Judges.

MOORE, Circuit Judge:

The National Labor Relations Board (the "Board"), is petitioning for enforcement of its order, 235 N.L.R.B. No. 33 (1978), issued against Henlopen Manufacturing Co. (the "Company"), on March 17, 1978, pursuant to § 10(e) of the National Labor Relations Act ("NLRA" or the "Act"), 29 U.S.C. § 160(e) (1976). The order affirmed the rulings, findings and conclusions of the Administrative Law Judge ("ALJ") except for a minor modification of the remedy. The ALJ's decision, in turn, was made after a trial upon a complaint, which according to the ALJ, alleged that the Company

"violated Section 8(a)(1) of the Act by soliciting grievances from its employees in order to discourage interest in the Charging Party unions which were seeking to organize its employees, by threatening employees with discharge, elimination of part-time work and institution of a more onerous production quota system if they supported the unions, and by promising and granting benefits, including a new work-incentive plan, in order to induce employees to refrain from supporting the unions."

The complaint also alleged that the Company "first transferred employee Cecilia Caruona to a more onerous job and then discharged her because of her union activities in violation of Section 8(a)(3) and (1) of the Act". 29 U.S.C. § 158(a)(3) and (1) (1976). The general purport of the complaint is that the Company by various actions and threats showed such an anti-union animus as to constitute a violation of Section 8.

The Company is a New York corporation located principally in Melville, New York. It manufactures and sells plastic cases and brushes for cosmetics and related products and has some 200 employees. There are two main production areas in the Company's plant: the molding department, where plastic parts are formed in injection molding machines, and the assembly department, where the plastic parts are put together. During the relevant time period, both the International Industrial Production Employees Union ("IPEU") and Local 917, International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America ("Teamsters") were engaged in organizational campaigns at the Company's Melville plant.

I

In order to establish a context for the issue which is before the court, the various charges which the ALJ dismissed are relevant. These events occurred during organizational campaigns of the IPEU and the Teamsters.

The alleged threat of elimination of the Company's part-time shift was based upon a Company leaflet or letter circulated on October 11, 1976. As to this letter the ALJ found that the General Counsel had not proven "that the letter threatened reprisals".

Another incident in September involved an employee Fawn Russo, a "paid union organizer trainee" through whom the General Counsel advanced the charge that the Company "solicited grievances, implied that they would be implemented, or actually implemented them in order to discourage union activity". The ALJ found that the General Counsel had failed to substantiate this charge. Likewise the ALJ found that "the General Counsel has failed to sustain his burden of proving that Respondent (the Company) promised an improved bonus system or threatened more onerous production quotas in violation of the Act".

Hence, the ALJ dismissed all the charges of unfair labor practices except one. The one unfair labor practice he found, on which the order is sought to be enforced, is the charge that the Company unlawfully discharged the employee Caruona.

II

In August, 1976, Cecilia Caruona applied for work at the Company and was interviewed by Manuel Garcia, the assembly department manager, on Friday, August 13. She was hired to work in the assembly department. She began work on Monday, August 16; her work hours, 8:30 a. m. to 1:00 p. m., were based on her request to work part-time.

Prior to Caruona's application for employment, she had agreed to become a "student" IPEU organizer; of this the Company was not aware. The IPEU promised to pay Caruona $50 per week while she was organizing. Her instructions as an organizer were to do her work, try to organize her employer's workers, and report back to the IPEU any information relevant to any organizing efforts. The essentials of these instructions were repeated when she informed the IPEU that the Company had hired her. During the less than two weeks she worked for the Company, Caruona received $50 a week from the IPEU.

Caruona worked four days on the day shift in the assembly department. On Monday, August 16, her production was 50 percent of standard; it improved to 77 percent of standard on Thursday. The average productivity of new workers at that time was 58 percent of standard. On Thursday she was seven minutes late for work because she had been in an automobile accident. She apparently was two minutes late on Tuesday.

Caruona commenced her attempts to organize the Company's employees during her first week of work. On Tuesday, August 17, she obtained a signed authorization card from Fawn Russo. Before and after work and during lunch breaks, she talked to employees about supporting the IPEU and handed out leaflets and cards.

On Thursday, the 19th, Garcia asked Caruona if she would transfer to the molding department on an evening shift. The job in the molding department paid 70 cents more per hour than her job as an assembler. The ALJ found that "she willingly and voluntarily accepted Garcia's offer for a transfer to the molding department". Caruona began work in the molding department on Friday, August 20, at 8:30 p. m. She was assigned to learn to perform quality control work and to work on one of the molding machines. That Friday night Caruona worked only two hours. The reason, according to the Board's brief (p. 6), was as follows:

"Due to a digestive problem caused by tuna fish she had eaten during a break, the 'constantly ringing' machine noise, and plastic odors she found 'repulsive', Caruona became sick that night and did not work the next working night, Monday, August 23."

Caruona was outside the plant on Tuesday, August 24, during the day shift, passing out IPEU cards and pamphlets. Maxwell Mutter, the Company's Vice-President and Comptroller, saw her distributing the union literature and attempted to chase her off the property. When Caruona told him that she was an employee and refused to leave, Mutter simply left.

Caruona worked the night of August 24, wearing a shirt with "IPEU" and "vote union" lettering on it. The same night Caruona received minor burns to her hands from operating the molding machine and immediately obtained first aid. Also during that shift she had to weigh and stack heavy boxes. She did not report for work on Wednesday night, the 25th.

On August 25, Vice-President Mutter read a speech to the Company's employees in which he asserted that a union was unnecessary and that the Company did not want a union and would oppose it in every legal way.

Caruona sought out Mutter at the plant on August 26 and told him that she could not work that night because she was sick and that she wanted her former assembly job back. Mutter told her that he could not transfer her back to assembly because the Company did not make transfers at the "whim of employees"; that she had not really given her new job a chance; and that she should try to do better at her work. She replied that she was going to see a doctor to see if she was too sick to work.

Caruona saw Mutter again the next day, Friday, August 27, and told him she was too sick to work. Mutter asked her if she was resigning; Caruona said no. Then Mutter fired her.

The Administrative Law Judge found that the transfer of Caruona to the molding department was not effected for unlawfully discriminatory reasons. He also pointed out that no one contended that Mutter's speech was illegal. He found only two acts which violated the NLRA, namely, Mutter's refusal to transfer Caruona to the assembly department day shift and the subsequent dismissal. He found that but for Caruona's union activity, she would have been permitted to return to the day shift in lieu of being discharged.

The timing of the events is of considerable importance in passing upon whether anti-union animus was shown by the employee Caruona incident. All the events above described, relied upon by the General Counsel to show animus, occurred in September and October 1976. Caruona's brief period of part-time work was in a period between August 16 and August 27, 1976. Upon this single short-lived incident the ALJ based his conclusion that the Company's "conduct both in refusing to transfer Caruona back to the day shift and in thereafter discharging her was unlawfully motivated" and resulted in a violation of Section 8(a)(3) and (1).

III

Thus, the issue is whether there is substantial evidence on the whole record to support the Board's finding that the Company discriminatorily refused to transfer Cecilia Caruona to the day shift on account of her union activities and fired her because she refused to work on the night shift.

The most striking aspect of this case is the Board's failure to produce evidence that the...