NLRB v. Howell Automatic Machine Company

• Decision Date: 03 February 1972
• Docket Number: No. 71-1246.,71-1246.
• Citation: 454 F.2d 1077
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HOWELL AUTOMATIC MACHINE COMPANY, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

454 F.2d 1077 (1972)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HOWELL AUTOMATIC MACHINE COMPANY, Respondent.

No. 71-1246.

United States Court of Appeals, Sixth Circuit.

February 3, 1972.

Stuart M. Rosenblum, N. L. R. B., Washington, D. C., Eugene G. Goslee, Acting Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Charles M. Steele, Atty., N. L. R. B., Washington, D. C., on brief for petitioner.

Paul Walter, Cleveland, Ohio, Walter, Haverfield, Buescher & Chockley, John J. Kelley, Jr., Michael T. McMenamin, Cleveland, Ohio, on brief, for respondent.

Before CELEBREZZE, BROOKS^*, Circuit Judges, and O'SULLIVAN, Senior Circuit Judge.

CELEBREZZE, Circuit Judge.

This is a petition for enforcement of an order of the National Labor Relations Board, reported at 183 N.L.R.B. #134. The Board found that the Respondent Company had violated § 8(a) (3) and 8(a) (1) of the National Labor Relations Act, 29 U.S.C. § 158(a) (3) and (a) (1)¹ by discharging employee Marlene Fenske on August 8, 1969. It ordered the reinstatement of the employee with back pay from the date of the discharge.

The Howell Automatic Machine Company (the Company) manufactures and sells screw machine parts. Its only plant is located in Strongsville, Ohio. The business is owned by two brothers, Robert and Norman Pennock. Robert Pennock serves as president of the Company and Norman as secretary-treasurer.

In August, 1968 District 54 of the International Association of Machinists & Aerospace Workers (the Union) began a campaign to organize the Company's workers. A December 1968 election, which resulted in defeat for the Union was set aside because of the failure of the Company to provide the addresses of its employees.² A rerun election was held in July, 1969 and the Union lost by a single vote in a unit substantially reduced by economic layoffs.

Marlene Fenske was hired by the Company in July, 1967. It was undisputed at the hearing held on this present complaint that Mrs. Fenske had been active in the Union organizational effort in the period preceeding the December, 1968 election; she passed out membership cards, union literature and publicly extolled the virtues of union membership. Mrs. Fenske and several other witnesses testified at the hearing that management was aware of her union activities. The Company President, Robert Pennock testified that he did not know of Mrs. Fenske's organizational efforts. The Trial Examiner credited Mrs. Fenske and her supporting witnesses on this point and the Board agreed with this position. It is within the special province of the Examiner to settle questions of credibility, N.L.R.B. v. Stemun Mfg. Co., 423 F.2d 737, 739 (6th Cir.1970), and we will not ordinarily disturb findings made by the Examiner who has had the opportunity to observe the demeanor of the witnesses. We accept Mrs. Fenske's testimony and that of other witnesses called on behalf of the General Counsel as establishing the fact that management in general and President Pennock in specific had knowledge of Mrs. Fenske's union activities at all times relevant to the discharge in question.

There is no evidence at all suggesting that Mrs. Fenske performed any organizing role or otherwise aided the Union in the period after the December election, however. She did not campaign for the Union prior to the July election and did not herself vote in that election, having been hospitalized for performance of an emergency appendectomy on June 28, 1969.

As a result of the appendectomy Mrs. Fenske was unable to work for a period of approximately six weeks. On August 6th, Mrs. Fenske telephoned the Company's offices and spoke with Treasurer Norman Pennock who gave her permission to begin her vacation period at that time. Her request and his agreement were predicated on the fact that Mrs. Fenske's benefits under the Company's group disability insurance program had not yet been paid by the insurer and Mrs. Fenske was in need of both the additional recovery time and immediate cash which the vacation arrangements could provide. She agreed that she would return to work by August 18th.

Representatives of the insurance company contacted her the next day and told her that her claim could be processed more quickly if she brought her hospital bill directly to her employer. She agreed to do so and on that same day, August 7th paid a visit to the Company offices. She gave the payroll clerk, Marge Hopkins, the hospital bill; she also asked if she could be given her vacation check at that time to avoid another trip. The clerk made inquiries and then told Mrs. Fenske that the check had not yet been signed by Norman Pennock. Mrs. Fenske, according to her own testimony, replied: "He didn't sign it? Don't tell me that because they get paid on Thursday here at the shop for the night shift."

Mrs. Fenske then left the plant. The payroll clerk repeated the remarks to Robert Pennock; according to Pennock³ she also told him that Mrs. Fenske had said that her treatment "was what she would have expected out of a place like Howell."

The next day, August 8th, Mrs. Fenske returned to pick up her vacation money. She received the check but noticed a $15.48 deduction for insurance premiums. Not understanding the reason for the deduction she approached her supervisor for an explanation, but he too was unable to account for the deduction. On his suggestion Mrs. Fenske placed an intraoffice call to payroll clerk Hopkins who explained that the Company continued to pay insurance premiums for only four weeks of an employees' illness and that thereafter the employee had to bear the costs herself. The deduction, according to Mrs. Hopkins, represented two weeks premiums.

Mrs. Fenske testified that she informed Hopkins that the "$15.48 was steep for only two weeks, and I had not received any money so far from the insurance company, and I thought it was a stupid operation." According to President Pennock, Mrs. Hopkins reported the above quoted remarks to him and also stated that Mrs. Fenske had called Howell "a lousy place to work."

Upon having this account of Mrs. Fenske's comments related to him, Pennock rushed from his office and, without questioning Mrs. Fenske as to the accuracy of the payroll clerk's account of the conversation, announced that "he had let the statement go from the day before, but he would not let the statement Mrs. Fenske just made go by; he did not need her kind of people in his shop and Mrs. Fenske could just get out and stay out." He cut off her attempt at explanation and turned his back upon her. When, a few minutes later, he found her talking to employees in a tool shed, he told her to "get off the property" and "keep on going."

A non-unionized employer may, in the absence of a contract, "discharge an employee for good cause, bad cause, or no cause at all." Portable Electric Tools, Inc. v. N.L.R.B., 309 F.2d 423 (7th Cir.1962). If, however, "the real motive for the firing is discrimination against an employee because of his union activities or affiliations there is a violation of the Act, N. L. R. B. v. Challenge-Cook Brothers of Ohio, Inc., 374 F.2d 147, 152 (6th Cir.1967).

The question as to the Company's motivation in firing is a factual one to be determined primarily by the Trial Examiner and the Board, N.L.R.B. v. Murray Ohio Mfg. Co., 358 F.2d 948, 950 (6th Cir.1966). Such determination is subject to review in this Court limited to the question of whether or not it is supported by substantial evidence on the record as a whole. See N.L.R.B. v. Ogle Protection Service, Inc., 375 F.2d 497, 505 (6th Cir.1967), cert. denied 389 U.S. 843, 88 S.Ct. 84, 19 L.Ed.2d 108 (1967); N. L. R. B. v. Murray-Ohio, supra, 358 F.2d at 950; cf. Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951); 29 U.S.C. § 160(e).

The burden of proving that a discriminatory or anti-union motive impelled the employer to act lies with the General Counsel. N.L.R.B. v. Bangor Plastics, Inc., 392 F.2d 772, 777 (6th Cir.1967); Lawson Milk Company v. N.L.R.B., 317 F.2d 756, 760 (6th Cir. 1963). The Trial Examiner found and the Board, in adopting the Examiner's recommendations, agreed that General Counsel had successfully shouldered that burden here and demonstrated that Mrs. Fenske's remarks were merely a pretext used by Company President Pennock who looked upon the outbursts as an opportunity to fulfill his long standing desire to discharge a dedicated union supporter and organizer. We are unable to agree that substantial evidence on the record as a whole supports this finding.

The Trial Examiner based his conclusion substantially on two things: a conversation between a co-worker of Mrs. Fenske and the Company President, in which the latter expressed a desire "to get rid of Mrs. Fenske" because of the trouble she had caused and the "sudden and arbitrary" nature of the discharge itself.

Examined in the perspective of all the evidence, including the body of evidence opposed to the Board's view, (Universal Camera, supra, 340 U.S. at 488, 71 S.Ct. 456) the base upon which the Examiner's conclusion and that of the Board rests is insubstantial.

The conversation between employee Harriet Bert and President Pennock in which the subject of Mrs. Fenske's discharge was discussed occurred in December, 1968 immediately after the first election. According to her testimony, Mrs. Bert (then a union opponent) congratulated Pennock on his victory and added: "Why don't you get rid of Marlene (Fenske) now she has caused all this trouble." Pennock allegedly replied: "Yes, I know, but I can't get rid of her now because the National Labor Relations Board would back her up. One way or the other I will get rid of her." Pennock did not recall any such conversation. This coupled with the fact that Mrs. Bert admitted being a close friend and neighbor of Mrs. Fenske at the time of the hearing raises a question of...