NLRB v. Melrose Processing Co.

• Decision Date: 29 October 1965
• Docket Number: No. 17979.,17979.
• Citation: 351 F.2d 693
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MELROSE PROCESSING CO., Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

351 F.2d 693 (1965)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MELROSE PROCESSING CO., Respondent.

No. 17979.

United States Court of Appeals Eighth Circuit.

October 29, 1965.

William Wachter, Atty., N. L. R. B., Washington, D. C., Arnold Ordman, General Counsel, N. L. R. B., Dominick L. Manoli, Associate Gen. Counsel, N. L. R. B., Marcel Mallet-Prevost, Asst. Gen. Counsel, N. L. R. B., and Gary Green, Atty., N. L. R. B., Washington, D. C., for petitioner.

Robert G. Johnson, of Johnson, Schmidt & Thompson, Willmar, Minn., for respondent.

Before MATTHES and GIBSON, Circuit Judges, and REGAN, District Judge.

GIBSON, Circuit Judge.

This case is before the Court on the petition of the National Labor Relations Board (Board) pursuant to Title 29 U.S.C. § 160, seeking enforcement of two orders issued against respondent, Melrose Processing Company. These orders were issued on April 21, 1964 and March 31, 1965 and are reported at 146 NLRB No. 118, and 151 NLRB No. 134 respectively. The main issue is an alleged discriminatory refusal to rehire a former employee.

Melrose Processing Company (Melrose) operates a plant employing approximately 200 persons in the small town of Melrose, Minnesota, population 2,000. Melrose is engaged in the business of slaughtering, processing and distributing turkeys which are shipped in interstate commerce. The plant is operated on a seasonal basis in which it completely closes for relatively long periods of time and the workers are hired anew at the beginning of each season. It has been the custom for Melrose to advertise when it planned to begin its seasonal operation and invite applications for employment. All past and prospective employees had to submit applications. It was the practice, however, to give all previous employees priority and rehire them if their past work had been satisfactory.

In the spring of 1963, Melrose reopened its plant but refused to re-employ one, Celesta Thielen, who had worked for Melrose during the past two seasons. It was this refusal that gave rise to the action initiated by the Board.

Celesta Thielen went to work for Melrose in September 1961 and worked until the season ended in June 1962. The plant reopened in August 1962 and Miss Thielen was rehired for that season. The plant ended this season in December 1962 and remained closed until June 1963. In the spring of 1963 Melrose, as usual, advertised its contemplated opening. Miss Thielen submitted her application, but when the plant opened in June she was not accepted for employment.

While employed by Melrose, Miss Thielen worked as a neck slitter in the eviscerating room. From the testimony of her superiors there can be little doubt but that she was a capable employee, that she "was really good * * * handling the knife." The facts are clear, however, and Miss Thielen herself admitted that she engaged in some "horseplay" while on duty by singing and throwing turkey parts at fellow employees. Although there is some conflict, it appears that Miss Thielen's supervisors were not generally aware of this "horseplay" at the time her application for re-employment was rejected. More important, however, this "horseplay" never entered the discussion of whether or not she should be rehired for the 1963 season.

The record clearly reflects that fellow employees from other departments had a tendency to gather in the corridor near Miss Thielen's work station. Her employers were fully aware of this situation and apparently had issued several warnings to the persons who gathered in this area but did not reprimand Miss Thielen. Moreover, there is nothing in the record to indicate that Miss Thielen encouraged or was responsible in any way for this congregation.

Melrose, the record indicates, under direction of its insurance carrier, had initiated a vigorous safety program. It should be noted, however, that Miss Thielen's safety record had been very good. During her two seasons with Melrose she had received only one minor cut on her hand. It appears that other employees involved in more serious accidents were rehired.

There is disagreement as to whether or not Miss Thielen was the only former Melrose employee who was not rehired for the 1963 season. Neither party saw fit to clarify the issue by introducing the company employment records. The trial examiner found that she was the only person not rehired for the 1963 season. Although the evidence on this point is, at best, incomplete, we cannot hold that this conclusion was erroneous. It was the Board's contention that Miss Thielen was the only person not rehired for the season, and they elicited some evidence from a Melrose supervisor that this position was correct. Melrose, on the other hand, had easy access to the company records that could have refuted this contention and cleared any ambiguity. They chose, however, not to introduce these records. The Court recognizes that it is incumbent upon the Board to carry the burden of proof to show discrimination. However, when, as here, an ambiguous situation is presented which may be resolved by evidence in possession of the opposing party, the burden of going forward with the evidence on this issue shifts to that party. Failure of Melrose to uphold this burden of going forward with the evidence gives credence to the trial examiner's finding.

Although not always, it appears that it was the general practice for Melrose to warn employees who were guilty of rule infractions before they were discharged. On some occasions miscreant employees were placed on probation. At any rate, it was the general policy of Melrose to try to "straighten out" employees rather than discharge them. Apparently, numerous employees who were guilty of rule infractions were retained and rehired at the beginning of the season.

A few days after the plant reopened in June 1963, Miss Thielen visited the plant office in an attempt to ascertain the reason for not being rehired. The Plant Superintendent talked to Miss Thielen but refused to offer any explanation.

At the hearing before the trial examiner the record discloses that Plant Manager White, who was primarily responsible for the decision not to rehire Thielen admitted that he had stated "her attitude wasn't with our ideas." He, as well as other company representatives, testified that the reason Miss Thielen's application was turned down was because the commotions caused by the gatherings near her work station created a safety hazard. They admitted, though, that she had never been warned or reprimanded.

From this evidence the trial examiner concluded that Miss Thielen was not rehired not because of her "horseplay" or because of the congregation of the off-duty workers.

While working for Melrose, Miss Thielen became very active in union activities. In November prior to the plant closing in December 1962, Miss Thielen was contacted by a union organizer, and she agreed to form an employee committee. During her lunch hours and before and after work Miss Thielen spoke to her fellow employees about the union and succeeded in forming such a committee. The record indicates that she attended at least five different organized meetings and personally arranged meeting facilities for three of them. At one of these meetings Miss Thielen was elected chairman of the local organization committee.

On one occasion Miss Thielen was in the presence of a number of union representatives when her foreman and another Melrose supervisor drove by the group in an automobile. On another occasion Miss Thielen was present at an "open forum type" meeting in which Melrose's representatives presented its case against unionization. While at this meeting and while standing only a few feet from Plant Manager White and the Company President Mr. Olson, Miss Thielen was introduced to the director of the union.

Finally there is testimony from Plant Manager White wherein he admitted that he had knowledge that Miss Thielen was connected with the union.

The trial examiner concluded that Melrose was well aware that Miss Thielen was a leader of the union's organization drive. The trial examiner found that Melrose's activities affected commerce as defined in § 2(6) and (7) of the National Labor Relations Act, 29 U.S.C. § 152(6) and (7), (which finding is not challenged in this proceeding). Finally, when coupled with the evidence heretofore related, the trial examiner concluded that Miss Thielen was not rehired in the spring of 1963 because of her union activities during the winter months of 1962-63, and that this was an unfair labor practice within the meaning of § 8(a) (1) and (3) of the National Labor Relations Act, 29 U.S.C. § 158(a) (1) and (3).

The trial examiner's recommended order contained a broad provision requiring Melrose to cease and desist from discriminating against any employee or applicant because of their union activity. The proposed order also required a reinstatement of Miss Thielen without prejudice to her position and a payment to make her whole for the loss of earnings caused by the unlawful discrimination.

The findings of the trial examiner were affirmed by the Board and the above proposed order was adopted April 21, 1964.

Thereafter, a "back pay hearing" was conducted pursuant to 29 C.F.R. 102.52. The Board then issued a second and supplemental order dated April 13, 1965, requiring Melrose to pay $1,961.11 as back pay. This sum was arrived at by deducting from gross pay for the period of June 17, 1963 to May 30, 1964 interim earnings of $300 and that portion of back pay that accrued during a period of disability. The Board refused to deduct interim income earned at a local tavern due to the fact that Miss Thielen had worked there part time even while working for Melrose, and that her earnings there had not increased during this period of discrimination. In addition the Board refused to deduct as wages the value of the room and board furnished by her parents. Finally, the Board refused to deduct an...