Northern Wire Corp. v. N.L.R.B.

• Decision Date: 26 October 1989
• Docket Number: 88-3461,Nos. 88-3278,s. 88-3278
• Citation: 887 F.2d 1313
• Parties: 132 L.R.R.M. (BNA) 2818, 113 Lab.Cas. P 11,635 NORTHERN WIRE CORPORATION, Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1313

887 F.2d 1313

132 L.R.R.M. (BNA) 2818, 113 Lab.Cas. P 11,635

NORTHERN WIRE CORPORATION, Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner.

Nos. 88-3278, 88-3461.

United States Court of Appeals Seventh Circuit.

Argued June 6, 1989.

Decided Oct. 26, 1989.

Jack D. Walker, Susan C. Sheeran, Melli, Walker, Pease & Ruhly, Madison, Wis., for Northern Wire Corporation.

Aileen A. Armstrong, Collis Suzanne Stocking, Robert F. Mace, N.L.R.B. Appellate Court, Enforcement Litigation, Washington, D.C., Joseph A. Szabo, N.L.R.B., Milwaukee, Wis., for N.L.R.B.

Before CUDAHY, MANION and KANNE, Circuit Judges.

CUDAHY, Circuit Judge.

The petitioner, Northern Wire Corporation ("Northern"), seeks review of an order of the National Labor Relations Board (the "NLRB" or "Board") finding Northern in violation of sections 8(a)(1) and (3) of the National Labor Relations Act (the "NLRA" or "Act"), 29 U.S.C. Secs. 158(a)(1), (3). The respondent, the NLRB, requests enforcement of its order. Northern challenges the findings of the administrative law judge (the "ALJ"), adopted by the Board, that the company violated section 8(a)(1) of the NLRA by threatening employees with reprisals for engaging in union activity, and section 8(a)(3) of the Act by discriminatorily issuing warnings to and suspending employees in order to discourage union activity. In addition, Northern disputes the Board's determination that Northern employees engaged in an unfair labor practice strike and thus were entitled to reinstatement and backpay. The order that the Board seeks to enforce requires Northern, inter alia, to cease and desist from engaging in further violations of the NLRA and to reinstate the employees who had participated in the strike with backpay. For the reasons discussed below, we conclude that the ALJ's findings are supported by substantial evidence and, accordingly, we grant the petition for enforcement of the Board's order.

I.

A. Background

Northern is a Wisconsin manufacturer of wire forms. In April 1986, the Amalgamated Clothing Workers Union, AFL-CIO (the "Union") instituted an organizing campaign at Northern. Despite management's apparent opposition to union representation of Northern employees, the Union ultimately won a representation election in May 1986 and was certified in June 1986. While the ensuing bargaining efforts by Northern and the Union proved unavailing, hostility between management and the union employees escalated markedly. Ultimately, on October 6, 1986, the employees voted to engage in a strike, which commenced on October 8. The parties continued to bargain during the course of the strike until it ended on December 4, 1986. On that day, a Union official furnished a written statement to Northern representing the striking employees' unconditional offer to return to work. Northern, however, which had hired replacements, refused to reinstate the strikers immediately.

Meanwhile, the Union had filed several separate charges of unfair labor practices against Northern beginning October 14, 1986, six days after the strike had commenced, through January 7, 1987, a month after the cessation of the strike. On February 27, 1987, the General Counsel issued a complaint against Northern, which consolidated the unfair labor practice charges and included additional claims not contained in the formal charges previously filed by the Union.

B. Findings of ALJ

On March 2, 1988, after reviewing extensive conflicting testimony presented at an administrative hearing, the ALJ found that Northern had committed multiple violations of sections 8(a)(1) and (3) of the NLRA. The ALJ made comprehensive findings of the facts upon which the violations were based.

With respect to the section 8(a)(1) violations, the ALJ cited certain pre-election and post-election misconduct of Northern officials. In that connection, prior to the union election, Northern supervisor Mattos attended a meeting of pro-union employees at a local establishment and remarked that if the employees were unsuccessful in procuring the Union's election, all the "troublemakers" would be fired, and that if the Union was elected, Northern's owner would "lock the place up." App. of Northern at 8. Similar threats of plant closure were made to an employee by managers Arseneau and Frei. Subsequent to the election, supervisor Mattos advised a probationary employee, Zerbe, that if "the office got wind" of Zerbe's attendance at a union meeting, he could be "terminated." Id. at 12. Supervisor Hoffman also admonished an employee in this regard, warning, "I hope that you won't get involved [in union activity] because of what has been happening to Dale Fass [a staunch union activist who had received warnings and harassment from Northern]." Id. at 13. During June and July of 1986, supervisors Hoffman and Eberhardy told employee Fass that Northern was tired of the union activity and that it was going to "crack down" on employees and "tighten up" its discipline policies. Id. at 20-21. In late September, shortly before the impending strike, manager Arseneau threatened an employee that if the employees voted to strike, they might lose their jobs and Northern might "close the doors." Id. at 14.

Based upon testimony adduced at the administrative hearing, the ALJ also found that Northern had violated section 8(a)(3) of the NLRA in several respects. For instance, on June 19, 1986, after Fass had been warned that Northern intended to "crack down" on employee discipline, Fass arrived late to work. Consequently, he received a written warning advising him that "a subsequent violation will result in time off and or termination." Id. at 22. Thereafter, on July 23, Fass called Northern at 11:00 a.m. to inform his supervisor that he would be absent from work that day for personal reasons. The following day, Fass received a written warning and three-day suspension without pay for violating a company policy, which apparently was previously unenforced and unknown to employees, requiring that an employee call before 9:00 a.m. to inform Northern that he would be absent. Fass was again told that a subsequent violation would result in termination. On August 6, supervisor Wolff entered the washroom and issued a verbal warning to two members of the union organizing committee, Thomaschefsky and Schotz, for discussing union matters and "standing in the washroom on company time." Id. at 34. Another employee, who was present in the washroom but not a union activist, received no warning. Similarly, on September 2, supervisor Hoffman issued a written warning to employees Fass and Belant for talking, although the two were apparently discussing work-related matters. Id. at 24-26. Northern persisted in its disciplinary "crack down," and on September 29, 1986, a week before the strike, supervisor Eberhardy issued a tardiness warning to employee Coffey, a vocal union supporter, for punching in six minutes late.

Upon consideration of these factual findings, the ALJ found that the threats of reprisal, including references to discharge, rigorous discipline and plant closure, amounted to violations of section 8(a)(1). In addition, the ALJ found that the disciplinary actions taken by Northern officials were discriminatorily motivated in violation of section 8(a)(3) and would not have occurred absent union-related concerns. The ALJ dismissed several additional alleged violations, finding that they were predicated on untrustworthy testimony. Finally, the ALJ concluded that, although the strike was aimed in part to obtain a collective bargaining agreement, the strike was also caused in part by the above unfair labor practices of Northern. Accordingly, the ALJ ordered Northern to offer immediate and full reinstatement with backpay to those employees who had participated in the strike and who had unconditionally applied for reinstatement. The ALJ also ordered Northern, inter alia, to cease and desist from engaging in the cited unfair labor practices and to expunge from its records any notations concerning the warnings and discipline found to be unlawfully issued. The Board affirmed the ALJ's decision with minor modifications.

II.

A. Unfair Labor Practices

Of course, it is well-established that this court is deferential in reviewing an NLRB decision.

Our task is to determine if the judgment of the NLRB is supported by substantial evidence on the record as [a] whole. We must defer to the expertise of the Board and will not displace its reasonable inferences even where a plenary review of the record might yield a different result. Moreover, we "must accept the Board's credibility findings unless the party challenging [those determinations] establishes [that] 'exceptional circumstances' " justify a different result.

NLRB v. Jakel Motors, Inc., 875 F.2d 644, 646 (7th Cir.1989) (quoting NLRB v. Dorothy Shamrock Coal Co., 833 F.2d 1263, 1265 (7th Cir.1987)). In determining whether substantial evidence supports the Board's decision, we must be satisfied that, based upon our review of the record, the result is " 'justified by a fair estimate of the worth of the testimony of witnesses or [the Board's] informed judgment on matters within its special competence....' " NLRB v. Del Rey Tortilleria, Inc., 787 F.2d 1118, 1121-23 (7th Cir.1986) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 489-90, 71 S.Ct. 456, 465-66, 95 L.Ed. 456 (1951)).

Section 8(a)(1) proscribes employer conduct that interferes with, restrains or coerces employees in the exercise of their rights to form, join or assist labor organizations. See 29 U.S.C. Sec. 158(a)(1). Threats of discharge, discipline, plant closure or other reprisals against employees for engaging in union activity are unlawful and violative of section 8(a)(1) of the Act because these acts reasonably tend to coerce employees in the exercise of their rights, regardless of whether they do, in fact, coerce. See NLRB v. Berger Transfer & Storage...