Statler Industries, Inc. (Statler Tissue Co.) v. N.L.R.B.
| Decision Date | 12 March 1981 |
| Docket Number | No. 80-1455,80-1455 |
| Citation | 644 F.2d 902 |
| Parties | 106 L.R.R.M. (BNA) 2799, 90 Lab.Cas. P 12,642 STATLER INDUSTRIES, INC. (Statler Tissue Company), Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — First Circuit |
David G. Hanrahan, Boston, Mass., with whom Paul J. Kingston, Kingston & Garrett Richard Michael Fischl, Atty., Washington, D. C., with whom William A. Lubbers, General Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, and Elliott Moore, Deputy Associate Gen. Counsel, Washington, D. C., were on brief, for respondent.
and Gilman, McLaughlin & Hanrahan, Boston, Mass., were on brief, for petitioner.
Before COFFIN, Chief Judge, BOWNES and BREYER, Circuit Judges.
This petition by Statler Industries, Inc. (Statler Tissue Company) to review a National Labor Relations Board order 1 and the Board's cross-application for enforcement raise issues concerning the supportability of findings of violations of Sections 8(a)(1) and (3) of the National Labor Relations Act and the appropriateness of remedy.
The company manufactures household paper products, having its central office and headquarters in Medford, Massachusetts, and a mill in Augusta, Maine, employing some 500 people, of whom approximately a dozen were office employees. The present litigation arises out of efforts by the United Paperworkers International Union, AFL-CIO to unionize the office workers 2, beginning in August 1976 and extending to May 1977.
Based on incidents occurring in December of 1976 and in May of 1977, the Board found that the company, through the coercive conduct of six of its supervisors, had violated § 8(a)(1) in no fewer than ten ways. In arriving at this result the Administrative Law Judge exercised considerable selectivity, dismissing in their entirety charges of coercive conduct on the part of three supervisors and dismissing particular charges attributed to four others.
The company's defenses are not only thin but leave many a salient undefended. Its first effort is to challenge the supervisory status of four of the persons charged with exercising coercion. The status of three supervisors (LaPointe, Levesque, and Lord) is nowhere put in issue. Of those selected for criticism, one (Poulin) is one of the supervisors the charges against whom the ALJ dismissed. Of the other three, the company recognizes that as to one, Greenlaw, there was specific testimony that he had the power to hire; the company's only argument is that the ALJ should have believed other witnesses. As to the other two, Jones and Bernier, there is ample evidence of supervisory, training, and disciplinary responsibilities, including that of making generally relied upon recommendations for hiring.
The Board found that one or more of the six supervisors had engaged in the following conduct: threatening employees with reprisals if they associated with union activists; creating the impression of surveillance; threatening to discharge employees who signed union cards; encouraging an employee to withdraw her union authorization card; interrogating employees; promising benefits to employees; changing working hours; instituting a new non-mingling rule; creating other less favorable working conditions; and prohibiting the discussion of salaries.
Of these ten violations, the company has something to say about only two. It criticizes the finding that supervisor Greenlaw created the impression of surveillance and urges that Greenlaw's neutral characterization of his motives be accepted, rather than the credited testimony of an employee. Even more vulnerable is the criticism of the finding that the company engaged in the impermissible interrogation of employees.
Although the Board found that four supervisors had engaged in this activity (Bernier, LaPointe, Levesque, and Lord), the company directs its criticisms against findings relating to only two (Lord and LaPointe). Once again, its only contribution is that the supervisor should have been credited, not the subordinate. We are left with the observation that we cannot fathom why the company deemed it worth the investment to erect this kind of perforated dike against the § 8(a)(1) charges.
The Board also found the company in violation of § 8(a)(3) of the Act in that, first, it wrongfully discharged three employees, Harwood, Hanley, and Hill, and second, it wrongfully discharged nine employees by relocating certain office jobs from Augusta, Maine, to Medford, Massachusetts. Both issues are somewhat closer than those we have already discussed.
Our analysis is complicated by the fact that both sets of discharges involve a confrontation of an impermissible motive to get rid of reputed union activists, or to frustrate the union organizing campaign by relocating the office functions, and a permissible motive to discharge for reasons of reorganization and poor performance, or to relocate pursuant to a longstanding plan. We have set forth our approach to such dual motive cases in NLRB v. Eastern Smelting & Refining Corp., 598 F.2d 666 (1st Cir. 1979), requiring the Board to demonstrate a " 'significant' improper motivation" for a discharge and then requiring "the employer to prove that it had a good reason, sufficient in itself, to produce the discharge." Id. at 671. In so deciding we accepted as relevant guides the non-labor cases of Mt. Healthy City Board of Educ. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977) and Givhan v. Western Line Consolidated School District, 439 U.S. 410, 99 S.Ct. 693, 58 L.Ed.2d 619 (1979).
In 1980 the Board similarly accepted Mt. Healthy as setting the appropriate analytical framework for testing causality in § 8(a)(3) cases in Wright Line, A Division of Wright Line, Inc., 251 N.L.R.B. No. 150. Its statement of the test is as follows:
Lab.L.Rep. (CCH) P 17,356, at 32,469 (1980).
We see no difference in formulation between the tests in Eastern Smelting and Wright Line. 3 It is of course possible that the approaches to each step and the manner in which motives are assessed may dramatically change the coloration of the test, but at present we see Wright Line as a conscientious effort to reduce the confusion and discord in dealing with mixed motive cases. 4
Although the Board and we now seem to be on the same analytical track in what has been a vexing area, we deal with a record predating our concord. The ALJ decided this case in March of 1979; Eastern Smelting was issued in May; the Board affirmed the ALJ in August of 1979; and it was not until a year later that Wright Line was decided. Under these circumstances, having in mind that the now prescribed burden-shifting approach was not applied, but also that a huge investment of time has already been made, we shall view the evidence as to both § 8(a)(3) issues, the discharges of the three men and the relocation of the office jobs, and ask two questions: would a fair reading permit any other conclusion than that a prima facie case of anti-union animus was proven?; and, does the record permit a finding that the company had proven by a preponderance of evidence that the three men would have been discharged and the office jobs relocated when they were, even if there had been no union activity? Our test, thus, is not the normal deferential inquiry whether the record substantially supports the Board's finding, but whether "the record in this case does not admit of the argument that petitioner would have been terminated regardless of her (protected activity)." Givhan, supra, 439 U.S. at 417 n. 5, 99 S.Ct. at 697 n. 5.
We begin with the March 31, 1977 discharges of Harwood, Hanley, and Hill. Our first inquiry is to see whether there is sufficient evidence of significant improper motivation, not based on suspicion or mere anti-union predilection, but based on direct evidence, the circumstances of discharge, or other acts.
While the circumstances of the discharge, involving sixteen others being discharged for various reasons, are perhaps ambiguous, there was direct evidence from former supervisor LaPointe that Harwood, known to have been active for the union since August of 1976, had been singled out as the principal activist. Other employees had much earlier been warned against associating with him. Incredulous that one man could cause so much activity, company managers sought more names of activists, unsuccessfully at a second meeting, finally succeeding at a third meeting in early February in learning that Hanley and Hill were also involved. LaPointe testified that the three were then listed for termination because of their own union activity. In addition to this direct evidence of animus, there were the numerous threats, interrogations, acts of surveillance, etc. that we have discussed earlier, some of them specifically relating to Harwood and directed to Hanley and Hill. We do not see how, despite Statler's prior generally amicable relationship with the union as to production and laboratory employees, the Board could have come to any other conclusion on this record than that the General Counsel had made a prima facie case of discharge for improper motive.
As to each employee discharged, there are different reasons proffered by the company and different countering observations. Harwood, assistant plant accountant, was allegedly fired because he was not qualified for promotion to take over his supervisor's job, and had, during the previous summer,...
To continue reading
Request your trial