Sterling Aluminum Company v. NLRB

• Citation: 391 F.2d 713
• Decision Date: 29 February 1968
• Docket Number: No. 18829.,18829.
• Parties: STERLING ALUMINUM COMPANY, a Division of Federal-Mogul, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

391 F.2d 713 (1968)

STERLING ALUMINUM COMPANY, a Division of Federal-Mogul, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 18829.

United States Court of Appeals Eighth Circuit.

February 29, 1968.

COPYRIGHT MATERIAL OMITTED

James S. Newberry, of O'Herin & Newberry, Malden, Mo., for petitioner.

Paul J. Spielberg, Atty., N.L.R.B., Washington, D. C., for respondent; Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and John E. Nevins, Atty., N.L.R.B., Washington, D. C., on the brief.

Before BLACKMUN, GIBSON and HEANEY, Circuit Judges.

HEANEY, Circuit Judge.

The Sterling Aluminum Company, a division of Federal-Mogul, petitions this Court to review an order of the National Labor Relations Board. Reported at 163 NLRB 40, March 9, 1967, 64 LRRM 1354. The Board requests that its order be enforced.¹ This Court has jurisdiction under Section 10(e) and (f) of the National Labor Relations Act. 29 U.S.C. § 160(e), (f) (1964 ed.).

The Company, a manufacturer of automobile pistons, transferred its operations from St. Charles to Malden, Missouri, and began production in March, 1963. The International Molders and Allied Workers Union of North America, AFL-CIO, who represented the employees at St. Charles, followed the Company to Malden, and instituted an organizational campaign July 12, 1964. It made rapid progress and filed a representation petition with the Board on July 27th (Case No. 14-RC-4904). The Company conducted a vigorous campaign against Union representation, which resulted in the Union losing the N.L.R.B. supervised election on September 17th. The Union filed objections to the election and unfair labor practice charges.

The General Counsel, after an investigation of the charges, issued a complaint alleging that the employer had violated Section 8(a) (1) and (3) of the Act. 29 U.S.C. § 158(a) (1), (3) (1964 ed.).

The Trial Examiner concluded that the Company violated Section 8(a) (1) of the Act by threatening reprisals, promising and granting benefits, coercively interrogating employees, subjecting Union supporters to ridicule, engaging in and creating the impression of surveillance, inducing and encouraging employees to report on the Union activities of fellow employees, threatening to bargain in bad faith, creating grievance committees to discourage Union membership, and other related acts of unlawful interference. He also concluded that the Company discharged eleven Union adherents prior to the election to rid itself of the most active unionists and to thin the ranks of Union supporters and, thereafter, in anticipation of another election, discharged seventeen additional employees and refused to rehire one more. He held the twenty-eight discharges and the one refusal to rehire violated Section 8(a) (3) and (1) of the Act.² The Board, with minor modifications not material here, adopted the recommendations of the Trial Examiner.

The Company does not contest the Board's findings and conclusions that the Company violated Section 8(a) (1) of the Act. It asks, however, that its findings and conclusions respecting the discharges and the refusal to rehire be reversed. It contends that the General Counsel failed to sustain its burden of proving that the twenty-nine employees were discharged because of their Union activities, or that it was motivated to discharge them by a desire to interfere with their rights under the Act. It urges that there was a lack of substantial evidence to establish that: it had knowledge of the fact that the discharged employees were members of the Union; it had no legitimate business reasons for discharging the employees; the reasons advanced by it for the discharges were mere pretenses.

The standards to be applied in reviewing decisions of the N.L.R.B. are well recognized. E.g., Universal Camera Corp. v. National L. R. Bd., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951); N. L. R. B. v. Superior Sales, Inc., 366 F.2d 229 (8th Cir. 1966); N. L. R. B. v. Coachman's Inn, 357 F.2d 134 (8th Cir. 1966); N. L. R. B. v. Morrison Cafeteria Co. of Little Rock, Inc., 311 F.2d 534 (8th Cir. 1963). We apply them here.

In determining whether there is substantial evidence on the whole record to support the findings of the Board that the Company discriminated against twenty-nine employees by discharge or refusal to rehire, it will be convenient to divide them into five groups. Group 1(A) consists of five employees laid off on July 10, 1964, and discharged on August 19, and 1(B) consists of five employees laid off on July 31, 1964, and also discharged on August 19. Group 2 consists of four employees discharged on December 4, 1964, and a fifth employee whose layoff resulted from the discharge of the four. Group 3 consists of four employees laid off on February 3, 1965, and subsequently discharged. Group 4 consists of four employees discharged in February of 1965. Group 5 consists of the remaining employees.

GROUP 1

On July 10, 1964, two days before the Union initiated its organizational campaign, the Company laid off thirty-six employees for economic reasons. On July 31st, it laid off an additional ten employees. A few days later, the Company began the recall of the laid off employees and, within a short time, had recalled all but fourteen of the forty-six. The fourteen were notified by the Company, on August 19, 1964, that their work was unsatisfactory, and that their temporary layoff should be considered permanent. Ten of the fourteen had signed Union cards. It is this ten with which we are concerned.

We turn first to a consideration of Bob Batchelor, Acy Lee Green, Teddy Guffey, Larry Walton and David Midkiff. They were among the thirty-six employees laid off on July 10th, and discharged on August 19th. We have carefully examined the record relating to them and find that there is substantial evidence to support the findings of the Board that the discharge of Batchelor, Green and Midkiff was discriminatory and in violation of Section 8(a) (3). The essential "ingredients" of such findings are a knowledge on the part of the employer that the employee is engaged in Union activity and the discharge of the employee because of this activity. N. L. R. B. v. Melrose Processing Co., 351 F.2d 693, 697 (8th Cir. 1965).

There was direct testimony to support a finding that the Company knew that Batchelor was a Union adherent and sufficient circumstantial evidence to justify an inference that the Company had similar knowledge as to Green and Midkiff. The Company carried on a widespread systematic interrogation to determine where each employee stood on the Union question. Its supervisors admitted that they had a good idea as to who the Union adherents were (although, in a few instances, their ideas were wrong). Malden is a small community and many of its leaders were involved in the campaign. N. L. R. B. v. Melrose Processing Co., supra; A. P. Green Fire Brick Company v. N. L. R. B., 326 F.2d 910 (8th Cir. 1964). The Union made no secret of its organizational campaign. It solicited authorization cards in and around the plant building and held its meetings in the meeting room of the Catholic Church, where persons attending could be readily observed coming and going. Employees favorable to the Company indicated where their sympathies lay.

We believe that the record, as a whole, supports the Board's conclusion that Batchelor, Green and Midkiff were discharged for Union activity rather than for a cause or causes unrelated to such activity. While there is conflict in the testimony, it is not for us to displace the Board's choice between two fairly conflicting views of the evidence, even though we might have made a different choice of inferences had the matter been before us. N. L. R. B. v. Coachman's Inn, supra; N. L. R. B. v. Morrison Cafeteria Co. of Little Rock, Inc., supra.

Batchelor was allegedly discharged for absenteeism and poor work but had not been reprimanded for either prior to his layoff.

Green was allegedly discharged for "running bad pistons" but had been transferred out of the department in which the pistons were made prior to this layoff. His services in the new department were satisfactory.

Midkiff was allegedly discharged for improper inspection of pistons but had not been warned that his work was unsatisfactory despite a custom to give each employee a written notice to this effect.

We do not believe, however, that the record supports the Board's findings that the discharges of Guffey and Walton were discriminatory. The Board's determination that the Company knew they were Union members and discharged them for that reason was based entirely on circumstantial evidence. While this is permissible and while the Board is free to draw reasonable inferences from the evidence, N. L. R. B. v. Melrose Processing Co., supra; Kitty Clover, Inc. v. National Labor Relations Board, 208 F.2d 212 (8th Cir. 1953), such inferences must be adequately supported in the record. Otherwise, as Judge Sanborn indicated in Cupples Co. Manufacturers v. National Labor R. Board, 106 F.2d 100, 117 (8th Cir. 1939), the findings of the Board may represent nothing more than accurate guesses.

It is clear that the Company was hostile to the Union, and that it was seriously interfering with the rights of employees at or about the time of the discharges. It was also reasonable for the Board to infer that the Company knew that Guffey and Walton were Union members. We recognize that each of these facts give some support to the inference that the discharges were discriminatory, N. L. R. B. v. Superior Sales, Inc., supra; N. L. R. B. v. Melrose Processing Co., supra; N. L. R. B. v. Council Manufacturing Corporation, 334 F.2d 161 (8th Cir. 1964); N. L. R. B. v. Arkansas-Louisiana Gas Co., 333 F.2d 790 (8th Cir. 1964), but they do not, in our view, support it sufficiently: (1) The July 10th layoff was admittedly nondiscriminatory in nature. (2)...