Swearingen Aviation Corp. v. N.L.R.B.
| Decision Date | 27 February 1978 |
| Docket Number | No. 77-1095,77-1095 |
| Citation | 568 F.2d 458 |
| Parties | 97 L.R.R.M. (BNA) 2972, 83 Lab.Cas. P 10,406 SWEARINGEN AVIATION CORPORATION, Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Frank S. Manitzas, San Antonio, Tex., for petitioner, cross-respondent.
Elliott Moore, Deputy Assoc. Gen. Counsel, John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Carl L. Taylor, Assoc. Gen. Counsel, Allison W. Brown, Jr., Deputy Asst. Gen. Counsel, N. L. R. B., Washington, D. C., Sandra S. Elligers, Atty., N. L. R. B., Washington, D. C., for respondent, cross-petitioner.
Petition for Review and Cross Application for Enforcement of an Order of the National Labor Relations Board.
Before BROWN, Chief Judge, GEWIN and TJOFLAT, Circuit Judges.
Swearingen Aviation Corporation (the Company) petitions to set aside a decision and order of the National Labor Relations Board (the Board), and the Board cross-petitions for enforcement. Swearingen was found by the Administrative Law Judge (ALJ) to have violated Section 8(a)(1) of the National Labor Relations Act (the Act) 1 by threatening employees with discharge if they attempted to strike and by discharging certain employees who participated in a walkout at the Company's San Antonio plant. These findings were adopted by the Board, which additionally found that the Company, subsequent to the walkout, refused to reinstate the strikers upon their unconditional offer to return to work, another Section 8(a)(1) violation. 2
We accept the resolutions of the ALJ relating to credibility and issues of fact, as did the Board, and find that the Company violated Section 8(a)(1) by threatening employees with discharge and by discharging certain employees. To that extent, we are in agreement with the Board. However, we interpret differently the significance and implications of the striking employees' offer to return to work. We agree with the ALJ that the offer was conditional. Accordingly, we decline to enforce that part of the Board's order finding an unconditional offer to return to work, further finding a Section 8(a)(1) violation in the company's refusal to reinstate the strikers, and awarding back pay for the period from September 3, 1975, to the date of reinstatement. That part of the Board's decision finding an unconditional request for reinstatement by Perez, Villarreal and Sierra on August 25, 1975, and the remedy relating thereto, we leave undisturbed.
Swearingen manufactures commercial aircraft in San Antonio, Texas. Union elections were conducted among the production and maintenance employees of the plant in 1973, 1974, and 1975. In none of the elections did a majority vote for union representation.
On August 15, 1975, 3 Rojelio Ordaz and four other employees were chosen by their coworkers to make known certain grievances to the Company management. Ordaz learned that the Company's latest appeals procedure did not provide for employee grievance representatives and made arrangements, under the revised appeals procedure, to meet with Don Richards, the department head. On August 25 Ordaz met with Richards and presented the workers' grievances. Later that morning Ordaz and Richards met with Thomas J. Haines, the Company's director of employee relations. Although Haines refused to recognize Ordaz as the spokesman for anyone other than himself, the credited testimony of Ordaz established that he continued to speak for the employees and Haines listened to him. Ordaz pointed out the need for a wage increase and safer working conditions. The meeting ended at approximately 10:45 a.m.
During the lunch break, fellow workers met with Ordaz to find out what had happened at the meeting. Ordaz informed them that the wage problem had not been resolved and that he "had gotten the runaround." After further discussion, the employees decided to walk out. At the end of the lunch break and shortly thereafter, a total of 24 employees locked their tool boxes, walked out, and assembled in a nearby roadside park.
Haines received instructions from his superior to replace the strikers, but not to discharge them. Haines was also told to let word "leak out" into the shop that the employees who had walked off the job had been discharged, in order to discourage further walkouts. Testimony of non-striking employees shows that several foremen effectively carried out this directive. Three employees who joined the strike returned to the plant that afternoon and had separate interviews with Haines. According to their credited testimony each was informed that he had been discharged.
Ordaz telephoned Haines twice on August 26th. During the first conversation, Haines informed him that the people who walked out had been terminated. Ordaz telephoned Haines a few minutes later, with the intention of making an offer for the employees to return to work. Ordaz told Haines he was speaking on behalf of the people who walked out. Haines responded that he had nothing to indicate Ordaz was their spokesman and that he would not recognize him as such, and hung up the telephone.
Around mid-afternoon on August 26 a group of the strikers met at the roadside park. Ordaz, as spokesman, was interviewed by a local television reporter. Ordaz stated they were protesting wages and grievance procedures. Ordaz told the reporter he had called Haines earlier to offer the unconditional return of the strikers to work, but Haines had hung up on him. The reporter related Ordaz' statement to Haines in a subsequent telephone interview. Haines responded that no such offer had been made. The story was broadcast twice that evening, and Ordaz was identified as the spokesman for the striking employees.
On September 2 Ordaz and Haines agreed to meet to discuss reinstatement of the strikers. Haines instructed Ordaz to bring something to indicate he was spokesman for the group. At the meeting, Ordaz showed Haines a petition signed by all but one of the striking workers. Haines indicated that he would reinstate everyone except Buentello and Salazar two men whose positions as group leaders qualified them as supervisory personnel in the plant, and who had also been terminated by the Company. 4 Ordaz returned to the park where most of the strikers were gathered, to discuss Haines' offer with them. The striking employees, as well as Buentello and Salazar, agreed that those two would not be included in the offer to return to work.
Ordaz and Haines met for the last time on September 3. Ordaz presented Haines a document to the following effect:
To Reinstate the Strikers unconditionally, immediately as I proposed 8/27/75. Rojelio S. Ordaz.
Haines refused to accept the document. Ordaz told him the August 27 date should be August 26, the day on which Ordaz claimed he tried to make an unconditional offer on the telephone and Haines hung up on him, and when the television reporter had promised to tell Haines about the unconditional offer. Haines responded that he had hung up the telephone because he thought the conversation was over; he could not go by what the reporter said because the reporter had been incorrect as to other facts; and the only offer he had received had been made on September 2, the previous day, and was conditioned on reinstatement of the two group leaders. Haines offered to accept the document if Ordaz would change the date to September 3. After some deliberation Ordaz decided to make the document, as written, his final offer. Haines refused to accept it, for fear he might acknowledge that an unconditional offer had been made on August 26 or 27, thereby possibly subjecting the Company to liability for back pay from that date. Ordaz left and no more communication between him and Haines occurred.
It appears from the record that all the strikers except Buentello and Salazar were reinstated within one week of a September 18 communication from the Company.
The Board's finding that the Company violated Section 8(a)(1) by threatening the employees with discharge if they attempted to strike is not challenged by the Company. That finding is supported by substantial evidence and the Board's order in that respect is enforced.
The Board further found that the Company discharged the striking employees in violation of Section 8(a)(1). The record evidence amply supports that finding. Joe Perez, Pete Villareal, and Joe Sierra returned to the plant shortly after the walkout. They spoke individually with Haines. Perez, a sheet metal assembler, offered unconditionally to return to work, admitting that perhaps his participation in the walkout was wrong. Nevertheless, Haines told him, there was no way he could help him, since the Company could not tolerate walkouts. Villareal next met with Haines and discussed a possible raise in salary. Haines told him he was terminated for walking off the job without permission. Joe Sierra, a sheet metal mechanic, asked Haines for his job back. Haines told Sierra he couldn't help him. Asked by Sierra if that meant he was fired, Haines responded affirmatively.
On August 26, striker Jesus Nieto returned to the plant. A foreman told him everyone who walked out was fired, and directed him to sign a paper stating he was dismissed for walking off the job. Later that day Haines told Ordaz, according to Ordaz' credited testimony, that "the people that walked out yesterday . . . have been terminated for walking off the job without their supervisors' permission." Ordaz related his conversation with Haines to Branson, the television reporter. Branson understood the employees to be discharged and reported the incident on his news broadcast. Although Haines' testimony regarding his conversations with Ordaz, Perez, Villareal, and Sierra contradicted their stories, the ALJ found Haines not to be a "particularly" credible witness and accepted the testimony of the employees.
The Company...
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