Torrington Co. v. N.L.R.B., 73-2452
| Citation | 506 F.2d 1042 |
| Decision Date | 18 November 1974 |
| Docket Number | No. 73-2452,73-2452 |
| Parties | 87 L.R.R.M. (BNA) 2843, 75 Lab.Cas. P 10,451 The TORRINGTON COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (4th Circuit) |
Fred W. Elarbee, Jr., Atlanta, Ga. (Robert L. Thompson and Elarbee & Clark, Atlanta, Ga., on brief), for petitioner.
Laura Ross Blumenfeld, Atty., National Labor Relations Board (Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Michael S. Winer, Atty., National Labor Relations Board, on brief), for respondent.
Before HAYNSWORTH, Chief Judge, and RUSSELL and WIDENER, Circuit judges.
This petition for review and cross-application for enforcement of a National Labor Relations Board (Board) order is brought pursuant to 10(e) and (f) of the National Labor Relations Act (Act), 29 U.S.C. 160(e) and (f). Torrington Company (Company) was found by the Board to have violated 8(a)(1) of the Act by its anti-union coercion of employees, and 8(a)(3) by unlawfully discharging employee Charles Crumley for union activity. We believe substantial evidence supports the finding of anti-union coercion but, because the uncontradicted evidence supports the Company's contention that Crumley's discharge was due to economic reasons, we decline to enforce that portion of the Board's order.
The record shows that employee Crumley had worked for the Company, which manufactured bearing products, on two different occasions between 1966 and 1971, for a total of over two years, and on both occasions had left his employment voluntarily. Crumley again applied for a job in mid-August, 1971 and was told by their Quality Control Manager (General Foreman as of October, 1971), Art Nord, who had been Crumley's supervisor on both previous occasions when he worked for the Company, that the Company was tentatively planning to lauch an experimental program to reduce the cost of scrap materials. Nord advised Crumley that, if he was interested in the new experimental program, Nord would let him know something in a few days. Shortly thereafter, Nord instructed plant Personnel Director Mobley Jeter to contact Crumley for rehire, which was done. Crumley reported to work about August 23 and was interviewed by Jeter, as was customary for newly-hired employees. Jeter told Crumley that the plant was non-union, that he had information that Crumley was involved in the 1969 union campaign, and that the union was not good for Union County or the plant, and they hoped Crumley would not be involved in the future. Jeter further testified that he normally reads a statement on unionism to newly-hired employees, but told Crumley that he did not think it necessary to read it in its entirety since Crumley had worked there before.
Crumley was assigned as a probationary employee to the inspection department, which was supervised by Nord. He and Stanley Moody, an employee of some years' standing who was transferred from another department to work with Crumley in the experiment to reduce scrap costs, were assigned as floor inspectors in the Acme Screw Machine Department (company Department No. 14). Crumley and Moody were to work the two night shifts in Department 14, which had not previously been manned with floor inspectors. Department 14 had consistently been one of the biggest problem areas in the company insofar as scrap expense was concerned.
Crumley became actively involved in the union campaign which was underway when he began work. On one occasion, shortly after he began work, Crumley was talking to another employee, Heatherly, about what happened during the previous union campaign in 1969. A long-time friend of both parties, Bryce Castle, who had just been promoted to assistant foreman on that same day, walked by the two as they were talking. Crumley remembered that Castle had been one of the more outspoken of the union adherents during the prior campaign and apparently sought to ask him what had happened to the union in the other campaign. Castle responded to Crumley's question by saying that his job would require him to report Crumley if he found that Crumley was trying to help the union. Crumley freely testified Castle told him: Castle's testimony was to the effect that his remarks were make jokingly, although both Crumley and Heatherly stated that the remarks were made in a 'matter of fact' fashion. In any event, Crumley testified that he did not think Castle would report his talking about the union, and neither Crumley nor Castle made any reference to Crumley's pro-union activities during the present or past campaigns. The Board found this conversation was not an unfair labor practice.
During the first few weeks after Crumley and Moody began their new jobs, the daily scrap tickets maintained by the Company indicated that not only was there no reduction in scrap from Department 14, but if the trend continued, the month of September would have been the high for the year of 1971 to date. Around September 10, Nord called Crumley into his office, where the two of them discussed the scrap report and what the Company was endeavoring to do to reduce the increasing trend of scrap material, '. . . the scrap material and the costs, the amount of costs from the scrap.' Crumley admitted having this interview with Nord and Nord's telling him that the reason he had been hired was to reduce scrap.
About a week after Nord's conversation with Crumley on September 16, Nord met with plant Superintendent Donald Klinger to discuss the rising trend in scrap, and they mutually agreed that the experiment of placing floor inspectors on the night shifts had not worked. Both men further agreed that the experimental program should be terminated immediately. Nord then advised Personnel Director Jeter that Crumley was to be taken off the job, and Moody, who was not a probationary employee, was asked to report to a different shift. Probationary employees are those who are in training for the particular job they are hired for, and have no recall rights. Thus, since Moody had job seniority in his old job, he was transferred back, while Crumley, the job he was hired for having been discontinued, was terminated. Both Klinger and Nord stated they knew nothing of Crumley's union activities at that time.
That afternoon, Nord called Crumley into Mobley Jeter's office, whereupon Jeter informed Crumley that his job 'had not panned out,' and that the experiment had proved wrong. Crumley was then terminated after Jeter's exit interview.
The Board relies heavily on an incident that occurred the day before Crumley's discharge, in finding union activity as a cause for the discharge. Crumley was engaged in conversation with another employee, while at work, when Crumley remarked that the particular problem they were discussing would be straightened out once the union comes in. Immediately following the remark, the two noticed that a supervisor named Nicholson (who was not one of Crumley's supervisors) was standing closeby. Nicholson apparently made no indication of having heard the conversation, and in fact denied having overheard it. He stated there was considerable noise from machinery in operation in the work area. Crumley testified that Nicholson was 'within reaching distance' when he first saw him.
Crumley also stated that Nicholson was in Personnel Director Jeter's office the next day when he was discharged and that Nicholson left when Crumley walked in. Nicholson denied being in Jeter's office that day.
Other evidence pertaining to the exit interview indicates that Jeter told Crumley of the company's unwritten policy of not rehiring someone again after that person has worked for the company on three different occasions. Since this was Crumley's third severance of employment, Jeter indicated on the exit interview form that he would not be for rehiring Crumley.
Crumley returned to the Company in January, 1972 because he heard that the job he was on had been reopened. He discussed the situation with Jeter, and told Jeter that he felt like he'd been fired because of his union activities. Jeter told him that he would arrange an interview with Mr. Cook, the plant manager, and the interview was set for two days later. Cook and Crumley had never met prior to this interview, and Cook was not plant manager and did not work at that plant at the time Crumley was terminated. Crumley repeated his feeling that he was fired for union activity, and Cook told him that he had been let go because of the elimination of his job, but he would thoroughly investigate the matter to see if there was any substance to that charge. Cook also told Crumley that the three times and out rule was not mandatory but was for him to decide in each case. Crumley was told by Cook that if he submitted an application for employment, Cook would see if he couldn't employ Crumley in some other department of the plant. Crumley inexplicably refused to fill out a new application, telling Cook that he had only filled in one application but had worked for the Company on three previous occasions. Crumley then stated that Cook told him he was doing himself 'a great injustice by not filling one out.' Crumley therefore was not considered for further employment. Cook testified that he did subsequently investigate Crumley's allegation of being fired for union activities, and found, as he told Crumley during the interview, that Crumley's dismissal occurred only because his experimental job did not work out.
The record further shows that no one worked as a floor inspector on second or third shift in Department 14 either before or since the experiment involving Crumley and Moody. One floor inspector, Heatherly, worked first shift in Department 14 throughout...
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