U.S. Soil Conditioning v. N.L.R.B.
| Decision Date | 12 October 1979 |
| Docket Number | Nos. 78-1322,78-1902,s. 78-1322 |
| Parties | 102 L.R.R.M. (BNA) 2678, 87 Lab.Cas. P 11,616 U.S. SOIL CONDITIONING, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Tenth Circuit |
James E. Hartley, Denver, Colo. (Warren L. Tomlinson and Holland & Hart, Denver, Colo., of counsel, on brief), for petitioner.
Janet C. McCaa, N. L. R. B., Washington, D. C. (John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, and Elliott Moore, Deputy Associate Gen. Counsel, N. L. R. B., Washington, D. C., on brief), for respondent.
Before HOLLOWAY and DOYLE, Circuit Judges, and MATSCH, * District Judge.
The cause was argued and submitted to this court on September 13, 1979, on the petition of U.S. Soil Conditioning seeking a reversal of the decision of the NLRB entered on April 7, 1978. There is a cross-appeal on behalf of the NLRB seeking enforcement of its order. The original complaint alleged violations of § 8(a)(3) and (1) of the Act.
The complaint alleged that on June 2, 1976, the U.S. Soil Conditioning Company discharged one Joseph Dugan because of his membership and activities on behalf of the International Union of Operating Engineers, Local No. 9, AFL-CIO. An election was conducted on July 16, 1976, following a stipulation which was approved by the Regional Director, on June 28, 1976. The tally of ballots showed that of the 18 votes which were cast, there was an even division; nine were for and nine were against the certification. The tie breaking vote was that of Joseph Dugan, the man who was discharged.
The respondent company, which is owned by Joseph H. Lionelle, is a sole proprietorship engaged in the production and sale of trace material and other fertilizer products in Salida, Colorado. It denied the charge, but did admit that the company sold goods and shipped them in interstate commerce.
The voluminous record reflects the length, extent and extreme adversarial character of the hearing. The administrative law judge found the facts in favor of the respondent company. The Board, on the other hand, disagreed with this determination. Its view was that Dugan was discharged because of his union activity. Relief appropriate to this determination was granted in the Board's decree.
The NLRB general counsel called five witnesses: Joseph H. Lionelle; Joseph N. Dugan; Irene F. Dugan, Joe Dugan's wife; Clayton Ogden, a U.S. Soil quarry employee; and Clifton Ogden, another quarry employee and Clayton's brother. The witnesses for U.S. Soil were Marion Burr, a U.S. Soil secretary and accounting clerk; Harold L. Lewis, U.S. Soil controller; Joe Tancik, general overseer of plant and quarry operations and plant superintendent; Raymond Smith, quarry superintendent; Donald Lee Ackels, a U.S. Soil electrician; and Cecil Gehring, a quarry employee.
The crucial finding of the administrative law judge was that neither Lionelle, the owner of the plant, nor any of his agents apart from the employees participating, knew of the Union's efforts to organize the plant until June 10, 1976, when the notice of unfair labor practice charges and the formal representation petition were received at U.S. Soil, eight days after Dugan The Board's evaluation was the opposite. It held that there existed ample circumstantial evidence that Lionelle and his agents were aware of his employees' organizational activities prior to the firing and that it was this factor and not the late return of Dugan from his vacation which caused the firing. The Board found, in addition, that Lionelle had an anti-union viewpoint and that the discharge of Dugan, occurring as the Board determined immediately after the presentation of the petition seeking representation, was explainable only as having been prompted by Dugan's union organizational activities.
was discharged. As a consequence, the administrative law judge found that the discharge of Dugan was the result of his having overstayed his authorized vacation by one week and that it was not on account of his union activities. On this account, the judge sustained the challenge to Dugan's ballot and exonerated U.S. Soil, holding that they had not engaged in any unfair practice.
The Board's legal view was that the company had violated § 8(a)(3) and (1) of the Act. It ordered the reinstatement of Dugan with back pay and ordered as well that the election which had been thrown out by the administrative law judge should be reinstated and that Dugan's ballot be counted. This court is called upon to decide whether there is substantial evidence from a consideration of the record as a whole to support the findings and conclusions of the Board.
The respondent, U.S. Soil, here maintains that there is not substantial evidence in the record as a whole. It claims that the Board erred by ignoring the credibility findings of the administrative law judge. It should be pointed out that the fact that the Board reached different factual conclusions that the administrative law judge is not as diabolic as respondent suggests. It does not bespeak per se invalidity. The issue, as noted above, is whether the Board's decision is based on substantial evidence.
Much of the testimony on behalf of the respondent, U.S. Soil, centers on the shortcomings of Dugan. Indeed, it is much like a prosecution or at least a discrediting process. Joe H. Lionelle, the owner of the plant, was the principal witness. He testified that his first knowledge that the Union was attempting to organize the U.S. Soil Conditioning Company was when he received the notice from the Union. He denied that he had had any prior conversations with employees regarding the Union. He said that Joe Tancik, who was the superintendent of the plant, was responsible for hiring and firing. Lionelle did fire Dugan. The ultimate question is whether he fired him as a result of Dugan's taking an extra week of vacation allegedly without obtaining permission to do so. Lionelle called during the latter part of May, talked to Tancik, and asked him if Dugan had returned. He was told that he had not. Finally, on June 2, Tancik was told, according to this testimony, to fire Dugan. Whether Dugan had at least partial permission to take extra vacation was a disputed question.
There was a good deal of testimony from not only Tancik but also Ray Smith, who was the superintendent at the quarry, as to the competency of Dugan as an employee. Both Tancik and Smith said that Dugan was not a competent truck driver in that he mishandled the trucks. Also, Dugan was terminated once for having liquor on his breath during working hours. This was in February 1975, one and one-half years before this incident. Lionelle did testify that Dugan had somewhat of a liquor problem. However, this was not shown to have been a persistent problem which entered into the firing. But the testimony sought to establish that there were other problems such as the truck driving, which was just mentioned. From a review of the administrative law judge's findings, together with the evidence, Dugan did not appear to have a single redeeming quality.
Union activity had been going on for some period of time prior to the time of the firing, and the employees, those who desired the Union at least, had met on many occasions. There is considerable conflict as to whether these meetings were secretly carried on so as to escape the attention of management. There was evidence that at the quarry where Dugan worked, there was regular discussion during the noon hour of the union question. Some of this conversation was said to have taken place in the presence of Mr. Ray Smith, who was the superintendent of the quarry. He, however, claimed that he had not heard such discussions. Also, Ray Smith's son, Jerry, was an employee of the company who attended all of the organization meetings, and there were several, and it is, of course, argued that since he was close to his father there was some communication of the union activity to Ray Smith. However, the administrative law judge rejected all of this evidence and this conclusion.
Lionelle and Tancik, who was the general superintendent of the company, asserted that their first knowledge of the union activity came when the formal petition was presented June 10, eight days after Dugan was fired. There is no dispute, however, that the just-mentioned petition was presented to the employees for their signatures, including Dugan, on the very day that he was fired.
It will not help in this present effort to detail many scraps and bits of testimony that were considered by both the administrative law judge and the Board in reaching their respective conclusions. It will, however, be of some value to briefly consider the findings and conclusions of both.
We have referred to the substantial evidence test governing agency review in a court. We note that it admonishes the reviewing court to regard the findings of the Board as to questions of fact supported by substantial evidence on the record considered as a whole to be conclusive. 29 U.S.C. § 160(e) (1976). See also 29 U.S.C. § 160(f). This standard was enacted by Congress in the Taft-Hartley Act in 1947, and is in accordance with the Administrative Procedure Act.
In the year 1951, the Supreme Court decided Universal Camera Corp. v. NLRB, 340 U.S. 474, 477-486, 71 S.Ct. 456, 95 L.Ed. 456 (1951). In a very lucid opinion authored by Mr. Justice Frankfurter, the Court interpreted the above-cited statute. Its pronouncements continue to be regarded as authoritative and no effort has been made to improve upon them. The Supreme Court in this important decision said that:
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