Vokas Provision Co. v. N.L.R.B., s. 84-5886
| Decision Date | 21 July 1986 |
| Docket Number | Nos. 84-5886,84-6007,s. 84-5886 |
| Citation | 796 F.2d 864 |
| Parties | 122 L.R.R.M. (BNA) 3136, 104 Lab.Cas. P 11,930 VOKAS PROVISION CO., d/b/a the Rich Plan of Western Reserve, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Timothy D. Wood (argued), Schwartz, Einhart & Simerka, Armand Cohn, Jacobs, Cohn, Wallace & Ziskind, Cleveland, Ohio, for petitioner.
Elliott Moore and Sandra Elligers, Deputy Associate General Counsels, N.L.R.B., Washington, D.C., Karen Cordry (argued), for respondent.
Before ENGEL, KEITH and KENNEDY, Circuit Judges.
The issue here is what right an employer possesses, consistent with the National Labor Relations Act, to discipline employees who absent themselves from work against the express order of the employer but upon the expectation that they will be subpoenaed by the union to appear at Board proceedings.
Vokas Provision Company petitions to review and set aside a decision and order of the National Labor Relations Board issued on August 15, 1984, and reported at 271 N.L.R.B. 1010 (1985). The Board found the Company in violation of sections 8(a)(1) and 8(a)(4) of the National Labor Relations Act, 29 U.S.C. Sec. 158(a)(1), (4), 1 when it refused to permit six employees to attend a Board representation hearing during working time, and when it subsequently discharged those employees for attending the hearing contrary to the Company's instructions. The Board has cross-applied for enforcement of its order.
The facts are essentially as found by the administrative law judge and were undisturbed by the Board which, however, reached an opposite conclusion on the issue of liability.
Vokas Provision Company is a small employer of approximately twelve full-time employees. The Company is engaged in the business of selling frozen foods and meats, freezers and microwave ovens to retail customers. This business is conducted at its Canton, Ohio, plant. The Company also maintains several sales offices scattered throughout the State of Ohio. The plant consists of four major departments: sales, meat processing, warehousing/truck driving, and office staff. Jerome Vokas is the Company's president and owner. Carl Bishop is the plant manager.
Since the mid-1970s, the Company has experienced rapid growth in its business operations. The meat processing department has played a particularly critical role in this growth. The Company has always delivered all meats frozen, which is the foundation upon which the Company has built its complete food service.
On or about March 10, 1981, District Union 427, United Food & Commercial Workers International Union began an organizing campaign at the Company's plant. Shortly thereafter, meatwrappers Gail Gelliarth and Janis Heckel, meatcutter Herb Cannon, and warehouseman/driver Walter Blakeway signed union authorization cards. On March 17, 1981, the Union filed a petition with the Regional Office seeking certification as exclusive bargaining representative of Vokas' twelve employees. In the latter part of March, 1981, the Board's attorney and the Company's attorney agreed to schedule a representation hearing for April 1, 1981, 2 although the election date was still open.
On March 30, 1981, Anthony Hackenberg, the Union's counsel, and Raymond DeSantis, a business representative for the Union, met with several meat processing employees after their shift had ended and asked them whether they would be willing to attend the April 1 representation hearing. The employees were informed that their testimony might be "useful for the Union." The employees who participated in this meeting were Gail Gelliarth, Janis Heckel, Herb Cannon and Sareth Has. During this meeting, it was decided that employees Frank Redling and Walter Blakeway should also be requested to provide testimony at the hearing. Redling and Blakeway were told the following day that the Union had requested their presence at the hearing.
On March 31, 1981, President Vokas learned, through his plant manager, that the six employees would be leaving work the following day to attend the hearing. At the end of the shift, Vokas called his employees together and read a prepared statement. He notified the employees that he could not permit all of them to attend the hearing unless they had subpoenas, but that they would be permitted to choose one of their number as a representative who would be allowed to attend the hearing. Vokas explained that he could not allow production to be stopped by the absence of six employees, and that if the six employees left to attend the hearing, without subpoenas, they would be discharged for insubordination. Later that evening, two of the employees conferred with Union representative DeSantis who informed them that subpoenas would be waiting for the employees at the federal building the following morning.
On the following day, April 1, when the six employees prepared to leave for the hearing, Vokas again informed the employees that they could not leave work without subpoenas, except that a single employee could attend the hearing as their representative. Vokas also told the employees that if they left they would be discharged and not rehired. The employees responded that they had subpoenas, but when Vokas asked to see the subpoenas he was told that the Union had instructed the employees that they would be served when they came downtown to the Board. At this point, Cannon and Redling apparently informed Vokas that the six employees involved were willing to return to work after the hearing. 3 Vokas then read from the written statement and again warned the employees that they would be discharged if they left to go to the hearing without subpoenas. Cannon informed Vokas that he believed the employees would be in contempt if they did not go to the hearing. The six employees then proceeded to punch out their time cards and leave the plant. Vokas collected the cards as they were punched, and all six employees were discharged. Upon their arrival at the federal building, Union counsel Anthony Hackenberg served the six employees with subpoenas which had been issued that morning. The representation hearing was not held on that date due to the filing of the unfair labor practice charges.
On May 29, 1981, a complaint was issued against the Company charging violations of sections 8(a)(1), (3), and (4) of the NLRA. A hearing was held on the merits before an administrative law judge who issued a decision dismissing the complaint in its entirety. 4 According to the ALJ, in the absence of a subpoena or a showing that the attendance of all six employees at the hearing was necessary, the Company's legitimate interests in maintaining its business operations prevailed over the employees' interests in voluntarily attending the hearing without the Company's permission. 5
In a 2-1 decision, a majority of the Board reversed the ALJ and found that the Company's refusal to permit the six employees to attend the representation hearing, and the Company's subsequent disciplinary action against the employees for disobeying its instructions, were in violation of sections 8(a)(4) and 8(a)(1) of the Act. 6 In reaching this conclusion, the majority emphasized that on April 1 it was evident that the employees "reasonably believed that they were legally bound to obey the subpoenas which the Union was obtaining to compel their appearances at the hearing." 271 N.L.R.B. at 1011. Therefore, according to the majority:
In these circumstances where the employees felt as compelled to appear as if they had been served and the Respondent did not advise them concerning any infirmity based on lack of service, we would not require the employees to have subpoenas in hand in order to be within the protection of section 8(a)(4). Rather, it was sufficient that the subpoenas were awaiting the employees at the Board Offices, and that Respondent was not informed.
Id. 7 The Board majority therefore ordered the six discharged employees reinstated with full backpay and seniority. The majority further ordered the Company to cease discharging employees for leaving work during working hours to attend a Board hearing for the purpose of testifying.
In the instant case, it was not found, and it is not contended, that the Company's action against the six employees was motivated by any desire to interfere with the Board's processes or to otherwise discriminate against the employees because they participated in Board proceedings. Nor is there any dispute that the Company's refusal to grant permission to the six employees to attend the Board hearing was not in fact based upon legitimate business needs. 8 Rather, the only question is whether sections 8(a)(4) and 8(a)(1) prevent an employer from taking disciplinary action against a group of employees who absent themselves from work without subpoenas or permission, thereby disrupting production, whenever they "reasonably believe" that they are under a duty to attend a Board proceeding. The Board opinion cited no authority for its holding that a violation had occurred and, in fact, the Board's ruling is incompatible with its own prior rulings and with well established precedent in this and in other circuits. We therefore deny enforcement.
At the outset, we recognize that because of the Board's "special competence" in the field of labor relations, its interpretation of the Act is entitled to substantial deference. Ford Motor Co. v. N.L.R.B., 441 U.S. 488, 496, 99 S.Ct. 1842, 1848, 60 L.Ed.2d 420 (1979); N.L.R.B. v. Weingarten, Inc., 420 U.S. 251, 266, 95 S.Ct. 959, 968, 43 L.Ed.2d 171 (1975). Nor should we reject a ruling merely because we might prefer another view of the statute. Pattern Makers' League of North America v. N.L.R.B., --- U.S. ----, 105 S.Ct. 3064, 87 L.Ed.2d 68 (1985). We also recognize that a reviewing court should be particularly hesitant to disturb the Board's...
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