Wyman-Gordon Co. v. N.L.R.B.

• Decision Date: 20 July 1981
• Docket Number: No. 80-1675,WYMAN-GORDON,80-1675
• Citation: 654 F.2d 134
• Parties: 108 L.R.R.M. (BNA) 2085, 91 Lab.Cas. P 12,902 COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — First Circuit

Page 134

654 F.2d 134

108 L.R.R.M. (BNA) 2085, 91 Lab.Cas. P 12,902

WYMAN-GORDON COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 80-1675.

United States Court of Appeals,

First Circuit.

Argued May 5, 1981.

Decided July 20, 1981.

Columbus R. Gangemi, Jr., Chicago, Ill., with whom George B. Christensen, Gerald C. Peterson, and Winston & Strawn, Chicago, Ill., were on brief, for petitioner.

Robert I. Tendrich, Washington, D. C., with whom William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, and Howard E. Perlstein, Washington, D. C., were on brief, for respondent.

Before BOWNES and BREYER, Circuit Judges, and WYZANSKI, Senior District Judge. ^*

BREYER, Circuit Judge.

Wyman-Gordon Company, the petitioner here, is a Massachusetts corporation headquartered in Worcester. Since 1976, the company has operated a facility in Danville, Illinois, devoted to the manufacture of crankshafts and other metal forgings. In June 1979, the approximately 140 hourly employees at the Danville plant elected to be represented by the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America. That success did not come easily to the union; a previous organizational drive conducted in early 1978 had fallen short, and the outcome of the 1979 election was determined by the disposition of challenges to five ballots. In March and April 1979, while the second union campaign was gaining steam, the union filed charges against the company alleging various violations of sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1), (3) (1970). After holding seven days of hearings, the ALJ concluded with respect to most of the General Counsel's allegations that the company was guilty as charged. Specifically, he found that the company (1) violated § 8(a)(3) both by discharging Daniel Wilson and by refusing to hire David Stark, in each instance because of the individual's union activities, and (2) violated § 8(a)(1) on thirteen separate occasions by coercively interrogating or threatening eight different employees, and one applicant for employment, with respect to their union involvement. The National Labor Relations Board summarily affirmed the ALJ's decision and order. The company now petitions for review and the Board cross-applies for enforcement.

I. The Discharge of Daniel Wilson

We first treat the question of whether the company's discharge of Daniel Wilson violated § 8(a)(3) of the Act. ¹ Our reading of the record reveals the following: Wilson joined the company in February 1976 as a security guard. After transferring to the industrial relations office and then returning to his security post, in February 1978 he was accepted as an electrician trainee in the maintenance department. As part of the company's three-year maintenance training program, Wilson was required to complete a course in industrial electricity offered in the fall of 1978 by the Danville Area Community College. The course met for two hours and five minutes twice a week from August 21 through December 17. Wilson initially attended Professor Blackburn's section which met each Tuesday and Thursday at 9:00 a. m. Prompt attendance at this morning class proved inconvenient to Wilson, however, when in September he was transferred to the third shift at the plant. He therefore sought and received permission to attend, beginning on September 26, the afternoon session of the course, taught by Professor Rape on Mondays and Wednesdays at 1:00 p. m. As with all such trainees, the company not only paid Wilson's tuition and provided all necessary books and materials, but also compensated him at his regular hourly rate for all time whether on-shift or off-shift ² that he spent in the classroom. For on-shift classes, such compensation included an allowance of fifteen minutes each way for travel to and from the college.

Brock Blinn, a staff assistant in the industrial relations department, supervised all aspects of the training program including the college course work. By letter dated September 18, 1978, he advised the instructors of each of the four trainees studying at the college ³ that the trainees were being paid for their class time, that attendance should be recorded and that he would periodically check the attendance record; he had earlier informed the trainees that they were expected to attend. On January 2 and 3, 1979, Blinn sought to telephone the instructors in order to audit class attendance; the college was on semester break, however, and he was unable to reach them until January 15. On that day, after consulting his attendance book, Rape reported to him that Wilson had been absent from the afternoon class on nine occasions October 23 and 25, November 1, 6, 8, 20, 27 and 29, and December 4 and that he had been unable to complete a practical wiring exam given near the end of the course. ⁴ Alerted to the possibility of employee dishonesty, Blinn expanded his investigation by requesting Russell Chaney, then the accounting supervisor at the Danville facility, to determine whether Wilson had been paid for the missed classes. After examining the payroll records, Chaney discovered, and reported to Blinn, that Wilson had received payment for all scheduled classes, at least for the period from September 15 through December.

On January 29, 1979, Blinn and Vernon Gehrke, the general supervisor of the maintenance department, met with Wilson and confronted him with a handwritten list of the absences earlier enumerated by Rape. In the face of conflicting testimony, the ALJ found that Wilson offered various excuses for the cited absences, "including that he was on vacation during part of the semester; that his son was ill; that he had reported late for class on two occasions; and that another class had been cancelled." ⁵ Wilson admitted missing four or five scheduled classes but protested that he had reported these absences to various company officials and should not have received payment for them. The ALJ also found that Wilson offered to make restitution "for any classes for which he had been paid" an offer rejected by Blinn and Gehrke. ⁶

Following this meeting, Gehrke inquired of Barry Kennedy, a maintenance planner at the plant, whether Wilson had ever reported being absent from class; as Gehrke recollected this conversation at the hearing, Kennedy replied that Wilson "might have told me (about) one or two." ⁷ Meanwhile Blinn telephoned Rape and learned that at least one of Wilson's proffered excuses was inaccurate: Rape denied ever having cancelled or postponed a class. ⁸ Blinn also spoke with Chaney about the circumstances surrounding Wilson's receipt of a twenty-five dollar cash advance as payment for two missed classes. Chaney informed Blinn that, due to an administrative oversight, payment for the schooling of the four trainees for the week ending October 28 had been omitted from their paychecks. Jacque Marbury, the payroll control clerk, had notified them of the omission and, in accordance with company policy, had offered them the option of either receiving an immediate cash advance or awaiting an adjustment in their next paychecks. Wilson had opted for the former and, on November 3, had signed a receipt and received a twenty-five dollar cash advance as compensation for his attendance at the October 23 and 25 classes. Blinn, having learned from Rape that Wilson had been absent on these dates, inquired of Chaney whether Wilson had been aware of the reason for the advance. As Chaney explained at trial, he told Blinn that "there was no way (Wilson) could have received the money without knowing what it was for." ⁹ Based upon this information, Blinn recommended to Donovan that Wilson be discharged for theft. Donovan, a relative newcomer to the company, called the regional director, James Adams, to inquire about the appropriateness of such a response. Adams indicated that it was the company's policy without exception to terminate employees for intentional misuse of company funds; he described several such instances in the past ¹⁰ and assured Donovan that termination was justified in Wilson's case.

On February 2, Donovan, Blinn and Gehrke reviewed the matter and decided to discharge Wilson for violation of the company rules proscribing "stealing in any form" and "conduct that violates common decency and honesty." Wilson was then called to the meeting. As the ALJ found, "(t)he charges against Wilson were reviewed and Wilson again offered to pay for any absences established by (the company) for which he had been paid." This proposal was again rejected and, in accordance with the company's policy, Wilson was temporarily suspended pending discharge. Following this meeting, Blinn requested and received written confirmation of Wilson's attendance record from Rape. ¹¹ On February 6, after being presented with, and refusing to sign, an unsatisfactory performance notice listing ten absences from October 23 through December 4 for which he had been paid, Wilson was officially discharged.

In a dual motive case such as this one, the initial inquiry is whether the Board has made a prima facie showing that a " 'significant' improper motivation" underlay the discharge decision. NLRB v. Eastern Smelting & Refining Corp., 598 F.2d 666, 671 (1st Cir. 1979); accord, NLRB v. Amber Delivery Services, Inc., 651 F.2d 57 at 68 (1st Cir. 1981); Statler Indus., Inc. v. NLRB, 644 F.2d 902, 905 (1st Cir. 1981). Although the ALJ did not explicitly make such a finding, we believe he did so implicitly and with the requisite record support. For one thing, Wilson was involved with the union and the company was aware of his involvement. See, e. g., NLRB v. Pilgrim Foods, Inc., 591 F.2d 110, 118 (1st Cir. 1978). There was evidence that, from December 1978 through the date of discharge, Wilson was an active...