York Products, Inc. v. N.L.R.B.

• Decision Date: 28 August 1989
• Docket Number: No. 88-2276,88-2276
• Citation: 881 F.2d 542
• Parties: 132 L.R.R.M. (BNA) 2030, 113 Lab.Cas. P 11,529 YORK PRODUCTS, INC., d/b/a Mastercraft Casket Company, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 542

881 F.2d 542

132 L.R.R.M. (BNA) 2030, 113 Lab.Cas. P 11,529

YORK PRODUCTS, INC., d/b/a Mastercraft Casket Company, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 88-2276.

United States Court of Appeals Eighth Circuit.

Submitted April 14, 1989.

Decided Aug. 3, 1989.

Rehearing Denied Aug. 28, 1989.

Steven E. Marsh, Springfield, Mo., for petitioner.

William A. Baudler, for respondent.

Before BOWMAN and WOLLMAN, Circuit Judges, and ROSS, Senior Circuit Judge.

ROSS, Senior Circuit Judge.

York Products, Inc., d/b/a Mastercraft Casket Co. (Mastercraft), petitions for review of the decision of the National Labor Relations Board (Board), adopting the order of the Administrative Law Judge (ALJ), that Mastercraft violated section 8(a)(1) of the National Labor Relations Act (NLRA), 29 U.S.C. Sec. 158(a)(1). The essence of the charge was that Mastercraft threatened to thin out or terminate employees because of union membership, and violated section 8(a)(1), (a)(3), 29 U.S.C. Sec. 158(a)(1), (a)(3) by discriminatorily failing to recall certain of its employees from layoff due to their union support. The Board has cross-applied for enforcement of the order requiring that Mastercraft cease and desist from threatening its employees and make Priscilla Barber, Chester Golat, and Joseph Marshall whole for any loss of earnings and other benefits plus interest suffered as a result of Mastercraft's discrimination. We affirm the order and grant enforcement.

Although the labor dispute occurred in Ladysmith, Wisconsin, jurisdiction is proper in this circuit under 29 U.S.C. Sec. 160(f) ¹ because Mastercraft maintained its corporate headquarters in Springfield, Missouri, and has plants operating in Marshfield and Crane, Missouri.

Mastercraft employees are not represented by a union, but in February 1986, a union organizational campaign began. Mastercraft campaigned against the union. James Ewer, then a Mastercraft supervisor of the paint, hardware, and interior departments, was heard to refer to employee Barber and another union supporter as "troublemakers." Numerous employees heard him repeatedly threaten as many as fifty times to close the plant if the union came in. Toward the end of the campaign, Robert Betthauser, President of Mastercraft, described employees Golat (a leader in the union campaign from the beginning) and Marshall as "up [a] creek with no paddle [in] a boat that was sinking fast" because they supported the union. Another supervisor, Raymond Frafjord, told Marshall to stop wearing union buttons if he knew what was good for him. Supervisor Ewer's wife, Florence, also an employee, was heard repeating that Ewer had said that if the union came in, Mastercraft would have a big layoff and switch people around to get rid of some of the "troublemakers," specifically naming Barber. Florence denied making the statement.

Layoffs occurred in March and April 1986, which were justified for economic reasons. Two days before the election, the union filed an unfair labor practice charge against Mastercraft which was later withdrawn. In April the employees voted against unionization. Later that year, in July or early August 1986, employee Barber heard Supervisor Ewer tell his wife that he was planning to lay off employees and "start thin[n]ing out" the union people. Ewer also allegedly said that he had to lay off his wife and daughter-in-law because "the dammed union figured [out] that he was favoring his family." Ewer denied making any statements after March 1986 when he had received a Supervisor's guide book giving instructions on running a campaign against the union. Barber also testified that Ewer made a similar statement in September about cleaning house and throwing a few people out, without specifically mentioning the union. In September 1986, Mastercraft laid off eighty-one hourly workers, including Barber, Golat and Marshall, due to a decline in sales. The lawfulness of the layoff was stipulated. Mastercraft instituted a quality control program i.e., lower production and higher quality requirements, and only weeks later began to recall its most qualified workers from layoff, recalling sixty-four between October 1986 and February 1987.

Barber had performed satisfactory work while at Mastercraft but was not recalled until April 1987. Another employee with the same seniority status as Barber (considered a good employee by both Mastercraft and Barber) and one with two years less seniority were recalled before Barber to do the same job. Barber, however, had earlier stated that she planned to fake an accident while working, as she had done at a former job, to collect compensation. This report had reached Ewer through a former employee who had a grudge against her, and was entered on Barber's personnel file before September 1986. Mastercraft did not confront Barber with this allegation or investigate it. Barber had been on an extended vacation in Arizona with her husband from December 1986 through March 27, 1987. Mastercraft believed that Barber was unavailable for work from information it received from her daughter, but Mastercraft made no effort to contact her.

Golat, a union campaign leader, had been late for work several times during his employment with Mastercraft, and Mastercraft did not consider him a good employee. Ewer, however, considered him a versatile and adaptable employee who had "helped [him] out a lot." Mastercraft recalled three other employees before Golat. One had been on the job only three weeks, one also had little experience, and a third was recalled because Golat's position had been combined with another position. Mastercraft stated that Golat had refused the new position, but Golat stated that he was never offered the position.

Marshall refused recall in April 1987 after working for Mastercraft for four years. Ewer considered him to be an employee who could be relied upon and had written reference letters for him in 1984 and 1986 describing him as a "very good employee" who was "competent," "dedicated," "loyal," and "hard-working." Marshall had more seniority or experience than six employees who were recalled or hired before Mastercraft offered to recall him.

An unfair labor practice charge was filed against Mastercraft on January 23, 1987, by Golat and others. Upon a hearing, the ALJ found Mastercraft had violated section 8(a)(1) of the NLRA by threatening to terminate or thin out employees because of their union support and by blaming the earlier layoff on union activity, and section 8(a)(1), (a)(3) of the NLRA by refusing to recall employees because of their union activity. The ALJ also found that the relevant (section 10(b)) period began July 22, 1986. ² The Board adopted the ALJ's decision and Mastercraft appeals, arguing that the Board's decision is not supported by substantial evidence and that the ALJ improperly placed the burden of proof on Mastercraft to prove it had not violated the Act, in contravention of NLRB v. Wright Line, 662 F.2d 899 (1st Cir.1981), cert. denied, 455 U.S. 989, 102 S.Ct. 1612, 71 L.Ed.2d 848 (1982).

The Board's findings of fact are conclusive if supported by substantial evidence on the record considered as a whole. 29 U.S.C. Sec. 160(e). The Board's reasonable inferences may not be displaced even if this court might have reached a different view had the matter been before it de novo. On review, this court is bound by the Board's determinations of witness credibility and the weight to be given their testimony, unless the Board's determinations are "shocking to [the court's] conscience." Beaird-Poulan Div., Emerson Elec. Co. v. NLRB, 649 F.2d 589, 592 (8th Cir.1981).

The ALJ set forth this test from Wright Line at page 13 of its decision:

First, we shall require that the General Counsel make a prima facie showing sufficient to support the inference that protected conduct was a "motivating factor" in the employer's decision. Once this is established, the burden will shift to the employer to demonstrate that the same action would have taken place even in the absence of the protected conduct.

The...