Wyman-Gordon Company v. National Labor Relations Board

Citations: 654 F.2d 134; 108 L.R.R.M. (BNA) 2085; 1981 U.S. App. LEXIS 11211Docket: 80-1675

Court: Court of Appeals for the First Circuit; July 20, 1981; Federal Appellate Court

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Wyman-Gordon Company, a Massachusetts corporation operating a facility in Danville, Illinois, faced allegations of unfair labor practices after approximately 140 employees elected union representation from the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America in June 1979. This election followed a failed organizational effort in early 1978. The union filed charges against the company under sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act before the election, claiming violations concerning union activities. 

After extensive hearings, the Administrative Law Judge (ALJ) found the company guilty of multiple violations: specifically, discharging employee Daniel Wilson and refusing to hire David Stark due to their union involvement, constituting a violation of 8(a)(3). Additionally, the company violated 8(a)(1) on thirteen occasions by coercively interrogating or threatening employees and job applicants about their union affiliations. The National Labor Relations Board (NLRB) affirmed the ALJ's decision, prompting the company to petition for review while the NLRB sought enforcement of its order.

The case also examines the circumstances surrounding Wilson's discharge. He began with the company in 1976, transitioned through various roles, and was accepted into a maintenance training program requiring an industrial electricity course. After being transferred to a third shift, Wilson obtained permission to switch to an afternoon class to accommodate his new schedule.

Wilson received tuition support, necessary materials, and compensation at his hourly rate for all time spent in the classroom, including travel time for on-shift classes. Brock Blinn, a staff assistant in the industrial relations department, oversaw the training program and informed instructors to record attendance, which he would periodically audit. Upon reviewing attendance, Blinn discovered that Wilson had missed nine afternoon classes between October and December 1978 and failed to complete a practical exam. Following suspicions of dishonesty, Blinn requested an audit of Wilson's payroll records, which confirmed he had been paid for all classes attended from September to December. 

During a meeting on January 29, 1979, Blinn and general supervisor Vernon Gehrke confronted Wilson with his absences. Wilson provided several excuses, including being on vacation and reporting late, while admitting to missing four or five classes. He claimed to have notified company officials of these absences and expressed willingness to make restitution, which was declined by Blinn and Gehrke. Gehrke later confirmed with a colleague that Wilson may have mentioned one or two absences. Further investigation revealed discrepancies in Wilson's excuses, as an instructor denied having canceled any classes. Additionally, Wilson received a $25 cash advance for missed classes due to a payroll oversight, which he accepted after being informed of the option.

Blinn, informed by Rape of Wilson's absence, questioned Chaney about Wilson's knowledge regarding an advance payment. Chaney stated that Wilson must have known about it, prompting Blinn to recommend Wilson's discharge for theft. Donovan, new to the company, consulted regional director Adams, who confirmed the company's strict policy of terminating employees for misuse of funds. On February 2, Donovan, Blinn, and Gehrke decided to discharge Wilson for violating company rules against theft and dishonesty. During a meeting, Wilson offered to repay for any absences but was suspended pending discharge. Blinn later obtained written confirmation of Wilson's attendance record. On February 6, after refusing to sign a performance notice citing ten paid absences, Wilson was officially discharged.

In assessing the discharge as a dual motive case, the initial inquiry is whether the Board established a prima facie case of improper motivation. Although the ALJ did not explicitly find this, it was implied and supported by the record. Wilson's involvement in the union was evident, as he actively participated in organizational efforts. While there was conflicting evidence about the extent of his involvement, the ALJ credited the evidence of Wilson’s overt union support prior to his discharge, raising questions about the company's motives. Additionally, there was evidence of disparate treatment between Wilson and another employee, Wes Wheeler, who received payment for absences without facing disciplinary action, suggesting that Wilson’s union involvement influenced the decision to terminate him.

Wilson testified that he notified Kennedy about his absences on November 1, 6, 8, and December 4, and mentioned several missed classes in September to Blinn and another supervisor. However, none of these individuals reported his absences to the accounting department, which Kennedy acknowledged should have been done to enable payroll adjustments. This lack of communication contrasted with the company's strict actions later, suggesting that the absences were used as a pretext to terminate a union supporter. The National Labor Relations Board (NLRB) established a prima facie case of antiunion motivation, shifting the burden to the company to prove a legitimate reason for Wilson's discharge.

The company asserted that Wilson missed 16 out of 36 classes, retained payments for attendance, and lacked an acceptable excuse for most absences. It maintained a strict policy against dishonesty, and no other employee had a record as poor as Wilson's. The Administrative Law Judge (ALJ) initially did not apply the correct analysis and misfocused on whether Wilson intentionally accepted payments for missed classes. He found that Wilson was unaware of the cash advance's purpose and noted the absence of a formal reporting mechanism for absences.

Despite recognizing the ALJ's credibility authority, the record questioned his findings, indicating Wilson was generally aware of his compensation for class attendance. Wilson only reported four absences and denied others, implying he knew about the payments for additional missed classes. Furthermore, a payroll clerk testified that she explained the payment process for some absences to Wilson, which he disputed understanding. Ultimately, even if the ALJ was correct that Wilson's overpayments were inadvertent, the key issue remained whether the company believed Wilson acted dishonestly and if that belief justified his termination.

The motive for employee discharge is pivotal, as established in several cases, including NLRB v. South Shore Hosp. and NLRB v. Prince Macaroni Manuf. Co. The review of the record indicates that the company's belief on February 6, 1979, regarding Wilson's dishonesty was substantiated by evidence. Notably, while the Administrative Law Judge (ALJ) credited Wilson's lack of awareness about the cash advance, the understanding of company officials Donovan, Blinn, and Gehrke was influenced by Chaney's credible comment that Wilson could not have received the money without knowledge of its purpose. Blinn also confirmed that one of Wilson's excuses was inaccurate by the end of January. Furthermore, Kennedy informed the officials that Wilson had only reported one absence out of ten, reinforcing the belief that Wilson knowingly accepted overpayments. The differing treatment of Wheeler, who also missed classes but was not terminated, raised questions. However, the company had no comparable evidence of dishonesty against Wheeler, as it was determined he was only paid for two of six reported absences. The distinct circumstances justified the different outcomes, as the company lacked evidence to suggest Wheeler acted dishonestly.

Regarding the refusal to hire David Stark, substantial evidence supports the Board's finding of an 8(a)(3) violation. Stark, a journeyman millwright with nine years of experience and a history of union involvement, applied for a position in October 1978, following a newspaper advertisement for millwrights. His application was rejected, which the evidence suggests was linked to his union activities.

The department's hiring process included multiple stages: an initial screening interview by an administrative assistant who completed a 'rating and recommendations' form, followed by a review by Gehrke, the general supervisor, who eliminated less interesting candidates. This was succeeded by an additional interview and a final decision made jointly by Gehrke and Donovan. Stark had a preliminary interview with Judith Peevler on October 27 but received a rejection letter weeks later, despite Gehrke's later testimony that Stark’s qualifications were ideal for the position. 

The company was aware of Stark's union involvement, as Stark testified he discussed his union activities during his interview, a claim supported by the ALJ, who found Stark credible. Donovan acknowledged knowing that the Lauhoff millwrights were organized, indicating at least a recognition of Stark's union membership. The company conceded Stark was well-qualified and noted that applications from similarly experienced candidates were rare, which could meet the Board's requirements for evidence of discrimination. 

Further evidence of discriminatory intent was provided by Stark, who reported that Peevler mentioned the company being a 'nonunion shop' and asked about his feelings regarding such conditions. Six employees hired between 1977 and 1978 corroborated similar comments made during their interviews. Wilson, a personnel office employee, confirmed that interviewers were instructed to inquire about applicants' union involvement and attitudes. Peevler consistently followed this practice, including in her evaluation of Stark, where she noted he 'seems to lean toward believing in 3d party intervention,' a phrase linked to unions.

The company attempted to argue that Stark's application for a supervisory position excluded him from protections against discrimination and claimed that the timing of discrimination was illogical given the recent loss of a union election. They also highlighted the presence of former union members among recent hires. However, these arguments did not effectively counter the evidence presented.

The company, having recently won a contentious election, was likely concerned about maintaining a balance between pro- and anti-union employees, particularly given the presence of numerous union supporters in the workforce. The hiring of former union members raised further concerns, especially since the Administrative Law Judge (ALJ) found that union sympathies were screened during interviews. In reviewing Stark's application, the company failed to explain its decision, suggesting instead that it was overlooked due to a mix-up with another candidate's application. Gehrke, responsible for application screening, did not individually annotate applications but sorted them into two categories. The company's theory that Stark's application was mistakenly categorized as "no interest" was plausible but not strong enough to contradict the ALJ's findings, especially in light of evidence regarding inquiries into union sympathies.

Additionally, the ALJ concluded that the company violated Section 8(a)(1) of the Act by coercively interrogating or threatening employees about their union involvement on thirteen occasions between late January 1979 and the June election. The assessment of coerciveness is objective and based on whether a reasonable employee would feel coerced by the employer's actions. The ALJ's findings were mostly supported by substantial evidence, with seven statements made by the company suggesting that unionization would result in starting negotiations from scratch, potentially threatening existing benefits. While the interpretation of these comments as threats depends on the overall context, the ALJ's conclusions regarding their coercive nature were upheld.

Three incidents were identified as clear violations of labor rights. The first involved a supervisor warning an employee about potential pay and benefits loss with unionization, implying long bargaining delays without raises or allowances, and the risk of replacement during strikes. The second incident occurred when two employees asked about changing vacation dates in light of an upcoming election, to which a supervisor replied that their voting intentions would influence the decision. The third incident involved an interrogation during an employee’s interview about union representation. 

Additionally, two statements were deemed closer, yet still recognizable, violations. One involved a supervisor telling an employee that the union would be unable to change vacation scheduling, which could be interpreted as coercive. The other was a single question from a supervisor about an employee's interest in union representation during an unrelated discussion, which was also found to be a violation. 

The Administrative Law Judge (ALJ) found merit in these violations but disagreed with a finding related to an incident where an employee mentioned their progress with the union, leading to a supervisor's ambiguous comment about freedom. 

Regarding the remedial order, the company contested the broad prohibition against interfering with employee rights under Section 7 of the Act. Although such a prohibition is justified in cases of persistent interference, the current violations were not severe enough to warrant it. The ALJ noted that while the company’s antiunion actions were not isolated, they were not egregious, especially since the dismissal claim related to Wilson lacked substantiation. With the union's success, a reduction in the company's antiunion actions is expected.

Enforcement of the specific provisions of the cease and desist order will proceed; however, the catch-all paragraph is to be removed, referencing legal precedents such as NLRB v. Savin Business Machines Corp. and others. The enforcement is granted in part by the District of Massachusetts. Section 8(a)(3) of the National Labor Relations Act identifies discriminatory practices by employers that discourage labor organization membership as unfair labor practices. 

The excerpt details the work and class schedule of employee Wilson, who was required to change shifts monthly to gain full exposure to the company's operations. His attendance was inconsistent, with multiple absences documented, including a notable absence on November 22 during a practical exam. Testimonies from Wilson and his supervisors reveal conflicting accounts regarding the reasons for his absences. While Wilson attributed some absences to personal matters, his explanations varied from those of his supervisors, leading to ambiguities in the Administrative Law Judge's (ALJ) findings. The ALJ appeared to favor the supervisors' account but left certain crucial questions unresolved, particularly regarding the legitimacy of Wilson's stated reasons for his absenteeism.

Wilson was on vacation in early September, not late October, and was completely absent from class on November 27 and 29. Evidence included a handwritten sheet by Blinn, which noted "vacation" and "late" next to October and November dates. However, the Administrative Law Judge (ALJ) did not seem to accept Blinn's testimony regarding these references. Notably, Gehrke could not recall Wilson making comments about his absences. Before discussing his statements from the January 29 meeting, Wilson reported four medically-related absences and mentioned missing two classes in September due to vacation, being late to at least one September class, and a class cancellation on November 22. 

The ALJ's findings suggest a compromise between different testimonies regarding Wilson's willingness to repay overpayments, indicating an ambiguity about whether Wilson was aware of his compensation for missed classes. Blinn testified Wilson never denied awareness, while Wilson implied he did. Kennedy was asked only about Wilson's reported absences due to his son's hospitalization and difficulties attending morning classes. Wilson stated he reported absences on November 1, 6, and 8 to Kennedy and others, while the ALJ credited Wilson's account.

Blinn also investigated Wilson's claims about being on vacation in October and being late in November, finding them untrue. Evidence confirmed Wilson's only vacation was in the first week of September, and he was absent on the specified November dates. All students were required to attend one of the four classes on which the practical exam was based; arriving late would have resulted in being sent home. Additionally, Wilson had been compensated for four September absences before transferring to Rape's class, but these were not considered in the discharge decision.

Blinn discovered shortly before the hearing that Wilson had been compensated for two classes he missed during September, which did not influence the discharge decision. Adams cited theft incidents, including $20 worth of metal alloy and a 55-gallon drum of oil, later adding theft from a petty cash box and timecard falsification, all of which the involved employees admitted. Rape's letter indicated that Wilson attended class regularly until mid-term, after which his attendance declined, resulting in a poor practical exam score (D), a B on the final exam, and a final grade of C, the lowest awarded by Rape. Wheeler’s instructor reported six absences, but an investigation revealed only two were compensated. Wheeler completed the company training program on October 27, 1978, and attended classes without pay after that date, with four absences occurring post-completion. Peevler's use of an attorney was clarified as relating to Stark's workers' compensation claim. The ALJ and Board did not apply the Eastern Smelting analysis appropriately, but once Stark's account was favored over Peevler's, the Board established a prima facie case. There was an indication that Parlier underwent a second interview on October 30, which conflicted with the notion of Gehrke's preliminary rejection of him. Section 8(a)(1) of the National Labor Relations Act prohibits employers from interfering with employees' rights, which include self-organization and collective bargaining, and these protections extend to prospective employees, as established in several cases.