NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ELDORADO MANUFACTURING CORPORATION and United Steelworkers of America, AFL-CIO, Respondents.
No. 80-2101.
United States Court of Appeals, Seventh Circuit.
Sept. 24, 1981.
Rehearing and Rehearing In Banc Denied Nov. 13, 1981.
1207
Argued April 28, 1981.
James Callear, Atty., N.L.R.B., Washington, D.C., for petitioner.
Donald V. Ferrell, Harrisburg, Ill., Soloman I. Hirsh, Hirsh & Schwartzman, Chicago, Ill., for respondents.
Before CUMMINGS, Chief Judge, CUDAHY, Circuit Judge, and WYATT,* Senior District Judge.
CUMMINGS, Chief Judge.
The National Labor Relations Board has petitioned us pursuant to Section 10(e) of the National Labor Relations Act (Act) (
I
The Company operates a small plant in Eldorado, Illinois, that produces valves for machinery. Its eleven production and maintenance employees are represented by the Union. Their contract is administered at the basic level by an employee-elected bargaining and grievance committee consisting of the shop steward and two committeemen.
Since at least the summer of 1978, the eleven employees were divided into two antagonistic groups. One group (the Davidson-Miller faction) was led by Allen Davidson and Jerry Miller and included employees Tom Horton, Gordon Donnelly, Jeff Beam and Leon Wiseman. The other group (the Pennell-Cox faction) consisted of Bud Pennell, Bob Cox, Ivan Butler, Charlie Daniels and Fred Anderson. The Davidson-Miller faction was openly hostile and vulgar to members of the other faction and engaged in such conduct as:
“abusive, obscene and vicious language, feigned vomiting gestures; breaking the other faction‘s coffee cups; intentionally wasting company-provided coffee so that the other faction could not drink coffee; and breaking a Company chair so that employee Cox could not sit on it while operating his machine in the plant” (App. 57).
Davidson also destroyed a part from Cox‘s motorcycle. According to Davidson, his group‘s behavior was caused by the other group‘s “taking sides with the company” (Tr. 202-203). Davidson admitted that the Pennell-Cox faction did not engage in comparable conduct (Tr. 202-203). Davidson also admitted that from time to time, Plant Manager Herschel Hiller heard complaints about Davidson‘s and Miller‘s misconduct and warned them especially that their jobs were in jeopardy if they persisted in such conduct.
In November 1978, the Davidson-Miller faction initiated a recall of Ivan Butler, a member of the Pennell-Cox faction, as shop steward. The employees voted to replace Butler with Leon Wiseman, then a member of the Davidson-Miller faction, and elected Davidson and Horton, another member of the Davidson-Miller faction, to serve as his committeemen.
On February 13, 1979, the employees began a strike against the Company over the terms of a new contract. The strike concluded on April 2, 1979, with the execution of a new two-year contract. The new contract was negotiated by the employees’ bargaining and grievance committee (Wiseman, Davidson and Horton) with the assistance of Union Representative Richard Blackburn. During the strike, Miller and Davidson became dissatisfied with Wiseman‘s performance as steward. Miller felt that Wiseman was not picketing enough, and Davidson thought that Wiseman was not taking a sufficiently strong position in the contract negotiations. Antagonism between the Davidson-Miller faction and Wiseman, who by this time was taking his coffee breaks with the Pennell-Cox faction, was aggravated by the so-called “key incident.” Prior to the strike, several employees had keys to the plant so that they could begin work even if Plant Manager Hiller arrived late. During the strike, some employees, including Wiseman, agreed among themselves not to accept keys when they returned to work. Thus, if Hiller were late, the employees could leave and collect four hours’ “call-in” pay. However, shortly after the strike ended, Wiseman accepted a key from Hiller and showed it to Miller. Miller threatened that if Wiseman used the key Miller would see to it that the door would not open again. Three or four days later, the lock on the door was jammed and had to be replaced, even though Wiseman had returned the key to Hiller.
After the strike the Davidson-Miller group increased its disruptive and abusive behavior and now included Wiseman as one of its targets. Davidson admittedly yelled at Plant Manager Hiller, greased the other group‘s tools and lathes, broke their coffee cups and sought to prevent them from drinking coffee, physically harassed them
In mid-April, Miller and Horton circulated a petition to remove Wiseman as shop steward and replace him with Davidson. The petition was put aside when majority support was not forthcoming.
On April 27, Davidson filed a grievance claiming that Plant Manager Hiller had on the previous day performed some bargaining unit work. At Davidson‘s request, Wiseman called a grievance meeting with Hiller. At the meeting, Pennell, who had been with Hiller at the time of the disputed events, supported Hiller‘s claim that he had not done bargaining unit work. Davidson then went to the lunchroom and placed sand in Pennell‘s salt shaker. On April 30, at a second grievance meeting called at Davidson‘s insistence and concerning the same matter, Hiller accused Davidson of being a troublemaker and stated that the Davidson-Miller group was raising petty matters. Contemporaneously, Miller drew two extremely obscene pictures of Wiseman, one with Union Representative Blackburn and the other with Hiller. At Miller‘s suggestion, Davidson and Jeff Beam, one of Davidson‘s supporters, hung the drawings at Wiseman‘s workplace. A few days later, Pennell, who had worked for the Company for 20 years, told Hiller that he, Pennell, could not continue to work for the Company in view of the disruptive situation there.
On May 4, Bob Cox demanded a shop meeting concerning a dispute between him and Davidson about the operation of a machine tool. Hiller agreed with Cox‘s position and told Davidson to stop causing trouble. Davidson thereupon told Hiller that if he addressed Davidson in the future, Davidson wanted his union representative present. When Hiller pointed out that Wiseman was present, Davidson retorted, “I said any time, Jack.”2 At that point Hiller gave Davidson a written warning slip for disobedience. Also on May 4, Davidson threatened Cox by raising a broom at him. Miller stated in the hearing before the Administrative Law Judge (ALJ) that approximately one week before his discharge he also was warned by Hiller concerning his troublemaking (Tr. 58-59).
On May 7, the employees held a union meeting at the plant with Union Representative Blackburn present. Davidson called the meeting in an attempt to oust Wiseman as shop steward. According to Davidson, Wiseman was lax in calling grievance meetings. When a majority of those present refused to vote Wiseman out, Davidson and Horton resigned from the grievance committee. Pennell and Cox were elected to replace them. Shortly thereafter, Miller admitted to Pennell that Miller was not operating his lathe at full speed and was going to see “that the door is shut on this place.” Pennell told Hiller of this threat. On May 10, possibly as a protest to the new grievance committee, Miller, Davidson and Horton went to the table occupied by the Pennell-Cox faction during lunch and dumped soda pop all over the table and spat soda thereon.
On the morning of May 11, Miller again smacked his lips, held his nose and made other vulgar gestures and faces at Wiseman, causing Wiseman to become pale and sick-looking. Wiseman then decided to ask Plant Manager Hiller for a vacation and accordingly asked grievance committee members Cox and Pennell to accompany him to Hiller‘s office. Thereupon, a one and one-half to two-hour meeting took place with Hiller. At that meeting Wiseman complained to Hiller that he needed a two-week vacation immediately to avoid a
After the conclusion of an ensuing meeting with Miller and Davidson, Hiller discharged them on the ground that they had harassed Company employees to the extent of disrupting the work force. He explained at the September 1979 hearing on the complaint before the ALJ that essential senior employees would otherwise have left the Company.
After Miller and Davidson learned that they were being terminated, they sought the assistance of the grievance committee, and Wiseman arranged a meeting for them with the committee and Union Representative Blackburn on May 15. At that meeting, Davidson and Miller admitted that they were responsible for harassing the plant employees. Blackburn told Miller and Davidson that they did not have a good chance of being reinstated, but that he would talk with Hiller and, if unsuccessful, would “go through the [grievance] procedure.” Davidson said that he wanted to write his grievance (Tr. 153) and had the necessary grievance forms (Tr. 229) and both he and Miller understood the grievance procedure (Tr. 525), but Miller stated that he had secured other employment on May 11 and consequently did not want his job back. Blackburn asked Davidson not to file a grievance for about a week so that Blackburn could talk to Hiller first. Both Davidson and Miller were familiar with the grievance machinery.
A few days later, Blackburn and the Union attorney spoke to Hiller, who refused to reinstate Davidson and Miller. After trying unsuccessfully to reach Wiseman, Blackburn called Cox and told him to tell Wiseman to notify Davidson and Miller that Hiller would not agree to take them back and that they could go ahead with their grievances. Wiseman subsequently spoke to Davidson and inquired if he had the necessary grievance forms. Davidson said he did and requested from Wiseman the Local Union‘s number, which was 14812 (General Counsel Exhibit 2 at p. 14). Later, when Wiseman stopped at Davidson‘s home to give him the requested number, Davidson said he didn‘t need it. His next move was in July when he filed his initial charges with the Labor Board. As the ALJ found, “there was no ‘attempt’ by the discriminatees to file written grievances and there was no refusal by the Union to accept them” (App. 20).
On the basis of the foregoing record,3 the ALJ concluded after a hearing that the Union violated Section 8(b)(2) and (1)(A) of the Act by causing the discharges of Davidson and Miller because of their intra-union activity; that the Union violated Section 8(b)(1)(A) of the Act by failing to notify Miller and Davidson that it was willing to process their grievances; and that the Company had violated Section 8(a)(1) and (3) of the Act by discharging Miller and Davidson at the Union‘s demand. The Board affirmed the ALJ‘s decision and adopted his recommended order with two minor modifications.
II
First, as the Supreme Court explained in Carbon Fuel Co. v. Mine Workers, 444 U.S. 212, 217, 100 S.Ct. 410, 414, 62 L.Ed.2d 394, to hold a union liable for the acts of its agents, “it must be clearly shown . . . that what was done was done by their agents in accordance with their fundamental agreement of association.” The Court added that to establish a union‘s liability under the doctrine of respondeat superior evidence must be offered that the “International Union instigated, supported, ratified, or encouraged” the activity in question. 444 U.S. at 218, 100 S.Ct. at 414, quoting with approval 582 F.2d 1346, 1351 (3d Cir. 1978) in the same case. In the present case, there is nothing in the record to show that Wiseman, Pennell and Cox were acting “in accordance with their fundamental agreement of association”5 or that the Union “instigated, supported, ratified or encouraged” the discharges. These three employees were elected by their fellow employees rather than designated by the Union under the collective bargaining agreement and were present at the May 11 meeting as individuals on behalf of themselves and other employees distressed by Davidson‘s and Miller‘s misconduct. Indeed, far from the Union‘s endeavoring to cause the discharges, its agent Blackburn attempted to have Miller and Davidson reinstated four days after the discharges took place.
Second, the record does not support the Board‘s finding that Wiseman presented Hiller with an ultimatum to discharge Miller and Davidson. Indeed, all four participants in the meeting testified to the contrary and the unrebutted evidence shows that the resolution of the discipline problem was left with Hiller. The fact that Wiseman commented to employees Horton and Beam after the meeting that “he had to do it” does not support an inference that he demanded their discharges since it is entirely compatible with his testimony and the testimony of others that he had simply reached the point where he felt he had to complain about the continuing harassment.
Finally and most importantly, the record does not support the finding that Wiseman, Pennell and Cox sought to have Davidson and Miller punished because of protected intra-union activities. The complaints of Wiseman, Pennell and Cox concerned the manner in which Davidson and Miller had chosen to vent their contempt for the Pennell-Cox faction. The Board, however, found that Miller‘s and Davidson‘s
The dissent contends that the May 11 meeting was a “misuse of Union * * * power.” We disagree, for Union representatives can be and here were proper vehicles for communicating employee dissatisfaction to management, even concerning the disruptive actions of other employees. There was no unfair labor practice because the complaints of the Union representatives were entirely legitimate.
III
As follows from the foregoing discussion, the Board‘s finding that the Company violated Section 8(a)(1) and (3)6 of the Act by discharging Miller and Davidson is also unsupported by substantial evidence. The ALJ found that Plant Manager Hiller discharged the two employees principally because of Wiseman‘s demand, but was receptive to the demand because he was annoyed by Davidson‘s having complained that Hiller had performed bargaining unit work. The ALJ acknowledged that Hiller would have been justified in discharging Miller and Davidson for misconduct, but found that the discharges were not so motivated since Hiller had previously acquiesced in the misconduct by not disciplining or
The Board in its brief argues that there “were no out-of-the-ordinary occurrences in the shop between May 7, the date of the Union meeting at which Wiseman‘s ouster was sought, and May 11, when Wiseman and the [two other] Union committeemen demanded that Hiller fire Miller and Davidson” so that the “inference is compelling” that the discharges were motivated by Davidson‘s and Miller‘s participation in protected activities (Br. 20-21). However, the Board (and the ALJ) conveniently overlook the facts that Wiseman had known about the attempt to oust him since mid-April, that some time between May 7 and May 11, Pennell reported to Hiller that Miller was not operating his lathe at full speed and intended to see “that the door is shut on this place,”8 that on May 10, Miller and Davidson poured and spat soda pop on the table at which the Pennell-Cox faction was eating; and that the May 11 meeting was immediately precipitated by Miller again making obscene gestures directed at Wiseman.
The Board‘s case against the Company rests at bottom on the apparent notion that blatant misconduct once tolerated at all must be tolerated forever. However, as this Court has previously stated, “[t]here must be room in the law for a right of an employer somewhere, sometime, at some stage, to free itself of continuing, unproductive, internal, and improper harassment.” National Labor Relations Board v. Truck Drivers, supra, 630 F.2d at 509. To ascribe any motive to these discharges other than a long overdue intolerance of Davidson‘s and Miller‘s offensive and disruptive acts would be to indulge in unwarranted speculation. Neither the Board nor this Court can decide cases on such a basis. Midwest Stock Exchange v. National Labor Relations Board, 635 F.2d 1255 (7th Cir. 1980). Accordingly, we hold that the Company discharged Miller and Davidson for good cause and did not violate Section 8(a)(1) and (3) of the Act.
IV
Finally, we cannot agree with the Board that the Union violated Section 8(b)(1)(A) by failing to notify Miller and Davidson that it was willing to process their grievance over the discharges. Liability for failure to process discharge grievances cannot attach unless the grievances would have been meritorious and unless the Union‘s failure to process was in bad faith. Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 570, 96 S.Ct. 1048, 1059, 47 L.Ed.2d 231 (1976); Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). The grievances here were, as discussed above, not meritorious because the discharges were for just cause based on serious misconduct and therefore not a violation of the collective bargaining agreement. In addition, there was no bad faith shown on the part of the Union.
Following the May 11 discharges, Wiseman scheduled a meeting for Miller and Davidson on May 15 with himself, the two other grievance committeemen, and Union Representative Blackburn. At that meeting, Blackburn told Davidson and Miller that they had little chance of being reinstated, but that he would talk to Hiller
Here the Board has saddled the Company and Union with joint and several liability to make whole any loss of wages sustained by Miller and Davidson (App. 24-25, 26). By analogy to suits under
CUDAHY, Circuit Judge, dissenting:
There is no question that substantial evidence supports the Board‘s order here. The majority has simply elected to credit, rely on or emphasize other evidence or to draw different inferences from the evidence than the Board and has quite flagrantly substituted its judgment for that of the Board.1
In fact, before May 1979, in the four and a half years of his being plant manager, Hiller had never discharged an employee or even issued a warning or formal reprimand because of misconduct in the shop. The Administrative Law Judge and the Board concluded that, “employee discipline, whether management-imposed or self-imposed, in the plant, at all material times, was anarchic... [but that] Hiller [knew] of these derelictions in his shop, but openly ignored the situation on the ground that either it would improved [sic] or abate.” App. at 15. Hiller even failed to take action when informed that Miller was not operating his machine at full speed and that Miller threatened to shut the Company down, App. at 16, actions that would have clearly justified discharging Miller.
Wiseman, Cox and Pennell, who demanded the discharges, were the only Union officials ordinarily on the premises. It is, therefore, disingenuous in the extreme to suggest that they were not agents of the Union, fully clothed with apparent authority. They were the Union for all practical purposes at Eldorado.4 This case is impor-
To me the misuse of Union and Company power5 to violate the rights of employees who at the time are in ill favor with the shop steward (whom they have tried unsuccessfully to replace) and the grievance committee (which has been turned over to their rivals) is of controlling significance in this case. Whether the employees fired were incidentally irritating and obnoxious should not be determinative. We should not allow concern for factory decorum to blind us to injustice in the abuse of power. Of course, under other circumstances, it might have been acceptable to fire Davidson and Miller for misconduct. But here no one appears to have thought of that course until the victims had a falling out with the shop steward and Davidson and Horton were replaced by their adversaries as committeemen. Company power should not be used as an instrument of Union politics.
There is also substantial evidence to support the Board‘s finding that the Union failed to accept and process the Miller and Davidson grievances when Union representative Blackburn committed the matter to the tender loving care of Wiseman—a prime antagonist of the terminated duo.6
I therefore respectfully dissent.
Notes
The Administrative Law Judge and the Board also noted that,
[Hiller‘s] one act of disciplining Davidson, on May 4, for insubordination, stemmed not from Davidson‘s misconduct with co-employees (which was the gravamen of Wiseman‘s and Pennell‘s complaints), but rather from a direct confrontation with Hiller himself. Miller‘s conduct with respect to Hiller, in any event, in no way precipitated Wiseman‘s demand for Davidson‘s and Miller‘s discharges and I reject Hiller‘s assertion at the hearing that it was an underlying cause for the two discharges.
App. at 18 (emphasis supplied).
Hiller discharged Miller and Davidson only because of the urging of Respondent-Union, which urgings found an entirely sympathetic ear in Hiller because of Hiller‘s desire, as a matter of Respondent-Employer‘s interest, to rid itself [sic] of two employees who were continually showing dissatisfaction and causing him ‘aggravation’ because of his alleged contract violations in doing unit work. App. at 16 (emphasis supplied). This analysis at the very least supports the view that, without the urgings directed at the Company by the Union leaders, there would have been no firings. The Company, therefore, has not carried its burden under Mt. Healthy.
“[T]he District Court should have gone on to determine whether the [employer] had shown by a preponderance of the evidence that it would have reached the same decision as to [the employee‘s] reemployment even in the absence of the protected conduct.” Mt. Healthy City Board of Ed. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977).
“Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in
The uncontradicted evidence shows that these three employees [Wiseman, Cox and Pennell] and their predecessors represent the unit (together with the Union business agent Richard Blackburn, where matters concern negotiation of terms of a collective-bargaining agreement) in collective bargaining and individual unit employees in their grievances with Respondent-Employer pursuant to the terms of the collective-bargaining agreements between Respondents.
App. at 3 n. 1. This state of facts established a prima facie agency of the three to act for the Union in matters of discharges and grievances.
“(a) It shall be an unfair labor practice for an employer—
“(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act.”
Section 8(a)(3), as noted in the text, supra, provides in pertinent part:
“(a) It shall be an unfair labor practice for an employer—
“(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization * * *”