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USCA1 Opinion
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
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No. 93-1604
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
v.
CRAFTS PRECISION INDUSTRIES, INC.,
Respondent.
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ON PETITION FOR ENFORCEMENT OF AN ORDER
OF THE NATIONAL LABOR RELATIONS BOARD
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Before
Torruella, Circuit Judge,
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Aldrich, Senior Circuit Judge,
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and Stahl Circuit Judge.
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Harold N. Mack with whom Benjamin Smith and Morgan, Brown & Joy
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were on brief for Respondent.
Jill A. Griffin with whom Howard E. Perlstein, Supervisory
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Attorney, Jerry M. Hunter, General Counsel, Yvonne T. Dixon, Acting
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Deputy General Counsel, Nicholas E. Karatinos, Acting Associate
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General Counsel, Aileen A. Armstrong, Deputy Associate General
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Counsel, and National Labor Relations Board were on brief for
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Petitioner.
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February 15, 1994
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ALDRICH, Senior Circuit Judge. This is an action
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by the National Labor Relations Board to enforce an order
against Crafts Precision Industries, Inc., a manufacturer,
hereinafter Crafts, or Respondent. Originally there were two
complaints. Simplifying complaint number 26,573, filed
October 27, 1989, it alleges, in substance, that in July
1989, Crafts refused to bargain by partially transferring its
polycrystalline department from Massachusetts to its Illinois
facility. This transfer, hereinafter the PDT, allegedly was
an unfair labor practice designed to discourage lawful
employee activities. The complaint sought its return.
Acting General Counsel, (Counsel), concedes that, although
there was some other language in the complaint, the propriety
of this transfer was the sole issue, in accordance with the
charge.
On February 14, 1990 counsel for the Union signed
and filed a new charge, numbered 27,070, reading in its
entirety,
The above-named Employer has
discriminated against employees because
of their participation in protected
activities.[1]
Thereafter, on April 23, 1990 the Union filed a further
charge, given the same number, stating,
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1. On the issue of notice, as well as satisfying section
10(b)'s six months limitation, the Board's brief describes
this as "plain language." It may be plain, but it is hardly
explicit.
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On or about August 22, 1989, the
above-named Employer, by its officers and
agents, laid off John Kierstead, Tom
McCullough, William Hillson, Kien
Nguyen, Son Le, Terrance Crowley, Minh Ha
and Thinh Pham because of their union
activities.
On April 30, 1990 complaint No. 27,070, was filed,
stating,
7. On or about August 22, 1989,
Respondent laid off the following
employees:
John Kierstead Terrance Crowley
Tom McCullough Son Le
William Hillson Minh Ha
Kien Nguyen Thinh Pham
8. The layoffs of the employees
referred to above in paragraph 7
resulted, in whole or in part, from
Respondent's partial transfer of its
polycrystalline department from its
Canton facility to its Illinois facility
in July, 1989.
9. Respondent engaged in the
conduct described above in paragraph 7
because the employees named therein and
other employees joined, supported, or
assisted the Union, and engaged in
concerted activities for the purpose of
collective bargaining or other mutual aid
or protection, and in order to discourage
employees from engaging in such
activities or other concerted activities
for the purpose of collective bargaining
or other mutual aid or protection.
We must, however, back up. Case No. 26,573 was
called for trial on March 19, 1990. At the outset Counsel
moved orally to consolidate it with Case No. 27,070.
Respondent asserted that "under Collier" there should first
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be arbitration. Counsel's response was that there need be
none because the two cases were related.2 The ALJ allowed
the motion, saying he would "hear further argument at the end
of this case." He then proceeded to hear the 26,573 case,
only.
We find, however, that by letter of February 16,
1990, Crafts learned that three of the eight employees later
named in the April enlargement were, allegedly, discharged
for individual reasons as well as because of the non-
negotiated PDT. When this second "consolidated" case was
later tried, Counsel, though satisfying the ALJ of the
wrongfulness of this transfer, did not show it cost any of
the named employees' jobs. Instead the offered proof was
simply that three of the group were wrongfully discharged on
account of individual lawful, but displeasing conduct.
On this basis Crafts complains that the charge that
prevailed was not made within Section 10(b)'s six months from
August 22, 1989, and that this was a jurisdictional defect.
Even if the February 14, 1990 charge were construed as
insufficient, Crafts must fail. The six months provision is
not jurisdictional, but is an ordinary statute of
limitations, see NLRB v. Silver Bakery, Inc. 351 F.2d 37, 39
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(1st Cir. 1965), and, as such, may be waived. C.E.K. Indus.
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2. It is now the Board's position that the cases were not
related.
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Mechanical Contractors, Inc. v. NLRB, 921 F.2d 350, 351 n.2
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(1st Cir. 1990). Immediately prior to the hearing on the
27,070 complaint Crafts knew of the separate claims of the
three individuals. It did not seek to amend its pleadings or
make any attempt to object on the ground of lateness. The
Board first heard of Crafts' Section 10(b) objection by way
of an objection taken to its opinion. Even were the point
valid, it was too late.
We turn to the case before us. The Board has
affirmed the ALJ's finding that five of the eight employees
named in the second complaint were discharged not because of
the machinery transfer, but, rather, solely for economic
reasons and thus not as a result of the PDT, found to be an
unfair labor practice by the ALJ. However, it reversed his
finding that the PDT was an unfair labor practice, finding,
instead, that it, too, was economically justified.
Correspondingly, it found that Crafts' allegedly improper
statement that it would make the transfer unless the union
agreed to a modification in the contract was not a threat,
but a fair announcement. Accordingly, all that is before us
is the Board's affirmance of the ALJ's finding against Crafts
with respect to laying off three individuals, Kierstead,
McCullough and Hillson.
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The ALJ and the Board found that economic
considerations justified discharges,3 but that unfair
reasons predominated in the case of these three. It is
common ground that this is a "mixed motive" case, to be
governed by the shifting-burden analysis in Wright Line, 251
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N.L.R.B. 1083 (1980), enf'd, 662 F.2d 899 (1st Cir. 1981),
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cert. denied, 455 U.S. 989 (1982). Under N.L.R.B. v.
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Transportation Management Corp., 462 U.S. 393 (1983), the
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Supreme Court upheld the Wright Line analysis, stating it as
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follows:
the General Counsel carrie[s] the burden
of persuading the Board that an antiunion
animus contributed to the employer's
decision to discharge an employee, a
burden that does not shift, but . . . the
employer, even if it fail[s] to meet or
neutralize the General Counsel's showing,
[can] avoid the finding that it violated
the statute by demonstrating by a
preponderance of the evidence that the
worker would have been fired even if he
had not been involved with the union.
Id. at 395. See also Herrick & Smith v. N.L.R.B., 802 F.2d
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565, 570 (1st Cir. 1986) (employee's protected conduct must
be a "substantial or motivating factor for the discharge").
In reviewing the Board's findings, the court will
not "displace the Board's choice between two fairly
conflicting views, even though the court would justifiably
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3. Crafts presented evidence that its sales had dropped
considerably; that it had laid off three other union
employees in July, and had reduced its non-union management
support staff by some 30%.
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have made a different choice had the matter been before it de
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novo." Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 488
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(1951). However, "a reviewing court is not barred from
setting aside a Board decision when it cannot conscientiously
find that the evidence supporting the decision is
substantial, when viewed in the light that the record in its
entirety furnishes, including the body of evidence opposed to
the Board's view." Id.
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Respondent argues, on the basis of this last quoted
clause, that on the affirmative finding of the economic
necessity of layoffs, with no finding that more layoffs were
made than necessary, the evidence was insufficient to support
the Board's findings, (1) that the three employees were laid
off because of their protected activity, and (2) that the
company had failed to show that the three would have been
laid off regardless of their union activity.
Hillson
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In July 1989, Hillson complained to McCullough, the
chief union steward, that he had not received a pay raise
resulting from an earlier successful grievance. McCullough
pursued the matter with management twice in July and again
within a week before the August layoffs. There was nothing
else by way of a prima facie case. We may agree that timing
can be an important factor in determining whether a discharge
is motivated by the employee's protected activity. N.L.R.B.
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v. Vemco, Inc., 989 F.2d 1468, 1479, amended, 997 F.2d 1149
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(6th Cir. 1993). Here, however, we face an unusual
situation; the Board found that layoffs at that time were
justified. When a mass layoff is justified, it is not
unlikely that some affected employees will have recently
engaged in minor protected conduct. That, standing alone,
should not establish a prima facie case. Indeed, we suggest
that to hold so would be wrong in principle. Employees,
aware of the fact that reductions were imminent, could strive
to make minor trouble and thus place themselves in an
automatically protected group. We consider it speculative to
say the Board carried its burden. Rather, that it reacted
automatically here seems confirmed by its findings with
respect to Kierstead.
Kierstead
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Like Hillson, Kierstead claimed that Respondent was
not complying with obligations that arose out of a previously
successful grievance. The Board found not only that
Kierstead was laid off just days after filing his labor grade
grievance, and just two weeks after being reinstated by court
order, but also that the company had given Kierstead a false
reason for its failure to reinstate him at his previous labor
grade -- that the PCD operations in Massachusetts had been
fully terminated, a claim retracted by the company at the ALJ
hearing. If this made out a prima facie case, it is
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rebutted. Four employees were laid off in Kierstead's
department, one of whom, Son Le, was in a higher labor grade
than Kierstead. The ALJ and the Board found that the other
three layoffs, including Le's, were economically justified.
As it is undisputed that seniority was honored in the
layoffs, Kierstead cannot argue that another employee should
have been chosen in his place; all were either more senior or
in considerably higher labor grades.4 Further, the fact
that Respondent reached beyond Kierstead's labor grade and
into Le's indicates that Kierstead was not singled out
unfairly; in Kierstead's division, as in the Natural Diamond
division, Respondent exhausted the lowest labor grade before
reaching into a higher grade.5 No claim was made, by Le or
Kierstead, that Le was laid off as a cover for Kierstead's
layoff, despite the presence of the union representative
throughout the hearing. See, e.g., N.L.R.B. v. Jack August
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Enterprises, Inc., 583 F.2d 575, 578-79 (1st Cir. 1978).
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Given the Board's unchallenged findings regarding the other
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4. The bargaining agreement provided that in selecting
employees for layoff, "seniority shall be the deciding factor
among employees physically fit and competent through
knowledge, skill, and efficiency to perform the available
work." Agreement at 12(b); T. & E. A. at 347.
5. The bargaining agreement also provided that "In the case
of layoff, an employee displaced from his occupational
grouping may exercise his shop seniority and bump into any
job in the same or lower labor grade providing he is then
qualified to perform the work . . ." Agreement at 12(a);
T. & E. A. at 347.
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layoffs in this department, Kierstead would have been laid
off regardless of his union activity.
McCullough
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With respect to McCullough there was more to the
case, though on both sides. From Crafts' standpoint, it did
away with his position of inspector, and provided that each
worker should inspect his own work. Pappas, Crafts' chief
officer, testified that he had contemplated that this would
effect a substantial saving. As against this the Board noted
that this had been done, if at all, in his head, without
paper analysis. To this Pappas replied that it had worked
out to save some $20,000. It would be difficult to say that
this affair was more than a draw, and insufficient to justify
a conclusion either way. The operator of a small company
must normally do much in his head. There was, however, more.
For over ten years McCullough had been union steward,
responsible for pursuit of union members' grievances with
management. In December, 1988, he received a labor grade
increase, and was told by his supervisor that he would have
received the increase at least two years earlier had it not
been for his union activities. Pappas became angry with
McCullough in June 1989 when he refused to move the location
of a vote on a working foreman proposal. After the vote,
Pappas asked for the vote total, but McCullough refused to
tell him. Twice in July and once during the week before the
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layoffs in August, McCullough pursued a pay rate dispute with
management on behalf of Hillson. On August 15, McCullough
discussed with his supervisor Kierstead's pay grade dispute,
and his supervisor told McCullough that his name had come up
in a management conversation "with some disfavor" and that he
should be on his best behavior. McCullough discussed the
same issue with Pappas on August 17, and filed a grievance on
Kierstead's behalf the next day.
The Board held that this was sufficient evidence of
"animus to McCullough's union activities by the Respondent up
to the time immediately preceding his layoff." Although, for
reasons already given, we could not accept all of its
reasoning, we cannot fault the Board in this instance.
Obviously a union steward will not be management's fair-
haired boy or he would quickly lose favor with the union.
Correspondingly, we would think occasionally heated
disputes -- depending, perhaps, on personalities -- must
occasionally occur.6 It would seem unreasonable that a union
steward could have an ace-in-the-hole safe conduct against
lay-off by the fact that his pursuing grievances was
sometimes irritating. However, there was more than that
here. One does not punish a steward for his union
representation. We find the Board was warranted in holding
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6. We note with some surprise that the Board seemingly
charged against Pappas the fact that he fought a grievance
"vigorously."
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it had a prima facie case. Nor can we say that Respondent's
showing that it would have done away with the inspector's
position in any event was compelling as matter of law. The
work required somebody's time.
The order as to McCullough is enforced; otherwise
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denied. No costs.
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Document Info
Docket Number： 93-1604
Filed Date： 2/15/1994
Precedential Status： Precedential
Modified Date： 9/21/2015