The National Labor Relations Board petitions for enforcement of its order issued against Henlopen Manufacturing Co., Inc., and reported at 235 N.L.R.B. No. 33 (March 17, 1978).The Board charged that the Company had violated Section 8(a)(1) and (3) of the National Labor Relations Act by discharging an employee because of her union activities. Enforcement denied.
Before Moore, Feinberg and Timbers, Circuit Judges.
The National Labor Relations Board (the "Board"), is petitioning for enforcement of its order, 235 N.L.R.B. No. 33 (1978), issued against Henlopen Manufacturing Co. (the "Company"), on March 17, 1978, pursuant to § 10(e) of the National Labor Relations Act ("NLRA" or the "Act"), 29 U.S.C. § 160(e) (1976). The order affirmed the rulings, findings and conclusions of the Administrative Law Judge ("ALJ") except for a minor modification of the remedy. The ALJ's decision, in turn, was made after a trial upon a complaint, which according to the ALJ, alleged that the Company
"violated Section 8(a)(1) of the Act by soliciting grievances from its employees in order to discourage interest in the Charging Party unions which were seeking to organize its employees, by threatening employees with discharge, elimination of part-time work and institution of a more onerous production quota system if they supported the unions, and by promising and granting benefits, including a new work-incentive plan, in order to induce employees to refrain from supporting the unions."
The complaint also alleged that the Company "first transferred employee Cecilia Caruona to a more onerous job and then discharged her because of her union activities in violation of Section 8(a)(3) and (1) of the Act". 29 U.S.C. § 158(a)(3) and (1) (1976). The general purport of the complaint is that the Company by various actions and threats showed such an anti-union animus as to constitute a violation of Section 8.
The Company is a New York corporation located principally in Melville, New York. It manufactures and sells plastic cases and brushes for cosmetics and related products and has some 200 employees. There are two main production areas in the Company's plant: the molding department, where plastic parts are formed in injection molding machines, and the assembly department, where the plastic parts are put together. During the relevant time period, both the International Industrial Production Employees Union ("IPEU") and Local 917, International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America ("Teamsters") were engaged in organizational campaigns at the Company's Melville plant.
In order to establish a context for the issue which is before the court, the various charges which the ALJ dismissed are relevant. These events occurred during organizational campaigns of the IPEU and the Teamsters.
The alleged threat of elimination of the Company's part-time shift was based upon a Company leaflet or letter circulated on October 11, 1976. As to this letter the ALJ found that the General Counsel had not proven "that the letter threatened reprisals".
Another incident in September involved an employee Fawn Russo, a "paid union organizer trainee" through whom the General Counsel advanced the charge that the Company "solicited grievances, implied that they would be implemented, or actually implemented them in order to discourage union activity". The ALJ found that the General Counsel had failed to substantiate this charge. Likewise the ALJ found that "the General Counsel has failed to sustain his burden of proving that Respondent (the Company) promised an improved bonus system or threatened more onerous production quotas in violation of the Act".
Hence, the ALJ dismissed all the charges of unfair labor practices except one. The one unfair labor practice he found, on which the order is sought to be enforced, is the charge that the Company unlawfully discharged the employee Caruona.
In August, 1976, Cecilia Caruona applied for work at the Company and was interviewed by Manuel Garcia, the assembly department manager, on Friday, August 13. She was hired to work in the assembly department. She began work on Monday, August 16; her work hours, 8:30 a.m. to 1:00 p.m., were based on her request to work part-time.
Prior to Caruona's application for employment, she had agreed to become a "student" IPEU organizer; of this the Company was not aware. The IPEU promised to pay Caruona $50 per week while she was organizing. Her instructions as an organizer were to do her work, try to organize her employer's workers, and report back to the IPEU any information relevant to any organizing efforts. The essentials of these instructions were repeated when she informed the IPEU that the ...