Petition to enforce an order of the National Labor Relations Board. The petition is granted insofar as it relates to the Board's finding that the employer committed an unfair labor practice by granting its employees an accelerated wage increase to discourage their participation in union activity and is denied to the extent it pertains to the termination of two of its employees. Petition granted in part and denied in part.
Before Feinberg, Chief Judge, Newman, Circuit Judge, and Mishler,*fn* District Judge.
The National Labor Relations Board (the "Board") petitions this court pursuant to section 10(e) of the National Labor Relations Act (the "Act"), 29 U.S.C. § 160(e), for enforcement of its order issued against Charles Batchelder Company, Inc. (the "Company") on June 25, 1980.*fn1 The sole issue is whether the record contains substantial evidence to support the Board's findings: (1) that the Company violated sections 8(a)(1) and (3) of the Act, 29 U.S.C. §§ 158(a)(1), (3), by discharging one of its employees and by refusing to rehire another and (2) that the Company violated section 8(a)(1) of the Act, 29 U.S.C. § 158(a)(1), by promising and granting accelerated wage increases to its employees.*fn2 The Board, adopting in part the recommended order of the Administrative Law Judge (the "ALJ"), directed the Company to cease and desist from certain unfair labor practices and to take affirmative action to remedy its statutory violations. We grant the petition for enforcement only to the extent that the Board's order relates to the Company's promise and grant of accelerated wage increases to its employees.
In April 1978 the Company*fn3 announced a break with tradition and informed its employees that the annual wage increases which were customarily effected every May 1 would be deferred until September 1978. The employees were advised that the change was being made in order to conform the timing of the wage increases to the Company's new fiscal year end but that the employees would not be penalized as a result since the increases would be retroactive to May 1. Nevertheless, employee objections ensued and employee Steven Carmichael, at the suggestion of fellow employee Edward Fleming, contacted Local 1040 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (the "Union") on May 8, 1978 and met with a representative that same day.
Within a few hours after Carmichael's meeting with Union representative Edward Iulo, Carmichael met with Fleming and discussed what had transpired. The two agreed to initiate an organizational campaign and vigorously embarked upon that course through their concerted efforts. Between May 9 and May 12 both employees actively promoted the Union through their discussions with fellow employees and their solicitations of authorization cards.*fn4 In addition to setting up a meeting for the Company employees on May 14 with Union representative Iulo, Carmichael successfully engaged a fellow employee, Tom Elliot, to assist him in posting Union organizational literature in various locations around the shop, including the restrooms, and an area immediately adjacent to their work place.
Two of the unfair labor practice charges arise out of the discharge of Edward Fleming on the afternoon of Friday, May 12, after he threatened a fellow employee, Joseph Emanuelle, who had indicated that he would not attend the union meeting scheduled by Carmichael for the following Sunday. It is undisputed that Fleming responded to Emanuelle's rejection of his personal invitation by blocking his egress, coaxing him to come to the meeting by stating that it was for Emanuelle's own benefit, and threatening him with physical retaliation. As recounted by Emanuelle, Fleming stated that, "If you don't like it I'll take you out in the parking lot and kick your ass " Emanuelle, who had been on friendly terms with Fleming prior to the May 12 incident, failed to return to his job and immediately reported the incident to shop foreman Plourde. Emanuelle testified that he had been frightened by his encounter with Fleming and this was corroborated by Plourde, who stated that Emanuelle was "shook up pale and scared" at the time he reported the incident.
Plourde reported the incident to Ronald Beilin and Bruce Batchelder.*fn5 Thereafter, Emanuelle repeated his account of what had just occurred and after hearing his statement Beilin and Plourde discussed Fleming in general. All parties then present were aware of Fleming's union activities. In the course of their conversation Beilin requested that Plourde comment specifically on Fleming's work record. He answered that Fleming was a fair worker but he had some problems with absenteeism. Plourde ultimately recommended discharge and Beilin concurred. After Plourde had brought a police officer on the scene Fleming was summoned into Plourde's office to render his version of the incident. The focus of the discharge interview concerned his threat against Emanuelle though the issue of Fleming's absenteeism record was also raised. Plourde rejected Fleming's version of the occurrence as did the ALJ,*fn6 and then advised Fleming that he was discharged. The police officer escorted him off the Company's premises.
Shortly thereafter Carmichael learned of Fleming's discharge and confronted shop foreman Plourde stating, "If Fleming is let go, I am leaving too." Plourde cautioned him that, "If you walk out now don't bother to come back," to which Carmichael acknowledged his understanding and left the plant. However, within one-half hour following his departure from the Company plant Carmichael telephoned Plourde requesting to have his job back and stated, "I want to apologize for my hasty decision, and see if I can come back to work." Plourde answered, "I (must) think about it Call me back Monday morning." When they next communicated on Monday morning Plourde stated that Carmichael could not have his job back. It is undisputed that Carmichael quit and was not discharged.*fn7
In the wake of these disputes the union meeting which had been scheduled for May 14 went forward as planned. Thereafter, union activity continued. Fleming and Carmichael filed unfair labor practice charges against the Company on May 22. The Board's consolidated complaint issued on June 30 and stated that the Act had been violated by their discharge in retaliation for their union activity. During the two to three week period following their discharge, Fleming and Carmichael handbilled the Company's plant with the assistance of union agents. Union related activity subsided after this effort and all overt activity ceased by early June.*fn8
In mid-June the Company notified all employees that the new wage increases would become effective July 1, rather than September 1 as announced prior to the advent of union activity. The proffered explanation for the implementation of accelerated benefits was that the Company desired to quell employee dissatisfaction arising from the uncertainty concerning the amount of wage increases.
The Board, in agreement with the ALJ, found that the Company violated section 8(a)(1) of the Act, 29 U.S.C. § 158(a)(1), by promising and granting wage increases to discourage employees from participating in union activity. Accordingly, the Board ordered the Company to cease and desist from promising and granting benefits for the purpose of inducing employees to refrain from engaging in union activity. However, the Board, rejecting a portion of the ALJ's recommendation, found that the Company had violated sections 8(a)(1) and (3) of the Act, 29 U.S.C. § 158(a)(1), (3), by discharging Edward Fleming and by refusing to re-employ Steven Carmichael because they engaged in protected union activity. In overturning the decision of the ALJ with respect to these charges, the Board determined that the asserted grounds for the respective discharge and failure to rehire were merely pretextual and that their employment difficulties sprung solely from their pro-union stand. The Board issued the traditional orders which would be expected in light of its findings and further ordered immediate and full reinstatement, retroactive to May 12, of Fleming and Carmichael.
In determining whether the findings of the National Labor Relations Board are supported by substantial evidence, a court "may not "displace the Board's choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo.' " NLRB v. Walton Manufacturing Co., 369 U.S. 404, 405, 82 S. Ct. 853, 854, 7 L. Ed. 2d 829 (1962) (per curiam), quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, ...