J. P. Stevens & Co. v. National Labor Relations Board

638 F.2d 676
Court of Appeals for the Fourth Circuit·Decided December 31, 1980·No. Nos. 79-1624, 79-1754·Published·Cited by 2 cases

Opinions

WINTER, Circuit Judge:

J. P. Stevens & Company (the company) and the Amalgamated Clothing and Textile Workers Union, AFL-CIO (the union) filed separate petitions for review of an order of the National Labor Relations Board, and the Board cross-petitioned for enforcement.1 The Board held that the company violated §§ 8(a)(1) and (3) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1) and (3) (1976), at its Rocky Mount, Virginia plant by issuing disciplinary warnings to two employees and by discharging one of them. The Board found violations of § 8(a)(1) of the Act in a speech delivered to assembled employees by a company executive, in two printed notices posted in the plant, and in several statements made by company supervisors to employees. As a remedy, the Board ordered reinstatement and back pay for the discharged employee and required the company to expunge the challenged warnings from employee records. The Board issued a company-wide cease and desist order, required posting and reading of a notice in all company plants, and ordered the company to afford the union access to plant bulletin boards and an opportunity to attend and respond to company speeches on unionization.

The company seeks to set aside the Board’s order in whole or in part on the grounds that none of the Board’s findings is supported by substantial evidence and that the Board abused its discretion in ordering corporate-wide remedies. The union supports the Board’s findings and further claims that the discharge of employee Robert Montgomery violated § 8(a)(4) as well as § 8(a)(3). We agree with the union that the discharge of Montgomery violated § 8(a)(4). We hold that substantial evidence does not support the Board’s finding that Stevens violated §§ 8(a)(1) and (3) of the Act in issuing two verbal warnings to Montgomery. We set aside the Board’s findings and order in this respect. In all other instances, we find that the Board’s decision is supported by substantial evidence, and, as modified, we enforce the Board’s order.

I.

This case arises from a campaign to unionize the company’s textile manufacturing plants in Rocky Mount, Virginia. Richard Cruze was plant manager; Richard Hodges was weaving room superintendent in charge of 832 looms; and T. J. Griffin was group manager of the South Boston, Virginia region. The plant’s employees began organizing in support of the union in May, 1976. In mid-August 1976 the union sent a representative to the site and he began formally to organize pro-union employees. Robert Montgomery and Donald Thurmon were members of the union’s in-plant organizing committee and among the most outspoken advocates of the union. They signed authorization cards early in the campaign, solicited cards from other employees and distributed union literature.

Other facts will be stated later with respect to the specific violation of the Act found by the Board to which they relate. But because the company asserts there is a common factor which pervades all of the Board’s findings and undermines its decision, it is appropriate that we address it at the outset of this opinion. The factor is the company’s long and substantial history of repeated significant violations of the Act. The company claims it is not only contrary to law but also “reprehensible” for the Board to consider this history as evidence of improper motive in personnel actions or as a factor contributing to the coercive nature of company speeches and notices to employees. We disagree. Certainly a heritage of intransigence could seldom provide the sole basis for a finding of unfair labor practices. See Florida Steel Corp. v. NLRB, 587 F.2d 735, 744 (5th Cir. 1979). However, in carrying out its administrative and enforcement function under the Act, the Board is not required to blind itself to past infractions as is a judge or jury in determining the guilt or innocence of a criminal defendant. That history is relevant to the two types of alleged violations in this case. In considering [681] the § 8(a)(3) charges, the Board’s task was to unearth the motive behind company personnel actions in disciplining and discharging employees. Steven’s unrivaled willingness to violate the law in the past is just as material to the issue of motive as are the disciplinary records of employees relied upon so heavily by the company to justify the disciplinary action it took. In considering § 8(a)(1) charges, the Board was required to assess the impact of a supervisor’s speech on the mind of an employee under the circumstances of a particular case. It is only rational for the Board to conclude that words which represent acceptable argument and opinion in many contexts may take on a more coercive tone in the mind of an employee who considers them against a backdrop of intransigence and retaliation.

There is no unfairness in the Board’s partial reliance on the company’s labor relations history, for it is within the company’s power to put an end to that history. Of course the company need not abandon its opposition to unionization and embrace the union. It need only exhibit to the Board, to the courts, and — most importantly — to its own employees that it is willing to assert its opposition within the limits imposed by the Act. Affirmative steps exhibiting such a willingness or a sustained period of time without serious violations will lead this court to discount Board findings based substantially on company history. Nevertheless, the limits of what is permitted and what is proscribed under the Act are flexible and dependent upon the circumstances of particular cases. As a consequence, the company cannot avoid the shadow of its past by conducting its operations along the outermost fringes of what other employers have been permitted to do in other contexts. If it chooses to take such a course, then it should not be heard to complain when it reaps the harvest of its earlier lawlessness.2

II.

§ 8(a)(3) Violations.

The employer’s motive is the focal point in determining whether an employer has discriminated “in regard to hire or tenure of employment or any term or condition of employment” in violation of § 8(a)(3), and the Board’s finding as to motive must be upheld if supported by substantial evidence. Perel v. NLRB, 373 F.2d 736, 737 (4th Cir. 1967). The mere presence of legitimate business reasons for disciplining or discharging an employee does not automatically preclude a finding of discrimination. “[I]t is enough that a discriminatory motive was a factor in the employer’s decision.” Neptune Water Meter Co. v. NLRB, 551 F.2d 568, 569 (4th Cir. 1977). The Board’s finding of a § 8(a)(3) violation should be upheld where there is a basis in the record for concluding that discipline would not have occurred, or would have taken a milder form, except for an employee’s union activity. Id. at 570.

A. Donald Thurmon.

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J. P. Stevens & Co. v. National Labor Relations Board, 638 F.2d 676 (4th Cir. 1980).

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