Justak Bros. & Co. v. National Labor Relations Board

664 F.2d 1074
CourtCourt of Appeals for the Seventh Circuit
DecidedNovember 25, 1981
DocketNo. 81-1132
StatusPublished
Cited by1 cases

This text of 664 F.2d 1074 (Justak Bros. & Co. v. National Labor Relations Board) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Justak Bros. & Co. v. National Labor Relations Board, 664 F.2d 1074 (7th Cir. 1981).

Opinion

SWYGERT, Senior Circuit Judge.

Justak Brothers and Company, Inc. (hereinafter “the Company”) has petitioned this court for review of an order of the National Labor Relations Board (hereinafter “the Board”) pursuant to section 10(f) of the National Labor Relations Act, as amended, 29 U.S.C. §§ 151 et seq. (hereinafter “the Act”), 29 U.S.C. § 160(f). The Board has cross-applied for enforcement of its order pursuant to section 10(e) of the Act. Laborers Local Union 41, Laborers International Union of North America (hereinafter “the Union”) intervened in this proceeding.

The Company supplies casual labor and vacuum truck waste removal services to industrial plants. Its work force consists of office employees, mechanics and mechanics’ helpers, truck drivers, and laborers. In June 1979 the Union began an organizing campaign among the Company’s laborers and truck drivers. On July 2 the Union filed a petition with the Board seeking an election at the Company. On July 12 the Company received the Union’s request for bargaining. On July 23 the Union filed an unfair labor practice charge against the Company.

On September 28 the Board issued a complaint alleging that the Company (1) violated section 8(a)(1) by threatening and interrogating employees, promising and granting benefits to employees, and creating an impression of surveillance; (2) violated sections 8(a)(3) and (1) by discharging three employees; and (3) violated sections 8(a)(5) and (1) by refusing to bargain with the Union. After a hearing in December the Administrative Law Judge issued a decision on June 30, 1980 that sustained the allegations. On January 7, 1981 the Board affirmed the Administrative Law Judge’s findings and conclusions. It adopted the recommended order that included the issuance of a Gissel-type bargaining order. The Company then filed this petition for review.

We review three issues. First, whether there is substantial evidence on the record as a whole to support the Board’s finding that the Company violated section 8(a)(1) of the Act by restraining the coercing employees in the exercise of their section 7 rights. Second, whether there is substantial evidence on the record as a whole to support the Board’s finding that the Company violated sections 8(a)(3) and (1) of the Act by discharging three employees because of their union activities. Third, whether the Board abused its discretion in finding a bargaining order necessary to remedy the Company’s violations of sections 8(a)(5) and (1) of the Act of refusing to recognize and bargain with the Union.

I. The Independent Section 8(a)(1) Violations

The Company does not challenge the independent section 8(a)(1) violations. The provisions of the Board’s order relating to these violations, therefore, are enforced. A [1077]*1077discussion of these unfair labor practices is necessary, however, because their scope and nature are important factors in determining whether the Board properly issued a bargaining order. (See section III infra.)

In June 1979 the Union began an organizing campaign among the Company’s laborers and truck drivers. On June 26 the Union held an organizational meeting where many of the Company’s employees presented signed authorization cards to the Union representatives.

The Company’s section 8(a)(1) violations began the next day. All of the Company’s management, from owner Gary Justak to lower level supervisors,1 committed these unfair labor practices. The violations fall into six categories: (1) threatening employees with discharge or layoff; (2) threatening employees with investigations and deportations by Immigration and Naturalization Service authorities; (3) creating the impression of surveillance of union activities; (4) interrogating employees about union activities; (5) promising better wages and medical coverage to thwart union organization; and (6) actually granting wage increases to thwart union organization.

II. Sections 8(a)(3) and 8(a)(1) Violations

A. Applicable Law

Section 8(a)(3) of the Act makes it an unfair labor practice for an employer to discriminate against an employee “in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization. . . . ” An employer violates section 8(a)(3) when it discharges an employee because of his union activities.

The critical issue in a section 8(a)(3) claim is whether the employer’s actions were motivated by anti-union considerations. NLRB v. Gogin, 575 F.2d 596, 601 (7th Cir. 1978); Jay’s Foods, Inc. v. NLRB, 573 F.2d 438, 443 (7th Cir. 1978), cert. denied, 439 U.S. 859, 99 S.Ct. 176, 58 L.Ed.2d 167 (1978). Because motive is rarely open to direct proof, it is “to be determined by the Board from consideration of all the evidence and in making its determination the Board is free to rely on circumstantial, as well as direct evidence.” NLRB v. Gogin, 575 F.2d at 601.

This court recently approved the Board’s refinement of the analysis used' to determine the causal relationship between the employee’s protected activities and the employer’s action. Peavey Co. v. NLRB, 648 F.2d 460 (7th Cir. 1981). Under this analysis:

The General Counsel must first make a prima facie showing that the employee’s protected conduct was a motivating factor in the employer’s decision to discharge the employee. Once this is established,' the burden shifts to the employer to demonstrate that he would have discharged the employee even in the absence of the protected conduct.

Peavey Co. v. NLRB, 648 F.2d at 461 (7th Cir. 1981). See Statler Industries, Inc. v. NLRB, 644 F.2d 902, 905 (1st Cir. 1981). If a causal relationship between the discharge and the protected activity is shown then the employer is liable unless he sustains his burden of proof. Furthermore, an employer’s explanation need not be accepted if there is a reasonable basis for believing it “furnished the excuse rather than the reason for [an employer’s] retaliatory action.” NLRB v. Thor Power Tool Co., 351 F.2d 584, 587 (7th Cir. 1965).

As noted, Company officials made numerous unlawful threats of discharge, layoff, plant shutdown, and deportation as soon as they became aware of the Union’s organizational campaign. (See section I supra.) This court has held repeatedly that the employer’s conduct and anti-union animus are significant factors in determining motive. NLRB v. Gogin, 575 F.2d 596, 601-02; NLRB v. Tom Wood Pontiac, Inc., 447 F.2d 383, 386 (7th Cir. 1971); NLRB v. Bedford Nugent Corp., 379 F.2d 528, 529 (7th Cir. 1967).

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