National Labor Relations Board v. Townsend and Bottum, Inc.

722 F.2d 297
CourtCourt of Appeals for the Sixth Circuit
DecidedJanuary 12, 1984
Docket82-1055
StatusPublished
Cited by4 cases

This text of 722 F.2d 297 (National Labor Relations Board v. Townsend and Bottum, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
National Labor Relations Board v. Townsend and Bottum, Inc., 722 F.2d 297 (6th Cir. 1984).

Opinions

JOHN W. PECK, Senior Circuit Judge.

The National Labor Relations Board (Board) petitions this court seeking enforcement of its order holding Townsend and Bottum, Inc. (T & B) in violation of §§ 8(a)(1) & (3) of the National Labor Relations Act (NLRA), 29 U.S.C. §§ 158(a)(1) & (3). The Board found that T & B had discriminated in favor of members of Local 70 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO (Local 70) by laying off other workers earlier and at a higher rate than Local 70 members during the final stages of a construction project. After careful consideration of the entire record in this case we affirm the Board’s decision and enforce its order.

T & B, a Michigan corporation with its principal place of business in Ann Arbor, Michigan, is engaged in the construction business at various locations around the state. During 1979 T & B became the genera] contractor at a West Olive, Michigan project constructing a power plant for the Consumers Power Company. Employees at the project consisted of members of [299]*299Local 70, as well as members of various sister locals in the United States and Canada. These employees were supplemented by a number of nonunion workers. By the end of 1979 there were approximately 387 employees at the West Olive, Michigan project, 80 of whom were members of Local 70.

Beginning in December, 1979, as the project neared completion, T & B began laying off workers. Sometime thereafter in December, 1979 or January, 1980, Robert Knowles, an employee at the work site, asked Mike Duffy, a foreman for T & B, about the order of layoffs. Duffy replied that nonunion subjourneymen1 would be laid off first, then Canadians, and finally permit hands.

Otis Fahl, who had succeeded Chester Krupiczewicz as Local 70’s business manager on January 10, 1980, indicated in a conversation with T & B officials that he intended to honor previous arrangements made between his predecessor and the company. Shortly before his death, Krupiczew-icz had demanded that Robert Shilander, Project Superintendent for T & B, give Local 70 members a hard look before he laid them off.

Thereafter, between January 18, 1980 and February 15, 1980, T & B laid off approximately 153 workers, only 3 of whom were members of Local 70.2 Robert Ferris, main steward for Local 70 during the early stages of the West Olive, Michigan project, and Shilander estimated by about the end of February or March all of the nonunion employees working on the job site had been laid off. By May, 1980, all but a handful of those working at the job site were Local 70 members.

Several nonmembers of Local 70, including Paul Vander Ploeg, filed unfair labor practice charges alleging that T & B’s selections for layoffs discriminated in favor of Local 70 members in violation of §§ 8(a)(1) & (3) of the NLRA. They also alleged that Local 70, by failing to register or refer employees, pursuant to a hiring hall agreement, had discriminated against them in violation of §§ 8(b)(1) & (2) of the NLRA, 29 U.S.C. §§ 158(b)(1) & (2).3

At the hearing, Shilander testified that he had made the layoff selections with the assistance of recommendations of T & B’s general foreman and other foremen and supervisors at the project. The foremen considered an employee’s experience, whether his job assignment was completed, and whether his special skill was still needed at the construction site. Shilander conceded, however, that he had made no individual evaluations, but had only checked layoff recommendations to avoid overall glaring inequities. The company kept no records of reasons for individual layoffs and there were no written criteria or standards for layoffs. None of the foremen or supervisors involved in the alleged determinations of layoffs testified at the hearing. After the General Counsel completed his case, T & B elected to call no witnesses, relying on the pleadings and its cross-examination of adverse witnesses.4

Applying the test developed in Wright Line, A Division of Wright Line, Inc., 251 N.L.R.B. 1083 (1980), enforced, 662 F.2d 899 (1st Cir.1981), cert. denied, 455 U.S. 989, 102 S.Ct. 1612, 71 L.Ed.2d 848 [300]*300(1982), the administrative law judge (ALJ) held that the General Counsel had made out a prima facie case of discrimination under § 8(a)(3). The ALJ then found that T & B had failed to satisfy its burden of proving that the alleged discriminatees would have been laid off absent their status as nonmembers of Local 70. The ALJ therefore held that T & B had violated §§ 8(a)(1) & (3), ordering reinstatement and back pay. The Board affirmed the decision of the ALJ in full and now petitions this court for enforcement of its order.

Before this court, T & B initially challenges the Board’s use of the Wright Line test to find a violation of § 8(a)(3) in this case. T & B urges that the Board’s finding a violation based solely on the General Counsel’s prima facie showing runs counter to § 10(c) of the NLRA, 29 U.S.C. § 160(c), and to 29 C.F.R. § 101.10(b), which require the Board to prove an unfair labor practice by a preponderance of the evidence in the record.5 We disagree.

In its Wright Line decision the Board promulgated a procedural test applicable in employee discharge cases under § 8(a)(3) where mixed motives were alleged for the discharge. The Board in Wright Line not only attempted to resolve confusion over the proper methodology for addressing such cases, primarily due to a variety of prior tests, but also sought to fairly balance the competing goals of allowing an employee to freely exercise his § 7 rights under the NLRA while also permitting an employer to discharge workers for legitimate reasons. Wright Line, supra, at 1088.6 With these policies in mind, the Board assigned the General Counsel the initial burden of making a prima facie showing that a substantial or motivating factor in the discharge was pro- or antiunion animus. Once such a showing is made, the burden of proof shifts to the employer to demonstrate that the discharge would have occurred absent the protected activity. Wright Line, supra at 1088-89. If the employer does not satisfy his burden of proof by a preponderance of the evidence, the discriminatee prevails.

The Wright Line test was approved by the Supreme Court in NLRB v. Transportation Management Corp., -U.S.-, 103 S.Ct. 2469, 76 L.Ed.2d 667 (1983).7 In Transportation Management, the Board had ruled that the General Counsel made out a prima facie showing of antiunion animus. The employer had failed, however, to prove the employee would have been discharged absent his protected activity.

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