Wyman-Gordon Company v. National Labor Relations Board

654 F.2d 134, 108 L.R.R.M. (BNA) 2085, 1981 U.S. App. LEXIS 11211
CourtCourt of Appeals for the First Circuit
DecidedJuly 20, 1981
Docket80-1675
StatusPublished
Cited by26 cases

This text of 654 F.2d 134 (Wyman-Gordon Company v. National Labor Relations Board) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wyman-Gordon Company v. National Labor Relations Board, 654 F.2d 134, 108 L.R.R.M. (BNA) 2085, 1981 U.S. App. LEXIS 11211 (1st Cir. 1981).

Opinion

BREYER, Circuit Judge.

Wyman-Gordon Company, the petitioner here, is a Massachusetts corporation headquartered in Worcester. Since 1976, the company has operated a facility in Danville, Illinois, devoted to the manufacture of crankshafts and other metal forgings. In June 1979, the approximately 140 hourly employees at the Danville plant elected to be represented by the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America. That success did not come easily to the union; a previous organizational drive conducted in early 1978 had fallen short, and the outcome of the 1979 election was determined by the disposition of challenges to five ballots. In March and April 1979, while the second union campaign was gaining steam, the union filed charges against the company alleging various violations of sections 8(aXl) and 8(a)(3) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1), (3) (1970). After holding seven days of hearings, the ALJ concluded with respect to most of the General Counsel’s allegations that the company was guilty as charged. Specifically, he found that the company (1) violated § 8(a)(3) both by discharging Daniel Wilson and by refusing to hire David Stark, in each instance because of the individual’s union activities, and (2) violated § 8(aXl) on thirteen separate occasions by coercively interrogating or threatening eight different employees, and one applicant for employment, with respect to their union involvement. The National Labor Relations Board summarily affirmed the AU’s decision and order. The company now petitions for review and the Board cross-applies for enforcement.

I.

The Discharge of Daniel Wilson

We first treat the question of whether the company’s discharge of Daniel Wilson violated § 8(a)(3) of the Act. 1 Our reading *138 of the record reveals the following: Wilson joined the company in February 1976 as a security guard. After transferring to the industrial relations office and then returning to his security post, in February 1978 he was accepted as an electrician trainee in the maintenance department. As part of the company’s three-year maintenance training program, Wilson was required to complete a course in industrial electricity offered in the fall of 1978 by the Danville Area Community College. The course met for two hours and five minutes twice a week from August 21 through December 17. Wilson initially attended Professor Blackburn’s section which met each Tuesday and Thursday at 9:00 a. m. Prompt attendance at this morning class proved inconvenient to Wilson, however, when in September he was transferred to the third shift at the plant. He therefore sought and received permission to attend, beginning on September 26, the afternoon session of the course, taught by Professor Rape on Mondays and Wednesdays at 1:00 p. m. As with all such trainees, the company not only paid Wilson’s tuition and provided all necessary books and materials, but also compensated him at his regular hourly rate for all time — whether on-shift or off-shift 2 — that he spent in the classroom. For on-shift classes, such compensation included an allowance of fifteen minutes each way for travel to and from the college.

Brock Blinn, a staff assistant in the industrial relations department, supervised all aspects of the training program including the college course work. By letter dated September 18, 1978, he advised the instructors of each of the four trainees studying at the college 3 that the trainees were being paid for their class time, that attendance should be recorded and that he would periodically check the attendance record; he had earlier informed the trainees that they were expected to attend. On January 2 and 3, 1979, Blinn sought to telephone the instructors in order to audit class attendance; the college was on semester break, however, and he was unable to reach them until January 15. On that day, after consulting his attendance book, Rape reported to him that Wilson had been absent from the afternoon class on nine occasions — October 23 and 25, November 1, 6, 8, 20, 27 and 29, and December 4 — and that he had been unable to complete a practical wiring exam given near the end of the course. 4 Alerted to the possibility of employee dishonesty, Blinn expanded his investigation by requesting Russell Chaney, then the accounting supervisor at the Danville facility, to determine whether Wilson had been paid for the missed classes. After examining the payroll records, Chaney discovered, and reported to Blinn, that Wilson had received payment for all scheduled classes, at least for the period from September 15 through December.

*139 On January 29, 1979, Blinn and Yernon Gehrke, the general supervisor of the maintenance department, met with Wilson and confronted him with a handwritten list of the absences earlier enumerated by Rape. In the face of conflicting testimony, the ALJ found that Wilson offered various excuses for the cited absences, “including that he was on vacation during part of the semester; that his son was ill; that he had reported late for class on two occasions; and that another class had been can-celled.” 5 Wilson admitted missing four or five scheduled classes but protested that he had reported these absences to various company officials and should not have received payment • for them. The ALJ also found that Wilson offered to make restitution “for any classes for which he had been paid” — an offer rejected by Blinn and Gehrke. 6

Following this meeting, Gehrke inquired of Barry Kennedy, a maintenance planner at the plant, whether Wilson had ever reported being absent from class; as Gehrke recollected this conversation at the hearing, Kennedy replied that Wilson “might have told me [about] one or two.” 7 Meanwhile, *140 Blinn telephoned Rape and learned that at least one of Wilson’s proffered excuses was inaccurate: Rape denied ever having can-celled or postponed a class. 8 Blinn also spoke with Chaney about the circumstances surrounding Wilson’s receipt of a twenty-five dollar cash advance as payment for two missed classes. Chaney informed Blinn that, due to an administrative oversight, payment for the schooling of the four trainees for the week ending October 28 had been omitted from their paychecks. Jacque Marbury, the payroll control clerk, had notified them of the omission and, in accordance with company policy, had offered them the option of either receiving an immediate cash advance or awaiting an adjustment in their next paychecks. Wilson had opted for the former and, on November 3, had signed a receipt and received a twenty-five dollar cash advance as compensation for his attendance at the October 23 and 25 classes. Blinn, having learned from Rape that Wilson had been absent on these dates, inquired of Chaney whether Wilson had been aware of the reason for the advance.

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Bluebook (online)
654 F.2d 134, 108 L.R.R.M. (BNA) 2085, 1981 U.S. App. LEXIS 11211, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wyman-gordon-company-v-national-labor-relations-board-ca1-1981.