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National Labor Relations Board v. Eastern Steel Co.

decided as amended march 3 1982.: February 19, 1982.

NATIONAL LABOR RELATIONS BOARD, PETITIONER
v.
EASTERN STEEL COMPANY, RESPONDENT



ON APPLICATION FOR ENFORCEMENT OF AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD (NLRB NO. 4-CA-10327)

Before Adams, Gibbons and Garth, Circuit Judges.

Author: Gibbons

Opinion ANNOUNCING THE JUDGMENT OF THE COURT

The National Labor Relations Board petitions for enforcement of its order directing Eastern Steel Company (Eastern) to cease and desist from several unfair labor practices, to reinstate two employees, and to bargain collectively with the Highway Truck Drivers and Helpers Union No. 107 (Union).*fn1 We enforce.

I

Eastern conducts a steel processing, warehousing and selling business at Wyndmoor, Pennsylvania. Its management consists of its owner and president, Edward J. Mammana and an employee found by the Board to be a supervisor, A. Robin Loughran. Eastern employs in its warehouse a full-time truck driver, a full-time machinist-warehouseman, and two regular part-time machinists-warehousemen, one of whom, Edward Mammana, is the president's son. In June of 1979, James Fogerty, the truck driver employee obtained from a union organizer union authorization cards which were distributed to the bargaining unit employees other than the owner's son. Signed cards for the three were turned over to the Union on June 6, and on June 8 it sent a letter to Eastern claiming to represent more than fifty percent of the employees in the warehousemen, drivers and machine operator classifications. When Eastern declined to recognize it as a bargaining representative, the Union, on June 11, 1979 filed a petition for a representation election with the Board's regional office. The unfair labor practices which are the subject of the administrative proceedings involve Eastern's reactions to the bargaining demand and the representation petition.

The Board charged that Eastern violated Section 8(a)(1) of the National Labor Relations Act, 29 U.S.C. ยง 151 et seq., by threatening employees with loss of benefits if they selected the Union as their bargaining representative, by forbidding discussions about the Union, and by interrogating employees about Union activities. It charged Eastern with violating Sections 8(a)(3) and (1) of the Act by discharging two employees for union activity. The complaint alleged, and Eastern denied, that A. Robin Loughran is a supervisor within the meaning of the Act. Substantial evidence in the record supports the finding of the Administrative Law Judge that Loughran is a supervisor.

The ALJ also found: that upon receipt of the bargaining demand president and owner Mammana asked Loughran to inquire of the truck driver, Fogerty, whether he had signed a union card; that Loughran interrogated Fogerty about signing a card; that later Loughran interrogated the full-time warehouse employee McClellan; that both denied signing cards; that Mammana interrogated part-time employee Johnson about whether anyone from the Board had come around, and about signing a card; that Johnson also denied signing; that Mammana later met with three of the four bargaining unit employees, including his son, interrogated them about signing cards and when each denied signing, charged that "somebody was lying, because he knew the cards were filled out;" that in the conversation with the three employees Mammana charged Fogerty, who was absent, of being responsible for starting the union activity and that he was a "no good bum" and a lazy worker. The Administrative Law Judge also found that Mammana expressed hostility to unions by observing that people who join unions "usually are low-life, or they can't make a go out of life"; threatened, if a union came into the warehouse, that "the place wouldn't be as lax as it is", that they would no longer receive a Christmas bonus or be covered by Eastern with Blue Cross or Blue Shield, and that Eastern would not be responsible for anyone's pension; threatened further that the practice of assigning employees to whatever work was available would cease if the employees unionized and that they would work fewer hours. The Administrative Law Judge also found that at the close of his meeting with the employees, Mammana instructed those who were present not to talk about the Union until after the representation election. The foregoing findings are supported by substantial evidence and amply justify the Board's legal conclusions that Eastern, in violation of Section 8(a)(1) of the Act coercively interrogated employees about, threatened them with retaliation for and restrained them from engaging in protected activity.

The Administration Law Judge also found that, about a week after his meeting with the employees, Mammana discharged Union adherent McClellan and Loughran laid off Union adherent Johnson; that both were discharged because Eastern knew or suspected that they had signed union authorization cards; that their discharge would destroy the Union's majority in the bargaining unit; that thereafter a temporary employee was hired; and that an offer to McClellan to rehire him as a supervisor, which would take him out of the bargaining union and justify his discharge if he later engaged in union activities, was made after McClellan filed an unfair labor practice charge with the Board, for the purpose of limiting Eastern's backpay liability. These findings of fact are also supported by substantial evidence and support the Board's conclusion that Eastern violated Section 8(a)(1) and (3) of the Act by discharging McClellan and Johnson.

The foregoing findings of fact and conclusions of law justify the Board's order that Eastern cease and desist from the interrogations, restraints and threats and that McClellan and Johnson be offered reinstatement with back pay.

II

The Administrative Law Judge also found that, when it demanded recognition on June 11, 1979, the Union had valid union authorization cards from three members of a bargaining unit which consisted of those three plus the owner's son, and that thereafter Eastern refused to bargain collectively. She concluded that in the circumstances of this case a bargaining order was an appropriate remedy, and the Board agreed. Eastern objects to the enforcement of that order, alleging that the Board's findings of fact do not justify an order and that the Board failed to articulate reasons for issuance.

It is settled by our decision in NLRB v. Permanent Label Corporation, 657 F.2d 512 (3d Cir. 1981) (en banc) that the Board may satisfy the statement of reasons requirement of Hedstrom Co. v. NLRB, 629 F.2d 305 (3d Cir. 1980) (en banc), cert. denied, 450 U.S. 996, 101 S. Ct. 1699, 68 L. Ed. 2d 196 (1981) by adopting the findings of the Administrative Law Judge who conducted the hearing. The Board followed that practice in this case, and thus we turn to those findings.

In explaining why a bargaining order remedy was appropriate, the Administrative Law Judge first observed that this was a case in which the Union started with a card majority.

In short, before Respondent began its violations of Section 8(a)(1) and (3) of the Act, all of the employees in the unit had executed operative cards designating the Union as its collective-bargaining representative. Under such circumstances, a bargaining order should issue not only in the "exceptional" case of "outrageous" and "pervasive" unfair labor practices which are of "such a nature that their coercive effect cannot be eliminated by the application of traditional remedies, with the result that a fair and reliable election cannot be held," but also in "less extraordinary cases marked by less pervasive practices which nonetheless still have the tendency to ...


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