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National Labor Relations Board v. United States Railway Equipment Co.

February 3, 1970

NATIONAL LABOR RELATIONS BOARD, PETITIONER,
v.
UNITED STATES RAILWAY EQUIPMENT COMPANY, RESPONDENT



Castle, Chief Judge, Hastings, Senior Circuit Judge, and Kiley, Circuit Judge.

Author: Hastings

HASTINGS, S. J..

This matter is before us on application of the National Labor Relations Board pursuant to Section 10(e) of the National Labor Relations Act, as amended, 29 U.S.C.A. § 151 et seq., § 160(e), for enforcement of its Order dated June 28, 1968, and reported at 172 NLRB No. 51.

By that Order, the Board directed respondent United States Railway Equipment Company, Washington, Indiana, (Company) to cease and desist from violating Section 8(a)(1) of the Act, 29 U.S.C.A. § 158 (a)(1),*fn1 by effectuating changes in working conditions for the purpose of retaliating against its employees for supporting a labor organization; discriminating against its employees by assigning them more difficult jobs because of their union activities; and promising its employees benefits if they voted against a union. The Board further ordered the Company to cease and desist from violating Section 8(a)(2) of the Act, 29 U.S.C.A. § 158(a)(2),*fn2 by assisting and contributing support to a labor organization. Affirmatively, the Board ordered the Company to offer to reinstate to his former job an employee allegedly transferred because of his union activity and to post the usual notices.

The Company, a wholly owned subsidiary of the Evans Product Company, is engaged in the manufacture and repair of railway cars at plants in Blue Island, Illinois; Plymouth, Michigan; and Washington, Indiana. It maintains collective bargaining agreements with the United Steelworkers of America, AFL-CIO, (Steelworkers) at its Illinois and Michigan plants. Its Washington, Indiana plant, the only one involved here, has been unorganized since the Company commenced operations there early in January, 1966.

On March 2, 1966, the Brotherhood of Railway Carmen of America, AFL-CIO, (Carmen)*fn3 filed a representation petition with the Board.*fn4 It was defeated in an election held April 19, 1966. About a year later, on March 23, 1967, the Steelworkers filed a representation petition.*fn5 The Carmen and Local 144, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, intervened. An election was held May 23, 1967. A majority of the votes were cast for the three unions but none received a clear majority. The Carmen received the highest number of votes, with no union being the next highest choice. A runoff election between the Carmen and "No Union" was held August 8, 1967.

The Carmen were defeated in the runoff. Seventy-three votes were cast for the Carmen and ninety-six against, with seven challenged ballots. The Carmen filed timely objections to the runoff election and also filed the unfair labor practice charge in the instant case. The proceedings were consolidated for hearing.

Several changes in working conditions and one change in an employee's job content shortly after the May, 1967 election form the basis of alleged violations of Section 8(a)(1) by the Company. It is undisputed that prior to that election the Company operated its Indiana plant under liberal rules and practices. It is also undisputed that many of these practices were altered following that election and before the August, 1967 runoff.

Prior to the May, 1967 election, the Company distributed paychecks during the workday whenever they arrived from its Michigan facility. This resulted in a number of employees standing around comparing paychecks and in some employees leaving the plant in the middle of the workday. Employees all took a morning break at the same time and frequently failed to return to work promptly at the end of the allotted ten minutes. Some employees took an additional, unauthorized break in the afternoon. At the end of the day, employees were allowed a ten minute clean up and tool storage period even though a posted "Agreement" (fully discussed below) provided for only a five minute period. Prior to the May election, employee Roy Berry, a leading advocate of the Carmen, welded or placed sole plates most of the time and only occasionally performed the allegedly more arduous job of driving rivets.

After the May election several changes were made by the Company. Paychecks were distributed only at the end of the shift. A system of staggered morning breaks was instituted and the beginning and the end of the ten minute break period was signaled by a system of warning whistles and sirens. It was announced that afternoon breaks were not permitted and that the clean up and tool storage period would be five minutes. Roy Berry was permanently assigned to the task of driving rivets.

The trial examiner found that, with the exception of the change in the clean up period, all of these changes were prompted by legitimate business reasons and not by a desire to retaliate against employees for exhibiting a preference for unionization. The Board found all the changes retaliatory and held each constituted a violation of Section 8(a)(1), supra.

Our review of factual findings by the Board is limited to determining whether such findings are supported by substantial evidence on the record considered as a whole. Universal Camera Corp. v. NLRB, 340 U.S. 474, 487-88, 491, 95 L. Ed. 456, 71 S. Ct. 456 (1951), Revere Camera Co. v. NLRB, 7 Cir., 304 F.2d 162, 164 (1962). Inferences reasonably drawn by the Board may not be set aside simply because we would have drawn different inferences. NLRB v. Southern Bell Telephone & Telegraph Co., 319 U.S. 50, 60, 87 L. Ed. 1250, 63 S. Ct. 905 (1943); Revere Camera, supra at 164. We do not sit to try labor cases de novo. NLRB v. Stafford Trucking, Inc., 7 Cir., 371 F.2d 244, 249 (1966).

However, our task on review is made more "difficult when the Labor Board seems to entirely disregard the findings and conclusions of a Trial Examiner." Flack v. NLRB, 7 Cir., 327 F.2d 396, 399 (1963). In such a case, we are instructed by Universal Camera to "give to the examiner's report such probative force as it intrinsically commands" as part of the "record considered as a whole." 340 U.S. at 495.

The Supreme Court further explained the use of the examiner's findings in the same opinion, at 496: "We do not require that the examiner's findings be given more weight than in reason and in the light of judicial experience they deserve. The 'substantial evidence' standard is not modified in any way when the Board and its examiner disagree. We intend only to recognize that evidence supporting a conclusion may be less substantial when an impartial, experienced examiner who has observed the witnesses and lived with the case has drawn conclusions different from the Board's than when he has reached the same conclusion. The findings of the examiner are to be considered along with the consistency and inherent probability of testimony. The significance of his report, of course, depends largely on the importance of credibility in the particular case." Thus, although the Board gave little weight to the findings and conclusions of the examiner, "we may not brush them lightly aside." United States Steel Co., a Corporation (Joliet Coke Works) v. NLRB, 7 Cir., 196 F.2d 459, 463 (1952).

Two central witnesses at the hearing were Plant Manager John A. Meredith, who was largely responsible for the above changes, and employee Bernard Roach who was a member of the Carmen's Union and active in its organizational and election campaign. Roach testified that Meredith told him shortly after the May election that the employees were "going to live hard * * * from now on." He further testified that Meredith made clear his anger over the election results and detailed the various changes in rules, practices and in Berry's job content that he was going to put into effect.

Meredith testified to the same conversation. He admitted that he said that he was disappointed in the outcome of the election but denied making statements about the men "living hard," about changes in plant rules and practices or about Berry. In addition, several of ...


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