
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1604                           NATIONAL LABOR RELATIONS BOARD,                                     Petitioner,                                          v.                          CRAFTS PRECISION INDUSTRIES, INC.,                                     Respondent.                                 ____________________                       ON PETITION FOR ENFORCEMENT OF AN ORDER                        OF THE NATIONAL LABOR RELATIONS BOARD                                 ____________________                                        Before                               Torruella, Circuit Judge,                                          _____________                            Aldrich, Senior Circuit Judge,                                     ____________________                               and Stahl Circuit Judge.                                         _____________                                 ____________________            Harold N.  Mack with whom Benjamin  Smith and Morgan,  Brown & Joy            _______________           _______________     ____________________        were on brief for Respondent.            Jill  A.  Griffin  with  whom  Howard  E.  Perlstein,  Supervisory            _________________              _____________________        Attorney, Jerry  M. Hunter, General  Counsel, Yvonne T.  Dixon, Acting                  ________________                    ________________        Deputy  General  Counsel,  Nicholas  E.  Karatinos,  Acting  Associate                                   _______________________        General  Counsel,  Aileen  A.  Armstrong,  Deputy   Associate  General                           _____________________        Counsel,  and  National  Labor  Relations  Board  were  on  brief  for                       _________________________________        Petitioner.                                 ____________________                                  February 15, 1994                                 ____________________                      ALDRICH, Senior Circuit  Judge.  This is  an action                               _____________________            by the  National Labor  Relations Board  to enforce  an order            against Crafts  Precision Industries,  Inc., a  manufacturer,            hereinafter Crafts, or Respondent.  Originally there were two            complaints.    Simplifying  complaint  number  26,573,  filed            October  27, 1989,  it alleges,  in substance,  that  in July            1989, Crafts refused to bargain by partially transferring its            polycrystalline department from Massachusetts to its Illinois            facility.   This transfer, hereinafter the PDT, allegedly was            an  unfair  labor  practice  designed  to  discourage  lawful            employee  activities.    The  complaint  sought  its  return.            Acting General  Counsel, (Counsel),  concedes that,  although            there was some other language in the complaint, the propriety            of this transfer  was the sole issue, in  accordance with the            charge.                      On February 14,  1990 counsel for the  Union signed            and  filed a  new  charge, numbered  27,070,  reading in  its            entirety,                           The    above-named   Employer    has                      discriminated  against  employees because                      of  their   participation  in   protected                      activities.[1]            Thereafter,  on April  23,  1990 the  Union  filed a  further            charge, given the same number, stating,                                            ____________________            1.  On the  issue of  notice, as well  as satisfying  section            10(b)'s six  months limitation,  the Board's brief  describes            this as "plain  language."  It may be plain, but it is hardly            explicit.                                         -2-                           On  or about  August  22, 1989,  the                      above-named Employer, by its officers and                      agents,  laid  off  John  Kierstead,  Tom                      McCullough,   William      Hillson,  Kien                      Nguyen, Son Le, Terrance Crowley, Minh Ha                      and  Thinh Pham  because  of their  union                      activities.                      On  April 30, 1990 complaint No. 27,070, was filed,            stating,                           7.   On  or about  August 22,  1989,                      Respondent   laid   off   the   following                      employees:                        John Kierstead      Terrance Crowley                        Tom McCullough      Son Le                        William Hillson     Minh Ha                        Kien Nguyen         Thinh Pham                           8.   The  layoffs  of the  employees                      referred   to   above  in   paragraph   7                      resulted,  in  whole  or  in  part,  from                      Respondent's  partial  transfer   of  its                      polycrystalline   department   from   its                      Canton facility to  its Illinois facility                      in July, 1989.                           9.     Respondent  engaged   in  the                      conduct  described above  in paragraph  7                      because the  employees named  therein and                      other  employees  joined,  supported,  or                      assisted  the   Union,  and   engaged  in                      concerted activities  for the  purpose of                      collective bargaining or other mutual aid                      or protection, and in order to discourage                      employees   from    engaging   in    such                      activities or other  concerted activities                      for the purpose  of collective bargaining                      or other mutual aid or protection.                      We must,  however, back  up.   Case No.  26,573 was            called for trial on  March 19, 1990.   At the outset  Counsel            moved   orally  to  consolidate  it  with  Case  No.  27,070.            Respondent asserted  that "under Collier"  there should first                                             _______                                         -3-            be  arbitration.  Counsel's  response was that  there need be            none because  the two cases  were related.2  The  ALJ allowed            the motion, saying he would "hear further argument at the end            of  this case."  He  then proceeded to  hear the 26,573 case,            only.                      We  find, however, that  by letter of  February 16,            1990, Crafts learned that three of the  eight employees later            named in  the April  enlargement were,  allegedly, discharged            for  individual  reasons  as  well  as because  of  the  non-            negotiated PDT.   When  this second  "consolidated" case  was            later  tried, Counsel,  though  satisfying  the  ALJ  of  the            wrongfulness of  this transfer, did  not show it cost  any of            the named  employees' jobs.   Instead  the offered  proof was            simply that three of the group were wrongfully  discharged on            account of individual lawful, but displeasing conduct.                      On this basis Crafts complains that the charge that            prevailed was not made within Section 10(b)'s six months from            August 22, 1989, and  that this was a  jurisdictional defect.            Even  if  the February  14,  1990  charge  were construed  as            insufficient, Crafts must fail.   The six months provision is            not   jurisdictional,  but   is   an   ordinary  statute   of            limitations, see NLRB v. Silver  Bakery, Inc. 351 F.2d 37, 39                         ___ ____    ____________________            (1st Cir. 1965), and, as such, may be waived.  C.E.K.  Indus.                                                           ______________                                            ____________________            2.  It is now the Board's position  that the cases  were  not            related.                                         -4-            Mechanical Contractors, Inc.  v. NLRB, 921 F.2d 350,  351 n.2            ____________________________     ____            (1st Cir.  1990).   Immediately prior to  the hearing  on the            27,070 complaint Crafts  knew of the  separate claims of  the            three individuals.  It did not seek to amend its pleadings or            make any  attempt to object on  the ground of lateness.   The            Board  first heard of Crafts'  Section 10(b) objection by way            of an  objection taken to its  opinion.  Even  were the point            valid, it was too late.                      We  turn to  the case  before  us.   The Board  has            affirmed the ALJ's  finding that five of the  eight employees            named in the second complaint  were discharged not because of            the  machinery  transfer, but,  rather,  solely for  economic            reasons and thus  not as a result of the PDT,  found to be an            unfair labor practice  by the ALJ.  However,  it reversed his            finding  that the PDT was  an unfair labor practice, finding,            instead,   that   it,   too,  was   economically   justified.            Correspondingly,  it found  that  Crafts' allegedly  improper            statement that it  would make the  transfer unless the  union            agreed to  a modification in  the contract was not  a threat,            but a fair announcement.   Accordingly, all that is before us            is the Board's affirmance of the ALJ's finding against Crafts            with  respect to  laying  off  three individuals,  Kierstead,            McCullough and Hillson.                                         -5-                      The  ALJ   and  the   Board  found   that  economic            considerations   justified  discharges,3   but  that   unfair            reasons  predominated in  the case  of  these three.   It  is            common  ground that  this is  a  "mixed motive"  case, to  be            governed  by the shifting-burden analysis in Wright Line, 251                                                         ___________            N.L.R.B. 1083 (1980),  enf'd, 662 F.2d  899 (1st Cir.  1981),                                   _____            cert.  denied,  455  U.S.  989  (1982).   Under  N.L.R.B.  v.            _____________                                    ________            Transportation  Management Corp.,  462 U.S.  393 (1983),  the            ________________________________            Supreme Court upheld the Wright Line  analysis, stating it as                                     ___________            follows:                      the General Counsel  carrie[s] the burden                      of persuading the Board that an antiunion                      animus  contributed  to   the  employer's                      decision  to  discharge  an  employee,  a                      burden that does not shift, but . . . the                      employer,  even if it  fail[s] to meet or                      neutralize the General Counsel's showing,                      [can] avoid the  finding that it violated                      the   statute  by   demonstrating  by   a                      preponderance  of the  evidence that  the                      worker would have  been fired even if  he                      had not been involved with the union.            Id. at  395.  See also Herrick &  Smith v. N.L.R.B., 802 F.2d            ___           ___ ____ ________________    ________            565, 570 (1st  Cir. 1986) (employee's protected  conduct must            be a "substantial or motivating factor for the discharge").                      In  reviewing the Board's  findings, the court will            not  "displace   the  Board's  choice   between  two   fairly            conflicting  views, even  though the court  would justifiably                                            ____________________            3.  Crafts  presented  evidence that  its  sales  had dropped            considerably;   that  it  had  laid  off  three  other  union            employees in July,  and had reduced its  non-union management            support staff by some 30%.                                         -6-            have made a different choice had the matter been before it de                                                                       __            novo."  Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 488            ____    ______________________    ________            (1951).    However, "a  reviewing  court is  not  barred from            setting aside a Board decision when it cannot conscientiously            find   that   the  evidence   supporting   the  decision   is            substantial, when viewed in the  light that the record in its            entirety furnishes, including the body of evidence opposed to            the Board's view."  Id.                                ___                      Respondent argues, on the basis of this last quoted            clause,  that  on  the affirmative  finding  of  the economic            necessity of layoffs, with no  finding that more layoffs were            made than necessary, the evidence was insufficient to support            the Board's findings, (1) that  the three employees were laid            off because  of their protected  activity, and  (2) that  the            company had  failed to  show that the  three would  have been            laid off regardless of their union activity.                      Hillson                      _______                      In July 1989, Hillson complained to McCullough, the            chief union  steward, that  he had not  received a  pay raise            resulting from an earlier  successful grievance.   McCullough            pursued the matter  with management twice  in July and  again            within a week  before the August layoffs.   There was nothing            else by way of a prima facie case.   We may agree that timing            can be an important factor in determining whether a discharge            is  motivated by the employee's protected activity.  N.L.R.B.                                                                 ________                                         -7-            v. Vemco, Inc.,  989 F.2d 1468, 1479, amended,  997 F.2d 1149               ___________                        _______            (6th  Cir.  1993).    Here,   however,  we  face  an  unusual            situation;  the Board  found that layoffs  at that  time were            justified.   When  a  mass  layoff is  justified,  it is  not            unlikely  that  some affected  employees  will have  recently            engaged  in minor protected  conduct.  That,  standing alone,            should not establish a prima  facie case.  Indeed, we suggest            that  to hold  so would  be wrong  in principle.   Employees,            aware of the fact that reductions were imminent, could strive            to make  minor  trouble  and  thus  place  themselves  in  an            automatically protected group.  We consider it speculative to            say the  Board carried its  burden.  Rather, that  it reacted            automatically  here seems  confirmed  by  its  findings  with            respect to Kierstead.                      Kierstead                      _________                      Like Hillson, Kierstead claimed that Respondent was            not complying with obligations that arose out of a previously            successful   grievance.    The  Board  found  not  only  that            Kierstead was laid off just days after filing his labor grade            grievance, and just two weeks after being reinstated by court            order, but also that the  company had given Kierstead a false            reason for its failure to reinstate him at his previous labor            grade --  that the PCD  operations in Massachusetts  had been            fully terminated, a claim retracted by the company at the ALJ            hearing.    If  this  made out  a  prima  facie  case,  it is                                         -8-            rebutted.   Four  employees  were  laid  off  in  Kierstead's            department, one of whom,  Son Le, was in a higher labor grade            than Kierstead.  The ALJ  and the Board found that the  other            three layoffs,  including Le's, were  economically justified.            As  it  is  undisputed  that  seniority  was  honored in  the            layoffs, Kierstead  cannot argue that another employee should            have been chosen in his place; all were either more senior or            in  considerably higher  labor grades.4    Further, the  fact            that Respondent reached  beyond Kierstead's  labor grade  and            into  Le's indicates  that  Kierstead  was  not  singled  out            unfairly;  in Kierstead's division, as in the Natural Diamond            division,  Respondent exhausted the lowest labor grade before            reaching into  a higher grade.5  No claim  was made, by Le or            Kierstead, that  Le was laid  off as a cover  for Kierstead's            layoff,  despite the  presence  of  the union  representative            throughout the hearing.  See,  e.g., N.L.R.B. v. Jack  August                                     ___   ____  ________    ____________            Enterprises,  Inc., 583  F.2d 575,  578-79  (1st Cir.  1978).            __________________            Given the  Board's unchallenged findings  regarding the other                                            ____________________            4.  The  bargaining  agreement  provided  that  in  selecting            employees for layoff, "seniority shall be the deciding factor            among   employees  physically   fit  and   competent  through            knowledge, skill,  and  efficiency to  perform the  available            work."  Agreement at   12(b); T. & E. A. at 347.            5.  The  bargaining agreement also provided that "In the case            of  layoff,  an  employee  displaced  from  his  occupational            grouping  may exercise his  shop seniority and  bump into any            job in  the same or  lower labor grade  providing he is  then            qualified to perform  the work . . ."  Agreement  at   12(a);            T. & E. A. at 347.                                         -9-            layoffs  in this department,  Kierstead would have  been laid            off regardless of his union activity.                      McCullough                      __________                      With  respect to McCullough  there was more  to the            case, though on both sides.   From Crafts' standpoint, it did            away  with his position of  inspector, and provided that each            worker  should inspect his  own work.   Pappas, Crafts' chief            officer, testified that  he had contemplated that  this would            effect a substantial saving.  As against this the Board noted            that  this had  been done,  if at  all, in his  head, without            paper analysis.   To this  Pappas replied that it  had worked            out to save some $20,000.  It  would be difficult to say that            this affair was more than a draw, and insufficient to justify            a conclusion  either way.   The operator  of a  small company            must normally do much in his head.  There was, however, more.            For  over  ten  years  McCullough  had  been  union  steward,            responsible for  pursuit  of union  members' grievances  with            management.  In  December, 1988,  he received  a labor  grade            increase, and was  told by his supervisor that  he would have            received the increase  at least two years earlier  had it not            been for  his union  activities.   Pappas  became angry  with            McCullough in June 1989 when  he refused to move the location            of  a vote on  a working foreman  proposal.  After  the vote,            Pappas asked for  the vote total,  but McCullough refused  to            tell him.  Twice in July and once during the week  before the                                         -10-            layoffs in August, McCullough pursued a pay rate dispute with            management on  behalf of Hillson.   On August  15, McCullough            discussed with his supervisor Kierstead's pay  grade dispute,            and his supervisor told McCullough  that his name had come up            in a management conversation "with some disfavor" and that he            should be  on his  best behavior.   McCullough discussed  the            same issue with Pappas on August 17, and filed a grievance on            Kierstead's behalf the next day.                      The Board held that this was sufficient evidence of            "animus to McCullough's union activities by the Respondent up            to the time immediately preceding his layoff."  Although, for            reasons  already  given,  we  could  not  accept  all  of its            reasoning,  we cannot  fault  the  Board  in  this  instance.            Obviously  a union  steward will  not  be management's  fair-            haired boy  or he  would quickly lose  favor with  the union.            Correspondingly,   we   would   think   occasionally   heated            disputes --  depending,  perhaps, on  personalities  --  must            occasionally occur.6  It would seem unreasonable that a union            steward  could have  an ace-in-the-hole safe  conduct against            lay-off   by  the  fact  that  his  pursuing  grievances  was            sometimes  irritating.   However, there  was  more than  that            here.    One  does  not   punish  a  steward  for  his  union            representation.   We find the Board  was warranted in holding                                            ____________________            6.  We  note  with  some surprise  that  the  Board seemingly            charged against  Pappas the fact  that he fought  a grievance            "vigorously."                                         -11-            it had a prima facie case.  Nor can we say  that Respondent's            showing that  it would  have done  away with  the inspector's            position in any event was  compelling as matter of law.   The            work required somebody's time.                      The order as  to McCullough is  enforced; otherwise                      ___________________________________________________            denied.  No costs.            _______                                         -12-
