On Petition for Review from the National Labor Relations Board, N.L.R.B. Nos. 22-CA-15105, 22-CA-15258, and 22-CA-15319.
Stapleton, Greenberg, and Garth, Circuit Judges. Stapleton, Circuit Judge, concurring and dissenting.
GREENBERG, Circuit Judge.
Petitioner Kenrich Petrochemicals, Inc. seeks review of a final order entered on May 31, 1989, in which the National Labor Relations Board held that Kenrich committed a host of unfair labor practices in response to its clerical workers' decision to unionize. Specifically, Kenrich challenges the Board's decision that its discharge of supervisor Helen Chizmar violated section 8 (a) (1) of the National Labor Relations Act, 29 U.S.C. § 158 (a) (1), because it was in retaliation against her relatives for participating in the union campaign. Kenrich asserts as well that the Board erred when it found that it violated sections 8(a) (1) and (3) of the Act when its president physically assaulted employee Barbara Knorowski, causing Knorowski and a co-worker, Catherine Chizmar, to be absent from work, and when Kenrich refused to reinstate Knorowski following a four month disability leave. Finally, Kenrich contends that the Board erred in its finding that the discharge of union steward, Karen McPartlan, violated sections 8 (a) (1) and (3) because she was discharged for her refusal to comply with an unlawful change in her work hours. The Board has cross-petitioned for enforcement of its order. The Board did not write a separate opinion. Rather it adopted an order of an administrative law judge whose decision and order were dated December 30, 1988.
We agree with the Board that Helen Chizmar's discharge violated section 8 (a) (1) of the Act but deny enforcement of its order that Chizmar be reinstated with backpay, as we fail to see how the order serves any legitimate remedial purpose. We have decided to reserve judgment on the lawfulness of Karen McPartlan's discharge but will remand the matter to the Board for further consideration of Kenrich's liability and the enforceability of the Board's selected remedy. In all other respects, under the appropriate standard of review, we find no basis to disturb the order of the Board. Thus, to the foregoing extent regarding Helen Chizmar the petition for review will be granted but, with the exception of our remand regarding Karen McPartlan, it will otherwise be denied.
Kenrich Petrochemicals, Inc. is a Delaware corporation headquartered in Bayonne, New Jersey, engaged in the sale and manufacture of various chemical products. Kenrich's President is Salvatore Monte, its Vice-President is his wife, Erica Monte, and its Vice-President of Operations is Charles Luciania. For approximately 20 years prior to the events in question, Kenrich's production workers have been represented by Local 8-406, Oil, Chemical and Atomic Workers International Union AFL-CIO. This petition for review concerns the organizational activities of Kenrich's clerical staff.
As of May, 1987, Kenrich's clerical staff consisted of seven employees: Barbara Knorowski, Catherine Chizmar, Karen McPartlan, Michelle Bobb, Marge McNally, Judy Kobryn and Linda Ferrano. These individuals were directly supervised by office manager Helen Chizmar. Helen Chizmar is Knorowski's sister, McPartlan's mother, and Catherine Chizmar's mother-in-law.
In May, 1987, all of the clerical employees signed authorization cards at Local 8-406's office designating the union as their bargaining representative. On May 21, 1987, the employees notified Helen Chizmar of their decision to unionize and, the following day, Kenrich received a letter from the union requesting recognition. On May 26, 1987, the union filed a petition with the Board seeking certification as the employees' representative.
Monte testified that he "felt . . . betrayed" when he received the union's letter requesting recognition. He assessed Kenrich's chances for defeating the union's organizational drive and concluded that Barbara Knorowski and Karen McPartlan would prove to be firm union supporters because unionization was "in the family culture." App. at 394.*fn1 He was unconcerned about Linda Ferrano's and Judy Kobryn's sentiments toward the union because he had already determined to make Linda Ferrano his confidential secretary, thus rendering her ineligible for the union, and Judy Kobryn was leaving Kenrich. Accordingly, Monte decided that McNally, Bobb, and Catherine Chizmar would be the swing votes in any Board election.
On June 3, 1987, Salvatore and Erica Monte and Kenrich's founder, Eric Spielgelhalder, met with McNally, Bobb and Catherine Chizmar to attempt to dissuade them from supporting the union. The three employees were not receptive to Kenrich's arguments. About a week later, Monte, in a private conversation with Catherine Chizmar, reiterated Kenrich's position and again was rebuffed. After that conversation, Monte became convinced that unionization of the clerical staff was inevitable and therefore, on June 16, 1987, he authorized Kenrich's offer of voluntary recognition of the bargaining unit pending a card count. The union rejected this offer, insisting instead on a Board election. The union prevailed in an election held on July 2, 1987 and was certified on July 10, 1987.
1. Helen Chizmar's Discharge
As noted above, the clerical employees informed their supervisor, Helen Chizmar, of their decision to unionize on May 21, 1987, the day before Kenrich received the union's request for recognition. Helen Chizmar testified that she was "shocked" when she learned of the organizational drive but that she did not inform other managers of the drive because she felt that it would be futile to raise the issue, given that Kenrich would receive the union's letter the following day. Also, she feared that Monte would suspect that she was involved in the employees' union activities if she spoke to him about the matter.
After Kenrich received the union's letter, Luciania called Helen Chizmar and several other managers to his office to discuss Kenrich's prospects for defeating the union campaign. During the meeting, Luciania showed Chizmar the letter and stated, "here, read the letter, but you probably know all about it already." To this, Chizmar said nothing. Luciania informed the managers that Kenrich was somewhat pessimistic about its prospects for defeating the union, because the employees' decision was unanimous.
Helen Chizmar testified that she became apprehensive about her job security after she learned that her three relatives, Knorowski, McPartlan and Catherine Chizmar, had signed authorization cards. On May 29, 1987, her fears materialized for at the end of the day, Monte discharged her without warning. That same day, Kenrich had received notice of the petition the union had filed with the Board seeking recognition on the basis of the card count.
Monte's purported reasons for Helen Chizmar's discharge were somewhat inconsistent. At the time of the discharge, he told her that Kenrich could no longer afford to pay her salary: "we have to let you go, Helen. We just can't afford you anymore. You're making, we think we can get somebody for $20,000 less and that's what we plan to do." Later that same day, Monte told Kenrich's buyer and admitted agent, Jill Bernicker, that he had discharged Chizmar because "[he] couldn't keep her for financial reasons and [he] was not going to put up with any union bullshit." In early June, he told Catherine Chizmar that "[he] had to fire Helen because she couldn't do the technical end of her job."*fn2 In a subsequent conversation, he told Catherine that he had fired Helen "because [he] couldn't afford her and no matter what [he] did for her, she was never happy."
At the hearing, Monte insisted that he terminated Helen Chizmar because it would be impossible for her to manage a bargaining unit which included three of her close relatives without compromising her loyalty to Kenrich:
here was going to be my office manager managing an office full of relatives, and there was no way she could properly represent me. It created a tremendous conflict of interest in my mind. How was this woman going to manage her own relatives? . . . I saw no way but to get rid of her.
App. at 409-10. Monte indicated that his concern about Helen Chizmar's conflict of loyalties was heightened by the fact that she had previously shown favoritism toward her relatives. In addition, he believed that Chizmar had advance notice of union organizing activity and had acted disloyally in failing to disclose that information to him.
2. The June 18 Incident and Knorowski's Layoff
Salvatore Monte's father died in Florida on June 14, 1987. Before leaving for the funeral, he instructed counsel to inform the union that Kenrich would voluntarily recognize it on the basis of a card count. While in Florida, he repeatedly contacted his office and became infuriated when he learned that Barbara Knorowski, along with other employees, had been attempting to persuade Linda Ferrano to support the union.
Upon Monte's return to the office on June 18, 1987, Knorowski approached him in a narrow corridor and, clasping his hand, attempted to express her condolences for his father's death. Monte pushed Knorowski's hands away, stated that he did not "want [her] fucking condolences," and continued walking down the hallway, knocking her against a filing cabinet. Knorowski immediately became hysterical and began crying, "he hit me, he hit me."
Still hysterical, she returned to her desk and informed Catherine Chizmar about the incident. Unable to calm Knorowski, Catherine Chizmar telephoned the production workers' shop steward, Bob McClean, for assistance. Monte then entered the office and, observing that Knorowski was still crying, asked, "what the hell's wrong with you[?]" Chizmar questioned Monte why he had pushed Knorowski and he replied that "it [was] none of [her] fucking business." Chizmar called Monte a "bastard" and a "hypocrite" and he countered that if she did not like the way he ran his business, she could "get the fuck out." He proceeded to push a bin of papers off Chizmar's desk and call Knorowski a "fucking cunt."
Around that time, Bob McClean arrived and asked Monte what had happened. Monte responded, "You know what happened. It's got to do with this f'ing union." After McClean left, Al Ferrante, the union's President, telephoned Knorowski and, upon overhearing Monte utter additional profanities, recommended that Knorowski and the other clerical employees leave the office. Both Catherine Chizmar and Knorowski informed Monte that they were sick and went home.*fn3 Before their departure, Monte made a second reference to the union, stating "you guys have no idea what the hell you're getting in with the fucking union."
The following day, Catherine Chizmar was examined by her personal physician, who provided her with a note which stated that she would be unable to resume work until June 25, 1987 "due to an acute exacerbation of her hypertension and an anxiety related situation." On June 19 and June 23, Knorowski's husband called Luciani to inform him that Knorowski was ill and under a doctor's care, and that he did not know when she could return to work. On or about June 22, 1987, Kenrich received a note from Knorowski's physician which stated that she would be unable to work until further notice.
On June 23, Kenrich sent mailgrams to Catherine Chizmar and Knorowski in which it accused them of faking their illnesses and advised them that they would not receive any pay for their sick days unless they submitted to an examination by Dr. Williams, a physician selected by Kenrich. On June 25, Dr. Williams examined the employees and issued 'disability certificates' for them. Knorowski's certificate stated that she was "partially incapacitated from 6/18/87 to indefinite" due to an "acute anxiety neurosis" and that she had been referred to a psychiatrist, Dr. Jacoby. Chizmar's certificate stated that she had been incapacitated from June 18 to June 25, and that her hypertension had been controlled. Following its receipt of Dr. Williams' certificates, Kenrich paid the employees for their sick days, and Catherine Chizmar returned to work without incident on June 25.
Kenrich was dissatisfied with Knorowski's original doctor's note because it did not state the nature of her illness or her anticipated date of return. Dr. Williams informed Luciani that Knorowski was "in very bad shape" and required psychiatric care. By letter dated July 1, 1987, Knorowski's personal physician, Dr. Black, informed the company that Knorowski was suffering from an "acute anxiety ...