I-59, 116-17. The directions for mixing the Conlux paint were printed on the cans Mahoney was assigned to mix. Rec. at I-180-81. Mahoney, despite the fact that he is farsighted, was not wearing his glasses when he read these directions. Rec. at I-180-82. Mahoney incorrectly mixed both the quantity and the type of paint, which, when applied to the stringers, did not dry. Rec. at II-135-36. As a direct result of this error, the following otherwise unnecessary work had to be performed: the paint had to be scraped off, a task made more difficult by its wet, sticky texture; the stringers had to be re-blasted; the re-blasting residue had to cleaned off; and then the stringers had to be measured, masked, and re-painted. Rec. at I-173, II-130, 132, 167-69; Resp. Exh. 1. Monday's regular production schedule had to be altered so that the shipping deadline could be met. On Monday, March 18, 1996, Encor CEO Edward Gleason, Jr. ("Gleason, Jr."), after investigating the incident and upon the recommendation of Plant Superintendent Reggie Lewis ("Lewis"), decided to terminate Mahoney. Rec. at II-171-73. Mahoney was informed of his termination that day.
The Board argues that, despite these undisputed facts, Encor nonetheless violated § 8(a)(3) by discharging Mahoney. First, Petitioner contends that significant blame for Mahoney's mistake lies with Miller. Mahoney testified that, in keeping with the common practice at Encor of seeking help from supervisors, he sought Miller's advice as to whether he had correctly mixed the Conlux paint. Rec. at I-93. Mahoney claims that a hurried Miller told Mahoney to "check it yourself, you old stupid bastard." Id. Crediting Mahoney's story as true, however, the facts remain that the relatively simple instructions were printed on the cans themselves, Mahoney did not wear his glasses when he read these instructions, and he did not retrieve his glasses and re-check the directions after Miller refused to help him. Rec. at I-180-182. The testimony of Encor paint mixer Dennis Valo that Lewis and Miller had helped him mix Conlux on a prior occasion does not alter these facts. Rec. at II-211-13. Thus, even assuming Miller did refuse to help Mahoney, Mahoney was still undeniably negligent in mixing the paint.
Petitioner next argues that Encor's anti-Union animus is apparent from Gleason, Jr.'s failure to hear directly from Mahoney regarding his version of the events before deciding to terminate him. Gleason, Jr. made his decision, however, based on the recommendation of Lewis, who did directly discuss the incident with Mahoney. Rec. at I-96. Mahoney testified, in fact, that he "explained everything" to Lewis upon returning from work that very afternoon. Id. Lewis, in turn, conferred with Miller, Mike Ahn (another supervisor), Brian Green (one of Mahoney's co-workers on the crew that day), Gleason, Jr., Dennis Gleason, and one other individual before preparing a memo to Gleason, Jr in which he recommended termination. Rec. at I-170-71; Resp. Exh. 1. We agree with Encor that its investigation was clearly more extensive than the respondent's in Dunbar v. Northern Lights Enterprises, Inc., 942 F. Supp. 138, 1996 U.S. Dist. LEXIS 14243, 153 L.R.R.M. (BNA) 2457 (W.D.N.Y. 1996), where the employer failed even to speak to the employees whose complaints were the basis of the termination. We therefore find no reasonable cause to believe that Encor's decision to discharge Mahoney was anything but adequate.
Petitioner also charges Encor with exaggerating the extent of the loss caused by Mahoney's negligence. Specifically, the Board argues that Encor's documentary evidence does not support its claim that Mahoney's error caused between $ 4000 and $ 5000 damage. Rec. at II-229-30. We agree with Petitioner that we must draw a limited adverse inference from Encor's failure to produce production records adequately documenting these costs. See Int'l Union, UAW v. NLRB, 148 U.S. App. D.C. 305, 459 F.2d 1329, 1344-45 (D.C.Cir. 1972.
We concur with Encor, however, that "taking only the work as to which there is no dispute, the magnitude of the error was clearly significant." Resp. Post-Hrg. Br. at 20. Respondent accurately summarizes the evidence as follows:
Miller and three other employees spent the entire first shift on Sunday in re-blasting the stringers. The re-blasting carried over into the second Sunday shift, with at least four employees working until 3 or 4 p.m. It then took another five hours to prepare and re-coat the stringers, including about two hours to actually spray the paint on the stringers. All of these hours were paid for at overtime rates.
Id. at 20-21 (citations to record omitted). Further, the enormous stringers had to be moved between buildings as well as handled within them. Rec. at II-207-8. Though a small portion of this work was apparently performed by guards who otherwise would have been working anyway, Rec. at II-168, 193-94, we find no reasonable cause to believe that the cost of Mahoney's error was not significant, in both monetary and time pressure terms. See N.L.R.B. v. Electro-Voice, Inc., 83 F.3d 1559, 1570 n. 17 (7th Cir. 1996) (holding that Petitioner failed to establish a "better than negligible chance that an anti-union animus motivated" discharge of employee who "destroyed several thousand dollars worth of equipment").
Finally, the Board contends that Mahoney's discharge was inconsistent with Encor's past practices in situations of similar magnitude. Without belaboring this point, we simply note our agreement with the Board's contention that the evidence adduced at the hearing fails to support Petitioner's theory. Indeed, the Board appears to recognize the weakness in this line of argument by largely abandoning it in its own post-hearing briefs.
We therefore find that though there is reasonable cause to believe that Encor was aware of Mahoney's status as a Union activist when it took the actions challenged here, we have no such cause to believe that Encor's discharge of Mahoney was unlawful. In short, we agree with Encor that it "had the right to require its experienced employees to read simple instructions correctly." Resp.'s Post-Hr'g Br. at 17. Though this finding alone is sufficient to justify denying Petitioner's request for a § 10(j) injunction, we now explain why imposing the injunctive relief Petitioner seeks would not be "just and proper" even assuming arguendo that Encor had engaged in the unfair labor practices alleged.
B. Whether Reinstating Mahoney Would Be Just and Proper
As noted supra, § 10(j) "is not meant to vindicate the private rights of employees." KMZ Corp., 879 F. Supp. at 455. Rather, the "critical determination" in deciding whether to grant a § 10(j) injunction is "whether, absent an injunction, the Board's ability to facilitate peaceful labor negotiation will be impaired." Vibra Screw, 904 F.2d at 879. In particular, "reinstatement is appropriate if the court finds that the termination of respondent's employees resulted in a 'chilling effect' on co-employees." Lightner v. Dauman Pallet, Inc., 823 F. Supp. 249, 253 (D.N.J. 1992), aff'd mem. 993 F.2d 877 (3d Cir. 1993).
Petitioner did produce limited evidence that Encor's allegedly unlawful actions produced a "chilling effect" among its employees. Mahoney testified to the reaction of an Encor employee to his termination and to the responses of several employees to his request to join the bargaining committee. Rec. at I-86, 102-6. This Court admitted all but one of these statements under the state of mind exception to the hearsay rule. See Fed. R. Evid. 803(3). While this rule provides for the admissibility of such statements for the actual state of mind expressed therein, they are not admissible to prove the cause of that state of mind. See U.S. v. Emmert, 829 F.2d 805, 809-10 (9th Cir. 1987); United States v. Cohen, 631 F.2d 1223, 1225 (5th Cir. 1980). Thus, Mahoney's testimony here is admissible to prove that the employees that he asked to join the bargaining committee expressed "fear of losing [their jobs]," Rec. at I-104, but not to prove what caused this fear. Still, we agree with Petitioner that an inference may be drawn from this state of mind that, if corroborated by additional evidence, may properly support injunctive relief. See Dauman Pallet, 823 F. Supp. at 252 n. 2.
In this case, however, we find insufficient additional evidence on which to conclude that Encor's actions in fact produced a chilling effect. First, approximately 30 to 35 people, or roughly half of Encor's employees, felt sufficiently secure to attend a Union meeting held shortly after Mahoney's termination in the presence of at least one supervisor. Rec. at I-25, 193, II-79. Not one of the employees in attendance suffered retaliation in any form. Rec. at I-27, 193. In addition, Dennis Valo--the one live witness of the several employees that Mahoney claims refused to join the Union out of fear--was not asked about and did not refer to feeling chilled by Mahoney's termination. Cf. Zipp v. Caterpillar, Inc., 858 F. Supp. 794 (C.D.Ill. 1994)(finding live testimony of several witnesses concerning chilling effect of employer's actions insufficient evidence that § 10(j) injunction was necessary to prevent irreparable harm).
In addition, the Board has not demonstrated that the public interest in peaceful labor negotiations would require the interim relief sought here (again, assuming arguendo Mahoney was unlawfully discharged). As noted supra, we must determine whether a § 10(j) injunction is needed to preserve the status quo, i.e. the "situation right before the alleged unfair labor practices took place," pending litigation. Vibra Screw, 904 F.2d at 878 and n. 5. At the time of his discharge, Mahoney was not an employee negotiator participating in an on-going bargaining process. In fact, he was not even designated to be part of the bargaining committee until after he was terminated. Rec. at I-156-58, II-40, 77. This fact alone distinguishes this case from the Third Circuit's decisions in Vibra Screw and Wellington on which Petitioner relies so heavily. In Vibra Screw, the employer fired four of the five employee members of the bargaining committee within three weeks of the first bargaining session. 904 F.2d at 878. In Wellington Hall, the employer discharged eight individuals, including five of the six members of the employee negotiating committee immediately before and after the first scheduled bargaining meeting. 651 F.2d at 905. Our Court of Appeals reversed denials of interim reinstatements in both cases, finding a clear need in each to combat the unmistakable chilling effect of the employers' actions and to preserve the collective bargaining process pending the Board's adjudication. Vibra Screw, 904 F.2d at 878-881; Wellington Hall, 651 F.2d at 906-7.
Petitioner does not claim that reinstating Mahoney is required to bring Encor to the bargaining table. Indeed, Encor assumed this obligation, albeit reluctantly, by settling claims it might otherwise have fought tooth and nail, and has sat down to bargain several times since. Cf. Id. (granting injunction where record showed "history of employer resistance to bargaining"); Konig, 895 F. Supp. 688 (granting § 10(j) relief where employer engaged in delay tactics and refused to bargain). Rather, the Board claims that the Union will have "no strength" in the bargaining process without Mahoney's reinstatement. The ambivalent evidentiary support for this assertion aside, such a claim is not persuasive if the Union did not have this "strength" when Mahoney was discharged.
For the foregoing reasons, we conclude that there is no reasonable cause to believe that Encor unlawfully discharged Jerry Mahoney on March 18, 1996, and that, even if there were, ordering his reinstatement would not be just and proper relief under the circumstances presented here. Petitioner's motion for an injunction under § 10(j) of the NLRA is therefore denied. An appropriate Order follows.
AND NOW, this 5th day of December, 1996, upon consideration of the Petition of Peter W. Hirsch, Regional Director of the Fourth Region of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, for Injunction Under § 10(j) of the National Labor Relations Act, as amended, Respondent Corban Corporations, Inc., d/b/a Encor Coatings, Inc.'s opposition thereto, the witnesses and exhibits presented by Petitioner and Respondent at the show cause hearing on October 10, 17, and 18, 1996, and all submissions of both parties, it is hereby ORDERED that the Petition is DENIED.
BY THE COURT:
J. CURTIS JOYNER, J.