United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 10, 1997 Decided January 16, 1998
No. 97-1068
W.C. McQuaide, Inc.,
Petitioner
v.
National Labor Relations Board,
Respondent
On Petition for Review and Cross-Application
for Enforcement of an Order of the
National Labor Relations Board
Michael A. Taylor argued the cause for petitioner, with
whom Celeste M. Wasielewski was on the brief.
Marion Griffin, Attorney, National Labor Relations Board,
argued the cause for respondent, with whom Linda R. Sher,
Associate General Counsel, and Aileen A. Armstrong, Deputy
Associate General Counsel, were on the brief. John D.
Burgoyne, Assistant General Counsel, entered an appearance.
Before: Edwards, Chief Judge, Ginsburg and Rogers,
Circuit Judges.
Opinion for the Court filed by Circuit Judge Rogers.
Rogers, Circuit Judge: Petitioner W.C. McQuaide, Inc.
seeks review of a decision and order of the National Labor
Relations Board finding that the company had violated sec-
tions 8(a)(3),(4), and (1) of the National Labor Relations Act 1
by discriminating against sixteen employees because they
engaged in union activity, and against three employees be-
cause they initiated or testified in Board proceedings. The
company contends that the Board failed to give appropriate
consideration to the company's Wright Line 2 defenses to the
section 8(a)(3) allegations, which it argues exonerated it for
acting against employees who would have been subjected to
discipline regardless of their union activities. The company
maintains that the administrative law judge ignored evidence,
ruled that several employees had been constructively dis-
charged although the complaint had not included such an
allegation, and made credibility determinations that were
unsupported by the record. Because we conclude, with one
exception, that the company's challenges to the Board's deci-
sion and order are unpersuasive, we grant the petition in part
and deny the petition in part. Conversely, we grant the
Board's cross-petition for enforcement of its order in part and
deny it in part.
I.
McQuaide is a family-owned and operated interstate truck-
ing and warehousing business. The company has successfully
resisted attempts to unionize its employees in the past, and
was found to have engaged in unfair labor practices on one
prior occasion. The instant charges arose out of McQuaide's
__________
1 See 29 U.S.C. s 158(a)(1),(3),(4) (1988).
2 Wright Line, 251 N.L.R.B. 1083 (1980), enf'd on other
grounds, 662 F.2d 899 (1st Cir. 1981), cert. denied, 455 U.S. 989
(1982).
most recent efforts to maintain a union free shop. The
company does not contest the Board's finding that it violated
section 8(a)(1) by repeatedly threatening reprisals and dis-
charges against employees for supporting the union, by coer-
cively interrogating employees about their union activities, by
creating the impression that employee's union meetings were
under surveillance, by preventing one employee from wearing
a union insignia and passing out union cards, and by telling
employees that a wage increase depended on their defeat of
the union or withdrawal of unfair labor practice charges.
Therefore, we summarily enforce the Board's order with
respect to these charges. See Grondorf, Field, Black & Co. v.
NLRB, 107 F.3d 882, 885 (D.C. Cir. 1997); Intl. Union of
Petroleum & Indus. Workers v. NLRB, 980 F.2d 774, 778 n.1
(D.C. Cir. 1992).
As to the remaining charges, we need only address two
because the company's other challenges are met by sufficient
evidence in the record to support the Board's findings.3
Those charges involve discharged McQuaide employees Tom
Boyes, Jack Boyes, and Dale Salsbury.4
An employee's discharge violates section 8(a)(3) when the
employee's union related activities were a motivating factor in
the employer's decision. See MECO Corp. v. NLRB, 986
F.2d 1434, 1436 (D.C. Cir. 1993). Under the Wright Line
test, the General Counsel of the Board must first make a
prima facie showing of the employer's unlawful motivation.
As an affirmative defense, the employer then bears the
burden of demonstrating "that it would have taken the same
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3 In reviewing the Board's decision, this court must uphold any
factual finding that is supported by substantial evidence on the
record considered as a whole, see 29 U.S.C. s 160(f) (1988), and the
court "owe[s] substantial deference to inferences drawn from these
facts." Caterair Int'l v. NLRB, 22 F.3d 1114, 1120 (D.C. Cir. 1994).
4 McQuaide does not contest that it violated section 8(a)(3) and
(1) by suspending employees Tom and Jack Boyes in January 1992
and by denying two days' work to Tom Boyes in March-April 1992.
We accordingly summarily affirm the Board's order in those re-
spects as well. Grondorf, Field, Black & Co., 107 F.3d at 885.
action even if the employee[ ] had not engaged in the protect-
ed activity." Southwest Merchandising Corp. v. NLRB, 53
F.3d 1334, 1339 (D.C. Cir. 1995). McQuaide does not contend
that the General Counsel failed to meet its burden of proving
that McQuaide had a discriminatory motive for discharging
Jack Boyes, Tom Boyes, or Dale Salsbury. Rather, the
company maintains that the ALJ and the Board failed to give
adequate consideration to its Wright Line defenses, and that
the findings that the company's proffered reasons for the
discharges were merely pretextual were not supported by
substantial evidence.
II.
Jack Boyes worked at McQuaide's Richfield, Ohio satellite
facility with his father Tom Boyes and another employee,
Dale Salsbury. On the night of August 12-13, 1992 Jack
Boyes was scheduled to drive a "shuttle" truck from the
Richfield terminal to McQuaide's headquarters in Johnstown,
Pennsylvania, but failed to report for work. He did not notify
the night dispatcher of his absence and apparently never
contacted the company again. The dispatcher attempted to
contact Jack Boyes by telephone and radio when he realized
that Jack was not coming in, but was unsuccessful. On
August 14, the company's vice president of operations in-
formed Tom Boyes that Jack Boyes had been terminated
because he had never called in to work.
At the hearing before the administrative law judge
("ALJ"), Jack Boyes testified that he had notified the dis-
patcher of his absence and that he had also telephoned the
vice president to explain that he had been ill that night. He
claimed that the vice president told him that he was fired
because of his excessive absenteeism. The ALJ, however,
discredited this testimony because it was not corroborated by
the company's telephone records and contradicted the "frank"
testimony of the dispatcher. Nevertheless, the ALJ conclud-
ed that McQuaide terminated Jack's employment "in retalia-
tion for his active role in the Union's organizing drive." The
ALJ based his finding on the shifting explanations offered by
the vice president. Despite his initial contention that he fired
Jack Boyes on August 13 for failing to report for work, the
vice president testified that the company assumed Jack Boyes
had abandoned his job after failing to hear from him for ten
days. Because of these differing explanations, the ALJ con-
cluded that the company's explanation was merely pretextual.
The Board affirmed the ALJ's finding without comment.
In addition to the vice president's testimony, the company
had offered evidence that it had discharged twenty-three
other employees for failing to call in, consistent with a
company policy requiring all drivers to contact the dispatcher
if they are unable to work. The ALJ did not refer to this
evidence in making his findings. Nor does the record permit
the court to conclude that other evidence sufficed to refute
this evidence without explanation. Although the company's
description of its action with regard to the twenty-three
employees is not as consistent as it suggests, inasmuch as its
vice president admitted that some employees were given
additional assignments after their first infraction of company
policy, it remains unclear whether in Jack Boyes' case the
firing was entirely pretextual.5 We agree with the company
that whether Jack Boyes quit by not reporting for work or
was discharged for failing to report to the dispatcher is
merely a matter of semantics. Hence, the ALJ's reliance on
the company's shifting explanations, without more, is flawed.
Therefore, we remand this issue to the Board for further
consideration of all of the evidence presented by McQuaide in
mounting its Wright Line defense, including the evidence of
past company practice. To rebut the evidence of McQuaide's
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5 Contrary to McQuaide's contention, the instant case differs
from A & T Mfg. Co. v. United Steelworkers of America, 276
N.L.R.B. 1183 (1985), where an employer met its Wright Line
burden by establishing that the discharged employee had violated a
rule requiring "employees to call in on days of absence." Unlike
McQuaide, the employer in that case consistently followed a written
rule that "specifie[d] discharge as the penalty for unreported ab-
sences." Id. at 1183. Furthermore, the employee had been
discharged after repeatedly failing to report his absences, rather
than on the basis of a single isolated incident.
unlawful motivation, the company still bears the burden of
proving that it would have discharged Jack Boyes even if he
had not engaged in union activities, see Southwest Merchan-
dising Corp., 53 F.3d at 1339, and we take no position on the
correct understanding of the company's evidence nor whether
it has met its burden.
III.
On February 18, 1993, McQuaide discharged the driver it
had hired to replace Jack Boyes, leaving Tom Boyes and Dale
Salsbury as the only drivers at its Norton, Ohio terminal.6
The following morning, Tom Boyes called McQuaide's dis-
patcher to learn if there was any work for him that day.7
The dispatcher told Tom Boyes that there was not, and that
he did not know "what ... was going on," but instructed Tom
to call the night dispatcher later in the day to see what had
developed. Similarly Dale Salsbury telephoned the dispatch-
er on the evening of Friday, February 19 and was informed
that the company "was not sending any freight out" to
Norton. He was never told to check for work the following
Monday or at any time thereafter. According to McQuaide's
records, both Tom Boyes and Dale Salsbury were scheduled
to work on Monday, February 22 but never reported in to the
company. McQuaide's vice president testified that on the
morning of February 23, he instructed the dispatcher to call
the two drivers at their homes. Specifically, he told the
dispatcher "Let's make sure we make an attempt to get a
hold of these guys, so they can't say we didn't try to call
them." The dispatcher testified that he left a message with
an unidentified female at Tom Boyes' home and a message on
Dale Salsbury's answering machine, asking each driver to
return his call. Neither driver received these messages; nor
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6 McQuaide's Richfield satellite facility was relocated to Norton
in early February 1993.
7 Tom Boyes initially testified that he had called the dispatcher
two other times on February 19 but later conceded that he called
only once that morning. The ALJ also refused to credit Tom's
testimony that he called the company on February 22.
did the company ever make another effort to contact them.
The only remaining communication between the company and
the drivers was a letter of termination, dated February 24, in
which the company informed each driver that his record had
been marked "Quit without notice."
The ALJ and the Board rejected the company's defense
that the two drivers had abandoned their jobs and concluded
that McQuaide had "constructively discharged" Tom Boyes
and Dale Salsbury on February 19 and 20, respectively, by
withholding work from them. The ALJ considered the mes-
sages left for the drivers as a "perfunctory effort" to contact
them which, coupled with the vice president's comment to the
dispatcher, suggested that the calls were merely a pretense.
Instead, the ALJ concluded that the company hoped that
discontinuance of the flow of freight to Norton would encour-
age the two union activists to quit and moved quickly to
conceal its tactics when the opportunity arose. In this re-
gard, the ALJ noted a statement made by McQuaide's presi-
dent earlier that autumn to the effect that the two drivers
would not be around much longer because they were union
supporters. The ALJ also emphasized that in the past the
company had made far more of an effort to contact its drivers
when they failed to appear for work. Furthermore, the
company did not suggest in its messages that any work was
waiting for Tom and Dale, only that they should return the
dispatcher's call. Neither did the messages indicate that the
drivers should call back by a certain date. The ALJ thus
viewed the evidence as revealing a plot to set up Boyes and
Salsbury so that they would leave their jobs, and the Board
accepted his findings.
McQuaide initially objects to the finding that Tom Boyes
and Dale Salsbury were "constructively discharged" on the
ground that the company was never charged with such a
violation in the complaint. This contention is meritless.
McQuaide was given a full and fair opportunity to litigate the
nature of the two drivers' departure. Regardless of whether
the company was found to have "discharged" or "constructive-
ly discharged" the two drivers, the evidence it proffered
in defense was equally relevant. See Taylor v. FDIC,
No. 96-5267, 1997 WL 791655, at *10 (D.C. Cir. Dec. 23, 1997)
(quoting Katradis v. Dav-El of Wash., 846 F.2d 1482, 1485
(D.C. Cir. 1988)). The company does not suggest that it
would have offered any additional evidence or pursued a
different litigation strategy if it had been charged with unlaw-
ful "constructive discharges." Therefore, the only question is
whether the ALJ and the Board's findings that the two
drivers had not voluntarily quit their jobs were supported by
substantial evidence in the record.
The drivers' behavior following their conversation with the
dispatcher casts some doubt on the constructive discharge
finding. Instead of calling in on February 22, Salsbury went
to visit his daughter near Chicago and Boyes began working
for a new employer after meeting with an NLRB investigator
about prior charges he had filed against McQuaide. The ALJ
seemed to excuse the drivers' actions by noting that they
were never told by anyone at McQuaide to call in for work on
February 22 or on any other day. But, if as McQuaide
contends, standard company policy required the drivers to
call in regularly, the fact that they were not instructed to call
would be irrelevant. Moreover, Tom Boyes was told to call
the night dispatcher on February 22 to check for work, but
never bothered to do so. Hence, viewed in isolation the
circumstances may suggest that both drivers abandoned their
jobs and voluntarily quit. But the ALJ accepted the drivers'
explanation that each had concluded that "McQuaide was
shutting down its operations at Norton and effectively firing
them," from their conversations with the dispatcher on Feb-
ruary 19. Thus, the reasonableness of this conclusion was
critical to the ALJ's finding that Tom Boyes and Dale Sals-
bury were constructively discharged.
The company contends on appeal that "[a]t most, [the
drivers] were told there was no work available for them on
February 19, 1993," not that there would be a prolonged work
shortage. Yet the record shows that the dispatcher told
Boyes that there was no work and he did not know what was
going on. Further, Salsbury was told later that same day
that no more shipments were being made to Norton, and was
not told to call in for work at a later time. Still the company
maintains that a reasonable person would not jump to the
conclusion that he had been officially discharged upon hearing
such news. The company contends that the drivers would at
least have been expected to follow its "long-standing, well
understood, and uniformly enforced dispatch procedure of
requiring drivers to report in daily to dispatch." But, as we
have noted, the company's call-in policy was not uniformly
applied insofar as failures to report absences did not invari-
ably result in discharge. And the alacrity with which the
company discharged these two drivers lends support to the
ALJ's conclusion that its reasons were merely pretextual.
Of particular significance to our conclusion that there is
substantial evidence to support the Board's finding of con-
structive discharge is the fact that from the drivers' perspec-
tive it was clear what was happening because it had happened
before: after McQuaide discharged Jack Boyes, the company
shut down operations at the Richfield facility because the
company claimed it could not operate the terminal with only
two drivers.8 As a result, both Tom Boyes and Dale Salsbury
were laid off for almost two months. The company maintains,
nevertheless, that the two drivers could not reasonably have
thought that operations at Norton were cut off indefinitely on
February 19 because during the previous layoff both drivers
had been personally told that the shuttle system was to be
temporarily discontinued and had been offered continued
employment in Johnstown. But a lot had happened since
that time. Earlier in February the drivers had been laid off
for approximately one week when the company temporarily
moved the shuttle facility from Richfield to Columbiana,
Ohio.9 Beginning in January 1992, Boyes and Salsbury had
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8 The ALJ rejected McQuaide's explanation for the layoffs
because there was evidence that the company had been able to
operate the terminal with only two drivers in the past. Thus, the
ALJ concluded that these layoffs violated section 8(a)(3) and (1),
and we find no error in this determination.
9 Tom Boyes filed charges against McQuaide, claiming that he
had been "constructively discharged" by the transfer to Columbiana
because of his union membership, but the ALJ concluded that
suffered a succession of layoffs and suspensions. Many of
these incidents, the ALJ found, were unfair labor practices in
reprisal for the drivers' union activities. Tom Boyes, for
example, had been suspended without warning for three days
for failing to cover for Jack Boyes on a night when Jack could
not drive the shuttle, and Tom Boyes had been wrongfully
denied wages on at least one occasion. McQuaide also had
refused to allow both drivers to work for several days when
they were one driver short, ostensibly because the company
had no way to return a shuttle truck to Richfield from
Johnstown. Finally, the drivers were well aware of the
company's anti-union sentiments because its president told
Tom Boyes when he hired him that "he would never employ a
union driver behind the wheel of his truck," and later com-
plained to Tom that the Richfield drivers "were nothing but
union trouble." By the time of their discharge they had seen
two of their fellow drivers, who had been active union sup-
porters, let go and had seen McQuaide engage in various
tactics for laying off other employees. Furthermore, nothing
in the record indicates that the drivers had any reason to
know that this time the company would promptly fill the third
driver's position so that the Norton station could continue to
operate.
Under the circumstances reflected by the evidence before
the ALJ, the Board could properly find that Boyes and
Salsbury reasonably concluded that they were discharged
when work was withheld from them on February 19. Con-
cededly, the question is close. But much of the conflict about
what was said and what could reasonably be understood in
the context of what had previously happened called for credi-
bility determinations that this court is ill-positioned to second-
guess. "The ALJ's credibility determinations, as adopted by
the Board, are binding unless 'patently without basis in the
record.' " Southwest Merchandising Corp. v. NLRB, 53
F.3d 1334, 1341 (D.C. Cir. 1995) (quoting Caterair Intl., 22
F.3d at 1120). Moreover, the resolution of conflicts in the
evidence must be viewed in the context of the on-going
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McQuaide's non-discriminatory explanation successfully rebutted
the charges.
conflict between McQuaide and its employees' organizing
efforts, an evaluation that the ALJ and the Board were better
attuned to perform. It was McQuaide's burden to show, in
effect, that the two drivers could not reasonably think that
work was being withheld. So viewed, the evidence presents
no basis to overturn either the ALJ's credibility determina-
tions, as accepted by the Board, nor his resolution of conflicts
and interpretation of the situation at the company's facilities.
Accordingly, we deny the petition except with regard to
Jack Boyes' termination, and remand that matter to the
Board to address the impact of evidence regarding twenty-
three other employees who were discharged for call-in infrac-
tions.