United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS July 26, 2004
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 03-60880
(Summary Calendar)
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
versus
SUPERIOR PROTECTION, INC.,
Respondent.
Petition for Enforcement of Order of
The National Labor Relations Board
(Nos. 16-CA-21399, 21495, and 10361)
Before JOLLY, WIENER, and PICKERING, Circuit Judges.
PER CURIAM:*
Petitioner National Labor Relations Board (“NLRB” or “Board”)
seeks enforcement of its order commanding Respondent Superior
Protection, Inc. (“Superior”), its officers, agents, successors and
assigns, to cease and desist (1) impliedly threatening employees in
writing with discharge or discipline for supporting United
Government Security Officers of America and its Local #229 or any
other union (collectively, “the Union”), (2) disciplining,
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
discharging or otherwise discriminating against any employee for
supporting the Union, (3) disciplining, discharging or otherwise
discriminating against employees because they have given testimony
under the National Labor Relations Act (the “Act”). The Board also
seeks enforcement of its order commanding Superior to reinstate
fired employee Kelvin Trotter to his former position, to make him
whole for loss of earnings and other benefits pursuant to F.W.
Woolworth Co.,1 less any interim earnings and plus interest as
computed in New Horizons for the Retarded,2 to remove from its
files any reference to Trotter’s discipline and discharge, to make
various employment records available to the Regional Director of
the NLRB, and to post at its Houston, Texas facility copies of a
notice appended to the order. Finally, the Board seeks enforcement
of its order instructing the Regional Director of the NLRB to open
and count Trotter’s contested ballot, serve a revised tally on the
parties, and issue the appropriate certificate. Superior resists
the enforcement of the orders or any portion or portions thereof.
We have carefully considered the briefs of counsel for the
parties and the record of this case as supplemented, including the
extensive, highly detailed analysis of the Administrative Law Judge
(“ALJ”) of August 28, 2002, as modified September 25, 2002. As a
result, we conclude, under the applicable “substantial evidence”
standard of review, that the NLRB’s order is reasonable, supported
by such evidence, and must be enforced in full.
1
90 NLRB 289 (1950).
2
283 NLRB 1173 (1987).
2
I.
As the parties are fully conversant and familiar with their
respective burdens of proof and persuasion and with the standards
applicable to our review of cases under § 8(a)(3) and (4) of the
Act,3 we need not reiterate those standards here. It suffices that
when the Board charges an employer with unfair labor practices
under these subsections —— discharging or otherwise discriminating
against an employee because he has given testimony under the Act or
discriminating by terminating employment to discourage membership
in a labor organization —— the general counsel’s burden of
persuasion is to demonstrate what protected activity of an
employee, if any, was a substantial motivating factor in an adverse
employment action taken by the employer against that employee. If
that burden is met, it becomes incumbent on the employer to
demonstrate that (1) it took the action complained of on the basis
of unprotected conduct, and (2) it would have taken the same action
in the absence of protected conduct. An employer’s proffered non-
discriminatory reason and a determination that the adverse
employment action would have been taken even in the absence of
protected activity are nevertheless trumped by a demonstration of
pretext. The overarching principle is that reasonable decision of
the NLRB must be affirmed if it is supported by substantial
evidence, even if we might have reached a contrary conclusion.
This is particularly true in cases, such as this, when the decision
of the NLRB is grounded in large part on credibility determinations
3
29 U.S.C. § 158(a)(3).
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of the ALJ who, after all, heard the testimony and observed the
demeanor of the witnesses for the opposing parties —— here
including none other than the employer’s President, Jack Heard, and
the eventually terminated employee, Kelvin Trotter.
II.
The purportedly non-discriminatory reasons advanced by
Superior for the escalating series of adverse employment actions it
took against Trotter, culminating with his firing, are (1) lying
under oath during the initial hearing conducted by the ALJ and in
subsequent federal and state utterances, (2) disobeying a direct
command by a superior (here, Heard, the employer’s President) to
report for work “on time” immediately following Trotter’s testimony
at the initial hearing, (3) insubordination in a confrontation with
a supervisor, Jose Castillo, and (4) possessing a “dirty” firearm
and a total number of cartridges in excess of the maximum allowed.
The ALJ concluded, and the NLRB agreed, based on widely divergent
positions and explanations advanced by the parties, that the
reasons given by Superior were pretextual, that the disciplinary
actions taken against Trotter were grounded in anti-union animus,
and that the adverse employment actions in question would not have
been taken but for that animus. As we agree, we touch only briefly
on Superior’s proffered non-discriminatory reasons for its actions.
First, Superior’s allegations that Trotter lied address almost
entirely statements he made at NLRB hearings and to the State
Unemployment authorities regarding his transfer by Superior from
Galveston to Houston well before commencement of the organizing
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efforts here at issue. Other than that, the allegations of
mendacity address Trotter’s reason for requesting time off on the
morning of the initial hearing. He told his immediate supervisor
that he needed to attend to a personal matter when, in fact, he was
responding to the subpoena for the initial hearing before the ALJ.
Superior’s claim that Trotter lied about not having applied
for a transfer boils down to a quibble over whether he “applied” on
several occasions to be transferred from Galveston to Houston or
merely informally “requested,” or let his preference be known, that
he would like to be transferred to Houston. Not only was the issue
whether he had applied for a transfer wholly irrelevant to the
purpose of the hearing and Trotter’s testimony, Superior’s strident
efforts to classify Trotter’s responses as lies under oath fail.
As the ALJ and Board observed, the question could easily have been
understood by Trotter as going to the matter of a formal, written
application for transfer (which he never did) rather than to
informal, oral requests that he be considered for transfer.
As for the reason given by Trotter for requesting a few hours
of time off work on the morning of the hearing, there was at least
substantial evidence that “personal business” or “personal matters”
were explanations frequently given by Trotter and other Superior
employees to —— and deemed sufficient by —— immediate supervisors.
Nothing indicates the necessity for an employee, even a court
security officer, to go into great detail about the reasons for
wanting a few hours off, particularly when, as here, going into
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greater detail would risk adverse reaction to otherwise protected
activity.
Then there is the “charge” that Trotter disobeyed Heard’s
direct order to report on time, which is particularly revealing of
Superior’s animus. Even though Trotter’s immediate superior,
Officer Johnson, confirmed that the only thing he had told Trotter
about reporting to work after time off on the morning of the
initial hearing was that Trotter needed to report sufficiently
ahead of his (Johnson’s) 4:00 p.m. court date, Superior has
endeavored to manufacture a reporting time of noon and then to make
much over the time elapsed between Trotter’s departure from the
initial hearing to change into uniform and report for duty, which
he did by approximately 1:30 p.m. What came through loud and clear
to the ALJ —— then subsequently to the NLRB, and now to us —— is
that Trotter’s surprise appearance and pro-union testimony at the
initial hearing touched off an immediate reaction by Heard to
squelch Trotter’s anti-union activities and (likely) terminate his
employment. By telephone, Heard immediately set off a flurry of
activity following the adjournment of the hearing and well before
Trotter could possibly have made it back to his duty station, even
if he had not gone home to change into his uniform. By the time
Trotter reported, the Heard-initiated action had traveled directly
down the chain of command so that, when Trotter arrived, Johnson
referred him to Castillo, where the provocation discussed below
commenced. We agree with the ALJ and the NLRB that Heard’s
admonition to Trotter as he left the meeting not to be late for
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work —— even if not the tension-breaking jest that Trotter
perceived it to be —— cannot be elevated to the level of a direct
order of a remote superior to be at his duty station by 12:00 noon.
We also conclude that there is substantial evidence that the
confrontation between Trotter and Castillo following Trotter’s
reporting to work, which encounter admittedly escalated to
“heated,” was orchestrated from higher up, intentionally provoked
by Castillo, and eventually used by Superior as a pretext to mask
its anti-union animus in taking the adverse employment actions
against Trotter. Castillo twice made Trotter cool his heels for
protracted periods while waiting to be seen. The ALJ determined,
based in large part on credibility calls, that Castillo
deliberately goaded Trotter to the point of heated words and
profanity, after intentionally irritating him by making him wait;
and that this was deliberate incitement. We cannot say that the
credibility calls, factual testimony, and reasonable inferences
drawn from substantial evidence do not support this conclusion of
the ALJ and the NLRB under the applicable standard of review.
The proffered weapons charge, i.e., that Trotter’s sidearm was
“dirty” when, on Castillo’s order, he turned it over, and that he
was in possession of an excess number of rounds for that weapon, is
neither consistent with nor violative of the provision of the
contract between Superior and the General Services Administration
(“GSA”) that Superior cites in support of its rule-violation charge
against Trotter. Even assuming that the cleanliness of the handgun
was not up to the expected level of “spit and polish,” such a
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first-time infraction would fall into the category of the most
minor of offenses, at most justifying an admonition to clean it and
keep it clean.
Turning to the question of the number of cartridges that
Trotter possessed, the applicable provision of the GSA contract or
Guard Manual cited by Superior states:
Each guard, entering on duty, including the uniform on-
site shift supervisor(s) shall be issued twelve (12)
rounds of 125 grain hollow point ammunition. Six (6)
rounds shall be used as a firearm load with six (6)
rounds carried in a cartridge case.
This is the sole basis of Superior’s claim that Trotter’s
possession of an excess six cartridges —— 18 rather than 12 —— put
Superior in violation of its contract with the GSA. We agree with
the ALJ and the Board that, under no recognized method of
contractual interpretation can this language be construed to impose
a limit on the maximum number of cartridges that a guard may
possess while on duty. To the contrary, the plain wording of the
provision is best construed as a minimum ammunition requirement.
Regardless of the best interpretation, however, what the
insupportable charge against Trotter demonstrates beyond cavil is
that Superior was grasping at straws to manufacture charges against
Trotter as pretexts for the real basis of his termination —— his
pro-union activity and Superior’s anti-union animus, which started
at the top with Heard and promptly proceeded all the way down the
chain of command. That is the conclusion of the NLRB based on the
findings of the ALJ; and we cannot say that this conclusion is
unreasonable or lacking in support from substantial evidence.
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III.
In conclusion, for essentially the same reasons as those set
forth in the writings of the ALJ and the NLRB, we grant that
Board’s application for enforcement of the Order filed October 21,
2003, and we order same enforced in full.
ENFORCEMENT ORDERED.
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