G & H Products, Inc. v. National Labor Relations Board

CUDAHY, Circuit Judge,

dissenting in part.

This is a troubling case. If our task were to weigh the evidence de novo, I might be brought to agree with the majority’s result. With all respect, however, I cannot join in an opinion which simply misconceives the role of an appellate court in reviewing the conclusions of an administrative agency.

Our starting point at least, which we may not lightly ignore, is the findings of the ALJ who heard and evaluated the witnesses and their testimony. Both he and the Board concluded that the Company discharged Moore, Mortenson and Gerber on the same day because of their union sympathies and their intention to join the strike and not because of their work performance. This conclusion is based in part on the testimony of the Plant Superintendent, who, according to the Company, made the decision to discharge these three probationers, but who admitted to anticipating that they would join the strike in several days at the end of their probation period. The Superintendent knew that firing them as proba*1406tioners would be unreviewable through the grievance procedure.

These same-day discharges were not merely coincidental. Quite apart from such important considerations as the credibility determinations and evidentiary analysis of the ALJ (which the majority completely ignores), some deference is due the Board on account of its “special understanding” of the subject matter before us.1

Here, as in other cases, we must recognize the Board’s special function of applying the general provisions of the Act to the complexities of industrial life and of “appraising carefully the interests of both sides of any labor-management controversy in the diverse circumstances of particular cases” from its special understanding of “the actualities of industrial relations.”

NLRB v. Erie Resistor Corp., 373 U.S. 221, 236, 83 S.Ct. 1139, 1150, 10 L.Ed.2d 308 (1963) (citations omitted). “[CJourts should not ‘second-guess the expert administrators on matters on which they are better informed.’ ” Americana Healthcare Corp. v. Schweiker, 688 F.2d 1072, 1087 (7th Cir. 1982).

The majority has, however, overstepped the proper bounds of our review; it has reweighed the evidence as to the legality of these three production workers discharges in the light of its own policy preferences. The majority's preferred position is that these employees’ union proclivities did not even contribute to their discharge — in the course of a heated strike (which only by an arbitrator’s decision has been in retrospect branded “illegal”). The majority also finds “clear and convincing evidence that the probationary employees were discharged .. . because of their unsatisfactory work performance,” supra at 8-9. Unfortunately for the majority’s thesis, the ALJ and the Board found unpersuasive (or, in one instance “untenable and absurd”) the evidence and inferences on which the majority would have us rely as “clear and convincing.” The majority’s complaint that “the ALJ gave an undue amount of weight to the testimony that the probationary employees had not received periodic evaluations during the probationary period,” supra at 10, simply underlines its inappropriate efforts to substitute its- judgment for that of the Board and to try the case de novo.

If it were appropriate for this appellate court to “try” this case de novo, then we would have to confront directly a great deal of important evidence that solidly supports the Board decision. For example, the majority does not acknowledge that Gerber was working at 180% of his production standard during the week before he was discharged.2 Similarly, the majority is virtually silent about the fact that the ALJ and the Board credited evidence that supervisors repeatedly made favorable comments about Moore and Mortenson as effective employees. In addition, the majority does not so much as note that on the day Moore, Mortenson and Gerber were fired, G & H’s day-shift foreman “voiced to other foremen his personal amazement at this action saying that he did not know what the Company expected ‘from these guys because they could not have done any more.’ ” ALJ Decision, Pet.App. at 21.

Viewed fairly, there is certainly substantial evidence on the record as a whole to support the ultimate conclusion of the Board that “the discharges of Moore, Mortenson and Gerber were effectuated to discourage union activity generally, not merely participation in the strike at hand, and. as such violated Section 8(a)(1) and (3) of the Act.” That ought to be the beginning and the end of our scrutiny of this fact-specific problem.3

*1407On the other hand, I am inclined to agree with the majority that the supervisor’s interrogation of Moore was not coercive and thus violative of Section 8(a)(1). Here the facts are relatively simple. The supervisor’s statement and question, although questionable, do not, in my view, cross the line into coercive interrogation.

Similarly, Ms. Westphal’s refusal to do production work may have been a protected protest against the unlawful firing of the three probationary employees. But her action, even if its motivation related to the firing of the three probationers, had the effect of a sympathy strike and may reasonably be viewed accordingly.4 Although the Board’s conclusion here is certainly not irrational, I think it is necessary to make distinctions that are too fine to be workable to find that the firing of Ms. Westphal violated Section 8(a)(3) and (1).

Nonetheless, clearly as to the termination of the three probationary employees, I think the majority has simply reshaped the evidence and the inferences to accommodate its own predilections. I must, therefore, respectfully dissent.

. To the extent policy considerations are involved here, it would seem appropriate for us to defer significantly to the Board which is, after all, the product of Presidential appointment — and, to that extent at least, responsible to the Executive.

. Incentive jobs at G & H are usually rated so that an employee is expected to work at 120% of the standard rate.

. In NLRB v. Transportation Management Corp., - U.S. -, 103 S.Ct. 2469, 76 L.Ed.2d 667 (1983), the Supreme Court reversed a First Circuit decision (674 F.2d 130, *14071st Cir.1981), which we had followed in NLRB v. Webb Ford, 689 F.2d 733 (7th Cir.1982). Webb Ford held that the General Counsel had the burden of showing not only that a forbidden motivation contributed to the discharge but also, if legitimate motives for discharge are argued, that the discharge would not have taken place independently of the protected conduct of the employee. Transportation Management requires the Courts of Appeals to accept the Board’s allocation of the burden on the second phase of the analysis, i.e., it is the. employer’s burden to show as an affirmative defense, if it can, that the employee would have been fired irrespective of the protected conduct. G & H has certainly not carried that burden in the case before us.

Further, I think there are serious questions about the Board’s and the courts’ recent focus on “but-for” causation and burdens of proof in unfair labor practice cases. It may be that this focus, borrowed from constitutional and employment discrimination cases, is misdirected in the labor relations context. See Jackson & Heller, The Irrelevance of the Wright Line Debate: Returning to the Realism of Erie Resistor in Unfair Labor Practice Cases, 77 Nw.U.L.Rev. 737 (1983).

. I note, however, that Ms. Westphal — unlike the probationary production workers — was not bound by a contractual no-strike clause. Technically, therefore, her sympathy strike may have been a protected economic strike even though it was in concert with a strike by others which was found to be illegal.