McLean Trucking Company v. National Labor Relations Board

SPROUSE, Circuit Judge,

dissenting:

I respectfully dissent. I cannot disagree with the majority’s evidentiary summaries nor can I argue forcefully against most of my colleagues’ statements of the relevant principles of law. If, as it appears, however, the majority would establish a new requirement of expressed specificity in the Board’s weighing of the evidence, I would emphatically disagree. I also disagree with the majority’s statement that “nothing turns” (in this case) on the Wright Line rule1 shifting the burden of proof. The application of the law, by the majority opinion, moreover, misses the facts by a wide margin.

As the majority opinion correctly notes, our central task is one of reviewing the evidence — was there substantial evidence to sustain the Board in finding that Daniels was discharged solely because of his poor work record. It is true, as McLean contends, that there were legitimate reasons for which it could have discharged Daniels, but that is not the question. The issue is whether the discharge of October 9 was solely for such legitimate reasons or whether McLean’s admitted animus against Daniels for his protected activities was a factor in his discharge.2 McLean and the majority opinion concede that the General Counsel made a prima facie showing that “protected conduct” was a “motivating factor” in McLean’s discharge decision. The sole issue then becomes whether McLean proved by a preponderance of the evidence that the discharge would have taken place even in the absence of the protected conduct. NLRB v. Transportation Management Corp., - U.S. -, 103 S.Ct. 2469, 76 L.Ed.2d 667 (1983).

The Board made the following findings of fact: Daniels began his employment with *1234McLean in September, 1973.3 He was employed as a dock worker, loading and unloading truck trailers at McLean’s Cincinnati, Ohio, terminal. He later joined an organization known as Teamsters For A Democratic Union (TDU). He has served as co-chairman of the TDU Cincinnati Chapter since 1978. Daniels solicited memberships and organized meetings for TDU among McLean’s employees. He distributed the regular TDU publication at various trucking terminals throughout Cincinnati, including McLean’s terminal. Some of the articles in that publication raised questions concerning the legality of employment practices used by McLean, including activities at its Cincinnati terminal.

Daniels was extremely active in pursuing grievances against McLean alleging violations of its contract with the union. During the course of his employment, Daniels filed approximately 67 grievances, and achieved considerable success. In 1977, he was awarded two days’ backpay by the local grievance panel for a three-day suspension imposed on him by McLean. Additionally, he was given six weeks’ backpay in 1977 as the result of a settlement of a grievance concerning a seven-day suspension. Daniels also rendered assistance to other McLean employees in filing grievances, writing grievances for individual employees at their request. Some employees sought out Daniels rather than the union steward to assist them in filing grievances.

In early 1977, Daniels and another employee were processing a grievance involving call-in times for employees who did not have regular working hours. Daniels told then Terminal Manager Williams that, since the grievance procedure was not going to result in justice for those employees, the only alternative would be to become better organized. Williams became outraged and responded that Daniels would not be permitted to engage in that activity. Williams later told Daniels, in discussing a similar subject, that he would never receive a regular shift as long as Williams was the terminal manager.

During the summer of 1977, Daniels filed a grievance with Larry Pullen, assistant terminal manager, and requested Pullen to acknowledge receipt. Pullen told Daniels that he was going to find a way “to get rid of” him because he filed too many grievances. Pullen also stated that “grievance hearings would not have to be held but every three months if it wasn’t for grievances that [Daniels had] filed, that [he had] filed too many grievances.”

In November, 1978, Daniels had a conversation with then Terminal Manager Benny Keen. Keen told Daniels that McLean was a big company, and that it had ways “to get rid of” people like Daniels. Keen added that the Company could “load [Daniels] up with paper,” writing as many disciplinary letters as Daniels could write grievances. In December, 1978, on the occasion when Daniels was sent home from work as a result of a dispute over whether he was wearing proper safety shoes, Keen told Daniels that he need not file a grievance because Keen had the votes “to get rid of” Daniels at the grievance panel.

Daniels was elected union steward at the McLean Cincinnati terminal on October 8, 1979, the day before he was discharged. As the ballots were being counted, Pullen, obviously upset by the tabulated results and likely outcome of the balloting, made several remarks derogatory to those employees who had voted for Daniels. After the ballot tabulation was concluded, Pullen remarked to the union officials that they should leave the ballot box in place because McLean was going to have a hearing on Daniels and discharge him the next day.

The discharge hearing on October 9,1979, to which Pullen referred, had been scheduled first in August for September 4, 1979, but had been twice rescheduled because Daniels was on. vacation and later due to *1235inadequate notice. At the hearing, which was conducted by Pullen, McLean relied on four disciplinary letters dated July 2, August 22, August 31, and September 21,1979. The first two letters related to productivity, but because McLean had no established productivity standards, the union representatives objected to consideration of those letters and they were not considered.

The August 31 letter stated that Daniels’ ear had been parked in a reserved parking space between midnight and 5:00 A.M. Daniels admitted at the unfair labor practice hearing that he had parked in a parking space reserved for office personnel, but' credibly testified that Pullen had given employees oral permission to park in reserved spaces during hours when they were not occupied by the individuals for whom the spaces were reserved.

The letter of September 21 concerned another parking violation. Daniels, who was on vacation, drove to the terminal at night to pick up his pay check, and drove into a restricted area. Although Daniels admitted having his car in the restricted area, he stated that it was raining heavily and he entered the area to get his pay check without getting wet. At the unfair labor practice hearing, Pullen testified that Daniels’ appearance in this restricted area (close to where several employees were working) led to a work stoppage. However, there was no mention of a work stoppage resulting from this incident at the October 9 discharge hearing. None of the other employees were shown to have been disciplined for stopping work on that occasion.4

This mass of detail was included in the Board’s finding of fact. In the face of these findings, how can it be argued that the Board did not weigh the evidence. To require a more detailed finding or statements by the Board expressly weighing one item of evidence against the other would impose requirements of formalistic ritual on the Board’s opinion writing, which is not only contrary to precedent5 but is unnecessary to considered appellate review.

The Board’s finding that McLean violated sections 8(a)(3) and (1) was based on the October 9 discharge. The majority concedes that the only reasons assigned by McLean for the discharge were two “trivial” work rule violations. Daniels’ explanations for his actions were credited by both the AU and the Board. In view of this, it is impossible to ignore the unusually large accumulation of anti-union animus evidence. The Board thus correctly decided that the General Counsel made a prima facie showing that anti-union animus at least contributed to McLean’s decision to discharge Daniels. See NLRB v. Transportation Management Corp., supra; NLRB v. Kiawah, 650 F.2d 485; Neptune Water Meter Co. v. NLRB, 551 F.2d 568.

The first time McLean recited Daniels’ poor work record as a reason for his discharge was at the unfair labor practice hearing. Crucial to our decision is the time when McLean formed its intentions to discharge Daniels. The Board correctly determined that it must consider McLean’s motivation as it existed at the time of the discharge, not as it existed at the time of the unfair labor practice hearing. It is conceded that the only evidence bearing on McLean’s motivation on October 9, the date of discharge, was McLean’s admissions that it relied only on the two “trivial” reasons. There was no mention of a poor work record. Against the background of overt anti-union animus, this assumes even greater significance.

The majority apparently believes that, although McLean advanced only trivial reasons for the discharge on October 9, McLean silently relied only on Daniels’ poor work record, I can understand that McLean offi*1236cials may have maintained such a reason in secrecy due to the contract’s inhibitions. I do not understand, however, that, in the absence of inconsistent testimony, the Board or its functionaries have a duty to sua sponte probe the subconscious of witnesses, and there was no inconsistent testimony at the discharge hearing. In any event, while there is considerable evidence that Daniels had a poor work record, there is no creditable evidence that Daniels’ poor work record was the sole reason for his discharge. Certainly, McLean did not prove by a preponderance of the evidence that Daniels would have been fired for permissible reasons even absent his protected union activities. See Transportation Management, supra; NLRB v. Kiawah Island Co., supra. The majority, in the face of this, holds that the General Counsel failed to carry the burden of proof. It is respectfully submitted that this misses the impact of NLRB v. Transportation Management Corp., supra. The Wright Line rule, adopted by the Supreme Court in Transportation Management Corp. not only shifts the burden of production, but, unlike Burdine,6 the actual burden of proof is shifted. The critical issue here was whether the discharge of Daniels was solely for permissible reasons or was motivated, in part, by McLean’s hostility towards Daniels’ protected conduct. The burden of proof as to the critical issue here, was not on the General Counsel, but on McLean. The Board found that McLean did not meet his burden. And there is more than substantial evidence to support that finding. Not only did the Board consider the voluminous evidence of anti-union animus, but there was substantial evidence upon which the Board properly inferred that Daniels’ admitted poor work record did not enter into the discharge decision.

The majority points out that parties by private contract cannot affect the law governing unfair labor practices. That may be true, but it does not follow that the contract is not a fact to be considered in applying principles of labor law. The discrete fact sought to be ascertained was McLean’s motive. The Board found that animus against protected activity was a primary motive. It also found that whatever other reasons McLean might have had were shaped by the contract — that is, knowing that in discharging Daniels it was limited to incidents occurring in a nine-month period McLean tailored its reasons accordingly. Regardless, the two “trivial” reasons were the only reasons given on October 9 for discharge, and there is more than substantial evidence to support the Board’s finding that anti-union animus was a major consideration in McLean’s decision to fire Daniels.

The majority notes the ALJ’s stated belief that the contractual nine-month limitation legally restricted the reasons McLean could advance for Daniel’s discharge. The Board emphasized a different view, however, stressing that it only viewed the contract as a link in the chain of facts establishing McLean’s motivation. It is the Board which is the finder of fact and it is their decision which we review, not that of the ALJ.7 The majority recognizes that general rule, then ignores it in application.

In my mind, the majority opinion completely emasculates the “substantial evidence” rule by minutely weighing the evidence relating to McLean’s motivation and viewing the scales from an improper judgmental perspective. I would grant enforcement.

. Wright Line, 251 NLRB ¶ 17,356 (1980).

. NLRB v. Transportation Management Corp., - U.S. -, 103 S.Ct. 2469, 76 L.Ed.2d 667 (1983); See NLRB v. Kiawah Island Co., 650 F.2d 485, 490 (4th Cir.1981); Neptune Water Meter Co. v. NLRB, 551 F.2d 568, 569 (4th Cir.1977); Wright Line, a division of Wright Line, Inc., 251 NLRB 1083 (1980).

. Daniels revealed at trial that his legal name is Ralph Wood. He applied for his job at McLean under the name of Daniels because he had been unable to obtain employment under his real name due to certain prior felony convictions. The Company, however, was unaware of this fact before the trial, and thus it had nothing to do with his discharge.

. To protest his discharge of October 9, Daniels filed a grievance, which became deadlocked at the local panel. The grievance then was heard by the state panel in Columbus, Ohio, which upheld the discharge. It was at the latter hearing that the Company first claimed that Daniels’ parking violation of September 14 (for which the September 21 disciplinary letter was issued) created a work stoppage.

. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951).

. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).

. Jeffrey Manufacturing Div. v. NLRB, 654 F.2d 944, 948 (4th Cir.1981); Kiawah, 650 F.2d at 489.