Shamrock Foods Company v. N.L.R.B.

• Citation: 346 F.3d 1130
• Decision Date: 21 October 2003
• Docket Number: Consolidated with 02-1323.,No. 02-1278.,02-1278.
• Parties: SHAMROCK FOODS COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

346 F.3d 1130

SHAMROCK FOODS COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 02-1278.

Consolidated with 02-1323.

United States Court of Appeals, District of Columbia Circuit.

Submitted September 25, 2003.

Decided October 21, 2003.

COPYRIGHT MATERIAL OMITTED

On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.

Scott V. Kamins was on the brief for petitioner.

Charles Donnelly, Supervisory Attorney, and Jeffrey L. Horowitz, Attorney, National Labor Relations Board, were on the brief for respondent.

Before: HENDERSON, TATEL and GARLAND, Circuit Judges.

Opinion for the court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge:

Shamrock Foods Company petitions for review of a decision and order of the National Labor Relations Board (NLRB), and the Board cross-applies for enforcement of its order. The Board found that Shamrock violated section 8(a)(1) of the National Labor Relations Act (NLRA), 29 U.S.C. § 158(a)(1), by, among other things, discharging an employee for allegedly committing misconduct in the course of soliciting his co-workers for the union. For the reasons set forth below, we deny Shamrock's petition for review and grant the Board's cross-application for enforcement.¹

I

Shamrock is a wholesale distributor and seller of food products that maintains offices nationwide. We are concerned here with activities that took place at Shamrock's Phoenix, Arizona facility, which employs some 500 warehouse workers and drivers. In April 1998, Teamsters Local Union No. 104 began a campaign to organize the Phoenix employees. In pursuit of that goal, the union filed a petition for a representation election on June 16, 1998. Four months later, the union charged Shamrock with committing unfair labor practices in connection with the organizing campaign. Based on that charge, the NLRB's General Counsel issued a complaint against Shamrock. The complaint alleged, inter alia, multiple violations of section 8(a)(1), which makes it unlawful for an employer "to interfere with, restrain, or coerce employees in the exercise of" their rights to join or assist a labor organization. 29 U.S.C. § 158(a)(1); see id. § 157.

After a two-day hearing, an Administrative Law Judge (ALJ) sustained the General Counsel's complaint in part. With one exception, the Board affirmed. See Shamrock Foods Co., 337 N.L.R.B. No. 138, 2002 WL 1774041 (July 30, 2002). In its petition for review, Shamrock raises multiple objections to the NLRB's decision. The standard of review we apply to such objections is one we have stated many times before: "We must uphold the judgment of the Board unless, upon reviewing the record as a whole, we conclude that the Board's findings are not supported by substantial evidence, ... or that the Board acted arbitrarily or otherwise erred in applying established law to the facts of the case." Pioneer Hotel, Inc. v. NLRB, 182 F.3d 939, 942 (D.C.Cir.1999) (internal quotation marks and citation omitted).

In the following parts, we examine Shamrock's challenges to two of the NLRB's determinations: (1) that Shamrock unlawfully discharged employee Vincent D'Anella; and (2) that it unlawfully interrogated employee David Trujillo. Shamrock's other challenges to the NLRB's determinations require no elaboration by this court, and we deny them for the reasons set forth by the Board and its ALJ.

II

We begin our discussion with Shamrock's discharge of Vincent D'Anella, a widely acknowledged leader of the 1998 unionization effort. At the time of his October 8, 1998, discharge, D'Anella had been working for Shamrock for almost five years and had a spotless record. See Shamrock Foods Co., 337 N.L.R.B. No. 138, at 7 (ALJ Op.). Although Shamrock admits that it discharged D'Anella during the organizing campaign, it maintains that it did so not for his unionization efforts, but because he physically threatened fellow workers Chris Hargenrader and Daniel Brooks in connection with soliciting them for union authorization cards.

The ALJ and the Board analyzed D'Anella's discharge utilizing the framework approved by the Supreme Court in NLRB v. Burnup & Sims, 379 U.S. 21, 85 S.Ct. 171, 13 L.Ed.2d 1 (1964). Under Burnup & Sims, "§ 8(a)(1) is violated if it is shown that the discharged employee was at the time engaged in a protected activity, that the employer knew it was such, that the basis of the discharge was an alleged act of misconduct in the course of that activity, and that the employee was not, in fact, guilty of that misconduct." 379 U.S. at 23, 85 S.Ct. at 172; see Cadbury Beverages, Inc. v. NLRB, 160 F.3d 24, 29 (D.C.Cir.1998). In this case, the first three parts of the Burnup & Sims inquiry are easily satisfied: it is clear that D'Anella was engaged in protected activity when he solicited his co-workers for the union; there is no doubt that Shamrock knew that such activity was protected; and the express basis for the discharge was D'Anella's alleged misconduct in the course of that otherwise protected activity. See Shamrock Foods Co., 337 N.L.R.B. No. 138, at 7 (ALJ Op.) ("Respondent charges that D'Anella threatened two employees... with `violent repercussions related to his efforts to secure their support for the Teamsters....'" (quoting Shamrock's NLRB Reply Br. at 2) (emphasis added)).

The only remaining question is whether D'Anella did, in fact, threaten the two employees. The evidence that he did rested largely on the testimony of Hargenrader and Brooks. D'Anella, however, denied making the threats; indeed, he testified that he did not even know Brooks and that he had never solicited Brooks' union card. D'Anella's testimony on the latter point was corroborated by employee Luigi Baratta, who testified that it was he who solicited Brooks' card and that D'Anella was not present at the time. In light of this clash of testimonies, "the case turn[ed] primarily on credibility resolutions by the trier of fact as to the various accounts provided concerning the purported threats." Shamrock Foods Co., 337 N.L.R.B. No. 138, at 8 (ALJ Op.). Based both on the "testimonial demeanor" of the company's witnesses, and on their behavior subsequent to the allegedly threatening conversations, the ALJ concluded that "the accounts of threats and intimidation attributed to D'Anella by Hargenrader and Brooks lack any credible quality." Id. at 10. The ALJ thus determined that D'Anella had not engaged in the alleged misconduct, and, following Burnup & Sims, concluded that Shamrock violated section 8(a)(1) by discharging him.

Shamrock disputes the NLRB's determination on a number of grounds. First, it argues that the Board's finding that D'Anella did not threaten his co-workers is unsupported by substantial evidence. That contention cannot be sustained, however, as the Board's finding was supported by the testimony of both D'Anella and Baratta. Although Hargenrader and Brooks testified to the contrary, the ALJ did not find them credible. And while Shamrock urges us to set that finding aside, "we do not reverse the Board's adoption of an ALJ's credibility determinations unless, unlike here, those determinations are `hopelessly incredible,' `self-contradictory,' or `patently unsupportable.'" Cadbury Beverages, Inc., 160 F.3d at 28 (quoting Capital Cleaning Contractors, Inc. v. NLRB, 147 F.3d 999, 1004 (D.C.Cir. 1998)); see Vico Products Co., Inc. v. NLRB, 333 F.3d 198, 209 (D.C.Cir.2003).

Second, Shamrock contends that the Board misapplied the Burnup & Sims test by refusing to give the company an opportunity to demonstrate that, even if the threats were never made, it had a good faith belief that they were. This argument, however, misapprehends Burnup & Sims. As the Supreme Court made clear in that case, the employer's good faith is simply not relevant if the misconduct did not occur: "Over and again the Board ha[s] ruled that § 8(a)(1) is violated if the employee is discharged for misconduct arising out of a protected activity, despite the employer's good faith, when it is shown that the misconduct never occurred." Burnup & Sims, 379 U.S. at 23, 85 S.Ct. at 172 (emphasis added).² The Court explained the rationale for that rule as follows:

Th[e] rule seems to us to be in conformity with the policy behind § 8(a)(1). Otherwise the protected activity would lose some of its immunity, since the example of employees who are discharged on false charges would or might have a deterrent effect on other employees. Union activity often engenders strong emotions and gives rise to active rumors. A protected activity acquires a precarious status if innocent employees can be discharged while engaging in it, even though the employer acts in good faith. It is the tendency of those discharges to weaken or destroy the § 8(a)(1) right that is controlling.

Id. at 23-24, 85 S.Ct. at 172-73.

It is true that there is a burden-shifting element to the Burnup & Sims test that involves proof of the employer's good faith: "If the employer establishes its honest belief [that the discharged employee was guilty of the misconduct], the burden shifts to the General Counsel to show that the misconduct did not occur." TCI Cablevision of Montana, Inc. v. NLRB, 53 Fed. Appx. 119, 119-20 (D.C.Cir.2002); see Burnup & Sims, 379 U.S. at 23 n. 3, 85 S.Ct. at 172 n. 3.³ But in a case like this one, in which the ALJ imposed the burden of proof on the General Counsel from the outset, proof of good faith — which does nothing more than place the burden on the General Counsel — is unnecessary and irrelevant.

Third, Shamrock protests that the ALJ did not, in fact, impose the burden of proof on the General Counsel as required by Burnup & Sims. There is no question, however, that the ALJ properly assigned the burden. Indeed, his opinion states both that "the General Counsel has the burden of showing that the employee did not, in fact, commit the misconduct," Shamrock Foods Co., 337 N.L.R.B. No. 138, at 10,...