Coletti's Furniture, Inc. v. N.L.R.B.
| Decision Date | 18 March 1977 |
| Docket Number | No. 76-1317,76-1317 |
| Citation | 550 F.2d 1292 |
| Parties | 94 L.R.R.M. (BNA) 3071, 81 Lab.Cas. P 13,127 COLETTI'S FURNITURE, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — First Circuit |
Orlando Rodio, Providence, R. I., with whom John R. Cosentino, Providence, R. I., was on brief, for petitioner.
Jay E. Shanklin, Atty., with whom John S. Irving, Jr., Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Carl L. Taylor, Associate Gen. Counsel and Elliott Moore, Deputy Associate Gen. Counsel, Washington, D. C., were on brief, for respondent.
Before COFFIN, Chief Judge, CAMPBELL, Circuit Judge, and GIGNOUX, * District Judge.
This was a close case for the Administrative Law Judge and the Board. There was enough conflict in the testimony and enough basis for differing credibility judgments for the decision to have gone either way. And we are somewhat concerned that, while the ALJ cited this circuit's decision in NLRB v. Fibers Int'l Corp., 439 F.2d 1311, 1312 (1st Cir. 1971), in which we held that there had to be a finding of dominant motive, he found that the discharge was motivated "in substantial part" by union animus. Only because it is so clear from the decision as a whole that the ALJ in fact found that Loppi would not have been fired but for his union activities do we accept the Board's findings. See Mt. Healthy City School District Bd. of Education v. Doyle, --- U.S. ----, ---- - ----, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). We regret that in a case as close as this the Board did not articulate the right rule.
We have long held this to be the rule. See, e. g., NLRB v. Lowell Sun Pub. Co., 320 F.2d 835, 842 (1st Cir. 1963), and cases cited, and the Board has just as persistently failed to recognize it. See, e. g., NLRB v. Gotham Indus., Inc., 406 F.2d 1306, 1309 (1st Cir. 1969). Now that the Supreme Court in Doyle, in the analogous first amendment area, has held that an improper consideration is not "substantial" if the discharge would have occurred in any event, marrying Doyle to our previous cases, there can be little reason for us to rescue the Board hereafter if it does not both articulate and apply our rule. Where there are both proper and allegedly improper grounds for discharge, its burden is to find affirmatively that the discharge would not have occurred but for the improper reason.
In this case our decision, given our limited review, must be for the Board. The testimony provides sufficient...
To continue reading
Request your trial
-
Furtado v. Bishop
...... E. g., Johnston v. Holiday Inns, Inc., 595 F.2d 890, 894 (1st Cir. 1979); Dobb v. Baker, 505 F.2d 1041, 1044 ......
-
N.L.R.B. v. Pincus Bros., Inc.-Maxwell
...at all by protected conduct. See generally Western Exterminator Co. v. NLRB, 565 F.2d 1114 (9th Cir. 1977); Coletti's Furniture v. NLRB, 550 F.2d 1292 (1st Cir. 1977). 1 These hypothetical deference rules are fairly close to the actual position the Board currently takes when it is asked not......
-
Liberty Mut. Ins. Co. v. N.L.R.B., 78-1215
...without proving that, but for Agacinski's union activity, he would not have been discharged, citing Coletti's Furniture, Inc. v. NLRB, 550 F.2d 1292, 1293-94 (1st Cir. 1977). The Board counters that there is substantial evidence in the record considered as a whole to support the finding of ......
-
N.L.R.B. v. Eastern Smelting and Refining Corp.
...led to our announcing that we would no longer "rescue (it) if it does not both articulate and apply our rule." Coletti's Furniture, Inc. v. NLRB, 1 Cir., 1977, 550 F.2d 1292, 1293. Even this has not been fully effective. 13 Instead, as the instant cases illustrate, the correctness of the ap......
-
A Reexamination of the Role of Employer Motive Under Sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act
...Inc., 578 F.2d 880 (1st Cir. 1978); Hubbard Regional Hosp. v. NLRB, 579 F.2d 1251 (1st Cir. 1978); Coletti's Furniture, Inc. v. NLRB, 550 F.2d 1292 (1st Cir. 1977); NLRB v. Billen Shoe Co., 397 F.2d 801 (1st Cir. 1968); NLRB v. Pioneer Plastics Corp., 379 F.2d 301 (1st Cir. 1967). 9. 251 N.......