N.L.R.B. v. Centeno Super Markets, Inc., 76-1577

Citation555 F.2d 442
Decision Date05 July 1977
Docket NumberNo. 76-1577,76-1577
Parties95 L.R.R.M. (BNA) 2970, 82 Lab.Cas. P 10,004 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CENTENO SUPER MARKETS, INC., Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Elliott Moore, Deputy Assoc. Gen. Counsel, Jay Shanklin, Supervisor, Charles Shaw, Atty., N.L.R.B., Washington, D.C., for petitioner.

George P. Parker, Jr., John N. McCamish, Jr., C. J. Fitzpatrick, San Antonio, Tex., for respondent.

Louis V. Baldovin, Jr., Director, Region 23, N.L.R.B., Houston, Tex., for other interested parties.

Application for Enforcement of an Order of the National Labor Relations Board (Texas Case).

Before GODBOLD, SIMPSON and GEE, Circuit Judges.

PER CURIAM:

The National Labor Relations Board (Board) asks for enforcement of the Board's Decision 1 Order relating to the Centeno Super Markets, Inc., (Centeno) San Antonio, Texas. The primary issue is whether there was substantial evidence on the record as a whole to support the Board's findings that Centeno (1) violated Section 8(a)(1) of the National Labor Relations Act, 29 U.S.Code, Section 158(a)(1), by interrogation and surveillance of employees, threats of reprisals against employees if they selected a union, and the granting of wage increases and other new benefits to discourage self-organization of its employees, and (2) also violated Section 8(a)(3) and 8(a)(1) of the Act, 29 U.S. Code, Section 158(a)(3) and 158(a)(1), by discharging 10 employees because they supported unionization. Additionally, respondent Centeno raises a question as to whether the Board's order was overly broad, and hence improperly required the reinstatement of terminated employees.

Centeno is a family owned business composed of three grocery markets in San Antonio, Texas. In July, 1974, Retail Clerks Union, Local 455, began organizational efforts at Centeno's three stores, with the first meeting occurring on July 22. Within a few weeks of this meeting several employees were discharged. The Board found that the employees were fired because of their pro-union activity. This was supported by the testimony of the fired employees, and by the fact that most of the employees involved had signed union authorization cards. Centeno contends that the discharges occurred for good cause, and that the company was practically unaware of any union activity by the employees involved. The Administrative Law Judge, on the whole, credited the testimony of the employees, and discredited the testimony of the company, and found that Centeno had violated §§ 8(a)(1) and 8(a)(3) of the Act.

The Administrative Law Judge's decision was reviewed by a three-member panel of the Board, pursuant to Section 3(b) of the National Labor Relations Act, 29 U.S. Code, Section 153(b). The panel affirmed the ALJ's rulings, findings, and conclusions, with some slight modifications.

As we have stated, Great Atlantic and Pacific Tea Co. v. N.L.R.B.,354 F.2d 707, 709 (5th Cir. 1966), "(w)e cannot disturb the Board's choice if there is a fair conflict between the employer's testimony and a reasonable inference of discrimination." In view of the scope of our review of Board orders, we find the Board's affirmance of the Administrative Law Judge's findings and conclusions that the company's discharging of the involved employees was discriminatorily motivated is supported by substantial evidence, and is therefore conclusive. See N.L.R.B. v. Link-Belt Co., 311 U.S. 584, 61 S.Ct. 358, 85 L.Ed. 368 (1941). The ALJ and the Board made legitimate credibility choices between conflicting versions of events, and drew legitimate inferences from the evidence presented.

We further find that the proposed order of the Administrative Law Judge, as amended by the Board, is both proper and not overly broad, and decline to disturb it. "The particular means by which the effects of unfair labor practices are to be expunged are matters 'for the Board not the courts to determine.' " Virginia Electric & Power Co. v. N.L.R.B., 319 U.S. 533, 539, 63 S.Ct. 1214, 1218, 87 L.Ed. 1568, 1574 (1943).

ENFORCED.

GEE, Circuit Judge (concurring in part and dissenting in part):

From the outset I emphasize the limited character of my disagreement with the majority of the court. The record, which chronicles a long hearing with sharply conflicting testimony from many witnesses, contains ample support for the conclusion that the opposition of the Centeno family and some of their supervisory employees to unionization crystallized into the commission of several unfair labor practices during Local 455's attempt to organize Centeno employees. My concern focuses upon what appears from the record and the decision of the Administrative Law Judge (ALJ) affirmed by the Board in all respects to have been an almost uniform discrediting of company witnesses and crediting of Board witnesses, in some circumstances when even the cold record militates for the opposite result. The ALJ's access to demeanor evidence 1 normally places his credibility choices out of the reach of the reviewing court, but preservation of the utility and fairness of the administrative hearing requires that we decline to follow him on the rare occasion when he lists too far to either side. This appears to me to be that rare case, and since the majority would enforce the Board's order in its entirety, I must respectfully dissent from the grant of enforcement of the orders for reinstatement of Dolores Mireles and Anita Gonzalez.

We have the power to resolve questions of credibility against the choices made by the ALJ "in a proper case," NLRB v. American Art Industries, Inc., 415 F.2d 1223, 1227 (5th Cir. 1969), 2 although it is difficult to articulate standards for determining just what constitutes a "proper case." We have, for example, denied enforcement when the Board's order depended on acceptance of the testimony of two crucial Board witnesses and the hearing examiner had "expressed a theory of credibility that was so far foreign to that which he should have applied that '(s)ound reason . . . require(d) us to decline to go with the Examiner . . . .' " in crediting and discrediting testimony. NLRB v. Florida Citrus Canners Cooperative, 311 F.2d 541, 543 (5th Cir. 1963), on remand from NLRB v. Walton Mfg. Co., 369 U.S. 404, 82 S.Ct. 853, 7 L.Ed.2d 829 (1962). Additionally, although an ALJ's uniform resolution of credibility questions in favor of Board witnesses and against company witnesses cannot of itself support a finding of improper bias vitiating his choices, NLRB v. Pittsburgh Steamship Co., 337 U.S. 656, 659-60, 69 S.Ct. 1283, 1285, 93 L.Ed. 1602, 1606 (1949); NLRB v. Bush Hog, Inc., 405 F.2d 755, 756 (5th Cir. 1968), 3 we have found that such a pattern of consistent credibility decisions at least justifies a closer scrutiny of the record than might otherwise be undertaken. NLRB v. Walton Mfg. Co., 286 F.2d 16, 21 (5th Cir. 1961), rev'd on other grounds, 369 U.S. 404, 82 S.Ct. 853, 7 L.Ed.2d 829 (1962). Here the ALJ's written decision contains only one instance of discrediting the testimony of employees, 4 against a background of consistent crediting of Board witnesses at the expense of the company. Thus, closer scrutiny becomes appropriate here, and upon its application I find at least two of the reinstatement orders lacking in evidentiary support and thus unworthy of enforcement.

The first of these concerns Dolores Mireles, a telephone operator in the courtesy booth of one of Centeno's stores. On July 22, 1974, she signed a union authorization card in a union meeting on the store parking lot after closing hours. She was discharged, at the direction of store manager Lansdale, when she reported to work on July 24. Lansdale and grocery manager Karam testified to Mireles' history of excessive talking to other employees and use of the telephone for personal calls, both hers and those of other employees; both testified that Lansdale had wanted to fire Mireles about six weeks before her actual discharge but that Karam had intervened and received permission to give her one more chance after a stern warning about personal phone calls and talking. Lansdale testified that the final decision to discharge her came after he observed a playful pushing and shoving incident between Mireles and a sackboy as she issued him a clean apron on the evening of July 23. Mireles denied that the apron incident occurred and initially denied that she had ever been warned about excessive talking or personal phone calls, although the latter testimony was undermined on cross-examination.

The ALJ found that assistant manager Jaramillo observed the union meeting at which Mireles signed her union authorization card and that he asked Mireles the next day whether she signed a card. Jaramillo denied any such interrogation, but the ALJ found that he was trying to conceal what actually occurred and credited Mireles' account over Jaramillo's denial. From other circumstances, 5 he also found that Jaramillo informed Lansdale of Mireles' signing of the card, that Lansdale was a "most untrustworthy witness," that the apron incident was a total fabrication, and that "Lansdale gave much conflicting testimony he thought would help the Company's cause." Disbelieving Lansdale, Jaramillo and Karam necessarily meant believing Mireles, whom the ALJ found to be an "honest, forthright witness," when the record creates strong doubts in my mind concerning her testimony. The ALJ lauded her, for example, for being "willing to admit any of her shortcomings," including allowing other employees to make outgoing nonessential telephone calls not permitted by the manager. Aside from the fact that consistently breaking rules speaks as eloquently for dishonesty as for honesty, Mireles had earlier testified that she did not allow nonemergency phone calls after she became aware of the rules; backtracking and modifying testimony under such circumstances hardly makes her an "honest, forthright...

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