598 F.2d 666 (1st Cir. 1979), 78-1453, N.L.R.B. v. Eastern Smelting and Refining Corp.

Docket Nº:78-1453, 78-1452 and 78-1370.
Citation:598 F.2d 666
Party Name:NATIONAL LABOR RELATIONS BOARD, Petitioner, v. EASTERN SMELTING AND REFINING CORPORATION, Respondent. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BARNES AND NOBLE BOOKSTORES, INC., Respondent, and NATIONAL LABOR RELATIONS BOARD, Petitioner, v. WONDER MARKETS, INC., Respondent.
Case Date:May 14, 1979
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 666

598 F.2d 666 (1st Cir. 1979)

NATIONAL LABOR RELATIONS BOARD, Petitioner,

v.

EASTERN SMELTING AND REFINING CORPORATION, Respondent.

NATIONAL LABOR RELATIONS BOARD, Petitioner,

v.

BARNES AND NOBLE BOOKSTORES, INC., Respondent,

and

NATIONAL LABOR RELATIONS BOARD, Petitioner,

v.

WONDER MARKETS, INC., Respondent.

Nos. 78-1453, 78-1452 and 78-1370.

United States Court of Appeals, First Circuit

May 14, 1979

Argued March 5, 6, 7 & 8, 1979.

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Paul J. Spielberg, Deputy Asst. Gen. Counsel, W. Christian Schumann, Stephen Mayer and Ruah Donnelly Lahey, Attys., Washington, D. C., with whom John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, John G. Elligers, Frederick Havard, Howard E. Perlstein, and Morton Namrow, Attys., Washington, D. C., were on briefs for petitioner.

Harold N. Mack, Boston, Mass., with whom Philip J. Moss, and Morgan, Brown, Kearns & Joy, Boston, Mass., were on brief for respondent in No. 78-1453.

Jeffrey L. Kreisberg, Hauppauge, N. Y., with whom Robert S. Saltzstein, and Mirkin, Barre, Saltzstein & Gordon, P. C., Hauppauge, N. Y., were on brief for respondent in No. 78-1452.

Sidney A. Coven, Boston, Mass., with whom Bruce Oravec, Worchester, Mass., and Lepie & Coven, Boston, Mass., were on brief for respondent in No. 78-1370.

David E. Watson, Boston, Mass., with whom Nutter, McClennen & Fish, Boston, Mass., Gerald E. Rudman, and Rudman, Winchell, Carter & Buckley, Bangor, Maine, were on brief for respondent in No. 78-1422.

Before ALDRICH and CAMPBELL, Circuit Judges, CAFFREY, District Judge. [*]

Before ALDRICH and CAMPBELL, Circuit Judges, GIGNOUX, District Judge.*

ALDRICH, Senior Circuit Judge.

The fact that four cases involving, broadly, a single principle on which this Circuit and the National Labor Relations Board have been in disagreement for over a decade, were heard in a single week, suggests that we should once more consolidate past decisions and set out our views. The issue is the proper analysis in cases challenging the discharge of an employee under sections 8(a) (1) and (3) of the Act. 29 U.S.C. §§ 158(a)(1) and (3) (1976). Because three of these cases raise the question in a variety of illustrative ways, we treat them in this one opinion. 1 First, however, we discuss in broad terms both the law and the Board's approach to the question whether the motive for a discharge was coercive or discriminatory due to anti-union animus, hereinafter described as a bad reason, or was based upon a business judgment, or good reason. The latter term is shorthand for the established principle that an employer legally may discharge for any cause, whatever others may think of its adequacy, so long as his motivation is not interference with rights protected under the National Labor Relations Act. See, e. g., Liberty Mut. Ins. Co. v. NLRB, 1 Cir., 1979, 592 F.2d 595, 603; NLRB v. Rich's of Plymouth, Inc., 1 Cir., 1978, 578 F.2d 880, 887 n.9.

Historically, the Board is prone to two errors: labelling the good reason "pretextual" without giving it adequate consideration, 2 or contenting itself with finding that the bad reason played a " substantial

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part." 3 This approach permitted one Board counsel to introduce his argument with the statement that this "is not a dual motive case," thereby assuming the point. The employer always asserts a good motive and the Board a bad one, and the division is not so simplistic. We envisage a greater number of possibilities.

  1. No basis for finding a bad reason.

  2. Bad reason, and "pretextual" good reason.

    (a) Evidence supporting asserted good reason is insubstantial or not credited.

    (b) Alleged good reason was not a motivation at all.

  3. Bad reason and good reason.

    (a) Good reason existed, but was insufficient without bad reason.

    (b) Good reason would, of itself, have produced the action.

    In types 0 and 2(b) the finding must be for the employer.

    Admittedly, it is not always easy to determine in which category a particular case falls. 4 The first difficulty may be in deciding whether a bad reason existed at all, one step being whether the company had the requisite knowledge of union activity. See, e. g., NLRB v. South Shore Hospital, 1 Cir., 1978, 571 F.2d 677, 683-84. Once that knowledge is established, the bad reason may be shown by independent evidence, or by the circumstances of the discharge itself. On rare occasions an employer may even admit to unlawful motivation, See n. 12, post, but the usual case of independent proof is by showing other acts apart from the discharge that indicate unlawful anti-union animus. E. g., Barnes & Noble Bookstores, Inc., post; Wonder Markets, Inc., post. Suspicions arising from the fact that a union supporter was fired in itself are not enough. Nor is employer gratification arising from realization that its action will harm the union. Dislike of unions is not uncommon among employers, and not only do principles of free speech permit it to be voiced, but so does section 8(c) of the Act. 5 To use protected expression to build a case would seem to make the Act a trap. Nonetheless, the Board does so, 6 a practice recently condemned in Florida Steel Corp. v. NLRB, 5 Cir., 1979, 587 F.2d 735. Rather, the employer must have exhibited opposition not merely to the union, but to lawful activity by its employees in pursuit of their objectives. We note, moreover, that other labor law violations do not " 'automatically make a discharge an unlawful one.' " NLRB v. Prince Macaroni Mfg. Co., 1 Cir., 1964, 329 F.2d 803, 806, a case often cited by the Board, but not for this caveat. 7 The circumstances must be viewed as a whole.

    The difficulties intensify when the Board has no independent evidence, and must find improper motivation in the circumstances of the discharge itself. This requires affirmative showing. Hiring and firing decisions are made routinely, and are not inherently improper even though they may occur at a time embarrassing to the union. If an employer asserts an obviously weak or implausible good reason, or one

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    manifestly unequally applied, this may support an inference that there was a bad reason. But where the burden is on the Board, except in such clear cases the mere fact that the Board considers the asserted good reason less than compelling will not suffice, as is illustrated by Eastern Smelting & Refining Corp., post. As we have frequently said, the Board may not set up its own business standards and then condemn the employer for not following them. NLRB v. Wells Fargo Armored Service Corp., 597 F.2d 7, at 11, 1 Cir., 1979. Unfortunately, however, the Board all too often has either disregarded altogether the valid reasons for the employers' conduct, 8 or has labeled the good reason pretextual, although it was apparent that it was a good reason of substance. 9 In one of the cases at bar the Board has reached the ultimate: the employer is criticized for making a judgmental decision which in a case we heard the month before the employer was criticized for not making. See n.21, post. It is difficult to accept such an approach as "expertise."

    Even if the Board can meet its burden of demonstrating improper motivation, the matter does not end there. The employer may still defend by proving that there was a good reason for the discharge and that "it would have reached the same decision . . . even in the absence of the protected conduct." Mt. Healthy City Board of Educ. v. Doyle, 1977, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471. The Board has never mentioned Mt. Healthy, let alone explained why it should be thought less serious to violate the First Amendment than the Labor Act. 10 We have put the Mt. Healthy principle in the past in terms that, if the employer has established a good reason, it is not to be charged unless its action would not have been taken " but for" the improper motivation, 11 words now to be found in the penultimate paragraph of the Court's recent opinion, following Mt. Healthy, in Givhan v. Western Line Consol. School Dist., --- U.S. ----, 99 S.Ct. 693, 58 L.Ed.2d 619 (79). Givhan held the employer entitled to this defense even though its improper motivation was the "primary" one an admitted reliance upon conduct which the Court found was constitutionally protected. However, using the Mt. Healthy and Givhan test, once the Board has shown a "significant" improper motivation, the burden is on the employer to prove that it had a good reason, sufficient in itself, to produce the discharge. Id., 429 U.S. at 287, 97 S.Ct. 568. 12

    The Board's persistent disregard of the principles governing mixed motive cases ultimately 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

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    cases illustrate, the...

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