N.L.R.B. v. Appletree Chevrolet, Inc.

• Decision Date: 01 November 1979
• Docket Number: No. 78-1780,I,AFL-CI,78-1780
• Parties: 103 L.R.R.M. (BNA) 2066, 87 Lab.Cas. P 11,649 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. APPLETREE CHEVROLET, INC., Respondent, Sheet Metal Workers' International Association, Local 66,ntervenor.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 988

608 F.2d 988

103 L.R.R.M. (BNA) 2066, 87 Lab.Cas. P 11,649

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. APPLETREE CHEVROLET, INC., Respondent,

Sheet Metal Workers' International Association, Local 66,

AFL-CIO, Intervenor.

No. 78-1780.

United States Court of Appeals,

Fourth Circuit.

Argued July 11, 1979.

Decided Nov. 1, 1979.

Sara McLaurin Green, N. L. R. B. (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 H. Ferguson, Washington, D. C., on brief), for petitioner.

Asa Ambrister (George V. Gardner, Gardner, Ambrister & Smith, Washington, D. C., on brief), for respondent.

Raymond J. Sweeney, Toledo, Ohio, for intervenor.

Before RUSSELL, Circuit Judge, FIELD, Senior Circuit Judge, and WIDENER, Circuit Judge.

DONALD RUSSELL, Circuit Judge:

The National Labor Relations Board has petitioned for enforcement of its order in a consolidated proceeding involving a complaint of unfair labor practices under 8(a)(1) and 8(a)(3) and (1) of the National Labor Relations Act and a representation proceeding under 8(a)(5) of that Act. (29 U.S.C. 151, Et seq.) ¹ We enforce in part and remand in part the order of the Board.

The respondent operates a Chevrolet dealership in Asheville, North Carolina. In connection with that business, it maintains a service department, a parts department, and a body shop. The bargaining unit involved consists of the employees in these three departments, who number between 45 and 51 employees. The Union's ² organizational efforts among these employees began with a meeting on January 6, 1977. It thereafter undertook actively to solicit authorization cards from the employees. On January 24, 1977, it advised the respondent by letter that 31 of the latter's employees in the relevant departments had signed authorization cards in favor of the Union and it requested "the Company (to) honor the rights guaranteed to employees under Section 7 * * *," in favor of these employees.

The complaint alleges that a few days before the receipt of the letter advising the respondent that the Union had secured authorization cards from a majority of the employees, the respondent undertook a series of acts intended to interfere with its employees' rights under the Act in violation of Section 8(a)(1). These alleged acts consisted of the solicitation of employees' grievances, the announcement of increased retirement and other employment benefits, threatening and coercive interrogation of employees, and, finally, the discharge of five employees in violation of 8(a)(3). After all this alleged misconduct on the part of the respondent had concluded, an election among the employees was held on February 25, 1977, under the Board's procedure to determine whether the employees wished to have the Union as its bargaining agent. At this election, a number of challenges were made, primarily by the respondent. The election resulted in 23 votes cast for the Union, 17 votes against it, with 17 votes challenged and uncounted. Hearing on these challenges was then consolidated with the hearing on the 8(a)(1) and 8(a)(3) alleged violations. After the consolidated hearing was concluded in August 1977, the administrative law judge filed his report.

The administrative law judge disposed of the unfair labor practice charges by finding that the respondent had violated 8(a)(1) of the Act in the particulars charged and 8(a)(3) by discharging four employees. ³ He concluded, on the basis of these findings, that the respondent should be ordered to bargain with the Union as "the majority representative of all employees in the appropriate unit from and after January 20, 1977, the date on which the Respondent first demonstrated to employees that it had embarked on an unlawful course of conduct." In connection with the representation proceedings, the administrative law judge resolved the various vote challenges entered at the representation election. After resolving the challenges, the administrative law judge recommended in this phase of the proceeding that the ballots of those employees who, although their right to vote had been challenged, were found qualified to vote, should be "opened, counted and that a revised tally of ballots issue," that if "the revised tally of ballots show(ed) that a majority of votes has been cast for the Union, then the Regional Director for Region 11 shall issue a certification of representative," but if "a majority (of) votes has not been cast for the Union, then the election shall be set aside, the Petition in Case No. 11-RC-4300 dismissed and all prior proceedings thereunder vacated."

The respondent excepted to the report of the administrative law judge both on his findings of 8(a)(1) and 8(a)(3) violations and on the challenges of the election. The Board, however, affirmed the "rulings, findings, and conclusions" of the administrative law judge and adopted his recommended order save in one particular. The administrative law judge had sustained the respondent's challenge of the ballots of three janitors working in the departments whose employees were within the stipulated bargaining unit. The Board disagreed with this conclusion of the administrative law judge and ordered the ballots of the three janitors counted in tallying the votes in the representation election.

The Board has petitioned this Court to enforce its consolidated order in the two proceedings. We enforce in part, deny in part, and delay in part enforcement. We find substantial evidence to support the Board's findings of violations of 8(a)(1) by the respondent. However, we do not find the evidence in the record sufficient to support the Board's findings of discriminatory discharges in violation of 8(a)(3). Neither did the Board have a sufficient factual basis for the issuance of a bargaining order. Finally, we find the resolutions of the challenges to votes at the representation election on February 25 by the Board fully supported by substantial evidence. In summary, we enforce the Board's cease and desist orders relating to the respondent's 8(a)(1) violations and uphold its decision on the challenged votes at the representation election, but we refuse to enforce the Board's order of reinstatement of employees Emory Gilley, David Bartlett, Pearson Junior Baines, and David Gillespie, and we remand the order providing for a bargaining order for consideration in the light of the results of the representation election.

We consider first the respondent's objections to the 8(a)(3) charge. The General Counsel charged that "these four employees were signaled out for discharge because of their specific union activity, especially their statements at the Moseley meetings." It was the respondent's position, on the other hand, that the parties discharged were the least productive employees in their respective departments and that they had been discharged in an effort to improve the productivity and efficiency of the departments. The administrative law judge found specifically that these employees "were not discharged because of statements made at the Moseley meetings" or "because of particular union activity," as the General Counsel had charged in his complaint. He also, found that the employees discharged "were among the least productive" in the two departments concerned, that "the Respondent certainly might discharge low producers," and that a discharge "in order to improve service department efficiency," which was the reason advanced by the respondent for the discharges, was "certainly (a) respectable" ground for discharge. On the basis of these findings the administrative law judge found that the respondent had what he described as "supportable" grounds for discharging these employees. These findings of the administrative law judge, affirmed by the Board, amounted, in effect, to a dismissal of the Board's charge of discriminatory discharges of these four employees.

Despite these specific findings against the charges of discriminatory discharges as alleged in the General Counsel's complaint, the administrative law judge went on to find that the employees' discharge violated the Act on a ground not raised by the General Counsel. The rationale for such a finding was unique under the circumstances. The administrative law judge, to quote his exact language, concluded, after finding that the General Counsel had not proved his claim of discriminatory discharge, "that the Respondent made a determination to discharge a group of employees in order to discourage the union activity generally," and then undertook to pick particular employees against whom some "supportable cause (for discharge) could be made." He then reasoned from this determination that the "supportable cause" for discharge was "pretextual" and that the dominant, motivating purpose of the discharges was to discourage union activity. In essence, what the administrative law judge concluded was that, even though these four employees were clearly unsatisfactory employees with the lowest productivity in their departments and even though their conduct had not been marked by any particular union activity, the respondent had discharged them, not for the reason given, which the administrative law judge found to be both "respectable" and "supportable," but in order thereby to frighten the other employees, whose productivity records did not place them in the same situation as these four and for whom there was no "supportable cause" for discharge, save possibly their Union prominence, into abandoning the Union.

In advancing this theory that the "supportable cause" for the discharges was not the real, but only the "pretextual" reason for the discharges, the administrative law judge was confronted with the well-settled rule that when an employer has a "supportable cause" for discharging an employee involved in an 8(a)(3) claim as both the administrative law judge and the...