662 F.2d 899 (1st Cir. 1981), 80-1721, N.L.R.B. v. Wright Line, a Div. of Wright Line, Inc.

Docket Nº:80-1721.
Citation:662 F.2d 899
Case Date:September 21, 1981
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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662 F.2d 899 (1st Cir. 1981)




No. 80-1721.

United States Court of Appeals, First Circuit

September 21, 1981

Argued April 8, 1981.

Joseph A. Schwachter, Pittsburgh, Pa., with whom William A. Lubbers, Gen. Counsel,

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John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, and Howard E. Perlstein, Washington, D.C., were on brief, for petitioner.

William H. DuRoss, III, Washington, D.C., with whom Gerard C. Smetana, Kovar & Smetana, Chicago, Ill., and Julius Kirle, Boston, Mass., were on brief, for respondent.

Before CAMPBELL, BOWNES and BREYER, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

Bernard Lamoureux, an activist in the Teamsters' two unsuccessful campaigns to organize Wright Line's employees, was discharged from his job as a shop inspector, ostensibly because he submitted an inaccurate record of the times at which he performed inspections on December 29, 1977. Upon Lamoureux's complaint, the Board found that Wright Line had discharged him because of his union activity, in violation of section 8(a)(3) of the National Labor Relations Act. The Board ordered Wright Line to reinstate Lamoureux with back pay. We enforce the Board's order.


Wright Line manufactures computer storage products to the specifications of customers, including government agencies. Lamoureux began working for Wright Line in 1966 and, with the exception of a period between 1971 and 1973, was employed there continuously until his discharge on December 30, 1977. The Board found, with substantial record support, that Lamoureux's work, throughout this period until December 29, 1977 was satisfactory or better. For the last two years of his employment, he worked in the company's Inspection Department, inspecting completed parts for quality and conformity to specifications. This position required that he keep records on two forms: the Inspection Report, which stayed with the blueprint for the inspected part, and the Daily Activity Sheet, on which he recorded the time of each inspection and which he submitted to his supervisor after each day's work.

In 1976, Lamoureux contacted Teamsters Local 170 and initiated an organizational drive among Wright Line's employees. The Board supportably found that Lamoureux was visibly active in the union campaign. An election was held on August 27, 1976, and Lamoureux served as an alternative observer for the union, which lost the election. A second campaign was conducted in the fall of 1977, and Lamoureux was again active. An election was held on October 20, 1977; the union lost again. The Board supportably found that Wright Line management conducted an aggressive (although not necessarily unlawful) campaign against the union, and that management was well aware of Lamoureux's activism, certain supervisors having made "gratuitous remarks" to him about it.

The Board found, on the basis of substantial evidence, that Lamoureux's discharge occurred as follows: on the morning of December 29, 1977, Plant Superintendent Southard asked Supervisor Forte to check on Lamoureux, reporting that he had seen Lamoureux entering the men's room carrying a newspaper. Forte went to Lamoureux's two assigned departments and walked between them until Lamoureux appeared some 35 minutes later. Forte then returned to his office, saying nothing to Lamoureux, and noted the times of Lamoureux's absence. Forte had made no attempt to locate Lamoureux, neither looking in the men's room nor using the plant's page system, although Lamoureux's job included several tasks which would require him to leave his departments for short periods. Later the same day, Forte had occasion to be in Lamoureux's department and did not find him there. About 30 minutes later he found Lamoureux at a workbench inspecting a part. Forte again made a record of the incident but did not ask Lamoureux to explain.

The next morning, Forte checked Lamoureux's Daily Activity Sheet and noted Lamoureux's report that he had made several

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inspections during the time when Forte had failed to find him in his departments. Forte presented this information to his own supervisor, who stated that this indicated a "dischargeable offense." The two consulted higher officials, who told them that they "could discharge" Lamoureux if his account substantiated the charge. Forte prepared a written report of the incident, had Lamoureux's final paycheck prepared, and then summoned Lamoureux to a meeting with himself and two others. Confronted with the charge, Lamoureux admitted that "the times weren't accurate and they never were," stating that "if you want them right to the second, I can put them right to the second," and asserting that the real reason for the confrontation was his union activity. The supervisors denied this charge and discharged Lamoureux, saying that they no longer considered him trustworthy. 1


Section 8(a)(3) of the National Labor Relations Act, 29 U.S.C. § 158(a)(3), provides that,

(a) It shall be an unfair labor practice for an employer

(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization.

This provision is supplemented by section 10(c) of the Act, 29 U.S.C. § 160(c), which authorizes the Board to take remedial action, with the following limitation:

No order of the Board shall require the reinstatement of any individual as an employee who has been suspended or discharged, or the payment to him of any backpay, if such individual was suspended or discharged for cause.

Section 8(a)(3) imposes a prohibition on employers which is simple to state but often difficult to apply in practice: they may not discharge an employee because of his union activity; but they may and should apply their usual rules and disciplinary standards to a union activist just as they would to any other employee. Hence, in a given discharge case it must be decided whether the employer acted because of the employee's union affiliation, or whether he acted because of some factor unrelated to the employee's union status. Local 357, International Brotherhood of Teamsters v. NLRB, 365 U.S. 667, 675, 81 S.Ct. 835, 839, 6 L.Ed.2d 11 (1961) (test is "true purpose" or "real motive").

Often, of course, there are competing explanations of why an employee was fired. Board counsel will point to evidence of anti-union motivation. The employer will cite some instance of misconduct, and will deny having been motivated by any other consideration. In such a situation, the Board needs to determine not only whether the asserted misconduct occurred, but whether, even so, it effectively produced the discharge. The employer will doubtless lose if the asserted misconduct is shown not to have occurred. But suppose it occurred? In such event, Board counsel will argue that it was insufficient cause for discharge-that a non-activist would have been retained notwithstanding the offense. The employer, on the other hand, will deny this, and will insist, moreover, on his right, as the employer, to determine what conduct is or is not acceptable.

The Board's approach to these cases-sometimes, although without complete accuracy, termed "mixed motive" cases-has been the source of a continuing controversy among the circuits and between the Board and this court. In the present case, the Board has taken a new approach. Relying on Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), and precedent from this circuit, the Board announced the following rule: general counsel must first "make a prima facie showing sufficient to support the inference that (the employer's opposition to) protected conduct was a 'motivating

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factor' in the employer's (discharge) decision. Once this is established, the burden will shift to the employer to demonstrate that the same action would have taken place even in the absence of the protected conduct." 251 NLRB No. 150, at 20-21. Applying that test here, the Board found that the prima facie case had been made and that Wright Line failed to prove that it would have taken the same action regardless of Lamoureux's union activity. Wright Line challenges the Board's new approach and its application here as contrary to the provisions of the statute and beyond the powers of the Board in that it places the burden of persuasion on the employer. We are thus called upon to pass on the validity of the Board's new rule as well as on its application to this record. 2

We start by observing that the Board's new rule seems better than its old one. Previously the Board would find a violation of section 8(a)(3) and order reinstatement whenever it concluded that the discharge was even partially motivated by opposition to union membership. Under this approach, a discharge was improper even if it would have occurred absent the illegal motivation, e. g., the employee may have committed an infraction so serious that any employee-union or non-union-would have been fired. This partial motivation test-as the Board now acknowledges-placed "the union activist in an almost impregnable position once (anti-)union animus has been established." Activists could not be discharged for conduct that would be unforgivable in the case of another employee. The result was to immunize union activists against legitimate discipline for genuine offenses, and to deprive employers of the freedom to apply their own rules uniformly to all their employees. See NLRB v. Wilson Freight Co., 604 F.2d 712 (1st Cir. 1979); NLRB v. Eastern Smelting & Refining Corp., 598 F.2d 666 (1st Cir. 1979); Liberty Mutual Insurance Co. v. NLRB, 592 F.2d 595 (1st Cir. 1979); Hubbard Regional Hospital v. NLRB, 579 F.2d 1251...

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