Airport Parking Management v. N.L.R.B.

• Decision Date: 08 November 1983
• Docket Number: 83-7033,Nos. 82-7705,s. 82-7705
• Citation: 720 F.2d 610
• Parties: 114 L.R.R.M. (BNA) 3484, 99 Lab.Cas. P 10,529 AIRPORT PARKING MANAGEMENT, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. NATIONAL LABOR RELATIONS BOARD, Cross-Petitioner, v. AIRPORT PARKING MANAGEMENT, Cross-Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 610

720 F.2d 610

114 L.R.R.M. (BNA) 3484, 99 Lab.Cas. P 10,529

AIRPORT PARKING MANAGEMENT, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

NATIONAL LABOR RELATIONS BOARD, Cross-Petitioner, v. AIRPORT PARKING MANAGEMENT, Cross-Respondent.

Nos. 82-7705, 83-7033.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Aug. 8, 1983.

Decided Nov. 8, 1983.

Dennis P. Ruel, San Francisco, Cal., for petitioner.

Victoria Higman, N.L.R.B., Washington, D.C., for respondent.

Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.

Before WALLACE, SNEED, and FARRIS, Circuit Judges.

WALLACE, Circuit Judge:

The National Labor Relations Board (the Board) entered an order against Airport Parking Management (the employer) for violations of subsections 8(a)(1) and 8(a)(3) of the National Labor Relations Act (the Act), 29 U.S.C. Sec. 158(a)(1) and (3). The Board found that the employer violated subsection 8(a)(1) by threatening to discharge employees for strike participation and by inquiring among employees about their support for the strike. The Board also concluded that the employer violated subsections 8(a)(1) and 8(a)(3) by firing employee Allen because of his union activities and by refusing to reinstate immediately the striking employees, who struck in part because of Allen's dismissal, after they made unconditional offers to return to work. The Board ordered the employer to cease and desist from its violations, reinstate Allen and the unfair labor practice strikers with back pay, post appropriate notices, and expunge from the records of Allen and the strikers all references to their discharge or failure to be reinstated. 264 N.L.R.B. No. 2 (1983). The employer filed a petition for review under 29 U.S.C. Sec. 160(f). The Board cross-applied for enforcement of its order under 29 U.S.C. Sec. 160(e). We deny the petition and enforce the order.

I

The employer operates a taxi dispatch system at San Francisco International Airport. Its dispatchers and cashiers belong to the Office and Professional Employees International Union, Local Number 3, AFL-CIO (the union). On June 30, 1980, the collective bargaining agreement between the union and the employer covering the terms of employment for dispatchers and cashiers expired. The employer and the union agreed to extend the contract indefinitely while negotiating a successor agreement, but each retained the right to terminate the extension on seventy-two hours notice. The chief negotiator for the union was Jones, its business representative. Allen, a dispatcher and union shop steward, also participated in the negotiations.

About August 22, 1980, Riddle, the manager of taxi operations and the supervisor of Allen and the other taxi dispatchers and cashiers, telephoned an employee and union member and stated he had heard rumors of a strike and wanted to know who would work if the union called one. Riddle also said the employees were going to lose jobs because of Allen, Jones, and the union. Riddle cautioned another employee that if the employees followed Jones and Allen, the employees would lose their jobs. At a union meeting on August 25, its members voted to give Jones authority to terminate the extension of the contract while continuing to negotiate. Around August 28, Riddle, in an acrimonious conversation, told Allen that anyone who went on strike would be fired. Riddle also told Allen that he owed Riddle loyalty, because if it were not for Riddle, the employees would not be working for the employer. A few days later, Riddle repeated essentially the same message to Allen. On September 3, Riddle again advised an employee that if the employees listened to Allen, they would lose their jobs. Riddle also said he was drawing up a list of people who would work, and they could bargain for themselves. He claimed the union would not be there if a strike occurred. Despite whatever irritations these conversations may have created, when the union voted on September 12 whether or not to accept the employer's proposal for a new contract, no strike was called. The strike proposal was rejected by a tie vote.

On September 18 Riddle gave Allen notice that he had been fired. According to Riddle, Allen was discharged for parking his car in a no parking zone and being insubordinate to a police officer. These incidents occurred about one month before Allen's discharge. Allen had two previous disciplinary problems, each related to separate altercations with taxi customers in October of 1979. In each of those cases, Riddle had reduced the discipline imposed on Allen to warning letters after the union interceded to present Allen's side of the matter. This time, however, Allen was simply fired. Apparently referring to Allen's loyalty to the union rather than to the employer, Riddle said that, although he could have intervened on Allen's behalf to prevent the firing, he did not: "You didn't show me any loyalty, why should I show you any?"

At the next union meetings, held five days after Allen's firing, the members discussed both economic issues and their shop steward's discharge. A resounding majority voted at the end of the meetings to reject the employer's contract offer, to go out on strike, and to demand Allen's reinstatement. Three days later, in an attempt to avert a strike, the union and the employer met with a federal mediator. The union requested a dollar-per-hour wage increase and the reinstatement of Allen. The effort at conciliation failed, and a strike began the next day. On September 29, the union filed charges against the employer alleging that Allen's discharge violated subsections 8(a)(1) and (3). The Board issued a complaint for this charge on Christmas Eve of 1980.

In January of 1981, during the strike, three striking employees reapplied to the employer for jobs, in effect offering unconditionally to return to work. In February, the union filed another unfair labor practice charge against the employer. On March 16 1981, Jones made an unconditional offer on behalf of the union members for their return to work. Shortly after making this offer, Jones agreed to the employer's strike settlement proposal, which included provision for the reinstatement of strikers without back pay according to seniority as jobs became available. The settlement also called for the union to withdraw the pending unfair labor practice charges and not reinstitute them.

In accord with the settlement, the union requested withdrawal of the unfair labor practice charges. On March 19, three days after the settlement, the union also instituted a new unfair labor practice charge alleging violations of subsections 8(a)(1) and (3) for the employer's refusal to reinstate the strikers upon their unconditional offers to return to work.

The Board refused to allow the withdrawal of the union's first charge concerning Allen's discharge. Instead, that charge and the newest charge were consolidated. An Administrative Law Judge (ALJ) found the employer had violated subsections 8(a)(1) and (3) both in firing Allen and in refusing to reinstate the strikers. The ALJ also refused to defer to the strike settlement agreement. The Board affirmed the findings and conclusions of the ALJ and essentially adopted his recommended order.

The employer argues: (1) the Board imposed an improper burden of proof in finding Allen was fired for protected union activity, and further that this finding is not supported by substantial evidence; (2) the Board's finding that the strike was an unfair labor practice strike is not supported by substantial evidence; and (3) the Board abused its discretion in failing to defer to the strike settlement agreement.

II

We must enforce the decision reached by the Board if the Board correctly applied the law and if substantial evidence in the record as a whole supports the Board's findings of fact. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951); Royal Development Co. v. NLRB, 703 F.2d 363, 366 (9th Cir.1983).

The employer properly points out that in Royal Development Co. we questioned the Board's burden shifting rule in "mixed-motive" unfair labor practice claims established in Wright Line, a Division of Wright Line, Inc., 251 N.L.R.B. 1083 (1980), enforced, 662 F.2d 899 (1st Cir.1981), cert. denied, 455 U.S. 989, 102 S.Ct. 1612, 71 L.Ed.2d 848 (1982). See Royal Development Co. v. NLRB, 703 F.2d at 367-70. The Board applies Wright Line when an employee claims to have been discriminated against by his employer--for example, by having been fired--because of union activity or other protected conduct under section 7 of the Act, but the employer claims to have acted for a lawful business reason. To prove an unfair labor practice in such situations, the Board requires:

that the General Counsel make a prima facie showing sufficient to support the inference that protected conduct was a "motivating factor" in the employer's 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 protected conduct.

251 N.L.R.B. at 1089 (footnote omitted). The question of the application of this rule, however, is no longer open because the Supreme Court has approved the Wright Line burden shifting procedure. NLRB v. Transportation Management Corp., --- U.S. ----, 103 S.Ct. 2469, 76 L.Ed.2d 667 (1983). See Humes Electric, Inc. v. NLRB, 715 F.2d 468 (9th Cir.1983). The ALJ properly applied this procedure.

We also conclude that the record contains substantial evidence that the employer contemplated discharges for protected activity. Riddle threatened Allen more than once that anyone who struck would be fired. The employer departed from its prior practice with respect to Allen when it failed to give him an opportunity to have the union intercede for him in the parking incident alleged to have precipitated his...