N.L.R.B. v. United Sanitation Service, Div. of Sanitas Service Corp.

Citation737 F.2d 936
Decision Date26 July 1984
Docket NumberNo. 83-3194,83-3194
Parties116 L.R.R.M. (BNA) 3302, 101 Lab.Cas. P 11,143, 16 Fed. R. Evid. Serv. 66 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. UNITED SANITATION SERVICE, DIVISION OF SANITAS SERVICE CORPORATION, Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

Elliott Moore, Deputy Associate Gen. Counsel, Paul Bateman, N.L.R.B., Washington, D.C., for petitioner.

G. William Baab, Mullinax, Wells, Baab & Cloutman, Dallas, Tex., for amicus curiae Southern Conference of Teamsters.

Herbert B. Mintz, W. Russell Hamilton, Miami, Fla., for respondent.

Application for Enforcement of an Order of the National Labor Relations Board.

Before GODBOLD, Chief Judge, TJOFLAT and HENDERSON, Circuit Judges.

ALBERT J. HENDERSON, Circuit Judge:

The National Labor Relations Board ("Board") petitions for enforcement of an order directed against United Sanitation Services, Division of Sanitas Service Corporation ("Company") for violations of sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act, 29 U.S.C. Secs. 158(a)(1), (3) ("Act").

After reviewing the findings of the Administrative Law Judge ("ALJ"), the Board concluded that the Company engaged in certain unfair labor practices before, during and after an employee representation election in Miami, Florida. The Board specifically found that the Company urged its employees to report pressure tactics by union organizers in their efforts to secure signature cards, asked employees if they had been invited by union agents to join the union, requested employees to report to management the names of fellow workers who attended union meetings, threatened to discharge employees in retaliation for their pro-union sentiments or activities, warned employees they would be fired if they engaged in a strike, and informed employees that management maintained a list of pro-union employees. The Board also found that the Company violated sections 8(a)(3) and (1) of the Act by dismissing Terry Lee because of his purported union activity. The Board maintains that this conduct interfered with the rights of the employees to organize for the purpose of collective bargaining in violation of Section 7 of the Act. 29 U.S.C. Sec. 157.

The Board ordered the Company to cease and desist from engaging in these alleged unfair labor practices and from interfering with, restraining or coercing employees in the exercise of their rights guaranteed by section 7 of the Act. Affirmatively, the Board ordered the Company to pay to the estate of Terry Lee, who died on February 21, 1981, the monetary value of any loss of earnings that he may have suffered by virtue of his alleged discriminatory discharge, together with interest, and to post an appropriate notice.

In this enforcement proceeding, the Company challenges four of the Board's findings. It denies that it unlawfully (1) threatened to fire those employees who engaged in union activities, (2) threatened to discharge striking employees, (3) interrogated employees in an effort to determine if union agents invited them to join the union, and (4) discharged employee Terry Lee for his union activities. 1

The first two issues raised by the Company do not require detailed analysis. There was substantial evidence supporting the Board's determination. In our review of the Board's decision, we are bound by the Board's factual determinations if they are supported by substantial evidence on the record considered as a whole. Weather Tower v. NLRB, 676 F.2d 483, 487 (11th Cir.1982). If the Board has made a "plausible inference from the evidence, this court may not overturn its findings, although if deciding the case de novo, the court might have made contrary findings." Id., citing Sturgis Newport Business Forms, Inc. v. NLRB, 563 F.2d 1252, 1256 (5th Cir.1977). 2

These allegations of error essentially attack credibility determinations of the Administrative Law Judge. The former Fifth Circuit Court of Appeals has consistently held that credibility resolutions are peculiarly within the province of the ALJ and the Board and are entitled to deference unless inherently unreasonable or self-contradictory. See, e.g., NLRB v. Proler International Corp., 635 F.2d 351, 355 (5th Cir.1981); NLRB v. Standard Forge and Axle Co., 420 F.2d 508, 510 (5th Cir.1969), cert. denied, 400 U.S. 903, 91 S.Ct. 140, 27 L.Ed.2d 140 (1970). Nothing in the record suggests that the ALJ's determinations were either unreasonable or self-contradictory.

The Company's third contention--that it did not unlawfully interrogate employees- --cannot be dismissed on mere substantial evidence grounds. Subsequent to the Board's decision in this case, it adopted a new standard on the issue of unlawful interrogations in Rossmore House, 269 NLRB No. 198, 116 LRRM 1025 (1984). 3 The Company contends that were the Board to reconsider the facts of this case in light of Rossmore House it would not find the Company guilty of illegal interrogation and would accordingly modify the scope of the order and notice. Although we do not intimate an opinion as to the outcome, we believe that reconsideration of the interrogation issue is necessary and therefore vacate and remand such portions of the Board's findings and order as specifically relate to this issue. 4

The company finally urges that employee Terry Lee was discharged for legitimate reasons. This is an attack not only on the ultimate conclusion reached by the Board, but also on the admissibility of key evidence relied upon by the General Counsel in proving the reason for the discharge.

It is well settled that the discharge of an employee because of his or her union organizing efforts or other protected activity constitutes a violation of sections 8(a)(3) and (1) of the Act. See generally, NLRB v. Southern Plasma Corp., 626 F.2d 1287 (5th Cir.1980); NLRB v. Garland Knitting Mills, 408 F.2d 672, 673 (5th Cir.1969). The question of an employer's motivation in section 8(a)(3) cases is a question of fact to be resolved by the Board from a consideration of all the evidence. NLRB v. Southern Plasma Corp., 626 F.2d at 1294.

The Board established guidelines for the determination of true employer motivation in Wright Line, a Division of Wright Line, 251 NLRB 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), 5 which mandates three phases of proof. First, the General Counsel must show by a preponderance of the evidence that a protected activity was a motivating factor in the employer's decision to discharge an employee. Such a showing establishes a section 8(a)(3) violation unless the employer can show as an affirmative defense that it would have discharged the employee for a legitimate reason regardless of the protected activity. The General Counsel may then offer evidence that the employer's proffered "legitimate" explanation is pretextual--that the reason either did not exist or was not in fact relied upon--and thereby conclusively restore the inference of unlawful motivation.

In the instant case, the Board concluded that the General Counsel sustained his initial burden of showing that Terry Lee's union activities were a motivating factor in the Company's decision to terminate his services. The Company responded by proffering a legitimate reason for his discharge--his failure to furnish the Company by a prescribed date and time a valid chauffeurs license which was necessary in the performance of his work duties.

The General Counsel then presented evidence that the Company discharged Lee even though it knew that his driving record had been corrected and that his license would be reinstated upon the completion of certain paperwork; that the Company had insisted that Lee drive when it knew his license was suspended; and that the Company had retained two other drivers whose licenses were under suspension. On the basis of this evidence, the Board determined that the employer's excuse was, in fact, pretextual, and that the Company had violated the terms of section 8(a)(3).

A key element of the evidence presented by the General Counsel at the third stage was in the form of an affidavit prepared by the Board's Field Examiner and signed by Lee in which events relevant to the unfair labor charge were delineated in great detail. Lee died before the hearing on his charge, and his affidavit was admitted into evidence to prove the matters stated in it. The Company objected, arguing that the affidavit constituted hearsay under Fed.R.Evid. 801(c), and was thus inadmissible to prove the matters asserted therein. Fed.R.Evid. 802. The Board, however, found the affidavit admissible under Fed.R.Evid. 804(b)(5), the residual exception to the hearsay rule. The Company here contends that the Board erred in determining that the affidavit met the Fed.R.Evid. 804(b)(5) requirements.

Rule 804(b)(5) provides that an extra-judicial statement made by an unavailable declarant is not excluded by the hearsay rule if the statement has circumstantial guarantees of trustworthiness equivalent to those listed in Rule 804(b)(1)-(4)--former testimony, belief of impending death, statement against interest, and personal or family history. The Company claims that Lee's affidavit meets none of these criteria and, therefore, that the Board erred in admitting this crucial evidence.

In our view, the admission of the affidavit was error. Although the Board is not held as closely to the rules of evidence as are the courts, see NLRB v. Capitol Fish Co., 294 F.2d 868, 872 (5th Cir.1961), the Act provides that Board proceedings shall, "so far as practicable," be conducted in accordance with the rules. 29 U.S.C. Sec. 160(b). We can discern no reason why the hearsay rules should not govern here. Such an application reveals that the affidavit does not fall within the limited exceptions contained in Rule 804(b)(5).

The affidavits do not constitute "former testimony," nor do they relate to "personal...

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