Holo-Krome Co. v. N.L.R.B.
| Decision Date | 17 January 1992 |
| Docket Number | 322,Nos. 163,D,HOLO-KROME,s. 163 |
| Citation | 947 F.2d 588 |
| Parties | 138 L.R.R.M. (BNA) 2661, 60 USLW 2372, 60 USLW 23,721, 120 Lab.Cas. P 10,977 COMPANY, Petitioner-Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner, International Union, United Automobile, Aeorspace and Agricultural Implement Workers of America, (UAW), Local 376, Intervenor. ockets 91-4061, 91-4085. |
| Court | U.S. Court of Appeals — Second Circuit |
Burton Kainen, Hartford, Conn. (Diana Garfield, Siegel, O'Connor, Schiff, Zangari
& Kainen, P.C., on the brief), for petitioner-cross-respondent.
Marilyn O'Rourke, Washington, D.C. (Jerry M. Hunter, Gen. Counsel, D. Randall Frye, Acting Deputy Gen. Counsel, Aileen A. Armstrong, Deputy Associate Gen. Counsel, and William R. Stewart, Deputy Asst. Gen. Counsel, on the brief), for respondent-cross-petitioner.
Gregg D. Adler, Hartford, Conn. (Stephen E. Meili, Gould, Livingston, Adler & Pulda, on the brief), for intervenor.
Before NEWMAN and PRATT, Circuit Judges, and POLLACK, District Judge. *
Holo-Krome Co. asks us to set aside a supplemental decision and order of the National Labor Relations Board (the "Board") issued on April 5, 1991, reversing the conclusion of an Administrative Law Judge (the "ALJ") that Holo-Krome, the employer, did not violate Sections 8(a)(1), (3) and (4) of the National Labor Relations Act (the "Act"), 29 U.S.C. §§ 151-68. Holo-Krome Co., 302 N.L.R.B. No. 71, 137 L.R.R.M. 1208 (Apr. 5, 1991). The Board's order directs reinstatement and back pay relief and the Board's General Counsel has made a cross-application for enforcement. The International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), Local 376 (the "Union"), the charging party, was granted leave to intervene in support of the Board. Because there simply is not substantial evidence that the employer violated the Act, or that the failure to rehire Union supporters Giuseppe Pace and John Rutkauski was unlawfully motivated and prompted by the employees' exercise of protected activity, we grant the petition, set aside the Board's finding of violation, deny enforcement and dismiss the proceedings.
Giuseppe Pace and John Rutkauski had worked in Holo-Krome's West Hartford, Connecticut industrial fastener manufacturing plant for 11 and eight years, respectively, when the Union attempted to organize Holo-Krome's workers in 1985. Both employees openly and actively supported this effort, which ultimately failed. Following the unsuccessful Union election, Holo-Krome worker George Campbell, an election observer, refused to shake Pace's hand when Pace told him "no hard feelings." Campbell later became plant manager.
More than six months after the election, Holo-Krome laid off Pace and Rutkauski along with several other of the plant's 170 employees. The Union claimed that the layoff was discriminatory, but the Board's regional office refused to issue a complaint, finding in June 1986 that the layoff and failure to recall certain employees, including Pace and Rutkauski, was a legitimate economic measure. The regional office determined that Holo-Krome did not have a policy of recalling former employees and that neither Pace nor Rutkauski had even reapplied for employment since the layoff.
The following month, Rutkauski inquired about reemployment with Holo-Krome and was told that the company was not hiring. The next day Holo-Krome began advertising job openings in several newspapers. Pace also contacted Holo-Krome about rehiring and was told to come in and fill out an application. The next day Campbell, who by then had been promoted to plant manager, informed the hiring employee to stop taking applications for the advertised positions because one was being automated and the other was being filled internally. A few days later Pace and Rutkauski submitted applications but were not hired. Holo-Krome did not hire anyone to fill the advertised positions. Three months later, in late September 1986, the Board issued a complaint alleging that Holo-Krome violated In January 1987, Holo-Krome notified Rutkauski and Pace by mail of a job opening, for which Rutkauski promptly applied. Holo-Krome hired him shortly thereafter. Later that month, Holo-Krome tried to call Pace several times about another job opening, but only reached his family. Holo-Krome also sent him a certified letter, which Pace never picked up. Pace did not contact Holo-Krome until the end of February, when the opening was no longer available.
the Act by refusing to hire Pace and Rutkauski because of their unionizing activities and involvement with the prior unfair labor practices complaint, which the regional office of the Board had rejected.
On March 17, 1988 an ALJ found that the Board's General Counsel did not establish a prima facie case that Holo-Krome acted unlawfully by failing to rehire Pace and Rutkauski. See Wright Line, Div. of Wright Line, Inc., 251 N.L.R.B. 1083, (1980), enforced as modified, 662 F.2d 899 (1st Cir.1981), cert. denied, 455 U.S. 989, 102 S.Ct. 1612, 71 L.Ed.2d 848 (1982). The Board reversed the ALJ's ruling the following year. Holo-Krome Co, 293 N.L.R.B. No. 65, 1988-89, NLRB Dec. (CCH) p 15,451 (March 31, 1989). 1 Holo-Krome petitioned for review and the General Counsel cross-petitioned for enforcement.
This Court found in July 1990 that the Board improperly relied on Holo-Krome's lawful expressions of opinion about union activity 2 as a basis for finding anti-union animus. Holo-Krome Co. v. NLRB, 907 F.2d 1343 (2d Cir.1990). Therefore, we remanded the case for reconsideration without reference to such statements. We explicitly did not rule whether the Board's order was otherwise supported by substantial evidence. This Court also ordered the Board to correct its order regarding Rutkauski's back pay period, if the Board affirmed, since the Board mistakenly ordered backpay for two years in which Rutkauski worked for Holo-Krome. We further ordered that if the Board found an obligation to rehire Pace, it should determine whether Holo-Krome met its obligation, since the Board did not rule on that aspect of the ALJ's findings.
The Board did affirm its prior holding and found that Holo-Krome's certified letter to Pace did not constitute a valid employment offer. Holo-Krome petitioned for review and the Board cross-petitioned for enforcement.
On this appeal, Holo-Krome claims that the Board did not follow this Court's instructions on remand, that the Board's decision that the General Counsel made a prima facie case was not based on substantial evidence and ignored the ALJ's resolution of credibility issues, that the Board misapplied the Wright Line rule requiring the plaintiffs to establish a prima facie case, see Wright Line, supra, and that Pace had no right to reinstatement even if there were a violation.
In an action under the Act, the General Counsel bears the burden of proving by a preponderance of the credible evidence that an employee's protected conduct was a substantial or motivating factor in an employer's adverse personnel decision. The employer can, however, avoid liability after the General Counsel has made a prima facie case by showing it would have taken the same actions regardless of this forbidden motivation. NLRB v. Transportation Management Corp., 462 U.S. 393, 397-403, 103 S.Ct. 2469, 2472-75, 76 L.Ed.2d 667, 672-76 (1983) (). Subsequent application of this "Wright Line rule" has demonstrated that the General Counsel's burden is not insignificant. If the General Since the ALJ in this case found that the General Counsel failed to make an adequate prima facie case, Holo-Krome's explanations of why it acted as it did toward Pace and Rutkauski were not initially at issue. The Board, in turn, was bound by the same rule of law as the ALJ: it should not have evaluated Holo-Krome's rebuttal evidence until it found that the General Counsel had indeed presented an adequate prima facie case. 3 Nevertheless, the Board considered the weakness of rebuttal evidence, chiefly in the form of then-Plant Manager Campbell's testimony, to find that the General Counsel established a prima facie case.
Counsel presents evidence of employer conduct that can be interpreted either as lawful or unlawful and the record as a whole does not provide a sufficient basis for choosing the unlawful interpretation, the burden has not been met by the General Counsel. See Pullman Power Products Corp., 275 N.L.R.B. 765, 767-68 (1985)
The Board cites to appellate cases from other jurisdictions in both its initial opinion and opinion on remand to justify considering rebuttal evidence as part of the prima facie case, but this approach is not only counterintuitive, it negates the established Wright Line rule. 4 We note that the ALJ was in accord with the Board in finding Holo-Krome's rebuttal evidence unpersuasive, Holo-Krome Co. and UAW, Local 376, No. 39-CA-3112 (N.L.R.B., Div. of Judges 1988) slip op. at 6 n. 4, but the ALJ recognized that the General Counsel could not benefit from this weakness until the General Counsel's burden of proof was satisfied. Id.
Beyond the misallocation of the burden of proof in this case, we feel compelled to set aside the Board's holding based on the insubstantial nature of the General Counsel's evidence itself.
The Board's finding that the General Counsel demonstrated violations of the Act must be supported by "substantial evidence on the record considered as a whole." 29 U.S.C. § 160(e). ...
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