Berry Schools v. N.L.R.B.

• Decision Date: 17 August 1981
• Docket Number: No. 79-1266,79-1266
• Citation: 653 F.2d 966
• Parties: 108 L.R.R.M. (BNA) 2011, 92 Lab.Cas. P 12,942 The BERRY SCHOOLS, Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner. . Unit B
• Court: U.S. Court of Appeals — Fifth Circuit

Page 966

653 F.2d 966

108 L.R.R.M. (BNA) 2011, 92 Lab.Cas. P 12,942

The BERRY SCHOOLS, Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner.

No. 79-1266.

United States Court of Appeals, Fifth Circuit.

Unit B

Aug. 17, 1981.

Fisher & Phillips, Robert W. Ashmore, Richmond Mason Barge, Atlanta, Ga., for petitioner, cross-respondent.

Elliott Moore, Deputy Associate, Gen. Counsel, Howard E. Perlstein, N. L. R. B., Washington, D. C., for respondent, cross-petitioner.

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

Before GEWIN ^*, RONEY and HATCHETT, Circuit Judges.

RONEY, Circuit Judge:

This case is before the Court on petition for review and cross-application for enforcement of an order of the National Labor Relations Board finding The Berry Schools committed an unfair labor practice by granting only a substandard salary increase to Dr. N. Gordon Carper for the 1977-78 academic year. Because there is insufficient evidence in the record to support the Board's finding that the action was in retaliation for Carper's protected concerted activity, we set aside the Board's order and deny enforcement.

Briefly stated, the facts are these. Dr. Carper joined the faculty of Berry College in 1965 as Assistant Professor of History and Chairman of the Social Science Department. He was subsequently promoted to full professor, awarded tenure and named one of four Dana Professors, a distinguished chair. In March 1975 Carper attended an informal meeting of approximately forty faculty members to discuss salary increases. This group, termed the "Concerned Forty," appointed Carper chairman of an ad hoc committee to investigate the possible advantages of collective bargaining for the faculty. The committee met twice but never made a report. After being made aware of these activities, the President of Berry College, Dr. John R. Bertrand, gave a speech before the faculty and staff explaining why he believed collective bargaining was inappropriate at Berry. He referred in his speech to a "small power bloc" allegedly maneuvering to gain control over the faculty. Shortly thereafter Carper was replaced as chairman of the Social Science Department and the faculty member who had organized the Concerned Forty meeting, Dr. Joyce Jackson, was denied promotion to full professorship.

Initially, The Berry Schools was charged with violating section 8(a)(1) of the National Labor Relations Act (Act), 29 U.S.C.A. § 158(a)(1), for demoting Carper and failing to promote Dr. Jackson. The Board ruled that Carper, as department chairman, was not protected by the Act because he exercised supervisory powers, but that failure to promote Jackson was in reprisal for her attempts to engage in protected activity. The Berry Schools, 234 N.L.R.B. No. 145. In The Berry Schools v. NLRB, 627 F.2d 692 (5th Cir. 1980) (Berry I ), this Court affirmed the Board's ruling as to Carper but reversed the finding of an unfair labor practice as to Jackson because there were legitimate reasons for not promoting her and President Bertrand had decided not to promote her several months before she engaged in protected activity.

After he was removed as department chairman, Carper continued to speak out regarding certain administration practices. In particular, during faculty meetings in January and February of 1977, he advocated a ten percent salary increase for all faculty and renewal of a sabbatical program. These suggestions were overwhelmingly endorsed by the faculty.

Friction developed between Carper and his replacement as department chairman, Dr. Robert Geisel. As part of the salary review process Geisel was required to evaluate each member of his department at the beginning of each year, based on his previous year's performance. In January 1977, Geisel rated Carper as "below average," the lowest possible ranking. The Associate Dean for Arts and Sciences, Dr. Barbara Abels, also was to make an independent evaluation of each professor in Geisel's department. She too rated Carper as below average. These evaluations were sent to the Vice President and Dean of Academic Affairs, Dr. Doyle Mathis. Although Mathis could add his own evaluation if he disagreed with the prior two, he did not make an independent evaluation of Carper. Mathis then met with two other administrators, the Director of Management and Planning and the Controller, to determine tentative salary increases for each faculty member. The tentative increases were submitted to President Bertrand, who approved a $700 increase for Carper without question. The $700 represented a 3.35 percent increase for Carper. The average percentage increase for all continuing faculty for 1977-78 was 6.21 percent.

While the decision of this Court in Berry I was pending, the instant action was initiated charging that Carper's failure to get a larger salary increase was motivated by unlawful animus. Although the Administrative Law Judge (ALJ) concluded there was insufficient evidence in the record to show that Carper had been discriminated against because of his protected activity, the Board reversed.

Section 8(a)(1) of the Act makes it an unfair labor practice for an employer "to interfere with, restrain or coerce employees in the exercise of rights" protected by the Act. An employer's denial of part or all of an employee's salary increase for engaging in protected activity is a violation of section 8(a)(1). See NLRB v. Dothan Eagle, Inc., 434 F.2d 93, 97-99 (5th Cir. 1970).

The Board's ruling that an unfair labor practice has been committed must be sustained by the Court if it is supported by substantial evidence in the record:

If the Board's decision is based upon such relevant evidence as might be accepted as adequate by a reasonable person, we are not at liberty to deny enforcement merely because the evidence may also reasonably support other conclusions or because we might have reached a different conclusion had the matter come before this Court de novo. NLRB v. United Insurance Co., 390 U.S. 254, 88 S.Ct. 988, 19 L.Ed.2d 1083 (1968); NLRB v. O. A. Fuller Super Markets, Inc., 374 F.2d 197 (5th Cir. 1967); NLRB v. Camco, Inc., 369 F.2d 125 (5th Cir. 1966). Although the scope of our review is thus limited, we may deny enforcement of an order of the Board if, after full review of the record, we are unable conscientiously to conclude that the evidence supporting the Board's decision is substantial. Universal Camera Corp. v. NLRB, 340 U.S. (474) at 488, 71 S.Ct. 456 (95 L.Ed. 456) ((1951)); NLRB v. O. A. Fuller Super Markets, Inc., 374 F.2d at 200.

NLRB v. Mueller Brass Co., 509 F.2d 704, 706-07 (5th Cir. 1975). Moreover, where the Board has reversed a decision of the ALJ finding no unlawful behavior, the Court has an obligation to examine the evidence and findings of the Board more critically then if the two were in agreement. NLRB v. Florida Medical Center, Inc., 576 F.2d 666, 674 (5th Cir. 1978).

Carper's substandard salary increase could properly result from his poor evaluation. The ALJ found, and the Board did not dispute, that Carper was not discriminated against in comparison with other professors who received a below average evaluation. Of the ten professors so rated, only one received a salary increase of more than $700 ($850 or 4.4 percent) and four received no raise at all (one contract was not renewed).

The Board, however, decided the poor evaluation was illegally motivated, a conclusion based on timing. Prior to 1976, Carper had consistently been rated as above average ("excellent" or "good to excellent" on the scale used in previous years). The Board found that Carper continued to perform as an outstanding professor during 1975 and 1976 and should have been rated as above average. In light of its finding that Carper was engaged in protected activity at the time and that Berry College had expressed animus toward such activity, the Board determined that a prima facie case of discrimination could be inferred. The Board discredited Berry College's stated reasons for rating Carper below average. It is this determination of the Board that is unsupported by the record. The General Counsel failed to show the stated reasons were pretextual and therefore failed to sustain its burden of proving by substantial evidence that the substandard salary increase was unlawfully motivated. See Federal-Mogul Corp. v. NLRB, 566 F.2d 1245, 1259 (5th Cir. 1978); Frosty Morn Meats, Inc. v. NLRB, 296 F.2d 617 (5th Cir. 1961).

The department chairman, Dr. Geisel, testified he evaluated Carper as below average in 1977 because of what he perceived as Carper's hostile and uncooperative attitude toward him and within the department generally after his 1975 demotion. Geisel stated that in making evaluations he gave heavy weight to the teaching performance of the faculty member and that he considered "relations with the college, duties within a department, advising, and of course, class activities themselves" particularly important. Geisel cited numerous examples of Carper's alleged poor attitude after he was replaced as department...