Cadbury Beverages, Inc. v. N.L.R.B., No. 98-1054

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtSILBERMAN
Citation160 F.3d 24
Parties159 L.R.R.M. (BNA) 2775, 333 U.S.App.D.C. 94 CADBURY BEVERAGES, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondents.
Docket NumberNo. 98-1054
Decision Date17 November 1998

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160 F.3d 24
159 L.R.R.M. (BNA) 2775, 333 U.S.App.D.C. 94
No. 98-1054.
United States Court of Appeals,
District of Columbia Circuit.
Argued Oct. 20, 1998.
Decided Nov. 17, 1998.

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

Richard N. Chapman argued the cause and filed the briefs for petitioner.

David Habenstreit, Supervisory Attorney, National Labor Relations Board, argued the cause for respondent. With him on the brief were Linda Sher, Associate General Counsel, John D. Burgoyne, Acting Deputy Associate General Counsel, and Deborah E. Shrager, Attorney.

Before: SILBERMAN, WILLIAMS, and GINSBURG, Circuit Judges.

Opinion for the Court filed by Circuit Judge SILBERMAN.

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SILBERMAN, Circuit Judge:

Petitioner Cadbury Beverages, Inc. seeks review of the NLRB's decision and accompanying order that Cadbury violated sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act when it suspended and terminated Eugene Matzan. The Board filed a cross-application for enforcement of its order. Since--although it is close--we find substantial evidence supporting the Board's determination, we deny the petition for review and grant the crossapplication for enforcement.


Eugene Matzan is an electrician in Cadbury's food processing plant in Williamson, New York. In the early months of 1995, Matzan, who had become discontented with the performance of the incumbent union (Retail, Wholesale and Department Store Union, Local 220, AFL-CIO) and its fiscal management, made several requests to union officials to review the union's financial records and its by-laws. After distributing copies of one such document to fellow employees, union officials called a meeting (which James Fischette, Matzan's supervisor, ordered Matzan to attend) at which union officials put pressure on Matzan to cease his anti-incumbent activities. After Matzan circulated a petition calling for a meeting to consider changes to the union's by-laws and to review an audit, Fischette informed Matzan that union business was not permitted on company time (despite Matzan's insistence that his union activity occurred during breaks).

Matzan's suspension arose out of a conversation in mid-March 1995 between Matzan and his co-worker Lisa Dennis, who had recently returned from maternity leave. According to Matzan, Dennis told Matzan that she had not received an expected bonus and was planning to ask Larry Graffius, the union's then-vice president, for assistance. Matzan then advised Dennis against informing Graffius because two months earlier Matzan had overheard Graffius tell Jane DeGroote, Cadbury's human resources coordinator, that the company should have fired Dennis (whom Graffius identified with an unflattering expletive) when it had the chance to do so. At a meeting later in March, union president Blackmon told Meador, Cadbury's human resources manager, that Matzan had been spreading a false rumor that Blackmon, Graffius, and Meador wanted to fire Dennis because she had taken maternity leave. Meador decided to investigate the matter immediately and called Dennis, Matzan, and DeGroote into the meeting for questioning. Recollections differ as to who said what at the meeting about the story that Matzan told Dennis. The crux of the dispute is whether Graffius said anything at all to DeGroote about firing Dennis, and whether Matzan's story implicated Meador or DeGroote, along with Graffius, in making the negative comments about Dennis. Meador ultimately concluded, based primarily on DeGroote's shocked reaction when confronted with Matzan's story, that Matzan's story was most likely false and that the potential damage to DeGroote, Meador, and the human resources department was sufficiently serious to warrant suspension without prior warning. After Matzan walked out of a meeting on April 10 to discuss the situation before the company imposed discipline, Matzan was suspended for three days. 1

Matzan's termination arose out of his attempt to attend an arbitration hearing of a co-worker, Bill Gowan, on Monday, September 11, 1995. Although Matzan had conducted an unofficial investigation of Gowan's case at the request of a union steward, Matzan had no official role to play at Gowan's arbitration hearing and planned to attend solely because he had given Gowan his word that he would try to do so (Gowan, according to Matzan, did not trust the union representative.). On September 6 or 7, Matzan asked Fischette if he could work an earlier shift on Monday, September 11, explaining that he needed the schedule change for "personal" reasons. Fischette told Matzan that the schedule change would probably not be a problem and that he would see what he could

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do. On Friday, after Fischette learned that Monday was the beginning of the "fall pack season," the busiest day of the year for the whole plant, Fischette told Matzan that he could not work the earlier shift. When Matzan insisted that he needed the time for personal business, Fischette told Matzan to see if he could reschedule his business and that if he could not, to tell Fischette how much time he needed.

On Saturday, Fischette again told Matzan that he could not switch his schedule. But when Matzan informed Fischette that his still unidentified "personal business" would only take a couple of hours and that he could probably take care of it on his lunch hour, Fischette again indicated some flexibility, telling Matzan that they would have to wait until Monday to decide. Later that Saturday, however, Fischette learned from Tony Peluso, another electrician, that Matzan wanted the time to attend Gowan's arbitration. On Monday morning, after Matzan reiterated that he needed the time for "personal business," Fischette asked Matzan directly whether he was planning to attend Gowan's arbitration. Matzan indicated that he could go where he liked on his lunch hour, and Fischette then instructed Matzan not to attend the arbitration and that he would be subject to discipline if he did. Later that morning, each tried to page the other to no avail: Fischette needed Matzan to fix a malfunctioning conveyor, and Matzan wanted to tell Fischette that he was taking an early lunch and that Peluso would cover for him (even though company policy permitted such lunch substitutions without supervisory approval). A security guard, pursuant to Fischette's instruction, informed Matzan on his way out that he was needed on the floor, but Matzan told the guard that he was going to lunch and proceeded to the conference room for the arbitration. After Cadbury's attorney insisted that Matzan leave Gowan's arbitration, Matzan returned to work, whereupon Fischette, following Meador's instructions, immediately suspended Matzan. Meador and Fischette deliberated further and Cadbury terminated Matzan by letter on September 15.

The general counsel filed charges alleging that the company violated section 8(a)(1) of the NLRA when it suspended Matzan, and that it violated sections 8(a)(1) and 8(a)(3) when it terminated him. On the suspension charge, the ALJ found that Matzan's discussion with Dennis was protected activity, that the company knew it was protected, that Matzan was suspended for misconduct in the course of that protected activity (defaming Cadbury's human resource department), and that Matzan was not in fact guilty of the misconduct (since Matzan only implicated union member Graffius in the story he told Dennis). The ALJ also considered the company's motive in suspending Matzan and concluded that the real reason for the suspension was Matzan's protected activity. Turning to the unlawful termination charge, the ALJ concluded that the general counsel satisfied its burden of proving that anti-union sentiment was a substantial factor in Matzan's termination, and that the company did not carry its burden to prove that Matzan's alleged insubordination would have resulted in his termination even in the absence of his protected activity. The ALJ ordered Cadbury, among other things, to rescind Matzan's suspensions and to reinstate him to his former position with back pay.

The Board, with one member dissenting, affirmed all of the ALJ's findings and conclusions and adopted the ALJ's recommended order. The Board ratified the ALJ's decision on the suspension charge in a footnote without discussion, pausing only to note that the dissenting board member agreed with the ALJ on this issue. The Board elaborated its reasons for adopting the ALJ's conclusions on the termination charge, highlighting Fischette's denial of Matzan's request outright only after he learned the purpose of Matzan's request, and noting that "[s]uch an abrupt reversal of position clearly evidences Respondent's animus toward Matzan's protected activities and its retaliatory intent." The Board found that Cadbury did not terminate Matzan for insubordination since Matzan fully complied with company policy when he attended the arbitration. Board member Higgins dissented on grounds that Fischette consistently denied Matzan's request and that Matzan was insubordinate.

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Petitioner claims that the Board's finding of a section 8(a)(1) violation for the company's suspension of Matzan was not supported by substantial evidence. Petitioner also asserts that the Board ignored its own precedent governing employees' right to attend arbitration hearings when it concluded that petitioner's termination of Matzan violated sections 8(a)(1) and 8(a)(3). In what appears to be an argument in the alternative on this second point, petitioner claims that substantial evidence does not support the Board's determination that the company's termination of Matzan was motivated by anti-union animus.


Petitioner argues that the...

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