Carry Companies of Illinois, Inc. v. N.L.R.B.
| Decision Date | 29 July 1994 |
| Docket Number | Nos. 93-2509,93-2657,I,AFL-CI,s. 93-2509 |
| Citation | 30 F.3d 922 |
| Parties | 146 L.R.R.M. (BNA) 3069, 128 Lab.Cas. P 11,151 CARRY COMPANIES OF ILLINOIS, INC., Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner, and Local 705, International Brotherhood of Teamsters,ntervenor, Cross-Petitioner. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Gary S. Kaplan (argued), Fredric H. Fischer, Gerald L. Pauling, II, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, IL, for Carry Companies of Illinois, Inc.
Charles P. Donnelly, Jr., N.L.R.B., Contempt Litigation Branch, Washington, DC, Elizabeth Kinney, N.L.R.B., Region 13, Chicago, IL, Aileen A. Armstrong, Vincent Falvo (argued), N.L.R.B., Appellate Court, Enforcement Litigation, Washington, DC, for N.L.R.B.
William A. Widmer, III, Martin P. Barr, Carmell, Charone, Widmer, Mathews & Moss, Chicago, IL, for Local Union 705, Intern. Brotherhood of Teamsters, AFL-CIO.
Before PELL, WOOD, Jr., and ESCHBACH, Circuit Judges.
The National Labor Relations Board (NLRB or Board) found that Carry Companies of Illinois, Inc. (the Company) committed several unfair labor practices as defined by the National Labor Relations Act, 29 U.S.C. Secs. 151-159 (the Act). The Company petitioned for review of the Board's Decision and Order and the Board filed a cross-application seeking enforcement of its Order. We have jurisdiction to hear this appeal under 29 U.S.C. Secs. 160(e) and (f). For the reasons that follow, we grant the Company's petition for review in part, and the Board's application for enforcement in part.
Carry Companies of Illinois, Inc. engages in the transportation, distribution, warehousing, and packaging of food products. In addition to its main facility and headquarters in Bridgeview, Illinois, the Company maintains several other satellite facilities in the Midwest and on the East Coast. The warehousing portion of the operation, Hollander Distribution Services, is located at the main terminal. The trucking portion of the operation, Carry Transit, provides common and contract carrier services in the continental United States and Canada. Carry Transit's drivers are either "city" drivers who drive within a hundred mile radius of a Company facility or "road" drivers who drive longer distances and are paid by the mile.
In the fall of 1989, H. William "Bill" Rosenberg, a city driver, contacted the Local 705 International Brotherhood of Teamsters, AFL-CIO (the Union) and arranged for a meeting of interested employees in January 1990. Following the meeting, Rosenberg campaigned for the Union by soliciting and collecting union authorization cards from the Company's city drivers. Road driver Edward "Eddie" Peralta assisted in the campaign by soliciting the road drivers and collecting their signed authorization cards. Other employees also participated in the campaign. Dean Ridder distributed authorization cards to warehouse employees and driver Dean Jones held a union meeting at his home. On August 6, 1990, the Union filed a petition to represent the Company's mechanics and truck drivers. The Board conducted an election and a majority of both the mechanics and truck drivers rejected union representation.
At some point during or after the union campaign, the Company fired Ridder, Jones, Rosenberg, and Peralta. The Union filed unfair labor practice charges with the NLRB for all four men and the NLRB General Counsel issued a consolidated complaint on June 12, 1991. After eight days of testimony, an NLRB Administrative Law Judge (ALJ) found that the Company violated section 8(a)(1) of the Act by: surveilling employee union activities; coercively interrogating employees about union activities; threatening employees with discharge, loss of work, or the hiring of new employees to defeat the Union; promising to restore lost overtime to discourage union support; and promulgating an overly broad rule forbidding union solicitation on "company time." The ALJ further found that Company violated sections 8(a)(1) and (3) of the Act by discharging Ridder, Jones, Rosenberg, and Peralta. 1
Except in two respects, the Board's Decision and Order adopted the ALJ's findings and conclusions. 2 The Board found that the ALJ's conclusion that the Company violated sections 8(a)(1) and (3) of the Act by suspending Rosenberg and issuing warnings to him for lateness was not supported by any findings of fact. The Board also determined, contrary to the ALJ's conclusion, that the facts put forth at the hearing sufficiently supported a finding that the Company reduced Peralta's overtime and weekend assignments because of his union activity and thereby violated sections 8(a)(1) and (3) of the Act. The Company filed a petition to review the Board's order in this Court on June 23, 1993. In turn, the NLRB filed a cross-application for enforcement of its order.
Judicial review of an NLRB order, whether initiated by a petition for review or an application for enforcement, is governed by sections 10(e) and (f) of the Act. We must uphold the Board's decision if substantial evidence on the record as a whole supports its factual findings and if its conclusions have a reasonable basis in the law. Chicago Tribune Co. v. NLRB, 962 F.2d 712, 716 (7th Cir.1992) (quoting NLRB v. George Koch Sons, Inc., 950 F.2d 1324, 1330 (7th Cir.1991)); 29 U.S.C. Secs. 160(e) and (f). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support the Board's conclusion." Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 459, 95 L.Ed. 456 (1951). "While we may not dabble in fact-finding or displace reasonable determinations simply because we would have reached a different conclusion, a merely cursory review is inadequate, for we must take into account the entire record, 'including the evidence opposed to the Board's view from which conflicting inferences could be drawn.' " Chicago Tribune, 962 F.2d at 716 (quoting George Koch Sons, Inc., 950 F.2d at 1330). However, an ALJ's credibility determinations are entitled to considerable deference and will be overturned by a reviewing court only when extraordinary circumstances so require. NLRB v. Advance Transp. Co., 979 F.2d 569, 573 (7th Cir.1992); Missouri Portland Cement Co. v. NLRB, 965 F.2d 217, 219 (7th Cir.1992).
The Company vigorously contests the Board's conclusion that it violated sections 8(a)(1) and (3) of the Act. It argues that it demonstrated that each employee's discharge occurred solely because of the employee's own misconduct. The Company also contends that neither substantial evidence nor applicable legal principles established that any of its conduct amounted to a section 8(a)(1) violation. We address the Company's contentions in turn.
An employer commits an unfair labor practice if it interferes with, restrains, or coerces employees in the exercise of their rights guaranteed in section 7 of the Act, 29 U.S.C. Sec. 157, "by discriminating in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor union organization." 29 U.S.C. Secs. 158(a)(1) and (3). Union activism is a protected right, and an employer cannot discharge an employee for exercising rights guaranteed by the Act. However, union activism is not an impenetrable shield against discharge, and the Act "does not give union adherents job tenure." Chicago Tribune, 962 F.2d at 716 (quoting NLRB v. Loy Foods Stores, Inc., 697 F.2d 798, 801 (7th Cir.1983)). A company is free to discharge its employees "for good, bad, or no reasons, so long as its purpose is not to interfere with union activity." Loy Foods, 697 F.2d at 801.
Whether the Company violated section 8(a)(3) of the Act by discharging Ridder, Jones, Rosenberg, and Peralta is governed by Wright Line, a Div. of Wright Line, Inc., 251 N.L.R.B. 1083, 1980 WL 12312 (1980) enf'd, 662 F.2d 899 (1st Cir.1981), cert. denied, 455 U.S. 989, 102 S.Ct. 1612, 71 L.Ed.2d 848 (1982). Under Wright Line, the General Counsel carries the burden of showing that the Company's actions were motivated by a desire to impede protected activity. NLRB v. Transportation Mgt. Corp., 462 U.S. 393, 399, 103 S.Ct. 2469, 2473, 76 L.Ed.2d 667 (1983); Missouri Portland Cement, 965 F.2d at 219. To this end, the General Counsel must establish by a preponderance of evidence that: (1) the employee engaged in union or other protected activities; (2) the employer knew of the employee's involvement in protected activities; (3) the employer harbored animus towards those activities; and (4) there was a causal connection between the employer's animus and its discharge decision. NLRB v. Advance Transp. Co., 965 F.2d 186, 191 (7th Cir.1992). If the General Counsel succeeds, the burden shifts to the employer to demonstrate by a preponderance of evidence that it based its discharge decision on unprotected conduct and that it would have fired the employee anyway. Transportation Mgt., 462 U.S. at 400, 103 S.Ct. at 2473-74; Advance Transp., 965 F.2d at 190.
The Company hired Ridder in July 1985. Ridder first worked as a truck driver and then as a warehouseman until he was discharged on July 20, 1990 for urinating in the yard outside of the food warehouse. The ALJ concluded that the Company discharged Ridder because of his support for the union campaign and that the Company's reason for Ridder's discharge was pretextual. The ALJ found that "the conduct for which Ridder was fired had been a common practice among the Company's employees, including dispatchers and supervisors." He further found that "the only time the Company rebuked someone for such conduct involved an employee of another company as he used the Company's property."
The Company contends that the...
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