Centre Property Management v. N.L.R.B.

• Decision Date: 21 January 1987
• Docket Number: No. 86-4058,86-4058
• Citation: 807 F.2d 1264
• Parties: 125 L.R.R.M. (BNA) 2409, 105 Lab.Cas. P 12,167 CENTRE PROPERTY MANAGEMENT, A Partnership, Petitioner Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent Cross-Petitioner.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1264

807 F.2d 1264

125 L.R.R.M. (BNA) 2409, 105 Lab.Cas. P 12,167

CENTRE PROPERTY MANAGEMENT, A Partnership, Petitioner Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent Cross-Petitioner.

No. 86-4058.

United States Court of Appeals, Fifth Circuit.

Jan. 21, 1987.

Gus A. Fritchie, III, Montgomery, Barnett, Brown, Read, Hammond & Mintz, Daniel Lund, New Orleans, La., for Centre Property Management.

Linda Dreeben, Elliott Moore, Deputy Assoc. Gen. Counsel, N.L.R.B., Sandra Elligers, Washington, D.C., Hugh Frank Malone, Director, Region 15, N.L.R.B., New Orleans, La., for N.L.R.B.

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

Before POLITZ, RANDALL, and JOLLY, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Centre Property Management, petitions to review and set aside an order of the National Labor Relations Board ("Board") finding that Centre Property had violated sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act, 29 U.S.C. Secs. 158(a)(1), 158(a)(3) ¹ by discharging Carl Tanner for his union activities. The order also found Centre Property in violation of section 8(a)(1) of the Act, for unlawfully interrogating employee Gerald Lemoine about his union sympathies. The Board cross-petitions for enforcement of its order.

This case involves a mixed-motive discharge, where the respondent discharged an employee for both permissible and impermissible reasons. The Board held that the respondent had failed to meet its burden of showing that absent anti-union animus, the employee would have been discharged in any event. We hold that The Board's finding is not supported by substantial evidence because it failed to accord proper weight and deference to the credibility findings of the administrative law judge. We do, however, hold that substantial evidence supports the Board's finding that the interrogation of Lemoine was coercive. Enforcement of the Board's order is therefore granted in part and denied in part.

I

Because the Board reversed the administrative law judge (ALJ), on his findings, and because credibility choices are crucial here, it is necessary to set out the relevant testimony in some detail. First we review the testimony of Carl Tanner, the discharged employee, whose version of the crucial events was discredited in favor of the respondent's version. Following an interview by resident apartment manager Liz Claverie, and property manager Linda Jackson, Carl Tanner was hired on February 18, 1981, as a maintenance man by Centre Properties Management which operates a 620-unit apartment complex, Sherwood Acres I and II in Baton Rouge, Louisiana. On February 23, after a confrontation with Claverie and Jackson over an alleged plumbing code violation at the complex and unionization of the employees, Tanner was discharged. Tanner's version of the events is different from that given by Claverie and Jackson.

According to Tanner, when he was first shown around the property, he noticed a number of open and missing sewer plugs, and toilet paper and waste matter on the grounds, but he was told not to replace the plugs. He worked on 18, 19, and 20 February and discussed the formation of a union with Mary Ella Ferguson, a housemaid assigned to the complex, and her brother, Major Schaefer. He reported to work on Monday, 23 February at about 7:40 a.m., and gathered with other employees to drink coffee in the lounge in accordance with the custom. He began to discuss the organization of a union among Centre Property's employees, showed them pamphlets issued by the National Labor Relations Board, and informed them of their rights to organize. Shortly before 8 a.m., Resident Manager Claverie asked what was going on and, according to Tanner, he told her, "Those are the pamphlets of the labor union, for when we form the union," and Claverie then walked into her office.

Tanner put on his tool belt, walked into Claverie's office to pick up his work orders, and told Claverie that replacements were necessary for the missing sewer plugs. He told her that the open sewers were a health hazard and that the City Parish (Baton Rouge) Board of Health could "shut us down" and "have the utilities cut off," adding that he knew this because he was a former plumbing inspector. When Tanner inquired how long it would take for a requisition for the plugs to be issued, Claverie replied that she did not know. Without further instructions, Tanner then left to count the missing plugs.

Property Manager Jackson soon called him to the office where one of the housemaids, Ferguson, a security guard, Paul Frank Maranto, Jr., Claverie, and Candice Berry, Centre Property's leasing agent, had gathered. Jackson told Tanner to close the door and then asked him why he had requested the plugs. When Tanner explained, Jackson said "Oh, well, we'll take care of that." Jackson next asked Tanner whether he belonged to a union and whether he had a union card, and he replied in the affirmative. He went out to his van, brought in the pamphlets, opened them, and told her he had enough membership cards for all of the employees to sign. After that, Jackson became excited and told Tanner that he was fired. She turned to the other employees and told them she would fire anyone who wanted to join the union. According to Tanner, she said that she was not going to have any union men working there, and told him to turn in his keys and get off the property. Jackson gave him his termination slip, and the security guard began pushing Tanner to the door. Tanner then announced that he was going straight to telephone the inspection department to report the missing sewer plugs, which he did. When he read the termination slip, he found that "threatened extortion" had been listed as the reason for his termination. Tanner later called Jackson and asked her what this term meant, and, according to Tanner, she replied, "Well, anytime anybody threatens me with a union for more money, that's threatened extortion."

Mary Ella Ferguson, who was then a housemaid at Sherwood Acres, claimed to have overheard the conversation between Jackson and Tanner and essentially confirmed Tanner's version of the conversation. She also testified that there was "filth and mess" running on the grounds from the sewers in several places. She further testified that she and Tanner did not discuss the sewers. There was no evidence that Tanner had discussed the problems with the sewers with any other employee, nor that other employees had discussed it with Tanner or among themselves. Ferguson was later terminated for absenteeism.

Claverie, the resident apartment manager, testified that when she arrived at work on the morning of 23 February, the employees approached her and told her Tanner wanted them to sign papers and she inquired whether they had signed anything. They replied that they had not and she said, "Well, good, don't sign anything." At that point, Tanner told her he didn't think the employees made enough money. According to Claverie, she replied "Carl (Tanner), we discussed your salary, and you said everything was fine." Then Tanner told her that he had reported Sherwood Acres to the Baton Rouge City Parish inspectors and that they were scheduled to come out. Tanner also told Claverie that the complex had improper sewer drainage. Claverie recalls having said: "Carl, you're going to get into trouble. Why did you do this? I can't believe you are doing it, you know, why not talk to us about it first, you know?"

Claverie testified further that she called Property Manager Linda Jackson and informed her that Tanner had reported Sherwood Acres to the City Parish and then told Tanner, "Carl, you're going to lose your job." She said that when she told Tanner he would lose his job, she was referring to Tanner's "disrupting the employees and also upsetting us by calling the outside men, the City Parish, on us." Claverie testified that when Jackson arrived she called an attorney and informed him that Tanner had reported Centre Property "to the city inspectors, and he's also here with a petition without--you know, asking prior warning." Jackson asked the attorney how she could terminate Tanner. After receiving his advice, Jackson directed her to prepare a termination form for Tanner, summoned Tanner and terminated him.

Claverie further testified that at the time of her initial conversation with Tanner, he spoke in a "strict" manner "like his mind was already made up."

Next we have the version of Linda Jackson, the property manager whose testimony was credited by the ALJ. Jackson testified that when she went to the office after receiving Claverie's telephone call concerning Tanner, she told the employees to go to work but that Tanner refused. He told her he was waiting for the city inspectors to arrive. When she asked Tanner, "What do you feel is wrong?" he replied that Centre Property was in violation of city codes and mentioned drainage, the sewer and electrical problems. Tanner repeated he was not going to work but was waiting for the city inspector to arrive; he told her the employees were underpaid and that "I do intend to unionize you." She testified that she decided to terminate Tanner for his refusal to go to work, his issuance of threats concerning the inspections and his manner in doing so, "screaming stuff at me about violations and city codes," and telling her to "speak pretty" and "I have you on tape." She left and telephoned Centre Property's attorney who advised her to discharge Tanner for "threatened extortion" on the basis of his "threatening accusations." She then returned and discharged Tanner for "threatened extortion."

Candace Berry, a leasing agent for Sherwood Arms at the time, was present when Tanner was fired and confirmed the accounts given by Jackson and Claverie. Other Centre Property employees who were present at the firing, painter Gerard Lemoine and security guard Paul Maranto,...