Citizens Inv. Services Corp. v. N.L.R.B.

• Decision Date: 16 December 2005
• Docket Number: No. 04-1317.,04-1317.
• Citation: 430 F.3d 1195
• Parties: CITIZENS INVESTMENT SERVICES CORPORATION, Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

430 F.3d 1195

CITIZENS INVESTMENT SERVICES CORPORATION, Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 04-1317.

United States Court of Appeals, District of Columbia Circuit.

Argued September 19, 2005.

Decided December 16, 2005.

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

James P. Hollihan argued the cause and filed the briefs for petitioner. Burton J. Fishman entered an appearance.

Christopher W. Young, Attorney, National Labor Relations Board, argued the cause for respondent. With him on the brief were Arthur F. Rosenfeld, General Counsel, John H. Ferguson, Assistant General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, and Meredith L. Jason, Attorney.

Before: HENDERSON, ROGERS and GARLAND, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

Concurring opinion filed by Circuit Judge HENDERSON.

ROGERS, Circuit Judge.

The only question in this appeal is whether substantial evidence on the record considered as a whole supports the finding of the National Labor Relations Board that Citizens Investment Services Corporation ("the Company") violated section 8(a)(1) of the National Labor Relations Act ("the Act"), 29 U.S.C. § 158(a)(1) (2000), by discharging financial consultant Christopher Hayward because of his protected concerted activity of protesting compensation terms and payments for financial consultants. Because there is substantial evidence, and consistent with our limited scope of review, we deny the Company's petition for review and grant the Board's cross-petition for enforcement.

I.

Section 7 of the Act, 29 U.S.C. § 157, guarantees employees the right to engage in "concerted activities" not only for self-organization but also "for the purpose of ... mutual aid or protection ...." The broad protection of Section 7 applies with particular force to unorganized employees who, because they have no designated bargaining representative, must "speak for themselves as best they [can]." NLRB v. Washington Aluminum Co., 370 U.S. 9, 14, 82 S.Ct. 1099, 8 L.Ed.2d 298 (1962).

The right to engage in concerted activities is protected by Section 8(a)(1) of the Act, 29 U.S.C. § 158(a)(1), which makes it an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in [S]ection 7." Accordingly, an employer violates Section 8(a)(1) by discharging an employee for engaging in concerted activities protected by the Act. Gold Coast Rest. Corp. v. NLRB, 995 F.2d 257, 263-64 (D.C.Cir.1994).

The events at issue followed a change in ownership and management of a financial services company. In 2001, Citizens Financial Group ("Citizens") acquired the commercial banking operations of Mellon Bank, N.A., including the brokerage and investment counseling business of a subsidiary of Mellon, Dreyfus Investment Services Corporation ("Dreyfus"). Citizens created a subsidiary, the Company, in order to house the business acquired from Dreyfus and Mellon. During the acquisition, Citizens offered certain Dreyfus financial consultants employment at the Company. During the negotiations with the Dreyfus financial consultants in October 2001, Dreyfus proposed commission terms that were less favorable to experienced financial consultants than those originally proposed in September 2001. Certain experienced Dreyfus consultants complained about the changes immediately. Christopher Hayward, who had worked for Dreyfus for six years and who was involved in these complaints, nonetheless accepted employment with the Company. In January 2002, the Company distributed a final commission schedule that included relatively unfavorable terms for more experienced financial consultants. By April 2002, Hayward also began to complain that commissions were not being correctly calculated based upon the schedule. Hayward was discharged on July 2, 2002. The decision to discharge him was made by John Halechko (a Senior Vice President and Director of Investment Sales), Eric Hosie (a Regional Sales Manager in an adjacent territory), Barbara Blyth (a Human Resources Group Manager for Citizens), and David Hunter (the Regional Sales Manager for the Pittsburgh area).

Based on a charge filed by Hayward alleging that he was terminated as a result of his protected concerted activities, the General Counsel to the Board filed a complaint alleging that the Company, as a result of interfering with the exercise of Section 7 rights, had violated Section 8(a)(1) of the Act. The Administrative Law Judge ("ALJ") found that the Company had violated Section 8(a)(1) and ordered that Hayward be reinstated or offered a position commensurate with his prior position, that any unfavorable references to the discharge be removed from Hayward's personnel files, and that Hayward be made whole for any losses that he suffered as a result of his unlawful discharge. The Board affirmed, as relevant, the findings and order of the ALJ, and the Company petitions for review.

II.

The Company challenges the Board's findings at each step of the analysis under Wright Line, 251 N.L.R.B. 1083 (1980), enforced, 662 F.2d 899 (1st Cir.1981). Under Wright Line, the General Counsel must make a prima facie showing sufficient to support the inference that the employee is engaged in protected conduct and the employer was so aware, and that the protected activity was a motivating factor in the employer's decision to take adverse action; the employer may rebut the inference by showing by a preponderance of evidence that the same action would have taken place even in the absence of the protected conduct. Laro Maint. Corp. v. NLRB, 56 F.3d 224, 228 (D.C.Cir.1995); see NLRB v. Transp. Mgmt. Corp. 462 U.S. 393, 401-03, 103 S.Ct. 2469, 76 L.Ed.2d 667 (1983).

The Company makes no reference in its briefs to our standard of review, which is limited. Determining whether activity is concerted and protected within the meaning of Section 7 is a task that "implicates [the Board's] expertise in labor relations." NLRB v. City Disposal Sys., Inc., 465 U.S. 822, 829, 104 S.Ct. 1505, 79 L.Ed.2d 839 (1984). The Board's determination that an employee has engaged in protected concerted activity is entitled to considerable deference if it is reasonable. Id. The Board's determination of questions of motive is "give[n] even greater deference" by the court. Frazier Indus. Co. v. NLRB, 213 F.3d 750, 756 (D.C.Cir.2000); see Laro, 56 F.3d at 229. The Board's findings of fact, if supported by substantial evidence on the record considered as a whole, are conclusive even if a reviewing court on de novo review would reach a different result. United Servs. Auto. Ass'n v. NLRB, 387 F.3d 908, 913 (D.C.Cir.2004). The court will not overturn the Board's acceptance of an ALJ's resolution of conflicting testimony unless the ALJ's determinations are "hopelessly incredible" or "self-contradictory." Teamsters Local Union No. 171 v. NLRB, 863 F.2d 946, 953 (D.C.Cir.1988) (quoting Conair Corp. v. NLRB, 721 F.2d 1355, 1368 (D.C.Cir.1983)). Thus, the "Board is to be reversed only when the record is `so compelling that no reasonable factfinder could fail to find' to the contrary." United Steelworkers of Am. Local 14534 v. NLRB, 983 F.2d 240, 244 (D.C.1993) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 484, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)).

A.

The Company acknowledges that under Meyers Industries Inc., 281 N.L.R.B. 882, aff'd sub nom Prill v. NLRB, 835 F.2d 1481 (D.C.Cir.1987), concerted activity may be found when an employee's activity is undertaken with or on the authority of other employees, and not solely on behalf of the employee himself. Thus, concerted activity includes circumstances where individual employees work to initiate, induce or prepare for group action. United Servs. Auto. Ass'n, 387 F.3d at 914. Similarly, an individual "who brings a group complaint to the attention of management is engaged in concerted activity even though he was not designated or authorized to be a spokesman by the group." Prill v. NLRB, 755 F.2d 941, 954 (D.C.Cir.1985).

The Company maintains that there is "no evidence ... that Hayward [acted] based on authorization from other employees" and "no evidence suggests that ... discussions [at group meetings] took the form of group `complaints' or protests," as opposed to individual inquiries about the status of delayed payments. Petitioner's Br. at 14. There also is, the Company maintains, "no evidence that the group nature of these discussions [about compensation issues] was ever communicated to management." Id. at 15-16. To reach these conclusions, however, the Company ignores the evidence before the Board with regard to the discussions following its distributions of several drafts of its FY 2002 incentive plan for financial consultants.

We do not think it can seriously be questioned that there was substantial evidence Hayward was engaged in protected concerted activity. Citizens distributed several versions of its compensation plans and certain senior financial consultants, including Hayward, responded to the management at Citizens and then the Company with critical comments about the compensation for senior financial consultants. Hayward and other senior financial consultants also complained about the accuracy of the Company's calculation of their own commission payments. Such complaints are plainly protected. See Eastex, Inc. v. NLRB, 437 U.S. 556, 569, 98 S.Ct. 2505, 57 L.Ed.2d 428 (1978). The evidence also showed that Hayward engaged in two types of concerted activity: individual acts taken in order to bring the complaints of the group of experienced financial consultants to the Company's management, see Phillips Petroleum Co., 339 N.L.R.B. No. 111, 2003 WL 21802939, at *3 (2003), and group activities designed to advance the interests of these consultants. The first is evident in Hayward's April 2002 email to Halechko...