Dash v. N.L.R.B.
| Decision Date | 07 July 1986 |
| Docket Number | No. 85-7267,85-7267 |
| Citation | 793 F.2d 1062 |
| Parties | 122 L.R.R.M. (BNA) 2931, 104 Lab.Cas. P 11,919 Stanley A. DASH, Jr., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Lawyers Co-operative Publishing Company, Intervenor-Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Lawton & Cates, Bruce M. Davey, Madison, Wis., for petitioner.
Ellen Boardman, N.L.R.B., Washington, D.C., for respondent.
Eugenia D. Ulterino, Rochester, N.Y., for intervenor-respondent.
On Petition to Review an Order of the National Labor Relations Board.
Before ANDERSON and PREGERSON, Circuit Judges, and SOLOMON, * Senior District Judge.
Dash worked for LCP as a sales representative from November 1971 until his termination on November 5, 1980.
In December 1979, Dash initiated a union organizing drive among LCP's sales representatives. On May 5, 1980, the sales representatives voted against unionization. Later that month, on the advice of a psychologist, Dash, who suffered extreme stress as a result of the organizing campaign, took a leave of absence from work. He did not immediately notify his regional manager, as required by company policy. On May 30, the National Sales Manager sent Dash a telegram threatening him with discharge if he did not report by telephone by June 3. Dash complied with the demand, and the threat of discharge was dropped. As a condition to his return to work, LCP required Dash to submit to a psychiatric examination by a doctor of LCP's choosing. Dash submitted to the examination on September 9, received a clean bill of health, and returned to work on September 22.
On November 4, 1980, Dash had an argument with Michael Santangelo, a customer service supervisor in LCP's home office. Dash admits that he may have sworn at Santangelo. LCP's management listened to Santangelo's version of the argument, but refused to listen to Dash when he tried to tell his version. On November 5, LCP discharged Dash.
Following the discharge, the Wisconsin Department of Industry, Labor and Human Relations (DILHR) awarded Dash unemployment compensation benefits. LCP appealed the award to the Appeal Tribunal of the DILHR (Appeal Tribunal). After a telephone hearing in which LCP presented no witnesses, the examiner of the Appeal Tribunal upheld the award. LCP filed a petition for review with the Wisconsin Labor and Industry Review Commission (Review Commission), which dismissed the petition as untimely. LCP then filed a complaint in the circuit court of Dane County, Wisconsin, asking that the Review Commission's decision be set aside, the examiner's decision reversed, and the proceeding remanded for a de novo hearing before the Appeal Tribunal. 2
On January 14, 1980, during the course of the union organizing campaign, Dash filed an unfair labor practice charge against LCP in Case No. 30-CA-5603. Dash alleged that LCP had discriminated against him because of his union activity, and that Regional Manager Murrell had threatened his job security during a January 9 meeting because of his "negative attitude toward the company." The complaint, as later amended, alleged that LCP had committed numerous violations during the course of the union organizing campaign. Shortly before the scheduled hearing date, LCP reached a settlement agreement with the union. The Regional Director approved the agreement on October 1. Under the agreement LCP agreed to expunge from Dash's personnel file all references to the January 9 threat of probation and the May 30 threat of termination, and to refrain from considering those On November 12, one week after his termination, Dash filed a second charge against LCP in Case No. 30-CA-6152, alleging that LCP had discriminated against him because of his union activities and because of his testimony in Case No. 30-CA-5603. In particular, Dash alleged that LCP had discriminated against him by (1) threatening him with termination on May 30; (2) delaying his return to work from his medical leave of absence; and (3) discharging him on November 5.
warnings in evaluating Dash's employment in the future.
On January 7, 1981, the Regional Director set aside the settlement agreement, stating:
In view of the similarity and interwoven nature of the unfair labor practices in Case No. 30-CA-5603 and those presently alleged in Case No. 30-CA-6152, it appears that [LCP] has failed and refused to comply with all the terms and conditions of the settlement agreement ... and has, in fact, continued to engage in conduct which appears to be not only violative of the [NLRA], but in retaliation for the charges in Case No. 30-CA-5603.
On January 25, the General Counsel issued a complaint, consolidating the charges in Case No. 30-CA-5603 and Case No. 30-CA-6152. The ALJ issued its decision and order on August 19, 1982, concluding that LCP had committed numerous violations of section 8(a)(1) and (3) of the NLRA, 29 U.S.C. Sec. 158(a)(1) and (3). The ALJ found that LCP had subjected Dash to disparate and discriminatory treatment by requiring him to submit to an independent psychiatric examination before returning to work after his leave of absence, by discharging him for his union activities, and by filing its action in the Wisconsin state court. The ALJ concluded as a matter of law that these activities violated section 8(a)(1) and (3) of the Act. The ALJ ordered LCP to reinstate Dash to his former position, give him back pay with interest, expunge all references to his discharge from its records, withdraw its state court action, and reimburse Dash for legal fees incurred as a result of the state court action.
A three-member panel of the Board, with one member dissenting, reversed the ALJ's finding that LCP had committed an unfair labor practice by discharging Dash. 3 The Board majority found that LCP would have terminated Dash for his abusive behavior toward Santangelo, despite Dash's union activities. The Board unanimously found, contrary to the ALJ's finding, that LCP had not committed an unfair labor practice by filing its action in the Wisconsin state court. The Board refrained from deciding whether LCP had committed an unfair labor practice before executing the settlement agreement by requiring Dash to submit to an independent psychiatric examination before allowing him to return to work from his leave of absence. 4
Dash filed a timely appeal, challenging the Board's findings that LCP had not committed an unfair labor practice by discharging him or by filing its state court action. 5 Dash contends that the Board's findings are not supported by substantial evidence.
We will enforce the Board's order "if the Board has applied the correct legal standard and there is substantial evidence in the record as a whole to support its findings When the Board and the ALJ make contrary findings, we give deference to the Board. We still consider the ALJ's findings, however, and weigh them with other evidence opposing the Board's decision. NLRB v. Searle Auto Glass, Inc., 762 F.2d 769, 773 (9th Cir.1985).
and conclusions." Wakefield v. NLRB, 779 F.2d 1437, 1438 (9th Cir.1986). Where the Board's findings are not supported by substantial evidence, we must set aside the findings and the orders resting on the findings. NLRB v. Baptist Hospital, Inc., 442 U.S. 773, 782, 99 S.Ct. 2598, 2603, 61 L.Ed.2d 251 (1979) (citing Administrative Procedure Act, 5 U.S.C. Sec. 706(2)(E); Universal Camera Corp. v. NLRB, 340 U.S. 474, 490, 71 S.Ct. 456, 465, 95 L.Ed. 456 (1951)). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938); Wakefield, 779 F.2d at 1438
Where a discharged employee alleges that his discharge constitutes an unfair labor practice, the General Counsel bears the burden of proving that the employee's exercise of a protected activity was a motivating factor in the termination. As an affirmative defense, the employer may show by a preponderance of the evidence that it would have terminated the employee despite the protected activity. Searle Auto Glass, Inc., 762 F.2d at 773; Wright Line, 251 N.L.R.B. 1083, 1089 (1980), enforced, NLRB v. Wright Line, a Division of Wright Line, Inc., 662 F.2d 899, 909 (1st Cir.1981), cert. denied, 455 U.S. 989, 102 S.Ct. 1612, 71 L.Ed.2d 848 (1982) (approved in NLRB v. Transportation Management Corp., 462 U.S. 393, 403-04, 103 S.Ct. 2469, 2475-76, 76 L.Ed.2d 667 (1983)).
A majority of the Board found that LCP had met its burden. One member, however, found that Dash's union activities were the sole cause for his termination. We find that although the Board applied the correct legal standard, its ultimate findings on this issue are not supported by substantial evidence. 6
The Board majority found that LCP would have fired Dash following his argument with Santangelo despite Dash's union activities. In reaching this finding, the majority relied on what it termed "extensive background evidence establishing that [LCP] had long considered Dash to be an employee with serious behavioral problems." 7 This "extensive background evidence" consisted of one memorandum regarding Dash's attitude toward his...
To continue reading
Request your trial
-
Lucas v. N.L.R.B.
...to support its decision); M.W. Kellogg Constructors, Inc. v. N.L.R.B., 806 F.2d 1435, 1442 (9th Cir. 1986) (same); Dash v. N.L.R.B., 793 F.2d 1062, 1070, 1071 (9th Cir.1986) (same, explaining that the court "must" remand). The majority does not attempt to distinguish this case from SKS, M.W......
-
Healthcare Employees Union, Local 399 v. N.L.R.B.
..."we may set aside the Board's determination of motive if we find that it is not supported by substantial evidence," Dash v. NLRB, 793 F.2d 1062, 1066 n. 6 (9th Cir.1986). ANALYSIS Section 8(a)(3) of the NLRA prohibits an employer from discriminating against employees "in regard to hire or t......
-
N.L.R.B. v. Dorothy Shamrock Coal Co.
...labor practice before unsuccessful union election later illegally terminated employees and subcontracted their work); Dash v. NLRB, 793 F.2d 1062 (9th Cir.1986) (union activist unlawfully discharged six months after unsuccessful union Additionally, the Company's shifting justifications for ......
-
Abbey's Transp. Services, Inc. v. N.L.R.B., s. 443
...This alone raises a serious question whether Feinberg was attempting to find a plausible pretext to discharge him. Dash v. NLRB, 793 F.2d 1062, 1068-69 (9th Cir.1986); Sioux Products, Inc. v. NLRB, 684 F.2d 1251, 1258-59 (7th Cir.1982). If Feinberg had allowed Orrego to explain, he would ha......