Detroit Newspaper Agency v. N.L.R.B., 04-1366.

• Decision Date: 20 January 2006
• Docket Number: No. 04-1403.,No. 04-1366.,04-1366.,04-1403.
• Citation: 435 F.3d 302
• Parties: DETROIT NEWSPAPER AGENCY, d/b/a Detroit Newspapers, Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 302

435 F.3d 302

DETROIT NEWSPAPER AGENCY, d/b/a Detroit Newspapers, Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 04-1366.

No. 04-1403.

United States Court of Appeals, District of Columbia Circuit.

Argued November 1, 2005.

Decided January 20, 2006.

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

Robert M. Vercruysse argued the cause for petitioner. With him on the briefs were William E. Altman and Gary S. Fealk.

Fred B. Jacob, Attorney, National Labor Relations Board, argued the cause for respondent. With him on the brief were John H. Ferguson, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, and William M. Bernstein, Senior Attorney.

Before: HENDERSON, Circuit Judge, and EDWARDS^* and WILLIAMS, Senior Circuit Judges.

Opinion for the Court filed by Senior Circuit Judge EDWARDS.

Dissenting opinion filed by Circuit Judge HENDERSON.

HARRY T. EDWARDS, Senior Circuit Judge.

Detroit Newspaper Agency d/b/a Detroit Newspapers ("Company" or "Detroit News") petitions this court for review of an order of the National Labor Relations Board ("Board" or "NLRB"), and the Board cross-applies for enforcement. On charges filed by the Detroit Mailers Union No.2040, International Brotherhood of Teamsters, AFL-CIO ("Union" or "Local 2040"), a divided panel of the Board held that Detroit News committed an unfair labor practice in violation of §§ 8(a)(1) and (3) of the National Labor Relations Act ("Act" or "NLRA"), 29 U.S.C. § 158(a)(1), (3) (2000), by discharging Union member and former striker Thomas Hydorn. Detroit Newspaper Agency, D/B/A Detroit Newspapers v. Detroit Mailers Union No.2040, Int'l Bhd. of Teamsters, AFL-CIO, 342 N.L.R.B. No. 125, 2004 WL 2203014 (Sept. 28, 2004) ("Detroit News"). The Board specifically found that, despite Hydorn's blatant act of insubordination, Detroit News' decision to terminate his employment was motivated in part by Hydorn's protected union activity, and that Detroit News failed to prove it would have fired him even in the absence of this activity. Consequently, the Board ordered Detroit News, among other things, to cease and desist its unfair labor practice and reinstate and make whole Hydorn for any lost earnings he suffered as a result of his unlawful discharge. Id. 2000 WL 800727, at *7.

In concluding that Detroit News violated the Act, the Board purported to apply the two-prong test set forth in Wright Line, 251 N.L.R.B. 1083, 1980 WL 12312 (1980). Wright Line outlines the general framework for assessing whether an employee's discharge that turns on employer motivation violates § 8(a)(3) (and by extension § 8(a)(1)) of the Act. As the Board explained:

[T]he General Counsel must first persuade, by a preponderance of the evidence, that an employee's protected conduct was a motivating factor in the employer's decision.

If the General Counsel makes such a showing, the burden of persuasion shifts "to the employer to demonstrate that the same action would have taken place even in the absence of the protected conduct."

Detroit News, 2004 WL 2203014, at *3 (quoting Wright Line, 251 N.L.R.B. at 1089).

Detroit News argues that the Board lacked the substantial evidence necessary to find that the General Counsel met its burden of proof on the first prong of Wright Line. As we read the Board's decision, Detroit News certainly seems to be correct. None of the Board's three findings that are offered to show that Hydorn's protected conduct was a motivating factor in the employer's decision to fire him appear to be supported by substantial evidence.

In the Board's brief and at oral argument, however, Board counsel argued that the Board also relied implicitly on a fourth justification — that Hydorn was treated differently than non-union adherents who had committed the same offense — in support of its conclusion that Hydorn's protected conduct was a motivating factor in his discharge. This claim is not articulated in the section of the Board's decision discussing the first prong of Wright Line. It is examined, however, in the Board's analysis of the second prong of Wright Line. We do not know what to make of the Board's decision. In situations where we cannot discern "the precise basis upon which the Board rested in reaching its conclusion[,]. . . . meaningful judicial review requires us to remand the case to the Board for clarification of its position on the . . . issue." Palace Sports & Entm't, Inc. v. NLRB, 411 F.3d 212, 224-25 (D.C.Cir. 2005). We therefore reserve judgment on the merits of the Board's order and remand the case for further consideration consistent with this decision.

I. BACKGROUND

A. Factual Background

The events leading to this case occurred at Detroit News' "North Plant," a printing facility located in Sterling Heights, Michigan, a suburb north of Detroit. One of the North Plant's production functions is the placement of advertising supplements into the newspapers and comics produced by Detroit News. This process is facilitated by "insert machines," which are manned by multiple "material handlers" (or "mailers") and one machine "operator."

At various points around the insert machines, there are "heads," which contain the supplements. The advertising inserts at each head drop into buckets that travel in a circuit around the machine between the various heads. At the conclusion of the circuit, the bottom of each bucket opens and drops the section onto a conveyor. This conveyor then transports the section to a "stacker," a machine that readies the sections to be tied together and placed onto trucks for delivery.

Material handlers work at the heads positioned around the machine. They are responsible for loading the advertising inserts into the heads, and may be assigned to more than one head at a time. The operators, who are stationed at a computer at one end of the machine, are responsible for directing the work group and running the computer that helps the machine function properly.

A common challenge faced by operators occurs when a "paper drag" stops the operation. This happens when one of the buckets opens up to release the insert onto the conveyor line, but closes before the paper falls completely through. The bucket then drags the trapped insert around the insert machine circuit. When this occurs, a sensor shuts down the machine until the paper drag is cleared by removing the misfed paper and, if necessary, resetting the machine.

Thomas Hydorn began working for Detroit News in 1978, when he took a part-time position in the mailroom. Hydorn worked his way up to full-time status, becoming a material handler, a position he occupied for 12 to 15 years. For the most part, Hydorn had an unblemished personnel record, earning only one disciplinary notice — for absenteeism — while he was a part-time employee. Prior to the incident that led to his discharge in August 1999, Hydorn received no other discipline of any kind.

In 1995, Hydorn was one of many Detroit News employees who participated in a strike when negotiations between the Company and various unions, including Local 2040, reached an impasse. Hydorn was neither a Union leader nor an otherwise prominent member of the striking unit, although he did participate in picketing the Company. In February 1997, after the strike proved fruitless, the Union made an unconditional offer on behalf of strikers to return to work. Hydorn and the other striking workers were not permitted to return immediately, because Detroit News had hired replacement workers to take their jobs during the strike. The striker replacements were retained at the end of the strike and returning strikers were placed on a preferential hiring list. See Detroit Typographical Union No. 18 v. NLRB, 216 F.3d 109, 115 (D.C.Cir.2000).

Hydorn was eventually rehired to his former position as a material handler in August 1999, two and a half years after the strike had ended. Prior to the resumption of his duties, Hydorn was required to attend an orientation conducted by Company Post-Press Director Karen Zemnickas, the North Plant management official in charge of the work and discipline of the Local 2040 members. At the orientation, Zemnickas discussed the material handlers' duties and distributed supplementary written materials. She told the returning employees that they should do the job as they had done it before, although they may now be called upon to work at more than one station. During this reorientation training, Zemnickas overlooked one important change in the material handler job, which required the handlers — as opposed to the operators, whose responsibility it had been in the past — to clear any paper drags that occurred. In addition, the new rule required that the handler nearest the paper drag was obligated to remove it.

On the evening of August 24, 1999, shortly after Hydorn returned to work, he was assigned to an insert machine with fellow material handler John Dutka and operator William Mihalik. While some of the material facts relating to what occurred on this evening are in dispute, we will assume, for the purposes of this analysis only, that the Board's version of the events is correct.

Midway through the night shift, at about 1:00 a.m., a paper drag occurred near the stations at the insert machine where Hydorn and Dutka were working. Mihalik signaled the two men by calling out "paper drag" and told them to clear it. In accordance with Detroit News policy, since Dutka was closer to the machine, the paper drag was his responsibility. Dutka therefore left his work station and cleared it. Upon witnessing Dutka's action, Hydorn, who was under the impression that clearing paper drags was the operator's duty, told Dutka not to do it. Hydorn then pointed at Mihalik and told Dutka that it was the operator's "f__king job" and that was why he got paid the "big f__king dollars." Detroit News, 2004 WL 2203014, at *2. Mihalik...