Eastern Engineering & Elevator Co., Inc. v. N.L.R.B.
| Decision Date | 22 December 1980 |
| Docket Number | No. 80-1109,80-1109 |
| Citation | 637 F.2d 191 |
| Parties | 106 L.R.R.M. (BNA) 2097, 90 Lab.Cas. P 12,472 EASTERN ENGINEERING & ELEVATOR CO., INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Local 5, International Union of Elevator Constructors, Intervenor. |
| Court | U.S. Court of Appeals — Third Circuit |
Joseph R. Livesey, Lewis Kates (argued), Kates & Livesey, P. C., Philadelphia, Pa., for petitioner.
Peter M. Bernstein, David S. Fishback (argued), Attys. N. L. R. B., Washington, D. C., William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, N. L. R. B., Washington, D. C., for respondent.
Richard H. Markowitz, Andrew L. Markowitz, Robert C. Cohen (argued), Markowitz & Richman, Philadelphia, Pa., for intervenor.
Before ALDISERT, VAN DUSEN and GARTH, Circuit Judges.
This case does not require us to decide a novel legal issue. Rather, the controversy turns on application of the substantial evidence standard to a National Labor Relations Board decision that is based on testimonial evidence rejected as incredible by an administrative law judge. Disagreeing with the facts found by the administrative law judge and reversing his decision, the Board determined that Eastern Engineering & Elevator Co., Inc., discharged Robert Shepherd, a mechanic, because of his protected activity, and thereby violated §§ 8(a)(1) and (3) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1) and (3). 1 Eastern has petitioned us to review and set aside the Board's order, arguing that it was not supported by substantial evidence. The Board has cross petitioned for enforcement. We will refuse enforcement, grant the petition for review, and set aside the order.
Because the facts form the crux of this case, we will set them forth in detail and highlight the areas of controversy. We will also delineate the testimony that formed the basis of the Board's order. Finally, we will assess the record as a whole, applying the substantial evidence standard set forth at 29 U.S.C. § 160(f), in light of relevant judicial interpretations.
Eastern, a small Philadelphia, Pennsylvania, firm that installs and services elevators, has maintained a collective bargaining relationship for a number of years with Local 5, International Union of Elevator Constructors. The administrative law judge found, and there is no evidence to the contrary, that the relationship between the company and the union has been good. The union represents Eastern's foremen, mechanics and helpers.
In October, 1978, thirteen of Eastern's helpers took a union-administered mechanic's examination. Five passed and according to company practice they advanced automatically to mechanic status entitling them to a thirty per cent pay increase. Eastern determined that it could absorb only three additional mechanics. Given unfettered discretion by the terms of the collective bargaining agreement, Eastern decided to retain all five of the new mechanics and to lay off two of its existing mechanics. This case concerns Eastern's decision to lay off Robert Shepherd, one of the two. 2
Shepherd, the union, and the general counsel maintained that Shepherd was laid off because he filed an internal union charge against a fellow employee. The substance of the charge was that on one occasion the employee, Edward Carswell, had allowed a non-unit person, company president Stephen Zipf, to perform unit work. The incident occurred when Eastern was called to respond to a fire emergency. The general counsel's theory was that the filing of the intra-union charge was protected activity. Eastern denied that it was a factor in the decision and explained that Shepherd was laid off because he was not performing his duties adequately. According to Eastern, Shepherd refused to answer emergency calls, his work was substandard, and he had conflicts with customers, fellow employees, and management.
The administrative law judge found that Eastern had established a non- pretextual legitimate business reason for laying off Shepherd not motivated by Shepherd's charge. The Board rejected the ALJ's findings and concluded that Eastern's explanation was a pretext for impermissible motives.
Shepherd had been hired by Eastern as a probationary helper in February, 1973, and was promoted to service mechanic in early 1976, a position he held until his layoff on November 15, 1978. He described his duties as routinely servicing elevators on a prescribed route and making immediate repairs in the event of a breakdown.
On cross examination Shepherd at first denied that his duties included answering emergency calls, also known as call-backs, after regular hours. He also denied refusing to answer call-backs. After the collective bargaining agreement was admitted into evidence, the parties agreed that it imposed on Shepherd and other mechanics a responsibility to attempt to answer after-hours call-backs. 3 When confronted with Eastern's records of his refusals to answer specific call-backs, Shepherd conceded that his prior testimony was incorrect. App. at 47.
Shepherd then claimed as an excuse that he no longer had use of a company car and that without it he did not consider himself bound to answer call-backs. Eastern previously had supplied Shepherd with a company car for about one year when his route extended from Perth Amboy, New Jersey, to Wilmington, Delaware. He admitted, however, that Eastern does not supply all of its maintenance mechanics with cars, and that he lost use of the company car when his route was changed to a "walking route" in Center City Philadelphia. Prior to having a company car, Shepherd also serviced Center City buildings and during that time he used his own vehicle to get to and from his route. After losing the car, Shepherd took a trolley to work from his home in South Philadelphia, a distance of about six to eight miles. Shepherd admitted that he left his tools in an inaccessible Center City building after hours and could not do call-back work in any event.
The alleged unfair labor practice implicated in these proceedings emanated from uncontradicted testimony that bad feelings existed between Shepherd and fellow employee Edward Carswell for a period extending over one year. In November, 1977, Carswell had answered a call-back at a building on Shepherd's route and had reported back to Eastern that the problem was caused by Shepherd's incorrect installation of an elevator motor commutator brush. Upon learning of the problem, Eastern's president, Stephen Zipf, directed Carswell to tell Shepherd to check the installation of the brushes in the future.
Shepherd confronted Carswell and complained about his "carrying tales to the boss." Carswell told Shepherd that he would continue to report unsatisfactory work by others and laughed, "I write them like I see them." App. at 21. Shepherd then threatened to file formal charges with the local union against Carswell for reporting his unsatisfactory work to Eastern. Union officials convinced him not to file charges and instead the executive board of the local heard Shepherd's complaint informally, with the understanding that everything said was to be confidential. A few days later, according to Shepherd, Stephen Zipf took Shepherd aside and accused him of causing "undercurrents within the company" and sent Shepherd home for the day. Shepherd concluded that Zipf was referring to his intra-union complaint and that Carswell must have told Zipf about it.
In September, 1978, Carswell accompanied Eastern's President on a Sunday fire emergency call-back at a building on Shepherd's regular route. In responding to this emergency, Stephen Zipf allegedly did some work that by the terms of the collective bargaining agreement could only be performed by members of the bargaining unit. As a qualified mechanic and active member of the union until becoming the president of Eastern, there was no question that Zipf was competent to perform the work. Upon learning that Zipf had acted in this emergency situation, Shepherd preferred charges against Carswell with the local union. His grounds were that Carswell had violated union bylaws by acquiescing in and not reporting Zipf's performance of work reserved exclusively by the labor contract for members of the bargaining unit. Shepherd did not institute grievance proceedings against Eastern for this alleged breach of contract.
On November 15, 1978, Shepherd was laid off by Eastern. The General Counsel contended that Shepherd's filing of internal union charges against Carswell almost two months earlier was the motivating factor for his layoff. Shepherd's charge, the general counsel argued, and we will assume without deciding, was protected activity. To link Shepherd's layoff to the charges, the General Counsel offered the testimony of Robert Williams, the union's business manager.
Crucial to the General Counsel's case and the Board's decision was Williams' account of events subsequent to Shepherd's filing of charges against Carswell. Williams testified that on the occasion of a meeting with Stephen Zipf about another matter, Zipf tried to raise the fire emergency incident with him. Williams claimed that he tried to discourage the discussion, saying, referring to Shepherd's charge. App. at 85. When Eastern's president persisted in talking about the matter, Williams said he replied: Id. President Zipf's response, according to Williams, was to say, "That goddamn Bobby Shepherd did that to Eddie Carswell," and he continued, "That goddamn Bobby Shepherd created a problem." Id....
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