Howard Johnson Co. v. N.L.R.B., 82-1589
| Decision Date | 02 March 1983 |
| Docket Number | No. 82-1589,82-1589 |
| Parties | 112 L.R.R.M. (BNA) 2904, 96 Lab.Cas. P 14,101 HOWARD JOHNSON COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — First Circuit |
Robert W. Garrett, Boston, Mass., with whom Paul J. Kingston, Kingston & Garrett and Richard A. Gaucher, Boston, Mass., were on brief, for petitioner.
Howard E. Perlstein, Washington, D.C., with whom William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, and Sandra Shands Elligers, Washington, D.C., were on brief, for respondent.
Before CAMPBELL, BOWNES and BREYER, Circuit Judges.
The National Labor Relations Board petitions for enforcement of its order finding Howard Johnson Company (the company) guilty of unfair labor practices. The Board's order requires, inter alia, that the company cease and desist from engaging in unfair labor practices; offer discharged supervisory employee Sandra Paquin, a former head housekeeper at its South Bend, Indiana motel, immediate, full, and unconditional reinstatement; and post appropriate notices.
The case was heard before an administrative law judge (ALJ) in August 1981. The ALJ found that the company violated section 8(a)(1) of the National Labor Relations Act, 29 U.S.C. Sec. 158(a)(1), 1 by proscribing the display of union buttons, by threatening reprisals for union activities, by threatening that no union would be permitted, by interrogating statutory employees about union activity, by attempting to enlist Sandra Paquin, a supervisor, to engage in espionage of union meetings, and by discharging Paquin for refusing to engage in espionage. All of the foregoing conduct occurred in connection with an organizing campaign of Teamsters Local 364 at the company's South Bend, Indiana motor lodge. The Board affirmed the ALJ's rulings, findings, and conclusions.
The company does not contest any of the findings of section 8(a)(1) violations except those related to its actions toward Paquin. It is undisputed that Paquin is a supervisor and thus not entitled to the protections given to statutory employees under the National Labor Relations Act. See Beasley v. Food Fair of North Carolina, 416 U.S. 653, 658-62, 94 S.Ct. 2023, 2026-28, 40 L.Ed.2d 443 (1974); NLRB v. Faulkner Hospital, 691 F.2d 51, 53 (1st Cir.1982); NLRB v. Sheraton Puerto Rico Corp., 651 F.2d 49, 51 (1st Cir.1981). We must first decide whether substantial evidence supports the Board's conclusion that the company discharged Paquin because she refused to comply with the company's demand that she identify which of her co-workers attended a meeting, see Universal Camera Corp. v. NLRB, 340 U.S. 474, 487-88, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951); NLRB v. Pilgrim Foods, Inc., 591 F.2d 110, 112 (1st Cir.1978), and if so, whether a discharge for this reason is an unfair labor practice. Substantial evidence
means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 [71 S.Ct. 456, 459, 95 L.Ed. 456] ... (1951). We must take contradictory evidence in the record into account, id. at 487-88, ... but "the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence." Consolo v. Federal Maritime Commission, 383 U.S. 607, 620 [86 S.Ct. 1018, 1026, 16 L.Ed.2d 131] ... (1966). "Even if reasonable minds could also go the other way, we must uphold the Board if its ultimate finding is supported by substantial evidence on the record as a whole." NLRB v. J.K. Electronics, 592 F.2d 5, 7 (1st Cir.1979).
NLRB v. Concord Furniture Industries, 675 F.2d 426, 428 (1st Cir.1982).
The basic facts are not in dispute. Paquin held the position of supervisor of the housekeeping department at the company's South Bend motor lodge from November 27, 1978, until December 17, 1980. In early November 1980 Paquin attended at least two union meetings, and at one of those meetings on November 9, 1980, she signed a union authorization card.
On November 21, 1980, Paquin was called to a meeting with Kevin B. Callanan, the company's vice president of labor relations, William Collins, the South Bend motor lodge manager, and Richard Gaucher, the company's attorney. Callanan informed Paquin that he was in South Bend to gather information concerning the petition the Teamsters had filed to represent the South Bend employees. Callanan instructed Paquin not to ask any employees about the union, but if she were approached, she should listen and report what she heard to Collins. When Callanan asked her about her own involvement in the union and whether she had any information about the origin of the union activity, Paquin answered untruthfully, stating that she had never seen a union authorization card and was not aware of any employee's signing a card.
On December 17, 1980, Paquin again met with Callanan and Collins. Callanan told Paquin he was there to investigate her involvement in union activities. Callanan testified that Paquin immediately disavowed any involvement in union activity. He testified further that he knew this response was untruthful because he had reviewed a copy of the transcript of the November 24, 1980, representation proceeding at which Paquin testified that she had signed a union authorization card at a union meeting on November 9.
Callanan continued to question Paquin about her union activity, and she finally admitted that she had attended a union meeting. Callanan asked Paquin if employees of Howard Johnson were at this meeting, and Paquin stated that there were. Callanan then requested Paquin to reveal the identity of these employees. Paquin refused stating, according to Callanan, that she would not be a "snitch" on these other employees. Paquin testified that when Callanan again demanded that she reveal the identity of the employees she refused and left the meeting.
Callanan testified that he continued to question Paquin about her own union involvement and warned her that he believed she was not being truthful. She admitted signing a union card, but was unclear whether it was a union authorization card. Callanan's testimony as to what happened next is not terribly precise, but it appears that the conversation broke down. Callanan repeatedly warned Paquin to be truthful and reminded her she was a supervisor. Paquin stated that Callanan was being rude and that she was not going to answer any more questions; she then left the room.
Callanan testified that after Paquin left he directed Collins to find Paquin and tell her that if she did not return to continue the conversation, she would be terminated. He stated that at that time his reasons for terminating her if she refused to return were her failure to cooperate in the investigation into her union activities and her insubordination, but he did not reveal these reasons to Collins. Callanan stated that if Paquin returned, he would have asked additional questions and expected her to answer his original questions truthfully. He would have again requested that she reveal the identities of the employees present at the union meeting.
Collins testified that, pursuant to Callanan's request, he summoned Paquin to his office and told her that if she did not return to the meeting with Callanan and continue the conversation, she would be terminated. Paquin's response, according to Collins, was that she would not talk to Callanan, and if telling on her friends meant she would be fired, she guessed she was fired. Collins stated that at this point he fired Paquin because she refused to talk to Callanan. Paquin's testimony recounting this meeting agrees substantially with that of Collins. Paquin admitted that she did not know what question or questions she would be required to answer if she returned to the meeting. Upon this evidence, the Board found that
it was not until Mrs. Paquin twice refused to "finger" the employees at those meetings--the second time, when recalled to the interview ... for the express purpose of giving her another opportunity to comply with Respondent's requirement that she disclose the names of the other employees at those meetings--that she was then and there precipitately discharged after her continued refusal to supply that information.
The Board concluded "that the true and controlling reason for Respondent's discharge of Mrs. Paquin was her refusal to identify the employees she observed attending union meetings ...." Howard Johnson contends that the evidence shows it fired Paquin because of her disloyalty (i.e., her union support) and her failure to cooperate in the investigation of her union activities. We think the record evidence amply and substantially supports the Board's conclusion.
The company learned of Paquin's disloyalty and initial insubordination well before it discharged her. At Paquin's first meeting with Callanan and Collins on November 21, 1980, she failed to disclose her union involvement and her knowledge of union activity at the motor lodge. The company learned of her dishonesty and her support of the union at least by November 28 when it received a transcript of the November 24 representation hearing at which Paquin testified about her union activity.
On December 17 the only question for which the company had no answer was--who were the employees at the November 9 union meeting. The company's claim that it fired Paquin because of insubordination is nothing more than a claim that it fired her because she refused to cooperate and answer questions. The question she refused to answer was what employees were present at the union meeting. The company claims that it had a right to demand answers because Paquin was a supervisor and owed her loyalty to management. That is, the...
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