Humes Elec., Inc. v. N.L.R.B., s. 82-7700
| Citation | 715 F.2d 468 |
| Decision Date | 07 September 1983 |
| Docket Number | 82-7587,Nos. 82-7700,s. 82-7700 |
| Parties | 114 L.R.R.M. (BNA) 2445, 98 Lab.Cas. P 10,438 HUMES ELECTRIC, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Stuart H. Young, Jr., Los Angeles, Cal., for petitioner.
Fred Havard, Washington, D.C., for respondent.
Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.
Before SNEED and TANG, Circuit Judges, and COPPLE, * District Judge.
Humes Electric, Inc. petitions for review of the Decision and Order of the National Labor Relations Board, 263 NLRB No. 159 (Sept. 20, 1982), holding James Devers' discharge illegal and ordering his reinstatement and back pay. The Board has filed a cross-application for enforcement of its order. For the reasons that follow, we deny the petition for review and order enforcement.
Facts:
The critical factual issue before the Board was Humes' motivation in firing Devers. The Board concluded that Devers was fired for engaging in protected activity. Humes argues that Devers was fired for poor production and insubordination.
Before Devers was fired, he had worked for four weeks as a foreman for Humes on their "Elk Hills Project" which involved setting large electrical poles and stringing wire at the Elk Hills Naval Petroleum Reserve. Though not directly communicated to Humes, Devers was the Union Steward on the job. Humes was, however, aware that Devers was a union man with a lot of influence with the other workers. Conflicting testimony was presented, and both Devers' and Humes' views of the reasons for Devers' discharge have support in the record. The Board found that Humes had "presented sufficient evidence that it had legitimate concerns about Devers' productivity on the Elk Hills project," 263 NLRB at ---, but that Devers' discharge was "grounded ... in his participation in the joint meeting of union and management officials on the subject of crew size ... and in his pursuit, as job steward, of larger crews." Id. at ---.
The Board's decision turned on its resolution of the conflict over when Humes decided to terminate Devers. Humes contended that the decision to fire Devers was made on August 6, following conversations first, between Humes' management over Devers' lack of production, and second, between Devers and Ingram (Humes' foreman). According to Humes, the decision to fire Devers came after Devers expressed a lack of concern over Ingram's complaints and after Devers "stormed" out of the office when Ingram told him the work he'd been doing was easy.
According to Humes, when Ingram reported the meeting's results to Humes' Vice President Geissel, they decided to fire Devers the next day, August 7. Devers was ill August 7 and 8, however, and by Monday, August 11, Geissel had decided to wait until payday, August 12, to fire Devers. According to Humes, firing Devers on payday would accord with company policy to terminate on a payday, absent unusual circumstances.
In the meantime, Geissel on August 8 had spoken with Union Business Representative Al Fitts and they agreed to meet at the job site to straighten out some problems. The August 11 meeting was attended by Devers, Fitts, Ingram and Ron Parrent, attending in Geissel's place. At the meeting all ultimately agreed to crews of up to 10 men with one non-working foreman. It was also agreed that Devers and another working foreman would no longer be foremen. The next day, August 12, Ingram gave Devers his pay check, with a "pink slip" stating "letter to follow". The letter that followed stated that Devers was fired for non-production.
The Board found that Humes fired Devers because of his complaints about crew size and his participation in the meeting. The Board concluded that had Humes
been resolute in its alleged August 6 decision to discharge Devers on August 7, it clearly would have implemented the discharge prior to August 12. Although Respondent had legitimate concerns with Devers' work output, we find that his lack of productivity was blown up out of proportion by Respondent to veil the solution which Respondent desired: namely, Devers' discharge because of his participation in the August 11 meeting and his advocacy of change contrary to Respondent's economic interests.
Humes argues that the Board's decision is not supported by substantial evidence, specifically arguing the following:
(1) the General Counsel failed to make out a prima facie case;
(2) Humes met its Wright-Line burden by establishing that Devers would have been discharged for reasons unrelated to protected activity;
(3) the Board drew impermissible conclusions from the evidence;
(4) the Board engaged in improper factfinding; and
(5) Devers was a supervisor and thus not protected by the Act.
There was ample evidence to support a prima facie case.
Devers argued for larger crews in order to insure safety. That Devers' criticisms had an objective basis is evidenced by the fact that other employees as well were concerned about crew sizes. Protests concerning unsafe conditions are protected under the Act. The combination of Devers' protests and his subsequent dismissal the day after the meeting on crew size were enough to establish a prima facie case.
In the decision below, the Board acknowledged that Humes showed that its concerns about Devers' productivity were legitimate. Nevertheless the Board found that Humes fired Devers for his participation in the union-management meeting on crew size and for Devers' general pursuit of larger crews. Humes argues that this conclusion was erroneous and that it resulted from an error in placing the burden of proof on Humes.
First, we note that once the General Counsel proved by a preponderance of the evidence that Humes' displeasure with Devers' protected activity contributed to Devers' discharge, the Board was justified in placing the burden on Humes to show that Devers would have been fired for legitimate reasons regardless of his protected activity. The Supreme Court has recently held that the Board can properly place the burden of proving this affirmative defense on the employer. N.L.R.B. v. Transportation Management Corp., --- U.S. ----, 103 S.Ct. 2469, 76 L.Ed.2d 667 (1983) ().
Humes argues, however, that the Board placed on Humes two burdens: that of proving that Devers was discharged for poor production as well as that of disproving the prima facie case. We disagree.
It is clear that the Board concluded that though Humes had legitimate concerns about Devers' production, it fired him because of his union activities. There is no showing that the Board required Humes to disprove the prima facie case as well.
Humes further argues that Transportation Management should not be applied to this case because the facts of this case are so different from the facts of Transportation Management. In Transportation Management, Humes argues, the company essentially confessed to having an improper motive, but sought to show that the employee would nevertheless have been fired for legitimate reasons....
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