Lemon Drop Inn, Inc. v. N.L.R.B.

• Decision Date: 09 January 1985
• Docket Number: No. 84-5083,84-5083
• Parties: 118 L.R.R.M. (BNA) 2290, 102 Lab.Cas. P 11,309 LEMON DROP INN, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 323

752 F.2d 323

118 L.R.R.M. (BNA) 2290, 102 Lab.Cas. P 11,309

LEMON DROP INN, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 84-5083.

United States Court of Appeals,

Eighth Circuit.

Submitted Dec. 14, 1984.

Decided Jan. 9, 1985.

J. Dennis O'Brien, Minneapolis, Minn., for petitioner.

Elliott Moore, Dept. of Justice, Washington, D.C., for respondent.

Before HEANEY, ROSS and FAGG, Circuit Judges.

PER CURIAM.

The National Labor Relations Board, affirming a decision of the administrative law judge (ALJ), found that the Lemon Drop Inn, Inc., violated the National Labor Relations Act (29 U.S.C. Sec. 158(a)(1) and (3)) by threatening to shut down the restaurant if its employees selected a labor organization to be their collective bargaining representative, and by wrongfully discharging two employees, Betty Brock and Jody Griffith, in retaliation for their involvement with the union. On appeal, Lemon Drop argues that the ALJ's factual findings are unsupported by substantial evidence, that the general counsel failed to establish a prima facie case of retaliatory discharge, that the Board erred in finding the employees' discharge was pretextual, and that the Board erred in ordering the remedies of back pay and a new election. Having carefully reviewed the record and having found no error, we affirm.

This dispute arose out of attempts by the Hotel, Motel, Restaurant, Bar and Club Employees Union, in early October, 1980, to organize employees of the restaurant. A month later, the union told the restaurant that it represented the employees; it suggested meeting with management to discuss a contract and offered to have the employees' union authorization cards verified. At about the same time, the union filed a representation petition with the Board. Six weeks later, in mid-December, the Board conducted a representation election at which employees voted 22-22 on the issue of union representation, with an additional vote challenged, that of Jody Griffith.

I. THREATENED RETALIATORY SHUTDOWN.

Employers who threaten to shut down in response to employee attempts at organization violate Section 8(a)(1) of the N.L.R.A., 29 U.S.C. Sec. 158(a)(1). N.L.R.B. v. Broyhill, 514 F.2d 655, 657 (8th Cir.1975). The violation in this case is supported by testimony that restaurant manager Joel Berg threatened waitress Ruby Cassidy by stating that, if he heard further talk of employee organization, he would close the restaurant and fire the employees.

The petitioner challenges Cassidy's testimony about the threats by introducing work records to show that she could not have worked with the employees she referred to and on the date she mentioned. Cassidy testified, however, that the threatening statement was made "around the end of October," which effectively answers Lemon Drop's attempt to discredit the evidence. We note that Cassidy's testimony was not inconsistent with testimony of another employee who told management of attempts at organization, and we note that similar threats were made before this one. In addition, the ALJ made specific findings regarding Cassidy's credibility which we are bound to affirm if they are supported by the record as a whole. Fruin-Colnon Corp. v. N.L.R.B., 571 F.2d 1017, 1022 (8th Cir.1978). The ALJ also noted that he found manager Berg, who contradicted Cassidy's testimony, to be "consistently * * * an untrustworthy witness." Thus, we find substantial support in the record for the Board's decision on this issue.

II. UNLAWFUL DISCHARGE.

The Board also found that the restaurant unlawfully discharged employees Jody Griffith and Betty Brock for their roles in organizing the restaurant's employees. Retaliatory discharges of this type are proscribed by section 8(a)(3) of the N.L.R.A., which forbids "discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization * * *." 29 U.S.C. Sec. 158(a)(3).

We affirm Board determinations when they are supported by substantial evidence on the record as a whole. Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951). In cases like this one, inference of an employer's unlawfulness may be drawn from the employer's hostility toward the union, McGraw-Edison Co. v. N.L.R.B., 419 F.2d 67, 75 (8th Cir.1969), coincidence between the employee's activities and the discharge, T.L.C. Lines, Inc. v. N.L.R.B., 717 F.2d 461, 464 (8th Cir.1983), or the absence of previous warnings or reprimands to the employee. N.L.R.B. v. Wal-Mart Stores, Inc., 488 F.2d 114, 117 (8th Cir.1973). When an employee establishes that his discharge was motivated by his union activities, the employer "may avoid being adjudicated a violator by showing what his actions would have been regardless of his forbidden motivation." N.L.R.B. v. Transportation Management Corp., 462 U.S. 393, ----, 103 S.Ct. 2469, 2474, 76 L.Ed.2d 667, 675 (1983).

Our review of the record regarding the discharges of Jody Griffith and Betty Brock confirms that the Board's decision is supported by substantial evidence. The Board found that Griffith had previously been considered a good employee, which was corroborated by his speedy promotion to cook and by his merit-based raise a month before he was fired. That the restaurant exhibited animus against unions is also firmly established by its threat to shut down the business in response to union organizing.

In defense, the restaurant claims ignorance of union-organizing activities. This is contradicted by waitress Sharon Borg's testimony that she told management that Griffith and Cassidy approached her in seeking authorization for the union by employees. The restaurant attacks Borg's credibility by suggesting that she subsequently recanted her testimony and that the managers denied having this knowledge. Again, the ALJ made specific credibility findings which we accept. The ALJ found that Borg was biased in favor of the restaurant and, thus, he declined to credit her equivocation after she had testified that she had implicated Jody Griffith. He also noted that, in equivocating, she failed to explain why she would have omitted mentioning Griffith to the managers, a factor which we find especially significant in light of her initial testimony that she was sure she had mentioned both names, because she closely associated the two at the time.

We also find substantial support in the record for the conclusion that the restaurant's explanation for Griffith's discharge was pretextual. The discharge was abrupt and unexpected, particularly in light of Griffith's previously satisfactory work record. We also note apparent inconsistencies in the restaurant's explanation of the circumstances underlying the discharge which, as another Court has noted, weakens the restaurant's case and buttresses the conclusion that the discharge was motivated by...