Local 14 United Paperworkers Intern. Union, AFL-CIO v. N.L.R.B.

• Decision Date: 19 August 1993
• Docket Number: AFL-CIO and I,Nos. 92-2236,AFL-CI,92-2346,P,s. 92-2236
• Citation: 4 F.3d 982
• Parties: 144 L.R.R.M. (BNA) 2616 NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished opinions may be cited only in related cases. LOCAL 14 UNITED PAPERWORKERS INTERNATIONAL UNION,nternational Brotherhood of Firemen and Oilers, Local 246,etitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. NATIONAL LABOR RELATIONS BOARD Petitioner, v. INTERNATIONAL PAPER COMPANY, Respondent.
• Court: U.S. Court of Appeals — First Circuit

Page 982

4 F.3d 982

144 L.R.R.M. (BNA) 2616

NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished opinions may be cited only in related cases.

LOCAL 14 UNITED PAPERWORKERS INTERNATIONAL UNION, AFL-CIO and International Brotherhood of Firemen and Oilers, Local 246, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

NATIONAL LABOR RELATIONS BOARD Petitioner, v. INTERNATIONAL PAPER COMPANY, Respondent.

Nos. 92-2236, 92-2346.

United States Court of Appeals First Circuit.

Aug. 19, 1993.

On Petition for Review of an order of the National Labor Relations Board

Jeffrey Neil Young with whom McTeague, Higbee, Libner, MacAdam, Case & Watson was on brief for Local 14 United Paperworkers International Union, etc.

Vincent J. Falvo, with whom Linda Dreeben, Supervisory Attorney, Julie B. Broido, Senior Attorney, Jerry M. Hunter, General Counsel, Yvonne T. Dixon, Acting Deputy General Counsel, Nicholas E. Karatinos, Acting Associate General Counsel, and Aileen A. Armstrong, Deputy Associate General Counsel, were on brief for National Labor Relations Board. Jane B. Jacobs with whom Nancy B. Schess, Lee R. A. Seham, and Seham, Klein & Zelman were on brief for International Paper Company, amicus curiae.

N.L.R.B.

AFFIRMED.

Before Boudin, Circuit Judge, Coffin, Senior Circuit Judge, and Stahl, Circuit Judge.

STAHL, Circuit Judge.

Local 14, United Paperworkers International Union, AFL-CIO and International Brotherhood of Fireman and Oilers, Local 246, AFL-CIO (referred to collectively as "the Union") petition this court to review and set aside that portion of an order of the National Labor Relations Board ("the Board") affirming International Paper Company's ("IP") discharge of four striking employees for strike-related misconduct. IP intervenes on the side of the Board. The Board cross-petitions for enforcement of that part of its order requiring IP to offer a fifth striker reinstatement. In the Board's cross-petition, the Union intervenes on the side of the Board. For the reasons set forth below, we grant enforcement of the Board's order in its entirety.

I. FACTUAL BACKGROUND

IP operates the Androscoggin Paper Mill in Jay, Maine. Approximately 1200 members of the Union are among the employees at the Jay facility. In June 1987, the collective bargaining agreement between IP and the Union expired, and Union workers went on strike. Nevertheless, IP maintained operations at the mill throughout the strike, employing non-striking union members and non-union replacement workers. The walkout was marked by periodic outbreaks of violence, threats, and general strike-related misconduct. In October, 1988, after the strike ended, IP discharged eleven strikers.

The discharges prompted the Union to file an unfair labor practice charge alleging that IP violated sections 8(a)(3) and (1) of the National Labor Relations Act, 29 U.S.C. Sec. 158(a)(3) and (1) ("the Act"). The Union maintained that IP discriminated against striking employees by dismissing strikers for strike-related misconduct while failing to dismiss non-strikers who had engaged in equally serious or more serious misconduct. In a hearing before an Administrative Law Judge ("ALJ"), the Union's discrimination challenge was limited to the discharge of the following five strikers: Lawrence Bilodeau, Lawrence Chicoine, Forrest Flagg, Thomas Hamlin, and Arthur Storer. The ALJ compared their respective acts of misconduct with that of non-striker Andrew Barclay and found that all five strikers had engaged in strike-related misconduct which warranted their discharge, but that IP's dismissal of strikers Bilodeau and Flagg constituted unlawful disparate treatment. The ALJ's finding was predicated on his determination that non-striker Barclay, who retained his job but received a warning, had engaged in strike-related misconduct at least as serious as the misconduct of Bilodeau and Flagg. The ALJ found no disparate treatment, however, in IP's discharge of Chicoine, Hamlin and Storer. Both IP and the Union filed exceptions to the ALJ's decision.

On September 20, 1992, the Board issued a final decision and order. The Board affirmed the ALJ's finding that IP had not engaged in disparate treatment in dismissing Chicoine, Hamlin and Storer. The Board also sustained the ALJ's holding that IP had wrongfully discharged Bilodeau and ordered his reinstatement. However, the Board reversed the ALJ's decision as to Flagg, finding his misconduct more serious than that committed by any of the non-strikers. This petition for review and cross-petition for enforcement followed.

II. Standard of Review

This court must enforce the Board's order if its findings are supported by substantial evidence on the record considered as a whole and if it correctly applied the law. NLRB v. Acme Tile & Terrazzo Co., 984 F.2d 555, 556 (1st Cir. 1993). Substantial evidence "means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." NLRB v. Auciello Iron Works, Inc., 980 F.2d 804, 807 (1st Cir. 1992) (citations and internal quotations omitted). We are compelled to review the Board's order with considerable deference and "may not substitute [our] own judgment for that of the Board when the choice is between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo." Destileria Serrales, Inc. v. NLRB, 882 F.2d 19, 21 (1st Cir. 1989) (citations and internal quotations omitted). Moreover, when this court reviews an agency's credibility finding, "we must accept the finding unless it exceeds 'the bounds of reason.' " Boston Mut. Life Ins. Co. v. NLRB, 692 F.2d 169, 170 (1st Cir. 1982) (quoting P.S.C. Resources, Inc. v. NLRB, 576 F.2d 380, 382 (1st Cir. 1978)). Finally, "we need not limit ourselves to the exact grounds for decision utilized below. We are free, on appeal, to affirm a judgment on any independently sufficient ground." Aunyx Corp. v. Canon U.S.A., Inc., 978 F.2d 3, 6 (1st Cir. 1992) (quoting Polyplastics, Inc. v. Transconex, Inc., 827 F.2d 859, 860-61 (1st Cir. 1987)), cert. denied, 113 S. Ct. 1416 (1993).

III. Conduct of Five Strikers and Non-Striker Barclay

Having carefully reviewed the ALJ's factual findings, which were adopted by the Board, we find them eminently supportable and therefore accept the ALJ's version of the events. We summarize them as follows:

Non-striker Andrew Barclay: On July 30, 1987, Barclay and his son, carrying baseball bats, confronted a group of strikers who were attending a party near Barclay's lakefront home. Barclay complained to the strikers about being harassed and constantly called a "scab", and told them that he and his son were there to "clean [the strikers] all out." ¹ The strikers asked Barclay to leave, but he did not. In an attempt to wrest the bat from Barclay, striker Charles Fullerton received a cut that required minor medical attention.

Striker Lawrence Bilodeau: On October 28, 1987, Bilodeau, returning home from work, passed the home of a replacement worker. At the time, the worker was standing in front of his house with his family. Bilodeau then turned his truck around and stopped in front of the worker's home. Bilodeau noticed that the worker was writing down his license plate number, and yelled "I've worked at the mill for twenty years, and you ain't gonna be living here long you [expletive deleted]. Go ahead and write down my license. I live right around the corner."

Striker Lawrence Chicoine: On June 27, 1987, Chicoine was picketing outside of the mill when he accosted one non-striker and told her that he would kill her for crossing the picket line. On July 1, 1987, Chicoine was again picketing outside of the mill when he used a megaphone to threaten a number of replacement workers as they arrived for work that "he had a .44" and "would blow [their] heads off."

Striker Forrest Flagg: On December 8, 1987, a replacement worker drove by Flagg as Flagg picketed outside of the mill. Flagg opened the passenger door of the replacement worker's car, reached into the car, and shouted "I'll kill you."

Striker Thomas Hamlin: On August 7, 1987, after consuming a large quantity of beer and smoking numerous marijuana cigarettes, Hamlin got into a truck and followed two groups of replacement workers as they returned home from work. Hamlin harassed them and attempted to run them off the road with his truck.

Striker Arthur Storer: On August 6, 1987, as a replacement worker exited the mill, Storer threw a rock at her car, kicked the car, and then jumped on the car's bumper.

IV. Discussion

A. Disparate Treatment

The Union's principal contention is that IP engaged in unlawful disparate treatment by discharging the five strikers listed above for engaging in strike-related misconduct which was less serious than misconduct committed by non-striker Barclay, who was merely warned. ² The Board agreed with the Union as to Bilodeau, but not as to the other four strikers. We agree with the Board's conclusions.

Pursuant to Sec. 7 of the Act, "employees are granted the right to peacefully strike, picket and engage in other concerted activities for the purpose of collective bargaining." NLRB v. Preterm, Inc., 784 F.2d 426, 429 (1st Cir. 1986). Section 7 also allows employees the right to refrain from these activities if they so desire. Id.

"At the end of an economic strike, an employer, unless otherwise justified, must reinstate striking employees, lest their discharge penalize the employees for exercising their right to strike under Sec. 7 of the Act." Associated Grocers of New England, Inc. v. NLRB, 562 F.2d 1333, 1335 (1st Cir. 1977). It is well established that an employer is justified in discharging a striking employee who engages in serious strike-related misconduct. Preterm, 784 F.2d at 429; Associated Grocers, 562 F.2d at 1335. Behavior that "reasonably tend[s] to coerce or intimidate non-striking employees in the exercise of their...