Local One, Amalgamated Lithographers of America v. N.L.R.B.

• Citation: 729 F.2d 172
• Decision Date: 24 February 1984
• Docket Number: AFL-CI,D,No. 58,P,58
• Court: U.S. Court of Appeals — Second Circuit
• Parties: 115 L.R.R.M. (BNA) 3161, 100 Lab.Cas. P 10,847 LOCAL ONE, AMALGAMATED LITHOGRAPHERS OF AMERICA, affiliated with International Typographical Union,etitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Howard Press, Inc., Intervenor. ocket 83-4049.

Page 172

729 F.2d 172

115 L.R.R.M. (BNA) 3161, 100 Lab.Cas. P 10,847

LOCAL ONE, AMALGAMATED LITHOGRAPHERS OF AMERICA, affiliated with International Typographical Union, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent and Howard Press, Inc., Intervenor.

No. 58, Docket 83-4049.

United States Court of Appeals Second Circuit.

Argued Oct. 5, 1983.

Decided Feb. 24, 1984.

Andrew Irving, New York City (Robinson, Silverman, Pearce, Aronsohn & Berman, New York City, of counsel), for petitioner.

Miriam Szapiro, Atty., N.L.R.B., Washington, D.C. (William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Helen Morgan, Atty., N.L.R.B., Washington, D.C., of counsel), for respondent.

Edward R. Schwartz, Livingston, N.J., for intervenor.

Before CARDAMONE, PIERCE and PRATT, Circuit Judges.

GEORGE C. PRATT, Circuit Judge:

Petitioner Local One, Amalgamated Lithographers of America, pursuant to Sec. 10(f) of the National Labor Relations Act, 29 U.S.C. 160(f) (1976), seeks to review an order of the National Labor Relations Board that dismissed an unfair labor practice complaint against employer-intervenor Howard Press, Inc., a commercial printing business that employs approximately 125 workers. Local One's complaints to the board, later consolidated, alleged various unfair labor practices under Secs. 8(a)(1) and (a)(3) of the NLRA, 29 U.S.C. Sec. 158(a)(1) and (3), in connection with an election for union representation held on November 2, 1979, which the union lost by a vote of 15 to 6.

In the consolidated complaint the union presented two significant issues. It claimed first that by warnings of economic reprisals and other activities directed at its The union's second claim raised the issue that is now before us. The union claimed that Howard Press had discharged Michael Doklia, Judith Blechar, and Leann Moss, who had been members of the union's organizing committee, because they were engaging in a protected activity, union organizing. Howard Press contended that it discharged the employees not because of their union activity, but because they had used marijuana on company premises and had been arrested as a result.

employees as a group, Howard Press had interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed in Sec. 7 of the NLRA, 29 U.S.C. Sec. 157. On this issue the ALJ's findings and recommendation in favor of the union were accepted by the board, which implemented the recommendation with an order that requires Howard Press to cease and desist from threatening employees, from creating the impression that employees' union activities are under surveillance, or from otherwise interfering with, restraining, or coercing employees in the exercise of their rights under Sec. 7. Neither side has sought review of that part of the order.

After hearing evidence on the union's charges of unfair labor practices, and after making certain findings of fact, the ALJ concluded that Howard Press, by discharging Doklia, Blechar, and Moss, had "discouraged membership in a labor organization by discriminating in regard to tenure of employment, thereby engaging in unfair labor practices in violation of Sec. 8(a)(3) and (1) of the Act." He based this conclusion on the facts that Howard Press knew of the three employees' union activity at the time of their suspensions and that Howard Press had exhibited "animus toward the union". As to the reason proferred by Howard Press for the discharges, the ALJ found that the past practice of Howard Press revealed that employees had been discharged for drug use only when it affected their faculties or work performance. He particularly noted the company's failure to suspend or terminate two other employees, discussed below, when it became aware that they had been smoking marijuana during a break. As to the three subject employees the ALJ found that there was no evidence they "were under the influence of drugs or that their work was affected at any time while such employees were at work", and he concluded that the discharges were because of anti-union animus.

Based on his finding that the unfair labor practices were pervasive, the ALJ recommended that, despite the union's loss of the representation election, the board should issue a bargaining order under the Supreme Court's decision in NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969).

On administrative appeal, the board disagreed, finding that Howard Press had "discharged Doklia, Blechar, and Moss because of the information conveyed to [Howard Press] that those employees had used marijuana on company premises and were arrested at said premises for that reason." The board therefore overruled the union's objections based on retaliatory discharges, certified the election's result, and refused to issue a bargaining order. The union seeks review.

DISCUSSION

The central issue is whether Howard Press violated Secs. 8(a)(1) and 8(a)(3) of the NLRA, 29 U.S.C. Secs. 158(a)(1) and (a)(3), when it discharged Doklia, Blechar, and Moss. More specifically, the question is whether the employees were discharged for their union activity or for their use of drugs on company premises.

The governing substantive rules were summarized by Justice White in an NLRB v. Transportation Management Corp., --- U.S. ----, 103 S.Ct. 2469, 2472, 76 L.Ed.2d 667 (1983):

Employees of an employer covered by the NLRA have the right to form, join, or assist labor organizations. NLRA Sec. 7, 29 U.S.C. Sec. 157. It is an unfair labor practice to interfere with, restrain, or coerce the exercise of those rights, NLRA Sec. 8(a)(1), 29 U.S.C. Sec. 158(a)(1), or by discrimination in hire or tenure 'to encourage or discourage membership in any labor organization,' NLRA Sec. 8(a)(3), 29 U.S.C. Sec. 158(a)(3).

Under these provisions it is undisputed that if the employer fires an employee for having engaged in union activities and has no other basis for the discharge, or if the reasons that he proffers are pretextual, the employer commits an unfair labor practice. He does not violate the NLRA, however, if any anti-union animus that he might have entertained did not contribute at all to an otherwise lawful discharge for good cause."

Because the ambiguities in situations involving dual or mixed motives for an employer's conduct repeatedly caused the board difficulty, it eventually adopted, in Wright Line, 251 N.L.R.B. 1083 (1980), enforced, 662 F.2d 899 (1st Cir.1981), cert. denied, 455 U.S. 989, 102 S.Ct. 1612, 71 L.Ed.2d 848 (1982), what has become known as the Wright Line test, approved by the Supreme Court in NLRB v. Transportation Management Corp., supra. Under that test, in proceedings before the ALJ and the board, the burden initially is on general counsel to prove by a preponderance of the evidence that the employee's conduct protected by Sec. 7 of the act "was a substantial or a motivating factor in the discharge." Even if it is established, however, that "a desire to frustrate union activity" is a motivating factor in the discharge, the employer can still avoid being held by the board to be in violation of the act by proving by a preponderance of the evidence "that the discharge would have occurred in any event and for valid reasons * * *." 103 S.Ct. at 2473.

In this case the board did not specifically articulate a Wright Line analysis. It made no mention of Howard Press's anti-union animus as found by the ALJ, but instead simply found that Doklia, Blechar, and Moss were discharged "because of the information conveyed to [Howard Press] that those employees had used marijuana on company premises, and were arrested at said premises for that reason." The board's decision, therefore, could be interpreted as treating this as a pretext case, i.e., one where "the issue is whether either illegal or legal motives, but not both, were the 'true' motives behind the decision." NLRB v. Transportation Management, 103 S.Ct. at 2473 n. 5. Under that interpretation the board has found that the discharge was because of drug use, not union activity.

Alternatively, the administrative proceedings as a whole could be viewed as a dual motive case, calling for application of the Wright Line test. In that perspective the ALJ's finding of anti-union animus would constitute the first determination, and the board's finding of a valid reason for the discharges would constitute an acceptance of the employer's "affirmative defense" under the Wright Line analysis. See 103 S.Ct. at 2473. The particular mode of analysis is unimportant in this case, however, because whichever approach is taken, pretext or dual motive, the result before the board would be the same as long as Howard Press proved by a preponderance of the evidence that the discharge was because of drug use. Of course, on reviewing the board's decision, this court need not find that Howard Press proved its case by a preponderance; rather, the standard for review of the agency's decision limits our inquiry to one issue--whether there is substantial evidence to support the board's finding that the discharge was because of drug usage. 29 U.S.C. Sec. 160(e).

Substantial evidence "means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938). It is "more than a mere scintilla." Id.; see also Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971). Substantial evidence on the record as a whole includes that evidence opposed to the board's view. Universal Camera Corp. v. NLRB, 340 U.S. 474, 485-488, 71 S.Ct. 456, 463-64, 95 L.Ed. 456 (1951). Further, even if this court could draw different conclusions from those drawn by the agency, that would not prevent the agency's decision from being supported by...