McLean Trucking Co. v. N.L.R.B.

• Decision Date: 06 October 1983
• Docket Number: No. 82-1455,82-1455
• Citation: 719 F.2d 1226
• Parties: 114 L.R.R.M. (BNA) 2649, 98 Lab.Cas. P 10,487 McLEAN TRUCKING COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1226

719 F.2d 1226

114 L.R.R.M. (BNA) 2649, 98 Lab.Cas. P 10,487

McLEAN TRUCKING COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 82-1455.

United States Court of Appeals, Fourth Circuit.

Argued Jan. 10, 1983.

Decided Oct. 6, 1983.

Claude M. Hamrick, Winston-Salem, N.C. (Wayne H. Foushee, Richard Tyndall, Richmond W. Rucker, Winston-Salem, N.C., on brief), for petitioner.

Elliott Moore, Deputy Associate Gen. Counsel, Washington, D.C. (William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Associate Gen. Counsel, Washington, D.C., on brief), for respondent.

Before HALL, MURNAGHAN and SPROUSE, Circuit Judges.

MURNAGHAN, Circuit Judge:

Cases are sometimes not as simple as they seem. So it is here. The General Counsel for the National Labor Relations Board lodged an unfair labor practice charge against the employer, McLean Trucking Company, alleging that an employee, Carl D. Daniels, was discharged as a consequence of McLean's anti-union bias in violation of Secs. 8(a)(1) and 8(a)(3) of the National Labor Relations Act, 29 U.S.C. Secs. 158(a)(1) and 158(a)(3). The matter is here on McLean's petition for review and the Board's cross-petition for enforcement of a cease-and-desist order issued against McLean.

I.

It is helpful to sketch the background of the legal landscape before painting in the factual details. As is frequently the case where a discriminatory discharge is alleged, the central and difficult issue is one of fact--the motive of the employer. If anti-union animus, a discriminatory motive, was "a factor" in the employer's decision to discharge the employee, the unfair labor practice is established. NLRB v. Kiawah Island Co., 650 F.2d 485, 490 (4th Cir.1981); American Thread Co. v. NLRB, 631 F.2d 316, 320 (4th Cir.1980); Neptune Water Meter Co. v. NLRB, 551 F.2d 568, 569 (4th Cir.1977); NLRB v. Consolidated Diesel Electric Co., 469 F.2d 1016, 1024 (4th Cir.1972). Because the issue is one of fact, our scope of review is limited. We must see whether substantial evidence on the record as a whole supports the determination of the Board. E.g., Jeffrey Manufacturing Division v. NLRB, 654 F.2d 944, 948 (4th Cir.1981).

As countless judicial opinions reveal, the hard cases are those that feature evidence of both improper and good motivation--the so-called "dual motive" scenario. In such circumstances, the employer typically contends that, even though it was far from pleased by an employee's protected activities, the discharge nevertheless was motivated solely by and predicated exclusively upon legitimate management concerns. Where the case assumes that posture, we require that "the evidence must demonstrate why the good motive was not the sole reason for the discharge." Kiawah Island, supra, at 491. The Board must articulate, with support in the record, "an affirmative and persuasive reason why the employer rejected the good cause and chose a bad one." Firestone Tire & Rubber Co. v. NLRB, 539 F.2d 1335, 1337 (4th Cir.1976). If "an affirmative and persuasive reason" is shown, then it fairly can be said that anti-union animus was "a factor" in the discharge. If "an affirmative and persuasive reason" is not articulated and supported, our unbroken practice has been to decline enforcement because, as a reviewing court, we are unable to determine whether the Board has in fact given due consideration to the record as a whole. In such circumstances, the Board's decision is, in essence, a declaration that "the discharge was 'pretextual.' ... [That is] 'all too easy to say.' " Firestone Tire, supra, at 1337. ¹

II.

Making the case seem, at first blush, rather simple is the fact that there is substantial evidence in the record to support the Board's initial conclusion that McLean harbored an anti-union animus with regard to Daniels. Daniels, who was fired on October 9, 1979, actively and zealously engaged in a number of activities protected under the federal labor laws. In particular, Daniels assisted fellow employees in presenting grievances against McLean, ² filed an even greater number of grievance claims against the company on his own behalf, ³ and, additionally, took an active role in organizational matters. ⁴ Of course, mere membership in a union, or the mere exercise of rights protected under the National Labor Relations Act, does not immunize an employee from discharge. E.g., NLRB v. Appletree Chevrolet, Inc., 608 F.2d 988, 994 n. 5 (4th Cir.1979). As the evidence adduced below shows, however, Daniels' protected acts earned him the ire of McLean officials, and those officials in fact expressed their interests in "getting rid" of Daniels because of his persistent protected conduct. ⁵ Indeed the evidence of unambiguous anti-union observations made with respect to Daniels justified a conclusion that there was anti-union animus and that it contributed to the attitudes of the employer toward the employee. McLean readily agrees to that much. The company conceded at oral argument that the General Counsel, on the basis of that evidence, made out a prima facie case of discriminatory discharge. Were that the entire matter, a simple affirmance of the Board's order to cease and desist directed against McLean would be our course.

There is additional evidence, though, making the case rather more complicated. McLean contends that, despite whatever anti-union animus it may have held toward Daniels, there was an independent good cause for discharging Daniels which in fact was the cause of the discharge. And to support its position, McLean points to a substantial body of evidence that demonstrates that Daniels was an unsatisfactory, or, to use the word employed by the administrative law judge, a "horrendous" employee. Beyond any real dispute here is the fact that Daniels was tardy or unexcusedly absent 31 percent of the time over a 36-month period, ⁶ and had accumulated a large array of reprimands and warnings. ⁷ Indeed, the ALJ, after taking note of that work record, candidly observed that the only viable conclusion would be that Daniels was discharged because he was a poor employee, and not because he was active in union and labor affairs. ⁸ Were that all there was to the matter, we would be compelled to swing to the other extreme and conclude that a refusal to enforce the Board's cease-and-desist order would be called for.

But, there is more--a third level of evidence and administrative action further complicating the case. The collective bargaining agreement between McLean and the exclusive representative of its employees provides that a warning notice issued against an employee "shall not remain in effect for more than nine (9) months." The ALJ reasonably understood that language as a contractual bar against a discharge based upon stale wrongdoing, stale being anything more than nine months old.

As one might almost guess having read so far, the vast bulk of Daniels' wrongdoings were of the stale variety. What is more, his recent write-ups--those occurring during the nine-month period immediately preceding his discharge--were four in number and each and every one of a wholly trivial nature. Two raised productivity complaints, but, because McLean had no productivity standards, the two complaints did not figure in the company's deliberations leading to the discharge. The two grounds actually considered involved Daniels' use of automobiles. One, simply put, was a parking violation. The second charged use of an automobile in an unauthorized area. During a rainstorm, Daniels either drove a car upon, or was a passenger in a car which entered, the loading area at McLean's worksite. His goal was to avoid getting wet while he dropped in to pick up his weekly pay. As the ALJ concluded, and as we agree, the two automobile incidents would not, in and of themselves, warrant the dismissal of the typical McLean employee.

With the language of the collective bargaining agreement before him, the ALJ determined that he was completely interdicted from regarding the entire work record of Daniels in resolving the unfair labor practice charge. The ALJ took the position that he was permitted only to consider those matters in Daniels' file concerning his performance during the nine months preceding the discharge. Working from that premise, the ALJ deduced that there really was no good cause in support of the dismissal and that, consequently, the real reason must have been McLean's anti-union sentiments.

III.

The ALJ operated from a faulty premise. It was error to accord no weight whatsoever to the host of performance deficiencies Daniels exhibited prior to the nine-month period that preceded his discharge merely because the collective bargaining agreement directed McLean not to consider them.

The crucial question before the ALJ was one of McLean's actual motive. We may assume that McLean might stand in breach of the labor contract for considering and acting upon Daniels' stale warning notices, but it remains entirely probable that McLean in fact considered and acted upon those grounds, and on those grounds alone. In that case, anti-union animus did not motivate McLean. Its sole motive would have been to rid itself of a demonstrably poor worker. However wrongful, in the world of contract law, a discharge for those reasons might be, ⁹ the discharge would not implicate Sec. 8(a)(1) and Sec. 8(a)(3) of the National Labor Relations Act because an anti-union animus would not have been "a factor" in McLean's decision. ¹⁰

To have ruled out that probability, and to have given the evidence of Daniels' poor overall performance no further consideration, solely on the basis of the labor contract's terms, was error, as the General Counsel forthrightly conceded at oral argument.

IV.

The contention nevertheless is made that the court's mission is to review decisions reached by the Board, and not those made by an administrative law judge. And it is submitted by the General Counse...