Mead and Mount Construction Co. v. NLRB

• Decision Date: 14 July 1969
• Docket Number: No. 19234.,19234.
• Citation: 411 F.2d 1154
• Parties: MEAD AND MOUNT CONSTRUCTION CO., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

411 F.2d 1154 (1969)

MEAD AND MOUNT CONSTRUCTION CO., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 19234.

United States Court of Appeals Eighth Circuit.

June 5, 1969.

Rehearing Denied July 14, 1969.

William B. Craig of Craig, Woodruff & Hanley, Omaha, Neb., for petitioner.

Fred R. Kimmel, Atty., N.L.R.B., Washington, D. C., for respondent; Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Leonard M. Wagman, Atty., N.L.R.B., were with him on brief.

Before BLACKMUN, GIBSON and HEANEY, Circuit Judges.

HEANEY, Circuit Judge.

This is the first of three appeals from the National Labor Relations Board decided today.¹ The Board's decision was reported at 169 N.L.R.B. No. 79, 67 L.R.R.M. 1270 (1968). A common issue in each case is whether there is substantial evidence on the record as a whole to support a conclusion of the National Labor Relations Board that a single employee was discharged for union activities in violation of § 8(a) (1) and (3) of the National Labor Relations Act.² 29 U.S.C.A. § 151 et seq.

The general principles governing the Board and reviewing courts in discharge cases have been stated and restated by the Supreme Court³ and this Court.⁴ It would serve no useful purpose to repeat them here. It is often difficult, however, to apply the principles to such cases as this where there is some evidence tending to show that the employee's discharge was motivated by his union activities and other evidence tending to show that his discharge was unrelated to his union activities.

Judge Blackmun commented on the difficulties in N.L.R.B. v. Byrds Manufacturing Corporation, 324 F.2d 329, 332-333 (8th Cir. 1963):

"* * * These discharge issues are difficult and sensitive when termination coincides with union activity. The employee and the Board present plausible cause for continued employment — a good record, superior comparative production, recent change in assignment, lack of individual warning, and the like — and would tie his discharge solely to union sympathy or activity known to the employer. Management in turn presents equally plausible cause for the discharge — under-production, production not in line with ability, troublemaking, attitude, undesirable effect on fellow employees, similar contemporaneous discharges of non-union employees, and the like, — and would tie the discharge to time-honored and accepted management prerogatives wholly unrelated to union activity or sympathy * * *. The trier of fact must choose between these two. Again its decision, although always outrageous to the losing party and hard for it to accept, is, if supported by an adequate evidentiary basis, not to be retried by this court." (Emphasis added.)

The language used by Courts of Appeals in determining whether a discharge is violative of the Act varies from case to case. This is particularly true in cases where an employer is obviously moved by valid as well as discriminatory motives. In Philadelphia Moving Picture Mach. Op. U. Local No. 307 IATSE v. N.L.R.B., 382 F.2d 598 (3rd Cir. 1967), the Court stated at p. 600:

"* * * An employer commits an unfair labor practice when he dismisses an employee partly on valid grounds and partly for a cause unlawful under the Act. * * *" (Emphasis added.)

In Betts Baking Co. v. N.L.R.B., 380 F. 2d 199, 203 (10th Cir. 1967), the Court stated:

"* * * It seems settled, however, that the Act may be violated if union discrimination is but a partial motive for the discharge * * *" (Emphasis added.)

In N.L.R.B. v. West Side Carpet Cleaning Co., 329 F.2d 758 (6th Cir. 1964), the Court stated at p. 761:

"* * * Even though part of the motivation for Weber\'s discharge might have been a needed cutting of expenses, such circumstance could not be legally used to effectuate a companion motive to rid the company of a union protagonist. * * *" (Emphasis added.)

In N.L.R.B. v. Symons Manufacturing Co., 328 F.2d 835 (7th Cir. 1964), at p. 837, the Court stated:

"The mere existence of valid grounds for a discharge is no defense to a charge that the discharge was unlawful, unless the discharge was predicated solely on those grounds, and not by a desire to discourage union activity. * * *" (Emphasis added.) Accord, Sunshine Biscuits, Inc. v. N.L.R.B., 274 F.2d 738, 742 (7th Cir. 1960).

And, in N.L.R.B. v. Great Eastern Color Lithographic Corp., 309 F.2d 352 (2d Cir. 1962), cert. denied, 373 U.S. 950, 83 S.Ct. 1680, 10 L.Ed.2d 705 (1963), the Court stated at p. 355:

"* * * Even though the discharges may have been based upon other reasons as well, if the employer was partly motivated by union activity, the discharges were violative of the Act. * * *" (Emphasis added.)

This Court has also expressed itself in a variety of ways in similar situations. For example, in Cupples Co. Manufacturers v. National Labor R. Board, 106 F.2d 100 (8th Cir. 1939), the Court stated at p. 117:

"* * * It seems probable that the employee\'s joining the union was at least a contributing cause of his discharge." (Emphasis added.)

In Kansas City Power & L. Co. v. National Labor R. Board, 111 F.2d 340 (8th Cir. 1940), at p. 348, the Court stated:

"* * * The real inquiry here is whether the transfer was simply for work purposes or whether the purpose or one purpose was so to interfere or so to discipline." (Emphasis added.)

In Mitchell v. Goodyear Tire and Rubber Company, 278 F.2d 562 (8th Cir. 1960), the Court stated at p. 565:

"* * * Plainly, all that had occurred was that the employer had just learned of Cole\'s complaint to the Wage & Hour authorities. Whether this fact alone motivated the employer at that time or whether it was, as defendant\'s counsel suggested, the straw that broke the camel\'s back, the unavoidable inference is that the employer\'s action was prompted by knowledge of Cole\'s complaint. * * *" (Emphasis added.)

In Marshfield Steel Company v. N.L. R.B., 324 F.2d 333, 337 (8th Cir. 1963), the Court stated:

"`* * * A justifiable ground for dismissal is no defense if it is a pretext and not the moving cause.\'

* * * * * *

"`* * * Although the discharge of an inefficient or insubordinate union member or organizer is lawful it may become discriminatory if other circumstances reasonably indicate that the union activity weighed more heavily in the decision to fire him than did dissatisfaction with his performance.\'" (Emphasis added.)

And, in Farmbest, Inc. v. N.L.R.B., 370 F.2d 1015 (8th Cir. 1967), the Court stated at p. 1019:

"* * * There is no record evidence that the discharge of the employee * * * was motivated in any degree by the employee\'s union activities. * * *" (Emphasis added.)

The emphasis appears to vary from case to case. Thus, in Cupples, we spoke of "a contributing cause;" in Kansas City Power, we used the test of "one purpose;" in Mitchell, we spoke of "the straw that broke the camel's back;" in Farmbest, we used the term "motivated in any degree;" and in Marshfield, we suggested that the Board has the responsibility of determining whether "the union activity weighed more heavily in the decision to fire him than did dissatisfaction with his performance."

Despite the differences in terminology and emphasis, the cited cases require that there be substantial evidence indicating that the employee, but for his union activities, would not have been discharged.

While Symons can be read as permitting the Board to find a discriminatory discharge if there is any evidence in the record to support such a finding⁵ and while Marshfield can be read as requiring that there be a "calculus of values"⁶ or more than substantial evidence on the record as a whole to support such a finding, the opinions read in their entirety do not sustain these interpretations. We would add that either interpretation would be erroneous.

At the risk of further complicating an already confused area, we restate what we consider to be the appropriate standards to be followed by Trial Examiners and the Board:

(1) The General Counsel has the burden of proving by a fair preponderance of the evidence that the employee was discharged for his union activities or membership — that but for his union activities or membership, he would not have been discharged.⁷

(2) This burden can be satisfied by direct or circumstantial evidence.⁸

(3) The Board, in reaching its decision, is permitted to draw reasonable inferences,⁹ and to choose between fairly conflicting views of the evidence.¹⁰ It cannot rely on "suspicion, surmise, implications, or plainly incredible evidence." Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 484, 71 S.Ct. 456, 462, 95 L.Ed. 456 (1951).

If the Board follows these standards, we, as a reviewing court, have no alternative but to affirm its decision. If it fails to follow them, we must reverse.¹¹ With these principles in mind, we turn to a consideration of whether the Board correctly decided that Theodore Foster was discharged because of his "zealous efforts as a union steward and to dim the ardor of any steward who might succeed him."¹²

Foster was hired by Mead as an operating engineer in the late summer of 1966. Mead was a party to a collective bargaining agreement with various building trade unions, including the Operating Engineers' of which Foster was a member. The agreement gave Mead broad authority to discharge unsatisfactory employees.¹³

Foster was assigned to operate the hoist. As he was the first operating engineer on the project, he was designated as a union steward. He was competent and efficient in operating and maintaining the hoist. He raised numerous grievances during the time that he was employed — the most important ones being: that Mead failed to take required safety measures with respect to the hoisting operation; that the hoist was in poor mechanical condition; that a number of employees had not been paid for showup time in accordance with the terms of a collective bargaining agreement between Mead...