N.L.R.B. v. MDI Commercial Services

• Decision Date: 21 April 1999
• Docket Number: No. 98-1631,98-1631
• Parties: 161 L.R.R.M. (BNA) 2085 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MDI COMMERCIAL SERVICES, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 621

175 F.3d 621

161 L.R.R.M. (BNA) 2085

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MDI COMMERCIAL SERVICES, Respondent.

No. 98-1631.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 16, 1998.

Decided April 21, 1999.

Polly Misra, Washington, DC, argued (Fred L. Cornnell, Frederick L. Feinstein, Linda Sher and John D. Burgoyne, on the brief), for Petitioner.

Andrew J. Voss, Minneapolis, MN, argued (Donald W. Selzer, Jr., on the brief), for Respondent.

Before BEAM, LAY, and LOKEN, Circuit Judges.

LOKEN, Circuit Judge.

The National Labor Relations Board (the "Board") seeks to enforce its cease and desist order against MDI Commercial Services, Inc. ("MDI"), for violations of §§ 8(a)(1) and (3) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1) and (3). The dispute arose after an unsuccessful organizing campaign by the International Brotherhood of Electrical Workers (the "Union") at MDI's plant in Grand Rapids, Minnesota. Adopting the recommendations of its Administrative Law Judge with one change in legal theory, the Board ruled that MDI committed unfair labor practices by restraining and coercing employees prior to the union election in December 1994; by discharging four employees because of their pro-union activities; and by delaying the recall of ten union sympathizers after a shortage of work caused severe layoffs in January 1995. We enforce the Board's order except as to two of the recalled employees, Douglas Jaeger and LaVonne MacAdams, and two of the discharged employees, Regina and Edward Saric.

I. Election and Post-Election Issues.

MDI's parent is a non-profit corporation that employs disabled and other disadvantaged workers. MDI was formed in early 1994 to build a plant in Grand Rapids funded by a grant from a large local employer. When the United States Postal Service elected not to contract out work the Grand Rapids plant had hoped to perform, MDI was left to find assembly, packaging, and other projects for its new plant in the private sector. During the time in question (the fall of 1994 through the spring of 1995), the Grand Rapids plant was in precarious financial condition, incurring on-going losses that resulted in major employee layoffs in September 1994 and January 1995.

After the Union began its organizing campaign, supporters arranged meetings and wore union buttons and emblems at work. MDI's President, James Maher, repeatedly traveled from the Twin Cities to Grand Rapids to encourage employees not to support the Union. The plant's supervisors, though instructed by MDI not to pressure employees on the union issue, engaged in conduct the Board later found coercive. The Union petitioned the Board for an election. It was held on December 16, and the Union lost, 53 to 20. Due to a downturn in business, MDI temporarily laid off most employees on January 18, 1995. Union supporters Keith Hawkinson and Ricky Thayer were permanently laid off. Business improved, and by March 1995 all but thirteen of the other employees had been recalled. MDI recalled the last thirteen in late April; ten were active union supporters. The Union then filed its unfair labor practice charges.

The Board concluded that MDI engaged in coercive and improper tactics prior to the December 1994 election, and then discriminated and retaliated against union supporters by permanently discharging Hawkinson and Thayer in January 1995, and by delaying its recall of ten union supporters until late April. MDI does not contest the findings and conclusions that it committed unfair labor practices prior to the election--for example, by telling employees a raise was not feasible because of the Union's campaign, by questioning employees about their support of the Union, by monitoring a Union-sponsored dinner meeting and reprimanding union supporters just before the election, and by warning employees that MDI's owner hated unions and would close the plant if the Union won. We summarily enforce these portions of the Board's order and consider the Board's uncontested findings of anti-union animus in reviewing the contested portions of its order. See Radisson Plaza Minneapolis v. NLRB, 987 F.2d 1376, 1381-82 (8th Cir.1993).

Turning to post-election events, the Board's General Counsel did not contest MDI's economic decision to lay off most employees in January 1995. However, he did challenge the permanent layoffs of Hawkinson and Thayer and the late recall of ten employees who supported the Union in the December 1994 election. The ALJ found that these employment actions violated §§ 8(a)(1) and (3) ¹ because they were motivated by a desire to retaliate against union supporters and to discourage further attempts to secure union representation. The Board agreed.

On appeal, MDI argues these portions of the Board's order should not be enforced because they are not supported by substantial evidence on the record as a whole, the standard of review prescribed in 29 U.S.C. § 160(e). See generally Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951); Pace Indus., Inc. v. NLRB, 118 F.3d 585, 590 (8th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 1299, 140 L.Ed.2d 466 (1998). "Put differently, we must decide whether on this record it would have been possible for a reasonable jury to reach the Board's conclusion[s]." Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 118 S.Ct. 818, 823, 139 L.Ed.2d 797 (1998). In deciding wrongful discharge and layoff issues of this kind, the Board's General Counsel has the burden of proving that an employee's protected activity was a motivating factor in the employer's adverse employment action. If the General Counsel meets this burden, the conduct is unlawful unless the employer proves it would have taken the same action absent the protected activity. See NLRB v. Transportation Mgmt. Corp., 462 U.S. 393, 401-03, 103 S.Ct. 2469, 76 L.Ed.2d 667 (1983); NLRB v. DBM, Inc., 987 F.2d 540, 542-43 (8th Cir.1993). ²

The Board concluded the General Counsel met his burden of proving these employees' protected activities were a motivating factor in the terminations and late recalls. There is substantial record evidence supporting this conclusion. First, and most importantly, the uncontested pre-election unfair labor practices provided evidence of union hostility. Second, as MDI concedes, all twelve employees had been open and active union supporters prior to the election, so any lingering anti-union animus would logically have been directed at them. Third, because the Union won only 20 of 73 votes in the election, it is not likely a coincidence when ten of the last thirteen employees to be recalled were union supporters. From this evidence, the Board could reasonably infer that MDI's hostility to unions and desire to discourage future organizing activity were motivating factors in the adverse employment actions. See DBM, 987 F.2d at 543; Ballou Brick Co. v. NLRB, 798 F.2d 339, 342 (8th Cir.1986).

In its defense, MDI presented evidence that Thayer and Hawkinson were selected for permanent layoff because of their excessive lateness, absenteeism, and low productivity. Turning to the late recall of ten other union supporters, MDI presented evidence that as business rebounded in early 1995, it recalled workers best suited to the projects on hand, typically those familiar with the types of work then available. MDI witnesses also pointed to specific performance deficiencies and physical disabilities of the ten employees, and explained that MDI first recalled its most productive employees regardless of their Union support. In rebuttal, the General Counsel presented detailed evidence that MDI had no fixed practice of disciplining employees for lateness or absenteeism; that MDI has a history of tolerating performance deficiencies, particularly from its disabled employees; that employees recalled earlier were no more productive that many new employees were hired before the ten union supporters were recalled; and that management reports contradicted MDI's "familiar work" explanation. The evidence on these issues was conflicting, and we may not preempt "the Board's choice between two fairly conflicting views" of that evidence. Universal Camera, 340 U.S. at 488, 71 S.Ct. 456. After careful review of the record as a whole, we conclude, with two exceptions, that substantial evidence supports the Board's decision that MDI failed to prove it would have permanently laid off Hawkinson and Thayer and would have delayed recalling the other ten absent its anti-union animus. See United Exposition Serv. Co. v. NLRB, 945 F.2d 1057, 1060 (8th Cir.1991); Hall v. NLRB, 941 F.2d 684, 688-89 (8th Cir.1991); York Prods., Inc. v. NLRB, 881 F.2d 542, 545-46 (8th Cir.1989).

The two exceptions are late-recalled employees Douglas Jaeger and LaVonne MacAdams. MDI presented evidence that the late recall of these employees was due to specific physical disabilities, not simply low productivity or poor work performance. Jaeger suffered a stroke that allowed him to use only one hand and made it difficult for him to stay awake during work hours. The Grand Rapids plant manager, Lorraine Bunn, testified that MDI was not able to configure a work station for Jaeger and provide him needed on-the-job assistance until late April. Jaeger did not testify, and the General Counsel introduced no evidence rebutting this testimony. MacAdams injured her thumb at work in December 1994. When the thumb did not heal, she claimed workers compensation benefits from MDI in early March. MDI presented documentary evidence MacAdams was not released for work by her treating physician until the day she was recalled, April 25, 1995. Though MacAdams testified about other subjects during the General Counsel's case-in-chief, she was not recalled to rebut this evidence.

The ALJ did not address whether Jaeger was physically qualified for earlier recall, except to note MDI always intended to recall him. As to MacAdams,...